Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. J40049, J40050
Dondero, J.
L. L. (Mother) and R. G. (Father) seek extraordinary relief from an order of the Solano County Superior Court, Juvenile Division, entered January 19, 2011, that terminated their reunification services and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minors S. G. (born February 2009) and X. G. (born March 2010). Mother challenges a finding in that order, that there was not a substantial probability the minors could be returned to her custody and care within six months, and argues the juvenile court therefore erred in failing to continue her reunification services. Father objects to the findings that the Solano County Department of Child Welfare Services (Department) offered or provided him with reasonable services, and that he had not made substantive progress in his reunification case plan. As discussed below, we conclude substantial evidence supports the findings, and deny both petitions on the merits.
All further statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
The Department initiated this proceeding on March 16, 2010, with a petition alleging that the younger minor, X. G., had been born testing positive for amphetamines, and Mother had reported a history and ongoing use of methamphetamines that periodically impaired her judgment and ability to provide adequate care for the minors. (§ 300, subd. (b).) The petition further alleged: Father had a history of substance abuse “and related criminal activity” that periodically impaired his ability to provide adequate care; Mother had mental health issues—she had been diagnosed with bipolar disorder but had not maintained treatment or medication management—and these periodically impaired her ability to provide adequate care; and Father had been arrested for battery after an incident of domestic violence which had occurred in the presence of the older minor, S. G., in June 2009, and the parents’ history of domestic violence placed the minors at substantial risk of physical or emotional harm. (§ 300, subd. (b).) Finally, the petition stated Mother’s parental rights had been terminated as to two older half siblings, and she had lost custody of a third half sibling when it was awarded to the child’s father, and this history of inability to provide care placed the minors at substantial risk of neglect or abuse. (§ 300, subd. (j).)
At the detention hearing on April 1, 2010, the juvenile court left the minors in the parents’ custody and ordered family maintenance services in the form of drug testing, substance abuse treatment, and parenting education for both parents, and a mental health assessment for Mother. On April 27, the court sustained the amended jurisdictional allegations summarized above, after the parents submitted to them without contest.
Only one week later, the Department filed a supplemental petition under section 387. As later amended, this petition alleged Father had struck Mother in the presence of the younger minor during a domestic violence incident occurring five days previously, which resulted in Father’s arrest. The juvenile court ordered the minors detained on May 5, and both were placed in foster care the following day. On May 24 the court sustained the foregoing amended allegation after parents again submitted without contest.
At the conclusion of the dispositional hearing on June 22, 2010, the juvenile court ordered reunification services for both parents. Father was incarcerated at the time, after his arrest for the domestic violence incident on April 29, but the court nevertheless granted him reasonable services. (§ 361.5, subd. (e)(1).) It appears the Department had not yet developed an updated plan for reunification services at the time of the dispositional hearing; it submitted the case plan the Department had developed for family maintenance services in April.
The Department’s initial report for the six-month status review hearing (six-month hearing) was completed in mid-November 2010, and recommended that reunification services be continued for both parents. The report indicated the case worker—Ms. Taylor, newly assigned in September—had discussed the updated case plan with Mother on September 24 and twice again in October. Mother’s case plan called for her to complete a mental health assessment and follow any recommendations for treatment and psychotropic medication, participate in individual counseling to address issues of domestic violence and substance abuse and develop a domestic violence safety plan, complete a substance abuse assessment including recommendations for treatment, submit to random drug testing, demonstrate attendance at 12-step meetings for substance abuse, and complete a parenting course.
The report stated Taylor first met with Father on September 20. Taylor went over his updated case plan briefly at that time, and followed up with a letter to Father on September 30. She discussed the plan with him again on November 5, 2010, at which time he agreed to the case plan. Father’s updated plan required that he comply with the terms of his probation: a 52-week domestic violence course, a parenting class, and a mental health assessment. It also called for him to complete a “one-on-one” parenting course and submit to random drug testing as requested by the Department.
The report additionally noted that the Department had conducted an out-of-home risk assessment of each parent. The assessment of Father resulted in a recommendation to continue Father’s services, based on his “partial” participation once he was released from jail. The assessment of Mother concluded she had a high risk of future neglect based on lack of participation in services other than visitation. The Department, however, recommended continuing her services, because of the possibility that Mother and Father would reunite and she would need assistance as a co-parent.
On December 7, 2010, the initial date scheduled for the six-month hearing, counsel for the minors requested an evidentiary hearing, presumably to contest the Department’s recommendation to continue services for the parents. On January 11, 2011, the Department completed a second addendum report, in which it changed its recommendation and requested that the juvenile court terminate both parents’ services and set the matter for a hearing under section 366.26. Taylor based her change of recommendation on the fact that both parents’ participation in services had been “minimal” in the two-month period following her initial report.
