Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-01337
Jones, P.J.
Aaron H. (petitioner) is the father of Aaron H. (Aaron), who was made a dependent of the Contra Costa Juvenile Court. Pursuant to California Rules of Court, rule 8.452, petitioner seeks extraordinary writ review of the order terminating reunification services and setting a permanency planning and implementation hearing for Aaron under Welfare and Institutions Code section 366.26. Petitioner contends there was insufficient evidence to support the trial court’s findings that Aaron could not be returned to him without substantial risk of detriment, that he could not reunify with Aaron if given additional time, and that the Department of Children and Family Services (Department) provided adequate reunification services. He also contends he was not given correct notice of the six-month status review hearing.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Aaron was born in 2006. On July 19, 2006 the Department commenced proceedings to have him made a dependent of the juvenile court. (§ 300, subd. (b).) The petition alleged that Mother had a substantial history and current pattern of substance abuse, which impaired her ability to care for Aaron adequately. Specifically, it alleged that Mother tested positive for amphetamines and opiates on May 27, 2006; Aaron was born with positive toxicology for methamphetamine; on the day he was born Mother tested positive for methamphetamine and admitted using drugs throughout her pregnancy.
As to petitioner, the petition alleged he failed to protect Aaron from Mother’s ongoing substance abuse during her pregnancy and failed to protect him because his son tested positive for methamphetamine at birth. On July 20, Aaron was ordered detained.
At the August 31, 2006 contested jurisdictional hearing, the court sustained the allegations as to Mother. It dismissed the allegations as to petitioner, pursuant to his agreement to “test on tier 1 for 90 days” and to participate in a 52-week domestic violence program or a 12-24 week anger management program.
The Department’s report for the contested dispositional hearing scheduled for September 28 contained the following information: Aaron was currently placed in a licensed foster home. Petitioner had a 1999 conviction for violation of a court order to prevent domestic violence and a 2002 conviction of corporal injury on a spouse/cohabitant, and he had been arrested for other criminal offenses. He currently tested clean for all substances but had a history of illegal drug use. There were several incidents of domestic violence between him and Mother, and he had a history of domestic violence in prior relationships. He was present when Mother physically assaulted the grandmother of her older children, and he participated in relocating Mother’s two-year-old son without the Department’s consent. He showed a genuine love and concern for Aaron, had maintained contact with the Department, and immediately engaged in services. He had visited Aaron three or four times, but visits were difficult to coordinate because of his work schedule. The Department recommended that the court order family reunification to Mother and petitioner.
The reunification services case plan called for petitioner to undergo counseling, refrain from further domestic violence, address issues associated with anger management, successfully complete a parenting education program, participate in random drug/alcohol testing and test negative for six months, participate in a weekly Alcoholics Anonymous/Narcotics Anonymous program, and refrain from using drugs, alcohol, and nonprescription medications.
On October 23, 2006, the Department informed the court and all parties that Aaron had been placed with his paternal grandparents on October 9, and that they were willing to adopt him or become his legal guardians if he was not reunified with his parents.
For reasons not apparent in the record, the contested hearing was not completed until December 14, 2006. The court found that reasonable efforts had been made to prevent Aaron’s removal from his parents’ home, and there was clear and convincing evidence that his welfare required that physical custody be removed from his parents. It ordered the Department to make appropriate child welfare services available to the parents pursuant to the September 28 reunification plan. It scheduled a six-month review hearing for March 1, 2007.
Six-Month Review Report
The Department’s status review report for the six-month review was prepared by caseworker Cheryl Estrella on February 20, 2007. It contained the following information:
On February 6, 2007, petitioner told Estrella that Mother, with whom he had been living, had gone to Los Angeles. He said they had been arguing over her positive drug tests and his reluctance to marry her at present because he wanted to focus on their case plans so they could have Aaron returned to them. He believed these were the reasons Mother had gone to Los Angeles. Petitioner had been attending therapy session since mid-January 2007. He completed his anger management program, where he demonstrated a good understanding of the class. He completed a parent education program, had been undergoing drug testing, and had attended 12-step meetings with Mother. He had tested negative for illicit substances and alcohol since August 23, 2006, and told Estrella he no longer associated with people who used illicit substances. He had remained in contact and cooperated with Estrella and had complied with court orders. He had weekly visits with Aaron, supervised by Aaron’s paternal grandparents. The grandparents reported that Aaron appeared to enjoy the visits. Petitioner and Mother continued to state they wanted to work on reunifying with Aaron, but Estrella was concerned that they had minimized Mother’s absence and failure to remain in contact with her.
