Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-00332
STEVENS, J.
Appellant challenges an order terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing. She argues she was denied reasonable services and there was no substantial evidence that returning her son to her care would place him at a substantial risk of harm. We affirm.
Background
In May 2006, K.M. was born two to three months premature, weighing twopounds, seven ounces. He could not feed or breathe on his own and he remained in the neonatal intensive care unit until July 11, 2006. L.H. (Mother) admitted she had used crack cocaine and cannabinoids throughout her pregnancy and had obtained no prenatal care. She had an extensive history of substance abuse, including crack cocaine use for the previous two years. She also had an extensive criminal history and was a registered drug offender. Family members reported that relatives had informally assumed the full-time care of her four older children due to her chronic history of substance abuse and homelessness.
On May 18, 2006, the Contra Costa County Children & Family Services Bureau (Bureau) filed a Welfare and Institutions Code section 300 petition alleging failure to protect. K.M. was detained on May 19 and a jurisdiction hearing was scheduled for May 26, then repeatedly continued to September 20. Upon his release from the hospital in July, K.M. was placed in foster care.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In a September 13, 2006 jurisdiction and disposition report, the Bureau recommended K.M.’s formal removal from the home and reunification services for Mother. K.M. was eating from a bottle without incident and he weighed 12 pounds, six ounces. Developmentally, he was smiling, holding his head up, and rolling over. However, he was being monitored for breathing difficulties, rigidity in his limbs, and wandering eyes. Mother maintained only sporadic contact with the Bureau and did not follow through on referrals to drug testing and treatment programs. She had not visited K.M. since his discharge from the hospital. The social worker commented: “In the past [Mother] has been able to maintain her current lifestyle and visit her children at her whim, as they were being cared for by family members. The Bureau is not confident that [Mother] grasps the reality of the Bureau’s involvement and the reality that should she not reunify, placement of [K.M.] with a relative is by no means a guarantee.”
At a joint jurisdiction and disposition hearing on September 20, 2006, the court sustained the petition on the allegation of Mother’s chronic substance abuse, formally removed K.M. from Mother’s care, and ordered reunification services. In the following months, Mother’s contacts with the Bureau diminished. She changed her residence without providing a new address or telephone number and she called less frequently. She missed two appointments with the social worker. She did not provide proof of attendance at 12-step meetings, enrollment in a parenting class, participation in drug testing, or placement on the waiting list of a substance abuse treatment program.
On December 14, 2006, Mother was arrested for grand theft. While in jail, she participated in a healthy parenting program. Under the threat of a three-year prison sentence, she agreed to undergo residential substance abuse treatment. On February 8, 2007, she entered a 90-day residential treatment program that included parenting training and random drug testing.
As of January 2007, K.M. weighed 21 pounds, he was feeding from a bottle, his immunizations were current, he was attending medical appointments, and he was being monitored every other week by a public health nurse. However, he was not developmentally on track. He had poor eye contact and stiffness in his limbs, he could not sit unsupported or transfer objects from hand to hand, and his speech was limited. On February 10, 2007, he was placed in a prospective adoptive home, where he adjusted well and was bonding with the mother.
In a January 17, 2007 six-month status review report and a February 28 addendum, the Bureau recommended terminating services for Mother and setting a section 366.26 hearing. The social worker opined that Mother was not being realistic about providing full-time care to K.M. When the social worker discussed K.M.’s developmental delays, Mother seemed overwhelmed and frequently changed the subject. The social worker encouraged Mother to contact K.M.’s former foster mother and prospective adoptive mother to learn about the amount of time and commitment it took to care for a medically fragile child and to consider how that time commitment would affect her progress in recovery.
The six-month hearing, originally scheduled for January 17, 2007, was repeatedly continued to April 13. At the April hearing, the court granted Mother another six months of services and set a 12-month review hearing for July 18, contrary to the Bureau’s recommendations. The reasons for the court’s order are not disclosed in the record.
