In re Ari. R. CA2/3 ( 2024 )

Filed 10/17/24 In re Ari. R. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B334350
In re Ari. R., a Person Coming
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 22CCJP04492B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
O.O.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Tiana J. Murillo, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
O.O., the father of minor Ari. R., appeals from the juvenile
court’s orders at the six- and 12-month review hearings. O.O.
challenges the juvenile court’s findings that the Los Angeles
County Department of Children and Family Services
(Department) provided him with reasonable reunification
services. The Department has moved to dismiss the appeal on
the grounds that O.O. lacks standing and the appeal is moot. In
support of the motion, the Department asserts O.O. is not
aggrieved by the juvenile court’s findings because he does not
seek reversal of the juvenile court’s orders denying him custody of
Ari. R. and, at each review hearing, the juvenile court ordered
continued reunification services. The Department further
contends the appeal is moot because the juvenile court returned
Ari. R. to her mother’s custody while this appeal was pending.
We conclude O.O. has standing to appeal and that the
appeal is not moot. The juvenile court has not terminated
dependency jurisdiction over Ari. R. An erroneous
reasonableness finding could impair O.O.’s ability to seek
additional reunification services if Ari. R. is again removed from
mother’s custody. We further conclude substantial evidence does
not support the juvenile court’s finding that the Department
provided reasonable services to O.O. prior to the six-month
review hearing. However, substantial evidence supports the
reasonable services finding at the 12-month review hearing. We
reverse the juvenile court’s six-month reasonable services finding
as to O.O. In all other respects, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 2022, Ari. R. (born September 2018) and her two
maternal half siblings lived with mother. In October 2022, the
Department received a report that mother and D.T., the father of
Ari. R.’s older half sibling, were involved in a domestic violence
dispute in front of Ari. R.’s younger half sibling. Ari. R. was not
present during the altercation. Mother admitted she had a
history of methamphetamine use but denied current use. She
also reported suffering from depression and anxiety. The
Department detained the children.
In November 2022, the Department filed a petition under
Welfare and Institutions Code section 300, subdivisions (a), (b),
and (j),1 alleging, among other things, that mother and D.T. had a
history of engaging in violent altercations in the presence of the
children and were current abusers of methamphetamine and
marijuana. The petition identified O.O. as the alleged father of
Ari. R. At the detention hearing, the juvenile court deferred a
finding on paternity with respect to Ari. R. Ari. R. was detained
from mother and placed with the maternal grandmother.
In an interview for the jurisdiction/disposition report,
mother told the Department that O.O. only married her to get a
Green Card. When she became pregnant with Ari. R., O.O. did
not want anything to do with the baby and mother never saw him
again.
In February 2023, the juvenile court again found O.O. to be
Ari. R.’s alleged father. The Department reported that it had
contacted O.O., who asked to keep his addresses confidential
“because he fears maternal family due to past threats towards
1 All undesignated statutory references are to the Welfare
and Institutions Code.
3
him.” O.O. indicated he had been married to mother for one
month and ended the marriage due to infidelity. Mother never
told him he had a child, and he did not believe Ari. R. was his
child. If Ari. R. was his child, O.O. wanted to take her from the
maternal family because they were “dangerous people and drug
users.” However, he also did not want anything to do with the
case. The court appointed counsel for O.O. and ordered genetic
testing.
At the April 2023 adjudication hearing, the juvenile court
sustained the petition as amended by interlineation. O.O. was
not named in the petition.
In a last minute information filed in May 2023, the
Department reported that DNA testing indicated a 99.9 percent
probability that O.O. was Ari. R.’s biological father. O.O.
subsequently filed a statement regarding parentage in which he
reported that he “told friends and family that [Ari. R.] is my
child” and that he was “more than willing to accept the child into
my home.” The juvenile court found O.O. to be Ari. R.’s presumed
father.
Before the disposition hearing, the Department reported
that O.O. did not wish to have his home assessed and did not
want custody of Ari. R. at that time. O.O. “stated his thought
was to get full custody at a later time and take the child to live in
Nigeria with his other older children.” The social worker
indicated that plan might not be ideal since mother intended to
reunify with Ari. R., but O.O. responded that mother had too
many children and he would be doing her a favor by taking one
away. If his plan was not possible, O.O. was willing to pay child
support and “continue to have visits when time permits.” The
Department scheduled a visit between O.O. and Ari. R., which
4
O.O. canceled. He told the social worker “he would rather wait
until the next Court hearing to discuss visits.” The Department
recommended O.O. receive family reunification services and
monitored visits with discretion to liberalize.
