Filed 3/5/14 In re Steven P. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO

In re STEVEN P., a Person Coming Under
the Juvenile Court Law.


RICHARD P.,
         Petitioner,
v.                                                                   A140550
THE SUPERIOR COURT OF NAPA                                           (Napa County
COUNTY,                                                              Super. Ct. No. JV17163)
         Respondent;

NAPA COUNTY HEALTH AND
HUMAN SERVICES et al.

         Real Party in Interest.



         Petitioner Richard P. is the non-custodial father of four-year-old Steven P., who
was removed from the care of mother Melissa B. after she was arrested on charges of
drug possession and child endangerment. After 12 months of reunification services for
both parents, the juvenile court terminated services to Richard, but ordered respondent
Napa County Health & Human Services (the Department) to provide Melissa six
additional months of reunification efforts. Richard appealed from the order terminating
his services, which appeal is currently pending in this court. (In re Steven P., A139495.)
Meanwhile, despite the additional services, Melissa failed to alleviate the circumstances



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that led to the dependency proceeding. As a result, on December 12, 2013—while
Richard’s appeal was pending—the juvenile court terminated Melissa’s reunification
services and set a Welfare and Institutions Code section 366.261 permanency hearing for
April 3, 2014.
       Richard now petitions for extraordinary writ relief, contending that the juvenile
court erred by: (1) setting the section 366.26 hearing while his appeal from the order
terminating his reunification services was pending; and (2) failing to make a finding of
detriment at the 18-month review hearing. He also urges us to stay the permanency
hearing pending the outcome of his appeal. We conclude Richard’s arguments lack
merit. We therefore deny both the petition and his request for a stay.
                                      BACKGROUND
       On June 18, 2012, the Department filed a section 300 petition, alleging that
Steven’s parents failed to protect him within the meaning of subdivision (b). The
allegations stemmed from Melissa’s arrest five days earlier on charges of drug possession
and child endangerment. Specifically, during a probation search, police officers found
drugs in the home Melissa shared with Steven, her ex-husband, and other members of her
family. Melissa was under the influence at the time, admitting to methamphetamine use
the previous day. The home was littered with garbage, broken glass, and clothing, and
one of the bedrooms smelled like urine. There were also toxic materials and knives lying
around within easy reach of the children. Steven was taken into protective custody and
placed in the home of a relative.2
       A social worker interviewed Richard on June 26. He described his troubled
relationship with Melissa, noting that they had been together for almost four years but
were separated at that time. According to Richard, Melissa was clean when they first got
together, but later began using again, including when she was pregnant. He told the
social worker he had called the Department and the police on numerous occasions to
       1
           All undesignated statutory references are to the Welfare and Institutions Code.
       2
        We omit further details concerning Melissa except where relevant to the issues
before us.


                                               2
report concerns about Steven’s safety while in Melissa’s care, but he was eventually told
he would be arrested for harassment if he continued to call. He also acknowledged that
Melissa had a restraining order against him because she claimed he had beaten her up,
when in fact he was the one who had been punched in the face by the brother of Melissa’s
ex-husband.
       At the July 12 jurisdiction hearing, Richard and Melissa submitted on the petition,
and the court sustained the allegations and took jurisdiction over Steven.
       In the July 25 disposition report, the Department advised the court that Richard
acknowledged his need for more stability in his life before he could provide a home for
Steven. According to Richard, he was staying with a friend’s grandmother because none
of his relatives would let him stay with them. He admitted he had “bounced from job to
job” over the previous few years, which he blamed on Melissa. He believed he had a
negative reputation because he was surrounded by “thieves and drug addicts.”
       The Department believed that it was not in Steven’s best interest to be placed with
Richard, explaining: “Richard P. is the non-custodial parent in this Dependency. He
stated that he does not have a suitable home to which he can take Steven. In addition, the
Court issued a five year restraining order against the father in April 2012 based on
reported domestic violence between him and the mother. The father has questionable
associations with people he describes as ‘thieves and drug addicts’ which pose a risk of
harm to Steven. In addition, there are numerous conflicting reports that state that the
father does in fact use drugs or has in the recent past. The father does not have stable
employment or reliable transportation.”
       The Department recommended that both parents receive reunification services.
Richard’s proposed reunification plan required him to obtain and maintain a stable, safe,
and sanitary place for Steven to live; stay free from illegal drugs; participate in
counseling or therapy to address issues of substance abuse and uncontrolled anger;
complete a drug and alcohol intake assessment and comply with all recommendations;
attend weekly NA/AA meetings; submit to random drug testing; and participate in the
substance abuse recovery management system.


