Filed 4/27/18 S.L. v. Superior Court CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


S.L.,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA CRUZ COUNTY,

Petitioner,

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,

Real Party in Interest.
H045515
(Santa Cruz County
Super. Ct. Nos. 17JU00139,
17JU00140)

A.L. (then two) and S.L. (then three; collectively, the minors) were placed in protective custody on May 9, 2017. The Santa Cruz County Human Services Department (Department) filed juvenile dependency petitions on behalf of the minors alleging, inter alia, the failure of the mother, A.L., (Mother) and the father, S.L., (Father) to protect and provide support for their child under Welfare and Institutions Code section 300, subdivisions (b)(1) and (j). The Department alleged that Mother abused controlled substances (including methamphetamine) while acting as the primary caregiver, thereby placing the minors at substantial risk. It alleged further that Father was unable or unwilling to protect the minors from Mother’s behavior. The court sustained the allegations of the petition in July 2017, granted Father family reunification services, and denied services to Mother. On January 31, 2018, after a six-month review hearing, the court terminated Father’s family reunification services and scheduled a selection and implementation hearing pursuant to section 366.26 (.26 hearing) for May 1, 2018.
Father filed a petition for extraordinary writ to compel respondent superior court to vacate its order terminating his family reunification services and requested a stay of the hearing. He contends the juvenile court erred in concluding that the Department had offered and provided him with reasonable reunification services. Further, he asserts there was substantial evidence supporting that he had participated regularly and had made substantive progress in the court-ordered treatment plan. He argues therefore that the court erred in terminating his reunification services. We conclude that respondent court did not err, and we will therefore deny the petition and the request for stay.
I. FACTS AND PROCEDURAL HISTORY
A. Petitions and Detention (May 2017)
On May 11, 2017, the Department filed separate juvenile dependency petitions on behalf of the minors. A.L. was then two years old, and S.L. was then three years old. Each petition alleged that the child came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling).
As to jurisdiction under section 300, subdivision (b)(1), the Department alleged in each petition the following facts. Mother “abuses controlled substances that include but are not limited to methamphetamine and said abuse negatively impacts her ability to provide safe and appropriate care for [the minors]. [Mother] has a long history of substance abuse and has been provided with multiple services to address her substance abuse issues.” It alleged that Mother’s abuse of controlled substances, including while acting as the children’s primary caregiver, placed the minors “at substantial risk of serious physical harm.” The Department alleged further in support of the claim of jurisdiction under section 300, subdivision (b)(1) that the minors’ Father was “unable and/or unwilling to protect his children . . . from the behavior of [Mother].” Father’s “inability or unwillingness to protect his children from [Mother’s] behavior, places [the minors] at substantial risk of serious physical harm.”
On May 5, Father had observed in Mother’s home that she shared with the minors “a spoon and cotton which is used to shoot heroin . . . , and [Father] left the children in [Mother’s] care.” Three days later, while Mother was caring for the minors, a pipe and a baggie containing methamphetamine fell out of her pocket, and methamphetamine was found in the minors’ bedroom and in the hallway. In addition, needles were found that were accessible to the minors. Father was present in the home at the time and “failed to remove the children from the home until directed to do so by law enforcement.” Also on May 8, the home where the minors resided was in a filthy and unsanitary state, with “clothes everywhere, food and debris . . . appear[ing] to have been in the home for a long time and the children’s drinking cups [having] old milk.”
Mother was arrested on May 8, and charged with possession of controlled substances and drug paraphernalia, child endangerment, and violation of probation. On May 9, Father was arrested for receiving stolen property.
As to jurisdiction under section 300, subdivision (j), the Department alleged in both petitions the following facts. The minors’ half sibling, J.J., “was abused and/or neglected as defined by the 300 Section of the Welfare and Institutions Code and there is a concern that [the minors] will be abused and/or neglected in a similar manner.” Mother “was provided with court-ordered services from May 2009 until November 2011 due to her substance abuse.” J.J. was removed from Mother’s care in October 2010. Mother was provided services, but reunification was unsuccessful; Mother’s parental rights were terminated, and J.J. was subsequently adopted.
The Department alleged further in the petitions that S.L., A.L.’s sibling, “was abused and/or neglected as defined by the 300 Section of the Welfare and Institutions Code and there is a concern that [A.L.] will be abused and/or neglected in a similar manner.” “Due to their substance abuse, the [minors’] parents . . . were provided with 36 months of court ordered Family Maintenance Services that included but were not limited to Psychiatric Medication evaluation, General Counseling, Parenting Classes, Substance Abuse services and Substance Abuse testing.”
On May 15, after a contested detention hearing, the court found that the Department had made a prima facie showing in support of the allegations of the petitions and ordered the minors detained.
B. Jurisdictional/Dispositional Orders (July 2017)
1. Jurisdiction/Disposition Report
The Department filed a jurisdiction/disposition report on June 6. It noted that the minors had been placed in licensed foster family home.
In the report, the Department recited extensive child welfare history that predated the petitions. In 2013, there were a number of reports concerning Mother’s use of methamphetamine while she was pregnant with the S.L. In September 2013, after S.L.’s birth, the Department filed a dependency petition against Mother and Father alleging general neglect of the minor, S.L., based upon, inter alia, (1) Mother having jeopardized S.L.’s health by exposing her to drugs in utero and not consistently obtaining prenatal care; (2) Father’s failure to recognize Mother’s drug use and take steps to intervene; and (3) Father’s “own history of substance abuse and criminal history [placing S.L.’s] safety at risk.” As a result of the filing of this petition, the family received 36 months of family maintenance services. The proceeding was dismissed in September 2016.
