Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK70896, Stanley Genser, Juvenile Court Referee.
Lori A. Fields, under appointment by the Court of Appeal, for Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Navid Nakhjavani, Senior Associate County Counsel, for Respondent.
MOSK, J.
Kellie H. (mother) appeals an order of the juvenile court pursuant to Welfare and Institutions Code section 366.22 terminating her reunification services with respect to her child, S. Mother argues (1) there was insufficient evidence to support the juvenile court’s finding that returning S to mother’s care would create a substantial risk of detriment to his physical and emotional well being; and (2) the juvenile court erred by conducting the review hearing as an 18-month review hearing pursuant to section 366.22, subdivision (a), rather than a 12-month review hearing pursuant to section 366.21, subdivision (f).
All statutory references are to the Welfare and Institutions Code unless otherwise stated. We apply the relevant code provisions in effect when the hearing in this case was held in May and June 2009. The subsequent revisions are not relevant to the issues presented here. (See Stats. 2009, c. 120 (A.B.706), § 3, eff. Aug. 6, 2009.)
Mother does not contest the order as it pertained to her older child, LD (L.H.), who also was the subject of these proceedings. We refer to LD and S collectively as “children.”
We conclude that although substantial evidence supported the juvenile court’s finding of detriment, the juvenile court prejudicially erred by conducting the hearing pursuant to section 366.22 rather than section 366.21, subdivision (f). We reverse the order terminating mother’s reunification services with respect to S, and remand for the trial court to exercise its discretion to determine whether to grant mother additional reunification services.
BACKGROUND
A. Detention
In November 2007, LD was 14 and S was 9. They were living with mother and her boyfriend, Courtney B., in Courtney’s car. On November 27, 2007, LD told an assistant principal at his high school that Courtney had punched him in the face and threatened to put him “six feet under.” Mother had been present but had failed to protect him. LD was afraid to return home and had spent the night with someone he had met at a local fast food restaurant. The assistant principal referred the matter to the Los Angeles County Department of Children and Family Services (DCFS).
An investigation by DCFS revealed that Courtney repeatedly had punched, grabbed and slapped children, and once had bloodied LD’s nose. Mother also had slapped LD in the face. DCFS also learned that mother and children recently had moved to Los Angeles from Nebraska, where mother had a child welfare history with respect to allegations that her eldest daughter had been physically and sexually abused by one of mother’s former boyfriends. DCFS detained LD in protective custody, but the social worker was unable to locate mother or S.
Mother’s daughter was not a subject of these proceedings.
DCFS filed a petition pursuant to section 300 alleging that Courtney had physically abused children on numerous occasions and that mother had failed to protect them, and that mother also had physically abused children. DCFS further alleged that mother had created a detrimental home environment by living in a car with the children for several weeks. Mother did not appear at the detention hearing. The juvenile court ordered LD detained in shelter care, and issued a protective custody warrant for S.
B. Jurisdiction/Disposition
In January and February 2008, DCFS reported that the whereabouts of mother and S was unknown, although there was information that they had gone back to Nebraska. LD remained placed in foster care. A psychologist reported that LD was suffering from depression and anxiety disorder.
On February 22, 2008, in mother’s absence, the juvenile court sustained the allegations in the petition and declared both children dependents of the juvenile court. On April 15, 2008, the juvenile court found that mother’s whereabouts were unknown and denied her reunification services with respect to LD pursuant to section 361.5, subdivision (b)(1). The juvenile court ordered LD suitably placed and set the matter for a permanency planning hearing as to LD pursuant to section 366.26. The disposition hearing as to S was put over due to his continued absence.
On April 16, 2008, the Omaha police located S and placed him in protective custody. A DCFS caseworker subsequently escorted S back to Los Angeles and placed him in the foster home with LD. At LD’s request, children were placed together in a different foster home shortly thereafter.
In May 2008, DCFS reported that mother had returned to Los Angeles and had contacted DCFS to state her intent to reunify with children. Mother was staying at a homeless shelter. Three weeks later, mother filed a petition pursuant to section 388 seeking modification of the juvenile court’s order denying her reunification services with respect to LD. The juvenile court ordered a hearing on the petition, at which mother appeared. At the hearing, the juvenile court ordered DCFS to prepare a supplemental report addressing the issues raised both by mother’s petition and the pending disposition hearing with respect to S.
On June 9, 2008, DCFS filed a subsequent petition pursuant to section 342 alleging that, when she went to Nebraska with S in November 2007, mother had left LD with unknown caretakers without making provision for his care and supervision. Mother waived her right to a hearing on the petition.
DCFS reported that children had been removed from their foster home and placed in another foster home because of LD’s behavioral problems, including his physical and verbal abuse of S. Mother had expressed her desire to reunify with both children. DCFS recommended that the juvenile court grant mother’s section 388 petition, and requested discretion to place children separately if necessary.
