In re Steven P. CA1/2

Filed 3/27/14 In re Steven P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re STEVEN P., a Person Coming Under
the Juvenile Court Law.

NAPA COUNTY HEALTH & HUMAN
SERVICES,
Plaintiff and Respondent, A139495
v.
(Napa County
RICHARD P., Super. Ct. No. JV 17163)
Defendant and Appellant.

Noncustodial father Richard P. appeals from an order of the juvenile court
terminating his reunification services at the 12-month review. He asserts the following
four arguments: (1) the juvenile court’s finding that Napa County Health & Human
Services (the Department) provided reasonable services was unsupported by substantial
evidence; (2) the court’s finding of detriment was unsupported by substantial evidence;
(3) the court neglected to advise him at the six-month review hearing that failure to
reunify might lead to the termination of his parental rights; and (4) he received ineffective
assistance of counsel.
We find Richard’s first contention well taken. The Department was aware as far
back as the time of detention that Richard lacked stable and suitable housing. It
identified obtaining stable housing as a component of his reunification plan. It confirmed

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at the six-moth review that, while Richard was in compliance with most other
requirements of his plan, he still struggled with housing. Despite that it repeatedly
identified Richard’s lack of stable housing as a critical barrier to reunification, the
Department offered him no assistance whatsoever in remedying this problem. We
therefore reverse the juvenile court’s order terminating reunification services at the
12-month review.
BACKGROUND
Detention
This Welfare and Institutions Code section 3001 dependency proceeding
commenced in June 2012, after a probation search of the home where then three-year-old
Steven P. lived with his mother Melissa B. and numerous other relatives uncovered
drugs, knives, and toxic substances within easy reach of Steven and his half-siblings.
Melissa, who was under the influence at the time and admitted to methamphetamine use
the previous day, was arrested for drug possession and child endangerment. Steven was
taken into protective custody and placed in the home of a relative.2
On June 18, 2012, the Department filed a section 300 petition, alleging failure to
protect Steven within the meaning of subdivision (b). At the detention hearing the next
day, the court was informed that Melissa had full physical and legal custody of Steven
due to a domestic violence restraining order issued against Richard. Melissa and Richard
submitted on detention, and the court ordered Steven detained.
Jurisdiction
In the July 11, 2012 jurisdiction report, the social worker described a June 26
interview she had with Richard. Richard had discussed his troubled relationship with
Melissa, noting they had been together for almost four years but were separated at that
time. According to Richard, Melissa was clean when they first got together, but later

1
All subsequent statutory references are to the Welfare and Institutions Code.
2
Ryan J., the father of two of Melissa’s four children, was also present at the time
of the search. He, too, was arrested. We omit further details concerning Melissa and
Ryan except where relevant to the issues before us.

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began using again, including when she was pregnant. He told the social worker he had
called the Department and the police on numerous occasions to report concerns about
Steven’s safety while in Melissa’s care, but he was eventually told he would be arrested
for harassment if he continued to call. He also acknowledged that Melissa had a
restraining order against him because she claimed he had beaten her up but, in fact, it was
he who had been punched in the face by Ryan’s brother. They had a mediated visitation
plan that afforded him weekend visits, including overnights.
The Department noted that in October 2010, it had received two general neglect
referrals regarding Steven, both alleging that Richard had left the child with “random
people” and was using and selling drugs. One referral additionally alleged that Richard
allowed homeless people and drug addicts to sleep on mattresses on the floor of his home
and that Steven had a bruise on his head and severe diaper rash. The first referral was
investigated and deemed unfounded, the second evaluated out at intake. The Department
had also received 12 referrals alleging neglect or caretaker absence/incapacity by Melissa
between 1999 and 2012.
As to the parents’ criminal history, the Department noted that Melissa’s was
lengthy, and included an October 2009 conviction for inflicting corporal injury on a
spouse (presumably Richard). Richard, on the other hand, had only a 2011 conviction for
misdemeanor driving on a suspended license.
The Department confirmed that Melissa had been granted sole legal and physical
custody of Steven because of a restraining order issued against Richard on March 29,
2012. As stated in the report, “[T]he situation surrounding this restraining order remains
unclear as there is nothing in the father’s criminal history that is connected to the
restraining order. However, the Department is concerned that the Court issued a 5-year
restraining order against the father and the father stated to the undersigned that he does
not hit women. This issue requires further investigation which will take place prior to the
Disposition hearing.”

