Filed 2/25/21 In re H.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re H.H., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

RYAN H.,

Defendant and Appellant.

 D078221

 (Super. Ct. No. J520133)

APPEAL from an order of the Superior Court of San Diego County, 

Marian F. Gaston, Judge. Affirmed.

Elizabeth Klippi, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, 

and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.

Ryan H. (Father) appeals from a juvenile court order terminating his

reunification services as to his daughter H.H. at the 12-month review hearing
2

(Welf. & Inst. Code, § 366.21, subd. (f)).1 Father contends the court erred in 

terminating his reunification services when it extended the mother’s

reunification services to 18 months (§§ 361.5, subd. (a)(3)(A), 366.21, subd. 

(g)(1)) and did not set a selection and implementation hearing (§ 366.26). 

Father concedes substantial evidence supports the court’s finding of no 

substantial probability the child would be returned to his custody by the 18-

month hearing date (§ 366.21, subd. (g)(1)) but maintains the court should 

have continued his services. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Father and H.H.’s mother (Mother)2 have a significant history of illegal 

drug use. He is a long time heroin user with years of drug-related criminal

offenses. Father’s family members had tried “multiple times with no success”

to convince him to enroll in a substance abuse treatment facility. At the time 

of H.H.’s birth, the parents were homeless. 

In late August 2019, H.H. was born prematurely, with a birth defect,

and addicted to methamphetamines and opiates from Mother’s drug use. 

Father was observed to be under the influence of drugs at the hospital, and 

he failed to show for a drug test. A few days later, he was arrested for being 

under the influence of a controlled substance and possession of drug 

paraphernalia. H.H. was treated at the hospital for her birth defect and drug 

withdrawal symptoms.

The San Diego County Health and Human Services Agency (Agency)

filed a petition on behalf of H.H., alleging the parents were unable to 

1 Further unspecified statutory references are to the Welfare and 

Institutions Code.

2 Mother is not a party to this appeal. Our discussion of her is 

accordingly limited.
3

adequately care for the child due to their substance abuse. (§ 300, subd. (b).) 

H.H. was detained out of the parents’ care. Subsequently, the court made a 

true finding on the petition and removed H.H. from parental custody. 

In November 2019, Father was arrested and incarcerated for a hit-andrun accident (Veh. Code, § 20002, subd. (a)) and evading a pursuing peace

officer (Veh. Code, § 2800.2, subd. (a)). He pleaded guilty and was sentenced 

in January 2020 by a criminal court to complete a six-month residential drug 

treatment program. 

In juvenile court, reunification services were ordered for the parents, 

including liberal supervised visits. The court specifically advised the parents 

that they must make substantive progress on their case plans by the six- and 

12-month review hearings or else they may lose their services as well as 

parental rights. 

Father’s case plan included a 12-step substance abuse program, 

consistently negative drug tests, parenting education, and compliance with 

all conditions of probation. The social worker reviewed these requirements 

with Father. 

In March 2020, Father walked out of his court-ordered residential drug 

treatment program, which violated probation. He was arrested and tested 

positive for methamphetamine. In April, Father was released from custody 

and for several months thereafter, failed to contact his probation officer. 

In August, Father told the assigned social worker that he had been 

trying to get in a rehabilitation program for months without success. Father

was not in a relationship with Mother. The social worker made new referrals 

for services and asked Father to drug test the next day. However, the next 

day, Father was a no show for the drug test, claiming to be “at the hospital 
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with a high fever.” A week later, Father appeared for a drug test and results 

at that time were negative. 

In late August, Father entered a 90-day inpatient drug treatment 

program. His drug test on entry in the program was positive for 

amphetamines and opiates. He was reportedly compliant with the program’s 

requirements for the next two months. Father also began a parenting class. 

He was unemployed and lacked stable housing.

Father did not visit H.H. in 2019 and only sporadically visited in 2020. 

He engaged in a few video calls with H.H. during the summer, and then 

stopped. During one of these video calls, the foster parents reported that 

Father “did not look good” and he looked “sick.” While in residential drug 

treatment, Father had weekly supervised visits with H.H. 

