Filed 4/27/18 M.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


M.R.,

Petitioner,

v.

THE SUPERIOR COURT OF MONTEREY COUNTY,

Petitioner,

THE PEOPLE,

Real Party in Interest.
H045560
(Monterey County
Super. Ct. No. 17JD000080)


S.J. (the minor) was placed in protective custody on May 10, 2017, when she was approximately 11 months old. The Monterey County Department of Social and Employment Services, real party in interest (Department), filed a juvenile dependency petition alleging the failure of the mother, M.R. (Mother, or Petitioner) and the father, J.J. (Father) to protect and provide support for their child under Welfare and Institutions Code section 300, subdivision (b). The Department alleged that Mother, who was homeless, had criminal, mental health, and substance abuse histories that significantly impaired her ability to care for the minor, and that the minor had been exposed to instances of domestic violence involving Mother and Father. The court sustained the allegations of the petition in July 2017 and granted the parents family reunification services. In February 2018, after a six-month review hearing, the court terminated Mother’s and Father’s family reunification services and scheduled a selection and implementation hearing pursuant to section 366.26 (.26 hearing) for June 12, 2018.
Petitioner M.R. filed a petition for extraordinary writ to compel respondent superior court to vacate its order terminating her family reunification services and a request for stay of the hearing. She contends that “the record clearly indicates that [she] was participating [in reunification services] and [was] progressing.” 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. Petition and Detention (May 2017)
On May 12, 2017, the Department filed a juvenile dependency petition alleging that the parents had failed to protect the minor, who was detained on May 10. (§ 300, subd. (b).) There were instances of domestic violence between Mother and Father in the minor’s presence. Additionally, the parents had knowingly violated a protective order and had refused to follow a safety plan created by the Department under voluntary family maintenance.
The Department alleged, inter alia, that Mother, who was homeless, had criminal, mental health, and substance abuse histories that significantly impaired her ability to care for the minor. She had been “diagnosed with major depression, anxiety, and post-traumatic stress disorder, and [she had] failed to address her mental health issues.” Mother had six children of the ages of 15 (A.J.), 11 (Y.C.), eight (E.R.), six (T.R-M..), four (D.M.), and approximately 11 months (the minor, S.J.). Four of the children (A.J., E.R., T.R.-M., and D.M.) were in Texas in foster care or living with adoptive parents. A fifth child (Y.C.) had recently moved to Texas to live with her father. The Department recited several incidents involving parents as well as additional reports causing concern for the minor’s welfare and safety that led to the filing of the Petition.
On January 31, Mother had an argument with Father that resulted in her approaching him with a knife; Father locked himself in a room with the minor, and Mother repeatedly stabbed the knife through the door. She was arrested. Mother later advised the Department that she had not used the knife to stab the door, but had been trying to pry the door open to take the minor from Father. Mother admitted she had been drinking that night.
On February 16, the Department received a referral involving alleged emotional abuse of the minor. It was reported that Mother and Father had had another argument, and Mother had punched Father several times in the face while he was holding the minor. Father called the police, and Mother was arrested. Father later reported to the Department that, while he was holding the minor, Mother had punched him in the right side of the face and twice placed him in a chokehold. Sometime after this second incident, Father obtained a protective order prohibiting Mother from contacting him.
It was reported on March 9, that Mother was living in a homeless shelter with Y.C. and the minor.
On March 19, the Department received a referral after Mother lost consciousness at a fast food restaurant and was taken to the hospital. Her friend, who was reportedly intoxicated, was unable to take care of Y.C. and the minor, and they were placed into protective custody. On or about March 20, the Department returned the minor to Father’s care and opened a voluntary family maintenance case.
On April 11, it was reported that Mother had custody of the minor. It was also indicated that Mother had expressed thoughts of harming the minor after her birth. A social worker met with Father, who stated he had been supervising Mother’s visits with the minor and had allowed her to take the minor to church. The social worker reminded Father about the existing protective order and, in addition, about the safety plan under which Mother was not to have any unsupervised contacts with the minor. Father expressed that he understood the safety plan.
