Filed 7/14/15 In re Bella P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 BELLA P., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

LUIS P.,

Defendant and Appellant.

 D067508

 (Super. Ct. No. NJ14907)

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

Imhoff, Commissioner. Affirmed.

Elena S. Min, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
2

Dependency Legal Group of San Diego and Carolyn K. Levenberg for Minor.

Luis P. appeals an order terminating his family reunification services under 

Welfare and Institutions Code section 366.21, subdivision (e)1 in the juvenile 

dependency case of his minor daughter Bella P. Luis contends (1) the court erred by 

finding that Luis had received reasonable reunification services, (2) the court applied the 

wrong legal standard in assessing whether there was a substantial probability Bella may 

be returned to Luis by the 12-month review hearing, and (3) the court erred by not 

exercising its discretion to extend reunification services because the court was unaware it 

had such discretion. We disagree with Luis's contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 2014, the San Diego County Health and Human Services Agency 

(the Agency) petitioned the juvenile court under section 300, subdivision (b) on behalf of 

one-month-old Bella. The Agency alleged that Bella had tested positive for opiates at 

birth, suffered withdrawal symptoms, and had little prenatal care. The Agency further 

alleged that Bella's mother K.W. had tested positive for opiates and had a long history of 

drug abuse, including abuse of heroin and methamphetamines.2 Luis admitted a history 

of drug abuse as well, but he denied knowing that K.W. had used drugs during 

pregnancy. The Agency concluded that Bella had suffered, or was at substantial risk of 

 

1 Further statutory references are to the Welfare and Institutions Code unless 

otherwise specified.

2 K.W. is not a party to this appeal. She will be discussed only where necessary for 

an understanding of the issues raised by Luis.
3

suffering, serious physical harm or illness as a result of her parents' failure to protect her

or provide for her care. 

At the time of the petition, Luis was incarcerated on charges of receiving stolen 

property and driving with a suspended license. Luis had previously been convicted of 

second degree robbery and several parole violations. He had a documented gang 

affiliation. Luis had a juvenile record as well. According to his probation officer, Luis's 

juvenile record included a conviction for forced oral copulation of a 12-year-old girl at a 

group home. Luis was 17 years old at the time. Luis was also accused of touching his 

brother inappropriately. 

At Bella's detention hearing, the court found the Agency had made a prima facie 

showing under section 300, subdivision (b) and ordered that Bella be detained in out-ofhome care. Luis remained incarcerated. The court made a "provisional finding" that Luis 

was Bella's presumed father. The court ordered voluntary services and liberal supervised 

visitation for Luis while he was incarcerated. (The court's written order, however, stated 

that supervised visits were to occur after Luis had been released.) The court also 

authorized $25 per month for collect calls from Luis to Bella's caregivers. Luis later 

reported trouble making use of this allowance, perhaps due to a misunderstanding 

regarding the form of the credit. 

An Agency social worker met with Luis while he was in jail. Luis told the 

Agency he wanted to participate in services and reunify with Bella. Luis and K.W. 

submitted the issue of jurisdiction to the court based on the Agency's evidence. The court 

sustained the allegations of the petition and set a disposition hearing. The court also 
4

found that Luis was Bella's presumed father under Family Code section 7611, subdivision 

(d). Luis remained incarcerated. 

The Agency submitted a case plan for Luis. The plan included three service 

objectives: (1) "Do not break the law. Avoid arrests and convictions." (2) "Show that 

you accept responsibility for your actions." (3) "Follow all conditions of 

probation/parole." The plan also included requirements that Luis participate in weekly 

parenting education classes, complete an assessment for a sexual abuse treatment 

program, and follow any recommendations from the program. 

At the disposition hearing, the court removed Bella from K.W.'s custody, found 

that placing Bella with Luis would be detrimental, and continued Bella's placement in 

foster care. The court set six- and 12-month review hearings. 

In advance of the six-month review hearing, the Agency submitted a status report 

to the court. The Agency reported that Luis could not participate in reunification services 

based on his classification in jail. Luis did make several calls from jail to Bella's 

caregivers and inquired about her condition. The Agency also reported that Luis had 

been released from custody approximately two months after Bella's disposition hearing. 

A week after his release, Luis contacted the Agency and met with an Agency social 

worker. Because Luis did not have housing or employment plans, the Agency social 

worker gave him referrals for employment services and Cal Works. The Agency social 
5

worker reviewed Luis's case plan with him and had him sign a copy.3 Luis told the 

Agency he had no transportation but would try to attend the sexual abuse treatment 

program. The Agency social worker told Luis the Agency could provide public 

transportation and provided him with bus passes. Luis told the social worker he loved 

Bella and wanted to reunify with her. 

