Filed 2/14/14 Michael J. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MICHAEL J.,

Petitioner,

v.

THE SUPERIOR COURT OF 

CALIFORNIA FOR THE COUNTY OF 

MONTEREY

Respondent,

MONTEREY COUNTY DEPARTMENT 

OF SOCIAL & EMPLOYMENT 

SERVICES, 

Real Party in Interest.

 No. H040336

 (Monterey County

 Super. Ct. Nos. J46890,J46891,

 J46892, J46893) 

A.J., J.J., K.T., and S.M.T., minors all under the age of 10 (collectively, the 

minors), were placed in protective custody on November 14, 2012. Thereafter, the 

Monterey County Department of Social and Employment Services, real party in interest

(Department), filed four petitions alleging the failure of the minors’ mother, S.T. 

(Mother), and father, Michael J. (Father), to protect and provide support for their 
2

children, under Welfare and Institutions Code section 300, subdivision (b).1 It was 

alleged in each petition, inter alia, that (1) Mother had a longstanding substance abuse 

problem; (2) Mother has nine children2and a history with child protective services in 

three counties dating back to at least 1994; (3) two of the minors, A.J. (eight) and J.J. 

(eight), were caught stealing food at a store in Salinas on November 13, 2012; (4) when 

he was apprehended, A.J. explained that he was hungry and trying to get food for his 

younger siblings, and that Mother had sent him and his twin sister, J.J., out to steal food; 

(5) at the time A.J. was caught stealing, J.J. was found outside the store panhandling; (6) 

on November 14, 2012, a social worker paid a visit to the motel room where Mother and 

the minors were living and found the place “in a filthy state” with “trash all over the 

floor,” “broken bowls with dried beans in them,” a “toilet that was plugged to the top 

with feces,” a plugged bathroom sink, and a refrigerator with no food. The Department 

further alleged that J.J. had said that she had been sexually abused more than once by an 

older half-brother, and she had told Mother about the abuse, but Mother did not report it. 

The Department also alleged that both Father and Mother were physically abusive to the 

minors, and that none of the minors was enrolled in school. 

On January 30, 2013,

3

respondent superior court found the allegations true and 

sustained each petition. It ordered that family reunification services be provided to 

Mother and Father. Thereafter, two psychologists performed court-ordered evaluations 

of Mother and Father. After separate interviews and evaluations of each parent 

performed by each psychologist, both experts found the parents to be suffering from a 

mental capacity or disorder that rendered them unable to care for and control the minors,

 

1

Further statutory references are to the Welfare and Institutions Code unless 

otherwise stated.

2 Although Department alleged at the time it filed the petitions that Mother has 

nine children, it later learned, as discussed, post, that Mother actually has 13 children. 

3 All dates hereafter stated are 2013 unless otherwise specified.
3

even with the provision of family services. Accordingly, both professionals 

recommended that reunification services for Mother and Father be terminated. 

At the six-month review hearing held on October 30, the court ordered that the 

minors continue to be detained and remain in out-of-home care. In its October 30 order 

(Order), the court also set a selection and implementation hearing under section 366.26 

(hereafter, sometimes referred to as a .26 hearing) for February 19, 2014, and terminated 

reunification services for Mother and Father. The Order contained a number of findings, 

including that each minor was a member of a sibling group, and that reasonable services 

had been provided or offered to the parents by the Department. The court also found, by 

clear and convincing evidence, that (1) Mother and Father had each failed to participate 

regularly and make substantive progress in a court-ordered treatment program; (2) there 

was not a substantial probability that the minors might be returned to their parents within 

six months; and (3) based upon the opinions of two mental health professionals, the 

parents suffered from a mental incapacity or disease that warranted termination of 

reunification services. 

Petitioner Michael J. seeks a writ of mandate to compel respondent superior court 

to vacate its Order. He challenges the court’s termination of his reunification services, 

contending that the court erred because (1) the order requiring Father to submit to 

psychological evaluations constituted a denial of his due process rights and an invasion of 

his privacy rights; (2) admission into evidence of the reports of the two psychologists was 

prejudicial error because it was not established that the professionals contained the 

qualifications required by law; and (3) the court did not cite a specific legal basis for 

denying reunification services in the Order. 

We conclude that respondent court did not commit error in setting a selection and 

implementation hearing under section 366.26 and in terminating reunification services. 

For the reasons stated below, Father’s first and third arguments are without merit. The 
4

fact that the court admitted into evidence the two psychologists’ reports without 

establishing their statutory qualifications was harmless error. The court’s scheduling of a 

.26 hearing and the termination of Father’s reunification services at the six-month review 

hearing was appropriate under section 366.21, subdivision (e) (section 366.21(e)). There 

was substantial evidence supporting the court’s findings that (1) each of the four minors 

was the member of a sibling group; (2) Father had failed to participate regularly and 

make substantive progress in a court-ordered treatment plan; (3) there was not a 

substantial probability that the minors might be returned to Father within six months; and 

(4) reasonable services were provided to Father. It was therefore within the proper 

exercise of the court’s discretion in ordering that a .26 hearing be scheduled within 120 

days and in terminating reunification services. The court’s additional finding concerning 

Father’s suffering from a mental incapacity or disease was not a dispositive factor to the 

decision to terminate reunification services; thus any claimed error relative to that finding 

is harmless. Accordingly, we will deny the petition.

FACTS AND PROCEDURAL HISTORY

I. Initial November 2012 Petitions and Detention Orders

On November 16, 2012, the Department filed four separate petitions alleging that 

the parents had failed to protect the minors. (§ 300, subd. (b).) The Department alleged,4

inter alia, that Mother has nine children—three adults, two teenagers, and the four 

minors, A.J. (age 8), J.J. (age 8), K.T. (age 4), and S.M.T. (age 2), and that petitioner 

Michael J., is the father of the four minors.

5

 Mother has a long-existing substance abuse 

 

4

The statements made in this paragraph and the succeeding four paragraphs are 

based upon the allegations made by the Department in its four petitions. For simplicity 

and to avoid repetition, we have generally omitted the phrase “The Department alleges in 

its petitions” in describing the allegations in the petitions.

5

Subsequent to the filing of the petitions, Mother was evaluated separately by two 

psychologists. In the psychologists’ reports, it was indicated that Mother had given birth 

to 13 children. Mother, in the interviews, identified, in addition to the nine children listed 
5

problem and “has a very long history with child protective services in Sacramento, San 

Francisco, Merced[,] and Monterey counties dating back to[] at least 1994.”

6

 On 

November 13, 2012, officers with the Salinas Police Department reported that A.J. and 

J.J. were caught stealing from a grocery store. A.J. had told the police that he was hungry 

and was attempting to get food for his younger siblings. J.J. had been outside 

panhandling. 

On November 14, 2012, a Department social worker visited the motel room where 

Mother and the minors were living. It “was in a filthy state. There was trash all over the 

floor, as well as broken bowls with dried beans in them. The toilet was plugged to the top 

with feces, and the bathroom sink was plugged with dirty water filled to the top. There 

was no food in the small refrigerator, [and] only 1/3 of a half-gallon carton of milk and 

one potato lying on the floor, which [M]other said she was going to cook in the 

microwave for their dinner.” Mother denied that her twin children had been stealing and 

panhandling. She claimed that she had given money to them to buy food and said, “It’s 

not my fault [A.J.] was stealing . . . Are you going to blame me for that?” The minors 

were placed in protective custody that day; they left without shoes or jackets because 

their clothing could not be found among the jumble of clothes on the floor. 

J.J. and A.J. admitted to the social worker that Mother had sent them out to the 

grocery store to steal food and that she had done so on other occasions because they were 

hungry. A.J. reported that when they got to the store, he told his sister to wait for him 

outside because she was not serving her purpose. J.J. told the social worker that she was 

 

in the petitions, two teen-age sons and twin 11-year-old daughters, each of whom she is 

the noncustodial mother. 

6

The petitions described several previous referrals involving Mother and her 

children, including an “inconclusive referral” of neglect in August 2012 in which the Los 

Baños Police Department went into the home and determined that it was “filthy with a 

strong odor of feces, with trash overflowing from the garbage can, and the sink clogged 

with mold.” 
6

very proud that she had never been caught stealing because she could “ ‘run fast.’ ” J.J. 

said that she had been sexually abused by an older brother, she had told her Mother about 

the abuse, and that Mother “ ‘didn’t like it,’ but no report was made to the police.” 

J.J. and A.J. also reported that Father was physically abusive. “A.J. stated his 

[F]ather ‘whips’ all of the children, except [S.M.T.], with a belt.” J.J. told the social 

worker that Father had struck A.J. with a closed fist in the back of the head and had made 

A.J.’s nose bleed. J.J. said that Mother also had struck her and K.T. for disciplinary 

reasons. J.J. also told the social worker that “[M]other takes ‘morphine pills’ and when 

she does not have them she has ‘withdrawals’ and she gets diarrhea, throws[] up[,] and 

sweats.” 

None of the minors was enrolled in school. The Department contacted Mother and 

invited her to participate in a meeting, but Mother declined, saying she was ill. Mother 

refused to tell the Department where her 17-year-old and 15-year-old sons were living. 

On November 19, 2012, the court ordered the minors detained pursuant to section 

319, subdivision (b). Neither Mother nor Father attended the hearing. 