The Department received a referral on May 3 involving alleged general neglect of the minor by Mother and Father. The minor had been staying with Mother “for ‘two or three nights’ ” in a domestic violence shelter. The reporting party expressed concerns because Mother had “exhibit[ed] ‘ongoing suicidal ideation,’ ” and Mother had reported that she had attempted to smother the minor with a pillow, but had stopped herself during the act. A social worker met with Mother at the shelter, and she admitted the minor had been with her the previous two nights.
On May 5, a social worker met with Father about Mother’s unsupervised contact with the minor. Father indicated that he had been uncertain about visitation arrangements. He also said he had met with an attorney in the public defender’s office to discuss withdrawing the protective order because he “want[ed] to work things out with [M]other.” The social worker again reminded Father about the existing safety plan.
On or about May 10, Mother reportedly fell, suffered a concussion, and was hospitalized. Father took the minor to the hospital to visit Mother. A social worker again reminded Father of the existing protective order and the safety plan that were being violated. At that time, the minor was taken into protective custody.
On May 15, the court held a detention hearing. It ordered the minor detained pursuant to section 319, finding, inter alia, there to be a substantial danger to the physical health of the minor or that she was suffering severe emotional damage, and that there were no reasonable means of obtaining her protection without her removal from her parents’ physical custody.
B. Jurisdictional/Dispositional Orders (July 2017)
1. Jurisdiction/Disposition Report
The Department filed a jurisdiction/disposition report on June 22. It noted that the minor had been placed in a concurrent licensed foster family home. The foster family had indicated a willingness to provide permanency through adoption or legal guardianship if reunification proved unsuccessful. It appeared the minor was doing very well in the foster home and the foster family had become very attached to her.
The Department reported that Mother had stated it was possible that two different persons were the minor’s father, namely, Mother’s current husband, I.C., or Father (J.J.). It therefore requested that Father submit to a paternity test.
During an interview with the Department social worker, Sylvia Chavarria, Mother advised that she had grown up in Texas and had a difficult childhood. After being placed in foster care, she ran away frequently. Mother stated she met Father when she was 14; they had a baby together, A.J., when she was 16. At age 18, Mother placed A.J. with Father’s grandmother and visited the child when she could. In 2011, while still in Texas, child welfare removed Mother’s children, Y.C. and E.R., from her care. Mother was offered reunification services but was unable to reunify with the children.
Mother reported that she had met up again with Father in 2015 after he had returned from military service. She reported that the two of them were physically abusive with each other. She said that she had been in abusive “relationships in the past and she was tired of being abused and so she began to fight back.”
Social worker Chavarria reported that “[i]t [was] difficult to get a straight answer from the parents regarding their relationship.” The Department had received conflicting information from the two of them over whether they had been in contact with each other, and whether they were attempting to reconcile. Social worker Chavarria commented: “They both still want to be together and this pattern is part of the domestic violence cycle.”
Mother reported that she had been attending outpatient services three times per week and had a mentor mom. She had a clean hair follicle test on June 14. She had also completed a Family Mental Health Assessment (FMHA) and had followed through with a behavioral psychiatrist. The Department noted that Mother had shown a willingness to become more informed to address her domestic violence patterns. She had weekly supervised visitation with the minor, was “very attentive to her” and had not missed any appointments.
Father grew up in a home with domestic violence, and he was ultimately raised by his paternal grandmother. Social worker Chavarria stated that Father had not told her the truth when he had said that “he had a great relationship with his mother and spoke with her almost every day.” He had missed two appointments with a psychologist to complete his FMHA and had also missed two appointments with social worker Chavarria. He explained that the missed appointments were due to his work schedule; after the social worker asked Father to send her a copy of that work schedule and he had agreed to do so, he did not send it to her.
