Filed 5/27/22 Ashley K. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald J. Proietti, Judge.

Ashley K., in pro. per., for Petitioner.

No appearance for Respondent.

Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner Ashley K. (mother) seeks an extraordinary writ from the juvenile court’s orders issued on March 15, 2022, at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1))[1] terminating her reunification services and setting a section 366.26 hearing for July 6, 2022, as to her now four-year-old son, Matthew S. Mother challenges the court’s decision to terminate her reunification services for Matthew when at the same hearing it continued services for her in the case of his sibling, Macy. She seeks an order returning Matthew to her custody. We deny the petition.

PROCEDURAL AND FACTUAL SUMMARY

Dependency proceedings were initiated in November 2020 after mother failed to comply with a safety plan to forbid any contact between Matthew and his father, Eric, unless authorized by the Merced County Human Services Agency (agency). The safety plan was necessary because Eric suffered from bipolar disorder and used methamphetamine. He had an open child welfare case in Merced County involving children from another relationship and was not complying with his services plan. Police responded to mother’s home on November 6, 2020, and found Eric hiding on the back patio. Then three-year-old Matthew was taken into protective custody and placed in foster care. Mother was pregnant with Eric’s child, Macy.

The juvenile court exercised its dependency jurisdiction over Matthew, removed him from parental custody and ordered mother and Eric to complete reunification services and set a six-month review hearing. Mother’s services plan required her to provide a safe and secure home, complete a parenting class and continue working with mental health professionals to address her anxiety and depression. She was required to sign a release of information so that the agency could receive information about her treatment and progress. The agency was ordered to arrange biweekly supervised visitation.

The juvenile court continued reunification services for the parents at the six-month review hearing in July 2021, finding that their progress was minimal. To that point, mother was compliant with her services plan but was not protective of Matthew and Macy, who was born in March 2021. Mother allowed Eric to live with her and Macy even though he was abusing alcohol and remained in the home while she had overnight visits with Matthew. The agency removed Macy on May 21, 2021, and planned to work with mother to meet her case plan objectives. The 12-month review hearing was scheduled for December 15, 2021.

By December 2021, mother’s situation had not changed. Though she was visiting Matthew separately from Eric and claimed they were no longer living together, a social worker made an unannounced visit to her home in November 2021 and found Eric living there. The agency recommended the juvenile court terminate reunification efforts and set a section 366.26 hearing.

On March 15, 2022, the juvenile court conducted a contested six-month review hearing as to Macy and a contested 12-month review hearing as to Matthew. The agency’s recommendation was to terminate reunification services in both cases.

Mother testified that she ended her relationship with Eric in August 2021 and denied that he lived with her. When the social worker found him in her home in November 2021, he was staying there while she was out of town. She was receiving mental health counseling and medication for bipolar depression and provided the agency two releases for medical information. As for parenting, she completed a class in caring for children experiencing trauma, and was participating in “All Moms Matter.”

The social worker testified that mother and Eric visited the children together as recently as February 24, 2022. On November 4, 2021, she found Eric at mother’s home by himself. He said mother had gone to the store and he came only to take a shower and retrieve his belongings. Mother also said she was at the store while Eric was retrieving his belongings.

Recalled to testify, mother denied that she and Eric attended a visit together on February 24, 2022. She explained they visited the children at the grandparents’ home. Eric’s visit followed hers. They ran into each other but did not accompany each other to the visit.

Mother’s attorney argued her completion of her services plan and demonstrated ability to protect Matthew warranted continuing reunification services to the 18-month review hearing, which would occur on or before May 6, 2022. She believed another two months of services would allow her to complete all of the objectives required by the agency. County counsel argued mother failed to engage in her services and make significant progress. She had not demonstrated she could provide Matthew a stable home because she actively concealed an ongoing relationship with Eric and was not candid about whether he continued to live in the home. In addition, the agency had not been able to ascertain her progress in mental health services because she did not sign a release of information.

The juvenile court terminated reunification services for mother and Eric as to Matthew and set a section 366.26 hearing. The court found it would be detrimental to return Matthew to either parent’s custody, the agency provided them reasonable reunification services, and they made some progress but there was not a substantial probability he would be returned to their custody by the 18-month review hearing. In ruling, the court found by clear and convincing evidence that Eric was not in compliance with his case plan, which made an ongoing relationship with him concerning. However, the court found more relevant the question whether mother grew from the knowledge the case plan was designed to provide so that she would not return to a relationship with Eric or someone else who would be detrimental to her children. The court believed mother made progress but could not find that it was significant given evidence she maintained a relationship with Eric. Also, she did not specify what action she would take in the additional two months she was requesting to make it safe to return Matthew to her custody. The court was not convinced mother truly separated herself emotionally or physically from Eric.

In presenting Macy’s case, the parties stipulated that the juvenile court could consider the evidence as to Matthew in ruling. Asked what she would do differently if the court granted her more time to reunify, mother testified that she was going to get a restraining order to keep Eric away. She would also complete “All Moms Matter” in the next two months and complete classes at Behavioral Health Recovery Services, which also offered eight-week classes.

