In re A.O.

Filed 8/31/07 In re A.O. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant S.L., mother of the minor, appeals from orders of the juvenile court entered at the six-month review hearing returning the minor to her fathers care. (Welf. & Inst. Code, 366.21, subd. (e), 395.)^[1]She contends there was insufficient evidence that return of the minor to her care would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the minor. She further contends there was insufficient evidence to support the juvenile courts finding that she had received reasonable reunification services. We affirm the orders of the juvenile court.

BACKGROUND

We provide an abbreviated recitation of the background, summarizing only that which is relevant to the resolution of the issues on appeal.

On May 18, 2005, the Sacramento County Department of Health and Human Services (DHHS) filed a section 300 petition on behalf of the three-year-old minor as a result of the parents history of domestic violence. The parents had signed an informal supervision case plan about a year earlier but had not participated in the programs to which they agreed and continued to engage in domestic violence. The minor was initially placed with appellant upon the specific condition that the father not reside in or remain overnight in the home. The court sustained the allegations in the petition and continued the disposition hearing.

Thereafter, the social worker notified the court in an addendum report that the parents were again residing together and trying to work things out. The social worker recommended an out-of-home placement for the minor while the parents engaged in services. At the disposition hearing, the juvenile court ordered the minor placed in foster care and ordered family reunification services for both parents.

At the six-month review hearing, the social worker reported that the parents were no longer residing together. The father had completed his parenting education and anger management sessions. He had been referred to individual counseling for further anger management work. The father visited the minor consistently and had progressed to unsupervised visitation. The minor enjoyed the visits and appeared to have separation anxiety in the fathers absence. The father had a permanent full-time job and was living with a roommate and her two children.

Appellant had moved to San Francisco and was living with her parents. She had been referred to services in Sacramento that she did not complete. She did, however, complete classes on domestic violence prevention and parenting through the Lao Seri Association in San Francisco. The social worker did not know whether the parenting class met DHHS certification requirements. Appellant had also been seeing two counselors, although the social worker did not have progress reports. Appellant did not try to contact the minor by telephone and had missed several visits, although she was provided with bus and taxi vouchers. During visits, she did not interact with the minor but would sit and watch, hugging the minor often. The minor was more upbeat and peaceful when with her father.

After a contested hearing, the juvenile court found that return to the physical custody of the father would not create a substantial risk of detriment to the safety, protection, or well-being of the minor. The court found the extent of progress made by the parents toward alleviating or mitigating the causes necessitating placement had been fair as to appellant and moderate to significant as to the father. The court found the father consistently and regularly contacted and visited the minor, and appellant had been less consistent. The court also found that DHHS had complied with the case plan by making reasonable efforts to make it possible for the minor to be returned safely to the fathers home and to complete the necessary steps to finalize permanent placement of the minor.

The juvenile court ordered the minor placed in the fathers physical custody and ordered continued family services for both parents, including liberal visitation for appellant. The juvenile court designated a permanent plan of return to both parents and, in that regard, ordered DHHS to evaluate appellants home for placement and overnight visitation. The court set a status review hearing for 60 days out.

DISCUSSION

I

Appellant contends the juvenile court erred in failing to find that return of the minor to her physical custody would be detrimental to the minors safety, protection, or well-being and that substantial evidence would not support such a finding. We find no error.

At the six-month review hearing, [T]he court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.21, subd. (e).)

Appellants reliance on this provision is misplaced. Although the juvenile court did not return the minor to her custody, it did return the minor to the physical custody of the father, with specific findings that return to the father would not be detrimental to the minor. Because the minor was placed back with her parent, the juvenile court was not required to make a finding that return to appellant would be detrimental under the foregoing provision.

In placing the minor with the father, the juvenile court found the father had made more progress in alleviating the causes necessitating out-of-home placement than had appellant. The court, however, ordered liberal visitation and continued services for appellant with the ultimate goal of returning the minor to the legal and physical custody of both parents.

In the meantime, legal custody of the minor remains with DHHS. Placement is with the father after a finding of no detriment. When the juvenile court terminates jurisdiction, section 362.4 authorizes it to make custody and visitation orders that will be transferred to a family court file and remain in effect until changed by the superior court. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)^[2] When it does so, it will consider the totality of the minors circumstances and consider the best interests of the child. (In re Roger S. (1992) 4 Cal.App.4th 25, 30-31; see also In re John W. (1996) 41 Cal.App.4th 961, 971-974.)

II

Appellant also contends there was insufficient evidence to support the juvenile courts finding at the six-month review hearing that she had received reasonable reunification services. She argues that the appropriate remedy is to reverse the juvenile courts finding. We do not reach the merits of her contention.

Appellant relies on section 366.21, subdivision (e), applicable at the six-month review hearing, which provides, in pertinent part: If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian 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 or legal guardian.

As explained above, the foregoing provision is not applicable in this case because the minor was returned to her parent -- the father. The juvenile court was not required to determine whether reasonable services had been provided to appellant under this section.

Moreover, contrary to appellants contention, when it appears at the six-month review hearing that a parent has not been afforded reasonable reunification services, the remedy on appeal is to extend the reunification period and order continued services. ( 366.21, subd. (e); In re Alvin R. (2003) 108 Cal.App.4th 962, 973-974; see also Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1153-1156.) In this case, appellant is not aggrieved because she has already received the remedy, i.e., continuation of reunification services. (Melinda K. v. Superior Court, supra, at pp. 1153-1156.)

DISPOSITION

The orders of the juvenile court are affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] Section 362.4 provides, When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minors attainment of the age of 18 years, and proceedings for dissolution of marriage, for nullity of marriage, or for legal separation, of the minors parents, or proceedings to establish the paternity of the minor child . . . , are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue a protective order . . . and an order determining the custody of, or visitation with, the child. [] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the [superior court] proceeding . . . at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof. [] If no action is filed or pending relating to the custody of the minor in the superior court of any county, the juvenile court order may be used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides. . . .