Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J516007D Ronald F. Frazier, Judge.
IRION, J.
Christina H. appeals following the six-month review hearing in the dependency case of her daughter, K.H. Christina contends the juvenile court erred by granting the modification petition (Welf. & Inst. Code, § 388, subd. (c)) of the San Diego County Health and Human Services Agency (the Agency) and thereby terminating Christina's reunification services. We affirm.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
In 2002 and 2003, before K.H. was born, there were two child welfare referrals based on Christina's neglect of her three older children. K.H. was born in April 2004. She was the subject of a dependency case that lasted from September 2005 to May 2007. During that case, she was in a foster home from October 2005 to June or July 2006. The basis of the case was Christina's drug use and filthy home. Christina's case plan included parenting education, substance abuse treatment and individual therapy.
In March 2009, without the Agency's knowledge, Christina returned K.H. to her former foster home. In July Christina was arrested for possessing brass knuckles, LSD and hashish. Those items were under K.H.'s seat in the car in which she and Christina were riding. In September Christina began a voluntary services agreement with the Agency. The services included parenting education, substance abuse testing and outpatient treatment. In December Christina relapsed, and she continued using methamphetamine and marijuana into early 2010. In March she was arrested as she was about to inject methamphetamine into her arm, where there were existing needle marks. Christina was jailed and did not complete the voluntary agreement.
In March 2010, while K.H. was still in the foster home, the Agency filed the dependency petition in this case. The petition was based on Christina's use of methamphetamine and marijuana and her arrests in July 2009 and March 2010. K.H., who was nearly six years old when the petition was filed, was detained in the same foster home. In April 2010 the court made a true finding on the petition, ordered K.H. placed in foster care and ordered the Agency to provide reunification services to Christina. Christina's case plan required her to participate in individual therapy, a psychological evaluation, parenting education, drug testing and the Substance Abuse Recovery Management System (SARMS) program. The court ordered Christina to report to SARMS within 48 hours of her release from jail.
Christina was released from jail in May 2010. On three separate occasions, SARMS arranged for her to enter a residential substance abuse treatment program. Each time, Christina failed to show up on the appointed date.
In August 2010 Christina was arrested for theft offenses and incarcerated until October. In October she was released to Serenity House, an inpatient drug treatment facility. Christina was returned to jail one week later when she was caught smoking in her room, a rule violation. On October 14 the Agency filed its modification petition, requesting the court terminate Christina's reunification services and set a section 366.26 hearing.
In November 2010, at the six-month review hearing, the court granted the Agency's modification petition and terminated Christina's services. At the time of the hearing, K.H. remained in the same foster home. Christina expected to be released from jail between December 2010 and March 2011.
After terminating services, the court continued the six-month review hearing. At the continued hearing on January 18, 2011, the court confirmed its findings underlying the order terminating Christina's reunification services. The Agency moves to augment the appellate record with the January 18, 2011, reporter's transcript and minute order, arguing they corrected an omission in the record; clarified the earlier ruling; and may moot Christina's argument the court failed to make section 388, subdivision (c) findings. We deny the motion as unnecessary.
I
The Court Did Not Abuse Its Discretion By Granting the Agency's Section 388 Petition
A
The Applicable Law
The Agency's modification petition was filed pursuant to section 388, subdivision (c)(1)(B). That subdivision allows the Agency to petition for termination of reunification services before the six-month review hearing if the child was at least three years old when initially removed from the parent's physical custody. (§§ 388, subd. (c), 361.5, subd. (a)(1)(A).) As relevant here, the Agency must show that the parent's action or inaction "creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent['s]... failure to visit the child, or... participate regularly and make substantive progress in a court-ordered treatment plan." (§ 388, subd. (c)(1)(B).) "In determining whether the parent... has failed to visit the child or participate regularly or make progress in the treatment plan, the court shall consider factors including, but not limited to, the parent['s]... incarceration, institutionalization, or participation in a court-ordered residential substance abuse treatment program." (Id., subd. (c)(2).) To terminate services pursuant to section 388, subdivision (c), the court must find, by a preponderance of evidence, that reasonable services were offered or provided, and must also find, by clear and convincing evidence, that a condition set forth in section 388, subdivision (c)(1)(B) exists. (Id., subd. (c)(3).)
This case does not involve the more common section 388, subdivision (a) petition, which simply entails a determination whether changed circumstances exist and whether the proposed modification of an order would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) There is no express requirement in section 388, subdivision (c)(1)(B) for a showing or a finding that the termination of services is in the child's best interests.
On appeal, we first determine whether the required factual findings are supported by substantial evidence. (In re M.V. (2006) 146 Cal.App.4th 1048, 1059-1060.) In the absence of an express finding on a particular issue, we determine whether substantial evidence supports an implied finding. (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) If substantial evidence supports the required express and implied findings, we decide whether the juvenile court abused its discretion by terminating reunification services based on those findings. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
B
Contentions and Discussion
Christina contends the court's findings and orders regarding the Agency's modification petition are unsupported by unsubstantial evidence. She makes several arguments in support of this contention. Christina first argues the court omitted four required findings namely that: she received reasonable services; she failed to participate and progress in services; she failed to visit K.H.; and Christina's actions created a substantial likelihood that reunification would not occur. This first argument lacks merit.
