Opinion
A154034
06-14-2018
M.H. et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700616)
M.H. (Father) and A.H. (Mother) (collectively, Parents) have both petitioned for extraordinary writs (Cal. Rules of Court, rule 8.452), challenging the juvenile court's orders, at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)), terminating their reunification services and visitation and setting a section 366.26 hearing as to their now three-year-old son, E.H. (Child). We will deny the petitions on the merits.
All statutory references are to the Welfare and Institutions Code. All references to rules are to the California Rules of Court.
I. BACKGROUND
A. May 17 , 2017: Child Is Detained
On May 19, 2017, the Contra Costa County Children & Family Services Bureau (Bureau) filed a petition pursuant to section 300, subdivision (b)(1), reporting that it took Child, then two years old, into protective custody on May 17, 2017, after Mother was arrested for child endangerment. According to witness reports summarized in the Bureau's detention and jurisdiction report: Mother, accompanied by Child, had arrived late for an appointment at a county welfare office, argued rudely with staff and other clients, called people names, and then yelled and pounded on a door after leaving her purse in an interview room, until a sheriff's deputy escorted her from the building. While walking to her car, Mother slapped Child in the face several times with an open hand. After two women in the parking lot spoke to Mother about her behavior, Mother got into her car, pulled out of her parking space, blocked the women in their parking space, got out of her car, and approached the women in their car. A sheriff's deputy and a public safety officer intervened. Mother then returned to her vehicle, sped around the parking lot, and blocked the women's vehicle at the parking lot entrance. Child was in the car at the time, and was not restrained by a car seat or seat belt.
Mother later admitted her driver's license had been suspended and her car was unregistered.
The sheriff's deputy stopped and arrested Mother for child endangerment. He reported he found marijuana in Mother's car and the car smelled strongly of marijuana. When asked who could come to pick up Child, Mother suggested a neighbor, whose last name she did not know, and refused to identify anyone else. A social worker who had arrived by then, and was speaking to the sheriff's deputy in the parking lot, reportedly twice saw Mother pound on her car window, raise her middle finger, and shout at Child to say, "Fuck the police."
The Bureau reported that a social worker telephoned Father and visited his house attempting to notify him there would be a hearing on May 22, 2017, but was not able to reach him. The social worker left a letter with information and a card at Father's house, and mailed him a certified letter. But Father did not appear at the hearing.
Interviewed on May 19, 2017, after she was released from custody, Mother told social workers she did not have a history of mental health issues or drug use, only used marijuana occasionally, had not taken drugs on the day of her arrest, and had no criminal history. On being provided a copy of her criminal history, which included seven arrests (but no convictions) between October 5, 2015 and May 17, 2017—for petty theft, obstructing arrest, disorderly conduct, prostitution, shoplifting, and willful cruelty to a child—Mother reportedly became upset, raised her voice, and demanded to have Child returned to her. The social workers told Mother they wanted to refer her for mental health services, drug treatment, and parenting classes, but Mother reportedly declined, "stating she would get her own services" through her health care provider.
A social worker also interviewed Mother's mother (Maternal Grandmother) and stepfather on May 19, 2017. They advised they had concerns about Mother's mental health, that Mother suffered severe highs and lows, but that she "refuse[d] to follow through with any assistance or resources," and they did not know where she lived.
At the detention hearing on May 22, 2017, the juvenile court removed Child from parental custody, placed him in a foster home, and ordered drug and alcohol testing, substance abuse treatment, and parenting classes for Mother. On May 24, 2017, the court granted Mother one hour of professionally supervised visitation weekly, to be suspended if Mother demonstrated aggressive or erratic behavior, and appointed a guardian ad litem for her; Father did not appear.
B. June-August 2017: Jurisdictional and Dispositional Hearings
On June 7, 2017, the juvenile court held a jurisdictional hearing. Mother was present and Father also appeared. The court granted Father supervised visitation for one hour a week, referred him to the Legal Aid Society to obtain counsel, and scheduled a contested jurisdictional hearing for July 5, 2017.
On July 5, 2017, the juvenile court sustained all counts of the petition, adjudged Child to be a dependent child, raised Father's status to presumed father, granted Father unsupervised visits, and set a dispositional hearing for August 16, 2017.
The Bureau subsequently filed a disposition report recommending the juvenile court adjudge Child to be a dependent of the court and order reunification services for Parents. The report disclosed that Father had been twice arrested (in June 2016 and May 2017) for domestic battery, but had no convictions. The report also disclosed that, on June 5, 2017—two days before Father first appeared in this matter—he was served with a temporary domestic violence order, which, among other things, required him to surrender all firearms. Four days later, on June 9, 2017, the report continued, Father was stopped for speeding, while driving with a suspended license, and was arrested for unlawfully transporting a loaded firearm (a semiautomatic pistol). Father's car reportedly had "a strong odor of marijuana," and loose marijuana was found on the rear passenger floorboard; Father said he did not own a marijuana card. Father acknowledged he made a mistake in driving the vehicle, the Bureau reported, and said he knew he was transporting the firearm improperly.
Father was the licensed owner of the gun and said he was on the way to a shooting range with friends when arrested.
The Bureau reported it was unable to obtain background information from Mother and Father. Mother failed to meet with the social worker for an interview on the topic and Father declined to provide such information. According to multiple providers, the Bureau reported, Mother said she was sexually abused when she was four. Maternal Grandmother told the Bureau she was not aware of any abuse. She said Mother ran away repeatedly as a teenager, was defiant, had problems accepting responsibility for her own actions, and blamed everyone else instead.
Father told the Bureau he and Mother raised Child together for a couple of years, and then reached an informal agreement to share custody. He declined to say anything negative about Mother's parenting, but told the Bureau he did see a drastic change in her behavior starting around March 2017, which he could only attribute to her possible abuse of prescription pills. Father maintained he did everything possible to care for Child and keep him safe. He said he let Mother take Child the day before Mother's Day and then did not hear from her until he received the Bureau's certified letter advising that Child had been detained.
