Opinion
A152233
12-01-2017
CRAIG P., Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; J.R., a Minor, et al. Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. Nos. JV26386A; JV26387A; JV26388A)
Petitioner Craig P. is the father of three young boys who are dependents of the juvenile court in a Welfare and Institutions Code section 300 proceeding. Craig was provided family reunification services, but the court terminated his services after three months and set the matter for a section 366.26 selection and implementation hearing on December 11, 2017. Craig petitions for an extraordinary writ, contending the court erred in terminating services before the six-month review. He also contends he may have been entitled to 12 months of services as to his older children. Our review discloses no ground for relief, and we deny Craig's petition on the merits.
All statutory references are to the Welfare and Institutions Code.
BACKGROUND
The Family
The problems that gave rise to this proceeding came to the attention of the Marin County Department of Health and Human Services (Department) in late 2016. At the time, mother R.R. had two boys, J.R. (age 4) and D.R. (age 2) and was pregnant with a third. R.R. was married to M.R. (and had been since 2007), but she identified Craig as the children's biological father. Craig agreed he was the father, and paternity testing during this proceeding confirmed he is indeed the biological father of all three boys.
R.R. and M.R. also had a child together. That child, who is the half-sibling of the three dependents in this case, was the subject of a dependency proceeding in 2009. The parents were offered reunification services but failed to reunify, and their parental rights were terminated in 2010.
M.R. did not actively participate in this proceeding, and the paternity of the children is not in dispute. We thus omit details concerning him.
We similarly omit details concerning R.R. except where relevant to the issues raised by Craig's petition.
On October 28, Sonoma County Child and Family Services received a referral concerning the parents' failure to provide appropriate dental care for J.R. In September, he had been diagnosed with an abscessed tooth in need of extraction, but the parents did not follow through with the recommendation, and on October 28, he was hospitalized with a severe abscess and related cellulitis. He required extensive dental surgery, including two extractions, two fillings, and six crowns. A section 300 petition was filed in Sonoma County on November 28, but no action was taken on the petition because it was determined the family was in fact living in Marin County.
A social worker from the Department visited the family at the parking lot of a Novato recycling center where they were living in an RV. Despite that it was cold and rainy, J.R. and D.R. were wearing only t-shirts and underwear. The social worker observed dirty diapers, old food, and flies in the family's car. Inside the RV, she noted a strong smell of urine and feces, as well as unsafe and unsanitary conditions for the children.
The social worker also learned that in June 2015 and April 2016, J.R. was referred to North Bay Regional Center due to possible developmental and speech delays. He was four years old, did not speak more than four words, still wore diapers and used a bottle, and had violent outbursts. The parents had not followed through on the referrals.
Section 300 Petition
On December 7, after it was determined jurisdiction resided with Marin County, the Department filed a section 300 petition containing failure to protect allegations (subd. (b)) based on the parents' failure to follow up on dental care and the North Bay Regional Center referrals for J.R., as well as the squalid conditions in which the family was living. The petition also contained abuse of sibling allegations (subd. (j)), citing the parents' neglect of J.R. and D.R., as well as the 2010 termination of R.R.'s parental rights to her oldest child.
A detention hearing was held on December 8. Neither parent appeared. Despite this and the allegations in the petition, the court nevertheless did not detain the children, finding there were services available to prevent detention, ordering family maintenance, and continuing the matter for a jurisdiction hearing.
Subsequent Petition and Detention
Meanwhile, in December, R.R. had given birth in the family's SUV in a store parking lot. Neither R.R. nor Craig sought medical care for the baby (named C.P.) until two days after his birth, when R.R. began to experience pain and spiked a fever. Craig called 911, and the emergency responders found R.R. and C.P. in the back seat of the SUV, which was packed with personal belongings, garbage, and two dogs. R.R. and C.P. were admitted to the hospital, where both tested positive for methamphetamine. R.R. was treated for a uterine infection likely caused by giving birth in unsanitary conditions.
