In re Brandon O.

Filed 5/11/07 In re Brandon O. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This appeal is brought by the mother of two dependent children. She seeks reversal of the juvenile courts order terminating her right to make educational decisions for her older child. In addition, she challenges both the adequacy of the reunification services provided to her and the courts decision not to return the children to her custody at the first review hearing. For reasons explained below, we affirm the challenged orders.

PROCEDURAL BACKGROUND

This dependency proceeding involves two half-brothers: Brandon O., who was born in May 1994, and Myles O., who was born in January 2002. The mother of both children is appellant Michelle O. (the mother).

First Dependency Proceeding, 1997-1999

Brandon was the subject of an earlier dependency proceeding. In July 1997, the mother was arrested for driving under the influence with Brandon in the car. A dependency petition was filed on Brandons behalf by the Santa Clara County Department of Family and Childrens Services (Department). According to the Departments jurisdiction/disposition report, the mother had a long history of alcohol and cocaine addiction. A referral had been made at the time of Brandons birth, alleging that he had been born with a positive toxicology for cocaine. The Department provided services, the mother successfully reunified with Brandon, and the dependency was dismissed in November 1999.

Current Dependency

Dependency Petitions, November 2005

The current dependency proceedings were instituted in early November 2005, when the Department filed petitions on behalf of Brandon, then 11 years old, and Myles, who was three. The petitions alleged caretaker absence: the mother was incarcerated, having been arrested the previous month, and her grandmother, with whom the boys had been staying, could no longer care for them. In addition, the petitions asserted, the mother has a history of substance abuse, which resulted in the prior dependency involving Brandon. The petitions further alleged that the mother has apparent emotional and/or mental health issues. As factual support for that allegation, the petitions cited an incident in March 2005 where she displayed irrational, demanding, and threatening behavior against the staff at Brandons school, which resulted in the school filing a restraining order against the mother. The petitions also recounted two incidents from September 2005. In the first, the mother entered the CalWorks office and had to be removed by security for irrational, hostile, and demanding behavior; in the second, she went to the Departments offices and attempted to relinquish the children.

Jurisdiction, May 2006

After several continuances and an unsuccessful mediation, the jurisdiction hearing was conducted as a contested matter in May 2006. The court found the allegations of the amended petitions to be true. The mother was ordered to participate in reunification services, including a parenting class, a psychological evaluation, counseling, and drug and alcohol assessment and treatment. In June 2006, the children were moved from the childrens shelter and placed with their maternal aunt in Tehama County.

Review Hearing, July 2006

On July 5, 2006, the juvenile court conducted a six-month review hearing. As recommended by the Department, the court continued Brandon and Myles as dependent children and it ordered continued reunification services for the mother. The court also sustained allegations that the mother had a positive test for cocaine in April 2006 (a factual question that had been left unresolved pending a retest, which never occurred) and that she has a history of chronic drug use which impairs her ability to appropriately parent the children.

At the same hearing, the juvenile court considered several other matters, including the Departments application to limit the mothers right to make educational decisions for Brandon. The court granted the application, thereafter entering a formal order limiting the mothers right to make educational decisions for Brandon and appointing an educational representative for him.

At the July 5th hearing, in addition to deciding the above matters, the juvenile court also signed a temporary restraining order against the mother, based on a finding that she had violated court orders regarding supervised visitation. The court set a hearing for two weeks hence to consider issuance of a permanent restraining order. At that hearing, held on July 19th, the court granted the requested order. The restraining order requires the mother to stay at least 300 yards away from Brandon and Myles, except at court-ordered supervised visitation as arranged by the supervising social worker.

Appeal

In July and August 2006, the mother filed notices of appeal challenging the orders made by the juvenile court on July 5th and July 19th. In her briefs on appeal, the mother attacks only the orders made on July 5th, arguing: (1) the court erred in removing her right to make educational decisions for Brandon; (2) there is insufficient evidence that reasonable reunification services were provided to her; and (3) there is insufficient evidence to support a finding of detriment to the children from a return to her custody. The Department disputes all of the mothers contentions. The children have not appeared on appeal.

