Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP012941, Caryl Lee, Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
No appearance for the Minor.
OPINION
FYBEL, J.
Introduction
John A. and Michelle J. are the biological parents of Jessie A., now two years old, who was declared a dependent of the juvenile court in April 2006. At the six-month review hearing, the juvenile court terminated John’s reunification services, due to his noncompliance with his case plan, but continued reunification services to Michelle for an additional six months. John appealed; we affirm.
There was sufficient evidence that John failed to complete his case plan. The court was not required to treat John and Michelle the same. The court found Michelle had made an attempt to complete her case plan, but was hampered by John. (In this opinion, we do not determine whether the findings regarding Michelle’s case plan compliance were correct. Whether Michelle did, in fact, satisfactorily complete her case plan is a matter not before us.)
Statement of Facts and Procedural History
In February 2006, Jessie, then four and one-half months old, was taken into protective custody by the Orange County Social Services Agency (SSA) after the police responded to a dispute between John and Michelle. A juvenile dependency petition was filed, alleging Jessie came within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b). (All further statutory references are to the Welfare and Institutions Code.) The petition alleged Jessie had been found in a dirty motel room without food; both John and Michelle had unresolved substance abuse problems; both John and Michelle had criminal histories; Michelle had left Jessie in the care of Jessie’s paternal aunt, who had a propensity toward violence; and John’s and Michelle’s ability to provide care and support for Jessie was impaired, placing Jessie at a substantial risk of serious harm or neglect. Jessie had been the subject of three previous child abuse reports, none of which had been substantiated. The juvenile court ordered Jessie detained and placed in foster care.
At the jurisdiction hearing on April 25, 2006, the juvenile court found the allegations of the petition true by a preponderance of the evidence and declared Jessie to be a dependent child of the juvenile court. (§ 300, subd. (b).) The court also found by clear and convincing evidence there would be a substantial danger to Jessie’s physical health, safety, protection, or physical or emotional well-being if she were returned home, and removing her from the physical custody of John and Michelle was in her best interests. (§ 361, subd. (c)(1).)
At that hearing, the juvenile court also approved SSA’s service plans and visitation plans for John and Michelle. The case plan objectives required both John and Michelle to show their ability and willingness to have custody of Jessie, to comply with all court orders, to develop positive support systems, to avoid illegal drugs and comply with all required drug tests, and to maintain a stable, suitable residence. John’s case plan included individual and group counseling, parenting education classes, and twice-weekly drug testing. Michelle’s case plan included the foregoing, as well as participation in a drug treatment program in accordance with the dependency drug court requirements, and attendance at a 12-step program. Both John and Michelle were authorized to have two monitored visits with Jessie each week.
Michelle initially performed well under her case plan, participated in the dependency drug court program, and tested negative for drugs from February 2006 through mid-May 2006. At the progress review hearing on April 25, 2006, the juvenile court noted, “[m]om is doing well in her classes and her testing. [¶] Concerns were discussed as to father, and mom’s been encouraged to proceed on her own and recognize her own strength and responsibility for getting Jessie and her back on track.” When Michelle told the court at the progress review hearing that John would not appear because he believed there was no reason for him to do so, the court encouraged Michelle to continue participating: “I don’t want you to be deprived of [extra visits with Jessie] because of somebody else who is not taking advantage of the situation, doesn’t care.”
However, Michelle’s participation in her case plan soon became more sporadic; she tested positive for methamphetamine on May 22 and 24, 2006, and missed testing on May 26, 30, and 31. Michelle stopped attending the perinatal program, and was terminated from a parenting education program and the dependency drug court program. She failed to attend counseling and additional parenting classes. Michelle was arrested three times between January and July 2006 for being under the influence of a narcotic or a central nervous system stimulant. Michelle gave birth to another child in August 2006 and admitted to “‘regular meth use during that period of time.’” The social worker had no contact with Michelle between December 11, 2006 and January 31, 2007. Michelle failed to visit with Jessie between July 2006 and January 31, 2007. In a report filed before the six-month review hearing, SSA concluded, “there is no substantial probability of return to the mother, Michelle J[.], in the next six months, due to her complete lack of compliance with her Court ordered case plan and continued substance abuse and encounters with the law.”
SSA also concluded, “there is no substantial probability of return to the father, John A[.], in the next six months, due to his complete lack of compliance with his Court ordered case plan, lack of visitation with his child, and continued encounters with the law.” John was terminated from his parenting education classes and counseling due to lack of participation. John had many missed drug tests, which were treated as positive tests; he had only one negative drug test result during the six-month review period. John failed to visit Jessie since July 2006, and had failed to communicate with the social worker since August 16, 2006.
