Christopher Blake, San Diego, under appointment by the Court of Appeal, for Minor.

Certified for Partial Publication. [1]

HALLER, Associate Justice.

David P., the father of Joshua M., appeals from a juvenile court order that denied him reunification services under Welfare and Institutions Code [2] section 361.5, subdivisions (b)(10) and (12). David contends the denial of services constituted an unfair retroactive application of these newly enacted provisions that denied him due process. He further contends section 361.5, subdivision (b), violates constitutional protections of due process and equal protection because it discriminates against those individuals who cannot afford to pay for private reunification services.

David also argues the court abused its discretion in denying him visitation with Joshua.

This is the second dependency proceeding for Joshua, who was born on July 21, 1992. Joshua is the son of David and Tina M. David and Tina also are the birthparents of another boy, born on August 21, 1990, who tested positive for methamphetamine at birth and became a dependent child. David was incarcerated at the time. The parents failed to reunify, and, on December 1, 1992, their parental rights were terminated as to the older boy, who was adopted by his foster mother.

In Joshua's first dependency proceeding, the Department of Social Services (Department) filed a petition under section 300, subdivisions (b) and (g), on August 23, 1993. The petition alleged Joshua had been residing with Tina in a hotel room full of electrical appliances that posed a danger to him, he had attempted to put his hand in boiling water and his parents were incarcerated and unable to arrange care for him.

Joshua was declared a dependent after David and Tina submitted on the petition and the court found the allegations true. Custody was removed from the parents, who were ordered to comply with a reunification plan. David's plan required him to complete a parent education program, attend therapy, participate in a 12-step substance abuse program and drug test.

David had completed a number of the requirements of his reunification plan while incarcerated. Joshua was ordered detained with David on May 5, 1994, on the condition David cooperate with family preservation workers, continue to drug test for an additional 60 days, and enroll in, attend, and complete an anger management course.

Although David's subsequent compliance with his reunification plan was uneven, the social worker reported Joshua appeared to adjust well to David's care. At the time of the six-month review report, the Department was considering recommending jurisdiction be terminated, but David was arrested in December 1994, and Joshua was placed in foster care again.

After Tina's release from custody in April 1994, her whereabouts were unknown for several months. However, in the first two months of 1995, Tina complied with the requirements of her reunification plan, and the Department recommended detaining Joshua with Tina. In October 1995, the court issued exit orders awarding Tina physical custody of Joshua and David supervised visits with a neutral party; David was restrained from having any other contact with Tina or Joshua.

David was arrested in October 1995 for receiving stolen property. Upon conviction, he was sentenced to 16 months in prison. On December 16, 1995, a baby girl, Gina P., was born to David and his girlfriend, Regina P. David was released from prison on August 6, 1996.

David was arrested again on December 17, 1996, after he threatened to beat up Regina and ripped the telephone out of the wall. He pled guilty to a felony count of making terrorist threats. [3]

On May 4, 1996, Tina was arrested for public intoxication and possession of a controlled substance; she was released on May 7. Tina was arrested on October 28, 1996 and subsequently convicted of burglary. Upon her arrest, Tina left Joshua with a roommate; they were living in a motel room. Later, Joshua's 18-year-old half-sister, Cyrene M., took him in. Joshua had a bad case of head lice. Cyrene repeatedly advised Tina that she was unable to care for her halfbrother.

By January 1997, Cyrene could no longer care for Joshua, and the Department took Joshua into protective custody on January 8, 1997. At the time, Joshua was in soiled clothing, and he had visible cavities in his teeth. Subsequently, a dentist found five cavities requiring two root canals. Also, it was later determined that Joshua was suffering from two types of parasitic infections. Although he was four and one-half years old, Joshua did not recognize colors, shapes or letters.

On January 13, 1997, the Department filed a petition alleging under section 300, subdivision (b):

and under section 300, subdivision (g):

David, who was in local custody, was present at a dependency hearing on February 13, 1997, and the court permitted him to have telephone contact with Joshua. David asked the social worker to personally read his letters to Joshua because David did not trust the foster mother to do so, but the social worker did not receive any letters from David while he was in custody.

