NATALIE D., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party In Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Petitioner Natalie D. (mother) seeks extraordinary review of an order terminating family reunification services and setting a hearing to develop a permanent plan for her son, Eduardo L. (Eduardo) pursuant to Welfare & Institutions Code section 366.26.1 (Cal. Rules of Court, rule 8.452.) We deny the petition, finding no merit in mother's contentions that the juvenile court erred by not returning Eduardo to her care and incorrectly calculating the section 366.21, subdivision (g) 18-month date.
I. PROCEDURAL HISTORY AND STATEMENT OF FACTS
Detention. Mother, who tested positive for amphetamine use at Eduardo's birth in June 2008, admitted she used methamphetamine frequently over a nine-year period. Prior to becoming pregnant, she used primarily crystal methamphetamine, but denied using any drugs during her pregnancy other than flu medication (exact name unrecalled) when she was about six months pregnant.
Two hospital nurses reported that mother cried while in bed, constantly asked to go outside, and had failed to demonstrate good bonding with Eduardo. One nurse noted that mother had to be instructed to change Eduardo's diapers and clothing, and that on three occasions the nurse had to instruct mother and her grandmother 2 that Eduardo needed to be held during feedings and that it was unsafe to feed him while he was lying in his crib. A second nurse reported that she had concerns regarding mother's ability to care for an infant, and that mother had not been forthcoming with respect to a “lot of information,” though her demeanor and attitude had always been appropriate.
Initially, Eduardo was not experiencing any type of drug withdrawal symptoms. Later, however, he was placed on an extended hospital hold because he was exhibiting withdrawal symptoms consisting of vomiting after feedings, and appearing “jittery, anxious, and small.”
Mother told the social worker that prior to becoming pregnant she worked as a gardener and landscaper. Mother was currently residing in her maternal grandmother's home, but was going to have to move because the house was in foreclosure and her grandmother's whereabouts were unknown. Mother did not know where she would live once she left her grandmother's home.
Mother was not opposed to participating in counseling and a drug rehabilitation program.
Dependency petition. The Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on July 3, 2008, alleging Eduardo was at risk of harm due to mother's substance abuse and his father's failure to provide.3
Detention hearing. At the July 3, 2008 detention hearing the juvenile court found a prima facie case for detaining Eduardo, and ordered DCFS to provide mother with reunification services and program referrals. Mother was granted monitored visitation two to three times a week. DCFS was given the discretion to release Eduardo to any appropriate relative. Father was found to be an alleged father.
Pretrial resolution conference. A pretrial resolution conference was held on July 30, 2008. In a report prepared for the hearing, mother claimed her pregnancy was planned. She denied knowing what methamphetamine was; previously disclosing that she had a nine-year history of drug use; and using any inappropriate substances other than cigarettes during her pregnancy.
Both father and mother claimed that once released from prison father planned to be involved in Eduardo's care. Father expected to be released in December 2009.
Father denied any knowledge of drug use by mother. A maternal aunt who claimed familiarity with signs of drug use because her father and the husband of her children were heroin users, disclaimed drug abuse by mother. The maternal aunt opined that mother would know better than to use drugs in front of her.
A maternal uncle had heard that mother had “smoked weed,” but was unaware of any other drug use. He also knew that one of mother's former boyfriends was involved in methamphetamine. According to the maternal uncle, the maternal grandfather was a heavy heroin user for many years and that ‘ “was [their] example to stay away from the stuff.” ’
A hospital nurse advised that a drug test was administered to mother because her prenatal care was poor during the last three months of her pregnancy, and this was often an indication of drug use. Mother consented to the drug screening. She denied drug use to hospital staff despite the positive toxicology report.
Mother's criminal history included an October 12, 2004 warrant for theft and an entry dated December 14, 2007, involving “[g]rand theft: money/labor/prop.”
Shortly after Eduardo's birth, mother enrolled in a drug program called El Proyecto Del Barrio, but had attended only three of nine possible group sessions after enrolling. She had been drug tested once, but the results were still pending as of the date of the July 30, 2008 pretrial resolution hearing.
DCFS recommended that mother be offered reunification services, and that father be denied services.
On September 15, 2008, during another pretrial resolution conference, DCFS advised the court that it was investigating placement of Eduardo with his paternal aunt, Teresa L. (aunt).
In a report prepared for the hearing, DCFS advised that mother was having mostly consistent three-hour weekly visits with Eduardo.
Adjudication hearing. At the October 27, 2008 jurisdiction hearing, DCFS advised the court that it was planning to detain Eduardo with aunt after the hearing.