The Bureau reported Father had regular unsupervised visits with Child after the jurisdictional hearing, and the visits were "going well." Father had a safe living situation, the Bureau reported, and a part-time job. Mother was enrolled in community college courses, worked part-time, and showed love for Child and a bond with him in their visits. But, the Bureau reported, Mother's visits were more problematic. Mother missed two visits and two visits were terminated early due to her behavior. Mother sometimes texted and checked social media on her cell phone rather than interacting with Child, the Bureau reported, and then became defiant, escalating her behavior, and "screaming and cursing at everyone." On one occasion, after a supervised visit, the person driving Child back to Maternal Grandmother's home noticed Mother was following them, and had to return to the visitation site until Mother departed.
Mother reported she lived in an apartment, although correspondence the Bureau mailed to her at that address was returned.
At the June 7, 2017 jurisdictional hearing, the juvenile court ordered Mother to stay 100 yards away from the maternal grandparents' home, vehicles, and places of work.
The Bureau reported it provided Mother a referral for therapeutic visitation with Child, to help her deescalate her behavior and have more positive visits. Mother reportedly was receiving services through her health care provider to address her chemical dependency, had been diagnosed as having anxiety and panic disorder, and had been prescribed medication.
The Bureau provided case plans for Parents that required them to undergo domestic violence assessments, complete the assessors' recommendations, complete parenting education, participate in random drug and alcohol testing, and enter a substance abuse treatment program if they missed a test or tested positive. Father's case plan also required him to engage in individual therapy. Mother's required her to complete a mental health assessment, sign necessary releases, and follow all recommendations resulting from the assessment.
At the August 16, 2017 dispositional hearing, the juvenile court continued the matter to August 30, 2017 for a contest, and suspended Father's unsupervised visitation. On August 30, 2017, after the court made some changes to the recommended case plan, Parents accepted the modified plan. The court adjudged Child to be a dependent child, adopted the plan as modified, ordered supervised therapeutic visitation for Mother, and ordered unsupervised visitation for Father, with 72 hours' advance notice to Child's counsel, once Father fully engaged in services. A six-month review hearing was set for February 21, 2018.
C. February 2018: Six-month Review Report and Hearing
The Bureau submitted a six-month status review report (the six-month report) dated February 21, 2018. It recommended the juvenile court terminate reunification services for Parents and set a section 366.26 hearing.
1. Troubling Incidents Involving Parents
The six-month report described several troubling incidents involving Parents. The first occurred on September 4, 2017, and involved Mother. Maternal Grandmother reported she was grocery shopping on that date with Child and Mother's 10-year-old sister. They were in their car in a parking lot, when, Maternal Grandmother reported, she saw Mother driving another vehicle directly at them. Mother yelled, " 'Where the fuck is my son you fucking bitch!' "
Maternal Grandmother said that she drove off, but that Mother followed, aggressively trying to drive on either side of her car, honking the horn, and screaming. Maternal Grandmother said she called the police, and the police pulled both cars over. Mother reportedly was yelling obscenities and screaming, ignored police instructions to calm down, and was arrested. Child and his 10-year-old aunt cried profusely throughout the incident. Questioned later, Mother stated that Maternal Grandmother overreacted, had Mother " 'arrested . . . for no reason,' " and just " 'want[ed] to keep [Child] for the money.' "
On September 8, 2017, after being released from jail, the Bureau reported, Mother was rearrested and charged for petty theft. She had been captured on surveillance video walking out of a grocery store with eight cases of energy drinks, pursued by store staff. While incarcerated, the Bureau reported, Mother met with a psychiatrist who prescribed her medications for anxiety, depression, and sleep disturbances. The psychiatrist reported Mother said she did not take her medications consistently because she did not want to become dependent on them. He reported Mother denied having psychotic symptoms, but had limited insight and judgment, and he diagnosed her as having a mood disorder complicated by methamphetamine substance abuse. While incarcerated, Mother had access to parenting classes, substance abuse services, and mental health services. She was released on October 26, 2017.
On November 28, 2017, the Bureau reported, Mother contacted her social worker to say she had resumed her relationship with Father on being released from jail. Father subsequently became increasingly controlling and jealous, however, Mother reportedly recounted, culminating in two violent incidents, which Mother said she reported to the police. The Bureau obtained the police report and summarized its contents in the six-month report. According to the latter, on November 24, 2017, while Father was driving on unknown dark roads, with Mother in the passenger seat, he pushed her with an open hand to her head, causing her to have a " 'fat lip,' " and threatened to crash the vehicle killing them both.
The following day, on November 25, 2017, the Bureau's report continued, summarizing the police report, Parents were arguing in a parked car, accompanied by Mother's 16-year-old stepsister, when Father began slapping Mother in the face. Father pushed Mother out of the car, then got out himself when Mother tried to walk away, pushing her back into the car. Several witnesses reported Father then climbed on top of Mother, wrapped his arm around her neck from behind, and choked her about six times over a minute and a half, restricting her airway each time for about two seconds, as he shouted, " 'You started all this shit, you did all this.' " After Mother's 16-year-old stepsister managed to pull Father off Mother, Mother began running up a flight of stairs to an apartment building. Father caught up to her, however, and began pulling her by her hair to the top of the stairs, striking her repeatedly in the back of her head with his hands.
Mother later testified that she went to a domestic violence shelter after this incident, but then called Father from the shelter and reconciled with him.
When the Bureau initially questioned Father about these incidents, he denied having any contact with Mother, and then admitted he had seen her, but claimed he just took her to dinner, they argued, and she left. Two days later, Mother called her social worker again to say that Father wanted to be " 'truthful' "; Father then told the social worker that Mother had given her an accurate report, and that the facts stated in the police report also were accurate.
Finally, on December 12, 2017, the Bureau reported, the social worker received a call from a local police department about an incident involving Parents, which occurred that same day. The police reported—in the call to the Bureau and in a written report the Bureau later obtained—that Parents had been identified as among those who attended a " 'side show,' " involving about 30 vehicles. The vehicles had blocked an intersection "doing 'doughnuts' and burning out their tires." When officers approached, spectators threw beverage cans at the officers. Father was identified as one of those spectators, the Bureau reported, and he began to run away when an officer approached him. When the officer gave chase, Mother purposefully stepped into the officer's path to stop him, and was knocked down. As the officer continued to chase him, Father jumped in the passenger window of a moving vehicle. The officer grabbed Father's legs, but the vehicle sped off, throwing the officer to the ground, and running over him. The officer was recovering from his injuries, the Bureau reported in its six-month review report, and police were attempting to locate Parents for questioning.