At the June 2023 disposition hearing, counsel for O.O.
stated O.O. was willing to have his home assessed and he was
seeking custody. She denied that O.O. wanted to take Ari. R. to
Nigeria permanently and requested an order releasing Ari. R. to
O.O. after his home was assessed. Ari. R.’s attorney opposed the
request on the grounds that the minor had no relationship with
O.O. and O.O. had declined the opportunity to visit her and
refused to have his home assessed. She also expressed concerns
about O.O.’s stated desire to separate Ari. R. from her siblings,
with whom she was bonded. The Department joined these
arguments.
The juvenile court found by clear and convincing evidence
that releasing Ari. R. to O.O. would pose a detriment to the minor
because she had no relationship with O.O., the placement would
remove her from a caregiver and siblings with whom she was
bonded, and O.O.’s wishes regarding placement had been
inconsistent. It ordered family reunification services for the
parents. O.O.’s case plan consisted only of monitored visitation
with Ari. R. three times a week. The court gave the Department
discretion to liberalize the visits.
In November 2023, the Department filed a status report
addressing mother’s progress. The report did not mention O.O.
However, in a last minute information filed less than a week
before the six-month review hearing, the Department reported
that O.O. had only had one visit with Ari. R., which took place in
July and went well. However, the Department had “encountered
5
great difficulty in arranging further visits . . . due to minor’s
school schedule. Minor gets out of school from the after school
program at 6:00pm. This timeframe is after the office closes, and
therefore, creates conflict in arranging for a monitor to be
available.”2 O.O. had indicated that he was only comfortable
with a monitor from the Department. The Department reported
that the social worker and caregiver were planning to arrange
one or more visits during Ari. R.’s upcoming holiday break.
At the six-month review hearing held on December 6, 2023,
O.O.’s attorney asked that the court make a no reasonable
services finding. She argued that O.O. “does not have people to
monitor his visits” and she did not believe the Department was
working towards providing O.O. with visitation since it failed to
provide any information about its efforts to arrange or facilitate
visits. She requested unmonitored visitation. In the alternative,
O.O.’s attorney asked for the appointment of a Department aide
and that the court order the Department to work with Ari. R.’s
school and caregiver to arrange visits during the week. Counsel
for the Department asked that O.O.’s visits remain monitored
and submitted that it had provided reasonable services
considering the children’s “fairly strict schedules.” The
Department’s counsel reiterated that O.O. had been unwilling to
have anyone but the Department monitor visits, even though
maternal family and a non-related extended family member were
available to monitor his visits, and this had been a barrier for the
Department. She represented that the Department would assess
obtaining an aide to serve as a monitor.
2 The previously filed status report indicated then five-year-
old Ari. R. was attending a full-day transitional kindergarten
program at a preschool.
6
The juvenile court concluded continued dependency
jurisdiction and removal was necessary but both parents had
made substantial progress. It further stated: “There appears to
be a bit of a factual dispute as to why [O.O.] has not had visits,
and on that basis I am not finding no reasonable services.” It
declined to liberalize O.O.’s visitation based on a single visit. The
court instructed the Department to continue providing family
reunification services, assist in finding monitors for O.O., and
evaluate weekday visits for O.O. It also advised that O.O. should
provide the Department a list of names for assessment as
monitors, as that would maximize his opportunities for monitored
visitation.
In a status review report filed December 29, 2023, the
Department reported continued challenges arranging visits
between O.O. and Ari. R. because Ari. R. got out of school shortly
before the Department office closed. The Department was
exploring the possibility of having a case aide assigned to monitor
visits over the weekends at a neutral location.