Though mother remained enrolled in El Proyecto Del Barrio and was compliant with group participation, overall behavior, appearance and grooming, and had been following instructions, her participation was sporadic. In July 2008, she attended five of the 14 required sessions. In August, she attended 13 of the 21 days required. In September 2008, she attended nine of the 21 required sessions. In October 2008, she attended eight of the 17 required sessions. Mother produced five negative drugs tests, and missed one drug test. Mother was not in compliance with the 12-step meeting requirement, and had not yet obtained a sponsor. According to her counselor, mother had demonstrated some improvement.
The juvenile court sustained the dependency petition, with amendments, finding that mother “has a nine year history of substance abuse including methamphetamine,” and that she had a positive toxicology screen for amphetamine at Eduardo's birth. The court concluded that mother's “use of illicit drugs endangers [Eduardo's] physical and emotional health and safety, placing the child at risk of physical and emotional harm and damage.”
Disposition hearing. At the December 10, 2008 disposition hearing, DCFS advised the court that Eduardo had been placed with aunt on October 28, 2008.
Mother was doing well in her outpatient drug program. Her attendance was good and she had not produced any positive drug tests. She was also on a waiting list for an inpatient drug program.
The juvenile court ordered reunification services for mother, and denied father reunification services based on his incarceration. Mother was ordered to participate in individual counseling with a DCFS approved counselor, parenting education classes, drug counseling, and random drug testing. The individual counseling was ordered to address her nine-year drug abuse history and the detrimental impact it had on Eduardo. The order specifically noted that peer counseling would not satisfy the individual counseling component of the case plan.
Six-month status review hearing. The six-month status review hearing pursuant to section 366.21, subdivision (e) was held on March 3, 2009.
DCFS reported that although mother's attendance in her out-patient drug program had become more regular by November 2008, she still was not in compliance with the 12-step meeting requirements. She had enrolled in an inpatient substance abuse program at Via Avanta in December 2008. As of the date of the report, mother had been in the program for less than a month and was adjusting to the program's structure. Mother had been testing for drugs twice monthly through Via Avanta, and all of her drug tests were negative. Mother was expected to move to phase two of the program on February 23, 2009. Since entering the program, she had been fully compliant with her case plan.
Prior to Eduardo being placed with aunt in October 2008, mother missed three scheduled visits because she failed to call and confirm the visits in advance. Mother had a monitored visit with Eduardo at the DCFS office on September 25, 2008. During the visit, she “appeared awkward and lacking in confidence in her interactions and did not seem to know what to do with a baby.” However, she listened to suggestions as to how to interact with Eduardo. On October 7, 2008, mother had another monitored visit with Eduardo at the DCFS office. She “appeared less nervous interacting with [Eduardo] and implemented suggestions.” She “remained awkward in her parent-child interactions but was trying very hard.”
Once Eduardo was placed with aunt, mother consistently visited with him, and on one occasion, walked from Sylmar to Reseda for a visit because she had not yet received her bus pass. According to aunt, mother was very dedicated to Eduardo, and would spend an entire visit holding and playing with him. However, mother was awkward in her parenting, and did not always know how to respond to Eduardo. On one occasion, prior to her admission to Via Avanta, mother became frustrated and shouted, ‘ “Why won't you stop crying?” ’ Eduardo was sick and fussy and mother did not know what to do. Although she was becoming more comfortable with Eduardo, she was a little ‘ “rough with him’ ” in that she would bounce him too much.
On January 24, 2009, DCFS liberalized mother's visitation to unmonitored at the inpatient treatment facility. The only problem during the unmonitored visits was that Eduardo became ill as a result of eating too much.
DCFS recommended continued reunification services and requested discretion to liberalize to overnight visits once mother completed her parenting program. The court set the matter for a contested hearing, and ordered DCFS to submit a report addressing release of Eduardo to mother at her inpatient treatment program.
Contested six-month status review hearing. The juvenile court conducted a contested section 366.21, subdivision (e) hearing on April 2, 2009.
DCFS reported that mother had had six unmonitored four-hour visits with Eduardo, had completed her parenting course, remained in good standing in her treatment program, and had produced four negative drug tests. DCFS provided the court with a progress report from the substance abuse program dated March 17, 2009, which documented that mother was in phase one of a three-phase program and that she was working on assignments and meeting the necessary requirements to advance to phase two of the program.
DCFS advised that mother had not yet had any overnight or weekend visits with Eduardo. Although there had not been any problems during the visits, DCFS recommended continued placement with aunt because it took Eduardo several hours to readjust after visiting with mother, and it would be detrimental to abruptly move Eduardo to mother's care in view of the bond he had developed with aunt. DCFS was “not opposed to the child being transitioned into mother's care to the treatment center, provided that mother continues to follow her case plan.”
The juvenile court maintained the suitable placement order and found that return of Eduardo to mother's care would create a substantial risk of detriment to his physical and emotional well being. The court also found that mother was in compliance with the case plan. The court continued reunification services, ordered unmonitored overnight and weekend visitation, gave DCFS discretion to permit an extended visit between mother and Eduardo, and set a progress hearing to address the possibility of returning Eduardo to mother's care.