On December 9, all three children were removed from their parents' care. That same day, the Department filed a subsequent dependency petition as to J.R. and D.R., adding new failure to protect and abuse of sibling allegations, including that Craig and R.R. failed to appear at the detention hearing, were unresponsive to phone calls from the Department, did not want to engage with the Department, had no fixed residence, and planned to leave Marin County with the children as soon as possible. It also alleged that R.R. had been diagnosed with developmental delays and had a history of major depression, and Craig had experienced a series of transient ischemic attacks over the past six months that impaired his memory and cognition.
On December 14, the Department filed a section 300 petition concerning C.P., detailing the circumstances of his birth and alleging jurisdiction based on failure to protect and abuse of siblings.
At a detention hearing the next day, the juvenile court ordered the three boys detained and placed in foster care. J.R. and D.R. were placed together in one home and C.P. in another.
Jurisdiction
In a jurisdiction report, the Department recommended that the court take jurisdiction of the children based on the multiple circumstances alleged in the petitions. At the jurisdiction hearing, the parents requested a settlement conference, which the court scheduled but neither parent attended. Based on the discussions at the conference, the Department filed an amended, but substantively similar, petition.
At a February 27 jurisdiction hearing—which, again, neither parent attended—the court sustained the section 300, subdivision (b) and (j) allegations and ordered supervised visitation for both parents.
Disposition Report
In a report prepared for a March 13 disposition hearing, the Department described the problems requiring its intervention as follows: "The main problem requiring intervention is [R.R.'s] and [Craig's] [in]ability to meet the children's basic needs. The parents are still homeless and have struggled with housing security over the past year. More concerning is the parents' minimizing of [J.R.'s] behavioral needs and the fact that they neglected to follow up on referrals regarding possible developmental delays. They also neglected to follow up on critical dental care for [J.R.], which resulted in a traumatizing hospitalization for the child. It is essential that [R.R.] and [Craig] work on stabilizing their living conditions and address underlying causes that prevent them from meeting their children's needs. [R.R.] has suffered from depression for years and is currently not receiving mental health treatment. [Craig] shared with the Department that he suffers from mini strokes, but is not receiving medical care at this time, nor has he been assessed for his mental health. Furthermore, the parents may still be using drugs or alcohol, since both [R.R.] and her newborn baby tested positive for methamphetamines at the hospital following [C.P.'s] birth and neither parent has followed through on the Department's request that they complete random drug testing. If this is the case, drug use may further be impairing their judgment and functioning, and [R.R.] and [Craig] require the appropriate level of substance abuse treatment to address it.
"Finally, the Department recently became aware of domestic violence between [R.R.] and [Craig]. While [R.R.] maintains that these are new behaviors and that [Craig] was never violent in front of the children, this is a serious concern that the parents can hopefully address through classes or therapy." The Department added that R.R. had disclosed "several" incidents of domestic violence perpetrated by Craig in the preceding few weeks.
As to visitation, the Department reported that since the time of the children's removal, R.R. and Craig had been visiting J.R. and D.R. twice a week and C.P. thrice a week. They attended 20 of their 29 visits over three months. On March 2, however, based on concerns about domestic violence and given that Craig was at that time only an alleged father to J.R. and D.R. and was not listed on their birth certificates, Craig's visits were limited to C.P. only.
The Department recommended the court declare the boys dependents of the juvenile court and order family reunification services for both parents. The proposed case plan required R.R. and Craig to stay free from illegal drugs, demonstrate their ability to live free from drug dependency, and comply with all required drug tests; obtain and maintain a stable and suitable residence for themselves and their children; consistently, appropriately, and adequately parent their children; undergo psychological evaluations to identify their needs and participate in weekly therapy to address the recommendations of the evaluations and current stressors; and participate in domestic violence services.
First Addendum to the Disposition Report
On March 31, prior to the disposition hearing, the parties participated in a settlement conference. As a result of that conference, on April 12, the Department filed an addendum to its disposition report and made changes to the proposed case plan. As to Craig, it changed the psychological evaluation to a neuropsychological one. It continued to require that he submit to drug testing, but added that the requirement would be eliminated after two months of clean tests. It also eliminated the domestic violence treatment requirement for both parents, requiring instead they participate in couples' counseling. The Department agreed to continue providing Craig services, and the parents would return to visiting all three children together.
