Opinion
E081760
05-09-2024
In re G.P. et al., Persons Coming Under the Juvenile Court Law. v. G.P., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INJ2100193 Natalie Lough, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON Acting P. J.
I.
INTRODUCTION
G.P. (Mother) appeals the juvenile court's orders (1) denying her petitions under Welfare and Institutions Code section 388 without an evidentiary hearing, (2) terminating jurisdiction over her minor children, G.P. and J.P., and granting their father sole physical and legal custody, and (3) terminating her services as to her daughter, A.P. We affirm.
All further statutory references are to the Welfare and Institutions Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
This is Mother's second appeal concerning G.P. and J.P., but her first concerning A.P. Because the background from the first appeal is relevant, we provide the following background of both appeals.
This section is drawn mostly from our prior opinion with non-substantive revisions made for consistency with this opinion. (In re G.P. (Aug. 02, 2023, E080198) [nonpub. opn.].)
Mother and J.S. (who is not a party to this appeal) had two children together, G.P. (born in October 2017) and J.P. (born in July 2019). In July 2021, the Riverside County Department of Public Social Services (the Department) filed a petition on behalf of the children under section 300, subdivision (b)(1).
The petition alleged the Department had received a referral alleging general neglect of the children in June 2021. The reporting party said that Mother used "meth" and was "'doing off the wall stuff,'" and claimed that the family's house was dirty.
A Department social worker unsuccessfully tried to contact Mother but made contact with the probation officer for Mr. G., Mother's boyfriend. Mr. G. was on probation and tested positive for methamphetamine on May 28, 2021. The probation officer said Mother and Mr. G. were in a "toxic relationship that includes domestic violence." Mother had obtained a temporary restraining order against Mr. G., but the order lapsed because she did not attend a hearing.
The social worker spoke with the children in June 2021. G.P., then three years old, reported that she lived with her mother and Mr. G. She said that her mother and Mr. G. would fight with each other, and law enforcement had come to the home multiple times due to their fighting.
The social worker also spoke with J.S. He expressed concern that the children were living with Mother because he had heard from mutual friends that Mother was using methamphetamine and he had recently observed her to be extremely thin and missing her top front teeth. G.P. also had told him that Mother and Mr. G. both hit her.
The social worker spoke with Mr. G.'s probation officer again on July 6, 2021. The probation officer said Mother's home was filthy and had trash and dirty laundry all over.
The social worker visited the home on July 8, 2021, with Mr. G.'s probation officer. Mr. G. admitted to using methamphetamines the day before but Mother denied using drugs and refused to drug test unless court-ordered. Mother denied the social worker's request to enter the home and her request to speak with G.P. Mother also denied the social worker access to G.P. to interview her. While standing at the front door, the social worker saw that the home was extremely dirty, with piles of boxes, trash, and debris on the floor, and smelled a strong marijuana odor.
The probation officer had the right to complete a home search, and he took a video of the entire home. The video showed that the entire house was extremely dirty and had piles of dirty clothes throughout. The officer found a bowl of marijuana on the dining room table, an open can of paint, and a can of bug spray all accessible to the children. According to the probation officer, the entire house smelled strongly of marijuana.
The social worker contacted the Blythe Police Department to run a search on Mother and Mr. G. for any reports about them. The dispatcher knew the family because they constantly called for law enforcement assistance. The maternal family and the family's neighbors had called multiple times to request welfare checks on the family because they could hear Mother and Mr. G. fighting, which included yelling and screaming at each other while in the children's presence. But when law enforcement responded to these calls, the parents had stopped and denied the reports.
In July 2021, the children were removed from the parents' care and put in a foster home but were later placed with their paternal grandmother. Shortly afterward, the juvenile court found the Department had made a prima facie showing that the children came within section 300, subdivision (b), and ordered them detained.
About a month later, the social worker interviewed G.P. G.P. stated that Mr. G. would yell, hit, and push Mother, which led to law enforcement coming to the home. G.P. described the "'yelling' and 'scariness'" and would often cry and hide in the bedroom. G.P. said that Mother had "'owwies'" on her face, cheek, and arms from being "'slapped and hit'" by Mr. G.
G.P. also said that the home was dirty and unkept because Mother slept a lot. According to G.P., Mother was always asleep, and shaking her to wake up did not work. Sometimes she and J.P. would go to bed hungry because there was no food. G.P. also reported that Mother and Mr. G. smoked cigarettes inside the home.