The Bureau social worker later testified that, when the police eventually did question Father about the incident, they reported he initially denied being present and denied knowing Mother, until they confronted him with video evidence of his attendance, after which he admitted he had been lying.
2. Parents' Progress on Their Case Plans
The Bureau's six-month report advised that Parents both made partial progress on their case plan goals in that review period. Both completed 20 hours of anger management education. Mother also completed 20 hours of parenting education, and Father paid for six parenting classes, although the Bureau had not received confirmation of attendance.
At the six-month review hearing, Father provided a certification confirming he completed 26 hours of parenting education.
Both Parents completed some, but not all, required random drug and alcohol testing. After Mother was released from jail in October 2017, following her arrest on petty theft charges, she tested negative for drugs and alcohol 10 times. Father initially tested positive for marijuana twice in September 2017, but then tested negative 14 times thereafter. Both Parents had no-shows for drug and alcohol testing in December 2017, around the time of the side show incident. Mother commenced a two-week substance abuse program in December 2017, offered through her health care provider, but did not complete it. She commenced a second program in January 2018, also offered through her health care provider, and the program reported her attendance was improved, although not perfect. She was expected to complete the program in March 2018.
Mother reported she attended therapy available through her health care provider in the review period, but the Bureau reported it was only able to obtain documentation confirming one visit. Father did not attend his appointments with the Bureau's social worker on February 14 and 15, 2018 to discuss his case plan, and consequently the Bureau reported it could not state whether he had attended counseling as required.
The Bureau did confirm Parents met with a therapist to complete a domestic violence assessment in November 2017. The therapist provided a report in January 2018, which the Bureau quoted in its six-month report. According to the latter, Mother told the therapist she was sexually abused as a child, and started drinking in sixth grade. Mother also said she was exposed to " 'parental conflict and abuse; . . . parental alcoholism; [and] parental neglect.' " The therapist reported Mother likely suffered " 'from diagnosable mental health issues,' " and was " 'a good candidate for therapy.' " She could also benefit " 'from a full substance abuse evaluation,' " the therapist reported, and possibly substance abuse treatment services. While domestic violence issues were evident, the therapist added, it appeared there were " 'elements of reciprocity' " in those domestic conflicts and the therapist, therefore, suggested the Bureau prioritize other services for Mother. As Mother and Father had "conveyed their interest in re-uniting," the therapist recommended couples counseling; the social worker reported Mother said they had their first couples counseling appointment set for February 14, 2018.
Although Mother's later testimony suggested she and Father moved in together before they met with the therapist, Mother testified she did not tell the therapist they had resumed their relationship because they were still "working on things."
The therapist who completed the domestic violence assessment also shared "clinical impressions" regarding Father, the Bureau reported. He said Father " 'engaged in repeated incidents of conflict, aggression, hostility, and perhaps complicity, with [Mother],' " but appeared to minimize the incidents, denying many of Mother's allegations, which were corroborated by law enforcement records. The therapist also observed that Father sometimes " 'behaves impulsively, erratically, and engages in behavior that he is fully aware is inappropriate.' " For example, the therapist noted, although Father knew his driver's license was suspended (for speeding), he opted to drive anyway, and to drive at an excessive speed, with a firearm illegally concealed and fully loaded in the car, which he had failed to surrender in violation of a court order, and while in possession of marijuana, which he knew was illegal, resulting in a police stop and an arrest.
3. Evaluation of Child
The Bureau's six-month report included information regarding Child's behavior and progress in the review period. According to the report, Child began preschool in early December 2017. The school director told the Bureau that Child had behavioral issues at first. He was " 'pretty violent' and would engage in 'full on fist fights' with other children after visits with [Mother]." When teachers moved towards him to give him instructions, he initially cowered; but he did so less often once he learned he would not be hit. More recently, the director told the Bureau, Child seemed to be settling in, was following directions better, and seemed happier.
Child also began therapeutic visits with Mother on December 11, 2017.
Delilah Alvarez, who supervised Mother's therapeutic visits with Child beginning in December 2017, also shared information and observations for the Bureau's six-month report. She said she noticed no behavioral issues when she first met with Child and his care provider. The care provider told Alvarez that Child was fully toilet trained and had no tantrums. But, echoing the school report, Alvarez said she heard Child punched another child in the face the day after he began therapeutic visits with Mother (on December 11, 2017). Maternal Grandmother also told Alvarez Child defecated in his pants after most visits. Alvarez noticed Child had a shorter temper and had tantrums when he visited with Mother. On the other hand, she reported, Mother's visits with Child overall went fairly well. Mother often had an activity for him; he was very excited to see her; and she was able to quickly soothe him.
Father reportedly continued his one-hour weekly supervised visits with Child in this review period, and was attentive to Child on those occasions. Child reportedly was "clingy" when he returned home afterwards.
4. The Bureau's Assessment/Evaluation
While noting and applauding Parents' progress on certain aspects of their court-ordered case plans, the Bureau reported they continued to demonstrate "a lack of coping skills, low frustration tolerance," and inadequate parenting skills. Further, the Bureau observed, Parents appeared unable or unwilling to comprehend that they had placed Mother's young stepsister in "great risk for significant bodily injury" during the November 25, 2017 incident. As Mother remained in a relationship with Father despite the ongoing physical violence, the Bureau concluded, it was "likely that any children in [Parents'] presence will witness this type of violence and be placed at risk for significant harm."
The Bureau additionally observed that Parents continued to engage in criminal activity despite deterrents such as jail time and loss of custody of their son, suggesting they would be unwilling to cease such activity to regain custody. Their behavior at the December 2017 side show—which, the Bureau noted, occurred after Parents both gained sobriety—showed a willingness to engage in dangerous activities, and caused serious injury to a police officer. According to the domestic violence assessment, Mother's behavior might be explained by childhood trauma, the Bureau observed; but, she would require "extensive therapeutic interventions" that would not produce healing in a few short months. Father, on the other hand, claimed to come from a stable home, and denied any childhood abuse or exposure to violence, the Bureau noted, leading the domestic violence assessor to suggest his poor choices might be explained by psychopathy, a condition that could not be addressed through domestic violence services. Given these circumstances, the Bureau concluded it was not likely continued reunification services would produce the desired result and the Bureau, therefore, recommended terminating reunification services.
