Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK-JVSQ-08-15449
Pollak, Acting P. J.
T.K., mother of M.G., seeks writ review of a juvenile court order dated March 26, 2009, terminating reunification services and setting a permanency planning hearing for July 22, 2009. She contends the juvenile court failed to determine whether there is a substantial probability that with continuing services M.G. could be returned to her custody by the 12-month review. The court was not required to make such a finding but in any event the record overwhelmingly supports a determination that there is not a substantial probability that the child could be returned by the 12-month review.
On September 2, 2008, a petition was filed pursuant to Welfare and Institutions Code section 300, subdivision (b) alleging that then three-month-old M.G. came within the jurisdiction of the juvenile court. The petition alleged that his “parents have a domestic violence relationship that places the child at substantial and imminent risk of harm.” The petition alleges that on August 28, father punched mother and “prevented her from calling the police by breaking her cell phone while in the presence of the child,” and that “mother struck the father with a cord while in the presence of the child.” The petition further alleges that “mother has [a] history of domestic violence and has refused to address child safety issues arising from it that places her child at substantial and imminent risk of harm and detriment,” and that mother tested positive for marijuana use and had a history of methamphetamine use.
Further statutory references are to the Welfare and Institutions Code.
The September 3, 2008 detention report states that a child abuse report was received on August 26 “alleging a gang fight and a screaming child involving the parents.” A second report of child abuse was received the same day alleging “general neglect of the minor by his parents.... The referral alleged neglect in that there is ongoing domestic violence, gang fights and gang activity in and around the home.”
On September 3, the court ordered the minor detained. An amended petition was filed on September 26 alleging additionally that on September 13, father punched mother in the face, that “mother denied the father had done this and stated it was someone else and declined an emergency protective order,” that father was arrested for domestic violence that day, that mother’s parental rights had been terminated as to two children in Los Angeles County “in part due to the mother’s domestic violence relationship with the father of these children,” that mother had refused to enter a domestic violence shelter and that she had “refused a voluntary and temporary safe placement of her child with Child Protective Services on 8/28/2008.”
On October 9, 2008, a second amended petition was filed alleging additionally that mother had a substance abuse problem and that she had been terminated from a drug treatment program in Los Angeles for having 30 absences, that she had failed to report for nine random drug tests, and that on August 28 she had “admitted to using marijuana a few weeks ago.” The juvenile court found the amended petition true and set a disposition hearing for November 13, and later continued the hearing to November 19.
The disposition report stated that “mother wishes to reunify with her child and recognizes she needs to temper her behavior when facing a stressful situation. The mother said she no longer has a drug problem but she is willing to comply with... treatment to get her son back.” The report stated that mother was living in Ukiah with a friend and that this “allowed the mother to engage in regular visitation with the child and engage in services.... The mother has no current health impediments to hinder her in accomplishing her case plan goals.... [T]he mother has tested and attended group twice from 10/21/2008 as of the writing of this report. The mother is attending one session per week... for substance abuse education.... [T]he mother has completed the Intake Support Group and will be beginning ‘Breaking the Cycle.’... [T]he mother has not missed any of her group attendance at the Family Resource Center.” Mother had visited with the child six times and cancelled two scheduled visits, one because of a migraine and one because mother “said she was having a miscarriage.” The report stated that during visits “mother is noted to be very appropriate and engaged with the child.”
The court ordered supervised visitation of a minimum of one hour a week, and advised that “[i]f visits are cancelled due to the parents’ behavior, parents must meet with the social worker to resolve the problem, prior to recommencing visitation.” The court also ordered mother to participate in and successfully complete a treatment program for victims of domestic violence, including 90 percent attendance; that she complete “8 Intake Support Group sessions designed to deal with anger and denial relating to CPS intervention issues”; complete the Social Services Parenting Education program including classes called “Breaking the Cycle” and “Basic communication”; and that she successfully complete a drug and alcohol treatment program and submit to random drug tests.
A report filed for the 60-day “drug review” on January 21, 2009 states that mother was scheduled to begin services in the Alcohol and Other Drugs Program (AODP) on October 10, 2008, but that she had “waited until December 17, 2008, to make contact” with AODP, and that she had not explained the delay to the agency nor “why she missed four out of four scheduled appointments and a urine screen.” A supervisor called mother on December 17 “to request that she come into the office to discuss the Agency’s visitation policy” because mother had missed several visits the previous week. Mother did not return the call, and the supervisor called again on December 22. He spoke with “a woman who identified herself as [T.K.’s] mother who reported that she would inform the mother of [the supervisor’s] call and added that [mother] was on bed rest.”
The report states that mother came to the social services office on January 21 and provided “a copy of the doctor’s bed rest orders. However, the orders are dated January 13, 2009. [Mother] stated that she was put on bed rest in mid December and that she had informed previous social worker. However, she did not have the doctor’s notes with her to show that she was on complete bed rest.” The report also stated that mother had been “kicked out of all groups including AODP because she just quit attending.”
A report filed for a continued 60-day “drug review” on February 4, 2009, states that mother had not attended the previous drug review, and that “as of the date of this report, [mother] has failed to provide verification from her physician of an order for complete bed rest during the time period from December 17, 2008 to January 13, 2009. In addition, [mother] told [a] social worker... on January 21, 2009 that she was babysitting for her roommate’s 18 month old son and doing housework in exchange for free rent during the same period. This type of activity does not seem to support the concept of complete bed rest.” The report states that mother had reapplied for admission to the alcohol and drug program, and was enrolled on January 28. She submitted to two random drug screenings, both of which were negative.
