1

Filed 8/31/15 Wendy E. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

WENDY E. et al.,

Petitioners,

A145511

SUPERIOR COURT OF THE CITY AND

COUNTY OF SAN FRANCISCO, (San Francisco County

Super. Ct. No.

Respondent; JD143263)

SAN FRANCISCO HUMAN SERVICES 

AGENCY et al.,

Real Parties in Interest.

__________________________________________/

The juvenile court terminated mother Wendy E.’s (mother) and presumed father 

Jose R.’s (father, collectively parents) reunification services and set a Welfare and 

Institutions Code section 366.26 hearing (.26 hearing).1 Parents petition for writ relief 

(Cal. Rules of Court, rule 8.452). They contend the San Francisco County Health and 

Human Services Agency (the Agency) failed to provide reasonable reunification services. 

Father contends the court applied the wrong standard when determining parents failed to 

 

1 Unless noted, all further statutory references are to the Welfare and Institutions 

Code.
2

participate in the services or make substantial progress in their court-ordered treatment 

plans. He also claims substantial evidence does not support various court findings. 

We direct the juvenile court to modify its June 11, 2015 minute order to reflect the 

court’s oral findings made on that date. In all other respects, we deny parents’ petitions.

FACTUAL AND PROCEDURAL BACKGROUND

Detention and Jurisdiction

J.R. was born at 33 weeks gestation in July 2014 and the Agency filed a section 

300 petition shortly thereafter. The operative petition alleged J.R. came within section 

300, subdivisions (b) and (j) because mother has or had: (1) a “serious substance and 

alcohol abuse problem” that “continued during her pregnancy” with J.R.; (2) “mental 

health concerns” including “depression, a history of suicide attempts and prescribed 

psychotropic medications, and anger management problems for which she has been 

previously arrested[;]” (3) “a history” of relationships involving domestic violence,

including with father; (4) “a criminal history” including “child endangerment[;]” (5) four 

previous Agency referrals beginning in 2010 for “neglect, domestic violence,” and 

substance, emotional, and physical abuse; and (6) another child “in the care of his father 

after 18 months of services were provided” to her. The operative petition also alleged 

father had “an admitted substance abuse problem which includes alcohol, marijuana and 

crystal methamphetamines” and “an anger management problem which includes 

domestic violence in his relationship with” mother. 

The court held a detention hearing and determined J.R. came within section 300, 

subdivisions (b) and (j). The court detained J.R. and ordered supervised visitation for 

parents. At a combined hearing on jurisdiction and disposition, parents submitted to the 

allegations in the operative section 300 petition. The court removed J.R. from parental 

custody and ordered supervised visitation, with Agency discretion to offer unsupervised 

visitation with notice to J.R.’s counsel. Parents’ case plans required them to complete a 

drug treatment program, undergo group counseling/therapy to address domestic violence

for mother and domestic violence and anger management for father, obtain suitable 

housing, visit J.R. regularly, and undergo a psychological evaluation. 
3

Six-Month Review Reports

In its March 2015 six-month review report, the Agency recommended terminating 

parents’ reunification services and setting a .26 hearing because parents were “early in 

their recovery process. They have not addressed the domestic violence that has impacted 

their relationship. [Father] has not displayed any efforts to reunify with his son during 

this reporting period. . . . [J.R.] is a child under the age of three, who needs stability and 

permanence. He will thrive in his current placement.” The Agency recounted father’s 

violence against mother. According to the report, father “hit her when she was pregnant. 

. . . [He] would take away important documents, her cell phone, or give her 

misinformation from providers. . . . [He] has called her derogatory names in public and 

their arguments have involved violence.” Parents argued loudly in front of the social 

worker, who “had to ask [mother] to leave because of the amount of conflict between” 

parents. 

