Filed 10/31/13 In re Tatiana H. CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA



In re TATIANA H. et al., Persons Coming
Under the Juvenile Court Law.
                                                                   D064059
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                   (Super. Ct. No. SJ12740A-C)
         Plaintiff and Respondent,

         v.

DONALD H.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.



         Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
       Donald H. appeals following the 12-month review hearing in the dependency case of his

daughter, Tatiana H., and his sons, Tyler H. and Christian H. (together, the children). Donald

contends the juvenile court erred by failing to extend his reunification services to the 18-month

date and abused its discretion by denying him unsupervised visitation. We affirm.

                                        BACKGROUND

       Donald and the children's mother, Maria M. (together, the parents), have a history of

domestic violence and drug use that began before their oldest child, Tatiana, was born in

September 1999. Donald has numerous criminal convictions, most involving domestic

violence. Two of his convictions are strikes (Pen. Code, § 667 subds. (b)-(i)).

       Between August 2000 and June 2001, the parents received voluntary services to address

their domestic violence and drug use. In April 2001, Donald was arrested for an incident of

domestic violence. Tyler was born in August 2002, and Christian was born in August 2007.

       Between September 2002 and June 2011, there were additional reports of domestic

violence, some of which occurred in the children's presence. In June 2011, Donald was

arrested and jailed. In August, Maria agreed to another voluntary services plan. In January

2012, Donald was released from jail and moved into a sober living facility. He was subject to

a restraining order, and his visits with the children were supervised.

       In March 2012, the San Diego County Health and Human Services Agency (the

Agency) filed dependency petitions for 12-year-old Tatiana, nine-and-one-half-year-old Tyler

and four-and-one-half-year-old Christian. The petitions alleged that Maria used drugs and left

the children unattended. The children were detained in foster homes. In April, the court

dismissed the allegations that Maria left the children unattended and entered true findings on


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the petitions as so amended. The court found that it would be detrimental to the children to be

placed with Donald and ordered the children placed in foster care with reunification services

for the parents. Donald's case plan objectives included developing and using a domestic

violence relapse prevention plan; expressing anger appropriately; not behaving in a verbally

threatening manner; attending and demonstrating progress in domestic violence treatment;

attending a parenting program; and showing empathy for the children. Later, substance abuse

treatment, Narcotics Anonymous meetings and drug testing were added to Donald's case plan.

       At the 12-month review hearing in May 2013, the court continued Tatiana's and Tyler's

foster care placements and ordered Christian placed with Maria. The court terminated

Donald's services and continued Maria's. Donald's visits remained supervised, as they had

been throughout the case.1

                                            SERVICES

       At the 12-month review hearing, if the court does not order the child returned to the

parent, the court may continue services to the 18-month date "if it finds that there is a

substantial probability that the child will be returned to the [parent's] physical custody . . . and

safely maintained in the home within the extended period of time . . . ." (Welf. & Inst. Code,

§§ 366.21, subd. (g)(1), 361.5, subd. (a)(3);2 In re K.L. (2012) 210 Cal.App.4th 632, 641-642.)

This finding is proper only if the parent has "consistently and regularly contacted and visited

with the child" (§ 366.21, subd. (g)(1)(A)); "made significant progress in resolving problems


1      At the detention hearing, the court gave the Agency discretion to allow Donald
unsupervised visits. In December 2012, the Agency exercised that discretion. Within four
days, and before any unsupervised visits took place, he relapsed on drugs.

2      All further statutory references are to the Welfare and Institutions Code.
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that led to the child's removal" (Id., subd. (g)(1)(B)); 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" (Id., subd. (g)(1)(C)).

In the cases of Tatiana and Tyler, we apply the substantial evidence standard of review. (Kevin

R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.) In the case of Christian, who was

returned to Maria, we apply the abuse of discretion standard. (In re Gabriel L. (2009) 172

Cal.App.4th 644, 647, 651-652.)

       Here, the court noted that Donald had "his mind made up of what he thinks needs to be

done" and resisted and interrupted instead of "listening to anybody else." The court stated that

Donald did not understand the children's needs and had not put into action anything that he had

learned. The court concluded that Donald had not met the requirements of section 366.21,

subdivision (g)(1)(B) and (C).3

       Donald argues the sole reason for the children's removal was Maria's substance abuse.

