Filed 11/19/15 R.W. v. Superior Court CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


R.W.,
         Petitioner,
v.                                                                    A146185
THE SUPERIOR COURT OF CONTRA
                                                                      (Contra Costa County
COSTA COUNTY,
                                                                      Super. Ct. Nos. J14-01029, J14-01030)
         Respondent;
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
         Real Party in Interest.


         Petitioner R.W.—father of two boys, 10-year-old N.W. and eight-year-old A.W.—
challenges the juvenile court’s August 24, 2015 order denying him family reunification
services and visitation and setting a Welfare and Institutions Code section 366.26 hearing
for December 14, 2015.1 We shall deny the petition for the reasons explained below.
                        FACTUAL AND PROCEDURAL BACKGROUND
         The boys’ mother died of cancer in January 2013 and their adult sister, S.R.,
became their legal guardian.2 Because petitioner was incarcerated when the mother died,

1
 Unless otherwise noted all statutory references are to the Welfare and Institutions
Code.
2
 The boys’ mother had five children, including S.R., N.W. and A.W. Petitioner is the
biological father of only N.W. and A.W. This petition concerns only them. He and their
mother had been living together as a family before petitioner’s incarceration.
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he was not then available to care for the children. The boys remained in their adult
sister’s care even after petitioner was released from custody in September, 2013, although
he expressed a desire to have them live with him “as soon as [he] got [his] life together.”
       On September 25, 2014, the Contra Costa County Children and Family Services
Bureau (bureau) filed petitions, pursuant to section 300, subdivision (b), alleging that the
children were at risk due to the guardian’s alcohol abuse. The bureau alleged that S.R.
had an alcohol abuse problem that put the children at risk of harm because she drove
while intoxicated. On or about September 15, 2014, she reportedly was involved in an
automobile accident with a pedestrian while she was driving under the influence with her
biological child, resulting in serious injury to both of them. The next day the juvenile
court detained the boys, removed them from S.R.’s care, and placed them with petitioner.
Pursuant to stipulation, the court assumed jurisdiction on November 6, 2014. On March
10, 2015, the court terminated S.R.’s guardianship of her younger brothers, placed them
in petitioner’s custody, and ordered that petitioner be provided with family maintenance
services. However, on April 17, 2015, the bureau filed a supplemental petition alleging
that petitioner had been arrested on April 8 for second degree robbery, was detained in
the Santa Rita jail, that he had a “high bail,” and was expected to remain in jail.
Petitioner’s wife would not care for the boys and as a result their care was entrusted to
their paternal grandmother. Based on an April 15, 2015 visit with the boys at their
grandmother’s home, the social worker reported that they appeared to be in good health,
but were subdued. On April 20, 2015, the court detained the boys with placement in the
relative’s home.
       In the dispositional report on the supplemental petition, the bureau recommended
that petitioner receive reunification services. The report, signed by the case worker and
her supervisor on July 21, 2015, and filed August 24, 2015, summarized 17 prior
allegations of abuse or neglect involving one or both of the boys from 2008 through
2015, three of which occurred while the boys were in petitioner’s custody.
       The report also discussed petitioner’s lengthy criminal history. Between October
1987 and April 2015 he had been arrested for vehicle theft, possession of drugs,

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obstructing an officer, receiving stolen property, being a felon in possession of a firearm,
carrying a loaded firearm, carrying a concealed weapon in a vehicle, transporting or
selling illegal drugs, robbery, battery on a spouse or ex-spouse, willful cruelty to a child,
battery on a person, passing false checks/records, evading a peace officer, driving with a
suspended license, failure to prove financial responsibility, and second degree robbery.
Between 1992 and 2011 he suffered five criminal convictions: (1) 1992 misdemeanor
conviction of carrying a loaded firearm in a public place; (2) 1992 felony conviction of
transporting/selling a controlled substance; (3) 1994 felony conviction for second degree
robbery; (4) 2005 felony conviction for passing false checks/records; and (5) 2011
conviction for vehicle theft.
       The boys’ stated preference was to remain with their paternal grandmother and
have regular contact, including overnight visits, with their older sister and former legal
guardian, S.R. The boys had had no contact with their father since he was jailed. As
reported by their counsel on May 11, 2015, however, they both stated they would like to
see him (but not their stepmother).
       On August 24, 2015, the bureau filed a further memorandum to provide the court
with updated information. That memorandum detailed 19 counts for second degree
robbery and assault with a semiautomatic weapon with which petitioner was currently
charged. It also updated his criminal history, showing that he had actually been
convicted of 12 felonies between 1992 and 2011 for vehicle theft, forgery, second degree
robbery, attempted second degree robbery, and sale of a controlled substance.
Furthermore, the bureau changed its prior recommendation and recommended that
petitioner’s reunification services be terminated and that the court set a section 366.26
hearing.
       Petitioner attended the status hearing on July 23, 2015, and the contested
disposition hearing on August 24, 2015, via telephone from jail.
       At the July 23 session counsel for the minors opposed visitation with petitioner
until the boys’ therapist provided input about the advisability of visitation. She noted the
boys had been through “an extensive amount of loss, abandonment and trauma.” The