Progress hearing. At the May 8, 2009 progress hearing to address visitation and the possibility of returning Eduardo to mother's care, DCFS reported that mother had had three eight-hour unmonitored visits and three overnight visits. DCFS had not further liberalized visits because after the visits were extended to four hours in duration, aunt reported that Eduardo took several hours to adjust to being back in her home. After the visits were extended to eight hours, Eduardo became very clingy and took about a day to adjust back to his original routine. Once the visits were extended to overnight, Eduardo became more clingy and aggressive and would scream whenever he was taken to daycare. Aunt noted that prior to the overnight visit with mother Eduardo could be left off at daycare without any issues.
DCFS noted that mother felt that having Eduardo returned to her care would be very difficult for both Eduardo and her, and would make it more difficult for her to focus on her recovery. DCFS expressed concern that rapidly transitioning Eduardo to his mother's care would have a negative impact on his ability to form bonds and in the long-term, on Eduardo's ability to form relationships.
A Team Decision Making (TDM) meeting was held on May 1, 2009, where DCFS, mother and aunt agreed that aunt would try to obtain a larger apartment so that mother could join Eduardo and aunt once mother completed her treatment program. Aunt agreed to remain at the treatment facility during part of Eduardo's visits with mother in order to assist him in acclimating to the visit.
Also, DCFS confronted mother about an outstanding warrant at the meeting. Mother denied knowledge of the warrant, but agreed to take care of the matter by discussing it with her counselor and going to court.
The juvenile court continued the case and maintained the suitable placement order.
On August 3, 2009, the juvenile court conducted another progress hearing. DCFS informed the court that mother had been incarcerated after turning herself in to resolve an outstanding warrant.
In June 2009, the social worker, while meeting with mother and her treatment counselor at Via Avanta, had again confronted mother about the warrant. Although mother previously had claimed to be working on the issue with her treatment counselor, the counselor said that mother had not discussed the issue with her and she had been unaware of the outstanding warrant. Mother was advised by both the social worker and her treatment counselor that Eduardo could not be returned to her care until she resolved the warrant. Mother told the social worker that she had delayed going to court out of fear that she would be sent to prison.
Twelve-month status review hearing. At the October 1, 2009 section 366.21, subdivision (f) hearing, DCFS reported that mother had been released from custody after serving 45 days of a one-year sentence. DCFS provided the juvenile court with a letter from mother's program stating that she had been discharged on July 13, 2009, because of her incarceration. However, on August 28, 2009, mother was readmitted. Due to disclosures mother made to the program upon her readmission, she was placed back in the orientation phase.4 Prior to her incarceration, mother had advanced to phase two of the program. Whether mother could be accelerated through phase one would depend on her progress.
DCFS also reported that Eduardo had adjusted poorly to resuming visitation with mother. Aunt noted that Eduardo began to struggle after visits were extended to eight hours and overnight. However, while visits were suspended due to mother's incarceration, Eduardo's negative behavior ceased. When visits resumed, Eduardo's behavior again deteriorated. The social worker witnessed this pattern, and it was confirmed by the child care provider. Eduardo's negative behavior consisted of being clingy with aunt, not wanting her to put him down, and aggressive towards others. DCFS also reported that other parents were threatening to remove their children from the daycare because of Eduardo's aggressive behavior. As a result, Eduardo was in danger of being removed from daycare. Aunt also reported that Eduardo would resist getting in his car seat only when he was going to visit his mother. The social worker reported that when asked about mother, Eduardo whimpered and responded with a flat affect despite the fact he previously had been smiling. Aunt reported that she did not believe mother was doing anything inappropriate during the visits.
Eduardo did not visit with mother when he was sick because according to aunt, mother did not know how to care for him. Aunt explained that on one occasion, Eduardo was running a high fever and she advised mother to put him in a cold bath. However, since Eduardo did not like being in a cold bath mother put a fan on him instead.
Mother had failed to check on Eduardo when he was sick or make any inquires as to Eduardo's medical needs despite the fact that Eduardo might require surgery for a hemangioma.5
DCFS expressed concern that mother had not been forthcoming about the warrant, had not been honest about having discussed the matter with her counselor, and had reported that the warrant was for petty theft when it was actually for grand theft. Mother admitted that she had been aware of the charge that led to the warrant and had been to court regarding it, but let the bench warrant issue when she found out she was pregnant.
DCFS reported that mother planned to have maternal grandfather help her in the future despite the fact that he had chronic substance abuse issues and currently was incarcerated. Mother had made no effort to follow up with aunt regarding her offer to find a larger apartment that could accommodate mother after her release from the inpatient drug abuse program.
