Opinion
D082386
10-06-2023
In re R.M., a Person Coming Under the Juvenile Court Law. v. R.M., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Christine E. Johnson, under appointment by the Court of Appeal, for Co-Plaintiff and Co-Respondent, A.H. Claudia G. Silva, County Counsel, Lisa M. Maldonado and Evangelina Woo, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J521075, Alexander M. Calero, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Christine E. Johnson, under appointment by the Court of Appeal, for Co-Plaintiff and Co-Respondent, A.H.
Claudia G. Silva, County Counsel, Lisa M. Maldonado and Evangelina Woo, Deputy County Counsels, for Plaintiff and Respondent.
O'ROURKE, J.
R.M., a three-year-old child, appeals a June 15, 2023 order issued by the juvenile court at the six-month review hearing in his dependency case. That order continued reunification services for A.H., his father (Father), until the 12-month permanency hearing, which it set for October 10. R.M. contends the court abused its discretion by finding that Father had made adequate progress in his case plan and, based thereon, continuing his reunification services. We disagree.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2020, R.M. was born to Father and J.M. (Mother). In August 2022, the San Diego County Health and Human Services Agency (Agency) filed a Welfare and Institutions Code section 300, subdivision (b)petition alleging there was a substantial risk that R.M. would suffer serious physical harm or illness as a result of Father's inability to supervise or protect him adequately because of his daily or near-daily use of methamphetamine. The petition further alleged that Father had used methamphetamine on the day he was arrested while driving a car in which R.M. was a passenger and not properly restrained. A search found over 30 grams of methamphetamine on Father, marijuana in R.M.'s diaper bag, and drug paraphernalia in the car. R.M. was taken into protective custody.
Mother is not a party to this appeal.
All statutory references are to the Welfare and Institutions Code.
During the Agency's investigation for the detention hearing, Father told its social worker that he had used methamphetamine consistently since he was a teenager, used marijuana, and occasionally drank alcohol. He purchased about one ounce of methamphetamine every other day. He had previously attended inpatient treatment programs, but had not completed them. He had been "clean" a few times on his own. He was willing to participate in drug treatment, but stated, "I'm not going to like it." He also had a long criminal history.
Mother also had a long criminal history. She had a history of methamphetamine use, but stated she had been "clean" for two years. R.M.'s older sibling was currently in the care of his adult half-sibling. Father and Mother appeared at the detention hearing and the court appointed counsel for them, as well as for R.M. The court found that the Agency had made a prima facie case on its petition, detained R.M. in out-of-home foster care, and granted supervised visits for his parents.
At the contested jurisdiction and disposition hearing in late October, Father and Mother appeared and the court admitted in evidence the Agency's reports. In particular, the Agency stated that Father had expressed his love for R.M. and was willing to cooperate with the Agency and do what was needed to have R.M. returned to his care. He admitted his methamphetamine use and acknowledged his need for substance abuse treatment. The Agency stated that Father and Mother had a loving relationship with R.M. and they appeared to have an on-and-off relationship, but were not currently speaking with each other. The Agency recommended that the court make a true finding on the petition's allegations, declare R.M. a dependent of the court, place him in out-of-home foster care, and grant the parents reunification services and supervised visits. It also proposed case plans for Father and Mother, which plans included participation in an outpatient substance abuse program, on-demand drug testing, and a parenting education program. The court made a true finding on the petition and adopted the Agency's recommendations, as amended, declared R.M. a dependent of the court, placed him in confidential foster care, ordered the Agency to provide Father and Mother with reunification services consistent with their case plans, and ordered them to comply with their case plans. It also informed the parents that because R.M. was under three years of age, they would have six months to participate and make substantive progress in their case plans and the failure to do so may result in the termination of their reunification services and their parental rights. The court also set a date for the six-month review hearing.