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       At the July 26 disposition hearing, the court adopted the Department’s
recommendation and reunification plans with minor modifications.
       On December 27, the Department submitted a six-month review report,
recommending continued reunification efforts for both parents. At that time, Richard
continued to struggle with finding a permanent place to live. He had lost a prior job
when his employer went out of business, but he had recently been hired to work at a local
restaurant. In terms of compliance with his reunification plan, the Department noted that
Richard was complying with the visitation component, as well as certain other
requirements, although he had not, as noted, obtained a stable place to live, nor had he
complied with all requests to drug test.
       At the January 15, 2013 six-month review hearing, the court continued services to
both parents, specifically finding that Melissa had made minimal progress on her case
plan, while Richard had made moderate progress.
       By the time of the Department’s June 13, 12-month review report, however,
Richard was no longer participating in his reunification plan. According to the
Department, “The father reported being terminated from his position as a cook in January
2013. Additionally, the father reported other social challenges that have interfered with
his ability to be stable and remain in contact with the Department. The father reported
dealing with an untreated illness of Depression which he characterized as, ‘not getting
enough sleep.’ The father reported being financially unstable and that losing his job
caused the termination of his cell phone service. The father added that his lack of
transportation has prevented him from visiting his son and communicating with the
Department.”
       As to the specific requirements of the reunification plan, Richard was no longer
visiting with Steven, with his last visit having occurred on December 25, 2012, nearly six
months prior. He was also out of compliance with most other requirements of his plan,
having only completed a “managing emotions” class in January, as well as a drug and
alcohol assessment.



                                             4
       In terms of “Detriment & prognosis of returning child home,” the Department
stated, “The father has only engaged with the undersigned once during this reporting
period. The undersigned learned the father’s phone service to be disconnected through
multiple attempts of contacting the father. The undersigned made two unannounced
home visits at the address provided by the father; however, during both attempts, the
father’s grandmother reported that the father does not reside at the address and that no
relative has seen the father in months. The undersigned mailed two letters to this address
requesting the father to contact the Department immediately; however, the father has yet
to contact the Department. [¶] On 5/21/2013, the father came into the Department to
discuss case planning with the undersigned. During the time, the father reported
experiencing economical hardship which resulted in his lack of participation in case
planning throughout this reporting period. The father’s uncooperative behavior or lack of
involvement with the Department suggests that the father is not dedicated to reunifying
with Steven. The father has not made progress in his case plan and has been homeless for
much of the reporting period. While the father reports he recently moved in with his
girlfriend, it is unknown if this is a stable living environment. Further, the father has not
visited Steven since December 2012 or made any attempt to contact or visit Steven since
December 2012.” Accordingly, the Department recommended terminating Richard’s
services.
       Melissa, on the other hand, was being consistent in her visits and had completed
all components of her reunification plan, other than maintaining a stable, safe, and
sanitary place to live with her children, free from alcohol and illegal drugs.
Consequently, the Department recommended an additional six months of services for her.
       At the 12-month review hearing, the court found that Melissa had made substantial
progress in alleviating the problems that led to the dependency proceeding and extended
her reunification services. It also found that Richard had made no progress in remedying
the circumstances that led to Steven’s placement and that placing Steven in his care
would create a substantial risk of detriment to the child’s wellbeing. It therefore
terminated reunification efforts as to Richard.