Mother stated that she and J.S. had approximately four to five incidents of domestic violence between 2015 and 2020, where she was the victim.
In September 2021, Mother reported that Mr. G. had threatened to kill her and destroyed her property and that she had left a month earlier with only the clothes on her back. Even though Mr. G. lived 50 yards from her house, Mother declined to call a women's shelter or seek a restraining order because she was no longer in contact with him and she never left the house.
In September 2021, the juvenile court found the petition's allegations true, found that the children came within section 300, subdivision (b), and adjudged them dependents of the juvenile court. The children were removed from parental care and the parents were provided reunification services. Mother's reunification plan required her to participate in counseling and domestic violence classes, parenting education, substance abuse treatment if she tested positive, and random drug testing.
Mother gave birth to A.P. (who is not J.S.'s child) in February 2022. Mother reported that she was not in a relationship and lived by herself. Although Mother had consistent, positive visits with G.P. and J.P., she had not enrolled in any of her required services and had not contacted any service provider. When asked why, Mother remained quiet and did not answer the question.
Later that month, however, Mother texted the social worker pictures of three certificates of completion for courses she had completed online. She provided certificates of completion for a four-hour parenting skills class, a one-hour drug and alcohol awareness class, and a four-hour parent education and family stabilization course. She completed these online services to show the court that she "'did something.'" But the courses were not court-approved in that they did not meet Mother's need of addressing substance abuse and the cycle of domestic violence she had repeated with her serious partners. The social worker asked Mother what she learned from the classes, but she could not explain anything she had learned.
Mother denied drug use and claimed she last used in July 2016. She claimed that she submitted to a court-ordered hair follicle test in early November 2021, but admitted that she never got the results and assumed she did not need to complete a substance abuse program or testing. She claimed that she participated in 16 group sessions with "Eve's Place," but she had never disclosed this to the social worker before March 2022, and did not provide proof of her participation. According to the social worker, Mother minimized the domestic violence committed in the children's presence.
G.P. repeatedly told the social worker that she did not want to return to Mother's care. G.P. was afraid of Mother and Mr. G., who had hit her and put her in both a trash can and a dog kennel.
In March 2022, the juvenile court continued reunification services for Mother. The children were placed with J.S. and he was provided with family maintenance services.
The Department filed a section 300 petition on A.P.'s behalf in April 2022. The Department alleged that A.P. came within section 300, subdivisions (b)(1) and (g). A month later, the juvenile court found the petition's allegations true and adjudged A.P. a dependent of the lower Juvenile court, but left A.P. in Mother's care.
Mother tested positive for methamphetamine in March 2022. She admitted to using methamphetamine, but claimed she had been sober for seven to eight months beforehand. She also reported that she enrolled in an inpatient substance abuse program while A.P. remained in her care. Although it was a 90-day program, Mother completed only 32 days before deciding to leave. During those 32 days, she completed criminal addictive thinking, dialectical behavior therapy, mindfulness, stop-the-chaos, and women-in-recovery classes, four weeks of "Triple P" parenting, and three weeks of domestic violence and anger management. She was the "top of the house position as a women in-charge for two weeks." For her efforts, Mother received certificates for completing four weeks of parenting courses and three weeks of domestic violence and anger management courses.
In June 2022, Mother admitted that J.S. went to her home and she allowed him inside. Mr. G. showed up, saw J.S.'s car parked outside, and vandalized it, so Mother called the police. According to the police report, the children were present at Mother's home, but she would not tell the social worker whether the children were present. Mother later admitted that the children were at the home and that they and J.S. had stayed overnight multiple times in the recent past. According to the paternal grandmother, G.P. told her that she, J.P., and J.S. stayed the night at Mother's home on the Fourth of July.
In June 2022, Mother completed saliva drug tests, and the first two were invalid but the third was positive for opiates, methamphetamines, and amphetamines. Mother said that her substance abuse counselor told her that the positive results may be due to "residue left in her enamel due to dental work." Mother refused to do a hair follicle test in July 2022, and would only submit to a urine drug test. Shortly afterward, the Department filed a section 387 petition to remove A.P. from Mother's care.
