R.W. v. Super. Ct.

Filed 5/25/10 R.W. v. Super. Ct. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

Petitioners R.W., mother of the minor, and A.W., father of the minor, seek an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court, made at a contested hearing on a petition for modification (Welf.& Inst. Code, 388, subd. (c))[1], terminating reunification services, vacating a six-month review hearing ( 366)and setting a section 366.26 hearing. Petitioner also requests a stay of proceedings in the respondent court.

The status of every dependent child in foster care shall be reviewed at least every six months until the section 366.26 hearing is completed to determine the necessity for and the appropriateness of the minors placement. ( 366.) Since the section 366.21, subdivision (e) hearing was vacated prior to the granting of a section 388, subdivision (c) request to terminate reunification services, and the court did not hold a hearing pursuant to section 366, the petitioners were denied their due process rights to present evidence on the minors status.

We shall grant the petition in part.

FACTS

In March 2009, the 17-month-old minor was removed from parental custody due to neglect, parental substance abuse and the arrest of both parents on drug-related charges.[2] The parents previously had agreed to participate in voluntary services but had not done so and both tested positive for methamphetamine two months earlier. In May 2009, the court sustained the petition and set a disposition hearing.

The disposition report in June 2009 recommended services for both parents, noting that the parents were soon to be sentenced on criminal charges. The potential sentences were probation for the mother and a possibility of probation for the father although he was facing a six-year term. The report detailed the service needs for each parent, including substance abuse treatment, parenting and counseling. The mother, who was not in custody, was referred to services and engaged in various programs. The father was provided with incarcerated parent services on parenting and substance abuse but did not participate. Both parents had visitation with the minor. The social worker was to contact the facility where the father was housed to ascertain the programs available to him and to notify a contact person who could verify his participation in such programs. The court adopted the recommended findings and orders and set a six-month review ( 366.21, subd. (e)) hearing date in December 2009.

In August 2009, the Department of Employment and Social Services (Department) filed a petition for modification of the disposition orders which granted services to the parents. The Department wanted to terminate services, vacate the six-month review hearing and set a section 366.26 hearing to select a permanent plan for the minor. A declaration attached to the petition stated the petition relied upon section 388, subdivision (c)(1)(A) and that the parents should be denied further services pursuant to section 361.5, subdivision (e)(1), which required the court to find by clear and convincing evidence that providing services would be detrimental to the minor. The declaration reviewed several of the factors which could establish detriment as set forth in section 361.5, subdivision (e)(1), including the minors young age, lack of parent-child bonding, the length of the parents sentences and the nature of the treatment each parent required. The father had been sentenced to four years in state prison but was sent to the California Rehabilitation Center (CRC) in Norco, California and, while the period of incarceration was shorter than his earlier projected sentence, he would still not complete treatment by the 12-month review hearing. The mother had been sentenced to four years in state prison and was housed at the California Institute for Women (CIW) in Corona where treatment was available to her, but she also would not complete treatment by the 12-month review hearing.

The petition alleged circumstances had changed since the disposition hearing because both the mother and the father had been sentenced to state prison in June 2009. The petition further alleged the minors best interests would be served by the proposed order because termination of services would result in permanency for the minor. The court set a contested hearing on the petition.

The father sent a letter to the court explaining he had accepted placement at CRC in lieu of serving a four-year sentence in state prison. The eight-month program at CRC would focus on substance abuse rehabilitation. If he demonstrated successful completion of the program, the father expected to be released to community-based programs by April 2010 and to complete the local programs by August 2010. The father further stated he was benefitting from the independent study packets on parenting sent by the social worker.

The mother also sent a statement to the court requesting additional services because her treatment program at CIW would result in her return home in less than six months.

The contested hearing was continued several times. The six-month review hearing, originally scheduled for December 2009, was reset then vacated to trail the hearing on the petition for modification. The hearing commenced December 8, 2009, with an offer of proof that the mother would testify she was in various programs for substance abuse treatment and relapse prevention, expected to be released from CIW in June 2010 and would then participate in further local programs. The matter was set for a further hearing in late December 2009.

At the continued hearing, the social worker testified services were recommended for all the parents at disposition due to the nature of concurrence of the criminal and the dependency cases, including the uncertainty of both the timing and results of sentencing and the need for permanency for the minor. However, after sentencing, when the length of sentences received was known, a petition for modification was filed to terminate services based on the factors in section 361.5, subdivision (e)(1).