Because Eduardo had developed a strong bond with aunt and had adjusted very poorly to increased visitation with mother, DCFS concluded that returning Eduardo to mother's care would be contrary to his best interests and place him at risk of emotional harm. DCFS recommended the juvenile court terminate mother's reunification services, and proceed with the selection and implementation of a permanent plan. DCFS also recommended that the juvenile court terminate overnight visits and limit visits to no more than three hours in duration.
The juvenile court set the matter for a contested hearing and terminated mother's overnight visits with Eduardo. Mother was granted unmonitored day visits at her program site and six hours per week of Gymboree classes.
Another section 366.21, subdivision (f) status review hearing was held on October 20, 2009. Mother had had two three-hour visits with Eduardo during the weekend for a total of six hours. The social worker reported that she observed over one hour of a visit that took place on October 11, 2009, wherein “[t]he child maintained a flat affect as he was passed to the mother and turned his head away. The child did not cry during the exchange. Mother smiled at the child and said, ‘Hi, Eddie.’ ” Eduardo maintained a serious affect for the first 20 to 30 minutes. Eduardo did not respond to mother. Mother tried to engage Eduardo in the playground equipment and followed him around and reminded him to be careful. Mother was able to make Eduardo laugh by blowing bubbles that he tried to catch. Eduardo did not cry, display fear, or exhibit any aggressive behaviors during his visit.
The social worker “observed that mother's parenting style is very different from [aunt's] in that mother primarily speaks to the child in her regular voice, as though speaking to an adult, and that she did not hug or kiss the child, praise the child, or tell the child, ‘I love you.’ In contrast [aunt] is very affectionate with the child giving frequent praise and physical affection, and the caregiver supervises the child closely without the frequent cautionary statements. Mother did not refer to herself as ‘mommy’ and the child did not refer to her as mommy either.” The social worker noted that Eduardo was much more affectionate and interactive with aunt and her family and friends. Although aunt encouraged Eduardo to call her “Tia,” Eduardo called her “mommy.” While it was apparent that Eduardo was not fearful of his mother and she closely supervised Eduardo during the visits, “there [was] no observable evidence of a maternal bond.”
The social worker also interviewed mother's substance abuse counselor who reported that mother was doing ‘ “much better” ’ since she returned from jail and was ‘ “taking the program seriously now.” ’ Mother would soon be eligible for phase one screening.
DCFS provided the court with the social worker's service logs. Included in the logs was an entry of January 30, 2009, that aunt reported that mother had admitted to using drugs on two occasions prior to entering the inpatient program. Mother also told aunt that she had an idea as to when she would be drug tested at her outpatient program. A second entry dated February 6, 2009, shows that the social worker did not confront mother with this information because she did not want to disclose to mother the source of the information.
The social worker opined that Eduardo's primary attachment was to aunt and her family. Although there were no apparent safety issues with respect to Eduardo's day visits with mother, it was “clear that overnight visits were highly distressing” to Eduardo. DCFS concluded that it would be detrimental for Eduardo to be reunified with mother at that time, and that it would be in Eduardo's best interest to remain placed with aunt. DCFS maintained its recommendation to terminate reunification services and set a section 366.26 hearing to select and implement a permanent plan.
Contested 12-month hearing. A contested section 366.21, subdivision (f) hearing was held on November 4, 2009. DCFS provided the juvenile court with a progress report from mother's program, and informed the court that she had passed the orientation phase of the program and had been promoted to phase one. Mother's random drug tests continued to be negative.
Mother asked the juvenile court to order Eduardo returned to her care. In the alternative, she asked for an extension of reunification services to the 18-month date, initially arguing that that date should be calculated from the date the court sustained the petition at the disposition hearing (Dec. 10, 2008). Eventually mother conceded that the operative date would be 60 days after the original detention or September 3, 2008.6 DCFS argued against Eduardo's immediate release to mother, and claimed the 18-month date was required to be calculated from the date of Eduardo's detention. Minor's counsel did not ask that Eduardo be returned to mother's custody, but did join with mother's interpretation of the calculation of the 18-month date, and asked the juvenile court to continue reunification services.
The court calculated the 18-month date from July 3, 2008, the date of Eduardo's detention. The court found that though mother had regularly and consistently visited with Eduardo, it could not find that she had made “truly significant progress” in resolving the issues that led to Eduardo's removal. The court noted that mother's attendance in her initial outpatient program had been sporadic, that she had been placed back in the orientation phase of her inpatient program after being released from custody, and that she had just recently been promoted to phase one of her inpatient program. The court also noted that mother still needed to complete the individual counseling component of her case plan, and found that her incarceration was her “own doing inasmuch as the counselor was not informed that the warrant was outstanding.” The court concluded that the warrant could have been handled much sooner “[a]nd even prior to that, mother was still in phase two and sputtering a bit in her attendance and progress.” The court terminated reunification services, and set a section 366.26 hearing. The order giving mother unmonitored day visits with discretion in DCFS to liberalize was maintained.
