Opinion
H050766
06-28-2023
In re N.N., a Person Coming Under the Juvenile Court Law. v. M.T., Defendant and Appellant. SANTA CRUZ COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 21JU00128
Danner, J.
M.T. (mother) appeals from the juvenile court order terminating family reunification services for her but continuing reunification services for J.N. (father).Following contested proceedings, the juvenile court found that mother failed to meet the statutory criteria for continuing reunification services past the 12-month period under Welfare and Institutions Code section 366.21, subdivision (g), due to her lack of progress in addressing the issues that led to the dependency of the infant minor, N.N.The juvenile court anticipated, however, that N.N. would be returned to father's custody as of the 18-month review hearing based on his significant progress with his case plan and extended father's reunification services accordingly.
Father is not a party to this appeal.
Unspecified statutory references are to the Welfare and Institutions Code.
To protect the minor's privacy, we refer to her by her initials. (See Cal. Rules of Court, rule 8.401(a)(2).)
On appeal, mother contends that in terminating her reunification services, the juvenile court failed to recognize it could exercise its discretion to continue those services in the best interests of the child, despite mother's failure to meet the statutory criteria. Having carefully reviewed the record on appeal, we conclude there is nothing that suggests the trial court misconstrued its authority under section 366.21, subdivision (g) (hereafter, section 366.21(g)), was unaware of its scope of discretion, or failed to exercise that discretion. Further, based on the court's findings of mother's lack of progress in her case plan, we decide mother cannot carry her burden of showing prejudicial error. We affirm the juvenile court's order.
I. FACTS AND PROCEDURAL BACKGROUND
The facts are undisputed for purposes of this appeal. The dependency proceeding began in August 2021, shortly after N.N.'s birth, based on a report from the hospital to the Santa Cruz County Department of Human Services (department) that mother had tested positive for benzodiazepines, opiates, amphetamines, and alcohol during her pregnancy and at the time she gave birth. N.N.'s blood screen and meconium also came back positive for amphetamine. Mother reported to the social worker her history of alcohol and drug use, including while pregnant with N.N., her three prior DUIs (the most recent in late May 2020), and her past and present efforts to obtain mental health and substance use treatment. She and father agreed to participate in random drug testing and a substance use disorder (SUD) assessment in preparation for N.N.'s discharge.
Unless otherwise indicated, all dates were in 2021.
Additional drug tests were negative as to father but inconclusive as to mother for methamphetamine and amphetamines. Both parents agreed to a safety plan under which father agreed not to leave mother alone with N.N. and to contact the social worker if he suspected mother was using drugs. N.N. was released to parents in early September.
The department filed a juvenile dependency petition later that month, followed by an amended petition, after an incident in which parents brought N.N. to the hospital. Mother then left the hospital without advising anyone and returned several hours later exhibiting behaviors consistent with methamphetamine use. Mother denied using drugs but told the social worker she" 'made some bad decisions'" and "[took] some blue pills someone gave her, smoked meth, and drank something" before arriving at the hospital. The amended petition alleged that mother's substance abuse and father's failure to protect placed N.N. at serious risk of harm, as did one of mother's prior DUIs involving N.N.'s two older half siblings, who were the subject of protective custody in May 2020 and were released to their father. (§ 300, subds. (b)(1), (2), (j).)
On October 21, the department filed a jurisdiction/disposition report providing a detailed account of the facts supporting the petition allegations and recommending family reunification services be offered to both mother and father. The juvenile court found father to be the presumed parent of N.N. After a contested detention hearing, the juvenile court found the department made a prima facie showing as to detention and ordered N.N. placed in the temporary custody of the department, with supervised visitation for mother and father a minimum of three times per week.
