Filed 9/3/15 Moses R. v. Super. Ct. CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        SIXTH APPELLATE DISTRICT


MOSES R.,                                                            No. H042404
                                                                    (Santa Clara County
         Petitioner,                                                 Super. Ct. Nos. 114 JD22691,
                                                                     114 JD22692 & 114 JD22693)
         v.

THE SUPERIOR COURT OF SANTA
CLARA COUNTY,

         Respondent,

SANTA CLARA COUNTY
DEPARTMENT OF FAMILY &
CHILDREN’S SERVICES,

         Real Party in Interest.


         Petitioner Moses R. (the father) seeks writ relief from the juvenile court’s order
terminating his reunification services, scheduling a Welfare and Institutions Code section
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366.26 hearing, and reducing his visitation with his three children to once a month. He
contends that the juvenile court erred in terminating services because there was not
substantial evidence that he had not progressed on his case plan, and the court failed to
consider the fact that his incarceration created barriers to his participation in services. The




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         Subsequent statutory references are to the Welfare and Institutions Code.
father claims that the juvenile court erred in reducing his visitation because the court did
not make a detriment finding. We reject his contentions and deny his petition.


                                        I. Background
       Sylvia E. (the mother) and the father have three children together. In July 2014, the
mother gave birth to their youngest child, J.R. Both J.R. and the mother tested positive for
methamphetamine at the time of J.R.’s birth. The mother admitted that she had been using
methamphetamine for seven years. The father had recently been released from jail when
J.R. was born. He admitted that he was a frequent user of methamphetamine and an
alcoholic. The mother and the father had used methamphetamine together during her
pregnancy with J.R.
       The father’s brother reported that the father was prone to violence when he was
under the influence. The father had been serving a previous jail sentence when their eldest
daughter, I.R., was born in September 2013. Their son, M.R., had been born in June 2012.
The mother had always been the primary caretaker for the children, and the father had
provided no support for them. The family had been living with the father’s father, who
was a heroin addict and used drugs frequently. Many of the father’s family members had
mental health issues, and the father “would often see and hear things that were not
there . . . .” The father’s criminal history included convictions for driving under the
influence, theft, battery, and assault with a deadly weapon. He was on probation and
required to attend domestic violence classes, drug test, attend AA, and engage in drug
rehabilitation. He had not been compliant with the terms of his probation, and he was
incarcerated again shortly after J.R.’s birth.
       The children were detained in July 2014, and the Santa Clara County Department of
Family and Children’s Services (the Department) filed petitions under section 300,
subdivision (b) (failure to protect) as to all three children. In August 2014, the mother and
the father submitted the matter on the petitions and the social worker’s report, and the court

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found the petitions true. At the October 2014 dispositional hearing, the children were
removed from parental custody and placed in foster care. In early November, J.R. was
moved to the same concurrent foster home as the other two children. The two older
children had developmental delays, but all three children thrived in their concurrent foster
home.
        The father’s case plan included a parent orientation class, a parenting class,
counseling or psychotherapy, random weekly alcohol and/or drug testing, a substance
abuse program, a substance abuse assessment, an aftercare program, a relapse prevention
program, and a 52-week batterer’s intervention program. The father was granted
supervised visitation with the children twice a week for two hours. However he told the
social worker that he did not want the children to visit him while he was incarcerated. He
was ineligible to participate in programs in jail due to his classification as a gang member.
However, he told the social worker that he hoped to participate in programs after his
release.
        The father was released from jail on October 8, 2014, and he began visiting the
children. When he did visit with the children, the visits were usually positive, but he
missed many of his scheduled visits with the children. He also missed most of his required
drug tests, and, in early November 2014, he admitted that he had relapsed. In November
and December 2014, the social worker several times observed the father talking to himself
on the sidewalk, and the father told her that he was “hearing voices that were telling him to
do ‘bad things,’ ” and that he was “ ‘not able to make’ ” the voices stop. The father told the
social worker that he “has been having mental health issues which include schizophrenic
episodes and suicide ideations that he is currently addressing with the mental health
resources that were provided to him.” However, the father did not obtain any mental health
services. The father tested positive for methamphetamine and marijuana in December
2014, and he was arrested for violating his probation. He remained incarcerated
throughout the remainder of the proceedings. The father “made minimal progress on his