Mother timely filed a notice of intent to file this petition for extraordinary writ review.
Mother contends the trial court: (1) erred in finding that Eduardo was at substantial risk of detriment if returned to her care; (2) erred in refusing to extend her reunification services; and (3) improperly calculated the 18-month review date.
A. Risk of Detriment
Mother contends the evidence is insufficient to support the juvenile court's finding that there is a substantial risk of detriment should Eduardo be returned to her custody. We disagree.
We review the juvenile court's order under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency court's findings. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence is evidence that is ‘ “reasonable, credible and of solid value” ’ that would allow a reasonable trier of fact to reach the same conclusion as the juvenile court. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support the court's order, contradicted or not, we must affirm the juvenile court's decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
A juvenile court must order the return of a child to his or her parents at the 12-month review hearing unless the court finds, by a preponderance of the evidence, that returning the child to parental custody would create a substantial risk of detriment to the child's safety, protection, or emotional or physical well-being. DCFS bears the burden of establishing detriment. (§ 366.21, subd. (f).) A parent's failure to participate regularly and make substantive progress in court-ordered programs is “prima facie evidence that return would be detrimental.” (Ibid.) In making its determination, the court reviews and considers the social worker's report and recommendations, the efforts or progress demonstrated by the parent, and the extent to which he or she availed herself of services. (Ibid.)
“[T]he question whether to return a child to parental custody is dictated by the well-being of the child at the time of the review hearing; if returning the child will create a substantial risk of detriment to his or her physical or emotional well-being [citations], placement must continue regardless of whether that detriment mirrors the harm which had required the child's removal from parental custody [citations].” (In re Joseph B. (1996) 42 Cal.App.4th 890, 900.)
Substantial evidence supports the juvenile court's finding that Eduardo would be at substantial risk if returned to mother's custody. Although mother was enrolled in an outpatient substance abuse program early in the case, her participation and attendance was, for the most part, poor and sporadic. Once she entered Via Avanta, an inpatient program, her participation improved, and by December 2008, it appeared as though she was committed to her sobriety. She had complied with her case plan, completed her parenting course, and continued to produce clean drug tests.
Unfortunately, after mother's release from custody in August 2009, it became clear that she had not made as much progress as hoped. Although she was readmitted to the inpatient program, she was placed back in the orientation phase due to disclosures she made upon her readmission. Prior to her incarceration, mother had been promoted to phase two of the program. Based on her disclosures, the program concluded that she had not progressed, and most likely, even regressed in terms of her treatment. Though mother seems to argue that she was demoted to the orientation phase of the program simply because she was incarcerated, the record shows that she was demoted due to disclosures she made after she was readmitted to the program. Therefore, it was mother's disclosures, not her incarceration that led to the decision to demote her to the orientation phase.
By the time of the contested 12-month status review hearing, mother had only recently been promoted to phase one of the program. This was exactly the same phase of the program she was in at the time of the six-month status review hearing held seven months earlier. In addition, aunt advised the social worker that mother had admitted using drugs on two occasions prior to entering the residential treatment program and confided that she had an idea as to when the outpatient program would ask her to submit to drug tests, thereby calling into question the significance of her early drug tests in terms of gauging her sobriety. Finally, mother's counselor reported that since being released from custody mother was “now” taking the program seriously.7 This, taken together with mother's demotion from phase two of the program to the orientation phase, established that her participation in the inpatient program prior to her incarceration was not as positive as initially thought.
Mother did not deny having admitted to aunt that she had used drugs during the course of the dependency case, nor did she dispute that she had made disclosures to her inpatient program that led the program to demote her to the orientation phase. Mother did not object to any of this information being admitted into evidence, did not cross-examine the social worker, aunt, or the counselor. Nor did she present evidence to contradict that provided by DCFS.
The fact that mother was demoted to the orientation phase about eight months after originally entering the inpatient program, almost 14 months after Eduardo's detention, and just two months before the contested section 366.21, subdivision (f) hearing, established that she had failed to make substantive progress in her court-ordered program. This was prima facie evidence that returning Eduardo to her custody would be detrimental to him given that Eduardo was removed from mother at birth because of mother's substance abuse.
Mother likens herself to the father in David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.), and the mother in Rita L. v. Superior Court (2005) 128 Cal.App.4th 495 (Rita L.), and claims that she, like these parents, should have had her child returned to her care.
