Filed 2/3/14 In re Audrey P. CA2/4
                          NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR
In re AUDREY P. et al.,                                                     B250935

Persons Coming Under the Juvenile Court Law.                                (Los Angeles County
                                                                             Super. Ct. No. CK01702)

RODNEY P.,

         Petitioner,

         v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

         Respondent;

LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.


         ORIGINAL PROCEEDINGS in extraordinary writ. Philip Soto, Judge. Petition
granted and peremptory writ issued.
         Law Offices of Katherine Anderson, Anuradha Khemka and Jennifer Pichotta for
Petitioner.
         No appearance for Respondent.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Stephen D. Watson, Associate County Counsel, for Real Party in Interest.
                                 INTRODUCTION
      Petitioner Rodney P. (Father), the father of Audrey P. and K.P., minors
coming under the juvenile court law (Welf. & Inst. Code, § 300),1 seeks an
extraordinary writ (Cal. Rules of Court, rule 8.452) to review a juvenile court order
terminating his family reunification services and setting a permanency hearing
under section 366.26 for 120 days after his six-month review hearing (§ 366.21,
subd. (e)). We find that substantial evidence does not support the determination
that Father did not make substantive progress in his treatment plan, and we thus
issue a writ of mandate directing the court to vacate its order setting a section
366.26 hearing and terminating Father’s reunification services, and to issue a new
order continuing the case to the 12–month review hearing under section 366.22,
subdivision (f) and reinstating family reunification services until the date of that
hearing.


               FACTUAL AND PROCEDURAL BACKGROUND
Jurisdictional Findings and Case Plan
      On November 2, 2012, the Los Angeles County Department of Children and
Family Services (DCFS) filed a section 300 petition on behalf of Audrey and K.,
based on illicit drug use by Father and their mother, Kelly W. (Mother). On
October 30, 2012, local building code enforcement, accompanied by the police,
conducted a walk-through of all the units in Mother’s and Father’s apartment
building due to their deplorable condition, and observed 17-month old Audrey and
three-month old K. sleeping unattended on a dirty living room floor. When the
police entered the apartment, the parents emerged from their bedroom, and Father
appeared to be under the influence of narcotics. A search of the bedroom resulted

1
      All further references to code sections are to the Welfare and Institutions Code.


                                            2
in the seizure of syringes and a methamphetamine pipe. The parents were arrested
for child endangerment.
      The children were ordered detained and placed in foster care and both
parents pled no contest to dependency jurisdiction under subdivision (b) of section
300. The court sustained allegations that Mother had a 16-year history of
substance abuse, which had resulted in five older siblings with other fathers being
permanently removed, and she was a current abuser of methamphetamine which
rendered her periodically incapable of providing regular care of the children.
Jurisdiction was sustained as to Father on the ground that he had a history of
substance abuse, was a current abuser of illicit drugs, and on occasion was under
the influence of illicit drugs while the children were in his care.
      At the dispositional and jurisdictional hearing held on December 11, 2012,
monitored visits were ordered for Mother and Father, three times a week for three
hours per visit. The parents were ordered not to visit at the same time. Family
reunification services were not ordered for Mother, pursuant to section 361.5,
subdivisions (b)(10), (11), and (12), based on her failure to reunify and the
termination of her parental rights with respect to her older children, and based on
her continued drug use.2 However, family reunification services were ordered as to
Father. Father was ordered to attend parenting counseling, Alcoholics Anonymous
or Narcotics Anonymous meetings, and alcohol and drug counseling, and was
ordered to submit to random alcohol and drug testing one time each week. The
case plan filed on the date of the hearing noted the required drug and alcohol
program, weekly drug testing, parenting programs, and monitored visitation. The
court set a six-month review hearing for June 11, 2013.


