Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SDP20060017
MORRISON, JUDGE
Appellant, Lindsay P., the mother of the minor (mother), appeals from the juvenile court’s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) Mother claims the juvenile court erred by denying her additional reunification services at the 12-month review hearing and by denying her request for modification. She also maintains she received ineffective assistance of counsel at the hearing at which her parental rights were terminated. We shall affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, a petition was filed regarding the newborn minor because Mother and the minor tested positive for methamphetamine when the minor was born and both parents had a history of methamphetamine use. The parents were granted reunification services.
According to the six-month review report, Mother, who was six months pregnant, began missing tests and “a couple of visits” in August and, in September, tested positive for methamphetamine. She was referred to and completed a 30-day residential treatment program. In November 2006, the juvenile court granted an additional six months of reunification services.
Beginning in January 2007, the parents again missed numerous tests, then tested positive for methamphetamine the following month. The parents stopped visiting the minor from mid-February until late March, and attempts to contact them were unsuccessful. The parents showed up for two visits in late March, but failed to attend a third visit that was scheduled for the day before they were to enter residential treatment again, leaving the minor waiting in the social services office for more than an hour. The parents again tested positive for methamphetamine the following day, at which time they were admitted into an inpatient program. The social services agency began transporting the minor and the parents for weekly visits.
Before their second relapse, the parents had been having overnight visits with the minor. According to the social worker, the six weeks of visits missed by the parents were at a critical point in the minor’s life, as “show[n] in his initial reaction to them” when they started visiting again.
According to the 12-month review report, both parents had remained in residential treatment. At the review hearing in June 2007, the drug court coordinator testified that she had seen a positive change in Mother’s attitude toward recovery since she entered the second treatment program and that Mother was “truly devoted” to staying sober. The coordinator believed Mother would be successful in recovery if she remained in treatment and stayed engaged in the recovery community.
The juvenile court found the parents had made significant progress in resolving the problems leading to removal of the minor and had, “as late,” demonstrated the capacity and ability to complete services such that the minor could be safely returned, but it could not find the parents had consistently and regularly visited the minor. The matter was set for a hearing to select and implement a permanent plan for the minor pursuant to section 366.26.
According to the report for the section 366.26 hearing, the minor was placed in a prospective adoptive home in June 2007, and he “ha[d] formed a close and healthy bond with his foster/adopt parents[.]” The minor “seemed confused” by the weekly one-hour visits with his parents, “and there did not appear to be a close attachment” between them.
The minor’s father filed a request for modification, seeking an additional six months of reunification services. The request alleged that “[t]he parents ha[d] continued to engage in and grow in their recovery” and that the minor should be given “the opportunity to grow up with his true biological family[,]” including his new sibling.
On the date set for the section 366.26 hearing, Mother’s attorney was relieved and new counsel was appointed to represent her, and the matter was continued two weeks. Prior to relieving counsel, Mother’s attorney explained that she had not been instructed by Mother to file a request for modification, but she would “see that we get a [modification petition] filed before that hearing date.”
As explained by the juvenile court at a subsequent hearing, Mother’s previous attorney was relieved based on a change in the process for appointing counsel.
At the hearing two weeks later, Mother’s new attorney informed the juvenile court that he had asked the previous attorney for her file the day before but was told she needed it for billing purposes. However, he had received most of the file from the court clerk and had reviewed it the night before the hearing. Mother’s attorney explained that Mother had attempted numerous times to contact her prior attorney to file a modification request but had never heard back from her, and the court allowed Mother to join the father’s request for modification, which was “based on the same exact set of facts.”
The father testified he had been living in a transitional house for nearly five months since completing a 60-day rehabilitation program. Children were allowed to spend the night but they could not live there. The father planned to stay at the transitional house until he could afford a residence for his family. However, he recently had been laid off from his job as a laborer due to lack of work.
Mother testified she had entered residential treatment nearly seven months earlier and had remained in the program until the previous week. She felt she had not been ready to stop using drugs during her previous attempt at rehabilitation, but she was “working” her program this time. Letters and documentation establishing Mother’s progress were received into evidence.
Mother had arranged to enter a transitional living house, where she could live for up to one year and where the minor’s sibling would be residing with her. According to Mother, the minor could live there as well. She testified that the minor appeared to show affection toward her during visits, and she felt she had bonded with him.
The social worker testified that, although she felt the parents could provide a clean and sober environment at the time of the hearing, she was not sure about their ability to do so on a long-term basis. She also expressed concern about their lack of a residence and employment.
The juvenile court denied the parents’ request for modification because the 18-month limit for services was in four weeks and both parents were still living in structured environments. The court stated: “[T]here should be some period of time when you’re out of that structured environment where it’s shown that you can cope, and there is just no time to do that.” The court concluded that the parents would not be ready to take over the full care of the minor within 30 days, even under a family maintenance program.
Mother’s attorney “[renewed his] request for a continuance based on just receiving the entirety of the file,” noting that he had met “[v]ery briefly” with Mother the day before. He also stated he “[knew] the Court’s decision on that.”