The social worker further testified the mother had participated in various services in the plan following detention of the minor. Prior to her sentencing, the mother was generally compliant with the service plan and visited the minor three times a week. The mother was continuing services at CIW and consistently provided information to the social worker on her participation. The social worker also spoke to the service coordinator on the programs available to the mother. According to the coordinator, the program was a minimum of six months and it would be April or May of 2010 before the authorities would consider release. In addition to the substance abuse treatment services at CIW, the mother needed intensive mental health services and the service coordinator was working on that element. The social worker had reviewed the factors relevant to further services for the mother pursuant to section 361.5, subdivision (e) and considered all the factors including length of sentence in requesting termination of services. The social worker was unable to gauge the mothers actual progress because the mother had not sent completion certificates and had done only a few of the prison packets on parenting the social worker sent to her.

As to the father, the social worker stated she was unsure whether there was a substantial probability of release within a year even if he complied with the CRC programs. The father was currently on track to complete services at CRC but the programs were subject to change and completion dates were uncertain. If he completed the CRC program, the father would still be subject to local programs for three to six months and he would have to demonstrate a further six months of sobriety before the minor would be placed with him. In addition to the CRC program, the social worker sent the father independent study packets on various subjects. As with the mother, the social worker always received coloring sheets and letters to the minor back from the father, but few completed study summaries even when he was in local custody. The social worker had been informed the father was illiterate but, after discussions with him, she concluded he was able to read and write.

The court set a date for a further hearing in mid-January 2010 to complete the testimony. The parents objected to a further continuance without a six-month review hearing. The court indicated the six-month review hearing would continue to trail the contested hearing. Prior to the scheduled hearing, the social worker filed a status review report for the trailing section 366.21, subdivision (e) hearing which recommended terminating services, noting the parents lack of progress and the improbability of both a timely release from custody and achievement of sufficient stability to permit return of the minor to either parent within the statutory time frame. The report was not offered or admitted into evidence. The hearing was continued again and resumed in late January 2010.

Once again there was discussion of the need to proceed with the review hearing and the order in which the two hearings should be conducted. The court concluded the modification hearing would be finished first and then it would take up the matter of a review hearing and what it should entail.

In further testimony, the social worker stated that length of sentence was a factor in providing services because it affected the parents ability to reunify. The social worker also discussed the impact of other factors such as the minors age, the length of a parent-child relationship, the nature of the crime and duration of treatment, noting that state prison sentences limited the parents access to services which could be provided if the parent were in local custody. The social worker had contacted CIW four or five times regarding the mother and services available to her but the service coordinator had not yet returned recent messages left for her. The social worker stated that there were no plans to move the minor and explained why the minor was not placed with the older half sibling. The social worker agreed that there was a chance both parents would be out of custody around the time of the 12-month review. She explained that the detriment to the minor in continuing services to see whether the parents would be released and continue sober lives outside of treatment was that the minor had a right to safety and permanency and not to be required to linger in foster care waiting for a chance that the parents would succeed. The social worker had no contact with the father on his performance at CRC and messages left for his counselor had not been returned since November 2009. The parents had no prison visits with the minor, but received photographs and were able to send letters and cards with materials sent to them by the social worker.

The mother argued the court had to make a finding of reasonable services in order to terminate services and argued there was no evidence of detriment to the minor in continuing her services. The father noted his original plan was designed for an incarcerated parent, thus, his sentencing did not constitute a change in circumstances. He argued there was no evidence of detriment and, because the minor was not in a temporary foster home, an extension of services would not be detrimental. Finally, he argued that modification should be moot because the case was now past the time for a six-month review and the question of reasonable services should be decided. County counsel argued the sentencing did constitute a change in circumstances and that denial of permanency was detrimental to the minor.

The court found by substantial evidence that the parents sentences to state prison constituted changed circumstances. The court also found the requested change was in the minors best interests in light of the length of the sentence and the minors need for permanence and stability and that reasonable services were offered to the parents. The court terminated services for both parents and set a section 366.26 hearing.

County counsel recommended the court trail a six-month review hearing pursuant to section 366 for two weeks and consider the just-concluded hearing to be a status review since all matters to be considered under section 366 were addressed in the testimony and reports before the court. The court did not respond to either request. It did not set a date for a section 366 review hearing nor did it make status review findings required by that section or agree that the hearing should be considered a status review hearing. The court simply set a section 366.26 hearing.