                                              5
       Richard filed a timely notice of appeal from the July 29 order terminating his
services.
       Six months later, the Department filed an 18-month review report recommending
that the court terminate Melissa’s reunification services and set a section 366.26 hearing,
as she was no longer complying with most requirements of her case plan.
       At the December 12, 18-month review hearing, the court terminated reunification
services for Melissa, and set a section 366.26 permanency hearing for April 3, 2014.
       Richard’s petition for an extraordinary writ followed.
                                       DISCUSSION
       1.   The Juvenile Court Did Not Err In Setting the Section 366.26 Hearing
       In his primary argument, Richard contends that the juvenile court erred in setting a
section 366.26 permanency hearing while his appeal challenging the termination of his
reunification services was pending. As he would have it, “Procedurally, the only proper
path that could be taken by the trial court in this case was to defer consideration of the
setting of the 366.26 hearing until this Court has an opportunity to decide the appeal.
Otherwise, should this Court reverse the order terminating services, Richard will very
shortly be faced with a hearing on termination of his rights without receiving the
statutorily mandated services.” Richard is incorrect.
       First, the juvenile court was statutorily obligated to set the selection and
implementation hearing upon terminating Melissa’s services.3 Section 366.22,
subdivision (a) provides that at the 18-month review, unless the court returns the child to
his or her parent or extends services, it must schedule a section 366.26 hearing within
120 days. (See also Calif. Rules of Court, rule 5.720(b)(3)(C).) At the December 12


       3
         The same is not true when the court has only terminated services to one parent,
such as when the court terminated Richard’s reunification services. (California Judges
Benchguides 104: Juvenile Dependency Selection and Implementation Hearing (2013)
§ 104.6 [“A .26 hearing cannot be set to terminate the parental rights of only one parent
unless that parent is the sole surviving parent, the parental rights of the other parent have
been terminated, or the other parents has relinquished custody.”]; Cal. Rules of Court,
rules 5.705, 5.708(l); 5.725(a)(2), (g).)


                                              6
review hearing, the court terminated services to Melissa (having already done so as to
Richard). Accordingly, it was bound by statute to set the permanency hearing.
       Richard neither acknowledges the court’s statutory obligation nor identifies any
exceptions to it. And the single authority he does cite in claimed support of his
argument—In re Daniel G. (1994) 25 Cal.App.4th 1205 (Daniel G.)—is unavailing.
There, Daniel was removed from his mother’s care at birth, and the court ordered
reunification services. (Id. at pp. 1207–1208.) At the six-month review hearing, the
court found that the Department had provided reasonable services and ordered it to
continue reunification efforts. At the 12-month review hearing, however, the court found
that the Department had not made reasonable reunification efforts during that review
period and ordered six more months of services. (Id. at p. 1208.) At the 18-month
review hearing, the court again found that the Department had not provided reasonable
services, labeling its reunification efforts “a disgrace.” Despite this finding, the court
ordered services terminated and set a section 366.26 permanency hearing, doing so
because it felt “constrained” by the law and because the Department had made reasonable
reunification efforts in the first six months. (Id. at pp. 1208–1209.) At the
section 366.26 hearing, the court terminated parental rights, and the mother appealed.
(Id. at p. 1209.)
       The Court of Appeal reversed, holding that the juvenile court erred in concluding
it lacked discretion to continue reunification efforts beyond the 18-month review period.
(Daniel G., supra, 25 Cal.App.4th 1209.) It concluded that the provision in
section 366.22, subdivision (a) mandating termination of reunification services if the
child is not returned at the 18-month hearing did not apply if, as was the case there, the
juvenile court found reasonable reunification services had not been provided. (Id. at
p. 1214.) According to the Court of Appeal, the juvenile court must find that reasonable
reunification efforts were made before it can schedule a section 366.26 permanency
hearing. (Ibid.)
       Richard submits that, as in Daniel G., the juvenile court here was prohibited from
setting the section 366.26 hearing because his pending appeal challenges the


