Filed 3/29/18
                                 CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                        DIVISION FOUR


 T. J.,
              Petitioner,
 v.
 THE SUPERIOR COURT OF THE CITY                      A153034
 AND COUNTY OF SAN FRANCISCO,
                                                     (San Francisco City & County
              Respondent;                            Super. Ct. No. JD 16-3266 A & B)
 SAN FRANCISCO HUMAN SERVICES
 AGENCY,
              Real Party in Interest.


          In August 2016, T.J. (Mother), who is intellectually disabled, was raising three
boys, ages eight, four and two, single-handedly, as their father lived separately,
uninvolved in their upbringing. The family came to the attention of the San Francisco
Human Services Agency (Agency) because Mother had not been giving the eldest boy
medications he needed for severe asthma, eczema, and environmental allergies. A home
visit by the Agency’s social workers showed the children were living in unsanitary
conditions, and all three were detained, jurisdiction was assumed, and reunification
services were ordered for Mother.
          Services were terminated for Mother in November 2017, and the court set a
hearing under Welfare and Institutions Code1 section 366.26. Mother seeks writ relief,
claiming she was not provided reasonable reunification services and the judge abused his

          1
        Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.


                                                1
discretion in terminating services and setting the hearing. Because Mother was waitlisted
for a significant time on critical components of her case plan—individual therapy, in-
home counseling, and parenting education—and was provided no assistance with in-
home support services, anger management or housing, we conclude there was not
substantial evidence the Agency had provided or offered reasonable services to Mother
designed to address her special needs. We therefore grant the petition.
                                    I. BACKGROUND
       A. Detention: The Circumstances that Led to the Agency’s Involvement
       On August 4, 2016, the Agency received a referral from hospital staff for general
and medical neglect of Mother’s eight-year-old eldest son. Upon investigation, the
Agency determined the eldest boy had a complicated health regimen of eight separate
prescribed medications that had to be administered daily, some in pill form, some topical,
and some inhalers, in some cases several times a day, as well as additional over-the-
counter medicines as needed. Mother was not administering prescribed medications to
him and had failed to pick up his medications from the pharmacy.
       Mother also reported their home in public housing had bed bugs, cockroaches,
mold, and a hole in the ceiling. The eldest boy had a serious allergy to dust mites, and
hospital staff explained to Mother how to change the household environment to lessen his
exposure, but Mother was unable to implement the recommendations. A report came in
to the Agency the next day saying the family’s home had been condemned a year
previously. Mother was asked to leave her unit but refused. The reporting party said
Mother refused to allow the housing authority into her unit to make repairs. According to
this reporter, Mother was being followed by Family Mosaic Program,2 and she had not



       2
         Family Mosaic Program was a program operated by the Department of Public
Health which provided “Mental Health treatment, intensive case management and other
service interventions for children with serious emotional problems who are at risk of out-
of-home placement or who have already been removed and placed out of their homes.”


                                             2
allowed this service into the home for some time.
     Social workers from the Agency met with Mother on August 22, 2016 at her home.
The home was extremely dirty, cluttered with food and trash, and smelled of mold. The
two-foot by three-foot hole in the ceiling had mold and water damage. The social
workers concluded Mother’s living conditions were dangerous to the health and safety of
the children. They collected the children and removed them from Mother’s home that
day. On August 25, 2016, the three boys were formally detained by court order and
placed in foster care.
       B. Jurisdiction and Disposition
       Between detention and disposition on September 29, 2016, all three children were
moved from foster care to their maternal grandmother’s (MGM) home. By the
disposition hearing, the eldest boy’s health had stabilized in MGM’s care, and the middle
boy’s potty-training, which had been delayed, had normalized.
       The disposition report notes “[t]his is the case of an African American family
comprised of [a] single mother, [T.J.] (age 34), and her three children . . . [ages eight,
four and two]. The alleged father . . . is in custody awaiting trial . . . .” The report
discusses Mother’s mental health problems and the family’s prior child welfare history.
That history included a number of unsubstantiated referrals, though there was an incident
in 2012 which led to dependency proceedings in which the two older boys were removed
from their parents’ care after it was reported Mother choked one of the boys, requiring
hospitalization.
       Following her sons’ detention in 2012, Mother participated in family reunification
services, reunified in July of 2013, and received family maintenance services until June
of 2015, when the case was closed. In the course of this prior dependency, Dr. Amy Watt
diagnosed Mother with depressive disorder NOS, “mild mental retardation,” and
personality disorder NOS. Mother reportedly had an IQ below 70, with impaired

(<https://bayviewci.org/programs-with-partners/mental-health-and-substance-abuse-
services/153-2/> [as of Mar. 29, 2018].)


                                               3
adaptive functioning, impaired interpersonal relationships, and “serious anger issues.”
Dr. Watt said Mother had prior mental health issues dating back to her childhood and
claimed to have been hospitalized more than 16 times as a teenager due to anger
management problems.
       By late September 2016, Mother had vacated her public housing apartment to
allow repairs to be made. The disposition report indicated the work was supposed to be
finished by the end of September 2016. In the report, the social worker opined Mother
would need ongoing services from Golden Gate Regional Center (GGRC) and
specialized service providers until the boys turned 18. She recommended GGRC’s Apple
Family Works (AFW), which offered in-home parenting and counseling services.
Mother was expected to work with a provider of in-home support services to learn life
skills needed for independent living and caring for her sons. The Agency had no
concerns about a drug or alcohol problem for Mother. She had a minimal juvenile
delinquency history and no adult criminal history. The report noted domestic violence
was not an issue because Mother and the children’s father had separated in 2014.
Nevertheless, the social worker expressed skepticism from the outset that Mother would
succeed in reunifying with her sons.
       At the jurisdiction/disposition hearing on September 29, 2016, Mother submitted
to a section 300, subdivision (b) allegation that she “requires the Agency’s assistance in
providing adequate care and supervision of the children in that she has mental health and
developmental disabilities that impede her ability to care for the children.” That was the
only sustained allegation against Mother; the remaining allegations against her were
stricken. At the conclusion of the hearing, the court ordered reunification services for
Mother and out-of-home placement for the children in the care of MGM. The court also
ordered therapeutic visitation for Mother and the boys.
       C. Mother’s Orders at Disposition
       The specifics of Mother’s court-ordered case plan were as follows. She was
directed to (1) reactivate her GGRC case management services to attain deeper
knowledge and demonstrate understanding of her independent living needs;


                                             4
(2) participate in GGRC long term case management and follow up with the
recommended treatment plan; (3) participate in individual therapy and follow
recommended treatment, which could include a medication evaluation; (4) engage in
anger management services or address anger management as a part of the mental health
treatment plan; (5) participate in family therapy through the Infant Parent Program (IPP)
with the two younger boys and family therapy with the eldest boy, to get support with the
ongoing mental health needs of her children; (6) get access to AFW through GGRC,
complete the program and allow the child welfare worker and other in-home support
providers to assess how effectively she was applying the program’s parenting skills;
(7) work with the child welfare worker to enroll in an in-home supportive services
program, complete an assessment, and follow recommended assistance in activities of
daily living such as cleaning, laundry, shopping, cooking, washing dishes, bathing,
grooming, dressing, and getting transportation to appointments; and (8) secure housing
and keep the home clean and organized.
      D. The Six-Month Review
      The Agency filed a status review report on March 8, 2017, in connection with the
six-month review hearing held on March 28, 2017. For that review, the Agency
recommended an additional six months of reunification services for Mother, with the
children remaining in the care of MGM.
      Mother’s housing remained “unstable.” She had been informed her public housing
apartment would not be in move-in condition until May 2017, her primary housing was
being rebuilt. She was living with two different people in the meantime, but she would
not allow the Agency to visit her temporary home. She said she did not want to disturb
her roommates. The social worker asked Mother if she would be willing to move in with
MGM should she reunify with the boys, and Mother said she was only open to that
arrangement on a temporary basis.
      Mother was on target with therapeutic visitation with her sons. She began
participating in the IPP with her youngest son in November 2016. Beginning in January
2017, Mother received clinically supervised visits with the two older boys. Once IPP


                                            5
ended, the clinically supervised visits expanded to include the youngest boy. Mother was
prompt and engaged in these visitation services. The children were doing well in the
home of MGM. The eldest boy’s asthma had stabilized and overall he was in good
health. He was doing well at school and received individual therapy there. His school
social worker thought the structure and stabilization in MGM’s home had caused a big
improvement in his behavior. The youngest and middle boys attended daycare and
preschool, respectively, and there were no reported concerns.
       At the six-month status review hearing, the court followed the Agency’s
recommendation and ordered six more months of reunification services for Mother.3
       E. The 12-Month Review: The Court Terminates Reunification Services and Sets a
          Hearing Under Section 366.26.

