Filed 12/14/15 Steven B. v. Superior Court CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

STEVEN B. , Petitioner,
v.

THE SUPERIOR COURT OF THE S TATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES,
Respondent.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICE S ,

Real Party in Interest. B 264525
(Super. Ct. No. CK89794 )

Writ petition to review order setting hearing under Wel fare and Institution s Code section 366.26. Emma Castro , Juvenile Court Referee . Petition denied. Law Office of Marlene Furth and Melissa Chaitin for Petitioner. No appearance for Respondent. Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County Counsel, Tyson B. Nelson, Deputy County Counsel , f or Real Party in I nterest

.

_______________________________2

Petitioner Steve n B. seeks extraordinary relief (Welf. & Inst. Code, § 366.26,
subd. ( l ); 1 Cal. Rules of Court, rule 8.452) f rom the juvenile court’s order at the 18

- month review hearing (§ 366.22) , conducted 26 months after the initial removal , setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of permanent plans for his three dependent children

. Steven B. also challenges the juvenile court’s order at the same hearing termi nating visitation with the
children. 2 We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A

. The Dete ntion and the Petition s On March 20, 2013 the Los Angeles County Department o f Children and Family Services filed a petition under section 300 to declare Steven B.’s children, 12

- year

- old Bryant B., 11

- year

- old Brandon B., and nine

- year

- old B.B

. , dependents of the juvenile

court. 3 The petition allege d, among other things, that Steven B. and the children’s mother
Tia T. had “a history of engaging in violent altercations in the presence of the children”
and that Tia T. had allowed Steven B. to reside in the home with unlimited access to the children in violation of a valid restraining order. Steven B. had a lengthy, violent criminal history , which includes convictions for burglary, robbery, possession of

1 Statutory references are to the Welfare and Institu tions C ode.
2 Although the order terminating visitation was not an order “that a hearing pursuant to this section be held” (§ 366.26, subd. ( l )), it is subject to writ review under section 366.26, subdivision ( l ), and California Rules of Court, rule 8.452 . (See In re Tabitha W. (2006) 143 Cal.App.4th 811, 816

- 817; In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022

- 1024.)
3 The petition also named B.T., the daughter of Tia T. from another relationship. B.T. is not a party to this proceeding.3

narcotics, and willful cruelty to a child. The court ordered the children detained and placed with Kellye T., their maternal grandmother. On October 2, 2013 Steven B. and Tia T. pleaded no contest to an amended petition. The court declared the children dependents of the court, removed them from their parents’ custody, and ordered them suitably place d with placement to remain with Kellye T. The court ordered reunification services for Steven B., including drug testing, anger management counseling, compliance with mental health assessment recommendations, and monitored visitation wit h the children. T he court set the six

month review hearing ( § 366.21, subd. (e)) for April 2, 2014. On October 17, 2013 the Department filed a subsequent petition pursuant to section 342 , alleging that on October 11, 2013 Steven B. had stabbed Kellye T. to death , and th at this incident endangered the children’s physical health and safety, placed them at risk of physical harm, damage, and danger. Steven B. was in car cerated and not present for the initial hearing on the subsequent petition

. When the social worker appeare d at the jail to give Steven B. notice of the hearing, he stated, “If I could get my hands on you I would choke you and kill you.”
On February 27 , 2014 the court conducted the adjudication hearing on the section 342 subsequent petition. Steven B. was i ncarcerated and was not present, but was represented by appointed counsel. The court sustained the subse quent petition , finding by a preponderance of the evidence that the allegations were true. (See § 355, subd. (a) [“[p]roof by a preponderance of evide nce must be adduced to support a finding that the minor is a person described by Section 300”]; In re D.C. (2011) 195 Cal.App.4th 1010, 1014 [ the child services agency “has the burden to prove the jurisdictional facts by a preponderance of the evidence”]; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248 [court determines at the jurisdictional hearing “whether the allegations in the petition that the minor comes . . . within the juvenile court’s jurisdiction[ ] are true” and the4

“[j]urisdictional findi ngs must be made by at least a preponderance of the evidence”]

. ) 4
The juvenile court also found by clear and convincing evidence t hat “[s]ubstantial danger exist[ed] to the physical health of [the ch ildren] and/or [the children we re ] suffering

severe emot ional damage, and there [was] no reasonable means to protect [them] wi thout removal from [Steven B.’s ] physical custody.” (See § 3 61 , subd. (b).) The court continued the October 2, 2013 suitable placement order for the children , and ordered that reunific ation se rvices continue for Steven B. T he children were placed together with a maternal aunt.

