Filed 8/26/13 In re Jesse Y. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re JESSE Y., a Person Coming Under 

the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

SIMONE M.,

Defendant and Appellant.

 A137111

 (Alameda County

 Super. Ct. No. HJ-10-015922)

Appellant Simone M. (mother) appeals from the juvenile court‘s order terminating 

her family reunification services. We shall affirm.

BACKGROUND

On November 5, 2010, Alameda County Social Services Agency (Agency) filed 

an original petition pursuant to Welfare and Institutions Code1section 300, alleging 

mother failed to protect her male child, Jesse Y. (minor), born in October 2010. The 

detention report states the minor tested positive for cocaine and oxycodine at birth, and is 

being treated with morphine for withdrawal symptoms. The minor is the second drug-

 

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Further statutory references are to the Welfare and Institutions Code unless 

otherwise stated.
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exposed child born to mother. Mother admitted using cocaine, has a history of drug 

abuse and failed to complete a prior drug treatment program. At the detention hearing, 

the court found removal necessary and vested temporary placement and care of minor 

with the Agency.

The Agency‘s jurisdiction/disposition report dated November 22, 2010, states 

minor remains hospitalized in the Neonatal Intensive Care (NIC) unit on a low dose of 

morphine. Mother is living with father (James Y.) in Livermore, father works full time in 

Mendocino and has not yet been interviewed. Mother wants the Agency to release the 

minor to father, but wants to live in the home and care for the child. The Agency 

recommended placement in out-of-home care and that mother receive family 

reunification services.

The Agency filed a first amended petition on November 23, 2010, alleging the 

social worker smelled marijuana while at father‘s home and father has a criminal record, 

including convictions for assault and drug possession. On December 8, 2010, the Agency 

filed a second amended complaint, further alleging father is a registered drug offender 

and was convicted of assault in May 2004, and that in November 2010 mother tested 

positive for methamphetamines and amphetamines on a hair test.

At the jurisdiction hearing held on December 2, 2010, the court adjudged minor a 

dependent child of the court, and placed care and custody of the minor under Agency 

supervision with the minor to reside with father. The court ordered family maintenance 

services to father and informal child welfare services to mother.

The Agency‘s six-month status review report dated May 12, 2011, states minor 

was initially diagnosed with a seizure disorder when hospitalized after birth, responded to 

treatment and is being weaned off the anti-seizure medication. The minor was noted to 

be at high risk for delayed development, with impaired range of motion and abnormal 

muscle tone; however, rehabilitation potential with physical therapy is good. The report 

notes father resides in his mother‘s home with the minor. Mother moved into her 

mother‘s home a few months ago and is working 30 hours per week at Wal-Mart. Father 
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reports mother visits daily with minor and mother has attended all minor‘s medical 

appointments.

The report states mother ―has complied with her case plan minimally.‖ Mother 

visits minor every day and started substance abuse treatment; she tested four times for 

drugs and all four tests were clean. However, mother‘s attendance at substance abuse 

group treatment has been poor—she started treatment in February 2011 and only attended 

three out of 48 group sessions and completed four out of 15 required drug tests. She was 

discharged from the drug program for poor attendance. Mother has been referred to drug 

court for services, but has not responded to attempts to engage her in those services.

The six-month report concludes mother has not addressed her substance abuse and 

has made minimal progress towards her case plan goals. Father has made partial progress 

towards his case plan goals, but is in a relationship with mother and has little or no 

awareness of her drug use. At a hearing held on May 26, 2011, the court continued the 

six-month review until November 3, 2011, with current orders remaining in effect.

The Agency filed a status review report on October 19, 2011. The report states 

father resides in his mother‘s home with minor and minor‘s paternal grandmother; father 

was arrested in July for cultivation of marijuana. Mother continues to reside in her 

mother‘s home, but is no longer working at Wal-Mart; however, a Livermore police 

report prepared on father‘s arrest for marijuana cultivation charges states father identified 

mother as living in his home. Mother denied living with father. Regarding the minor, the 

report states he has been off anti-seizure medication for about six months, is in good 

health and the quality and variety of his movements are good.

