Filed 12/15/17 Adam a. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


ADAM A.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G055413

(Super. Ct. Nos. DP026806-001,
DP026807-001 & DP026808-001)

O P I N I O N
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Petition granted.
Juvenile Defenders and Donna Chirco for Petitioner.
No appearance by Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel for Real Party in Interest.
Law Offices of Harold LaFlamme and Linda O’Neil for the Minors.
* * *
I
INTRODUCTION
Petitioner Adam A. is the innocent father in this family tragedy. In the spring of 2015, his wife Meghan took a photo of their four-year-old daughter’s vagina and sent it to a Marine with whom she had developed a secret online relationship. Adam and Meghan are now separated, but they were still together in October 2015, when she was arrested. A juvenile dependency petition was filed in early November 2015. Eighteen months later, Adam had complied with his reunification plan, which obviously included a lot of counseling for the sexual exploitation of their daughter, the eldest of three young children, including a newborn son born in September 2015.
There were three witnesses at the 18-month review hearing: Adam’s therapist, who had worked with him on parenting issues; the social worker; and Adam himself. The therapist supported the return of the children to Adam. The social worker did not, citing a host of minor, indeed trivial, deficiencies in his parenting (e.g., a dirty sippy cup). And Adam himself of course sought return.
The juvenile court ignored the social worker’s nitpicking. However, the court thought that because Adam had not truly “grasped the magnitude” of the mother’s abuse, it would be detrimental to return the children to him. The court set a hearing for mid-December 2017 to terminate Adam’s parental rights. Adam then filed this writ petition.
As we explain below, the juvenile court’s assessment is not supported by substantial evidence in the record. There was no expert psychological evidence that Adam had failed to “grasp” some possible and never specifically defined danger of Meghan to his children. Indeed, this case is strikingly similar to this court’s decision in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.). What this court said in Blanca P. fits Adam’s case, right down to the 18 months of counseling both parents faithfully received: “The idea that, despite enduring countless hours of therapy and counseling . . . a parent who has faithfully attended required counseling and therapy sessions must still relinquish her child because she has not quite ‘internalized’ what she has been exposed to has an offensive, Orwellian odor. The failure to ‘internalize’ general parenting skills is simply too vague to constitute substantial, credible evidence of detriment.” (Id. at p. 1751, italics added.)
The Blanca P. court, quoting Justice Mosk’s decision in In re Jasmon O. (1994) 8 Cal.4th 398 (Jasmon O.), emphasized the need for psychological evidence to support a detriment finding, lest such decisions “‘be reduced to arbitrary decisions based upon the emotional response of the court.’” (Blanca P., supra, 45 Cal.App.4th at p. 1749, quoting Jasmon O., supra, 8 Cal.4th at p. 430.)
In this case, all the expert psychological evidence favored Adam. The Orange County Social Services Agency (SSA) presented no expert or psychological testimony that Adam somehow did not “grasp” the enormity of Meghan’s egregious behavior. Adam had actually completed counseling with another psychologist specifically focused on the abuse allegations. The counselor reported that Adam realized his need to be “protective” of the children. Moreover, a review of Adam’s testimony at the 18-month review hearing shows he did understand the need to protect the children from the problem that led to the dependency case.
The juvenile dependency system is essentially structured as a two-stage process: Reunification and permanency planning. At the 18-month review hearing the burden is on SSA to prove detriment. The legislative goal remains the preservation of the parent-child relationship, not a search for excuses for its destruction. We now grant Adam’s petition and direct the court (1) to vacate the permanency planning hearing now set for mid-December, and (2) to arrange for the return of the children to Adam, with whatever family maintenance services (if any) might be appropriate in that regard.
II
BACKGROUND
A. The Dependency Trigger
There is no way we can euphemize or condone the way this case came into the juvenile dependency system: In April or May 2015, Adam and his wife Meghan “were going through a bad period” (Adam’s words) in their marriage. Meghan was then pregnant with their third child, J.A., and had developed a secret online relationship with a Marine. Doubly unfortunately, that Marine was interested in child porn, and requested a sexually explicit picture of the couple’s then four-year-old daughter M.A. Meghan sent him a single picture of the daughter’s vagina, apparently in the hope he would send her an expensive purse.