Before hearing argument, the juvenile court and counsel agreed that a 12-month review hearing would have to be set on or before July 7, 2022. County counsel argued mother’s continuing contact with Eric placed Macy at a substantial risk of detriment if she were returned to her custody and asked the court to terminate reunification efforts. Mother’s attorney argued the agency failed to prove she had not participated regularly in her case plan or failed to make substantive progress in her court-ordered services plan. She asked the court to continue services to the 12-month review hearing.

The juvenile court found it would be detrimental to return Macy to mother’s custody but found there was a substantial probability that Macy could be returned to mother’s custody in another four months and continued services for her to the 12-month review hearing.

DISCUSSION

Mother disagrees with the juvenile court’s decision to terminate her reunification services, pointing to its decision to continue them in Macy’s case on the same evidence regarding her progress. The explanation lies in the fact that the children were differently situated—the court was conducting a 12-month review hearing as to Matthew and a six‑month review hearing as to Macy. The six- and 12-month review hearings are governed by section 366.21, subdivisions (e) and (f) respectively and the legal standards are different. The key difference in this case is that the court could not find a substantial probability Matthew could be returned to mother’s custody by the 18-month review hearing.

Relevant Legal Principles and Standard of Review

California’s dependency system is designed “to protect children from harm and to preserve families when safe for the child.” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.) During the reunification period of a dependency case, the primary focus is on preserving the family by addressing the issues that led to dependency jurisdiction. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) That means until reunification services have been terminated, “family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody.” (Tracy J., at p. 1424.) Once reunification services are terminated, however, the focus shifts to finding the child a safe and permanent home. (Ibid.)

“When a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) The duration of services depends on the age of the child when initially removed. (§ 361.5, subd. (a)(1).) As a general rule, parents are granted 12 months of services if the child is three years of age or older and six months if the child is under the age of three. (§ 361.5, subd. (a)(1)(A)–(B).) Court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from parental custody. (§ 361.5, subd. (a)(3).)

The child’s status, and the question of whether services should be extended for an additional period, must be reconsidered no less frequently than every six months. (§ 366, subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009.)

At each review hearing, “there is a statutory presumption that the child will be returned to parental custody.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A court, therefore, must return the child to parental custody unless it finds by a preponderance of the evidence that doing so would “create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subds. (e)(1) & (f)(1).)

If the child is not returned to parental custody, the juvenile court is required to determine whether “reasonable services that were designed to aid the parent … in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent.” (§ 366.21, subds. (e)(8) & (f)(1)(A).) If the court finds at the 12-month review hearing that the parent was offered or provided reasonable reunification services and the time period designated for receiving reunification services has been met or exceeded, the court may set a section 366.26 hearing. (§ 366.21, subd. (g)(4).)

In order to extend reunification services beyond the 12-month review hearing, the juvenile court must find that there is a “substantial probability” that the child will be returned to parental custody and “safely maintained” in the home within the extended time. (§ 366.21, subd. (g)(1).) In order to find there is a substantial probability that the child will be returned to the physical custody of his or her parent and safely maintained in the home within the extended period of time, the court must find: “(A) That the parent … has consistently and regularly contacted and visited with the child[;] (B) That the parent … has made significant progress in resolving problems that led to the child’s removal from the home[; and] (C) The parent … has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1).)

Application

The juvenile court found there was not a substantial probability Matthew would be returned to mother’s custody in the two months remaining before the 18-month limitation on reunification services because she maintained a relationship with Eric, who continued to use drugs and alcohol. Mother’s attorney presented no evidence that mother would take measures to increase her likelihood of reunifying with Matthew in her remaining time. Therefore, the court had no choice but to terminate reunification efforts.

In Macy’s case, however, the juvenile court had more discretion in deciding there was a substantial probability of return. Instead of requiring the court to find the child will be returned as it must at the 12-month review hearing (§ 366.21, subd. (g)(1)), the court need only find the child may be returned. (§ 366.21, subd. (e)(3).) Further, the court is not confined to the three factors set forth in section 366.21, subdivision (g)(1); it may consider any relevant evidence. (In re M.V. (2008) 167 Cal.App.4th 166, 180–181.)

Even though the children’s cases were presented back-to-back on essentially the same evidence, mother’s attorney provided evidence in Macy’s case that mother would obtain a restraining order and complete additional services. She thus answered the question in Macy’s case that she left unanswered in Matthew’s, i.e., what additional progress could she make before the next review hearing to make it safe to return Matthew to her. Additionally, because the children were removed at different times and were on different tracks, mother had four months instead of two months to show progress before the next review hearing.

We conclude substantial evidence supports the juvenile court’s finding there was not a substantial probability Matthew could be returned to mother’s custody and its order terminating reunification services. Consequently, we deny the petition.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A).

* Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.

[1] Statutory references are to the Welfare and Institutions Code.