G.P. and J.P. were detained from J.S.'s care and placed with the paternal grandmother. The Department then filed a section 387 petition to remove G.P. and J.P. from J.S.'s care. The Department alleged that the previous disposition had not been effective in protecting the children in that J.S. had knowingly and repeatedly violated court orders by allowing unauthorized contact with Mother, who actively abused drugs. The Department also alleged that J.S. failed to benefit from family maintenance services given that he knew or reasonably should have known that Mother remained in contact with Mr. G., and J.S. continued to take the children to her home despite her repeated domestic violence with Mr. G. The juvenile court found that the Department had made a prima facie showing that the children came within section 387 and ordered them detained.
In August 2022, the social worker spoke with Mother's therapist, Ms. Alvarez, who reported she met with Mother once. Mother never followed through with her services and was sent a discharge letter on June 30, 2022, for no shows/no calls.
Mother submitted to the Department a letter dated August 16, 2022, which stated that she enrolled in the Riverside County Substance Use Program in May 2022. The letter stated that she was active in the Recovery Services Program and she was in compliance with all program requirements, rules, and regulations at that time.
About a week later, the social worker directed Mother to complete a hair follicle test by 4:00 p.m. Mother did not respond and did not complete the test. The social worker texted Mother a week later and told her to drug test that day. Mother responded that it was against the law and that she had notified her attorney.
A few days later, Mother refused to submit to a saliva drug test because she was taking Norco for dental work and she would be positive for opiates, but she never showed proof of the alleged prescription. The social worker reviewed a copy of Mother's dental records, which showed that the last time she received dental work was in 2015.
The social worker later spoke with Mother's substance abuse counselor. The counselor thought Mother had benefited from her services, but he was unable to provide specifics, such as her having a relapse prevention plan, identifying triggers, and identifying support people. The counselor stated that Mother attended NA/AA, but did not have proof of attendance. The counselor was not aware of Mother's recent relapse in September 2022, and did not feel confident about Mother's sobriety or her ability to meet the needs of the children, knowing that she had relapsed.
In October 2022, the social worker again asked Mother to provide a picture of the Norco she stated was prescribed for dental pain. Mother never did so.
The juvenile court held a combined 12-month review and section 387 hearing on November 7, 2022. After hearing testimony from Mother and the social worker, the juvenile court found that returning the children to Mother's care would put them at a substantial risk of detriment to their safety, protection, and physical and emotional wellbeing. The court then found by clear and convincing evidence Mother failed to participate regularly and make substantive progress in her court-ordered treatment plan, and there was no substantial probability that the children would be returned if given another six months of services.
The juvenile court therefore terminated Mother's reunification services, placed G.P. and J.P. in J.S.'s care, and ordered continued family maintenance services for him. A.P. was removed from Mother's care and Mother was provided with reunification services as to A.P. Mother timely appealed, and we affirmed in an unpublished opinion in August 2023. (In re G.P., E081760 [nonpub. opn.].)
B. This Appeal
In June 2022, the Department received a referral alleging that there was an adult with a history of juvenile sex offenses in Mother's home and that various adult men had been using drugs around A.P. The referral also alleged Mother had been seen at a liquor store and appeared high on methamphetamine.
A.P.'s father (who is not a party to this appeal) sought reunification services in March 2023. The court granted the request and set a review hearing for November 2023.
In a report filed in April 2023, the Department recommended that the dependency proceeding on behalf of G.P. and J.P. be terminated with their father granted sole physical and legal custody and Mother granted supervised visitation. The Department explained that G.P. and J.P. had been placed in their father's care since November 2022, and he had completed all of his services. In the Department's view, he was prepared and able to provide the children with a safe, healthy, calm, and drug-free home.
In another report filed days later, the Department recommended that Mother's services be terminated as to A.P. The Department made that recommendation because Mother had not completed her court-ordered case plan and had "exhausted her statutory time to reunify" with A.P., who had been placed with the paternal grandmother since July 2022.
Before and after these recommendations, Mother's drug use issues persisted. On February 22, 2023, her substance abuse counselor told the social worker that Mother did not want to drug test for the program. The social worker asked for a copy of all of the drug tests either declined or completed, but Mother did not allow the counselor to release this information.
On March 14, 2023, Mother agreed to a saliva drug test, which was positive for methamphetamine, amphetamine, opioids, marijuana, fentanyl, and OxyContin. Mother, however, denied using any of these substances.
On April 13, 2023, Mother's counselor called the social worker and asked that Mother be drug tested because the counselor believed that Mother was not forthcoming in maintaining her sobriety. The counselor explained that, on March 1, 2023, Mother was asked to complete a drug test, but she stated that she could not give a sample. Someone saw Mother trying to falsify a positive drug test later that day.