The department filed an update to the jurisdiction/disposition report and a further amended petition prior to the jurisdiction hearing on November 4. The update reported that mother had attended therapy in September but missed two out of three sessions in October, had not attended any sessions of her dual diagnosis group in October, and had tested positive for amphetamines and alcohol on September 9 and tested positive for alcohol on September 10 and had not called in or tested since September 13. Mother's therapist reported that mother needed to focus on her mental health and stress management. The visitation supervisor reported that parents' visits with N.N. were "really good."
The juvenile court found that N.N. came within the court's jurisdiction pursuant to section 300, subdivisions (b) and (j) and sustained the allegations of the further amended petition. The court declared N.N. to be a dependent of the juvenile court, ordered her to be removed from parents' care, and ordered family reunification services and supervised visitation for both parents three times per week. Mother's case plan included attending general counseling, substance abuse outpatient treatment, and drug testing. Father's case plan included general counseling and drug testing. At a subsequent hearing, both parents were accepted into the county's Family Preservation Court program.
The juvenile court held an interim review in February 2022, halfway through the statutory six-month period. The department reported that visitation was going well and N.N. "lights up whenever she sees her parents." However, mother was not consistent with drug testing or engagement in therapy with the SUD specialist, and the department did not recommend N.N.'s return to her parents' custody at that time.
For the six-month review in April 2022, the department recommended that N.N. continue as a dependent of the juvenile court and that parents continue to receive family reunification services. While mother was making some progress on her case plan, such as by completing a Triple P parenting class, she failed to consistently attend the subsequent parenting program and had been dropped from outpatient services for failure to participate. She was referred to another provider and assessed for intensive outpatient services. Mother drug tested 13 times and "no showed" 11 times. She reported benefiting from counseling, which she began in March; however, mother's therapist indicated that mother "knows the right things to say" and would not take responsibility for her actions which led to the juvenile court involvement.
Father had demonstrated skills and behaviors consistent with his case plan objectives, testing negative on 10 drug tests between December and April, though seven tests were considered" '[n]o shows.' " Both parents participated regularly in loosely supervised visitation and were very engaged with N.N. and attentive to her needs. The department remained concerned with mother's inconsistent engagement in substance abuse treatment and services and recommended more time for her to address her mental health and demonstrate a commitment to her sobriety by regularly attending appointments, obtaining a sponsor, showing participation in AA or NA, and developing her support system.
We do not recount in detail the department's reports as to father, who is not at issue in this appeal.
The parents disagreed with the department's recommendation not to return N.N. to their care. The juvenile court advised them of the six-month statutory period for substantial compliance with their case plans and set a contested hearing. In a subsequent memo to the court, the department reported that a social worker had met with parents. Mother had enrolled in intensive outpatient substance abuse services. The social worker had emphasized the need for both parents to test consistently and follow through with services. Parents had agreed to allow the social worker to visit their home to assess for safety. However, both parents declined the option to take a hair follicle test to confirm sobriety during the time they were inconsistently testing.
At the contested six-month review hearing on May 16, 2022, the juvenile court considered the department's six-month review, memos, and exhibits, as well as testimony and exhibits offered by mother and father. The court agreed with department's counsel and minor's counsel that parents were not at a point where N.N. could return safely to their care. The court ordered the continuation of reunification services and anticipated N.N. would be returned to parents' custody within 12 months. The court reminded parents of the limited timeline for reunification services.
At an interim review in August 2022, the social worker reported that mother was participating in Family Preservation Court but had not engaged in therapy or tested consistently. She did not test in May, tested eight times in June with one no show and one positive test for Fentanyl, tested seven times in July with one no show and one positive test for Fentanyl, and tested eight times in August with two no shows and one positive test for Fentanyl. Father was engaged in his program and testing negative. The court ordered visitation to return to supervised. Mother missed two out of four Family Preservation Court appearances, both unexcused, between the August interim appearance and the 12-month review.
In advance of the 12-month review hearing, the department filed notice of a change in recommendation for reunification services to be terminated at the next hearing. The court appointed special advocate (CASA) report concurred with the change in recommendation, noting that despite parents' strong bond with N.N. and desire to reunify, their inability to complete case plan requirements has stalled reunification.