During this period Adam was working as a computer programmer. He had no idea of his wife’s virtual relationship with the Marine. Both parents ascribed that relationship as a reaction to the fact that Adam had paid no attention to Meghan during her pregnancy at the time. J.A. would be born in September 2015.
The incident with the Marine in the spring of 2015 turned into a juvenile dependency case about six months later, in October 2015, with a report from a military criminal investigation service to the Orange County Child Exploitation Task Force. It resulted in Meghan’s arrest on state law child pornography charges on October 7, 2015, and a dependency petition filed in early November.
In her first interview with a social worker in late October 2015, Meghan complained that Adam had paid insufficient attention to her during her recent pregnancy and she had turned to other men for that attention. It turned out that Meghan had conducted a number of assignations while Adam was at work, some of which involved men coming to the house when the couple’s then two children, M.A. and L.A., were in another room. At the time of the arrest Meghan said “what she did was all her fault.”
But if we cannot condone Meghan’s behavior in the spring and summer of 2015, fairness also requires we recognize it did not happen again. Meghan was never involved in child pornography other than the single picture to the pedophile Marine, and Adam knew nothing about it until Meghan’s arrest. Nor were her prepetition behind Adam’s back sexual assignations from 2015 (dwelt upon at salacious length by SSA in its opposition to Adam’s petition) ever repeated.
Moreover, while Meghan’s behavior at the time was, as the juvenile court noted about two years later, “egregious,” the fact is the juvenile court at the jurisdictional dispositional hearing in mid-December 2015 did not determine there was “severe” sexual abuse within the meaning of section 361.5, subdivision (b)(6) of the Welfare and Institutions Code so as to foreclose the possibility of reunification. Thus, at that hearing both parents were offered reunification services, mostly in the form of monitored visitation and intense psychological counseling. In fact, social workers established the goal of the reunification plan adopted in early January 2016 to be reunification within six months.

B. The Reunification Program
The story of this dependency case thus became the story of what happened during the period from December 2015 to the conclusion of the 18-month review hearing in August 2017, about 20 months. Three distinct themes emerge from the record involving that time period:
(1) Adams’ and Meghan’s cooperation and compliance with the reunification plan.
In December 2015, the social worker noted Adam was extremely cooperative in regard to what he would have to do to regain his children. “I will follow the rules 100%.” And in fact SSA makes no argument in its opposition to the effect that – as is too often tragically the case in dependency cases that reach this court – Adam had failed even slightly to comply with the reunification plan adopted in early January 2016.
Adams’ services began with his referral to a “Non Offending Parent Support Group,” connected with UCI (specifically UCI Focus). Adam had already begun counseling with UCI Focus with a particular therapist named Nelson Ferguson who informed social workers Adam was “engaged and open about what happened.”
UCI Focus and Dr. Ferguson focused on the sexual aspect of the dependency. Adam’s counseling went well: By the six-month review hearing in June 2016 Dr. Ferguson wrote, with more detail: “Adam is open to group and has disclosed the actions of his partner and how his child was victimized. Adam identified he put his child at risk by not following the safety guidelines that were put in place. Adam appears to be empathetic over his children and having to be protective in the future.”
By September 2016, Dr. Ferguson continued the positive evaluation: “Adam identifies his role in children’s lives and how he has to work with his wife on how they will co-parent. Adam is able to address how he will keep children safe and how he will meet their needs by providing a safe place [where] they can live. Adam continues to address how to improve his relationship with his children.”
In fact, by the time of the 12-month review hearing in December 2016, Dr. Ferguson expressed no concern in regard to the sexual abuse aspect of the case and stated Adam had completed the plan: “Adam identifies how the molest allegations affected the family and his relationship with his partner.”
Adam continued with a marriage and family counselor beyond his completion of the therapy concentrating on sexual abuse with Dr. Ferguson. In March 2017, he resumed counseling with Beth Baker, a licensed marriage and family therapist. We say he “resumed” counseling because he first sought out Baker in October 2015 in the wake of the trauma of Meghan’s arrest. The focus with Baker in the resumed therapy was on parenting issues.
