Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ010082 Michael J. Rushton, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RICHLI J.
J.D. (Father) appeals the juvenile court’s order at a six-month review hearing held pursuant to Welfare and Institutions Code section 366.21, subdivision (e) terminating his reunification services with his two daughters, who were returned to the custody of D.R. (Mother) on a family maintenance program.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Petition and Detention
On May 27, 2010, four-year-old V.D. and two-year-old A.D. were detained by the Riverside County Department of Public Social Services (the Department). On that day, their maternal grandmother (Grandmother) had called the Department regarding Mother, who she suspected was under the influence of methamphetamine and could not properly care for the minors. Mother left A.D. and V.D. with Grandmother, but Grandmother could not care for them at that time. A previous report had been made to the Department that Mother was caring for the minors while under the influence of methamphetamine. It was reported that Father was not involved, as he was “on drugs” and his location was unknown.
A social worker for the Department went to Grandmother’s home. Father and Mother could not be contacted. Grandmother reported that Mother had been using drugs on and off since she was 15 years old. She suspected that Mother suffered from some sort of mental illness. V.D. and A.D. appeared to be in good health. They were placed together in a confidential foster home.
On May 30, 2010, Mother contacted the Department. She claimed that on the day the children were detained, she had drunk only one-half of a beer and then drove the minors to Grandmother’s house to borrow some food. She last smoked methamphetamine and marijuana two weeks prior. She was attending Alcoholics Anonymous meetings and no longer wanted to use drugs. Mother stated that Father was the girls’ father. Four prior referrals for the minors were made to the Department but were unfounded. Mother had prior arrests for substance abuse. There was also a prior report of domestic violence between Mother and Father.
Father contacted the Department and reported that he was living with Mother. He had a conviction for receiving stolen property and had been paroled on May 19, 2009. His release from parole was scheduled for May 27, 2012. He had several prior alcohol/drug offenses. He admitted he had used methamphetamine, heroin, and marijuana within the prior few days.
On June 1, 2010, the Department filed a section 300 petition against Mother and Father for A.D. and V.D., alleging a failure to protect (§ 300, subd. (b)) due to the substance abuse by both of them, against Mother for driving the minors without car seats and after drinking alcohol, acts of domestic violence between Mother and Father, and Father’s criminal history.
The petition was later amended to strike that Father’s criminal history was extensive and that Mother left the children with a caregiver who was unable to care for the children for an extended period of time.
The detention hearing was held on June 2, 2010. Father was declared the presumed father. The juvenile court found a prima facie case and ordered that the children be detained and remain in the custody of the Department with a foster family.
B. Jurisdiction/Disposition
In a jurisdictional/dispositional report filed on June 25, 2010, the Department recommended that Father and Mother be granted reunification services.
The Department had attempted to contact Father on four occasions since the detention hearing to interview and offer him services. The Department had left messages on Father’s telephone and with his parole officer but had received no response.
Mother, who was 27 years old, had been sober for 46 days. She had no intention of relapsing. She was enrolled in a substance abuse program.
Father’s parole agent reported that Father had no violations and had tested clean for illegal substances. He was living with his mother (the paternal grandmother) in San Diego and had found a job. He had been detained by law enforcement officers on June 21, 2010, because his car smelled like marijuana. Father’s parole was not violated.
V.D. and A.D. had no reported medical problems and were on track developmentally. V.D. was bonded with Mother. Grandmother was being considered for custody.
Father had attended only two visits with the children. Mother had attended all of the visitations (two hours, two times weekly). The children cried when Mother had to leave. Mother had tested negative for illegal substances during the reporting period.
In its recommendations to the juvenile court, the Department recommended that reunification services be granted and that such services continue “within statutory timelines.” The Department also recommended that the juvenile court find that V.D. and A.D were part of a sibling group in that A.D. was under the age of three years at the time of the initial removal. Further, it recommended that the juvenile court find that since A.D. and V.D. were part of a sibling group, and one of them was under the age of three years, the failure to participate regularly and make substantive progress in court-ordered treatment programs might result in the termination of reunification services for all or some members of the sibling group at six months. The Department recommended that the allegations in the petition be found true.
