Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225027
SCOTLAND, P.J.
R.N. (petitioner), the mother of N.M. (the minor), seeks an extraordinary writ to vacate the orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452; further section references are to the Welfare and Institutions Code.) Petitioner contends the juvenile court erred by not ordering six more months of services and by finding services were reasonable. The minor has not opposed the petition, and the Sacramento County Department of Health and Human Services (DHHS) “stands by its recommendation [that the juvenile court] continue reunification services for the Petitioner”; thus effectively conceding the juvenile court erred in not extending reunification services for another six months. We agree. Accordingly, we shall issue a peremptory writ of mandate directing the court to vacate its orders and to provide petitioner with additional reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, a dependency petition was filed by DHHS concerning the newborn minor, alleging pursuant to section 300, subdivision (b), that petitioner tested positive for marijuana at the time of the minor’s birth, that the minor’s meconium tested positive for cocaine and marijuana, and that petitioner was convicted of possession for sale of cocaine two weeks before the minor’s birth.
According to the report prepared for the jurisdictional hearing, petitioner minimized her drug use and showed a lack of insight into the problem. Petitioner had five other children, ranging in age from four to 14. Because her home was found to be appropriate and the other children denied any abuse or neglect, they were not removed (the minor’s siblings are not the subject of this writ proceeding).
At the jurisdictional hearing in December 2006, petitioner submitted the matter on the social worker’s report, and the juvenile court adopted the social worker’s recommendations. The case plan recommended by the social worker required petitioner to participate in a parent education program, submit to drug testing three times a week, and comply with the recommendations of a substance abuse assessment. The court also ordered petitioner to participate in the dependency drug court program.
In February 2007, the juvenile court took jurisdiction over petitioner’s other children but left them placed with her. However, in March 2007, supplemental petitions were filed concerning those children because petitioner had been detained for violating the terms of her release on ankle monitoring.
There are ambiguities in the court record as to when and why petitioner was incarcerated. The social worker’s report states that petitioner was incarcerated in January 2007 and that she was incarcerated in March 2007. The report also states that, since January 2007, petitioner was arrested for “the violation of . . . [p]ossession or purchase of cocaine for sale”; however, the supplemental petitions concerning her other children, filed in March 2007, alleged petitioner was arrested for violating the terms of her electronic monitoring agreement, and contained no allegations regarding a new arrest for a narcotics offense. During the review hearing, the juvenile court stated petitioner had been arrested on another drug-related offense, but the court also noted that “a full review of the file” indicated she was in custody for violating the terms of her electronic monitoring agreement. There is no information in the record concerning the specifics of petitioner’s arrests or the nature of her electronic monitoring violation.
In a report prepared for the six-month review hearing, the social worker stated that, prior to incarceration, petitioner had been complying with drug court and the STARS (Specialized Treatment and Recovery) program, was testing regularly (presumably, with negative results), and was attending a four-day outpatient program and support groups. Since becoming incarcerated, she had been attending NA/AA meetings and a class on addiction and life choices, had almost completed parenting classes, and was participating in computer classes and a job readiness class. Her expected release date was in early July. The social worker reported that petitioner was not having visitation with the minor while in custody because “it d[id] not appear to be in the [minor’s] best interest to visit [her] through a glass window”; no information was provided about the quality or quantity of visitation before petitioner became incarcerated. The social worker recommended that petitioner be provided six more months of services.
The record is somewhat unclear as to petitioner’s progress in services. The social worker reported that petitioner was actively participating in her case plan and was acquiring skills she needed to prevent the problems that led to dependency, but that there was a “lack of . . . significant progress in case plan services.” The social worker also stated petitioner had made fair progress in her efforts to rehabilitate from substance abuse, both prior to and during her incarceration, and that it was likely the minor could be returned to petitioner’s care with six more months of services if she continued to progress at the same pace. The record provides little factual support for these conclusory statements.
Petitioner was not at the review hearing in June 2007, nor was there any discussion as to why she had not been transported to the hearing. The minor’s attorney submitted the matter on behalf of the minor, noting that petitioner had been “doing well” when she was out of custody and was involved in “some services” while in custody, but that it was “difficult to see whether [she] has met the requirements that she needs to meet in order to receive six more months of services.”
In terminating reunification services, the juvenile court acknowledged that petitioner was participating in substance abuse meetings and parenting classes, but concluded that this was not “the crux . . . of the inquiry”; rather, the question was whether she had made “substantial” progress in addressing the issues that brought her before the court. The court found that petitioner’s progress toward eliminating the causes requiring removal of the minor from her custody had been minimal; she had not regularly participated, and made substantive progress, in court-ordered services; and she had not regularly and consistently contacted and visited the minor. The court stated it was difficult to find petitioner had made substantial progress when, “midway through the reunification period,” she became reincarcerated for failing to comply with the orders of the criminal court.
The juvenile court based its findings in part on its review of the drug court file (which is not before U.S. in this proceeding). It noted that “prior to her incarceration[, petitioner] was participating in her case plan” and that a nunc pro tunc order in May contained a finding she had been compliant at her initial drug court appearance. Although the court also noted that “the file does not reflect [petitioner] was fully taking part in the services authorized and referred by [DHHS] through the [STARS program],” it is unclear what the court relied upon in reaching this conclusion.