Moreover, Adam also compiled an excellent record on visitation. We do not see many cases that reach the Court of Appeal where the father is particularly noted (as social workers did in September 2016) for having arrived “on time or early for visits”
Like Adam, Meghan was also referred to UCI Focus, but of course to an offending parent’s child abuser’s class. Her progress was good as well: By January 2017 and the 12-month review hearing, social workers felt Meghan had made “substantial” progress to alleviate or mitigate the causes necessitating placement.
In fact, Meghan had made such good progress (as social workers perceived things) that not only did they forecast a “substantial probability” of reunification with her children by the 18-month review hearing, but on January 12, 2017, the children were placed with her for a 60-day trial.
(2) Adam’s strong support system.
A second (positive) theme that emerges is that while Adam may have been overwhelmed by the new prospect of single parenthood, he had a strong support network through his Mormon church, where he and Meghan were married.
The two elder girls were placed from the beginning with Adam’s father, who is an emergency room physician. Social workers noted Adam was employed and had a reliable transportation and a “stable support system,” which included his church. His father was able to hire nannies to take care of children during the day since he worked full time. The two daughters got along fine with the nannies.

(3) Efforts to separate the parents.
But the third theme is a darker one – Adam and Meghan’s perceived agenda by social workers from the beginning to force them to divorce. In April 2016, Meghan wrote to the social worker saying: “Is it true that one of your goals for Adam is [counseling] for him to divorce me so that he can prove that he can keep the children safe? I need you to answer that question. Also is it true that if I live separately from Adam that you will give Adam the children then you are looking to find a way to take away my parental rights? Is [it] because you feel I’m not safe no matter what I do. This is very upsetting to me to find out from Adam.”
And our review of the record confirms Meghan’s suspicions. This case may be unique in that a husband is condemned for being emotionally supportive of his wife in a time of acute distress to her. Remember that Meghan’s arrest on October 7, 2015, was the first Adam learned of her online relationship with the Marine or her dalliances with other men. His reaction was charitable. As recounted by social workers in their December 2015 report: “While the mother was in jail, the father was recorded telling the mother that he loved her more than ever” and was “making excuses for the mother’s behavior.”
And what were these excuses? They did not include minimizing the gravity of the dalliances or the child porn. There are also not many cases where a parent is condemned for “taking responsibility” for an event that contributes to a dependency, but Adam was condemned because he blamed himself for not having shown Meghan more attention than he had during her recent pregnancy, thus prompting her to seek inappropriate attention elsewhere. (In December 2015, in their jurisdictional/dispositional report, the social worker wrote: “At this time, the undersigned does not feel the father is capable of protecting the children as he does not acknowledge the risk that the mother poses to the children.” We note Adam would later change his mind after more than a year of counseling.) Social workers would also criticize Adam during various times in the reunification period for whatever attempts he made or hopes he had to reunite with his wife.

C. The 18-Month Review Hearing
And yet despite the social worker’s misgivings about Adam’s late 2015 attitude toward his wife, things were looking up for reunification by the 12-month review hearing in January 2017, when, as noted above, the social workers were willing to actually return the children to Meghan.
What then happened would eventually torpedo that reunification and lead to this writ petition? Three things: First, Meghan and Adam were now separated, but Meghan proposed to the social worker she be allowed to move into a three-bedroom home with a man we shall call M., who 10 years previously had been arrested on some sort of sex-related charge, though there is nothing in the record he was ever actually convicted of it. (He was ultimately convicted of false imprisonment and misdemeanor battery.) He served five years formal probation. Second, relatedly, Meghan had changed residences about five times.
And third, and most of all, what happened was something that had been predestined to happen since before the petition was filed two years previously: Meghan’s incarceration, on April 21, 2017, on the state law child porn charges. It would not be a long incarceration; Meghan received probation, pleading guilty to two counts with the remaining counts dismissed.
Meghan’s April arrest resulted in several postponements of the 18-month review hearing, which would not actually commence until late June. Meghan’s arrest also prompted a change in SSA’s position concerning Adam. A social worker reported that as of May 5, 2017, used the passive voice to announce that “[a]t this time, it has been determined that [Adam] is not prepared to provide the children care.”