According to the report, Luis was arrested again less than a month after his 

meeting with the Agency social worker. The Agency received no contact from Luis in 

the interim, and Luis did not visit Bella. After his arrest, Luis contacted the Agency from 

jail. He said he was sentenced to two years in prison and expected to be released within 

five to seven months. Luis said he was arrested because he missed a meeting with his 

probation officer. Three weeks later, the Agency social worker mailed pictures of Bella 

to Luis. 

Approximately two months after his arrest, Luis was transferred to state prison. 

The Agency set up a calling card there. The Agency contacted prison officials by 

telephone and e-mail to determine whether inmates could participate in rehabilitation 

services. Although prison officials initially indicated that services might be available, the 

 

3 The Agency's report states, "It appears that a recommendation for substance abuse 

services was omitted [from Luis's case plan] by error given [Luis]'s substance abuse 

history." Attached to the report was an updated case plan that added an additional two 

service objectives: (4) "Stay free from illegal drugs and show your ability to live free 

from drug dependency. Comply with all required drug tests." (5) "Stay sober and show 

your ability to live free from alcohol dependency." The record does not include a copy of 

the case plan Luis signed, so it is unclear whether Luis was informed of these additional 

requirements. Luis told the Agency that he attended Alcoholics Anonymous (AA). The 

Agency social worker asked Luis to provide attendance logs with signatures. 
6

Agency later learned that Luis would not have access to any services because he was an 

unclassified prison inmate subject to maximum security restrictions. A prison official 

told the Agency that Luis would not have access to programs until he was classified. The 

official said Luis might remain unclassified for his entire prison term given its length. 

The Agency recommended that the court terminate Luis's reunification services. 

The Agency wrote, "[Luis] made no attempt to participate in services or visitations while 

he was free from jail. While he was in jail, [Luis] stated he would like to participate in a 

plan of reunification, but he did not take corrective action when he had an opportunity to 

do so. It appears he will not be released from prison in the next reporting period, and his 

efforts thus far have been insufficient."4 

In an addendum report, the Agency stated that it had received two letters from 

Luis while in prison. Luis was upset that reunification services could be terminated

because he felt he did not have a chance to participate in services. Apparently in 

response to Luis's request, the Agency mailed a parenting education packet to him. Luis 

also wrote that he was attending church services and AA and Narcotics Anonymous (NA) 

meetings when available in prison. The Agency confirmed it had set up a telephone 

account for Luis, though he was unable to use the telephone based on his classification 

status. The Agency also provided Luis with his attorney's contact information. 

At the contested six-month review hearing, the Agency continued to recommend 

termination of services for Luis. Bella's counsel concurred. Luis opposed, arguing that 

 

4 Based on K.W.'s progress, the Agency recommended her services be extended 

through the 12-month date. 
7

he was committed to reunification but services were not available to him because of his 

incarceration. The court received the Agency's status report and addendum into evidence.

The court also heard testimony from an Agency social worker and Luis. Among other 

things, the Agency social worker testified that he provided Luis with appropriate referrals 

during the meeting in which Luis signed the case plan. Luis testified that he understood 

the components of his case plan, that he attempted to pursue the Agency's referrals while 

he was out of custody but had problems with payment, and that he was unable to contact 

the social worker for payment verification. Luis also testified that he did not have access 

to most services while in prison but he attended church weekly and AA/NA meetings 

monthly. Luis said he was scheduled to be released approximately two months after the 

six-month review hearing. Luis planned to enroll in an inpatient therapy and housing 

program upon his release. Luis asked the court to continue reunification services because 

he believed he could be a good father to Bella and complete all of the services the 

Agency required of him. 

The juvenile court found that Luis had been provided with reasonable 

reunification services but that Luis had not made progress with his case plan. The court 

determined there was not a substantial probability that Bella would be returned to Luis by 

the 12-month review hearing. The court stated, "I do think [Luis is] very sincere in 

wanting to reunify with his daughter and have a relationship with her. I think what's 

plagued the father is that he was first incarcerated when Bella was just about three or four 

weeks old. When he was released in August, he was unable to see her during that one 

month before he was rearrested. So [Luis] does not have a relationship with Bella 
8

because of those circumstances." Recognizing that Luis did not have access to services 

while incarcerated, the court explained, "I think that is unfortunate. I think if someone is 

incarcerated, there needs to be some type of consideration given the fact if found they are 

fit, that still they should be afforded an opportunity for services, barring other 

[circumstances]. But that's an executive branch decision, not a judicial branch decision. 