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 The Department concluded that Richard was not in a position to provide stability
for Steven, as he frequently moved around and changed his telephone number and did not
have a consistent employment history.
At the July 12 jurisdiction hearing, Richard and Melissa submitted on the petition,
and the court sustained the allegations and took jurisdiction over Steven.
Disposition
In its July 25 disposition report, the Department reported that, according to
Richard, he was staying with a friend’s grandmother because none of his relatives would
let him stay with them. He admitted he had “bounced from job to job” over the previous
few years, which he blamed on Melissa. He believed he had a negative reputation
because he was surrounded by “thieves and drug addicts.” According to the Department,
“The father understands that he does not have a home for Steven. He wants to obtain
appropriate housing, a stable and consistent job and support for his parenting.”
The Department also related Richard’s version of the incident that lead to the
restraining order, as follows: “ ‘I was under the suspicion that Melissa and her mom
were going to take the house from me.’ The maternal grandmother ‘hadn’t paid her bills
and was about to lose her home. I don’t agree with things she does. She is not a very
nice person. She is a liar, manipulative and knows how to work the system. She coached
my wife to tell the cops I hit her. She was on the floor yelling while Melissa was on the
phone with 911.’ The father continued, ‘I had an assault charge the day before because I
brushed up against her mom in the hall. We got into an argument and they called the
cops. I told them to “get the fuck out of my house.” She [maternal grandmother] didn’t
like it. Melissa told Ryan’s . . . family I threatened to slit the kids’ throats.’ The father
said, ‘Ryan’s brother and father showed up and tried to force their way into the house.
They threatened to knock me out for how I spoke to their mother. Ryan’s dad put his
foot in my door as I was trying to close it.’ The father said, ‘I hate physical violence
toward children. Ryan’s brother hit me. I almost fell over on my son. I was furious. I
went outside [in case there was a fight.] I finally got back inside and locked the door and
called 911. I went to another part of the house and hit a door. I believe violence in front

4
of children just continues with more violence.’ The father said that he went straight to
bed following the incident and the next day ‘the cops showed up with a move out
order.’ ”
The report also contained Melissa’s description of her history with Richard and his
purported drug use, which the Department related as follows: “ ‘He and I were using
together for about a year. He will say he has never used drugs, but that’s not true.’ The
mother and father got married and she ‘got a dirty test through probation’ after which she
‘cleaned up’ and had her fourth child, Steven P. in 2009. After Steven’s birth the mother
‘relapsed again.’ She said, ‘Richard has always had a problem with pain pills. He was
still using them when I was trying to be clean.’ The mother said that she ‘relapsed two or
three times’ with the father [sic] pills and that he ‘was using steadily’ during that time.”
Melissa also expressed concerns about Steven being placed with Richard: “ ‘The
thought of Steven going to live with Richie (the father) scares the hell out of me [because
he] cannot control his temper.’ She added, ‘I have doors in my house that are filled with
holes.’ She said, ‘Right now he [Steven] would not be safe [with Richie] and I would
rather him be in foster care.’ The mother stated that the father ‘flips out’ and ‘he flips out
so badly he scares people. He has put his hands on me and my mom. He pulled my hair.
He hit me in front of Steven. He hit me over the head with a toy.’ The mother then said
that the father loses control like this ‘when he doesn’t have his pain pills.’ ”
The Department advised against placing Steven with Richard, stating: “Richard P.
is the non-custodial parent in this Dependency. He stated that he does not have a suitable
home to which he can take Steven. In addition, the Court issued a five year restraining
order against the father in April 2012 based on reported domestic violence between him
and the mother. The father has questionable associations with people he describes as
‘thieves and drug addicts’ which pose a risk of harm to Steven. In addition, there are
numerous conflicting reports that state that the father does in fact use drugs or has in the
recent past. The father does not have stable employment or reliable transportation.”
The Department recommended reunification services for both parents. Richard’s
proposed reunification plan required him to obtain and maintain a stable, safe, and

5
sanitary place for Steven to live; stay free from illegal drugs; participate in counseling or
therapy to address issues of substance abuse and uncontrolled anger; complete a drug and
alcohol intake assessment and comply with all recommendations; attend three weekly
NA/AA meetings; submit to random drug testing; and participate in the Substance Abuse
Recovery Management System (SARMS).
The disposition hearing was held on July 26. Richard’s counsel advised the court
that the Department had agreed to modifications to Richard’s case plan that would
require him to complete a 52-week anger management program, instead of counseling or
therapy. The Department also agreed to defer the NA/AA and SARMS requirements,
pending the results of a drug and alcohol assessment. Richard would, in the interim,
submit to substance abuse testing. After counsel for the Department confirmed its
agreement with these modifications, the court adopted the modified plan. It also
confirmed that while Richard’s participation in SARMS was deferred, Melissa was
required to participate in the program, scheduling a SARMS hearing for August 21, a
date subsequently continued to September 18.
SARMS Hearings
Over the months following the disposition hearing, there was significant confusion
about Richard’s participation in SARMS and substance abuse services. At the
September 18 SARMS hearing, the social worker incorrectly informed the court that
Richard was required to attend three NA meetings a week but that he had not submitted
NA attendance sheets for the reporting period. He had, however, participated in a drug
and alcohol assessment, which resulted in a no-treatment-needed recommendation, and
he had submitted two negative drug tests. There followed a lengthy discussion about
what was required of Richard in terms of substance abuse treatment, concluding with the
court’s proposal that “Mr. P. continue in our SARMS program, continuing to test under
the obligation to attend his NA meetings, and then we will just have him come back and
see how it goes. . . .”
The confusion persisted at the SARMS hearings in October and November, with
the social worker continuing to insist that Richard was required to attend three 12-step