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court agreed with these concerns and ordered that there be no visitation with petitioner
until their therapist offered an opinion about whether visitation would be beneficial. The
court also commented that petitioner was facing a potential period of incarceration that
extended “well beyond” the time for reunification.
       At the August 24, 2015 disposition hearing, the minor’s counsel continued to
oppose visitation with petitioner—this time, based on the therapist’s reported
recommendation that the children were not yet sufficiently emotionally stable for
visitation with petitioner. Counsel clarified that ultimately she would support visitation
with petitioner—but not yet. She relayed the therapist’s opinion that visitation at this
point would be inappropriate because of its potential to “be disruptive to the stability [the
boys] are trying to establish in their grandmother’s home.” She explained her view to the
boys’ grandmother, in order that it be relayed to petitioner, that the sooner the boys were
able to address in therapy the grief and trauma they had already experienced, the sooner
counsel would support visitation with petitioner.
       Bureau social worker Barbara Crespo was called by petitioner’s counsel and
testified at the hearing. She explained that based on input from the district attorney she
had changed her initial recommendation, contained in the July 23, 2015 report, that
petitioner be given reunification services. The deputy district attorney suggested that the
pending case against petitioner was strong and he anticipated that petitioner would
remain incarcerated “for quite a while.”3 After Crespo consulted with her supervisors,
the bureau determined it would be in the children’s best interest to establish a permanent
situation, rather than wait for petitioner to be released. Crespo also noted that she had
asked the boys a few times about whether they wanted to have contact with their father;
although they indicated they wanted to see their sister, they never mentioned wanting to
see petitioner.



3
  When Crespo asked specifically how long the expected sentence would be, the district
attorney did not provide an exact duration, but said it would be “for a very long
significant amount of time.”

                                              4
       Petitioner argued that he had not yet had his preliminary hearing on the pending
charges, much less been convicted of them. He conceded that the court “could deny
reunification services” but requested that he be provided services if he were out of
custody. He also argued against the visitation limitation and sought to have at least
telephone contact with the children.
       The boys’ counsel supported the bureau’s recommendation to deny services,
pointing out that although petitioner had not yet been convicted of the pending charges,
he nonetheless had a criminal history that allows the court, pursuant to section 361.5,
subdivision (b)(12),4 to bypass reunification services.
       Before ruling, the court summarized the tragedy the boys have suffered: (1) losing
their mother, (2) their father being unavailable to care for them because he was
incarcerated, (3) losing their guardian/sister due to her own issues, and (4) being thrown
in with yet another caregiver with whom they had little prior relationship when petitioner
was again incarcerated. The court characterized petitioner as having “sold a pack of
goods” to the court—dealing with his children in court proceedings and the very same
day committing robberies. The court noted that in order to provide petitioner with
services, it would have to find by clear and convincing evidence that reunification was in
the boys’ best interests; however, there was “absolutely no evidence upon which to base
that finding.” Rather, it found that reunification services would be “highly detrimental to
these boys who are in desperate need of being in a forever home with a forever caregiver
who will think of nothing but these boys and provide them with permanency and stability
which they have long deserved.” Furthermore, the court decided to follow the mental



4
 Section 361.5, subdivision (b) provides, in pertinent part: “Reunification services need
not be provided to a parent or guardian described in this subdivision when the court finds,
by clear and convincing evidence, any of the following: [¶] . . . [¶] (12) That the parent or
guardian of the child has been convicted of a violent felony as defined in subdivision (c)
of Section 667.5 of the Penal Code.” Penal Code section 667.5, subdivision (c)(9)
defines “any robbery” as a violent felony. Thus, father’s 1994 conviction for second
degree robbery qualifies as a violent felony.

