Opinion
A149934
03-15-2017
In re Michael F., Jr., A Person coming Under the Juvenile Court Law MICHAEL F., Sr. et al., Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; MARIN COUNTY DEPARTMENT OF SOCIAL SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV-26177A)
Michael. F. Sr. (Father) and M.S. (Mother), parents of two-year-old Michael F., Jr. (Michael), seek review by extraordinary writ, pursuant to California Rules of Court, rule 8.452, of the juvenile court's orders terminating their reunification services and setting the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26. Both parents contend the juvenile court abused its discretion when it terminated their reunification services and set the matter for a section 366.26 hearing, pursuant to section 366.21, subdivision (e). We shall deny the petition for extraordinary writ.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2015, the Marin County Department of Social Services (Department) filed an original petition alleging that Michael came within the provisions of section 300, subdivision (b). The petition alleged that Michael, then almost 10 months old, had suffered or there was a substantial risk that he would suffer serious physical harm or illness as a result of Mother's inability to provide him with regular care due to her substance abuse and as a result of both parents' failure or inability to adequately supervise or protect him.
Also on August 31, 2015, the Department filed a detention report in which the social worker reported that in June, Mother had been arrested for driving under the influence of drugs, violation of probation, possession of a controlled substance, and cruelty to a child based on Michael being in an unsecured car seat. Both parents agreed to a safety plan to help keep Michael safe. The next week, Father requested and the family court ordered that he obtain full custody of Michael, with supervised visitation for Mother. Mother agreed to enter a 90-day inpatient substance abuse treatment program. Mother spent only 19 days in the program, and Father then let her stay in his apartment, which put Michael at further risk due to the parents' history of domestic violence and Mother's inability to stay sober.
On August 27, 2015, Mother brought Michael to a domestic violence shelter following an incident with Father. She was intoxicated and was planning to drive Michael to attend a meeting with her probation officer, but center staff convinced her to leave Michael with them while she went to her appointment in a taxi. After meeting with her probation officer, Mother was sent to "detox."
The next day, the social worker met with Father, who described the incident with Mother. He said he knew she had been using drugs, and therefore had confronted her and asked her to leave the apartment. Mother then called police and reported that he had pushed her while holding Michael. Father said he was arrested, but the domestic violence charges were dropped. He agreed he needed help controlling the situation with Mother and recognized he could not do it without help. Father also said he had been clean and sober for two and a half years. The social worker spoke with Father's parole officer, who confirmed that Father had been on parole since December 2012, and had violated twice, once in 2013 for battery on a spouse, criminal threats, and false imprisonment, and once in 2014 for battery on a spouse, vandalism, and malicious mischief. Father had previously served eight years in prison for robbery with a firearm, and was set to discharge from parole in February 2016.
The social worker also spoke with Mother, who said she was on "Methadone Maintenance" and had had an adverse reaction to the mixture of Methadone and Benadryl. She said she planned to enter an outpatient treatment program and had been clean from opiates for two years and from alcohol for 100 days. The Department recommended that Michael be detained from Mother and placed in the care of Father, with family maintenance services.
On September 1, 2015, the juvenile court detained Michael from Mother and placed him in the care of Father.
In a September 18, 2015 jurisdiction report, the social worker reported that on September 11, Mother had called her and left a voice mail message that Michael was " 'half-dead and is being taken to the Emergency room!' " The social worker called Father, who said he had called Mother to get Michael's medical number in order to take him to an appointment with his pediatrician to check for a possible ear infection. On September 15, the social worker and a public health nurse conducted a home visit with Father and Michael. Michael appeared to be healthy and developmentally on track. The home was clean and orderly, with appropriate food and supplies. Father shared that he was "feeling a great deal of stress being his son's sole provider," but was " '100 percent focused' " on caring for him.