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case plan.” He briefly began attending parenting classes, but he did not complete them.
He did not attend parent orientation, made no attempt to obtain therapy, did not
consistently drug test, did not participate in the batterer’s intervention program, and did not
attend a drug treatment program.
       At the June 2015 six-month review hearing, the Department recommended that the
court terminate services for the mother but extend services for another six months for the
father. The father had been in contact with the social worker on a weekly basis since his
December 2014 arrest, but he had had no contact with the children since
December 18, 2014. He was engaging in some programs in jail and had been accepted into
the “PACT Visitation program” in May 2015. He had completed the “three R’s program.”
The PACT program would allow him to visit the children while in jail. He was scheduled
to begin visiting the children once a week sometime in mid-June 2015. The father
expected to be released from jail in December 2015.
       The social worker testified at the hearing that the father had “done everything that
he needed to do and has been able to do during his incarceration.” But when he was not
incarcerated, he had not made any progress on his case plan. He was still “hearing voices”
and had not obtained mental health services. Although he had told the social worker that
he was “open to receiving” such services, he made no effort to obtain available mental
health services in jail.
       The Department argued at the hearing that “inquiry must be made considering the
particular barriers to an incarcerated parent’s access to court-mandated services,” and it
asserted that the father’s incarceration limited his access to services. The father’s attorney
argued that the court was required to extend services because “the barriers of incarceration”
precluded the father from participating in services. The children’s attorney asked the court
to terminate services to the father and reduce his visits to once a month. She pointed out
that the father had not sought treatment for his mental health issues while in jail despite the



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availability of those services in jail. The children’s attorney also noted that, when the
father was not in jail, he had failed to significantly participate in any services.
       The court found that the father had made “minimal” progress on his case plan, that
he had not “demonstrated the capacity or the ability” to fulfill his case plan, and that there
was no reasonable probability that the children could be returned within six months. It
terminated the father’s services and reduced the father’s visits to once a month “because
the Court terminated services, and the Court does not believe that it is in the best interest of
the children to continue the visitation any more frequently than one time a month.” The
court set a section 366.26 hearing for October 5, 2015 and directed the Department’s
counsel to prepare the order. The court’s July 2015 written order explicitly stated that the
court had “tak[en] into account the barriers to the incarcerated parent’s access to court-
mandated services and ability to maintain contact with the children.” The father timely
filed a notice of intent to file a writ petition challenging the court’s order.


                                         II. Discussion
                                 A. Termination of Services
       The father claims that the juvenile court erred in terminating his services because
substantial evidence does not support the court’s finding that he had failed to make
substantial progress on his case plan and the court failed to make a “specific finding” that it
had considered barriers to his participation in services created by his incarceration.
       At the six-month review hearing, “the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. . . . The failure of the parent or legal guardian to
participate regularly and make substantive progress in court-ordered treatment programs
shall be prima facie evidence that return would be detrimental. In making its determination

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[whether return would be detrimental], the court . . . shall consider the efforts or progress,
or both, demonstrated by the parent or legal guardian and the extent to which he or she
availed himself or herself to services provided, taking into account the particular barriers to
an incarcerated . . . parent’s . . . access to those court-mandated services and ability to
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maintain contact with his or her child.” (§ 366.21, subd. (e).) “If the child was under
three years of age on the date of the initial removal, . . . and the court finds by clear and
convincing evidence that the parent failed to participate regularly and make substantive
progress in a court-ordered treatment plan, the court may [at the six-month review hearing]
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schedule a hearing pursuant to Section 366.26 within 120 days.” (§ 366.21, subd. (e).)