Parents disagreed with the recommendation, and the juvenile court set the matter for trial. On December 14, 2022, the date set for trial, the department requested a continuance for one month to allow father to participate in certain services, which the department learned had been erroneously discontinued. The court ordered the continuance, during which time father would continue to test twice weekly and have visitation separate from mother to demonstrate his parenting skills.
For the continued 12-month review hearing, the department updated its recommendation to request that the court continue reunification services for father but terminate services for mother. The department cited father's demonstrated commitment to fulfill the requirements of his case plan and make parenting N.N. a priority. Father had tested consistently (with all negative results for the month prior), engaged in visitation and safety plans to parent N.N. on his own, continued in counseling, and worked with the Bringing Families Home program to secure housing. Mother had consistently attended her visits with N.N., which were positive. However, mother had been discharged from her outpatient program for noncompliance (with five negative tests and 18 no-shows between October 2022 to January 17, 2023), and had her counseling referral closed for failing to show up for appointments. The department observed that after receiving over 15 months of reunification services, mother "doesn't appear any closer to resolving the concerns that brought her to the attention of the [c]ourt."
The parties appeared for the continued, 12-month review hearing on February 1, 2023. The department recommended that the juvenile court extend N.N.'s dependency and out-of-home placement, continue father's reunification services to the 18-month review, and terminate mother's services. Father submitted on the department's recommendation, and mother objected. The court received mother's exhibits into evidence, including visitation logs, Family Preservation Court minute orders and phase one certificate of completion, drug testing results and related documentation, and admitted those relevant to mother's case.
Following the court's denial of mother's Marsden motion to relieve her court-appointed counsel (conducted in a closed hearing outside the presence of the parties), mother testified about her engagement in counseling and visitation during the preceding six-month period. She participated in counseling for several months in late 2022. Though she stopped because it "wasn't working out with" the therapist, she planned to resume and was scheduled for an upcoming appointment. Similarly, she participated in Family Preservation Court from May to November 2022, and had recently arranged to reenroll. She also had reenrolled in substance abuse outpatient services and was scheduled to begin the following week. Mother testified that she had visited N.N. regularly and had been scheduled to start overnight visits in July 2022, until a positive drug test (which she had asked to retake) reduced her to one-hour supervised visits three times a week. Mother testified that she loves seeing her daughter, who knows her as "mama," and is always prepared for visits with age-appropriate toys, snacks, and clothing.
Mother described family events that negatively impacted her participation in reunification services in December 2022 and January 2023. She also stated she could drug test more regularly if she were able to access testing near her home. Mother wished to continue participating in services and, if given the opportunity, she would do so.
After considering the evidence and arguments of counsel, the juvenile court found that although mother had prioritized visitation and there was "no question" of her love for N.N., her inconsistent drug testing and failure to engage regularly in counseling and substance abuse treatment showed she had not made substantial progress in addressing the issues that led to the dependency. In reviewing mother's drug testing results, the court noted that in the approximately three months preceding the February 2023 hearing, despite mother "knowing the importance of testing, . . . she has appeared for testing four times" and "no showed 16 times during that period." The court reiterated that parents are warned by the department that "a failure to test is a presumptive positive."
The juvenile court found that the extent of progress made by mother toward eliminating those causes which led to juvenile court intervention "ha[d] been minimal" and ordered mother's services terminated. It ordered that mother would have supervised visitation once per week, with the expectation of tapering to once per month. By contrast, the court found that father's progress had been "good" and there was a substantial probability that N.N. could be safely returned to father's custody by April 13, 2022, the end of the statutory 18-month period since N.N.'s initial removal. The court found that father's case plan was necessary and appropriate, continued his reunification services and testing requirements, and ordered visitation for father with N.N. a minimum of three times per week.
