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Filed 11/2/23 Mark E. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 ONE

MARK E. et al.,

Petitioners,

v.

THE SUPERIOR COURT OF 

CONTRA COSTA COUNTY,

Respondent;

CONTRA COSTA COUNTY 

CHILDREN AND FAMILY 

SERVICES BUREAU,

Real Party in Interest.

 A168455

 (Contra Costa County

 Super. Ct. No. J21-00561)

Mark E. (Father) and R.A. (Mother) petition this court for 

extraordinary writ review of a juvenile court order terminating Father’s 

reunification services and setting a selection-and-implementation hearing for 

their young son. They argue that the juvenile court abused its discretion 

when it declined to extend reunification services for Father beyond the 

statutory limit for providing such services. We disagree and therefore deny 

the petitions. 
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I.

FACTUAL AND PROCEDURAL

BACKGROUND

The minor came to the attention of real party in interest Contra Costa 

County Children and Family Services Bureau (the Bureau) when he was born

in December 2021. Both he and Mother tested positive for amphetamine and 

THC, and Mother expressed interest in possibly relinquishing the baby for 

adoption. The parents had been homeless until around the time the minor 

was born, when they secured a hotel room provided by a homeless-assistance 

organization. The Bureau in late December 2021 filed a juvenile dependency 

petition (Welf. & Inst. Code, § 300)1 alleging that both parents had serious 

substance-abuse problems that impaired their ability to care for the infant. 

The minor was ordered detained, and he was placed in a foster home. 

The Bureau reported that Mother’s parental rights had been 

terminated for eight other children (seven half-siblings and one full sibling). 

Father had six older children, the older four of whom he reported he helped 

raise. His parental rights were terminated as to at least one of the younger 

two children. The Bureau first recommended that neither parent receive 

reunification services based on previous termination of reunification services 

and the termination of parental rights as to older siblings and half-siblings. 

(§ 361,5, subd. (b)(10) & (11).) The Bureau later recommended that services 

be granted to Father based on his efforts to achieve sobriety and care for his 

child. 

At a jurisdictional hearing held in April 2022, the juvenile court 

sustained allegations that the minor was a child described by section 300, 

subdivision (b) (failure to protect) based on allegations about Mother’s serious 

1 All statutory references are to the Welfare and Institutions Code.
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substance abuse. The court also sustained allegations that the minor was 

described by section 300, subdivision (j) (abuse of sibling), based on 

allegations that both Mother and Father failed to reunify with the minor’s 

older siblings. At a dispositional hearing also held in April, the juvenile court 

adjudged the child a dependent minor and placed him in out-of-home care. 

The court ordered reunification services for Father but bypassed them as to 

Mother. 

Father entered an in-patient treatment program in July 2022 but had 

left by the time a status-review report was filed in October because he tested 

positive for an opiate. When the social worker contacted a services 

organization in October regarding Father’s housing search, Father’s case 

manager reported he had not heard from Father since July. Father did 

participate in eight sessions of dyadic play therapy between June and 

September to support his attachment to his son, and the baby appeared to 

make progress in feeling comfortable in Father’s care. An assessment 

revealed that Father had ongoing auditory and visual hallucinations as well 

as nightmares. He was prescribed medication but stated he did not always 

take some of them. 

The Bureau in October 2022 recommended that Father’s reunification 

services be terminated and that the juvenile court schedule a selection-andimplementation hearing under section 366.26. The Bureau considered 

Father’s compliance with his case plan to be “minimal[]” because he “ha[d] 

stumbled and ha[d] not been able to demonstrate changed behavior over time 

in the areas of sobriety, sustained and appropriate housing, insight into the 

reason [his son] was removed, and transparent mental health treatment and 

support.” The Bureau acknowledged that Father had “taken initial steps to 

improve his circumstances” and that he was currently living in a sober living 
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environment with programs to support his sobriety. The Bureau was 

concerned, though, that Father would try to co-parent the minor with 

Mother, who still faced her own struggles. At the time of the filing of the 

October 2022 status report, Mother was pregnant, and Father believed he 

was the father. After Mother gave birth to another boy in late October 2022, 

the baby was placed in the same foster home as the minor. A separate 

proceeding was opened for the younger brother. 

Father continued to attend dyadic play therapy designed to support the 

attachment between him and the minor. Father was an active participant, 

and the minor turned to Father for comfort and engagement. But the foster 

parent reported that the minor tended to emotionally shut down and be less 

engaged for a day or so after visits with Father. And the minor’s pediatrician 

reported that the minor’s emotional health and well-being suffered after 

visits with Father. 