The reporter’s transcript for the hearing is not in the appellate record. The written form order includes a finding that returning K.M. to Mother’s care would create a substantial risk of detriment, a finding that reasonable services had been provided, an order that services be made available to Mother, and an order setting a further status review hearing for July 18. The order also states that the court adopts the findings and recommendations of the Bureau in its report (with no specified report date), but the only six-month reports in the record recommend termination of services. Those findings are inconsistent with the express findings in the court’s order.
As of July 2007, K.M. was using a walker to strengthen his legs and he was able to transfer objects from hand to hand. He received weekly physical therapy. He was a happy child who was bonded to his caregiver. Mother attended twice monthly visits and acted appropriately at the visits. She was testing negative for drugs, she had a stable short-term residence, and she had maintained contact with the social worker.
In a 12-month status review report dated July 18, 2007, the Bureau again recommended termination of services for Mother. The report stated that Mother was too new to recovery to care for a medically fragile infant and that removing K.M. from his stable and loving prospective adoptive home would not be in his best interest. The 12-month review hearing was scheduled for July 18, 2007, but at the Bureau’s request was continued to August 17 so it could investigate new information.
In an August 8 memorandum, the Bureau changed its recommendation. The Bureau had learned that the prospective adoptive mother was not prepared to go forward with the adoption until she resolved some personal issues. Therefore, it recommended six additional months of reunification services for Mother while it developed a new permanent plan for K.M. The Bureau also asked for permission to allow consecutive overnight visits between K.M. and Mother for a maximum of 30 days. The hearing was continued once again to September 21.
In a September 18, 2007 memorandum, the Bureau informed the court that Mother had relapsed and used crack cocaine. She was in a detoxification center and planned to return to her residential treatment program. In light of this information, the Bureau withdrew its recommendation that Mother be allowed unsupervised or overnight visits, but it did not withdraw its recommendation that services be extended.
At the 12-month hearing on September 21, 2007, the court extended reunification services until November 19. It found that Mother had made significant progress on her case plan, had regularly visited the child, and had demonstrated the capacity and ability to complete her plan and care for K.M. It also found there was a substantial probability the child would be returned to Mother’s physical custody by November 19 (18 months from his original removal). The court authorized unsupervised visits and overnight visits for up to a maximum of 30 days and set an 18-month review hearing for November 16. That hearing was later continued to January 10 and 17, 2008 for a contested hearing.
The Bureau’s 18-month status review report, dated November 15, 2007 and resubmitted without updates on January 17, 2008, recommended termination of reunification services for Mother and the setting of a section 366.26 hearing. The Bureau wrote that Mother was cooperative with the Bureau, was in good standing in her residential treatment program, and was interested in moving into transitional housing after graduation. She acted appropriately during her regular supervised visits with K.M. However, despite receiving 18 months of services she was still not ready to provide adequate care to K.M. Regarding the detriment of returning K.M. to his Mother, the report cited Mother’s relapse and re enrollment into residential treatment and stated Mother was too new to recovery to assume responsibility for a medically fragile child who needed a stable home environment. K.M., whose condition was essentially unchanged since the 12-month report, was happy living in a concurrent home and was bonded with the concurrent mother.
At the contested 18-month hearing on January 17, 2008, the court heard testimony from the social worker and Mother. Mother’s counsel and K.M.’s counsel both urged the court to return K.M. to Mother’s care. They argued there was no basis to deny reunification because Mother had completely complied with her case plan since the 12-month hearing and the Bureau should follow through on its plan to return K.M. to Mother’s care. The judge responded that she had not presided over the previous hearing and had to make an independent determination whether the child could be returned safely to Mother’s care. She found that returning K.M. would create a substantial risk of detriment because Mother was new to recovery and needed a great deal of structure to maintain her sobriety. The court terminated services and set a section 366.26 hearing.
Discussion
Mother petitions for a writ of mandate directing the trial court to reinstate services and return K.M. to her care. She argues there was no substantial evidence that she received reasonable services or that K.M. would suffer detriment if returned to her care. K.M.’s counsel concurs. We agree that the dependency case was handled poorly by the Bureau. However, we conclude Mother ultimately was not prejudiced by the errors and that the court’s findings at the January 17, 2008 hearing were supported by substantial evidence.