The juvenile court sustained the allegations in the supplemental petition and granted mother’s section 388 petition. The juvenile court granted mother reunification services with respect to both children, and ordered mother to attend parent education and individual counseling to address case issues and violence in her relationships. The juvenile court also ordered both children to participate in conjoint and individual counseling. Mother was to have twice weekly monitored visitation.
The juvenile court also purported to sustain the original section 300 petition as to S and declare him a dependent of the juvenile court. The juvenile court, however, had declared S a dependent child on February 22, 2008, when it expressly found that “both children are persons described by section 300....” (Italics added.)
C. Six Month Review
In November 2008, DCFS reported that both children were exhibiting behavioral problems so severe that DCFS had been forced to separate them and was having difficulty finding stable placements. S, for example, had been suspended from school for fighting, was defiant toward his foster parents, and had trouble with lying and being manipulative. LD told DCFS that his visits with mother had been good, but he was “not in a hurry to return home to her” and he did not want things to be the same as they had been in the past. S told DCFS that, although things were fine in his foster home, he missed mother and wanted to be home with her.
Mother was homeless and had been “floating” from place to place or residing in a Salvation Army homeless shelter. Mother told DCFS that LD had lied about being abused by Courtney; the truth, mother said, was that he had been “jumped” after school. Mother had started a six-month program at Latina Family Center in June 2008, where she was participating in substance abuse, parenting and individual counseling. DCFS had learned, however, that mother’s therapist was not licensed and the instructor of her first parenting program was uncertified. Accordingly, mother still had to complete her therapy and parenting classes with qualified professionals. Mother’s visits with children had been “good.” Mother, however, had been having unmonitored visits with children, in violation of the juvenile court’s order for monitored visitation only. DCFS recommended that mother continue to receive reunification services. At the review hearing, mother contested whether DCFS had provided reasonable services with respect to her therapy, and the matter was set for a contested hearing.
Prior to the contested hearing, DCFS reported that LD had attempted suicide and had been hospitalized because he remained at risk of harming himself. S continued to have behavioral problems that had made it impossible to keep him in a stable placement. He had told his foster parent that, while he was with mother, they had been homeless and lived on rooftops, in the streets and in motels; that children had not attended school; and that all of mother’s boyfriends but two had beaten children up. When confronted by S’s foster parent, mother denied that her boyfriends beat S up.
DCFS also reported that it was concerned with mother’s progress in her case plan. Mother’s counseling program reported that mother’s attendance and progress were good. She had enrolled in a new parenting program with a certified instructor, and had attended 10 sessions. But mother had on several occasions told the social worker that LD had lied about being beaten up by her boyfriend and that he had been injured because he was jumped at school. Mother had also denied any physical abuse of children at a team decision-making meeting in mid-November 2008, and stated that LD’s behavioral problems were the cause of the family’s involvement with DCFS. Mother also had been dilatory in following up on referrals for individual therapy. DCFS concluded that mother had “made very little progress with taking responsibility for the choices and actions that she has taken in the past and how they have negatively affected her children,” and recommended that mother participate in therapy to address that issue. DCFS continued to recommend that mother receive further reunification services.
At the contested hearing, the juvenile court accepted into evidence the relevant DCFS reports and took judicial notice of the entire court file. Mother’s attorney cross-examined the social worker on the issue of the efforts she had made to ascertain whether mother’s counselor at her program was a licensed therapist. The juvenile court ruled that DCFS had failed to provide reasonable services to mother for a period of six weeks.
D. Twelve Month Review/Eighteen Month Review
The next review hearing was set for May 2009. The hearing was noticed as an 18-month review hearing pursuant to section 366.22, rather than as a 12-month review hearing pursuant to section 366.21, subdivision (f), and the juvenile court conducted the hearing as an 18-month review hearing.
DCFS reported that LD had stabilized in his group home, but had ongoing issues with his behavior. LD was taking psychotropic medication to treat his mood disorder, and he had seemed more happy and hopeful after his discharge from the hospital. But his behavioral problems had resurfaced, and he was doing poorly in school. He exhibited a flat affect and generally depressive behavior. LD informed the social worker that his visits with mother and S were good and that he would like to return to mother, but not if the family was homeless.
S continued to have behavioral problems such as stealing, lying, bed wetting and hitting other children at school. He was also struggling with his grades and was working below grade level. Because of his behavior, another foster parent had asked DCFS to remove S from her home. S reported that his visits with mother and LD were good. S said that he wanted to return to mother, but expressed anxiety that things would be the way they had been in the past. S did not want to live in a shelter.