Estrella recommended continuation of family reunification services because the parents might be able to address the issues of absence and lack of contact with continued therapy and the completion of their case plans.
March 1 Hearing
On February 27, the Department learned that Mother and petitioner had been involved in a domestic violence dispute, which may have resulted in Mother having a miscarriage. It requested a continuance of the March 1 hearing to investigate the matter and review its recommendations. The court rescheduled the hearing for April 25 and ordered the Department to prepare a new status report at least 10 days before the April 25 hearing if it changed the recommendations it had made in its February six-month status report.
April 12 Memorandum
On April 12, the Department submitted a memorandum to the court and all parties. It stated it was now recommending termination of reunification services and setting a section 366.26 hearing. The memo contained the following information:
On February 27, Mother’s former outpatient counselor informed Estrella that on February 22 Mother and petitioner began to argue. The argument arose when Mother announced she was moving out of their house so she could focus on her case plan without having to worry about petitioner’s compliance with his own case plan or his comments about her compliance. Mother was then either kicked out of the house or departed on her own accord. Petitioner had informed Estrella on February 23 that he was going to Fresno to take a side job, but he had mentioned the argument between him and Mother. On February 28, Mother and petitioner telephoned Estrella to say Mother had miscarried and requested a continuance of the March 1 hearing. Mother told Estrella she had returned from Los Angeles on February 26 to “‘talk things through’” with petitioner when she started hemorrhaging. Estrella was unable to speak with Mother alone about Estrella’s concerns of possible domestic violence because petitioner was also on the telephone. Petitioner minimized their argument, saying there was some pushing and shoving, but they “‘didn’t go all out.’” Mother did not suffer a miscarriage, as she and petitioner had suspected, but Estrella did not know whether Mother was still pregnant because she had not been in contact with Estrella.
On March 8, 2007, petitioner left a message for Estrella that he could not submit to a drug test because he was out of town. On March 14, he contacted her and she informed him that an on-demand test was required that day. Petitioner had on other occasions left town and informed Estrella by leaving a message instead of discussing with her how leaving town affected his compliance with his case plan.
On April 4, 2007, petitioner informed Estrella that he injured his back at work and had decreased mobility which prevented his going to work or any appointments. On April 5, he left a message for her saying he was leaving town with friends. On April 9, he left a message saying he was taking off for a few days, but stated he had not missed any visits with Aaron except when Aaron was sick. Estrella noted that petitioner had an opportunity to make up this visit, but chose not to. She also noted that he missed several therapy appointments, despite his therapist’s attempts to reschedule, and that his injured back had not prevented him from leaving town. Petitioner told Estrella he was unaware of Mother’s whereabouts or whether she was still pregnant, but he hoped to continue his relationship with Mother.
Petitioner’s parents informed Estrella he was arrested on April 12, 2007.
Despite the progress petitioner had made with his case plan, the Department remained concerned about his ability to care for Aaron. Estrella commented that, notwithstanding his completion of an anger management program, he “minimized” as “‘some pushing and shoving’” a serious incident which may or may not have led to Mother’s “threatened” miscarriage. Therefore, the Department now recommended termination of reunification services and the setting of a section 366.26 hearing to determine the appropriate plan for Aaron.
April 25 Hearing
a. Testimony of Caseworker Estrella
Estrella expanded on her February status report to testify that the progress report from petitioner’s parenting class stated that his progress was satisfactory and he grasped the concepts.
She had not observed petitioner during his visits with Aaron, but knew he visited Aaron on Sundays for one hour. Estrella learned from Aaron’s paternal grandfather/foster father that Aaron seemed to be bonding with petitioner, but that petitioner would leave early on some visits, saying he wanted to make up the time on another visit. Aaron’s paternal grandmother expressed concern that petitioner did not attempt to have a make-up visit for the visit he missed due to Aaron’s illness. The grandmother also told Estrella that she was no longer comfortable supervising petitioner’s visits with Aaron. Petitioner told the grandmother that he did not have time to visit Aaron. Petitioner missed a visit with Aaron on March 24.