Mother timely appealed from the juvenile court's February 1, 2023 order terminating her reunification services.
II. DISCUSSION
Mother raises a single issue on appeal. She contends that the juvenile court applied the wrong legal standard in terminating reunification services, necessitating reversal of the order. Mother asserts that a parent's failure to satisfy the criteria set forth in section 366.21(g) for extending reunification services beyond the 12-month review does not require the court to terminate reunification services when the court has decided to continue reunification services for the other parent. Rather, she argues that, as case authority illustrates, when the juvenile court makes findings under section 366.21(g) to continue reunification services to the 18-month date as to one parent, it has the discretion to continue services for the other parent. (See In re Alanna A. (2005) 135 Cal.App.4th 555, 565-566 (Alanna A.); In re Jesse W. (2007) 157 Cal.App.4th 49, 65-66 (Jesse W.).) Mother argues that in this case, the juvenile court focused exclusively on her compliance with section 366.21(g) and failed to recognize it had discretion to consider continuing her reunification services in N.N.'s best interests-discretion that the court might have chosen to exercise given the uncontroverted evidence that N.N. benefited from the high quality of visitation and the likelihood that mother will have continued contact with N.N. due to her ongoing relationship with father.
A. Standard of Review
The decision to terminate reunification services at the 12-month review is typically reviewed for abuse of discretion. (See Alanna A., supra, 135 Cal.App.4th at p. 565.) Although mother frames her argument in terms of the juvenile court having "applied an incorrect legal standard" in deciding to terminate her services, we believe the question is more accurately presented as one pertaining to the juvenile court's exercise of discretion. In other words, mother does not contend the juvenile court misunderstood the applicable law or misapplied the statutory criteria. Instead she asserts, more narrowly, that the statutory criteria are not determinative here because the court had "the discretion to continue services to the non-reunifying parent despite . . . her failure to separately satisfy the statutory requirements for doing so" but erroneously failed to recognize that it had that discretion.
It is a fundamental precept that" 'all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citations.] Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. [Citation.] Alternatively stated, 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. [Citations.] Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law. [Citations.] The appellant bears the burden of showing a trial court abused its discretion." (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15-16 (F.T. v. L.J.).) Indeed, "[a] trial court's failure to exercise its discretion generally requires reversal." (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016.)
B. Principles Governing Family Reunification at the 12-Month Review
"To balance the interest in family preservation with the child's interest in the prompt resolution of her custody status and long-term placement, the dependency law establishes a detailed timeline for reunification" when a child is removed from parental custody. (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 625.) For a child under the age of three when first removed from the parents' custody (like N.N. here), "reunification services are presumptively limited to six months." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843; see § 361.5, subd. (a)(1)(B).) The juvenile court reviews the child's status and whether to extend services for an additional period no less frequently than every six months. (§ 366, subd. (a)(1); Tonya M., at p. 843.) "The absolute maximum period for services is 18 months (§ 361.5, subd. (a)), provided the court determines at both a six-month review hearing and a 12-month review hearing that continuation of services is warranted (see § 366.21, subd. (e) [establishing procedures for the six-month review hearing]; id., subds. (f), (g) [establishing procedures for the 12-month review hearing].)" (Tonya M., at p. 843.) Thus, the Legislature has determined "that what is in the child's best interests is best realized through implementation of the procedures, presumptions, and timelines written into the dependency statutes." (In re Zeth S. (2003) 31 Cal.4th 396, 410 (Zeth S.).)
At issue here are the standards governing the 12-month review or "permanency hearing," which under the statute "shall be held no later than 12 months after the date the child entered foster care, as that date is determined pursuant to [s]ection 361.49." (§ 366.21 subd. (f)(1).) The statute directs the court at the 12-month review hearing to order the return of the child to their parent's physical custody unless it finds that returning the child to the parent "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (Ibid.) It is the department's burden to prove by a preponderance of the evidence that the child cannot be safely returned to the parent's care. (Ibid.)