The 18-month review hearing would ultimately begin in earnest on June 26, 2017. SSA’s case consisted of its own reports and the testimony of the social worker. Adam’s case consisted of the testimony of the marriage and family therapist, Baker, he initially consulted in the wake of Meghan’s arrest and then again in the spring of 2017, and his own testimony.
Baker had been Adam’s therapist in the early days after Meghan’s arrest in late 2015, though of course with the reunification plan he switched over to the UCI Focus program for 2016. Adam had completed that program by the end of 2016, and so he resumed counseling with Baker in March 2017 in order to focus on the parenting issue that the social workers themselves seemed focused on. Even so, though, Baker still provided evidence that Adam had indeed recognized the gravity of Meghan’s crime, and recognized the need for safeguards for the children vis-à-vis Meghan.
Most of SSA’s case involved emphasizing pre-dependency events, such as Adam’s willingness to bail Meghan out of jail (she was still breastfeeding newborn J.A. at the time). There was also some emphasis on Meghan’s aborted plan to move in with M.

D. The Decision
As noted, to its credit the juvenile court disregarded what had been the thrust of the social worker’s case against Adam, namely, various minor parenting deficits like allowing his daughter to jump off a rock. (The judge said, “I would never take kids away for jumping off a rock.”) The deputy county counsel, however, focused on Adam’s failure to – well, we are not quite sure exactly what she wanted out of Adam, but it appears he had not denounced his wife and the mother of his children in sufficiently strong terms to satisfy the deputy. Despite the fact he had acknowledged that Meghan, at least apart from counseling and an adequate support group, might still pose some “risk” to the children, the deputy – without apparent irony given what we had said in Blanca P. – told the court: “Father doesn’t seem to internalize any increased risk that mother presents.”
The juvenile court was more familiar with Blanca P., and specifically quoted a passage from Blanca P. in which this court emphasized the need for sensitivity in evaluating the psyches of parents who find themselves in the dependency system. Even so, the juvenile court thought that the social worker had “mishandled the case” by allowing the 60-day trial visit. But the core issue was Adam’s attitude towards Meghan, which the judge characterized as just not going “deep” enough.
The juvenile court thus found return of the children to Adam would be detrimental, and set December 18, 2017, for a termination hearing. Adam timely filed a petition for writ of mandate to vacate that finding, which we now grant.
III
DISCUSSION
It is well established that SSA has the burden of showing detriment at the 18-month review hearing. (E.g., In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 [“The [SSA] has the burden of establishing detriment”].) That burden is a substantial one. As the Yvonne W. court stated: “The standard for showing detriment is ‘a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.’ [Citation.] Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child’s physical or emotional well-being.” (Ibid.) In this regard, “In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services” and “the efforts or progress the parent has made toward eliminating the conditions that led to the child’s out-of-home placement.” (Ibid.)
In the present case, there is no doubt Adam (indeed Meghan also) both complied with the reunification plans given them back in January 2016. SSA makes no argument they did not. And Adam even went above and beyond his plan, continuing with his own parental therapist (Baker) after he had officially completed the UCI Focus plan aimed at the sexual abuse aspect of the case.
SSA attempts to minimize Adam’s compliance with his case plan by invoking the cliché that Adam only went “through the motions” of his case plan. (See opposition at p. 38.) This argument is actually very similar to the one specifically condemned in Blanca P., which we called there the “confession dilemma.” (See Blanca P., supra, 45 Cal.App.4th at pp. 1752-1754.) The idea, as it played out in Blanca P., was simple: Since the innocent parent had grounds to believe that the offending parent had not actually committed child molestation, the juvenile court could not use that very denial as a ground to prevent reunification. (Id. at p. 1752.) Indeed, the argument that the nonoffending parent had to accept the position taken by SSA concerning the allegedly offending parent was characterized by this court as nothing less than “Kafkaesque.” (Id. at pp. 1752-1753 [“it cannot be denied that it is an outrageous injustice to use the fact parents deny they have committed a horrible act as proof that they did it. That really is Kafkaesque”].)