Although mother entered a residential drug treatment program in December 2014

where she attended weekly therapy, she had “not engaged in any counseling groups to 

address the domestic violence” and was not visiting J.R. consistently. Mother offered 

“various reasons [ ] why she was late or could not visit ranging from she did not have an 

alarm, woke up late, forgot to confirm the visit or the bus was taking long.” Although 

mother visited J.R. twice in September 2014, “[t]here were other occasions when she did 

show up on the day of the visit but arrived 40 minutes late” and J.R. had already been 

“returned to his caregiver.” Mother’s November 2014 visits were “canceled for tardies, 

not confirming the day before, or mother’s own cancelations.” The Agency moved 

mother’s visits to her residential drug treatment program and she visited J.R. twice in 

December 2014. 

Father had not begun therapy or counseling for domestic violence and anger 

management and had not visited J.R. regularly. He was not “forthcoming . . . about 

where he was living” and did not have a working cell phone number until November 
4

2014.2 The Agency had not been able to evaluate father’s parenting skills during his two 

supervised visits with J.R. and reported father appeared to have used drugs during one

visit. In January 2015, father admitted using marijuana; according to the social worker, 

father “appeared with redness in the whites of his eyes and often closing his eyes.” He 

also had “very slow speech” on two occasions. 

In a May 2015 addendum report, the Agency reported mother was doing well in 

the drug treatment program. She consistently visited J.R. and attended a domestic 

violence support group. According to the addendum report, however, mother had 

allowed father to join her at a supervised visit, which concerned the Agency because of 

parents’ “history of domestic violence[.]” Mother admitted calling father and 

communicating with him “on a regular basis. . . . She explained that they had been 

recently getting along.” Father had “inconsistent participation in his outpatient [drug]

program” and had “not participated in any other services” except for visiting J.R. in late 

March 2015. Clinical psychologist Dina Perez-Neira evaluated father and did “not 

recommend” continuing reunification services because father had not “acknowledged [ ] 

issues that need to be addressed.” 

The Agency was concerned about “domestic violence . . . when returning” J.R. to 

mother’s custody. Mother had “consistently gone back and forth with acknowledging the 

toxicity in her relationship with [father] and hoping that he will change so they can be a 

family once again. [Mother] has been dishonest in communicating her continued contact 

with [father] . . . denying the relationship” and “display[ing] limited judgment and ability 

to set healthy boundaries with . . . father, placing [J.R.] at risk of physical and emotional 

harm should an argument ensue in [J.R.]’s presence.” According to the Agency, both 

parents failed to acknowledge “domestic violence between them is a problem not only for 

them but for their infant son as well.” 

 

2 Mother reported father was incarcerated in December 2014. Father said he had 

been at the courthouse “several times but when asked did not disclose . . . the reason for 

his attendance.” 
5

In a second May 2015 addendum report, the Agency reported mother was 

“work[ing] hard on her sobriety” and visiting J.R. consistently. According to the 

Agency, mother claimed she had not contacted father “in the past month, [but] it is 

important to acknowledge that this is a short amount of time when considering the CPS 

history. . . . [I]n July 2010 through September 2012, CPS was involved with [mother] 

regarding both domestic violence . . . and substance abuse resulting in the lost custody of 

her eldest son. Furthermore, [mother] has not obtained a restraining order to protect 

herself from [father] although she disclosed that she sustained injuries causing her to go 

to the hospital.” Father participated in the court-ordered treatment plan reluctantly and 

had made “little progress . . . in addressing the domestic violence he perpetrated[.]” The 

Agency recommended terminating reunification services. 

Six-Month Review Hearing

Social worker Monica Espinoza testified at the six-month review hearing. She 

applauded mother for “working on her sobriety in such a huge way[,]” but recommended 

terminating reunification services because “there has not been significant progress made 

in the area of domestic violence.” Espinoza recounted how mother allowed father to 

enter her residential drug treatment program in February 2015 to visit with J.R. “against 

the [Agency]’s recommendation[.]” During the visit, parents argued. It “quickly 

escalated. [Father] began getting loud with the baby in his arms” and was asked to leave. 

Mother also called father in April 2015, which concerned Espinoza because mother knew 

“she should not have any contact with [father]” but was “still very much codependent”

with him and “lack[ed] the insight as to the seriousness of the domestic violence she 

experienced at his hands—the implications of being able to effectively keep herself safe.” 

