Opinion
D070418
02-03-2017
In re Z.M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH & HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.M., Defendant and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Paula J. Roach, Senior Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519203) APPEAL from an order of the Superior Court of San Diego County, Sharon L. Kalemkiarian, Judge. Affirmed. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Paula J. Roach, Senior Deputy County Counsel for Plaintiff and Respondent.
K.M., the mother of Z.M., appeals the juvenile court's order made at the six-month review terminating her reunification services. She contends the juvenile court was unaware it had discretion to extend her reunification services until the 12-month hearing under Welfare and Institutions Code section 366.21, subdivision (e); alternatively, it abused its discretion in terminating her family reunification services. We conclude the juvenile court was aware of its discretion and did not abuse it; accordingly, we affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise stated. --------
BACKGROUND
This case previously came before us, and we affirmed the juvenile court's ruling regarding paternity, concluding that the court did not err in finding W.G. was Z.M.'s biological father and C.V. was Z.M.'s presumed father under Family Code section 7611. We also affirmed the court's dispositional order placing Z.M. with C.V.'s mother. (In re Z.M. (March 22, 2016, D069110) [nonpub. opn.].)
In October 2015, the San Diego County Health and Human Services Agency's (the Agency) case plan for K.M. provided that by January 2016 she should complete certain objectives: stay free from illegal drugs; attend Narcotics Anonymous (NA) meetings; demonstrate she is maintaining a drug/alcohol free lifestyle by participating in random substance abuse testing and providing clean test results to the Agency; pay attention to and monitor Z.M.'s health, safety and well-being; take appropriate action to avoid being a victim of further domestic violence; participate in a domestic violence support group at least once a week; maintain regular visitation with Z.M.; and maintain regular phone contact with the Agency.
Before a six-month status review hearing under section 366.21, the Agency prepared various reports regarding one-year-old Z.M., which the court admitted into evidence. In March 2016, the social worker reported that K.M. was homeless and sleeping out of her car or staying with different friends. She also was not consistently employed. The social worker wrote: "[K.M.] has also placed [Z.M.] at risk by knowingly transporting him while driving with a suspended driver's license. . . . At this time, the Agency continues to worry that [K.M.] may place [Z.M.] in a dangerous situation where he may be exposed to violence, or that [K.M.] may continue to use drugs/alcohol and become incapacitated and thus be unable to provide for [his] needs. [He] is very young, is not yet verbal and cannot meet or express his own needs."
The social worker reported that in April 2016, K.M. admitted she had relapsed and resumed drinking alcohol. Despite her counselor securing a bed for her at a residential program, K.M. walked out during the intake at a facility and skipped two appointments to enroll in another facility. K.M. had also missed three out of the last five counseling sessions with her domestic violence group. K.M. violated a restraining order by entering a vehicle with W.G., who previously was arrested for inflicting domestic violence on her.
In light of the above, the Agency recommended that Z.M. be continued as a dependent of the juvenile court, noting Z.M.'s return to the custody of the parents would create a substantial risk of detriment to his physical and emotional well-being, and his placement was necessary and appropriate. Moreover, the parents' progress toward alleviating the causes necessitating placement had been minimal or, in the case of W.G., nonexistent.
In May 2016, following a hearing, the juvenile court adopted the Agency's recommendation and denied an extension of reunification services to K.M and W.G. The court concluded there was a prima facie case that K.M. had not participated regularly in the services and not made substantive progress. Specifically, her participation in the domestic violence program was "sporadic," and she "complied poorly" with therapy. Further, K.M. did not attend required N.A. meetings. The court stated: "I don't believe [Z.M.] could be returned to [K.M.'s] care at this time. I don't believe there's also any—there's clear detriment, because [she's not shown] that her substance abuse or domestic violence issues have been treated."
Addressing K.M., the juvenile court ruled: "Now, as to whether there's any substantial probability of return. Again, I'm finding prima facie [K.M.] did not make substantive progress, but even if I found she had made progress, I don't think these issues, as deep as they go, there is no indication that they would be resolved by [the 12-month mark]. [¶] And particularly troubling to the court and particularly significant in terms of the evidence there is that you had moved to unsupervised visits, and then we had the [domestic violence] incident in April and the hearing in March and everything fell apart. So the fact that the court had to order supervised visits again in March, and that was after unsupervised visits had been available, is—is very disturbing and very significant evidence that [Z.M.] cannot be returned to your care by the 12-month point in August."
