Filed 1/11/18 In re A.Z. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re A.Z., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

R.Z. et al.,

Defendants and Respondents;

A.Z,

Appellant.
F075871

(Super. Ct. No. 16CEJ300301-1)


OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Brian M. Arax, Judge.
Beth A. Melvin, under appointment by the Court of Appeal, for Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
No appearance by Defendants and Respondents.
-ooOoo-
Juvenile dependent A.Z. appeals from the juvenile court’s order at the six-month review hearing (Welf. and Inst. Code, § 366.21, subd. (e)(1)) providing his parents, mother, K.G., and father, R.Z., with continued reunification services. A.Z. contends the finding is not supported by substantial evidence and the juvenile court abused its discretion in ordering reunification services be continued. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.Z. came to the attention of the Fresno County Department of Social Services (Department) in October 2016, when mother tested positive for methamphetamine at A.Z.’s birth. Mother admitted using methamphetamine the day before, and also admitted she received no prenatal care during her pregnancy.
Mother, age 25, had a history of substance abuse dating back to age 13. In 2011, she voluntarily entered a residential treatment program after she was arrested for driving under the influence with her then one-month-old daughter in the car. In 2014, mother was arrested for child endangerment after her three-year-old daughter could not wake her and called 911. At that time, mother admitted to drinking and law enforcement found evidence of methamphetamine use in her home. After her arrest, mother voluntarily agreed to have a maternal aunt become the guardian for her two children.
Mother named R.Z. as A.Z.’s father. Father was interviewed at the hospital and described difficulties in his relationship with mother. He denied seeing mother use drugs or using methamphetamines himself, but admitted using marijuana.
Neither mother nor father felt the need for assistance from the Department, and law enforcement declined to place A.Z. into protective custody. Mother and father agreed to attend a meeting at the Department to discuss their situation and to drug test, but failed to appear. The Department received a call from a doctor expressing concern for A.Z.’s well-being and learned that mother and father had failed to take A.Z. to a follow-up medical appointment. A home visit revealed a make-shift bassinet and very few infant necessities.
Mother and father did attend a rescheduled meeting at the Department. Father admitted he was aware of mother’s methamphetamine and alcohol abuse issues, but believed he was prepared to do what was best for his family. Father drug tested, which was positive for amphetamines. When confronted with the positive drug test, father admitted he used methamphetamine daily to wake up for work.
Based on mother and father’s admitted drug use and mother’s history, the social worker believed A.Z. was at risk of harm in his parents’ custody, and filed a section 300 petition. A.Z. was placed into protective custody.
An amended petition filed on October 17, 2016, alleged, in greater detail, that mother and father’s substance abuse placed A.Z. at substantial risk of harm. Mother appeared at the October 18, 2016, detention hearing. A.Z. was ordered detained pending a jurisdiction hearing scheduled for November 16, 2016. The Department was authorized to offer mother and father parenting classes, substance abuse and mental health assessments and treatment, and drug testing. Mother and father were allowed twice weekly supervised visits.
Father, who was now incarcerated, did not make his first appearance until the November 2016 jurisdiction hearing. The juvenile court continued the matter to allow father’s counsel time to prepare and to allow time for notice to various Indian tribes, as mother claimed Native American heritage.
Based on the responses received from the tribes, the Department filed a motion asking the juvenile court to find the Indian Child Welfare Act (ICWA) inapplicable to the proceedings. On January 11, 2017, the Department filed a report asking the juvenile court to sustain the allegations in the amended petition and adjudge A.Z. a dependent of the court. The report stated: the Department provided mother and father with referrals to services in mid-October 2016, but that mother and father were still waiting for an opening in a parenting course; both mother and father failed to attend their scheduled substance abuse assessment appointment and their appointments to enroll in drug testing; it was unknown whether mother or father had been contacted to arrange for mental health assessments; and mother and father had missed two scheduled visits in October.
Father told the investigating social worker he had family in Texas and wished to move there with mother and A.Z., and he provided the social worker with the name of a sister who was interested in placement of A.Z. Mother was supportive of this placement and indicated she wished to move to Texas with father.
At the combined jurisdiction and disposition hearing January 11, 2017, father was present, but mother was not. The juvenile court sustained the allegation of the amended petition; found A.Z. to be a child described by section 300, subdivision (b); found the ICWA inapplicable; adjudged A.Z. a dependent and ordered him removed from mother and father’s custody; and found mother and father had made no progress toward alleviating the cause necessitating A.Z.’s out-of-home placement. The juvenile court ordered reunification services for mother and father, including a parenting class, substance abuse treatment and testing, and mental health evaluations and recommended treatment. Mother and father were allowed continued supervised visits with A.Z. A six-month review hearing was set for June 21, 2017.