[¶] I think the social worker did an [admirable] job in trying to help the father, 

notwithstanding those obstacles, by sending him the incarcerated parenting packet to him 

and trying to get the phone cards working for the father." The court terminated Luis's 

reunification services. Luis appeals. 

DISCUSSION

I

Luis contends the juvenile court erred by finding that the Agency provided him

with reasonable services. By statute, the juvenile court may not terminate a parent's 

reunification services at the six-month review hearing if it finds that "reasonable services 

have not been provided" to the parent. (§ 366.21, subd. (e); see Katie V. v. Superior 

Court (2005) 130 Cal.App.4th 586, 594 (Katie V.) ["Under the statutory scheme, review 

hearings are held every six months, at which time the juvenile court determines, among 

other things, whether the child welfare agency has offered the parent reasonable 

reunification services."].) 

" '[T]he focus of reunification services is to remedy those problems which led to 

the removal of the children.' [Citation.] A reunification plan must be tailored to the 

particular individual and family, addressing the unique facts of that family. [Citation.] A 
9

social services agency is required to make a good faith effort to address the parent's 

problems through services, to maintain reasonable contact with the parent during the 

course of the plan, and to make reasonable efforts to assist the parent in areas where 

compliance proves difficult. [Citation.] However, in most cases more services might 

have been provided and the services provided are often imperfect. [Citation.] '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.' " (Katie 

V., supra, 130 Cal.App.4th at pp. 598-599.)

Absent a finding of detriment to the minor, an incarcerated parent must receive 

reasonable services as well. (§ 361.5, subd. (e)(1); see Fabian L. v. Superior Court

(2013) 214 Cal.App.4th 1018, 1028.) "An incarcerated or detained parent may be 

required to attend counseling, parenting classes, or vocational training programs as part 

of the reunification service plan if actual access to these services is provided." (§ 361.5, 

subd. (e)(1).) Other services may include "(A) Maintaining contact between the parent 

and child through collect telephone calls. [¶] (B) Transportation services, where 

appropriate. [¶] (C) Visitation services, where appropriate." (Ibid.)

"This statute reflects a public policy favoring the development of a family 

reunification plan even when a parent is incarcerated. [Citation.] The department must 

preliminarily identify services available to an incarcerated parent. [Citation.] It cannot 

delegate to an incarcerated parent the responsibility for identifying such services. 

[Citation.] The department's employees may not simply conclude that reunification 
10

efforts are not feasible on the sole ground the parent is incarcerated." (Mark N. v. 

Superior Court (1998) 60 Cal.App.4th 996, 1011-1012.)

"When a finding that reunification services were adequate is challenged on appeal, 

we review it for substantial evidence." (Melinda K. v. Superior Court (2004) 116 

Cal.App.4th 1147, 1158.) " 'In reviewing the reasonableness of the services provided, 

this court must view the evidence in a light most favorable to the respondent. We must 

indulge in all legitimate and reasonable inferences to uphold the verdict. If there is 

substantial evidence supporting the judgment, our duty ends and the judgment must not 

be disturbed.' " (In re Precious J. (1996) 42 Cal.App.4th 1463, 1473.)

We conclude the evidence supports the juvenile court's finding that Luis had 

received reasonable reunification services. Although the Agency's efforts in this case 

were not perfect, the Agency made reasonable efforts to assess the problems leading to

Bella's removal, recommend appropriate services for Luis, maintain contact with Luis 

and facilitate his participation in those services, and support Luis when compliance 

proved difficult. The main barriers to Luis's successful completion of services appear to 

have been his failure to access services while out of custody and his rearrest, which

placed him beyond the reach of many of the Agency's services, rather than any 

unreasonable efforts by the Agency.

Luis contends that the Agency did not sufficiently assist him in complying with 

his case plan. Luis points out that the Agency did not provide services at the beginning 

of the case, while Luis was incarcerated, and thereafter met with Luis only sporadically. 

However, at the beginning of the case, Luis was incarcerated in a facility that did not 
11

offer services to inmates with Luis's classification. The Agency provided Luis with a 

collect calling credit to contact Bella's caregivers, but the Agency could not refer Luis to

services where none were available. Moreover, the court did not formally find Luis to be 

a presumed father until several months after Bella's detention. Prior to that time, Luis 

was not entitled to court-ordered reunification services. (See In re Zacharia D. (1993) 6 

Cal.4th 435, 451.)