At the six-month review hearing on February 21, 2018, both Parents contested the Bureau's recommendation. The juvenile court scheduled a contested review hearing, commencing March 21, 2018.
D. March 20 , 2018: The Bureau's Memorandum with Update on Child
In a memorandum to the court dated March 20, 2018, the Bureau reported it received an e-mail that day from Child's foster parents, forwarding a message that Child's preschool teacher sent them on March 4, 2018. The Bureau's memorandum quoted portions of the teacher's e-mail message. In it, the teacher stated that Child's "aggressive behavior was improving." On February 27, 2018, however, the teacher reported, she was standing near Child, and saw he "immediately got angry" when another child approached him. Apparently thinking the other child meant to take something from him, Child reportedly moved as if to attack the other child. The teacher said she was able to stop Child in time. But she noted Child "kept saying that he was going on an airplane with mommy far away."
Two days later, on March 1, 2018, the teacher continued, Child became angry when another student approached him to play with toys he was using. Child told the other student he was not finished and then grabbed the student "by the neck very violently," leaving "a large scratch" on the other student's neck. The other student was "very traumatized by this and the other students [were] afraid to play with [Child]," the teacher reported. Later the same day, Child reportedly pushed and grabbed another student in anger.
The Bureau's memorandum also reported that Child's foster mother said Child only defecated in his pants after every other visit with Mother between February 12 and March 12, 2018. But, after the March 12, 2018 visit, the foster mother said, Child smeared feces all over himself, the toilet, and the floor. She said he also continued having "lots of aggressive behaviors in the home," although not to the degree he did at school. After visits with Father, the foster mother reported, Child's only behavioral issues were aggression and "confusion about where his home [was]."
E. March 21-23 , 2018: Contested Six-month Review Hearing
The contested six-month review hearing commenced on March 21, 2018, and concluded on March 23, 2018. Bureau social worker, Judy Flores, testified, and Mother did also. During her testimony, Mother confirmed she and Father remained in a relationship.
On cross-examination, Mother addressed the incident in September 2017, when she approached Maternal Grandmother while both were driving. Mother denied yelling obscenities, disagreed with the police officer's decision to arrest her, and explained she was trying to get Maternal Grandmother's attention, because she wanted Maternal Grandmother to allow her to see Child. Mother admitted she understood the Bureau was required to supervise her visits with Child, and she knew she was violating a court order by attempting an unsupervised visit. Mother agreed her conduct during that incident "[p]robably caused a lot of stress" for Child, although she later denied she was "being violent"; she reasoned Child was probably upset because Maternal Grandmother was "under stress" and because he had seen Mother, but Mother was not able to get out of her car and approach him and he was confused.
Mother also addressed questions about the incident involving Father that occurred on November 25, 2017. She testified she and Father both "got upset" in that instance, Father grabbed her, she pulled his hair, and "it pretty much escalated from there." She acknowledged her 16-year-old stepsister got between the two, trying to push them "off of each other," but she pointed out the teenager was not hit. After that, she and Father just "kept going," Mother testified, ignoring her young stepsister who told them to stop, and ignoring a neighbor who told them she would call the police. Mother ran up some stairs, Father "tried pulling [her] down the stairs," they wrestled on the neighbor's lawn, until Father ran away, Mother testified. Later, she missed Father and called him, because she realized she blew things out of proportion, and contributed to the situation. Asked on cross-examination about witness reports that Father choked her multiple times, restricting her airway for two seconds each time, Mother responded that it "was probably" only once, and denied her breathing was impeded.
Mother also denied that Child was ever present when she and Father fought. On cross-examination, however, she acknowledged she applied for multiple restraining orders against Father, including one in May 2017, when Child was two, in which she sought protection for her and for Child. Mother admitted she asserted the following facts in support of that application: Father reported his gun stolen so that he could use it to kill Mother and any new boyfriend she had; Mother told Father they needed a break because she did not want to keep fighting "in front of the baby"; Father threw Mother in the closet, telling her that she could not leave; and Father threw Child's bed across the house "almost hitting baby." Before the juvenile court, Mother denied her assertions in the application were true, maintaining that she filed the application because she was "bitter[]," and was "just being dramatic to get back at [Father]" because she was angry and wanted "to prove a point." Mother insisted Child did not see "any physical fighting" between Parents, "just usually bickering," and that Parents could control themselves when around Child.
At the conclusion of the contested review hearing on March 23, 2018, after hearing argument from all parties, the juvenile court continued Child as a dependent child of the court; terminated Parents' family reunification services; set a section 366.26 hearing for July 18, 2018; suspended Parents' visitation with Child; ordered the Bureau to refer Child for therapy; and ordered the parties to return on May 9, 2018, to address an evaluation to be prepared by Child's therapist, regarding whether future visitation with Parents could be structured in a way that would cause no further harm to Child.
The juvenile court made the following findings and gave the following reasoning to support its ruling: Parents engaged in "a charade" by withholding information about the nature and status of their relationship; Parents' behavior since the disposition hearing—which included Father "beating and choking" Mother in front of her young stepsister, and Mother chasing and verbally assaulting Maternal Grandmother in front of Child and his 10-year-old aunt, who "were just devastated and terrified" by her behavior—was "highly concerning and troubling"; Mother failed to address these issues, "chose not to engage in this case"—by speaking up, asking questions, or requesting help if she needed it —and was "not at all credible" in her testimony; Father demonstrated he was "completely unfit as a safe alternative"; Parents repeatedly showed they did not understand the impact of their behavior on those around them, particularly Child; the Bureau's March 2018 memorandum describing Child's recent conduct showed that contact between Parents and Child was "highly detrimental," producing "tragic" results for Child; and the Bureau "more than exceeded its burden" in establishing "well-beyond [sic] clear and convincing evidence that reasonable services were offered, [and] also that there [was] just absolutely . . . no evidence to suggest that," if the court "continue[d] services to the 12-month [review] date[,] that this will be successful reunification." These timely petitions ensued.
II. DISCUSSION
A. Relevant Legal Principles
"When a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family. (§ 361.5, subd. (a).) For a child under three years of age at the time of removal, . . . reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(2).)" (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) "The ' "unique developmental needs of infants and toddlers" ' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process ' "in cases with a poor prognosis for family reunification." ' " (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (M.V.).)