The October 2011 status review report states mother has not complied with her 

case plan. She has not taken any action to address her substance abuse nor provided any 

evidence to show she is substance free. Mother has failed to followup with referrals to 

drug treatment. Mother is apparently acting as the primary caregiver to minor with the 

acquiescence of father and minor may have been left unsupervised with mother. Father 

has been minimally compliant with his case plan. Father and paternal grandmother both 
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have medical marijuana cards and father has been arrested for cultivation of marijuana. 

Father has not engaged in individual therapy during this report period and needs to 

develop a detailed plan to protect the minor from the impacts of marijuana use in the 

home, and stop illegal activity related to marijuana. In its minute order of the hearing 

held on November 3, 2011, the court continued the present order and ordered hair follicle 

tests for father and minor.

On January 17, 2012, the Agency filed a supplemental petition pursuant to section 

387. The detention report related to the supplemental petition states minor is in the home 

of the paternal grandmother and father has moved out of this home. The drug tests 

ordered by the court resulted in minor‘s hair follicle testing positive for 

methamphetamine. Father and paternal grandmother blamed mother for the positive test, 

and mother admitted this was true. The detention report states that due to lack of 

supervision by father regarding mother‘s contacts with the minor, mother‘s failure to

address substance abuse problems, father‘s recent drug arrest and the minor‘s recent 

positive drug test, the Agency decided to remove the child from father‘s care. Father 

agreed to move out of the house in order for minor to remain in grandmother‘s care. 

Father also resumed drug testing and started an anger management class. On January 18, 

2012, the court adopted the Agency‘s recommendations, finding continuance in the home 

of the father is contrary to the minor‘s welfare and reunification services shall be 

provided, if appropriate. On January 30, 2012, the Agency filed a jurisdiction report, 

recommending the court find jurisdiction on the supplemental petition and continue the 

matter for disposition in order to allow the Agency to further assess the appropriateness 

of the minor‘s current placement with paternal grandmother. The jurisdiction report 

noted father faces pending felony drug possession charges and Livermore police have an 

open investigation pertaining to the minor‘s ingestion of methamphetamine. Mother 

states she is set to begin DUI and drug treatment classes at Axis, to include twice weekly 

drug testing, and that she is willing to see her son at the Agency office. On February 2, 

2012, the court sustained the jurisdictional allegations in the supplemental petition, 
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adopted the Agency‘s recommendations and scheduled a disposition hearing for March 8, 

2012.

On February 7, 2012, the Agency filed an amended supplemental petition under 

section 387 alleging father allowed mother unrestricted access to minor, placing minor at 

risk due to his young age and mother‘s untreated substance abuse issues. In a 

memorandum (memo) to the court filed on February 14, 2012, the Agency informed the 

court minor was moved from the home of paternal grandmother and placed in an 

Alameda County foster home after results of a second hair follicle test indicated the 

minor now has higher levels of methamphetamine in his system. The Agency‘s public 

health nurse confirmed that for the levels of methamphetamine in his hair follicle minor 

must have ingested methamphetamine. The memo states minor‘s first positive hair 

follicle test was thought to be the result of ―a one time exposure,  ̳a fluke‘ perhaps when 

the mother stated  ̳maybe‘ something fell out of her purse,‖ but the second positive test 

―shows that the child is being repeatedly exposed—the exact manner is not known.‖ 

Further, the memo states ―the Agency has found the family to be dishonest with the 

Agency . . . about the current concerns. It is with this in mind and the child‘s drug level 

being markedly higher that the Agency believes it could not assure the child‘s safety in 

this current placement . . . .‖

The Agency filed a disposition report on the section 387 petition dated March 8, 

2012. Regarding mother‘s status, the report states she refuses to participate in hair 

follicle drug tests. Mother is enrolled in a drug program at Axis consisting of twice 

weekly group meetings and random urine drug tests, but failed to attend several group 

meetings and failed to show up for drug tests on three occasions. The director of the Axis 

program reported mother is avoiding drug testing, not taking her treatment seriously and 

recommended a residential treatment program. The Agency recommended the minor 

remain in out-of-home placement and the parents be offered family reunification services. 