On September 17, 2015, Father had informed the social worker that Mother had called police that morning and said that Father was holding her and Michael at gunpoint, and that Michael was "half-dead." Officers came to Father's home at 5:00 a.m., and when they learned that Michael was fine, told Father they planned to arrest Mother for filing a false police report and would request a restraining order against her on Father's behalf. Father also told the social worker that he had been laid off from his job and needed help with paying his rent.
In the report, the social worker expressed concern about Mother's lack of insight regarding how dangerous her substance abuse and unstable behavior toward Father was for Michael. The social worker was also concerned about Father's interactions with Mother, and she believed he "needs an intensive amount of support to care for Michael." The social worker recommended that the court take jurisdiction of Michael.
On November 2, 2015, after the parties had negotiated jurisdictional language, both parents submitted to jurisdiction based on a first amended petition and the jurisdiction report. The court sustained the amended petition and set the matter for a disposition hearing.
On November 12, 2015, the Department filed a subsequent petition, pursuant to section 342, and requested that Michael be detained in foster care. In a detention report, the social worker explained that three days earlier, Father had acknowledged that he had been in contact with Mother, including allowing her to visit him and Michael multiple times in the community over the past two to three weeks. Despite his having agreed to a safety plan that involved having no contact with Mother, including changing his cell phone number and calling police if she showed up at his apartment, as well as a no contact order made by the court, Father said he had heard that Mother "was doing well and he felt that it was ok for her to visit him and Michael Jr." However, while Mother was at his apartment on November 6, they got into an argument because he believed she was "high." In addition, pills that he believed were Xanax spilled onto the floor, and he realized how harmful that could be to Michael if he ingested one of the pills.
The detention hearing took place on November 12, 2015. Both parents submitted on the subsequent petition, and the court ordered Michael detained in foster care.
In the jurisdiction/disposition report filed on December 22, 2015, the social worker related that since November 3, Mother had failed to show up for five drug tests. The drug tests she had taken were positive for Methadone and Benzodiazepines, which she attributed to her prescriptions for Xanax and Methadone. She told the social worker on December 9 that she loved and missed Michael and had had no contact with Father for over three weeks. She also "candidly acknowledged her significant substance abuse history, past domestic violence trauma, and her being diagnosed with depression and anxiety." Mother had attended 27 out of 41 possible visits; four visits were missed because Michael was sick. Michael seemed pleased to see Mother and she was affectionate with him during visits.
Father had told the social worker that he was currently "very depressed and at times has had a difficult time coming to visit" Michael. He further stated that he had felt on the verge of relapsing with drugs, but had not done so. His priority was to gain clarity regarding his emotional issues; he wanted to become more emotionally stable. Father had attended 8 out of 11 possible visits. Visit staff had reported that on a few occasions, Father had "become extremely emotional and agitated during visits and one time he abruptly left a visit." Recent visits had gone better. Michael was happy to see Father, who was affectionate and engaged in Michael's care during the visits.
The Department recommended that the court declare Michael a dependent child under section 300, subdivision (b), and offer reunification services to both parents.
On January 25, 2016, the Department filed an addendum report, updating the recommended case plan to reflect the parties' agreement to case plan language following a settlement conference. The recommended services in Mother's case plan included continuing to meet regularly with her therapist, having her psychotropic medication monitored, continuing to drug test, participating in and completing the Centerpoint Outpatient treatment program, and continuing to attend Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings as recommended by Centerpoint. The services recommended for Father included undergoing a psychological evaluation and following all subsequent recommendations to assist him with demonstrating appropriate coping skills and development of healthy adult relationships, continuing to regularly meet with his therapist, participating in drug testing as required by his probation/parole officer, and establishing a support network to assist him in maintaining his sobriety.
At the January 25, 2016 jurisdiction/disposition hearing, both parents submitted on the findings and recommendations in the Department's jurisdiction/disposition report and addendum report. The court adopted the Department's recommendations, sustained the subsequent petition, and found that Michael came within section 300, subdivision (b).