"The third paragraph of section 366.21, subdivision (e), requires a specialized inquiry at the six-month review for children . . . who are 'under the age of three years on the date of the initial removal' " and, as here, "are not being returned to the custody of their parents at that time." (M.V., supra, 167 Cal.App.4th at p. 175.) For such dependent children, if "the court finds by clear and convincing evidence that the parent[s] 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," unless it "finds" either of the following is true: (1) "there is a substantial probability that the child . . . may be returned to his or her parent[s] or legal guardian within six months," or (2) "reasonable services have not been provided." (§ 366.21, subd. (e)(3), italics added.) If the court makes either of the latter findings, it "shall continue the case to the 12-month permanency hearing." (Ibid.) "However, the court is not required to set a [section 366.26] hearing even if it finds against the parent[s] on both of these findings. The parent[s] [are] also entitled to continued reunification services (with any necessary modifications) if the court makes either of [the latter two] findings in favor of the parent[s]." (M.V., at p. 176.) If a court orders that a hearing pursuant to section 366.26 shall be held, however, "it shall also order the termination of reunification services to the parent[s]." (§ 366.21, subd. (h).)
The foregoing means that we must apply a two-part standard in reviewing an order setting a section 366.26 hearing pursuant to section 366.21, subdivision (e)(3). First, we review the juvenile court's factual findings about (1) whether " 'the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan,' " and (2) whether " 'there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . .'; or . . . [that] 'reasonable services have not been provided . . .' to the parent. (§ 366.21, subd. (e).)" (M.V., supra, 167 Cal.App.4th at pp. 175, 176.) We examine those findings to determine whether substantial evidence supports them. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580.) In making this assessment, "we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] 'We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.' " (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689; see also In re Mark L., at pp. 580-581 [We give " ' "full effect to the respondent's evidence, however slight, and disregard[] the appellant's evidence, however strong" ' "].)
If the juvenile court's factual findings under section 366.26, subdivision (e)(3) are supported by substantial evidence, then the court is empowered, but is not required, to set a section 366.26 hearing. (M.V., supra, 167 Cal.App.4th at pp. 176, 179.) We review that decision for abuse of discretion. (See, e.g., Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1031 (Fabian L.); In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We will not disturb it unless the juvenile court " ' "exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." ' " (In re Stephanie M., at p. 318.) Stated another way, we examine whether the court " 'exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Id. at pp. 318-319.)
B. Analysis
Although Mother does not discuss the applicable standards on review, her petition appears to challenge three of the juvenile court's factual findings and, by extension, the sufficiency of the evidence supporting them. Specifically, Mother appears to challenge the juvenile court's findings that her participation and progress in the court-ordered case plan were inadequate; there was not a substantial probability Child might be returned to her at the 12-month review hearing; and the Bureau provided her reasonable reunification services. Alternatively, on the first point, Mother may be contending that, even if her participation and progress in the court-ordered case plan were inadequate, it was an abuse of discretion under section 366.21, subdivision (e)(3) to set a section 366.26 hearing and terminate reunification services. Mother also contends the juvenile court applied the wrong legal standard in determining the probability of Child's return to her at the 12-month review hearing.
Father challenges the juvenile court's factual findings regarding the probability of Child's return to him, and the sufficiency of the reunification services provided to him. He agrees with Mother that the juvenile court applied the wrong legal standard in determining the first point. And he challenges the decision to suspend his visitation with Child before the section 366.26 hearing. We consider each of Parents' assertions in turn below.
1. Mother's Participation and Progress in the Case Plan
Under section 366.21, subdivision (e)(1), at the six-month review hearing, a juvenile court must return the child to the physical custody of his or her parents unless it finds, by a preponderance of the evidence, that doing so would create a substantial risk of detriment to the child. A parent's failure to "participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.) In evaluating a parent's participation and progress in this context, a juvenile court "shall review and consider the social worker's report and recommendations . . . ; and shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized, detained, or deported parent's . . . access to those court-mandated services and ability to maintain contact with his or her child." (Ibid., italics added.)
Under section 366.21, subdivision (e)(3), as noted, however, "[i]f 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 has discretion to set a section 366.26 hearing absent specified circumstances and, if it does so, must terminate the parent's reunification services (§ 366.21, subd. (h)).
Mother contends that, in evaluating, under section 366.21, subdivision (e)(3), whether she adequately participated and progressed in her court-ordered treatment plan (a factual determination), and whether to set a section 366.26 hearing and terminate her reunification services (a discretionary determination), the juvenile court should have taken into account particular barriers she confronted in accessing the court-mandated services. As support for this proposition, Mother cites the italicized language from section 366.21, subdivision (e)(1), above, while acknowledging that she did not confront any of the specific barriers listed there, i.e., she acknowledges she is not a minor parent, a nonminor dependent parent, incarcerated, institutionalized, or detained, and has not been deported. Nonetheless, Mother contends, she did confront barriers to participation and progress in the treatment plan, as a result of the adverse childhood experiences listed in the domestic violence assessment report, and as evidenced by the juvenile court's decision to appoint her a guardian ad litem.
Mother cites no legal authority supporting her assertions that a juvenile court must consider the barriers listed in section 366.21, subdivision (e)(1) in evaluating a parent's participation and progress under section 366.21, subdivision (e)(3), or that barriers created by other unlisted circumstances also must be considered in evaluations under those provisions. Assuming both points are true for purposes of argument, however, as noted above, Mother does not directly state a basis for reversal. She does not, for example, explicitly contend the juvenile court's determination that her participation and progress were inadequate lacked evidentiary support or that, even if substantial evidence supported the determination, it was an abuse of discretion to set the section 366.26 hearing and terminate reunification services. To the extent she intended her succinct argument on this topic to be so understood, we must disagree.
Mother contends the juvenile court faulted her participation and progress solely because she testified she did not carefully review the referral letters that her social worker provided, or engage with a mental health provider as required by her court-ordered case plan. She submits this was not a reasonable expectation in light of her particular barriers, because the social worker's referral letters were lengthy—listing four and five pages of service providers for different aspects of the case plan—and they overwhelmed her. But, the record does not support Mother's suggestion that the juvenile court relied entirely on her failure to carefully review the referral letter or to engage more fully with therapists in finding that Mother's participation and progress were inadequate.