6
meetings a week, a requirement with which he was not in compliance.3 At the
December 18 SARMS hearing, Richard was finally discharged from SARMS—which he
was never, under his case plan, required to complete—upon the social worker’s
representation that his alcohol and drug assessment had found no need for treatment and
his tests had been negative. The social worker further represented that she would work to
remove the NA/AA meeting requirement in Richard’s case plan, but noted that he would
still be subject to random drug testing. At the conclusion of the hearing, the court
congratulated Richard “for doing everything you were supposed to do, for showing
everyone you are not, in fact, using at all, and graduating from the SARMS program.”
Six-Month Review
On December 27, the Department submitted a six-month review report,
recommending continued reunification efforts for both parents. It represented that
Richard was in compliance with many components of his reunification plan, including
visitation, maintaining monthly contact with the social worker, participating in an anger
management program, and completing a drug and alcohol assessment. He had submitted
to random drug testing, with negative results, although he had missed four tests in the
six-month reporting period.
Concerning substance abuse issues, the Department erroneously advised that
Richard was not in compliance with the requirement that he attend three NA/AA
meetings per week. It was further noted that he had graduated from SARMS and would
no longer be required to attend the hearings—even though this was never a requirement
of his case plan in the first place. The Department represented that it had “agreed to
modify his case plan so that it reflects that he will no longer be asked to attend these
meetings.”
Significantly, the Department acknowledged that Richard was not in compliance
with the housing component of his case plan. As the Department described it, “The

3
Despite that his case plan, as modified, deferred his SARMS participation and
the NA attendance requirement, Richard nevertheless attended some NA meetings during
that time.

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father continues to struggle in finding a permanent place to live. The father has stated
that his family is not willing to help him because his child is in the Child Welfare system.
The father has lived in two different places this reporting period and will move again
shortly. The father was previously employed and the father stated that the restaurant
owner went bankrupt and he had to find another job. Recently, the father has stated to
the undersigned that he has been hired at a local restaurant in downtown Napa. The
father has also stated that he is actively looking for an apartment to rent so that he can
have a suitable and safe place for he and Steven to live in.” In light of Richard’s lack of
suitable housing, the Department believed that it would be detrimental to return Steven to
Richard’s care at that time.
At the January 15, 2013 six-month review hearing, the court continued services to
both parents, specifically finding that Richard had made moderate progress on his
reunification plan, while Melissa had made minimal progress.
12-Month Review
Around the time of the six-month review, however, Richard stopped participating
in his reunification plan. According to the record, he attended the six-month review
hearing on January 15, 2013, but then lost contact with the Department until May 21,
when he finally met with the social worker. In the June 19, 12-month status report, the
social worker described their meeting as follows: “On 5/21/13, the undersigned met the
father first face to face for the first time during this reporting period. The father reported
going through a period of homelessness until recently moving in with his girlfriend in
Vallejo. . . . . [¶] The father reported being terminated from his position as a cook in
January 2013. Additionally, the father reported other social challenges that have
interfered with his ability to be stable and remain in contact with the Department. The
father reported dealing with an untreated illness of Depression which he characterized as,
‘not getting enough sleep.’ The father reported being financially unstable and that losing
his job caused the termination of his cell phone service. The father added that his lack of
transportation has prevented him from visiting his son and communicating with the
Department.”

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 In terms of “Detriment & Prognosis of Returning Child Home,” the Department
stated, “The father has only engaged with the undersigned once during this reporting
period. The undersigned learned the father’s phone service to be disconnected through
multiple attempts of contacting the father. The undersigned made two unannounced
home visits at the address provided by the father; however, during both attempts, the
father’s grandmother reported that the father does not reside at the address and that no
relative has seen the father in months. The undersigned mailed two letters to this address
requesting the father to contact the Department immediately; however, the father has yet
to contact the Department. [¶] On 5/21/2013, the father came into the Department to
discuss case planning with the undersigned. During that time, the father reported
experiencing economical hardship which resulted in his lack of participation in case
planning throughout this reporting period. The father’s uncooperative behavior or lack of
involvement with the Department suggests that the father is not dedicated to reunifying
with Steven. The father has not made progress in his case plan and has been homeless for
much of the reporting period. While the father reports he recently moved in with his
girlfriend, it is unknown if this is a stable living environment. Further, the father has not
visited Steven since December 2012 or made any attempt to contact or visit Steven since
December 2012.”
As to the specific requirements of the reunification plan, Richard was not in
compliance with the visitation requirement, with his last visit having occurred on
December 25, 2012, nearly six months prior. He was also out of compliance with most
other requirements of his plan, having only completed the anger management class and
the drug and alcohol assessment. He had missed five drug tests since the beginning of
January, with the last missed test on February 21, 2013.4 Accordingly, the Department
recommended terminating Richard’s services.