II. Family Assessment Reports

Two family assessment reports were prepared at the Department’s request by

Catherine Donahue, Ph.D., a psychologist with the Monterey County Department of 

Mental Health. The January 3 and January 8 reports are discussed below. 

A. January 3 Report

In a January 3 report, Dr. Donahue reported on Mother’s failure to keep 

appointments concerning her participation in the family mental health assessment 

process; detailed four family visits between Mother and the minors, indicating that 

Mother’s “behavior was inappropriate, abusive, erratic and disrespectful toward her

children”; described that Mother had been verbally abusive with the social worker during 
7

one of the visits; and indicated that J.J. and A.J. had reported they had been physically 

abused by Mother, and had frequently observed Mother using illegal drugs.

7

 

B. January 8 Report

Dr. Donahue prepared and submitted a more comprehensive family assessment 

report dated January 8. She included a detailed review of her interview and evaluation of 

Father. Dr. Donahue noted that Father denied ever having physically abused the minors.

He also denied ever having sexually abused J.J. Dr. Donahue observed that Father had 

given conflicting answers concerning his failure to ever attempt to gain custody of the 

minors, notwithstanding Mother’s demonstrated inability to care for them. Dr. Donahue 

noted the inconsistency in Father’s statement that he had been the minors’ full-time 

caregiver, while otherwise indicating that he had worked full-time until being attacked in 

May 2012. Further, she observed that Father had “permitted his children to remain in 

[Mother’s] care despite her history of prior involvement with CPS, substance abuse 

history and alleged absences . . . [and] failed to intervene or ascertain [sic] the assistance 

of authorities or medical personnel when [Mother] was using substances during all four 

of the pregnancies.” Because of “[Father’s] concerning, pervasive interpersonal style 

where problems were focused outward and blame placed on others, exhibiting little 

insight into his present life difficulties, and gross lack of judgment with the children,” Dr. 

Donahue “strongly recommended that [Father] participate in a Court-Ordered 

Psychological Evaluation.” 

Dr. Donahue’s January 8 report also detailed her interviews, testing and 

evaluations of each of the four minors. Dr. Donahue described A.J. during her two 

interviews of him as having been “severely anxious.” He repeatedly expressed fears that 

Mother would “ ‘steal [him] from [his] foster home.’ ” He repeated to Dr. Donahue the 

 

7 On January 16, based upon Dr. Donahue’s recommendation in her January 3, 

assessment report, the court issued an order requiring a psychological evaluation of 

Mother. 
8

claims made to the social worker about Mother’s substance abuse and her physical abuse 

of the minors. He also said that Father physically abused him and that he had 

“witness[ed] severe violence in the family home. He said, ‘Dad hits me. He punched me 

in the face and kicked me. My brother tried to kill my Dad with a hammer. Mom told 

my brother to kill Dad.’ ” A.J. described to Dr. Donahue his “parentified role in the 

family system. In addition to securing food for his siblings, [A.J.] was responsible for 

cleaning the family home” and changing his baby sister’s diapers. He indicated that 

Mother depended on him to do the cleaning, but that he could not “keep up with the 

‘mess’ generated by his siblings.” Dr. Donahue concluded that A.J. “presents with a 

significant trauma history, symptoms of anxiety, poor self-esteem, physical abuse, 

exposure to maternal substance use, and exposure to severe domestic violence. Although 

[A.J.] does not meet diagnostic criteria of Posttraumatic Stress Disorder (PTSD) at this 

time, his symptoms should be monitored by his treating clinician.” 

Dr. Donahue described J.J. as “demonstrat[ing] indiscriminate boundaries: she 

attempted to hug this examiner and stayed physically close to this examiner.” She was 

“anxious,” “spoke loudly and rapidly,” and “[h]er ability to initiate and sustain attention 

was significantly impaired.” J.J. told Dr. Donohue: “ ‘Mom hits me and [K.T.] and 

[A.J.]’ with a brush, belt, ‘[she] cut me, punched me with [a] fist in [the] face.’ . . . 

[Mother] throws ‘kids against the wall. Across the room.’ [J.J.] stated that [Mother’s] 

physical limitations prevent her from getting ‘off the couch . . . [A.J.] chases us. She 

makes him chase us. Then Mom beats us with a brush or her fist.’ ” J.J. also said that on 

one occasion, Mother struck her on the head with a screwdriver. She said that Father also 

physically abused her. On one occasion, Father choked her and had his hand over her 

mouth. J.J. also said that Father “forced [A.J. to] swallow a penny, noting, ‘[A.J.] 

choked.’ ” In addition, J.J. told Dr. Donahue that her adult brother, M.T., had sexually 

assaulted her a number of times. J.J. reported the first sexual assault to Mother, “who 
9

‘was crying.’ Yet, [J.J.] alleged that [Mother] failed to intervene to prevent further, sexual 

assaults.”8 J.J. also reported to Dr. Donahue that Father “ ‘pinched my private with his 

hands’ ” and gestured to her vagina. 

Dr. Donahue concluded: “[J.J.] presents with significant symptoms of trauma and 

emotional dysregulation. Additionally, [J.J.] exhibits high needs for nurturance, a strong 

desire to connect with others, and indiscriminate boundaries. It should be noted that 

these poor, indiscriminate boundaries will place her at risk for being further exploited by 

others. These symptoms are consistent with chronic, and untreated, Posttraumatic Stress 

Disorder in children.” 

In her evaluation of K.T., Dr. Donahue observed that “[K.T.’s] vocabulary was 

limited”; “[h]is eye contact was sporadic”; “[h]e also demonstrated odd movements with 

his mouth . . . [that were] clearly linked to internal states of anxiety”; he “struggled to 

initiate and sustain attention”; he “exhibited impulsivity, poor frustration tolerance”; and 

“[o]n several occasions, [K.T.] became silly, dysregulated, and uttered obscenities . . .” 

His foster father reported that K.T. “tends to be physically aggressive with peers,” is not 

yet toilet trained, struggles with brushing his teeth, and exposes himself to others in the 

foster home. Dr. Donahue also observed that K.T. was aggressive toward J.J. and A.J. at 

the family visitations. She concluded: “[K.T.] presents with significant emotional and 

behavioral dysregulation, hyperarousal, hyperactivity, impulsivity and inattention. . . . It 

is important to note that chronic exposure to substance use, domestic violence, and being 

the victim of physical abuse, can contribute to severe dysregulation and symptoms of 

hyperactivity, impulsivity and inattention. Additionally, his difficulties with social 

cognition and social communication might be artifacts of his trauma history.” She noted 

that K.T.’s difficulties might be the result of Mother’s substance abuse while K.T. was in 

 

8 Dr. Donahue indicated in her report that “[J.J.] revealed the sexual abuse to Mr. 

[T.,] who was crying. . .” Given that Mother and Father have different surnames and also 

given the succeeding sentence, it is clear that “Mr.” is a typographical error. 
10

utero. Dr. Donahue recommended that K.T. be evaluated further “to rule out the presence 

of Autism Spectrum Disorder.” 

Dr. Donahue also evaluated two-year-old S.M.T. She found that throughout the 

interview, S.M.T. “demonstrated minimal regard for this examiner, and exhibited a flat 

affect and restricted range of facial expressions. She exhibited poor eye contact, rarely 

directed her facial expressions toward this examiner, and did not respond to her name on 

several presses. She also failed to follow one-step directions.” Dr. Donahue noted that 

S.M.T. was “largely mute” during the session, uttered only “a few vowel sounds,” and 

“presented as aloof, exhibit[ing] little interest in her surroundings, and seem[ing] drawn 

to only a few select toys.” She observed that “[S.M.T.’s] communication, gross motor, 

fine motor, problem-solving and personal social skills were well below the clinical cutoff, 

and these are areas that are in need of intervention.” She concluded: “[S.M.T.] presents 

with a history of physical abuse, exposure to severe violence in the home, exposure to 

maternal substance use, neglect and separation from her mother. . . . [S.M.T.] 

demonstrated significant developmental delays, and there is a suspicion of prenatal 

substance exposure.” She recommended evaluations to rule out speech-language 

disorder, hearing difficulties, visual impairments, and fine motor delays. Dr. Donahue 

also recommended that S.M.T. be evaluated further to “rule out the presence of Autism 

Spectrum Disorder.” 

Dr. Donahue supplied her clinical evaluation of family functioning. She 

concluded that “[Mother’s] erratic behavior creates an atmosphere of danger and 

unpredictability in the home, and communicates that her needs supersede the needs of all 

other family members. Thus, family members are constantly in a hypervigilant state in 

order to anticipate, and likely escape from, the next incident of violence.” Dr. Donahue 

also found that, based upon Father’s “blatantly inaccurate reports of the children’s 

development, and the fact that there is no evidence that he sought custody of the children 
11

prior to [their detention],” it is likely that Father was emotionally and physically absent, 

and that his claims of involvement in the minors’ daily care were false. She also noted 

that Father failed to protect the minors from Mother’s violence, substance abuse, and 

erratic behavior. And she concluded, based upon the expression by J.J. and A.J. of fear 

toward Father, A.J.’s anxiety, and “[J.J.’s] severe symptoms of Posttraumatic Stress 

Disorder, it is unlikely that they are fabricating the reports of abuse by [Mother] and 

[Father].” 

Dr. Donahue recommended that Mother be ordered to submit to psychological 

evaluation, and that her visitation of the minors, pending that evaluation, be suspended. 