DISCUSSION

To establish the proper framework for assessing the mothers appellate contentions, we begin by setting forth the general principles of dependency law that inform our analysis.

I. Dependency Law: General Principles

The Legislature has provided for juvenile court jurisdiction over dependent children. (See Welf. & Inst. Code, 300 et seq.)[1]

A. Overview

The primary goal of the dependency statutes is to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible. (In re David M. (2005) 134 Cal.App.4th 822, 824; see 300.2; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) The fundamental purpose of dependency law thus is to protect the childs best interests. (In re Malinda S. (1990) 51 Cal.3d 368, 384 [paramount concern is the childs welfare].)

In dependency proceedings, there are generally four phases: (1) jurisdiction; (2) disposition; (3) reunification (unless bypassed), with periodic review hearings; and (4) dismissal of the dependency, or the selection and implementation of a permanent plan. (See, e.g., In re Matthew C. (1993) 6 Cal.4th 386, 391.) Once the juvenile court assumes dependency jurisdiction, it has broad authority to make and modify orders in the best interest of the dependent child. ( 362, subd. (a); 385; 388; see also Cal. Rules of Court, rules 5.560(a), 5.570.)

B. Reunification

When the state removes children from their parents, it is obliged to make reasonable efforts to reunify the family. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Reunification plans should be specific and internally consistent, with the overall goal of resumption of a family relationship. (In re Luke L. (1996) 44 Cal.App.4th 670, 678.) During reunification, the juvenile court must conduct periodic review hearings. By statute, the court must review the case at least once every six months to determine whether the child may be returned to the parents and whether reasonable reunification services have been afforded the family. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1210; see 366.21, subd. (e) [six-month review hearing where child has been removed from parental custody]; Cal. Rules of Court, rule 5.710(a)(1); In re Bridget A. (2007) 148 Cal.App.4th 285, 304-305.) At the initial six-month review hearing, the juvenile court must consider whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child. (Cal. Rules of Court, rule 5.710(e)(5); see also,  366, subd. (a)(1)(C); Cal. Rules of Court, Standard 5.40(g)(1).)

C. Educational Rights

Among the constitutional privileges enjoyed by parents is the right to determine how their child should be educated. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1066; see also, e.g., Troxel v. Granville (2000) 530 U.S. 57, 65 [confirming a constitutional dimension to the right of parents to direct the upbringing of their children, including their education].) In dependency proceedings, however, those rights may be limited: In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent. ( 361, subd. (a).) However, any such court-imposed limitations on the parents educational rights may not exceed those necessary to protect the child. (Ibid.)

II. Analysis

As noted above, the mother challenges the termination of her educational rights, the adequacy of the Departments reunification services, and the courts decision not to return her children to her custody at the six-month hearing. We address each contention in turn.

A. Educational Rights

The mother recognizes the juvenile courts statutory authority to limit her right to make educational decisions for Brandon. ( 361, subd. (a).) As she also acknowledges, we review the courts exercise of that authority for an abuse of discretion. (Cf., In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Nevertheless, the mother asserts, the evidence here does not support the courts decision to terminate her educational rights, since termination was unnecessary to protect Brandon. As explained below, we disagree.

1. Legal Background: Special Education Rights

As a special education student, Brandon was entitled to the benefits of a federal law known as the IDEA, the Individuals with Disabilities Education Act (20 U.S.C.  1400-1419).

Congress enacted the IDEA to address the special educational needs of children with disabilities. (In re Carl R., supra, 128 Cal.App.4th at p. 1065.) The purpose of the Act is to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs. (20 U.S.C. 1400, subd. (d)(1)(A).) To accomplish this ambitious objective, the Act provides federal money to state and local educational agencies that undertake to implement the substantive and procedural requirements of the Act. (Burlington School Comm. v. Mass. Dept. of Ed. (1985) 471 U.S. 359, 368 (Burlington); see also, e.g., 85 Ops.Atty.Gen. 157 (2002).) IDEA provides that disabled students and their parents have a right to confidentiality. (P.N. v. Greco (D.N.J. 2003) 282 F.Supp.2d 221, 235, citing 20 U.S.C. 1412(a)(8), 1417(c), and 34 C.F.R. 300.560-577.)