In its report for the six-month review hearing, the Agency recommended that the court continue reunification services for Mother, but terminate them for Father. It stated that neither parent had made progress in their case plan services. However, it recommended that the court find that Mother had made minimal progress toward alleviating or mitigating the causes of R.M.'s removal, but find that Father had made no progress. Father was homeless and obtained work when he could. At the end of March, he entered a detox program, but discharged himself after four days. He told an Agency social worker that he left the program because it did not meet his expectations and was seeking medical attention for his symptoms. He had missed all three on-demand drug tests requested by the Agency. Although his visits with R.M. were initially inconsistent, Father's visits increased to almost weekly from February 2023 through April 2023. Visit supervisors reported that Father was nice to R.M. and always smiled and greeted him. However, he did not stay engaged with R.M. and spent a lot of time on his phone. R.M. smiled and laughed when Father carried him on his shoulders and ran around with him. Father continued to express a desire to reunify with R.M.
Father requested a contested six-month hearing, which the court then set for June 15, 2023. The Agency submitted an addendum report, stating that Father had not participated in reunification services and had missed random drug tests requested in April, May, and June, and it continued to recommend that the court terminate his reunification services. Father remained homeless. The Agency stated that Father no longer had a working phone and had not provided it with a mailing address at which it could contact him. Therefore, the Agency's main form of communication with Father had been by e-mail. The Agency stated that Father was no longer cooperating with it. Given Father's refusal to engage in services and unwillingness to show any efforts to change, the Agency believed that termination of his reunification services was "the only option at this point." The Agency stated that after 45 minutes of playing with R.M. at a park during a supervised visit, Father had fallen asleep on a blanket. Parents are expected to stay awake and engaged throughout their visits with children. It also stated that FVC had stopped providing him with visit supervision services because he had sent its coordinator e-mail messages of a threatening nature and was not receptive in its attempts to rectify the situation. Nevertheless, the Agency continued to offer Father supervised visits at its office with the assistance of R.M.'s caregivers.
At the contested six-month review hearing on June 15, 2023, the court admitted the Agency's reports and heard arguments of counsel. The court found, contrary to the Agency's recommended finding, that Father had made adequate progress toward alleviating or mitigating the causes necessitating R.M.'s placement out of the home. The court also found that Mother had made adequate progress. Importantly, the court found that there was a substantial probability that R.M. may be returned to his parents' physical custody by the time of the 12-month permanency hearing and therefore ordered that Father and Mother continue to be provided with reunification services. R.M. filed a notice of appeal challenging the June 15, 2023 order.
DISCUSSION
I
Juvenile Court Did Not Abuse Its Discretion by Continuing Reunification Services for Father
R.M. contends that the juvenile court abused its discretion at his six-month review hearing by finding that there was a substantial probability that he may be returned to Father's custody by the 12-month permanency hearing and, based thereon, continuing Father's reunification services until the 12-month hearing.
A
Father appeared at the contested six-month review hearing on June 15, 2023, and the court admitted his stipulated testimony regarding an accident on June 8 that damaged his car, making it "not drivable." The court also admitted the Agency's reports and heard arguments of counsel. In particular, the Agency's counsel argued that Father's reunification services should be terminated because of his lack of participation in services. Father's counsel disagreed with the Agency's position and argued that Father's reunification services should be continued until the 12-month permanency hearing because Mother would continue to receive reunification services and was on track to be reunified with R.M. and Father was still involved in the case by visiting R.M. and appearing at court hearings. His counsel also argued that Father could support Mother and R.M. emotionally and financially. Regarding Father's early discharge from his detox program, his counsel explained that Father had medical issues that needed to be addressed that had not been addressed by the program's staff. His counsel also argued that Father had appeared at all court hearings, was polite and genuine, spoke from his heart, and treated everybody with respect and dignity. Father also had been burdened by transportation issues, including his damaged car, and had to rely on public transportation for visitation and obtaining reunification services and work. Despite his transportation difficulties, Father continued to visit R.M. weekly and wanted more visits. Father wanted to continue to have visitation, and even expanded visitation, with R.M., be a part of his life, and be involved in reunification services. Father's counsel argued that Father "has stepped up markedly over the past three months." Accordingly, his counsel argued that, contrary to the Agency's position, Father had made progress. His counsel argued that the court could see that Father had appeared at the hearing to ask for continuance of his reunification services, which appearance meant a lot.