In the addendum, the Department also informed the court that on April 3 (after the settlement conference), it had learned Craig had again been arrested for a domestic violence incident involving R.R. He had been released from jail on or about April 5.
Second Addendum to Disposition Report
On April 28, the Department filed a second addendum to the disposition report. It again noted that at the March 31 settlement conference, the parties had agreed to remove domestic violence services from the case plan and instead require that the parents participate in couples' counseling. Since that conference, however, the Department had learned of four domestic violence incidents involving the parents, at least two of which resulted in injuries to R.R. and Craig's arrest. Craig was still in custody at that time. In light of those incidents, the Department no longer considered couples' counseling appropriate and believed instead that the reunification plan had to directly address the domestic violence issues. The proposed case plan thus once again required domestic violence services for the parents.
Disposition
At a May 18 disposition hearing, the court declared the children dependents of the juvenile court, ordered reunification services for R.R. and Craig, adopted the proposed case plan as amended, and continued the matter to November 13 for a six-month review hearing.
R.R. had obtained a temporary restraining order against Craig. A hearing on her request for a permanent order was set for the same day as the disposition hearing. At the hearing, R.R. withdrew her request for a permanent restraining order, and the temporary order was dissolved.
The Children's Section 388 Request to Change Court Order
On July 24, counsel for the children filed a section 388 request to change the court's disposition order. The request stated that "Neither parent is engaged in any of the court ordered services ordered by this court [sic], save for sporadic attendance at supervised visitation, the frequency of which has already had to be reduced once due to lack of attendance." Counsel requested that the court terminate reunification services for both parents, find that visitation was detrimental to the children, and set the matter for a section 366.26 permanency hearing.
Court-appointed special advocate James Findlay filed a report in which he agreed with the section 388 request. According to Findlay, he had spent many hours with the children in their respective foster homes, where they were being parented "with love and careful attention" to their needs. He characterized the changes in J.R. as "amazing." At the time of J.R.'s detention, he had significant delays in motor and verbal communication skills, was not toilet trained and was still using a bottle, displayed aggressive behaviors towards others, and struggled with emotional regulation and appropriate boundaries. After seven months in foster care, he was thriving. He was attending pre-school and taking karate lessons, and his communication skills were appropriate for his age. His negative behaviors had largely been mitigated, and he was openly affectionate with and bonded to his foster mother. Findlay noted, on the other hand, that R.R. and Craig had not engaged in any services and their attendance at visits had been sporadic. He believed the boys' lives should not be put on hold while the parents made no effort to rehabilitate.
Contested Hearing on the Section 388 Request
A contested hearing on the section 388 request was held on August 11. Craig was present in custody. While social worker Jill Maier did not know how long he had been in custody on this occasion, he had been taken into custody "a number of times and released the next day." His records indicated he had four open cases and had been in and out of custody, and his current stint in custody was recent.
When asked by the court how many days Craig had been in custody since May 24, Craig's counsel, after consulting with him, responded, "My client is unable to give me that information because of his neuropsychological limitations. He does not remember dates and times, so he doesn't have an exact figure." The court responded, "Well, the testimony, then, that I do have is that he has been in and out rather quickly, okay; and I do know that there's four open cases." Counsel did not dispute the court's statement.
Maier was the sole witness at the hearing. She testified that each time she met with the parents, she provided them with a copy of the case plan. She also provided them with visitation information and contact information for the service providers. As of the date of the hearing—nearly three months after disposition—Craig had not engaged in or completed any services.
The case plan required him to submit to a neuropsychological evaluation and participate in weekly therapy and a domestic violence program, but he had not made any progress on those requirements. On June 13, when he was out of custody, Maier had given him the contact information for the individual assigned to conduct his neuropsychological evaluation. The therapy was to address the issues identified in the evaluation, but it was also to address " 'current stressors,' " so Craig could have been participating in weekly therapy without yet having completed the neuropsychological evaluation. She did not know if he would be able to complete the evaluation while in custody.