California elected to participate in the federal program and has enacted a comprehensive set of laws governing special education. (Ed. Code, 56000 et seq.; Cal. Admin. Code, tit. 5, 3000 et seq.) (Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 772.) In implementing the IDEA, the California Legislature has declared that all individuals with exceptional needs have a right to participate in free appropriate public education.... (In re Carl R., 128 Cal.App.4th at p. 1065, fn. 8, quoting Ed. Code, 56000; see 85 Ops.Atty.Gen., supra, at p. 157)

The statutory objectives of the IDEA are achieved through preparation and implementation of an annual individualized education program (IEP) for the child. (85 Ops.Atty.Gen., supra, at p. 157.) The IEP is a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs. (Burlington, supra, 471 U.S. at p. 368; see 20 U.S.C.A. 1401(14); 34 C.F.R. 300.340-300.350; Ed. Code, 56032, 56321, 56345.) The IEP is developed by a team of parents, teachers, and other school administrators outlining the goals of the child, and the special education and related services needed to meet those goals. (M.T.V. v. DeKalb County School Dist. (11th Cir. 2006) 446 F.3d 1153, 1157; see 20 U.S.C.A. 1414(d)(1)(B); 34 C.F.R. 300.344; Ed. Code, 56341, subd. (b).)

2. Factual Background

In the 2004-2005 school year, Brandon was a fifth grader at Horace Mann Elementary School in the San Jose Unified School District. At the start of the school year, the school moved Brandon from special day classes into regular classes. The mother agreed with the decision to mainstream Brandon. After his transition to regular classes, Brandon frequently missed school, which led to truancy proceedings.

In February 2005, an IEP meeting was scheduled at Horace Mann Elementary School at the mothers request. At the meeting, she requested that Brandon be returned to special day classes. After discussing that request, the IEP team concluded that several things should be completed prior to such a move to a more restrictive placement. The mother apparently disagreed; she refused to sign the IEP. Two more IEP meetings were scheduled for March 2005, which the mother did not attend. Another IEP meeting was held in early April 2005. Although the mother was in the building, she refused to attend. Instead, the situation escalated to the point of law enforcement intervention. In May 2005, after an incident involving school pictures, the mother apparently withdrew Brandon from Horace Mann Elementary School; she did not enroll him elsewhere for the remainder of the school year.

Prior to the start of the 2005-2006 school year, the mother attempted to enroll Brandon at Luther Burbank School. During the enrollment process, the school demanded documentary proof of her residency in its district. The mother became disruptive and had to be escorted off campus. Lacking proof of residency, Brandon was not permitted to attend Luther Burbank School. Brandon remained out of school until after this dependency was instituted.

In December 2005, Brandon was enrolled at Dahl Elementary School, in the Franklin McKinley School District, by the foster parents with whom he was then living. Brandons new school scheduled an IEP meeting in February 2006 to assess him, and it held IEP meetings thereafter in March and April. Another IEP meeting was scheduled for May 12, 2006, but it was cancelled when the mother appeared for the meeting with a number of people identified as friends of the family, including a journalist who was writing an article about the mothers struggles with the San Jose Unified School District. As of June 2006, Brandon was still without a current IEP.

3. Analysis

In her challenge to the evidentiary basis for the courts decision, the mother addresses two sets of circumstances: the May 2006 IEP meeting, which was cancelled when she arrived accompanied by a journalist and others, and her difficult interactions with school officials prior to that time.

a. The May 2006 IEP Meeting

The mother first focuses on May 2006 IEP meeting, to which she brought a journalist and other individuals. She asserts that the parent is given discretion to invite individuals to become part of the IEP team, and thus it was unreasonable for the juvenile court to terminate her educational rights on that ground.