4
As the social worker would later testify, the Department dropped Richard from
the drug testing schedule since he had stopped testing and communicating with the
Department.

9
 Melissa, on the other hand, was being consistent in her visits and had completed
all components of her reunification plan, other than maintaining a stable, safe, and
sanitary place to live with her children, free from alcohol and illegal drugs.
Consequently, the Department recommended extending her services for an additional six
months.
On June 25, the matter came on for a 12-month review. At the outset of the
hearing and at Richard’s request, the court held a Marsden5 hearing, following which it
relieved Richard’s counsel. It appointed new counsel, confirmed Richard’s
understanding that the Department was recommending termination of his services, and
continued the 12-month review for two days.
At the continued hearing, the court found that Melissa had made substantial
progress in alleviating the problems that led to the dependency proceeding and extended
her reunification services. As to Richard, his newly-appointed counsel requested a
contested hearing, which the court set for July 29.
Contested 12-Month Review Hearing
The contested hearing was held on July 29 as scheduled. Social worker Akisha
Thomas—who had been handling Steven’s case since January 2013—was the first to
testify. Thomas testified that she had located Richard in the process of completing a due
diligence investigation and, on May 21, he had come into the Department to meet with
her. He told her he had lost his job, which caused depression and economic hardship,
which in turn resulted in transportation problems and termination of his cell phone
service. As a result, he had not contacted the Department or participated in visitation.
Richard had also acknowledged that he did not have a suitable place for Steven to live, as
he had been living with his father in Napa and his girlfriend in Vallejo off and on. He
was employed, however, having started a new job one week prior. In light of Richard’s
transportation issues, Thomas had provided him with a bus pass so he could make it to
his visitations.

5
People v. Marsden (1970) 2 Cal.3d 118.

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 Thomas further testified that Richard failed to visit with Steven from December 25
until “just recently,” when they had two supervised visits. This, according to Thomas,
suggested he was not committed to his son and there was a lack of attachment or bonding
between the two. And because Richard had not visited for nearly six months, Thomas
had been unable to evaluate his parenting skills.
Thomas confirmed that Richard completed an anger management class in January
2013. Since May 21, he was also contacting the Department once per month as required.
According to Thomas, however, Richard was not in compliance with the requirement that
he engage in counseling once per week. She testified that she had provided Richard with
“various resources,” and it was up to him to “go out diligently and find a counselor,”
which he had not done.
Thomas confirmed that Richard missed four drug tests in the first reporting period
(August to December) and five more since December. His last missed test was on
February 21, 2013, after which he was taken off the schedule because he was no longer
communicating with the Department. He did submit to a test in July—after he was back
in touch with the Department—with a negative result. Thomas acknowledged on
cross-examination that Richard had never tested positive, and the allegations of his drug
use were never substantiated or documented.
Richard also testified. According to him, for the past two months he had been
living in a “neat” and “clean” three-bedroom apartment in Vallejo with his girlfriend and
her father, who was the property manager for the apartment complex. He was working in
construction with a “100 percent” prospect for continued employment. He anticipated
receiving a raise within the next month, as well as obtaining a health care plan for Steven
and himself. Richard confirmed that he had no criminal history other than receiving a
citation for driving on a suspended license.
Richard had last seen Steven at a “great” visit a few days before the hearing.
According to Richard, Steven was happy when he came to the Department for visits.
When asked about whether he had been attending counseling, Richard responded,
“Honestly the only thing that I know about any kind of counseling or anything is that I