Prior to the 12-month review hearing, O.O. sought
admission of three exhibits concerning his efforts to arrange for
visitation. Two were admitted. The first exhibit was a text
message exchange between O.O. and a social worker reflecting
attempts to arrange visitation between November 2023 and
January 2024. Although O.O. and the social worker arranged a
visit for December 20, the social worker reported on that day that
“[t]he caregiver said some of the girls are under the weather” and
was unable to bring Ari. R. for a visit. The following day,
December 21, the social worker asked whether O.O. would be
able to accommodate a weekly visit at the Department office if
she was able to locate a monitor, to which O.O. agreed. When the
7
social worker informed O.O. she would not be available to
supervise a visit the following week, he expressed frustration
that he had not seen Ari. R. on her birthday and would not see
her for Christmas or New Year either. The social worker stated
that she was submitting the referral for a monitor that day.
Although she was going to be on vacation the next week, she
indicated she would be conferring with her supervisor to attempt
to arrange a visit for O.O. that week. However, she cautioned
that the Department would likely be short of workers given the
holidays. O.O. and the social worker subsequently arranged and
confirmed a visit for January 8. The other exhibit reflected the
school hours for Ari. R.’s preschool.
In a last minute information filed January 17, 2024, the
Department reported that there had been no further visitation
between O.O. and Ari. R. O.O. had canceled the visit scheduled
for January 8 and O.O. and Ari. R. remained on waiting lists for
Department monitors. The social worker was monitoring the
lists. The Department informed the court that the social worker
would attempt to arrange and monitor visits as much as the
worker’s schedule permitted.
On January 18, 2024, the juvenile court held the 12-month
review hearing. O.O.’s counsel again asked the court to make a
no reasonable services finding. She acknowledged the shortage of
Department monitors but argued that it was unreasonable to
require monitored visitation when the Department was unable to
provide a monitor. Counsel argued: “I do not believe that the fact
that father either said that he only wants [Department] monitors
or that he, himself, does not have people to provide, should be
held against him when it’s, again, the responsibility of the
Department.” In the alternative, she asked the court to order the
8
Department to provide updates regarding other alternatives for
visitation and for unmonitored visitation. Counsel for the
Department argued that the Department had made reasonable
efforts with respect to O.O. given the “clear limitations as to
monitors.”
The juvenile court admitted the exhibit reflecting O.O.’s
text messages with the social worker but stated that it was “not
persuaded [that] these captured a whole of any efforts the
Department was making, in terms of there is no one to verify on
the receiving end” and would give the exhibit “appropriate
weight.” The court noted “a threshold matter, dad has a monitor
he does not want, that would be, grandma. [¶] . . . dad’s own
personal issue with the monitor is not a reason that he can’t have
visits. [¶] He can have visits, if he would use the monitor that
the Department has assessed is appropriate. [¶] He could have
been visiting his child this entire time, but the threshold issue for
dad is he has no other monitors to offer. [¶] He does not like the
one that was selected.” This was a “major issue that [O.O.] has a
role in.”
The court ordered the Department to follow up on possible
monitors but stated it was “not conceding that [O.O.’s] issue with
the available monitor is an appropriate one.” The court found the
Department had offered reasonable services and ordered that the
Department facilitate O.O.’s visits with the existing monitor
(maternal grandmother) while an alternative monitor was
located, explain in detail its efforts to find other monitors, and
assess the use of a private monitor for O.O.’s visits.
O.O. timely appealed from the December 6 and January 18
orders.
9
On March 13, 2024, the juvenile court ordered Ari. R.
returned to mother’s custody under the supervision of the
Department. The court ordered family maintenance services for
the parents, instructed the Department to assess unmonitored
visits for O.O., and ordered the Department to provide O.O. and
his counsel additional information concerning Ari. R.’s school
program.3
DISCUSSION
O.O. contends there was not clear and convincing evidence
of reasonable services at the six-month review hearing where the
juvenile court failed to reconcile the factual dispute as to why
O.O. had not received more visits. He also argues that the
Department failed to make a reasonable plan for visitation at
both the six-month and 12-month review hearings. The
Department asserts the appeal should be dismissed for lack of
standing and mootness. Alternatively, it argues that substantial
evidence supports the juvenile court’s reasonableness findings.