We disagree with the legal premise that underlies the mothers argument. As a matter of statutory interpretation, we conclude, journalists are not among those authorized to be IEP team members. IEP team membership is governed by the applicable federal statute and regulations, and by Californias conforming statute. (20 U.S.C.A.  1414(d)(1)(B); 34 C.F.R. 300.344; Ed. Code, 56341, subd. (b).)[2] In California, the Department of Education has construed the governing provision as prohibiting attendance at an IEP meeting by those who do not meet the express statutory qualifications for attendance. (85 Ops.Atty.Gen., supra, at pp. 159-160, discussing Ed. Code,  56341.) That persuasive administrative construction is borne out by the provisions legislative history. (85 Ops.Atty.Gen., at p. 159.) The journalist who accompanied the mother to the May 2006 meeting does not fall within any of the express statutory categories qualifying him for attendance. Nor would he be eligible for IEP team membership merely because he had the mothers permission to attend. It is true that a provision of the statute authorizes other individuals who have knowledge or special expertise regarding the pupil to serve as IEP team members at the discretion of the parent or the educational agency and as appropriate. (Ed. Code, 56341, subd. (b)(6).) Here, however, there is no evidence either that the journalist had special expertise or that he intended to participate. Individuals with knowledge or special expertise regarding the pupil are present at the meeting to help develop, review or revise the IEP plan. They are expected to participate meaningfully in the process, contributing valuable information with the best interests of the child in mind. (85 Ops.Atty.Gen., supra, at p. 160, citing 64 Fed.Reg. 12585-12586 (Mar. 2, 1999).) As mere observers, news media members would not have knowledge or special expertise regarding the pupil or be able to engage in a sharing of valuable information concerning the child with the other team members. (85 Ops.Atty.Gen. at p. 160.) The journalist thus was properly excluded from the IEP meeting.

In any event, as the record makes clear, the mothers decision to bring the journalist and other parties to an IEP meeting was not the only basis for the termination of her right to make educational decisions for Brandon.

b. Prior Conduct by the Mother

As the Department points out, the record is replete with evidence demonstrating that the mother could not secure an appropriate education plan for Brandon and that she was an ineffective advocate for him.

For one thing, in the words of the Department, the mother demonstrated a pattern and practice of disruptive, irrational, hostile, demanding, harassing and threatening behavior. Her behavior would often escalate to security or police intervention and routinely was manifested in front of her children. That behavior repeatedly slowed the special education process. The record amply supports those observations. For example, in April 2005, the mother was present at the school district building for a scheduled IEP meeting, but she refused to attend until certain school records were provided to her. After she became verbally abusive to school staff, a district police officer was called. The mother refused his request to leave the building, and instead called 911. After unsuccessful attempts to reason with her, a San Jose police officer eventually arrested the mother for refusing to leave the building and for making a false report of an emergency; she was eventually convicted of the latter charge. Brandon was present during this incident, and Myles apparently was, too. Based on that incident and prior instances of her intimidating, volatile, and disruptive conduct at Brandons school and at the school districts offices, San Jose Unified School District staff obtained a restraining order against the mother. However well-intentioned the mothers conduct may have been, the juvenile court could reasonably find that it was counterproductive and operated to impede Brandons education.

For another thing, the record supports an inference that the mother played a role in Brandons truancy problems, which began early in the 2004-2005 school year. In November 2004, a first notice of legal truancy concerning Brandon was sent to the mother. (See Ed. Code, 48260.) According to the narrative accompanying that notice, when the mother was informed that her son was legally truant, she was very rude and aggressive and explained she wanted her son switched to a different teacher. An appointment was scheduled for early January 2005 to discuss the mothers concerns, which she failed to attend. Brandon was referred to the Student Attendance Review Board (SARB). (See generally, Stroman, Holding Parents Liable for Their Childrens Truancy (2000) 5 U.C. Davis J. Juv. L. & Poly 47, 54-55 (Stroman).) A SARB meeting was scheduled for February 1, 2005, but the mother did not show up. She was contacted by telephone and agreed to a school attendance contract for Brandon. Under the terms of the contract, she was to provide documentation for Brandons medically excused absences. Despite the truancy intervention and agreement, as of February 10, 2005, Brandon had missed a total of 16 days of school, plus he had eight truant tardies, and no doctors notes were provided. In March 2005, a referral was made to the district attorneys office. The mother later withdrew Brandon from school altogether for the entire remainder of the school year. She also failed to enroll him for the 2005-2006 school year, after her unsuccessful attempt to place him at Luther Burbank School without the required proof of residency. To the extent that the mothers actions contributed to Brandons truancy, they imposed a serious impediment to his educational success. Truancy is a concern because it is clear that every day a child is not in school is a lost day of that childs education. (Stroman, supra, at p. 47.)