       The court set a contested 12-month review hearing for November 17, 2017—15
months from detention—after Mother filed a hand-written declaration in September 2017
stating, “to who this may concern it is time for my kids to come back home[.]” In this
barely intelligible declaration, Mother said “I have been doing my case plan” but
“everyone have been disrespect[ing] me[.]” She also appeared to dispute what the
Agency “put down on the court papers” about her living conditions and to request a
“chance to speak in court.”
       A few weeks earlier in September, the Agency had filed a 12-month status report
reporting that Mother was not able to live in her public housing unit and that her
temporary housing remained largely inaccessible to its social workers. According to the
Agency, Mother only allowed the Agency to visit the temporary unit where she lived one

       3
         The Agency points out that Mother did not challenge earlier orders or findings by
direct appeal and therefore has waived any complaints about services predating the orders
at the six-month hearing on March 28, 2017. (Steve J. v. Superior Court (1995) 35
Cal.App.4th 798, 811–812.) But here, the delays and non-provision of services continued
well into the six- to 12-month period. Although we may be foreclosed from granting
relief for delays occurring before the six-month review, we do not believe we are
compelled to ignore that period entirely. When discussing the timing of the provision of
services during the period under review, we may consider delays that spilled over from a
prior period and compounded the overall problem with untimely delivery of services.


                                             6
time in the spring of 2017, and the social worker who saw it noted there were no
furnishings and no food in the refrigerator. It was a two-bedroom apartment, and Mother
had only a roll-out bed and a few articles of clothing in the closet.
       The children were doing well in MGM’s care and were up to date on their medical
and dental appointments. The eldest boy was succeeding academically, and had made
tremendous growth in the past school year. There was noticeable improvement in his
eczema and asthma. Importantly, he was by then able to administer his own asthma and
eczema medications. The two younger boys were also both doing well at their respective
schools. The middle boy had made major gains in speech therapy and was ready to start
kindergarten.
       The Agency concluded its 12-month status report with a recommendation that
services be terminated and that a section 366.26 hearing be set. The concurrent plan for
the children was adoption with MGM. As of the hearing, however, the eldest boy wanted
to return home to Mother.
       At the 12-month contest, the court took testimony from Mother and from the
Agency’s family reunification case worker, and admitted into evidence the Agency’s 12-
month status report. At the end of the hearing, the court sustained the Agency’s position,
finding by clear and convincing evidence that reasonable services had been offered or
provided to Mother. The court determined Mother’s progress toward alleviating the
conditions that led to the children’s placement was adequate, but nonetheless found she
was unlikely to be able to reunify with her children within the next three months. It thus
terminated services to Mother and set a section 366.26 hearing for March 13, 2018. We
ordered that hearing stayed on March 6, 2018.
                                     II.    DISCUSSION
       A. Mother’s Contentions
       Although Mother’s petition does not comply with rule 8.204(a)(1)(B) of the
California Rules of Court, her contentions may be distilled into several specific
complaints scattered throughout her presentation. First, she complains of delays in
providing her with individual therapy and other services. She also argues services were


                                              7
not tailored to her individual needs due to her developmental disability and history of
mental health issues. She complains she never completed a parenting course. She
contends some of the problems for which she was faulted, such as the hole in her kitchen
ceiling and the rundown, moldy condition of her apartment, were in fact the
responsibility of the housing authority, which failed to maintain her home in good repair.
Underlying Mother’s petition runs a thread that her problems raising her children were
due in large part to poverty (e.g., lack of furniture, little food in the house), disability, and
the inherent challenge in providing proper care for her medically fragile children. She
crystallizes her complaints under one overarching claim of legal error: she was denied
adequate reunification services.
       B. The Substantial Evidence Standard of Review Must Be Applied Bearing in
          Mind the Clear and Convincing Evidence Standard that Applied at Trial

       The juvenile court’s finding that reasonable services were provided is reviewed for
substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971 (Alvin R.).)
Substantial evidence is that which is reasonable, credible and of solid value. (Ibid.)
       Mother emphasizes, however, the reasonable services finding must be made by
clear and convincing evidence in the trial court. (§ 366.21, subd. (g)(1)(C)(ii) [“The
court shall not order that a hearing pursuant to Section 366.26 be held unless there is
clear and convincing evidence that reasonable services have been provided or offered to
the parent or legal guardian.”].) Clear and convincing evidence requires a high
probability, such that the evidence is so clear as to leave no substantial doubt. (In re
Isayah C. (2004) 118 Cal.App.4th 684, 695.) It must be “ ‘ “sufficiently strong to
command the unhesitating assent of every reasonable mind.” ’ ” (Alvin R., supra, 108
Cal.App.4th at p. 971.) This does not mean a different standard of review applies, but it
makes a difference in how the standard of review is applied.
       The Courts of Appeal do not speak with one voice in describing how the
substantial evidence standard is to be applied in dependency cases when the clear and
convincing standard of proof was required at trial. Some cases hold the clear and
convincing standard “ ‘ “disappears” ’ ” on appellate review. (E.g., In re Alexzander C.


                                               8
(2017) 18 Cal.App.5th 438, 451 [removal order]; In re J.S. (2014) 228 Cal.App.4th 1483,
1493 [dispositional findings]; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872,
880–881 [bypass findings].) Others suggest we conduct our substantial evidence review
“ ‘bearing in mind’ ” the heightened standard of proof. (E.g., In re Hailey T. (2012) 212
Cal.App.4th 139, 146 [removal order]; accord, Alvin R., supra, 108 Cal.App.4th at p. 971
[reasonable services finding]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654
[removal order].) It is a nuanced distinction but one that can make a difference in a close
case like this one.
       We believe the correct standard requires us to bear in mind that clear and
convincing evidence was required in the trial court. In a closely related context, our
Supreme Court has adopted the view that the clear and convincing evidence standard is
incorporated into the substantial evidence standard of review. (In re Angelia P. (1981) 28
Cal.3d 908, 924 [termination of parental rights under Civ. Code, former § 232].) As
pointed out in Angelia P., incorporating the standard of proof into the standard of review
also comports with the usual way we assess the sufficiency of the evidence in criminal
cases, where a heightened standard of proof is required. (Angelia P., at p. 924, citing
Jackson v. Virginia (1979) 443 U.S. 307, 318–319 [beyond a reasonable doubt standard
incorporated into review for sufficiency of evidence]; In re Matthew S. (1988) 201
Cal.App.3d 315, 321 [citing Jackson].)
       But even if not compelled to follow Angelia P., we choose to follow the “bearing
in mind” approach so our reviewing function is not eroded. If the clear and convincing
evidence standard “disappears” on appellate review, that means the distinction between
the preponderance standard and the clear and convincing standard imposed by statute is
utterly lost on appeal, an outcome we believe undermines the legislative intent as well as
the integrity of the review process. Decades ago, Santosky v. Kramer (1982) 455 U.S.
745 held the clear and convincing evidence standard was essential as a matter of due
process where termination of parental rights was concerned. (Id. at pp. 747–748.) In so
holding it emphasized that the clear and convincing evidence standard “conveys to the
factfinder the level of subjective certainty about his factual conclusions necessary to


