Opinion
F083322
03-29-2022
In re V. E. et al., Persons Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Nos. 19JP-00176-A, 19JP-00176-B, 19JP-00176-C, 19JP-00176-D, 19JP-00176-E, 19JP-00176-F Donald J. Proietti, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
M.B. (Mother) and A.E. (Father) are the divorced parents of six children, V., A., Ad., Al., Aa., and S.E. (collectively children), who are now between the ages of four and 16 years old. In 2019, the children were detained and made dependents of the juvenile court under Welfare and Institution Code section 300, subdivisions (b)(1) and (j), after S., then two years old, was found wandering alone on a busy street and the conditions inside the home the family shared were deemed unsafe for children. At the 12-month review hearing, the children were returned to Father's custody with family maintenance services. (§ 364.) Mother, by then living out of state with her new husband, also continued to receive services. At the 18-month review hearing, the juvenile court continued family maintenance services for Father, but terminated Mother's services.
All further statutory references are to the Welfare and Institutions Code.
Mother timely appeals the juvenile court's order. Mother advances two claims: the juvenile court abused its discretion when it terminated her services and the court's finding that she was provided with reasonable services is not supported by substantial evidence.
As explained herein, we conclude the juvenile court did not commit reversible error when it terminated services for Mother and its findings on the matter are supported by substantial evidence. Accordingly, we affirm the juvenile court's order terminating Mother's services.
FACTUAL AND PROCEDURAL SUMMARY
I. Referral and Removal
Mother and Father divorced in 2016, but, in 2019, they were living together in a two-bedroom house with Mother's boyfriend, R.G., and then-13-year-old V., 11-year-old A., eight-year-old Ad., six-year-old Al., four-year-old Aa., and two-year-old S. The house was located on a busy street a few houses away from an elementary school and, on November 15, 2019, school personnel found S. wandering on the street unsupervised. S. did not have a shirt on and was wearing only one sock. He was cold to the touch, smelled of urine, and was visibly distraught.
School personnel, aware of where S. lived, took him home. S. tried to open the door, but it was locked, which upset him. No one responded when personnel knocked on the door and honked the car horn. S. was then taken back to the school and given clothes, and law enforcement was notified.
Approximately two hours later, Father arrived at the school. Although initially uncooperative, Father stated that when he left the house that morning, he yelled to Mother that he was leaving, but did not see her or hear her acknowledge him.
Mother and Father had a history of domestic violence, and there was an active restraining order prohibiting Father from having nonpeaceful contact with Mother. Father explained he was unhappy about the living situation and stated he had been trying to get Mother and R.G. to leave the residence, but Mother refused to go.
Father permitted deputies with the Merced County Sheriff's Department and a social worker with the Merced County Human Services Agency (the agency) to enter the house. They observed the house was unkempt, with garbage strewn on the floor, holes in several walls and the bathroom door, a boarded-up window, piles of clothing, two plastic cups without lids and several water bottles filled with urine, and grime and mold in the pantry. They also observed a bong, two marijuana "'roaches'" in an ashtray, and a glass jar containing marijuana seeds and remnants. Food in the house was limited. The backyard was littered with beer bottles and garbage, and there were four marijuana plants growing illegally. There were also pets in the backyard in poor condition, leading to contact with and response by animal control.
Father reported the containers of urine belonged to R.G. and said R.G. was "'too lazy'" to use the bathroom. Mother arrived hours after S. was found. She stated she left the house at 10:30 a.m. and thought S. was with Father and Aa. Although the house was small and her bedroom did not have a door, she denied being aware S. was in the house.
Mother was uncooperative, blamed Father and V. for allowing law enforcement and the social worker into the house, and yelled and cursed in front of the children. Mother ripped up the social worker's business card and refused to assist in locating clothing and personal items for the children or medication for V. and A. V. and the social worker were reportedly unable to find any clean clothes for S., and when social workers later changed him, they noted he had a large, red abrasion on each inner thigh. His penis and testicles were also red, and it appeared he had not been properly wiped.
V. reported she was often left to supervise her younger siblings and was uncomfortable doing so. She and her brothers were responsible for cleaning the house. Mother helped occasionally. V. reported being physically disciplined sometimes, but she said Mother mostly yelled and Mother and Father yelled at each other frequently. V. felt there was usually enough to eat, although she was on medication that diminished her appetite. Sometimes they did not have enough food, however, and she worried about her brothers. V. reported Mother and Father did not work, struggled with money, and smoked marijuana. V. denied knowing whose marijuana plants were in the backyard but was aware of them.
A. reported he got himself ready in the morning and ate at school. He felt safe at home and had enough to eat. He said he and his siblings cleaned the house, but he was unable to explain the condition of the house. At times A. and his siblings were home alone, although he was not afraid. He denied any physical abuse or seeing any physical altercations between his parents, but he acknowledged they argued daily. He said he was unsure if his parents used marijuana.