Mother referred to father as a “good man,” and expressed a desire to “becom[e] a family 

with him” while also describing how he mistreated her. According to Espinoza, mother 

was “making poor decisions even though she’s starting on her road to sobriety. So her 

minimization of the dynamics of the relationship [was] a huge concern” because it 

impacted “her ability to protect herself and the baby.”
6

Espinoza testified mother missed visits with J.R. and was tardy to others.

According to Espinoza, mother’s visits were supervised because she failed to visit J.R. 

consistently from September to December 2014 and “allowed . . . father into the 

program” to visit J.R. in February 2015, which raised “a concern about [mother]’s ability 

to protect the baby and herself.” The Agency feared that if mother had an unsupervised 

visit with J.R., she would leave the drug treatment program with J.R., in part because 

mother expressed a desire to “take the baby home with her[.]” The Agency was also 

concerned about mother’s “feeding habits” with J.R., but Espinoza characterized the issue 

as “a small [one] that can be corrected.” 

Father had failed to address “domestic violence issues”—he continued to 

communicate with mother and planned to reunite with her. As Espinoza explained, this 

“pose[d] a huge risk because there has not been any self-reflection on what the triggers

are for [father] to become physically violent or become verbally abusive with [mother]. 

And if those issues aren’t addressed, they are bound to repeat themselves.” Father was 

not engaged in the substance abuse program, repeatedly tested positive for THC, and did

not visit J.R. consistently until April 2015.3 Dr. Perez-Neira, who evaluated father,

recommended terminating reunification services because he “was not amenable to 

comply with any recommendation” from the Agency.

4

Clinical psychologist Dr. Maria Holden evaluated mother and opined she suffered 

from “‘codependency, anxiety, [and] self-doubt’” and would “‘have to do a lot of 

psychological work’” over a period of several years “‘before she can become a 

consistently safe parent.’” Dr. Holden explained in detail why mother had “not been able 

 

3 Visitation was not available from March 29 to April 24, 2015 because father 

requested visitation on Sundays, and one visitation center was not open that day and 

another visitation center’s Spanish-speaking staff member was unavailable. 

4 As Dr. Perez-Neira explained, a “complete” psychological evaluation usually 

takes five to six hours, but father “was working at the time and so he was only able to do 

it for two hours at a time. He arrived late and so we were able to work only 90 minutes.” 

During the session, father was “impatient” and “guarded” and gave Dr. Perez-Neira the 

impression “he was not open to being there.” Father did not arrive for his scheduled 

second session with Dr. Perez-Neira. 
7

to stop herself from” contacting father. Homeless Prenatal Program case manager Leslie 

Laughlin testified mother had “completely turned around her addiction and other 

codependency issues. She’s made significant progress in confronting these issues and 

finding new . . . ways of conducting her life.” According to Laughlin, mother was “able 

to prevent a new domestic violence relationship” and possessed the “coping skills” to 

“get out of” a situation involving domestic violence. Mother is “a different person . . . as 

far as confidence, coping mechanisms, being clean and sober, being out of a violent 

relationship for several months.” 

The Court’s Ruling

At the June 2015 conclusion of the six-month review hearing, the court terminated 

reunification services and scheduled a .26 hearing for October 2015. The court 

concluded by a preponderance of the evidence returning J.R. to father’s custody would 

create a substantial risk of detriment because there was “clear and convincing evidence 

that reasonable services were offered, but the reasonable services were not taken up . . . in 

a timely fashion.” The court noted father did not participate in the services the Agency 

offered “until very late in the game.” Next, the court determined there was not a 

substantial probability J.R. would be returned to father’s custody by the 12-month 

hearing “given the stage that [father] is in currently[.]” 

The court found by a preponderance of the evidence returning J.R. to mother’s 

custody would create a substantial risk of detriment based on mother’s failure to regularly 

participate and make substantive progress in her treatment plan. The court found “clear 

and convincing evidence that reasonable services were offered because they were, 

directed at the very issues that the mom had to deal with and known to her. . . . And . . . 