                                             9
satisfy due process.” (Id. at p. 769.) It thereby impresses upon the factfinder the gravity
of the decision he or she is called upon to make. (Id. at pp. 764–765.) If that standard is
ignored on appeal, the heightened standard of proof applied in the juvenile court loses
much of its force, or at least the ability of the appellate court to correct error is
unacceptably weakened. That approach, in our view, is inimical to the legislative scheme
in dependency proceedings.
       Hence, “[w]e review the record in the light most favorable to the trial court’s order
to determine whether there is substantial evidence from which a reasonable trier of fact
could make the necessary findings based on the clear and convincing evidence
standard.” (In re Isayah C., supra, 118 Cal.App.4th at p. 694; see also In re William B.
(2008) 163 Cal.App.4th 1220, 1229; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426;
In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326 (Victoria M.) [under Civ. Code,
former § 232].)
       C. Because of Significant Delays in Providing Reunification Services to Mother,
          We Find Insufficient Evidence Supporting the Finding that Reasonable
          Reunification Services Were Offered

           1. The Agency’s Responsibilities and Efforts
       In re K.C. (2012) 212 Cal.App.4th 323 “sets out the basic standard an agency must
meet when providing reunification services to any parent. It must make a good faith
effort to provide reasonable services responsive to the unique needs of each family, and
the plan must be ‘ “ ‘specifically tailored to fit the circumstances of each family’ ” ’ and
‘ “ ‘designed to eliminate those conditions which led to the juvenile court’s jurisdictional
finding.’ ” ’ ” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420.) Under
this standard, the Agency was required to develop and implement a family reunification
plan “ ‘ “appropriate for each family . . . based on the unique facts relating to that
family.” ’ ” (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) The “ ‘adequacy of
reunification plans and the reasonableness of the [Agency’s] efforts are judged according
to the circumstances of each case.’ [Citation.] To support a finding that reasonable
services were offered or provided, ‘the record should show that the supervising agency


                                               10
identified the problems leading to the loss of custody, offered services designed to
remedy those problems, maintained reasonable contact with the parents during the course
of the service plan, and made reasonable efforts to assist the parents in areas where
compliance proved difficult.’ ” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th
1415, 1426, italics omitted (Tracy J.).)
       The Agency was not authorized to withhold services simply because Mother had
been afforded services in a prior dependency. (Rosa S. v. Superior Court (2002) 100
Cal.App.4th 1181, 1188–1189.) The prior dependency was successful in that Mother
reunified with the children, although she received family maintenance services thereafter.
Services may be bypassed in specified circumstances, including a prior dependency
which resulted in return of the children to the parent, but only where the removal in each
instance was due to physical or sexual abuse. (§361.5, subd. (b)(3).) The Agency did not
seek to bypass services for Mother on that or any other ground. “Where jurisdiction has
been terminated . . . the parent-child relationship is restored to its former status, free from
governmental interference absent extraordinary circumstances, and a new dependency
proceeding must include all the statutory provisions designed to protect that relationship.”
(Rosa S., at p. 1189.) A social worker’s doubt about the outcome of services does not
excuse a failure to deliver such services, nor does it justify complacency in providing
services. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 429 [“ ‘[A]
forecast of failure could not provide an excuse for refusing to try.’ ”].) There is no such
thing as “reunification lite.”
       Mother contends the Agency failed to provide her with the particular services she
required, given her mental deficits and cognitive delays. (See, e.g., Victoria M., supra,
207 Cal.App.3d at pp. 1326–1330, 1333 [termination of parental rights for intellectually
disabled mother reversed where she had not been provided with services specific to her
disabilities].) Indeed, when a parent has a mental illness or disability, that condition must
be the “starting point” for a family reunification plan, “not its conclusion.” (In re Jamie
M. (1982) 134 Cal.App.3d 530, 540 [disposition order removing children from
schizophrenic mother reversed based on lack of substantial evidence of detriment to the


                                              11
children if returned to the mother]; see also Victoria M., at p. 1320 [“before the parental
rights of a developmentally disabled parent can be properly terminated the record must
establish by clear and convincing evidence that services specially designed to meet the
needs of the developmentally disabled have been explored”].)
       Here, the Agency insists it did recognize Mother’s specific needs and identified
services tailored to those needs: GGRC, AFW for in-home counseling and parenting
support, in-home support services, individual therapy, potential anger management
services, housing, and family therapeutic visitation. GGRC provided services to those
with developmental disabilities like Mother’s. AFW was a program through GGRC for
parents with intellectual disabilities raising children that would provide in-home
counseling and parenting services, including sessions about life transitions, anxiety,
depression, grief, relationship issues, anger, and stress, as well as in-house parenting
support. Brilliant Corners provided housing assistance for developmentally disabled
individuals, as well as in-home support services which could offer Mother help in
acquiring the practical skills needed to live independently: cleaning, laundry, shopping,
cooking, washing dishes, bathing, grooming, dressing, feeding, and getting transportation
to and from appointments.4 Thus, to the extent Mother criticizes the nature and breadth
of services proposed and contained in her case plan, we cannot agree.
       Our concern about the Agency’s provision of services lies not in the failure to
identify programs and services tailored to Mother’s needs, but in the delays that occurred
throughout the dependency in actually getting Mother engaged in the identified services.
(See In re T.W.-1 (2017) 9 Cal.App.5th 339, 346–349 [delay in formulating reunification
plan]; Alvin R., supra, 108 Cal.App.4th at pp. 965–966, 971–973; Seiser & Kumli,



       4
         There is some conflict in the record about the nature of services provided by
Brilliant Corners. The status review reports indicate it provided housing services,
whereas the social worker testified it provided in-home services to “help [M]other . . .
manage a schedule and to . . . cook and clean and whatever it is . . . that she needs within
the home to take care of her day-to-day needs.” We infer Brilliant Corners provided both
types of services.


                                             12
California Juvenile Courts Practice and Procedure (2017) § 2.152[4][b] “Practice Tip,”
p. 2-539 [suggesting delays in providing services may be grounds for a finding of no
reasonable services] (Seiser & Kumli).) Maintaining Mother on a waiting list was not
equivalent to “providing” or “offering” services.
       Time is always of the essence in dependency proceedings, especially when
children younger than three are involved. (See In re Kristin W., supra, 222 Cal.App.3d at
pp. 254–256 [parent whose home was unsanitary granted six additional months of
services where he was not offered “immediate and intensive support services”].) Parents
in the dependency system are subject to a tight timeframe in achieving sometimes
seemingly insurmountable goals for progress in parenting their children. Attempting to
accommodate the competing needs of the children for permanency and the parents for
help in overcoming their parenting deficiencies, the Legislature has set chronological
markers for how long is too long to allow parents to show progress. In this case, the
initial marker was set at only six months because Mother’s youngest son was just two
years old at removal.5 (§ 361.5, subds. (a)(1)(B) & (C).) Yet, at the six-month mark,
Mother had been provided with no actual services except therapeutic family visitation, a
referral to GGRC, an ineffectual referral to OMI Family Clinic (OMI), and a very recent
referral to a private therapist, whom Mother refused to see because her office was in a
dangerous neighborhood.
           2. GGRC
       Mother reactivated her services at GGRC in November 2016, but she was
considered a difficult client. At her request, her first case worker was replaced by a
second in January 2017, but when Mother asked for a third case worker in July 2017, her



       5
         Mother was not strictly limited to six months of services, however. Section
361.5, subdivision (a)(1)(C) allows a sibling group including a child younger than three
to be restricted to six months of reunification services under section 361.5,
subdivision (a)(1)(B), but it uses the permissive “may” not the mandatory “must” or
“shall.” In light of the juvenile court’s order at the six-month review, therefore, Mother
was eventually allowed 12 months of services.


