Opinion
D059617
09-02-2011
In re T.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LEONARD B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J517839A-B)
APPEAL from orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.
Leonard B. appeals orders of the juvenile court terminating his family reunification services at the six-month status review hearing under Welfare and
Institutions Code section 366.21, subdivision (e), and continuing family reunification services to his children's mother to the 12-month review date. We affirm.FACTUAL AND PROCEDURAL BACKGROUND
Leonard B. and Tamara H. are the parents of T.B., now four years old, and B.B., now 16 months old (together children). In June 2010 the San Diego County Health and Human Services Agency (the Agency) detained the children in protective custody because the parents had a physical altercation. Tamara hit Leonard in the head while he was holding then two-month-old B.B. and also may have hit B.B. in the face. B.B.'s face was scratched.
Tamara does not appeal.
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Previous domestic violence incidents between the parents from December 2008 to January 2010 included: Leonard body slamming Tamara to the ground; Tamara hitting Leonard in the face, blackening his eye; Leonard hitting Tamara on the cheek; Tamara dropping T.B. on the ground during an altercation; and Leonard shoving a plate of spaghetti on Tamara's chest when she was pregnant with B.B. T.B. was present during several of these altercations. The parents told the social worker they were going to stay together and were working to get protective orders dismissed or modified.
In August 2010 the parents submitted to the petition. (§ 300, subd. (b).) The juvenile court removed the children from parental custody and ordered a plan of family reunification services. Leonard's case plan required him to attend a domestic violence prevention program and a parenting education program, and participate in individual therapy and substance abuse treatment and testing. Leonard had a misdemeanor domestic violence conviction and was ordered to complete a 52-week counseling program as a condition of probation.
The contested six-month status review hearing was held on March 30, 2011. The Agency recommended the juvenile court terminate Leonard's reunification services and continue services to Tamara. The juvenile court admitted the Agency's reports and attachments in evidence, and accepted Leonard's stipulated testimony. The social worker testified.
The record shows that as of January 28, 2011, Leonard was not participating in individual therapy. He enrolled in domestic violence prevention services in September 2010 but did not attend the group sessions. He completed an intake at another domestic violence treatment program in November, and started the program in December. Leonard enrolled in a parenting education program in August 2010 but stopped attending classes in September. In January 2011 he enrolled in another parenting program.
The social worker reported that Leonard consistently visited the children. During his one-hour weekly supervised visits, Leonard was attentive to the children and displayed age-appropriate concern and responses to their needs. He brought activities to the visits and played with the children. The children easily initiated contact with him. The Agency did not expand Leonard's visits because of his noncompliance with substance abuse testing and continued contact with Tamara.
The case plan also required Leonard to participate in a substance abuse treatment program and testing. Leonard told the social worker he used medical marijuana for chronic back pain and provided a prescription from his medical doctor. After testing positive twice, he did not participate in random drug tests. The social worker repeatedly asked Leonard to complete a substance abuse evaluation, which he had not done as of January 28, 2011. In an addendum report prepared on March 21, 2011, the social worker reported that Leonard completed an assessment with a dependency drug court specialist. The specialist said she could not find a program for Leonard because of his medical marijuana use. Leonard tested positive for marijuana and ethanol on March 21.
After receiving four referrals for therapy since the beginning of the case, Leonard contacted a therapist on March 11, 2011, but was not yet in therapy. He completed three classes of a 12-session parenting education program. Leonard was discharged from his domestic violence prevention program on March 17 when he appeared to be under the influence of drugs and said he would throw a chair at the program facilitator were he not thinking of his children.
The social worker said Leonard made no progress in completing his court-ordered case plan and in eight months had not demonstrated any ability to complete services. The Agency's goal was to reunify the children with their mother, who was demonstrating some progress with services. The parents' relationship changed from month to month.
The parties agreed that if Leonard were to testify he would state he learned in his parenting class it could be beneficial to express his feelings in a conducive environment, and that was what he was doing the day he was discharged from the domestic violence treatment group.
The juvenile court found by clear and convincing evidence that Leonard did not participate regularly with services and did not make substantive progress in a court-ordered treatment plan, and terminated his reunification services. The court continued reunification services to Tamara to the 12-month hearing date.
DISCUSSION
Leonard argues the juvenile court abused its discretion by terminating reunification services to him while at the same time continuing services to Tamara to the 12-month review date. He contrasts his circumstances with those of the nonreunifying parents in In re Alanna A. (2005) 135 Cal.App.4th 555, 559-561 (Alanna A.) and In re Jesse W. (2007) 157 Cal.App.4th 49, 56-57, 65 (Jesse W.), in which this court held the juvenile court had the discretion to terminate services to one parent while continuing reunification services to the other. Leonard contends that, unlike the parents in Alanna A. and Jesse W., who did not engage in services and did not visit their children during the review period, he consistently visited his children and by the time of the six-month review was making progress in services.