Likewise, Dr. Donahue recommended that Father be ordered to submit to psychological 

evaluation, based upon his “concerning, pervasive interpersonal style where problems 

were focused outward and blame placed on others, [his] exhibiting little insight into his 

present life difficulties, and [his] gross lack of judgment with the children.” She also 

recommended that Father have no contact with J.J. and A.J., based upon the report of 

child abuse, the twins’ expressed fear of Father, and the fact that they declined visits with 

him. Dr. Donahue recommended that Father be allowed weekly, supervised visits of K.T. 

and S.M.T. 

III. Report and Jurisdictional and Dispositional Hearing

In its January 25 jurisdiction/disposition report, the Department repeated the 

allegations concerning the parents found in the initial petitions, including additional 

details concerning Mother’s lengthy child protective service history, and the parents’ 

respective criminal arrest and conviction histories. It noted that Mother’s history with 

child protective services in Sacramento, San Francisco, Merced, and Monterey Counties 

dated back to at least 1994, and that during her Sacramento case involving her now-adult 

son, Mother and the child’s father had failed to reunify with him because of their 

substance abuse, because the parents’ whereabouts were then unknown, and because of 
12

the father’s status as a registered sex offender. The Department also alleged that since 

2001 there had been eight referrals to child protective services for Mother and the minors. 

The Department social worker submitting the report noted that she had relied heavily on 

Dr. Donahue’s family assessment report of January 8 (discussed, ante). 

The Department noted that Father had indicated a willingness to retain custody of 

the minors. The Department recommended that the minors remain in out-of-home care as 

result of Mother’s inability to provide adequate food and shelter, her untreated substance 

abuse, her unwillingness and inability to protect the minors from Father’s physical abuse, 

and her failure to protect J.J. from sexual abuse. It further recommended that the court 

order Father to participate in a psychological evaluation.9 The Department also 

recommended that Mother and Father be offered family reunification services, pending 

the results of each parent’s psychological evaluation. 

On January 30, after a jurisdictional and dispositional hearing attended by Mother 

and Father, the court found the allegations in the petition true and sustained the petition. 

The court declared each of the minors a dependent child of the juvenile court. It ordered 

further that the minors would not be placed with Father, the noncustodial parent; 

placement and care of the minors be vested with the Department; family reunification 

services be provided to Mother and Father, pending the results of psychological 

evaluations for both; no visitation of the minors be provided to Mother; no visitation of 

J.J. and A.J. be provided to Father; visitation of K.T. and S.M.T. be provided to Father; 

and July 17 was the likely permanency date. The court also ordered that Father submit to 

a psychological evaluation. 

 

9

The social worker noted in the report that Father indicated “he is willing to 

participate in any services that are required to have his children returned to his care.” 
13

IV. Six-Month Review Hearing and Challenged Order

A. Background

Pursuant to section 366.21(e), a six-month review hearing, originally set for July 

17, took place on November 16. The Department, the minors, Mother, and Father were 

all represented by counsel, and Father was also present. The court received and 

considered evidence (discussed below), which consisted of two psychological evaluations 

by separate clinical psychologists concerning Mother; two psychological evaluations by 

separate clinical psychologists concerning Father; the Department’s June 27 report and a 

September 19 addendum; a visitation evaluation related to Father’s supervised visits of 

two of the minors (K.T. and S.M.T.); and the testimony of three witnesses.10 

B. Psychological Evaluations of Mother

On March 25, a psychological evaluation of Mother was performed by Elizabeth 

Lee, Psy.D.,11 a licensed clinical psychologist. In her report, Dr. Lee reviewed in detail 

Mother’s personal history, her criminal history, her history with child protective services, 

background concerning the minors and the circumstances resulting in the proceedings, 

the substance of her interview with Mother, and the results of psychological testing.

Dr. Lee recommended that Mother not be offered reunification services because 

“[s]he will not be able to benefit from services within the time allowed by law[, and 

e]ven if [Mother were] given additional time from this court in order to participate in 

 

10 The court noted that it also considered the trial briefs submitted on behalf of the 

Department and Father, and the January 8 family assessment of Dr. Donahue (discussed, 

ante). 

11 Our indication that the two psychologists who evaluated Mother and Father 

possessed doctoral degrees is based solely on the fact that Dr. Lee’s report contains a 

“Psy.D.” designation after her name and Dr. Finnberg’s report contains a “Ph.D.” 

designation after her name. As we discuss, post, there was no admissible evidence 

presented concerning the psychologists’ respective qualifications.
14

services, she would not be able to do so.”12 Dr. Lee concluded: “[Mother’s] complete 

denial that she has any problems coupled with her tendency to avoid self-examination 

means that she would be unlikely to attend, much less benefit from, either drug treatment 

or therapy. If the children were returned to her care, they would likely be exposed to 

more domestic violence, substance abuse and neglect, and would be taught how to steal 

food and other goods.” 

A second licensed clinical psychologist, Elaine Finnberg, Ph.D.,13 interviewed and 

evaluated Mother on May 14.14 Based upon her evaluation, Dr. Finnberg similarly 

recommended that Mother not be offered reunification services, concluding: “Due to the 

fragility of her children and the severity of [Mother’s] personality disorder 

characteristics, in my opinion there are no reunification [services] that could be offered to 

her from which she could receive benefit within the time allotted by law to return her 

children to her care.” 

 

12 The language used by both Dr. Lee and Dr. Finnberg in their respective 

evaluations of both Mother and Father—i.e., the experts’ recommendations that both 

Father and Mother not be offered reunification services—is technically inaccurate. As 

noted, ante, the court ordered at the January 30 jurisdictional and dispositional hearing

that Mother and receive family reunification services, pending the results of their 

psychological evaluations. Indeed, Mother and Father each received reunification 

services for more than six months.

13 See footnote 11, ante.

14 At the three-month review hearing on April 17, the court granted a request that 

Mother and Father receive second psychological evaluations. A reporter’s transcript of 

this hearing is not part of the record; accordingly, this court has no further information 

concerning the April 17 order.
15

C. Psychological Evaluations of Father

15

1. Dr. Lee’s Evaluation

On February 18, Dr. Lee performed a psychological evaluation of Father. During 

the interview, Father denied a history of alcohol and cocaine abuse until he was 

confronted by Dr. Lee with contrary information, at which point “[h]e described a long 

history of cocaine abuse that was severe enough that he repeatedly violated his parole.” 

He indicated that he had been clean and sober for one year and advised that he had 

voluntarily begun participating in an outpatient substance abuse clinic in Los Baños after 

his children were detained. Dr. Lee reviewed Father’s criminal history with him; he “was 

very angry that [Dr. Lee] had been provided with a copy of his criminal records.” Those 

records showed that Father had been convicted when he was in his early 20s for a charge 

arising out of a bar fight. He was arrested and convicted when he was 25 for the theft of 

a necklace he said was worth $10,000. When he was 28, he was arrested and received a 

short prison sentence arising out of his delivery of narcotics. Thereafter, he twice 

violated the terms of his probation. In or about 1997, he was arrested and convicted for 

the sale of cocaine and given a nine-year prison sentence; he served six years in prison 

and thereafter twice violated the terms of his parole. In 2009, he was arrested for felony 

assault upon Mother. He denied to Dr. Lee that he had assaulted Mother and explained 

that he accepted a plea bargain that involved his pleading guilty to a misdemeanor and 

receiving credit for the three months he served in jail. 

Dr. Lee observed that Father “frequently contradicted himself. He initially tried to 

present an unrealistically positive façade of himself, and became irritable when he was 

asked about discrepancies between his self report and the CPS records.” She found that 

Father “was not believable in his assertions that he [had] never physically abused his 

 

15 Similar to the psychologists’ reports concerning Mother, Dr. Lee’s and Dr. 

Finnberg’s reports regarding Father contained recitals of Father’s and the minors’ 

background, and the circumstances leading to the minors’ detention. 
16

children and he has only been the victim of domestic violence. Throughout the interview, 

he appeared to only admit to things that [Dr. Lee] was aware of. In addition to this, his 

statements were contradicted by the statements of his family members and the 

conclusions of Family Assessment. . . .[¶ Father] tended to externalize blame. He did not 

take responsibility for the state in which his children were living or the fact that they were 

not attending school. He said that he complained to [Mother] about her drug and alcohol 

abuse, but he did not seem to feel that it was his responsibility to protect the children 

from it.”

As a result of her interview and evaluation, Dr. Lee diagnosed Father as having a 

cocaine dependency, a personality disorder not otherwise specified with narcissistic and 

antisocial features, a history of brain trauma, and severe impairment in interpersonal 

functioning. She concluded that “[Father] is unlikely to benefit from therapeutic 

intervention. He has a strong need to not admit genuine personal problems to himself. 

Even if he participates in treatment, he is likely to continue to misrepresent his problem 

areas and to leave treatment prematurely.” Dr. Lee concluded further: “The first step to 

changing behavior is acknowledging that there is a problem. In the case of [Father’s] 

drug abuse and domestic violence, he is quite content to lie about his history if he thinks 

he can get away with it. Even when confronted with the records of his history, he still 

denies culpability. Given that he has been through drug treatment before, it appears 

unlikely that further counseling or treatment is going to lead to positive change within the 

period of time provided by statute.” Dr. Lee therefore recommended that Father not be 

offered reunification services. 