On March 29, 2016, Michael's court appointed special advocate (CASA) filed a report for the interim review hearing, in which she reported that she had observed a visit between Michael and Mother, during which they were affectionate with each other and "he responded easily to her." Father had been incarcerated at the Marin County Jail since January 23, after being charged with burglary and embezzlement of an elder, dependent adult. Michael was visiting Father at the jail once per week. The foster mother told the CASA that Michael returned home after visits with both parents in an agitated state; he also had trouble sleeping.
On April 4, 2016, Michael's foster parent of five months filed a caregiver information form, stating that he was "one of the happiest children" his foster family had ever met. There were, however, some " 'gross motor concerns' " that were being evaluated and he struggled with sleeping, particularly after seeing his parents. After visiting with Mother, "he wakes up during the night screaming, clearly frightened . . . and cannot be soothed for long periods of time." In addition, after the first three jail visits with Father, Michael would not sleep or eat and could not be comforted for two days afterwards.
At the interim review hearing on April 4, 2016, the court set a six-month review hearing for July 25, 2016.
On July 18, 2016, the CASA filed a report for the six-month review hearing in which she described Michael as "curious, sunny, and constantly in motion." There were, however, also concerns about him in that he had serious sleep issues, struggled "with self-soothing and sensory input issues, which display as biting, screaming, and hair pulling." He used very few words and did not recognize his name.
Visits with Father at the jail, which took place through a glass partition, were troubling for Michael. Once Father was released from jail on May 31, 2016, twice weekly supervised visits were arranged by the Department. After the first few visits, Father's "attendance dropped off significantly and was followed by a period of approximately four weeks when he did not follow through with visits." In mid-July Father requested a visit, which took place on July 14. Father had not shown up for several of his appointments for a psychological evaluation, but had recently completed two of the three evaluation appointments.
Mother was also scheduled for twice weekly visits, which became less regular in May and June, and for the previous few weeks there had been none. Mother had been incarcerated at the Marin County Jail and was scheduled to be released on July 14. The charges against her included driving under the influence of drugs, driving, with a suspended license, misdemeanor possession of a narcotic controlled substance, and battery (involving Father).
Because she believed both parents had failed to demonstrate they had addressed the issues that prevented them from providing a safe and stable home for Michael, the CASA recommended that the court terminate their reunification services and set a section 366.26 hearing. The CASA also expressed concern "about the negative emotional impact visits with his parents are having on Michael." She noted that during the recent weeks when there were no visits by either parent, Michael slept through the night. She believed it would be in Michael's best interest to limit visits to, at most, once weekly for each parent.
On August 25, 2016, Michael's foster mother from the foster-adopt home in which he had been placed a month earlier filed a caregiver information form. She described Michael's negative reactions to visits with his parents. After visits with Mother, he had major tantrums, which included violence, and woke up in the night screaming and inconsolable. With Father, in addition to the night terrors, self harm, and lashing out that occurred after visits. "What is most unsettling is the inconsistency with which the visits with dad take place." During the four weeks Michael had been in her home, two of four visits had taken place, with Father cancelling two visits on the scheduled day.
The Department filed its six-month status review report on August 26, 2016. Michael had transitioned to a foster-adopt placement and was receiving services related to speech and language, physical therapy, and occupational therapy.
The social worker reported that Mother was now participating in an inpatient drug treatment program. Before that, she had been in and out of jail at least three times during the present reporting period, failed to submit weekly drug tests, and failed to maintain sobriety. She had completed 16 therapy sessions before she stopped showing up for appointments in late May. Mother had participated in 33 of the 51 offered visits; several were missed due to Mother being ill or incarcerated. The overall quality of the visits had been positive.