2
      Mother is not a party to this appeal.


                                              3
Father’s Progress Under Case Plan
      On December 14, 2012, a caseworker interviewed Father over the phone.
Father was friendly and cooperative but was often interrupted by Mother, who
could be heard in the background responding to questions for him. Father was not
able to answer specific questions regarding his children’s daily care, but rather
gave very vague and generalized answers.
      Father was provided with referrals to various programs on December 7,
2012, but did not make use of them for three months, instead stating that he wanted
a program in Long Beach and wanted to participate in a program that would allow
him to live with Mother. On January 3, 2013, Father reported that he and Mother
were wait-listed for a residential program that was willing to take them together.
On March 6, 2013, with an April 2013 criminal court date approaching at which he
was supposed to demonstrate that he was enrolled in parenting classes, Father
enrolled at the Substance Abuse Foundation. Mother did not enroll in any
treatment plan.
      The first scheduled visit was January 2, 2013, which Father missed, but he
then visited the children on January 10, 15, 29, 31 and February 5, 7, 19, 21, 27
and 28, 2013, usually arriving at the visits with Mother and each of them
separately visiting the children for two hours. Father missed a total of three visits
in February and early March 2013, each time failing to make it to the foster agency
on time. At a visit in early February 2013, Father briefly fell asleep while holding
the sleeping baby on the couch. He apologized and told the monitor that he was
“so tired”; when Mother entered the room to get something he told her he wanted
to end his visit early, and she stated she knew he was tired because he had been at
the hospital all night because Mother’s oldest daughter had had a baby. At another
visit in February, Father had a hard time dealing with both children by himself
during the visit at the foster agency, and dozed off for a few minutes during the

                                          4
visit with the monitor present. When he switched off with Mother at that visit he
told her that he had had a rough time, that both kids wanted his attention, and that
he and Mother needed to return to court to request that they be permitted to visit
the children together. At a subsequent visit in February, he again told Mother that
it was too stressful for him to visit with the children by himself, and stated that he
was going to call the caseworker the next day. The caseworker reported that on
more than one occasion, Father asked if he and Mother could visit the children
together, because Mother had been the primary caretaker and “this feeding and
changing of the diapers is too much.”
      In these early visits, apparently following Mother’s lead, Father fed Audrey
hard snacks not suitable for an infant, and fed both children unhealthy and sugary
snacks and drinks. At a medical examination following Audrey’s detention, it was
discovered that Audrey had high blood sugar levels, and the physician
recommended that her sugar intake be limited. In addition, a letter from K.’s
physician dated February 21, 2013 was provided to Father and Mother stating that
K. should be eating baby food and formula, and not table foods or regular milk,
juices or soda.
      Father enrolled in a residential treatment program on March 6, 2013. It does
not appear that visits with the children were scheduled for the first six weeks of his
treatment. From April 16 through July 11, 2013, however, Father visited with the
children two or three times a week, for two hours each time, and never missed a
visit, except for one occasion when he had a doctor’s appointment. Mother was
not present at these visits.
      The monitor’s report from visits in April and early May 2013 demonstrates
that Father behaved appropriately during the visits, was nurturing and affectionate
with the girls and provided appropriate supervision, and complied with the plan for
healthy eating. Although he struggled at times with dividing his attention with the

                                           5
girls given their different needs, he was “learning to multitask, i.e. he spoon fed K.
while reading a book to Audrey.” “He readily tended to their needs,” including
changing their diapers and keeping them clean. Except for one visit on May 9,
2013, when Audrey appeared anxious and upset and kept a distance from Father,
both girls engaged with him and appeared comfortable in his presence. Father’s
appearance had improved, and his demeanor was energetic and content throughout
the visits.
       The monitor’s report for the visits from mid-May 2013 to mid-July 2013
reported that Father continued to arrive on time, behave appropriately, and be
nurturing and affectionate with the children. Audrey no longer reacted with
anxiety and was happy to see Father. At a July 2, 2013 visit, Father brought
healthy snacks for Audrey such as fresh fruit, sugar free cookies, and yogurt. He
did not set limits on how much fruit Audrey could eat, but when the monitor
suggested he put away the bowl of fruit, he quickly complied and engaged Audrey
in an activity. On July 11, 2013, he brought a “Lunchables” pizza snack for
Audrey. When the monitor pointed out that the snack had too much sugar, he
readily put it away. Although the visits went well, the foster parents reported that
afterwards Audrey would cry a lot, be clingier than normal, and have excessive
tantrums.
       Father was not drug-tested prior to his enrollment in residential treatment.
His first drug test on the date he entered the treatment facility, March 6, 2013, was
positive for THC and methamphetamines. However, Father subsequently tested
negative for drugs each week through the last test on record, in early July 2013.3