In the present case, SSA’s argument parallels that of the confession dilemma in Blanca P., because in practical effect it means that no matter what a parent says or does, the parent’s compliance with a reunification plan still can count for nothing if the juvenile court subjectively thinks the parent still does not “get it.”
Thus, according to SSA, it makes no difference that Adam actually has acknowledged the gravity of Meghan’s actions (which, we will again reiterate, all took place months prior to the dependency petition and were not repeated) – and recognized that there was (arguably at least under certain circumstances) some danger posed by her. It was as if nothing he could say short of saying he “abjure[d], curse[d] and detest[ed]” (See James Hart, In Search of Tradition: Goodridge v. Department of Public Health (2004) 82 Denv. U. L.Rev. 79, 96), Meghan herself (to borrow a phrase from a famous trial ) as some kind of walking menace to the children.
Here, is where Jasmon O., supra, 8 Cal.4th 398, comes in. Blanca P. was not the first published California opinion to use the word “Orwellian” to describe the danger of dependency proceedings becoming exercises in overintrusive dismembership of a parent’s psyche. That honor went to Justice Baxter who objected to the majority’s basing a detriment finding on the testimony of “Department-paid therapists.” (Jasmon, supra, 8 Cal.4th at p. 438.)
Blanca P. looked at Jasmon O., and divined from the majority opinion that at least the testimony of “Department-paid” psychologists provided a safeguard against decisions being based on emotionally subjective perceptions of the juvenile court: “Writing for the majority, Justice Mosk noted that ‘[w]ithout the testimony of psychologists, in many juvenile dependency and child custody cases superior courts and juvenile courts would have little or no evidence, and would be reduced to arbitrary decisions based upon the emotional response of the court.’ (In re Jasmon O., supra, 8 Cal.4th at p. 430.)” (Blanca P., supra, 45 Cal.App.4th at p. 1749, italics added.)
Here, expert psychological testimony to the effect that Adam had failed to “grasp” something is conspicuously absent – that is, absent on SSA’s side. There was psychological testimony, but it all favored Adam. Baker was clear that based on her sessions with Adam, he realized that Meghan posed at least some risk under some circumstances to the children, plus recognized the enormity of Meghan’s crime. But that was not good enough for SSA. It wanted a no quarter, no mercy denunciation by from Adam of his wife.
The absence of psychological evidence supporting SSA’s position is enough by itself to undermine the detriment finding. But on top of that, as Blanca P. court also stressed, detriment findings must be “reasonably specific and objective.” (Blanca P., supra, 45 Cal.App.4th at p. 1750.)
In In re Heather P. (1988) 203 Cal.App.3d 1214, 1229, disapproved on another ground in In re Richard S. (1991) 54 Cal.3d 857, 866, footnote 5, for example, even a psychologist’s opinion on behalf of the social services agency was insufficient to justify a detriment finding where there was merely “general statements” about the parent’s psychological condition, and there was not demonstration “with specificity how the minor would be harmed.”
Similarly nebulous generalities were used to justify the detriment finding in this case. Those words, “what’s going on here” are neither specific nor objective. Indeed, the juvenile court seemed to be expanding the scope of its inquiry from whether the children could be returned to Adam to whether Adam had somehow gained some profound “deep” insight into Meghan’s psyche. Adam’s inability to go “deep down” into his wife’s psyche is not sufficient to sustain an 18-month detriment finding against him. (See Blanca P., supra, 45 Cal.App.4th at pp. 1751-1752 [“To hold otherwise would come perilously close to allowing legal decisions of monumental importance to the persons involved to be based on nebulous ideas more appropriate to an afternoon talk show than a court of law”].) It was SSA’s burden to show detriment, not Adam’s to show he had gained some poorly defined, nebulous “insight” that only Meghan’s psychoanalyst might have.