Both parents filed timely notices of intent from the orders. A month after the hearing, an amended order was filed which stated the matter was heard as a six-month review hearing in addition to the contested hearing on the petition for modification. The amended order also included mandatory findings appropriate for a section 366 review hearing, including notice, detriment to the minor if returned to the parents, insufficient progress by the parents in services, and that reasonable efforts were made by the Department to return the minor home. The parents filed new notices of intent from the amended order.

DISCUSSION

I

To address the petitioners contentions, it is first necessary to understand the statutory scheme in which the petition for modification arose. In 2005, this court held that the six-month period for reunification services following the disposition hearing was not a mandatory period under the then applicable law and that, in an appropriate case, services could be terminated before six months. (In re Aryanna C. (2005) 132 Cal.App.4th 1234.) Two years later, the principle was applied to the 12-month period as well. (In re Derrick S. (2007) 156 Cal.App.4th 436.)

In response to these two decisions, and a perceived conflict with other decisions which were seen to require a mandatory period for reunification services, the Legislature amended section 388 in 2008 to provide a framework for early termination of services and narrowed the circumstances under which such termination could occur. (Stats. 2008, ch. 457,  2 [AB 2341].) Part of the purpose of the new statute was to specify that, depending on the age of the child, minimum periods of six and 12 months of services would be offered to the parents when a child was removed from parental custody, thereby eliminating the statutory language upon which Aryanna C. and Derrick S. relied. (Assem. Com. on Human Services, Bill Analysis for Assem.Bill No. 2341 (2007-2008 Reg.Sess.) April 1, 2008, com. p. 3.)

Shortly after this statute was enacted, concerns arose about the potential for confusion in timing court hearings, particularly when delays in setting hearings occurred, and several technical changes were made to clarify the previous amendments. (Assem. Bill No. 706, 3d Reading May 5, 2009 (2009-2010 Reg. Sess.) as amended May 5, 2009, p. 3; Sen. Com. on Judiciary, Bill Analysis of Assem. Bill No. 706 (2009-2010 Reg. Sess.) as amended June 16, 2009, pp. 3-4.)

To serve the various aims of the new law, several code sections were amended. To illuminate the contentions in this case, we review the interplay of the relevant statutes. Section 361.5, subdivision (a)(1) was amended to provide that services for the parents of a child age three or older should be provided from the disposition hearing until 12 months after the date the child entered foster care. For a child under the age of three, services should be provided for six months after the dispositional hearing but no longer than 12 months after the child entered foster care.[3]^, [4] (See also 366.21, subds. (e) and (f) reiterating the time frames for the six- and 12-month review hearings.) Section 388, the general statute authorizing petitions for modification of prior court orders, was amended to include a special procedure for petitions to terminate reunification services prior to a review hearing.[5]

Under the new statutes, a party may seek early termination of services by bringing a petition before the time specified for the six- or 12-month review hearings and must show a change of circumstances or new evidence either that one of the bypass provisions of section 361.5, subdivisions (b) or (e) now applies or that parental action or inaction has created a substantial likelihood that reunification will not occur. In the first situation, the party must also prove the relevant elements of the bypass provisions, while in the second situation, the evidence will relate to the parents lack of performance of the reunification plan or other behavior which impedes reunification. The court can grant early termination only if it finds reasonable services were provided or offered by a preponderance of the evidence and that the condition or conditions relied upon in the petition have been shown by clear and convincing evidence. The latter standard of proof parallels the standard of proof for termination of services under both the bypass provisions in section 361.5, subdivisions (b) and (e) and the review hearings pursuant to section 366.21, subdivisions (e) and (f).

It is clear from examination of the statutes that the requirements for a petition under section 388, subdivision (c) are distinct from those necessary for a normal petition for modification. The analysis of whether the requirements for granting a section 388, subdivision (c) petition have been met are separate as well, going beyond a simple determination of changed circumstances and best interests which exists in the usual case.

Here, the Department elected to bring the section 388, subdivision (c) petition under subdivision (1)(A), relying on the bypass provisions of section 361.5 subdivision (e).[6] Thus, the Department had to establish changed circumstances or new evidence which satisfied section 361.5, subdivision (e) and justified termination of services. The petition relied upon the fact that both parents had been sentenced to state prison after the dispositional orders were entered and the assessment that providing further services to the parents would be detrimental to the minor. The Department also had to show that reasonable services were provided. The petition was filed in August 2009, well before the scheduled date of the six-month review hearing under section 366.21, subdivision (e) in December 2009. With this introductory framework we now address the petitioners contentions.

