Filed 3/20/18 I.E. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I.E.,

Petitioner,

v.

THE SUPERIOR COURT OF MERCED COUNTY,

Respondent;

MERCED COUNTY HUMAN SERVICES AGENCY,

Real Party in Interest.

F076747

(Super. Ct. No. 16JP00100A)


OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald. J. Proietti, Judge.
William A. Davis for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and Ann M. Hanson, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner I.E. (mother) seeks an extraordinary writ from the juvenile court’s order terminating reunification services at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) conducted on December 19, 2017, and setting a section 366.26 hearing as to her now 11-year-old daughter, D.E. We deny the petition.
PROCEDURAL AND FACTUAL BACKGROUND
Nine-year-old D.E. was removed from mother’s custody on August 19, 2016, by the Merced County Human Services Agency (agency) after it was determined she was reinfected with a sexually transmitted disease. She was initially diagnosed with the infection in February 2016, medically treated, and cleared in April and June 2016. After determining the infection had not returned on its own, a nurse at children’s hospital concluded she had been reinfected. The nurse also reported that mother was not properly managing D.E.’s diabetes.
D.E. disclosed to a social worker that Ernie L., the 49-year-old son of mother’s fiancé and a registered sex offender, had taken her on unsupervised and unmonitored trips to the store and to his friend’s home. Within the past several days, he had taken her pants off and placed his penis between her legs. D.E. said Ernie visited the home regularly and kept his clothing and other personal belongings at the house.
Mother had no reaction when told that D.E. had been reinfected with the same sexually transmitted disease and could not explain how it happened. She knew Ernie was a registered sex offender. She had also agreed in March 2016, to a safety plan that prohibited any unsupervised contact between D.E. and Ernie. However, she did not believe Ernie sexually abused D.E., stating “Ernie wouldn’t do that to her. They are like brother and sister.” Mother reported suffering from significant depression and taking an antidepressant that caused drowsiness. She was also taking muscle relaxants and drinking alcohol.
On August 24, 2016, the juvenile court ordered D.E. detained after finding a prima facie showing that she came within its jurisdiction under section 300, subdivisions (b)(1) (failure to protect) and (d) (sexual abuse) pursuant to a dependency petition filed by the agency. The agency did not recommend and the court did not order services pending its disposition of the case. The agency placed D.E. in foster care.
On September 21, 2016, the date set for the jurisdictional hearing, the juvenile court granted county counsel’s request to continue the matter to allow the agency additional time to prepare its report. On October 19, at the continued hearing, D.E.’s father appeared telephonically and the court appointed him counsel and continued the hearing. On November 16, the court continued the matter again at the request of mother’s trial counsel, who was ill.
On December 5, 2016, the juvenile court exercised its dependency jurisdiction, ordered D.E. removed from parental custody, and ordered mother to participate in reunification services. The court denied services for D.E.’s presumed father, finding he was convicted of a violent felony in May 1979. (§ 361.5, subd. (b)(12).)
In May 2017, the juvenile court conducted the six-month review hearing and found mother made minimal progress in her services plan. The court continued her services to the 12-month review hearing, which it set for October 5.
On October 5, 2017, the juvenile court granted the request by mother’s attorney to set a contested 12-month review hearing. The court set the hearing for November 14, 2017. On November 14, mother’s attorney advised the court that mother had a scheduled visit the previous day, which minor’s counsel had planned to observe. However, the visit was cancelled because the foster parent forgot about the visit. Mother’s attorney asked the court to continue the hearing so that he and minor’s counsel could observe a supervised visit between mother and D.E. The court granted the request and continued the matter to December 19.
In its report for the contested hearing, the agency recommended the juvenile court terminate mother’s reunification services because she had not made consistent progress in her case plan. In addition, Ernie still visited mother’s home and mother did not believe Ernie sexually abused D.E. Therefore, the agency opined it was detrimental to return D.E. to mother’s custody and there was not a substantial probability she could be returned after an additional period of reunification. The agency acknowledged, however, that D.E. wanted to return to mother.
On December 19, 2017, mother testified she completed a parenting program and a mental health assessment. She was prescribed an antidepressant. She believed depression prevented her from participating in reunification services during the previous year. Mother said Ernie came to her house occasionally and agreed it was not safe for D.E. to be around him. Nor did she believe it was safe for D.E. to return to her custody because “the person who violated [D.E.] hadn’t been caught.” When asked specifically whether she believed Ernie violated D.E., she replied, “I do believe my daughter,” but she wondered why he had not been arrested and prosecuted. Asked what she could do immediately to safely resume custody of D.E., mother said she would need to get her own place. However, she did not know how quickly she could accomplish that since she was financially dependent on her fiancé. She was prepared, however, to get a restraining order to prevent any further contact between D.E. and Ernie.
Mother’s attorney attributed her delay in reunifying to her depression but argued she was treating it and asked the juvenile court to continue her services until the 18-month review hearing, which the court and the parties agreed would occur in February 2018, if scheduled. Mother’s attorney also argued that mother’s very close bond to D.E. made it improper to terminate her services. Minor’s counsel concurred, arguing continued services were “worth a try,” given the strong mother/daughter bond. She said that D.E. loved mother and, although D.E. wanted to be adopted if not returned to mother’s custody, counsel did not know if D.E. understood the finality of adoption.
The juvenile court considered whether mother’s depression was so severe that it prevented her from engaging in services, but concluded there was not a substantial probability D.E. could be returned to her custody even after several more months of properly treating her depression. The court terminated mother’s reunification services and set a section 366.26 hearing.
DISCUSSION
Mother contends she was entitled to 12 months of reunification services starting from August 19, 2016, the day the agency removed D.E. from her custody. However, because of continuances prior to the dispositional and contested 12-month review hearings, she claims, she was shortchanged 110 days. Her argument is legally flawed.
Section 361.5, subdivision (a)(1)(A), which appellate counsel cites, governs the duration of reunification services. It does not, however, guarantee 12 months from the date the child was initially removed from parental custody as counsel argues. Rather, it provides 12 months from another date; the date the child entered foster care.
Section 361.5, subdivision (a)(1)(A) provides as relevant:
“[F]or a child who, on the date of the initial removal from the physical custody of his or her parent …, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as provided in Section 361.49, unless the child is returned to the home of the parent .…”
A child is deemed to have entered foster care “on the earlier of the date of the jurisdictional hearing … or that date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent .…” (§ 361.49.)
Thus, under section 361.5, subdivision (a)(1)(A), mother was entitled to reunification services from the dispositional hearing on December 5, 2016, to October 19, 2017, 12 months after D.E. entered foster care. When the juvenile court terminated her reunification services in December 2017, she had received more time than allowed by law; she received 12 months from the dispositional hearing.
Further, it bears noting that mother could have requested voluntary services at the detention hearing, which if granted, would have given her an additional three months of services. Additionally, her attorney requested two of the four continuances she claims interfered with her ability to reunify. In any event, mother’s failure to reunify ultimately turned on her inability to protect her daughter from sexual abuse, a situation the court did not believe would be resolved with several more months of services.
We find no error.


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) of the California Rules of Court.