San Diego Cnty. Health & Human Servs. Agency v. Jennifer M. (In re Katelynn Y.)

• Decision Date: 28 September 2012
• Docket Number: D061670
• Court: California Court of Appeals Court of Appeals
• Parties: In re KATELYNN Y., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JENNIFER M., Defendant and Appellant.

In re KATELYNN Y., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JENNIFER M., Defendant and Appellant.

D061670

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Dated: September 28, 2012

CERTIFIED FOR PUBLICATION

(Super. Ct. No. EJ2485B)

APPEAL from an order of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.

Neale B. Gold, under appointment by the Court of Appeal, for Minor.

Jennifer M. appeals a juvenile court order terminating her reunification services as to her minor daughter, Katelynn Y., under Welfare and Institutions Code section 388, subdivision (c)(1)(B),¹ which allows for early termination of services if the inaction of a parent creates a substantial likelihood reunification will not occur. Jennifer contends the court erred, as a matter of law, by terminating her services when Katelynn's father, Christopher Y., was still receiving services with the goal of reunification, and the court did not set a section 366.26 selection and implementation hearing. Alternatively, Jennifer contends the court abused its discretion by terminating her reunification services while offering services to Christopher. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Jennifer and Christopher (together, the parents) both have a history of methamphetamine use and domestic violence. In December 2010, the San Diego County Health and Human Services Agency (Agency) received a referral that Jennifer left five-year-old Katelynn with the maternal grandmother for 12 days, and the parents' whereabouts were unknown. Jennifer had relapsed on drugs and said she intended to seek treatment. The maternal grandmother acquired temporary guardianship of Katelynn later that month.

While in the maternal grandmother's care, Katelynn tried to inappropriately touch a three-year-old child. The maternal grandmother took Katelynn to a therapist, where shedisclosed Jennifer and Christopher had been sexually molesting her on a regular basis. Katelynn also said she observed Jennifer and her friend Matt having sex. Agency filed a petition in the juvenile court under section 300, subdivision (c) alleging Katelynn had suffered serious emotional damage, including severe anxiety, depression, withdrawal and outwardly aggressive behavior toward herself and others. The court detained Katelynn in out-of-home care and issued a temporary restraining order protecting her from both parents.

At the jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared Katelynn a dependent, removed her from parental custody and placed her with the paternal grandparents. The court ordered reunification services for the parents, including parenting education, counseling with a therapist specializing in sexual abuse and substance abuse treatment.

During the next six months, Jennifer did not participate in services, had no contact with the social worker and requested no visits with Katelynn. Christopher actively participated in services while he was incarcerated for three months. After his release, he enrolled in drug treatment, but was arrested for violating the conditions of his parole by leaving the program. The social worker recommended the parents receive six more months of reunification services.

Three days before the scheduled six-month review hearing, Katelynn's counsel filed a petition for modification under section 388, subdivision (c) seeking to have the court terminate the parents' services and set a section 366.26 selection and implementation hearing. The petition alleged Katelynn would benefit from the requestedmodification because her paternal grandparents, with whom she was placed, were committed to providing her with long-term care and she deserved permanency and stability in her life. Agency concurred in the request to terminate the parents' services.

In an addendum report, Agency changed its recommendation as to Christopher and asked the court to continue his services. Christopher had begun drug treatment, was cooperating with requests to drug test and was participating in a sexual abuse perpetrators group. Agency did not change its recommendation to terminate Jennifer's services.

The court held a contested hearing on Katelynn's section 388, subdivision (c) petition. Katelynn's counsel withdrew the request to terminate Christopher's services. After considering the evidence and arguments of counsel, the court terminated Jennifer's reunification services under section 388, subdivision (c)(1)(B), but continued Christopher's services for six months, finding he had made some progress with the provisions of his case plan. The court continued Katelynn's placement with the paternal grandparents.

DISCUSSION

IThe Court Did Not Err, as a Matter of Law, by Terminating Jennifer's ReunificationServices Under Section 388, Subdivision (c)(1)(B)

Jennifer contends the court erred, as a matter of law, by terminating her reunification services under section 388, subdivision (c)(1)(B) while continuing Christopher's services. She asserts the statutory scheme prohibits the court from terminating a parent's services unless a section 366.26 hearing is set, and this can occuronly if reunification efforts have failed as to both parents. We review this issue de novo. (In re Alanna A. (2005) 135 Cal.App.4th 555, 562 [where facts are not disputed, the effect or legal significance of those facts is question of law to be reviewed de novo].)

A

When a dependent child is removed from parental custody, the court generally orders services for the family to facilitate its reunification. (§ 361.5, subd. (a); In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) Reunification services for a parent of a dependent child over the age of three are ordinarily limited to 12 months, but may be extended to the 18-month date. (§ 361.5, subd. (a).) A parent, however, has no entitlement "to a prescribed minimum period of services." (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1243.) Instead, the court has discretion to determine whether continued services are in the best interests of the minor, or whether services should be terminated at some point before the applicable statutory period has expired. (Ibid.) In this regard, any party to a dependency proceeding, including the child, may petition the court to terminate reunification services early under certain conditions, such as when the action or inaction of the parent creates a substantial likelihood that reunification will not occur because the parent has failed to visit the child or participate regularly and make substantive progress in a court-ordered treatment plan.² (§ 388, subd. (c)(1)(B); see also§ 361.5, subd. (a)(2); Cal. Rules of Court, rule 5.570(e)(4); In re Y.M. (2012) 207 Cal.App.4th 892, 917.)

B

Jennifer concedes she did not regularly visit Katelynn or participate and make substantive progress in her court-ordered treatment plan. Nevertheless, she claims that under the clear language of section 388, subdivision (c)(1)(B), the court can only terminate services if it finds reunification with both parents will not occur, and here, reunification between Christopher and Katelynn was still a possibility.

In deciding whether to extend or terminate reunification services, the court does not consider the parents as one unit, but instead treats each of them on his or her own merits. "Indeed, at each review hearing, the court must evaluate the efforts or progress toward reunification made by each parent individually by considering 'the extent to which he or she availed himself or herself to services provided.' [Citations.] Although the purpose of services is to facilitate a child's return to parental custody, reunification often involves one, but not both, parents. [¶] . . . Because reunification services are a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those services at any time, depending on the circumstances presented. [Citation.] In deciding whether to terminate the services of one parent who has failed to participate or make progress toward reunification, the court is not constrained by a consideration of the other parent's participation in services." (In re Jesse W. (2007) 157 Cal.App.4th 49, 60, 59 [at six-month review hearing involving child under the age of three, court is not required to continue services for one parent when reunification efforts continue for the other parentand court does not set a section 366.26 hearing]; accord In re Gabriel L. (2009) 172 Cal.App.4th 644, 651 [during reunification period, court's offer of continued services to one parent is not based solely on other parent's participation in services]; In re Alanna A., supra, 135 Cal.App.4th at p. 559 [court has discretion at 12-month review hearing involving child over the age of three to terminate reunification for one parent while continuing services to the other parent to the 18-month hearing].)

Moreover, the language in section 388, subdivision (c)(1)(B) refers to the "action or inaction of the parent," and the "failure of the parent" to visit the child or participate regularly and make substantive progress in a court-ordered treatment plan. The Legislature's use of the singular "parent" underscores its intent to allow services to be provided or continued for one parent but not the other. (In re Jesse W., supra, 157 Cal.App.4th at p. 59.) This interpretation is entirely consistent with the notion that "at no time during the reunification process does the court's offer of continued services to one parent depend solely on the efforts of the other parent." (Id. at p. 60.) It also furthers the legislative...