At the jurisdictional hearing on June 30, 2010, Father was present. He claimed to have tried to contact the Department but had not been successful. He wanted to begin services. The juvenile court found the allegations under section 300, subdivision (b) of the amended petition true. V.D. and A.D. remained in a foster home. The trial court adopted the case plan that Father and Mother should be granted reunification services. The date set for adoption, placement, or return to the home was December 20, 2010. The trial court specifically found that A.D. and V.D. were part of a sibling group, that one of the children was under three years of age, and that reunification services could be terminated at six months. It adopted the recommendations of the Department in total.
The petition was uncontested.
The juvenile court advised Father and Mother: “It is absolutely critical that you reunify with the children before the end of this six months, and that six-month time frame ends on that December 30th date of this year.”
C. Six-month Review Report and Hearing
In a six-month review hearing report filed on December 7, 2010, the Department recommended that reunification services be terminated as to Father and to return A.D. and V.D. to the custody of Mother with family maintenance services. A status review hearing pursuant to section 366.21, subdivision (e) was scheduled for December 20, 2010. The children had been moved from foster care to the custody of Grandmother on September 16, 2010.
Mother intended to live with Grandmother once A.D. and V.D. were returned to Mother’s care. Mother was not currently in a relationship with Father and did not intend to resume a relationship with him. She was working at two jobs, had tested clean in 23 random drug tests, and had fully participated in her services.
Father’s last contact with the Department was on October 7, 2010, where he stated he was living in San Diego County. He advised the social worker that he would be moving back to Hemet to live with Mother. He was advised to contact the Department upon moving back to Hemet and provide his address. Father had not contacted the Department since October 7, and calls to him had been unsuccessful. Due to his lack of communication with the Department, his current status was unknown. Father was discharged from parole on June 26, 2010.
Father had been ordered to participate in an anger management program, individual counseling, parenting education, a substance abuse program, and substance abuse testing. Although Father had enrolled in some of the programs, he had not completed them and had not attended any classes since September 27, 2010. All of his drugs tests came back positive for marijuana. He missed random drug tests scheduled for October 7 and 26, 2010. He was sent a referral to services in San Diego since he had reported that he had moved there with his parents, but he never attended them as far as the Department could ascertain.
Father was present in court on December 20, 2010, and requested a hearing under section 366.21, subdivision (e). Mother was granted family maintenance services as long as she resided with Grandmother. A hearing was scheduled for January 26, 2011.
An addendum report was filed on January 21, 2011. The report was prepared “for the Contested 366.21[, subdivision] (e) Status Review Hearing calendared on January 26, 2011.” There were no changes to the Department’s recommendation.
On December 14, 2010, Father had come to the Department and participated in a family visit. He was told after A.D., V.D., and Mother left that he was to stay and meet with one of the social workers to discuss services and visitation. Father left and did not meet with anyone and did not return a call from the Department about why he left. Father missed a random drug test on December 15, 2010. He never completed a domestic violence course. He had not responded to calls from the Department regarding scheduled visitations.
A.D. and V.D. had been returned to Mother’s care on December 20, 2010. Mother continued to test negative for any controlled substances. Father had visited with the children on October 3, 2010. Grandmother reported that Father had come for a few other visits but left quickly. On November 15, 2010, a message was left for Father regarding a visitation schedule. He never called back, and visitation had not occurred since that time.
Mother had maintained her sobriety for six months and had participated in services. There was substantial probability of returning A.D. and V.D. to her care. The Department felt as to Father: “[T]here is not a substantial probability of the children returning to his care due to inconsistent participation in services and visitation with the children.” The Department surmised it would be to the children’s detriment to return them to Father’s care due to his failure to participate in services, his not having stable housing, and his failure to contact the Department. The Department believed that Father had ample time to participate in services and chose not to involve himself.
The Department recommended that Father’s reunification services be terminated. At the hearing, which we will discuss in more detail, post, the trial court terminated the reunification services of Father, custody remained with Mother on a family maintenance plan, and a section 364 review hearing was set for July 26, 2011.
II
TERMINATION OF REUNIFICATION SERVICES
Father contends the trial court erred by terminating his reunification services at the six-month review hearing conducted pursuant to section 366.21, subdivision (e). He claims the trial court erred by relying on section 366.21, subdivision (e) to terminate his reunification services. Since A.D. and V.D. had been returned to Mother, the hearing should have been conducted pursuant to section 364. Father claims that he at least was entitled to 12 months of services for V.D. as the sibling group exception did not apply in a hearing conducted under section 364. He also insists remand for reconsideration of an extension of services as to A.D. is appropriate.