The report prepared in anticipation of the six-month review hearing reported that A.Z. remained in foster care and appeared to be healthy and developmentally on target. Neither mother nor father had completed any of the offered service programs.
By this time, father was again in jail, having been rearrested in March of 2017. When he was out of custody in February 2017, he completed a substance abuse assessment, at which time it was recommended he enroll in a residential treatment program. The social worker was unable to verify father’s claim that he was participating in a parenting course and substance abuse counseling while in jail. Due to his incarceration, father had not visited A.Z. and was said not to have established a “parent and child bond” with A.Z.
Mother was reportedly homeless for much of the review period. Her whereabouts were unknown until early May 2017, when mother self-enrolled in a detox program. Mother then transferred to a residential treatment program, where she was also taking a parenting class. Mother visited A.Z. only once during most of the six-month review period; she began visiting again after she entered residential treatment.
Though neither mother nor father had completed any of their treatment programs, the social worker characterized their progress as “moderate” and opined they had the “motivation, capacity and ability” to complete their treatment programs. The Department reported that it had “assessed the situation and believe[d] it was in [A.Z.’s] best interest to reunify with his parents.” The report indicated the Department was “willing” to continue reunification services for mother and father because the current care provider was unable to provide a permanent home for A.Z. The Department was assessing a relative for possible placement.
At the six-month review hearing June 21, 2017, both mother and father were present. The Department urged the juvenile court to continue services for mother and father and noted A.Z.’s current placement was not permanent, but a relative had come forward who might be receiving placement soon. Counsel for both mother and father also urged the juvenile court to adopt the social worker’s recommendations to continue services. Father’s counsel also noted that father was being released from incarceration that day and was planning on meeting with his probation officer “to get established in a program.” Mother’s counsel noted mother got a “late start,” but had been doing very well for two months and was now “fully engaged in services and fully participating.”
Minor’s counsel objected to the Department’s recommendation to continue reunification services for mother and father. Counsel stated she did not believe the recommendation “meets the legal standard,” based on the lack of regular and consistent visitation, lack of significant progress, and lack of demonstrating capacity and ability to complete treatment programs and objectives to provide for the care and needs of A.Z. Counsel had no further evidence to put forth, but asked that the juvenile court terminate services based on the evidence provided.
In ruling on the matter, the juvenile court summarized the statutory provisions governing a decision whether to order additional reunification services for parents of a child under the age of three. Turning to the evidence, the juvenile court noted A.Z. had been removed from mother and father care for eight, not six, months, during which mother and father “for some period of time” failed and refused to regularly participate in services.
As to father, the juvenile court noted the Department had not been able to confirm father’s participation in services while in jail, although father has said that he completed services and could get the certificates. It found the Department’s statement that father’s participation in services had been “moderate” “by no stretch is that true.” The juvenile court noted mother and father were again “together,” which the juvenile court described as “bad” if they did not succeed, but “good” if they did. The juvenile court stated that it tended to see mother and father’s relationship “as a plus but if you don’t have your act together dad you’re not only going to destroy your own abilities but destroy mom’s ability to reunify.”
As to mother, the juvenile court noted she had gotten into a detox program in early May and participated successfully six or seven weeks, and was cooperating with her attorney and with the Department. The juvenile court also noted that mother had earlier, in 2014, done “something very brave” when she voluntarily gave up her older child to guardianship and admitted she needed help, although she still had not “gotten her act together.”
The juvenile court stated it could not find regular consistent visitation. And while it could find “apparent intelligence and cooperation of late,” “even that’s a weak finding because that’s usually proven by not promising or showing capacity to do it but by actually doing it.” The juvenile court found that, while A.Z. was “likely adoptable,” the lack of a “concurrent plan” for A.Z. a “huge factor” in the weighing process. It then ordered additional services and set the next review hearing for four, rather than six, months to give mother and father an opportunity to reunify. If mother and father were found to be doing well at the interim review, it could increase the services to the full 12 months. If not, the juvenile court would not delay permanence for A.Z. The juvenile court requested discovery on both mother and father’s progress prior to the interim review and stated “[i]f they do not participate well and fully I would expect to receive a JV-180[, a section 388 petition for modification of order,] and set the matter on sooner for resolution.” A.Z.’s counsel was asked if this made sense, and counsel agreed.
DISCUSSION
On appeal, A.Z. contends the juvenile court applied the wrong legal standard at the six-month review and abused its discretion in ordering continued reunification services for mother and father. We disagree.
Standard of Review