David was released from custody on March 27, 1997, and resumed living with Regina. On April 1, David tested positive for methamphetamines.

On April 28, 1997, Department filed an amended petition on behalf of Joshua, adding the following allegations concerning David under section 300, subdivision (b):

The amended petition contained the following allegation concerning David under section 300, subdivision (g):

On April 29, 1997 and May 12, 1997, David tested positive for marijuana. On May 29, 1997, David was arrested for possession of methamphetamine and a syringe.

At the June 13, 1997 jurisdictional hearing, Tina submitted to the allegations of the petition. David, who was present with counsel, contested jurisdiction. Social worker Elizabeth Morgan testified she did not place Joshua with David after David was released from custody because of her concerns about his ability to care for the minor. She cited David's criminal history, drug use, domestic violence with Regina, his positive drug tests and the child protective services history. The court sustained both counts of the petition by clear and convincing evidence.

The contested dispositional hearing was held on four days in August 1997. [4] The foster mother testified David had called once and sent two letters. Joshua was willing to talk to David but he was not very responsive. Joshua said he did not want to visit his parents.

Joshua's therapist, Debbie Brown, testified that during play therapy Joshua showed fear of David and talked about violence he had witnessed between David and Tina and/or Regina. The most important issue for Joshua, who had been in nine placements, was a sense of trust that adults will take care of him and protect him, according to Brown. Brown opined David should undergo therapy to gain an understanding of his impact on Joshua; visitation between David and Joshua would be appropriate after David's therapist indicated David could interact appropriately with Joshua. Brown also said visitation should begin in a safe environment.

Social worker Morgan recommended neither Tina nor David receive reunification services. With respect to David, Morgan cited his long-term and continued drug use, frequent incarcerations and unstable life-style. Morgan testified David lied to her and accused her of "wanting to adopt his son away from him."

There was also testimony regarding David's attempts to treat his substance abuse and other problems that led to the removal of Joshua's older half-brother in 1990. Sharon Lubert, the social worker on the 1990 dependency case, testified upon David's release from prison in August 1991 he participated in reunification services for only a few weeks. David initially was to drug test at San Diego Health Alliance, but that was changed because of his work schedule. David was supposed to test at North Inland Recovery Center, which had later hours, but he never went there. Lubert gave David referrals to drug rehabilitation programs, but he never enrolled in one.

Jacquie Ayadi, the supervising social worker in Joshua's first dependency proceeding, testified that in May 1994 Joshua was detained with David, who had been receiving services in prison, even though David had tested positive for cocaine in March 1994. At one point, the Department could not locate David and Joshua. By December 1994, David was no longer participating in his maintenance plan.

Morgan testified she had no evidence David had completed a drug program since Joshua's first dependency. Morgan also stated David was offered a reunification plan in Gina's dependency case, which was ongoing, and he continued to test positive for drugs.

The court declared Joshua a dependent and removed custody from the mother as custodial parent and from David as the noncustodial parent requesting custody. The court found by clear and convincing evidence that reasonable efforts had been made to prevent removal from the parents.

Pursuant to section 361.5, subdivisions (b)(10) and (12), the court ordered no reunification services were to be provided to David. Services were to be provided to Tina if she wanted them.

On September 15, 1997, the court ordered a specific reunification plan for Tina. The court also ordered no visitation for David would occur until the child's therapist determined it was in Joshua's best interest. The court also gave the social worker the discretion to permit telephone and letter contact with the concurrence of Joshua's therapist.

David contends it was error to deny him reunification services under section 361.5, subdivisions (b)(10) and (12), because these newly-enacted statutory provisions were unfairly applied to him retroactively. David also contends section 361.5, subdivision (b) is invalid because it discriminates against people who cannot afford reunification services, thereby violating constitutional guarantees of due process and equal protection under the law.