A. Additional Factual Background
The contested hearing was conducted on January 26, 2011. The Department advised the juvenile court that they were present for a contested review hearing under section 366.21, subdivision (e) and that it was submitting based on the reports filed on December 7, 2010, and January 21, 2011. Father’s counsel requested a continuance because Father was in an inpatient program and could not be present. The juvenile court denied the request for continuance.
Counsel for Father argued to the juvenile court that they were at the six-month review and there was a child over the age of three. Counsel argued that not all of the factors for declaring a sibling set were present. Counsel agreed that the juvenile court might find it appropriate to terminate services for A.D. since she was under three years old, but it could continue services for V.D., who was over three years old at the time of the detention. The juvenile court clarified that both minors were taken at the same time from the parents, that they shared the same mother and father, and that they were in the same home together.
The Department advised the trial court that both Mother and Father had been given the advisal at the jurisdictional/dispositional hearing that the services could be terminated at six months. Father’s counsel argued that the juvenile court needed to address the factors of the sibling set which counsel argued were not present.
The juvenile court determined, based on the totality of the record, that it was appropriate to consider A.D. and V.D. a sibling set. The juvenile court then asked (after it was advised Mother was on family maintenance) if Mother was with Father. Mother responded: “No, not currently. You know, I definitely want to have a better relationship when he maintains his sobriety, but for now, we don’t have no contact really at all.”
The juvenile court ruled: “At this time, I am going to adjudge the children a sibling set. I am not going to continue the matter, and I did advise both parents that they were operating under a six-month deadline for services. Mother took that admonishment very seriously. Father, apparently, not so. [¶] As far as father is concerned in this matter, I am going to terminate services to him at this time. [¶] I do find that the extent of progress made by the father towards alleviating or mitigating the causes necessitating placement has been unsatisfactory in that he has failed to make substantive progress or complete the Court-ordered case plan. [¶] I do understand that I have discretion to grant him an additional six-months of services in this matter. However, I choose not to do so. [¶]... [¶] By clear and convincing evidence, I find that the father failed to participate regularly and make substantive progress in Court-ordered treatment, and there is no substantial probability of return at this point if given another six months of services; therefore, his services are terminated at this time.”
The juvenile court adopted the Department’s recommendations and continued family maintenance to Mother.
B. Analysis
The Department, in its responding brief, provides several theories for upholding the juvenile court’s order terminating Father’s reunification services. Initially, it argues that the juvenile court properly held a section 366.21, subdivision (e) hearing, and that the court could terminate services to Father under the plain language of section 361.5, subdivision (a)(1)(A) and (B).
Father was initially granted reunification services under section 361.5, subdivision (a)(1)(A) and (B). “Subdivision (a) of section 361.5 provides that, unless certain exceptions apply, ‘whenever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians.’ (§ 361.5, subd. (a).) ‘“[C]hild welfare services”’ includes both reunification as well as maintenance services. [Citation.] The remaining provisions of section 361.5 set out ‘who is entitled to receive mandatory reunification services, who may receive reunification services, the circumstances under which the court may deny reunification services to someone otherwise entitled to receive them, and those circumstances under which the court must deny reunification services.’ [Citation.]” (In re Pedro Z. (2010) 190 Cal.App.4th 12, 19 (Pedro Z.).) “Section 361.5, subdivision (a)(1) also contains time limits on the provision of family reunification services. For a child three years of age and older and not part of a sibling group, ‘court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as defined in Section 361.49, unless the child is returned to the home of the parent or guardian.’ (§ 361.5, subd. (a)(1)(A).)” (Ibid.)
The status of every dependent child in foster care shall be reviewed by the juvenile court no less than once every six months. (§ 366, subd. (a)(1).) Such hearings shall be conducted pursuant to section 366.21. Section 366.21, subdivision (e) governs the first six-month review hearing and requires the juvenile court to order the return of the child to the physical custody of his parent unless the court finds that doing so would create a substantial risk of detriment to the child. If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable reunification services have been provided or offered to the parent or legal guardian and the court shall order that those services be “initiated, continued, or terminated.” (§ 366.21, subd. (e).)