B

. The Six

- Month Review Hearing After several continuances, the court held a contested six

- month review hearing on June 30, 2014 . The Department recommende d termination of reunification services for Steven B. The court found that Steven B. was in partial compliance with his case plan
and that the Department had not provided reason able reunification services. O ver the Department’s objection , the court conti nued the case to December 30, 2014 for the
12

- month permanency hearing. (§ 366.21, subd. (f).)

C

. The 12

- Month Permanency and 18

- Month Permanency Planning Hearings For the 12

- month permanency hearing on December 30, 2014 , the Department reported Steve n B. remained incarcerated and had not participated in any of his court

ordered programs because the jail did not offer th em . The children’s therapist had recommended against visits with Steven B. because the children remained traumatized by

4 Because the juvenile court found the allegations in the subsequent petition true by a preponderance of the evidence, the court’s findings do not affect Steven B.’s presumption of innocence in any criminal trial. (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 56 3 [burden of proof in a criminal proceeding “is a high one [of] ‘beyond a reasonable doubt,’” whereas “in dependency cases” the “burden is lower

– ‘preponderance of the evidence’”].)5

Steven B.’s k illing of Kellye T. and they were emotionally overwrought. The court continued the matter for a contested hearing on March 4, 2015. In a report for the contested hearing , the Department again stated that the jail did not offer the services the court had ordered for Steven B. , and that therefore Steven B. was not in compliance with his case plan. The children’s therapist continued to
recommend that the children not visit with Steven B. because they were still working on grief and loss issues caused by Ste ven B.’s murder of their grandmother . The Department recommended that the court terminate reunification services for Steven B. and set a hearing pursuant to section 366.26. After several continuances, the juvenile court held a contested 18

- month
permanen cy planning hearing over several sessions between May 6, 2015 and May 28,
2015. T he Department reported that the children were doing well in their placement with the matern al aunt, who wished to adopt them. Steven B. remained incarcerated and was

not in compliance with his case plan. The children’s therapist reported that Bryant B. had made moderate progress and had ambivalent feelings toward Steven B. Bryant B. expressed anger toward Steven B., cried w hen prodded to discuss his feelings toward
Steven B ., and was adamant that he did n ot want to see Steven B. in pers on, although he stated he still loved him. Brandon B. had expressed similar feelings about Steven B. , and also stated that he d id not want to see him in person . B.B. was thriving in his plac ement with the maternal aunt, and did not understand the circumstances surrounding Ste v en B.’s incarceration. The therapist opined that the children’s symptoms could worsen, causing further damage to their emotional well

- being , if they visited their fathe r

. T he Department’s social worker, Ang lia Lusk, testified that she was aware that the juvenile court had made a finding of no reasonable reunification services for Steven B. at
the six

- month review hearing. Lusk further testified she had not arranged for the children
to visit Steven B. in light of the therapist’s recommendation against visitation, and she had attempted to provide Steven B. with services in the jail but was told he could not participate in programs because he was classified as a high

- risk inmate. Lusk also6

testified that Bryant B. became emotional when she broached the subject of visitation with Steven B., and none of the children ever requested visitation or telephon ic contact with Ste v en B.
All three children testified in chambers. Bry ant B . testified that he had last visited Steven B. on “October 14th, [2013] and then suddenly, we were on our way to go to the park, and then

– then Dad killed my grammy.” Bryant B. testified that he did not want to
see Steven B. , because “he killed my g rammy, and he broke my heart.” Brandon B. stated
that he wanted to visit Steven B. once a year with a monitor present, but he did not feel
safe around Ste v en B. and would not feel comfortable visiting Steven B. in jail. B. B.
testified that he did not mi ss Steven B. and did not want to visit him because “he killed my favorite grammy, and she was beautiful . . . and . . . nice . . . and . . . good.” B. B

. further testified that he did not want Steven B. to writ e him a letter or to call hi m on the phone, an d did not ever want to live with Steven B.
Steven B. testified that he had repeatedly asked to visit with the children since his incarceration, with no success. His jai l classification was “K

- 10”, which meant “keep
away , ” and the guards only allowed him to leave his cell for 30 minutes a day. Steven B. still wanted to visit the children, but he did not want to force them to do anything th ey did
not want to do. Steven B