None of the drug tests actually administered between August 23, 2006 to March 29, 2007 was positive. Petitioner missed a drug test on February 17, saying he was out of town. He missed a test on March 8, and had no tests in April. Missed tests are considered positive tests.
Estrella had met with petitioner occasionally, but meetings were difficult because he was often out of town. He explained to her that he was sometimes out of town for work and sometimes “just get away and be with friends and to get focused.” He did not provide her any documentation for out-of-town work. He told her on April 4 that he injured his back at work and was on a modified work schedule. He told her he had trouble getting to appointments; she instructed him to telephone her whenever he had to miss an appointment. Petitioner left a telephone message for Estrella on April 5 saying he was in a lot of back pain and was going out of town.
Petitioner participated in individual therapy from January 22 to March 19, 2007. The therapist’s February 12 case notes expressed concern that petitioner was perhaps a codependent. On March 14, the therapist told Estrella that petitioner had missed at least four or five appointments. The therapist expressed concern that petitioner was minimizing domestic violence, referring specifically to the February “pushing and shoving” incident between him and Mother. The therapist said Aaron was “in serious trouble” if the domestic violence issue was not addressed.
During an April telephone conversation petitioner told Estrella that he was still “with” Mother but was “conflicted” about being with her because of her drug use.
Estrella received an April 11, 2007 police report that petitioner had entered private property without permission.
The Department was concerned that petitioner still seemed to have issues of anger management and domestic violence, even though he had completed his anger management class. On February 28, petitioner and Mother told Estrella that Mother was “hemorrhaging as a result of the pregnancy[.]” They had since told her that Mother has been in and out of the hospital. Estrella had a March 14 hospital report that Mother was at risk for a miscarriage. Mother told Estrella that day, April 25, that she was pregnant and petitioner was the father.
b. Police Report of April 11 Incident
The police report of petitioner’s April 11 arrest was admitted into evidence. It stated:
N.G. telephoned petitioner on April 11 and told him to leave Mother alone. Petitioner replied that he was coming over to N.G.’s residence to “kick his ass.” Petitioner drove his truck onto N.G.’s property about 20 minutes later. When petitioner refused N.G.’s order to depart, N.G. hit the truck’s driver’s side window with a bat, shattering it. N.G. then ran into his house and called “911.”
According to N.G., petitioner yelled at him to come outside, and he hit the front door of the house with an unknown object before driving away. According to petitioner, N.G. fired a shotgun from inside the house, and petitioner then drove his truck out of N.G.’s yard and called “911.”
Both men said Mother was in the house during the altercation and drove away before the police arrived.
The police found two holes in the front door of the house and a metal pole lying next to the residence. They found no evidence of a shot fired from inside the residence. They arrested petitioner for criminal threats, burglary and trespassing.
c. Petitioner’s Testimony
Petitioner testified that Aaron (then nine months old) called him “Dada, ” and that he made up the visit he had missed with Aaron the following week. He denied leaving visits early.
He and his therapist were working on the issues of his grief from a friend’s suicide and his relationship with Mother. He notified Estrella that he had injured his back, which would make getting to appointments difficult. He had returned to work doing light duty. He did not have a drug test in April because his “letter” came up only once, and he was out of town on errands on that day. He left a message for Estrella on Thursday, April 19, that he would be out of town; when she returned his call on Friday, April 20, he had already departed. He has provided Estrella copies of all the prescription medications he takes. He has fulfilled all the elements of his case plan.
He and Mother learned in February that she was pregnant. He acknowledged that he pushed and shoved Mother in February because “I told her that she needed to leave, just leave me alone. I want my son back.” He did nothing more.” She fell because she tripped over something, not because he pushed her with the intent of making her trip. He acknowledged pushing her once or twice previously. He does not think he needs counseling in anger management or domestic violence.
Asked if he was “angry” on April 11 when he went to N.G.’s house, he testified: “I was upset. Angry and upset is two different things.” Then asked if he thought it was appropriate to confront N.G. on that day, he testified: “As a man, and I went there to talk to him because he owed me money, too. And he came out swinging the baseball bat at my truck when I was in the truck.” When N.G. told him that Mother wanted him to leave the property, he left.