Ad. reported eating at home and at school, but said he felt hungry and did not get enough to eat at home. He said he helped V. and A. clean the house, and Mother helped sometimes; V. watched the siblings often; and he was grounded from snacks as discipline. He denied his parents had physical altercations, but they frequently yelled at each other. He said his parents drank beer and smoked outside, and the marijuana plants belonged to Father. He said he did not know what they smoked, however, and he did not go near the plants. He reported Father watched scary movies in the home, which frightened him.
Al. said Mother prepared meals for him, but he still felt hungry and there was not enough food in the house. He said he felt safe, and Mother took care of him. V. also occasionally took care of him. Al. was able to identify what the marijuana plants were and said he helped Father water them sometimes.
Aa. and S. were too young to provide information. However, Aa. reported S. was asleep when he and Father left the house that morning. The agency social worker observed Aa. was not clean and was clothed in pajama bottoms that were too small and a shirt that was too big. He did not have shoes on.
The children were taken into protective custody.
II. Section 300 Petition and Detention Hearing
On November 19, 2019, the agency filed an original petition on behalf of the children alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) (failure to protect) and, as to Al., Aa., and S., subdivision (j) (abuse of sibling). The petition also included, in error, an allegation under section 300, subdivision (b)(2) (sex trafficking), and the petition identified Father and S.A. as alleged fathers of S.
On November 20, 2019, the juvenile court held a detention hearing. Mother denied the allegations, but submitted on detention. Father requested a contested hearing and testified. With the exception of S., the juvenile court found that the ICWA did not apply to Mother or Father and it elevated Father to presumed father. As to S., the court found ICWA did not apply to Mother. The court found a prima facie showing had been made that the children came within section 300, subdivisions (b) and (j), ordered the children detained from Mother and Father, and ordered supervised visitation.
Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).
On December 9, 2019, the agency filed an amended petition that omitted the erroneous allegation under subdivision (b)(2) of section 300.
II. Combined Jurisdiction, Disposition, and Six-month Review Hearing
On June 16, 2020, after several continuances, the juvenile court held a combined jurisdiction, disposition, and six-month review hearing.
The parties did not object to the combined hearing.
As set forth in the jurisdiction and disposition report filed on January 17, 2020, the children were in foster care in groups of two, with V. and A. in one home, Ad. and Al. in another, and Aa. and S. in a third. Father had moved to a different residence in Merced, and Mother was living with her mother (Maternal Grandmother) in Merced. Father reported that following their 2016 divorce, he and Mother shared legal and physical custody of the children.
Mother's and Father's urine tested positive for marijuana in December 2019. Mother and Father both reported they began smoking marijuana at the age of 13 years old, both reported currently smoking two blunts a day, and both denied their drug use affected the children. Both also attended all scheduled visits with the children.
Mother and Father did not graduate from high school and were not employed, but both expressed interest in obtaining their GED's and had some past work history. As children, Mother and Father had child welfare services involvement in their homes. They also had one prior dependency case from 2012 in which V., A., and Ad. were detained under section 300 due to physical abuse and general neglect allegations. Mother and Father were offered family maintenance services, and the case was dismissed in 2013 at the section 364 review hearing. In addition, the family had 15 prior referrals in Merced County between 2007 and 2019 for general neglect and abuse, some of which were substantiated and others that were found to be inconclusive or unfounded.
Mother reported she would benefit from coparenting classes, and she thought Father would benefit from a parenting class, the children from counseling, and the family from learning how to help out around the house. Mother was taking parenting classes at Brett Green in Merced, and she had completed a telephonic mental health assessment appointment. Mother wanted her children back and felt it was achievable with a plan and team effort. Mother expressed preference that the children be placed with Maternal Grandmother, but she was not approved for placement due to a past child welfare history. A maternal aunt was going through the Resource Family Approval (RFA) process.
Father reported he would benefit from parenting, coparenting, and individual counseling, and he believed Mother would benefit from parenting, coparenting, and posttraumatic stress disorder (PTSD) counseling, although he did not explain why he thought Mother needed PTSD counseling. Father had completed a 52-week domestic violence program with Brett Green and had begun parenting classes at Brett Green. Father wanted help and stated he was open to help. He preferred the children be placed with a paternal aunt, but she was not approved. Another paternal aunt was going through the RFA process.
V., A., Ad., and Al. wanted to return home. Aa. and S. were too young to provide statements.
The agency recommended the juvenile court sustain the petition allegations, remove the children from Mother's and Father's custody, provide Mother and Father with family reunification services, and order visitation at least once a month. Based on S.A.'s exclusion as S.'s father in a family law case, the agency also recommended the court elevate Father to S.'s presumed father and dismiss S.A. from the dependency case.