At the review hearing, the Bureau social worker testified Mother was provided mental health service referrals but elected to rely on her private health care provider for such services, even though it limited her to one therapy session monthly. Asked whether she contacted any of the referred providers for more frequent therapy, Mother reportedly answered no, explaining she did not have Medi-Cal. As Mother acknowledged at the review hearing, however, the referral letter she received said that a list of low- or no-cost therapists was attached. Attempting to explain her failure to follow up with those providers, Mother alternatively testified that the list was not actually attached, that she only skimmed the referral letter, and that she already was receiving therapy through her health care provider. The juvenile court judge rejected Mother's claim she did not receive the attachment, and found that she "simply chose not to engage in this case."
In fact, in making this factual determination, and in exercising its discretion to set the section 366.26 hearing and terminate reunification services, the juvenile court relied on a number of factors. It found, for example, that Mother and Father had engaged in a "charade" by withholding information about the nature and status of their relationship, which included troubling incidents of domestic violence, corroborated by law enforcement records, including the November 2017 incident involving Mother's little sister. The court also found Mother's testimony generally to be "not at all credible," a finding that presumably encompassed Mother's effort to disavow allegations she previously presented in a May 2017 application for a restraining order—seeking protection against Father for herself and Child—that Father threatened to kill her, threw her in a closet, told her she could not leave, and then threw Child's bed across the house almost hitting him. The court additionally cited as "highly concerning and troubling" Mother's aggressive vehicular confrontation with Maternal Grandmother, which "devastated and terrified" two young children, one of them Child, an incident that Mother attempted to minimize at the review hearing, even while acknowledging that her conduct in that instance violated a court order (by seeking an unsupervised visit with Child).
As the Court of Appeal explained in Fabian L., a parent must "make substantial progress towards reunification with a three-year-old child within the statutorily prescribed period of six months," and substantial compliance with the case plan does not automatically compel the conclusion this requirement was met. (Fabian L., supra, 214 Cal.App.4th at p. 1029.) Although Mother did complete certain aspects of her plan, there was substantial evidence supporting the juvenile court's finding that she made inadequate progress towards reunification with Child. The court, therefore, had discretion to set the section 366.26 hearing, and terminate Mother's reunification services. (§ 366.21, subds. (e)(3), (h).)
2. Substantial Probability Child Might Be Returned to Parents
Both Parents challenge the juvenile court's determination that there was not a substantial probability Child might be returned to them by the 12-month review hearing. (§ 366.21, subd. (e)(3).) They contend that the court applied the wrong standard in making the determination, and suggest that the determination was not supported by substantial evidence.
As discussed, under section 366.21, subdivision (e)(3), if a juvenile court "finds there is a substantial probability that the child . . . may be returned to his or her parent[s] . . . within six months . . . , the court shall continue the case to the 12-month permanency hearing." (Italics added.) Pointing to the juvenile court judge's remarks at the conclusion of the contested six-month hearing, Parents contend the court applied the wrong legal standard in determining this issue. The judge stated, "[T]here is just absolutely, in my view, no evidence to suggest that[,] should I continue services to the 12-month date[,] that this will be successful reunification." (Italics added.) Parents rely on the judge's use of the word "will" rather than "may." We are unpersuaded.
As the Attorney General points out, at the outset of the contested review hearing, the Bureau requested a change to the recommended written findings attached to its six-month report. The sixth paragraph of those recommendations stated a proposed finding that there was not "a substantial probability . . . [C]hild will be returned" to Parents' physical custody within the relevant period. (Italics added.) The Bureau asked the court to replace the word "will" with "may." The court acknowledged the change; the written finding was amended by hand; in its oral pronouncements, the court later explicitly adopted "the amended recommended findings" (italics added); and the amended findings were incorporated as part of the court's minute order, which the juvenile court judge signed . The juvenile court applied the correct standard. (§ 366.21, subd. (e)(3).)
Father contends the judge's statement at the conclusion of the review hearing—i.e., "there is . . . absolutely . . . no evidence . . . that . . . [there] will be successful reunification"—created a conflict between the juvenile court's oral pronouncements and its minute order, and that the oral pronouncement controls in such circumstances. Father cites People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073, for this proposition, which, in turn, relied on People v. Farrell (2002) 28 Cal.4th 381. In People v. Farrell, our Supreme Court confirmed that "[t]he record of the oral pronouncement of the court controls over the clerk's minute order." (Id. at p. 384, fn. 2, italics added.) As support for this principle, the court cited People v. Mesa (1975) 14 Cal.3d 466, superseded by statute on another ground as explained in People v. Turner (1998) 67 Cal.App.4th 1258, 1268, in which it previously explained: "Entering the judgment in the minutes [is] a clerical function" and "a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (Id. at p. 471.) The same cannot be said here, as the juvenile court judge expressly stated that she was "adopt[ing] and incorporat[ing] the amended recommended findings" (italics added), and then signed the minute order, which included the written correction.
Our Supreme Court has elsewhere stated that, generally, a record containing a conflict " 'will be harmonized if possible. ' " (People v. Anzalone (2013) 56 Cal.4th 545, 552, fn. 6.) This is easily done here, particularly when we consider a case that Parents themselves cite, M.V., supra, 167 Cal.App.4th 166. In M.V., the Court of Appeal interpreted the phrase "substantial probability the child may be returned," as used in section 366.21, subdivision (e)(3), as requiring "the court to determine whether there is a strong likelihood of a possibility of return." (M.V., at p. 181.) Although, here, the juvenile court judge used the word "will" in her oral pronouncement, the entirety of her remarks can only be interpreted as a finding that there was "absolutely . . . no evidence" supporting a possibility of return if services were continued to the 12-month review hearing. This oral pronouncement did not conflict with the court's amended written finding, that there was "not a substantial probability . . . the child may be returned" in that period.
Father contends the juvenile court's determination—that there was not a substantial probability Child might be returned home if services were continued to the 12-month review hearing—was not supported by substantial evidence. Without directly addressing the evidence supporting that determination, or the juvenile court's express findings and reasoning, Father points to evidence that he took various steps to comply with his case plan (i.e., completing drug testing, completing a domestic violence assessment, attending parenting and anger management classes, enrolling in a domestic violence program, beginning couples counseling, and having "largely positive" visits with Child). Mother also attempts an argument that the evidence favored her on this issue, reciting similar efforts, although without providing accompanying citations to the record. While we commend Parents for those efforts, on review our task is to examine whether other evidence sufficiently supported the juvenile court's ruling. (See, e.g., In re Aurora P. (2015) 241 Cal.App.4th 1142, 1167 [under the substantial evidence standard, the court " ' "accept[s] the evidence most favorable to the order as true, discard[ing] the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact" ' "].)