The Agency‘s addendum, dated March 26, 2012, proposed the same recommendation. 

Also, as to mother‘s status, the addendum stated mother was discharged from her 
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outpatient drug treatment program on March 15. Program staff observed mother 

repeatedly showed up appearing to be under the influence and did not follow directions or 

submit to drug tests. Mother has been advised to enter a residential treatment program 

and has been provided with several contacts to that end. At the disposition hearing on 

March 26, 2012, the court ordered that the minor be removed from the physical custody 

of father and placed with a licensed foster parent. The court found mother had made no 

progress, and father minimal progress, toward alleviating the causes necessitating 

placement; however, the court ordered the Agency to provide family reunification 

services to father and mother and scheduled a status review hearing for September 13, 

2012.

The Agency‘s six-month status review report dated September 13, 2012, 

recommended the minor‘s dependency continue and he remain in out-of-home care. The 

Agency further recommended family reunification services be continued for father and be 

terminated for mother. The Agency reported mother‘s exact residence is unknown and 

mother stated she has been living with different friends recently. Mother was arrested for 

disorderly conduct due to intoxication on July 1 and spent two days in jail before being 

released. According to the police report, mother is three months pregnant with father‘s 

second child, and is currently unemployed.

The September 2012 six-month status review states mother has been minimally 

compliant with her case plan. Mother was provided with a list of residential substance 

abuse programs, enrolled herself in Shepherd‘s Gate in May 2012, but left the program 

after a few days. Mother‘s face-to-face intake at Cronin House on August 9 was 

incomplete due to lack of necessary paperwork, and mother did not produce the 

paperwork necessary to complete intake. Mother was referred to Terra Firma for drug 

testing and outpatient treatment at the end of March 2012; mother started testing in May 

and on June 1 she returned a positive result for methadone. Mother claimed her doctor 

prescribed methadone for back pain. ―Currently the mother is not testing, nor involved in 

a substance abuse treatment program. Her substance abuse remains unaddressed.‖ 
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Mother visited the minor from March to early May 2012, but has not visited since May 3. 

Mother has not started dyadic therapy with a Services to Enhance Early Development 

(SEED) therapist due to lack of visitation and engagement in substance abuse treatment. 

On September 13, 2012, the court continued the minor as a dependent of the court and 

continued the matter for contest on October 31, 2012.

The Agency‘s addendum report dated October 31, 2012, states mother enrolled 

herself in the Project Pride Residential Substance Abuse Treatment Program (Project 

Pride) on October 4, 2012. The social worker visited mother and her counselor at Project 

Pride on October 11. The counselor confirmed mother has been attending groups and 

meetings since her entrance, and has done one urine test on which the result is pending. 

Mother is five months pregnant and the baby is due in February 2013. The addendum 

continued to recommend termination of reunification services to mother. At the hearing 

held on October 31, 2012, the court adopted the Agency‘s recommendation and 

terminated reunification services to mother. Mother filed a timely notice of appeal on 

November 15, 2012.

DISCUSSION

Mother contends the court improperly terminated services based on the erroneous 

belief it lacked discretion to continue services. Specifically, mother asserts the court 

believed it was required to terminate services under section 366.21, subdivision (e)2after 

 

2

Section 366.21, subdivision (e) states in pertinent part: ―At the review hearing 

held six months after the initial dispositional hearing . . . the court shall order the return 

of the child to the physical custody of his or her parent or legal guardian unless the court 

finds, by a preponderance of the evidence, that the return of the child to his or her parent 

or legal guardian would create a substantial risk of detriment to the safety, protection, or 

physical or emotional well-being of the child. The social worker shall have the burden of 

establishing that detriment. . . . The failure of the parent or legal guardian to participate 

regularly and make substantive progress in court-ordered treatment programs shall be 

prima facie evidence that return would be detrimental. [¶] . . . [¶] If the child was under 

three years of age on the date of the initial removal, . . . and the court finds by clear and 

convincing evidence that the parent failed to participate regularly and make substantive 

progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to 

Section 366.26 within 120 days. If, however, the court finds there is a substantial 
8

finding mother failed to participate and make substantial progress in her treatment plan. 