For various reasons, including because of the COVID-19 pandemic, the 

contested six- and 12-month review hearings were combined and held in 

November 2020 (trial). In the Agency’s assessment, there was no substantial 

probability H.H. would be returned to Father’s custody by the next hearing 

date (March 2021), and thus, it recommended termination of his reunification 

services. In the past year, Father had multiple positive drug tests or no 

shows; failed to complete drug treatment and parenting education; did not

consistently visit H.H. or maintain contact with the Agency; and had no 

stable housing. In contrast, the Agency assessed a substantial probability 

H.H. would be returned to Mother’s care. Unlike Father, she completed her 

drug treatment program, parenting education, and therapy. She maintained 

good contact with the Agency and foster parents. Mother also consistently 

visited H.H., progressed to unsupervised visits, obtained housing, and was 

about to begin overnight visits. 
5

At trial, Father’s counsel requested an extension of services for Father

to the 18-month hearing date. Counsel argued the court was authorized to 

continue services “if it finds that there is a substantial probability the child 

will be returned to the physical custody of the parent” (italics added) and that 

to make the substantial probability finding, the court “must find” each factor

under section 366.21, subdivision (g)(1). Counsel proceeded to argue that

Father met each of the three factors. Finally, counsel claimed it was in 

H.H.’s “best interest” to continue Father’s services for various reasons, 

including that there would be no delay in permanency and Father could 

eventually help Mother in caring for H.H. 

After considering the evidence and parties’ arguments, the court 

terminated Father’s reunification services, finding no substantial probability 

H.H. would be returned to his custody by the 18-month hearing date because 

he had not (1) visited consistently with the child and (2) demonstrated he 

could provide for the child’s needs. The court commented that Father’s 

“addiction has interfered with both of those [factors].” Mother’s services were 

continued based on the substantial probability H.H. would be returned to her 

care by the 18-month hearing date, or by March 4, 2021. 

Father’s appeal followed.

DISCUSSION

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

ordinarily orders services for the family to facilitate its reunification. (In re 

Katelynn Y. (2012) 209 Cal.App.4th 871, 876 (Katelynn Y.).) Reunification 

services for the parent of a child under three years of age are presumptively

limited to six months and may be extended to 12 months. (§ 361.5(a)(1)(B); 

In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) The court may further extend 

the parent’s reunification services to 18 months “only” if the court finds there 
6

is a substantial probability the parent will regain physical custody within the 

extended time period. (§§ 361.5, subd. (a)(3)(A), 366.21, subd. (g)(1); Tonya

M. v. Superior Court (2007) 42 Cal.4th 836, 845 (Tonya M.); In re Jesse W., 

supra, at p. 59.) For the court to make the substantial probability finding, 

the parent must have (1) had consistent, regular contacts and visits with the 

child; (2) made significant progress in resolving the problems prompting the 

child’s removal; and (3) demonstrated the capacity and ability to complete his 

or her case plan and provide for the child’s safety, protection, physical and 

emotional well-being, and special needs. (§ 366.21, subd. (g)(1)(A)-(C).)

“In deciding whether to extend or terminate reunification services, the 

court does not consider the parents as one unit, but instead treats each of 

them on his or her own merits. ‘Indeed, at each review hearing, the court 

must evaluate the efforts or progress toward reunification made by each 

parent individually by considering “the extent to which he or she availed 

himself or herself to services provided.” [Citations.] Although the purpose of 

services is to facilitate a child’s return to parental custody, reunification often 

involves one, but not both, parents. [¶] ... Because reunification services are 

a benefit, not a constitutional entitlement, the juvenile court has discretion to 

terminate those services at any time, depending on the circumstances 

presented. [Citation.] In deciding whether to terminate the services of one 

parent who has failed to participate or make progress toward reunification, 

the court is not constrained by a consideration of the other parent’s 

participation in services.’ ” (Katelynn Y., supra, 209 Cal.App.4th at p. 877, 

italics omitted.)

“Where, as here, the court continues one parent’s services and does not 

set a section 366.26 hearing, it retains discretion to terminate the other 

(nonreunifying) parent’s services. [Citations.] The parent seeking additional 
7

services has the burden of showing such an order would serve the child’s best 

interests. [Citations.] In exercising its discretion, the court has ‘the ability to 

evaluate whether the parent will utilize additional services and whether 

those services would ultimately inure to the benefit of the minor.’ [Citation.] 

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.” (Katelynn Y., supra, 209 Cal.App.4th at p. 881; see 

also In re Alanna A. (2005) 135 Cal.App.4th 555, 565-566 (Alanna A.)

[continuing one parent’s reunification services past the 12-month review 

hearing and terminating nonreunifying parent’s services].)