If the child is not returned to the parent's custody at the permanency hearing pursuant to section 366.21, subdivision (f), the statute "allows the court to continue reunification services for up to six months, provided the next review hearing occurs within 18 months of the date on which the child was physically removed from parental custody." (Alanna A., supra, 135 Cal.App.4th at p. 564.) The standards for extending reunification services to the 18-month review are set forth in section 366.21(g). The statute requires the court to find "that there is a substantial probability that the child will be returned to the physical custody of their parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." (§ 366.21, subd. (g)(1).) To make the required "substantial probability" finding for purposes of continuing reunification services, the court must "find all of the following: [¶] (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of their treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Id., subd. (g)(1)(A)-(C).)
Thus, "[n]otwithstanding the presumptive 12-month limit for reunification, the juvenile court has the authority to extend services up to a period of 18 months after the child's initial removal from parental custody if it is shown at the 12-month review hearing 'that the permanent plan for the child is that the child will be returned and safely maintained in the home within the extended time period.'" (In re M.F. (2022) 74 Cal.App.5th 86, 101, citing §§ 361.5, subd. (a)(3)(A), 366.21, subd. (g)(1).) Alternatively, "if the court does not return the child at the 12-month review hearing and finds there is no substantial probability of return to the parent within 18 months of the initial removal from parental custody, 'the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. (§ 366.21, subd. (g).)' (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)" (M.F., at p. 102.)
Alanna A. addressed, as a matter of first impression, whether a court, when a selection and implementation hearing (§ 366.26) is not set, has the "discretion at the 12-month review to terminate reunification services to one parent while at the same time continuing services to the other parent until the 18-month review date." (Alanna A., supra, 135 Cal.App.4th at pp. 561-562.) Alanna A. involved a father's appeal from the termination of his reunification services even as the juvenile court extended the mother's services to the 18-month date. (Id. at pp. 558-559.) The father contended that section 366.21, subdivision (h) allows the court to terminate reunification services only when it sets a hearing under section 366.26, thus requiring the court to extend services to both parents if the court did not set a section 366.26 selection and implementation hearing. (Id. at p. 562.)
The appellate court rejected this interpretation of the statute. It cited the court's general authority to direct orders to the parents which the court "deems necessary and proper for the best interests of . . . the minor" (§ 245.5) and reasoned that in the absence of any express limitation on the court's authority to terminate reunification services to a parent at the 12-month hearing, the court had the discretion to do so. (Alanna A., supra, 135 Cal.App.4th at p. 565.) The court concluded that the applicable provisions for 12-month hearings did not bar termination of reunification services for the father even though services were extended for the mother. (Ibid.) It further decided that the juvenile court reasonably found the father's performance did not merit continued reunification services. (Ibid.)
Notwithstanding these conclusions, the Alanna A. court recognized in dicta that as a "practical matter, [] where a nonreunifying parent is likely to have some continued contact with his or her child, further services to that parent may be in the child's best interests." (Alanna A., supra, 135 Cal.App.4th at p. 565, fn. omitted.) The court further observed that "[i]n some cases, the best interests of the child may necessitate the provision of services to a nonreunifying parent." (Ibid., fn. 11.)
In a later decision involving the termination of reunification services as to one parent at the six-month review, while continuing services for the other parent, a panel of the same appellate court reviewed the Alanna A. decision and reiterated (in a 2-1 decision) that dependency law does not condition the provision of services to one parent on the provision of services to the other parent. (Jesse W., supra, 157 Cal.App.4th at p. 60.) Regarding the application of Alanna A., the court in Jesse W. explained that "dicta in In re Alanna A. highlights the importance of allowing, but not requiring, the court to offer continued reunification services to a nonreunifying parent." (Jesse W., at p. 65, citing Alanna A., supra, 135 Cal.App.4th at p. 565.) Jesse W. applied this same reasoning in the context of the six-month review, stating that "our decision does not foreclose the possibility of allowing further services, in the court's sound discretion, when a section 366.26 hearing is not set. In exercising that discretion, the court will have the ability to evaluate whether the parent will utilize additional services and whether those services would ultimately inure to the benefit of the minor." (Jesse W., at p. 66.)