2
        The father cites language in section 361.5, subdivision (a)(3). This subdivision
provides that reunification services “may be extended up to a maximum time period not to
exceed 18 months after the date the child was originally removed from physical custody of
his or her parent or guardian if it can be shown, at the hearing held pursuant to subdivision
(f) of Section 366.21, that the permanent plan for the child is that he or she will be returned
and safely maintained in the home within the extended time period. The court shall extend
the time period 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. In
determining whether court-ordered services may be extended, the court shall consider the
special circumstances of an incarcerated or institutionalized parent . . . , including, but not
limited to, barriers to the parent’s or guardian’s access to services and ability to maintain
contact with his or her child. . . . If the court extends the time period, the court shall
specify the factual basis for its conclusion 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.” (§ 361.5, subd. (a)(3).)
        We cannot see how section 361.5, subdivision (a)(3) applies here. It explicitly
states that the court “shall extend the time period only if” reasonable services were not
provided or there is a substantial probability that the child will be returned within the
extended period. The father does not contend that either of these circumstances was
shown. In any case, the requirement that the court consider barriers to participation in a
parent’s case plan created by the parent’s incarceration appears in both section 366.21,
subdivision (e) and section 361.5, subdivision (a)(3). Neither section requires an express
finding in connection with that consideration.
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       “If, however, the court finds there is a substantial probability that the child . . . may
be returned to his or her parent or legal guardian within six months or that reasonable

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       The father claims that there is no evidence that he “failed to participate regularly
and make substantive progress” on his case plan. “ ‘We review an order terminating
reunification services to determine if it is supported by substantial evidence. [Citation.] In
making this determination, we review the record in the light most favorable to the court’s
determinations and draw all reasonable inferences from the evidence to support the
findings and orders. [Citation.] “We do not reweigh the evidence or exercise independent
judgment, but merely determine if there are sufficient facts to support the findings of the
trial court.” [Citation.]’ [Citation.]” (Fabian L. v. Superior Court (2013) 214 Cal.App.4th
1018, 1028.)
       The father complains that the juvenile court expected him “to be perfect.” In his
view, he was “slow to get started on his case plan,” but “once he became incarcerated, he
availed himself of every program” available at the jail. He minimizes his failure to obtain
mental health treatment on the ground that “mental health services” were not part of his
case plan.
       The father views the record in a light most favorable to him, but we must review the
record in the light most favorable to the court’s findings. During the 11 months between
the detention of the children and the six-month review hearing, the father made virtually no
progress on his case plan. His very few visits with the children occurred during a brief
two-and-one-half-month period in the fall of 2014 when he was not in custody, and even
during that period his visits were inconsistent. He started but did not complete parenting
classes, did not attend parent orientation, made no attempt to obtain psychotherapy, did
virtually no drug testing, did not participate in a batterer’s intervention program, and did


services have not been provided, the court shall continue the case to the 12-month
permanency hearing.” (§ 366.21, subd. (e).) The father does not claim that there was a
substantial probability that the children could be returned to his custody within six months.
Indeed, it would have been impossible for this to occur since he was not due to be released
from his incarceration within that period. Nor does he claim that the Department failed to
provide reasonable services.

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not attend a drug treatment program. Although the social worker testified that the father
had done what he was able to do in the jail, there was no evidence that he engaged in any
program that met any of the requirements of his case plan. His failure to obtain mental
health services, despite the availability of those services in the jail and his obvious need for
such services, was particularly telling. His case plan required him to obtain psychotherapy,
so it is not true that mental health services were not part of his case plan. The record
contains substantial evidence supporting the juvenile court’s finding that the father had
failed to “participate regularly and make substantive progress” on his case plan.
       We find no merit in the father’s claim that the juvenile court erred by failing to
make a “specific finding” that it had considered barriers to his participation in services
created by his incarceration. Even if the statute required an express finding, which it does
not, the juvenile court’s written order made precisely such an express and specific finding.
The juvenile court did not err in terminating the father’s reunification services.


                                 B. Reduction of Visitation
       The father claims that the juvenile court abused its discretion in reducing visitation
without a detriment finding.
       “In any case in which the court orders that a hearing pursuant to Section 366.26
shall be held, it shall also order the termination of reunification services to the parent or
legal guardian. The court shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be detrimental to the child.”
(§ 366.21, subd. (h).)
       The juvenile court’s previous order had permitted the father to visit the children on a
weekly basis, but he had visited the children only during a couple of months of the nearly
year long dependency and even then only inconsistently. He had not visited the children at
all since December 2014. These very young children, who were thriving in their
concurrent foster home, had no significant relationship with the father, who they had rarely

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encountered. The court was not required to make a detriment finding because its order did
not terminate visitation but continued to permit it on a monthly basis. The court did not
abuse its discretion by reducing visits during the interim period between the six-month
review hearing and the section 366.26 hearing.


                                     III. Disposition
       The petition is denied.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




Moses R. v. Superior Court
H042404


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