11
was ordered to go to anger management. Complete that in lieu of any kind of
counseling.” He confirmed that he provided proof of completion of an anger
management program to the Department, and he was unaware of any other counseling
requirement.
Under cross-examination, when asked about the four drug tests he missed during
the first reporting period—when he was participating in reunification services—Richard
testified that he had been unable to call in on those days because he was working. When
asked about his absence over the preceeding six months, Richard explained that he had
been “basically homeless.” He had been “[c]ouch surfing” during that time, an
experience that was “definitely” in the past. He acknowledged missing drug tests, which
he blamed on the lack of a telephone or transportation. When asked by counsel for the
Department why, specifically, had he not contacted the Department for approximately six
months, Richard responded, “I don’t know how to answer that.” When asked why he had
not visited with Steven for six months, he responded, “I didn’t have a phone. I didn’t
have transportation.” And when asked what efforts he made to try to communicate the
with Department or Steven, Richard acknowledged he made “none.”
On redirect, Richard and his counsel engaged in the following exchange:
“Q: Richard, is it safe to say based on your testimony that for a short period of
time you just kind of dropped out for a little bit?
“A: Correct.
“Q: Why was that?
“A: I gave up on myself. I’m not gonna lie. I was overwhelmed, you know. I
had nothing. I guess you could say rock bottom. I had no place to go. No place to live.
No phone. No food. You know what I mean?
“Q: Right.
“A: I just felt like I couldn’t try any more.
“Q: How long did that feeling last with you?
“A: A good while. I mean I can’t give you an exact date for how long but for
awhile.

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 “Q: Maybe four or five months?
“A: At least.
“Q: How do you feel now?
“A: I feel like I’m the old me again. I feel, you know, I feel like I’m stepping
out of the hole I was in. I mean I have a place. I have a job. You know.
“Q: Do you have a support system?
“A: Of course. The family that—my girlfriend’s family, I should say, is 100
percent behind me. My boss is behind me. You know, he’s a good guy. My girlfriend’s
father is a great guy. You know her sisters, they’re a big part of it. I have a huge support
system behind me now.
“Q: Are you committed toward working towards a stronger and stronger
relationship with Steven?
“A: Of course, yes.
“Q: Would you like to see services continue for yourself?
“A: Yes.”
The court then heard closing arguments. Counsel for the Department argued that
Richard had received reasonable services but had failed to make reasonable efforts to
participate in reunification, as evidenced by his six-month absence. Further, he
contended, Richard’s failure to participate and make substantive progress on his case plan
was prima facie evidence that the return of Steven to his father’s care would be
detrimental. Noting that Richard blamed his absence on depression, counsel observed,
“[P]arents often have issues in their lives. They’re not allowed to drop out of a child’s
life and not even see him.” His behavior, counsel submitted, was “just a demonstration
of him either not being committed or just not being able to deal with the bare essentials of
life taking care of children.” With that, he requested the court terminate Richard’s
services.
Richard’s counsel, on the other hand, argued that Richard had gone through a hard
time: he lost his job, he lost his housing, and he “[t]emporarily lost his way.” But since
Richard reengaged, he had maintained contact with the Department. At the time of

13
hearing, he had stable housing. He had not resumed drug testing because he had been
taken off the schedule. Prior to losing contact with the Department, he had regularly
visited with Steven. In light of Richard’s turnaround, counsel asked that the court extend
services for an additional six months.
Counsel for Melissa echoed the Department’s request that Richard’s services be
terminated. He argued that Richard had not been stable and consistent, and it was
difficult to envision him reunifying over the next six months.
Counsel for Steven asked the court to “Give [Richard] this chance because I think
if he does what he’s supposed to do this will be beneficial for [Steven] who really is the
reason that we are all here . . . .” She noted that Richard completed the anger
management program, had never had a negative drug test, was in contact with the
Department, and had a suitable home and stable employment. She empathized with his
prior plight, stating, “He did explain that he was depressed. I think I would be too if I
was in his circumstances. This isn’t about me, but I think anybody who has lost not one
job but apparently more than one, who essentially is homeless and never has been
homeless before, whose whole life is changing might spiral downward.” But looking at
“what he’s doing now and where his heart is at now,” she believed Steven “would be far
better off with two parents getting services.” And, she queried, since Melissa was
receiving six more months of services, “[w]here is the harm” in extending services for
Richard?
At the conclusion of argument, the court expressed that it was “not
unsympathetic” to Richard but that it had to follow the law, explaining:
“I understand that many people go through what you have gone through with or
without children. Losing home. Losing jobs. Not knowing what to do and disappearing.
That happens. I’m not unsympathetic to that. But what I have to look at is the fact
that . . . [y]ou have a child in the system. And there are certain things that you have to do
in order to basically end this case with a dismissal and the child gets to go back with the
parents. I think someone said you’re not allowed to disappear. Sure you are allowed to,
but there are consequences too when you do that. I do not believe six months is a