There were subsequent referrals in 2016 concerning alleged neglect of the minors by their parents. In January 2016, Mother had been cited and released as a result of her having drug paraphernalia in her car that was accessible to the minors. Law enforcement had responded to a laundromat, where Mother appeared to have been under the influence, with A.L. crying and locked inside the car with the keys unsecured in the front passenger seat. Police determined she was not under the influence. Drug paraphernalia were found by the police during a probation search of the car. In March 2016, Father had tested positive for methamphetamine and heroin after a prior inpatient admission to a medical facility, and he admitted a long history of drug use. He also expressed a willingness to enter a methadone program.
The Department also noted a lengthy child protection history involving the minors’ half sibling, J.J., between July 2007 and November 2011. After Mother received approximately one year of family reunification services, the court terminated such services in November 2011. Mother’s parental rights as to J.J were terminated in June 2013, and the child was adopted by his maternal grandmother.
Mother had a lengthy substance abuse history. The Department reported that she “ha[d] been court[-]ordered to complete drug treatment on four occasions; however, she continue[d] to chronically use chemical substances.” Father also had a lengthy substance abuse history. He reported to the Department that his sobriety date was March 21, 2016. He admitted that he had relapsed in March 2017; he made contact to obtain treatment and entered the Evolving Door Sober Living Environment on April 24, 2017, where he resided as of the report date.
Mother had an extensive criminal arrest and conviction history dating back to 2002. Father had an extensive criminal arrest and conviction history dating back to 1999.
Based upon, inter alia, “[M]other’s chronic, extensive substance abuse” (emphasis omitted), and the termination of reunification services and the permanent severing of Mother’s parental rights relative to J.J., the Department recommended that Mother be denied reunification services. It cited section 361.5, subdivision (b)(10), (11), and (13) in support of this position.
The Department noted that “[F]ather meets bypass criteria based on Welfare and Institutions Code [section] 361.5[, subdivision (b)(13).” It nonetheless recommended that family reunification services be offered to Father, based in part upon his having completed a residential treatment program and having “made efforts prior to the Department’s most recent involvement to address his substance abuse issues.”
2. Jurisdictional/Dispositional Hearing
At the contested jurisdiction/disposition hearing on July 10, the juvenile court found all of the allegations in the two petitions true. It determined that the minors were persons described by section 300, subdivisions (b) and (j), and it declared them dependents of the court. It ordered family reunification services for Father. The juvenile court advised Father that if there had not been substantial compliance with the service plan within six months, it could terminate services and order the development of a permanent plan of adoption, guardianship, or long-term foster care for the minors. The court determined that reunification services should not be provided to Mother pursuant to several statutory bypass provisions, specifically subdivisions (b)(l0), (11), and (13) of section 361.5.
The juvenile court ordered further that Father receive supervised visitation of the minors of a minimum of three times per week. It ordered that Mother receive supervised visitation of the minors of a minimum of once per month.
C. Six-Month Review (January 31, 2018)
1. Department’s Report
On December 5, the Department filed a report in anticipation of the six-month review hearing. The social worker, Matthew Remer, noted that the minors had been placed on September 29 in a second licensed foster home and that it was a concurrent home. The foster parents advised that both children (but S.L. to a greater extent) had been experiencing some behavioral issues. Their relationship with each other was “at times confrontational, with [S.L.] being physically aggressive with [A.L.]”
Throughout the reporting period, Father had resided at Evolving Door Sober Living Environment in Scotts Valley and was separated from Mother. He had been largely unemployed, but reported that he had found odd jobs doing repairs for people.
Social worker Remer reported that Father had throughout the reporting period stated that he was not associating with Mother and that his communication with her was infrequent. But Father’s statements were belied by the fact that Remer had had a number of telephone conversations in which he would receive a call from Father or Mother in which, while speaking with one, he could hear the other in the background providing information. The minors’ caregiver had had similar experiences. In a voice mail message to the caregiver on November 1, Father told the caregiver that he and Mother spoke frequently about the minors. And an individual with the Parents’ Center reported that Mother and Father “physically associate[ed] with each other as an intact couple and . . . [had] communicated with each other by phone on a daily basis throughout this reporting period.”
The Department concluded that Father’s ongoing contact with Mother was “troubling to the Department because of [Mother’s] extensive history with substance abuse and her inability to keep her children safe due to her chronic and unresolved substance use. . . . It is the Department’s assessment that this is not what has happened during this reporting period. In conjunction with his own criminal activity, it is also the Department’s assessment that [Father] is unable to set boundaries with [Mother] in order to keep his children safe, thus posing continued risk to [the minors].”
Since the July jurisdiction/disposition hearing, Father had had further encounters with law enforcement. On October 26, Father, who was parked in front of an abandoned building, was questioned by Scotts Valley Police Officer Beymer. Father was then subjected to a probation search of his person and his car. Officer Beymer located a glass methamphetamine pipe concealed by Father under his pants. Father was cited for possession of drug paraphernalia.