DCFS reported that mother generally was in compliance with her case plan. She attended therapy regularly and participated in the sessions. Her therapist indicated that mother was motivated to reunify with children and that she had learned from her experience. Mother was willing to engage in family therapy with children, but had not yet done so. Mother had been employed briefly, but she had quit after about three weeks. Mother’s visitation with children was going well; she had been granted unmonitored day visits with children. Mother still had no permanent residence, however. She had been residing in a Salvation Army homeless shelter that would not accept children. She told DCFS that she would be moving into a new shelter in Whittier that would accept children up to the age of 16. Although LD would turn 16 in two weeks and would no longer be eligible to stay there, mother told DCFS that the staff of the shelter would help her find another home then. DCFS recommended that the juvenile court terminate mother’s family reunifications services and set the matter for a permanency planning hearing pursuant to section 366.26. Mother contested DCFS’s recommendation and sought return of the children. The matter was set for a contested hearing.
Prior to the contested hearing, mother’s therapist informed DCFS that mother had not attended her therapy sessions in five or six weeks, that mother had “fallen off,” and that she needed to continue with therapy and required closer supervision. The therapist told DCFS that it would be “a good idea” for mother to continue her therapy. The therapist thereafter contacted mother and scheduled a session with her, but mother missed the session, claiming she had an appointment to go to in Long Beach.
DCFS reported that mother remained unemployed. She had moved to a new Salvation Army homeless shelter in Whittier. The shelter’s manager informed DCFS (contrary to mother’s earlier representations) that the shelter accepted children only if they were under the age of 12, and that mother was aware of that when she moved in. Residents were required to leave the shelter by 7:00 a.m. each day and could not return until after 4:00 p.m. The manager told DCFS that the Rio Hondo Temporary Housing facility might be able to assist mother. The Rio Hondo program offered temporary housing for 18 months to two years, and accepted children up to the age of 18. But mother had to have custody of at least one of her children to be eligible for the housing program. DCFS maintained its recommendation to the juvenile court to terminate family reunification services, stating that mother had no suitable housing, would have difficulty providing for the family financially, and was inconsistent in her therapy.
In a supplemental report, DCFS reported that LD’s behavior and emotional condition had deteriorated. He had failed all of his classes at school, and he had begun to exhibit symptoms of bipolar disorder.
At the contested hearing, the juvenile court received into evidence the DCFS reports and a letter from the Salvation Army indicating that S could reside with mother at her current shelter. Mother testified that she understood that a place was available at the Rio Hondo facility. She had no income other than food stamps, but she was looking for a job. Mother testified that, at present, she could not support children if they were returned to her, although she could apply for assistance until she got a job. She had not been attending her therapy sessions because she either was visiting with children or looking for a job. The parties stipulated that, if called, the children would testify that they wished to return to mother’s custody.
The juvenile court found that mother was not in compliance with her case plan. Both children had special needs that were causing a lot of stress to their caretakers, and mother had a history of inappropriate discipline and entering into relationships with men who inappropriately disciplined children. Mother had no appropriate housing, and her explanation for why she had stopped her court-ordered individual therapy was not credible. Her plan for obtaining housing at Rio Hondo was not concrete enough for the juvenile court to conclude that the children would be safe if returned to mother’s care. Accordingly, the juvenile court terminated mother’s family reunification services.
The parties stipulated that there was no clear and convincing evidence that children would be adopted, and the juvenile court ordered children into a planned permanent living arrangement of foster care. Mother timely appealed.
DISCUSSION
A. Substantial Evidence
Mother argues that there was no substantial evidence at the final review hearing to support the juvenile court’s finding that returning S to her care would be detrimental as creating a substantial risk to his safety, protection or well-being. We disagree.
1. Applicable Principles and Standard of Review
At the 18-month review hearing, the juvenile court must return a dependent child to the custody of his or her parent “unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) The social worker bears the burden of establishing detriment. (Ibid.) “The standard for showing detriment is ‘a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.’ [Citation.] Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child’s physical or emotional well-being. [Citations.]” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).) “When we are considering whether to deprive a parent of custody, we are concerned only about his or her grasp of the important parenting concepts—things such as a child’s need for security, adequate nutrition and shelter, freedom from violence, proper sanitation, healthcare, and education.” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790 (David B.).)
We address in Part B, post, mother’s contention that the hearing should have been conducted as a12-month review hearing pursuant to section 366.21, subdivision (f).Because sections 366.21, subdivision (f) and 366.22, subdivision (a) both require the juvenile court to make a finding whether return of the child would be detrimental, it is irrelevant for purposes of this issue whether the hearing was properly denominated a 12-month review hearing or an 18-month review hearing. For purposes of consistency and convenience, we refer in this Part A to section 366.22.
