Filed 5/21/13 S.M. v. Superior Court CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR

S. M.,
         Petitioner,
v.
THE SUPERIOR COURT OF SAN                                            A138008
FRANCISCO COUNTY,
                                                                     (San Francisco County
         Respondent;                                                 Super. Ct. No. JD11-3183A)
SAN FRANCISO HUMAN SERVICES
AGENCY,
         Real Party in Interest.


         S. M., the father of I. M., age 4, and M. P. II, age 3, (collectively, the children)
petitions this court to set aside the juvenile court‟s order setting a permanent plan hearing
pursuant to Welfare and Institutions Code1 section 366.26. He contends that the court
erred in terminating reunification services. We deny the petition.
                                      I. FACTUAL BACKGROUND
         On June 16, 2011, the children were referred to the San Francisco Human Services
Agency (the Agency) after a domestic violence incident at parents‟ home. During the
incident, parents engaged in a verbal and physical altercation which was witnessed by the
children and during which mother punched M.P. II three or four times with a closed fist.
Father called the police, who arrested mother.


         1
             All further statutory references are to the Welfare and Institutions Code.


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       On June 16, 2011, a section 300 petition was filed alleging that the children were
at risk of serious physical harm as a result of the domestic violence incident and as a
result of the failure or inability of parents to protect them given parents‟ history of recent
and severe domestic violence. The petition further alleged that mother had a substance
abuse history which included alcohol, methamphetamines, and crack cocaine, and a
criminal history which included drug sales and possession and an anger management
problem. The petition also alleged that father had an anger management problem and a
criminal history including drug sales and possession. On June 20, 2011, the children
were detained and placed with father. The court also issued a temporary restraining order
(TRO) against mother prohibiting her from contacting father or the children except as
required for court-ordered visitation.
       On July 22, 2011, the court entered another TRO against mother prohibiting her
from contact with the children and father because the prior TRO had been withdrawn
based on mother‟s representation that a criminal order was in place. The criminal order,
however, had not been produced to counsel. On August 4, 2011, the court entered a one-
year restraining order against mother. The order allowed mother to have supervised
visitation with the children. The court set the matter for a settlement conference to be
held on August 31, 2011.
       The Agency‟s report, filed on August 4, 2011, noted that parents intended to
separate and were living apart. Father continued to live with the children. Mother was
currently on probation for drug possession; her term of probation had been extended to
four years following the domestic violence incident. Mother was required to participate
in a treatment program to address substance abuse and domestic violence issues as a
condition of probation.
       The Agency reported that father was caring for the children and had agreed to
participate in parenting and counseling services. He also continued to be employed. The
Agency noted that father had a criminal record and was on probation for three years as a
result of a conviction for a drug offense. The Agency recommended that father be given
family maintenance services and that supportive services be offered to mother.


                                              2
           On August 24, 2011, prior to the scheduled settlement conference, parents were
arrested in the presence of their children at mother‟s apartment. The arrests were made
pursuant to a warrant. The charges against parents included false imprisonment, unlawful
entry, burglary, and kidnapping which allegedly occurred during a home invasion. 2 As a
result of the arrests, the Agency filed an amended section 300.
       On August 29, 2011, the court ordered the children detained and placed them in
the care of a maternal aunt. Parents remained incarcerated.
       The dispositional and jurisdictional hearing was held on November 1, 2011. The
court found the allegations of the first amended section 300 petition concerning parents‟
failure to protect the children and their August 2011 arrests to be true. The court further
found the allegation that parents disregarded the restraining order entered on August 4,
2011, limiting mother‟s contact with the children to supervised visits, to be true in that
father took the children to mother‟s apartment. The court continued the children‟s
placement with the maternal aunt and ordered reunification services for parents. The
court noted additional facts for removal of the children including domestic violence and
anger management issues, substance abuse, that parents were on probation, and parents‟
disregard of the restraining order.
       On November 30, 2011, the court modified the restraining order to exclude father
from its ambit in order to allow parents to engage in supervised visitation with the
children.
       The six-month review hearing was held on April 19, 2012. The Agency reported
that the children were now living with their paternal great-aunt. Father was having one
unsupervised weekly visit with the children at his home or at a nearby playground as well
as a weekly visit at the paternal aunt‟s home. He had tested negative for drugs five times
but had missed tests in February and March due to two deaths in his family in February.
Father was also participating in both parenting and anger management classes. Mother


       2
        The parties stipulated during the 12-month review hearing that the charges were
dismissed.


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was having difficulty balancing her court-ordered reunification services with her
probation requirements. She was participating in domestic violence and parenting
classes, but had not found a residential program.
       The Agency reported that it anticipated father would be ready for return of the
children within six months and therefore recommended a continuation of reunification
services.
       On August 10, 2012, counsel for the children filed an application for an ex parte
order to suspend unsupervised visits by father because of a report that the children
witnessed father involved in a shooting less than a block from their placement, and that
mother had visited the children unsupervised in violation of the court‟s order.3 The court
granted the order requiring parents to have supervised visitation. On April 19, 2012, the
court ordered that reunification services be continued for six months, and set the 12-
month review hearing for October 18, 2012.
           In October 2012, the Agency reported that mother was again incarcerated. Father
stopped attending his parenting and anger management classes in late June 2012. Father
had also stopped attending his domestic violence classes in July 2012. The Agency
opined that the two deaths in father‟s family had affected his ability to successfully
participate in his reunification services. Father indicated that he planned to return to his
domestic violence classes in September 2012. The Agency recommended that
reunification services be terminated because neither parent was close to reunification. It
noted that M. P. II was under three at the time of removal, and consequently parents were
entitled to only 12 months of reunification services. The Agency recommended adoption
as the permanent plan, stating that two different family households were interested in
adopting the children.
       On November 19, 2012, the court continued the matter for a contested 12-month
review hearing. The Agency filed an addendum report before the hearing. It stated that

       3
          The Agency later learned that father had a gun during the incident, but had not
used it; instead he was trying to diffuse a situation in which others were shooting at one
another. The children saw father with a gun from a distance.