14
relatively short period of time in a young child’s life. That is a large chunk out of a three
year old now four year old child’s life where he doesn’t have the benefit of seeing his
father. And he may not be able to understand what it means to be homeless, not having a
job, losing his phone. I’m glad that he is happy that you came back. And I’m glad that
you came back. But I have to again look at the case and I have to follow the law. [¶] . . .
But in this case I can’t say that you weren’t offered reasonable services because you
were. What I can say is that you didn’t use those services. And the most basic one,
which is visiting your child whether you had a job or not, whether you did your
counseling or not, I’m glad you did the anger management, but you didn’t test. And
that’s true. But I’m looking at did you do the basic visits [with] your child. Because you
tell me now that’s what it’s about, but for six months you didn’t do that. You dropped
out of his life. So you were provided reasonable services. Would it be a detriment to
return the child to you? Well, I think it would be because there are so many unknowns.
While I understand that when you did test they were negative there is a period of time
almost not a year but close to a year where you didn’t test. And that was even before you
didn’t have a cell phone. You didn’t have a job. For some reason, I don’t know what it
was, the report seems to reflect there were four occasions where you did not test. Then
after you lost your job and your cell phone and such you again didn’t and they dropped
you off of the schedule. And I would imagine the reason is why keep calling him in for
testing if he’s not interested. But at no time during that period did you come forward and
say I’m here. I’m ready to test. It wasn’t until May which is not too long ago. But that’s
an unknown. And the court has to look at that. And so because I don’t know, and there
has been no evidence about that, I just don’t know if you’re in the position where you’re
just—if you just happened to get lucky and you were testing at the time when you hadn’t
been using, or it wasn’t in your system, or if you’re not using, again an unknown. And
the onus was on you to get into the department. Make contact and show, hey, I’m not
using. That’s not an issue for me. Not just to drop out.
“On the flip side if your intention is to prove there is a substantial probability that
you would reunify, the problem with that is that again you haven’t shown that. Certainly

15
you have a job and you have a place to stay, but I have to look at visits and no one has
told me how to get around the fact that you did not visit with your son and still be within
the confines of the law. That’s one of the requirements that you consistently visited with
your child and that just started happening. And I understand it’s only been it was in the
last month and a half. Nothing for six months. So I can’t give you that extra six months
because you have not shown the court through evidence and testimony that is the case
that there is a substantial probability. There is no evidence to that effect. Largely
because of the inconsistent visits. So I again I have to follow the law. It doesn’t again
mean that I’m not sympathetic. And it doesn’t mean that your rights are terminated.
You’re still Steven’s father. You can still make efforts outside of the department services
to show that you are willing and able to have him back in your home. So you should be
speaking with your attorney about that and finding out ways that you can demonstrate
that. But at this time I’m going to follow the recommendation of the Department and
terminate services to the father.”
Richard filed a timely notice of appeal.
Melissa’s 18-Month Review
Four months later, on November 21, 2013, the Department filed an 18-month
review report recommending that the court terminate Melissa’s reunification services and
set a section 366.26 hearing, as she was no longer complying with most requirements of
her case plan. At the 18-month review hearing, the court terminated reunification
services for Melissa, and set a section 366.26 permanency hearing for April 3, 2014.
Richard petitioned for an extraordinary writ, arguing that the juvenile court erred
by setting the permanency hearing while this appeal was pending. On March 5, 2014, we
denied his petition on the merits. (In re Steven P., A140550 [nonpub. opn.].)
DISCUSSION
Richard Did Not Forfeit His Right to Challenge the Court’s Finding That the
Department Provided Reasonable Services
In his first of four arguments, Richard challenges the juvenile court’s finding that
the Department provided reasonable reunification services, contending the finding was

16
unsupported by substantial evidence. The Department disputes the merits of this claim,
but also argues Richard forfeited his right to argue it on appeal by failing to object below
to the sufficiency of the services.6 Before turning to the merits, we address the forfeiture
argument.
As a general rule, an appellate court will not consider a challenge to a ruling that
could have been but was not raised in the trial court. (In re S.B., supra, 32 Cal.4th at
p. 1293.) This forfeiture doctrine has been applied in dependency proceedings in a wide
variety of contexts. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502 and cases there
collected.) This, however, is not such a context.
At the 12-month review hearing, the Department bears the burden of establishing
by clear and convincing evidence that it provided the parent reasonable reunification
services designed to assist him or her in overcoming the problems that lead to the
dependency proceeding. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.) The
court must find that the Department satisfied this burden before it can terminate services.
(In re K.C. (2012) 212 Cal.App.4th 323, 329 [“If, at the 12-month hearing, [the
department] does not prove, by clear and convincing evidence, that it has provided
reasonable services to the parent, family reunification services must be extended to the
end of the 18-month period.”].) The parent’s insufficient evidence challenge to a
mandatory finding such as this is not forfeited by failure to object below. In other words,
even if the parent does not contest the state of the evidence, he or she preserves the right
to challenge it as insufficient to support a particular legal conclusion. (In re Javier G.
(2006) 137 Cal.App.4th 453, 464 [mother did not forfeit her right to argue the
Department did not make reasonable efforts to eliminate the need for removal of her child
because a parent is not required to object to the Department’s failure to carry its burden

6
The Department actually argues that Richard waived this claim by failing to
object below. It has repeatedly been clarified that waiver is the “ ‘ “intentional
relinquishment or abandonment of a known right,” ’ ” while forfeiture refers to the “loss
of a right based on failure to timely assert it . . . .” (In re S.B. (2004) 32 Cal.4th 1287,
1293, fn. 2.)