K.M.’s counsel writes, “The Bureau produced no evidence to show there would be a substantial risk of detriment in returning to [Mother’s] care, and their recommendations seemed to be guided more by their perception of the caretaker’s needs than the law. [Mother] tried hard, despite set-backs, to live up to her obligations; the Bureau, in contrast, never seemed to have sincerely intended to return the child to her, no matter what she did.” He sought the same relief that Mother requested or in the alternative an extension of services so K.M. could be returned to Mother’s care at a later date.
I. Reasonable Services
Mother’s reasonable services argument has two parts. First, she argues she was not provided sufficient services to gain the skills she needed to care for a medically fragile child. Second, she argues she did not receive reasonable services because even though she fully complied with her case plan between the 12-month and the 18-month hearings, the court found that returning K.M. to her care would be detrimental.
At an 18-month permanency review hearing held pursuant to section 366.22, the court must determine whether reasonable services have been offered to the parent. (§ 366.22, subd. (a).) However, the court is not required to extend reunification services if it finds reasonable services have not been provided. (Ibid.) The statutory scheme provides that reunification services can be extended “up to a maximum time period not to exceed 18 months after the date the child was originally removed.” (§ 361.5, subds. (a), (a)(2).) Only in extraordinary cases does the juvenile court have discretion to extend reunification services beyond the 18-month limit. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 710.)
Mother argues the court must make this determination by clear and convincing evidence. She cites section 366.21, subdivision (g)(1), but that statute applies to 12-month permanency hearings. She also cites In re Cynthia D. (1993) 5 Cal.4th 242, 249, which in turn cites section 366.21, subdivision (g)(1) and discusses findings required at a 12-month hearing. Eighteen-month permanency review hearings are governed by section 366.22. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2007) § 2.153, p. 2-368, § 2.154, pp. 2-374 to 2-375.)
A. Reasonable Services to Care for a Medically Fragile Child
In its 18-month status review report, which recommended termination of services for Mother, the Bureau wrote in part: “[K.M.] is a medically fragile child and he needs a sustained level of structure and stability in his life. The concurrent mother is providing a safe, stable and loving home for [K.M.] with the medical care he needs to remain healthy.” (Emphasis added.) From this statement, one could infer that the recommendation to terminate services was based in part on Mother’s inability to care for K.M.’s unusual medical needs. Mother argues she was not given reasonable services that would help her obtain the skills necessary to address those medical and developmental challenges. “Family reunification efforts must be tailored to fit the unique challenges suffered by individual families . . . .” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792.)
We agree the Bureau did not provide services designed to give Mother specific skills or training tailored to K.M.’s special needs. At the 18-month hearing, the social worker identified the following challenges facing K.M.: he had situational asthma, a hernia that might require surgery in a few years, sensitivity to noise, a lazy eye with an unknown cause or prognosis, and other cognitive and physical impairments of an unknown extent. These conditions or equivalent conditions were already known at the time of the 12-month hearing. Nevertheless, the Bureau’s case plan for Mother adopted at the 12-month hearing did not include any special training on how to care for K.M. The plan only required her to participate in counseling, substance abuse treatment, drug testing, a community 12-step program, and regular visitation with K.M.
Nevertheless, we conclude the Bureau’s failure to provide these services did not ultimately prejudice Mother. We construe the juvenile court’s order as denying services not because of Mother’s lack of skills to address K.M.’s special needs, but because of her failure to overcome her drug dependency. The court cited Mother’s “20-year history of substance abuse. She has gone in and out of substance abuse. . . . And I don’t want to put a medically fragile child in such an uncertain setting.” That is, the court based its finding of detriment on Mother’s chronic substance abuse, which would have posed a risk of harm to any child. That risk was amplified by the fact that K.M. was medically fragile and thus more vulnerable if neglected. The court did not make a finding of detriment based on Mother’s lack of special skills needed to care for K.M. Therefore, as long as the court’s finding of detriment based on Mother’s substance abuse is supported by substantial evidence (an issue we address below), Mother was not prejudiced by the Bureau’s failure to offer services specifically tailored to K.M.’s special needs.