                                            13
request was denied. She then stopped communicating with her second case worker.
Mother was eventually successful in obtaining a third ongoing case worker in October
2017. Whether and to what extent Mother benefited from this relationship is not known,
as her services were terminated in November 2017.
       There can be no doubt that regional centers provide valuable services for
developmentally disabled individuals. (Victoria M., supra, 207 Cal.App.3d at pp. 1329–
1330.) In fact, Victoria M. held it was unreasonable to terminate a developmentally
disabled mother’s parental rights without first assessing whether the regional center could
help her reunify with her child. (207 Cal.App.3d at p. 1331.) But that does not mean that
referring such a parent to the regional center is a panacea that automatically satisfies the
reasonable services requirement. In this case, the record suggests an overreliance on
GGRC to address all of Mother’s needs, even though it was clear that relying on GGRC
alone would result in significant delays in providing services. When the regional center
is so backed up that it cannot help a parent within a reasonable time, the Agency should
pursue other possible avenues for obtaining needed services promptly on the parent’s
behalf. (Cf. Alvin R., supra, 108 Cal.App.4th at p. 973 [reasonable services not provided
where “the Department’s only effort to overcome [the custodial grandmother’s
scheduling problem] was apparently to make a referral to a therapist who had no time
available to see Alvin. There was no evidence that the Department made an effort to find
other therapists in the area, or that the Department attempted to find transportation for
Alvin to see an available therapist further away.”].)
       Exactly what services were provided to Mother by GGRC is hard to discern from
the record. It appears GGRC may have had psychologists on staff to see clients, but
otherwise GGRC appears to have operated as a referral center that arranged and
coordinated services for developmentally disabled clients, while the services were
actually performed by other providers. (See Morohoshi v. Pacific Home (2004) 34
Cal.4th 482, 487–490 [describing role of regional centers].) In considering whether the
referral to GGRC constituted the provision of “reasonable” services, we must therefore
look at the components of the services it offered.


                                             14
             3. Individual Therapy
       Mother complains there was a significant delay in providing her with individual
therapy. (See Alvin R., supra, 108 Cal.App.4th at p. 973.) Moreover, the Agency
appears to have tied together individual therapy with the referral for anger management
services, with no anger management services offered unless pre-approved by Mother’s
therapist.
       In November 2016, GGRC placed Mother on a waiting list to see a therapist, Dr.
Chad LeJeune. In the interim, the Agency referred Mother through Foster Care Mental
Health to OMI to obtain individual therapy. Mother tried to go to OMI but was turned
down because her symptoms were not sufficiently acute to meet OMI’s criteria. On
March 20, 2017, as the six-month hearing drew near, the Agency referred Mother to an
individual therapist, whom she refused to see because she felt unsafe in the therapist’s
neighborhood.6 Because individual therapy had not begun, she had not been assessed for
nor given services for anger management.
       In the second six months of her reunification period, Mother found a therapist on
her own initiative at Bayview Integrated Behavioral Health on June 5, 2017. She stayed
on the waiting list for Dr. LeJeune until July 18, 2017, when she began therapy with him.
       Thus, from September 2016 until July 2017, Mother was provided with no
individual therapy through GGRC. It may be true, as the Agency suggests, that Mother
was to some extent responsible for the delay.7 But Mother was not altogether resistant to
engaging in therapy, as she tried to follow up with the Agency’s referral to OMI, which
was an inappropriate referral. Even faulting Mother for her refusal of services in March


       6
         Whether her fear was rational, whether it was related to a mental health issue or
her developmental disability, or whether it was feigned because Mother did not want to
engage in therapy is impossible to tell from this record. The Agency appears to have
treated it as the third of these alternatives.
       7
         According to the Agency, it was Mother’s decision to be placed on a waiting list
for Dr. LeJeune. Mother said she wanted to see a therapist who understood her disability.
The record does not show whether a different GGRC therapist would have been available
sooner.


                                            15
2017, that accounts for only 10 weeks of a much longer delay. By the time of the
November hearing, Mother had been provided with at most four months of individual
therapy during 15 months since her sons had been physically removed from her custody.
She had engaged in only two therapy sessions with Dr. LeJeune when the Agency
recommended termination of services.
       We cannot conclude this was a meaningful provision of therapeutic services. It
was Mother’s mental health and intellectual disability that brought her family into the
dependency system. Providing Mother with individual therapy was of paramount
necessity for reunification, and in fact went to the heart of the reason for removal of the
children in the first instance. By placing her on a six- to 12-month waiting list for
individual therapy, and then waiting four more months before making an alternate
appropriate referral, the Agency failed to address with timely services the root of the
problem. (Cf. Patricia W. v. Superior Court, supra, 244 Cal.App.4th at pp. 403, 420–427
[schizophrenic mother who went off her medication, causing her to have violent
hallucinations about killing her two-and-a-half-year-old child, was not provided
reasonable services where the agency made no effort to have her properly diagnosed and
to resolve her medication needs].) The services provided must not only be appropriately
tailored. They must also be accessible.
          4. Anger Management
       Because Mother had not been professionally evaluated for the need for anger
management services, she never received those services, either. The Agency sat on its
hands waiting for a psychologist to bless the referral to anger management services, while
simultaneously keeping Mother on a waiting list for individual therapy. This put Mother
into something of a catch-22 situation. It seems to us Mother could have been referred
for anger management services even without a new psychologist’s recommendation,
based on Dr. Watt’s identification of her “serious anger issues” in the prior dependency
and her recommendation that “skills to manage [Mother’s] anger would be very helpful.”
Combined with incidents in the current dependency that confirmed the need, there was
sufficient reason to have referred Mother for anger management services without waiting


                                             16
for another psychologist’s recommendation, especially when there proved to be a
significant delay in getting Mother connected with a psychologist. There is no substantial
evidence the Agency made any effort to assist Mother in this regard. We take this
particularly seriously because Mother’s “anger issues” had been specified in the section
300, subdivision (b) allegation sustained against her as one of the reasons for the
children’s dependency, and work on anger management had been built into her case plan.
            5. Family Therapy: IPP and Clinically Supervised Visitation
       Though Mother failed to cooperate with family therapy in the prior dependency,
she appears to have been in full compliance with the family therapy component of her
case plan during the current dependency. In the status review report prepared for the 12-
month hearing, the Agency acknowledged Mother continued to fulfill the family therapy
component. This was the one area in which the Agency’s efforts cannot be faulted.
            6. AFW: In-Home Counseling and Parenting Support
       Mother was waitlisted for AFW in November 2016, with a six- to 12-month
anticipated wait. She was not actually connected up with AFW until mid-April 2017,
nearly eight months after the children were taken from her. The Agency indicates she
initially declined those services. The record suggests, though, that Mother met with one
AFW worker in April or May, who completed an assessment. Another case worker, Ms.
Alvarez, was assigned to work with Mother on a one-to-one ongoing basis beginning in
June 2017. Mother resisted that case worker, and did not want her to supervise a visit
with the boys. The Agency set one up anyway. At the visit in late June 2017, Mother
refused to work with and threatened the AFW worker and said she would call the police
after the visit. 8 Due to Mother’s attitude and behavior, as well as AFW’s short-staffing,
AFW terminated services a few days after that visit. No alternative services were
arranged.


       8
         According to the 12-month status review report, Mother said she would allow
Ms. Alvarez to attend the visitation, but “threatened Ms. Alvarez and reported she would
be calling the police on her after the visit.” No other details were provided.