C. Analysis
Mother contends that in making its findings in this case, the juvenile court was unaware of the discretion articulated in Alanna A. She argues that the court "erroneously concluded it was required to find that [m]other had also satisfied the criteria of section 366.21(g) in order to continue reunification services for her" and did not recognize its authority to extend services for mother despite mother's failure to satisfy the criteria of section 366.21, subd. (g)(1)(A)-(C).
The department counters that mother forfeited any argument concerning the juvenile court's discretion to extend mother's reunification services by failing to raise the issue before the juvenile court, such as by asserting the court could exercise its discretion to extend mother's services despite her failure to fulfill certain elements of her case plan and that it would be in N.N.'s best interest. The department contends, in any event, that there is no indication in the record that the juvenile court believed it was constrained by section 366.21(g) and lacked the discretion to make any other order.
1. Forfeiture
The forfeiture doctrine, which typically prevents a reviewing court from considering a challenge to a ruling if an objection could have been but was not made in the trial court, is not absolute. (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.).) Where, as here, the facts are not disputed and the question is predominantly legal, the reviewing court may decline to deem the matter forfeited and exercise its discretion to consider the argument. (See Alanna A., supra, 135 Cal.App.4th at p. 562.) However, we are guided by our Supreme Court's caution that appellate courts must exercise that discretion "rarely and only in cases presenting an important legal issue." (S.B., at p. 1293.) Particularly in the context of dependency proceedings, the high court has advised that such discretion "must be exercised with special care" given the special rules and procedures applicable in dependency cases, wherein the well-being of the child and "considerations such as permanency and stability are of paramount importance. (§ 366.26.)" (Ibid.)
Superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.
The facts of this case present a close question as to forfeiture. At no point did mother, through her counsel, explicitly ask the court to exercise its discretion to continue mother's reunification services even upon finding she did not qualify for a continuation based on the statutory criteria. "The purpose of [the forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (S.B., supra, 32 Cal.4th at p. 1293.) Mother's failure to assert the right to a discretionary extension of reunification services, notwithstanding her inability to satisfy section 366.21, subd. (g)(1)(A)-(C), arguably deprived the juvenile court of the opportunity to consider whether exercising its discretion as requested would be in the best interest of N.N. (See Alanna A., supra, 135 Cal.App.4th at p. 565.)
On the other hand, as we discuss further below, in responding to the arguments of both the department's and minor's counsel (which uniformly directed the court to the findings required under section 366.21(g) in order to continue mother's services), mother's counsel implicitly asked the court to exercise its discretion despite mother's acknowledged gap in case plan participation and "allow [mother] to reunify her with the child so this child can have two parents." Counsel's argument could be construed as a request for the court to exercise its broad discretion to make orders it "deems necessary and proper for the best interests . . . of the minor" (§ 245.5), albeit without citing specifically to case authority like Alanna A.
We conclude that mother's counsel's general argument at the hearing was not sufficient to preserve for appeal the contention that the juvenile court erred by failing to exercise its discretion to continue her services. (S.B., supra, 32 Cal.4th at p. 1293 [discretion to excuse forfeiture must be "exercised with special care"]; In re S.C. (2006) 138 Cal.App.4th 396, 406 [Absent forfeiture, "opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources 'to address purported errors which could have been rectified in the trial court had an objection been made.' "].) However, even assuming the claim of error is not forfeited due to mother's request that the court continue her services to allow N.N. the benefit of two parents, mother has not established reversible error.