B. Reasonable Services to Reunify with K.M. by the 18-Month Hearing
Mother argues the Bureau did not provide reasonable services because, even though she fully complied with her case plan between the 12-month and 18-month hearing, the court found that returning K.M. to her care would create a substantial risk of detriment. It follows, she argues, that the services provided in the case plan were not adequate to help her achieve reunification.
We agree that the 12-month case plan and the court’s findings at the 12-month hearing are irreconcilable with the court’s findings and order at the 18-month hearing. At the 12-month hearing, the court adopted the following findings as recommended by the Bureau: Mother has consistently and regularly contacted and visited K.M., Mother made significant progress in resolving problems that led to the child’s removal from the home, Mother had demonstrated the capacity and ability both to complete the objectives of her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being and special needs, and there was a substantial probability that K.M. would be returned to Mother’s custody by November 19, 2007 and safely maintained in the home if reunification services were extended until that time. These were the findings necessary to extend services beyond 12 months under the statute. (§§ 361.5, subd. (a), 366.21, subd. (g)(1).)
Ordinarily, reunification services are limited to six months for a child who was under the age of three at the time of his or her initial removal from the parent’s custody. (§ 361.5, subd. (a)(1), (2).) The court had already extended services to 12 months. See note 2, ante. In order to extend services for yet another six months, the court was required to make the findings set forth in section 366.21, subdivision (g)(1).
As noted, the case plan approved at the 12-month hearing required Mother to actively participate in individual counseling, outpatient substance abuse treatment and aftercare, substance abuse counseling, a community 12-step program, and random drug testing, and attend all scheduled visits with K.M. and act appropriately during the visits. Between the 12-month and the 18-month hearing, Mother entered and actively participated in her residential treatment program that included counseling and random drug testing. She attended visits arranged by the Bureau as well as K.M.’s physical therapy sessions and she acted appropriately during the visits. At the 18-month hearing, the social worker could not identify any part of the case plan that Mother had not completed.
When the social worker was asked at the 18-month hearing what had changed since the 12-month hearing that altered the Bureau’s recommendations, she cited Mother’s relapse. However, the record establishes that the social worker knew about the relapse before the 12-month hearing took place. When confronted with the fact that she had agreed to an extension of services after Mother’s relapse, the social worker responded, “No, I didn’t. I didn’t knowingly. If I did, I made an error.” It is difficult to credit her statement that she did not knowingly consent to an extension of services for Mother after her relapse. She personally authored a memorandum dated September 18, 2007 (i.e., before the September 21 hearing) acknowledging the relapse and withdrawing the Bureau’s recommendation on visitation, but not its recommendation for an extension of services. As for her statement that the recommendation was an error, the record does not establish any excuse for the error. We note that the reporter’s transcript for the 12-month hearing is not in the appellate record.
As the trial court suggested, it is understandable that Mother and K.M. felt “cheated” by the change in the Bureau’s recommendations at the 18-month hearing. At the 12-month hearing, the court projected that K.M. would be returned to Mother’s care in two months (by November 19, 2007) if Mother continued to comply with her case plan. At the time of the 12-month hearing, all parties understood that Mother had relapsed in September 2007 and had just reentered residential treatment, that if all went well Mother would still be in residential treatment as of November 19, and that following her graduation from residential treatment Mother would likely enter a transitional program as she had in the summer of 2007. Mother complied with her case plan for four months by the time the 18-month hearing actually took place, yet the court found K.M. could not be safely returned to Mother’s care because of circumstances that were known and existing at the time of the 12-month hearing: she was new to sobriety, she needed structure to maintain her sobriety at least in the short term, she had relapsed due to a lack of structure, and there were questions about whether she had ever maintained her sobriety to a degree sufficient to permit her to raise any of her older children. Minor’s counsel expressed his frustration with this course of events at the 18-month hearing, “Certain findings are made. People have attorneys. It’s heard before a court. [¶] Due process requires that we actually take that seriously and not simply engage in a game of buyer’s remorse.”