                                              4
father had missed several visits with the children. Father, however, began unsupervised
visits with the children in December and these visits went well. The Agency
subsequently learned in January 2013 that the police found drugs on father prior to the
visit with mother at the county jail on December 8, 2012. It opined that father‟s visits to
mother at the jail were in contravention of a current stay-away order.
       In the addendum report, the Agency reiterated its recommendation that
reunification services be terminated for parents. It was concerned that father had not
been able to stay away from mother even when she was in jail despite the restraining
order. The Agency further reported that it had recently learned that father was convicted
in October 2012 of misdemeanor burglary and that he was on probation. Father had not
informed the Agency of the conviction or his probation status.
       The 12-month review hearing was held on February 21 and 22, 2013. The
Agency‟s protective service worker testified that she was concerned that father would
permit mother to have unsupervised contact with the children. She also testified that she
had difficulty trusting parents about the truth of their statements because she was not told
that father was visiting mother in jail and father did not report being placed back on
probation in the fall.
       The court found that although father had substantially complied with his service
plan, it had concerns about father‟s ability to keep the children safe, particularly given
father‟s failure to make good decisions and to be forthcoming about certain events that
occurred during the dependency period. The court found that conditions still existed that
created a substantial risk of detriment if the children were returned to father. The court
terminated reunification services and set the matter for a section 366.26 hearing.
                                     II. DISCUSSION
       Father challenges the juvenile court‟s order terminating reunification services and
finding that it would be detrimental to return custody of the children to him. We
conclude that the record fully supports the court‟s order.
       The substantial evidence test is the appropriate standard of review. (In re Henry
V. (2004) 119 Cal.App.4th 522, 529.) “ „In juvenile cases, as in other areas of the law,


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the power of an appellate court asked to assess the sufficiency of the evidence begins and
ends with a determination as to whether or not there is any substantial evidence, whether
or not contradicted, which will support the conclusion of the trier of fact. All conflicts
must be resolved in favor of the respondent and all legitimate inferences indulged in to
uphold the verdict, if possible.‟ ” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) We
thus apply the substantial evidence test to determine whether the record shows clear and
convincing evidence of “a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor . . . and there are no reasonable means by
which the minor‟s physical health can be protected without removing the minor from the
[parent‟s] physical custody.” (§ 361, subd. (c)(1); In re Henry V., supra, 119 Cal.App.4th
at p. 529.)
       Here, although father made progress in meeting the requirements of his
reunification plan including visitation, parenting and domestic violence classes, his
progress was inconsistent. In addition, he continued to have issues which reflected
negatively on his ability to keep the children safe. He was arrested in August 2012 for
misdemeanor burglary and thereafter convicted and placed on probation. He, however,
neglected to inform the Agency of his conviction and probationary status. Moreover,
also in August 2012, the children witnessed father with a gun. While father explained
that he was trying to diffuse a situation in which others were shooting at one another, the
fact that the children saw father in this situation, albeit at a distance as it occurred a block
from where they were situated, demonstrated father‟s inability to make good decisions
and safely parent the children. The record further revealed that in December 2012, father
was at the county jail visiting mother when drugs were found in the visiting area.4
Although the police did not arrest him, he was not allowed to visit anymore at the jail.

       4
         There was testimony during the contested 12-month review hearing concerning
the existence of a criminal stay-away order, and the one-year restraining order issued in
August 2011 precluding mother from contacting father. The Agency‟s position was that
father had visited mother at the jail in contravention of the criminal stay-away order. The
record does contain a reference to the criminal stay-away order prohibiting mother from
contact with father and MP II in a police report dated August 26, 2011. The order, in

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       The need to address the issue of the children‟s safety was at the core of father‟s
reunification plan, for it was parents‟ domestic violence which brought the children
before the dependency court. The record demonstrates that at the time of the 12-month
review hearing, which was held on February 21 and 22, 2012, the children had been
dependents of the court for 20 months, well past the 18 months allowed for reunification
under our statutory scheme. (§ 361.5, subd. (a)(3).) The Agency had provided
reasonable reunification services; but father failed to avail himself of all of the
opportunities he was afforded for reunification. His lapses in judgment, several occurring
in the months before the 12-month review hearing, demonstrated that he could not be
counted on to provide a safe home for the children. If a parent “waits until the impetus of
an impending court hearing to attempt [to correct his or her behavior], the legislative
purpose of providing safe and stable environments for children is not served by forcing
the juvenile court to go „on hold‟ while the parent makes another stab at compliance.”
(In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) Substantial evidence
supports the juvenile court‟s decision to terminate reunification services and to set a
section 366.26 hearing.




effect from June 21, 2011 to June 21, 2014, however, is not in the record, and the
restraining order issued by the juvenile court in August 2011 was modified in November
2011 to permit parents to visit the children together. Hence, it is not clear from the
record whether father was in violation of any stay-away orders by visiting mother in jail.


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                                    III. DISPOSITION

       The petition for an extraordinary writ is denied on the merits. (§ 366.26, sub. (l).)
Our decision is final in this court immediately in the interests of justice.




                                                   _________________________
                                                   Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Humes, J.




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