2. Termination of Reunification Services
Mother essentially maintains the juvenile court was misinformed about the scope of its discretion and did not recognize its authority to extend services for mother despite her failure to satisfy the criteria of section 366.21, subd. (g)(1). She asserts that the juvenile court was "led astray" by the arguments of counsel for both the department and for N.N. Specifically, counsel for the department argued at the hearing that the court needed to "make three findings" under section 366.21(g) "in order to continue [mother]'s services, as she is asking this morning." Counsel directed the court to the three criteria set forth in section 366.21, subd. (g)(1)(A)-(C) and argued that based on the "collapse" in mother's engagement with counseling and drug testing, the department did not believe the court could find that mother had made significant progress or could demonstrate a likelihood of N.N.'s return to her custody by April 2023. Counsel for N.N. "echo[ed]" the department's remarks and reiterated that given the statutory timelines based on N.N.'s young age, continuing services to the 18-month mark would require the court to look to section 366.21(g) and "see the mother has made significant progress in resolving the problems."
There is no doubt that the arguments of counsel for the department and for N.N. were predominantly directed at the statutory considerations. However, these arguments alone do not provide a basis for this court to conclude that the juvenile court was uninformed of any broader discretion to extend mother's services notwithstanding her failure to meet all three statutory criteria. As just discussed, mother's counsel asked the juvenile court to "make findings [that] will allow her to have continued reunification services," emphasized mother's positive engagement in her case plan while acknowledging the gaps in her participation, highlighted the beneficial visits with N.N., and referred indirectly to the court's discretion to allow continued reunification in the best interest of N.N., or in counsel's words, "so this child can have two parents."
The arguments of mother's counsel at least suggested that the court consider making findings that would allow mother to reunify with N.N. for the benefit of N.N. having two parents. That the juvenile court did not adopt the requested outcome does not signify it was unaware it had discretion to do so. (See, e.g., J.H. v. G.H. (2021) 63 Cal.App.5th 633, 644 [noting trial court's "failure to 'discuss' a particular standard does not imply it applied an incorrect standard"].) On the contrary, absent some indication in the record that the juvenile court understood its authority to continue services was constrained entirely by the section 366.21(g) criteria, we presume the court knew and properly applied the law, including both statutory law and case law like Alanna A. (Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741 [" 'It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.' "].) We likewise "must presume the trial court was aware of and understood the scope of its authority and discretion under the applicable law." (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 333 (Barriga).)" 'This rule derives in part from the presumption of Evidence Code section 664 "that official duty has been regularly performed." '" (Id. at p. 334; see People v. Stowell (2003) 31 Cal.4th 1107, 1114.) "Error on appeal must be affirmatively shown by the record, and '[w]e presume the trial court knew and properly applied the law absent evidence to the contrary.'" (J.H., at p. 644.)
Of course, "[i]f the record demonstrates the trial court was unaware of its discretion or that it misunderstood the scope of its discretion under the applicable law, the presumption has been rebutted, and the order must be reversed." (Barriga, supra, 51 Cal.App.5th at p. 334.) Our review of the record does not establish this to be the case.
In considering mother's objection to the department's recommendation to terminate her reunification services and continue only father's services, the juvenile court focused on key aspects of mother's case plan, contrasting mother's love for N.N. and prioritization of visits with her daughter against her inconsistent participation in substance abuse treatment, counseling, and testing. The court observed that these were "critical components to [mother]'s case plan as . . . [N.N.] was born as a drug-impacted baby." The court further emphasized the need to look at mother's performance with substance abuse treatment and testing given her "long history of addiction." It also noted mother had been warned that as a parent of a dependent child under the age of three, parents are typically provided only "six months in which to successfully reunify and, obviously, we're at 15 months now."