Father reported that he was sober. He participated in individual and 

group therapy and also attended Alcoholics Anonymous meetings. 

A six-month review hearing scheduled for early December 2022 was 

continued until mid-February 2023. By the time of the February hearing, 

Father was still living at the sober-living facility and had not secured 

permanent housing that would accommodate him, the minor, and the minor’s 

baby brother. The Bureau continued to recommend the termination of 

reunification services because of Father’s slow progress and continued 

mental-health issues. The Bureau also was concerned about Father’s ability 

to meet the minor’s needs and whether he would allow Mother to directly 

access the child. The Bureau also noted that Father had exhausted the 

reunification time period for a child under three years old and had received

additional services only because of delays in proceedings. The social worker 
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testified at a contested review hearing on two separate days in February 

2023, and the matter was continued until mid April. 

Father tested negative for drugs in February and March. As of early 

April, Father was reportedly eager to complete his recovery program and was 

frustrated when it was explained he still had to complete about two months 

of counseling in order to finish. A program therapist was concerned about 

Father’s defensiveness and overall attitude but also reported that Father had 

gained some insight into areas he needed to work on. Father continued to be 

an active participant in dyadic play therapy with his son. 

Following a brief hearing on April 13, the matter was again continued, 

this time until late June. When the matter was called on June 22 there was 

insufficient time for witnesses to testify, so the matter was again continued,

this time until late July. At the July hearing, the juvenile court ordered six 

months of reunification services to both parents in the separate proceeding 

regarding the minor’s younger brother. As for the minor’s case, the matter 

was continued until August 10. 

The juvenile court on August 10 called the matter as a “continued 

hearing on the 18-month review.” Father’s counsel objected to the 

termination of reunification services. The juvenile court acknowledged that 

Father “ha[d] been plugging along” but stated that he had exhausted the 

amount of time he had available to reunify with the minor and did not have 

the present ability to care for the minor in his home. The court found that a 

return to parental custody would create a substantial risk of detriment to the 

minor and that reasonable services had been offered. The court further found 

there was not a substantial probability of return to parental custody if 

further services were provided. The court terminated Father’s reunification 

services and scheduled a selection-and-implementation hearing. 
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II.

DISCUSSION

Father argues that the trial court abused its discretion in denying 

further reunification services because extraordinary circumstances 

warranted a continuation of services. We are not persuaded. 

We note at the outset that the Bureau never recommended that 

Father’s services be extended at any time throughout the reunification 

period, which was extended considerably as a result, not of court orders, but 

of repeated continuances. Because the minor was under three years old when 

he was removed from his parents, the juvenile court was to provide six, and 

no more than 12, months of reunification services. (§ 361.5, subd. (a)(1)(B).) 

Before the first review hearing—originally scheduled to take place when the 

minor was over six months old—the Bureau recommended that services be 

terminated. The court never affirmatively extended the six-month 

reunification period. It simply never ruled on the Bureau’s request to 

terminate services until after repeated continuances pushed the hearing out 

more than 18 months. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 

836, 847 [“vagaries” of when a review hearing is set “are of no moment to the 

child when it comes to deciding how much longer he or she must wait for a 

stable, permanent placement”].) 

Thus, the August 2023 hearing—held 20 months after the minor was 

detained and 16 months after the disposition hearing—was the 18-month 

review hearing. At an 18-month review hearing, the juvenile court shall 

order the return of the child to the parent’s physical custody unless the court 

finds by a preponderance of the evidence that the return would create a 

substantial risk of detriment to the child’s safety, protection, or physical or 

emotional well-being. (§ 366.22, subd. (a).) Father does not challenge the 
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juvenile court’s finding that returning the minor to him would create a risk of 

detriment. 

Section 366.22, subdivision (b), provides that a juvenile court may 

continue the case for up to six months after the 18-month review hearing if 

the court determines by clear and convincing evidence that the best interests 

of the child would be met by additional reunification services and the parent 

is making “significant and consistent progress in a court-ordered residential 

substance abuse treatment program,” or the parent was a minor parent or 

nonminor dependent parent at the time of the initial hearing and is making 

significant and consistent progress in establishing a safe home, or the parent 

recently was discharged from incarceration. (§ 366.22, subd. (b).) Again, 

Father does not contend that he meets the statute’s criteria. But even if he 

did, “[t]he court shall continue the case only if it finds that there is a 

substantial probability that the child will be returned to the physical custody 

of their parent . . . and safely maintained in the home within the extended 

period of time or that reasonable services have not been provided to the 

parent” and the court makes certain findings. (§ 366.22, subd. (b)(1)–(3).) 