In assessing detriment, the juvenile court must consider the “efforts or progress... demonstrated by the parent... and the extent to which he or she availed himself or herself of services provided....” (§ 366.22, subd. (a).) Indeed, a parent’s failure “to participate regularly and make substantive progress in court-ordered treatment programs” constitutes “prima facie evidence that return would be detrimental.” (Ibid.) On the other hand, a parent’s technical compliance with a reasonable reunification plan does not preclude a finding of detriment if the parent nevertheless failed to ameliorate the reasons justifying the child’s continued detention. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1140, 1143 [compliance with case plan insufficient when parent failed to achieve plan’s objectives]; In re Joseph B. (1996) 42 Cal.App.4th 890, 901 [compliance with case plan did not require return of child when finding of detriment was based on risk of harm different from that which originally justified juvenile court jurisdiction].)
We review the juvenile court’s finding of detriment for substantial evidence. (Yvonne W., supra, 165 Cal.App.4th at pp. 1400-1401.) “We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
2. Application
The juvenile court’s finding of detriment was based on the following factors: (1) mother was not in compliance with her case plan with respect to her individual therapy, and her explanation for why she was not in compliance was not credible; (2) S had special needs that created stress on his caretakers, whereas mother had a history of inappropriate discipline and of entering into relationships with men who inappropriately disciplined children; and (3) mother’s plan with respect to providing for S’s needs was not concrete enough to persuade the juvenile court that it would be safe to return S to her care. There was substantial evidence to support the juvenile court’s findings on each of these factors, which established a substantial risk of harm to S sufficient to sustain the juvenile court’s finding of detriment.
a. Mother’s Compliance with Her Case Plan
Mother made her first appearance before the juvenile court on June 9, 2008, at which time she signed a court-ordered case plan that included individual counseling “to address case issues and violence in relationships.” Mother’s case issues included the sustained allegation that mother had failed to protect LD from physical abuse by her boyfriend, and that mother personally had physically abused LD by striking him in the face and body. The physical abuse perpetrated against LD also put S at risk of physical and emotional harm. Mother, however, did not enter individual therapy on those issues with a qualified therapist for more than six months—until December 29, 2008. Although the juvenile court found that DCFS was responsible for delaying mother’s treatment for six weeks, mother was responsible for more than four months of delay.
Mother stopped seeing her therapist in mid to late April 2009. By the time of the review hearing, she had not seen her therapist for 6 to 8 weeks. Mother’s therapist told DCFS that, in his opinion, mother should “‘should be continuing therapy,’” and that he was “‘concerned’” that mother had not seen or called him. Earlier in her therapy, mother had been more “‘consistent and responsible,’” but recently she had “‘fallen off’” and needed “‘to be supervised a lot closer.’” Mother’s therapist opined that, due to her impoverished upbringing, mother had “‘not learned’ how to live.” There was thus evidence that mother had participated in court-ordered therapy for only four months; she had ceased therapy without the assent of her therapist, DCFS or the juvenile court; and she had not yet achieved the objectives of her therapy. Although mother attempted to explain why she had stopped therapy, the juvenile court found her explanation insufficient and not credible.
In addition, by the time of the review hearing, mother had participated in only three or four sessions of conjoint family therapy with children. Yet DCFS reported that mother and children still had “many things” to work through in family therapy, including S’s anxiety about his visits with mother and the anxiety he expressed about the prospect of returning to live with mother in a shelter.
Mother asserts that “DCFS apparently dropped the ball” with respect to family therapy. That assertion is not supported by the record. The record indicates that several appointments were scheduled, but that either mother or one of the children failed to attend for reasons not within the social worker’s control.
Accordingly, there was substantial evidence that mother had not complied with her case plan. The juvenile court also could reasonably conclude that, to the extent mother had complied, she had not achieved the plan’s objectives. (See In re Dustin R., supra, 54 Cal.App.4th at p. 1143.) Because mother failed to comply with her case plan, this alone was sufficient to support a finding of detriment. (§ 366.22, subd. (a) [failure “to participate regularly and make substantive progress in court-ordered treatment programs” constitutes “prima facie evidence that return would be detrimental”].)
b. S’s Special Needs
The evidence was ample and undisputed that S exhibited negative behaviors that caused substantial difficulties for his caretakers. Between his return from Nebraska in April 2008 and the final review hearing in June 2009, S had at least seven different foster home placements. He suffered from both anxiety and problems with impulse control. In the space of one year, S had been suspended from school three times for fighting and once for sexually harassing another student. He was defiant and disrespectful toward adults; he lied; he stole; he intimidated and was violent toward other children in his foster homes; and he had persistent problems with bed wetting. One of his foster parents remarked that S was difficult to work with because he did not try to change his behavior. He was receiving weekly individual counseling both at school and at a counseling center.