After hearing arguments of counsel, the court noted that a key question for it to decide regarding Father was whether there was a substantial probability that R.M. may be returned to Father by the 12-month permanency hearing. Importantly, the court noted that this question was different from the question that it would subsequently address at the 12-month permanency hearing (i.e., whether there was a substantial probability R.M. will be returned to Father), which question would require it to make findings on three specific factors. Nevertheless, it noted that it could consider those factors at the instant six-month review hearing, along with all of the other evidence and the parents' extenuating circumstances. The court indicated that it was not sure whether it could make findings on the three factors at the six-month review hearing, but concluded it need not make those findings in order to continue Father's reunification services. Instead, the court stated that based on its consideration of all the evidence (such as the information in the Agency's reports), Father's extenuating circumstances (such as his homelessness), and his engagement in visits with R.M., it was exercising its discretion to continue Father's reunification services until the 12-month permanency hearing. The court found that Father had made adequate progress toward alleviating or mitigating the causes necessitating R.M.'s placement out of the home. The court also found that there was a substantial probability that R.M. may be returned to Father's and Mother's physical custody by the time of the 12-month permanency hearing and therefore ordered that Father and Mother continue to be provided with reunification services.
B
"[F]amily preservation is the first priority when dependency proceedings are commenced." (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) In general, when a child is removed from parental custody and made a dependent of the juvenile court, the court must order family reunification services for the parent. (§ 361.5, subd. (a); Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 840 (Tonya M.).) If the child is under the age of three years when removed from the physical custody of a parent, the parent's reunification services "shall be provided for a period of 6 months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care . . ., unless the child is returned to the home of the parent or guardian." (§ 361.5, subd. (a)(1)(B); see also, Tonya M., supra, at p. 843 ["For a child under three years of age at the time of removal, . . . reunification services are presumptively limited to six months."]; Cal. Rules of Court, rule 5.710(a)(4) ["If the child is not returned and the court does not set a section 366.26 hearing, the court must order that any reunification services previously ordered will continue to be offered to the parent or legal guardian, if appropriate."].) Also, if a court removes a child under the age of three years from a parent's custody and orders reunification services, the court must inform the parent that the failure of the parent to participate regularly in any court-ordered treatment programs or to cooperate or avail themselves of services provided as part of the parent's case plan may result in a termination of efforts to reunify the family after six months and a section 366.26 proceeding may be instituted. (§ 361.5, subd. (a)(3)(C).) At the initial six-month review hearing, the court must return the child to the parent's physical custody unless the court finds, by a preponderance of the evidence, that the return of the child to the parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (e)(1).)
Importantly, section 366.21, subdivision (e)(3) provides:
"If the child was under three years of age on the date of the initial removal . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . ., may be returned to their parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (Italics added.)
In M.V. v. Superior Court (2008) 167 Cal.App.4th 166 (M.V.), the court discussed section 366.21, subdivision (e)'s provisions, stating:
"[T]here are two distinct determinations to be made by trial courts applying the third paragraph of section 366.21, subdivision (e). First, the statute identifies specific factual findings-failure to participate regularly and make substantive progress in the court-order treatment planthat, if found by clear and convincing evidence, would justify the court in scheduling a [section 366.26] hearing to terminate parental rights. But this inquiry does not require the court to schedule a [section 366.26] hearing ('the court may schedule a hearing'). [Citations.] Instead, it authorizes the court to set such a hearing if the required findings have been made....
"The second determination called for by the third paragraph of section 366.21, subdivision (e), protects parents and guardians against premature [section 366.26] hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a [section 366.26] hearing if it finds either (1) 'there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months'; or (2) 'reasonable services have not been provided' to the parent. (§ 366.21, subd. (e).)