3
        DCFS notes that Father did not drug-test at DCFS headquarters on April 4, April
17, May 10, and May 29, 2013 but he was drug-testing at his residential facility during
that time period.


                                            6
      While enrolled in the residential treatment program, Father attended 16 out
of 16 parenting classes and also attended individual counseling, classes on anger
management, self-esteem, drug and alcohol education, and relapse prevention, 12
step meetings, as well as parenting, life skills, feelings, boundaries, family, and
“commitment to change” groups.


Six-Month Review Hearing on July 24, 2013
      A. DCFS Recommendations
      In advance of the six-month review hearing, DCFS filed an interim review
report noting that the visits between Father and the children were going well and
no concerns were indicated, except that it was noted that the monitor sometimes
still had to stop Father from overfeeding the children, that sometimes he was
unaware of the sugar content of foods he offered Audrey, and the foster mother
was still reporting that Audrey was very clingy before and after the visits with her
Father, was still having tantrums, and needed therapy after the visits. DCFS noted
Father’s negative drug tests since he enrolled in drug treatment and his consistent
participation in counseling and groups.
      Despite Father’s negative drug tests and consistent visits and attendance at
counseling, DCFS recommended that the court set a section 366.26 hearing in 120
days and terminate Father’s reunification services, rather than continue services for
Father until a 12-month hearing. DCFS expressed concern that Father did not
enroll in a treatment program until soon before his April 2013 criminal court date,
where he would have to show proof of enrollment in parenting classes.
      Moreover, DCFS noted that it had concerns about Father’s relationship with
Mother and about whether he would protect the children from her. He tried to
cover up the fact that she was incarcerated on April 26, 2013 for transporting
controlled substances, made excuses for her failure to attend visits with the

                                           7
children, and did not seem to recognize her failure to undergo treatment for her
drug addiction. As recently as June 6, 2013, Father had informed DCFS
caseworkers that he planned to get his children, wait until the case closed, and then
he and Mother would get back together and care for the children together. He also
had stated on numerous occasions that he had never cared for the children alone
and would like the visits to be combined with Mother’s so that she could help him
with changing diapers and feeding the children. DCFS had first raised the issue of
Father’s continued involvement with Mother in its June 11, 2013 status review
report, which indicated that Father stated that he would like to raise the children as
a family with Mother, but if DCFS or the court did not think that Mother could be
part of the family, Mother had agreed to stay out and let Father raise the children.
      Finally, DCFS opined that Father did not understand that the children had
medical problems (K. had preliminarily been diagnosed with fetal alcohol
syndrome and was receiving occupational therapy for “emerging” fine motor
functioning, and Audrey had sugar level issues and somewhat delayed speech) and
needed to follow a specific diet. On the other hand, the foster family was
dedicated to closely following the nutritional plan for the children and addressing
their special needs, and had indicated they would be prepared to adopt the children
if family reunification services were terminated.