The Department argues that the plain language of the statute warranted termination of reunification services to Father at the section 366.21, subdivision (e) hearing because services no longer apply when “the child is returned to the home of the parent or guardian.” Father argues we must interpret the statute differently, i.e., “the parent” means the person whom was receiving reunification services and that section 361.5 is mandatory, which means a juvenile court does not have the discretion to terminate services early. We need not decide the issue as we follow a string of cases holding that once a parent regains custody of the children subject to the dependency proceedings, review is appropriate under section 364. Further, any error on the part of the juvenile court in conducting the hearing under section 366.21, subdivision (e), rather than section 364, was harmless as the record supports a termination of reunification services under section 364.
Section 364 provides that when a juvenile court adjudicates a minor to be a dependent child of the court and does not remove the minor from parental custody, the court must continue the matter “to a specific future date not to exceed six months after the date of the original dispositional hearing.” (§ 364, subd. (a).) The purpose of the section 364 hearing is for the court to review the services provided to the family and the progress made by the family in eliminating the conditions or factors that required court supervision. (§ 364, subd. (b).) “After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary.” (§ 364, subd. (c).) If the juvenile court retains jurisdiction over the minor, “it shall continue the matter to a specified date, not more than six months from the time of the hearing, at which point the court shall again follow the procedure specified in subdivision (c)” for another review hearing. (§ 364, subd. (d).)
In In re Gabriel L. (2009) 172 Cal.App.4th 644 (Gabriel L.), the minor was removed from the home and a dependency petition was filed under section 300, subdivision (b). The court declared the minor a dependent child, removed him from his parents’ care, placed him in foster care, and ordered the parents to comply with services. (Gabriel L., at p. 648.) At a 12-month review hearing, the court placed the minor with the mother under a family maintenance plan and terminated the father’s court-ordered reunification services. (Id. at p. 649.) The father appealed, claiming the court abused its discretion in terminating his services while ordering that the minor be placed with the mother and providing services to her. (Ibid.)
The court concluded that review was appropriate under section 364, rather than section 366.21, subdivision (e). (Gabriel L., supra, 172 Cal.App.4th at p. 647.) Following its prior decision in In re N.S. (2002) 97 Cal.App.4th 167, the court reasoned that, because the minor was a dependent child of the juvenile court, the juvenile court was “required to conduct review hearings every six months either under section 366.21 or under section 364, ” but where that child has been placed back in the custody of one parent, section 366.21 does not apply and therefore section 364 must. (Gabriel L., at p. 650.)
Here, like in Gabriel L., A.D. and V.D. were removed from custody and placed in foster care while both parents were under court order to participate in reunification services. And, like Gabriel L., the court placed the minors with Mother under a family maintenance plan and terminated Father’s court-ordered services. Under those circumstances, the focus is no longer on reunification, but rather on whether continued supervision in the family home is necessary, making section 364 the applicable statute. (Gabriel L., supra, 172 Cal.App.4th at p. 650.)
Hence, the juvenile court should have reviewed the matter under section 364, rather than section 366.21, subdivision (e). As stated, we believe the trial court’s error was harmless as the record supports termination of reunification services to Father.
When the juvenile court removes a child from parental custody, “the focus of the proceedings is to reunify the child with a parent, when safe to do so for the child. [Citations.]” (In re Adrianna P. (2008) 166 Cal.App.4th 44, 59.) Once the child is returned to the custody of one parent, that objective has been met. As the court noted in Gabriel L., supra, 172 Cal.App.4th 644: “A court’s discretion to provide services for parents when a child has been placed with one parent after a period of reunification services is similar to the situation when the child is removed from the custodial parent and placed with the noncustodial parent under section 361.2 because in both cases the child is in parental custody, not in foster care. When a child is in foster care, ... it is assumed that reunification services will be ordered. Under section 361.2, by contrast, that presumption is not present because the child is not in out-of-home placement, but with a parent.... The decision whether to provide services and to which parent is discretionary to the court because the child is not out of the home, but in placement with a parent. [Citation.] In our view, the court’s discretion to order services is the same whether the child is placed with a previously noncustodial parent or is returned to one parent after a period of offering reunification services to both parents.” (Id. at p. 651.)