3 We grant the Department’s request for judicial notice of the
juvenile court’s March 13, 2024 findings and orders. The
Supreme Court recently observed that courts can “ ‘ “ ‘take
judicial notice of the truth of facts asserted in documents such as
orders, findings of fact and conclusions of law, and judgments.’ ” ’
[Citation.]” (In re Kenneth D. (2024) 16 Cal.5th 1087, 1106.) The
court also confirmed that the application of Code of Civil
Procedure section 909, which allows a reviewing court to make
factual findings in addition to those made by the trial court, was
“warranted” where “dependency jurisdiction was mooted by that
court’s later termination of jurisdiction while the appeal was
pending” and the additional evidence “pertained not to the
underlying merits of the issue on appeal . . . but to the collateral
issue of whether the Court of Appeal should exercise its
discretion in deciding a technically moot case.” (Id. at p. 1105.)
10
I. Applicable Legal Standards
“Dependency proceedings span up to four stages:
jurisdiction, disposition, reunification, and permanency.”
(Michael G. v. Superior Court (2023) 14 Cal.5th 609, 624 (Michael
G.).) “This case concerns the reunification stage. When a child
has been removed from a parent’s custody, the court ordinarily
must order child welfare services designed to facilitate the
reunification of the family.” (Ibid., citing §§ 361.5, subd. (a), 362,
subds. (c), (d).) “Visitation is an essential component of any
reunification plan. [Citation.] To promote reunification,
visitation must be as frequent as possible.” (In re Alvin R. (2003)
108 Cal.App.4th 962, 972 (Alvin R.).)
“Parents of children three or older are presumptively
eligible for at least 12 months of [reunification] services.”
(Michael G., supra, 14 Cal.5th at p. 625, citing § 361.5,
subd. (a)(1)(A).) “During the reunification stage, the juvenile
court must hold periodic review hearings to evaluate the status of
reunification efforts and appropriate next steps. [Citation.]
These review hearings ordinarily take place at six-month
intervals. At each review hearing, a court evaluates, among
other things, the adequacy of the reunification services offered or
provided and the extent of the parent’s progress. . . . [A]t the six-
and 12-month status hearings, the court must find that the
parent has been provided or offered reasonable reunification
services before the court can proceed to set a hearing to decide
whether to terminate parental rights and select a permanent
plan for the child.” (Michael G., at p. 625.) At both hearings, if
the child is not returned to the parent, the juvenile court is
required to determine by clear and convincing evidence whether
the social services agency provided or offered reasonable services
11
that were designed to aid the parent in overcoming the problems
that led to the initial removal and continued custody of the child.
(§ 366.21, subds. (e)(8), (f)(1)(A).)
The Department “must make a ‘ “ ‘good faith effort’ ” ’ . . . to
provide reasonable reunification services in spite of difficulties in
doing so or the prospects of success.” (In re Taylor J. (2014) 223
Cal.App.4th 1446, 1451.) “Although the statute does not define
‘reasonable services,’ the Courts of Appeal have generally held
that, to support a finding that services were reasonable, ‘the
record should show that the supervising agency identified the
problems leading to the loss of custody, offered services designed
to remedy those problems, maintained reasonable contact with
the parents during the course of the service plan, and made
reasonable efforts to assist the parents in areas where
compliance proved difficult . . . .’ [Citation.]” (Michael G., supra,
14 Cal.5th at p. 625, fn. 6.) “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.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
“When a finding that reunification services were adequate
is challenged on appeal, we review it for substantial evidence.
[Citations.] ‘ “ ‘In juvenile cases, as in other areas of the law, the
power of an appellate court asked to assess the sufficiency of the
evidence begins and ends with a determination as to whether or
not there is any substantial evidence, whether or not
contradicted, which will support the conclusion of the trier of
fact.’ ” ’ [Citations.] Even if there is no substantial conflict in the
evidence, we must nevertheless draw all legitimate inferences in
support of the findings of the juvenile court.” (Melinda K. v.
Superior Court (2004) 116 Cal.App.4th 1147, 1158.) However,
12
when the burden of proof at the trial court level is clear and
convincing, the substantial evidence standard of review should
account for the higher level of certainty demanded by that burden
of proof, as compared to facts proven by preponderance of the
evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998–
1006; see also Alvin R., supra, 108 Cal.App.4th at p. 971 [when
applying substantial evidence standard with respect to
reasonable services finding, “we bear in mind the heightened
burden of proof”].)