As the mother points out, however, the foregoing evidence relates to her past behavior. In her view, disruptive behavior in the past did not support terminating educational rights when there was no evidence of such current behavior. We reject the mothers assertion that the record lacks evidence that she continued to obstruct Brandons educational goals.

c. The Mothers Continuing Conduct

As of June 2006, when Brandon was finishing sixth grade at Dahl Elementary, he was still without a current IEP. In the Departments application for an order limiting the mothers educational rights, dated May 2006, the social worker declared: This worker is concerned that after five attempts at an IEP no updated educational plan has been completed and Brandon may not be receiving the appropriate educational services.

The Departments June 2006 interim review report described the social workers suggestion to the mother that an educational rights representative be appointed for Brandon, and the mothers response that she had hired an educational attorney to develop a Profession[al] Plan for Brandon in lieu of the standard IEP. Significantly, however, the mother had not provided the Department with a copy of the plan or the name of the attorney. The social worker reiterated her concern about the lack of a current IEP for Brandon, particularly given the impending plan to place the children out of county with their maternal aunt.

In the Departments status review report, dated July 5, 2006, the social worker stated that the mother had been involved with Brandons IEP meetings at Dahl Elementary, which took place in February, March, and April 2006. Nevertheless, the social worker reported, due to [her] mistrust of the IEP process and her opposition to many aspects of the meeting, Brandon does not have a current IEP. Although [the mother] has expressed her concern for a valid IEP, she has not [been] able to cooperate and secure a valid IEP for Brandon. In the social workers view, in spite of the mothers good intentions of obtaining the most appropriate educational services for Brandon, she continues to be unable to control her own behavior while doing so. [Her] inability to cooperate with school personnel, volatile behavior with school staff, history of police involvement on school campuses, restraining orders protecting school staff from [her], and inconstant school attendance records for her children continue to hinder her ability to act as the educational representative for Brandon.

The juvenile court credited the Departments evidence. As it observed at the hearing: The record is clear with respect to the mothers interactions with the school districts over the course of quite a long time. And the record contains ample evidence for the court to limit the mothers rights to make decisions with respect to Brandons educational process. The record supports the courts determination.

d. Conclusion

The juvenile court was amply justified in removing the mother as Brandons educational representative, based on her history of volatile and counterproductive behavior with school officials, her role in Brandons truancies, her attempt to bring unauthorized individuals to an IEP meeting, and her continuing obstruction of efforts to serve Brandons educational needs. We find no abuse of discretion.

B. Finding of Reasonable Services

The juvenile court implicitly found that the Department had provided reasonable reunification services. The mother attacks that finding as lacking in evidentiary support. As we now explain, her arguments are unavailing.

1. Standard of Review

When a finding that reunification services were adequate is challenged on appeal, we review it for substantial evidence. (In re Alvin R (2003) 108 Cal.App.4th 962, 971.) Applying that standard, we construe all reasonable inferences in favor of the juvenile courts findings regarding the adequacy of reunification plans and the reasonableness of [the Departments] efforts. (In re Julie M., supra, 69 Cal.App.4th at p. 46.)

2. Legal Principles

The adequacy of reunification plans and the reasonableness of the [Departments] efforts are judged according to the circumstances of each case. (Robin V. v.Superior Court (1995) 33 Cal.App.4th 1158, 1164.) The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547; accord, In re Julie M., supra, 69 Cal.App.4th at p. 48; In re Alvin R, supra, 108 Cal.App.4th at p. 972.)