Perhaps acknowledging that the foregoing statutory criteria do not 

apply here, Father argues that the juvenile court should have sua sponte 

continued the hearing under section 352, notwithstanding the prolonged 

reunification period from which he had benefitted. That statute provides 

that the juvenile court may continue any hearing “beyond the time limit 

within which the hearing is otherwise required to be held” so long as the 

continuance is not contrary to the minor’s interest. (§ 352, subd. (a)(1).) The 

statute is “an ‘ “emergency escape valve” ’ ” long recognized by California 

courts that is “available to all parents in exceptional situations in which the 

court determines that extending services and continuing reunification efforts 
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beyond 18 months is not contrary to the child’s interests.” (Michael G. v. 

Superior Court (2023) 14 Cal.5th 609, 632.) “[A] juvenile court may invoke 

section 352 to extend family reunification services beyond [statutory] limits if 

there are ‘extraordinary circumstances which militate[] in favor of’ such an 

extension.” (In re D.N. (2020) 56 Cal.App.5th 741, 762.) Even assuming that 

Father has not forfeited this issue by failing below to request a continuance 

under section 352, he simply has not demonstrated that this is the type of 

exceptional situation that warranted continuing the matter so that he could 

receive additional services.

We recognize that the “lack of affordable housing [may] constitute[] an 

‘external force over which [a parent] ha[s] no control’ that warrant[s] an 

extension of reunification services beyond the statutory limits.” (In re D.N.

supra, 56 Cal.App.5th at p. 764.) But the juvenile court said that Father’s 

lack of housing was only part of its concern and that it was also concerned 

“that [F]ather had mentioned things, such as if he was unable to work for 

several months, or unable to move for several months because of needing 

surgery—and I understand that that may no longer be necessary now—but 

that the plan was just, essentially, to have the children in a crib. And so that 

was one of my concerns with requesting the parents do a little bit more in the 

way of classes. And I know that that has—is something that [Father] has 

been looking into, or trying to do. However, it also appears that he is not able 

to really explain what he has learned in his classes to the social worker.” The 

court further noted that both the minor and his younger brother were 

experiencing irritated bowels after eating food Father sometimes brought to 

visits, “and so that’s even with some of the additional supports that [Father] 

has been provided.” In his petition, Father focuses on all the indisputably 

positive steps he made during the reunification period and claims that 
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securing housing was the only thing standing in the way of reunification with 

the minor. Given the other evidence, including that highlighted by the 

juvenile court, we cannot say that the court abused its discretion in declining 

to extend the reunification period.

Mother argues, and the Bureau disputes, that she has standing to 

challenge the termination of Father’s reunification services since it will affect 

whether her parental rights may be terminated. Assuming without deciding 

that she has standing, we do not find her arguments to be persuasive. She 

contends that the juvenile court “misunderstood the breadth of its discretion 

under section 352.” The court likely did not specifically explain such 

discretion since it was not asked to extend the reunification period under the 

statute. But the court cited In re D.N. supra, 56 Cal.App.741, which applied 

section 352 (D.N. at p. 756), an indication the court was aware of this 

discretion. The court nonetheless stated that “there are very specific 

parameters that the law requires in order to extend [reunification] services to 

24 months, and those standards simply just have not been met here, and I 

think that there is an awareness on all parties of that at this time.” In other 

words, the court was aware of its discretion but did not consider this to be a 

situation where extraordinary circumstances were present that would 

support extending additional services. 

Like Father, Mother also stresses the progress Father made during the 

reunification period, efforts that the juvenile court praised. But deferring to 

the juvenile court’s factual findings, we cannot conclude that the court 

abused its discretion when it terminated services and scheduled a selectionand-implementation hearing. 
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III.

DISPOSITION

The petitions for extraordinary writ review are denied. The request to 

stay the selection-and-implementation hearing scheduled for December 7, 

2023, is denied as moot. 

This opinion shall become final within three court days after it is filed. 

(Cal. Rules of Court, rule 8.490(b)(2)(A).)
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Getty, J.*

*Judge of the Superior Court of the County of Solano, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.

Mark E. v. Superior Court A168455