Decision and Order
The court found that Father had not made substantive progress on his case plan. Although he completed the anger management and parenting classes, he continued to engage in domestic violence with Mother, was inconsistent with drug testing and therapy, and did not use all his allotted time to visit Aaron. It did not find credible Father’s testimony about being unable to keep therapy and drug testing appointments because of his work injury, in light of evidence he left town to be with friends “days after this terrible injury . . . .”
After commenting that it had “thought [petitioner] would be able to get it together, but he hasn’t shown me that, ” the court terminated his services, adopted the revised recommendations of the Department, made them the findings and orders of the court, and scheduled a section 366.26 hearing for August 8. The recommendations included findings by clear and convincing evidence that the Department had provided petitioner reasonable services designed to aid him overcome the problems which led to Aaron’s initial removal and continued custody; that Aaron’s return to petitioner’s custody would create a substantial risk of detriment to Aaron’s safety, protection or physical or emotional well-being; that petitioner had failed to participate regularly in the court-ordered treatment plan; and that there was not a substantial probability that Aaron would be returned to petitioner’s custody by August 31, 2007, even with extended reunification services.
DISCUSSION
Generally, when a child is removed from his parents’ custody, the juvenile court shall order a social worker to provide child welfare services to the parents. (§ 361.5, subd. (a).) If, as here, the child was under the age of three years when he was initially removed from his parents’ custody, court-ordered services may not exceed a period of six months from the date he entered foster care. (§ 361.5, subd. (a)(2).)
The juvenile court is required to hold a review hearing six months after the child entered foster care. (§ 366, subd. (a); In re Christina A. (2001) 91 Cal.App.4th 1153, 1159-1164.) At the six-month review hearing, the court shall order the child returned to his parents’ physical custody unless it finds by a preponderance of the evidence that his return would create a substantial risk of detriment. (§ 366.21, subd. (e).) A parent’s failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (§ 366.21, subd. (e).) If the child was under age three on the date of the initial removal, and the court, at the six-month rreview hearing, 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. (§ 366.21, subd. (e).)
1. Reasonable Reunification Services
Petitioner contends there is inadequate factual support of the court’s finding that he was provided reasonable reunification services.
If a child is not returned to his parent, the court must determine whether reasonable services, designed to aid the parent in overcoming the problems that led to the initial removal and continued custody of the child, have been provided or offered to the parent. (§ 366.21, subd. (e).) The trial court makes this finding under the clear and convincing standard: is the evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind? (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) When a finding that reunification services were reasonable is challenged in the appellate court, the appellate court, bearing in mind the heightened burden of proof in the trial court, reviews the finding under the substantial evidence standard: is there any substantial evidence, including legitimate inferences, to support the finding? (Ibid.)
Petitioner argues that “the problem with the services provided seems to be that they did not adequately address the problems that [the Department] felt [he] had.” He is apparently referring to the “problems” conveyed in the Department’s April 10 memorandum and at the April 25 review hearing. He describes the Department’s characterization of these problems as “not lik[ing] the fact” of (1) his leaving town to find work without prior permission, (2) his relationship with Mother, and (3) the number of anger management and individual therapy sessions he had completed by the review date. He argues that if the Department perceived such problems, it should have responded by putting a check-in mechanism in place, requiring couples counseling, and assisting him in enrolling sooner in anger management and counseling.
In evaluating the reasonableness of reunification services, the standard is not whether the services offered were perfect or the best that might have been provided, but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Aaron was initially removed from petitioner’s custody because petitioner failed to protect him from Mother’s ongoing substance abuse during her pregnancy. Implicit in the court’s August 31, 2006 dismissal of this allegation pursuant to his agreement to participate in drug testing and a domestic violence or anger management program was a recognition by petitioner that his own drug use and angry or violent behavior may have contributed significantly to his failure to protect Aaron in utero. The disposition report prepared September 27, 2006 stated that he engaged in services “almost immediately” (inferentially, immediately after Aaron was removed on July 20), had been referred to anger management and parenting classes and would begin them soon. The Department would also be making a referral for counseling. The case plan prepared the same day, and subsequently ordered by the court, called for him to complete individual counseling, and called for couples counseling if his therapist agreed thereto. It called for him to participate in a domestic violence program in which he would address issues associated with anger management; the anger management counselor would set the length of the program from 12 to 24 weeks, or longer.