On November 17 at about 6:00 p.m., Scotts Valley Police Officer Johnson observed a black Honda known to be associated with Father that was parked in front of a laundromat. Officer Johnson had been advised by Detective Contreras earlier that day that there was an open investigation in which Father was the primary suspect that involved a party fraudulently opening a Sears credit card account in another person’s name and thereafter purchasing a large amount of tools. Detective Contreras showed Officer Johnson the store’s surveillance footage and the officer recognized Father based upon prior contacts with him. Officer Johnson entered the facility and observed Father doing laundry. After stepping outside, the officer conducted a probation search of Father’s person and located a hypodermic needle, a glass pipe with scorch marks on the exterior, and a baggie containing methamphetamine. During a search of the trunk of Father’s car, Officer Johnson located a large number of tools that appeared to be new. In the car’s interior, the officer found a Sears receipt bearing the same name that was used to open the credit card account. The officer also found a device that he believed to have been a “kit . . . used to falsify a urine test.” Officer Johnson arrested Father for possession of a controlled substance and drug paraphernalia and released him with a written promise to appear in court.
On November 24, Officer Johnson made a traffic stop of Father’s car. The officer conducted a probation search and located a counterfeit $20 bill in Father’s wallet. The officer also found a Cabrillo College debit card in the name of another man inside the car. Officer Johnson arrested Father for felony probation violation.
On November 30, while Father was still in custody, he was charged with two counts of felony identity theft and one count of forgery with an allegation that the offenses were committed while he was on bail. He remained incarcerated as of December 5. When the social worker spoke with Father on November 28, he denied responsibility for the charged crimes. He stated that the drug paraphernalia found during the October 26 search did not belong to him. Father admitted, however, that when he was cited on November 17 for possession of a controlled substance and drug paraphernalia, he had intended to smoke the methamphetamine but had not yet done so.
Father had been participating in his case plan during the reporting period. He had completed an intensive outpatient substance abuse program on October 12. His substance abuse counselor reported that Father had been “very engaged” and had submitted to weekly testing with results that were negative. Notwithstanding his criminal history in October and November, Father advised the Department that he had remained clean and sober and that his clean date was March 21.
Beginning on August 10, Father had participated in weekly counseling with his therapist, Araceli Miranda, until “[h]e went on the no-show list on 10/17/2017 for lack of attendance, but was able to re-engage with [his therapist] on 11/07/2017.” Miranda reported that Father had been “forthcoming in his sessions with her and [had been] able to process the changes that he [had been] attempting to make in his life, while formulating future goals for him and his children. [She] reported that [Father] was seemingly committed to making positive lifestyle changes regarding his substance abuse and . . . to doing everything necessary for getting his children back into his care.” Father had also participated in the Triple P parenting program and had one class remaining to obtain his certificate.
Social worker Remer reported that Father’s visits with the minors during the reporting period had “remained highly structured.” Father appeared “to be a very loving father who ha[d] worked on increasing his bond with his children. However, his lack of involvement in parenting [the minors] in the past ha[d] been reflected in some of the visits when [he] exhibited a lack of awareness of what [was] appropriate when interacting with his children.” On July 24, Father was playing with the minors, and S.L. left the play area. “She ‘returned with a very big smile; her right hand was inside of her pants and underwear while her left hand was pulling down the back of her pants with her back facing Father . . . [S.L.] was smiling and giggling. [Father] also began to giggle and spoke about [S.L.] “likes to be naked.” Visit supervisor redirected [S.L.] and it required four repeated prompts before [S.L.] removed her hand from inside[] of her pants and pulled her pants up. [S.L.] wiggled her body and repeated in a singsong voice “naked, naked, naked . . .” which lasted 2-3 minutes. During this time, Father was smiling and laughing, reporting “she likes to be naked after school.” . . .’ ”
The Department reported that an issue of parental favoritism of S.L. had appeared in some of the visits. In a visit described as “[o]ne of the more blatant examples” occurring on June 22, the parents were playing with toy dinosaurs with their daughter, S.L. “while [A.L.] was eating. At one point[, A.L.] attempted to rejoin the family to play . . . . When [A.L.] picked up a dinosaur, [S.L.] screamed ‘That’s mine! You can’t play!’ It is documented that ‘Mom and Dad comforted [S.L.] and scolded [A.L.] Mom took the toy from him and gave it back to [S.L. A.L.] ran and laid [sic] down under the table, covering his face with his hands. The visit supervisor attempted [unsuccessfully with the parents] to intervene to draw attention to [A.L.’s] reaction and the reaction that had just occurred. . . .’ ”
The Parent Center staff had also raised issues with Father’s tendency during visits “to cry and get emotional in the presence of his children. . . . [S]taff . . . have encouraged [Father] to improve his emotional self-regulation during visits.” The staff observed other occasions in which Father had “present[ed] as being naturally high energy and talk[ing] at a rapid pace. . . caus[ing the minors] to become overactive during some visits.” The staff also reported that Father had made considerable progress in addressing the described issues and that he had asked staff for help in redirecting S.L. when she misbehaved.
The Department summarized its concerns regarding Father: “Unfortunately, [Father] has severe issues that . . . have yet to be fully addressed. His issues continue to be around substance abuse and [he] has been cited twice for possession of drug paraphernalia as well as possession of a controlled substance during this reporting period. In addition, [Father] has extensive, [ongoing] criminal history and was arrested on 11/24/2017 for felony probation violation and for possession of a blank check, note, blank bill, money order, or traveler’s check. In addition, while incarcerated, he is currently being charged with two counts of felony identity theft [and] one count of felony forgery relating to the identity theft. . . . [¶] Lastly, [Father’s] purported association with [Mother] throughout this reporting period is troubling to the Department because of [Mother’s] extensive history with substance abuse and concern of her inability to keep her children safe as a result. [Social worker Remer] has told [Father] of the risks that [Mother] poses to [the minors] on multiple occasions throughout this reporting period, and each time [Father] has acknowledged those risks and has stated that he has and would continue to avoid associating with [Mother] until she made behavioral changes. It is the Department’s assessment that this is not what has happened during this reporting period. In conjunction with his own criminal activity, it is also the Department’s assessment that [Father] is unable to keep his children safe from [Mother], thus posing continued high risk to [the minors] if they were to return to his care.”