2. Dr. Finnberg’s Evaluation

Dr. Finnberg performed an interview and evaluation of Father on May 15. Dr. 

Finnberg referenced two supervised visits that Father had had with the two younger 

children, K.T. and S.M.T. She noted that “[Father] appears to over-excite [K.T.] to the 
17

point that he cannot contain himself and during the initial visit ran out of the room 

looking for his caregiver. When he came back into the room, he pulled away from his 

father. . . . [S.M.T.] was aloof and distant although [Father] was attempting to engage the 

children in play.” 

In addition to reciting background information similar to that found in Dr. Lee’s 

report, Dr. Finnberg noted that Father reported that he had been hospitalized for 

psychiatric treatment in Seattle, Washington in 1987. He explained that the mother of his 

oldest child had left him because of his drug and alcohol abuse, and he had become 

depressed and suicidal. He indicated that he had been hospitalized four times at the same 

Washington hospital, “twice for suicidal ideation, and twice because he was homeless” 

and in which he had fabricated mental problems to get off the streets. He told Dr. 

Finnberg that “he ha[d] been involved in domestic violence episodes with his first two 

wives and with [Mother].” He explained that he met [Mother] “in Seattle while he was 

on the street looking for drugs after being released from prison. They met and she came 

to his room to do drugs. After that they were ‘pretty much together for nine years.’ ” 

Father admitted to Dr. Finnberg that he had a history of drug and alcohol abuse. 

He also admitted that he had “physically abuse[d A.J.] and [J.J.], particularly [A.J.], and 

describe[d] himself as having been ‘hard on him, spanking him.’ ” He also 

acknowledged that he had failed to protect the minors from Mother’s abuse and neglect. 

Among the testing that Dr. Finnberg conducted was one which, based upon the 

answers to 160 questions, showed Father to have a “high Abuse Scale score . . . An 

elevated Abuse Scale score indicates that he is reporting an array of personal and 

interpersonal characteristics that are similar to characteristics of known physical child 

abusers.” Persons with high Abuse Scale scores also tend to be “moody, restless, selfcentered, evasive of responsibility” “overreactive and irritable, . . . have low frustration 

tolerance, [and] poor impulse control.” 
18

Dr. Finnberg diagnosed Father as having a “Mood Disorder Not Otherwise 

Specified”; “Polysubstance Dependence in partial remission per self report”; and a 

“Personality Disorder Not Otherwise Specified with Antisocial Features.” Dr. Finnberg 

noted that Father “ha[d] provided very little emotional support or structure for his four 

children” and had admitted having physically abused J.J. and A.J. She observed that 

Father had an extensive criminal record, including two stints in Washington State Prison, 

and had a long history of drug and alcohol abuse. In the 33 years since he had started 

using drugs and alcohol, Father admitted that, despite attending a number of substance 

abuse programs, the maximum amount of time he had been able to stay clean and sober 

was one year (excluding the periods in which he was incarcerated). Characterizing as 

“admirable” Father’s desires to have contact with his children and to in fact have custody 

of them, Dr. Finnberg opined that “it is not realistic for [Father] to become their primary 

parent,” because (1) he had not shown any sustained interest in the children in the past; 

(2) he had not played an active role in their lives; (3) the minors have “serious needs”; 

and (4) J.J. and A.J. are afraid of Father and want no contact with him. 

In his conclusion, Dr. Finnberg found that “[e]ach of these disorders, psychiatric, 

drug, and personality, . . . render[s Father] unable to care for his children, especially in 

light of the children’s emotional and developmental needs. In addition, his responses 

indicate that he has a great potential for violence towards the children now and in the 

future. [¶] Due to the chronicity and severity of these disorders, . . . it is not likely that he 

can overcome these disabilities within the time allotted by law to move towards or 

achieve reunification with the children.” Dr. Finnberg therefore recommended that no 

reunification services be offered to Father because “his mental disabilities render him 

incapable of utilizing [them], such that even with the provision of such services, he is 

unlikely to become capable of adequately caring for the children and have the children 

returned to him within the reunification time allowed by law.” 
19

D. Department’s Report, Notice of Hearing, and Addendum

The Department submitted a report on June 27 in advance of the six-month review 

hearing in each of the four cases. It detailed the history of the proceedings, referenced 

the reports prepared by various professionals concerning the minors, Mother, and Father, 

and in particular referred to the psychological evaluations of Mother and Father prepared 

by Dr. Lee and Dr. Finnberg. The social worker noted in the report that Father 

“continues to state . . . that he ‘did nothing wrong’ and he takes no responsibility for his 

actions that resulted in the children’s dependency. . . . During his meetings with [the 

social worker], [Father] yelled and slammed doors after walking out of the meetings.” 

According to the Department, Father (a) did not complete a drug and alcohol assessment 

with the County’s Behavioral Health Department; (b) had made no attempt to enroll in an 

inpatient treatment program; (c) had self-enrolled in a Merced County “Level 1” 

outpatient treatment program and had provided the Department with a certificate of 

completion; (d) had not signed necessary releases permitting the social worker to speak 

with his drug and alcohol counselor in Los Baños concerning Father’s progress during 

that outpatient program; (e) had not provided copies documenting his attendance at 

AA/NA meetings; (f) had not allowed the appointed Parents as Teacher (PAT) 

representative, L’Shanna Klein, to participate regularly with his visitations with K.T. and 

S.M.T., even though mandated as part of his case plan, and had been angered that Klein 

was “interfering with his time with his children”; and (g) had completed a mandated 

parenting education program, but had not disclosed to the instructor anything about the 

dependency proceedings or his prior abuse of the children. 

The social worker noted that from her observation of Father’s one-hour weekly 

supervised visitations with K.T. and S.M.T., he “appears to over[-]excite [K.T.] to the 

point that he [cannot] contain himself. Often[]times [K.T.] runs out of the room or begins 

throwing toys or destroying items in the visitation room. [F]ather also appears to 
20

maintain little supervision over [S.M.T.] during the visitation, due to [K.T.’s] behavior. 

For example, the [social worker] observed that [S.M.T.] was jumping on the couch in the 

visitation room and [F]ather did not notice. [S.M.T.] fell off the couch and hit her head 

on the floor.”

The Department concluded that “[F]ather has failed to take any responsibility for 

the physical and sexual abuse that the children report. The [F]ather also attributes the 

children’s reports to [their] being manipulative or angry at him. The [F]ather continues 

to deny that he abused his children, in addition to leaving them in the [M]other’s care. 

The [F]ather has actively refused services and has also attempted to avoid the 

Department’s oversight.” 

The Department recommended that the court make a number of findings, 

including a finding that both parents had failed to participate regularly in court-ordered 

treatment programs. It also recommended that the court find, based upon the conclusions 

of two qualified mental health professionals, that both parents suffered from a mental 

incapacity or disorder that rendered them unable to care for and control adequately the 

minors and also rendered them incapable of utilizing child welfare services such that, 

were they provided, it was unlikely that either Mother or Father would be capable of 

adequately caring for the minors and would be unlikely to achieve reunification within 

six months. The Department requested that the court maintain the dependency of the 

minors; continue the minors in out-of-home care; set a selection and implementation 

hearing under section 366.26; and terminate reunification services to Mother and Father. 

The Department served and filed notices of hearing with respect to each case on 

June 27. In each notice, the Department advised that it was seeking a change in orders or 

services at the six-month review hearing, namely, termination of family reunification 

services.
21

In an addendum report filed September 19, the Department requested that the 

court make a finding that there had been compliance with the notice requirements of the 

Indian Child Welfare Act (ICWA) and that the ICWA did not apply.

E. Visitation Report

The Department filed a July 16 report prepared by Dr. Donahue containing her 

opinions based upon her having observed three videotaped visitation sessions involving 

Father and the two younger children, K.T. and S.M.T. Dr. Donahue acknowledged that 

Father had implemented some of the positive parenting techniques learned during

parenting classes he had attended. She observed, however, that “[o]f concern is that he 

may be deliberately managing his impression to appear more favorable, as his positive 

behaviors decreased when the PAT teacher is not present or when the supervising service 

aide briefly leaves the room. For example, the supervising service aide left the room . . . 

at which point [K.T.] was yelling. . . . [Father] told [K.T.], ‘You are being mean today,’ a 

comment reflective of a parenting technique that is not developmentally appropriate.” 

Father, in Dr. Donahue’s opinion, did “not demonstrate[] appropriate utilization of 

techniques for eliminating negative behavior, using appropriate discipline, or facilitating 

a safe environment thus far. When [K.T.] and [S.M.T.] screamed and yelled, he initially 

told them to stop in a calm voice, but quickly escalated into yelling at them. When this 

happened, [K.T.] became dysregulated and scared; he screamed every time; on one 

occasion he backed into a corner between a book[]shelf and a couch[;] and on multiple 

occasions he ran out of the room yelling for his foster dad.” 

Dr. Donohue concluded that both children exhibited “trauma reactive symptoms” 

in their dealings with Father. Father demonstrated that he did not have an understanding 

of his children’s development, and particularly did not understand that acting out 

behaviors were common for four-year-old children such as K.T., and even more common 

with such children, as K.T., who showed developmental delays. Dr. Donahue also
22

observed that Father “exhibits favoritism of [S.M.T.],” evidenced by his inconsistency in 

treating K.T. and S.M.T. for similar behaviors. Dr. Donahue expressed concern that 

Father regularly yelled at his children in the presence of the service aides and PAT 

teacher, when one would expect the parent to be on his best behavior. “It raises concern 

about his parenting style in an unsupervised environment.” 