Notwithstanding the crucial role of reunification services when a child is removed from the home (see In re Jamie M. (1982) 134 Cal.App.3d 530, 545 , 184 Cal.Rptr. 778 ), the Legislature, by enacting section 361.5, subdivision (b), has discerned "it may be fruitless to provide reunification services under certain circumstances." ( In re Rebecca H. (1991) 227 Cal.App.3d 825, 837 , 278 Cal.Rptr. 185 ; see also Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750 , 50 Cal. Rptr.2d 858 .) In Deborah S. v. Superior Court., supra, 43 Cal.App.4th at page 751 , 50 Cal.Rptr.2d 858 , the Court of Appeal noted: "Inherent in this subdivision appears to be a very real concern for the risk of recidivism by the parent despite reunification services."

As originally enacted in 1986, section 361.5, subdivision (b), provided the court had the discretion not to order reunification services, if it was shown by clear and convincing evidence that: the parent's whereabouts were unknown; the parent suffered from a mental disability rendering him or her incapable of using the services; the child, who previously was adjudicated a dependent as a result of physical or sexual abuse, was being removed from the home a second time because of additional physical or sexual abuse; the parent had caused the death of another minor through abuse or neglect; or the child was under the age of 5 and had suffered severe physical abuse. (Stats.1986, ch. 1122, § 13, pp. 3984-3986.)

At issue here is 1996 legislation that expanded the number of circumstances under which the juvenile court can deny reunification services. (Stats.1996, ch. 1083, § 2.5, pp. 5871-5872.) In particular, we are concerned with section 361.5, subdivisions (b)(10) and (12), which provides:

Subdivisions (b)(10) and (12), became effective January 1, 1997.

David contends it was reversible error to deny him reunification services under section 361.5, subdivisions (b)(10) and (12), based on conduct which occurred before the effective date of these provisions. The contention is without merit.

Under section 361.5, subdivisions (b)(10) and (12), reunification services may be denied if a parent was unsuccessful in reunifying with a sibling or half-sibling or unsuccessful in treatment of a long-standing substance abuse problem. Both provisions, therefore, rely upon the parent's past failure to either reunify with the child's sibling or comply with a substance abuse program.

Joshua's second dependency petition was filed on January 13, 1997, approximately two weeks after subdivisions (b)(10) and (12) became effective. Thus, the relevant question is whether David's past conductconduct that occurred before the law was in effectcan properly be used to cut off his reunification services.

The answer is yes.

"It is well settled that `[a] statute does not operate retroactively merely because some of the facts or conditions upon which its application depends came into existence before the enactment.' [Citation.]" ( Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 613 , 194 Cal.Rptr. 294 .)

The statute's reliance upon antecedent events or conduct is analogous to recidivism provisions in the Penal Code, such as the Three Strikes law and other habitual offender laws, that enhance punishment because the defendant has committed other crimes in the past.

As the court noted in People v. Venegas (1970) 10 Cal.App.3d 814, 823 , 89 Cal.Rptr. 103 , "A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation."

David's principal argument is that statutes are prospective rather than retroactive [5] unless the Legislature clearly intends retroactivity. We have no quarrel with this premise, which correctly states general law. (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 153 , 233 Cal.Rptr. 308 , 729 P.2d 743 .) However, in this case the argument is unavailing as we conclude the Legislature clearly intended section 361.5, subdivisions (b)(10) and (12), to be triggered by prior dependency proceedings or other events occurring before these provisions were enacted.

Section 361.5 reflects the Legislature's desire to provide services to parents only where those services will facilitate the return of children to parental custody. The exceptions in subdivision (b) to the general mandate of providing reunification services "demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child's interest." ( In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 , 73 Cal.Rptr.2d 793 .) Certainly, it cannot serve a child's best interest to unnecessarily prolong the lengthy dependency process when there is no chance of successful reunification because of circumstances that make it "fruitless to provide reunification services...." ( In re Rebecca H., supra, 227 Cal.App.3d at p. 837 , 278 Cal.Rptr. 185 .)

