Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J08-02014
Margulies, J.
C.B. (Father) challenges an order of the Contra Costa County Superior Court, Juvenile Division, made January 6, 2010, in which the court set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minor T.B. Father challenges the juvenile court’s order terminating his reunification services, contending the court erred in failing to consider extenuating circumstances-his depression-that justified an extension of services. As discussed below, we conclude the juvenile court did not abuse its discretion in terminating services for Father. Accordingly, we deny Father’s petition 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
In early December 2008, the Contra Costa County Bureau of Children and Family Services (Bureau) received a referral indicating an incident of domestic violence had occurred between K.G. (Mother) and Father in the minor’s presence. The minor was 15 months of age at this time. On December 23, the Bureau filed a petition under section 300, subdivision (b). The minor was initially removed by an order of detention the following day. That order authorized the Bureau to release the minor temporarily to Father, but ordered Mother and Father not to reside together.
The minor was removed from Father’s care on February 24, 2009, after the Bureau learned Father had violated the court order by allowing Mother to live in the home while she was actively using drugs. On March 10, the Bureau placed the minor with his maternal aunt (Aunt), who lived in a community outside Sacramento. The Bureau deemed this out-of-county relative placement preferable because Aunt was willing and able to care for the special needs of the minor, who has Down’s syndrome.
On March 20, 2009, the juvenile court sustained a jurisdictional allegation as to Father, concluding that he had engaged in domestic violence placing the minor at substantial risk. At this time, Father also stipulated to submit to drug testing on demand.
The dispositional report, filed June 9, 2009, recommended reunification services for Father, proposing a case plan that included participation and progress in individual therapy, participation and progress in a domestic violence prevention program, and submission to drug testing on demand. The Bureau also recommended Father visit the minor a minimum of two one-hour visits per month. The juvenile court adopted these recommendations at the continued dispositional hearing on June 9.
Meanwhile, on March 6, 2009, Father began individual therapy. In April 2009, Father also started attending meetings at STAND, a domestic violence prevention program. On June 5, his individual therapist reported Father had attended 11 sessions “regularly.” He presented “symptoms of depression and anxiety” associated with the removal of his son, and to alleviate these symptoms the therapist was teaching Father some “relaxation techniques and alternative behaviors.”
In the six-month status review report, filed January 6, 2010, the assigned caseworker recommended the juvenile court terminate reunification services as to both Father and Mother.
The caseworker noted Father had attended 29 therapy sessions as of October 19, 2009. On that date, his therapist reported her “major concern [was] [Father’s] depressions,” as his symptoms were “affecting his life management skills.” Father “present[ed] with a deep feeling of sadness,” and described a “diminished interest in most activities,” difficulty concentrating, and hypersomnia. The therapist stated Father could not talk about the minor “without being overwhelmed by emotion.” He further seemed overwhelmed and “not quite able to figure out how to comply with the expectations of [the Bureau], finding employment and obtaining medical care.” The caseworker reported she had given Father a referral for a medication evaluation on October 30. Subsequently she testified Father received a prescription for an antidepressant on November 23. Father’s authorization for individual therapy services had ended on November 30, and had not been extended.
The caseworker additionally reported Father had attended 21 STAND meetings and had missed six, two of which were excused. STAND had dropped Father from the program on November 5, 2009, after he stopped attending and failed to contact the program. Father’s drug tests were negative, although he had a number of no-shows in May, September, and October.
As for visitation, the caseworker reported that, as of the date the report was completed, Father had visited the minor only twice since his placement with Aunt in March 2009. These visits apparently occurred prior to May, when Aunt brought the minor to Contra Costa County. Father and Mother together visited the minor on two other occasions, when the minor had ear surgery and on his second birthday. Even before the dispositional hearing in June, the Bureau had informed Father he should contact Aunt to schedule visits, and advised him it would provide him with money for gas, if needed. According to the caseworker, however, Father had not called Aunt since, either to schedule visits or check on the minor. After completion of the report in November, the caseworker testified Father had contacted her and expressed frustration about scheduling visits through Aunt. The caseworker assisted him in scheduling two additional visits in November and one in December, although Father was unable to complete one visit because Aunt did not receive his text message confirmation.
At the continued six-month hearing, held January 6, 2010, Father’s counsel argued Father’s performance of the components of his case plan had gone well until he began to “spiral[] downward into a major depression,” as his therapist had noted in her October 2009 report. His counsel urged the juvenile court to extend Father’s reunification services for an 18-month permanency review hearing. She opined that, with additional therapy services, and given the “benefit of psychotropic medication” Father had begun to receive in late November 2009, there was a “likelihood of reunification” within this extended period.
The juvenile court, however, concluded Father had failed to visit or contact the minor, had not made signification progress in resolving the problems leading to the minor’s removal, and had failed to participate in, or comply with, his court-ordered plan. The court further found there was not a substantial probability the minor could be returned to Father within the extended period for services. (See § 366.21, subd. (e).) The court terminated reunification services as to both parents and set the matter for a hearing under section 366.26.