F. Testimony

In addition to the submission of the above-referenced reports, the court heard 

testimony from three witnesses, each of whom was called by Father.

1. Shannon Wight

Shannon Wight is a drug counselor with Merced County Alcohol and Drugs. She 

was Father’s alcohol and drug counselor in a weekly outpatient program he attended from 

January 18 to April 11. He attended approximately 15 hours of group sessions and two 

hours of individual session. As part of the program, Father attended 25 AA/NA meetings 

and obtained a sponsor.

16

 Wight tested Father weekly for drugs and alcohol; all tests 

were negative. Father successfully completed the program and received a certificate. 

During his enrollment, Father told Wight that he needed an assessment and possible 

enrollment in a treatment program, and that there was a pending dependency proceeding 

involving an allegation of the parents’ failure to protect their children. He did not 

disclose to Wight that there were allegations that he had physically abused and sexually 

abused the children. 

2. Lun Wang 

Lun Wang is the social worker from the Department handling the case. It was her 

recollection that the psychological evaluations of Mother and Father were ordered at the 

jurisdictional/dispositional hearing. Wang never spoke to Wight about Father’s 

participation in the outpatient drug and alcohol program in Merced County; she asked 

 

16 The program required that he attend at least 10 AA/NA meetings. 
23

Father for Wight’s telephone number, but he did not provide it to her. Wang also asked 

Father for a release authorizing her to speak to Wight; Father did not provide one. 

3. Michael J.

Father testified that he completed a 16-week parenting class commencing in 

January. He claimed that as of the hearing on October 30, he had been clean and sober 

for two years. He suffered brain trauma after sustaining a skull fracture in May 2012. 

Father told social worker Wang that he had been enrolled in a drug and alcohol treatment 

program in Los Baños and had signed a release. He admitted that he did not give Wight’s 

contact information to Wang, but said that Wang did not ask for it. Father testified that 

he had completed everything that had been required of him in the parenting plan 

furnished him by the Department. He denied that he had ever physically or sexually 

abused any of his children. 

On cross-examination, Father agreed that he had not completed an alcohol and 

drug assessment in Salinas. He also admitted that he had never completed a residential 

drug and alcohol treatment program. Father also testified that he had attended more than 

25 AA/NA meetings since January 2013. 

G. Order After Six-Month Review Hearing

After considering the reports and testimony and after hearing argument from 

Father and the Department,

17 the court adopted the findings and orders as recommended 

by the Department. The court reasoned that Father had not been forthcoming with either 

psychologist about his drug and alcohol abuse and was not “forthcoming at all about his 

transgressions with respect to his children.” Based upon the court’s consideration of the 

 

17 Although the minors and Mother were represented by counsel, neither attorney 

submitted argument at the hearing.
24

evaluations of Dr. Lee and Dr. Finnberg, the court found that Father “is not capable of 

meaningfully participating in the kind of therapy that would ameliorate his behaviors and 

enable him to be an adequate parent, able to protect his children, keep them safe, keep 

them adequately clothed and housed, and avoid outbursts, angry outbursts behind 

intoxication that leads [sic] to physical abuse of the kids.” The court noted further that it 

had found it an “unusual” feature that the minors were repelled by Father and did not 

wish to be around him. 

There were a number of findings adopted by the court. It concluded that, as to 

each of the minors, his or her return to the parents would create a substantial risk of 

detriment to the safety, protection, or physical or emotional well-being of the child. The 

court also found that each of the minors was a member of a sibling group within the 

meaning of section 366.21(e). It found, by clear and convincing evidence from two 

competent mental health professionals qualified under Family Code section 7827, 

subdivision (c), that “the parents are suffering from a mental incapacity or disorder which 

renders the parents unable to care for and control the child adequately, and which renders 

[them] incapable of utilizing child welfare services, such that even with the provision of 

services, the parents are unlikely to be capable of adequately caring for the child and are 

unlikely to achieve reunification within the next six months.” 

The October 30 Order also included a finding that the Department had provided or 

offered reasonable services to both parents, that neither parent had been actively involved 

in the development of the case plan or the permanent placement plan, and both parents 

were unwilling to participate in the development of those plans. The court found that 

both Mother’s and Father’s progress toward alleviating or mitigating the causes that had 

necessitated placement of the minors in foster care had been “none.” And the court 

found, based upon clear and convincing evidence, that both Mother and Father “failed to 

participate regularly and make substantive progress in a court-ordered treatment plan, 
25

and/or [¶] . . . there is not a substantial probability that the child may be returned to one 

or both of the parents within six months.” (Original italics.) 

The court ordered the scheduling of a selection and implementation hearing under 

section 366.26 for February 19, 2014. The court also ordered that family reunification 

services as to both parents be terminated. 

IV. Petition for Writ of Mandate

Father filed timely under rule 8.450(e)18 a notice of intent to file a writ petition to 

review the order setting a hearing under section 366.26. Thereafter, Father filed his

petition for writ of mandate with this court on December 2. (See rule 8.452.) Real party 

in interest Department filed its opposition on December 17.

19

 

DISCUSSION

I. Applicable Legal Principles 

A. Dependency Law Generally

Section 300 et seq. provides “a comprehensive statutory scheme establishing 

procedures for the juvenile court to follow when and after a child is removed from the 

home for the child’s welfare. [Citations.]” (In re Celine R. (2003) 31 Cal.4th 45, 52.) As 

our high court has explained, “The objective of the dependency scheme is to protect 

abused or neglected children and those at substantial risk thereof and to provide 

permanent, stable homes if those children cannot be returned home within a prescribed 

period of time. [Citations.] Although a parent’s interest in the care, custody and 

companionship of a child is a liberty interest that may not be interfered with in the 

absence of a compelling state interest, the welfare of a child is a compelling state interest 

that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has 

 

18 All rule references hereafter are to the California Rules of Court. 

19 In its opposition, real party in interest Department erroneously designated itself 

as “respondent.” No opposition was filed on behalf of respondent superior court.
26

declared that California has an interest in providing stable, permanent homes for children 

who have been removed from parental custody and for whom reunification efforts with 

their parents have been unsuccessful. [Citations.] This interest is a compelling one. 

[Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

The court at the jurisdictional hearing must first determine whether the child, by a 

preponderance of the evidence, is a person described under section 300 as coming within 

the court’s jurisdiction. (§ 355, subd. (a).) Once such a finding has been made, the court,

at a dispositional hearing, must hear evidence to decide the child’s disposition, i.e., 

whether he or she will remain in, or be removed from, the home, and the nature and 

extent of any limitations that will be placed upon the parents’ control over the child, 

including educational or developmental decisions. (§ 361, subd. (a).) If at the 

dispositional hearing, the court determines that removal of the child from the custody of 

the parent or guardian is appropriate, such removal order must be based upon clear and 

convincing evidence establishing that one of five statutory circumstances exists. (§ 361, 

subd. (c).) One such circumstance is the existence of substantial danger to the dependent 

child’s “physical health, safety, protection, or physical or emotional well-being” were he 

or she returned to the home. (§ 361, subd. (c)(1).) 

After it has been adjudicated that a child is a dependent of the juvenile court, the 

exclusive procedure for establishing the permanent plan for the child is the permanency 

hearing as provided under section 366.26. The essential purpose of the hearing is for the 

court “to provide stable, permanent homes for these children.” (§ 366.26, subd. (b); see 

In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.) 

Prior to the permanency hearing, there are periodic status reviews as ordered by 

the court, but not less frequently than every six months. (§ 366, subd. (a)(1).) “At the

review hearing held six months after the initial dispositional hearing [the six-month 

review hearing], the court shall order the return of the child to the physical custody of his 
27

or her parent or legal guardian unless the court finds, by a preponderance of the evidence, 

that the return of the child to his or her parent or legal guardian would create a substantial 

risk of detriment to the safety, protection, or physical or emotional well-being of the 

child.” (§ 366.21(e).) “Review hearings are critical because they are the point at which a 

parent may be denied further reunification services. [Citation.]” (In re Jesse W. (2007) 

157 Cal.App.4th 49, 61; see also In re Derrick S. (2007) 156 Cal.App.4th 436, 450 

[reunification is “standard topic at” six-month review hearings].) 

B. Family Reunification Services

When the dependent child is removed from parental custody, the juvenile court is 

ordinarily required to provide the parent with services to facilitate the reunification of the 

family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 

303.)

20

 As explained by one court: “The importance of reunification services in the 

dependency system cannot be gainsaid. The law favors reunification whenever possible. 

[Citation.] To achieve that goal, ordinarily a parent must be granted reasonable 

reunification services. [Citation.] But reunification services constitute a benefit; there is 

no constitutional ‘ “entitlement” ’ to those services. [Citation.]” (In re Aryanna C.

(2005) 132 Cal.App.4th 1234, 1242.)

A court may order that reunification services be bypassed altogether if one of 

sixteen circumstances is established by clear and convincing evidence, as specified in 

subdivision (b) of section 361.5. One such circumstance is where the court finds that 

“the parent or guardian is suffering from a mental disability that . . . renders him or her 

incapable of utilizing those services.” (§ 361.5, subd. (b)(2); see In re Ethan C. (2012) 

54 Cal.4th 610, 626.) “These bypass provisions represent the Legislature’s recognition 

 

20 “Except as provided in subdivision (b), . . . whenever a child is removed from a 

parent’s or guardian’s custody, the juvenile court shall order the social worker to provide 

child welfare services to the child and the child’s mother and statutorily presumed father 

or guardians . . . .” (§ 361.5, subd. (a).)
28

that it may be fruitless to provide reunification services under certain circumstances. 