II. Appealability
The Department has moved to dismiss this appeal on two
grounds related to appealability. First, the Department contends
O.O. lacks standing because he was not aggrieved by any of the
juvenile court’s orders. (In re K.C. (2011) 52 Cal.4th 231, 236 [for
purposes of appellate standing in a dependency case, “[a]n
aggrieved person . . . is one whose rights or interests are
injuriously affected by the decision in an immediate and
substantial way, and not as a nominal or remote consequence of
the decision”].) The Department points out that O.O. does not
challenge any juvenile court order, including the finding that it
would be detrimental to place Ari. R. in his custody, and he does
not contend that any order of the court should be reversed. The
Department further argues that this court can provide father no
effective remedy because he has already obtained the relief to
which he would have been entitled had the juvenile court made a
no reasonable services finding: an additional period of
reunification services. (Serena M. v. Superior Court (2020) 52
Cal.App.5th 659, 678 (Serena M.).)
We agree with the court in In re T.G. (2010) 188
Cal.App.4th 687 (T.G.), which rejected similar arguments. In
13
T.G., as in this case, the father purported to appeal from the
juvenile court’s finding at the six-month review hearing that
reasonable reunification services were provided to him. The
social services agency argued the finding was not appealable
under section 395 because the father challenged it in isolation
and could not show he was aggrieved since the court took no
adverse action against him and continued his services.4 (T.G., at
pp. 690, 691.)
The appellate court concluded that although the father did
not challenge the juvenile court’s order continuing the children’s
removal from his custody, the reasonable services finding was
itself appealable. The court reasoned that “a parent . . . can [be]
aggrieved by a reasonable services finding at the time of the six-
month review hearing if it is not supported by substantial
evidence. Such a finding can put the interests of parents and
children in reunification at a significant procedural
disadvantage.” (T.G., supra, 188 Cal.App.4th at p. 695.)
The court explained that reunification services are
generally limited to 12 months for a child over the age of three,
and a heightened showing is required at the 12-month review
hearing to continue reunification services to the statutory
4 “ ‘Generally, a parent who is aggrieved by an order after
judgment in a juvenile dependency proceeding may take an
appeal from that order. (§ 395.) “To be aggrieved, a party must
have a legally cognizable immediate and substantial interest
which is injuriously affected by the court’s decision. A nominal
interest or remote consequence of the ruling does not satisfy this
requirement.” [Citation.]’ [Citation.] ‘For purposes of appellate
standing in dependency cases, a parent is aggrieved by a juvenile
court order that injuriously affects the parent-child relationship.
[Citation.]’ ” (T.G., supra, 188 Cal.App.4th at p. 692.)
14
maximum of 18 months. The court must find there was
consistent and regular visitation by the parent, the parent made
significant progress in resolving problems that led to the child’s
removal, and the parent must have demonstrated the capacity
and ability to complete the objectives of the parent’s treatment
plan and to provide for the child’s safety, protection, physical and
emotional well-being, and special needs. (T.G., supra, 188
Cal.App.4th at p. 695; § 366.21, subd. (g).) “Under these
circumstances, it is obvious it would be significantly more
difficult for a parent to either reunify with a child or to satisfy the
heightened showing required for a continuation of reunification
services if the parent was not provided with reasonable services
during the first six months of the reunification period.” (T.G., at
p. 695.)
The T.G. court further reasoned that “a parent whose
services are terminated at the 12-month review period based in
part on an erroneous finding of reasonable services during the
first six months of reunification, would be unable to challenge
that finding by way of an appeal from a subsequent adverse order
at the time of the 12-month review hearing.” (T.G., supra, 188
Cal.App.4th at pp. 695–696.) This fact also demonstrated the
father was aggrieved by the reasonable services finding at the
six-month hearing.
Here, O.O. challenged the reasonable services findings at
both the six and 12-month review hearings, but the T.G. court’s
reasoning remains applicable. The reasonable services findings
at both hearings are adverse to O.O.’s parental interest in
gaining custody of Ari. R. (Alvin R., supra, 108 Cal.App.4th at
p. 974 [unless erroneous six-month reasonable services finding
reversed “the prejudice to father from the ruling will come later,
15
at each successive phase of the proceedings”; “without visitation,
father may face termination of reunification efforts”].) O.O. has
sufficiently demonstrated he is aggrieved by the juvenile court’s
findings to establish his standing to maintain the appeal.