                                             17
       The Agency claims Mother’s refusal to participate with AFW once services
became available prevented completion of those services. For this position it cites cases
saying that parents cannot be forced to engage in reunification services (In re Jonathan R.
(1989) 211 Cal.App.3d 1214, 1220) and that a social worker need not “take the parent by
the hand and escort him or her to and through classes or counseling sessions.” (In re
Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) It does appear Mother initially
resisted AFW’s parenting services but relented and worked with AFW, albeit diffidently,
for a brief period from April to June 2017. During that period, she had a number of
difficult interactions with AFW personnel, including one in which she said the social
worker who performed the assessment, Ms. Murcia,9 referred to her as “mentally
retarded.”10 Then, in late June, a meeting between Mother and her one-to-one social
worker, Ms. Alvarez, ended badly, with Mother losing her temper. At that point, AFW
refused to provide any further services to Mother, with the net effect that she had


       9
          Mother testified that Ms. Murcia “was very disrespectful . . . . And I just sat
back and let her be disrespectful for awhile. And then after that, I just couldn’t tolerate it,
so I just went to her supervisor and told her supervisor about her.”
       10
          The term “mentally retarded” is an epithet. (See Rosa’s Law, Pub. L. No. 111-
256 (Oct. 5, 2010) 124 Stat. 2643 [updating and replacing references in federal statutes
from “mental retardation” to “intellectual disability” and “mentally retarded individual”
to “an individual with an intellectual disability”].) The Senate Report accompanying
Senate Bill Number 2781, the bill that was signed into law as Rosa’s Law, explains that
“the terms ‘mentally retarded,’ ‘mental retardation,’ and variations of these terms, to
describe individuals with intellectual disabilities are anachronistic, needlessly insensitive
and stigmatizing, and clinically outdated. . . . [¶] ‘Imbecile,’ ‘moron,’ ‘idiot,’ and
‘feeble-minded’ are all terms which have been used to reference people with cognitive
disabilities by the public and in our Federal statutes. . . . Within the past 30 years, the
terms ‘mental retardation’ and ‘mentally retarded,’ or derivatives of those terms, have
also developed into colloquial slurs and pejorative phrases used to demean and insult
both persons with and without disabilities.” (Sen.Rep. No. 111-244, 2d. Sess., p. 2
(2010) [111 S. Rpt. 244].) The American Psychiatric Association also abandoned the
term “mental retardation” in its DSM-5, substituting the terms “intellectual disability” or
“intellectual developmental disorder.” (See
<https://www.psychiatry.org/psychiatrists/practice/dsm/educational-resources/dsm-5-
fact-sheets> [as of Mar. 29, 2018].)


                                              18
received a preliminary assessment but no substantial in-home services or parental support
services.
       The record shows no effort by the Agency to get Mother engaged with similar
services elsewhere after June 2017, despite Mother’s request for someone else. Notably,
Mother never refused to receive services outright or ignored any referrals. She was
unquestionably difficult to work with, but the reason why seems clear. As the Agency
reported, early on, at the six-month mark, “[w]hen working with mother, there is some
denial and defensiveness . . . . This could clearly be due to her intellectual disability; an
inability to fully comprehend and understand what is being requested and why these
services could benefit her and the children.” Nothing had changed in the Agency’s
assessment of Mother at 12 months, except by that time the Agency had ceased to try to
find help for her. Under the circumstances, responsibility for Mother’s receiving nothing
more than a preliminary assessment for in-home counseling and parenting support
services must rest at the Agency’s doorstep. Mother’s problem was not a lack of
willingness to receive help. It was that the difficulties caused by her recognized
disability—the very difficulties targeted by the individual therapy and anger management
components of her case-plan—were never addressed.
            7. Independent Living Skills: Brilliant Corners
       As of the 12-month review, Mother had “not started” receiving in-home
supportive services, which meant she had not received mentoring in the everyday
practical skills she needed to keep her home clean and safe for her children. This failure
occurred despite the fact that such services were essential, given the reasons the boys
were taken from her. It appears Brilliant Corners, discussed below, was identified as the
likely provider of such services, and she remained on the Brilliant Corners waiting list for
almost a year.
       The Agency responds that in-home support services could not have begun in any
event because Mother would not allow anyone into her temporary living quarters and
requested to have social workers meet her outside. It is sheer speculation whether
Mother’s reticence about having visitors into her temporary quarters was borne of


                                              19
embarrassment, which is one plausible interpretation of the record; paranoid fear, another
plausible reading; or, more adversely to her interests, a willful effort to hide squalid
conditions she knew were hazardous to her children. The record is not clear enough on
the point to support an inference about her desire to meet outside, one way or the other.
Certainly, there is not enough to support a finding that she was so implacably resistant to
in-home visitors that it relieved the Agency of any obligation to follow through with the
independent living skills component of her case plan.
          8. Housing: Brilliant Corners
       One of the orders at disposition required Mother to “secure housing and maintain
the physical conditions of the home clean and organized.” Mother’s failure to comply
with this requirement by providing her children with a safe and sanitary home was a
primary reason the children were taken from her custody. Yet the Agency offered no
assistance to her in finding suitable housing or helping her learn basic independent living
skills, beyond a referral to GGRC.
       In November 2016, GGRC placed her on a waiting list for Brilliant Corners, a
service providing housing assistance to people with developmental disabilities, with a
projected waiting time of six to 12 months. In late January 2017, the Agency was told it
would be another four to eight months before services could begin. Mother remained on
a waiting list through GGRC for Brilliant Corners at the six-month review and the 12-
month status review report. The record shows Mother was never provided housing
assistance or mentoring on everyday life skills by Brilliant Corners or anyone else.
       The housing authority kept pushing back the completion date for repairs on her
apartment, complicating the picture for reasons beyond Mother’s control. It is not
surprising that she bounced from one temporary living situation to another during this
time or that her temporary quarters may not have been well-suited for children, given the
impacted housing market in San Francisco, her intellectual disability, and her limited
means. (See Victoria M., supra, 207 Cal.App.3d at pp. 1327–1328 [services offered to
mildly intellectually disabled mother were not reasonable in part because they did not
address her housing needs, even though housing inadequacy had led to the dependency].)


                                              20
The Agency deserves no credit for the Brilliant Corners referral, since no services ever
materialized.
          9. Conclusion: No Substantial Evidence Supports the Reasonable Services
             Finding, and a Hearing Under Section 366.26 Should Not Have Been Set

       In summary, the Agency put Mother in a holding pattern that resulted in a wait of
nearly 11 months after her children were removed from her physical custody before she
was provided with an individual therapist; it failed completely to provide her with help
for anger management; it delayed almost eight months from physical removal in
providing services from AFW and never delivered ongoing services; it failed to give her
help with practical independent living skills; and it failed to provide her with housing
assistance. Under the circumstances, we see no substantial evidence—certainly not
enough to persuade a reasonable factfinder by clear and convincing proof—that
reasonable services were offered or provided by the Agency. Hence, we must conclude
the court abused its discretion in terminating services and setting a hearing under section
366.26. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1166.)
       The Agency insists “the standard is not whether the services provided were the
best that might be provided in an ideal world” (In re Misako R. (1991) 2 Cal.App.4th 538,
547 (Misako R.)), but that commonplace notion obscures the real issue here, which is
whether the limited steps it took were adequate to meet this family’s particular needs.
While, obviously, services need not meet the unattainable goal of perfection, “they must
be designed to remedy the family’s problems and accommodate the special needs of
disabled parents.” (Tracy J., supra, 202 Cal.App.4th at p. 1427.) In In re Daniel G.
(1994) 25 Cal.App.4th 1205 (Daniel G.), the minor was born to a mother under a
conservatorship and institutionalized with an intellectual disability, schizophrenia, and
poor impulse control, yet the mother was still entitled to reunification services and had
termination of her parental rights reversed where the services provided were inadequate.
(Id. at pp. 1207–1208, 1210–1217.) Although we would not go so far as to call the
Agency’s efforts “ ‘a disgrace,’ ” as did the trial court there (id. at p. 1209), we have no
trouble concluding that, to sustain a reasonable services finding in this case—to the level