17
of proof]; In re Brian P. (2002) 99 Cal.App.4th 616, 622–623 [a parent is not required to
object to the agency’s failure to carry its burden of proof]; see also Tahoe National
Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [“contention that a judgment is not
supported by substantial evidence . . . is an obvious exception to the [forfeiture] rule.”].)
The Department’s forfeiture claim thus lacks merit.
While Richard did not forfeit his challenge by lack of objection below, the
services he can challenge in this appeal are limited. He appeals from the 12-month
review order, contending the services for that reporting period—in other words, from six
months to 12 months—were unreasonable. This argument is timely. (§ 395.) He also
challenges past conduct of the Department, claiming inadequacy of the initial case plan,
and also identifying other alleged deficiencies pertaining to his substance abuse
obligations during the first reporting period. The disposition and six-month review
orders were both appealable orders. (§ 395.) Richard was obligated to appeal from those
orders to challenge any purported wrong doings at those junctures. He did not do so, and
his attempt to do so from the 12-month review order is improper. (Steve J. v. Superior
Court (1995) 35 Cal.App.4th 798, 812 [father forfeited his right to object to the
disposition and six-month review orders when he failed to challenge those orders until he
appealed from the termination of his services at the 12-month review]; see also In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1151 [“an appellate court in a dependency
proceeding may not inquire into the merits of a prior final appealable order on an appeal
from a later appealable order . . . .”].) Thus, the only services we examine for adequacy
are those offered—perhaps more accurately, not offered—during the second reporting
period.
The Juvenile Court’s Finding at the 12-Month Review that the Department
Provided Reasonable Services Was Unsupported By Substantial Evidence
We review the juvenile court’s finding of reasonable services for substantial
evidence. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; In re Joanna Y.
(1992) 8 Cal.App.4th 433, 439.) We must determine whether there is any substantial
evidence, contradicted or not, to support the court’s conclusion. (In re Katrina C. (1988)

18
201 Cal.App.3d 540, 547.) Substantial evidence is “evidence which is reasonable,
credible and of solid value . . . .” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Applying this standard here, we conclude the juvenile court’s finding that the Department
provided Richard reasonable reunification services cannot stand.
Reunification services, which play a critical role in dependency proceedings, must
be tailored to the particular needs of the family. (§ 361.5; In re Alanna A. (2005)
135 Cal.App.4th 555, 563; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793.)
We thus judge the reasonableness of the Department’s reunification efforts according to
the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,
1164.) To support a finding reasonable services were offered or provided, “the record
should show that the supervising agency identified the problems leading to the loss of
custody, offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made reasonable
efforts to assist the parents in areas where compliance proved difficult . . . .” (In re Riva
M. (1991) 235 Cal.App.3d 403, 414.) “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.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Richard points to the dearth of housing-related services as evidence that the Department
failed to provide reasonable services in his case. The record supports his contention.
The Department knew as far back as the time of jurisdiction that Richard did not
have stable housing. It observed in its jurisdiction report, “The father appears to move
around frequently, change his telephone frequently, and has not had consistent
employment history. The father does not appear to be in a position to provide stability
for Steven at this time.” The same was true at the time of disposition when, in its
disposition report, it observed, “[T]he father understands that he does not have a home for
Steven. He wants to obtain appropriate housing, a stable and consistent job and support
for his parenting.” Given this lack of suitable housing, the Department specified
“[o]btain and maintain a stable and suitable residence for yourself and your child” as one
of Richard’s reunification objectives in his initial case plan. Despite this, the Department