The Bureau reported that Child was "clingy" when he returned home following visits with Father, had "minor behavioral issues of aggression," and exhibited some "confusion about where his home [was]," saying "things like, 'I have another home, this is not my home.' "
(See, e.g., Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8 ["To provide record citations for alleged facts at some points in a brief, but not at others, frustrates the purpose of [rule 8.204(a)(1)(C)], and courts will decline to consider any factual assertion unsupported by record citation at the point where it is asserted." (italics added)].)
In determining whether, for purposes of section 366.21, subdivision (e)(3), there is a "substantial probability" a child may be returned to his or her parents if the matter is continued to the 12-month review hearing, a juvenile court may consider any relevant evidence. (M.V., supra, 167 Cal.App.4th at p. 181.) Among other things, it may consider evidence pertinent to the mandatory factors listed in section 366.21, subdivision (g)(1), which apply at a 12-month review hearing in deciding whether "there is a substantial probability the child will be" returned to a parent's physical custody. (M.V., at p. 180, italics added.) Those factors include consideration of whether a parent has "demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(C).) Although the juvenile court may also consider a parent's compliance with his or her case plan, this factor is not determinative. (Fabian L., supra, 214 Cal.App.4th at p. 1029.)
Here, the juvenile court found Parents had not demonstrated the capacity and ability to provide for Child's safety, protection, or physical or emotional well-being. Further, the court found "absolutely . . . no evidence" suggested the possibility of a different finding at the 12-month review hearing. Substantial evidence supported the court's determination. Mother testified at the six-month hearing she and Father were still in a relationship. Other evidence was presented that, during the review period, Father beat and choked Mother in front of witnesses, including Mother's little sister; Father engaged in criminal behavior at a side show, which culminated in a police officer being run over by a car; and Mother initiated a dangerous vehicular confrontation with Maternal Grandmother, placing Child and his 10-year-old aunt at risk and terrifying both. The juvenile court found that Parents repeatedly demonstrated they did not understand the impact of their behavior on those around them, and that the impact on Child was "tragic." More was not required.
Father had attended anger management classes for three weeks by the date of this incident, according to evidence he presented at the six-month hearing.
At the review hearing, as noted, Mother minimized this last incident, saying she was just trying to get Maternal Grandmother's attention because she wanted her to allow an unsupervised visit with Child (which Mother knew violated the court order). Without contradicting the report that Child cried profusely throughout the incident, and despite acknowledging that her own actions contributed to his distress, Mother seemed to minimize her responsibility there as well, observing that Maternal Grandmother had been "under stress," and that Child was likely confused because he saw Mother but Mother could not approach him. Mother denied yelling obscenities during the incident.
3. Reasonable Reunification Services
Parents further contend the juvenile court erred by finding that the Bureau provided them with reasonable services.
As noted, the juvenile court may not set a section 366.26 hearing at the six-month review hearing if it finds "reasonable services have not been provided" to the parents. (§ 366.21, subd. (e)(3).) " '[T]he focus of reunification services is to remedy those problems which led to the removal of the children.' [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.] A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] 'The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.) "[T]he reasonableness of the services provided may depend to some degree upon the parent's willingness to cooperate in the completion of his or her reunification plan." (In re K.C. (2012) 212 Cal.App.4th 323, 330.) We review a finding that reunification services were adequate for substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
Here, the Bureau detained Child in May 2017 following reports that Mother slapped him in the face several times with an open hand, and then drove recklessly in a car that smelled strongly of marijuana, with Child unsecured by a car seat or seat belts. Questioned after the incident, Mother denied having mental health or substance abuse issues, and declined Bureau services. The Bureau's detention report expressed concerns regarding Mother's mental health, and also noted her statements that Father was physically abusive to her.
Before the August 30, 2017 disposition hearing, Parents opted not to provide background information to the Bureau, although Mother did share that her health care provider had diagnosed her as having anxiety and a panic disorder, was prescribing her medication, and was providing her substance abuse services. In its disposition report, the Bureau advised that Father was arrested in June 2016 and in May 2017 for domestic battery, and was arrested in June 2017 for driving with a concealed (and loaded) weapon, having violated a temporary domestic violence court order requiring him to surrender it.
Mother failed to appear for an appointment to discuss this topic, while Father explicitly declined to provide the information.
At the disposition hearing, the juvenile court ordered both Parents to undergo a domestic violence assessment, ordered Mother to complete a mental health assessment and sign a release, and ordered Parents to both attend counseling, parenting classes, and random drug and alcohol testing. The Bureau social worker—whom the juvenile court found credible—testified at the six-month review hearing that the Bureau twice provided both Parents referrals to providers who supplied the types of services they were ordered to complete (in August and September 2017), and the disposition report also confirmed this point. The social worker testified that Mother subsequently reported (in September 2017) she completed a mental health assessment through her health care provider, but declined to sign a release allowing the therapist who conducted it to speak with the Bureau.
Although the report stated that referrals for "Mental Health Services" were provided, without specifically confirming the referrals were provided to both Parents, this is the most reasonable inference as the report there either listed services and referrals as being provided to "Parents," or listed them without mentioning Parents at all or distinguishing between them. (See, e.g., Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 598 [In determining whether substantial evidence supported a finding that reasonable services were provided, we indulge "in all legitimate and reasonable inferences to uphold the court's ruling"].)
Mother testified that her health care provider refused to do the assessment, and that she signed a release for her therapist to speak to the Bureau. Again, however, the juvenile court found that Mother "was not at all credible" and we may not " ' "reweigh the evidence or exercise independent judgment" ' " on appeal. (Fabian L., supra, 214 Cal.App.4th at p. 1028.)
Mother thereafter was incarcerated for most of September and October 2017. On her release, she and Father resumed their relationship and commenced the referred services, completing anger management and parenting classes, and the domestic violence assessment. Mother testified she also attended a dual diagnosis program through her private health care provider, between December 2017 and March 2018, which addressed her mental health and substance abuse issues, receiving individual counseling from a psychologist and prescriptions from a psychiatrist whom she saw weekly. The foregoing constitutes substantial evidence that Parents received reasonable services, particularly given their limited willingness to cooperate.