Craig was also required to participate in random drug testing, but he had not scheduled an intake appointment to start the process. And there was no indication he had made progress on the requirement that he obtain suitable housing.
As to visitation, at the time of disposition Craig was afforded three visits per week with C.P. and two visits per week with J.R. and D.R. At the end of May, the visits were reduced to two per week with all three children due to the parents' lack of attendance. Craig had attended one of 13 visits in May, two of eight in June, one of six in July, and none in August.
Maier testified that Craig had the ability to participate in services while in custody. She believed he would have been given the contact information of the individual at the jail who could help him determine what services were available. Maier had not arranged any visitation while he was in custody because he did not want the children to visit him during a previous incarceration. She had not, however, inquired whether he wanted visits this time. Maier agreed that the Department is required to provide visitation for incarcerated parents but added that visits are difficult with young children, and even more so with a baby.
Based on this history, Maier did not believe Craig could complete his case plan in the three months that remained in the six-month review period. She agreed, however, that it was uncommon for a parent to complete all services within the first three months.
Following Maier's testimony, the court heard argument. Counsel for the children argued first, acknowledging that he rarely petitions for early termination of services, but given the ages of the children, their placement in fost-adopt homes, and the lack of any engagement by the parents, he believed termination of services was warranted. Moreover, he believed it was unreasonable to shift the burden to the Department "to scramble to keep up with where [Craig] is and how long he's been incarcerated" to try to arrange visits.
Counsel for the Department acknowledged the chance of reunification at the six-month mark was low, adding, "It would be an extreme understatement to say that the Department is not optimistic about the parents' likelihood of success by November." Nevertheless, it was the Department's position that termination after three months of services "may be premature," and the Department "probably would not have asked the Court to terminate services until the six-month review in November." Counsel was "far from certain what legal course to recommend to the Court" and encouraged it to review the pertinent cases on early termination before ruling. Counsel went on to discuss multiple cases relevant to the issue, including In re Aryanna C. (2005) 132 Cal.App.4th 1234 (Aryanna C.), In re Derrick S. (2007) 156 Cal.App.4th 436 (Derrick S.), and M.C. v. Superior Court (2016) 3 Cal.App.5th 838.
R.R.'s counsel argued that terminating services at three months was not appropriate because "we don't know a lot." She also argued that there were barriers to R.R.'s participation in services, such as being homeless, which makes communication difficult. Three months, counsel asserted, was not long enough to eliminate or diminish those barriers.
Counsel for Craig joined in county counsel's statement of the law and R.R.'s arguments. She also added that Craig's incarcerations did in fact add an extra obligation for the Department because it was still obligated to provide him services and visitation. She observed that it is very uncommon for parents to complete services within three months and claimed it is "sometimes difficult for parents to get traction in services early on in a case . . . ." Additionally, the reason for the neuropsychological evaluation requirement was because Craig had a medical condition that may have created a barrier to him pursuing services.
The court then engaged in a discussion with county counsel over the applicable law, and in particular whether the court had the authority to terminate at the three-month mark. Counsel agreed the court could do it but represented it was unusual for it to do so. The court then took the matter under submission.
The parties returned for a ruling on August 14. The court began its thorough and reasoned decision with a discussion of Aryanna C., supra, 132 Cal.App.4th 1234, Derrick S., supra, 156 Cal.App.4th 436, and amendments made to the Welfare and Institutions Code after those cases. After concluding it had the authority to terminate services early, it found that the evidence supported termination. There was, according to the court, "little doubt . . . that the parents' inaction has created a substantial likelihood that reunification will not occur. There does not appear to be any progress at all." The court went on to acknowledge that "sometimes parents are slow to get started. That happens. Sometimes those parents can pull it together and make it work." But, as to Craig, the court observed, not only had he "made no efforts whatsoever," he had "gone backwards," pointing to the post-detention incidents of domestic violence, his four open criminal cases, and the fact that he had been "in and out of jail," with no indication this pattern would stop anytime soon.