The juvenile court held the contested six-month hearing on January 19, 2011. Following testimony by Taylor and closing argument, the court adopted the new recommendation, terminated services to both parents, and set the matter for a hearing under section 366.26. Mother’s and Father’s petitions followed. (§ 366.26, subd. (l).)
We ordered the petitions consolidated for further briefing and decision on March 7, 2011.
Discussion
A. Introduction
The minors in this case were under three years of age on the date of their initial removal; reunification services were therefore presumptively limited to six months. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 840 (Tonya M.).) At the six-month hearing in such a case, the juvenile court “may” schedule a hearing pursuant to section 366.26 in the event it “finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 366.21, subd. (e), 3d par.) “If, however, the court finds there is a substantial probability that the child... may be returned to his or her parent... within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.” (Ibid.)
Here the juvenile court exercised its discretion to terminate reunification services and set the matter for a section 366.26 hearing. (See M. V. v. Superior Court (2008) 167 Cal.App.4th 166, 176.) This ruling followed the court’s requisite finding, by clear and convincing evidence, that the parents had failed to participate regularly and make substantive progress in their court-ordered treatment plans. The court further found that the Department had offered or provided the parents with reasonable services, and, in effect, that there was not a substantial probability that the minors could be returned to the parents within six months. (§ 366.21, subd. (e), 3d par.) Mother and Father challenge these findings.
The court’s actual finding stated “there [was] not a substantial probability that the parents [would] be successful with their case plan[s] in the next 4 or 5 months.” The Supreme Court has construed the phrase “within six months” in section 366.21, subdivision (e), to mean “such time as remains until a potential 12-month review hearing, even if less than six months.” (Tonya M., supra, 42 Cal.4th 836, 840.) The 12-month permanency hearing (12-month hearing) must be held no later than 12 months after the date the minor enters foster care, as defined by section 361.49. (§ 366.21, subd. (f), 1st par.) In this instance, the date the minors entered foster care was May 24, 2010, when the court sustained the jurisdictional allegations of the supplemental petition. (See § 361.49.) Thus, by the time of the conclusion of the six-month hearing, on January 19, 2011, a little over four months remained before the time for the 12-month hearing.
B. Failure to Participate Regularly and Make Substantive Progress
Father argues the evidence presented showed that he did, in fact, participate regularly and make substantive progress in his court-ordered treatment plan. He notes that, once he was released from county jail, he completed the substance abuse assessment to which he was referred, participated in “one-on-one parenting, ” submitted to drug testing through both the Department and his probation officer, and visited regularly with the minors.
We do not, however, consider whether the evidence might have supported a finding in Father’s favor. Rather, we review the record to determine whether the court’s actual finding is supported by substantial evidence. In doing so, we resolve any conflicts and indulge all reasonable inferences in favor of the court’s ruling. (See In re Kristin W. (1990) 222 Cal.App.3d 234, 251.) We must accept as true the evidence most favorable to the order, and discard evidence unfavorable to the order as not having sufficient reliability to be accepted by the trier of fact. (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53.) This standard of review applies even though the juvenile court was required to base its determination on the heightened “clear and convincing” standard of proof. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880–881.)
Here the initial report prepared for the six-month hearing noted Father had remained confined in jail until September 17, 2010, when he was released on probation. The following Monday, Father appeared at Department offices, met with Taylor, and expressed his desire to participate in reunification services. On that same day, September 20, Father submitted to hair follicle and urinalysis drug tests, both with negative results. Father started regular, supervised visits promptly on September 24, during which his conduct with the minors was appropriate. By mid-November he had attended four one-on-parenting sessions. Taylor referred Father to random drug testing for the Department. By the time of the initial report he had submitted to three urinalysis tests, all negative, and had three “no-shows, ” which were considered positive under his case plan. Father also completed a substance abuse assessment in late September, and was deemed “not eligible” for substance abuse treatment based on his self report that he had not abused substances for two years. Taylor was concerned, however, that Father’s self-report was inconsistent with earlier information, and suspected there was a continuing issue as to his substance abuse. Specifically, the previous case worker case had stated that Father’s family members had reported he had “struggled” with drug abuse for a long time, Father himself had admitted to a relapse as recently as February 2010, and he had failed to submit to random testing during the period he was receiving family maintenance services. Further, after his release from jail Father had not submitted any evidence that he was attending 12-step meetings.
These statements of the previous case worker were included in the report prepared for the dispositional hearing. We note, however, the juvenile court admitted and considered that report at the six-month hearing, in addition to the reports prepared for that hearing.