Father advised the Department that he was a very poor sleeper, had “had some horrific experiences while abroad and here in the [S]tates,” and had begun therapy with the Veterans Affairs Administration (VA). He was to receive psychotropic medication, but he advised social worker Chavarria that medication “ha[d] not had ‘much of an effect’ on him in the past.”
Father had weekly supervised visitation with the minor. He was “very nurturing and attentive to his daughter.”
Social worker Chavarria summarized that “[i]t ha[d] taken some time for [Father] to become completely honest with the Department.” She explained that he had not been forthcoming about his role in the abusive relationship he had with Mother. The social worker also stated there were reports of Father’s controlling behavior involving Mother. There was also an incident in which Father reported that Mother had fallen at a church retreat and suffered a concussion; Mother reported she had fallen down the stairs at Father’s apartment, saying “ ‘[she] must have slipped.’ ”
The Department recommended that family reunification services be offered to both Mother and Father.
2. FMHA Report
a. Mother
An FMHA report by Michael Beck, Psy. D., was filed on June 22. Dr. Beck interviewed Mother in three sessions in May and June. Mother grew up in Texas receiving conflicting stories about her father’s identity. She was placed in foster care at age 10. Mother reported that when she was 12, she was raped by the friend of an older sister, and when she was 13, she was sexually abused by her mother’s partner. Her mother did not support her after she reported the latter incident, and Mother expressed “bitter sadness” that her mother had not supported her. When she was 13, Mother’s older sister, whom Mother called “ ‘[her] best friend,’ ” was killed in a car accident.
Mother reported that she had frequently run away while in foster care. She stated she met Father when she was 13 and became pregnant with her first child by him when she was 16. She had four more children while living in Texas, and “[s]he acknowledged those years were difficult, that she experienced a great deal of depressive and posttraumatic symptoms that led to suicidal ideation and suicide attempts.”
Mother acknowledged to Dr. Beck a history of substance abuse, which she said “became ‘serious’ ” by 2013 while she was still in Texas. She first identified the primary substance she had abused as being methamphetamine and later said it had been MDMA (ecstasy); she said she had used MDMA extensively. She noted that she had been a social drinker, but had used alcohol more extensively when she had used methamphetamine (which she later corrected as being MDMA). Mother reported that her last use of methamphetamine (or MDMA) was in January; her last use of marijuana was in February, and her last use of alcohol was in March.
Mother reported that she had sustained a concussion from a fall in May 2017. Dr. Beck confirmed from a collateral interview with Mother’s neurosurgeon, Dr. Choy, that she had sustained a concussion resulting in symptoms of headaches, nausea, and difficulty with concentration. The symptoms were likely to persist for weeks or months, but Dr. Choy advised that Mother should make a full recovery. Dr. Choy advised Dr. Beck further that “[Mother’s] description of a fall down stairs [did] not appear whollyconsistent with the injury.”
Mother was seeing a Monterey County psychiatrist to treat her depression. She stated that she had “ ‘been on so many antidepressants’ over the years.”
Dr. Beck concluded that Mother suffered from Posttraumatic Stress Disorder (PTSD), major depressive disorder, and polysubstance abuse.
b. Father
Dr. Beck interviewed Father on two occasions, on May 22 and June 5. He failed to appear for two interviews, and, accordingly, Dr. Beck’s assessment was incomplete.
Father reported that his father had been in a motorcycle gang, had been an alcohol and drug abuser, and had been physically abusive. Father’s mother was hospitalized several times because of the physical abuse, and his mother left the home when he was eight. Father explained his relationship with his father: “ ‘ I was his emotional and physical punching bag for a while.’ ” Father grew up for the most part in the home of his paternal grandmother.
Father met Mother in middle school. She became pregnant with their first child, A.J., when Father was a sophomore, after he had moved back into his mother’s home. After A.J. was born, Mother moved into the home of Father’s paternal grandmother.