[¶] [mother] did not make substantive progress in the case plan that was developed by the 

social worker.” The court commended mother on her “tremendous effort at this point” 

but found she had made minimal effort in the early stages of the case. Additionally, the 

court observed parents’ “volatile” relationship “present[ed] a threat” to J.R. and 

Espinoza’s concern was “well-founded in that there was such recent contact, even after 

the issue of domestic violence was the basis for the removal of [J.R.] and had been an 
8

issue in a prior removal.” Finally, the court determined there was not a substantial 

probability J.R. would be returned to mother’s custody by the 12-month review hearing. 

DISCUSSION

I.

There is Substantial Evidence the Agency Provided 

Reasonable Reunification Services

Parents contend the Agency did not provide mother with reasonable services

because it denied her “repeated requests for unsupervised and overnight visits.”5 Father 

also contends he did not receive reasonable services. When a child is removed from a 

parent’s custody, the responsible agency must make a “good faith effort to develop and 

implement” reasonable family reunification services responsive to the needs of that 

family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) “Visitation . . . is an 

essential component of a reunification plan,” and “‘shall be as frequent as possible, 

consistent with the well-being of the child.’ [Citation.]” (In re Mark L. (2001) 

94 Cal.App.4th 573, 580, quoting § 362.1, subd. (a)(1)(A).) A court may not set a 

.26 hearing unless it finds clear and convincing evidence reasonable reunification 

services have been provided. (§ 366.21, subd. (e).) We review the reasonableness of the 

reunification services provided—including visitation—for substantial evidence, 

construing all reasonable inferences in favor of the court’s findings. (Christopher D. v. 

Superior Court (2012) 210 Cal.App.4th 60, 70.)

Parents contend mother did not receive reasonable services because she was 

“offered only supervised visitation twice per week despite repeated requests for 

unsupervised and overnight visits.” We are not persuaded for two reasons. First, mother 

does not refer us to the place in the record where she made these “repeated requests.” 

Mother mentions only one request, made just days before the six-month review hearing, 

and does not cite the record. Contentions not supported by record citations are forfeited. 

 

5

Father has standing to challenge the court’s findings regarding mother because the 

findings have “the potential to adversely affect [his] own interests in reunifying with” 

J.R. (In re R.V., Jr. (2012) 208 Cal.App.4th 837, 849.)
9

(Dominguez v. Financial Indem. Co. (2010) 183 Cal.App.4th 388, 392, fn. 2.) Second, 

the Agency was justified in rejecting any requests for unsupervised or overnight visits 

because: (1) mother did not consistently visit J.R. in late 2014; (2) mother’s heated 

interaction with father at a supervised visit in February 2015 suggested she could not 

protect J.R. or herself from father; (3) mother had not “made significant progress . . . in 

the area of domestic violence[;]” and (4) mother expressed a desire to “take the baby 

home with her[.]” 

Mother’s reliance on a single case, Tracy J. v. Superior Court (2012) 202 

Cal.App.4th 1415 (Tracy J.), does not alter our conclusion. Tracy J. involved 

developmentally disabled parents whose reunification services were terminated at the 18-

month review hearing. The appellate court held the agency did not provide the mother 

with services designed to address her disabilities, unnecessarily limited visitation, did not 

give the parents advance notice of their child’s medical appointments, and did not instruct 

them on how to treat their child’s asthma. (Id. at pp. 1426-1427.) Tracy J. is completely 

distinguishable. As we have explained, the Agency provided mother with a multitude of 

services and was completely justified in denying any request for unsupervised or

overnight visits. 

Father claims he did not receive reasonable reunification services because the 

Agency knew his work schedule allowed only for Sunday visits and “did not offer or 

provide” such visits until March 2015. We are not persuaded. There is overwhelming 

evidence the Agency offered father a broad range of services tailored to him—including 

substance abuse assessment and treatment, domestic violence classes and counseling, and 

housing assistance—and he declined to participate “until very late in the game.” The 

Agency also offered father visitation beginning in September 2014, which he consistently 

failed to attend. When father told Espinoza about his work schedule, she arranged for 

Sunday visitation.