Because the reporter’s transcript of the 12-month hearing is not in the appellate record, we cannot discern the court’s rationale for making its findings and extending services at the 12-month hearing. The Bureau’s rationale, however, is reflected in the record. Unfortunately, the Bureau’s shifting recommendations appear to be based not on an honest assessment of Mother’s ability to reunify with K.M., but on the availability of an adoptive mother whom it considered a superior caretaker to Mother. This was an improper consideration. “It is only after the court terminates services and orders a hearing pursuant to section 366.26[] that attention turns to assessing the quality of the child’s relationships with his or her guardians[] or prospective adoptive parents.” (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) The juvenile court in Rita L. terminated reunification services in part based on the strength of the bond between the minor and the prospective adoptive parents. (Ibid.) The appellate court explained this was error: “[T]he court jumped the gun a bit. It considered [the minor]’s relationship with his de facto parents as part of its decision to terminate services and refer the matter to a section 366.26 hearing. That was improper.” (Ibid.)
Here, too, the Bureau’s shifting recommendations to extend or terminate services appears to have been based on whether it appeared that K.M. would be adopted by the concurrent caregiver, whom the Bureau deemed a superior parent to Mother, rather than whether K.M. could safely be returned to and maintained in her home. In its original 12-month report, which was written July 18, 2007 after Mother had completed about seven months of sobriety without relapsing, the Bureau recommended termination of services so his adoption could proceed. The Bureau wrote in part, “Unfortunately, [K.M.] simply views [Mother] as a friendly visitor as opposed to a parent and he is happy to return to the concurrent home when the visit concludes. [¶] . . . The concurrent mother is providing a safe, stable and loving home for [K.M.] with the medical care he needs to remain healthy.” It was only after this prospective adoptive home fell through that the Bureau changed its recommendation to an extension of services for Mother with the prospect of returning K.M. to her care. Despite this recommendation, it does not appear that the Bureau approached the ensuing period as a genuine period for reunification. As explained above, the Bureau did not provide services designed to train Mother in meeting K.M.’s special medical and developmental needs. The Bureau also cut off visitation at Mother’s residential treatment facility, even though K.M. had visited Mother at the facility without incident and even though all parties knew Mother would still be in that facility on the anticipated date of K.M.’s return to her care (both the original date of November 19, 2007 and the continued date of January 17, 2008). The social worker also missed appointments with Mother and staff at the residential treatment program.
The use of the term “friendly visitor” suggests that the social worker confused the legal standard governing termination of reunification services with the legal standard governing an exception to termination of parental rights at a section 366.26 hearing. Under section 366.26, subdivision (c)(1)(B)(i), the court must not terminate parental rights if it finds termination would be detrimental because “[t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” To qualify for this exception, parents must demonstrate that their relationship with the minor is a parental one and not that of a friendly visitor or family friend. (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
When the Bureau again recommended termination of services at the 18-month mark, it again cited the strengths of the concurrent home. “Parent/child visit[s] have been pleasant for [K.M.] but this social worker is unable to say that there is a secure attachment between the birth mother and the child. [¶] . . . The concurrent mother is providing a safe, stable and loving home for [K.M.] with the medical care he needs to remain healthy. [K.M.] is happy and gleeful when he sees his resource mother and does not hesitate to show this to the aforementioned social worker.” When asked at the 18-month hearing if Mother’s residential treatment facility was a safe placement for K.M. while Mother was in treatment, the social worker responded, “I think that it may be safe, but don’t believe it’s the right place for this child.”
In sum, it appears the Bureau recommended an extension of services at the 12-month hearing because it was not ready to immediately proceed with an adoption, not because it genuinely believed there was a substantial probability K.M. could be returned to Mother’s care. This approach deprived the dependency proceedings of consistency and rationality.
Despite these errors and despite the inconsistencies between the court’s findings at the 12-month and 18-month hearings, we conclude the order terminating services must be upheld. Over the course of K.M.’s entire dependency proceeding, Mother received reasonable reunification services. In fact, it appears she received more services than she was entitled to receive. Therefore, the court did not abuse its discretion when it terminated services more than 18 months after K.M. was first removed from her care.