According to the status report and updated case plan prepared February 20, 2007 for the scheduled March 1 six-month review, petitioner had completed his anger management program on January 23, 2007, and the facilitator reported that he had demonstrated a good understanding of the class. Since mid-January he had been attending weekly individual therapy sessions and was making progress in therapy. He kept in regular contact with caseworker Estrella and informed her of any concerns or changes.
However, as the Department’s April 12 updated memorandum and Estrella’s April 25 testimony imply, Estrella learned after she had prepared the six-month status report that petitioner and Mother had been involved in a physical altercation in late February when she was pregnant, and that petitioner had missed several therapy sessions, despite the therapist’s efforts to reschedule the sessions.
We conclude the evidence, viewed in the light most favorable to the court’s finding, contains substantial support that the Department offered Father reasonable reunification services. A principal concern of the Department was domestic violence. Petitioner was provided an anger management program, the length of which was to be determined by the counselor. When petitioner completed the program in January 2007, there had been no reports that he had engaged in domestic violence, and the facilitator reported that he understood the classes. Inferentially, the facilitator, the person in the best position to evaluate how long a program petitioner needed, concluded he did not need any more classes. Given the facilitator’s conclusion, the Department could reasonably believe there was no reason to extend them. Petitioner was offered individual therapy; his failure to avail himself of proffered services does not constitute inadequate services. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Furthermore, under the reunification plan, the Department deferred to the expertise of the therapist to determine the suitability of couples counseling. Nothing in the record suggests petitioner’s therapist recommended couples counseling, and the court could reasonably infer that, taken together, the individual therapy, the parenting class, and the anger management class would address many of the issues that would be covered in couples counseling.
Petitioner’s argument that the Department should have set up a mechanism for checking in and out if it did not like his leaving town without permission is a strained characterization of the Department’s status reports and the testimony. According to the reports, petitioner maintained regular and frequent telephone contact with his caseworker. The concern expressed in the Department’s reports was the lack of candor petitioner exhibited during those telephone check-ins and his failure to appreciate the adverse consequence to reunification when he went out of town
The court was entitled to conclude that petitioner was offered sufficient services designed to address the problems that contributed to Aaron’s removal and continuing out-of-home custody, and that these services were not unreasonable because petitioner did not fully avail himself of them or regressed to his former behavior after a seemingly successful completion of a provided service.
2. Substantial Risk of Harm on Aaron’s Return to Petitioner
Petitioner contends there is insufficient evidence to support the court’s finding that Aaron could not be returned to him without a substantial risk of detriment. He bases his contention largely on the evidence that he completed most of the components of the reunification plan, e.g., anger management class, parenting class, clean drug tests, visits with Aaron.
The court must consider compliance with the reunification plan, but successful completion of the program does not guarantee the child’s return. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143; In re Joseph B. (1996) 42 Cal.App.4th 890, 899-901.) “[T]he court must also consider the [parent’s] progress and [his] capacity to meet the objectives of the plan . . . .” (54 Cal.App.4th at p. 1143.) If return of the child to the parent would be detrimental, out-of-home placement “must continue regardless of whether that detriment mirrors the harm which had required the child’s removal from parental custody.” (42 Cal.App.4th at p. 900.) “. . . [T]he question whether to return a child to parental custody is not governed solely by whether the parent has corrected the problem that required court intervention; rather, the court must consider the effect such return would have on the child.” (Id. at p. 901.)
A significant reason for removing Aaron from petitioner’s custody was petitioner’s history of domestic violence and violent crimes and his presence when Mother assaulted her older children’s paternal grandmother. Despite petitioner’s participation in services designed to address these issues, petitioner had a physical altercation with Mother while she was pregnant. According to his therapist, he had minimized this incident, inferentially failing to recognize it as possible domestic violence. He had also pushed her once or twice previously. He had resorted to threats of physical assault and to property damage in response to N.G.’s directive to leave Mother alone. He denied needing counseling related to domestic violence or anger management, but his therapist was concerned for Aaron’s safety should the domestic violence issue not be resolved. The therapist reported that petitioner had missed several sessions in March. This is substantial evidence by which the court could make a finding under the clear and convincing standard that, notwithstanding petitioner’s compliance with some requirements of the reunification plan, Aaron’s safety would be at risk were he returned to petitioner.