That the Agency could not arrange for Sunday visitation immediately does not 

demonstrate a lack of substantial evidence supporting the court’s conclusion on

reunification services. In any dependency case, the services provided are rarely perfect. 
10

(In re Misako R. (1991) 2 Cal.App.4th 538.) “The standard is not whether the services 

provided were the best that might be provided in an ideal world, but whether the services 

were reasonable under the circumstances.” (Id. at p. 547.) Here, ample evidence 

supports the court’s finding the reunification services were reasonable under the 

circumstances. (In re Julie M. (1999) 69 Cal.App.4th 41, 47-48.)

II.

There is Substantial Evidence Returning J.R. to Mother Posed a Substantial Risk of 

Detriment to His Physical or Emotional Well-Being

Father challenges the sufficiency of the evidence supporting the court’s detriment 

finding. At the six-month review, “the court shall order the return of the child to the 

physical custody of his or her parent . . . unless the court finds, by a preponderance of the 

evidence, that the return of the child . . . would create a substantial risk of detriment to the 

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

parent . . . to participate regularly and make substantive progress in court-ordered 

treatment programs shall be prima facie evidence that return would be detrimental. In 

making its determination, the court shall review and consider the social worker’s report 

and recommendations . . . and shall consider the efforts or progress, or both, 

demonstrated by the parent . . . and the extent to which he or she availed himself or 

herself to services provided. . . .” (§ 366.21, subd. (e).) We review the court’s detriment 

finding for substantial evidence, mindful it “is not our function . . . to reweigh the 

evidence or express our independent judgment on the issues before the [juvenile] court.” 

(In re Jasmon O. (1994) 8 Cal.4th 398, 423.)

Father contends the court’s detriment finding is not supported by substantial 

evidence because mother participated, and made substantial progress, in her courtordered treatment plan. His claim fails. Mother did not engage in reunification services 

until late 2014, when she entered a drug treatment program. At that point, five months 

had passed since J.R. was placed in foster care. Although mother had made some 

progress in certain areas of her reunification plan, she failed to make substantial progress 

in addressing her domestic violence issues. In February 2015—and against the Agency’s 
11

recommendation—mother let father into her treatment program to visit J.R. Parents 

argued during the visit, and father was asked to leave. Mother also called father in April 

2015, despite agreeing not to contact him. Dr. Holden testified mother would “‘have to 

do a lot of psychological work’” over a period of several years before she could parent 

J.R. safely. 

This case is unlike Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738. 

There, the father was falsely accused of sexually abusing a child, but the social worker 

and juvenile court used the parents’ steadfast denials of abuse as evidence it would be 

detrimental to return the child to their custody. (Id. at p. 1752.) This is not a 

“‘confession dilemma’” case where an innocent parent is required to admit untrue 

allegations to reunify. (Id. at p. 1751.) Nor is this a situation like Jennifer A. v. Superior 

Court (2004) 117 Cal.App.4th 1322 (Jennifer A), where the juvenile court based its 

detriment finding on the mother’s “missed, diluted, and positive drug tests between the 

12-month review report/hearing and the 18-month review report/hearing.” (Id. at 

p. 1346.) The appellate court reversed, concluding the record did not support a finding 

the mother’s “marijuana use, as shown by the record, means the children’s return to [her] 

would create a substantial risk of detriment to the physical or emotional well-being of the 

children in light of the factors in this case militating in favor of their return. No evidence 

was presented to establish [the] Mother displayed clinical substance abuse[.]” (Id. at p. 

1346.) Here and in contrast to Jennifer A., there was ample evidence mother’s failure to 

address her domestic violence issues negatively impacted her ability to care for and

protect J.R.

We commend mother’s progress in alleviating some of the issues that led to the 

dependency petition, but we must conclude the evidence viewed most favorably to the 

Agency supports the finding that returning J.R. to mother’s care created a substantial risk 

of detriment to his physical or emotional well-being. (In re Mary N.B. (2013) 218 

Cal.App.4th 1474, 1483; In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)
12

III.

