Jessica A. v. Superior Court

• Decision Date: 01 December 2004
• Docket Number: No. D044857.,D044857.
• Citation: 21 Cal.Rptr.3d 488,124 Cal.App.4th 636
• Court: California Court of Appeals Court of Appeals
• Parties: JESSICA A. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego County Health and Human Services Agency, Real Party in Interest.

21 Cal.Rptr.3d 488

124 Cal.App.4th 636

JESSICA A. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent San Diego County Health and Human Services Agency, Real Party in Interest.

No. D044857.

Court of Appeal, Fourth District, Division 1.

December 1, 2004.

Certified for Partial Publication.¹

Timothy A. Chandler, Alternate Public Defender, James J. McMahon and Gaylord Stewart, Deputy Alternate Public Defenders for Petitioner, Jessica A.

Robert Quinones, Jr. and Judith Klein, La Mesa, for Petitioner, Jesus O.

No appearance for Respondent or Minors.

John J. Sansone, County Counsel, Susan Strom, Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest.

AARON, J.

Jessica A. (the mother) and Jesus O. (the father) seek review of juvenile court orders terminating their reunification services and setting a hearing under Welfare and Institutions Code section 366.26.² The mother contends there is not substantial evidence to support the juvenile court's finding that she did not make substantive progress with the provisions of her case plan. The father contends substantial evidence does not support the finding that he was offered or provided with reasonable reunification services. Both parents assert that the court abused its discretion in finding there was no substantial probability their children could be returned to them by the 12-month hearing date. The mother also maintains that the court erroneously looked to the date previously set for the 12-month review hearing, rather than a date six months from the time of the six-month review hearing, in determining whether there was a substantial probability that the children would be returned to the parents. In the published portion of this opinion we conclude that the trial court properly looked to the date previously set for the 12-month hearing to decide whether there was a substantial probability the children would be returned to the parents. In the unpublished portion we reject the parents' other claims of error.

FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 2003, the San Diego County Health and Human Services Agency (Agency) petitioned on behalf of one-year-old Jessie O., and his newborn sister, Y.O., under section 300, subdivision (b), alleging the parents used methamphetamine and marijuana; Y.O. was born with a positive toxicology for methamphetamine; the mother admitted using methamphetamine; and the father admitted using marijuana. At the detention hearing on November 3, the court found that a prima facie showing had been made, detained the children and found the father to be the presumed father.

The social worker reported that the parents were motivated to receive services. They were assessed by the Substance Abuse Recovery Management System (SARMS) and each began attending a drug program. On December 19 the parents submitted to the allegations of the petitions and the court found the allegations true. On January 5, 2004, the court ordered the children placed in foster care and ordered the parents to undergo psychological evaluations and to participate in SARMS, parenting classes and counseling.

In a report dated June 24, 2004, the social worker reported that the mother had enrolled in SARMS on November 7, 2003, but that she had made poor progress during November; she attended SARMS programs and drug tested in early December, but failed to appear for testing during the last two weeks of December, and in January and February. On March 15 the court terminated the mother from SARMS. The social worker emphasized to the mother the importance of her participating in a drug treatment program, and on April 8 the court ordered the mother to reenroll in SARMS. She did so on May 4, but failed to appear for testing on two dates that month. On May 28 she tested positive for marijuana and was referred for detoxification, but she did not appear at the detoxification facility. On June 7 the mother entered the KIVA program, but left after two days. The social worker again stressed to her the importance of her participating in drug treatment.

The social worker reported that the father enrolled in SARMS on November 6, 2003, and that his first two drug tests were positive for marijuana. By January 2004 he had stopped testing and participating in SARMS, and on March 15 the court terminated him from the program. On April 8 the court ordered him to reenroll. He did so on May 5, but participated only sporadically in May and June.

The social worker also reported that although the court had ordered the mother to have individual therapy, and the social workers had given her referrals to therapists both in October and in February and had urged her to begin counseling in May, by June she still had not started therapy. The father also had been provided referrals, but had not begun counseling. He told the social worker he had made a therapy appointment for June 11.

The social worker stated that the parents maintained they were participating in parenting classes through their drug treatment programs, but neither parent provided a certificate of completion. The social worker opined that, given the parents' inconsistent participation in services, it was unlikely they could reunify with the children within the next six months. She therefore recommended terminating services.

In an addendum report dated June 24, the social worker reported that the mother had begun a residential drug treatment program on June 16, and the father had attended two sessions with a therapist and said he was taking his services more seriously. On July 19 the father entered a residential drug treatment program.

At the six-month review hearing on August 10, the social worker testified that during the first six months of the reunification period the mother had undergone a psychological evaluation, but had not participated in a parenting class or counseling, and that her participation in SARMS had been inconsistent. She reenrolled in SARMS in May, and in June started a 90-day residential program. The social worker testified that the father had undergone a psychological evaluation, but that he had not begun therapy until June, and had participated only sporadically in SARMS. He reentered SARMS in June and had recently entered a residential program. The social worker opined there was no probability the children could be returned to the parents by the 12-month date.

The mother testified that on June 16 she entered the CRASH residential program. She said she had chosen this program because her SARMS worker had recommended it, it was a hard program, and it taught participants how to deal with problems without resorting to drug use. She said she had taken parenting classes and that she would soon receive her parenting certificate. She said she was not in therapy because she needed to put as much time as she could into her drug treatment. She also said that she had looked for a therapist, but that it was hard to get an appointment and her telephone use at CRASH was limited.

The social worker testified the staff at CRASH had informed the social worker that arrangements could be made for the mother to leave the program if she had a therapy appointment.

The court noted that the parents had only recently begun to participate actively in their case plans and stated that their participation did not constitute sufficient evidence upon which the court could base a finding that there was a reasonable likelihood "the children would be returned at the end of a — our next six month period, which is now only four months away." The court terminated reunification services for both parents and set a section 366.26 hearing.

The parents petitioned for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 39.1B.) This court issued an order to show cause, the Agency responded and the parties requested oral argument.

DISCUSSION

I-III^*

IV

The Trial Court Properly Looked to the Date Set for the 12-month Review Hearing in Determining Whether There Was a Substantial Probability the Children Would be Returned to the Mother.

The mother asserts that the court applied an incorrect time frame in determining whether or not there was a substantial probability the children could be returned to her care. Specifically, she claims the court erred in concluding at the six-month review hearing that there was no probability the children would be returned to her care by the 12-month hearing, which at that time was only four months away. She maintains that the court should have considered instead whether it was likely the children could be returned to her within six months of the date on which the six-month review hearing was held.

The mother relies on Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 87 Cal.Rptr.2d 870, in which the reviewing court held that the juvenile court should have determined whether there was a substantial probability a child could be returned to her mother's custody within six months of the date of the six-month hearing, rather than by the date previously set for the 12-month hearing. (Id. at pp. 398-401, 87 Cal.Rptr.2d 870.)

Section 366.21, subdivision (e) provides in part:

"If the child was under the age of three years on the date of the initial removal, or is a member of a sibling group described in paragraph (3) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence 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."

In Dawnel D. v. Superior Court, supra, 74 Cal.App.4th at page 398,...