At age 20, Father entered the military; he served for 11 years in the military police. He was deployed in, among other locations, Iraq and Afghanistan. Father reported that the VA had in the past diagnosed him as having PTSD. Dr. Beck reported that Father “was curiously noncommittal about any current diagnoses” and did not convince Dr. Beck by stating, “ ‘I’ve worked through all that.’ ” Father reported that “he was made ‘numb,’ first by domestic violence and [his] father’s psychological and physical abuse, then by losing friends in the military, to suicide, snipers, and combat.”
Father had five children (including the minor) by three different women. He did not have custody of any of them.
Dr. Beck stated that he “was not convinced by [Father’s] attempt to portray himself as newly well-adjusted and unburdened by his traumatic past.” Dr. Beck stated that he could not provide a definitive diagnosis because of Father’s “apparent minimization of his own mood and posttraumatic symptoms (and two no-shows).” He opined that Father, if he were “to present himself in a more transparent manner, . . . almost certainly would meet medical necessity that would make him eligible for individual therapeutic work.”
3. Addendum to Report
On July 6, the Department filed an addendum report. Social worker Chavarria noted that Mother had previously advised that she had begun outpatient services, and Chavarria had believed her. The social worker later learned that Mother had rescheduled her first appointment for outpatient services and then missed the rescheduled appointment. Social worker Chavarria observed that Mother had been involved in prior dependency cases in Texas with five other children and [t]he fact that she ha[d] not reunified with her five other children “would [have] be[en] cause to prevent the Department from offering [her] reunification services” in the current dependency proceeding. Based upon Mother’s having not enrolled in outpatient services, having missed two assessments with Door To Hope, and having been dishonest with the Department, it recommended that Mother be denied reunification services. It cited section 361.5, subdivision (b)(10), (11) in support of this recommendation.
4. Jurisdictional/Dispositional Hearing
Mother had originally requested a contested hearing, and she had submitted a trial brief opposing the Department’s recommendation that the court deny reunification services. The brief, with attachments, described Mother’s active participation in outpatient services, with her enrollment commencing July 11.
A jurisdictional/dispositional hearing was held on July 31. The Department withdrew its recommendation that Mother be denied services. Accordingly, the case proceeded as an uncontested matter. The court found the allegations true, sustained the petition, and ordered the minor a dependent with out-of-home placement. It adopted the proposed findings of the Department in its report, approved the case plan, and ordered that Mother and Father receive reunification services.
C. Six-Month Review Report, Hearing and Order (February 2018)
1. Department’s Report
On January 4, 2018, the Department filed a report in anticipation of the six-month review hearing. After reciting the original circumstances that led to the filing of the petition, the Department reviewed relevant events after the petition’s filing.
The Department advised it had provided the parents with support that included arranging visitation, providing referrals for services, meeting at least monthly, monitoring and discussing the parents’ case plan compliance, and reviewing the case plan with the parents. The minor was placed in a concurrent home. The caregivers had expressed a willingness to provide permanency through adoption if the minor could not reunify with her parents.
A paternity test established Father as the minor’s biological father. The protective order involving the parents remained active. The Department observed that Mother and Father continued to “struggle with maintaining boundaries amongst each other and continue[d] to struggle with no contact.”
a. Mother
Mother remained homeless and was expecting another child in April 2018. She had been working with therapist Amy Dineen, LMFT, since June 27, 2017, and had had 15 sessions with her. Therapist Dineen reported that Mother’s attendance had been consistent, with the exception of the two months previous to the report. It was reported that Mother had stopped taking her prescribed medications due to her pregnancy.
Mother had been admitted into intensive outpatient substance abuse treatment through Door to Hope on July 11, 2017. She had attended regularly until September 5, when she left the program. Shortly afterwards, she was admitted to a residential program, Genesis House. It was reported that Mother had not fully participated in the program because she had frequently scheduled nonpriority appointments. There was also an incident that could have resulted in her discharge: Mother had allowed Father to be with her in her room, notwithstanding the outstanding protective order. The staff decided not to discharge Mother due to her pregnancy and a desire to keep her safe. But the problem with visitation by Father recurred, and Mother was discharged from Genesis House on October 16.