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reasonableness of efforts made by the Department to reunify him and Steven. But that is
not what Daniel G. held. Rather, it held that the juvenile court could not set the
section 366.26 hearing if that court had not found that reasonable services had been
provided. Here, the juvenile court found reasonable services, and it thus properly set the
section 366.26 hearing.
       We close our discussion on this argument with an observation that the issue is in
large part one of Richard’s own making. While the order terminating his reunification
services was indeed appealable (§ 395; Wanda B. v. Superior Court (1996)
41 Cal.App.4th 1391, 1395), Richard’s wiser course of action may have been to seek writ
review of the order. As explained in a practice guide on California juvenile dependency
law, “Because appellate review is by nature a protracted process, the courts have often
noted that appeal is not an adequate remedy in dependency cases. Even though all
juvenile appeals are entitled to calendar preference, if an order affecting an issue such as
custody, placement, or visitation is not stayed, review of the issue may take such a long
time that the family situation has irrevocably changed or the child may have suffered
irreparable harm before the reviewing court can act. It is not unusual for the juvenile
court to terminate parental rights before the appellate court has reviewed orders made at
the dispositional and review hearings. Therefore, several courts have encouraged the use
of extraordinary writs, even in cases in which there is a right to appeal. See, e.g., In re
Michelle M. (1992) 8 [Cal.App.4th] 326, 330. [¶] Because of the inadequacy of the
appellate remedy, appellate counsel may need to seek earlier review of crucial juvenile
court orders by way of a petition for extraordinary writ relief.” (Cal. Juvenile
Dependency Practice (Cont.Ed.Bar 2013) § 10.3, pp. 816-817.)
       As noted, Richard was within his rights to proceed via an appeal rather than a
more expeditious writ petition. Nevertheless, the hearing to select a permanent plan for
Steven should not be delayed because that is how Richard chose to proceed.




                                              8
       2.   The Juvenile Court Found In Its June 19, 2013 Order That Placing
            Steven In Richard’s Care Would Create a Substantial Risk of Detriment
            to Steven
       Richard next argues that the juvenile court failed to find that it would be
detrimental to return Steven to his care, as section 366.21 required it to do. In support, he
cites the court’s detriment finding in its order following the 18-month review hearing, a
finding it based on the “Detrimental & Prognosis of Returning the child” section in the
November 21, 2013 review report. In turn, Richard notes, the referenced section of the
November 21 report makes no mention of him, discussing only Melissa and her mental
health issues, criminal activity, and inability to remain stable and meet Steven’s needs.
But Richard fails to acknowledge that at the time the court terminated reunification
services as to him, e.g., in its July 29, 2013 order, it did indeed find that returning Steven
to his care would be detrimental. And Richard can only challenge that finding in his
appeal from the July 29 order, not in this writ petition.
       Additionally, Richard claims that the court terminated his reunification services
due to his failure to visit Steven “for several weeks following the six-month review.”
According to Richard, however, at the time of the 12-month review he was visiting as
often as the Department would allow, and he has continued to do so with the sole
exception of one missed visit in August 2013. Again, this argument is not properly
before us, as it goes to the propriety of the court’s order terminating reunification
services, an issue that is currently pending in Richard’s appeal. We do feel it necessary,
however, to point out that Richard’s attempt to depict an exemplary visitation history is
belied by the record: according to the Department, Richard had no contact with either it
or Steven between December 2012 and May 2013.
       3.   Richard Has Not Made an Exceptional Showing of Good Cause
            Justifying an Order Staying the Section 366.26 Hearing
       Lastly, Richard urges us to stay the April 3, 2014 section 366.26 permanency
hearing. Per California Rules of Court, rule 8.452(f), we have the authority to do so upon
“an exceptional showing of good cause.” Richard has not made such a showing here.



                                              9
       Richard’s appeal challenges the juvenile court’s termination of his reunification
services. While we in no way intend this as an evaluation of the merits of his appeal, we
cannot say that Richard has made even a preliminary demonstration of the “[n]umerous
errors” that he claims occurred.
       Moreover, Richard is incorrect when he asserts that his “right to appellate relief
[will be] meaningless if the trial court is permitted to proceed to terminate his parental
rights without a full determination of the appeal.” If this court concludes that the juvenile
court failed to provide reasonable reunification services, as Richard urges on appeal, then
the matter will be remanded for further proceedings consistent with that opinion. (Daniel
S., supra, 25 Cal.App.4th at p. 1217 [matter remanded for further proceedings because
section 366.26 hearing, which resulted in termination of parental rights, was
improvidently set in light of trial court’s finding that reasonable services were not
provided].)
       Finally, pursuant to section 366.26, subdivision (j), “[A] petition for adoption may
not be granted until the appellate rights of the natural parents have been exhausted.”
Thus, adoption of Steven, if that is the permanent plan selected, cannot be finalized while
Richard’s appeal is pending.
                                      DISPOSITION
       The petition of father Richard P. for extraordinary writ relief is denied on its
merits. (Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court
forthwith. (Id., rule 8.490(b)(2)(A).)




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                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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