3. Additional Time for Reunification
Petitioner contends there was insufficient evidence to support the court’s finding that there was not a substantial probability Aaron would be returned to his physical custody with six more months of reunification services.
At the six-month hearing the court must determine whether the Department has shown by clear and convincing evidence that it offered the parent reasonable services. (§ 366.21, subd. (e) & (g)(2); Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 595.) As previously noted, section 366.21, subdivision (e) provides that if a court finds by clear and convincing evidence at the six-month hearing that the parent of a child under three years of age “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.” The sentence immediately following states: “If, however, the court finds there is a substantial probability that the child who was under the age of three years on the date of initial removal . . . may be returned to his or her parent . . . within six months . . . the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e).)
The burden of proving the parent’s failure of participation and progress lies with the Department, which bears the burden of proof at review hearings. (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 779; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 554, fn. 13.) Thus, if, at the six-month hearing the Department is advocating not returning the child to the parent, termination of reunification services and setting the matter for a permanency planning hearing, and if the Department proves by clear and convincing evidence that reasonable services were provided and the parent failed to participate and progress with a plan, the burden necessarily shifts to the parent or other interested party to present evidence of either a substantial probability of the under three-year-old child’s return to the parent within six months or that reasonable services were not provided.
Here, as discussed, there was sufficient evidence to support the court’s findings of reasonable services and failure to participate/progress in the reunification plan. On this record, there is no evidence that, notwithstanding those findings, there was a substantial probability of Aaron’s return to petitioner by August 31, 2007. Consequently, there is sufficient evidence, in the form of negative evidence, to support the court’s finding that there was no substantial probability that Aaron would be returned to petitioner in another six months.
4. Notice of Hearing
Petitioner contends he was not given correct notice of the April 25 hearing. He does not dispute that he was informed of the time and place of the hearing. He argues he was denied due process because he was not notified that the April 25 hearing would be an actual contested hearing on the Department’s revised recommendation to terminate reunification services, rather than a hearing simply to set a contested hearing if he chose to contest the revised recommendation.
On February 28, the Department notified counsel for all parties that it would be requesting a 30-day continuance of the six-month review hearing scheduled for March 1 because it became aware on February 27 of a domestic dispute between petitioner and Mother that may have resulted in Mother’s miscarriage, and it wanted to investigate the matter and review its recommendations. At the March 1 hearing, at which petitioner and his attorney were present, the court continued the matter until April 25, with the requirement that if the Department would be changing its recommendations, it must prepare a “new report” at least 10 days in advance of the April 25 hearing.
The Department’s “new report” was its “updated memo” to the court, dated April 12, that recommended termination of reunification services. The updated memo was copied to all counsel and parties and identified itself as pertaining to the April 25 hearing. Insofar as petitioner is not now claiming he was unaware of the hearing date, he was inferentially served with the updated memo before the April 25 hearing date.
When the matter was called on April 25, the court announced it as “a contested review, ” and neither petitioner nor his attorney objected to going forward with the hearing that day. Moreover, once the Department’s attorney informed the court it was submitting the matter on its exhibits, the court then called on petitioner’s attorney, who called caseworker Estrella as a witness and proceeded to examine her. As a consequence of petitioner’s acquiescence in allowing the proceeding to go forward without objection, he waived his right to claim error on appeal. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502 & citations therein.) Moreover, the record discloses that petitioner, through his attorney, was fully prepared at the April 25 hearing to contest the Department’s revised recommendations.
Nor did Mother or her attorney object.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal.Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Petitioner is barred in any subsequent appeal from making further challenges to orders terminating reunification services and setting a hearing under section 366.26. (§ 366.26, subd. (l).) Because the section 366.26 hearing is set for August 8, 2007, our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: Simons, J., Gemello, J.
The order also applied to Aaron’s mother, but she has not sought writ review.