Second, the Department asserts O.O.’s appeal is moot
because Ari. R. has been returned to mother’s custody. The case
is no longer in a reunification phase, and O.O. is not entitled to
reunification services so long as Ari. R. is in the custody of at
least one parent. Any order of services intended to enhance
O.O.’s relationship with Ari. R. is subject to the juvenile court’s
discretion. (In re C.S. (2022) 80 Cal.App.5th 631, 636–637; In re
Destiny D. (2017) 15 Cal.App.5th 197, 212–213.)
“A case becomes moot when events ‘ “render[ ] it impossible
for [a] court, if it should decide the case in favor of plaintiff, to
grant him any effect[ive] relief.” ’ [Citation.] For relief to be
‘effective,’ two requirements must be met. First, the plaintiff
must complain of an ongoing harm. Second, the harm must be
redressable or capable of being rectified by the outcome the
plaintiff seeks.” (In re D.P. (2023) 14 Cal.5th 266, 276.)
Speculative future harm is insufficient to avoid mootness. (Id. at
pp. 278, 280.) When a parent has failed to demonstrate a specific
legal or practical consequence that will be averted upon reversal,
“the case is moot, but the court has discretion to decide the merits
nevertheless.” (Id. at p. 283.)
While reversing the juvenile court’s reasonable services
findings from the six- or 12-month hearings would have no
immediate effect on the proceedings, we conclude O.O.’s appeal is
not moot. The March 13, 2024 order states that the juvenile
court retained jurisdiction and Ari. R. was returned to mother
“contingent upon mother continuing to test negative and continue
16
participating in Court ordered programs.” It is possible that the
juvenile court could remove Ari. R. from mother’s custody under
section 387 if mother fails in either of these respects. Should that
occur, the juvenile court may be in the position of determining
whether any further reunification services should be provided to
O.O.
Although more than 18 months have passed since Ari. R.
was removed,5 a previous finding that the Department failed to
provide adequate reunification services could permit O.O. to
argue for additional services. In Michael G., the Supreme Court
concluded that a juvenile court has discretion under section 352
to continue a permanency planning hearing and order additional
reunification services where good cause exists. (Michael G.,
supra, 14 Cal.5th at p. 632, citing § 352, subd. (a)(1)–(2); see also
Michael G., at p. 633 [power to continue a permanency hearing
plan implied a power to continue reunification efforts].) The
Supreme Court observed that, “[w]here . . . deprivation of
5 Eighteen months from the time a child is initially removed
is “ ‘generally considered the outer statutory time limit for
reunification services.’ ” (In re Damian L. (2023) 90 Cal.App.5th
357, 371; see also § 361.5, subd. (a)(3)(A).) “Once a child is
initially removed from their parent’s custody, a deadline is set,
and it is not reset if the parent regains custody at some point
during the time period. To construe section 361.5’s language as
requiring the court to reset the 18-month deadline simply
because a parent succeeded in temporarily regaining physical
custody ‘ “ ‘would scuttle the purpose of the statute merely to
preserve its form.’ ” ’ [Citations.]” (Damian L., at p. 376; accord,
Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166
[“[w]hen a juvenile court sustains a supplemental petition
pursuant to section 387, the case does not return to ‘ “square
one” ’ with regard to reunification efforts”].)
17
reasonable services does impede the juvenile court’s ability to
properly evaluate the prospects for family reunification,”
section 352 provides “an emergency escape valve . . . .” (Michael
G., at p. 636.) “A court’s use of its discretionary authority under
section 352 may be particularly appropriate in cases where a
parent has never received reasonable services during the
reunification stage.”6 (Michael G., at p. 633, fn. 9.)
Here, a ruling in O.O.’s favor would establish that he did
not receive any reasonable reunification services for six or 12
6 Before the Michael G. decision, courts had “expressed
uncertainty” as to whether section 366.22 required or permitted a
juvenile court to extend reunification services past the statutory
maximum of 18 months if the court found at the 18-month review
hearing that the social services agency had failed to provide a
parent with reasonable reunification services in the 12- to 18-
month period. (Michael G., supra, 14 Cal.5th at pp. 623, 620.)
