Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J516411A/B/C/D. Hideo Chino, Commissioner.
HALLER, J.
Cynthia R. appeals orders terminating reunification services to her at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e). She contends section 366.21, subdivision (e) mandates the continuation of reunification services at the six-month review hearing if the court does not set a section 366.26 hearing. Alternatively, Cynthia asserts the court abused its discretion when it terminated her reunification services while at the same time extending the reunification period for the children's father to the 12-month review date.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
We conclude the court's termination of reunification services at the six-month review hearing was authorized under section 366.21, subdivision (e). The juvenile court may, but need not, continue an offer of reunification services to one parent when services are extended for the other parent and no selection and implementation hearing is set. Given that discretion, we further conclude the court here properly terminated Cynthia's services because the evidence showed, despite receiving six months of services, she made no attempt at reunification and was extremely unlikely to do so in the near future.
FACTUAL AND PROCEDURAL BACKGROUND
Cynthia R. and Michael D. are the parents of four children, now ages 10, seven, five and two years old. The parents separated in 2005 after Michael was arrested for domestic violence. In July 2006, Cynthia found a job as a nurse, rented a home, and moved with the children to San Diego.
Michael does not appeal and is mentioned only when relevant to the issues raised on review.
In September 2006, the San Diego Health and Human Services Agency (Agency) investigated referrals concerning Cynthia's mental health and the condition of the family home. The children's maternal grandparents made an emergency trip to San Diego and found Cynthia's home in disarray. Maggots and broken glass littered the kitchen floor, and the food supply was limited. Neighbors reported the house was filthy, the children were often hungry, and Cynthia displayed bizarre behaviors.
The maternal grandmother informed the social worker that Cynthia was diagnosed with bipolar disorder at age 16, and had four or five manic " 'episodes' " since that time. When medicated, Cynthia was an intelligent, accomplished woman. Her mental health deteriorated when she stopped taking medication.
Cynthia said she had been diagnosed with depression and bipolar disorder but the disorders had " 'gone away.' " She had been hospitalized approximately two years earlier and did not want to take medication again.
On a follow-up visit, the social worker observed the conditions in the home had deteriorated. Cynthia had asked her parents to leave her home. She told the social worker the house was haunted by " 'injustice beyond the forces of man.' " The social worker observed Cynthia appeared "flustered, tangential, paranoid, delusional and disorganized in her thinking." Cynthia refused to undergo a psychiatric evaluation. After consulting a staff psychologist, the social worker detained the children.
On October 4, 2006, the Agency filed petitions under section 300, subdivision (b), alleging each child had suffered, or was at substantial risk of suffering, serious physical harm or illness from Cynthia's inability to provide regular care due to her mental health condition. The petitions also alleged Michael was unable to protect and supervise the children.
On October 24, the court sustained the allegations of the petitions.
In November 2006 the Agency reported Cynthia was briefly hospitalized on three occasions after the children were detained. She was not amenable to psychological and psychiatric services, and showed the social worker a Superior Court document stating she had the right to "accept or refuse" medication.
The count continued the disposition hearing to allow the Agency sufficient time to develop a case plan for the parents and to provide notice to Indian tribes under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). The court ordered an expedited interstate evaluation of the maternal grandparents' home.
Michael is a registered member of the Standing Rock Sioux Tribe.
The Agency filed an initial case plan on December 5, 2006, with the goal of reunifying the children with Cynthia or Michael. Cynthia's case plan required her to participate in general counseling, undergo a psychological evaluation and a psychiatric evaluation, if needed, and complete a parenting education class.
At the disposition hearing on February 6, 2007, the court removed the children from Cynthia's custody and found it would be detrimental to place them in Michael's care. The court made the required ICWA findings, authorized the case plans and placed the children with their maternal grandparents.
The children did well in their grandparents' care. Grandmother reported Cynthia was homeless and unemployed, and did not receive treatment for her mental health condition. Cynthia telephoned the children twice a day. Generally, Cynthia's conversations with the children were appropriate. On occasion, Cynthia's tone and remarks upset her eldest child, and the child avoided Cynthia's telephone calls.