The Gabriel L. court went on to conclude that since the father had failed to participate meaningfully in the services offered to him, he had tested positive on his drug tests, he did not participate in the substance abuse programs, and he had not visited the minor on a consistent basis, the juvenile court did not abuse its discretion in terminating reunification services. (Gabriel L., supra, 172 Cal.App.4th at p. 652.)
In the instant case, the juvenile court found by clear and convincing evidence that Father had not made substantive progress in completing his court-ordered plan and more services would not result in him alleviating the problems that led to the detention. This determination equally applies, as set forth in Gabriel L., to finding that reunification services could be terminated pursuant to the trial court’s discretion under section 364. Father had not participated in the services afforded to him, including substance abuse programs. Father had failed to have any meaningful visitation with A.D. and V.D. Father also had failed to communicate with the Department and continued to test positive for use of marijuana (when he actually showed up for a test). The record supports that Father’s reunification services would have been terminated had the juvenile court considered the issue under section 364.
Father attempts to distinguish Gabriel L. on the ground that the father in that case had already been afforded 12 months of reunification services and his services were terminated at six months. This is a distinction without a difference. In Pedro Z., supra, 190 Cal.App.4th 12, the father had violated his probation by having methamphetamine in his home that he shared with his son and mother. A section 300 petition was filed against both the mother and father, and the son was placed in foster care. (Id. at pp. 16-17.) At the jurisdictional/dispositional hearing, the mother was found to have no involvement with the methamphetamine in the house, and she was granted custody of their son on a family maintenance program. (Id. at p. 18.) The father was denied reunification services. The father appealed, claiming that under section 361.5 he was entitled to reunification services. (Ibid.)
The Pedro Z. court concluded: “We reject Father’s contention that the juvenile court was required as a matter of law to provide him with family reunification services under section 361.5. As we explain, section 361.5 is inapplicable when at the disposition hearing a child is returned to the custody of a parent.” (Pedro Z., supra, 190 Cal.App.4th at p. 19.) The Pedro Z. court relied first on the fact that section 361.5 only applied when the child was in foster care. It further held: “The goal of dependency proceedings—to reunify a child with at least one parent—has been met when, at disposition, a child is placed with a former custodial parent and afforded family maintenance services. [¶] ‘Family reunification services shall only be provided when a child has been placed in out-of-home care, or is in the care of a previously noncustodial parent under the supervision of the juvenile court.’ (§ 16507, subd. (b).) [¶] Because [minor] was placed neither in out-of-home care nor in the custody of a former noncustodial parent, Father was not entitled to reunification services under sections 16507, subdivision (b) and 361.5.” (Pedro Z., at p. 20.)
It follows from the reasoning in both Pedro Z. and Gabriel L. that whether custody is returned to one parent at the dispositional/jurisdictional hearing or after 12 months of services, once a minor is returned to the custody of one parent, reunification services no longer need to be granted to the other noncustodial parent and such a determination is completely within the juvenile court’s discretion. Hence, whether the trial court proceeded under the wrong code section is irrelevant here. Once A.D. and V.D. were returned to Mother’s care, Father was no longer entitled to reunification services, and since he made little or no effort to complete the services, the record supports termination of the discretionary services. As such, the trial court properly terminated Father’s reunification services.
Finally, Father complains the trial court did not appropriately consider whether family maintenance services should be continued as required under section 364, subdivision (c). Even if we were to consider Father’s claim (which arguably he forfeited by not raising the issue below and because the services were given to Mother, not Father) we find that the record supports that continuing monitoring was appropriate. (See In re N.S., supra, 97 Cal.App.4th at p. 172 [on review, we examine the entire record for substantial evidence to support the court’s findings].) Although the juvenile court did not specifically make a finding as to continuing the family maintenance program, Mother had only recently regained her sobriety and, certainly, the Department and the juvenile court could be concerned that she might relapse. Moreover, such issue is likely moot as a six-month review hearing under section 364 was set for July 26, 2011, and therefore, such review has likely already been completed. Father’s claim lacks merit.
III
DISPOSITION
The juvenile court’s order is affirmed.
We concur: RAMIREZ P.J. HOLLENHORST J.