The Michael G. court concluded such extensions were not
mandatory or automatic (id. at pp. 620, 627), but section 352
allowed a juvenile court to extend reunification services beyond
18 months when there are “exceptional circumstances
constituting good cause for the continuance” and it would not be
contrary to the child’s interests. (Id. at p. 635.) Subsequently,
section 366.22 was amended, effective January 2024, to provide
that if the court finds reasonable services have not been provided
at the 18-month review hearing, “the court shall extend
reunification services for an additional six months,” unless the
court finds extending services would be detrimental to the child,
based on evidence from a mental health professional. (§ 366.22,
subd. (b)(2)(A)–(B), italics added; see Stats. 2023, ch. 714, § 2.5.)
Although the Michael G. court’s holding has thus been
superseded by statute with respect to the 18-month review
hearing, we continue to find the general reasoning applicable
regarding the potential arguments available to a parent seeking
an extension of reunification services.
18
months, which could potentially support a request under
section 352 for a continuance of a permanency planning hearing
and additional reunification services. On the other hand,
rejecting O.O.’s claims as moot would permanently insulate from
review any erroneous finding that O.O. received adequate
reunification services in the first six or 12-month period.
In re D.N. (2020) 56 Cal.App.5th 741, is instructive. In that
case, Division One of this District rejected the Department’s
argument that a father’s appeal of finding of detriment was moot
because the minor had been returned to his mother’s custody. In
D.N., as in this case, the juvenile court retained jurisdiction and
ordered the mother to submit to drug testing. (Id. at p. 755.) On
appeal, the court expressed concern that if it “rule[d] the issue
moot, the juvenile court’s finding of detriment may escape review
despite the potential deleterious consequences to father of that
ruling.” (Id. at p. 758.) For example, “if the juvenile court
terminates its jurisdiction at a later section 364 hearing, then
this detriment finding could affect whether the court grants
mother sole physical custody of [the minor] in the exit order.”
(Ibid.) Alternatively, the juvenile court might remove the minor
from his mother under section 387 if she relapsed, or, “if mother
does not timely mitigate the substantial risk of harm to [the
minor] resulting from her substance use, then the juvenile court
could set a section 366.26 hearing to determine whether to
terminate both parents’ rights, given that the court has already
found by a preponderance of the evidence that returning the child
to father’s custody poses a substantial risk to [the minor’s]
‘safety, protection, or physical or emotional well-being.’
[Citation.]” (Id. at pp. 758–759.)
19
Here, too, there is a non-speculative possibility that O.O.
will suffer harm if the juvenile court’s reasonableness findings
were erroneous. Although we cannot at this point direct the
juvenile court to order the Department to provide O.O. an
additional period or additional periods of reunification services,
we can instruct the juvenile court to reverse and vacate any
erroneous findings. (In re A.G. (2017) 12 Cal.App.5th 994, 1005
[“remedy for the failure to provide court-ordered reunification
services to a parent is to provide an additional period of
reunification services to that parent and to make a finding on the
record that reasonable services were not offered or provided”].)
We therefore deny the Department’s motion to dismiss the appeal
and consider the merits.
III. Substantial Evidence Supports the Juvenile Court’s
Reasonable Services Finding at the 12-Month Review
Hearing, But Not at the Six-Month Review Hearing
O.O. contends that the juvenile court’s own statements at
the six-month hearing demonstrate that it did not find that the
Department provided O.O. with reasonable services by clear and
convincing evidence. He further argues that there was no clear
and convincing evidence “that the department made a [ ]
reasonable plan to make sure father was able to see his daughter
and that it made efforts to overcome difficulties in ensuring the
visits actually took place.”
We agree that substantial evidence does not support a
juvenile court finding by clear and convincing evidence that the
Department provided or offered “reasonable services that were
designed to aid the parent . . . in overcoming the problems that
led to the initial removal and the continued custody of the
child . . . .” (§ 366.21, subd. (e)(8).)
20
The juvenile court’s detriment finding with respect to O.O.
was based in part on the absence of a relationship between O.O.
and Ari. R. Visitation was necessary to address this concern.