                                              21
of certainty required by the clear and convincing proof standard—we would need to see
more than we have on this record.
       We reach this conclusion independently of the question whether Mother is likely
to show herself capable of resuming custody of her sons in the near future. Our focus is
strictly on the reasonable services issue. The Agency’s viewpoint on the likelihood of
return of the children, ultimately, may remain unchanged. We point out, however, that
Mother’s original public housing apartment may have been renovated by now, which
would help to alleviate some of the problems that led to the children’s dependency. In
addition, the eldest son is now capable of administering his own medications, which
would further mitigate the problems that required the boys’ removal. It remains to be
seen whether Mother will successfully reunify with her sons, but she deserves a chance to
try, with full provision of reunification services while making the effort.
       The Agency emphasizes that throughout the reunification period, indeed
throughout its entire experience with her, going back to her family’s prior dependency,
there was a consistent and longstanding refusal to cooperate on Mother’s part.11 True, as
we have noted with respect to individual case-plan components, her compliance with the
plan was reluctant in some respects and recalcitrant in others. But although Mother’s
pugnacious personality made her problematic to deal with, she did cooperate with


       11
         In re Christina L. (1992) 3 Cal.App.4th 404, 410–411, 418 and Misako R.,
supra, 2 Cal.App.4th at pages 543, 544–545, found reasonable services had been
provided to intellectually disabled parents where there was a clear refusal of participation
in regional center services. Both cases are distinguishable because Mother in our case
was not “wholly uncooperative” with GGRC (Misako R., at p. 543); to the contrary, by
her conduct in attempting to seek out her own therapist she demonstrated a willingness to
receive required therapy and an understanding it was needed. Christina L. and Misako R.
involved outright refusals to engage in services. Moreover, in Christina L., the time the
child had been in foster care was much longer, the child had been moved from foster
home to foster home, and perhaps most telling, mother-child visitation had been
extremely difficult, with the child ultimately refusing to see her mother. (Christina L., at
pp. 408–409, 411.) Misako R. involved physical abuse by the mother’s boyfriend and
also involved a mother whose parental rights were not subject to termination, and hence
the standard of proof was a preponderance of the evidence. (Misako R., at pp. 547–548.)


                                             22
services in several important ways: she consistently complied with visitation and learned
to cooperate with the visitation supervisor, she attempted to follow up on the referral to
OMI and was denied services through no fault of her own, she obtained individual
therapy through her own self-referral even before the Agency provided her with
therapeutic services, she started therapy with Dr. LeJeune as soon as he became available,
she vacated her public housing to allow repairs to be made, found other shelter, and
engaged with GGRC and AFW to some extent (though she was a demanding client).
Clearly, she was trying.
       As difficult a person as Mother has shown herself to be, it is important to bear in
mind what this case does not involve: There are no allegations here that Mother suffers
from drug or alcohol dependence, or is engaging in criminality, or is a victim of in-home
domestic violence, or is committing physical abuse or emotional abuse of the children.
Rather, what we have here is a neglect case involving an intellectually disabled parent
with some accompanying mental illness, struggling to raise her children in conditions of
abject poverty. It is telling, in our view, that Mother was penalized heavily for failing to
provide secure, cleanly and well-kept housing for her family, a common problem for
many in San Francisco, yet she was given no assistance with the special challenges of
doing so as a developmentally disabled person. We do not question the earnestness of the
social worker’s skepticism that Mother will ever be capable of reunifying—a view
expressed at the outset of these proceedings, before reunification even began—but it does
appear to us that the Agency allowed this attitude to become a self-fulfilling prophecy,
thus draining its efforts of vigor based on a “ ‘forecast of failure.’ ” (Patricia W. v.
Superior Court, supra, 244 Cal.App.4th at p. 429.)
       A mentally disabled parent may be bypassed for reunification services altogether
only if he or she is determined, by clear and convincing evidence, to be “incapable of
utilizing those services.” (§ 361.5, subd. (b)(2); San Joaquin Human Services Agency v.
Superior Court (2014) 227 Cal.App.4th 215, 220, fn. 2 (San Joaquin).) But bypass on
that basis requires evidence from two qualified experts in psychiatry or psychology that
“even with the provision of services, the parent is unlikely to be capable of adequately


                                              23
caring for the child within the time limits specified in subdivision (a).” (§ 361.5,
subd. (c)(1); Fam. Code, § 7827; In re Rebecca H. (1991) 227 Cal.App.3d 825, 830.)
The Agency made no effort to have a section 361.5, subdivision (b)(2) bypass
determination made here, and it cannot circumvent this stringent standard by simply
going through the motions of providing services and waiting for an inevitable failure.
Absent a statutory reason for bypass, “whenever a child is removed from a parent’s or
guardian’s custody, the juvenile court shall order the social worker to provide child
welfare services to the child and the child’s mother and statutorily presumed father or
guardians.” (§ 361.5, subd. (a).) “The effort must be made to provide suitable services,
in spite of the difficulties of doing so or the prospects of success.” (In re Dino E. (1992)
6 Cal.App.4th 1768, 1777.) A half-hearted effort on the Agency’s part—which leaves
the parent without services for months on end—does not amount to the provision of
reasonable services. (See Alvin R., supra, 108 Cal.App.4th at pp. 971–974.)
       D. The Remedy is to Award Mother More Services up to 24 Months from
          Removal of the Children from Mother’s Physical Custody

       We next confront the question of remedy because the children have now been out
of Mother’s custody for more than 18 months. Going strictly by the calendar, the 18-
month mark fell on February 22, 2018. What happens in a case, like this one, where the
12-month review hearing was not completed until 15 months after physical removal, and
due to the time necessary for review—even as expedited in writ proceedings—the
determination that reasonable services were not provided comes at a point beyond 18
months after removal? In these circumstances, are we empowered to direct that an
extended period of services be provided on remand, so long as the extended period does
not run beyond 24 months? We conclude we are.
       Ordinarily reunification services are available to parents for a maximum of 18
months from the physical removal of the children from their home. (§ 361.5,
subd. (a)(3)(A).) Justice Goodwin Liu of the Supreme Court recently noted a split of
authority on whether a section 366.26 hearing must be scheduled, or whether additional
reunification services may be provided, when the issue arises after the 18-month mark


                                             24
has been reached: “How should a juvenile court proceed when 18 months have elapsed
since the child has been removed from parental custody but reasonable reunification
services have not been provided?” (J.C. v. Superior Court (Aug. 23, 2017, S243357)
Statement Respecting Denial Of Review By Liu, J. (J.C.) [2017 Cal. Lexis 6576, at
p. *11].) Justice Liu considered specifically a decision made at an 18-month review, but
his remarks suggest the question arises whenever services are ordered beyond the 18-
month mark. (Id. at p. *4.)12
       Justice Liu’s Statement in J.C. raises the question whether courts have the
authority to order reunification services after 18 months have elapsed, given the statutory
language: “Section 361.5, subdivision (a)(3)(A) provides that services can be extended
‘up to a maximum time period not to exceed 18 months after the date the child was
originally removed’ from parental custody. But if the court cannot order a section 366.26
hearing until reasonable services have been received, and if 18 months have already
elapsed, then presumably it would be necessary for the court to order services beyond the
18-month deadline so that the child dependency proceedings can move forward.” (J.C.,
supra, 2017 Cal. Lexis 6576, at p. *9.) Indeed, even at an 18-month review, the court is

       12
          Justice Liu cited Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490 (Earl
L.), in which the court found reasonable services had not been provided in the 12- to 18-
month period, but reasonable services had been provided previously, over the history of
the dependency. (Id. at pp. 1500, 1502–1503.) In that case, decided on appeal by a panel
of the Fourth District, Division Three, the juvenile court did not extend services beyond
the 18-month hearing because the incarcerated father had made no effort to engage in
services during the period under review and had no chance of reunifying within the
extended period because he would remain incarcerated throughout. (Id. at pp. 1505–
1506.) The Court of Appeal affirmed, holding a finding of reasonable services at the 18-
month review is not a prerequisite to setting a hearing under section 366.26. (Id. at
pp. 1504–1507.) A panel in this Division, here in the First District, recently cited and
applied Earl L. in N.M. v. Superior Court (2016) 5 Cal.App.5th 796 (N.M.). The key
factor distinguishing Earl L. and N.M. from this case is that Mother’s services were
terminated at the 12-month hearing, when a finding by clear and convincing evidence that
reasonable services have been offered or provided was a prerequisite to setting a hearing
under section 366.26. (§ 366.21, subd. (g)(1)(C)(ii).)