The court acknowledged that the safer course would be to deny the children's request and wait out the six-month period. But it decided it "must address the very real concern about these young children, their current placement and the ongoing nature of the treatment they are receiving and the progress that they have made, the need to have some degree of permanency to allow for it to continue. [¶] One child presented with developmental delays, which the parents had ignored for years. Another was born in the back of a cluttered, filthy car in a grocery store parking lot with a positive toxicology for meth. The boys were inadequately clothed and inadequately fed. The parents have made no discernible progress in addressing the issues that led to those conditions, i.e., the case plan."
In light of the foregoing, the court found there was clear and convincing evidence of a change in circumstances, namely, that the parents were not making progress in their services. Further, it found by a preponderance of the evidence the Department had provided reasonable services. Accordingly, the court terminated services, set the matter for a selection and implementation hearing on December 11, and advised Craig of his right to petition for an extraordinary writ. This timely petition followed.
The court also ordered that Craig was to have one visit per month, unless he was in custody, in which case visits would be detrimental to the children.
DISCUSSION
The Juvenile Court Did Not Abuse Its Discretion in Terminating Reunification Services
Craig makes two arguments, the first of which is that the juvenile court erred in terminating his reunification services before the six-month review hearing. We review the court's order granting the section 388 request for early termination of services for abuse of discretion. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.) "In exercising its discretion, the court has 'the ability to evaluate whether the parent will utilize additional services and whether those services would ultimately inure to the benefit of the minor.' [Citation.] We will not disturb the court's determination unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the juvenile court." (Ibid.) We review the court's factual findings for substantial evidence. (In re M.V. (2006) 146 Cal.App.4th 1048, 1059-1060.)
Before delving into the court's ruling here, we discuss the evolution of the law governing early termination of services. Like the trial court, we begin our analysis with Aryanna C., supra, 132 Cal.App.4th 1234, a case factually similar to this one. There, two children, both under one year old, were removed from their father's care due to his substance abuse. The court granted him reunification services, set a six-month review hearing, and also set an early progress review hearing in three months to monitor his compliance with his case plan. (Id. at pp. 1237-1238.)
At the progress review hearing, the social services agency sought termination of the father's services since he had twice tested positive for drugs and had failed to attend all but one visit. (Aryanna C., supra, 132 Cal.App.4th at p. 1238.) The court terminated reunification services and set the matter for a section 366.26 hearing. The father unsuccessfully petitioned for an extraordinary writ, the court terminated his parental rights, and the father appealed. (Ibid.)
On appeal, the court considered whether, in the case of a child under three years of age, the juvenile court had the authority to terminate reunification services prior to the six-month mark. (Aryanna C., supra, 132 Cal.App.4th at p. 1237.) After a lengthy analysis of section 361.5, which governs the provision of reunification services, as well as other applicable statutes and rules of court (id. at pp. 1239-1242), the court held that the statute affording six months of reunification services to the parent of a child under three established a maximum, not a minimum, time period for services. This was so in part because the applicable statute stated that court-ordered services " 'may not exceed' " a period of six months. (Id. at p. 1242, quoting former § 361.5, subd. (a)(2) (italics added).) Thus, the Court of Appeal concluded, the juvenile court had "the statutory authority, on a proper record and after conducting a hearing, to exercise its discretion and terminate reunification services at any time." (Id. at pp. 1237, 1242.)
Two years later, we decided Derrick S., supra, 156 Cal.App.4th 436, where we considered a similar question, this time in the context of a child over the age of three, for whom the statute generally contemplates 12 months of reunification services. Agreeing with the reasoning of Aryanna C., we held that its holding was "equally applicable to dependents over the age of three" because "[n]o statute or rule of court restricts a juvenile court's discretion to order less than the maximum amount of reunification services when confronted with a parent who is unwilling or unable to benefit from additional reunification services, or if for other reasons the likelihood of reunifying the family is faint." (Id. at p. 439.)