A
Termination of Reunification Services
When a child is removed from a parent's custody, the juvenile court generally must order family reunification services to the parent. (§ 361.5, subd. (a).) For a child under three years of age at the time of removal, reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(1)(B); Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) At the six-month status review hearing, if the juvenile court finds by clear and convincing evidence the parent did not participate regularly and make substantive progress in a court-ordered treatment plan, the court may terminate reunification services and schedule a section 366.26 hearing. If, however, the court finds there is a substantial probability the child may be returned to his or her parent within the next six months or that reasonable services have not been provided, the court is required to continue the case to the 12-month review hearing. (§ 366.21, subd. (e).)
In determining whether there is a substantial probability the child may be returned to parental custody the court should consider whether the parent has: consistently and regularly visited the child; made significant progress in resolving the problems that led to the child's removal; and demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the child's safety and well-being. (§ 366.21, subd. (g)(1); Cal. Rules of Court, rule 5.710(c)(1)(D).)
If the juvenile court does not set a section 366.26 hearing, it shall direct that any reunification services previously ordered shall continue to be offered to the parent, subject to applicable time limitations, provided the court may modify the terms and conditions of those services. If the child is not returned to parental custody, the court shall determine whether reasonable services have been provided or offered to the parent. The court shall order that those services be initiated, continued or terminated. (§ 366.21, subd. (e).)
The juvenile court has the discretion to terminate services to one parent and continue services to the other parent. (Alanna A., supra, 135 Cal.App.4th at p. 559; Jesse W., supra, 157 Cal.App.4th at p. 65.) As a practical matter, where a nonreunifying parent is likely to have continued contact with the child, further services to that parent may be in the child's best interests. (Alanna A., at p. 565.)
We review an order terminating reunification services to one parent for abuse of discretion. (Alanna A., supra, 135 Cal.App.4th at p. 565.) In exercising its sound discretion, the juvenile court evaluates whether the parent who did not participate regularly and make substantive progress in his or her court-ordered case plan will utilize additional services and whether those services would ultimately inure to the child's benefit. (In re Jesse W., supra, 157 Cal.App.4th at pp. 66-67.)
B
Abuse of Discretion in Termination of Services
The Agency acknowledges, and we agree, the juvenile court would not have abused its discretion had it continued reunification services to Leonard. (Cf. In re Dakota H. (2005) 132 Cal.App.4th 212, 230 [the reviewing court will uphold an order if it is supported by substantial evidence, even if substantial evidence to the contrary exists and the juvenile court might have reached a different result had it believed other evidence].) Unlike the parents in Alanna A. and Jesse W., Leonard consistently visited his children, who responded well to his attention and concern. However, Leonard does not show on this record that the juvenile court abused its discretion when it terminated his reunification services while continuing services to Tamara.
As the recitation of the factual background indicates, Leonard's interest in and compliance with reunification services were minimal. By the time of the six-month review hearing, Leonard had had more than eight months' time to utilize offered services. He did not undergo a substance abuse evaluation until shortly before the six-month review hearing, and resisted the social worker's requests for random drug tests. When he finally tested in March, the results were positive for marijuana and ethanol. Leonard did not begin a 52-week domestic violence treatment program until four months after the disposition hearing. He was discharged from the program after 13 weeks when he appeared to be under the influence of drugs and stated he would like to throw a chair at the program facilitator.
We conclude the juvenile court did not abuse its discretion when it terminated Leonard's reunification services. The juvenile court's finding that Leonard did not regularly participate in and make substantive progress in his court-ordered case plan is supported by the record. The Agency offered services to Leonard for the statutorily required period, which was presumptively limited to six months. (§ 361.5, subd. (a)(1)(B); Tonya M. v. Superior Court, supra, 42 Cal.4th at p. 843.) Unlike Tamara, who recognized the protective risks to the children and participated in services, the record shows that Leonard did not acknowledge his role in their significant history of mutual domestic violence. Based on Leonard's past performance, the juvenile court could reasonably conclude he would not utilize additional services and any offered services would not ultimately inure to the children's benefit. (In re Jesse W., supra, 157 Cal.App.4th at pp. 66-67.)
DISPOSITION
The orders are affirmed.
MCDONALD, Acting P. J. WE CONCUR: MCINTYRE, J. IRION, J.