Mother‘s assertion, however, is reputed by the record.

At the hearing held on October 31, 2012, counsel for the Agency argued ―because 

the statutory framework of reunification for a child under three dictates that unless . . . the 

parent has participated regularly in and made substantial progress in a . . . treatment plan, 

that reunification services should be terminated,‖ to which the court responded 

rhetorically, ―Well, must they be terminated?‘ Counsel for the Agency replied, ―Your 

Honor, the Agency believes that the statutory framework does dictate . . . such a finding.‖

Following further argument of counsel, the court engaged in the following 

colloquy with mother‘s counsel: ―The Court: [T]his case was before me . . . back in 

March . . . . And then it was on calendar again September the 13th . . . . [¶] But then here 

we are on October the 31st, and the Court is being told that the mother has just enrolled 

in Project Pride on October the . . . 4th. . . . [¶] So we‘ve got a period at least . . . of about 

seven months, and the mother is just now getting herself into treatment. Is there a reason 

for that? [¶] Mr. O‘Rourke: [I] don‘t have knowledge as to why that was. [¶] The Court: 

[M]y question is essentially why didn‘t the mother take it upon herself―if she is 

interested in reunifying with her child, why didn‘t she take it upon herself to get herself 

together earlier than she has? [¶] Mr. O‘Rourke: Well, that‘s a good question, Judge. 

But the fact of the matter is she has gotten started. . . . [S]he‘s come to the party a little 

bit late, but she‘s in the live-in program now. . . . [¶] The Court: [T]his Court sees in 

these cases too much where adults are not taking responsibility for themselves. And then, 

as a result of that, their kids get impacted . . . . And the parent‘s off doing whatever they 

want to do and not taking responsibility for their lives and their kids‘s lives. [¶] Let‘s 

take a recess for about ten minutes.‖

 

probability that the child, who was under three years of age on the date of initial removal 

. . . may be returned to his or her parent or legal guardian within six months or that 

reasonable services have not been provided, the court shall continue the case to the 12-

month permanency hearing.‖
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Following the recess, the court announced its ruling, stating, ―The Court is going 

to adopt the recommendations from the agency in this matter. The Court finds that as has 

been indicated, the mother has come to the party somewhat late. And although the court 

is pleased that she‘s currently in a program, the only progress that has been made to date 

is the fact that she is now, finally, in a program. But the Court doesn‘t have any 

information that she‘s actually made any progress in that program, and the Court does not 

have any information that she‘s actually alleviated or eliminated her drug problems, 

which are fairly significant. The mother has a . . . fairly lengthy history of drug-related 

problems, and the Court has no indication that she‘s turned her life around in that 

regard. . . . I cannot find today that she‘s made any significant progress at all in 

alleviating the problem. And so the Court will . . . therefore, terminate the reunification 

services to the mother.‖

In its ruling, the court does not state it was required to terminate services or that it 

lacked discretion to continue services. Although the record perhaps reflects it was the 

Agency’s position termination was mandated by statute, nothing in the record 

demonstrates the court‘s decision to terminate mother‘s reunification services was other 

than a valid exercise of its discretion. Accordingly, mother‘s contention runs counter to 

the presumption that the juvenile court knew and correctly applied the law. (Evid. Code, 

§ 664; see also Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [―scores of appellate 

decisions, relying on [Evid.Code, § 664], have held that  ̳in the absence of any contrary 

evidence, we are entitled to presume that the trial court . . . properly followed established 

law‘ ‖]; In re Julian R. (2009) 47 Cal.4th 487, 499 [stating ―. . .  ̳the general rule [is] ―that 

a trial court is presumed to have been aware of and followed the applicable law. 

[Citations.]‖ ‘  ̳This rule derives in part from the presumption of Evidence Code section 

664 ―that official duty has been regularly performed,‖ ‘ and thus when  ̳. . . the record is 

silent, a reviewing court will presume the trial court had a proper basis for a particular 

finding or order.‘ [Citation.]‖].) Thus, mother‘s contention the court terminated her 

services based on an improper legal standard must fail.
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Furthermore, we reject mother‘s alternative argument that even if the court applied 

the proper legal standard the court abused its discretion in terminating services. ―A court 

has discretion to terminate services for one parent even when ordering services for the 

other parent.‖ (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651 [―  ̳In deciding whether 

to terminate the services of one parent who has failed to participate or make progress 

toward reunification, the court is not constrained by a consideration of the other parent‘s 

participation in services.‘ ‖].)