At the hearing, Father denied the amended petition's allegations, but submitted on the agency's recommendations. Mother requested a contested hearing.
Mother testified that on the day S. was found wandering on the street, she thought he was with Father, she did not hear anyone knocking on the door, and she had no idea S. was missing when she left that morning. She also denied there was inadequate food in the house. With respect to the containers of urine, she testified that the two bedrooms were connected, and she did not want R.G., to whom she was now married, going through the children's bedroom to the bathroom at night because of her daughter. R.G. would dump the urine in the morning when he got up.
Mother conceded the allegation the children could possibly access marijuana was true, but testified it was no longer an issue because she was not using marijuana anymore and was "clean." She was living with Maternal Grandmother and there was a spare room for the children, and she was employed full-time with Amazon, had saved money for housing, and had completed 52 classes in parenting. She stated she did not qualify for mental health services, but expressed willingness to attend counseling or whatever else was required to get the children back. She testified that Father was no longer part of her life and she was willing to take coparenting classes with him.
On cross-examination, Mother testified that unspecified things happened between her and a partner of Maternal Grandmother when she was younger, so she was guarded with her daughter and did not want R.G. crossing through the other bedroom at night. She testified she trusted R.G. with her children, but it was a sensitive issue with her because of her past.
The juvenile court sustained the allegations in the amended petition, declared the children dependents of the court, and ordered them removed from Mother's and Father's physical custody under section 361, subdivision (c)(1). As to S., the court elevated Father to presumed status and dismissed S.A. from the case. Further, the court found ICWA did not apply, Mother and Father had been provided with reasonable family reunification services, Mother's and Father's progress had been minimal, and there was a substantial probability the children could be returned to Mother's and Father's physical custody if services were extended. The court ordered Mother and Father continue to receive reunification services for a period of six months.
IV. 12-month Status Review Report
The agency filed a 12-month status review report on January 19, 2021. For both parents, the case plan objectives were, one, consistent, adequate, and appropriate parenting; two, obtain and maintain a stable, suitable residence; and, three, remain free from illegal drug use, comply with required drug testing, and demonstrate ability to live drug-free.
Mother and R.G. married in January 2020 and were residing with Maternal Grandmother in Merced. Mother reported her income was too low to secure independent housing and R.G. had a prior eviction, but R.G. had relatives in Nevada and Utah who would help them secure housing in either state. Mother was told that moving out of the state would make reunification with her children more difficult and that Father would likely not agree to the children living outside of California.
In June 2020, Mother participated in a drug assessment and did not meet the criteria for service. In June 2020, her urine was positive for marijuana, but her hair follicle was negative for drugs; and, in September 2020, her urine and hair follicle were negative.
In June 2020, shortly after the combined jurisdiction, disposition and six-month status review hearing, R.G. was arrested on 16 counts relating to his alleged molestation of his ex-wife's five-year-old daughter. R.G. was released without any charges filed, but the investigation remained open. Mother reported that two years earlier, R.G.'s ex-wife accused him of molesting her daughter, but the child had a sexually transmitted disease that R.G. tested negative for. Mother did not believe R.G. molested his former stepdaughter, and she did not understand why he was arrested again two years later. Mother also reported that R.G.'s ex-wife and Father were conspiring to cause problems for Mother and R.G., and she stated she had text messages between Father and R.G.'s ex-wife.
In August 2020, Mother stated the children came first and she would not be with R.G. if the allegations against him were true. Mother was told that because the investigation remained open, her decision to continue living with R.G. would affect whether she got the children back and that she would have to choose. Mother stated she and R.G. decided she would choose the children.
In September 2020, Mother and R.G. moved to Las Vegas, Nevada. Mother stated R.G. would stay elsewhere when the children were there, and "her personal life is her problem and she can do whatever she wants." Mother secured a two-bedroom apartment in October 2020, and reported she was working part-time for Amazon and had applied for medical insurance. She reported her support system consisted of five people in her bible study group, her bible teacher, and R.G.'s family. Children in Nevada were distance learning given the COVID-19 pandemic and Mother stated she would request a change in her work hours so she could get the children ready for school and be with them during school hours. She also reported she would buy a larger vehicle and would be willing to transport the children from Las Vegas to Merced to visit Father every other weekend.
Mother completed 52 weeks of parenting classes, and she visited the children weekly when she was living in Merced and biweekly after moving to Las Vegas. Some of the children missed some of the visits due to COVID-19 issues, and Mother cancelled two visits due to COVID-19 symptoms. Mother also cancelled two other visits. In November 2020, Mother and the children visited at Maternal Grandmother's home in Merced. Although Mother was told R.G. could not be present for the visit, he was and Mother told the children not to let the agency know.