[Citation.]” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.)

Where reunification services are ordered, they generally (subject to exceptions and 

instances in which the period may be extended) begin with the dispositional hearing and, 

for children three years or older, end 12 months thereafter. (§ 361.5, subd. (a)(1)(A).) 

But where a child is under three at the time of his or her initial removal (§ 361.5, subd. 

(a)(1)(B)), reunification services are normally terminated after six months. And if a child 

is determined to be a member of a sibling group removed from parental custody at the 

same time as a sibling who was under three when initially removed, reunification services 

in that case are also normally terminated for all siblings in the sibling group after six 

months (§ 361.5, subd. (a)(1)(C).) Although a parent may reasonably expect under most 

circumstances to receive reunification services for at least the periods designated under 

section 361.5, subdivision (a)(1), there is no entitlement to services for a prescribed 

minimum period. (In re Derrick S., supra, 156 Cal.App.4th at pp. 445-450 [parent of 

child over three not entitled to minimum of 12 months of services]; In re Aryanna C., 

supra, 132 Cal.App.4th at pp. 1242-1243 [parent of child under three not entitled to 

minimum of six months of services].) Thus, “the juvenile court has the discretion to 

terminate the reunification services of a parent at any time after it has ordered them, 

depending on the circumstances presented.” (In re Aryanna C., at p. 1242.)

At a six-month review hearing, when a child was either under three at the time of 

his or her initial removal or is a member of a sibling group, the court has the discretion 

under certain circumstances to set a .26 hearing and to terminate reunification services. 

(§ 366.21(e); see also rule 5.710(c)(1)(D).)21 The juvenile court must make “two distinct 

 

21 The operative language is the third paragraph of section 366.21(e), which reads: 

“If the child was under three years of age on the date of the initial removal, or is a 

member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision 

(a) of Section 361.5, and the court finds by clear and convincing evidence that the parent 
29

determinations” in ascertaining whether it has the discretion to set a .26 hearing at the 

six-month review. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (M.V.).) 

“First, the statute identifies specific factual findings—failure to participate regularly and 

make substantive progress in the court-ordered treatment plan—that, if found by clear 

and convincing evidence, would justify the court in scheduling a .26 hearing to terminate 

parental rights . . . . [¶] The second determination called for by the third paragraph of 

section 366.21(e), protects parents and guardians against premature .26 hearings. 

Notwithstanding any findings made pursuant to the first determination, the court shall not 

set a .26 hearing if it finds either: (1) ‘there is a substantial probability that the child . . . 

may be returned to his or her parent . . . within six months’; or (2) ‘reasonable services 

have not been provided’ to the parent. (§ 366.21(e).) In other words, the court must 

continue the case to the 12–month review if it makes either of these findings.” (Id. at 

pp. 175-176.) But if the court, in making both determinations, concludes that it is thereby 

empowered to set a .26 hearing, it is nonetheless not compelled to do so. The third 

paragraph of section 366.21(e) merely authorizes the juvenile court, in its discretion, to 

set a .26 hearing. (M.V., at p. 176; see also S.T. v. Superior Court (2009) 177

Cal.App.4th 1009, 1015-1016.) If the court at the six-month review hearing exercises its 

discretion to set a .26 hearing within 120 days, it must terminate reunification services at 

that time: “In any case in which the court orders that a hearing pursuant to Section 

 

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. If, 

however, the court finds there is a substantial probability that the child, who was under 

three years of age on the date of initial removal or is a member of a sibling group 

described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, may 

be returned to his or her parent or legal guardian within six months or that reasonable 

services have not been provided, the court shall continue the case to the 12-month 

permanency hearing.” 
30

366.26 shall be held, it shall also order the termination of reunification services to the 

parent or legal guardian.” (§ 366.21, subd. (h); see also rule 5.708(n)(1).) 

C. Standard of Review

Our review of an order terminating reunification services after a six-month review 

hearing is, in part, under a substantial evidence standard, and in remaining part, under an 

abuse of discretion standard. As explained above, in the case of a child under three or a 

child who is a member of a sibling group, in order to determine whether a juvenile court 

is empowered at the six-month review to set a .26 hearing (thereby terminating 

reunification services), it must first make “two distinct determinations.” (M.V., supra, 

167 Cal.App.4th at p. 175.) We review these two determinations by the juvenile court to 

ascertain whether substantial evidence supports them. (See Fabian L. v. Superior Court

(2013) 214 Cal.App.4th 1018, 1029; Kevin R. v. Superior Court (2010) 191 Cal.App.4th 

676, 688-689 [determination that “there was not a substantial probability of return to 

parental custody by the 12-month review date” reviewed for substantial evidence].) 

In determining whether substantial evidence supports the court’s decision, “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.’ [Citation.]” (Kevin 

R., at pp. 688-689.) And “ ‘ “[t]he sufficiency of evidence to establish a given fact, where 

the law requires proof of the fact to be clear and convincing, is primarily a question for 

the trial court to determine, and if there is substantial evidence to support its conclusion, 

the determination is not open to review on appeal.” [Citations.]’ [Citation.]” (Sheila S. 

v. Superior Court (2000) 84 Cal.App.4th 872, 880-881, quoting Crail v. Blakely (1973) 8 

Cal.3d 744, 750.) 
31

If the juvenile court’s two determinations under the third paragraph of section 

366.21(e), supported by substantial evidence, mean that the court is empowered to set a 

.26 hearing, it may then set such a hearing, but is not required to do so. (M.V., supra, 

167 Cal.App.4th at pp. 176, 179; see also S.T. v. Superior Court, supra, 177 Cal.App.4th 

at pp. 1015-1016.) Thus, we review that decision for abuse of discretion. (M.V., at 

p. 176; cf. id. at p. 182 [if court finds substantial probability that child may be returned to 

parent within next six months, “the court lacks discretion to schedule a .26 hearing”].) 

“We will not disturb the court’s determination unless the court has exceeded the limits of 

legal discretion by making an arbitrary, capricious or patently absurd determination. 

When two or more inferences reasonably can be deduced from the facts, we have no 

authority to reweigh the evidence or substitute our judgment for that of the juvenile court. 

[Citation.]” (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.) 

II. Order Setting .26 Hearing and Terminating Family Unification Services

Father’s challenge to the court’s order at the six-month review hearing in which 

the court set a selection and implementation hearing under section 366.26 and terminated 

his reunification services is based upon three arguments. First, he claims that the order 

requiring him to submit to psychological evaluations constituted a denial of his due 

process rights and an invasion of his privacy rights. Second, he argues that the court’s 

admission into evidence of the two psychologists’ reports was prejudicial error because 

there was no evidence that the professionals had the requisite qualifications. Third, he 

contends that the court failed to “find a specific legal basis for denying reunification 

services.” 

We address these arguments below, each of which is founded on the erroneous 

premise that the court denied reunification services to Father in the first instance, when in 

fact such services were granted and later terminated at the six-month review hearing. 

We then review the challenged order under the proper analytical framework as explained 
32

by the court in M.V., supra, 167 Cal.App.4th 166: We ask whether there was substantial 

evidence supporting the court’s decision that it could, in the exercise of its discretion, set 

a .26 hearing (thereby terminating the parents’ reunification services), and, if so, whether 

the court abused its discretion by setting the .26 hearing.

A. Appointment of Psychologists to Evaluate Father

Father contends that it was improper for the court to order that he submit to 

psychological evaluations. He argues that the juvenile court ordered him to undergo a 

psychological evaluation prior to the time that the minors “came within the jurisdiction of 

the court,” and that the order was invalid on this basis. In support of this position, he 

relies on Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195 (Laurie S.). His claim is 

without merit.

In Laurie S., supra, 26 Cal.App.4th at pages 198 to 199, the court—approximately 

two months after ordering the minor detained at a January 1994 hearing and 

approximately two months before the jurisdictional hearing—ordered that the mother 

submit to a psychological evaluation. The mother challenged that order by a petition for 

writ of mandate. (Id. at p. 197.) The mother argued that an order requiring her to 

cooperate with a psychologist for an evaluation, made before the court had sustained the 

allegations of a dependency petition, violated her due process rights and her right of 

privacy. (Id. at p. 200.) The appellate court noted that in practice, psychological 

“evaluations are generally ordered as part of a reunification plan after the child is 

declared a dependent. [Citation.]” (Id. at p. 201.) It held that before the court makes a 

finding that the child is at risk and the court assumes jurisdiction over the child, an order 

requiring the psychological evaluation of the parent is unwarranted and violates the 

privacy rights of the parent. (Id. at p. 202.)

The circumstances found in Laurie S. do not exist in this case. Here, the court did 

not order a psychological evaluation of Father prior to the date it assumed jurisdiction 
33

over the minors.22 At the jurisdictional hearing on January 30, the court found the 

allegations in the petition true and sustained the petition. The court also ordered that 

Father submit to a psychological evaluation. Based upon the Department’s 

recommendation, the court ordered that Father submit to a psychological evaluation. 