After the court found Luis was Bella's presumed father, the Agency drafted a case 

plan for him and submitted it to the court. A week after Luis was released from jail, the 

Agency provided him with appropriate referrals pursuant to that plan. Although the 

Agency attempted to amend the case plan to add substance abuse services after the initial 

case plan was approved, Luis has not shown this attempted amendment made the 

Agency's efforts unreasonable. We note that Luis claimed to have participated in AA and 

NA programs whenever possible, even before the Agency attempted to amend his case 

plan to add those services. The Agency's efforts to assist Luis in complying with his case 

plan were not unreasonable.

Luis also contends the Agency did not maintain regular contact with him. We 

disagree. The Agency maintained reasonable contact with Luis under the circumstances. 

An Agency social worker met with Luis in jail after the detention hearing and 

documented Luis's family history, his childhood, his work experience, his challenges 

with drugs and alcohol, his criminal history, and his relationship with K.W. The Agency 

also contacted Luis's probation officer. After Luis was released from jail, an Agency 

social worker met with him and went over his case plan. The Agency provided Luis with 
12

appropriate referrals and bus passes. Within a month, however, Luis was rearrested. He 

spoke to the Agency by telephone, and the Agency social worker sent him pictures of 

Bella. After Luis was transferred to state prison, the Agency set up a calling card for him 

and attempted to determine what services were available. After finding out no services 

aside from AA and NA were available, the Agency sent two letters to Luis and a 

parenting workbook. Although Luis shows there were delays in certain Agency 

communications, the juvenile court was entitled to find that the Agency's efforts to 

maintain contact with him were reasonable under the circumstances, given Luis's shifting 

custody status and the difficulty communicating with him. The Agency's efforts could 

have been more persistent, but they were not unreasonable.5

Luis argues the Agency failed to take into account his incarceration in providing 

services. While a court may not require an incarcerated parent to participate in services 

to which he or she has no access (§ 361.5, subd. (e)(1)), Luis's situation was not so 

simple. Luis was initially held in local jail, which the Agency determined offered no 

 

5 Luis also faults the Agency for failing to facilitate contact between him and Bella. 

Luis argues that the Agency should have transported Bella to visit him in jail during the 

first few months of the dependency case. Luis has not shown the Agency acted 

unreasonably. Bella was a special needs child who spent time in the neonatal intensive 

care unit after her birth. During the first few months of the dependency case, Bella had 

numerous medical conditions, one of which required surgery. Luis has not shown it was 

unreasonable for the Agency not to set up visitation in jail under these circumstances. 

We therefore need not address the Agency's argument regarding forfeiture. Luis also 

argues that the Agency "thwarted" his efforts to contact Bella by telephone. We disagree. 

The difficulty Luis encountered calling Bella at the outset of the case appeared to have 

been caused by a misunderstanding regarding the form of payment authorized by the 

court, not any unreasonable actions by the Agency. Luis's inability to call Bella from 

state prison was likewise a result of his classification status, not any Agency action.
13

services. But Luis was scheduled to be released during the reporting period, which meant 

the Agency's case plan properly reflected the services available to Luis out of custody. 

When Luis was rearrested, he was briefly held in local custody before his transfer to state 

prison. The Agency contacted prison authorities in an effort to determine what services 

were available there. Prison officials told the Agency services might be available, but 

later determined that Luis could not have access to services because of his classification 

status. The Agency then mailed Luis a written parenting workbook to complete. Given 

these facts, the juvenile court was entitled to find that the Agency adequately considered 

Luis's incarceration in providing services.

II

Luis further contends the court erred by not finding a substantial probability Bella 

may be returned to Luis by the 12-month review date. (§ 366.21, subd. (e).) The statute 

provides, in relevant part, as follows: "If, however, the court finds there is a substantial 

probability that the child . . . may be returned to his or her parent or legal guardian within 

six months . . . , the court shall continue the case to the 12-month permanency hearing." 

(Ibid.) "Literally, the statute commands the court to determine whether there is a strong 

likelihood of a possibility of return (not simply a strong likelihood the return will in fact 

occur)." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 181 (M.V.).) The court 

may consider any relevant evidence in making this finding, including whether a parent 

has consistently and regularly contacted and visited the minor, whether the parent has 

made significant progress in resolving the problems that led to the minor's removal, and 

whether the parent has demonstrated the capacity and ability to complete the objectives 
14

of his or her case plan and to provide for the minor's safety, protection, physical and 

emotional well-being, and special needs. (Ibid.)

Luis does not challenge the evidence supporting the juvenile court's finding. 