Mother engaged well and appropriately with the children, and the agency had no concerns regarding her parenting skills or abilities. However, the agency concluded that the children could not be safely returned to Mother for two reasons: her move out of California and her continued relationship with R.G.
Father had completed 44 of 52 parenting classes, and his progress report described him as open and receptive, knowledgeable about the material covered, generally in compliance with the homework, and engaged in group discussion. However, there was some underlying hostility in his communication and behavior that was being addressed.
On his own, Father began participating in All Dads Matter in July 2020 for extra support, and he had attended two individual and two group counseling sessions. Father reported he liked the organization and, in November 2020, the social worker confirmed that Father was attending group sessions. Father was reportedly less angry and resentful toward Mother, but was anxious about the children joining Mother out of state. Father had the children with him at times and staff reported his parenting skills were okay.
In May 2020, Father rented a two-bedroom apartment that was clean and in order. It was set up for the children, and Father had purchased beds for them.
Father participated in a drug and alcohol assessment and did not meet the criteria for service. His urine and hair follicle tests were negative for drugs in May 2020 and November 2020. In July 2020 and August 2020, his urine was negative for drugs, but a hair follicle test could not be done in August 2020.
Father had weekly visits with the children and was making progress. However, he still struggled with redirecting the children and was unable to "multi-task," and the children were more active and difficult with him. Father was beginning to have extended visits at home with some of the children, allowing him to spend time with them without being rushed. Those were going well and although care providers reported increased aggression in A., Al., Aa. and S. after visits, the agency recognized it might be the result of anxiety from transitioning back and forth between Father and their foster homes. The agency determined it would serve the family better to place the children in the home with Father and incorporate him in the treatment teams.
The agency recommended the juvenile court find Father's compliance with the service plan adequate and return the children to Father's custody with family maintenance services. As to Mother, the agency recommended the court find her compliance with the service plan minimal on the basis that while she participated in required case plan services, she failed to provide a safe home for the children.
At the time the report was prepared, V., A., Ad., and Al. were staying with Father in his home, and Aa. and S. were staying with a relative.
V. 12-month Review Hearing
At the 12-month review hearing on April 13, 2021, Mother and Father waived a contested hearing, denied the allegations and submitted on the agency's recommendations. V., A., Ad., and Al. had been living with Father on a trial visit since December 2020, and Aa. and S. had been living with Father on a trial visit since January 2021. The agency continued to recommend the children be returned to Father's custody with family maintenance services.
The juvenile court found Mother and Father were provided reasonable reunification services, Father's progress was adequate, and Mother's progress was minimal in light of her failure to provide a safe home for the children. The court continued dependency jurisdiction over the children, returned them to Father's custody with family maintenance services for Father, and continued reunification services for Mother.
VI. 18-month Status Review Report
On June 2, 2021, the agency filed an 18-month status review report.
The children were doing well overall. All six children were meeting their developmental milestones, but V., A., and Ad. were struggling in school. Al. struggled to adjust when he arrived at school; he was often late and cried in the office for 30 to 60 minutes, but once in class, he was fine. Aa. was doing well in school and receiving speech therapy.
V. was being treated for depression and anxiety, A. was being treated for attention deficit hyperactive disorder (ADHD), and Al. was being treated for ADHD and PTSD; and V., A., Al., and Aa. were seeing clinicians and support counselors. Ad. did not have any demonstrated mental or emotional concerns, and S. did not meet the criteria for services.
Mother and Father were arranging visitation on their own and visits were mostly going well. Mother had been visiting biweekly at Maternal Grandmother's house in Merced, but subsequently began visiting monthly for longer periods of time. Mother was also able to visit the children at Father's apartment, where she helped feed the children and helped Father clean. Mother reported the children continued to be disrespectful toward Father, but Al. and Aa. were progressing in their interaction with other adults. One incident occurred where V. became upset with Mother and made statements about self-harm, but the Aspiranet team subsequently determined V. was attempting to manipulate Mother and Father and did not intend to harm herself.
Mother continued to do well with her parenting skills and remained drug-free. She wanted custody of the children, and she felt Father was unable to care for them and relied too much on V. to help. Mother stated that once she had custody, she would take the children to see Father for biweekly visits, and Father could also have the children for holidays and summer vacation.
However, Mother was still married to and living with R.G. in their apartment in Las Vegas. The criminal investigation against R.G. remained open and the case had been referred to the Madera County District Attorney's Office. Mother reported that R.G. took an out-of-state trucking job and that they were committed to R.G. remaining out of the home with no in-person contact with the children. Mother stated that they would ensure the children were with Father on R.G.'s days off. Mother was working part-time at Amazon and could adjust her schedule to be available for the children. She was also looking for daycare.
In April 2021, the agency contemplated placing some of the children with Mother given Father's continued parenting struggles and asked Mother if she would consider moving back to Merced, which would allow the agency more discretion and make placement easier. Mother declined, but said she hoped to buy a home in the future and would keep in mind a move back to California when the time came.