In the wake of Aryanna C. and Derrick S., however, the Legislature amended the Welfare and Institutions Code to narrow the juvenile court's discretion to terminate services before the six- and 12-month reviews. Specifically, it amended section 361.5 to clarify that reunification services "shall be provided" for 12 months for a child three years of age and older (§ 361.5, subd. (a)(1)(A)) and for six months for a child under three years of age (id., subd. (a)(1)(B)). And it amended section 361.5, subdivision (a)(2) to confirm that those mandatory reunification periods can only be cut short, with limited exceptions not applicable here, upon the filing of a motion pursuant to section 388, subdivision (c). (M.C. v. Superior Court, supra, 3 Cal.App.5th at p. 849.) Section 388, subdivision (c), in turn, identifies two circumstances in which early termination may be requested: first, where a change of circumstances or new information satisfies one of the conditions for bypassing services altogether (§ 388, subd. (c)(1)(A)) and, second, where "The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent's or guardian's failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan" (id., subd. (c)(1)(B)).
Those circumstances are: "(A) That the child was removed initially under subdivision (g) of Section 300 and the whereabouts of the parent are still unknown. [¶] (B) That the parent has failed to contact and visit the child. [¶] (C) That the parent has been convicted of a felony indicating parental unfitness."
The intent of the amendments, according to the Assembly Committee on Human Services, "was to afford parents 'a minimum (emphasis added) of 6 months of reunification services for children under three and 12 months of reunification services for children over the age of three.' [Citation.] It further explained, 'recent appellate cases allowing termination of reunification services prior to the end of these timeframes . . . circumvent due process requirements and are inappropriate.' " (M.C. v. Superior Court, supra, 3 Cal.App.5th at p. 846, quoting Assem. Com. on Human Services, Analysis of Assem. Bill No. 2341 (2007-2008 Reg. Sess.) as amended Mar. 28, 2008, at pp. 2-3.) And the committee specifically identified Aryanna C. and Derrick S. as such appellate cases. (Analysis of Assem. Bill No. 2341, supra, at p. 3; for a comprehensive discussion of Aryanna C., Derrick S., the report of the Assembly Committee on Human Services, and the amendments to sections 361.5 and 388, see generally M.C. v. Superior Court, supra, 3 Cal.App.5th at pp. 844-849.)
Thus, in accordance with sections 361.5 and 388 as amended, upon the filing of a section 388 request on behalf of the children, the court here had the authority to terminate Craig's services if it found by clear and convincing evidence that his action or inaction created a substantial likelihood that reunification would not occur, including his failure to visit his children and his failure to make any progress on his case plan. (§ 388, subd. (c)(1)(B).) The court made such a finding here, and we conclude the finding was supported by substantial evidence.
The undisputed evidence showed that other than minimal visitation, Craig had made no progress whatsoever on his case plan. Maier testified that each time she saw the parents, she provided a copy of the case plan and contact information for the service providers. For example, two months prior to the hearing and when Craig was out of custody, she had given him the name and number of the psychologist who was assigned to conduct his neuropsychological evaluation. There was no indication he ever made any attempt to contact him or any other service provider. Craig had not begun drug testing, therapy, or domestic violence services, and there was no indication he had taken steps to find suitable housing.
Additionally, Craig's history of domestic violence was alarming, and the domestic violence incidents were ongoing. There were four incidents in April alone, and Craig had four open criminal cases as of the date of the hearing. In the court's words, Craig was sliding "backwards," rather than making progress.
Finally, Craig's visitation record was abysmal. He had attended one of 13 visits in May, two of eight in June, one of six in July, and none in August. In other words, he had visited the children only four times since the beginning of May—out of 28 scheduled visits.
In light of all this, we conclude substantial evidence supports the juvenile court's finding that Craig's inaction created a substantial likelihood reunification would not occur. And we further conclude the court did not abuse its discretion in terminating services. Craig's arguments to the contrary do not persuade us otherwise.
Craig points to his incarceration, objecting that it created "a significant barrier to his participation in his reunification services . . . ." As he correctly notes, a parent's incarceration is not a basis for denying services. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406 ["reasonable reunification services must be offered to an incarcerated parent 'unless the court determines those services would be detrimental to the minor' "].) That, however, is not what happened here. According to the court records, Craig was in and out of custody following the disposition hearing, and his incarceration at the time of the section 388 hearing was recent. He presented no evidence disputing this. Thus, he spent time out of custody when he could have availed himself of the services offered to him. Additionally, Maier testified that while in custody, Craig would have been given the contact information of the individual in the jail that could help him access whatever services were available to him. She received no indication he engaged in services while in custody.