We review the correctness of an order under section 366.21 for substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) “We do not pass on the credibility of witnesses, attempt to resolve the conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
The juvenile court’s decision regarding whether to extend reunification services to the 12-month review hearing is reviewed under an abuse of discretion standard. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 179-180 (M.V.).) The court’s exercise of discretion will not be disturbed in the absence of an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Applicable Law and Analysis
When a child is removed from parental custody, the juvenile court is generally required to order family reunification services. (§ 361.5, subd. (a).) The presumptive rule for children such as A.Z., who are under the age of three when initially removed from parental custody, is that reunification services will not exceed six months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B).) This rule recognizes that the unique needs of very young children regarding attachment and development “justif[y] a greater emphasis on establishing permanency and stability earlier in the dependency process ‘“in cases with a poor prognosis for family reunification.”’ [ Citation.]” (M.V., supra, 167 Cal.App.4th at p. 175.)
Section 366.21, subdivision (e)(1) governs the six-month review hearing. Where, as here, the juvenile court determined that A.Z., who was under the age of three years old on the date of the initial removal, could not be returned to parental custody, subdivision (e)(3) provides “the court may schedule a hearing pursuant to Section 366.26” if it finds by clear and convincing evidence that the parent failed to regularly participate and make substantive progress in a court-ordered treatment plan. “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.” (§ 366.21, subd. (e)(3).)
Thus, the juvenile court must make two distinct determinations in applying subdivision (e)(3) of section 366.21. First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a section 366.26 hearing to terminate parental rights. However, this inquiry does not require the court to schedule a section 366.26 hearing (“the court may schedule a hearing”). (§ 366.21, subd. (e)(3), italics added.) Instead, it authorizes the court to set such a hearing if it makes the required findings. (M.V., supra, 167 Cal.App.4th at pp. 175-176.)
“The second determination called for by the third paragraph of section 366.21, subdivision (e), protects parents and guardians against premature .26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a .26 hearing if it finds either[:] (1) ‘there is a substantial probability that the child ... may be returned to his or her parent ... within six months ...’; or (2) ‘reasonable services have not been provided ...’ to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the case to the 12–month review if it makes either of these findings. However, the court is not required to set a section 366.26 hearing even if it finds against the parent on both of these findings. The parent is also entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent. [Citations.]” (M.V., supra, 167 Cal.App.4th at p. 176, fn. omitted.)
Section 366.21, subdivision (e), which relates solely to the conduct of the six-month review hearing, does not provide further guidance concerning how to determine at the six-month review whether there is “substantial probability” the child “may be returned” to a parent within the following six months. (§ 366.21, subd. (e)(3).) However, as explained in M.V.:
“[T]he court is not charged by section 366.21, subdivision (e), with finding a substantial probability the child will be returned. The court is charged with finding a substantial probability the child may be returned. Literally, the statute commands the court to determine whether there is a strong likelihood of a possibility of return (not simply a strong likelihood the return will in fact occur). The word ‘may’ alters the typically high burden of ‘substantial probability.’” (M.V., supra, 167 Cal.App.4th at p. 181.)
And, in considering whether there is substantial evidence of a possible return of the minor to the parent, the juvenile court “may take all of the evidence into consideration in making its findings,” “along with any other relevant evidence .…” (M.V., supra, 167 Cal.App.4th at p. 181.)
A.Z. contends the juvenile court abused its discretion in continuing reunification services because, in doing so, it “relied on evidence of the lack of a permanent plan,” a factor he claims is irrelevant. A.Z. points to the juvenile court’s statement that the “concurrent plan is a huge factor,” and infers that because of this factor, the juvenile court concluded “it had no option other than to continue reunification services for the parents in the absence of evidence showing that the Department had located a permanent home” for him. We disagree.
Here, the juvenile court considered various factors in determining whether further reunification services were warranted: that mother was in a substance abuse program and had participated successfully for six or seven weeks, and was now cooperating with her attorney and with the Department; that mother made a “brave” decision showing “courage and maturity” in 2014 to voluntarily turn her child over to a guardianship because she admitted she had a problem; that mother had not shown “any denial” in the instant case, which it stated was, along with the guardianship decision, “good protective factors”; and that mother and father were likely together, which it deemed a “plus.” At this stage in the proceedings, the juvenile court was not required to determine whether A.Z. will be returned to a parent by the time of the 12-month review hearing, but only that there was “strong likelihood of a possibility of return,” and as such, we find no abuse of discretion on the part of the juvenile court in continuing reunification services.
DISPOSITION
The order of the juvenile court is affirmed.