The juvenile court reasonably could conclude that parenting a child who exhibited these behaviors would, in the juvenile court’s words, “create a lot of stress” for mother. The juvenile court reasonably could be concerned that such stress would be magnified by placing a child who exhibited such behaviors in what appeared to be a structured shelter environment at the Salvation Army. Mother’s case issues, as the juvenile court observed, included a history of inappropriate discipline and failing to protect children from inappropriate discipline by others. As discussed, there was substantial evidence that mother had not fully addressed those issues through therapy. Accordingly, the juvenile court reasonably could conclude that there was a substantial risk that mother would discipline S inappropriately if she was repeatedly stressed by his negative behaviors.
c. Mother’s Plan for Providing for S
Substantial evidence also supported the juvenile court’s conclusion that mother’s plan with respect to providing for S’s needs was not concrete enough to demonstrate that it would be safe to return S to her care. Mother was unemployed and had been unemployed for most of the reunification period. Her only income was food stamps. She had taken one job and held it briefly, but she had quit—notwithstanding her lack of alternative employment—apparently because the job did not meet her expectations. There was no evidence that mother had any prior work history or marketable skills. She had not yet applied for housing at Rio Hondo, and there was no guarantee that mother would obtain housing there even if S was returned to her care. Mother could stay in her current housing for only a few months more, and she could stay that long only if she and S “follow[ed] all house rules.” In short, there is evidence that mother had no present ability to meet S’s financial needs, and her plans for providing him with suitable housing were either contingent or short term. This is not an issue of separating a parent and child because of poverty (Yvonne W., supra, 165 Cal.App.4th at pp. 1401-1402; David B., supra, 123 Cal.App.4th at p. 793). The children were not removed from mother’s care because of her poverty, but because they had been physically abused. The evidence showed that mother could not provide for S’s basic needs and that returning S to mother’s care would subjected him to the same risks that resulted in his detention. Based on all of the foregoing, the juvenile court reasonably could conclude that returning S to mother’s care presented a substantial risk of detriment to his safety, protection, or physical or emotional well-being.
d. Mother’s Arguments
Mother argues, in essence, that her failure to attend therapy was immaterial because she otherwise had complied with her case plan; her therapist had opined before mother started missing her therapy appointments that mother had addressed her case issues; and there was no demonstrable “link” between mother’s missed therapy appointments and a likelihood that she would physically abuse S in the future. Mother further argues that there was no evidence linking mother’s housing situation to a risk of future physical abuse, and that this case did not originate due to children’s special needs nor was there evidence that mother could not manage S’s behavior. We are not persuaded.
Mother’s arguments rely heavily on a progress report from mother’s therapist dated April 15, 2009. In that report, mother’s therapist stated, “Issues discussed [with mother] had to do with her son being placed due to his being unprotected by [mother] and suffering physical abuse. She vows that this will not happen again. Another important issue addressed had to do with her poor choice of partners who have had a propensity towards violence. Again she seems to have learned from this poor choice particularly as this puts her and her children at risk.” The therapist concluded, “On the whole [mother] has been motivated, cooperative, and I believe ready to resume custody of her children as family counseling is completed or near completion.”
Mother characterizes the therapist’s progress report as establishing “mother had admirably addressed and resolved” the problems relating to the physical abuse of her children, such that mother’s subsequent missed therapy sessions were, essentially, immaterial to her compliance with her case plan. We do not believe the progress report supports mother’s conclusion that she had “resolved” her case issues. It is one thing to make a vow; it is quite another to keep it. Similarly, one might reach an intellectual understanding of why certain behaviors are harmful, and yet have great difficulty altering one’s behavior in accordance.
When the progress report was written, mother had been in individual therapy less than four months, and she had seen her therapist only eight times. The report stated that mother had “vowed” not to let children suffer physical abuse again, and that she “seem[ed]” to have learned that her poor choices put her and her children at risk. But the report did not state that mother had “resolved” her issues, or that there was no substantial likelihood that she would repeat the behaviors that had put the children at risk. Moreover, the therapist stated that, in his opinion, mother would be ready to resume custody when family counseling was “completed or near completion.” But family counseling had not begun at the time of the progress report, and mother had attended only a few sessions of family counseling by the time of the review hearing. Our conclusion is further supported by the therapist’s subsequent statements to DCFS that mother needed to continue with her therapy and needed to be supervised “a lot closer.” Accordingly, we reject mother’s assertion that substantial evidence is lacking to show that she had not “resolved” her issues by the time she stopped going to her therapy.
We also reject mother’s argument that there was no “link” between her missed therapy appointments and a risk that she would perpetrate or permit physical abuse against S. There was substantial evidence that mother had not resolved her issues in therapy. Her proposed living arrangement, as discussed, required her to mother a child with problematic behaviors—including defiance toward adults, violence toward other children, stealing, lying, and chronic bed wetting—in a homeless shelter environment, where a violation of the shelter’s rules would (according to the shelter) result in mother and S losing their place. As explained, it was reasonable for the juvenile court to conclude that, when placed under such stress, there was a substantial risk that mother would engage in abusive behaviors, as she had done in the past. The juvenile court also reasonably could conclude that, given that trained and licensed educators and foster parents had been unable to manage S’s negative behaviors, mother also would be unable to manage them.