Mother had not provided the Department with Narcotics Anonymous meeting slips since her discharge from Genesis House. Her substance abuse testing with a latest date of October had all shown negative results. Mother had not been in contact with her mentor mom, and it was not clear whether she had stayed in contact with her sponsor.
After her discharge from Genesis House, Mother was admitted on October 19 to Community Human Services on an outpatient basis. Up until December, she had not participated fully in the program. Since December, Mother had attended treatment regularly, and staff noted that she appeared to be genuine. She had negative test results on October 20 and December 1.
It was reported that Mother had completed a Triple P parenting class and that it appeared she had gained skills from it. She had also completed the Parent Education Group (PEG) in December. In the course, she had been more reserved, guarded, and showed symptoms of isolation during November. She had admitted she was struggling with her unaddressed trauma.
Mother also completed the Domestic Violence Support Group in December. She had acknowledged the existence of the restraining order and that her relationship with Father was unhealthy. But she said it was difficult not to have contact with him because they had relied on each other for a long time.
Mother was provided weekly supervised visits with the minor. She had been on time for her visits and had been active and very attentive with her daughter. She had brought snacks and had prepared activities for the minor.
b. Father
The Department reported that Father had failed to keep appointments in June to complete his FMHA. He appeared without an appointment in November to attempt to complete the FMHA, and he advised that “he was doing everything he needed to do.” Dr. Beck stated Father had been “diagnosed with anxiety, depression and adjustment disorder [Not Otherwise Specified].” Father had advised that he no longer met the criteria for PTSD and had been on a waiting list for individual therapy.
Father had been attending PEG consistently; he had participated and had been engaged in the program, but was reserved about his background and the reasons for the dependency. He had also attended domestic violence classes and had three classes remaining. Father had also attended Triple P parenting class and needed two more classes to obtain a certificate.
Father had weekly supervised visits with the minor; he had left one visit early because he had been called to work. He was “very nurturing and attentive to his daughter during visits. He follow[ed] her cues and show[ed] her around the room when she want[ed] to see things.” The Department recommended that Father’s visitation continue and be decreased in accordance with the case plan.
c. Conclusions and Recommendations
Social worker Sanders summarized the Department’s thoughts regarding Mother and her progress with the case plan: “[Mother] is a very insightful woman who appears to have an understanding of what changes are necessary in order to ensure safety of herself and her daughter. [Mother] has struggled to make her insightful thoughts and ideas become a reality throughout this review period, as evidenced by her behavior. . . . [M]other has struggled with isolation, self[-]esteem and believing she is more than capable of changing her current circumstances to get a different result. It is evident that [Mother] loves her daughter and can be appropriate in her visits with her. The Department is worried about . . . [M]other’s ability to address her traumatic past as she states it is too hard to deal with. The Department is also worried about her ability to find . . . coping skills other than isolation and depression when she is feeling down and hopeless. . . . [M]other has also struggled to set boundaries with [Father] throughout this review period, as evidenced by her discharge from Genesis House for having [Father] unknowingly [to staff] on property twice, knowing the outcome would be her no longer [being] able to stay at the program. . . . [M]other has openly acknowledged that she has made mistakes in her case, struggled with finding another support group besides [Father], does not believe in herself as much as she should and that she tends to isolate when she is feeling overwhelmed by her unaddressed childhood trauma.” The Department concluded it did not have confidence that Mother was capable of making the behavior changes necessary within the next six months to address her childhood trauma, boundaries with Father, and her inability to believe in herself.
The Department summarized its concerns regarding Father as follows: “[Father] has continued to violate the active restraining order between . . . [M]other and himself on several occasions. . . . As a result of the parents’ decision to violate the restraining order, [Mother] was discharged from her program. [Father] has participated in some services, but has not genuinely been able to describe how his violent relationship with [Mother] has impacted his daughter until recently. . . . [Father] . . . acknowledges that he and [Mother] are not good for each other right now because ‘when they fight, it gets really bad, but when they are good they are really good.’ It appears that [Father] presents as well[-]organized, polite and well[-]adjusted, but according [to] Dr. Beck . . . , [Father] has taken on a care role with [Mother] to avoid focusing on his own significant and psychological suffering which has continued to go unaddressed throughout this review period. . . . [The] parents have struggled to each do their individual work on their personal traumas that have impacted their relationships and the safety of their child. It is very likely that their traumatic histories will continue to play out as harming behaviors to each other unless these issues are addressed.”
