Filed 5/24/22 Natalie S. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Natalie S. (mother) seeks review by extraordinary writ of the order of the juvenile court terminating reunification services for her now one-year-old son and setting a permanency planning hearing pursuant to Welfare and Institutions Code[1] section 366.26. She contends, among other things, that the order must be reversed because the court applied an incorrect legal standard at the sixth-month review hearing. We agree that the court’s application of the improper standard was prejudicial and, accordingly, we shall grant the petition and issue the writ.

Background

On May 19, 2021, the Contra Costa County Children and Family Services Bureau (the bureau) filed a petition alleging, among other things, that the child, age two months, was at risk under section 300, subdivision (b) because the mother and child both tested positive at child’s birth for methamphetamine and amphetamines. On June 23, the bureau filed an amended petition which added allegations that mother had tested positive for methamphetamine on May 21 and failed to test on June 16, and June 18. The child was detained and mother was granted twice weekly supervised visits. Mother conceded jurisdiction based on the above allegations.

At the disposition hearing, the child was continued in his out-of-home placement and the court ordered reunification services for mother. Mother’s case plan requires, among other things, that she show her ability to live free from drug dependency by engaging in substance abuse treatment and individual counseling and by submitting to regular drug testing.

On February 4, 2022, in advance of the six-month review hearing, the bureau submitted a report recommending termination of reunification services and the setting of a section 366.26 hearing. According to the report, mother was participating regularly in visitation and her visits were loving and appropriate. The social worker further advised the court that mother reported seeing an individual therapist weekly and a psychiatrist monthly, and participating regularly in substance abuse treatment. As of the writing of the report, however, the bureau had been unable to confirm mother’s participation in these services. Finally, the status report showed that mother had tested positive for marijuana on four occasions in August, had one negative test on September 9, and had failed to test since then. According to the report, mother explained that she had not participated in drug testing because she has anxiety around providing a urine sample.

On March 15, the bureau provided an updated status report recommending that reunification services be continued. The report confirmed mother’s participation, albeit inconsistent, in individual therapy and two drug treatment programs. The report also indicated that mother was currently on medication to treat her diagnosed bipolar disorder. The updated report indicated, however, that since September 2021 mother still had not submitted to drug testing.

Mother did not appear at the contested review hearing. Following counsel’s argument, despite the bureau’s recommendation, the court terminated reunification services and set a section 366.26 hearing. The court found the bureau had provided reasonable services to mother, that mother failed to participate regularly in the court-ordered treatment plan, and that there was not a “substantial probability that the child will be returned to the physical custody” of mother within the next six months.

Discussion

Parents in dependency proceedings are entitled to receive reasonable services to facilitate family reunification. (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 69; In re Katelynn Y. (2012) 209 Cal.App.4th 871, 876.) Reunification services for the parent of a child who was under three years of age on the date of initial removal are generally provided with a presumptive minimum of six months of services, but no longer than 12 months from the date the child entered foster care, unless the child is returned to the home of the parent. (§ 361.5, subd. (a)(1)(B); In re M.F. (2019) 32 Cal.App.5th 1, 20–21; In re Jesse W. (2007) 157 Cal.App.4th 49, 63.)

At the end of the initial six-month period, if a child is not returned to parental custody and “the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan,” the juvenile court may schedule a hearing under section 366.26 to select a permanent placement plan for the child. (§ 366.21, subd. (e)(3).) If, however, the court finds there is a “substantial probability” that the child “may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.” (Ibid.)

The bureau, having supported the continuation of services in the trial court, has not filed a formal opposition to mother’s petition. The bureau concedes that by requiring a showing of a substantial probability that the child will be returned to his mother’s care rather than may be returned, the court incorrectly applied the standard applicable at the 12-month review hearing (§ 366.21, subd (g)(1)) rather than the standard that is applicable at the six-month review hearing (§ 366.21, subd. (e)). (See M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 180 [“subdivisions (e) and (g)(1) of section 366.21 present distinct legal standards: subdivision (e) asks whether there is a substantial probability the child may be reunited with the parent by the 12-month review; subdivision (g)(1) asks whether there is a substantial probability the child will be reunited with the parent by the 18-month review”].) The bureau suggests, however, that the court’s failure to apply the correct legal standard was harmless. We disagree.

Initially, we acknowledge that mother’s failure to submit to drug testing supports the juvenile court’s finding that mother failed to participate regularly in her court-ordered case plan. We also reject mother’s argument that the bureau’s provision of reunification services in that regard was inadequate. While mother asserts that her failure to test was a product of her diagnosed mental illness, she made no effort to alert the bureau to the reasons for her failure to test until shortly before the review hearing.

Nonetheless the court was required under section 366.21, subdivision (e)(3), to extend reunification services if “there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months.” As noted above, the court incorrectly required proof that mother will be returned within six months rather than may be returned. The difference is significant. “[T]he 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. v. Superior Court, supra, 167 Cal.App.4th at p. 181; see also Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848 [there is a different “operable standard” in play at each of the review hearings].)

Contrary to the bureau’s suggestion, there is no basis to conclude that the error was harmless. (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1098–1099 [reversal is justified “ ‘only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error’ ”].) The bureau reported that mother was visiting consistently and engaging in all required services except for testing. Mother provided a plausible, albeit belated, explanation for her failure to test. With additional support from the bureau, mother’s anxiety around testing, if truly the cause of her failure to test, might have been resolved. Once recognized, it is entirely possible that a sufficient history of testing may be established before the 12-month review hearing. Under these circumstances, and given mother’s undisputed substantial compliance with the other requirements of her case plan, application of the incorrect legal standard may well have been prejudicial. Consequently, we will remand the matter to the court to conduct a new hearing pursuant to section 366.21, subdivision (e), make all findings and orders specified in section 366.21, subdivision (e) for a child under three years of age when initially removed, and determine whether, in light of developments to the date of the hearing, additional reunification services are appropriate and in the best interests of the child.

Disposition

The petition for extraordinary writ is granted. Let an extraordinary writ issue, directing respondent court to vacate its order entered on March 18, 2022, terminating mother’s reunification services and setting a section 366.26 hearing, and to proceed as directed herein. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.456(h)(5) & 8.490(b)(2)(A).)

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.

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