The cases that mother relies on are distinguishable. In Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.), the mother’s young children were taken into protective custody after she left them unattended in a motel room while she went to work, after the babysitter she had arranged failed to arrive. (Id. at p. 1328, 1343-1344.) There was no allegation or evidence that the mother’s neglect was drug related, but mother told social services that she occasionally smoked marijuana. (Id. at p. 1330.) The mother was ordered to test twice weekly for drugs, and after testing positive for alcohol she enrolled in and completed a drug treatment program. (Id. at p. 1331, 1342.) Over the eleven months preceding the 18-month review hearing, the mother had 95 drug testing obligations. She missed nine tests; tested positive for marijuana once; and tested negative 84 times. (Id. at p. 1343.) The mother otherwise was in full compliance with her case plan. (Id. at pp. 1345-1346.) The Court of Appeal held that, although mother had not strictly complied with her case plan, her compliance was substantial. There was no evidence that mother’s lapse of judgment in leaving her children unattended was related to drug use, or that the mother’s occasional marijuana use presented a substantial risk of harm absent evidence that mother abused drugs or had been diagnosed as having a substance abuse problem. Moreover, the social worker had testified that he did not believe the mother had a drug problem that affected her parenting skills. (Id. at p. 1346.)
Unlike Jennifer A., supra, 117 Cal.App.4th 1322, here there was substantial evidence that mother had not complied with her case plan, and that her noncompliance was directly related to the issues that had led to the children’s detention. The children were detained because of physical abuse perpetrated and permitted by mother. Mother was ordered by the juvenile court to obtain individual counseling to address those issues. As discussed, there was substantial evidence that mother had failed in a material respect to comply with her case plan to obtain such treatment. The circumstances in Jennifer A. are thus inapposite.
In Rita L. v. Superior Court (2005) 128 Cal.App.4th 495 (Rita L.), the child was detained at birth due to prenatal exposure to amphetamines and alcohol. (Id. at p. 498.) The mother fully complied with her case plan, the social worker recommended returning the child to the mother, and the juvenile court told the mother that her performance during the reunification period had been exemplary. (Id. at p. 506.) The mother then took a Tylenol with codeine to relieve a headache; the drug had been prescribed for the mother’s adult daughter. (Id. at p. 502.) The mother appeared for a regular drug test and informed the tester and her social worker that she had taken the drug; mother tested positive. (Ibid.) The juvenile court reversed itself and, based solely on the positive drug test, terminated mother’s reunification services. (Id. at p. 506.) The Court of Appeal reversed, holding that the positive drug test by itself was insufficient to support the conclusion that the child could not be returned to mother when mother had no history of abusing prescription drugs, and there was no evidence that the one incident was likely to lead the mother to backslide into more serious drug use. (Ibid.) The facts in Rita L. bear no resemblance to the facts in this case.
In David B., supra, 123 Cal.App.4th 768, a father had no contact with his infant child after her mother disappeared with her. Five months later, the child was detained from the mother’s care. (Id. at p. 774.) The father was unable to take custody of the child at the outset of the proceedings because he was unemployed and had no fixed residence. (Id. at p. 775.) During the reunification period, however, the father “found and maintained work even while maintaining a regular visitation schedule, attending classes, making testing appointments, and meeting with social workers. The record also reflected that [the father] had substantial family support, not the least of which came from his sister and her husband [with whom he resided]. There was evidence that [the father had] sufficient resources to provide for [the child] as long as they were permitted to remain in his sister’s home.” (Id. at p. 793.) In contrast, in this case mother had no job and no prior work history; she had no family support; she had only contingent or short term plans to provide adequate housing for S; and she had failed to comply with her case plan in a material respect. The decision in David B. does not alter our conclusion.
In Yvonne W., supra, 165 Cal.App.4th 1394, the mother’s older child was found a dependent of the juvenile court based on the mother’s use of marijuana and her arrest on drug-related charges. (Id. at p. 1397.) The mother complied with her case plan and, during the reunification period, gave birth to another child for whom she cared and provided a safe environment. (Id. at p. 1398.) At the time of the 18-month review hearing, the mother was residing in a shelter residence where she could remain for two years. (Ibid.) At the 18-month review hearing, the juvenile court found that the mother was in full compliance with her case plan, but nevertheless found that returning the older child to the mother would be detrimental because the older child “had expressed fear, anxiety and unhappiness with [the mother’s] living arrangement.” (Id. at p. 1399.) The Court of Appeal reversed, holding that “nothing in the record shows that conditions at the shelter pose a risk of harm to [the older child] in any identifiable way.” (Id. at p. 1401.)