      B. Father’s Testimony
      Father testified at the hearing that he was still enrolled in his residential
treatment program and was continuing to participate in all its programs and submit
to drug tests. He had realized that he had a serious drug problem, but he had
learned to deal with it, and had learned ways to live better for his children and
himself and to be a better father. He indicated that he had a sponsor with whom he
met two or three times a week, and he attended AA/NA meetings three or four

                                           8
times a week. He further indicated that currently he was the assistant sober living
manager at the treatment facility, which he expected would soon become a paid
position with on-site housing and free childcare.
      Father testified that his plan was to get his children back and that he was
able to care for the children himself. With respect to the reports by DCFS that
Father was telling the social workers that he planned to reunify with Mother,
Father testified that “[i]f the mother decides to better herself or to go into a
program which will benefit her, I would consider it if the court will consider it.
But right now, it’s just me and my children.” Asked if he had planned to move out
of state with the children, possibly with Mother, he stated that he had considered it,
so long as Mother was able to get reunification, but it was no longer part of his
plan, given the change in circumstances due to his job offer at the treatment
program. He indicated that he no longer wanted to return to Mother.


      C. Foster Mother’s Testimony
      The foster mother, Candice V., testified that on multiple occasions, and as
recently as June 6 or June 11, 2013, Father stated that he wanted to be a family unit
with Mother. She also testified that until March 2013, Mother and Father would
arrive at and leave visits together. She further indicated that in February and
March 2013, Father told her that he needed Mother to help care for the kids, but he
had not made such statements recently.


      D. Dependency Court’s Ruling
      The court found that Father had made exemplary progress in his case plan,
stating, “As to Father’s participation, I don’t think I’ve seen anybody who has
participated as regularly or much as he has.” The court indicated that it counted 30
negative tests in a row from his program, and stated, “I almost never have anybody

                                            9
that does that well. . . . I disagree with County Counsel that he hasn’t tried. I
agree that he’s tried.” Although the court expressed some concern that Father
could relapse, as he admitted he had done so on at least one occasion in the past,
the court believed Father was “working his way towards sobriety.” The court
stated, “I’ve never seen anybody do as well as he’s done in his programs. I’m very
impressed with how he’s done. I’m impressed with the sponsorship. I’m
impressed with him getting a job [at the treatment facility] and apparently even a
management role there.”
      However, the court concluded that Father had not clearly indicated that he
was going to sever his relationship with Mother, who still posed a risk to the
children because her drug habits had not been alleviated. Although Father stated in
court that his priority was getting the children back and that he no longer planned
to reunify with Mother, the court expressed concern that it was difficult to verify
whether Father truly intended to discontinue his relationship with Mother.
      The court thus found Father to be in partial compliance with the case plan.
The court found that there existed no substantial probability that the children may
be returned to Father within six months, and ordered family reunification services
for Father to be terminated. Pursuant to section 366.21, subdivision (e), the court
set a section 366.26 permanency hearing for 120 days later, on November 19,
2013. Monitored visitation for Father for four hours per week was continued.
      Father filed a timely notice of intent to file a writ petition.


                                    DISCUSSION
Statutory Framework
      Section 361.5, subdivision (a), and section 366.21, subdivision (e), set forth
special procedures for dependency cases involving children who are age three or
younger when they first enter foster care. For such young children, family

                                           10
reunification services are provided to eligible parents or guardians “for a period of
six months from the dispositional hearing as provided in subdivision (e) of Section
366.21, but no longer than 12 months from the date the child entered foster care[4]
as provided in Section 361.49.” (§ 361.5, subd. (a)(1)(B).)5 Section 361.5,
subdivision (a)(3) further provides that “[i]n cases where the child was under three
years of age on the date of the initial removal from the physical custody of his or
her parent or guardian . . . , the court shall inform the parent or guardian that the
failure of the parent or guardian to participate regularly in any court-ordered
treatment programs or to cooperate or avail himself or herself of services provided
as part of the child welfare services case plan may result in a termination of efforts
to reunify the family after six months.”
       At the six-month review hearing, if the juvenile court finds it cannot return
the child to the parents because of a substantial risk of detriment to the child,
section 366.21, subdivision (e) provides, in relevant part: “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 schedule a
hearing pursuant to Section 366.26 within 120 days. 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 . . . , the court shall continue the case to
the 12–month permanency hearing.”