After Mother declined to relocate back to Merced, the agency sent a request to Nevada under the Interstate Compact on the Placement of Children (ICPC), but Nevada denied it given the open investigation against R.G.
The purpose of the ICPC is to "'facilitate the cooperation between states in the placement and monitoring of dependent children.'" (In re John M. (2006) 141 Cal.App.4th 1564, 1573, quoting Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834, 1837.) "[C]ompliance with the ICPC is not required for placement with an out-of-state parent" (In re John M., supra, at p. 1575; accord, In re Johnny S. (1995) 40 Cal.App.4th 969, 971), but "nothing in the ICPC prevents the use of an ICPC evaluation as a means of gathering information before placing a child with such a parent" (In re John M., supra, at p. 1572; see Cal. Rules of Court, rule 5.616(g) [the juvenile court has discretion to use the ICPC as necessary to ensure the child's safety and well-being in placing the child with an out-of-state parent]).
The agency concluded that Mother was not in compliance with the goal of obtaining and maintaining a stable, suitable residence given her decision to remain living out of California with R.G., who was still the subject of an open child molestation investigation. The agency stated that Mother, who continued to believe in R.G.'s innocence, "does not understand she made a choice to stay with [him]," and while he "has not been convicted[, ] he is a safety concern with her children." Mother "rationalizes her decision of why she was not able to reunify with her children and blames the agency. Until those circumstances change, [Mother] cannot have the children live with her."
Father was in compliance with the goal of obtaining and maintaining a stable, suitable residence, although he struggled to keep the apartment consistently clean and in order. He was referred to the Section 8 housing voucher program, as additional space might alleviate some of the tension among the children.
Father was in partial compliance with the goal of remaining drug-free and complying with required drug testing; there was no evidence Father was using drugs, but a hair follicle test could not be completed in April 2021 due to insufficient body hair.
With respect to his parenting goals, Father "appear[ed] determined to care for all his children," but was still struggling with day-to-day consistency, routine, communication, and establishing reciprocal respect. Father completed 47 out of 52 parenting classes through Brett Green and was meeting the organization's standards. However, services were subsequently terminated for nonattendance. Father also relied on V. to help care for the younger children. V. reported Father often left her with the children without saying anything, and Mother reported the issue as well. The social worker found V. home alone with the children, and several times found the children playing videogames rather than logged in to attend school remotely. V. and A. reported Father woke them in the morning, but did not ensure they got up.
The elementary school where Ad., Al., and Aa. attended reported Father appeared overwhelmed and was defensive at times. He was struggling to get the children to school and at times brought one or two children and sought help from the principal getting the missing child there. Father usually brought the children to school late, their attendance had declined, and Father was not calling in absences. By May 2021, Ad. had excessive absences and was struggling academically, and Al. was having temper tantrums at school. Aa. was doing well, but had only attended two to three speech therapy sessions.
The agency was concerned about possible physical discipline. Father denied hitting or spanking the children, but felt V. and A. called the social worker to complain when they did not like his rules, including turning off the WiFi at 9:00 p.m. He was not reaching out to his parent partners at the agency, Aspiranet, and All Dads Matter, and was not fully committed to wraparound services with Aspiranet because he believed he was being prevented from "lay[ing] the law [down]" with the children.
The agency recommended the juvenile court order the children to remain in Father's custody with family maintenance services and terminate Mother's reunification services.
VII. 18-month Review Hearing
On July 20, 2021, the juvenile court held a contested 18-month review hearing.
Social worker (SW) Sandra Benavidez, who authored the 12-month and 18-month status review reports, testified that the agency recommended terminating Mother's reunification services because she was "out of time" and because her circumstances had not changed with respect to living out of California with R.G. The children wanted to live with Mother, there were no concerns with Mother's parenting skills or with drug use, and Mother's apartment was clean and orderly. However, as of July 16, 2021, the investigation into the allegations that R.G. molested his former stepdaughter remained open with the Madera County District Attorney's Office, and SW Benavidez testified that per the police report she reviewed, R.G. was the prime suspect, notwithstanding information that he had tested negative for a sexually transmitted disease.
This was the only remaining issue as to Mother, but, in the agency's view, so long as the investigation remained open, there was a safety risk to the children if placed in Mother's home. While SW Benavidez testified she did not advise Mother what to do, she informed Mother that because the investigation remained open, Mother could not both have the children with her and remain with R.G. SW Benavidez also told Mother prior to her move that relocating out of state would make the reunification process more difficult.
Mother testified she had no safety concerns regarding R.G. and her children. She stated she had known him for 15 years and he did really well with children. She explained she was struggling to find housing in California, but, in Las Vegas, she was able to rent an apartment, was employed, and was in a better environment for herself and the children. Mother requested custody of the children with family maintenance services, and she stated she would move back to California as soon as she could find somewhere to go other than Merced.