Unlike Yvonne W., supra, 165 Cal.App.4th 1394, S was detained not because of mother’s drug use but because of her history of both using and permitting physically abusive discipline, and there was substantial evidence that mother had quit her therapy before that problem fully was resolved. Mother was not housed in a long-term shelter residence, but was in a homeless shelter that she had to vacate during the day every day. She could remain in the shelter for a few months more at most, and she could be evicted at any time for a violation of the shelter’s rules. As discussed, there was substantial evidence to support the juvenile court’s finding of detriment, based on mother’s history of physical abuse, S’s particular behavioral problems, and the nature of the shelter environment in which mother and S would reside. Accordingly, the decision in Yvonne W. is not determinative here.
B. Failure to Apply Correct Statute
In general, if a child is older than three when detained, then the child’s parent presumptively is entitled to reunification services for a period of 12 months. (§ 361.5, subd. (a)(1)(A); see also In re Marilyn H. (1993) 5 Cal.4th 295, 308.) At the 12-month review hearing, the juvenile court may continue reunification services for up to six additional months—that is, through the 18-month review hearing—if it finds either “a substantial probability that the child will be returned to the physical custody of his or her parent... and safely maintained in the home” prior to the 18-month review hearing, or that DCFS failed to provide reasonable reunification services. (§ 366.21, subd. (g)(1).) At the 18-month review hearing, the juvenile court has no such discretion. Section 361.5, subdivision (a)(3) provides that reunification services “may be extended up to a maximum time period not to exceed 18 months....” (Italics added.) Except in extraordinary circumstances, the juvenile court has no discretion to continue reunification services after the 18-month review hearing—the juvenile court must either return the child to the parent, or terminate the parent’s reunification services. (L.A. County Dep’t of Children etc. Servs. v. Superior Court (1997) 60 Cal.App.4th 1088, 1092 [order extending reunification beyond 18 months exceeded juvenile court’s jurisdiction and was abuse of discretion].)
There is authority that the juvenile court has discretion to extend services beyond 18 months if it finds that the social services agency failed to provide reasonable services (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1214) [see discussion post], or the family has special needs that amount to extraordinary circumstances. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1793-1796; see also Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) In addition, effective January 1, 2009, sections 361.5, subdivision (a)(3) and 366.22, subdivision (b) were amended to permit the extension of reunification services up to 24 months to certain parents in substance abuse programs or who were recently discharged from incarceration or institutionalization. (See generally, Seiser et al., California Juvenile Courts Practice and Procedure (2010 ed.) § 2.154.)
The final review hearing held in this case was noticed by DCFS and conducted by the juvenile court as an 18-month review hearing pursuant to section 366.22, subdivision (a). DCFS concedes that, although this was correct with respect to LD, the hearing with respect to S should have been noticed and conducted as a 12-month review hearing pursuant to section 366.21, subdivision (f). We accept the concession. Because the juvenile court conducted the hearing pursuant to section 366.22, subdivision (a) rather than section 366.21, subdivision (f), the juvenile court did not exercise its discretion under the latter provision to determine whether to extend reunification services for mother. This was error.
When the hearing at issue here was held in May and June 2009 (see fn. 1, ante), section 366.22, subdivision (a) required the juvenile court to hold the 18-month review hearing “within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian.” (See also California Rules of Court, rule 5.720 [“no later than 18 months from date of the initial removal”]; id. rule 5.502(18) [defining “initial removal” as “the date on which the child... was taken into custody by the social worker or a peace officer”].) S was removed from mother’s custody in April 2008, only 14 months before the juvenile court terminated mother’s services.
DCFS argues that mother forfeited the error by failing to object. We disagree. The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) In this case, the issue of whether the review hearing should be conducted pursuant to section 366.21, subdivision (f) or section 366.22 was raised a full five months before the hearing. At the six-month review hearing on December 16, 2008, counsel for DCFS argued that the six-month review hearing actually should have been a twelve-month review hearing pursuant to section 366.21, subdivision (f). The juvenile court ruled sua sponte that the next review hearing—the hearing at issue here—would be “a.22 hearing... because I think this [hearing] should have been a.21(F).” Mother’s counsel objected and argued that no hearing should be set until the court ruled on whether DCFS had provided reasonable reunification services in the prior reunification period. The juvenile court stated, “Doesn’t matter. We’re going to the [next hearing] date. You’re getting another six months. [¶]... [¶] What you’re concerned about is what kind of hearing is that going to be.21(E),.21(F), or.22. We can deal with that in the next six month date.” Mother’s counsel raised the issue again at a hearing on February 18, after the juvenile court ruled that DCFS had failed to provide reasonable reunification services prior to the six-month review hearing. Counsel for mother asked whether, notwithstanding its ruling, the juvenile court still would deem the next review hearing to be a section 366.22 hearing. The juvenile court answered, “It’s still a.22 hearing.” No further objection was necessary to preserve the issue. The record does not support the contention that mother invited the error. In any event, the issue is purely one of law that is not automatically subject to forfeiture. (In re V.F. (2007) 157 Cal.App.4th 962, 968.)