4
      Pursuant to section 361.49, Audrey and K. are deemed to have entered foster care
on December 11, 2012.
5
       At the 12-month review hearing, the court has discretion to extend reunification
services up to a maximum of 18 months from the date of the child’s removal if there is a
substantial probability the child will be returned to the parent before the 18-month period
ends, or the services offered to the parent were unreasonable. (§ 361.5, subd. (a)(3).)


                                            11
       “Thus, there are two distinct determinations to be made by trial courts
applying the third paragraph of section 366.21, subdivision (e). First, the statute
identifies specific factual findings—failure to participate regularly and make
substantive progress in the court-ordered treatment plan—that, if found by clear
and convincing evidence, would justify the court in scheduling a [section 366].26
hearing to terminate parental rights. . . . [¶] The second determination called for
by the third paragraph of section 366.21, subdivision (e), protects parents and
guardians against premature [section 366].26 hearings. Notwithstanding any
findings made pursuant to the first determination, the court shall not set a [section
366].26 hearing if it finds either (1) ‘there is a substantial probability that the child
. . . may be returned to his or her parent . . . within six months . . .’; or
(2) ‘reasonable services have not been provided . . .’ to the parent. (§ 366.21, subd.
(e).) In other words, the court must continue the case to the 12-month review if it
makes either of these findings.” (M.V. v. Superior Court (2008) 167 Cal.App.4th
166, 175-176 (M.V.), italics omitted; see also Daria D. v. Superior Court (1998) 61
Cal.App.4th 606, 613 (Daria D.) [“[T]he court may not schedule a section 366.26
selection and implementation hearing at the six-month stage unless it finds by clear
and convincing evidence the parents failed to regularly participate in reunification
services. Even absent compliance, however, the court must continue the case if it
finds ‘a substantial probability that the minor . . . may be returned to his or her
parent . . . within six months or that reasonable services have not been
provided[.]’”].) Stated conversely, a court may set a section 366.26 hearing and
discontinue reunification services after the six-month review hearing only if it
finds by clear and convincing evidence that the parent failed to participate
regularly and make substantive progress in his or her court-ordered treatment plan,
and even if the parent failed to make sufficient progress by that juncture, the court
may discontinue services only if there was not a substantial probability that the

                                            12
child may be returned to the parent within six months and only if reasonable
services were provided to the parent. (§ 366.21, subd. (e).) If the child is not
returned and the court does not set a section 366.26 hearing, the court must order
that any reunification services previously ordered will continue to be offered to the
parent or legal guardian. (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009,
1016; Cal. Rules of Court, rule 5.710(b)(4).)
      We note that in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845,
which addressed how to measure the six-month period between the first and
second review hearings, the Supreme Court stated that during the period from the
six-month hearing to the 12–month review hearing, “a heightened showing is
required to continue services. So long as reasonable services have in fact been
provided, the juvenile court must find ‘a substantial probability’ that the child may
be safely returned to the parent within six months in order to continue services.
(§ 366.21, subd. (e).)” The Supreme Court thus suggested that a finding of
substantial probability of return was required at the six-month hearing in order to
continue services, and did not refer to the circumstance where a parent had made
substantial progress in his or her treatment plan but it was not substantially
probable that the child may be returned by the 12-month hearing.
      However, at the time of that Supreme Court decision, section 361.5 provided
for a maximum of six months of services to parents of children removed when they
were under three years old, unless there was a substantial probability the child
would be returned to the parent’s custody (former § 361.5, subd. (a)(2); see In re
Jesse W. (2007) 157 Cal.App.4th 49, 62-63 [also applying prior version of section
361.5, subdivision (a)(2) and noting that the provision limited the provision for
continued services found in section 366.21, subdivision (e)]). We conclude that
under the current, applicable statute, which provided for services “for a period of
six months . . . but no longer than 12 months” (§ 361.5, subd. (a)(1)(B); Stats.