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health expert’s guidance and not allow contact with petitioner because it would be
detrimental for the children.
        After the court attempted to give petitioner notice of his hearing date and his right
to appellate review, it became apparent that he had previously hung up the phone.
Counsel, while in court, repeatedly attempted to re-establish the call, but was unable to
do so. The court then directed the clerk to serve notice of his right to file a writ petition
on petitioner at the Santa Rita jail.
        On September 2, 2015, petitioner filed notices of intent to file writ petition
regarding both boys. After the petition was filed on September 26, 2015, we issued an
order to show cause on September 28, 2015, and an opposition was filed on October 13,
2015.
                                        DISCUSSION
        The petition argues that (1) the juvenile court improperly shifted the burden of
proof from the bureau to petitioner when it applied section 361.5, subdivision (b)(12) and
that there is no substantial evidence to support the application of that section, (2) the
court improperly delegated judicial authority to the children’s therapist in deciding to
deny visitation and applied the incorrect legal standard, and (3) there is no substantial
evidence to support the finding that reunification services would be detrimental to the
children, pursuant to section 361.5, subdivision (e)(1).
        The standards by which the juvenile court determines and an appellate court
reviews the decision to deny reunification services are well established. In general, when
the juvenile court removes a child from a parent’s custody, it must order reunification
services to assist the parent overcome the problem(s) that led to the child’s removal. (In
re Lana S. (2012) 207 Cal.App.4th 94, 106.) However, if a parent falls into one of
various narrowly defined exceptions—“bypass provisions”—reunification services need
not be provided because doing so would entail an “unwise” use of government resources.
(Ibid.) If a bypass provision is applicable, the juvenile court must not order reunification
services unless it finds by clear and convincing evidence that such services would be in
the child’s best interest. (§ 361.5, subd. (c).) Our review of an order denying

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reunification services is for substantial evidence. (In re Harmony B. (2005) 125
Cal.App.4th 831, 839.) We must decide if the evidence relied on by the juvenile court is
“reasonable, credible, and of solid value, such that a reasonable trier of fact could find the
court’s order was proper based on clear and convincing evidence.” (Id. at pp. 839-840.)
       Petitioner’s first argument—that the court improperly shifted the burden of proof
to him because he had not yet been convicted of the pending charges and that there was a
lack of substantial evidence to support the application of section 361.5,
subdivision (b)(12), set out in footnote 4, ante—is frivolous. It is undisputed that
petitioner had previously been convicted of second degree robbery, which is defined as a
violent felony. It makes no difference that the pending charges against him have not yet
been proven. The application of this statute is based on petitioner’s prior conviction for
second degree robbery. There is neither shifting of the burden of proof nor an absence of
substantial evidence to support the court’s decision.
       Petitioner’s next argument—that the court improperly delegated its authority to
order visitation to the therapist—is not frivolous, but neither is it meritorious. Petitioner
argues correctly that the juvenile court may not delegate its decision to permit or deny
visitation to the child’s therapist. (See In re Nicholas B. (2001) 88 Cal.App.4th 1126,
1138.) Relying on In re Daniel C.H. (1990) 220 Cal.App.3d 814, 837, he argues that the
court must find that visitation would be detrimental to the child or jeopardize the child’s
safety to deny visitation. In In re Nicholas B., supra, at page 139 the court was
concerned with allowing the therapist to have a “veto power” over reunification services.
Nothing of the sort exists here. The therapist’s concern that these children, who had
experienced abandonment and loss, should experience a stable home with their
grandmother before recontacting petitioner, was conveyed to the court by the boys’
counsel. The court carefully weighed whether the boys really wanted to see petitioner or
felt they were obliged to say that was their desire. The court exercised its own discretion
to follow the therapist’s advice, finding that “it would be detrimental for the children to
have contact with” petitioner. Finally, it admonished the bureau, minor’s counsel, and
father’s counsel to bring the matter to the court’s attention, if the situation changed. In

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short, there was no improper delegation of decision-making authority; the court properly
made the decision, considering both the therapist’s opinion and the desires of the
children.
       Finally, there is no lack of substantial evidence to support the finding that
reunification services would be detrimental to the children. Section 361.5,
subdivision (e) directs that when a parent is incarcerated, the court is to consider
specified factors, including the child’s age, the degree of parent-child bonding, and the
length of the sentence, and order reasonable services unless it determines by clear and
convincing evidence that those services would be detrimental to the child. (§ 361.5,
subd. (e)(1); see also Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) In
arguing that there is a lack of substantial evidence, petitioner fails to discuss the very
evidence the juvenile court relied upon, specifically including the opinion of the boys’
therapist that their immediate need for stability outweighed the immediate need for
contact with petitioner. The apparent basis for that opinion—that the boys had lost their
mother, been taken in by their older sister, been taken away from that sister, gone to their
father who then was incarcerated, and then had to be cared for by their grandmother—is
undisputed. Petitioner also disregards the court’s reasonable inference that the boys,
when they said they wanted to be in contact with their father, were expressing what they
believed they should say, rather than what they actually felt, and the court’s finding that
father “is clearly an unfit parent in every respect.”5 The juvenile court’s decision was
supported by substantial evidence.
                                       DISPOSITION
       For the reasons given above, the petition for an extraordinary writ is denied. Our
decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i),
8.490(b)(2)(A).)



5
 The juvenile court found that petitioner, while representing himself to the court as a
good parent, was continuing his well-established life of crime, thereby manifesting “very
selfish,” “self-centered,” and “dangerous” behavior.
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                                _________________________
                                Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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A145703




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