19
offered Richard no services during the first reporting period to assist him complete this
component of his plan.
It is not surprising, then, that at the time of the six-month review Richard was still
struggling to find suitable housing. As the Department described it in its six-month
review report, “The father continues to struggle in finding a permanent place to live. The
father has stated that his family is not willing to help him because his child is in the Child
Welfare system. The father has lived in two different places this reporting period and
will move again shortly. . . . The father has also stated that he is actively looking for an
apartment to rent so that he can have a suitable and safe place for he and Steven to live
in.” And when it discussed Richard’s compliance with the specific objectives of his
reunification plan, the Department represented that Richard was in compliance with most
of his objectives, except he was “Not in compliance” with the requirement that he obtain
a “stable, safe, and sanitary place” to live with Steven.
Despite that housing was one of the few case plan requirements with which
Richard had not complied at the time of the six-month review, the Department still
offered him no assistance in finding housing during the second review period. Having
identified lack of stable housing as an obstacle to reunification, the Department was
obligated to “offer[] services designed to remedy [that] problem. . . .” (In re Riva M.,
supra, 235 Cal.App.4th at p. 414.) There is no indication in the record that the
Department referred Richard to a housing agency, offered to pay his first or last month’s
rent or deposit, or made any other similar attempt to help him find a suitable place to live.
And it seems clear that he needed such assistance, as his downward spiral, apparently
instigated by a job loss, was compounded by homelessness. In light of this record, we
must conclude that the juvenile court’s finding of reasonable services lacked sufficient
evidentiary support.
While the lack of housing services alone supports our conclusion, we also agree
with Richard’s contention that the Department failed to provide him with reasonable
transportation services, which might have enabled him to continue his visitations with
Steven. In its July 26, 2012 disposition report, the Department acknowledged that

20
Richard did not have reliable transportation. Yet there is no indication in the record that
it provided Richard with transportation assistance until nearly a year later (after Richard
had lost and then resumed contact with the Department), when it finally provided him
with a bus pass.
The Department’s response to Richard’s argument consists of this in its entirety:
“Appellant complains that the services provided by the Department were legally
insufficient because he was not offered housing or transportation assistance. As indicated
in the Disposition Report, Appellant had a Section 8 housing voucher, [citation] and
therefore was not in need of assistance in that regard. Regardless of whether Appellant
lost his Section 8 housing voucher at some point in the process, a fact not disclosed in the
record, he had the wherewithal to reapply for such, as he previously had successfully
done so. In addition, Appellant was in fact provided bus passes to assist with his
transportation issues [citation]. Appellant participated in his case plan [citation], argued
for a modification of the plan at the disposition hearing [citation] and submitted to the
amended plan at that time. Further, Appellant was advised at that and subsequent
hearings that failure to comply with the reunification plan could result in termination of
services. [Citations.] At no time did Appellant argue that he would be unable to
participate in the plan because he needed bus passes and housing assistance.”
The referenced passage in the disposition report explains that Richard had a
section 8 housing voucher when he, Melissa, and Steven were still living together as a
family—before the dependency proceeding commenced. Nothing in the record suggests
that he had similar housing assistance at the time of the dependency. And dismissively—
and presumptively—claiming that because Richard had apparently obtained a section 8
housing voucher some time in the past, he was fully capable of doing so again ignores the
Department’s fundamental duty to provide Richard with services to help him alleviate the
obstacles to reunification, obstacles that unquestionably included housing. And as to the
bus pass, this was not provided until May 2013, after Richard had fallen out of contact
and then reengaged with the Department.

21
 We note that at the 12-month review, counsel for Steven supported the
continuation of services to Richard, asking the court to give him another chance because
reunification would be beneficial for Steven. She noted that Richard completed the anger
management program as required, had never failed a drug test, was back in contact with
the Department, and had a suitable home and stable employment. She empathized with
his prior plight, stating that she, too, would have been depressed if she had lost a job and
become homeless. But looking at “what he’s doing now and where his heart is at now,”
she believed Steven “would be far better off with two parents getting services.” And, she
queried, since Melissa was receiving six more months of service, “[w]here is the harm” in
extending services for Richard? We are aware that the best interest of the child is not the
issue before us, but we nevertheless believe that the opinion of the minor’s counsel must
count for something.
We are not unmindful that shortly after the six-month review hearing, Richard
ceased participating in his case plan, dropping out of touch with the Department for over
four months. Indeed, we are deeply troubled that when Richard encountered a difficult
situation, he skipped out on his responsibilities—and his young son—rather than reaching
out to the Department for help. But, this fact goes to the question of Richard’s
compliance with his case plan, an issue we do not reach given that Richard challenges the
reasonableness of services provided by the Department.
We cannot know whether the outcome would have been different had the
Department provided the services it had a duty to provide. Since Richard ceased
participating in his reunification plan shortly after the six-month review, it is possible that
no amount of services during the second reporting period would have enabled Richard to
reunify with Steven. But, again, the question before us is not whether Richard availed
himself of the services provided, but rather whether the Department provided those
services in the first place. It did not.
In light of our conclusion, we need not reach the three alternative theories Richard
asserts.

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 DISPOSITION
The order terminating services is reversed with directions to afford Richard
additional services unless new circumstances prevailing upon remand support a finding
that services are unwarranted. The order setting the section 366.26 permanency hearing
for April 3 is vacated.

_________________________
Richman, J.

We concur:

_________________________
Kline, P.J.

_________________________
Haerle, J.

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