(a) Reasonable Services

As we have seen, the court was required to make a finding reasonable services were offered or provided when granting a request to terminate services early under section 388, subdivision (c). Both petitioners argue the evidence did not support the courts finding that reasonable services were provided and/or that making the finding was an abuse of discretion.

To provide reasonable services, the Department must identify the problems which led to the loss of custody, design services to remedy the problems, maintain reasonable contact with the parent and make reasonable efforts to assist the parent when compliance has proved difficult. (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) The question is not whether more or better services could have been provided, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

The evidence supports the courts findings as to both parents. Petitioners had a voluntary service plan and access to appropriate services prior to the minors removal. The disposition report had a detailed explanation of the service needs for each parent. The mother was referred to services and the father was provided with incarcerated parent services. Both parents had visitation. After disposition in this case and sentencing in the criminal cases, both petitioners were housed at facilities where substance abuse treatment could occur. The social worker sent both parents independent study packets and materials to permit contact with both the minors and the social worker. The social worker further had, or attempted to have, contact with counselors in the facilities where each petitioner was housed in order to coordinate reunification efforts. In each case, the social worker had difficulty assessing the petitioners progress due to lack of contact from the petitioner or lack of contact from the prison counselor, or both. As to the father, the social worker had assessed his capability to understand and complete the study packets sent to him and believed they were within his abilities.

Ample evidence supported the finding that reasonable services were provided to petitioners under the circumstances of the case. The court did not abuse its discretion in so finding.

In a related argument, the mother contends the court was required to, but did not, consider the barriers to reunification faced by an incarcerated parent in determining whether reasonable services were offered.

Section 388, subdivision (c)(3) does not contain this requirement. While section 361.5, subdivision (e) does contain such a requirement, it is in the context of ordering, not denying reasonable services. ( 361.5, subd. (e)(1).) The mothers argument is premised upon a provision in section 366.21, subdivision (e), which relates to the six-month review hearing applicable when minors are out of the home and services are offered to the parents. This hearing was not a section 366.21, subdivision (e) review hearing and the requirements of that section did not apply. In any case, there was ample evidence considered by the court of the petitioners incarceration and the challenges either in getting necessary services to them, beyond the substance abuse treatment and any other services provided by the facilities in which they were housed, or in getting information on their progress back to the social worker.

(b) Detriment

Petitioners argue the court failed to find by clear and convincing evidence that continuing services to them would be detrimental to the child.

As discussed above, this finding and standard of proof were required as a part of the ruling on the petition since the Department proceeded under section 361.5, subdivision (e) as a basis for early termination. Further, in assessing detriment, the court was required to consider the factors set forth in section 361.5, subdivision (e), such as age of the child, length of sentence, time of release, bonding, nature of the treatment and other appropriate factors.

The parties presented evidence on these factors and the court mentioned some of them in its ruling, specifically the length of the sentences and the minors need for permanence and stability. A significant delay in permanence and stability for a very young child is detrimental to the child. (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611.)

In making its ruling, the court found termination of services would be in the best interest of the minor. While not in the words used by the statute, the courts ruling is, in effect, the converse of the statutory language and did consider the statutory factors. No one objected to the form of the ruling and it was adequate under the circumstances. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) The court did not state the standard of proof it applied; however, articulation of the standard was not required since the appropriate standard for a section 361.5, subdivision (e) denial of services is well known and the court is presumed to have applied the correct standard. (In re Bernadette C. (1982) 127 Cal.App.3d 618, 625.)

(c) Sibling Group

The mother contends the court failed to consider the impact of the sibling group.

In order to maintain a sibling group together in a permanent home if reunification fails, the court may apply the shorter time period for services applicable to children under the age of three to all siblings or half siblings when services are terminated. ( 361.5, subd. (a)(1)(C).) Here, the two half siblings under the age of three were placed together and the third half sibling was placed separately. These placements were not expected to change if services were terminated for the younger children. Thus, the court did not need to consider the sibling group dynamics in granting the section 388, subdivision (c) petition. To the extent that the mothers argument relies on factors in section 366.21, subdivision (e), which governs six-month review hearings when the minor is out of the home, those factors were inapplicable to the hearing from which the writ was taken.