The juvenile court concluded “[t]he reality of the situation” was that petitioner was not participating in a substance abuse treatment program or testing and there was no “showing that she has made significant progress in resolving the problems that led to the [minor’s] removal from the home.” The court based this latter conclusion on the fact petitioner was incarcerated.
DISCUSSION
I
Petitioner challenges the juvenile court’s finding that she failed to regularly participate, and make substantive progress, in her court-ordered services. We agree the juvenile court’s finding in this regard is not supported by substantial evidence.
Reunification services may be terminated at the six-month review hearing for a child who was under three years at the time of removal from parental custody if the juvenile court finds clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).) The purpose of this provision is to give the court more flexibility in meeting the needs of young children “‘in cases with a poor prognosis for family reunification.’” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611-612, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1524 (1995-1996 Reg. Sess.) as amended May 20, 1996, p. 4.) The provision “merely provide[s] the court with the option to terminate reunification efforts after six months where the parents have made little or no progress in their service plans and the prognosis for overcoming the problems leading to the child’s dependency is bleak.” (Id. at p. 612.) Thus, “services may be terminated at the six-month stage only when ‘parental unfitness is so well established that there is no longer “reason to believe that positive, nurturing parent-child relationships exist” [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished.’” (Id. at p. 613.)
DHHS had the burden to show that services should be terminated, and the juvenile court must support its order in this regard with “appropriate findings and a factual basis.” (In re James Q. (2000) 81 Cal.App.4th 255, 261.) A parent is not required to show perfect compliance with the case plan to merit continuing reunification services at the six-month review hearing. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343; Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 397.)
Here, petitioner appeared to be complying with all aspects of her plan prior to her incarceration in March. She participated in dependency drug court, complied with the recommendations of the STARS program, and submitted to drug testing. Although her incarceration made it impossible for petitioner to continue to attend these programs, she accessed an array of services once in custody to allow her to continue to make progress on her case plan. Thus, substantial evidence does not support the juvenile court’s finding that petitioner failed to participate regularly in her treatment plan.
Nor does the record support the finding that petitioner failed to make substantive progress in her case plan. According to the social worker, petitioner was acquiring the skills she needed to prevent the problems that led to dependency and she had made fair progress in her efforts to rehabilitate from substance abuse. The social worker felt that if petitioner continued to progress at the same pace, she could reunify with the minor by the 12-month review hearing. It is true that, in the same report, the social worker noted that a risk of returning the minor to petitioner was petitioner’s “lack of . . . significant progress in case plan services.” However, there was minimal evidence to support this conclusory statement, and petitioner did not have the burden of proof in this regard.
Based on the juvenile court’s comments, it appears that the primary basis for finding that petitioner had not regularly participated, and made substantive progress, in her case plan was that she had become incarcerated during the reunification period. Even the court’s finding that petitioner had not visited the minor regularly or regularly tested for drugs appears to have been based on her lack of access to those services while in custody, because the record does not suggest that she failed to comply with those services prior to her incarceration.
That petitioner became incarcerated during the reunification period did not justify terminating reunification services unless the court determines that “those services would be detrimental to the minor.” (§ 361.5, subd. (e)((1); In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406,) No such determination was made here. In fact, once petitioner became incarcerated, DHHS was required to adjust the reunification plan to meet her changed circumstances. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1014; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1167.)
We are mindful that a parent’s incarceration makes the reunification process much more difficult. Even so, unless the length of, or reason for, a parent’s incarceration provides a new basis for denying services (see § 361.5, subd. (e)) or the circumstances leading to the incarceration provide a basis for finding that the parent has not made substantive progress in the treatment plan, such incarceration standing alone cannot provide the grounds for terminating services.
Here, petitioner’s incarceration was apparently the result of a violation of an ankle monitoring program; however, there was no evidence the nature of the violation was related to the problem that led to dependency jurisdiction (i.e., drug abuse). Moreover, it was anticipated that the length of petitioner’s incarceration would be brief. Thus, the mere fact petitioner became incarcerated during the reunification period, without more, was an insufficient basis for terminating reunification services. (In re Brittany S., supra, 17 Cal.App.4th at p. 1402.)
The juvenile court found that because petitioner had not participated regularly, and made substantive progress, in her treatment plan, reunification services could be continued only if the provisions of section 366.21, subdivision (g) had been met. However, those provisions apply when the child is not returned to the parent “at the . . . hearing held pursuant to subdivision (f) [i.e., the 12-month review hearing],” in which case the parent must satisfy certain criteria before services may be continued. In this case, the hearing was a six-month review hearing.
II
Petitioner also argues that the juvenile court erred in finding she had been provided reasonable services. We disagree.
At a six-month review hearing, the court must “determine whether reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent.” (§ 366.21, subd. (e).) In reviewing the reasonableness of services, we view the evidence in the light most favorable to the prevailing party. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
Petitioner argues services were not reasonable because she never received a referral for counseling services. However, her case plan with the minor did not include counseling. Because petitioner consented to the terms of the case plan, she cannot now complain that it did not provide for counseling. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476.)
DISPOSITION
Let a peremptory writ of mandate issue, directing the juvenile court to vacate its orders terminating petitioner’s reunification services and scheduling a section 366.26 hearing. The matter is remanded with directions to the juvenile court to order additional reunification services for petitioner. Petitioner’s request for a stay is dismissed as moot.
We concur: NICHOLSON , J., CANTIL-SAKAUYE , J.