Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05JU038A & 05JU038B
NICHOLSON, J.
T.C., mother of the minors, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to this code].) Appellant’s arguments are confined to those raised in her prior petition for extraordinary writ which challenged the setting of the selection and implementation hearing. (Cal. Rules of Court, rule 8.452.) We affirm.
FACTS
Health and Human Services (HHS) filed a nondetaining petition in June 2005 as to B.C., age four, and A.C., age two, due to serious domestic violence and verbal abuse by both parents resulting from alcohol abuse. The court sustained the petitions in late June 2005.
The disposition report stated referrals to services had been made and appellant was cooperative and participating in programs. HHS concluded the parents could care for the minors if they remained sober and participated in counseling to eliminate the violence. HHS recommended an in-home dependency but, before the hearing, appellant was hospitalized for injuries from an assault and, while there, tested positive for methamphetamine. The court declared the minors dependents and adopted the recommended case plan with an additional requirement for drug and alcohol testing and treatment.
A week later, on July 18, 2005, HHS detained the minors and filed a supplemental petition because of continued domestic violence and verbal abuse in the home, as well as the parents’ failure to seek treatment for B.C.’s broken nose. The jurisdiction report stated the parents did not understand the effects their behavior had on the minors and had made minimal efforts to comply with the case plan. The removal was difficult for B.C., who reacted with violent emotion following visits and telephone calls with the parents but over time was able to be comforted by the social worker and her foster mother. A.C. was emotionally more stable, reacting to visits but not telephone calls and looked to B.C. for emotional support. The disposition report stated service referrals were made for various programs and services but that the parents’ cooperation fluctuated. A temporary restraining order for the protection of the social workers was issued as a result of both parents’ negative outbursts. The court sustained the petition, adopted a case plan, and set review hearings.
The three-month review report stated the father stopped attending the batterer’s program, apparently in retaliation for visitation issues, and failed to follow visitation guidelines, inter alia, by discussing the case with the minors. Appellant went to a recovery program, but left and returned to the father, and declined to attend a six-month inpatient treatment program. The minors continued to act out after contact with parents but were peaceful when no contact occurred. Appellant had missed most of her drug tests but was attending domestic violence classes and therapy. Despite a legal separation, appellant returned to live with the father and the two engaged in a “mutual combat incident.” The parents’ aggression led to both a relative and the foster parents declining to facilitate weekend visits. Both parents made baseless complaints about the minors’ care. The report recommended further services although there were concerns about lack of cooperation, the father’s inability to consider the emotional welfare of the minors, and the ongoing domestic violence. The court ordered further services.
The six-month review report stated the minors were doing well in a new placement and had begun overnight visits. Appellant had relapsed into alcohol use, the second time in five months, but left the home pursuant to the case plan and was referred to services. Appellant continued to miss drug tests and her attendance at the domestic violence program had decreased. Sporadic progress in key services remained a major problem. At the review hearing, the court ordered further services, including a six-month dual diagnosis, inpatient treatment program for appellant, and found reasonable services were provided and that it was probable the minors would be returned if services were extended six months.
The 12-month review report, filed in July 2006, recommended returning the minors to the parents under a family maintenance plan with supervision. The minors had been placed with appellant while she was in the residential treatment program. Both parents were making good progress and the minors were doing well. The final report from appellant’s treatment program stated she had attended all groups and meetings and appeared to have an understanding of 12-step recovery but continued to have problems with daily structure and monitoring the minors. The father’s therapist reported he had completed his counseling but expressed concern about appellant’s return to the home after her rehabilitation and the potential for increased stress due to reunification.
At the review hearing, appellant admitted she was recently seen trying to buy beer. Minors’ counsel noted that, according to recent information from the rehabilitation program, appellant had some regression at the end of her time there. Court adopted both a family maintenance plan and HHS’s recommendations, which included a finding reasonable services were provided.
Approximately six weeks later, in September 2006, HHS filed a subsequent petition due to the parent’s ongoing alcohol use and domestic violence which led to A.C. being injured during a fight between them. The minors were again detained and HHS was ordered to develop a service plan and a visitation schedule, but visitation was at the discretion of HHS. At the jurisdictional hearing, the parties stipulated to jurisdiction and to setting a selection and implementation hearing with a permanent plan of guardianship with a paternal uncle and aunt.
By early November 2006, the basis for the stipulation had disintegrated because the proposed guardians were now unwilling to raise the minors and the court set a jurisdictional hearing on the subsequent petition. However, the prospective guardians reconsidered and at a hearing in late November 2006, the selection and implementation hearing was reset. By the hearing on January 22, 2007, the stipulation was no longer in effect and the minors had been removed from the relative placement. The court again set a jurisdictional hearing and ordered HHS to provide services to the parents.
The court sustained the subsequent petition in February 2007 but denied the parents’ requests for an order for a specific visitation schedule, in part, because the dispositional hearing would be set within days. The dispositional hearing was continued several times. At one of the continued hearings, on March 26 2007, the parents again raised the issue of visitation and the court denied further visitation based upon the parents’ conduct which led to the filing of the subsequent petition and the stipulation in October 2006.