(d) Changed Circumstances

The father asserts the juvenile court abused its discretion in granting the section 388, subdivision (c) petition because there was no evidence of changed circumstances. He argues that the Department was aware that he was likely to be sentenced to state prison after the disposition hearing and had accounted for that in preparing a case plan which contemplated providing services to him in prison. Accordingly, the fact of his sentencing could not constitute a change in circumstances to support a section 388, subdivision (c) petition. We disagree.

At the time of the disposition hearing, both petitioners were pending sentencing. The father was facing a potential prison term but there was also a possibility he would be granted probation. The mother was expected to be granted probation. However, there is no evidence that there was a sentence bargain in either of the criminal cases or that the sentences were other than within the discretion of the criminal court. Events proved this to be true. The father was denied probation but received a shorter term than the maximum he faced and the mother, instead of probation, was sentenced to state prison. Both had the opportunity to participate in treatment at CRC and CIW instead of serving straight prison time. The Department was not, and could not have been, aware of these facts at the time of the disposition hearing. The nature of the sentences affected the service plans of both petitioners and, until the petitioners were assessed at their respective facilities, the duration of the treatment periods were not known. There is no doubt that the sentencing in the criminal cases constituted changed circumstances for both petitioners and the juvenile court correctly so found.

(e) Mootness

The father argues the section 388, subdivision (c) petition was moot because it was not held before the time for the six-month review hearing and the court erred in failing to dismiss it.

Section 388, subdivision (c) permits a request for early termination of services, in this case prior to the hearing set pursuant to subdivision (e) of Section 366.21 for a child under the age of three when removed from parental custody. ( 388, subd. (c)(1).) The statute does not require that the hearing terminating services occur within the six months following the dispositional hearing, only that it occur prior to the six-month hearing held pursuant to section 366.21, subdivision (e).

The statute permits early termination when conditions arise which would have permitted denial of services at the detention hearing or when a parent is performing so poorly that reunification is unlikely. While this hearing should logically occur within the six-month time period following disposition, (or 12 months for older children) the fact that practical considerations of scheduling hearings and transporting prisoners extend the actual hearing somewhat past six months does not deprive the court of the power to hear and determine the motion nor does it render the decision ineffective. This is not a case where passage of time necessarily makes it impossible for the court to grant effective relief. (See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317.) Under the circumstances of this case, the hearing on termination of services was not moot. Obviously, delays in holding the hearings should be avoided.

II

Petitioners raise several contentions relating to the subsequent modification of the order terminating services which purported to deem the hearing to be a review hearing pursuant to section 366 and to make various orders appropriate to a six-month review hearing under that statute. Whether framed as an abuse of discretion or a violation of due process, petitioners argue they were denied notice and opportunity to be heard as to the amended orders and the right to a review hearing. We agree.

A parent in a dependency proceeding is entitled to due process, that is, notice of the proceedings, a hearing and an opportunity to be heard and object. (In re Antonio F. (1978) 78 Cal.App.3d 440, 448; In re Cole C. (2009) 174 Cal.App.4th 900, 913.) Whether a right to due process is violated, however, will vary according to the facts of each case. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 833.) Denial of due process is subject to analysis of whether the error was harmless beyond a reasonable doubt. (In re Amy M. (1991) 232 Cal.App.3d 849, 868; In re J.H. (2007) 158 Cal.App.4th 174, 183.)

The status of a child in foster care must be reviewed no less frequently than every six months after the dispositional hearing until a permanent plan is selected. ( 366.) If services are being offered, the hearing is governed by section 366.21, subdivision (e), which requires multiple findings relating to the progress of reunification and return of the minor under various circumstances. If services are not at issue, the review hearing is still required by section 366; however, the findings focus somewhat more on the status of the case, i.e., necessity and appropriateness of placement; the agencys compliance with the case plan to either return the minor home or finalize a permanent plan; limitations on the parents rights to make educational decisions for the minor; sibling issues; and progress toward mitigating the causes which led to foster care. ( 366, subd. (a)(1)(A-E).) It is apparent that even in the absence of reunification services, parents have an interest in some or all of these determinations.

In this case, due to continuances for various reasons, including transporting parents to court, the hearing on the section 388, subdivision (c) petition, which commenced before the six-month review date, was not completed prior to that date. The Department did give notice of the previously scheduled review hearing date and filed a six-month review report pursuant to section 366.21, subdivision (e) which recommended termination of services. However, the court ordered the review hearing to trail the ongoing hearing on the section 388, subdivision (c) petition.[7]

During the section 388, subdivision (c) hearing, the parties recognized the need for a six-month review hearing regardless of the ruling on the request to terminate services. When the court terminated services, it also vacated the section 366.21, subdivision (e) hearing. We find no error in this process. The issues relevant to such a hearing no longer existed since services had been denied. However, the court was still required to review the minors status pursuant to section 366.