For the first four months of the reporting period, Father had been incarcerated, during which time the social worker met with him monthly and facilitated services for him in the jail. After Father was released from jail on May 30, 2016, he began participating in case plan services such as individual therapy, a psychological evaluation, and visitation. He "quickly regressed" and missed six visits in a row with Michael in June and July. He also missed several appointments for his psychological evaluation, but eventually completed it on July 14. In her report, the psychologist recommended that Father engage in cognitive behavioral therapeutic interventions and a medication evaluation " 'to treat the compulsiveness and anxiety and depression in order for [Father] to gain greater insight into the trauma response.' " He had begun individual therapy in late June, and had told the social worker that he found the sessions very helpful.
Father had participated in 22 of 29 visits with Michael during the reporting period, including eight while he was incarcerated. After missing six consecutive visits out of ten following his release from jail, Father had attended four of five offered visits since July 25. Michael was observed smiling and playing with Father during visits.
Father told the social worker that he had received a head injury, which resulted in his missing those visits.
The social worker did not believe Michael could be returned safely to either parent. They had engaged in a violent altercation with each other as recently as late June. In addition, Mother had demonstrated no measurable behavior change with respect to the issues leading to Michael's removal, nor had she addressed the goals of her case plan. Father had "demonstrated minimal measurable behavioral change with regard to his part in the issues that first brought Michael to the Department's attention. [His] impulsivity continues to cause him to make poor decisions regarding his interactions with [Mother] and others. This is demonstrated by his intimidating and/or sometimes violent behaviors with them." However, due to Father's four-month incarceration, during which he could not fully access reunification services, "coupled with his demonstrated commitment, progress, and dedication to reunify with his son," the Department was hopeful that Father would be able reunify with Michael by the 12-month review, assuming he could make "a renewed and continued commitment" to reunification services.
The Department recommended that the court terminate Mother's reunification services, but that it continue Father's reunification services through the 12-month review hearing.
On August 29, 2016, at the initial six-month review hearing, Michael's counsel stated that he was "firm in recommending termination of Father's reunification services" and therefore requested a contested hearing. Mother's counsel stated that she was seeking expanded reunification for Mother, and she also requested a contested hearing.
The contested six-month review hearing took place on October 19, 2016. Father did not attend the hearing because, according to his attorney, he had suffered a concussion and brain injury and was still suffering from symptoms of post-concussion syndrome. Counsel stated that she was authorized to proceed in his absence. At the outset of the hearing, Michael's counsel reiterated that his position differed from that of the Department in that he believed both parents' services should be terminated "because there has not been substantial progress in both of the case plans, and even if there were," he did not "believe the evidence will show there's a substantial probability of return before the 12-month review."
The social worker testified that Mother had failed to satisfy her case plan requirements. First, she did not comply with the drug testing requirement because she failed to test between May and June 2016. She did not comply with the requirement that she enter a drug treatment program until mid-July, when she entered an inpatient program shortly before the six-month period for completion of her case plan ended. Mother also did not consistently attend weekly counseling. After attending a number of therapy sessions, she stopped participating in May. Mother also missed 35 percent of her visits with Michael, though she had not missed any visits since she had entered drug treatment in July. Finally, she was unable to stay away from Father. She had been arrested in June for a domestic violence incident with him.
The social worker testified on cross-examination that she had met with Mother the previous week at her treatment program. Mother was excited to share the progress she had made in the program. The social worker believed Mother was in the last phase of the program, from which she would move to transitional housing.
With respect to Father, the social worker testified that the Department still recommended that he receive six more months of reunification services. On cross-examination, the social worker acknowledged that she did not presently know Father's whereabouts. Her last contact with him was by phone on August 26, 2016, when he said he was out of the area. There was currently a felony bench warrant, issued on September 7, out for his arrest. The social worker also acknowledged that Father was not currently attending therapy. Nor had he followed the recommendation of the psychologist who conducted his psychological evaluation that he get a medical evaluation. He was not currently in compliance with the service objective that he "consistently, appropriately, and adequately parent" Michael; he had not visited with Michael since late July. Nor could he be drug testing, since he had been doing so through his probation officer, and there was a bench warrant out for his arrest. Up until the last two months, Father had made substantial progress in meeting the requirements of his case plan and the social worker believed there was a significant bond between Father and Michael. Father was currently attempting to make arrangements for his sister to be Michael's caregiver if he was unable to reunify.