The court reviewed in detail mother's drug testing compliance, noting mother had appeared for testing four times and "no showed" 16 times during the three-month period since November 2022. It concluded, despite recognizing the challenges mother had faced during the relevant time period, that her testing history bore no "rational relation to case plan compliance." The court made similar observations about mother's counseling attendance, noting mother acknowledged she "needs counseling for a year or two" yet attended therapy only once in October, once in November, and not at all in December. Given mother's demonstrated ability to make it to visits, which the court characterized as "the happy times," the court adverted that "the same sort of high priority has to be assigned to all aspects of the case plan and, unfortunately" found that mother's conduct did not show such prioritization and "is all suggestive of someone who still actively is using which has been a big concern throughout."
Against the backdrop of these findings, the juvenile court concluded the department "has met its burden of proof with regard to the termination of services for [mother]." The court then turned to section 366.21(g) and agreed with counsel for the department and minor that mother had not "demonstrated significant progress" in resolving the problems that led to the dependency or "the capacity and ability to complete the objectives of or treatment requirement" to bring N.N. safely home.
Mother submits that this record demonstrates the court did not consider that it had discretion to continue mother's services despite her noncompliance with section 366.21(g). But the record just as readily establishes that the court carefully considered mother's request to continue her services notwithstanding noncompliance with her case plan and declined to do so based on the significant discrepancy between mother's demonstrated commitment to visits with N.N. and minimal participation in substance use treatment, testing, and counseling. Mother has not demonstrated a basis from which this court might infer a lack of informed discretion on the part of the juvenile court. This is therefore not a case in which "the record affirmatively shows the trial court misunderstood the proper scope of its discretion" to require remand. (F.T. v. L.J., supra, 194 Cal.App.4th at p. 16.)
Moreover, the discretionary determination that mother seeks is founded entirely on dicta in Alanna A. As the court observed in Jesse W., "we believe dicta in In re Alanna A. highlights the importance of allowing, but not requiring, the court to offer continued reunification services to a nonreunifying parent." (Jesse W., supra, 157 Cal.App.4th at p. 65.) We do not disagree with this assessment. The court in Alanna A. answered the question before it: Whether the dependency law precluded a court from terminating reunification services at the 12-month review for the nonreunifying parent, without setting a section 366.26 hearing, while continuing services for the parent who qualifies for continued services under section 366.21(g). (Alanna A., supra, 135 Cal.App.4th at pp. 559, 561-562.) The court's brief exposition in dicta recognizing that there may be circumstances in which further services to the nonreunifying parent "may be in the child's best interests" (Alanna A., at p. 565) (such as "where a nonreunifying parent is likely to have some continued contact" with the child) (ibid., fn. omitted) does not alter or in any way render less relevant the statutory framework established by the Legislature to guide the court's decision regarding continuing services beyond the relevant statutory period. (Zeth S., supra, 31 Cal.4th at p. 410 ["what is in the child's best interests is best realized through implementation of the procedures, presumptions, and timelines written into the dependency statutes"].)
Further, the facts of Alanna A. are strikingly similar to those here. In that case, the Court of Appeal affirmed the juvenile court's decision to terminate services for one parent but not the other based on its conclusion that the nonreunifying parent's performance "did not merit continued reunification services." (In re Alanna A., supra, 135 Cal.App.4th at p. 565.) As that court observed, where one parent has not availed themselves of reunification services (as was the case with mother here) "the termination of reunification services to one parent is rationally related to the legitimate government interest in focusing government resources on the parent who has consistently visited the child, made significant progress in resolving problems, and demonstrated the capacity and ability both to complete the treatment plan and provide for the child's needs." (Id. at p. 566.)
Mother rightly does not challenge the juvenile court's application in this case of the statutory factors set forth in section 366.21, subd. (g)(1)(A)-(C). Regarding the court's authority to continue mother's reunification services despite its findings on the statutory criteria, we conclude based on our review of the record and governing law that mother has not demonstrated that the juvenile court failed to understand the scope of its discretion or abused that discretion in any way.
III. DISPOSITION
The February 1, 2023 order terminating appellant's reunification services is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Wilson, J.