On February 1, 2007, Michelle had a monitored visit with Jessie, at which Michelle acted appropriately. She told the social worker who monitored the visit that John threw away her earlier service referrals “so she would not be able to reunify with her children.” Michelle admitted she and John were still using drugs, and she had used drugs throughout her recent pregnancy. She also informed the social worker that John had been arrested a few days earlier, and was currently incarcerated. Michelle claimed she was participating in a Proposition 36 program, attending classes and 12-step meetings, drug testing weekly, and was in the process of moving into a sober living home. She stated she was supporting herself financially with the help of friends and through “criminal activity” which she described as “‘not harmful to others.’”
At the six-month review hearing, the juvenile court and John engaged in the following colloquy:
“The father: If I may say, ma’am, I have been negligent. I’ve only seen you, this is the second time.
“The Court: That’s right.
“The father: Michel[l]e, on the other hand, has done a remarkable job and deserves another chance. She was doing a great job at testing and program and I believe that she – I would come down here with her for moral support for four months, ma’am, and never once did I get to come in here and see you. Only the first time. [¶] After that four months, Michel[l]e slid back and she got lost and no one tried to find her at all. What I mean by that is she deserves – she can do it. She has done it. Given another chance, she will do it again. I’ve seen it.
“The Court: Oh, I’ve seen it, too.
“The father: She deserves it, ma’am.
“The Court: But it wasn’t through your help, that’s for sure.
“The father: No, ma’am, I’m not taking any credit.
“The Court: And you shouldn’t take any credit for it, quite frankly. Don’t even try.
“The father: No, ma’am. I’ve been negligent and if the court some day sees fit after I serve my time here, I will step up, the court willing, and do exactly what they want me to do.
“The Court: Well, wouldn’t that be a little too little, too late? You have two kids.
“The father: I hope not, ma’am. . . .
“The Court: Well, Mr. A[.], I’m not inviting a response [from] you when I say what I’m going to say. There has never been a time when you have not been able to come into the court. You were ordered to return the first time I saw you in the courtroom. And the only time that I was aware that you were physically around was when someone said you were in the hall and then when they went to find you, you were gone. [¶] There has been minimal effort on your part to participate, let alone support Michel[l]e.
“The father: Yes, ma’am. [¶] . . . [¶]
“The Court: And I know that she can make changes, but she hasn’t had any assistance from you. And in fact, it’s been the opposite. When someone is in recovery you will learn, they have to surround themselves with other people who will support them and not bring them down. [¶] And so I can appreciate that you recognize the strength that she has.
“The father: Yes, ma’am.
“The Court: But I’m not going to let you come in here and say that nobody let you in the courtroom and that nobody is sitting around here trying to help because that is completely inaccurate.
“The father: No, ma’am. If I may say that I have recognized that Michel[l]e has tried and I have failed her for four months while she was giving it her all. As I look back on a daily basis now, I see where I’ve gone wrong. And for this woman not to have a right to see her kids or be a part of their life would be devastating to me. [¶] And I hope, judge, ma’am, that aside from my ignorance and negligence, that you will give her the opportunity to do it one more time. [¶] . . . [¶]
“The Court: And I have explained to Michel[l]e before that I believe that she is responsible for the choices that she has made. And unfortunately, there hasn’t been support for some of the good choices that she could have made. [¶] And she is promising me that she is going to work on that, isn’t that right, Michel[l]e?
“The mother: Yes.”
The juvenile court found that returning Jessie to John and Michelle’s care and custody would create a substantial risk of detriment to Jessie’s physical or emotional well-being. (§ 366.21, subd. (e).) The court also found there was a probability Jessie might be returned to Michelle’s physical custody within six months. (Ibid.) The court terminated John’s reunification services, finding that “[t]here has simply been no contact that the court could translate into parenting by any stretch of the imagination,” and set the matter for a 12-month review hearing; the court did not at that time set the matter for a permanency hearing. John timely appealed from the order terminating his reunification services.
Discussion
I.
The evidence supports the juvenile court’s finding that John’s reunification services should be terminated.
Reunification services must be provided to the parents of a dependent child, except under circumstances not present here. (§ 361.5, subd. (a).) When a child is under three years of age at the time he or she is initially removed from the parents’ custody, “court-ordered services shall not exceed a period of six months from the date the child entered foster care.” (§ 361.5, subd. (a)(2).) The juvenile court may, however, order that services be provided for an additional time period “if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period.” (§ 361.5, subd. (a); see § 366.21, subd. (e).) When the child is under three years of age on the date of the initial removal, a finding “by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan” is sufficient for the court to terminate reunification services and set the matter for a permanency hearing. (§ 366.21, subd. (e).)