Indeed, courts have recognized that “ ‘[v]isitation is a critical
component, probably the most critical component, of a
reunification plan,’ ” and that “ ‘[w]ithout visitation of some sort,
it is virtually impossible for a parent to achieve reunification.’
[Citation.]” (Serena M., supra, 52 Cal.App.5th at p. 673.) “To
promote reunification, visitation must be as frequent as possible,
consistent with the well-being of the child.” (Ibid.) “The longer
parent and child live with no visitation, the less likely there will
ever be any meaningful relationship.” (Alvin R., supra, 108
Cal.App.4th at p. 973.)
Providing reasonable services thus required the
Department to assist O.O. in having the visits the court ordered.
Yet, O.O. had only a single visit with Ari. R. between the
disposition hearing in June 2023 and the six-month review
hearing in December 2023. Although O.O.’s insistence on a
Department monitor may have posed “a major obstacle to any
reunification efforts,” the Department was required to provide
evidence of “[s]ome effort . . . to overcome obstacles to the
provision of reunification services.” (Alvin R., supra, 108
Cal.App.4th at p. 973.) The record before the juvenile court
disclosed no such efforts.
Moreover, the Department has “the obligation to make a
record at the six-month and twelve-month review hearings
establishing that reasonable services were provided.” (In re
Precious J. (1996) 42 Cal.App.4th 1463, 1478.) The last minute
information was the only document the Department provided to
the court addressing O.O.’s visitation before the six-month review
21
hearing. The one-paragraph report indicated that O.O. only
wanted a monitor from the Department for his visits. But it did
not inform the court that at any point in the previous six months
the Department had discussed the issue with O.O. in any detail,
investigated other Department resources to facilitate O.O.’s
visitation, identified other neutral monitors, or attempted to
work with O.O. to find a solution. Although the Department
claimed “great difficulty in arranging further visits . . . due to
[Ari. R’s] school schedule,” it did not address why a preschool-
aged child could not be taken out of school before 6:00 p.m. for
visits. The report offered no other information to explain why
only one visit had occurred in six months.
The record therefore lacks substantial evidence to support
the court’s reasonable services finding at the six-month review
hearing. The Department’s representations in the last minute
information and at the review hearing that it would try to
arrange further visits in the future, and would assess a
Department monitor going forward, were insufficient to remedy
the lack of any record establishing that it provided reasonable
services in the six months that had passed since the disposition
hearing.
The same is not true of the period between the six-month
and 12-month review hearings, however. Because of delays in
conducting the jurisdiction and disposition hearings, the 12-
month review hearing took place only a little over one month
after the six-month review hearing. The record establishes that
in that time, the Department placed O.O. and Ari. R. on a
waitlist for a Department monitor and was regularly checking on
the status. O.O.’s exhibit shows that the social worker asked
O.O. about a possible weekly visit between 12:30 and 1:30 p.m.,
22
which indicates that the Department was considering the
possibility of visits during school hours, in addition to exploring
having weekend visits monitored by a case aide. While waiting
on the availability of a Department monitor, the social worker
attempted to arrange visits that she would monitor. One such
visit was scheduled and then canceled by O.O. The Department
did what the juvenile court instructed it to do at the six-month
review hearing. We conclude that substantial evidence supports
that its efforts were reasonable considering the obstacle posed by
O.O.’s refusal to have available non-Department individuals,
such as the caregiver, monitor his visits with Ari. R.
To the extent O.O. argues that the Department’s failure to
explain why it was only exploring potential resolutions to
visitation difficulties between the six- and 12-month review
hearings supports a finding that no reasonable services were
provided at the 12-month review hearing, we disagree. The
Department’s failure to provide (or to document its efforts to
provide) reasonable services at one point cannot mean that the
Department’s subsequent services will forever be inadequate,
even when reasonably designed to remedy the issue that led to
the loss of custody.
23
DISPOSITION
The juvenile court’s order of December 6, 2023 is reversed
only with respect to its finding that O.O. received reasonable
reunification services, and that finding is vacated. The matter is
remanded to the juvenile court to enter a new order finding that
reasonable reunification services were not provided to O.O. as of
that date. In all other respects, the juvenile court’s orders of
December 6, 2023 and January 18, 2024 are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
HANASONO, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
24