The Court’s June 11, 2015 Minute Order Must be Modified 

Father contends the court applied the wrong standard in concluding parents failed 

to regularly participate and make substantive process in court-ordered treatment. Most 

findings at the six-month review are made under the preponderance of the evidence 

standard, but the juvenile court may schedule a section .26 hearing only if it has found by 

clear and convincing evidence the parent failed to participate regularly and make 

substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).)

At the six-month review hearing, the court stated there was “clear and convincing 

evidence that reasonable services were offered [to father], but the reasonable services 

were not taken up . . . in a timely fashion.” The court reached the same conclusion 

regarding mother, explaining: “there is clear and convincing evidence that reasonable 

services were offered because they were, directed at the very issues that the mom had to 

deal with and known to her. . . . And . . . [¶] [mother] did not make substantive progress 

in the case plan that was developed by the social worker.” The court’s June 11, 2015 

minute order, however, states “by [a] preponderance of the evidence that the parent[s]

failed to participate regularly and make substantial progress in any court ordered 

treatment plan, as stated on the record.” 

There is a conflict between the court’s statements at the six-month review hearing 

and the minute order entered on that date. “Where there is a conflict between the juvenile 

court’s statements in the reporter’s transcript and the recitals in the clerk’s transcript, we 

presume the reporter’s transcript is the more accurate.” (In re A.C. (2011) 197 

Cal.App.4th 796, 800; People v. Contreras (2015) 237 Cal.App.4th 868, 880 [same].) 

The June 11, 2015 minute order must be corrected to reflect the court’s oral findings at 

the conclusion of the six-month review hearing. (In re Abram L. (2013) 219 Cal.App.4th 

452, 459 & fn. 3.)
13

IV.

There is Substantial Evidence There Was Not a Substantial Probability J.R. Could be 

Returned to Parental Custody by the 12-Month Review Hearing

Father’s final claim is insufficient evidence supports the court’s finding there was 

not a substantial probability J.R. could be returned to parental custody by the 12-month 

review hearing. Because J.R. was under three years old, parents were limited to six 

months of reunification services unless the court found at the six-month review hearing

there was a substantial probability J.R. could be returned to parental custody by the 12-

month review hearing. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 182; see 

also § 366.21, subds. (e), (g).) In making this determination, the court considers whether 

the parent has: (1) “consistently and regularly contacted and visited the child;” (2) “made 

significant progress in resolving the problems that led to the removal of the child;” and 

(3) “demonstrated the capacity and ability to complete the objectives of the treatment 

plan and to provide for the child’s safety, protection, physical and emotional health, and 

special needs.” (Cal. Rules of Court, rule 5.710(c)(1)(D)(i).) The court also considers

the amount of time left in the statutory period between the six-month review hearing and 

the 12-month anniversary of the date the child entered foster care. (Tonya M. v. Superior 

Court (2007) 42 Cal.4th 836, 846.)

As we have discussed, father made virtually no progress in his court-ordered 

treatment plan. Mother made some progress in some areas in the later stages of the 

dependency, but not in the area of domestic violence. We conclude substantial evidence 

supports the finding there was not a substantial probability J.R. could be returned to 

parental custody by the 12-month review hearing. (Kevin R. v. Superior Court (2010) 

191 Cal.App.4th 676, 690.)

DISPOSITION

The juvenile court is directed to modify its June 11, 2015 minute order to reflect 

the court’s oral findings on that date, i.e., that the court found by clear and convincing 

evidence mother and father failed to participate regularly and make substantial progress 

in their court ordered treatment plans. Mother and father’s petitions seeking 
14

extraordinary relief from the juvenile court’s order terminating reunification services and 

setting a Welfare and Institutions Code section 366.26 hearing are denied on the merits. 

This decision is final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).) 

_________________________

JONES, P.J.

WE CONCUR:

_________________________

NEEDHAM, J.

_________________________

BRUINIERS, J.