Mother disagrees, contending that it was evident she had mental health issues and that this should have been the starting point in providing her reunification services. The Bureau should have identified her mental health issues, consulted a professional, and provided her services tailored to address those issues, Mother contends; but it instead improperly placed the burden on her to obtain services. We are unpersuaded. As discussed, the record indicates the Bureau was concerned by Mother's behavior and recommended she be required to complete a mental health assessment and random drug and alcohol testing to ensure she received appropriate services. The requirements were included in Mother's court-ordered case plan, and the Bureau referred Mother to services. Mother completed most of the required testing and participated in a dual diagnosis program through her private health care provider, which addressed her mental health and substance abuse issues, providing her individual therapy, regular sessions with a psychiatrist, and prescribed appropriate medications. Mother also completed the required mental health assessment, but declined to sign the release allowing the Bureau access to the resulting information. There was substantial evidence that Mother received appropriate treatment and services, therefore; she does not identify any specific service or treatment she should have received but did not.
Mother testified that her psychiatrist prescribed her medication to address her anxiety, depression, and addiction issues.
Citing Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397 (Patricia W.), Mother suggests the juvenile court could not find the Bureau provided her reasonable services because it did not provide expert testimony or demonstrate it consulted with health professionals regarding her mental health issues. But Patricia W. does not compel those steps in every instance and the facts there were distinguishable. In Patricia W., the child was detained after the mother, who had been diagnosed as schizophrenic and committed to psychiatric hospitals previously, failed to properly take her medications, heard voices urging her to kill people, including her son, and was alleged to have identified specific plans for doing so. (Id. at pp. 401-404.) Mother cites a portion of the decision, in which the Court of Appeal observed that an "expert opinion is required to determine whether a child can safely remain in the custody of a parent suffering from schizophrenia [citation]," and that professional input "is necessary for an agency to properly tailor reunification services to such a parent." (Id. at p. 425, italics added.) There is no suggestion Mother here was schizophrenic or heard voices.
The Bureau social worker testified that therapists who work for Mother's private health care provider will not return calls from Bureau representatives, that she (the social worker) asked Mother to have the therapist call her, but that no therapist ever called.
Further, Patricia W. relied on In re Jaime M. (1982) 134 Cal.App.3d 530, in which the court ruled that harm to a child "cannot be presumed from the mere fact of mental illness of the parent," and that expert testimony is required, "giving specific examples of the manner in which the [parent's] behavior has and will adversely affect the child or jeopardize the child's safety." (Id. at p. 540.) Here, in contrast, the Bureau did not recommend the setting of a section 366.26 hearing, and termination of reunification services, based on any mental health diagnosis that required expert clarification; rather, it made the recommendation based on the Parents' demonstrated behavior patterns, which included violence, criminal activity, and an inability or unwillingness to consider the potential emotional and physical harm that their conduct could have for others, including children who were in their presence.
Father also faults the Bureau, contending reversal is required because there is no evidence it ever gave him a referral for individual therapy. We reject his argument, however, because, as discussed, the Bureau social worker testified that the Bureau twice provided Father lists of providers who could supply the services specified in his case plan, and the Bureau's disposition report specifically confirmed that this included referrals for mental health services.
4. Father's Visitation with Child
Finally, Father challenges the juvenile court's order suspending his visitation with Child before the section 366.26 hearing. When a juvenile court sets a section 366.26 hearing, it must continue to permit the parents to visit the child pending the hearing, unless it finds visitation would be detrimental to the child. (§ 366.21, subd. (h).) Here, finding that Parents' visitation with Child was "highly detrimental", the juvenile court suspended visitation for both on March 23, 2018, pending a hearing on May 9, 2018, directing the Bureau to provide it greater information about Child's visits with Parents, and to provide a therapist's evaluation of the impact on Child.
Father contends that the evidence does not support the finding his visitation with Child was detrimental and that the juvenile court abused its discretion in suspending it. He asserts the suspension virtually destroys his ability to avoid termination of parental rights under section 366.26, subdivision (c)(1)(B)(i).
The provision permits a juvenile court to find a compelling reason not to terminate parental rights if the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The record shows that Father had arrests in 2016 and 2017 for domestic violence battery, and was arrested in May 2017 for unlawfully carrying a concealed (and loaded) firearm in violation of a temporary domestic violence court order. Mother applied to a court for protection for her and for Child in May 2017, advising that Father said he intended to kill her, and that Father engaged in conduct creating a serious risk of injury to Child (i.e., throwing Child's bed across the room almost hitting him). In November 2017, Father threatened Mother's life one day and the next day violently assaulted her, repeatedly attempted to choke her, creating a significant risk of injury for another child who was present and attempted to stop him. In December 2017, Father threw cans at a police officer at a side show and then fled from the officer, setting in sequence a chain of events that led to the officer being seriously injured.
A therapist who met with Parents, and provided a domestic violence assessment, reported that Father at times behaved " 'impulsively [and] erratically,' " while fully aware his behavior was inappropriate, and that he claimed to come from a stable home, denying any childhood abuse or exposure to violence, suggesting his poor choices might be explained by psychopathy. Meanwhile, various sources reported that Child was demonstrating aggressive behavior at home and with peers in the review period, was regressing in his toilet training, and was expressing confusion about his status. This record constituted substantial evidence supporting the juvenile court's conclusion that further visitation with either parent would be detrimental; the court did not abuse its discretion in suspending visitation temporarily to avoid such detriment, pending receipt of further information about Parents' visits with Child and a therapist's analysis of the impact.
We are unpersuaded by Father's arguments that there was no evidence his supervised visits created a physical risk for Child or caused him emotional harm, that Child's negative behavior coincided with Mother's visits, and that Child showed "only minor aggression and confusion" following Father's visits. Aggression and confusion following Father's visits is evidence of detriment. Further, the record contained ample evidence that Father persisted in making poor choices even when it should have been evident the conduct he was choosing was likely to produce results he would not like. It was reasonable for the juvenile court to be concerned that Father might continue this pattern in future visits with Child, to Child's detriment.
III. DISPOSITION
The petitions are denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) The request for a stay of the July 18, 2018 hearing is denied. Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.