In other words, the court must continue the case to the 12-month review if it makes either of these findings. However, the court is not required to set a [section 366.26] hearing even if it finds against the parent on both of these findings. The parent is also entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent. [Citations.]" (M.V., supra, 167 Cal.App.4th at pp. 175-176.)
M.V. also stated: "At the six-month review, the court has discretion to continue the case . . . even if it does not make the finding there is a substantial probability the child may be returned to his or her parent. Section 366.21, subdivision (e), places discretion in the hands of the trial court as to whether to schedule a hearing to terminate parental rights: if the court 'finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan,' it 'may schedule a hearing pursuant to Section 366.26 within 120 days.' [Citations.] Of course, the court's discretion becomes limited when there is a substantial probability the child may be returned to the parent, in which case the court must continue the case to the 12-month hearing." (M.V., supra, 167 Cal.App.4th at pp. 179-180, italics added.)
Furthermore, M.V. concluded that the three findings required by section 366.21, subdivision (g)(1) to be made by a court at a 12-month permanency hearing in order to extend reunification services until the 18-month review hearing are not required to be made at a six-month review hearing in order to extend reunification services until the 12-month permanency hearing. (M.V., supra, 167 Cal.App.4th at pp. 179-181.) Although the provisions of section 366.21, subdivision (g)(1) do not expressly apply to a six-month review hearing or otherwise require a court to make that statute's three findings in order to extend reunification services until the 12-month permanency hearing, M.V. concluded: "A court certainly does not err by considering at the six-month review evidence pertaining to the factors identified in section 366.21, subdivision (g)(1) ...." (M.V., supra, at p. 180, italics added.) In exercising its discretion whether to continue a parent's reunification services at a six-month review hearing, a court "may take all of the evidence into consideration in making its findings. The court is not limited to inquiring into the three factors set forth in section 366.21, subdivision (g)(1) ...." (M.V., supra, at p. 181.)
Section 366.21, subdivision (g)(1) provides that if a child is not returned to his or her parent at the 12-month permanency hearing, the court shall continue the case for up to six months "only if it finds that there is a substantial probability that the child will be returned to the physical custody of their parent or legal guardian....For purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of their parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following: [¶] (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of their treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs."
On appeal, as the parties agree, we review a juvenile court's decision whether to continue reunification services for a parent for abuse of discretion. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881 (Katelynn Y.); but see, J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 535 (J.H.) [applying substantial evidence standard of review].) "We will not disturb the court's determination unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]" (Katelynn Y., supra, at p. 881, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) To the extent an appellant challenges a court's factual finding underlying its decision whether to continue reunification services, the appellant must show substantial evidence does not support that finding. (J.H., supra, at p. 535.) In determining whether substantial evidence supports a factual finding, we review the record in the light most favorable to that finding and draw all reasonable inferences to support it and do not reweigh the evidence. (Ibid.; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).)
C
In arguing that the juvenile court abused its discretion by continuing Father's reunification services through the 12-month permanency hearing, R.M. cites evidence and inferences therefrom favorably to his position. In particular, he argues that evidence in the record shows that Father did not comply with his case plan and failed to have meaningful visitation with him and, therefore, substantial evidence does not support the court's finding under section 366.21, subdivision (e)(3) that there was a substantial probability that he may be returned to Father's custody at the 12-month permanency hearing. However, in so arguing, R.M. misconstrues and/or misapplies the applicable standards of review. In reviewing the court's underlying factual findings, we apply the substantial evidence standard of review and, in so doing, must view the evidence and make all reasonable inferences therefrom favorably to support those findings. (J.H., supra, 20 Cal.App.5th at p. 535; L.Y.L., supra, 101 Cal.App.4th at p. 947.) In reviewing the court's ultimate exercise of its discretion in continuing Father's reunification services, we apply the abuse of discretion standard of review and, in so doing, affirm its discretionary decision unless it was arbitrary, capricious, or patently absurd. (Katelynn Y., supra, 209 Cal.App.4th at p. 881; In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Based on our review of the record, we conclude there is substantial evidence to support the court's finding that there was a substantial probability that R.M. may be returned to Father's custody by the 12-month permanency hearing within the meaning of section 366.21, subdivision (e)(3). Although Father had not fully complied with his case plan, there was evidence, contrary to R.M.'s assertion, to support a reasonable inference that Father had made efforts to comply, and partially complied, with his case plan. For example, Father entered a detox program, showing an intent and actions taken to meet one of his case plan's objectives (i.e., to become substance-free). Although he discharged himself four days later, there is evidence supporting a reasonable inference that he did so because his medical needs were not being met by the program's staff (i.e., Father explained to the Agency social worker that was the reason for his self-discharge from the program).