Adam did everything SSA told him to do. And yet SSA thought he should lose his children because he showed compassion for his spouse and mother of his children. We note that there are a number of facts SSA or minors’ counsel never seem to confront that give credence to Adam’s more supportive approach: This case entered the juvenile dependency system solely because of a single photograph taken of M.A.’s vagina perhaps as long as six months prior to the dependency petition. As wrong as that act was, SSA offers no evidence it ever happened more than once, or that Meghan has a proclivity or impulse to reoffend. Her secret assignations were also confined to the period before the petition. And as far as her proposal to move in with a man who had once been arrested for a sexually related crime, SSA misses the broader point: She did not move in unilaterally; she brought the proposal to the attention of the social worker, who vetoed it. That is, in the entire 18-month reunification period, nothing Meghan ever did put the children in danger. It’s not a case where the offending parent might have some psychosexual compulsion to be overcome. It is a case where a parent did something wrong at a discrete period in her life and there was no evidence it would be repeated.
Since SSA presented no expert psychological evidence that Adam had failed to “grasp” some possible and never specifically defined danger of Meghan to his children, we hold SSA failed to present substantial evidence carrying its burden of showing detriment under the circumstances of this case.
IV
DISPOSITION
The petition for writ of mandate is granted. The juvenile court is ordered to vacate the detriment finding against Adam and arrange for the return of the children to Adam to include whatever family maintenance services might be appropriate in that regard. We recognize that Meghan “need not be provided” (the statute is not automatic) further reunification services given her guilty plea and (we assume) subsequent registration as a sex offender under federal law. (See § 361.5, subd. (b)(16) [“(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (16) That the parent or guardian has been required by the court to be registered on a sex offender registry under the federal Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. [§] 16913(a)), as required in [s]ection 106(b)(2)(B)(xvi)(VI) of the Child Abuse Prevention and Treatment Act of 2006 (42 U.S.C. [§] 5106a(2)(B)(xvi)(VI))”].) We note the statute is discretionary, not mandatory. The degree of contact the children may have with their mother in the future, given our decision today, is a matter which we leave to the discretion of the trial judge.
The section 366.26 hearing scheduled for December 18, 2017, is hereby vacated insofar as it applies to Adam. All further proceedings will be consistent with this opinion.



MOORE, ACTING P. J.

I CONCUR:



THOMPSON, J.
Aronson, J., Concurring:
I concur in the judgment granting Adam. A. (father)’s petition to vacate the juvenile court’s order setting the permanency planning hearing. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code.) I would do so, however, on grounds that the record does not support the juvenile court’s conclusion the Orange County Social Services Agency (SSA) provided father reasonable reunification services. There is a fundamental disconnect in services in this case where, following the 12 month review, SSA (with the court’s foreknowledge and implied blessing) gave the children to mother, the offending parent, for a 60-day trial visit beginning in January 2017 and, after an Interim Review in early March 2017, the court expressly extended the visit (to a total of four months, ending only with mother’s incarceration in late April 2017 as part of her probation terms), and yet SSA and the court fault father for not adequately perceiving a need to protect the children from mother.
The extended placement by its nature is a core component of SSA’s reunification efforts. Those services as offered here were unreasonable in that they would induce a reasonable person, and appear to have induced father, not to view mother as a current threat to the children. After all, SSA placed the children in her exclusive, unmonitored custody. As Justice Brandeis said long ago, “The government is the potent omnipresent teacher. For good or ill it teaches the whole people by its example.” In endorsing the exclusionary rule in criminal cases, Justice Brandeis did so because government misfeasance “is contagious,” and the same is true of SSA’s bad judgment.
In my view, father is entitled to an additional chance at reunification services because the whole thrust of SSA’s reunification effort morphed away from addressing any sexual risk posed by mother — the basis for detaining the children — and instead got bogged down in, as the majority opinion observes, nitpicking father’s parenting skills, contrary to David B. v. Superior Court (2006) 140 Cal.App.4th 772 [perfect parenting not required].)
And the juvenile court cannot wash its hands of its role in the services provided. Minors’ counsel criticized the social worker at the 18 month review for her “complete lack of judgment,” and the court at that time endorsed this view, stating the worker “mishandled the case when the social worker sent the children home on a 60-day T.R.” But the court in perfunctory orders at the 12 month review ratified the visitation plan, including the proposed trial release/visit. And the court at the social worker’s request conducted an Interim Review 75 days into the trial visit, expressly continuing the visit over minors’ counsel’s objection.