It was concluded by the Department that there was not a substantial probability that the minor could be returned and safely maintained to the physical custody of either of her parents within the time permitted by law. It therefore recommended termination of reunification services for both parents.
2. Six-Month Review Hearing
Prior to the six-month review hearing, trial briefs were submitted on behalf of Mother, Father, and the Department. Both parents contested the Department’s recommendation that services be terminated.
In her brief, Mother argued that she had “substantially complied” with the Department’s requirements. Specifically, Mother emphasized that she had (1) completed the PEG program, in which it had been reported that she had been insightful and had fully participated; (2) completed the Triple P parenting program, which had provided her with skills that she demonstrated in her visits with the minor; (3) participated in outpatient treatment with Door to Hope and later transitioned to residential treatment at Genesis House; (4) regularly and fully participated in the Community Human Services outpatient program; (5) been working with therapist Dineen since June; and (6) “been committed and motivated to positive behavioral change and ha[d] been processing her traumatic history since engaging in services in June 2017.”
Father’s counsel argued in his brief that he should continue to receive reunification services. He noted that Father had (1) consistently attended the PEG program; (2) attended domestic violence classes and had three more classes to complete the program; (3) attended Triple P parenting classes and had two more classes to complete the program; and (4) visited the minor regularly, and he had been very nurturing and attentive to his daughter’s needs.
A contested six-month review hearing occurred on February 13, 2018. The Department submitted the matter on its report. Mother and Father, who attended the hearing and were represented by counsel, also submitted the matter. Father presented additional documents to the court, consisting of a certificate of completion of the PEG program, proof of counseling, and character references from an employer and another individual. Mother presented a letter from the Franciscan Workers of Junipero Serra indicating that Mother was using the organization’s services as part of her case plan with her ultimate goal being to obtain permanent and stable housing. No testimony was presented.
After hearing argument from counsel, the court adopted the recommended findings of the Department. The court found, inter alia, that (1) reasonable services designed to assist the parents to overcome the problems that led to the minor’s removal were offered or provided to the parents; (2) the Department complied fully with the case plan; (3) Mother was actively involved in the development of the case plan; (4) Father was not actively involved in the development of the case plan; (5) Mother and Father, respectively, participated regularly in the court-ordered programs; (6) Mother had made progress toward alleviating or mitigating the causes that had necessitated the minor’s placement in foster care; (7) Father had made minimal progress toward alleviating or mitigating the causes that had necessitated the minor’s placement in foster care; (8) out-of-home placement of the minor was necessary; (9) the home in which the minor was placed was appropriate; (10) return of the minor to the parents would create a substantial risk of detriment to the minor’s safety, protection, or physical or emotional well-being; (11) the minor was under three years old at the time of her removal; (12) based upon clear and convincing evidence, the parents had failed to participate regularly and make substantive progress in a court-ordered treatment plan; and (13) based upon clear and convincing evidence, there was not a substantial probability that the minor may be returned to one or both of the parents within six months. The court terminated reunification services for both parents and scheduled a .26 hearing for June 12, 2018.
D. Petition for Extraordinary Writ
Mother 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 February 13, 2018, terminating services. Thereafter, Petitioner filed her petition for extraordinary writ with this court on March 21, 2018. (See rule 8.452.) Real party in interest Department filed its opposition on April 11, 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 a child who was less than one year old at the time of her 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)), 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 Mother’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 the minor may be returned in six months or that reasonable services had not been 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 “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.)