On appeal, Father contends the juvenile court was not required to find 

all three factors that underlie a substantial probability finding, identified in 

section 366.21, subdivision (g)(1), to continue his reunification services. In 

other words, Father argues the court mistakenly believed it had no discretion 

to continue his services when in fact, according to Father on appeal, the court 

could extend services based on the child’s best interests because it was 

extending Mother’s services to the 18-month date. However, to the extent the 

juvenile court was mistaken, Father clearly invited this error at trial and is 

estopped from arguing otherwise on appeal. “ ‘Under the doctrine of invited 

error, when a party by its own conduct induces the commission of error, it 

may not claim on appeal that the judgment should be reversed because of

that error.’ ” (In re G.P. (2014) 227 Cal.App.4th 1180, 1193.) At trial, 

Father’s counsel argued that the court “must find” all three factors to 

continue his reunification services. Father may not argue otherwise now. 

(Id. at p. 1196.)

Even if Father did not invite the error, we are satisfied, after reviewing 

the record, that the court made the appropriate considerations in terminating 
8

his services. As one rationale for terminating services, the court certainly 

stated that Father did not meet “the legal standard that would allow the 

court to extend services at this point,” i.e., there was no substantial 

probability H.H. would be returned to Father’s physical custody by the 18-

month hearing date.3 (§ 366.21, subd. (g)(1)(A)-(C).) This was undisputedly a 

highly relevant consideration.4 In addition, Father’s counsel asserted at trial

that continuing Father’s services would be in H.H.’s best interest, in light of

Mother’s likely reunification with the child. Trial counsel argued, for 

example, that Father could help Mother care for H.H. We presume the court 

considered these “best interest” arguments and impliedly found it was not in 

H.H.’s best interest to continue reunification efforts with Father.5 (In re 

3 Father does not dispute, and thus effectively concedes, substantial 

evidence supports the court’s finding that he (1) did not consistently and 

regularly visit the child and (2) did not demonstrate the capacity and ability 

both to complete the objectives of his treatment plan and to provide for the 

child’s safety, protection, physical and emotional well-being, and special 

needs. (§ 366.21, subd. (g)(1)(A), (C).)

4 Although Tonya M. did not involve a situation where one parent’s 

services were continued and the other parent’s services were terminated at 

the 12-month hearing, our Supreme Court discussed that, “from the 12-

month review hearing to the 18-month review hearing . . . services are 

available only if the juvenile court finds specifically that the parent has 

‘consistently and regularly contacted and visited with the child,’ made 

‘significant progress’ on the problems that led to removal, and ‘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.’ ” (Tonya M., supra, 42 Cal.4th at p. 

845, italics added.)

5 We note that Father could have, but did not, ask for a specific best 

interest finding. If he had, the juvenile court could have easily made an 

express finding that continued services for Father were not in H.H.’s best 

interest. For this reason, Father has also forfeited any argument that the 

court failed to make a specific finding. (In re E.A. (2012) 209 Cal.App.4th 
9

G.P., supra, 227 Cal.App.4th at p. 1196 [implied finding of detriment]; see 

also In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [implied finding is 

proper where substantial evidence would have supported an express 

finding].)

The juvenile court’s decision to terminate Father’s reunification 

services was reasonable. He was evaluated on his individual merits. Father 

had been addicted to drugs for many years. H.H. was a baby. After the

petition was filed, Father was twice arrested, and he continued to use drugs, 

testing positive or failing to drug test multiple times. For over five months,

between March and late August 2020, he was not in any kind of drug 

treatment even though it was a court-ordered condition of his probation. He 

was not forthcoming with his probation officer or social worker. Father did 

not visit H.H. in 2019 and most of 2020, he was unemployed and without 

housing at the time of trial, and he had no plan to provide for the child’s 

needs by March 2021. Conversely, Mother had progressed in her case plan

absent Father’s influence and was prepared to care for H.H. on her own. 

Despite Father’s last two months of sobriety, the court reasonably 

discontinued his reunification services. (Katelynn Y., supra, 209 Cal.App.4th 

at p. 881; Alanna A., supra, 135 Cal.App.4th at p. 566 [court rationally

concluded that father’s performance did not merit continued reunification 

services based on no substantial probability of reunification].)

For the foregoing reasons, we cannot conclude the court’s decision to 

terminate Father’s reunification services exceeded the limits of its discretion 

by being arbitrary, capricious, or patently absurd. (Katelynn Y., supra, 209 

Cal.App.4th at p. 881.)

787, 791 [forfeiture of “defect that could have been easily cured, if raised in a 

timely fashion”].) 
10

DISPOSITION

The order terminating Father’s reunification services is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.