Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Terry Troung, Juvenile Court Referee. Petition denied. Los Angeles County Super. Ct. No. CK72240
Law Offices of Katherine Anderson, Victoria Doherty, and Ama Kumi-Thomas for Petitioner.
No appearance for Respondent.
James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Real Party in Interest.
Children’s Law Center of Los Angeles and Abby Kara Eskin for the Child.
RUBIN, Acting P. J.
INTRODUCTION
Petitioner is the mother of G.L., a dependent of the juvenile court. On July 29, 2009, the juvenile court terminated reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26. Mother challenges this order claiming, among other things, the juvenile court should have extended reunification services for a full 18 months. We reject her contentions and deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL BACKGROUND AND FACTS
The Petition and Detention
In May 2008, when G.L. was only five weeks old, mother drove in a car with G.L. to pick up her older daughter, B.A., in Ridgecrest, Kern County. B.A., who was 13 years old at the time, soon recognized her mother was intoxicated because she smelled of alcohol and her speech was slurred. B.A. told her mother she did not want to ride in the car while she was drunk.
When mother failed to stop the car, B.A. threatened to call 911 on her cell phone and then began dialing. Mother grabbed the phone and threw it out of the car window. After mother stopped to pick up the phone, B.A. took G.L. out of her car seat and left the car. Even though mother tried to pull G.L. out of B.A.’s arms and back into the car, the older daughter refused to let go of her sister. Mother drove off and abandoned the two girls on the side of the road in the middle of a sandstorm with near zero visibility. A witness stopped and called 911.
Mother had four prior referrals for general neglect. Two of them involved alcohol intoxication, including one incident where mother abandoned B.A. at a gas station after drinking six “mini bottles” of alcohol. Mother also had a criminal history, including separate convictions for driving under the influence of alcohol and being drunk and disorderly.
G.L. was detained and the Department of Children and Family Services (DCFS) filed a dependency petition alleging mother had failed to protect, supervise, and provide regular care to G.L. due to her substance abuse.
The Disposition
The petition was sustained and on August 11, 2008, the juvenile court ordered mother to participate in programs consisting of drug rehabilitation with random testing, parent education, and individual counseling to address case issues. The court specified mother’s counseling was to be with a DCFS-approved counselor and that she was to participate in individual counseling as well as drug counseling. The court also ordered monitored visitation.
A month later, the juvenile court amended the case plan by requiring that mother’s individual counseling also address domestic violence and substance abuse issues. Mother acknowledged the requirements of her case plan by signing the court’s orders.
The juvenile court ordered that mother address domestic violence issues after sustaining a petition regarding G.L.’s father that alleged he had a history of substance abuse and a physically violent relationship with mother that was fueled by alcohol. Father later suffered a psychotic breakdown, attempted suicide, and was diagnosed with bipolar disorder. His reunification services were terminated in April 2009. Father is not a party to this writ proceeding.
The Six-Month Hearing
The six-month review hearing scheduled for November 2008 was continued to January 2009. The social worker reported that mother was terminated from her substance abuse program at Bilingual Family Counseling Service, Inc., because she had made no progress due to lack of attendance. Mother also did not undergo drug testing for four weeks. When mother resumed testing on December 9, 2008, she tested positive for opiates. Mother did, however, enroll in a second substance abuse program. The juvenile court continued reunification services for an additional six months.
Mother was terminated from the second program in February 2009. She had missed a group session, two individual counseling sessions, a drug test, and failed to provide proof she attended any 12-step meetings. When her program counselor confronted her about the missed test, mother admitted she had relapsed back into alcohol. Mother then re-enrolled in the Bilingual Family Counseling Service program, but immediately called to explain she would not be attending the group session because she was leaving town. Mother had an outstanding warrant in Kern County for child endangerment.
The 12-Month Hearing
For the 12-month hearing, the social worker reported that mother had undergone a psychiatric evaluation and been diagnosed with depression and anxiety. Mother had just begun individual counseling on June 1, 2009, and only had four sessions, two of which were considered introductory.
During her four months with Bilingual Family Counseling Service, mother attended 28 sessions and missed nine. Her program counselor wrote that her overall participation was “really good,” but, when speaking to the social worker the next day, the counselor clarified that mother’s participation was “marginal.” The counselor said that based on mother’s extensive history with substance abuse, her participation in the program was only the “tip of the iceberg” and she would benefit from an aftercare program.
The social worker expressed concern that mother and father continued to be in a relationship and that mother was probably abusing prescription medication. Because mother had barely completed the most recent substance abuse program after failing to complete previous programs, not having a stable place to reside, and continuing to reside with father, the social worker concluded mother had not taken her sobriety seriously and recommended mother’s reunification services be terminated.
The contested 12-month month review hearing took place on July 29, 2009. Mother testified she had completed two parenting classes, had enrolled in an aftercare program at the end of June, and was attending daily 12-step meetings. She admitted, however, that she had not really committed herself to the 12-step program until June 27. While acknowledging the social worker’s concern about her relationship with the father in light of his alcohol abuse, criminal history, and mental issues, mother failed to realize the relationship could cause her to relapse and was not beneficial for G.L.
The juvenile court terminated reunification services. The court found, among other things, that DCFS had “complied with the case plan,” while mother’s compliance and progress with the plan was partial, and that there was not a substantial probability G.L. would be returned to her by the 18-month date.