Mother’s counsel argues in the petition that the court found that Mother had “fully participated in the services offered.” It is readily apparent from the court’s comments at the hearing that it found Mother had regularly participated in the court ordered treatment plan. It made such a finding elsewhere in its order. Indeed, in its trial brief, the Department seemingly conceded Mother’s regular participation in services.
But the court made no parallel finding that Mother had made substantive progress in the court ordered treatment plan. Mother’s counsel makes no argument in the petition—and cites nothing in the record supporting such point—that the evidence showed Mother had made substantive progress. At best, Mother’s counsel makes the unsupported contention that “the record clearly indicates that [Mother] was participating and progressing.” We may disregard this unsupported assertion. (SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 552-553, fn. 1 [litigants on appeal required to provide record citations in support of proposition asserted; noncompliant briefs may be ordered stricken]; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [party’s failure to support argument with appropriate record citations may result in brief being stricken and its argument deemed forfeited].)
There was substantial evidence to support the juvenile court’s finding that Mother had not made substantive progress. Perhaps the most telling evidence negating Mother’s substantive progress was her (and Father’s) repeated violations of the protective order. The record is replete with evidence of contacts between Mother and Father in violation of the protective order, including contact in July resulting in Mother becoming pregnant with Father’s child and contacts in October. These repeated contacts occurred notwithstanding the two very significant instances of domestic violence in the direct presence of the minor that twice led to Mother’s arrest and ultimately to Father’s securing the protective order—one involving Mother assaulting Father with a knife and the other in which she repeatedly struck him in the face while he held the minor. Mother’s actions in October of permitting Father to visit her at Genesis House at least twice despite being warned by the court on September 26 that such contact would “cause a problem”—resulting in her discharge from the residential treatment program—demonstrated her willingness to jeopardize her treatment. And these continued contacts occurred despite Mother’s having acknowledged that her relationship with Father was unhealthy. She advised the Department that she knew her “relationship [with Father was] not healthy and while she underst[ood] they cannot have contact with each other due to the restraining order[,] she explain[ed] how it [was] difficult as they ha[d] relied on each other [for] a long time.”
In addition, although it was very commendable that Mother had seen therapist Dineen, on 15 occasions, there was a period of inconsistency in Mother’s visits for two months before the Department’s January 2018 report. This lack of consistency was somewhat mirrored by the fact that Mother, after her discharge from Genesis House and her admission into the Community Human Services outpatient program on October 19, did not fully participate in this program and missed several group sessions in October and November. And the record showed that Mother had not maintained contact with her mentor mom and it was unclear if she had been in regular contact with her sponsor.
Further, Mother’s mental and emotional outlook and her progress in addressing her significant problems were significant components for the court to consider. After several visits, Dr. Beck diagnosed Mother in June as suffering from PTSD, major depressive disorder, and polysubstance abuse. As of January 2018, according to social worker Sanders, Mother had made little progress with respect to the first two of these issues. The social worker reported: “[Mother] appears motivated but her intense negative self[-]talk, cognitive distortions, paranoia and anxiety seem to derail her at times from continuing the work in addressing her trauma and how that has affected her decision making.” Mother herself acknowledged to the Department that she “ha[d] not yet addressed her own trauma and she underst[ood] the trauma she [had] put all of her children through.”
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 Mother had “either failed to participate regularly in the court ordered treatment plan or that [she] 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 Minor May Return to Home
In accordance with section 366.21(e)(3), the juvenile court concluded that there was “not a substantial probability that the child may be returned to one or both of the parents within six months.” The cursory petition filed on behalf of Mother does not in any manner challenge this finding. (See fn. 10, ante.) 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.) “Literally, the statute commands the court to determine whether there is a strong likelihood of a possibility of return.” (Id. at p. 181.) The court may consider all evidence bearing on the issue. (Ibid.) 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 largely supportive of Mother’s position. The Department reported that Mother had “been active in her [weekly supervised] visits” with the minor. Mother had been punctual and “very attentive” to the minor in the visits. The Department stated that Mother “appear[ed] to have gained skills from [the Triple P] parenting class as evidenced by her visits [with the minor] and the feedback given from the Social Service Aid (SSA). [M]other appear[ed] to be able to provide structure, set limits and boundaries with her child as well as bring a bag of toys and snacks for her and her daughter to engage with together. . . . [¶] SSA note[d] consistently that the child appear[ed] comfortable with [M]other in the visits, [Mother] provide[d] structure and [was] able to transition the child back to the caregiver appropriately.” But it also appeared that Mother had not progressed to more frequent visitation or to unsupervised visitation with the minor during the period of dependency. And the Department opined in its six-month review report: “Although [Mother] has shown up for visitation consistently[,] it is not enough, as she has not been active in demonstrating her behavior change throughout this review period.”