After receiving a request from the father’s attorney to consider the testimony it had just received regarding the parental and sibling attachment, the juvenile court reviewed the possible exceptions to adoption and concluded that none of them applied. The court terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
I
Mother contends the juvenile court erred by failing to order an additional six months of reunification services at the 12-month review hearing. Mother raised this argument in writ proceedings following the hearing at which her services were terminated, and we summarily rejected it pursuant to Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, without issuing an opinion. (Lindsay P. v. Superior Court (Aug. 2, 2007, No. C056112).) Accordingly, Mother is entitled to raise the issue on appeal from the termination of her parental rights. (Joyce G., supra, at p. 1514.) Nonetheless, we find no merit to her argument.
When a child is not returned to his parent at the 12-month review hearing, the court may continue the case for an additional six months, not to exceed 18 months from the date the child was originally removed, only if there is a substantial probability the child will be returned safely to parental custody within the extended period of time or there is a determination that reasonable services have not been provided. (§ 366.21, subd. (g)(1).) In order to find a substantial probability that the child can be returned safely, the court must make three additional findings: (1) the parent has consistently and regularly contacted and visited the child; (2) the parent has made substantial progress in resolving the problems that led to the child’s removal; and (3) the parent has demonstrated the capacity to complete the objectives of the case plan and safely care for the child. (§ 366.21, subd. (g)(1)(A)-(C).)
Here, the record establishes that, less than three months before the 12-month review hearing, Mother stopped visiting the minor for a period of six weeks. This was not a trivial period of time, particularly in the life of a nine-month-old child, nor was it so remote in time as to be insignificant with regard to the findings the juvenile court was required to make at the review hearing. Accordingly, the juvenile court’s finding that the parents had not consistently and regularly visited the minor was supported by substantial evidence.
II
Mother maintains the juvenile court abused its discretion by denying her modification request because it did not understand it had authority to extend services beyond the 18-month limit. We detect no abuse of discretion.
Section 388, subdivision (a), provides, in relevant part: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court.”
Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (l994) 8 Cal.4th 398, 415.)
Mother maintains the juvenile court was unaware it had discretion to continue reunification services past the 18-month limit when it denied her request for modification. Several appellate courts have recognized a juvenile court’s discretion in this regard based on section 352, which permits a hearing to be continued “beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor.” (§ 352, subd. (a); Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465.) However, “[t]he express language of section 352 circumscribes the court’s discretion by emphasizing the minor’s need for prompt resolution of his or her custody status.” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799.) Consequently, “only under extraordinary circumstances ‘involv[ing] some external factor which prevented the parent from participating in the case plan[]’” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510) -- such as inadequate reunification services (see, e.g., Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017, and In re Daniel G. (1994) 25 Cal.App.4th 1205, 1216) or a parent’s “special needs” (see, e.g., In re Elizabeth R., supra, at pp. 1798-1799) -- may a juvenile court continue a matter beyond the 18-month review hearing to allow a parent additional time to reunify.
Here, there were no external factors that prevented Mother from reunifying with the minor within the statutory time. To the contrary, the fact that Mother ran out of time was not caused by extraordinary circumstances but, instead, was the result of Mother’s relapse. Mother admitted she had been less than committed to her rehabilitation and that only upon reentering treatment in March 2007 -- 10 months after the minor’s removal -- did she become engaged in her sobriety.
As there was an insufficient basis for the juvenile court to exercise its limited discretion to consider extending services beyond the 18-month statutory maximum, the court did not abuse its discretion by declining to consider this option.
El Dorado County Department of Human Services argues that the option to extend reunification services beyond the 18-month limit was no longer available once services were terminated. While we resolve the issue on another basis, we note we would be reluctant to agree that a parent is foreclosed in all cases from establishing the requisite extenuating circumstances once services have been terminated.
III
Finally, Mother asserts she received ineffective assistance of counsel at the section 366.26 hearing because her attorney did not request a continuance to adequately prepare for the hearing and did not request that services be extended beyond the 18-month limit. Again, we disagree.
When making a claim of ineffective assistance of counsel, the burden is on Mother to establish both that counsel’s representation fell below prevailing professional norms and that, in the absence of counsel’s failings, a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) Unless the record affirmatively establishes ineffective assistance of counsel, we must affirm the judgment. (Cf. People v. Pope (1979) 23 Cal.3d 412, 426.)
Noting that her attorney had not received the previous attorney’s file, had not filed a request for modification and had not had “extensive contact with [her],” Mother argues that “[a]ny responsible attorney would have requested a continuance . . . under these circumstances.” In fact, the statement by Mother’s attorney when he “[renewed his] request for a continuance” that he already “[knew] the court’s decision” suggests there had been previous discussion of a continuance and the juvenile court had indicated it would deny the request.
In any event, Mother’s attorney had reviewed the majority of the juvenile court file prior to the hearing, and there is nothing in the record to suggest the prior attorney’s file would have revealed additional information that might have favorably affected the outcome of the hearing. Likewise, although no written request for modification was filed on Mother’s behalf, she was permitted to join in the father’s request and to present testimony and evidence on her own behalf. Finally, on the record before us, there is no basis to conclude that the amount of contact between Mother and her new attorney was inadequate to prepare for the hearing.
As for Mother’s claim that her attorney was deficient for failing to request an extension of services beyond 18 months, we have already concluded there was an absence of extenuating circumstances to justify an extension of services beyond the statutory maximum. Mother’s attorney cannot be faulted for failing to request that which the law would not permit.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: RAYE, Acting P.J., BUTZ, J.