In her reply brief, Christina contends, for the first time, that the court was required to state the factual basis of its findings on the record or in writing. As support for this contention, she cites California Rules of Court, rule 5.695(a)(7). That rule requires a statement on the record or in writing of the factual basis for certain orders not relevant here. (Cal. Rules of Court, rule 5.695(a)(7)(A), (B).)
In granting the Agency's section 388 petition, the juvenile court stated, "The court... finds by clear and convincing evidence that the Agency has met [its] burden as to both prongs, and that there is a change of circumstances with respect to [Christina]'s failure to perform services with respect to her lack of consistency in that regard and has failed to demonstrate significant progress in the case plan, and that it is in the best interests of [K.H.] to terminate services...."
This ruling contains an express finding that Christina failed to "participate regularly and make substantive progress in a court-ordered treatment plan." (§ 388, subd. (c)(1)(B).) Although the court did not make express findings "that reasonable services [were] offered or provided" (id., subd. (c)(3)) or that Christina's action or inaction "create[d] a substantial likelihood that reunification w[ould] not occur" (id., subd. (c)(1)(B)), substantial evidence supports implied findings on those points. Christina received services for well over a year, first under the voluntary agreement and then in this case. She was offered services to address her substance abuse, psychological issues, lack of employment and parenting deficits. Rather than taking advantage of these services and advancing toward reunification, Christina continued to use drugs and was jailed repeatedly. When she was out of jail, she did not stay in contact with the Agency or visit K.H. consistently. Christina did not complete a parenting class, start individual therapy or undergo a psychological evaluation. She did not begin drug treatment until she was incarcerated in August 2010.
Alternatively, on this record, the court could have found that Christina failed to visit K.H. Section 388, subdivision (c)(1)(B) does not require findings on both points.
After Christina was jailed, she placed herself on a waiting list for therapy, but she did not know if the therapist was approved by the Agency.
Christina next argues the court "simply ignored" the evidence she presented. She bases this argument on the court's failure to state expressly whether it considered her evidence and believed her testimony. The court said, however, that it had "listened carefully to the testimony and the manner in which the witnesses testified...." In addition to her own testimony, Christina presented a letter from the director of the inmate substance abuse treatment program Christina began after she was incarcerated in August 2010. The letter stated merely that Christina wanted to change, had "shown growth, " and was "taking the steps necessary to participate fully in her recovery." The court received the letter into evidence and we presume the court considered it (In re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556), there being no indication to the contrary.
Christina also argues the court disregarded what she had accomplished while in jail. Those accomplishments were as follows: Christina had been sober since her latest arrest and incarceration in August 2010, a period of approximately three and one-half months; She was participating in the inmate substance abuse treatment program, believed the program helped her and intended to continue participating; She was on a waiting list for a postrelease treatment program, and planned to participate in SARMS; and She had contact visits with K.H., arranged by the Agency.
During visits and telephone conversations, Christina sometimes became emotional and talked about herself rather than focusing on K.H.
The record simply does not support Christina's assertion that the court ignored these accomplishments. While laudable, Christina's plans, and her sobriety and participation in treatment during her latest incarceration, do not rise to the level of substantive progress. Rather, those factors represent a beginning.
Christina next argues the court ordered services "based on her being out of jail." It was her responsibility, however, to stay out of custody as "a fundamental first step" in the reunification process. (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162.) Christina further argues that when she was out of jail, she lacked housing and transportation resources. She did not raise this issue below, nor did she request the Agency's assistance in these areas. Furthermore, when she was out of jail, she did not stay in contact with the Agency. The only failure here was Christina's own failure "to communicate with the [Agency] and participate in the reunification process." (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) " 'It is... well established that "[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. [Citation.]" ' " (In re Nolan W. (2009) 45 Cal.4th 1217, 1233, quoting In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) There is no " 'requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions.' " (In re Nolan W., supra, at p. 1233, quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
The court did not abuse its discretion by granting the Agency's section 388 petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.
Although not required, the modification petition here alleged the proposed modification would promote K.H.'s best interests. The parties litigated that issue, and the court expressly found that it was in K.H.'s best interests to terminate Christina's services. The record supports that finding. Six-and-one-half-year-old K.H. had lived with her foster parent for periods totaling approximately two and one-half years, and the foster parent had visits with K.H. while K.H. was living with Christina. The foster parent, who obtained de facto parent status, provided an enriching environment and fulfilled all of K.H.'s needs, and K.H. was thriving in the home. K.H. was attached to the foster parent and called both her and Christina "Mom." Christina was in the beginning stage of sobriety after approximately 17 years of substance abuse and was unable to meet K.H.'s needs.