The juvenile court’s findings under section 366.21, subdivision (e) are reviewed under the substantial evidence test (Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 398), which “requires U.S. to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged” (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401). “The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
The appellate record in this case contains substantial evidence that John failed to participate or make substantial progress in his case plan. John failed to appear in court, failed to meet with the social worker, and failed to visit with Jessie. John was terminated from parenting education classes and counseling because he did not show up. John failed to drug test. In short, John did absolutely nothing to complete his case plan. No matter how much or how little of her case plan Michelle completed, there was clear and convincing evidence of John’s failure to complete his case plan.
II.
The juvenile court was not required to treat John and Michelle the same with regard to continuation of reunification services.
John argues the juvenile court’s order terminating his reunification services was in error because he and Michelle were similarly situated, and thus should have been treated the same in terms of the services offered.
A parent is not constitutionally entitled to receive reunification services. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Additionally, there is no requirement that the juvenile court continue reunification services for one parent when it continues services for the other. “As a practical matter . . . where a nonreunifying parent is likely to have some continued contact with his or her child, further services to that parent may be in the child’s best interests.” (Id. at p. 565, fn. omitted.) This determination, however, is a matter for the discretion of the juvenile court. (Id. at p. 566.) In such circumstances, the juvenile court may consider whether it would be fruitless to provide reunification services to the nonreunifying parent; if so, “the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citations.]” (Ibid.)
In re Alanna A., supra, 135 Cal.App.4th 555 is instructive here. Alanna A., then 14 months old, was taken into protective custody in February 2004, based on allegations of parental neglect, substance abuse, and domestic violence. (Id. at p. 559.) Family reunification services were provided to the father and the mother. (Id. at p. 560.) The mother participated in the services and made “‘great progress.’” (Ibid.) The father failed to enroll in one required program, was dropped from counseling, and sporadically participated in another required program. (Ibid.) The father did not visit with Alanna between June and September 2004, and failed to attend the six-month review hearing. (Ibid.)
After a 60-day home visit with the mother, a supplemental petition was filed; although the mother “had been consistently participating in her ‘entire case plan,’” she was suffering from postpartum depression, and had left her newborn unsupervised and unattended. (In re Alanna A., supra, 135 Cal.App.4th at p. 560.) The father did not visit Alanna during the second six-month review period, and generally failed to participate in his case plan. (Ibid.) Approximately one month before the 12-month review hearing, the father entered a residential treatment facility. (Ibid.)
At the 12-month review hearing, the juvenile court terminated the father’s reunification services because he had not complied with his case plan and had not visited Alanna until recently. (In re Alanna A., supra, 135 Cal.App.4th at p. 561.) Although the social services agency stated the mother’s prognosis for reunification was poor, the juvenile court continued the mother’s reunification services until the 18-month review hearing. (Ibid.)
The father appealed, claiming the juvenile court could not terminate reunification services to one parent while continuing services to the other parent until the next review hearing. (In re Alanna A., supra, 135 Cal.App.4th at pp. 558-559.) The appellate court, however, disagreed. “We conclude that the court’s action at the 12-month review hearing was authorized by section 366.21, subdivision (g) and that section 366.21, subdivision (h) does not bar termination of reunification services to one parent when services are extended for the other parent to the 18-month review date. In addition, the juvenile court did not abuse its broad discretion to fashion an order at the 12-month review hearing.” (Id. at p. 559.)
Here, too, the relevant statutes do not bar termination of reunification services to John when services were continued for Michelle. The juvenile court was permitted to conclude continued reunification services to John would serve no useful purpose.
We disagree with John’s contention that he and Michelle were in the same position. The SSA reports establish that although Michelle’s performance of her case plan was poor during a significant portion of the review period, she had attempted to perform her case plan early in the period, and was again attempting to comply near the end of the period. John’s performance, to the contrary, was poor throughout the review period. There was also evidence from which the juvenile court could infer John actually impeded Michelle’s performance of her case plan. The juvenile court acted well within its discretion in ordering John’s reunification services terminated while Michelle’s were continued.
In this opinion, we do not determine whether Michelle’s performance of her case plan was adequate. The court’s opinion in In re Alanna A., supra, 135 Cal.App.4th 555, was not dependent on the level of progress made by the mother. Although the juvenile court in that case found the mother had made “‘great progress’” and reunification was anticipated soon after the six-month review hearing (id. at p. 560), by the time of the 12-month review hearing, the prognosis for reunification was poor (id. at p. 561).
Disposition
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.