The court further said, “Pursuant to statute, because [G.L.] was under the age of three when she entered the system, this court only has discretion to allow family reunification services up to the 12-month permanency planning hearing. There’s no case law or black letter law, as far as I’m aware of, that provides me with authority to continue any further reunification time period for a child under the age of three....”
G.L., through her counsel, has joined in DCFS’s opposition to mother’s writ petition.
DISCUSSION
Mother argues the juvenile court erred (1) by stating it had no authority to extend reunification services beyond 12 months, then terminating services rather than extending them, and (2) by basing its decision on evidence that was not admitted. We disagree.
The Juvenile Court’s Comments at Most Were Harmless.
Typically, when a child is removed from a parent, the child and parent are presumptively entitled to 12 months of reunification services in order to assist in reunifying the family. (§ 361.5, subd. (a)(1)(A).) But when the child is under three years of age at the time of removal, the presumptive rule is that court-ordered services may not exceed six months. (§ 361.5, subd. (a)(1)(B); see Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) Notwithstanding these presumptive time periods, court- ordered services for such a child can be extended to 18 months, “provided the court determines at both a six-month review hearing and a 12-month review hearing that continuation of services is warranted.” (Tonya M., at p. 843; §§ 361.5, subd. (a)(2) & 361.21, subds. (e)-(g).)
The juvenile court may extend services to the end of the 18-month period if it finds there is substantial probability the child will in fact be returned to the parent and safely maintained in the home within the extended period of time. (§§ 361.5, subd. (a)(2), 366.21, subds. (e) & (g)(1); Cal. Rules of Court, rule 5.715(c)(3); see M.V. v. Superior Court (2008) 167 Cal. App.4th 166, 178, 180-181.)
There can only be a substantial probability of return if the court finds all of the following: “(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).) Such findings are reviewed for substantial evidence. (James B. v. Superior Court (1995) 35 Cal. App.4th 1014, 1020.)
We agree with mother that the juvenile court’s remark that it did not have authority to extend reunification services beyond 12 months was not an accurate statement of the law. In context, however, we conclude the fairest reading of the comments is that since the court found no substantial probability G.L. would be returned to mother at the 18-month date, the court was without power to extend services. In that light, the comments constituted an accurate statement of the law. At most, the isolated statement was harmless once the juvenile court found there was no substantial probability G.L. would in fact be returned to her mother by the 18-month date, i.e., just four months later. Thus, it did not matter if the court’s statements were not literally correct in all situations. (See In re Athena P. (2002) 103 Cal. App.4th 617, 627 [noting harmless error principles apply to dependency proceedings]; In re Jesusa V. (2004) 32 Cal.4th 588, 625 [error is reversible only if it is reasonably probable a result more favorable would have been reached in the absence of the error].)
Substantial evidence in this case easily supports the juvenile court’s order terminating services. Five-week-old G.L. was removed from mother’s care because mother abandoned G.L. and her older daughter in a sandstorm after insisting on driving while intoxicated. Mother has a long history of alcohol abuse and this was not the first time she had abandoned her child on the streets after becoming intoxicated. During the reunification period, mother dropped in and out of substance abuse rehabilitation programs. When she was enrolled, she did not attend regularly. Even after four months of completing the program at Bilingual Family Counseling Service, her counselor indicated mother’s participation was “marginal” and that she was just beginning to treat her addiction.
Despite the juvenile court’s order that she undergo individual counseling to address domestic violence and substance abuse issues, mother did not begin such counseling until just two months before the 12-month hearing. She only had four sessions, two of which were introductory. Mother was attending 12-step meetings. Yet, by her own admission, she did not really commit herself to the process until just one month prior to the 12-month hearing. Mother did make some progress by completing the substance abuse program, parenting classes, and regularly visiting her daughter. But, as the juvenile court found, her compliance with the case plan was partial and fell short of demonstrating substantial probability G.L. would in fact be returned to her care by the 18-month deadline.
Mother also asserts the juvenile court failed to make a finding that DCFS had provided reasonable reunification services because it simply stated, “The court finds by clear and convincing evidence that the department has complied with the case plan.” This claim is meritless. Not only is the court’s statement a finding that DCFS provided reasonable reunification services, mother has failed to describe any specific instance when she was not in fact provided with reasonable services.
The Juvenile Court Relied on Admitted Evidence.
Mother lastly argues the juvenile court erred because none of the reports it relied upon in making its ruling were admitted into evidence. This is not accurate.
After asking counsel if they had any final evidence to present, the juvenile court clearly identified the documents it had read and considered: “At this time the court has read and considered the Title XX’s in this case. I’ve also considered the Last-Minute Information for the court, dated June 26, 2009, as well as the.21(f) report dated June 26, 2009.” Likewise, the court’s minute order reflects these documents (including the “XX’s” attached to the last minute report) were admitted into evidence.
Contrary to mother’s suggestion, the dependency statutes required nothing more. (See § 366.21, subd. (f) [“In making its determination, the court shall review and consider the social worker’s report and recommendations....”].) If mother’s counsel had any objection to the evidence the juvenile court considered or failed to consider, she should have raised it at the time of the hearing. Because there was no objection, any claim of error was forfeited. (See In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Cheryl E. (1984) 161 Cal.App.3d587, 603.)
DISPOSITION
The petition is denied. This opinion is final forthwith as to this court under rule 8.490 of the California Rules of Court.
We concur: BIGELOW, J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.