In reports prepared for the six-month review hearing, the social worker detailed her unsuccessful efforts to contact Cynthia. Cynthia did not respond to the social worker's messages, and concluded one telephone call after a brief conversation. The social worker did not know whether Cynthia understood that the children were under the care and custody of the juvenile court, and that services were offered to her to facilitate family reunification. The Agency recommended the court terminate Cynthia's reunification services.
At the contested six-month review hearing in June 2007, Cynthia argued the court was without authority to terminate her reunification services at the six-month review hearing because it did not set a section 366.26 hearing.
The court determined the continuation of reunification services was an individual assessment based on the performance of each parent, and it had the authority to terminate services to one parent while continuing services to the other. The court found that Cynthia did not participate in court-ordered treatment programs on a regular basis and there was no substantial probability of returning the children to her custody within the next six-month review period. The court terminated Cynthia's reunification services and continued Michael's services to the 12-month review date.
DISCUSSION
A
Introduction
Cynthia contends the juvenile court improperly terminated her reunification services. She argues that when the court does not order a section 366.26 hearing at the six-month review hearing, section 366.21, subdivision (e) requires the court to direct that "any reunification services previously ordered shall continue to be offered to the parent . . . ." (§ 366.21, subd. (e); Cal. Rules of Court, rule 5.710(f)(11) .) Alternatively, Cynthia argues if section 366.21, subdivision (e) permits the court to terminate reunification services to a parent, the court's exercise of its discretion was arbitrary and capricious.
All further rule references are to the California Rules of Court.
The Agency asserts the Legislature and courts have recognized under certain circumstances it may be fruitless to provide reunification services to a parent, even when the other parent continues to receive services. (§ 361.5, subds. (b), (e); In re Rebecca H. (1991) 227 Cal.App.3d 825, 837, disagreed with by this court on other grounds in In re Taya C (1991) 2 Cal.App.4th 1, 8; In re Alanna A. (2005) 135 Cal.App.4th 555, 566 (Alanna A.); see 42 U.S.C. §§ 671(a)(15)(D), 5106a(b)(2)(A)(xvi).) The Agency argues the court may terminate services to a parent at the six-month review without setting a section 366.26 hearing if the court finds that the parent did not regularly participate in services and did not make substantive progress, and there is no substantial probability of returning the child to the parent's care by the 12-month review date. The Agency maintains the court did not abuse its discretion when it terminated services to Cynthia because its findings under section 366.21, subdivision (e) are supported by substantial evidence.
When, as here, the facts are not disputed, the legal significance of those facts is a question of law. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) We resolve questions of law de novo. (People v. Kennedy (2005) 36 Cal.4th 595, 608.)
B
The Statutory Framework for Reunification Services
"The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Reunification services play a "crucial role" in achieving these goals. (In re Joshua M. (1998) 66 Cal.App.4th 458, 467; see Alanna A., supra, 135 Cal.App.4th at p. 563.) The provision of reunification services is a requisite feature of California's child welfare plan. (§ 361.5, subd. (a); see 42 U.S.C. § 621 et seq.) The county welfare agency is responsible for providing or arranging services to reunite the child separated from his or her parent because of abuse, neglect or exploitation. (§ 16507, subd. (a).)
Reunification services are defined as "activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family." (§ 16501, subd. (h).) Services and activities include individual, family and group counseling; substance abuse treatment; mental health services; domestic violence programs; temporary child care and therapeutic services; and transportation. (42 U.S.C. § 629a(a)(7)(B); see § 16501, subd. (a).)
Unless a statutory exception applies, reasonable services must be offered or provided to make it possible for a child to return to a safe home environment within the statutory time period. (§§ 361.5, subds. (b), (e), 16501.1, subd. (b)(3); 42 U.S.C. § 629a(a)(7); see Alanna A., supra, 135 Cal.App.4th at pp. 563-564.) Reunification services may be provided to one or both parents. (§ 16507, subd. (c); see also §§ 361.2, subd. (b)(3), 361.5, subds. (b), (e).) Services are time-limited, and may not exceed 12 months except as provided in sections 361.5, subdivision (a), and 366.3, subdivision (b). (§§ 361.5, subds. (a)(1), (b), (e), 16507, subd. (a).) Generally, a parent will be offered or provided reunification services for a maximum period of 12 months. (§§ 361.5, subd. (a)(1), 366.21, subds. (e), (f); cf. 42 U.S.C. § 629a(a)(7)(A).)