In accordance with the Agency's recommendation, the juvenile court further ruled that K.M. could have supervised visits with Z.M., and the social worker had discretion to lift supervision and allow overnight visits and to permit a 60-day trial visit with concurrence of minor's counsel.
At that hearing, the juvenile court also ruled C.V.'s reunification services could continue. However, we grant respondent's request for judicial notice of a July 13, 2016 order, in which the juvenile court subsequently ordered services to C.V. terminated and set a date for a hearing under section 366.26.
DISCUSSION
We conclude the juvenile court was aware of its discretion under section 366.21, subdivision (e), which it specifically cited in prefacing its ruling. That statute permits the juvenile court, at a six-month review hearing for a dependent child under the age of three, to schedule a permanency hearing pursuant to section 366.26 if the court "finds by 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)(3).) But if the juvenile court finds either that there is a substantial probability the child may be returned to his or her parent or legal guardian within six months, or that reasonable services have not been provided, then it lacks that discretion, and "shall continue the case to the 12-month permanency hearing." (Ibid.)
The juvenile court informed the parents at the hearing that the statute required it to decide "whether any of the three of you made substantive progress, essentially in your plan. [¶] And if I find that you have not, I do have the option to forward to the 12-month point—well, for those, if I found that you have not, it is prima facie evidence that I should not continue service. But if I find that someone has made progress and there's a substantial probability that the child could be returned by 12 months, then I shall continue services." To any extent that the juvenile court misspoke in explaining the scope of its discretion, we conclude any error was harmless because the juvenile court correctly made findings pursuant to its discretion. Further, the fact that at the same hearing it elected to extend services to C.V. while denying those services to K.M. should dispel any notion the court was unaware of its discretion.
In assessing the propriety of the juvenile court's order, we review the evidence most favorably to the prevailing party and indulge all legitimate and reasonable inferences to uphold the order. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting it, the court's order must be affirmed. (Id. at p. 545.) " ' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.)
We conclude that substantial evidence supported the juvenile court's order. The court followed the social worker's recommendation that it would be detrimental to return Z.M. to K.M., who had suffered a relapse and returned to using alcohol, and had not participated sufficiently in the required drug treatment program. K.M. also had violated the protective order prohibiting her contact with W.G. Further, K.M. only sporadically complied with her domestic violence counselling program. "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (§ 366.21, subd. (e).)
K.M. relies on her positive visits with Z.M. to argue that continuing her services could benefit him. In light of K.M.'s failure to comply with her case plan, she did not show that there was some probability, much less a "substantial" one, that Z.M. would be safely returned to her custody by the 12-month date. (§ 366.21, subd. (g)(1).) "Resources available to the juvenile court are not unlimited." (In re Alanna A. (2005) 135 Cal.App.4th 555, 566 (Alanna A.).)
K.M. argues based on the fact the juvenile court continued reunification services for C.V. that it should have done the same for her: "It is best for that minor to have not one parent but two parents who are going through the reunification process in order to become better parents and to better understand his needs." She adds, "Indeed, continuing services to even a non-compliant parent is probably in the child's best interests because the child, if reunified with one parent, will most likely have contact with the other parent." This argument is moot in light of the fact the juvenile court terminated reunification services to C.V. and that order is not challenged in this appeal. The juvenile courts have discretion at the 12-month hearing to terminate one parent's services even if services are continued for the other parent and no selection and implementation hearing is set. (Alanna A., supra, 135 Cal.App.4th at pp. 565-566; see also In re Jesse W. (2007) 157 Cal.App.4th 49, 55-57 [terminating mother's services at six-month hearing involving minors under the age of three while continuing father's services].) The court may reasonably conclude that continuing services for one parent is warranted but that the continued provision of services for the other parent would be "fruitless." (Alanna A., at p. 566.) A juvenile court maintains broad discretion to determine what would best serve and protect the child's interest, and a reviewing court will not reverse the court's order in the absence of a clear abuse of discretion. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) Here, we discern no abuse of discretion.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.