                                            25
authorized to provide six more months of services if reasonable services have not been
offered or provided (§ 366.22, subd. (b)), and section 366.22, subdivision (b)(3)(C)
provides that a hearing under section 366.26 shall not be scheduled “unless there is clear
and convincing evidence that reasonable services have been provided or offered to the
parent or legal guardian.”13 It is not clear if this provision applies more broadly than to
the three categories of parents discussed in that subdivision, but Justice Liu noted “it is
unclear why the Legislature would have chosen to provide such protection only to this
subset of parents and guardians.” (J.C., supra, 2017 Cal. Lexis 6576, at p. *8.) Indeed,
Justice Liu identified a split of authority whether services may be provided beyond 18
months for parents other than recently incarcerated or minor parents or parents in a
residential substance abuse rehabilitation program. (J.C., supra, 2017 Cal. Lexis 6576, at
pp. *4-5, *9-10.)
       Justice Liu considered the questions he posed to lie “at the crosshairs of competing
policy objectives,” namely the goal of “family preservation and protect[ing] parental
rights” on the one hand, and the “ ‘child’s need for stability and security within a
definitive time frame’ ” on the other. (J.C., supra, 2017 Cal. Lexis 6576, at p. *10.)
Justice Liu drew no conclusion as to how that tension in competing policies should be
resolved, expressing the view the Legislature should address the issue, since the
resolution of the question depends on “careful examination of the adequacy of
reunification services throughout California’s diverse counties and the likelihood of
achieving reunification within particular time frames,” subjects more readily explored by




       13
          Section 366.22, subdivision (b) specifically allows services to be extended to the
24-month mark for “a parent or legal guardian who is making significant and consistent
progress in a court-ordered residential substance abuse treatment program, a parent who
was either a minor parent or a nonminor dependent parent at the time of the initial
hearing making significant and consistent progress in establishing a safe home for the
child’s return, or a parent recently discharged from incarceration, institutionalization, or
the custody of the United States Department of Homeland Security and making
significant and consistent progress in establishing a safe home for the child’s return.”


                                             26
the Legislature. (Id. at p. *11.) He also suggested legislative action was necessary due to
a “lack of clarity” in the current statutory scheme. (Id. at p. *1.)
       A First District, Division Three, panel addressed this lack of clarity in In re J.E.
(2016) 3 Cal.App.5th 557 (J.E.), where a county agency appealed after the juvenile court
extended services for six additional months at the 18-month review hearing because the
services rendered had not included an assessment for sex offender treatment for the
minor, which the trial court viewed as the “ ‘core issue’ ” standing in the way of
reunification. (Id. at p. 562.) The agency in the J.E. case, citing the Third District’s
opinion in San Joaquin, supra, 227 Cal.App.4th at pages 223–224, argued services could
not be extended beyond 18 months except in the three circumstances spelled out in
section 366.22, subdivision (b), as amended effective January 1, 2009. (See fn. 13,
ante.)14 As J.E. pointed out, the statement to this effect in San Joaquin was dicta
because, having concluded there was no substantial evidence to support the trial court’s
finding of a failure to offer or provide reasonable services in that case, it was unnecessary
to decide whether a further period of services was warranted. (J.E., at pp. 565–566.)
       Because that issue was squarely presented in J.E., however, the Division Three
panel concluded the juvenile court had pre-existing authority to order further services
beyond 18 months under section 352, which grants the courts discretion to “continue any
hearing under this chapter beyond the time limit within which the hearing is otherwise
required to be held, provided that no continuance shall be granted that is contrary to the
interest of the minor.” (§ 352; see J.E., supra, 3 Cal.App.5th at p. 564.) At least two
cases, Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1016 and In re Elizabeth
R. (1995) 35 Cal.App.4th 1774, 1795–1796 (Elizabeth R.), had already so interpreted the

       14
         Although San Joaquin involved what was classified as a 12-month review
hearing, because the proceeding at issue there took place 20 months after the minor’s
detention, it was treated as an 18-month permanency review hearing subject to section
366.22, subdivision (b). (San Joaquin, supra, 227 Cal.App.4th at pp. 222–223 & fn. 5.)
The opinion does not cite Earl L., but its application of section 366.22, subdivision (b), in
substance, adopts the same approach used in Earl L.



                                              27
statutes before the relevant changes to section 366.22, subdivision (b) were enacted,
effective January 1, 2009. (J.E., supra, 3 Cal.App.5th at p. 564; Stats. 2008, ch. 482,
§ 3.) Indeed, the Legislative Counsel’s Digest indicates the amendment was intended to
“provide additional circumstances in which court-ordered services may be extended,”
implicitly recognizing that other circumstances already justified such an extension.
(Legis. Counsel’s Dig., Assem. Bill No. 2070 (2007–2008 Reg. Sess.) Stats. 2008,
Summary Dig., p. 202, italics added.) J.E. concluded the 2009 amendment did not
restrict that pre-existing discretion: “[T]he new provision did not limit the court’s
discretion to extend services based on a finding that reasonable reunification services
were not provided.” (J.E., at p. 565.)
       We agree with the analysis in J.E., but in addition to the general authority to
continue hearings in dependency proceedings provided by section 352, we think the
statutory scheme governing the timeline for reunification services specifically authorizes
extended services beyond 18 months in the circumstances we have here. That scheme
begins with a presumptive minimum services period of either six months for children
under age three or 12 months for children age three and older;15 it then permits


       15
          Section 361.5, subdivision (a)(1)(A)–(C); section 366.21, subdivision (g). In
2009, the Legislature enacted a set of amendments to section 361.5 and section 388 that
effected a “major policy shift” away from the view that these timelines were maximums.
(Seiser & Kumli, supra, § 2.129[1], at p. 2-455.) “The Assembly Committee on Human
Services report [for this legislation] explained the author’s intent was to afford parents ‘a
minimum (emphasis added) of 6 months of reunification services for children under three
and 12 months of reunification services for children over the age of three.’ (Assem.
Com. on Human Services, Analysis of Assem. Bill No. 2341 (2007–2008 Reg. Sess.) as
amended Mar. 28, 2008, p. 2 [italics and parenthetical in original].) . . . [¶] The report
stated that, ‘[a]s amended, this bill would continue to allow courts to change, modify or
set aside initial orders for reunification services, but would narrow the instances in which
the court could use this discretion to those in which changed circumstances or new
evidence, if available at the time of the disposition hearing, could have led the court to
bypass reunification services.’ (Assem. Com. on Human Services, Analysis of Assem.
Bill No. 2341 (2007–2008 Reg. Sess.) as amended Mar. 28, 2008, p. 4.)” (M.C. v.
Superior Court (2016) 3 Cal.App.5th 838, 846–847.)