Based upon Father’s having failed to take the “steps necessary to become a protective parent,” including his inability to make behavioral changes to minimize the risks to the minor, his ongoing association with Mother that placed the minors at risk, and his additional criminal activity resulting in his arrest and incarceration, the Department opined that “[Father’s] priorities do not align with his children’s needs.” Accordingly, it recommended that Father’s reunification services be terminated and that a .26 hearing be scheduled.
2. January 31, 2018 Update Memorandum
The Department filed an update memorandum on January 31, 2018. Social worker Mary Ellen Olson advised that after Father’s arrest on November 25, he was booked into the Santa Cruz Main Jail, where no child visitation was permitted. The Department was informed on December 11 that Father had been transferred to the Rountree Facility (Rountree), and that he was requesting visitation. Social worker Olson detailed a number of efforts she made between December 15 and mid-January 2018 to arrange for visitation between Father and the minors at Rountree. These efforts included a number of contacts with personnel at Rountree, and contacts with social work supervisors, the minors’ therapist, and the foster parents.
Visits at Rountree between Father and the minors commenced on January 16, 2018, and there had been eight supervised visits as of January 31, 2018. Since the commencement of visitation, “numerous issues ha[d] arisen.” Mother was present both before and after the visit on January 22, 2018. Although the social worker advised the parties afterward that visitation should occur separately and that Mother’s monthly supervised visits with the minors should occur at the Parents Center, Mother was again present before and after the minors’ visit with Father on January 26, 2018. The Department suspected that Father had provided Mother with advance notice of the visitation schedule. And on January 29, 2018, it was reported that Mother was observed outside of Rountree putting an unknown baby in a car seat, and that Mother then “appeared to be ‘shooting up’ and using an arm cuff.” As the car with the baby inside began to roll into the street, a construction worker intervened to prevent an incident.
The foster parents advised that there had been “an increase in disruptive, aggressive, and confrontational behavior in [S.L.], and that [A.L.] appear[ed] hyper and emotionally drained.” The foster mother told social worker Olson that S.L. had “been particularly more aggressive after her visits with [Father].” The social worker also observed that “before the visit[, A.L.] was very upset and clinging to his foster mother, and both children were standoffish from their [F]ather for the first 10-15 minutes.” The visit supervisor and social worker Olson also observed that “[Father was] very hands on and interactive with the children, but [he had] trouble setting boundaries with them.”
3. Six-Month Review Hearing
A contested six-month review hearing occurred on January 31, 2018. Mother was not present but was represented by counsel. Father was present in custody and was represented by counsel. The court initially denied a motion to continue made on behalf of Mother.
The Department submitted the matter on its December 5 report and its update memorandum of January 31, 2018, and it presented no further evidence. Mother, through her counsel, also submitted the matter. Father presented additional documents to the court, consisting of multiple visitation logs, support letters, and records from Rountree jail reflecting Father’s participation in programs. Father also called social worker Remer as a witness.
During cross-examination by Father’s counsel, social worker Remer confirmed certain aspects of the Department report that were favorable to Father, including (1) his participation in and completion of the Alto outpatient substance abuse program; (2) his reportedly having been very engaged in the program; (3) his negative drug testing; (4) his participation in counseling with therapist Miranda beginning in August 2017; (5) Miranda’s statement to Remer that Father had been forthcoming in his sessions and had been able to process changes he was attempting to make in his life while developing future goals; (6) his participation in the Triple P parenting program; (7) his work on the 12-step program; and (8) his consistent visitation with the minors.
On direct examination by the Department’s counsel, social worker Remer offered testimony reflecting negatively toward Father as presented in the report, including Father’s recent criminal history and his failure to be forthcoming with the Department, his substance abuse counselor, or his therapist regarding his criminal arrests. Remer testified that the conversation in which therapist Miranda had told him that Father had been forthcoming occurred in November; Miranda had not been advised by Father concerning his arrest for narcotics possession.
Social worker Remer testified that Father told him the methamphetamine pipe that had been located on his person on October 26 did not belong to him. Father similarly told Remer that the urine testing kit located in Father’s car and the methamphetamine pipe found on his person on November 17 did not belong to him. He told social worker Remer that when he was cited by police, he had not intended to use the methamphetamine. He said that earlier, before the arrival of the police, he had intended to use it and had gone into the laundromat’s bathroom; he then changed his mind, and when he emerged from the bathroom, law enforcement was waiting for him. This account was contradicted by Scotts Valley police, who reported that when officers entered the laundromat, they observed Father doing his laundry, then approached him and asked him to exit the premises with them.
