Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. NJ13650B, Harry Elias, Judge.
AARON, J.
Joseph B. appeals an order terminating his reunification services pertaining to his daughter, G.B. He contends that the juvenile court abused its discretion by terminating his services as to G.B. while, at the same time, continuing his services as to his son, Ashton B., and continuing services as to both children's mother, Nicole B. He also claims that he did not receive reasonable services. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of six-month-old G.B. and four-year-old Ashton under Welfare and Institutions Code section 300, subdivision (b) on the basis of domestic violence between Joseph and Nicole and their substance abuse.
Statutory references are to the Welfare and Institutions Code.
The family had been involved with Child Protective Services in Florida, where there were referrals for domestic violence and marijuana use. Neither Joseph nor Nicole complied with a voluntary services plan in Florida. Both completed a domestic violence program, a parenting class, and an anger management program, but the domestic violence between them continued. They fled to California when authorities were in the process of removing the children from their home. Joseph's criminal history includes arrests for vehicle burglary in Texas in 1995, petty theft and burglary in California in 1997, and domestic violence in Florida in 2005.
The trailer in which the family was living in San Diego was unsanitary, and the children's hygiene was poor. The court ordered the children detained.
At the jurisdictional and dispositional hearings, the court found the allegations of the petitions true, declared the children dependents of the court and ordered them placed in foster care. The court ordered Joseph and Nicole to enroll in the Substance Abuse Recovery Management System (SARMS) program and to comply with their case plans. Joseph's plan included SARMS, parenting education, a domestic violence program and supervised visitation.
In a report dated November 29, 2007, the social worker reported that Joseph was homeless and that he had been in jail for six weeks for stealing liquor from a convenience store. He was released on September 28. Joseph stated that he had enrolled at the McAlister Institute (McAlister) on October 29, but had not started attending a parenting class. His compliance with SARMS was poor. He had attended eight sessions of a domestic violence program. The program director said that Joseph was progressing more slowly than expected, and that he accepted little responsibility for his actions. Joseph and Nicole said that they had ended their relationship. Joseph interacted well with the children during visits.
G.B. was doing well in foster care, but Ashton's problem behaviors and his physical aggression required that he be moved to a new foster home. Ashton asked his foster mother to take him to his parents' home so that he could prevent them from fighting. The social worker said Ashton had explained that his parents fought frequently, and that was why "we all need to live in separate homes."
At the six-month review hearing on December 17, 2007, the court accepted stipulated testimony that Joseph had not visited G.B. since late October 2007. The social worker testified that, according to reports from McAlister, Joseph had attended six sessions, missed six sessions and had been sober for 10 days to two weeks.
Joseph testified that he was released from custody on September 28, 2007. He admitted that he was not complying with SARMS, but said that he had been attending a McAlister program since October, and that he was having weekly negative drug tests. He said that he had not been visiting the children, and that he had been told that no visits were scheduled. Joseph testified that he had not participated in domestic violence treatment because the schedule conflicted with the McAlister program. He explained that he had missed classes at McAlister because he had been sick and because he had been involved in a motorcycle accident.
The court continued the children as dependents of the court in out-of-home care and continued Joseph's services as to Ashton. The court found that Ashton and G.B. were not part of a bonded sibling group and terminated Joseph's services as to G.B.
DISCUSSION
I. The Juvenile Court Erred in Terminating Joseph's Services as to G.B. While Continuing His Services as to Ashton. However, the Error Is Harmless.
Joseph contends that the juvenile court abused its discretion by terminating his services as to G.B. while at the same time continuing his services as to Ashton and continuing Nicole's services as to both children. He maintains that the law favors reunification whenever possible and that, despite his mistakes, he demonstrated that he was interested in reunifying with both children.
"[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195, disapproved on another point in People v. Anderson (2001) 25 Cal.4th 543, 575.) A court abuses its discretion if it applies improper criteria or makes incorrect legal assumptions. (Linder v. Thrifty Oil (2000) 23 Cal.4th 429, 435-436.)