In the disposition report, HHS recommended denial of further services pursuant to section 361.5, subdivision (b)(3). The report stated the minors were now placed in separate homes. A.C. showed some significant behavioral problems after removal from the home in September 2006, but in his current placement, the behaviors had diminished except when he was in his sister’s presence or asked to discuss his family. B.C. had adjusted to her new placement and displayed no behavioral problems but had symptoms of exposure to domestic violence, including nightmares and fear of being hit. She expressed a desire to remain in her current placement. The report stated both minors suffered from years of exposure to violence and alcohol abuse and asked to remain in their current placements. In addition to denial of services, HHS recommended there be no further visitation. Due to the recommendation, no new case plan for services to appellant was prepared. However, the prior plan for family maintenance services requiring appellant to continue with therapy, domestic violence classes, random substance abuse testing, and a 12-step program apparently remained in effect.
At the contested dispositional hearing on April 30, 2007, appellant testified she had a long-term alcohol problem and was currently in counseling, had a 12-step sponsor, and had been sober for seven months. She had not been offered services after the minors’ removal and her last visit was in December 2006. She said she quit the domestic violence program because the program released her information to HHS.
The social worker testified that after the September 2006 detention, HHS’s efforts were focused on transportation to visits, not reunification because the focus was on permanency for the minors and he was not told to reinstate services and none were offered. He testified he observed appellant buying two 40-ounce beers in December 2006.
Services in this case, with the exception of assistance with transportation, meant referrals to third-party providers.
Appellant argued there had been no reasonable services offered since the stipulation failed and asked the court to reinstitute a reunification plan. The court, finding section 361.5, subdivision (b)(3), did not apply, ordered reunification services and continued the hearing for submission of proposed findings and orders.
An addendum in May 2007 stated both parents had used threats and intimidation which negatively affected the minors’ placements. A.C. was fixated on violence due to contact with his parents and lack of stability in placement. The minors continued in separate placements. B.C. continued to be fearful and anxious and wanted to stay in her current placement. The addendum further stated that neither parent had shown progress since the original jurisdiction hearing, continuing to drink and engage in violent behavior while blaming HHS. According to the report, the parents did not accept any responsibility for their actions and denied their actions had an impact on the minors’ well-being. HHS did not agree with providing further services but presented a proposed recommendation for four months of additional services, which were essentially the same as the family maintenance services, except for limiting visits to written contact at the discretion of HHS.
At the continued hearing on May 7, 2007, both parents agreed with the proposed plan with the exception of denial of face-to-face visitation. Minors’ counsel argued that the parents needed to show they had changed in order to justify such visitation. County counsel reiterated that providing services was not HHS’s recommendation and noted that the father was currently in custody for domestic violence committed on appellant four days earlier. The parties stipulated that no reunification services were offered from October 2006 to May 2007. The court asked for additional argument on the issue of whether the reunification period should be extended beyond the 12-month limit to 18 months since the issue had not been addressed in the earlier hearing. The court continued the dispositional hearing for additional argument on specific issues related to extension of services.
At the hearing on May 30, 2007, the court considered additional argument and points and authorities filed by HHS. Counsel for the father stated there had been either 11 or 15 months of services depending on whether the period of the minors’ return home was counted. Appellant’s counsel was prepared to submit the issues, noting that there was a substantial period without services, that the conflict between the parents and social workers should also be considered, and requested a couple of more months of services. The court found the parents had at least 12 months of services, but there was no showing there was a substantial probability the minors would be returned within any continued time period if further services were extended. Accordingly, the court terminated services, denied further visitation, and set a section 366.26 hearing.
Appellant filed a petition for modification citing her separate housing from the father and continued participation in therapy and a 12-step program, while acknowledging a recent assault by the father because she let him stay in her home. The court denied the petition.
The report for the section 366.26 hearing stated both minors were doing well in their prospective adoptive placements and that A.C.’s behavioral problems had decreased with the increased stability of his placement. There had been no contact between the minors and the parents since January 2007 and no in-person sibling visits since February 2007, although weekly telephone calls had recently begun. Neither parent attended the hearing and the court adopted HHS’s recommendations, terminating parental rights and freeing the minors for adoption.
DISCUSSION
I
Appellant does not challenge the orders terminating her parental rights. Instead, she asserts issues she contends were raised in her petition for extraordinary writ which was filed after the section 366.26 hearing was set.
“Subsequent appellate review of findings subsumed in an order setting a section 366.26 hearing is dependent upon an antecedent petition for writ review of those findings having been ‘summarily denied . . . .’” (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1513; § 366.26, subd. (l).) Appellant did file such a petition which was summarily denied on the merits in case No. C055937. When “the denial is summary, the petitioner retains his or her appellate remedy (§ 366.26, subd. (l)(1)(C)) but is limited to the same issue on the same record (§ 366.26, subd. (l)(1)(B)) and thus is destined on appeal to receive the same result.” (Joyce G. v. Superior Court, supra, 38 Cal.App.4th at p. 1514.) Such is the result here.