. acknowledged the children sounded “angry” with him, but believed the anger stemmed f rom the children not hearing from him. Steven B. also
testified that he did not believe the children did not want to see him, and attributed the children’s statements to “18 months of therapy.” 5

5 During Steven B.’s testimony on cross

- examination, counsel for Steven B. advised the court that Steven B. was requesting a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 to request new appointed counsel. The court conducted the hearing, at which Steven B. stated that he was not asking the court to relieve his at torney from representing him. Steven B. did not make a request to represent himself. When the perman en cy planning hearing resumed, the court stated, “The court, after hearing from [Steven B.], has concluded that, in fact, based on [Steven B.’s] response, he is not requesting that [counsel] be relieved as his attorney of record.”7

After the conclusion of testimony , counsel for the Departme nt again asked the

court to terminate reunification services for Steven B. and to set a hearing pu rsuant to section 366.26 . Counsel for the Department argued that, in light of Steven B.’s incarceration while awaiting trial on the murder charge, even with an extension of reunification services there was no possibility the children could be safely returned to Steven B. within the extended period. Counsel further observed that the children did not wish to return to Steven B.’s care or even to visit with him, and their therapist had warned
that visitation with Steven B. could be detrimental to their emotional well

- being. Counsel for the children joined in the Department’s request for termination of reunification
services . Counsel for the children pointed out that 26 months had elapsed from the date
the court had removed the children from the ir parents’ custody , there was no possibility
Steven B. c ould rehabilitate within six months of killing the children’s grandmother and caretaker, and that under th e circum stances any further extension of reunification se rvices
would be adverse to the best interest of the children. Counsel for Steven B. argued that
Steven B. was entitled to extensi on of reunification services for an additional period beyond the 18

- month sta tutory limit because at the six

- month review hearing on June 30,
2014 the court made a no reasonable services finding, there had been no reasonable
service s finding at any hearing prior to the 18

- month hearing, and the Department had
failed to provide any services as of the 18

- month hearing date.
T he juvenile court terminate d reunification services for Steven B. and set t he matter for a hearing under section 366.26. The court found that, although the Department
had no t provide d Steven B. with reasonable s ervices as of the six

- month review hearing
and during the last review period, 6 extending services would be detrimental to the

6 The Department’s failure to provide reasonable services at both the six

- month and 18

- month review hearings does not preclude termination of reunification services, although un der these circumstances the court may not be able to terminate parental rights at a subsequent hearing under section 366.26. (See § 366.26, subd. (c)(2)(A).)8

children. T he court observed that the children were old enough to state their desires regarding contact with Steven B., and they did not wish to have contact; the children had been separated from Ste v en B. from the time they were initially detained and had not formed a parent

- child relationship with Ste v en B.; and Steven B. was incarcerated awaiting trial for the murder of the child ren’s grandmother . The court concluded that, under these circumstances, it would be futile to order extension of services for Steven B. The court also terminated visitation between Steven B. and the children on the ground
that visitation would be detrime ntal to the children.
Steven B. a rgues that the juvenile court erred by terminating family reunification services and by terminating his visitation with the children . Steven B. also challenge s two orders made by the juvenile court, on December 30, 2014 a nd March 4, 2015, denying his requests to represent himself. These orders are not reviewable in this writ proceeding because the juvenile court did not make them at a hearing in which the court also ordered a hearing under section 366.26. 7 (See In re Tab itha W ., supra, 143 Cal.App.4th at p. 817.)

DISCUSSION

A. The Juvenile Court Properly Terminated Reunification Services for Steven B. Section 366.22 , subdivision (b) , authorizes the juvenile court to extend service s beyond the 18

- month statutory limi t i n certain limited circumstances. The court, however, may not extend services beyond 24 months after the date the children were originally taken from the parent’s physical custody. Here, the 18

- month review hearing

7 We review these orders in case Nos. B261455 and B263113. We do not decide whether the juvenil e court’s December 30, 2014 and March 4, 2015 orders denying Steven B.’s requests to represent himself are reviewable on appeal from orders at the hearing pursuant to section 366.26, or whether Steven B. must make another request to represent himself at th at hearing to preserve the issue for appellate review.9

occurred 26 months after the date of the children’s original removal from Steven B. Therefore, Steven B. is not entitled to invoke any of the statutory exception s to termination of reunification services.
T here are cases holding that the juvenile court has discretion to continue the
18