                                          13
2012, ch. 35, § 48), the showing of a substantial probability of return is a necessary
condition only for continuing services at the 12-month hearing (§ 361.5, subd.
(a)(3)), but at the six-month hearing services may be continued where (1) the
parent has demonstrated a substantial probability that the child may be returned
within six months; (2) reasonable services were not provided; or (3) the parent has
regularly participated and made substantial progress in his or her treatment plan.
      This construction of the statutory scheme not only is dictated by the plain
language of the statute, but it is consistent with the Legislature’s stated purpose in
permitting early termination of reunification services for children removed at a
very young age: “to provide more timely resolutions for very young children in
cases ‘“with a poor prognosis for family reunification, (e.g., chronic substance
abuse, multiple previous removals, abandonment, and chronic history of mental
illness),”’ without vitiating the strong interest in reunifying families or prematurely
cutting off the rights of parents who are making substantial efforts to reunify. . . .
‘[S]ervices may be terminated at the six-month stage only when “parental unfitness
is so well established that there is no longer ‘reason to believe that [a] positive,
nurturing parent-child relationship[ ] exist[s]’ [citation], and the parens patriae
interest of the state favoring preservation rather than severance of natural familial
bonds has been extinguished.”’” (M.V., supra, 167 Cal.App.4th at pp. 182-183,
italics added, quoting Daria D., supra, 61 Cal.App.4th at p. 613.) Sections 361.5,
subdivision (a)(1)(B) and 366.21, subdivision (e) “merely provide the court with
the option to terminate reunification efforts after six months where the parents
have made little or no progress in their service plans and the prognosis for
overcoming the problems leading to the child’s dependency is bleak.” (Daria D.,
supra, 61 Cal.App.4th at p. 612.)
      We review findings made under section 366.21 for substantial evidence.
(James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) “We do not pass

                                           14
on the credibility of witnesses, attempt to resolve conflicts in the evidence or
evaluate the weight of the evidence. Rather, we draw all reasonable inferences in
support of the findings, view the record most favorably to the juvenile court’s
order, and affirm the order even if other evidence supports a contrary conclusion.
[Citation.] The appellant has the burden of showing the finding or order is not
supported by substantial evidence.” (In re Megan S. (2002) 104 Cal.App.4th 247,
251.) This standard of review applies even where the juvenile court was required
to base its determination on the heightened “clear and convincing” standard of
proof. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880–881.)


Father’s Progress in Treatment Plan
      Father contends that substantial evidence did not support the determination
that he failed to participate regularly and make substantive progress in his court-
ordered treatment plan. We agree.
      Father’s court-ordered case plan required that he participate in parenting
counseling, Alcoholics Anonymous or Narcotics Anonymous meetings, and
alcohol and drug counseling, and to submit to random alcohol and drug testing one
time each week. Further, Father was ordered to participate in monitored visitation
with the children.6
      The undisputed evidence demonstrated that once Father entered treatment he
had perfect attendance at his parenting classes, participated in substantial group
and individual counseling relating to substance abuse, and attended multiple NA
meetings each week. With respect to visitation, although Father’s attendance was
somewhat sporadic before he entered his treatment program in early March 2013,

6
       The court ordered that Father’s visits be separate from Mother’s, although that
requirement was not included in the case plan.