II
At appellant’s request, we have taken judicial notice of our file in the previous extraordinary writ proceedings, case No. C055937. The petition in that case raised only the issue of whether the juvenile court abused its discretion in denying further services. The petition can be read to argue both that services should have been extended to 18 months and that services should have been extended beyond the 18-month time limit. Both issues will be addressed.
We note that filing of neither a subsequent (§ 342) nor a supplemental (§ 387) petition triggers a new period of reunification services. (In re Barbara P. (1994) 30 Cal.App.4th 926, 933-934.)
A. Extension of Services to 18 Months
When a minor has been removed from parental custody, the court must order the social worker to provide reunification services to the mother. (§ 361.5, subd. (a).) When a sibling group is removed from parental custody and one of the minors is under the age of three when removed, “court-ordered services to some or all of the sibling group may be limited to a period of six months from the date the child entered foster care.” (§ 361.5, subd. (a)(3); § 366.21, subd. (e).) Nonetheless, “court ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from the physical custody of his or her parent . . . if it can be shown . . . that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period or that reasonable services have not been provided to the parent or guardian.” (§ 361.5, subd. (a); see also § 366.21, subd. (g)(1).)
Here, the sibling group contained a minor who was under the age of three when the minors were removed in July 2005. The parents were provided services which were found to be reasonable at the six and 12-month review hearings. The parents continued to receive family maintenance services until the minors were removed in September 2006, a period of 14 months. Thus, to extend services, the court had to conclude that the minors would be returned to the physical custody of their parents within an extended period of time of four months. The evidence before the court did not support such a finding. After the minors were removed in September 2006, and despite extensive services prior to the second removal and appellant’s testimony that she was sober and continuing in therapy, there continued to be reports that she was purchasing alcohol and had failed to disengage from the father and the violence which occurred when the parents interacted. Appellant’s problems were the result of long-term behaviors and denials which had not been ameliorated by many months of services. The court correctly concluded that a few more months of services were not likely to make much difference and thus could not conclude there was a reasonable probability of return after the extended period.
B. Extension of Services Beyond 18 Months
In unusual circumstances, the juvenile court has discretion to extend services beyond this statutory limit. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1779 [no reunification plan]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1216 [no services for 12 months]; In re David D. (1994) 28 Cal.App.4th 941, 953-954 [reasonable services not provided]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799 [mother hospitalized with mental illness during dependency had nonetheless completed the plan and needed time to stabilize].) The rule developed in these cases “provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by” additional services. (In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799.)
The juvenile court in this case would have abused its discretion if it had extended services beyond the 18-month limit because the facts do not justify such an extension. The cases in which such extension has been allowed are those in which a critical service has been denied, no services were provided or no plan was developed, or a plan was developed but not implemented during most of the reunification phase. Here, reasonable services were provided under an appropriate plan for more than 12 months. Further, no new referrals were required under the family maintenance plan. Appellant testified she had continued in therapy and a 12-step program, but refused further participation in the domestic violence program. Thus, there was effectively no period when she did not have access to services which were designed to address the problems which led to removal.
Having suffered from years of exposure to domestic violence, the minors needed permanence and stability. The juvenile court properly exercised its discretion to deny extension of services to or beyond 18 months because return was unlikely and further uncertainty was not in the minors’ best interests.
III
Appellant also argues that the court improperly delegated to HHS the question of whether any visit should occur. This issue was not addressed in the petition for extraordinary writ and cannot now be raised. (Joyce G. v. Superior Court, supra, 38 Cal.App.4th at pp. 1513-1514; § 366.26, subd. (l).) However, to forestall a claim of ineffective assistance of counsel, we briefly address the issue.
“It is ordinarily improper to deny visitation absent a showing of detriment.” (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) In making visitation orders, the court can properly delegate “the ministerial tasks of overseeing the right as defined by the court. . . . Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) “Only when a visitation order delegates . . . the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine.” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.)
The record is clear that the juvenile court delegated the absolute discretion to determine whether any visitation would occur. This was error. Nonetheless, appellant can show no prejudice from the court’s order. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674, 693, 698]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
It is undisputed that, following removal from the home in September 2006, appellant continued to have visitation with the minors until the end of December 2006. For the next three months no visitation occurred. In March 2007, the court ordered no visits based upon the conduct of the parents, i.e., renewed domestic violence and alcohol abuse, which led to the minors’ second removal. Appellant has not shown how improper denial of visitation for a period of only three months has prejudiced her. Both minors were old enough to be able to identify appellant as their mother and the bond which existed between them could not have weakened significantly in such a short period of time. At the end of the three-month period, visitation was terminated as detrimental to the minors. There was no prejudice to appellant.
DISPOSITION
The orders terminating parental rights are affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.