The juvenile court found that the agency provided reasonable services to Mother and the only remaining issue was the open investigation into whether R.G. molested his former stepdaughter. The court noted that although Mother believed R.G. was innocent, he had been arrested on multiple child molestation counts. The court also considered the conditions at the time the children were placed in protective custody, which included multiple cups and bottles of R.G.'s urine sitting around. Mother's explanation that she wanted to avoid having R.G. pass through the children's bedroom at night indicated, in the court's view, an awareness that R.G. should not be near the children unsupervised.
The court agreed with the agency that although Mother had made progress with the case plan objectives, the open investigation into sexual abuse charges committed against a child by R.G. constituted a safety concern. The court concluded that Mother was afforded an opportunity to reunify with her children, but chose to remain with R.G. As a result, she was unable to provide a safe home for the children and given the amount of time that had passed and her decision to remain out of state with R.G., there was no benefit to continuing her services. Therefore, the court terminated Mother's services.
As to Father, the juvenile court found the children had "done extraordinarily well and [were] stable in" Father's custody The court found that his progress was adequate, but conditions still existed requiring supervision. The court continued jurisdiction and ordered family maintenance services.
DISCUSSION
Mother claims the juvenile court erred when it terminated her reunification services, either because it was unaware of the scope of its discretion to continue services or, if aware, because it abused its discretion. In support of this claim, Mother points out the agency and the trial court both misstated the law when they said her time had run out, and the agency further misstated the law when it "argued Mother failed to advance an exception under 'section 366.2[2].'" Mother also claims the court's finding of reasonable services was not supported by substantial evidence.
The agency disputes there was any reversible error. The parties agree that because the children were returned to Father's custody at the 12-month review hearing, Mother's challenge to the juvenile court's disposition order at the 18-month review hearing is controlled by section 364, and both cite In re Gabriel L. (2009) 172 Cal.App.4th 644 (Gabriel L.) for the applicable legal standard. As we find no reversible error, we accept the concession.
I. Legal Principles
A. Section 364
"'[T]he underlying purpose of dependency law is to protect the welfare and best interests of the dependent child.'" (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 672 (Serena M.), quoting In re Luke M. (2003) 107 Cal.App.4th 1412, 1424-1425.) "[T]he focus is on the child, not the parent" (Serena M., supra, at p. 672), and "'[t]he paramount goal in the initial phase of dependency proceedings is family reunification'" (ibid., quoting In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1113 (dis. opn. of Rothschild, J.)).
"After the child is declared a dependent, the juvenile court must review the status of the child every six months." (In re Armando L. (2016) 1 Cal.App. 5th 606, 614 (Armando L.); accord, In re N.O. (2019) 31 Cal.App.5th 899, 922.) The standard of review depends on the child's placement. (In re N.O., supra, at p. 922; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154.) If the child was removed from and remains out of parental custody, the review hearings are governed by sections 366 and 366.21. (Gabriel L., supra, 172 Cal.App.4th at pp. 649-650.) If the child was not removed from parental custody, or, as here, was removed and later returned to parental custody, section 364 governs. (Armando L., supra, at p. 614; accord, Gabriel L., supra, at p. 650; In re Shannon M. (2013) 221 Cal.App.4th 282, 290-291.)
"At the section 364 review hearing, the juvenile court is not concerned with reunification, but in determining whether the dependency should be terminated or supervision is necessary." (Armando L., supra, 1 Cal.App.5th at p. 615; accord, In re Pedro Z. (2010) 190 Cal.App.4th 12, 20; Gabriel L., supra, 172 Cal.App.4th at p. 650.) "Section 364, subdivision (c) establishes a statutory presumption in favor of terminating jurisdiction and returning the child to the parents' care without further court supervision." (Armando L., supra, at p. 615, citing In re Aurora P., supra, 241 Cal.App.4th at p. 1155 & In re Shannon M., supra, 221 Cal.App.4th at p. 290.) "Under the statute, the juvenile court 'shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300.'" (Armando L., supra, at p. 615, quoting § 364, subd. (c).) "The juvenile court makes this determination based on the totality of the evidence before it, including reports of the social worker who is required to make a recommendation concerning the necessity of continued supervision." (Armando L., supra, at p. 615, citing In re Aurora P., supra, at p. 1155.)
"Section 364 refers to services only by stating the social worker is required to report on the services offered and the progress made by the family, and the failure of the parent to participate regularly in a treatment program is prima facie evidence that continued supervision is necessary. (§ 364, subds. (b), (c).) [California Rules of Court r]ule 5.710(e)(2) provides, 'If the child is returned, the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within [six] months.' ([Cal. Rules of Court, r]ule 5.710(e)(2).)" (Gabriel L., supra, 172 Cal.App.4th at p. 651.)