About a week later, the counselor told the social worker that he believed Mother was not ready to make changes. According to the counselor, Mother made excuses about not attending an inpatient intensive program. She had agreed to go into the program, but she never showed up or called him to notify whether she would be enrolling in the program.
The next day, the social worker contacted a services provider to ask about Mother's progress in her domestic violence class. An intake was scheduled for March 14 and 21, 2023, but Mother was a "no show/no call" on both days.
In late April 2023, Mother reported she had reentered a substance abuse treatment program.
In a May 2023 report, the Department stated it was concerned Mother had "not gained sufficient insight into the issues surrounding why [A.P.]" was removed from her custody. In the Department's view, Mother "minimizes" the issues and had made "no progress" with any of the services provided to her as to all three children.
About a month later, the Department reported that G.P. and J.P.'s father was meeting all of their needs "with no worries or concerns."
In June 2023, Mother filed a section 388 petition as to A.P., and in July 2023, she filed one as to G.P. and J.P. The thrust of both petitions was that Mother should be granted reunification services because she had successfully completed her "entire caseplan," including services for her drug use issues. Mother argued granting the petitions was in the children's best interests because G.P. and J.P. would "have [the] opportunity to reestablish [a] bond with" her and she "share[s] a significant bond" with A.P. The juvenile court set a hearing for July 14, 2023, on whether to hold an evidentiary hearing on the petitions.
Two days after filing her second section 388 petition, however, Mother submitted to a drug test with the Department and tested positive for amphetamine and methamphetamine. Mother contested the results and asked for a urine test. A random drug test administered the following day at Mother's shelter was negative.
On July 14, 2023-four days after Mother filed her second section 388 petition- the juvenile court held a combined hearing which served as a six-month review hearing as to A.P., a hearing on Mother's section 388 petitions, and a section 364 review hearing as to G.P. and J.P.
The court first considered the section 388 petitions. Counsel for both parties submitted evidence and based their arguments largely on that evidence. The Department submitted several reports and Mother's positive drug test from July 12, 2023, while Mother submitted evidence attached to her petitions, as well as evidence of her negative drug test from her shelter from the day before the hearing. Neither party asked to call witnesses or submit additional evidence.
After considering the parties' arguments and evidence, the court denied Mother's petitions. The court found that Mother's persistent drug use showed "there is a failure to benefit from services." The court noted Mother "ha[d] done inpatient treatment [] at least two times," yet she tested positive in March 2023, tried to falsify a positive drug test in April 2023, and had refused drug tests. The court thus found there was "no ongoing improvement for any consistent period of time" that would justify changing the court's orders, particularly "given the length of time this case has been open."
The juvenile court then terminated the dependency proceedings as to G.P. and J.P., awarded their father sole legal and physical custody of them, and granted Mother two visits per month.
As for A.P., the juvenile court noted that the hearing served as a six-month review hearing,and that Mother had received more than six months of services as to A.P. The court found Mother failed to participate regularly and make substantive progress in her court-ordered treatment plan, and there was no substantial probability that A.P. would be returned to Mother's care by the 12-month review hearing, which was about two months away. The court therefore terminated Mother's services as to A.P. The court then set a 12-month review hearing as to A.P. and her father in November 2023.
As the juvenile court and the parties correctly observed, the six-month review hearing should have been held in March 2023, so the 12-month review hearing would have been in September 2023.
Proceeding in pro. per., Mother timely filed a notice of appeal, stating that she appeals all of the juvenile court's orders made at the July 14, 2023 hearing.
III.
DISCUSSION
Mother argues the juvenile court erroneously denied her section 388 petitions without an evidentiary hearing and, in turn, erroneously terminated its jurisdiction over G.P. and J.P. with exit orders. She also contends the juvenile court erroneously terminated her services as to A.P. instead of extending them for five months, to the 12-month review hearing set for A.P.'s father in November 2023. She therefore asks us to reverse all of these orders. We find no prejudicial error and affirm.
A. Mootness
The Department argues that Mother's appeal concerning the section 388 petitions is moot because the juvenile court terminated its jurisdiction over G.P. and J.P. and granted sole custody to their father. The Department thus asks us to dismiss Mother's appeal. We decline to do so.