The Bureau offered Mother services from the time of K.M.’s original detention, referring her for drug treatment, parenting classes, and housing services, providing her with transportation assistance, and arranging supervised visitation at attendance at one of K.M.’s medical appointments. These services continued after the jurisdiction and disposition hearing. Mother did not avail herself of these services until her December 2006 arrest when she entered treatment under the threat of a three-year prison sentence. On this record, the juvenile court likely could have found at the six-month hearing by clear and convincing evidence that Mother failed to participate regularly and make substantial progress in her court-ordered treatment plan, that she had received reasonable services, and that there was not a substantial probability K.M. would be returned to her within six months. (§ 366.21, subd. (e).) Had it made these findings, the court could have terminated services and set a section 366.26 hearing. (Ibid.) The Bureau recommended the court make these findings and terminate services. However, the court granted Mother six more months of services for reasons that are not disclosed in the appellate record.
Mother complied with her case plan from her December 2006 arrest through her release from the residential treatment program and her move to a transitional housing program in June 2007. However, she relapsed in September. It can be inferred that the relapse lasted a few weeks because she missed seven drug tests in August and September and tested positive three times in September. She then entered a detoxification program and reenrolled in residential treatment. On this record, the juvenile court likely could have terminated services at the 12-month hearing in September 2007. Indeed, because the court found reasonable reunification services had been provided (a finding that appears to have been supported by substantial evidence), it had to terminate services unless it made findings that Mother had made significant progress in resolving the problem that had led to K.M.’s removal (her substance abuse problem), she had demonstrated the capacity and ability to complete her case plan and adequately care for K.M., and there was a substantial probability that K.M. would be returned to her custody by November 18, 2007, 18 months after his initial removal. (§ 366.21, subd. (g)(1).) As noted above, the court made these extraordinary findings. Again, the appellate record does not disclose the court’s reasoning. Thereafter, Mother continued to receive services between the 12-month and 18-month hearings, including substance abuse treatment, counseling and visitation.
In sum, Mother received substantial services with respect to K.M. -- probably more services that she was entitled to receive -- despite the irregularities during the last six months of the reunification period. Her case is thus distinguishable from the cases she cites on appeal. In In re Elizabeth R., the mother had been effectively denied services, including visitation, during her hospitalization for mental illness, which consumed all but five months of the reunification period. (In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1777, 1792.) In In re Daniel G., the court expressly found that reasonable services had not been provided between the six-month and 18-month hearings. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209.) The social worker had not talked to the mother even once, the department had relied on old information, and the reunification efforts were a “disgrace.” (Ibid.) These were extreme cases that are not comparable to Mother’s situation. (Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 710.)
II. Return of K.M. to Mother’s Custody
Mother argues K.M. could be safely returned to Mother’s custody because at the time of the 18-month hearing she was residing in a residential treatment program that provided substantial support services. Moreover, she anticipated a prompt transition to a family mentoring program where she would also have substantial support in her recovery and parenting.
We agree with Mother there might not have been substantial evidence of a short-term risk of harm to K.M. if he were placed with Mother in the residential treatment program. The treatment program was designed for women and children. Mother testified and her attorney argued without objection that the program provides full-time (24 hours a day, seven days a week) support services for children in the program and never had had any problem taking the children to medical appointments or the like. The social worker acknowledged the residential treatment facility might be a safe placement for K.M. As already explained, the question at the 18-month hearing was not whether the concurrent home was a better placement than Mother’s home, but only whether the child could be safely returned to Mother’s home. (In re Rita L., supra, 128 Cal.App.4th at p. 507.)
The governing standard, however, is whether there was substantial risk of detriment if K.M. were returned to Mother’s care as a permanent plan. Section 361.5, subdivision (a) provides, “court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, at the [12-month hearing], that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only 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 . . .” (Emphasis added.) Section 366.21, subdivision (g), which applies to 12-month hearings, provides that the court may extend services up to the date 18 months from the child’s initial removal if it finds “a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home . . . .” (§ 366.21, subd. (g)(1).) This phrase is best understood as a reference back to section 361.5, subdivision (a), which discusses a permanent plan of returning the child to the home. Finally, section 366.22 provides that at the 18-month hearing the court must return the child unless it finds return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. Read in conjunction with sections 361.5, subdivision (a) and section 366.21, subdivision (g), this language is best understood as requiring an assessment of whether a permanent plan of returning the child to the parent’s care would create a substantial risk of detriment to his or her safety, protection or physical or emotional well-being. (See also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2007) § 2.129[1], p. 2-307.)