After the courts ruling, counsel for the Department suggested the court trail the matter for two weeks for a section 366 hearing and consider the evidence already presented in that hearing. The court did not respond to the request and made no findings with respect to any six-month review. Subsequently, without notice to the parties, a hearing or any consideration of evidence or argument, the court amended the original orders after the hearing on the section 388, subdivision (c) request for termination of services to include a review hearing. This procedure compromised petitioners due process rights to contest the review report and present evidence on the section 366 review hearing issues. (In re Lance V. (2001) 90 Cal.App.4th 668, 677.)

Because there was no hearing, it is impossible to know what evidence the court considered prior to amending the order. If the court considered the social workers six-month review report, petitioners had no opportunity to cross-examine the preparer since it had not been admitted in evidence at the previous hearing. Further, petitioners had no opportunity to present evidence relevant to the status of the case as opposed to the bypass issues. We cannot conclude that the error was harmless beyond a reasonable doubt. The juvenile court must hold a properly noticed status review hearing in compliance with section 366 and make appropriate findings on the minors status.

DISPOSITION

The petition for extraordinary writ is granted in part and denied in part. Let a peremptory writ of mandate issue directing respondent juvenile court to vacate its amended orders insofar as they relate to a section 366 review hearing. The juvenile court is further directed to hold a properly noticed status review hearing. The decision is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b).)

The stay heretofore issued by this court is vacated.

BLEASE , Acting P. J.

We concur:

RAYE , J.

s

HULL, J.

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[1] Further undesignated section references are to the Welfare and Institutions Code.

[2] The minors two half siblings were removed as well but are not subjects of this petition. The older child, age seven, shared a mother, but not a father, with the minor and the younger child, age two, shared a father, but not a mother, with the minor. The minor was placed with the younger half sibling. The older half sibling was placed separately.

[3] In relevant part section 361.5, subdivision (a)(1) provides: Family reunification services, when provided, shall be provided as follows: [] (A) Except as otherwise provided in subparagraph (C) [relating to sibling groups of various ages], for a child who, on the date of initial removal from the physical custody of his or her parent or guardian, 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 defined in Section 361.49, unless the child is returned to the home of the parent or guardian. [] (B) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49 unless the child is returned to the home of the parent or guardian.

[4] A child is deemed to have entered foster care on the earlier date of the jurisdictional hearing or the date that is 60 days after the date of initial removal from parental custody. ( 361.49.)

[5] Section 388, subdivision (c) states: (1) Any party, including a child who is a dependent of the juvenile court, may petition the court, prior to the hearing set pursuant to subdivision (f) of Section 366.21 for a child described by subparagraph (A) of paragraph (1) of subdivision (a) of Section 361.5, or prior to the hearing set pursuant to subdivision (e) of Section 366.21 for a child described by subparagraph (B) or (C) of paragraph (1) of subdivision (a) of Section 361.5, to terminate court-ordered reunification services provided under subdivision (a) of Section 361.5 only if one of the following conditions exists:

(A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services.

(B) The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent or guardians failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.

(2) In determining whether the parent or guardian has failed to visit the child or participate regularly or make progress in the treatment plan, the court shall consider factors including, but not limited to, the parent or guardians incarceration, institutionalization, or participation in a residential substance abuse treatment program.

(3) The court shall terminate reunification services during the above-described time periods only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in subparagraph (A) or (B) of paragraph (1) exists.

(4) If the court terminates reunification services, it shall order that a hearing pursuant to Section 366.26 be held within 120 days.

[6] Section 361.5, subdivision (e) provides, in relevant part: If the parent . . . is incarcerated . . . , the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered . . ., the likelihood of the parents discharge from incarceration . . . within the reunification time limitations described in subdivision (a), and any other appropriate factors. In determining the content of reasonable services, the court shall consider the particular barriers to an incarcerated . . . parents access to those court-mandated services and ability to maintain contact with his or her child . . . . [] . . . . [] An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided.

[7] The two hearings could, and perhaps should, have been combined, but we do not fault the juvenile judge for the procedure used. The particular issues in the two matters, i.e., denial of services under section 361.5, subdivision (e) and participation and substantial progress in services, were distinct, despite the fact that the result sought by the Department was identical.