Furthermore, in construing legislative intent, it is important to consider all sections of the statute. ( Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 , 110 Cal.Rptr. 144 , 514 P.2d 1224 .) Section 361.5, subdivision (a) requires the provision of reunification services to parents. Subdivision (b) lists various circumstances in which the requirement need not be met. Subdivision (c) provides guidance to the court in determining whether reunification services are likely to succeed. [6]

Subdivision (c) explicitly permits the juvenile court to consider such antecedent conduct as "failure to respond to previous services" or "a past history of violent behavior" in deciding whether reunification services are likely to be unsuccessful in the current dependency proceeding. Thus, the Legislature, in fashioning limitations to the general mandate of providing reunification services, has historically included antecedent events or past behavior as legitimate criteria.

Our interpretation of section 361.5, subdivisions (b)(10) and (12)that the Legislature intended these provisions to be triggered by prior dependency proceedings that occurred before January 1, 1997thus gives effect to, and harmonizes, all parts of section 361.5, including subdivision (c). ( Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d at p. 230 , 110 Cal.Rptr. 144 , 514 P.2d 1224 .) Also, our interpretation of subdivisions (b)(10) and (12) in the context of the rest of the statute does not yield an absurd or arbitrary result. ( DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18 , 194 Cal. Rptr. 722 .) Moreover, the basic purpose of section 361.5, subdivision (b)to limit reunification services to situations where they are likely to be successfulwould be frustrated by a construction that did not take into account a parent's historical circumstances, such as past failures of the parent in previous dependency proceedings.

Further, in an era of limited resources it is not only reasonable but prudent as well to focus reunification efforts on those cases most likely to succeed. (See Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159 , 164, 64 Cal.Rptr.2d 33 [when one of the exceptions in subd. (b) applies, the general rule favoring reunification is replaced by legislative assumption that offering services would be unwise use of government resources].) Therefore, "as a matter of public policy, this exception to the general rule favoring reunification services appears neither absurd nor arbitrary." ( Deborah S. v. Superior Court, supra, 43 Cal.App.4th, at p. 751 , 50 Cal.Rptr.2d 858 , citing Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733 , 114 Cal.Rptr. 460 , 523 P.2d 260 .)

In sum, there was no impermissible retroactivity in applying section 361.5, subdivisions (b)(10) and (12), to Joshua's dependency even though the circumstances that activated these provisions took place before January 1, 1997. Contrary to David's position, the critical date is not that of the antecedent events or behaviors that trigger subdivisions (b)(10) and (12), but rather the date the current dependency petition was filed.

David also argues the retroactive application to his past conduct constituted a denial of due process because he was not timely informed that termination of his parental rights as to Joshua's brother could later deny him reunification services for any subsequent dependent child.

Procedural due process focuses upon the essential and fundamental elements of fairness of a procedure that would deprive an individual of important rights. As stated in Fuentes v. Shevin (1972) 407 U.S. 67 at page 80, 92 S.Ct. 1983 , 32 L.Ed.2d 556 :

Initially, we observe subdivision (c) of section 361.5 (see fn. 6, ante ) provides for procedural safeguards. Further, we agree with In re Baby Boy H., supra, 63 Cal. App.4th 470 , 73 Cal.Rptr.2d 793 , in which the Court of Appeal rejected a due process attack on section 361.5, subdivision (b)(10).

We find this reasoning persuasive and adopt it.

David contends section 361.5, subdivision (b), violates constitutional guarantees of due process and equal protection because it discriminates against indigent parents who cannot afford to pay for reunification services on their own and thereby have virtually no chance to reunite with their children as opposed to non-indigent parents who can pay for private services if the government services are denied. David's argument is based on a recent United States Supreme Court case, M.L.B. v. S.L.J. (1996) 519 U.S. 102 [ 117 S.Ct. 555 , 136 L.Ed.2d 473 ], which held the appeal of an order terminating parental rights cannot be conditioned on the appellant's prepayment of record preparation fees. Before addressing David's specific constitutional argument,' we shall set forth the relevant principles of constitutional law and demonstrate section 361.5, subdivision (b) is constitutional on its face.