Moreover, if the dependent child was under three years of age on the date of the 

initial removal (here minor was removed at birth), and at the six-month review hearing 

the court does not return a minor to parental custody or set a section 366.26 hearing, the 

court is not required to continue reunification services for any parent who was previously 

receiving services, irrespective of that parent‘s compliance with those services; rather, 

―even when the court does not set a section 366.26 hearing at the six-month review 

hearing, it retains discretion to terminate services.‖ (In re Jesse W. (2007) 157 

Cal.App.4th 49, 63 [noting the provision under § 366.21, subd. (e) that if the minor is not 

returned to a parent‘s custody, the court must assess the reasonableness of services 

offered or provided and ―  ̳shall order that those services be initiated, continued, or 

terminated‘ ‖ is consistent ―with the notion that a parent‘s services can be terminated at a 

six-month review hearing without regard to whether the other parent is receiving services 

or the court sets a section 366.26 hearing.‖].) In short, ―[c]onstrued together, sections 

361.5, subdivision (a)(2) and 366.21, subdivision (e) provide the court with the option to 

terminate reunification services after six months when a parent of a minor under the age 

of three has  ̳made little or no progress in [his or her] service plan[ ] and the prognosis for 

overcoming the problems leading to the child‘s dependency is bleak.‘ [Citation.]‖ (In re 

Jesse W., supra, at p. 64.)

Here, the mother‘s failure to address the problem that caused the child to be made 

a dependent child of the court—her substance abuse—is apparent throughout the course 

of these proceedings, as is her failure ―to participate regularly and make substantive 
11

progress‖ in her treatment plan. (§ 366.21, subd. (e).) In report after report since the 

original petition was filed in November 2010, the Agency documented mother‘s failings 

on these points: Mother tested positive for methamphetamines and amphetamines in 

November 2010; in May 2011, the Agency reported she had been discharged from her 

drug treatment program for poor attendance and failed to engage in services offered 

through drug court; in October 2011, the Agency reported mother had failed to followup 

with referrals to drug treatment and had taken no action to address her substance abuse; 

in January 2012, the Agency reported mother admitted she was responsible for the 

minor‘s hair follicle testing positive for methamphetamine; in February, the Agency 

reported minor had been removed from the home of paternal grandmother and placed in 

an Alameda County foster home after a second hair follicle test revealed the minor now 

had ingested methamphetamine; in March 2012, the Agency reported mother refuses to

participate in hair follicle drug tests, and was discharged from her outpatient drug 

treatment program for failure to attend group meetings, failure to report for drug testing 

and attending meetings while under the influence; in September 2012, the Agency

reported mother had been arrested for disorderly conduct and public intoxication, left a 

residential program after a few days and failed to complete the paperwork for admission 

to another residential program, tested positive for methadone, did not visit with the minor 

since May 3, and had not started dyadic therapy with SEED due to lack of visitation and 

engagement in substance abuse treatment.

On this record, and despite mother‘s belated enrollment in a residential treatment 

facility a few weeks before the six-month review hearing, we cannot say the trial court‘s 

decision to terminate reunification services to mother at the six-month review hearing 

constitutes a clear abuse of discretion. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318 

[trial court‘s ruling will not be disturbed absent a clear abuse of discretion] and Shamblin 

v. Brattain (1988) 44 Cal.3d 474, 478–479 [―The appropriate test for abuse of discretion 

is whether the trial court exceeded the bounds of reason. When two or more inferences 
12

can reasonably be deduced from the facts, the reviewing court has no authority to 

substitute its decision for that of the trial court.‖].)

DISPOSITION

The juvenile court‘s order is affirmed.

__________________________________

Dondero, J. 

We concur: 

__________________________________

Margulies, Acting P. J. 

__________________________________

Banke, J.