Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. Nos. BJP015803, BJP015804
Before Wiseman, A.P.J., Levy, J., and Gomes, J.
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Randall Thomas Shrout, for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rules 8.450 & 8.452) to vacate the orders of the juvenile court terminating reunification services at a contested 18-month review hearing and setting a Welfare and Institutions Code section 366.26 hearing as to her sons M. and T. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In January 2006, then 11-year-old M. and 5-year-old T. were taken into protective custody by the Madera County Department of Public Welfare (department) after petitioner and her husband Barry, the children’s father, left T. alone and unsupervised at an apartment complex. Petitioner had a history of leaving her children unattended and did not appreciate the danger of leaving her children alone. She admitted occasional use of methamphetamine and marijuana but did not believe drugs were a “big” part of her life.
Barry is not seeking extraordinary writ review.
The juvenile court ordered the children detained and, following a contested jurisdictional hearing, sustained allegations petitioner and Barry neglected T. and M. was at similar risk of neglect. (§ 300, subds. (b) & (j).) The juvenile court did not sustain an additional allegation under subdivision (b) that petitioner’s drug use adversely affected her parenting. However, after adjudging the children dependents and ordering them removed at the dispositional hearing in April 2006, the court ordered petitioner, who tested positive for methamphetamine and marijuana after the children’s detention, to participate in a plan of reunification that included substance abuse treatment and random drug testing. The plan also required petitioner to complete a parenting program. Barry was also required to complete a parenting program in fulfillment of his reunification plan.
Petitioner unsuccessfully appealed the juvenile court’s jurisdictional finding as to M. and its dispositional order removing the children from her custody. In October 2006, this court affirmed the court’s dispositional order (F050214).
Barry also unsuccessfully appealed from the juvenile court’s dispositional order (F050224).
Meanwhile, in September 2006, the court conducted the six-month review hearing, found petitioner and Barry were provided reasonable services and ordered services to continue. However, the court approved an amended case plan, which required petitioner to participate in a substance abuse program through the county’s behavioral health program and submit to hair follicle drug testing within six months.
Over the next six months, petitioner and Barry were resistant to drug testing and participating in their individual reunification plans. Nevertheless, they made sufficient progress just before the 12-month review hearing to cause the department to conclude there was a substantial probability the children would be returned to their custody after another six months of services.
In March 2007, at the 12-month review hearing, the juvenile court found petitioner and Barry were provided reasonable services and agreed to continue them. However, the court set an interim review hearing for June and amended petitioner’s case plan, requiring her to complete a mental health assessment and participate in any recommended treatment. After three sessions, the department was to begin a plan of extended visitation with the hope that the children could be returned to petitioner and Barry at the June hearing under family maintenance.
In late March, the social worker referred petitioner for an alcohol and drug and mental health assessment but petitioner refused to participate in the alcohol and drug portion of the assessment. As a result, she was referred for a mental health assessment only, which she completed. She denied having any problems, including depression and anxiety associated with the children’s removal. Consequently, the therapist concluded she was not in need of mental health services.
The interim hearing was continued and conducted in July. The court ordered petitioner to participate in weekly individual therapy until the 18-month review hearing scheduled for August. The court also ordered both parents to submit to a hair follicle drug test.
In its 18-month social study report, the department recommended the court terminate reunification services and proceed to permanency planning. The department reported that petitioner and Barry tested positive for methamphetamine based on a follicle sample submitted in July 2007 and that petitioner began mental health counseling in early August and attended only one counseling session. In addition, the children’s maternal aunt and uncle were approved for placement and wanted to adopt them.
In September 2007, the juvenile court conducted a contested 18-month review hearing on the department’s recommendation to terminate reunification services. Petitioner testified she was participating in a drug aftercare program, attending Narcotics Anonymous/Alcoholics Anonymous meetings, and attending weekly therapy. Following testimony, petitioner’s attorney argued she substantially complied with her case plan and the children would not be at risk if returned to her custody.
At the conclusion of the hearing, the juvenile court found petitioner and Barry were provided reasonable services but failed to make significant progress toward alleviating the problems necessitating the children’s removal. The court terminated their reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues the department failed to provide reasonable mental health services. Consequently, she claims, the juvenile court both abused its discretion and deprived her due process by terminating her reunification services. We disagree.
When the juvenile court removes a child from parental custody, it must provide the parent a plan of reunification (plan) designed to address the problems necessitating the child’s removal. (§ 361.5, subd. (a); In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007.) The specific services comprising the plan are set forth in the dispositional order. (§ 361.5, subd. (a).) The department is expected to assist the parent in accessing the services ordered and the parent is presumed able to follow a reasonable plan. (In re Riva M. (1991) 235 Cal.App.3d 403, 414; In re Christina L. (1992) 3 Cal.App.4th 404, 415.) Unless the parent succeeds in modifying the plan by order of the juvenile court (§ 388, subd. (a)) or by a reviewing court following direct appeal, the parent has assented to the terms of the plan. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) Consequently, when the juvenile court decides whether reasonable services were provided at the review of dependency hearings conducted at six-month intervals, the court is assessing the reasonableness of the department’s efforts to assist the parent in complying with the plan rather than the content of the plan.
Section 388, subdivision (a) allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.
With respect to the duration of reunification services, the Legislature contemplated a maximum reunification period of 18 months. (§ 366.22, subd. (a).) Consequently, the juvenile court’s statutory options at the 18-month review hearing are to either restore custody of the child to parental custody or terminate reunification services and refer the matter for a section 366.26 hearing. (Ibid.) However, the juvenile court is not statute-bound to terminate reunification efforts just because 18 months have elapsed. Rather, the juvenile court retains discretion to extend reunification services beyond the 18-month limitation if it finds reasonable services were not provided. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)
With those principles in mind, we turn to petitioner’s contentions. She claims the department was unreasonable in not offering her mental health services earlier in the reunification period when there were indications that such services were needed. However, there is no evidence petitioner was in need of mental health intervention early in the proceedings and she fails to provide record citations to support her claim. Further, petitioner neither petitioned the juvenile court to include mental health services in her case plan nor objected to the lack of such services by raising it in her appeal from the court’s dispositional order. Additionally, neither did she appeal from the court’s reasonable services findings made at the 6 and 12-month review hearings. Consequently, she waived the right to challenge the reasonableness of the plan as written.
Moreover, when the court amended petitioner’s plan at the 12-month review hearing to include a mental health assessment, petitioner responded by actively resisting mental health treatment. She first refused to complete the assessment because it included a substance abuse component. Then, when the court exempted petitioner from that portion of the assessment, she told the therapist she did not have any mental health concerns. It was not until the court forced petitioner into therapy by ordering it that she finally accessed mental health services. Consequently, to now claim that she was denied reasonable mental health services is a distortion of the facts. The fact is petitioner was provided reasonable services but refused to utilize them. We therefore find no abuse in the court’s order terminating petitioner’s reunification services.
Moreover, we find no merit in petitioner’s claim she was denied her right to due process. She argues the juvenile court, by placing a higher priority on substance abuse counseling, denied her reasonable mental health services and ultimately her constitutional right to the care, custody, and management of her children. As we have already stated, the record speaks to the contrary. If anything, the juvenile court’s emphasis was on getting petitioner into mental health therapy and it made every conceivable effort to do so. Because we conclude petitioner was provided reasonable mental health services, her constitutional challenge fails as well.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.