The factor of significant progress in resolving problems that led to the minor’s removal (see § 366.21, subd. (g)(1)(B)) does not support Mother’s position. As discussed at length, ante, in connection with our consideration of the court’s finding concerning regular participation and substantive progress, there was substantial evidence to support the conclusion that Mother had not made substantive progress in the court ordered treatment plan. There was evidence concerning her ongoing violations of the protective order, her lack of consistency in visits with her therapist and in her outpatient treatment, and her lack of progress in addressing her significant past trauma and other mental and emotional issues.
The evidence regarding the third factor—whether Mother had “demonstrated the capacity and ability both to complete the objectives of . . . her 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 largely unsupportive of Mother’s position. On the positive side, Mother had received no positive tests during the dependency. She had enrolled in both outpatient and residential substance abuse programs, leaving Door to Hope in September to enter the Genesis House residential program. She was discharged from Genesis House because of her violations of the protective order before she had successfully completed the program, and she then entered the outpatient program at Community Human Services. But her ongoing violations of the protective order, failure to address her past trauma and other mental and emotional issues, and her inability to address and resolve the problems that led to the minor’s removal negate Mother’s having “demonstrated the capacity and ability . . . to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(C).) Further, she had not progressed beyond weekly supervised visits with the minor. In addition, Mother was also homeless, both at the time of the initiation of dependency proceedings and at the time of the six-month review hearing, which was, unfortunately, a fact militating against a capability of taking care of the minor.
It is apparent from the record that the juvenile court considered the evidence comprehensively—including positive matters such as Mother’s completion of the PEG and Triple P parenting programs, 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 minor might be returned to one or both of the parents 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 [Mother’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 made a finding that there was 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 Mother. (Ibid.)
Mother, 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 Mother 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; 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.”].) Further, to the extent Mother’s attorney presents any argument in her petition (see fn. 10, ante), she does not assert that the court’s finding that the Department provided or offered reasonable services to the parents was not supported by substantial evidence. Mother has therefore doubly forfeited any potential challenge to this finding. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776 [appellant that failed to assert argument at trial level or in opening brief “ ‘doubly waived’ ” it].)
There was substantial evidence to support the juvenile court’s finding that reasonable services were provided or offered to the parents.
4. Exercise of Discretion in Setting .26 Hearing
It is very apparent to this court that Petitioner loves the minor very much, and that, as acknowledged by the court below, she has made great efforts in a relatively short time to address the issues that led to the minor’s removal. Here, however, there was substantial evidence supporting the court’s conclusions that (1) the minor was less than three at the time of her removal; (2) by clear and convincing evidence, the parents failed to participate regularly and make substantive progress in a court-ordered treatment plan; (3) there was not a substantial probability that the minor might be returned to one or both of the parents within six months; and (4) reasonable services were provided or offered to the parents. (See § 366.21(e)(3).) Based upon these supported findings, the court, in its discretion, could set a .26 hearing and terminate family reunification for the parents. (M.V., supra, 167 Cal.App.4th at pp. 176, 179.) Therefore, the court did not abuse its discretion by terminating reunification services and setting the .26 hearing.
III. DISPOSITION
The petition for extraordinary writ and the request for stay are denied.






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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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GREENWOOD, P.J.






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GROVER, J.