                                             28
continuances beyond the permanency hearing with extended periods of services in
narrowly defined circumstances, first, up to an additional six months16 where the
permanent plan calls for returning the child to parental custody17 and there is a substantial
probability of return within the “extended time period”;18 and, second, up to another six
months19 where there is a substantial probability of return by 24 months and it is in the
“best interests of the child” to order the extension.20 Stated in somewhat more simplified
terms, there is the possibility of optional, extended periods of services beyond the six or
12 month minimums after the required period for services has elapsed, but only where the
permanent plan is to return the child to parental custody and enough progress toward
reunification has been shown to warrant a finding of substantial probability of return,
with an additional “best interests of the child” finding required for the second extension.
Notably, however, for each of the extended six-month periods, the governing statutes use
disjunctive phrasing suggesting that a past failure to provide reasonable services for the
requisite minimum period—by itself—will justify granting an extension.21 This aspect of


          16
               Section 361.5, subdivision (a)(3)(A); section 366.21. subdivisions (e)(3) and
(g)(1).
          17
               Section 361.5, subdivision (a)(3)(A).
          18
         Section 361.5, subdivisions (a)(3)(A), (a)(4)(A); section 366.21,
subdivision (g)(1). See also section 366.21, subdivision (e)(3) (within six months).
          19
               Section 361.5, subdivision (a)(4)(A).
          20
               Section 366.22, subdivision (b).

           See section 361.5, subdivision (a)(3)(A) (“The court shall extend the time period
          21

only if it finds that there is a substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended time period or that
reasonable services have not been provided to the parent or guardian.” (Italics added.));
section 366.21, subdivision (e)(3) (similar); section 366.21, subdivision (g)(1) (similar);
section 361.5, subdivision (a)(4)(A) (“The court shall extend the time period only if it
finds that it is in the child’s best interest to have the time period extended and that there is
a substantial probability that the child will be returned to the physical custody of his or
her parent or guardian who is described in subdivision (b) of Section 366.22 within the


                                                  29
the statutory language did not come up in Earl L., N.M., or San Joaquin, presumably
because the issue in those cases was not whether the requisite minimum period of
services had been offered or provided. Rather, the parents there sought optional,
additional periods of services, and raised the issue belatedly, in the final stages of
reunification review.
       Nor did the opinions in Earl L., N.M., or San Joaquin consider the statutory
scheme as a whole. Section 361.5, subdivisions (a)(3)(A) and (a)(4)(A) both begin with a
sentence indicating the permanent plan must be for return of the child to the parent in
order for services to be extended. We read this sentence as presupposing that the
presumptive minimum period of reasonable services has been offered or provided up to
that point in time. Without this presupposition, the second sentence of each subdivision
becomes ambiguous and self-contradictory insofar as it authorizes extension of services
based on the failure to provide reasonable services to the parent. The permanent plan will
virtually never be to return the child to the parent in a situation where the Agency is
seeking to terminate reunification services, as is often the case when the issue of
extension arises. We also note that section 361.5 is the only one of this interrelated
family of statutes (§§ 361.5, subd. (a)(3)(A), 361.5, subd. (a)(4)(A), 366.21 and 366.22)
that requires a permanent plan of return home as a prerequisite to extending services and
that the more specific statutes among them (§§ 366.21 and 366.22) do not mention the
necessity of a permanent plan of return home when describing the circumstances under
which services may be extended.
       Accordingly, based on the statutory framework when considered as a whole, we
conclude that where, as in this case, a timely challenge to the adequacy of services for the
statutorily required minimum period—here, 12 months—is sustained, that failure to
provide services will justify the extension of services beyond 18 months, even without a
showing of best interests of the child or substantial probability of return, and even if the


extended time period, or that reasonable services have not been provided to the parent or
guardian.” (Italics added.)); section 366.22, subdivision (b) (similar).


                                              30
permanent plan is not to return the child to the parent. We reach this conclusion not only
because it harmonizes elements of the statutory scheme that are in tension with one
another, but because “[w]here reasonable services are not afforded there is a substantial
risk the court’s finding the child cannot be returned to the parent will be erroneous.
[Citation.] To put it another way: in order to meet due process requirements at the
termination stage, the court must be satisfied reasonable services have been offered
during the reunification stage” (Daniel G., supra, 25 Cal.App.4th at pp. 1215–1216) for
at least the period specified as the statutory minimum. Although discretionary extensions
beyond that minimum period are subject to tightly-defined statutory limitations, as Earl
L., N.M. and San Joaquin all recognize, we are convinced, at least where, as in this case,
the error in finding the Agency provided reasonable services was made at the 12-month
hearing, an extended period of services must be ordered on review, even if that means
services will be offered beyond the 18-month mark specified in section 361.5,
subdivision (a)(3)(A).
       A contrary analysis, reading the statutory exceptions in Section 366.22,
subdivision (b) as the exclusive basis for extensions beyond 18 months, and focusing on
section 366.22, subdivision (b), in isolation, could leave some parents remediless, even if
they successfully challenge the provision of reasonable services during the required 12-
month or six-month reunification period on writ review. It could also tend to create an
incentive for supervising agencies to avoid their statutory obligation to provide services
by simply “waiting things out” through delay. Particularly given the stakes involved, we
do not view this as a reasonable reading of the statutory scheme. Nor, in this case, do we
believe a continuance of the 12-month review proceedings would be contrary to the
children’s interests (§ 352), as they are living with MGM, who is willing to adopt. These
children appear to be in a familiar and stable environment in which they will remain.
Though postponing finality is not a favored outcome, neither is splitting up a family
where the sole parent has not been provided the presumptive minimum period specified
for reasonable reunification services. And where the parent has special needs, the courts



                                             31
are more willing to extend services beyond 18 months. (See Elizabeth R., supra, 35
Cal.App.4th at pp. 1793–1796.)
       In similar circumstances, Tracy J. granted intellectually and physically disabled
parents a period of additional reunification services where services were improperly
terminated at a combined 12- and 18-month hearing based on an unsupported finding that
reasonable services had been provided. (Tracy J., supra, 202 Cal.App.4th at pp. 1419,
1428.) So long as the extended period does not run beyond 24 months, we hold that the
same remedy should be afforded here. (See also Daniel G., supra, 25 Cal.App.4th at
pp. 1210–1217 [where reasonable services were not provided during the 12 months
preceding the 18-month review, order terminating parental rights was reversed and case
remanded for consideration of further services]; In re Dino E., supra, 6 Cal.App.4th at
pp. 1777–1778 [where no reunification plan had been developed at combined 12- and 18-
month review, case was remanded to allow trial court to consider factors relevant to
continued reunification efforts].)
                                     III.   DISPOSITION
       The petition is granted. Let an extraordinary writ issue directing the juvenile court
to (1) vacate its finding on November 17, 2017 that reasonable services were offered or
provided to Mother; (2) enter a new and different finding that reasonable services were
not offered or provided to Mother; (3) vacate its orders terminating reunification services
and setting a hearing under section 366.26; (4) set a continued 12-month permanency
hearing at the earliest convenient time; (5) order the Agency to provide Mother with an
additional period of reunification services, so long as the period of extended services does
not run beyond 24 months from removal. This decision is final as to this court
immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)




                                             32
                                               _________________________
                                               Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Schulman, J.*




      *
        Judge of the Superior Court of California, County of San Francisco, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A153034/T.J. v. Superior Court


                                          33
A153034/T.J. v. Superior Court

Trial Court:   San Francisco City & County Superior Court

Trial Judge:   Hon. Paul H. Alvarado

Counsel:

Furst & Pendergast, Margaret A. Pendergast for Petitioner.

No appearance for Respondent.

San Francisco Office of the City Attorney, Dennis J. Herrera, City Attorney, Kimiko
      Burton, Lead Attorney, Elizabeth McDonald Muniz, Deputy City Attorney for
      Real Party in Interest.




                                           34