David B. is distinguishable. There, the father had fully complied with the case plan. And, the only evidence presented with respect to overnight visits was that the child had “demonstrated a clear and observable reluctance to participate in visitation with the father,” and “the child's actions prior to the visitation ․ alternated between refusal to go and happiness.” (David B., supra, 123 Cal.App.4th at p. 777.) After an overnight visit, the child was “tired and somewhat out of sorts.” (Id. at p. 791.) By contrast, mother had failed to make significant progress in her program, and Eduardo's response to visits with her was severe. Eduardo would resist getting into the car seat, and became clingy and aggressive following these visits to the point that he was in danger of beDP1⌑Rita L. is also distinguishable. With the exception of accidentally taking Tylenol with codeine on one occasion, the mother in Rita L. had completed her drug rehabilitation program and was in full compliance with her case plan when she sought return of her child. (Rita L., supra, 128 Cal.App.4th at pp. 499, 504, 506.) There, the child's overnight visits with the mother had gone well. (Id. at p. 500.)
The juvenile court's finding that return of Eduardo to mother's custody would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being is fully supported by the evidence of her lack of meaningful progress in her drug treatment program. That alone is substantial evidence to support the decision.
The evidence presented to the juvenile court was reasonable in nature, credible and of solid value and thus “ ‘ “substantial proof” of the essentials” ’ of the case. (County of Santa Cruz v. City of Watsonville (1985) 177 Cal.App.3d 831, 845.) We therefore conclude that the juvenile court's order terminating mother's reunification services and setting a section 366.26 hearing is supported by substantial evidence.
B. Extension of Reunification Services
Mother contends that there is insufficient evidence to support the juvenile court's refusal to extend reunification services beyond the 12-month hearing. We disagree.
As above, we review the juvenile court's order under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency court's findings. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
Because Eduardo was under the age of three at the time he was detained, mother was entitled to six months of reunification services, measured from the date Eduardo entered foster care. (§ 361.5, subd. (a)(1)(B).) Thereafter, the juvenile court exercised its discretion and extended services for an additional six months. Mother contends that reunification services should have been extended for yet another six months.
Although a juvenile court has the discretion to extend reunification services, it may do so only if it finds there is a substantial probability that the child will be returned to the parent within the extended period. (§ 361.5, subd. (a)(3).) A parent is entitled to extended services only under limited circumstances, including the parent's “significant progress” in resolving the problems that led to the child's removal. (§ 366.21, subd. (g)(1)(B).)
Here, mother had received 16 months of reunification services by the time of the section 366.21, subdivision (f) contested hearing.8 Although courts have extended the reunification period upon a showing of exceptional circumstances (see, e.g., In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 [no reunification plan developed for parent]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1211 [reunification plan developed but not implemented]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774 [parent hospitalized for much of the reunification period] ), no such exceptional circumstances are present here.
Mother did not make significant progress in resolving her drug problem, which rendered her incapable of providing care for Eduardo and was the principal reason he was removed from her custody. The juvenile court focused on the fact that mother was placed in the orientation phase of the inpatient treatment program upon her reenrollment following her release from jail and had just recently been promoted to phase one of the three-phase program. Based on mother's long-standing substance abuse history, the court did not find that her progress was “truly significant.”
Mother argues that the juvenile court's reference to her long-standing history of drug abuse was improper, and that the evidence “overwhelmingly” established that she had made significant progress in her substance abuse program. As previously discussed, substantial evidence supports the juvenile court's finding that mother failed to make substantial progress in resolving the issues that led to Eduardo's removal from her custody (drug abuse) despite her different view. The extent of mother's past drug use was relevant to the issue of what amount of progress she had made prior to the 12-month contested hearing.
C. 18-Month Calculation
Mother contends the juvenile court erred in calculating the 18-month review date set forth in section 366.21, subdivision (g) by selecting the date of Eduardo's detention rather than from the date of the disposition hearing. We disagree.
“[T]he interpretation and application of a statutory scheme to an undisputed set of facts is a question of law ․ which is subject to de novo review on appeal. [Citation.]” (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 951; Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74.)
Our task in construing a statute is to ascertain the legislative intent to permit us to effectuate the purpose of the law. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715.) Looking first to the statutory language, we give the words their ordinary and usual meaning and construe them in the context of the statute as a whole and the entire scheme of law of which it is a part. (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043; Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849; In re Marilyn H. (1993) 5 Cal.4th 295, 307 [statutes governing reunification services must be considered in light of the juvenile dependency system as a whole].) If the language is clear and a literal construction would not result in absurd consequences that the Legislature did not intend, the plain meaning governs. (Tyrone W., supra, at p. 850; Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)
Under section 361.5, whenever a minor is removed from the custody of his parents, the juvenile court must, in the absence of certain specified exceptions, order the social worker to provide family reunification services to the child and the child's mother and statutorily presumed father. (In re Jesse W. (2007) 157 Cal.App.4th 49, 59; see § 361.5, subd. (a).)