After evidence was presented and before counsel gave closing arguments, the court announced its tentative decision in favor of the Department. The court observed that the Department had the burden of proving by clear and convincing evidence that Father both “failed to participate regularly and failed to make . . . substantive progress in the Case Plan.” Its tentative conclusion was that the Department had met its burden of showing Father failed to make substantive progress in the case plan due to Father’s recent criminal record that included possession of methamphetamine and drug paraphernalia. The court reasoned that substance abuse was the issue that had “brought this case to the attention of the Department again,” and the court had presided over the prior dependency involving S.L. that had been dismissed in September 2016 after 36 months of family maintenance. And the court, in analyzing whether there was a substantial probability the minors may be returned within six months, expressed concern that Father had the ability to complete the case plan, and that his ongoing relationship with Mother showed his inability to maintain boundaries for the safety of the minors.
After hearing argument from counsel, the court announced that it was adopting its tentative ruling, and it adopted the recommended findings of the Department. The court found, inter alia, that (1) by clear and convincing evidence, reasonable services designed to assist Father to overcome the problems that led to the minors’ removal were offered and provided to Father; (2) the Department complied fully with the case plan; (3) Father’s progress toward alleviating or mitigating the causes that had necessitated the minors’ placement in foster care had been poor; (4) the minors’ out-of-home placement had been necessary and appropriate; (5) return of the minors to Father would create a substantial risk of detriment to the their safety, protection, or physical or emotional well-being; (6) based upon clear and convincing evidence, Father had failed to participate regularly and make substantive progress in a court-ordered treatment plan; and (7) there was not a substantial probability that the minors may be returned to Father within six months. The court terminated reunification services for Father and scheduled a .26 hearing for May 1, 2018.
D. Petition for Extraordinary Writ
Father filed timely under rule 8.450(e) of the California Rules of Court a notice of intent to file a petition for extraordinary writ to review the court’s order of January 31, 2018, terminating services. Thereafter, Father filed his petition for extraordinary writ with this court on April 12, 2018. (See rule 8.452.) Real party in interest Department filed its opposition on April 20, 2018.
II. DISCUSSION
A. Applicable Legal Principles
1. Dependency Law Generally
Section 300 et seq. provides “a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child’s welfare. [Citations.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) As our high court has explained, “The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
The court at the jurisdictional hearing must first determine whether the child, by a preponderance of the evidence, is a person described under section 300 as coming within the court’s jurisdiction. (§ 355, subd. (a).) Once such a finding has been made, the court, at a dispositional hearing, must hear evidence to decide the child’s disposition, i.e., whether he or she will remain in, or be removed from, the home, and the nature and extent of any limitations that will be placed upon the parents’ control over the child, including educational or developmental decisions. (§ 361, subd. (a).) If at the dispositional hearing, the court determines that removal of the child from the custody of the parent or guardian is appropriate, such removal order must be based upon clear and convincing evidence establishing that one of five statutory circumstances exists. (Id., subd. (c).) One such circumstance is the existence of substantial danger to the dependent child’s “physical health, safety, protection, or physical or emotional well-being” were he or she returned to the home. (Id., subd. (c)(1).)
After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the permanent plan for the child is the permanency hearing as provided under section 366.26. The essential purpose of the hearing is for the court “to provide stable, permanent homes for these children.” (Id., subd. (b); see In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
Prior to the permanency hearing, there are periodic status reviews as ordered by the court, but not less frequently than every six months. (§ 366, subd. (a)(1).) “At the review hearing held six months after the initial dispositional hearing [the six-month review hearing], . . . the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e)(1).) “Review hearings are critical because they are the point at which a parent may be denied further reunification services. [Citation.]” (In re Jesse W. (2007) 157 Cal.App.4th 49, 61; see also In re Derrick S. (2007) 156 Cal.App.4th 436, 450 [reunification is “standard topic at” six-month review hearings].)
A high priority in dependency proceedings is placed upon the expeditious implementation of services and placement of the dependent child. (In re Josiah Z. (2005) 36 Cal.4th 664, 674.) Our high court—enunciating a point very relevant to this case involving children who were two and three years old at the time of their removal—has explained: “We have long recognized that providing children expeditious resolutions is a core concern of the entire dependency scheme. [Citations.] If this is true of dependency cases in general, it is doubly true for the very young.” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847, fn. 4 (Tonya M.).)
2. Family Reunification Services
When the dependent child is removed from parental custody, the juvenile court is ordinarily required to provide the parent with services to facilitate the reunification of the family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303.) As explained by one court: “The importance of reunification services in the dependency system cannot be gainsaid. The law favors reunification whenever possible. [Citation.] To achieve that goal, ordinarily a parent must be granted reasonable reunification services. [Citation.] But reunification services constitute a benefit; there is no constitutional ‘ “entitlement” ’ to those services. [Citation.]” (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.)
If reunification services are ordered, they generally (subject to exceptions and instances in which the period may be extended) begin with the dispositional hearing and, for children three years or older, end 12 months thereafter. (§ 361.5, subd. (a)(1)(A).) But where a child is under three at the time of his or her initial removal (id., subd. (a)(1)(B)), or is a member of a sibling group in which one member was under three at the time of his or her removal (id., subd. (a)(1)(C)), reunification services are normally terminated after six months. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, fn. 4 [when the child is under the age of three at the time of removal, “the maximum period of reunification services is generally six months” from dispositional hearing].) Although a parent may reasonably expect under most circumstances to receive reunification services for at least the periods designated under section 361.5, subdivision (a)(1), there is no entitlement to services for a prescribed minimum period. (In re Derrick S., supra, 156 Cal.App.4th at pp. 445-450 [parent of child over three not entitled to minimum of 12 months of services]; In re Aryanna C., supra, 132 Cal.App.4th at pp. 1242-1243 [parent of child under three not entitled to minimum of six months of services].)