Father’s petition followed. (§ 366.26, subd. (l).)
Petitioner’s trial counsel is responsible for filing the notice of intent and petition. (Cal. Rules of Court, rule 8.450(c).) We observe that Ron Rayes, purporting to represent Father in the submission of both his notice of intent and petition, is not Father’s trial counsel of record. Nevertheless we proceed to determine the petition on its merits. (See fn. 2, ante.)
Discussion
Father contends it was “only after he began to suffer from depression his compliance with the reunification plan began to suffer.” In his view his “depression constituted [an] extenuating circumstance[]” to which the juvenile court improperly “turned a deaf ear” when it terminated his reunification services.
If, as here, the minor was under three years of age on the date of initial removal, and the juvenile 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.” (§ 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.)
Father did not argue below that the Bureau failed to offer or provide reasonable services. Nor does he expressly make such a claim now, although he suggests the Bureau’s placement of the minor in Sacramento County was a factor that “worked against [him].” As previously noted, however, the Bureau made the placement in order to provide for the minor’s special needs, and the caseworker offered to provide Father with gas money if needed and promptly assisted him in scheduling visits after he contacted her and expressed his “frustration” on this point. 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. (1991) 2 Cal.App.4th 538, 547.) We conclude they were reasonable in this instance and Father does not seriously urge otherwise.
Although Father’s trial counsel argued below that there was a “likelihood” Father could reunify with minor if given additional services, the court concluded there was not a substantial probability the minor could be returned to Father within the extended period. Father does not expressly contest this finding, and, again, we do not think he can seriously do so. To extend Father’s services on this ground, it was necessary for the juvenile court to find a substantial probability of return “within six months.” (§ 366.21, subd. (e), 3d par.) The Supreme Court has construed “six months” in this context to mean “such time as remains until a potential 12-month review hearing, even if less than six months.” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 840.) “At the six-month review hearing, the juvenile court has no authority to extend services beyond the 12-month review hearing.” (Id. at p. 848, italics added; see also § 361.5, subd. (a)(1)(B); Cal. Rules of Court, rule 5.710(b)(3), (c)(1)(D).) The 12-month permanency hearing, in turn, must be held “no later than 12 months after the date the child entered foster care.” (§ 366.21, subd. (f).) In this case, the minor effectively entered foster care on February 24, 2009-60 days after his initial removal on December 24, 2008. (See § 361.49.) Father made no showing whatever that there was a substantial probability the minor could be returned to him within the 47-day period that remained between the six-month hearing on January 6, 2010, and date on which the 12-month hearing was required to be held. Indeed, as we have noted, even his trial counsel’s argument focused on the “likelihood” of reunification if services were extended to the 18-month maximum.
Thus, there was no real basis for the juvenile court to make the “substantial probability of return” finding or the lack of reasonable services finding, either of which would have required an extension of services under section 366.21, subdivision (e), third paragraph.
Father contends, essentially, his depression was an extenuating circumstance that did not so much establish either of these findings, but rather excused his failure to make substantive progress in his court-ordered case plan. He cites Sara M. v. Superior Court (2005) 36 Cal.4th 998 as his authority for this proposition. The decision in Sara M., however, concerned an extenuating circumstance-one that the court rejected-which arguably would have excused the mother’s failure to contact and visit the minor within the meaning of section 366.21, subdivision (e), fifth paragraph. This provision sets out a wholly separate basis for setting a section 366.26 hearing than that set out in section 366.21, subdivision (e), third paragraph. (See Sara M. v. Superior Court, at pp. 1016–1017.)
It is true that, when a juvenile court finds by clear and convincing evidence that a parent has failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may-but is not required to-set a section 366.26 hearing. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175–176, 179.) Accordingly we may assume, without deciding, that a juvenile court has the discretion-on the basis of an “extenuating circumstance” such as Father’s-not to schedule a section 366.26 hearing and to continue services even though a parent has failed to make substantive progress in his or her case plan and is not otherwise entitled to additional services based on either a “substantial probability of return” finding or a lack of reasonable services finding. Such an exercise of discretion to continue services may be appropriate, for example, when it appears the parent will utilize the services and they will ultimately benefit the minor. (See In re Jesse W. (2007) 157 Cal.App.4th 49, 65–66; see also M.V. v. Superior Court, at p. 182, fn. 9.)
In this event our review is for abuse of discretion. Under this standard we generally uphold the juvenile court’s ruling unless it is so arbitrary, capricious, or absurd as to exceed the bounds of reason. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
In our view the juvenile court properly exercised its discretion in this case. The court had before it the therapist’s report and other evidence relating to Father’s depression. During closing argument Father’s trial counsel raised and argued the issue of his depression as an extenuating circumstance justifying additional services. There is no indication the court simply “turned a deaf ear” to this evidence and argument. Rather it appears the court considered all the evidence and arguments, and by its determination implicitly rejected the argument of Father’s trial counsel. We cannot say it exceeded the bounds of reason in doing so.
Disposition
The petition for extraordinary writ is 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.
We concur: Marchiano, P.J., Banke, J