"A case becomes moot when events '"render[] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effect[ive] relief."'" (In re D.P. (2023) 14 Cal.5th 266, 276.) "[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (In re N.S. (2016) 245 Cal.App.4th 53, 60.) "For relief to be 'effective,' two requirements must be met. First, the plaintiff must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks." (In re D.P., supra, at p. 276.)
As to A.P., Mother's appeal certainly is not moot. The juvenile court, which still retains jurisdiction over A.P., denied reunification services to Mother while ordering them for A.P.'s father. Mother thus has complained of an ongoing harm-the termination of services to her as to A.P.-which we could rectify by ordering the juvenile court to reinstate the services.
As for G.P. and J.P., whether Mother's appeal is moot is less clear. (See generally In re S.G. (2021) 71 Cal.App.5th 654, 664-665 [noting disagreement among the courts about when appeal becomes moot when juvenile court terminates jurisdiction and finding appeal not moot]; see also id. at p. 674 (dis. opn. of Chaney, J.) [finding appeal moot].) We need not resolve the issue because, even if the appeal were moot, we would exercise our discretion to decide it on the merits. (In re D.P., supra, 14 Cal.5th at p. 282 ["Even when a case is moot, courts may exercise their 'inherent discretion' to reach the merits of the dispute."]; In re C.C. (2009) 172 Cal.App.4th 1481, 1488-1489 [exercising discretion to consider the merits of a potentially moot appeal].)
B. Section 388 Petitions
Mother contends the juvenile court erroneously denied her section 388 petitions without holding an evidentiary hearing. The Department argues the juvenile court did hold an evidentiary hearing, where the parties presented evidence and argument, and then properly denied Mother's petitions. We need not decide whether the juvenile court held an evidentiary hearing because, even if it did not, the court still properly denied Mother's petitions.
Section 388 authorizes a parent of a dependent child to petition for a hearing to change, modify, or set aside any previous court order. (§ 388, subd. (a)(1).) For a petition to be granted, the parent must show a "change of circumstances and that modification of the prior order would be in the best interests of the minor child." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.)
The juvenile court has four options when a parent files a section 388 petition: (1) the court may summarily deny the petition, (2) the court may grant the petition if the parties stipulate to the requested change, (3) the court may "order a hearing for the parties to argue whether an evidentiary hearing on the petition should be granted or denied,"or (4) set an evidentiary hearing. (Cal. Rules of Court, rule 5.570(d), (f)(1), (f)(2).) The juvenile court here chose the third option and held a hearing on whether the court should hold an evidentiary hearing on Mother's petitions.
At this kind of hearing, the parent bears the burden of showing they are entitled to an evidentiary hearing. To do so, the parent must make a prima facie showing that their circumstances have changed and the requested change to the court's orders is in the best interests of the child. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) "To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory." (Ibid.) "'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' [Citation.] 'Whether [the petitioner] made a prima facie showing entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well as the facts established as without dispute by the [dependency] court's own file ....' [Citation.]" (In re B.C. (2011) 192 Cal.App.4th 129, 141.) Thus, when deciding whether the parent has made a prima facie showing, "the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 62.)
We review the juvenile court's decision to deny a section 388 petition without an evidentiary hearing for an abuse of discretion. (In re K.L., supra, 248 Cal.App.4th at p. 62.) The juvenile court's decision will not be disturbed unless the court "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
There was no abuse of discretion here because Mother failed to make a prima facie showing of changed circumstances. (See In re Alayah J., supra, 9 Cal.App.5th at p. 478.) The children were removed from Mother's care in large part because of her drug use, and her drug use issues persisted during the years-long dependency proceedings. In fact, Mother tested positive just two days before filing her second petition. (See In re Alayah J., supra, at p. 482 [mother did not show changed circumstances in part because she tested positive for drugs six days before filing section 388 petition].) Although she disputes the results of this test, pointing to the fact that she tested negative the next day, the positive test was valid. But even if the test were invalid, the juvenile court noted that Mother's drug abuse issues persisted "at the very minimum" until her positive drug test in March 2023, a few months before Mother filed her section 388 petitions.
This brief period of alleged sobriety and Mother's efforts to overcome her drug issues, though commendable, are not enough to show changed circumstances. "[A] showing of materially changed circumstances requires more than a relatively brief period of sobriety or participation in yet another program." (In re N.F. (2021) 68 Cal.App.5th 112, 120-121.) This is because "[i]t is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9; see also In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [three months of sobriety insufficient to show changed circumstances].) At best, Mother's circumstances were changing, not changed. (See In re Ernesto R., supra, 230 Cal.App.4th at p. 223.)