In 2008, section 361.5, subdivision (a)(1)(B) provided: “Family reunification services, when provided ․ [f]or a child who, on the date of initial removal from the physical custody of his or her parents or guardian, was under three years of age, court-ordered services shall be provided during the period of time beginning with the dispositional hearing and ending with the date of the hearing set pursuant to subdivision (e) of Section 366.21, unless the child is returned to the home of the parent or guardian.” (Italics added.)
In 2009, the Legislature made “technical, clarifying, and conforming changes” to section 361.5, subdivision (a)(1)(B) 9 so that the provision now provides that “[f]amily reunification services, when provided ․ [f]or a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49 unless the child is returned to the home of the parent or guardian.” (Italics added.)
Section 361.49, which was enacted in 2009 at the same time the Legislature amended section 361.5, subdivision (a), provides: “Regardless of his or her age, a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian.” (§ 361.49.)
The Legislature opted not to amend section 361.5, subdivision (a)(3),10 which provides in pertinent part: “Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period.” (Italics added.)
Nor did the Legislature amend section 366.21, subdivision (g)(1), which provides: “If the time period in which the court-ordered services were provided has met or exceeded the time period set forth in subparagraph (A), (B) or (C) of paragraph (1) of subdivision (a) of Section 361.5, as appropriate, and a child is not returned to the custody of a parent or legal guardian at the permanency hearing held pursuant to subdivision (f), the court [may] ․ [c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian.” (Italics added.)
Mother acknowledges that the phrase “the date on which the child was initially removed from the physical custody of his or her parent or guardian” contained within a prior version of section 361.5, subdivision (a), and the phrase “the date the child was originally removed from physical custody of his or her parent or guardian” have both been interpreted to refer to the date of a child's initial detention from a parent. (See Christina A. (2001) 91 Cal.App.4th 1153, 1165; In re N.M. (2003) 108 Cal.App.4th 845, 854-855.) Mother claims, however, that these cases have limited application given the recent amendments to section 361.5. Mother is mistaken.
Giving the words “initial” and “originally” their ordinary and usual meaning, we conclude that section 361.5, subdivision (a)(1)(B) must be read to mean the time when a child is “initial[ly] removed” or “originally taken” from the custody of his or her parents. The removal occurs at the time the child is first detained by DCFS.
We reject mother's claim that the Legislature's failure to amend section 366.21, subdivision (g) was a matter of legislative oversight. According to mother, the Legislature intended to provide parents with a “true reunification period” of 18 months, and that the only way to implement the Legislature's intent would be to interpret 366.21, subdivision (g)(1) to mean that court-ordered services may be extended up to a maximum time period not to exceed 18 months from the date of disposition when a child is legally removed from the custody of his or her parents, rather than from the date the child was originally detained from the physical custody of his or her parents.
The “true reunification period” for children under the age of three is set forth in section 361.5, subdivision (a)(1)(B), which provides that if a child is under the age of three, court-ordered services shall be provided for a period of six months from the dispositional hearing, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49. Nothing contained in the Legislative history indicates that the Legislature intended to amend section 366.21, subdivision (g) so that the 18-month date is measured from the dispositional hearing date. What the statutes provide is that in cases where a child is under the age of three, a juvenile court may extend reunification services beyond the section 366.21, subdivision (f) 12-month hearing if a parent meets certain conditions. However, nothing contained in the statute provides that those services must be extended for a full six months past the date of the 12-month status review hearing. In fact, section 366.21, subdivision (g)(1) provides that a case involving a child under the age of three may be continued for “up to six months ” for a permanency review hearing. The Legislature's use of the words “up to six months” indicates that it recognized that some extensions could be for less than six months. There are, of course, sound policy reasons for the Legislature's decision.
Family reunification services play a crucial role in dependency proceedings, and the law favors such services whenever possible. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Jesse W., supra, 157 Cal.App.4th at p. 59.) However, the “stated purpose of the new six-month provisions [set forth in section 361.5,] is to give juvenile courts greater flexibility in meeting the needs of young children, ‘in cases with a poor prognosis for family reunification, (e.g., chronic substance abuse, multiple previous removals, abandonment, and chronic history of mental illness).’ [Citation.]” This is because “ ‘very young children ․ require a more timely resolution of a permanent plan because of their vulnerable stage of development․ [G]iven the unique developmental needs of infants and toddlers, moving to permanency more quickly is critical.’ [Citation.]” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611-612.)
The stated purpose of the six-month provisions of section 361.5 is consistent with the objective of the dependency scheme, which is to “protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.]” (In re Marilyn H., supra, 5 Cal.4th at p. 307.)
Given the purpose of the six-month provision set forth in section 361.5, subdivision (a)(1)(B) and the objective of the dependency scheme as a whole, the Legislature's decision to retain the language of section 366.21, subdivision (g) is reasonable. By amending section 361.5 without changing the language of section 366.21, subdivision (g), the Legislature has balanced a qualifying parent's right to reunification services with the right of children under the age of three to have a timely resolution of their permanent plan.