If the services were unreasonable, or “mishandled” as the juvenile court itself recognized, it would be unreasonable to hold that against father. In particular, the court and the attorneys faulted father for not continuing to address with his therapist the issue of safeguarding the children against mother, and properly noted that therapists are only as good or effective as the information the patient provides, and also noted that father’s UCI Focus abuse-specific counseling ended back in 2016. But the fact that SSA and the court placed and kept the children with mother explains why his focus would turn and continue in 2017 from perceiving her as a current threat to working on his parenting skills. Especially since parenting skills are what the worker harped on.
The social worker’s “dirty sippy cup” concerns were vastly overstated, but the juvenile court recognized as much and did not base its ruling on that ground. Instead, the court’s concern was whether father, in pining to reunify with mother, truly grasped the magnitude of her offense, and thus whether he would be an effective bulwark against her for his children.
Father disclosed at the hearing that he would “trust [mother] to have unsupervised contact with the children immediately” if they reconciled. While SSA’s and the juvenile court’s role in fostering this view cannot be overlooked, the trial visit with mother was, by any objective standard, a complete disaster. The court also reasonably could be concerned that mother proposed during the visit moving the children in with a man who previously had been charged with sexual assault, though he was “only” convicted of false imprisonment. It is just such lapses in judgment that father must guard against. Yet father himself never progressed to unmonitored visitation. (Cf. In re Casey D. (1999) 70 Cal.App.4th 38, 51 [parent’s showing of requisite benefit “difficult to make” where he or she fails to qualify for unsupervised visitation].)
While SSA’s dim view of father’s parenting abilities no doubt contributed to his inability to gain unmonitored visitation, day care workers independently questioned his ability to manage all three children without help. Father apparently saw mother as fulfilling that role, but the juvenile court reasonably could question that role for her. Father believed that having friends and family “check[] up” on mother would be enough supervision, but apparently never considered or proposed adequate individuals to do so. The paternal grandfather employed two nannies to watch the children while they were in his care, which is beyond the means of most families, but it is not clear who father envisioned would provide care for his children while he worked, or who would “check[] up” on mother. Father stipulated to SSA’s services and the juvenile court’s orders at the six month and twelve month reviews, and never filed a section 388 modification petition seeking the children or unmonitored visitation, even when mother went into custody. In my view, these circumstances support the court’s conclusion it would be detrimental to return the children immediately to father’s care, who proposes to immediately turn them over to mother’s care if they reconcile.
These concerns could be alleviated with a determination that reunification services, as offered to date, were unreasonable. When services have not been reasonable, the 18 month review is effectively deemed a nullity. The matter is remanded for the court to consider continuing a new 18 month review under its statutory authority to continue “any” hearing (§ 352) if it determines additional services would be useful. (E.g., Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015-1017; Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.) This remedy also reconciles the legislative command in section 366.26, subdivision (c)(2)(A) that parental rights cannot be terminated if reunification efforts in any six month period have not been reasonable. In other words, it is pointless to uphold an 18 month review order setting a .26 hearing where services have not been reasonable. As a factual matter committed to the court’s discretion, the determination whether to continue the 18 month review must be made by the juvenile court in the first instance, so in my view remand is necessary. (Mark N.; but see Tracy J., at p. 1428 [continuing 18 month review for six months for lack of reasonable services].)
On remand, “in exercising its discretion, the juvenile court should consider: the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [the child’s] need for a prompt resolution of her dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court’s attention. [Citation.]” (Mark N. at p. 1017.) I therefore would remand the matter for the juvenile court to consider these factors.
Notably, it appears the juvenile court’s ability to offer reunification services to mother would be limited on remand, as the court observed her criminal conviction requires her to register as a sex offender, which is a basis to deny additional reunification services. (§ 361.5, subdivision (b)(16).) If father were to realize that reunification with the children depends on him alone, and not simply turning them over to mother, I would join the majority in concluding that a detriment finding is not supported. As it is, I concur in the judgment on the basis that reasonable reunification services were not provided.



ARONSON, J.