Mother also testified at the hearing. It was initially difficult for her to participate in reunification services because she was homeless and was devastated that Michael had been taken away from her. She also was overmedicated and taking a bad mix of medications. Mother felt that she was now fully engaged in her services. Since May 2016, she was meeting with a psychologist monthly and having her medications monitored. She had eliminated many of the medications she was previously taking and was now only taking two antidepressants and Methadone. Since mid-July, her drug tests had been clean and she had attended weekly sessions with a counselor. She had been an inpatient drug treatment program since July 15, the day after she was released from custody. She had worked hard and was currently in the last phase of treatment, called reentry. She was also helping to support new residents in the program, of which she was very proud, and was working as a liaison between clients and staff.
Mother had also begun participating in NA meetings, and had a sponsor, with whom she expected to continue working after she left the treatment program. She was on step two of the 12 steps. She was participating in various groups in the program, including a parenting group, a relationship/domestic violence group, and a relapse group where she was learning coping skills. Mother was not in contact with Father, and now understood that staying away from him "is the healthiest thing for both of us, and especially for our son." Mother's plan was to stay in her program until January, and then move to the program's transitional living house, where she could stay for up to a year and Michael could live with her. She planned to graduate from the program the following July. She was currently looking for a job and her career goal was to attend school to become a dental assistant.
Mother believed she had made measurable behavioral changes in that she had entered into treatment and "made a complete 180" in terms of her behaviors, understanding, and coping skills. She believed she could definitely provide a safe environment for Michael.
The juvenile court took the matter under submission and on November 7, 2016, issued its ruling. It found that Mother "did not begin to participate in the six-month program that started January 20th, 2016, until around the last week of July 2016. She was unable to effectively carry out her case plan, including service objectives due to her substance abuse and alcohol abuse. [¶] [Mother] is currently in Center Point [inpatient treatment program] and is following her program there without any problem, and the court does note that she previously completed a three month program.
"[Father] also did complete some of his service objectives until the most past [sic] three months. Since August he's had little contact with Michael. Evidence was provided at the hearing that a bench warrant for [Father] was issued on September 7, 2016, and that [Father] is currently on probation. [¶] [Father] did provide information to the Department that his half sister in Ohio is willing to help with issues of relative placement.
"Of note, in review of the status [review] report and the matters before the Court at the time of contested hearing, both [Mother] and [Father] had at times engaged in domestic violence and often when Michael was present.
"In consideration of the legal guidelines of [section] 326.1 [subdivision] (e), we're looking at the parents who have a child under the age of three. The court has reviewed all testimony in the reports. The court finds clear and convincing evidence that neither parent fully participated and/or made substantive progress in caring for Michael to return Michael to either or both of his parents [sic]. The court finds that the evidence does not support a substantial probability of return of him to either parent. Accordingly, reunification services are terminated for [both parents]." The court then set the matter for a section 366.26 hearing.
On November 10, 2016, Mother filed a notice of intent to file writ petition. On November 14, Father filed a notice of intent to file writ petition. On January 24, 2017, we ordered the proceedings in the juvenile court temporarily stayed, pending determination of the petitions.
DISCUSSION
Both parents contend the juvenile court abused its discretion when it terminated their reunification services and set the matter for a section 366.26 hearing, pursuant to section 366.21, subdivision (e).
Court-ordered services for children under age three on the date of initial removal are presumptively limited to six months from when the child entered foster care. (§ 361.5, subd. (a)(1)(B); M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175-176 (M.V.).) This is because 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." ' [Citation.]" (M.V., at p. 176; accord, Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027.)