Given Mother's persistent drug issues, the juvenile court could reasonably find that she failed to make a prima facie showing that her circumstances had changed. For this reason alone, the court did not abuse its discretion in denying her section 388 petitions without holding an evidentiary hearing (assuming the hearing did not qualify as an evidentiary hearing). (See In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Mother argues that, because the juvenile court incorrectly denied her section 388 petitions, the court also erroneously terminated her services as to G.P. and J.P. with exit orders granting their father sole legal and physical custody and visitation for her. But because we conclude the trial court properly denied the petitions, we reject the argument.
C. Termination of Services as to A.P.
At the July 14, 2023 hearing, which served in part as the six-month review hearing for Mother as to A.P., the juvenile court terminated Mother's services instead of extending them to the 12-month review hearing. Mother argues the court erred in doing so. We disagree.
If a child is less than three years old when removed, like A.P. here, reunification services generally must be offered for only six months, "but no longer than 12 months from the time the child entered foster care." (F.K. v. Superior Court (2024) 100 Cal.App.5th 928, citing § 361.5, subd. (a)(1)(B).) This is because the "'"unique developmental needs of infants and toddlers"' . . . justifies a greater emphasis on establishing permanency and stability earlier in the dependency process." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175.)
As a result, the Legislature has imposed different rules for children who are removed when under three years old. If the juvenile court "finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan," at the six-month review hearing concerning a child who was removed when under the age of three, "the court may schedule a hearing pursuant to [s]ection 366.26 within 120 days." (§ 366.21, subd. (e)(3).) But if the court "finds there is a substantial probability that the child . . . may be returned to their parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3), italics added.) In other words, the juvenile court may terminate a parent's reunification services at the six-month review hearing only if the court finds (1) the parent did not participate regularly in their case plan, (2) the parent failed to make substantive progress in their case plan, and (3) there is no substantial probability that child will be returned by the 12-month review hearing. (Ibid.; see also M.V. v. Superior Court, supra, 167 Cal.App.4th at pp. 175-176; F.K. v. Superior Court, supra, 100 Cal.App.5th at p. 934.)
Mother challenges only the juvenile court's finding that there was no substantial probability that A.P. would be returned to her care by the 12-month review hearing, which was about two months after the July 14, 2023 hearing. Reviewing the issue for substantial evidence, we disagree. (J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 535.)
We first reject Mother's suggestion that the juvenile court should have used A.P.'s father's 12-month review hearing in November 2023 as the appropriate benchmark instead of the deadline for her 12-month review hearing, which was about two months after the July 14, 2023 hearing, because the juvenile court "would have likely combined the parents' 12-month review hearing date." As the Department correctly observed, our Supreme Court rejected a similar argument in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846.) The court explained that "if at most four months remain until the next review hearing (i.e., the 12-month hearing or 18-month hearing), at most only four months of services can by law be ordered, and the juvenile court, therefore, should consider only what the impact of those four months of services would be on the parent and child, not whether another hypothetical two months of services beyond the next prospective hearing might have a different or additional impact." (Ibid.) Mother understandably offers no response to the Department's reliance on Tonya M., which controls here.
The juvenile court thus correctly based its decision on Mother's 12-month review hearing date in September 2023, and reasonably found that there was no substantial probability that A.P. would be returned to her care by then. The court noted that Mother had already received over a year of services as to A.P. and the six-month review hearing date was in March 2023, so Mother had already received several additional months of services by the time of the July 14, 2023 hearing. Mother had also received services as to G.P. and J.P. since September 2021.
Despite these extensive services, Mother's drug use issues persisted until at least March 2023, when she tested positive. Mother's positive drug test from two days before the hearing, though she disputes its validity, provided the juvenile court strong reason to believe that Mother still had significant drug abuse issues as of the hearing. And given that Mother had received nearly two years of services by that point, the court reasonably found that additional services likely would not benefit her such that A.P. would likely return to her care by the 12-month review hearing two months later. Substantial evidence thus supports the juvenile court's decision to terminate Mother's services.
IV.
DISPOSITION
The juvenile court's orders issued at the July 14, 2023 hearing are affirmed.
We concur: RAPHAEL J. MENETREZ J.