Instead, he argues the court used the wrong legal standard in assessing the probability of 

return. At the six-month review hearing, the court stated, "With respect to the father, the 

court finds by clear and convincing evidence that Bella was under the age of three at the 

time of initial removal, and finds by clear and convincing evidence that the father has not 

participated regularly in, nor has he shown substantive progress in the court-ordered 

treatment programs. The court would find by clear and convincing evidence that there's 

not a substantial probability that Bella would be returned to care of her father by the 12-

month review." Luis contends that the court's use of the phrase "would be returned,"

rather than the statutory phrase "may be returned," shows the court did not apply the 

correct legal standard under section 366.21, subdivision (e).

As Luis points out, other Courts of Appeal have found error when a juvenile court 

misperceives or misidentifies the standard for probability of return under section 366.21, 

subdivision (e). (See S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016 (S.T.); 

M.V., supra, 167 Cal.App.4th at p. 181.) We will therefore determine whether the 

juvenile court's error here was prejudicial, i.e., whether it is reasonably probable that Luis 

would have achieved a more favorable result absent the error. (See S.T., at p. 1016; M.V.,

at p. 183.) 

We conclude Luis has not established prejudice. As an initial matter, the juvenile 

court's misstatement of the standard under section 366.21, subdivision (e), while material, 
15

did not dramatically depart from the correct standard. Unlike S.T. and M.W., which 

found prejudicial error, we are not presented with the situation where the juvenile court 

felt it was required to find certain circumstances present in order to find a probability of 

return (and therefore did not consider all relevant evidence). (See S.T., supra, 177 

Cal.App.4th at p. 1016 ["The court mistakenly believed that it lacked discretion to 

continue reunification services unless the three factors listed in section 366.21, 

subdivision (g)(1), (A)-(C) were satisfied."]; M.V., supra, 167 Cal.App.4th at p. 183.) 

Here, the juvenile court considered all relevant evidence and determined that there was 

not a substantial probability that Bella "would be returned," rather than "may be 

returned," by the 12-month review date. Among the circumstances before the court were 

the following: (1) Luis's failure to participate in services while out of custody, (2) Luis's 

failure to visit or contact Bella while out of custody, and (3) Luis's prompt rearrest and 

reincarceration, which would last until shortly before the 12-month review hearing.6 As 

the court noted, "[I]t appears that [Luis] will be released either just before or after the 

permanency hearing date without an established relationship [with Bella] and without 

progress in services. Therefore, the court cannot find there would be a substantial 

probability of return." Given these circumstances, it is not reasonably probable that Luis 

 

6 Luis's reply brief makes reference to certain events that occurred after the court's 

six-month review hearing. The Agency filed a motion to strike those references, and Luis 

does not oppose. "It has long been the general rule and understanding that 'an appeal 

reviews the correctness of a judgment as of the time of its rendition, upon a record of 

matters which were before the trial court for its consideration.' " (In re Zeth S. (2003) 31 

Cal.4th 396, 405.) Absent exceptional circumstances, we adhere to this general rule. 

(Ibid.) We will therefore grant the Agency's motion to strike and disregard Luis's 

references to posthearing events in his reply brief.
16

would have achieved a more favorable result had the juvenile court applied the correct 

standard, "may be returned," under section 366.21, subdivision (e).

III

Luis contends the court was unaware of its discretion to continue services for Luis 

past the six-month review hearing. "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." (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 

881 (Katelynn Y.).) Because the juvenile court here continued services for K.W., and did 

not schedule a section 366.26 hearing, the court had the discretion whether to terminate 

(or continue) Luis's services as well. 

"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.' " (Katelynn Y., supra, 209 Cal.App.4th at p. 881.) "The 

parent seeking additional services has the burden of showing such an order would serve 

the child's best interests." (Ibid.) "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." (Ibid.)

While "[a] trial court's failure to exercise its discretion generally requires reversal"

(S.T., supra, 177 Cal.App.4th at p. 1016), Luis has not shown that the juvenile court 

failed to exercise its discretion here. The record shows that Luis's counsel argued it was 
17

in Bella's best interests to provide him with services; the juvenile court disagreed. Luis 

points to the following statement by the juvenile court: "I think that is unfortunate. I 

think if someone is incarcerated, there needs to be some type of consideration given the 

fact if found they are fit, that still they should be afforded an opportunity for services, 

barring other [circumstances]. But that's an executive branch decision, not a judicial 

branch decision." The juvenile court's statement, however, lamented the unavailability of 

services in California's prisons. It was not a statement of the court's belief that it lacked 

discretion to continue services for Luis. Luis's argument that the court was unaware of its 

discretion is therefore unpersuasive.

DISPOSITION

The order is affirmed.

HALLER, Acting P. J.

WE CONCUR:

MCDONALD, J.

AARON, J.