Our Supreme Court has discussed constitutional rights in the juvenile dependency context as follows:

Under the equal protection clause, "[a] classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'" ( Reed v. Reed (1971) 404 U.S. 71, 76 , 92 S.Ct. 251 , 30 L.Ed.2d 225 .) However, only where the state has adopted "a classification that affects two or more similarly situated groups in an unequal manner" are equal protection rights implicated. ( In re Eric J. (1979) 25 Cal.3d 522, 530 , 159 Cal.Rptr. 317 , 601 P.2d 549 , italics omitted.)

In assessing the constitutionality of section 361.5, subdivision (b), we consider its purpose and how it operates within the context of the statutory scheme.

We conclude subdivision (b) of section 361.5 comports with due process. With respect to procedural due process, section 361.5, subdivision (c) requires the court to hold a dispositional hearing and the probation officer to submit a report on whether reunification services should be provided. As to substantive due process, subdivision (b) represents a reasonable and rational means to advance a prime purpose of juvenile court lawproviding protection and stability to dependent children in a timely fashionby efficiently allocating scarce reunification services.

As the Court of Appeal in In re Baby Boy H., supra, 63 Cal.App.4th at page 478 , 73 Cal.Rptr.2d 793 , observed:

In In re Christina A. (1989) 213 Cal.App.3d 1073 , 261 Cal.Rptr. 903 , the Court of Appeal upheld the constitutionality of section 361.5, subdivision (b)(2), which permits the cut-off of reunification services if the parent is mentally incapable of utilizing such services. With respect to the equal protection claim, the Court of Appeal observed:

We agree with the reasoning of Christina A. and adopt it.

In M.L.B. v. S.L.J., supra, 519 U.S. at page 107 , 117 S.Ct. at page 559 , the United States Supreme Court held a state violates due process and equal protection when it conditions appeals from trial court orders terminating parental rights on the affected parent's ability to pay record preparation fees.

After petitioner's parental rights to two minor children were terminated, she sought to appeal the termination decree but the State of Mississippi required she pay in advance record preparation fees estimated at $2,352.36. Petitioner's appeal was dismissed because she lacked the money to pay the fees. ( Ibid. )

In ruling that Mississippi may not block an indigent parent's access to an appeal of a parental termination order because of her poverty, the high court "plaee[d] decrees forever terminating parental rights in the category of cases in which the State may not `bolt the door to equal justice.' [Citation.]" ( M.L.B. v. S.L.J., supra, 519 U.S. at p. 124 , 117 S.Ct. at p. 568 .)

The high court relied on two lines of cases: (1) those holding appellate review of criminal cases cannot be denied on the basis of poverty (see, e.g., Griffin v. People of the State of Illinois (1956) 351 U.S. 12 [ 76 S.Ct. 585 ], 100 L.Ed. 891 ; Mayer v. City of Chicago (1971) 404 U.S. 189 , 92 S.Ct. 410 , 30 L.Ed.2d 372 ); and (2) those recognizing that interest of parents in their relationship with their children is a fundamental liberty right protected by the Fourteenth Amendment (see Lassiter v. Department of Social Services (1981) 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 ; Santosky v. Kramer (1982) 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 ).

Because of the primacy of the parent-child relationship, the high court found the petitioner's interest at stakemaintaining a parental relationship with her childrenoutweighed Mississippi's justification for requiring the records feethe state's need for revenue to offset costsand deserved the same heightened protection afforded to criminal cases, where access to appellate review cannot be denied to indigents. ( M.L.B. v. S.L.J., supra, 519 U.S. at pp. 119-124, 117 S.Ct. at pp. 565-568.)

M.L.B. v. S.L.J., supra, 117 S.Ct. 555 , however, has little to do with this case and does not advance David's appeal.

We begin by noting this case is not about David's access to an appeal or to any other judicial process. It is about the state's decision to stop providing him reunification services, which points to another distinction: This case is not about an order terminating the parent-child relationship. [7]

David's attempts to convince us otherwise are unavailing. David argues that without reunification services "he is denied the exclusive means by which he can reunify with Joshua" and "he will have no realistic way of convincing the court he is fit to regain custody of Joshua when the case is reviewed in six months." The law simply does not compel such dire consequences.