- mo nth review hearing under section 352 and extend reunification services beyond the statutory limit . Those cases, however, involved exceptional circumstances, such as an

e xternal factor that thwarted the parent’s efforts at reunification. (See, e.g., In re Elizabeth R. (1995) 35 Cal.App.4th 1774 [mother was hospitalized during most of the reunification period, and after her release the child welfare agency attempted to restrict visitation]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209, 1212

- 1214 [ juveni le court found that the child welfare agency’ s reunification services were a “disgrace”] ; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777

- 17 7 8 [ child welfare agency never developed a reunification plan for the father] .) This is not the kind of case that warrant ed extension of reunification services beyond the statutory limit. Steven B. was incarcerated as a high

- risk inmate during the entire course of reunificat ion and was unable to receive services in the jail. Steven B. does not identify what the Dep artment could have done to provide him with services under these circumstances. Moreover, extension of services for Steven B. would be contrary to the best interest of the children. Steven B. killed the children’s grandmother
and caretaker. He threatene d to kill the social worker when she appea red at the jail to speak with him . He is incarcerated awaiting trial on a charge of special circumstances murder. Under these circumstances , there was virtually no chance that Steven B. would benefit from continu ed services or that the children could be returned to Steven B. within an additional reunification period. To the contrary, an additional six months of services would only serve to further delay the inevitable. T he juvenile court acted well within its di scretion in determining that the children’s need for permanence and stability outweighed any claim by Steven B. to additional reunification services , and in refusing to continue the 18

- month review hearing and extending reunification services beyond the10

st atutory limit. ( See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [“ the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect ”]; D.T. v. Superior Court (2015) 241 Cal.App.4th 1017 , 1034 [“[o] ur j uvenile c ourt l aw attempts to accommodate these sometimes competing interests by shifting the emphasis of the proceedings over time from the goal of preserving the family at the outset to that of protecting and promoting the best interests of the child if efforts a t reunification produce unsatisfactory results or drag on too long ”]; In re Luke M. (2003) 107 Cal.App.4th 1412, 1423 [“[t]he state ’ s compelling interest in protection requires the court to focus on the child’ s placement and well

- being, rather than on a pa rent’ s custody challenge ”] .)

B. The Juvenile Court Properly Terminated Steven B.’s Visitation The juvenile court must permit a parent to visit his or her children even after the

court terminates reunification services for the parent, unless the court f inds that visitation would be detrimental to the children. (§§ 366.21, subd. (h), 366.22, subd. (a) ; see In re
Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 [“ ‘ [a] bsent a showing of detriment caused by visitation, ordinarily it is improper to suspend or ha lt visits even after the end of the reunification period’”].) We review the court’s finding that visitation would be detrimental to the child for substantial evidence. ( In re Mark L. (2001) 94 Cal.App.4th 573, 581, fn. 5.) 8

Sub s tantial evidence supports the juvenile court’s finding that visitation with
Steven B. would be detrimental to the children

. The evidence at the 18

- month review

8 When we review the juvenile court’s findings under the substantial evidence standard, we inquire only whether there is any evidence, contradicted or uncontradicted, that supports the court’s determi nation. We resolve all conflicts in support of the determination, we indulge in all legitimate inferences to uphold the findings, and we may not substitute our deductions for those of the juvenile court. ( In re I.J. (2013) 56 Cal.4th 766, 773; Los Angele s County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930, 940.)11

hearing established the children’s therapist wrote two letters to the social worker, shortly prior to the 18

- month revie w hearing, advising that, although the children were making progress in therapy, their continued progress required that they overcome the emotional damage they suffered as a result of Steven B.’s killing of their grandmother. The therapist stated her beli ef that, if the children were to visit Steven B., “their symptoms could worsen, and it could cause further damage to their emotional well

- being. ” A ll three children testified that Stephen B. had killed their grandmother, and the court observed
that the ch ildren “appeared to be sad and unhappy when they

. . . testified about their grandmother’s death.” Bryant B. stated adamantly that he did not want to se e Steven B. , and B. B. testified that he did not want to visit Steven B. or even to receive a letter or a phone call from him. Only Brandon B. expressed any willingness to see Steven B., but only once a year , with a monitor present , a nd not in a jail. This evidence fully supported the court’s determination that visitation with Steven B. would be detrimenta l to the well

being of the children.

DISPOSITION

The petition is denied. The stay of proceedings issued o n September 2, 2015 is
vacated.

SEGAL, J.

We concur:

PERLUSS, P. J. ZELON, J.