The services offered by the agency must be “reasonable ‘under the circumstances.’ Such circumstances necessarily include the mental condition of the parent, her [or his] insight into the family’s problems, and her [or his] willingness to accept and participate in appropriate services.” (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Under section 361.5, the agency is required to make “ ‘[a] good faith effort’ to provide reasonable services responding to the unique needs of each family. [Citation.]” (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
At a six-month review hearing, when a child is either under three at the time of his or her initial removal or is a member of a sibling group, the court has the discretion under certain circumstances to set a .26 hearing and to terminate reunification services. (§ 366.21, subd. (e)(3); hereafter § 366.21(e)(3).) The juvenile court at the six-month review must make “two distinct determinations” in ascertaining whether it has the discretion under section 366.21(e)(3) to set a .26 hearing. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (M.V.).) “First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a .26 hearing to terminate parental rights. . . . [¶] The second determination . . . [is that, n]otwithstanding any findings made pursuant to the first determination, the court shall not set a .26 hearing if it finds either (1) ‘there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . .’; or (2) ‘reasonable services have not been provided . . .’ to the parent. [Citation.] In other words, the court must continue the case to the 12–month review if it makes either of these findings.” (Id. at pp. 175-176.) But if the court, in making both determinations, concludes that it is thereby empowered to set a .26 hearing, it is nonetheless not compelled to do so. Section 366.21(e)(3) merely authorizes the juvenile court, in its discretion, to set a .26 hearing. (M.V., supra, at p. 176; see also S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1015-1016.) If the court at the six-month review hearing exercises its discretion to set a .26 hearing within 120 days, it must terminate reunification services at that time: “In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian.” (§ 366.21, subd. (h).)
Therefore, as the Supreme Court has explained, for parents of a child under three at the time of removal, the statutory scheme of providing reunification services establishes “three distinct periods and three corresponding distinct escalating standards.” (Tonya M., supra, 42 Cal.4th at p. 845.) In the first period—a phase where services are “presumed”—from the jurisdictional hearing to the six-month review hearing, “services are afforded essentially as a matter of right [citation].” (Ibid.) In the second phase—a period where services are “possible”—from the six-month review hearing to the 12-month review hearing, “a heightened showing is required to continue services.” (Ibid.) And in the third phase—a period where services are “disfavored”—from the 12-month review hearing to the 18-month review hearing, “services are available only if the juvenile court finds specifically that the parent has ‘consistently and regularly contacted and visited with the child,’ made ‘significant progress’ on the problems that led to removal, and ‘demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.’ [Citation.]” (Ibid.)
3. Standard of Review
Our review of an order terminating reunification services after a six-month review hearing is, in part, under a substantial evidence standard, and in remaining part, under an abuse of discretion standard. As explained above, in the case of a child under three or a child who is a member of a sibling group, in order to determine whether a juvenile court is empowered at the six-month review to set a .26 hearing (thereby terminating reunification services), it must first make “two distinct determinations” (M.V., supra, 167 Cal.App.4th at p. 175), namely, whether (1) there has been a “ ‘failure [of the parent] to participate regularly and make substantive progress in the court-ordered treatment plan’ ” and (2) “ ‘there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . .’; or . . . ‘reasonable services have not been provided . . .’ to the parent. [Citation.]” (Id. at pp. 175-176.) We review these two determinations by the juvenile court to ascertain whether substantial evidence supports them. (See Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1029 (Fabian L.); Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689 (Kevin R.) [determination that “there was not a substantial probability of return to parental custody by the 12-month review date” reviewed for substantial evidence].)
In determining whether substantial evidence supports the court’s decision, “we review the record in the light most favorable to the court’s determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] ‘We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.’ [Citation.]” (Kevin R., supra, 191 Cal.App.4th at pp. 688-689.) And “ ‘ “[t]he sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” [Citations.]’ [Citation.]” (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) And the juvenile court’s order, “like any other judgment or order of a lower court, is presumed to be correct, and all intendments and presumptions are indulged to support the order on matters as to which the record is silent. [Citation.]” (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88.)
If the juvenile court’s two determinations under section 366.21(e)(3), are supported by substantial evidence, then the court is empowered, but is not required, to set a .26 hearing. (M.V., supra, 167 Cal.App.4th at pp. 176, 179; see also S.T. v. Superior Court, supra, 177 Cal.App.4th at pp. 1015-1016.) Thus, we review that decision for abuse of discretion. (M.V., supra, at p. 176.) “We will not disturb the court’s determination unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the juvenile court. [Citation.]” (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.)
B. No Error in Order Terminating Services
As noted, the trial court here at the six-month review was required to make “two distinct determinations” in resolving whether it could, in its discretion, terminate Father’s services and set a .26 hearing. (M.V., supra, 167 Cal.App.4th at p. 175.) First, it was required to find “by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 366.21(e)(3).) Only if it so found, it was, secondly, required to determine whether “[(a)] there is a substantial probability that the child . . . may be returned to . . . her parent . . . within six months or [(b)] that reasonable services have not been provided” to the parent. (Ibid.) If it found either that a substantial probability of the minor’s return within six months may exist or it found that reasonable services were not provided, the court was not permitted to set a .26 hearing. And even if the court did not find a substantial probability of the minor’s return within six months or that reasonable services were not provided, it then had the discretion, but was not required to, set a .26 hearing and terminate services. (M.V., supra, at p. 176.)