He ignores the fact that at the time the petitions were filed, he was living apart from Maria and

the children and was subject to a restraining order necessitated by his violence. Furthermore,

at least one of his subsequent episodes of violence occurred around the time of a

methamphetamine relapse. In any event, Donald cannot now challenge the provisions of his

case plan.

       Before the petitions were filed and while Donald was incarcerated, he completed 18-

hour courses in parenting, anger management and substance abuse. By the time of the hearing,


3      The court did not expressly address the consistency and regularity of Donald's contact
and visitation (§ 366.21, subd. (g)(1)(A)). Donald "was an active participant in visitation" until
December 2012, but after that his visitation was less consistent.
                                               4
he had attended 30 sessions of a 52-session domestic violence program. Although he had

made virtually no progress, he believed he did not need to be in the program.

       Donald enrolled in the 52-session domestic violence program in February 2012; was

terminated from the group in March due to absences; reentered the group in July; missed some

sessions; and returned to the program. In March 2013, the group leader said that Donald was

"not getting better."

       In March 2013, during a supervised visit at a restaurant, Donald demonstrated both his

lack of progress and his inability to ensure the children's safety and well-being. He yelled and

swore and pushed Tatiana, causing her to stumble. He noticed cut marks on her wrist, and told

her that the "next time she wanted to kill herself to call him, and he would do it for her."

Donald asked Tatiana for Maria's telephone number, saying he wanted the number "so I can

meet her somewhere, so I can kill her."4 Restaurant personnel called the police, but Donald

left before the police arrived.

       Tatiana was very upset and said she did not wish to have further visits with Donald. He

took no responsibility for upsetting her and insisted that she should not be allowed to refuse

visits. The Agency suspended Donald's visits with Tatiana pending an investigation; those

visits remained suspended at the time of the hearing.

       As part of the investigation, the social worker met with Donald at the Agency's office.

During the meeting, Donald yelled, swore and made racial slurs, then left the office before the

interview was completed. In April 2013, the court issued another restraining order protecting

Maria from Donald. In May, at a second meeting with the social worker, Donald was

4      Although the Agency had asked Donald not to talk about the case or Maria during visits,
he persisted in raising these subjects with Tatiana.
                                                 5
aggressive and demanding and yelled at and interrupted the social worker. At a third meeting

one week before the hearing, Donald behaved in a similar fashion. He ignored the social

worker's request to lower his voice because there were children nearby who might be

frightened.

       Donald's performance in substance abuse treatment was also deficient. In July 2012, he

agreed to submit to a drug test, but failed to follow through because he knew the results would

be positive. In December, he relapsed and was asked to leave his sober living facility. In

February 2013, he entered the CRASH substance abuse treatment program. He quit within two

weeks, explaining that another resident infuriated him. Donald then began the drug court

program. In March, he began attending the McAlister outpatient treatment center and tested

positive for methamphetamine.5 Donald was discharged from McAlister due to

nonattendance, but reenrolled within a few weeks. By the time of the hearing, he was doing

well at McAlister, but his participation was deemed unsatisfactory because he produced no

proof of attendance at outside self-help meetings.

       Donald displayed no understanding of the effect his conduct had on others, including his

own children. Tatiana suffered from depression; Tyler and Christian had behavioral problems.

The court did not err by finding there was not a substantial probability of return by the 18-

month date and by terminating reunification services.

                                   UNSUPERVISED VISITS

       Donald did not object to the supervision requirement imposed at earlier hearings in the

juvenile court, nor did he seek appellate review of the requirement before the instant appeal.


5      This was at least the fourth relapse since the outset of the case.
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At the time of the 12-month hearing, the Agency retained the discretion to allow Donald

unsupervised visits, and Donald did not object to supervision then. He has thus forfeited the

right to object now.

                                        DISPOSITION

       The judgment is affirmed.



                                                                           MCCONNELL, P. J.

WE CONCUR:



BENKE, J.



HALLER, J.




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