Here, the juvenile court incorrectly assumed that it was required to allow Joseph more time to attempt to reunify with Ashton. This erroneous assumption led the court to err by continuing Joseph's services as to Ashton and at the same time terminating his services as to G.B., while continuing the mother's services as to both children.
In In re Jesse W. (2007) 157 Cal.App.4th 49, 57-65, this court held that when read together, sections 361.5, subdivision (a)(2), which governs the provision of reunification services as to a child who is less than three years old at the time of removal from a parent, and section 366.21, subdivision (e), which governs six-month review hearings, do not preclude terminating services to one parent regardless of whether the court sets a section 366.26 hearing or offers further services to the other parent.
The court's order terminating Joseph's reunification services regarding G.B. is well supported by Joseph's poor compliance with and his lack of progress in completing the goals of his reunification plan. He did not attend a parenting class, attended a domestic violence program only sporadically and was not in compliance with the SARMS program. Further, at the time of the six-month review hearing, Joseph had not visited the children for approximately six weeks, and had been sober for only 10 days to two weeks. Joseph claimed that he could not enroll in a parenting program because his commitment to the drug abuse program at McAlister was too demanding. However, at the time of the hearing, he had attended only six sessions at McAlister and had missed six other sessions.
On this record, the court would have been well within its discretion to have terminated Joseph's services as to both children. However, the court was under the erroneous assumption that, although Joseph was not succeeding with his services by the time of the six-month review hearing, the court was required to extend his services as to Ashton to the 12-month date because Ashton was more than three years old at the time he was removed from his parents' care. The court stated, "[S]ince Ashton was over the age of three at the time of his removal[,] by statute he's [Joseph's] entitled to 12 months of services."
The court was clearly mistaken in concluding that Joseph was entitled to six more months of services as to Ashton. A court may order less than the maximum time of reunification services when a parent is unwilling or unable to benefit from services. (In re Derrick S. (2007) 156 Cal.App.4th 436, 439, 447.) By continuing Joseph's services as to Ashton, while at the same time terminating Joseph's services as to G.B. and continuing Nicole's services as to both children, the court created an untenable situation: the children remained dependents of the court, Nicole's services continued and Joseph's services also continued, but these services were to be directed toward Joseph reunifying with Ashton only. It is unclear what the court envisioned in terms of the outcome of this state of affairs. It could conceivably have made sense to continue a father's services as to an older child while terminating them as to a younger child if the court was also terminating the mother's services as to the younger child and freeing that child for adoption. It also would have been acceptable to terminate the father's services as to both children, even while continuing the mother's services. (In re Jesse W., supra, 157 Cal.App.4th at p. 65.) But it made no sense for the court to terminate the father's services only as to the younger child while at the same time continuing his services as to the older child and continuing the mother's services as to both children.
The court's order was plainly erroneous. However, because the court would have been within its discretion to have terminated Joseph's services as to both children at the hearing, Joseph was not harmed by the order continuing his services as to Ashton only and terminating his services as to G.B.
II. Joseph Received Reasonable Services.
Joseph also asserts that the juvenile court erred by terminating his services because there is not substantial evidence that he received reasonable services while he was incarcerated. Joseph faults the Agency for not attempting to arrange visits or to identify services for him during his incarceration. Assuming, without deciding, that Joseph has preserved this issue for appeal, we conclude that he has not shown that he did not receive reasonable services.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show that the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
There is substantial evidence to support the court's finding that Joseph received reasonable services. Joseph was incarcerated for only about six weeks of his reunification period. Before he was arrested and jailed, he was offered reasonable services, including SARMS, a domestic violence program and parenting education. He received the SARMS order on April 25 and was ordered to participate in the reunification plan on May 17, 2007. He was in poor compliance with SARMS during July and for the first two weeks of August. He did not begin a parenting class or attend domestic violence classes regularly, and after his release, he did not participate in domestic violence classes. The evidence supports a finding that reasonable services were offered or provided and that Joseph chose not to participate.
DISPOSITION
The order is affirmed.
WE CONCUR: NARES, Acting P. J., IRION, J.