At the six-month review hearing, the juvenile court must order the return of the child to his or her parent unless it finds that doing so "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1).) 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.) If the child was under age three on the date of the initial removal "and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days." (§ 366.21, subd. (e)(3).) If, however, the court finds 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, the court shall continue the case to the 12-month permanency hearing." (Ibid.)
In M.V., supra, 167 Cal.App.4th at page 181, the court explained that the " 'substantial probability' " standard at the six-month review requires "the court to determine whether there is a strong likelihood of a possibility of return (not simply a strong likelihood that return will in fact occur). The word 'may' alters the typically high burden of 'substantial probability.' "
In making its findings, the court may take all of the evidence in the record into consideration, including the three factors set forth in subdivision (g)(1) of section 366.21: whether the parent has consistently and regularly visited the child; whether the parent has made significant progress in resolving the problems leading to the child's removal; and whether the parent has demonstrated the capacity and ability to complete the treatment plan objectives and provide for the child's safety and well-being. (M.V., supra, 167 Cal.App.4th at page 181.)
"We review the juvenile court's findings for substantial evidence, and the juvenile court's decisionmaking process based on those findings for abuse of discretion. [Citation.]" (San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 223 (San Joaquin Human Services Agency).)
In the present case, Mother and Father both argue that substantial evidence does not support the juvenile court's finding that they did not participate regularly and make substantive progress in their case plans and that, therefore, the court abused its discretion when it terminated reunification services and scheduled a section 366.26 hearing.
First, as a preliminary matter, both parents assert that the juvenile court, in its oral ruling, did not make the proper finding under section 361.5, subdivision (e) when it found, by "clear and convincing evidence that neither parent fully participated and/or made substantive progress in caring for Michael to return Michael to either or both of his parents" (italics added), instead of that they had failed to "to participate regularly and make substantive progress in court-ordered treatment programs," pursuant to section 366.21, subdivision (e). The context of the court's statement makes clear that it misspoke when it used the italicized language, especially in light of its subsequent statement that it was "adopting the orders incorporated in JV-433, which the reunification services are terminated there under [sic] . . . ." On form JV-433, the juvenile court checked the boxes terminating reunification services for a child under age three on the date of removal, which contained a finding by clear and convincing evidence that both parents "failed to participate regularly and make substantive progress in a court-ordered treatment plan. Reunification services are terminated." Thus, in context, it is apparent that the court understood and applied the correct standard when it terminated reunification services. In addition, there was no objection to the language of the court's oral ruling, and no claim or showing of resulting prejudice. (Cf. In re Corienna G. (1989) 213 Cal.App.3d 73, 84-85 [affirming order where parents "were not prejudiced by the lack of an express determination" and "determination can be implied on this record"].)
Second, neither parent argues that Michael could have been safely returned to his or her care at the time of the six-month hearing or that reasonable services were not provided. Rather, they both contend the court should have found (1) that they had participated and made substantive progress in their court ordered treatment plans, and (2) that Michael "may be returned" to their care within six months, and, therefore, continued their reunification services until the 12-month hearing. (See §§ 361.5, subd. (a)(1)(B); 366.21, subd. (e).) We conclude there is substantial evidence in the record to support the court's findings both that Mother and Father did not regularly participate and make substantive progress in their case plans and that there was not a substantial probability that Michael "may be returned" to either parent within six months. (§ 366.21, subd. (e)(3); M.V., supra, 167 Cal.App.4th at pp. 175-176; Fabian L. v. Superior Court, supra, 214 Cal.App.4th at pp. 1027-1028.)