We will therefore consider whether there was substantial evidence supporting the juvenile court’s findings relative to the “two distinct determinations” (M.V., supra, 167 Cal.App.4th at p. 175) under section 366.21(e)(3). (Fabian L., supra, 214 Cal.App.4th at p. 1029.) Concluding that substantial evidence supported those findings, we then determine whether the court abused its discretion in setting the .26 hearing. (M.V., supra, at p. 176.)
1. Regular Participation and Substantive Progress
The Department was required to show by clear and convincing evidence “that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 366.21(e)(3).) The juvenile court so found. As the authors of one treatise on juvenile dependency have explained, this statutory language “must be read as two related, but independent requirements. If the agency proves by clear and convincing evidence the parent has either failed to participate regularly in the court ordered treatment plan or that the parent had participated but failed to make substantive progress, the court may schedule a [.26] hearing unless there is a substantial probability of return by the date of the 12-month permanency hearing [citations].” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.152[5][b], p. 2-549, italics added.)
The court concluded that Father in fact participated regularly with respect to the case plan. And there was certainly substantial evidence to support this finding, and the Department does not contest that finding.
But the court made no parallel finding that Father had made substantive progress in the court ordered treatment plan. In fact, it concluded to the contrary, that Father had not made substantive progress. Father contends that the juvenile “court ignored progress Father had made while incarcerated.” He asserts there was “affirmative evidence” of this substantive progress in that “[h]e employed techniques learned in his parenting classes during visits with the child [sic].” Beyond this general assertion, Father makes no specific argument, with proper citation to the record, as to the basis for arguing there was no substantial evidence supporting the court’s finding of a lack of substantive progress.
“ ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient.’ ” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) As a panel of this court has explained, “[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.] Thus, appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it ‘ “are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived.” [Citations.]’ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).) Father in this instance has failed to present argument with the required evidentiary support for his claim that there was no substantial evidence to support the juvenile court’s finding that Father did not make substantive progress. He has thus waived the claim of error. (Ibid.)
But even were we to address the merits, there was substantial evidence to support the juvenile court’s finding that Father had not made substantive progress. The evidence supporting this conclusion included Father’s (1) renewed criminal activity in October and November involving drugs, drug paraphernalia, possession of counterfeit currency, identity theft, forgery, and possession of a number of tools apparently purchased after fraudulently opening a Sears credit card account, ultimately resulting in his arrest and incarceration; (2) possession of methamphetamine, drug paraphernalia, and a device used to falsify urine drug testing in October and November, evidencing an apparent relapse shortly after his completion of outpatient rehabilitation on October 12; (3) lack of candor to the Department, his drug counselor, and his therapist after his October and November encounters with law enforcement; (4) inability to set boundaries with Mother over the course of the dependency proceedings (and occurring as late as January 2018) to show that he could prioritize keeping the minors safe; (5) visitation with the minors having not progressed beyond “highly structured” supervised visits; and (6) Father’s prior visitation with the minors having disclosed issues concerning a lack of awareness of what might be appropriate, issues of favoritism, and Father’s becoming very emotional, thereby upsetting the minors.
While we credit other evidence showing Father’s participation—including his completion of outpatient rehabilitation, counseling with therapist Miranda, completing most of the Triple P parenting program, and his regular visitation with the minors—the circumstances described above amply justified the court’s finding of no substantive progress. Viewing the evidence “in the light most favorable to the [juvenile] court’s determinations and draw[ing] all reasonable inferences from the evidence to support [those] findings” (Kevin R., supra, 191 Cal.App.4th at pp. 688-689), there was substantial evidence supporting the court’s finding that the Department established by clear and convincing evidence that Father had “either failed to participate regularly in the court ordered treatment plan or that [he] had participated but failed to make substantive progress.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.152[5][b], p. 2-549, italics added.)
2. Substantial Probability Minors May Return to Home
In accordance with section 366.21(e)(3), the juvenile court concluded that there was “no substantial probability that the children may be returned within six months.” Father makes no argument that this finding was not supported by substantial evidence. Any claim of error based upon this finding by the juvenile court is thus forfeited. (Nwosu, supra, 122 Cal.App.4th at p. 1246.)
We will nonetheless consider whether the court’s finding was supported by substantial evidence. As explained by the M.V. court, the statute, which “is unwieldy” (M.V., supra, 167 Cal.App.4th at p. 181), does not provide guidance as to the criteria under which a court determines whether this substantial probability standard is met. (Id. at p. 176.) The court may consider all evidence bearing on the issue. (Id. at p. 181.) This may include, but is not limited to, the three mandatory factors enunciated by the Legislature in section 366.21, subdivision (g)(1) that a court considers at the 12-month review in deciding whether “there is a substantial probability the child will be returned to the physical custody of his or her parent or guardian . . . within the extended period of time . . .” (Italics added.) Those factors are “(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (Id., subd. (g)(1)(A)-(C).) The court may also consider any extenuating circumstances involving the parent that may explain the parent’s “relative lack of evidence of satisfying all three factors.” (M.V., supra, at p. 183.)
The child visitation factor (see § 366.21, subd. (g)(1)(A)) is supportive of Father’s position. Until his arrest on November 24, Father consistently visited the minors pursuant to the visitation schedule established under the case plan.