Among the relevant factors in the analysis are these: whether the Department properly identified the problems leading to the childs removal, whether it offered services designed to remedy those problems, and whether it made reasonable efforts to assist the parents in achieving reunification. (Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1165, internal quotation marks omitted; see Cal. Rules of Court, rule 5.502(25); see also, e.g., In re Alvin R., supra, 108 Cal.App.4th at p. 972.)

3. Analysis

Applying the above factors to the record in this case, we affirm the juvenile courts implied determination that the Department both designed and offered reasonable services.

First, the Department identified the problems leading to removal. As described in the petitions, the most immediate issue was caretaker absence, as the mother was then incarcerated on a warrant. But the petitions also identified additional problems, including the mothers long history of substance abuse and her apparent emotional and/or mental health issues.

Next, the Department created a reunification service plan designed to ameliorate those problems. When the court assumed jurisdiction over Brandon and Myles in May 2006, the mothers case plan contained components designed to address her substance abuse issues, including drug and alcohol assessment and treatment. It also contained mental health and behavioral components, including anger management classes, counseling, and a current psychological evaluation (updating one from 1999, completed as part of the first dependency).

The third factor in the analysis requires consideration of whether the services provided were adequate, given the specific circumstances of the particular family. Here, those circumstances included the mothers long history of substance abuse and her volatile behavior with services providers, including those trying to educate Brandon.

As to the first set of circumstances, the mothers substance abuse, the Department considered that to be one of the major concerns of the dependency. The mother had a lengthy, well-documented history of substance abuse. In addition, there was evidence that the mother continued to use cocaine. For one thing, the mother had failed a drug test in April 2006. She sought a retest, which was arranged, but she failed to follow through by paying the necessary fee. For another thing, the mother frequently failed to show up for her court-ordered drug tests. Despite her long history of substance abuse, her recent failed drug test, and her frequent failure to submit to testing, the mother denied having a substance abuse problem. On that basis, she refused to engage in assessment and rehabilitation services designed to address her substance abuse issues. By her own volition, she avoided the services she was provided. (In re Julie M., supra, 69 Cal.App.4th at p. 48, fn. omitted.) The mothers refusal to participate in these reunification services does not render them inadequate.

As to her behavioral and mental health issues, the mother did avail herself of some of the services offered by the Department, although she was described as slow to engage services and difficult to assist because of her disruptive and adversarial behavior. Early in the proceeding, the mother refused to submit to an updated psychological evaluation. When the juvenile court took jurisdiction in May 2006, it ordered a current psychological evaluation for her. A referral for the mothers psychological evaluation was made the following month. But according to the Departments status review report, dated July 5, 2006, the mother was not in agreement or interested in participating in the psychological evaluation. The mother did take a court-ordered anger management class arranged through the Department. She also engaged in therapy, though she did not attend all of the required sessions. In response to the mothers request, the Department attempted to arrange a new therapist for her. Nevertheless, the mother asserts, the Department was required to do more than provide referrals to counseling and anger management to address behavioral issues. She contends that the Department should have assisted her in negotiating the educational process. As we view the record, however, the Department provided just such assistance. For one thing, even before the juvenile court assumed jurisdiction, the Department complied with the mothers requests for referrals for an education specialist and for a court appointed special advocate for Brandon. Thereafter, through its social workers, the Department tried to assist the mother in addressing Brandons educational needs, facilitating the exchange of IEP information between schools as needed, and even attending IEP meetings. As explained above, the issue is not whether more services could have been provided or whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

In this case, the record amply supports the juvenile courts implied finding that the Department provided the mother with adequate services.

C. Return to Parental Custody

In her final appellate argument, the mother attacks the juvenile courts decision not to return the children to her custody at the six-month review hearing. She asserts that the evidence does not support a finding that there was a risk of detriment to the children if they were returned to her custody. As explained below, we do not share the mothers view of the evidence; we therefore reject her argument.