In Gabriel L., the appellate court reasoned "[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, unless the case falls within a specified statutory exception, 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. Instead, under section 361.2, the court has several choices. It may provide services to the previously custodial parent, to the parent who is assuming custody, to both parents, or it may instead bypass the provision of services and terminate jurisdiction. (§ 361.2, subd. (b)(1), (3).) 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." (Gabriel L., supra, 172 Cal.App.4th at p. 651.)
Gabriel L. concluded, therefore, that "the [juvenile] 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." (Gabriel L., supra, 172 Cal.App.4th at p. 651.) "Although section 364 does not expressly treat the issue of offering services to a nonreunifying parent, in accordance with the juvenile court's responsibility to weigh all of the factors present in a dependency case and to provide orders that will serve a child's best interests, the court has discretion to provide services for the nonreunifying parent if the court determines that doing so will serve the child's best interests. The court also has discretion to find that the ordering of such services to the nonreunifying parent is not in the child's interest and to not order services for that parent." (Id. at p. 652.)
B. Standard of Review
"'The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion'" (Gabriel L., supra, 172 Cal.App.4th at p. 652), and "[t]he reviewing court will not reverse the court's order in the absence of a clear abuse of discretion" (ibid.). However, "if a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 25.) "'"We must indulge in every presumption to uphold a judgment, and it is [appellant's] burden on appeal to affirmatively demonstrate error-it will not be presumed. [Citation.]" [Citations.]'" (In re A.L. (2022) 73 Cal.App.5th 1131, 1161.) "'In the absence of evidence to the contrary, we presume that the court "knows and applies the correct statutory and case law."'" (People v. Jones (2017) 3 Cal.5th 583, 616, quoting People v. Thomas (2011) 52 Cal.4th 336, 361; accord, People v. Ramirez (2021) 10 Cal.5th 983, 1042.)
II. Analysis
A. Termination of Services
We turn first to whether the juvenile court misunderstood the law and, therefore, the scope of its discretion to continue Mother's services, as she contends. Relevant to her claim, SW Benavidez testified that this was the 18-month review, Mother was "out of time," and her circumstances were unchanged with regard to living out of state with R.G. Subsequently, during Mother's cross-examination, Father's counsel asked Mother whether she was under the age of 18 when her children were detained, she was ordered into a substance abuse treatment program, or she was recently discharged from incarceration or institutionalization, to which Mother answered no.
At the conclusion of the testimony, the agency argued that Mother "failed to advance an exception under the Welfare and Institution Code Section 366.2[2]" that would provide grounds to extend her reunification services.
Mother's counsel argued that Mother "really wanted the Court to understand that … [R.G.] … pose[d] no risk to her children," but her legal argument focused on the provision of services and the agency's failure to meet its burden of demonstrating that it provided reasonable reunification services.
As Mother argues on appeal, the questions she was asked by Father's counsel and the agency's subsequent, related argument spoke to section 366.22, subdivision (b), which provides a narrow exception permitting the extension of reunification services not to exceed 24 months. (Michael G. v. Superior Court (2021) 69 Cal.App.5th 1133, 1141, review granted Jan. 19, 2022, S271809.) The exception "applies only if the 'parent or legal guardian … is making significant and consistent progress in a court-ordered residential substance abuse treatment program, a parent … was either a minor parent or a nonminor dependent parent at the time of the initial hearing making significant and consistent progress in establishing a safe home for the child's return, or [is] a parent recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and making significant and consistent progress in establishing a safe home for the child's return .…'" (In re D.N. (2020) 56 Cal.App.5th 741, 761, fn. 18.)
The juvenile court did not rely on that statutory provision to deny Mother services, however. Instead, the court expressly recognized the failure to provide reasonable reunification services would provide a basis for extending services beyond 18 months. (Serena M., supra, 52 Cal.App.5th at p. 678 ["[o]rdinarily reunification services are available to a parent for a maximum of 18 months from the date the child was physically removed from parental custody," but "'failure to provide services will justify the extension of services beyond 18 months'"]; accord, T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1256; cf. Michael G. v. Superior Court, supra, 69 Cal.App.5th at p. 1142, fn. 4, review granted [juvenile court properly terminated reunification services despite its conclusion reasonable services not provided].) Both parents were provided with reunification services, neither claimed the services provided were deficient, and at the 12-month hearing, the focus shifted from family reunification to family maintenance given the children's return to Father's custody. (Armando L., supra, 1 Cal.App.5th at p. 615; Gabriel L., supra, 172 Cal.App.4th at p. 650; cf. In re Calvin P. (2009) 178 Cal.App.4th 958, 962-964 [notwithstanding the children's return to the father with family maintenance services under § 364, the mother remained entitled to reasonable reunification services where the agency had failed to provide any services to her, in contravention of court's order].)