The issue is thus whether the juvenile court’s error requires reversal. Error is prejudicial only if it is reasonably probable that the result of the hearing would have been more favorable to mother but for the error. (In re Celine R. (2003) 31 Cal.4th 45, 59-60.) In this case, mother’s failure to attend individual therapy for a period of seven or eight weeks was easily remediable, if mother had the time. S wanted to return to mother, and his attorney advocated that mother should be granted additional time to reestablish herself in individual counseling and participate in conjoint counseling with children. Given mother’s past compliance with her case plan and the evidence of mother’s efforts to find work and suitable housing, there was ample evidence to support a finding that there was a substantial probability that S would be returned to mother if she were provided an additional four months of reunification services. (§ 366.21, subd. (f).) Accordingly, there is a reasonable probability that the juvenile court would have extended mother’s services had it exercised its discretion under section 366.21, subdivision (f).
DCFS argues that, even if the juvenile court had applied the correct statute, it still would not have extended mother’s services because it refused to extend her services based on its finding that DCFS failed to provide reasonable services for six weeks during the first reunification period. But we cannot infer from that denial that the juvenile court would not have extended mother’s reunification services under the proper legal standard. The issue decided by the juvenile court at the erroneous section 366.22 hearing was whether to grant mother an additional six weeks beyond the 18-month cutoff, during which she could accomplish relatively little. The issue the juvenile court would have decided at a section 366.21, subdivision (f) hearing was whether to grant mother four months of additional reunification services within the 18-month cutoff, during which mother could have made material progress. The two issues are not analogous.
Moreover, it does not appear that the juvenile court considered the factual issue posed by section 366.21, subdivision (f) when it denied mother’s request—specifically, whether there was a substantial probability that S could be returned to mother within the next reunification period. Rather, it appears the juvenile court denied mother’s request because it believed mother’s noncompliance with her case plan during the last reunification period had, in effect, cancelled out DCFS’s failure to provide reasonable services during the first reunification period, so that mother was not entitled to an extension beyond the 18-month cutoff on that basis. The juvenile court did not make nor can we imply a factual determination that mother would be unable to reunify with S if she was provided additional services.
The juvenile court made no express findings and did not separately state its reasons for denying mother’s request. As discussed, at the six-month review hearing, the juvenile court found that DCFS had failed to provide reasonable services with respect to mother’s therapy for a period of six weeks. The juvenile court did not extend the first reunification period based on that finding, however, because it already had continued mother’s services for the next six-month reunification period. The juvenile court indicated that it was unsure whether mother might be entitled to an additional six weeks of services beyond the 18-month cutoff, but it stated that the issue would become moot if mother was not complying with her case plan: “If she’s not participating,” the juvenile court stated, “then it’s going to become a moot issue.” Counsel for DCFS reminded the juvenile court of that statement twice during the course of her argument at the final review hearing. By the time of the final review hearing, mother had not been participating in her therapy for six to eight weeks—a period equal to or longer than any extension to which she might have been entitled.
When the juvenile court has failed to exercise discretion conferred by law or has applied the wrong legal standard, the proper remedy is to reverse and remand for a rehearing. (In re Charlisse C. (2008) 45 Cal.4th 145, 167 [remand for rehearing is proper remedy when juvenile court applied wrong legal standard]; Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1181 [“remand to allow trial court to exercise discretion is proper after reversal for failing to exercise discretion”]; In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1091 [juvenile court’s failure to exercise discretion conferred by law “constituted the denial of a fair hearing and deprivation of fundamental procedural rights compelling reversal”].)
DISPOSITION
The juvenile court’s order terminating mother’s reunification services with respect to S is reversed. The matter is remanded to the juvenile court for a hearing in compliance with section 366.21, subdivision (f).
I concur: KRIEGLER, J., TURNER, P. J.
I would affirm. This is a clear case of parental unfitness. The error in the reference to the Welfare and Institutions Code section does not warrant reversal because the issue has been forfeited as explained by the Department of Children and Family Services and there is no reason to believe the juvenile court would exercise its discretion any other way given the similarity in the issues present in Welfare and Institutions Code sections 366.21, subdivision (f) and 366.22, subdivision (a) hearings. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Celine R. (2003) 31 Cal.4th 45, 60.) In fact, to exercise discretion differently would be an extraordinary abuse of discretion given the juvenile court’s duty to protect the two children. (Welf. & Inst. Code, § 202, subd. (d); see Renee J. v. Superior Court (2001) 26 Cal.4th 735, 750-751.)