Substantial evidence supports the court’s finding that a permanent plan of returning K.M. to Mother’s care created a substantial risk of detriment to K.M. as of the 18-month hearing. Mother’s drug abuse had placed K.M.’s life in danger virtually from his conception: she used cocaine during her pregnancy and obtained no prenatal care, causing him to be born seriously premature and with numerous medical and cognitive deficits. Although K.M. was detained and Mother knew she was in danger of losing him, she stopped visiting him after his discharge from the hospital, she failed to maintain contact with the Bureau, and she did not follow up on referrals for services. It was only after her arrest for grand theft and under the continuing threat of a prison sentence that she participated in drug treatment. Although she successfully completed her first round of residential treatment, she relapsed soon after moving into a transitional program that provided less supervision and structure. To her credit, Mother voluntarily entered a detoxification program and reenrolled in residential treatment after her relapse and complied with her case plan for the next four months. Nevertheless, the fact remained that she had maintained her sobriety for only an eight-month stretch during the dependency period and only in a highly structured setting. She had a history of chronic substance abuse, homelessness, and relinquishing the care of her children, which did not offer a promising prognosis for her future care of K.M. Critically, the trial court observed in Mother’s demeanor on the witness stand a hesitancy about her ability to independently maintain her sobriety while raising K.M.: “When she was clean, she required an amazing amount of structure which, to her credit, she was able to stick with for about seven years. [¶] But even now she is sensitive to requiring all of this structure. So you get the sense that she’s very afraid to step outside the bounds. And I don’t want to put a medically fragile child in such an uncertain setting.”
Mother argues the court and the Bureau unreasonably discounted her history of sobriety. We agree that the Bureau did not create a substantial record regarding Mother’s history of drug abuse and recovery. The only information in the Bureau’s reports is a statement, attributed to her family, that Mother had a chronic history of substance abuse and homelessness that had contributed to her inability to provide care for any of her children and that she had avoided child welfare intervention because family members had informally assumed the full-time care of the children. At the 18-month hearing, the social worker admitted under cross-examination that she had never asked Mother how long she had raised her older children or how she had maintained her sobriety in the past. Mother testified that she had maintained her sobriety for seven years from her daughter’s birth until the daughter was seven years old, when she asked a family member to care for the daughter because Mother was incarcerated. She had worked as a drug and alcohol counselor during that seven-year period of sobriety. Although she had relapsed after seven years due to stress, she testified that she had recently learned how to deal with stress without relapsing.
Even assuming Mother’s evidence regarding her history of sobriety is complete and accurate, the court’s finding of detriment is still supported by substantial evidence. Mother’s testimony that she had learned to cope with stress is at best aspirational. She had only maintained her sobriety for four months after her relapse and she was still living in a highly structured setting. Moreover, reunification services for a child under the age of three at the time of his or her initial removal are ordinarily limited to a six month period. (§ 361.5, subd. (a).) This statutory deadline reflects a legislative determination that a parent must quickly reach stability in resolving the problems that led to the dependency before the court can adopt a permanent plan of returning the child to the parent’s home. Mother presented evidence that she was capable of maintaining her sobriety and raising a child for a substantial period of time. However, she did not demonstrate that she had reached that point of stability as of the 18-month hearing, which was many months after the presumptive six-month cut-off of services. Therefore, her evidence did not negate the other substantial evidence in the record that supported the court’s finding of detriment.
Disposition
The January 17, 2008 order terminating reunification services for Mother and setting a section 366.26 hearing is affirmed.
We concur. SIMONS, ACTING P.J., NEEDHAM, J.
The court’s April 13, 2007 order does not include a finding of a substantial probability that K.M. would be returned to Mother’s care by July 18. (The section of the form for that finding is not checked off.) The trial court was authorized to extend services beyond the six-month time limit applicable to children under the age of three at the time they were initially removed from their parents’ custody “only 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 or that reasonable services have not been provided to the parent or guardian.” (§ 361.5, subd. (a).) However, the six-month order is final and not subject to attack in this proceeding. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.)