Section 361.5, subdivision (a) gives the court the discretion to limit services to six months if the child is under the age of three or a member of the sibling group is under the age of three. (§ 361.5, subd. (a)(2), (3).)
The court is required to review the status of each child in out-of-home placement "no less frequently than once every six months, as calculated from the date of the original disposition hearing." (§ 366, subd. (a)(1).) The six-month, 12-month and 18-month review hearings have separate statutory requirements designed to allow the court to monitor parental progress and the needs of the child, and to consider the child's interest in a prompt resolution of his or her custody status. (§§ 352, subd. (a), 366.21, subds. (e), (f), 366.22; see Alanna A., supra, 135 Cal.App.4th at p. 564.)
At each status review hearing, the court is directed to return the child to the physical custody of his or her parent unless the Agency shows that return of the child to parental custody would create a substantial risk of detriment to the child's safety, protection or physical or emotional well-being. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) If, however, the court determines reunification efforts have failed and it is necessary to set a permanency plan hearing for the child under section 366.26, the court must also order the termination of reunification services. (§§ 366.21, subd. (h), 366.22; see rules 5.710(f)(2)(B), 5.715(d)(3)(A).) The court may not set a section 366.26 hearing to consider termination of the rights of only one parent unless the parent is the only surviving parent, or the parental rights of the other parent have been relinquished or terminated. (Rules 5.695(j); 5.705, 5.710(i); 5.715(e), 5.720(d).)
Within this statutory framework, we consider the provisions of section 366.21, subdivision (e) that guide the court's discretion to continue or terminate family reunification services at the six-month review hearing, and whether section 366.21, subdivision (e) authorizes the court to terminate services to a parent if it does not at that time set a section 366.26 hearing.
C
Interpretation of Section 366.21, Subdivision (e)
The issue presented in this case was recently considered by this court in In re Jesse W. (2007) 157 Cal.App.4th 49. In that case, the court concluded that "section 366.21, subdivision (e) provides no express limitation on the court's authority to terminate reunification services to a parent at a six-month review hearing where the minor is under the age of three and the parent has received or been offered six months of services, regardless of whether the court sets a section 366.26 hearing or offers further services for the other parent. Under these circumstances, the juvenile court retains the discretion to terminate the offer of services to one parent." (In re Jesse W., supra, 157 Cal.App.4th at p. 65.)
We agree with the analysis and conclusion of the court in In re Jesse W. and therefore hold that section 366.21, subdivision (e) did not preclude the termination of services for Cynthia at the six-month hearing even though services for Michael were continued and no referral to a section 366.26 hearing was made.
D
Discretion to Continue Services
Cynthia alternatively contends the trial court abused its discretion by terminating services to her. At the six-month hearing, the trial court found that Cynthia did not on a regular basis participate in the services offered to her during the previous six months, and because of her mental condition there was no substantial probability of returning the children to her custody within the following six months. Substantial evidence supports the trial court's findings and it was not an abuse of discretion to terminate services to Cynthia.
DISPOSITION
The orders terminating reunification services to Cynthia are affirmed.
I CONCUR: NARES, Acting P. J.
DISSENTING
McDONALD, J.
For the reasons set forth in my dissent in In re Jesse W. (2007) 157 Cal.App.4th 49, 66, I disagree with the majority opinion's conclusion that Welfare and Institutions Code section 366.21, subdivision (e), allows the court to terminate reunification services to one parent when the court has exercised its discretion to continue the case to the 12-month review hearing. I would reverse the trial court's order denying services to Cynthia.
The cross-reference in section 16507, subdivision (a) to section 366.3, subdivision (c) no longer appears to be correct. Comparable language to language previously found in section 366.3, subdivision (c) [allowing the court to order reunification services to the legal parent of a child after a legal guardianship has been revoked or terminated] is now found in section 366.3, subdivision (b). (Compare § 366.3, subd. (b) with § 366.3, subd. (c); see Stats. 1994, ch. 900, § 3; Stats. 1995, ch. 540, § 9.)