With respect to Mother, the record reflects that for the first six months after Michael was placed in foster care, Mother failed to regularly participate or make progress in her case plan. Between January and July 2016, she was incarcerated several times on drug-related charges; failed to drug test, remain in a drug treatment program, or maintain sobriety; stopped therapy in May; continued to engage in domestic violence with Father, including an arrest for battery in June; and irregularly participated in visitation with Michael. In mid-July, just before the six-month review period ended, Mother began to fully engage in her case plan when she entered an inpatient drug treatment program, in which she was thriving at the time of the October hearing. In January 2017, she expected to enter the program's transitional housing, where Michael could live with her, and planned to graduate from the program in July.
Substantial evidence supports the juvenile court's finding that Mother's belated compliance with her case plan, while extremely commendable, did not amount to regular participation and substantive progress in her case plan, pursuant to section 366.21, subdivision (e)(3). Indeed, she did not even begin to regularly participate in her case plan, including consistent visitation with Michael, until near the end of the six-month review period. (Cf. Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 601 [substantial evidence supported juvenile court's decision to bypass reunification services where, in light of father's prior history, his "recent efforts simply came too late"].) In addition, although the evidence showed Mother had begun to make progress in the three months before the hearing, the court could reasonably conclude that this belated effort did not indicate a substantial probability that Mother could sufficiently overcome the significant problems leading to dependency and make sufficient progress in her case plan as to allow Michael to be safely returned to her care by the end of the 12-month review period, which, at the time of the October hearing, was approximately three months away. (See §§ 366.21, subds. (e) & (g)(1); 361.49; M.V., supra, 167 Cal.App.4th at p. 181; see also Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846 ["Delays in the timing of one hearing should not affect either the timing of subsequent hearings or the length of services to be ordered"].)
As to Father, the evidence shows that he was incarcerated for the first four months of the review period. He participated in services to the extent possible during that period, including weekly visits with Michael. After his release on May 30, 2016, the social worker reported that he began participating in individual therapy, a psychological evaluation, and visitation. He "quickly regressed," however, and missed six visits in a row with Michael in June and July. He also was involved in a violent altercation with Mother in June. He briefly got back on track with visitation before absenting himself altogether. The social worker's last contact with him was on August 26 and, at the time of the October hearing, she was unsure of his whereabouts. In addition, he had not visited with Michael for at least two months and in September, a bench warrant had been issued for his arrest.
The social worker testified at the six-month review hearing that, up until the last two months, Father had made substantial progress with his case plan. She also believed there was a significant bond between Father and Michael. The Department remained hopeful that Father would be able to reunify with Michael by the time of the 12-month review, assuming he could make "a renewed and continued commitment" to reunification services. In contrast, both the CASA and Michael's counsel recommended termination of Father's reunification services.
We conclude substantial evidence supports the juvenile court's findings that, while Father did initially participate and make some progress in his case plan, for the previous two to three months, he had been out of contact with both Michael and the Department and, hence, had failed to participate regularly and make substantive progress in his case plan. (See § 366.21, subd. (e)(3).) In light of these facts, the court reasonably found there was not a substantial probability that Father could sufficiently overcome the significant problems leading to dependency and make sufficient progress in his case plan such that there was "a strong likelihood of a possibility of return" by the end of the 12-month review period. (M.V., supra, 167 Cal.App.4th at p. 181; see § 366.21, subds. (e) & (g)(1).)
We do not doubt that both Mother and Father care a great deal about their son. Moreover, as the appellate court stated in San Joaquin Human Services Agency, supra, 227 Cal.App.4th at page 225: "We recognize denying or terminating reunification services can be heart wrenching. But 'in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate.' [Citation.]" This is especially true for children like Michael, who are under the age of three when removed from their parents' custody. (See §§ 361.5, subd. (a)(1)(B); 366.21, subd. (e); M.V., supra, 167 Cal.App.4th at p. 176.)
Because its findings were supported by substantial evidence, the juvenile court did not abuse its discretion when it terminated both parents' reunification services and set the matter for a section 366.26 hearing. (See San Joaquin Human Services Agency, supra, 227 Cal.App.4th at p. 223.)
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The stay previously imposed is hereby lifted.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.