A six-month review hearing was scheduled for March 25, 2009. The status report filed on March 5, 2009 reported that mother’s “efforts and compliance with her case have been extremely inconsistent. From September 9, 2008 until December 16, 2008, [mother] attended approximately 65% of the scheduled visits with her son. Of those, two were cancelled due to illness and two were no shows. From December 16, 2008 until January 20, 2009, [mother] did not visit with her son at all, nor did she contact the Agency as to why she had been failing to visit.” Mother still had not provided documentation to support her assertion that she had been on complete bed rest. “The documentation she did supply was dated January 13, 2009, and stated that she was able to participate in limited activity for approximately two to four hours per day. That would not explain why she was not involved in any services at all.” Mother “resumed visiting her son on January 20, 2009, and has visited consistently since that time, missing only one visit due to pregnancy complications.” The report also stated that mother’s compliance with the alcohol and drug program “has also been very inconsistent. She first enrolled in AODP services on October 21, 2008, but by November 12, 2008, less than three weeks later, a notice had been received by this Agency that [mother] was at risk of termination because she had missed two of the last two scheduled appointments with her counselor.” She was terminated from the program on December 23 because she had stopped attending. She restarted the program on February 2 and stopped attending on February 9. “This time she provided her AODP counselor with a note from her doctor stating that she was on bed rest and could not attend classes. However, [mother] failed to supply a copy of that note to this social worker as had been clearly requested at an earlier meeting....”
The report further stated that mother had “completed Intake Support Group on November 18, 2008. However, she failed to engage in her assigned Family Empowerment Group (FEG), Breaking the Cycle, or parenting classes.... As of the writing of this report, [mother] has yet to attend even one FEG class or to begin attending Breaking the Cycle or parenting classes.... [¶] [Mother] has also failed to begin Anger Management, support groups, or individual therapy through Project Sanctuary. This is an essential component of [mother’s] case plan, due to her long history of being involved in domestic violence relationships.” The report noted that a recent police report from father’s arrest indicated that mother and father were still living together. The report recommends termination of services due to both parents’ failure to participate in services. The report states, “Due to mother and father’s inability to engage in the services that are needed in order for the child to be safely returned to their care, the probability for the return of the child to either the mother or the father is extremely minimal.”
Because mother is the only petitioner here, father’s history is not detailed.
At the six-month review on March 26, 2009, the juvenile court found by clear and convincing evidence that the return of the child to either the mother or the father “would create a substantial risk of detriment to the physical or emotional well being of the child,” that mother had “not made significant progress toward alleviating or mitigating the causes necessitating placement of the child in foster care,” that reasonable services had been provided and that mother had failed to regularly participate in those services. The court terminated reunification services and set a hearing pursuant to section 366.26 for July 22, 2009.
In her writ challenging that order, mother argues that the court erred by failing to make a finding that there was not a substantial probability that M.G. would be returned to her within six months. “When the child is under the age of three, the maximum period of reunification services is generally six months. (§ 361.5, subd. (a)(2).)” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, fn. 4.) At the six-month review for children who are under the age of three, section 366.21, subdivision (e) provides that 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, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child... may be returned to his or her 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.”
“[T]here are two distinct determinations to be made by trial courts applying the third paragraph of section 366.21, subdivision (e). First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a.26 hearing to terminate parental rights. But this inquiry does not require the court to schedule a.26 hearing (‘the court may schedule a hearing’). (§ 366.21, subd. (e), italics added; [citation].) Instead, it authorizes the court to set such a hearing if the required findings have been made.... [¶] The second determination called for by the third paragraph of section 366.21, subdivision (e), protects parents and guardians against premature.26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a.26 hearing if it finds either: (1) ‘there is a substantial probability that the child... may be returned to his or her parent... within six months’; or (2) ‘reasonable services have not been provided...’ to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the case to the 12-month review if it makes either of these findings.” (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175-176.)
“The shortened reunification period was meant ‘to give juvenile courts greater flexibility in meeting the needs of young children, “in cases with a poor prognosis for family reunification....” ’ [Citation.] It also represents a legislative determination that in certain situations, efforts to continue reunification services beyond the statutorily-mandated six months do not serve and protect a minor’s interest. [Citation.] Nevertheless, the court may extend the reunification period for a minor under the age of three up to 18 months if there is a substantial probability the minor will be returned to the parent’s physical custody within the extended time period or reasonable services have not been provided to the parent.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 59.)
Thus the court was not required to make a finding that there was no substantial probability of reunification. Mother does not dispute the trial court’s finding that she did not adequately participate in services and that finding is supported by substantial evidence. Moreover, mother did not argue explicitly at the March 26 hearing that there was a substantial likelihood of reunification by the date of the 12-month review, but merely pointed out that she had “pretty much been pregnant the whole time of the proceeding,” that she had been on limited bed rest and “was in pain the entire time... because of complications with her pregnancy,” and that “basically as soon as she gave birth she reengaged back in services.” Even if these statements are liberally construed as an argument that there was a substantial probability of reunification, given mother’s inconsistent participation in services, lack of credibility concerning the reasons for her poor performance, and the fact that her rights had been terminated for similar reasons as to two other children, the record amply supports an implied finding that there is no substantial probability that she would successfully participate in services in the remaining months prior to the 12-month review.
Disposition
The petition for extraordinary relief is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Since the permanency planning hearing is set for July 22, 2009, our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.264(b)(2)(A).)
We concur: Siggins, J., Jenkins, J.