The factor of significant progress in resolving problems that led to the minors’ removal (see § 366.21, subd. (g)(1)(B)) does not support Father’s position. As noted above, Father’s recent criminal activity, including drug and paraphernalia possession, coupled with his inability to set boundaries with Mother to demonstrate that he could keep the minors safe, showed a lack of significant progress.
The evidence regarding the third factor—whether Father had “demonstrated the capacity and ability both to complete the objectives of . . . his treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs” (§ 366.21, subd. (g)(1)(C))—was also largely unsupportive of Father’s position. While evidence of his completion of outpatient substance abuse rehabilitation, participation in counseling with therapist Miranda, and attendance in the Triple P parenting program showed some capability of completing his treatment plan, his recent criminal activity, including an apparent return to substance abuse, his arrest and incarceration, and his ongoing relationship with Mother reflected negatively toward showing a capacity and ability to provide for the minors’ safety, protection, and physical and emotional well-being.
It is apparent from the record that the juvenile court considered the evidence comprehensively—including positive matters such as Father’s completion of substance abuse rehabilitation, participation in counseling and the Triple P parenting program, and regular visitation of the minors, and evidence bearing upon the three nonexclusive factors under section 366.21, subdivision (g)(1)—in reaching the conclusion that there was not a substantial probability that the minors might be returned to Father within six months. (See M.V., supra, 167 Cal.App.4th at pp. 180-181.) And to the extent there were “extenuating circumstances [potentially] excusing [Father’s] noncompliance with the three factors [under § 366.21, subd. (g)(1)]” (id. at p. 181), there is nothing in the record indicating the court failed to consider them. Thus, there was substantial evidence to support the juvenile court’s finding that there was not “a substantial probability that the child . . . may be returned to . . . her parent . . . within six months.” (§ 366.21(e)(3).)
3. Reasonable Services Provided
The juvenile court made a finding that reasonable services were provided to the parents. It thus found no impediment to setting a .26 hearing under the second determination under section 366.21(e)(3). To state intentionally here a double negative: The court did not find “that reasonable services have not been provided” to Father. (Ibid.)
In his petition, Father contends that he “did not receive reasonable reunification services.” He contends the juvenile court thus erred because “the [D]epartment failed to show by clear and convincing evidence that it provided reasonable reunification services to [F]ather.” Specifically, he argues that the Department should have “develop[ed] a tailored case plan to identify and address Father’s mental health needs.” Further, he asserts here that the juvenile court “rejected Father’s argument that the Department failed to provide him with reasonable services because the Department failed to (1) assist him with accessing services while he complain[ed] of symptoms, and (2) make an inquiry into his mental health condition.” He, however, includes no citation to the record in support of his claim that he made these arguments below as required by the California Rules of Court. (See rule 8.452(b)(3) [memorandum in support of writ petition to review order setting .26 hearing “must support any reference to a matter in the record by a citation to the record”].)
Father, who was represented by counsel, submitted no argument below that the family services provided or offered by the Department were not reasonable. Any claim by Father concerning the adequacy of services provided or offered is thus forfeited. “[A] parent is prevented from challenging the reasonableness of services on appeal if the issue was not first brought to the attention of the juvenile court. [Citation.]” (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1347-1348, fn. 5 (Amanda H.); see also In re Christina L., supra, 3 Cal.App.4th at p. 416 [“If Mother felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan.”].)
One of the chief reasons for the forfeiture doctrine is that “ ‘simply . . . it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, original italics.) That rationale is pertinent here. Had Father, prior to the six-month review hearing, questioned the reasonableness of the services being provided by, for example, complaining that they were devised without “an inquiry into his mental health condition”—a position he asserts for the first time on review—the Department could have addressed the issue at that time and, if appropriate modified or supplemented services accordingly. And had Father, at the six-month review hearing, questioned the reasonableness of services Department had offered, it could have submitted argument to counter any specific alleged failings Father claimed existed and the court could have considered the parties’ respective positions. Since, based upon the record before us, Father did not challenge at any time below the reasonableness of the services provided by the Department, he has forfeited any challenge to the juvenile court’s finding that such services were reasonable. (Amanda H., supra, 166 Cal.App.4th at pp. 1347-1348, fn. 5; In re Christina L., supra, 3 Cal.App.4th at p. 416.)
4. Exercise of Discretion in Setting .26 Hearing
It is very apparent to this court that Father loves the minors very much. He has made significant efforts to address the issues that led to the minors’ removal. Unfortunately, any positive advancement from these efforts was derailed by Father’s renewed criminal activities in October and November that resulted in his incarceration. Here, it was undisputed that the minor, A.L., was less than three at the time of his removal and that the minor, S.L., was a sibling group member under section 361.5, subdivision (a)(1)(C). There was substantial evidence supporting the court’s conclusions that (1) by clear and convincing evidence, Father failed to participate regularly and make substantive progress in a court-ordered treatment plan; (2) there was not a substantial probability that the minors might be returned to Father within six months; and (3) reasonable services were provided to Father. (See § 366.21(e)(3).) Based upon these supported findings, the court, in its discretion, could set a .26 hearing and terminate Father’s family reunification services. (M.V., supra, 167 Cal.App.4th at pp. 176, 179.) Therefore, the court did not abuse its discretion by terminating Father’s services and setting the .26 hearing.
III. DISPOSITION
The petition for extraordinary writ and the request for stay are denied.






___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
GREENWOOD, P.J.






__________________________
ELIA, J.