At the relevant time, subdivision (f) of section 361.5 read in pertinent part:

So long as Tina is being provided reunification services, David will have the opportunity to address his drug and other problems affecting his parenting. [8] Moreover, the parent-child relationship is not necessarily terminated at the permanency planning hearing. (See § 366.26.)

Section 361.5, subdivision (b), does not treat indigents differently from non-indigents. It does not withhold government services on the basis of an invidious classification distinguishing the rich from the poor. Section 361.5, subdivision (b), is facially neutral; it creates no classification. Moreover, this statutory provision does not directly affect the fundamental right of maintaining the parental relationship, but rather concerns the provision of governmental services. Reunification services are a benefit, and there is no constitutional "entitlement" to these services. ( In re Christina A., supra, 213 Cal.App.3d at pp. 1078-1079, 261 Cal.Rptr. 903 .) In short, section 361.5, subdivision (b), which is neutral on its face and is designed to serve neutral ends, does not violate equal protection principles simply because David postulates a negative result down the line.

David was not denied reunification services because he is indigent; he was denied those governmental services because the court found, after a hearing and by clear and convincing evidence, that section 361.5, subdivisions (b)(10) and (12), applied by virtue of David's failure to reunite with his other son and his noncompliance with substance abuse programs. The legislative determination that reunification services should not be afforded in such circumstances had nothing to do with indigency.

Section 361.5, subdivision (b), also does not violate the constitutional guarantee of due process of law. The statute incorporates the constitutional standard of clear and convincing proof as required in parental termination proceedings by Santosky v. Kramer, supra, 455 U.S. at pages 768, 102 S.Ct. 1388 to 770. David was represented by counsel below, as he is on appeal; accordingly, the issues raised by Lassiter v. Department of Social Services, supra, 452 U.S. 18 , 101 S.Ct. 2153 , are not implicated. Finally, section 361.5, subdivision (b), can only be invoked after a hearing for which the probation officer must prepare a report. (§ 361.5, subd. (c).)

Affirmed.

KREMER, P.J., and HOWATT, [**] JJ., concur.

[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part III.

[2] All statutory references are to the Welfare and Institutions Code.

[3] In February 1997, the Department took Gina into protective custody and filed a petition alleging she was in need of juvenile court protection because of Regina's drug use and general neglect and David's incarceration. In April, the court declared Gina a dependent and removed custody from Regina and David. David was granted supervised visits with Gina and ordered to participate in reunification services, which included drug testing, drug treatment and parenting classes.

[4] We need not relate the testimony as it pertained to Tina since she is not a party to this appeal.

[5] For a definition of retroactive, see In re Cindy B. (1987) 192 Cal.App.3d 771, 779 , 237 Cal.Rptr. 677 : "The retroactive application of a statute is one that affects rights, obligations or conditions that existed before the time of the statute's enactment, giving them an effect different from that which they had under the previously existing law. [Citations]." In other words, retroactive application of a recently enacted law applies "the new law of today to the conduct of yesterday." ( Pitts v. Perluss (1962) 58 Cal.2d 824, 836 , 27 Cal.Rptr. 19 , 377 P.2d 83 .)

[6] At the relevant time, section 361.5, subdivision (c) provided: "In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The probation officer shall prepare a report which discusses whether reunification services shall be provided.... [¶] The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (8), (9), (11), or (12) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the minor.... [¶] The failure of the parent to respond to previous services, the fact that the minor was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent's behavior is unlikely to be changed by services are among the factors indicating that reunification services are unlikely to be successful. The fact that a parent or guardian is no longer living with an individual who severely abused the minor may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the minor to repeated abuse." (Stats.1996. ch. 1083, § 2.5, pp. 5872-5873.)

[7] Another distinction is the legislation in M.L.B. v. S.L.J., supra, 117 S.Ct. 555 , exacted a fee, while here the legislation denies a governmental service.

[8] We also note that the visitation order allowed David to contact Joshua by telephone or letter something David had done very little of in almost three years. Even without reunification services, David could re-establish contact with Joshua and presumably if this went well it could lead to visitation, which in turn could open other potential avenues to reunification.

[*] See footnote*, ante.

[**] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.