In addition, there is evidence to support a reasonable inference by the court that Father had made genuine efforts to maintain regular contact and visitation with R.M., despite Father's extenuating circumstances. As discussed above, the Agency's reports showed that Father had visited R.M. weekly, was nice to him, and always smiled and greeted him. R.M. smiled and laughed when Father carried him on his shoulders and ran around with him. Father continued to express a desire to reunify with R.M. and appeared at all court hearings. As the court noted, Father had extenuating circumstances. He was homeless, had no working phone, and faced transportation difficulties after his car was damaged. Given the evidence of Father's actions to comply with his case plan, consistent visitation with R.M., positive relationship with him, and genuine desire to reunify with him, we conclude there is substantial evidence to support the court's underlying finding that there was a substantial probability that R.M. may be returned to Father's custody by the 12-month permanency hearing. Accordingly, under section 366.21, subdivision (e)(3), the court was required to continue Father's reunification services until the 12-month hearing and therefore did not err in so doing. (§ 366.21, subd. (e)(3) ["If . . . the court finds there is a substantial probability that the child . . . may be returned to their parent . . . within six months . . ., the court shall continue the case to the 12-month permanency hearing."]; M.V., supra, 167 Cal.App.4th at pp. 175-176; Cal. Rules of Court, rule 5.710(a)(4) ["If the child is not returned and the court does not set a section 366.26 hearing, the court must order that any reunification services previously ordered will continue to be offered to the parent or legal guardian, if appropriate."].)
Nevertheless, assuming arguendo that substantial evidence does not, as R.M. asserts, support the court's underlying factual finding that there was a substantial probability that he may be returned to Father's custody by the 12-month permanency hearing, the court had discretion at the six-month review hearing to not set a section 366.26 hearing and instead continue reunification services until the 12-month permanency hearing. As discussed above, M.V. stated: "At the six-month review, the court has discretion to continue the case . . . even if it does not make the finding there is a substantial probability the child may be returned to his or her parent. Section 366.21, subdivision (e), places discretion in the hands of the trial court as to whether to schedule a hearing to terminate parental rights ...." (M.V., supra, 167 Cal.App.4th at pp. 179-180, italics added.) By simply arguing that Father had not complied with his case plan and had no meaningful visitation with him, R.M. has not carried his burden on appeal to show the juvenile court abused its discretion by continuing Father's reunification services until the 12-month hearing even without compliance with his case plan or a substantial probability that he may be returned to Father's custody by the 12-month hearing. Based on our review of the record, we conclude that the court did not act in an arbitrary, capricious, or patently absurd manner by continuing Father's reunification services until the 12-month hearing. (Katelynn Y., supra, 209 Cal.App.4th at p. 881; In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Therefore, we reject R.M.'s assertion that the court abused its discretion by continuing Father's reunification services until the 12-month hearing.
Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, cited by R.M., is factually and procedurally inapposite to this case and therefore does not persuade us to reach a contrary conclusion. In particular, unlike the court in this case, the juvenile court in Daria D. terminated the parents' reunification services at the six-month hearing and set a section 366.26 hearing. (Id. at p. 610.)
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., KELETY, J.