The second report prepared for the six-month hearing stated Father, in the two months subsequent to the first report, had continued attending “one-on-one parenting” sessions. His supervised visits also continued to be appropriate and generally positive. On the other hand, Father had lost his stable housing in early January 2011, after he was asked to leave the mobile home park where he resided with his grandmother, as a result of violence requiring police intervention. Father meanwhile had still submitted no evidence of attendance at 12-step meetings, and, after October 27, 2010, stopped going to random urinalysis tests requested by the Department. In early December he had been dropped from the random testing program after four consecutive “no-shows.” This was an obvious concern to Taylor because the urinalysis tests Father submitted as a term of his probation were not random but regularly scheduled. Father also failed to submit to a hair follicle drug test in December. Taylor testified she asked for the second hair follicle test because the first such test had occurred only days after Father’s release following several months in jail, and she thought the second test, if negative, would provide Father with support for his self-reports of sobriety.
During cross-examination, Taylor admitted that a Department supervisor had informed Father on December 13, 2010, that if, in fact, Father was drug testing for his probation officer the Department would accept those tests. This however, does not excuse Father’s failure to submit to the Department’s random tests prior to December 13. Moreover, as we have noted, Father’s case plan required “random” testing, and the probation tests did not satisfy this requirement. It is reasonable to infer that the Department supervisor was willing to accept Father’s probation drug test results only to the extent they complied with the requirements of his case plan.
With regard to the domestic violence component, which Taylor deemed to be “the most essential” part of his case plan, Father was required to complete the 52-week course required by the terms of his probation. Father never enrolled in the course, reporting it was too expensive. Taylor testified she had given Father additional time to start this component, because he was reluctant to enroll in another course that would not satisfy the terms of his probation. By November, however, Taylor realized Father would not address his domestic violence course obligations in time—given the time limit for reunification services—and in November and December she referred Father to community services that provided domestic violence classes either free or funded by the Department, and explained to him the need to “get started” with these referrals. By the time of the second report, however, Father had not yet addressed this component of his case plan, although he had contacted one of the community referrals about domestic violence classes beginning in January 2011. Taylor also noted that Father continued to have volatile contact with Mother, contrary to an existing restraining order which his case plan required him to comply with.
Viewing the foregoing evidence in the light most favorable to the juvenile court’s ruling (see e.g., In re Monica C. (1995) 31 Cal.App.4th 296, 306), we conclude that it provides substantial evidence to support the challenged finding that Father “failed to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 366.21, subd. (e), 3d par.)
C. Substantial Probability of Return
Mother contends there was not substantial evidence to support the juvenile court’s negative finding, that there was not a “substantial probability that the [minors] may be returned to [her] within six months.” (§ 366.21, subd. (e), 3d par.) She claims there were no evidence that she was ever under the influence of drugs during her visits with the minors, and there was hence no evidence that her “issues of substance abuse” presented a risk of harm to the minors during the period under review. She further contends there were no reported incidents of domestic violence during the review period. While Mother did not participate in mental health treatment, she had “identified for herself that she did not have continuing mental health issues, ” and there was no evidence that such issues “impact[ed] the minors” during the review period. Given the “positive nature” of her visits with the minors and the “lack of continuing safety issues, ” Mother insists there was a substantial probability the minors could be returned to her care if services were provided leading to the 12-month hearing. (See fn. 4, ante.)
Again, we do not consider whether there was evidence that might have supported a finding in Mother’s favor, but whether substantial evidence supports the negative finding the juvenile court did make—that there was no substantial probability of the minors’ return within the time remaining before the 12-month hearing. (See In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.)
In determining “substantial probability of return, ” within the applicable time period, the juvenile court “should consider the following factors along with any other relevant evidence: [¶] a. Whether the parent... has consistently and regularly contacted and visited the child; [¶] b. Whether the parent... has made significant progress in resolving the problems that led to the removal of the child; and [¶] c. Whether the parent... has demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health, and special needs.” (Cal. Rules of Court, rule 5.710(c)(1)(D)(i); see M. V. v. Superior Court, supra, 167 Cal.App.4th 166, 180–181.)
Here Mother has not challenged the finding, by clear and convincing evidence, that she had not participated regularly or made substantive progress in her court-ordered treatment plan. Nor does it appear she could effectively do so. While Mother visited regularly and appropriately with the minors, the Department’s reports and testimony showed Mother had not engaged in mental health services to address a diagnosed condition of mood disorder, had not attended more than one parenting class, and had failed to participate in drug testing, 12-step meetings, or substance abuse assessment or treatment.
We conclude that this evidence provides substantial support for the juvenile court’s finding to the effect that there was no substantial probability that the minors might be returned to Mother’s care within the time remaining before the 12-month hearing. Mother certainly failed to demonstrate “significant progress in resolving the problems that led to the removal of the child” or “the capacity and ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health, and special needs.” (Cal. Rules of Court, rule 5.710(c)(1)(D)(i).)