Before making the order, the court specifically inquired about Father’s position; his 

counsel informed the court that he did not object to the psychological evaluation. Since 

the court did not order a psychological evaluation of Father before it assumed jurisdiction 

over the minors, and since Father did not object to the order in any event, his challenge of 

the order under Laurie S. fails.

B. Admission of Psychologists’ Reports

Father contends that the court committed prejudicial error by admitting into 

evidence the psychological evaluations prepared by Dr. Lee and Dr. Finnberg. He argues 

that there was no evidence that either professional met the qualifications required under 

Family Code section 7827, and the court erred by taking judicial notice of Dr. Lee’s and 

Dr. Finnberg’s respective qualifications.23

At the six-month review hearing, when the Department offered the psychological 

evaluations prepared by Dr. Lee and Dr. Finnberg, counsel for Father objected. He 

argued that there was no evidence that the professionals, consistently with the 

requirements of Family Code section 7827, subdivision (c), held doctoral degrees, and 

had at least five years of postgraduate experience in the diagnosis and treatment of 

 

22 The record shows that the court did, in fact, order a psychological evaluation of 

Mother on January 16, prior to the jurisdictional hearing. Mother was represented by 

counsel and did not object to the order. In any event, the order requiring a psychological 

evaluation of Mother is not the order being challenged here.

23 Department in its opposition to the writ petition does not address Father’s 

contention that the court prejudicially erred by improperly taking judicial notice of the 

psychologists’ qualifications.
34

emotional and mental disorders.24 The court responded that it would “take judicial notice 

of the fact that both Dr. Finnberg and Dr. Lee are Ph.D. clinicians. [The court has] 

personally worked with them and with their analyses in this field . . . since 1997.” After 

Father’s counsel objected to judicial notice being taken, the court indicated further that 

the psychologists’ respective practices were not limited to conducting psychological 

evaluations (as suggested by Father’s counsel), but that “[t]hey are treating clinicians. 

And everybody in the system knows that . . .” 

We review the court’s admission of the testimony of expert witnesses under an 

abuse of discretion standard. A trial court’s determination of whether an expert has the 

proper qualifications “is a matter of discretion and will not be disturbed absent a showing 

of manifest abuse. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 321-322; see also 

Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319-1320.) The exercise of “judicial 

discretion must be measured against the general rules of law.” (Horsford v. Board of 

Trustees of California State University (2005) 132 Cal.App.4th 359, 393.)

The court here abused its discretion in basing its admission of the psychologists’ 

evaluations on its judicial notice of the professionals’ respective qualifications. There 

was no evidence presented concerning the qualifications of Dr. Lee and Dr. Finnberg—

nothing establishing that they each held a doctorate in psychology and had “at least five 

 

24 Family Code section 7827 is referenced in Welfare and Institutions Code section 

361.5, subdivision (b)(2). “ ‘Mentally disabled’ as used in this section means that a 

parent or parents suffer a mental incapacity or disorder that renders the parent or parents 

unable to care for and control the child adequately.” (Fam. Code, § 7827, subd. (a).) 

Subdivision (c) of Family Code section 7827 reads in part: “Except as provided in 

subdivision (d), the evidence of any two experts, each of whom shall be a physician and 

surgeon, certified either by the American Board of Psychiatry and Neurology or under 

Section 6750 of the Welfare and Institutions Code, a licensed psychologist who has a 

doctoral degree in psychology and at least five years of postgraduate experience in the 

diagnosis and treatment of emotional and mental disorders, is required to support a 

finding under this section.”
35

years of postgraduate experience in the diagnosis and treatment of emotional disorders” 

as required under subdivision (c) of Family Code 7827. And the fact that the trial judge 

may have been personally familiar with the experts and their qualifications, by itself, did 

not provide a basis for accepting their evaluations as experts who had the proper 

qualifications under subdivision (c) of Family Code 7827. A trial judge’s personal 

knowledge of a matter is not a basis for taking judicial notice of that matter, unless the 

matter is otherwise a proper subject of judicial notice. (Varcoe v. Lee (1919) 

180 Cal. 338, 344 [fact that trial judge was personally familiar with character of wellknown street in San Francisco could not justify his taking judicial notice of that fact]; 

Estate of Fulcher (1965) 234 Cal.App.2d 710, 718 [representations of fact, not submitted 

as evidence, are not properly subject to judicial notice, even if judge is personally 

familiar with the represented facts].)

But as we discuss, post, there was substantial evidence supporting the court’s 

determination at the six-month review hearing that it could exercise its discretion to 

schedule a .26 hearing. Under section 366.21(e), the court was not required to find that 

Father suffered from a mental incapacity or disorder rendering him unable to care for the 

minors and incapable of utilizing child welfare services. Accordingly, any error in the 

court’s admission of the psychologists’ reports without first establishing the experts’ 

qualifications was harmless.

C. Claim of Inadequate Court Findings

In the most cursory of arguments, Father contends that “[a]s cited above, the 

juvenile court must find a specific legal basis for denying reunification services. [¶] 

Furthermore, if the social worker recommends that no reunification services be provided 

to the parents, the basis for such a recommendation must be specifically stated. (Rule 

5.690.) [¶] Here, the court did not make any such findings.” 
36

We are not required to address undeveloped claims or ones that are inadequately 

briefed. (People v. Miralrio (2008) 167 Cal.App.4th 448, 452, fn. 4.) A party’s failure to 

support its argument with appropriate citations to the record may result in it having its 

brief stricken and its argument deemed forfeited. (Miller v. Superior Court (2002) 101 

Cal.App.4th 728, 743.) Here, beyond the matter quoted in the previous paragraph, Father 

makes no argument in support of his position. It is therefore forfeited.

Even were we to consider Father’s claim, it is without merit. Father does not 

specify what he means by the italicized phrase, “[a]s cited above, the juvenile court must 

find a specific legal basis for denying reunification services.” But it appears that he is 

referencing a discussion five pages earlier in the Petition in which he noted that under 

section 361.5, subdivision (b), a court must find a statutory circumstance justifying denial

of reunification services by clear and convincing evidence in order to issue an order 

bypassing reunification. This claim is untenable because the court here granted 

reunification services to the parents at the jurisdictional and dispositional hearing on 

January 30. It thereafter terminated those services at the six-month review on November 

16.25 For the reasons discussed post, the court was not required at the six-month hearing 

to make a finding under section 361.5, subdivision (b)(2) in order to set a selection and 

implementation hearing and terminate services previously granted.

 

25 Father’s citation to rule 5.695 concerning the social worker’s alleged failure to 

specifically state a basis for recommending the denial of reunification services is 

similarly unavailing. Rule 5.695 concerns a court’s findings and orders at a dispositional 

hearing, including the circumstances, consistently with section 361.5, under which it may 

deny reunification rights to a parent whose child has been removed from his or her 

custody. The rule is inapposite to the circumstances presented here.
37

D. Setting of .26 Hearing Under Section 366.21(e)

1. Sibling Group Determination

There was no dispute that the youngest of the minors, S.M.T., was under three at 

the time she was initially removed from the home.26 And there was no dispute that 

S.M.T. and her two brothers and one sister were members of a sibling group within the 

meaning of section 361.5, subdivision (a)(1)(C).

27

 Each child was “removed from 

parental custody at the same time,” and “one member of the sibling group [S.M.T.] was 

under three years of age on the date of initial removal.” (Ibid.) And it was undisputed 

that each minor was related to the other members of the group as a full sibling. 

(Ibid.) Therefore, given the minors’ status, the juvenile court was legally authorized to 

set a .26 hearing at the six-month review as provided in the third paragraph of section 

366.21(e). 

We next examine whether respondent court’s “two distinct determinations” under 

the third paragraph of section 366.21(e) were supported by substantial evidence. (M.V., 

supra, 167 Cal.App.4th at pp. 175-176.) We conclude that they were.

 

26 Construing the date of “initial removal” under section 361.5, subdivision 

(a)(1)(B) as “the date on which the child was initially removed from the home of a parent 

or guardian by a peace officer pursuant to section 305 or by a social worker pursuant to 

section 306” (In re Christina A. (2001) 91 Cal.App.4th 1153, 1165, fn. 2), the record 

shows that S.M.T. was approximately two years, eight months old when she was initially 

removed from Mother’s home. 

27 “For the purpose of placing and maintaining a sibling group together in a 

permanent home should reunification efforts fail, for a child in a sibling group whose 

members were removed from parental custody at the same time, and in which one 

member of the sibling group was under three years of age on the date of initial removal 

from the physical custody of his or her parent or guardian, court-ordered services for 

some or all of the sibling group may be limited as set forth in subparagraph (B). For the 

purposes of this paragraph, ‘a sibling group’ shall mean two or more children who are 

related to each other as full or half siblings.” (§ 361.5, subd. (a)(1)(C).) 
38

2. Treatment Plan Progress

The court specifically found, as stated in the orders, “based on clear and 

convincing evidence, the parents failed to participate regularly and make substantive

progress in a court-ordered treatment plan.” Father’s welfare services case plan included 

a specific requirement that he “[a]ttend and successfully complete a residential treatment 

program as recommended by the substance abuse assessment and as approved by the 

social worker. Sign all necessary releases.” It also included a requirement that he 

“[a]ttend and participate in an alcohol/drug assessment with Behavioral Health in Salinas, 

CA, by February 28, 2013.” (Original underscoring.) 