                                            15
the record demonstrates that he missed only one visit, for a doctor’s appointment,
from the period from April through early July 2013. The monitor reported that he
was appropriate, nurturing, and affectionate during these visits. Moreover, his
visits qualitatively improved over time, as he evolved from struggling in January
and February 2013 to provide care simultaneously to both young children on his
own, to being able to multi-task in order to meet both children’s needs by July
2013. He also became more educated about, and learned to comply with, the
children’s nutritional requirements over the course of the visits.
      The court indicated that it would agree that Father was entitled to more
services based on his progress if it focused only on Father’s participation in
reunification services. The court made note of Father’s 30 consecutive negative
drug tests since he entered a residential treatment program in March 2013, and
indicated its belief that Father was “working his way towards sobriety.” The court
further stated that it had “never seen anybody do as well as he’s done in his
programs.”
      The court nevertheless decided to set a section 366.26 hearing and to
terminate reunification services, based on its understanding that Father was
required to demonstrate at that six-month juncture a substantial likelihood that he
could get the children back, and its conclusion that Father could not do so because
he had not clearly demonstrated an intent to sever his relationship with Mother,
who had not been successful in overcoming her drug problem.
      As discussed above, if Father participated regularly and made substantive
progress in his court-ordered treatment plan, the court did not have discretion
under section 366.21 to schedule a section 366.26 hearing within 120 days of the
six-month review hearing and to terminate reunification services. (§ 366.21, subd.
(e); M.V., supra, 167 Cal.App.4th at pp. 175-176.) Neither the case plan (nor any
court order for that matter) required Father to sever his relationship with Mother as

                                          16
a condition for continuing reunification services until a 12-month hearing, and
there is no evidence in the record that Father was even counseled as such until just
before the review hearing. Father thus cannot be found to have failed to make
progress under that case plan by failing to end the relationship. With that issue
removed from consideration in deciding whether early termination of services was
warranted, and given the court’s own findings and the undisputed evidence in the
record regarding Father’s exemplary progress, substantial evidence did not support
the finding that Father did not regularly participate and make substantive progress
in his court-ordered treatment plan.
      Respondent argues that under cases such as In re Joseph B. (1996) 42
Cal.App.4th 890 (Joseph B.), compliance with the treatment plan is only one factor
to be considered, and such compliance does not guarantee return of the child where
other issues, such as Father’s continued relationship with Mother, remain
unresolved. In Joseph B., supra, 42 Cal.App.4th 890, the court held that “the
question whether to return a dependent child to parental custody is not governed
solely by whether the parent has corrected the problem which required court
intervention; rather, the court must consider the effect such return would have on
the child. If returning the child will create a substantial risk of detriment to his or
her physical or emotional well-being (§§ 366.21, subds. (e) & (f), 366.22, subd.
(a)), placement must continue regardless of whether the detriment mirrors the harm
which had required the child’s removal from parental custody (§§ 300, subds. (a)-
(j), 361, subd. (b)).” (Id. at p. 894.) However, as Father points out, Joseph B.
concerned the issue of whether the minors should be returned to their parents’
custody, a determination that rightly focuses on more than just the parents’
compliance with the case plan. By contrast, the issue here is whether Father
“failed to participate regularly and make substantive progress in a court-ordered
treatment plan” (§ 366.21, subd. (e)), such that a section 366.26 hearing may be set

                                           17
at the earliest possible point and reunification services discontinued because he is
not making substantial efforts to reunify. As discussed above, we conclude that
substantial evidence does not support a determination that he failed to participate
regularly and make substantive progress in his case plan, and thus the court erred
in setting a section 366.26 hearing and terminating reunification services.7
      Father has conceded that as of the six-month hearing, he had not ameliorated
all the problems that led to the children’s removal, including his relationship with
Mother. At the 12-month hearing, the court may appropriately focus on whether
Father has gained insight into the risk that Mother’s drug addiction poses to the
children, and whether Father has sufficiently demonstrated that he has severed his
relationship with Mother and intends to protect the children from her.




7
       Because we find that Father was entitled to continued services until the 12-month
hearing based on his regular participation and substantive progress in his treatment plan,
we need not consider whether he alternatively could have qualified for continued services
because there existed a substantial probability that the children may be returned to
Father’s custody by the 12-month hearing.

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                                   DISPOSITION
             Let a peremptory writ of mandate issue directing the juvenile court to
vacate its July 24, 2013 order terminating reunification services and setting a
section 366.26 permanency hearing and to issue a new order (1) continuing the
case to the 12–month review hearing under section 366.22, subdivision (f) and (2)
reinstating family reunification services until the date of that hearing.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             SUZUKAWA, J.




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