D. Reasonable Services
Father challenges the finding that the Department offered or provided him with reasonable services. In reviewing this finding, we view the evidence in the light most favorable to the juvenile court’s order, indulging in all legitimate and reasonable inferences in its support. If there is substantial evidence supporting the challenged findings, our duty ends and the order must not be disturbed. (See In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Again, we apply these rules notwithstanding the heightened standard of proof employed by the juvenile court. (See Sheila S. v. Superior Court, supra, 84 Cal.App.4th 872, 880–881.)
Services may be deemed reasonable when the case plan has identified the problems leading to the loss of custody, the agency has offered services designed to remedy those problems, has maintained reasonable contact with the parent, and has made reasonable efforts to assist the parent in areas in which compliance has proven to be difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) With regard to an incarcerated parent, the juvenile court is required to order reasonable services absent a finding by clear and convincing evidence that such services would be detrimental to the minor (§ 361.5, subd. (e)(1)), and as we have noted the court did include such an order in its dispositional findings and orders. Reasonable services for an incarcerated parent may include: “(A) Maintaining contact between the parent and child through collect telephone calls. [¶] (B) Transportation services, where appropriate. [¶] [and] (C) Visitation services, where appropriate.” An incarcerated parent may be required to attend counseling, parenting classes, or vocational training if he or she has actual access to these services. (§ 361.5, subd. (e)(1).)
Father argues the Department initially failed to provide him with reasonable services during the three-month period he was confined in the county jail. He claims the previous case worker visited him only once, failed to identify any services available to him during his confinement, and failed to facilitate visits or other contact with the minors.
By the time of the dispositional hearing, the minors were, respectively, about 16 months and three months of age. Their very young ages rendered telephone and other indirect contact impractical. Father’s focus is thus on “[v]isitation services, where appropriate” and the Department’s failure to identify other services to which Father might have access while confined. (§ 361.5, subd. (e)(1).)
The previous case worker met Father in the county jail a week before the dispositional hearing June 15, 2010. At that time Father said he wanted regular visitation, but acknowledged he had been informed by jail staff that no staff was available to supervise visits, and was unable to say how he would manage visits while handcuffed and shackled. The case worker concluded—given the very young ages of the minors and Father’s practical inability to hold the minors—that face-to-face visitation at the jail was not appropriate, whereas “behind the glass, noncontact visits” was not in the minors’ best interest. Thus in its dispositional orders the court directed bi-weekly, supervised visitation to be arranged by the Department “upon the father’s release from jail.” Pending such release the court also ordered the Department to “coordinate visitation as approved” by jail staff and as consistent with its orders.
Taylor, who prepared the Department reports for the six-month hearing and was the only witness to testify at that hearing, was not assigned to the case until September 2010, around the same date as Father’s release from jail. Although she could not say to what extent the previous case worker had inquired about visitation and other services available to Father, the previous case worker had reported that Father was already aware that jail staff were not available to supervise visits. There was no evidence to indicate that the jail permitted supervised visitation in the absence of a jail staff member, whereas the previous case worker did report her conclusion that visitation at the jail was not appropriate. Taylor further testified that “[t]o [her] knowledge” there were no appropriate services available to Father at the county jail.
This evidence tends to show that the Department did what it could reasonably do under the circumstances, while Father was in jail. The time a parent is incarcerated does not toll the time limits on reunification set out in section 361.5, subdivision (a), and as we have observed the limit in this case was presumptively six months. (§ 361.5, subd. (e); Tonya M., supra, 42 Cal.4th 836, 840.) Further, the standard is not whether the agency could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th 538, 547.)
Father also urges that the Department failed to provide reasonable services after his release from jail, because Taylor did not refer him to domestic violence services until November and December 2010, long after the dispositional hearing on June 22. As discussed previously, however, Father’s case plan required that he complete the 52-week course on domestic violence required by the terms of his probation, and Father himself was reluctant to enroll in another course. Taylor’s reports and testimony showed that these were the only reasons she delayed giving Father referrals to other community programs. Moreover, when she did give Father the referrals, she explained to him the urgency to “get started” as soon as possible on this component of his case plan. Again, the standard is whether the services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th 538, 547.) Father’s objection on this ground lacks merit.
We have reviewed the evidence relevant to services in all other respects, and conclude substantial evidence supports the juvenile court’s finding that the Department offered or provided Father with reasonable services during the period under review.
Disposition
The petitions for extraordinary writ are denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.454(a), 8.490(b)(3).)
We concur: Marchiano, P. J., Banke, J.