At the hearing, the court focused on the sole issue preventing Mother from having the children returned to her custody: her relationship and out-of-state cohabitation with a spouse who was under investigation for multiple counts of child molestation. The court acknowledged Mother's belief that R.G. was innocent, but the court considered his arrest on the charges, the status of the investigation, and the condition of the apartment at the time the children were taken into protective custody, which included cups and bottles of urine resulting from Mother's desire that R.G. avoid crossing the children's bedroom at night unsupervised. The court concluded the situation presented a safety risk for the children that the court was unwilling to chance. Although the court echoed the agency's comment that time had run out, in context, we are not persuaded that the court terminated Mother's services because it believed she failed to establish an exception allowing continuation. Rather, the court's comments reflect that because the agency had provided Mother with reasonable services and Mother had clearly made the decision to stay with R.G., there was no benefit to continuing services and it was not in the best interest of the children to do so. Under these circumstances, the record does not reflect that the court either believed it lacked discretion to continue Mother's services or otherwise failed to exercise discretion.
To the extent the juvenile court nevertheless misstated or misapplied the applicable standard governing the continuation of Mother's services, we must consider the effect of that error. "'The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.)'" (In re J.P. (2017) 15 Cal.App.5th 789, 798, quoting In re Celine R. (2003) 31 Cal.4th 45, 59-60.) Under this standard, which applies to juvenile dependency proceedings, reversal is permitted "'only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.'" (In re J.P., supra, at p. 798, quoting In re Celine R., supra, at p. 60; accord, In re R.F. (2021) 71 Cal.App.5th 459, 474.)
"The harmless error analysis applies in juvenile dependency proceedings even where the error is of constitutional dimension," although the California Supreme Court has not settled whether the appropriate standard of review for constitutional claims is "'harmless by clear and convincing evidence [or] harmless beyond a reasonable doubt.'" (In re J.P., supra, 15 Cal.App.5th at p. 798 & fn. 10, quoting In re James F. (2008) 42 Cal.4th 901, 911, fn. 1); see In re Esmeralda S. (2008) 165 Cal.App.4th 84, 94 ["We will assume, without deciding, that the harmless beyond a reasonable doubt standard of review is applicable in this case, because it provides a more cautious approach in that if the error is harmless beyond a reasonable doubt it will also be harmless by clear and convincing evidence."].) We need not address that issue because Mother does not claim the error is of constitutional magnitude.
As previously stated, under section 364, the juvenile court had the discretion to continue services for Mother if doing so would serve the children's best interests. (Gabriel L., supra, 172 Cal.App.4th at p. 652.) Mother continued living out of state with R.G. despite knowing those decisions stood in the way of her children's return to her. In addition to maintaining her relationship with R.G., Mother declined to move back to Merced, which SW Benavidez told Mother would give the agency more discretion to act, and although she expressed some willingness to consider moving back to California, she did not commit to doing so and took no steps to do so between the 12-month review and the 18-month review.
Whether the court was merely inartful or instead failed to apply the correct legal standard, the court considered the record and then exercised discretion in determining that continuing services would not be beneficial. As the court pointed out, it was not terminating Mother's parental rights and her visitation with the children would continue. Because there is no reasonable probability of a more favorable result had the alleged error not occurred, any error was harmless.
B. Reasonable Services
Relatedly, Mother claims that the juvenile court's finding she was provided with reasonable services was not supported by substantial evidence. We discern no error.
Mother acknowledges her challenge is limited to the period following the 12-month review hearing at which the children were returned to Father, but she relies on cases addressing the entitlement to reasonable services during the reunification period to underpin her argument. (Citing Serena M., supra, 52 Cal.App.5th at p. 678; In re Taylor J. (2014) 223 Cal.App.4th 1446, 1452-1453; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) At this stage in the proceedings, the juvenile court had discretion to order, or not to order, services for Mother depending on what it found to be in the children's best interest. (Gabriel L., supra, 172 Cal.App.4th at p. 652.) The juvenile court considered the record and concluded that given Mother's decision to continue living out of state with R.G. despite knowing that was the only impediment to having some or all of the children returned to her, further services would not be of any benefit and would not be in the children's best interest.
"Substantial evidence is that which is reasonable, credible and of solid value." (T.J. v. Superior Court, supra, 21 Cal.App.5th at p. 1238; accord, Serena M., supra, 52 Cal.App.5th at p. 674.) Here, the court's finding is supported by substantial evidence and the court did not abuse its discretion in declining to continue services for Mother. Accordingly, we reject her claim of error.
DISPOSITION
The juvenile court's order terminating Mother's services is affirmed.
WE CONCUR: LEVY, Acting P. J. PEÑA, J.