1. Standard of Review

On appeal from the juvenile courts determination of detriment from a return to parental custody, we review the record for substantial evidence in support of the courts finding. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

2. Legal Principles

As the mother correctly observes: The focus of the detriment inquiry is on the childs well-being at the time of the review hearing rather than the initial basis for juvenile court intervention. (See, e.g., In re Joseph B. (1996) 42 Cal.App.4th 890, 894, 899.) However, in assessing detriment, the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency as well as the effect that return would have on the physical or emotional well-being of the child. (Id. at p. 899.) In the words of the court rule that applies at the six-month review hearing: Failure of the parent or guardian to regularly participate and make substantive progress in any court-ordered treatment program is prima facie evidence that continued supervision is necessary or that return would be detrimental. (Cal. Rules of Court, rule 5.710(e)(3).)

3. Analysis

Applying those principles to the case at hand, we affirm the juvenile courts implied determination of detriment.

As explained above, the mother failed to participate in the court-ordered programs designed to address her substance abuse issues. Though she minimizes the significance of her drug problem, the Department identified it as one of the major concerns in the dependency. Moreover, the mothers contrary assertions notwithstanding, the court had sufficient evidence from which it could infer that she was currently abusing drugs, including her positive test for cocaine in April 2006 and her missed tests thereafter.

In an addendum report for the May 2006 jurisdictional hearing, the Department offered its assessment that the mother needed to address her substance abuse issues before a return to custody could be considered. As of the July 2006 six-month review hearing, the mother had made no further progress in addressing those problems.

Under these circumstances, the record supports a finding that the mother failed to cooperate with the reunification services designed to correct the problems giving rise to the dependency. (Cf., e.g., In re Joseph B., supra, 42 Cal.App.4th at p. 901 [although the mother satisfied the requirements of the reunification plan, she was not entitled to custody].) Her failure to participate and make substantive progress in the court-ordered substance abuse treatment program is prima facie evidence that return would be detrimental. (Cal. Rules of Court, rule 5.710(e)(3).) The record thus supports the juvenile courts determination that the children were at risk of detriment if returned to the mothers custody at the six-month review hearing.

DISPOSITION

We affirm the challenged orders made by the juvenile court in July 2006.

___________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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[1] Further unspecified statutory references are to the Welfare & Institutions Code.

[2] California law conform[s] to federal law in specifying the members of the IEP team. (85 Ops.Atty.Gen., supra, at p. 158.) As set forth in the governing California provision: The individualized education program team shall include all of the following: [] (1) One or both of the pupils parents, a representative selected by a parent, or both, in accordance with the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.). [] (2) Not less than one regular education teacher of the pupil, if the pupil is, or may be, participating in the regular education environment. If more than one regular education teacher is providing instructional services to the individual with exceptional needs, one regular education teacher may be designated by the local educational agency to represent the others. [] The regular education teacher of an individual with exceptional needs shall, to the extent appropriate, participate in the development, review, and revision of the pupils individualized education program, including assisting in the determination of appropriate positive behavioral interventions and supports, and other strategies for the pupil, and the determination of supplementary aids and services, program modifications, and supports for school personnel that will be provided for the pupil, consistent with subclause (IV) of clause (i) of subparagraph (A) of paragraph (1) of subsection (d) of Section 1414 of Title 20 of the United States Code. [] (3) Not less than one special education teacher of the pupil, or if appropriate, not less than one special education provider of the pupil. [] (4) A representative of the local educational agency who meets all of the following: [] (A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of individuals with exceptional needs. [] (B) Is knowledgeable about the general curriculum. [] (C) Is knowledgeable about the availability of resources of the local educational agency. [] (5) An individual who can interpret the instructional implications of the assessment results. The individual may be a member of the team described in paragraphs (2) to (6), inclusive. [] (6) At the discretion of the parent, guardian, or the local educational agency, other individuals who have knowledge or special expertise regarding the pupil, including related services personnel, as appropriate. The determination of whether the individual has knowledge or special expertise regarding the pupil shall be made by the party who invites the individual to be a member of the individualized education program team. [] (7) Whenever appropriate, the individual with exceptional needs. (Ed. Code, 56341, subd. (b).)