Craig also argues that he had not "failed entirely to visit his children." Indeed, not "entirely." But section 388 does not require that the parent "entirely" fail to visit, but rather that his actions or inactions have created a substantial likelihood that reunification will not occur.
Craig also asserts that his circumstances did not come within one of the bypass exceptions that permits early termination pursuant to section 388, subdivision (c)(1)(A). This is correct but irrelevant, as the children's request—and the court's decision—was based not on subdivision (c)(1)(A) but on subdivision (c)(1)(B).
Additionally, Craig contends that the court relied on Aryanna C. and Derrick S., despite that the 2008 legislative amendments to sections 361.5 and 388 "vitiated the most significant holdings of both Aryanna C. and Derrick S. . . ." This argument misconstrues the court's decision. It indeed cited Aryanna C. and Derrick S., but it discussed them as part of the evolution of the governing authority, expressly noting that the Welfare and Institutions Code was amended after those cases. It did not, as Craig would have, cite those two cases with approval as if they constituted the current state of the law. And as Craig himself acknowledges, the current state of the law permitted the court, upon the children's section 388 request, to terminate services if Craig's action or inaction created a substantial likelihood that he was not going to reunify with his children.
Craig also cites the Department's apparent unwillingness to join in the children's motion, claiming this suggests the Department "recognized the problem in early termination of the parents' services in this case . . . ." While the Department may not have joined in the motion, county counsel agreed the court could terminate services and conceded it was unlikely Craig would complete his reunification plan in the following three months, stating, "It would be an extreme understatement to say that the Department is not optimistic about the parents' likelihood of success by November."
Lastly, Craig contends the court erred by solely focusing "on the protection of the children and the provision of a permanent and stable home if the children could not be returned to the parents in a reasonable time," and in doing so "fail[ing] to acknowledge that family preservation is the first priority when dependency proceedings are commenced." We do not disagree that family preservation is the first priority when dependency proceedings are commenced. (See, e.g., In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.) In recognition of that priority, Craig was provided reunification services to aid him in remedying the problems that led to the Department's intervention. But the overall objective of the dependency system is "the protection of abused or neglected children and the provision of permanent, stable homes if they cannot be returned to parental custody within a reasonable time. [Citation.] The general purpose of dependency law is to safeguard the welfare and best interests of children. [Citations.]" (Aryanna C., supra, 132 Cal.App.4th at p. 1241.) And section 388 recognizes that there exist situations where family preservation, and thus reunification services, must give way to the welfare and best interests of the dependent child. The juvenile court's conclusion that this is such a situation was not an abuse of discretion.
The Court Had the Authority to Limit Craig to Six Months of Services as to All Three Children
In his second argument, Craig contends he may have been entitled to 12 months of services as to J.R. and D.R. This argument is based on section 361.5, subdivision (a)(1)(C), which authorizes the juvenile court to limit reunification services to six months for all siblings—even those over the age of three and thus generally subject to 12 months of services—if one sibling was under three years old at the time of removal. He contends the court should not have applied this "sibling group" provision to limit his services to six months as to all three boys because the provision exists for purpose of giving the court the ability to maintain a sibling group together in a permanent home, and here, C.P., who was under three years old, was placed in a different home than his older brothers. Thus, he contends, the court erred in assuming all three boys were part of a sibling group such that the six-month limit on reunification services applied to them all. Craig did not raise this argument below, and has thus forfeited his right to challenge the court's order on this basis. (See, e.g., Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [arguments not asserted below are forfeited on appeal]; (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8.229, p. 8-172.) Further, D.R. was also under the age of three. Thus, section 361.5, subdivision (a)(1)(C) authorized the court to treat him and J.R. as a sibling group.
DISPOSITION
Craig's petition for an extra ordinary writ is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Richman, Acting P.J.
We concur:
/s/_________
Stewart, J.
/s/_________
Miller, J.