In the instant case, Eduardo was removed from mother's care on July 3, 2008. The dispositional hearing was held on December 10, 2008. Pursuant to section 361.5 subdivision (a)(1)(B), mother was entitled to six months of reunification services beginning on December 10, 2008, and ending on June 10, 2009. However, mother was not entitled to reunification services past September 3, 2009, which was 12 months past the date Eduardo entered foster care as that term is defined in section 361.49.11
Had the juvenile court found at the conclusion of the November 4, 2009 contested 12-month hearing that there was a substantial probability that Eduardo would be returned to mother's physical custody and safely maintained in her home, the court had the discretion, pursuant to section 366.21, subdivision (g), to continue the case for up to six months for a permanency review hearing. However, the hearing would have been required to have been held within 18 months of July 3, 2008, the date Eduardo was originally taken from mother's physical custody. This would mean that had an extension been granted, mother would have been provided with reunification services up to January 3, 2010, not the full six months of additional reunification services, but more time within which to establish that Eduardo could be safely returned to her care. However, as noted above, the juvenile court's decision not to extend mother's reunification services was well within the bounds of its discretion and will remain undisturbed.
Given our interpretation of sections 361.5, subdivision (a)(1)(B) and 366.21, subdivision (g), we find no error on the part of the juvenile court in calculating the 18-month date set forth in section 366.21, subdivision (g) from the date of Eduardo's detention rather than from the date of the disposition hearing.
The order to show cause is discharged and the petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.. FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FN2. The nurse may have been referring to a great aunt rather than to mother's grandmother.. FN2. The nurse may have been referring to a great aunt rather than to mother's grandmother.
FN3. Mother identified Eduardo's father as Eduardo L. (father) who was incarcerated at an unknown facility. Father is not a party to this writ proceeding.. FN3. Mother identified Eduardo's father as Eduardo L. (father) who was incarcerated at an unknown facility. Father is not a party to this writ proceeding.
FN4. The record does not reveal what mother disclosed that would require her to repeat the portions of the program that she previously had completed.. FN4. The record does not reveal what mother disclosed that would require her to repeat the portions of the program that she previously had completed.
FN5. Eduardo was seen by a specialist, but because the hemangioma dissolved he did not need surgery.. FN5. Eduardo was seen by a specialist, but because the hemangioma dissolved he did not need surgery.
FN6. There appeared to be some confusion over the date of detention which was July 3, 2008.. FN6. There appeared to be some confusion over the date of detention which was July 3, 2008.
FN7. Although mother questions the validity of this statement, she did not request that the social worker or the counselor be made available for cross-examination at the contested hearing. Nor did she present evidence refuting the statement, call any witnesses, or lodge any objections with respect to the evidence.. FN7. Although mother questions the validity of this statement, she did not request that the social worker or the counselor be made available for cross-examination at the contested hearing. Nor did she present evidence refuting the statement, call any witnesses, or lodge any objections with respect to the evidence.
FN8. On July 3, 2008, at the detention hearing, the juvenile court ordered DCFS to provide mother with reunification services and program referrals. The contested section 366.21, subdivision (f) hearing was held 16 months later on November 4, 2009.. FN8. On July 3, 2008, at the detention hearing, the juvenile court ordered DCFS to provide mother with reunification services and program referrals. The contested section 366.21, subdivision (f) hearing was held 16 months later on November 4, 2009.
FN9. (Assem. Com. on Human Services, Analysis of Assem. Bill No. 706 (2009-2010 Reg. Sess.) as amended May 5, 2009.). FN9. (Assem. Com. on Human Services, Analysis of Assem. Bill No. 706 (2009-2010 Reg. Sess.) as amended May 5, 2009.)
FN10. In 2009, section 361.5, subdivision (a)(2) was renumbered 361.5, subdivision (a)(3).. FN10. In 2009, section 361.5, subdivision (a)(2) was renumbered 361.5, subdivision (a)(3).
FN11. Section 361.49 provides that a child enters foster care on the earlier of the date of the jurisdictional hearing held pursuant to section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian. The jurisdictional hearing was held on October 27, 2008. Sixty days after July 3, 2008, which is when Eduardo was initially removed from mother's physical custody, is September 3, 2008. Thus, Eduardo entered foster care on September 3, 2008.. FN11. Section 361.49 provides that a child enters foster care on the earlier of the date of the jurisdictional hearing held pursuant to section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian. The jurisdictional hearing was held on October 27, 2008. Sixty days after July 3, 2008, which is when Eduardo was initially removed from mother's physical custody, is September 3, 2008. Thus, Eduardo entered foster care on September 3, 2008.
_, Acting P.J. DOI TODD _, J. ASHMANN-GERST