There was undisputed evidence at the six-month hearing that Father did not 

comply with the court-ordered treatment program. He did not attend and participate in a 

drug and alcohol assessment with the Department of Behavioral Health in Salinas. He 

admitted this omission. Father also admitted that he never attended a residential drug and 

alcohol treatment program as required under his case plan. He did, however, complete an 

outpatient drug and alcohol program in Los Baños. While this activity is commendable, 

it cannot be considered a substitute for the completion of an in-county residential drug 

and alcohol treatment program required under his case plan. There was thus substantial 

evidence supporting the court’s first determination under section 366.21(e) that Father 

had failed to participate regularly and make substantive progress in a court-ordered 

treatment plan.

3. Substantial Probability of Child’s Return to Home

Addressing the initial aspect of the second determination under section 366.21(e), 

the court below concluded (in each of the four cases) that “there is not a substantial 

probability that the child may be returned to one or both of the parents within six 

months.” As explained in M.V., the statute, which “is unwieldy” (M.V., supra, 167

Cal.App.4th at p. 181), does not provide guidance as to the criteria under which a court 
39

determines whether this substantial probability standard is met. (Id. at p. 176.) 

“Literally, the statute commands the court to determine whether there is a strong 

likelihood of a possibility of return.” (Id. at p. 181.) The court may consider all evidence 

bearing on the issue. (Ibid.) This may include, but is not limited to, the three mandatory 

factors enunciated by the Legislature in section 366.21, subdivision (g)(1) that a court 

considers at the 12-month review in deciding whether “there is a substantial probability 

the child will be returned to the physical custody of his or her parent or guardian . . . 

within the extended period of time . . .” (Italics added.) Those factors are “(A) That the 

parent or legal guardian has consistently and regularly contacted and visited with the 

child. [¶] (B) That the parent or legal guardian has made significant progress in resolving 

problems that led to the child’s removal from the home. [¶] (C) The parent or legal 

guardian 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.” (Ibid.) The court may also consider any 

extenuating circumstances involving the parent that may explain the parent’s “relative 

lack of evidence of satisfying all three factors.” (M.V., at p. 183.)

The child visitation factor does not support Father’s position. There had been no 

visits by Father with the twins, A.J. and J.J., based upon the court’s prior jurisdictional 

and dispositional order that no such visitation be provided. That order was in turn based 

upon the conclusion that such visitation would be detrimental to the children; both A.J. 

and J.J. reported that Father had physically abused them, they expressed fear of him, and 

they declined visitations with him. Additionally, there was substantial evidence upon 

which the court could have found that the visitation factor as to K.T. and S.M.T. was 

unfavorable to Father. While Father had been attending one hour per week visitation 

with the younger children, the Department reported that Father tended to overexcite K.T. 

and maintained little supervision over S.M.T. Dr. Donahue reported that Father did not 
40

demonstrate appropriate skills to address his children’s negative behaviors, quickly 

escalated into yelling at them, did not have an understanding of their level of 

development, and favored one child over the other. From her observation of the visits, 

Dr. Donahue described K.T. and S.M.T. as exhibiting “trauma reactive symptoms” in 

dealing with Father. This issue was specifically noted by the court at the hearing: The 

court indicated that “a feature in this case that’s very unusual is that the children [are] 

repel[led by] him, and they do not wish to be around him. They are afraid of him.” 

Therefore, there was no evidence (substantial or otherwise) that Father “consistently and 

regularly contacted and visited with the child” as to A.J. and J.J. (See § 366.21, subd. 

(g)(1)(A).) And because of the problematic nature of his visits with the younger children, 

there was substantial evidence to support the conclusion that the visitation factor did not 

favor Father as to K.T. and S.M.T. as well.

There is also substantial evidence favoring the court’s conclusion that the second 

factor—significant progress in resolving problems that led to the child’s removal (see 

§ 366.21, subd. (g)(1)(B).)—did not favor Father’s position. In the interview with Dr. 

Lee, Father exhibited deception and denial of his history of drug and alcohol abuse. In 

Dr. Lee’s opinion, he “tended to externalize blame. He did not take responsibility for the 

state in which the children were living or the fact that they were not attending school. He 

said that he complained to [Mother] about her drug and alcohol abuse, but did not seem 

to feel it was his responsibility to protect the children from it.” Additionally, the 

Department’s social worker reported that Father had failed to take any responsibility for 

the minors’ reported physical and sexual abuse, had “actively refused services and . . . 

attempted to avoid the Department’s oversight,” and had continually denied having 

physically or sexually abused any of the children. The court, noting that Father’s having 

participated in the Los Baños outpatient drug and alcohol program was “a good thing,”

nonetheless itemized a number of matters weighing against the notion that Father had 
41

made significant progress in addressing the problems leading to the minors’ removal. 

The court emphasized Father’s denial of his alcohol and drug problems; his denial of 

“any wrongdoing whatsoever with respect to physical abuse of his children even though 

his children both independently and in corroboration of one another have said that he 

abused them consistently”; and that the psychologists had concluded that he would 

“not . . . honestly confront his behaviors . . . or honestly confront his mental health 

issues.”28 

And there was substantial evidence supporting the court’s conclusion that the third 

factor did not favor Father because he had not “demonstrated the capacity and 

ability . . . to complete the objectives of his . . . treatment plan.” (§ 366.21, subd. 

(g)(1)(C).) As noted above, Father had made no attempt to enroll in and complete an 

inpatient drug and alcohol treatment program, and he did not attend and complete a drug 

and alcohol assessment in Salinas as required under his court-ordered plan. Similarly, the 

circumstances noted above with respect to his failure to make significant progress in 

resolving the problems leading to the minors’ removal also negate the factor that Father 

had “demonstrated the capacity and ability . . . to provide for the child’s safety, 

protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. 

(g)(1)(C).) Additionally, Dr. Lee concluded from her interview and evaluation of Father 

 

28 Father argues briefly (and without citation to the record or to any authority) in 

his petition that the court erred in precluding testimony from two additional witnesses 

offered by him at the hearing, Joel Cortez and Father John. Father claims that these 

witnesses would have offered support for his position that his conduct with his children 

was “appropriate” and that he “sought out the assistance of a third party regarding 

financial assistance and counseling.” Because Father has not developed this contention 

with sufficient argument, authority, or citation to the record, it is forfeited. (People v. 

Miralrio,supra, 167 Cal.App.4th at p. 452, fn. 4.) Further, were we to consider the 

contention’s merits, we would reject it. Determinations regarding the admission or 

exclusion of evidence are reviewed for abuse of discretion. (People v. Mickey (1991) 54 

Cal.3d 612, 654.) Our review of the record discloses that the court did not abuse its 

discretion in excluding the proffered testimony.
42

that, given his denial of drug abuse and domestic violence, and his misrepresentation of 

“his problem areas,” it was unlikely, even with treatment and further counseling, that he 

would be able to see “positive change within the period of time provided by statute.” 

And Dr. Finnberg opined in her evaluation that Father’s “disorders, psychiatric, drug, and 

personality” rendered him unable to care for his children, particularly in light of their 

emotional and developmental needs. 

It is apparent from the record that the court considered the evidence 

comprehensively, including positive matters such as Father’s completion of the outpatient 

drug and alcohol program, in reaching the conclusion that there was not a substantial 

probability that the minors might be returned to one or both of the parents within six 

months. Thus, substantial evidence supported this factor of the juvenile court’s decision 

to terminate reunification services. 

4. Provision of Reasonable Services

Addressing the other aspect of the second determination under section 366.21(e), 

the court below concluded that reasonable services were provided or offered to the 

parents. Father submitted no argument below or in the instant petition that the family 

services provided or offered by the Department were not reasonable. And Father was 

offered and received weekly visitation of K.T. and S.M.T. He participated in an out-ofcounty drug and alcohol treatment program, but there was evidence that he was not 

candid with the treatment providers concerning the circumstances of the dependency 

cases involving his children and, according to the social worker, he would not permit her 

to speak openly to his treatment providers. Similarly, although he completed a parenting 

education class, he did not disclose to the teacher anything about the instant dependency 

proceedings or the claimed abuse of his children. Furthermore, he refused to cooperate 

with the Parents As Teacher representative, Ms. Klein, in visitations with his younger 

children, even though it was mandated in his case plan. 
43

For all of these reasons, there was substantial evidence supporting the court’s 

conclusion that Father was offered or provided reasonable services by the Department.

5. Discretion in Setting .26 Hearing

Under section 366.21(e), there was substantial evidence supporting the court’s 

conclusions that (1) the minors were a sibling group within the meaning of section 361.5, 

subdivision (a)(1)(C); (2) the parents failed to participate regularly and make substantive 

progress in a court-ordered treatment plan; (3) there was not a substantial probability that 

the minors might be returned to one or both of the parents within six months; and (4) 

reasonable services were provided or offered to the parents. Based upon these supported 

findings, the court, in its discretion, could set a .26 hearing and terminate family 

reunification for the parents. (M.V., supra, 167 Cal.App.4th at pp. 176, 179.) Based 

upon the record before us, therefore, it was not an abuse of discretion for the court to 

have set the .26 hearing here. 
44

DISPOSITION

The petition for writ of mandate is denied. Statutory costs are awarded to real 

party in interest.

 

Márquez, J.

WE CONCUR:

 

Rushing, P.J.

 

Premo, J.