Filed 12/23/14 Jessica H. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JESSICA H., Petitioner,

v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent;

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest. F070238

(Super. Ct. Nos. 516756, 516757 & 516969)

O P I N I O N

THE COURT 
ORIGINAL PROCEEDINGS; petition for ex traordinary writ review. Ann Q. Ameral, Judge. Rebecca A. Roberson, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Pa rty in Interest. -ooOoo-

 Before Gomes, Acting P.J., Detjen, J., and Franson, J.2 Jessica H. seeks extraordinary writ re view of the juvenile court’s orders terminating her reunification se rvices and setting a Welfare and Institutions Code section 366.26 hearing 1 as to her three-year-old son Chris tian, one-year-old son Aaron and tenmonth-old daughter N.H. Jessica contends the juvenile cour t erred in finding there was not a substantial probability the children could be returned to her custody. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY In August 2013, th e Stanislaus Community Services Agency (agency) took then two-year-old Christian and seven-month- old Aaron into prot ective custody after receiving reports that they were living with their mother, Jessica, in squalid conditions and that Aaron appeared to be malnourished and weak. The agency believed, based on its long relationship with Jessica, that drug use, mental illness and domestic violence factored into her inability to pr operly care for the children. The agency also learned that
Jessica left the children in th e care of Aaron G., her husband and the children’s father. Aaron G. (father) was a registered sex o ffender and prohibited from being around the children. Father was taken into custody and the children were placed in foster care. The juvenile court ordered the children detained and the agen cy referred Jessica for services including a drug and alcohol a ssessment, domestic violence and individual counseling and parenting classes. In late August 2013, Jessi ca completed the drug and alcohol assessment and was referred to Stanislaus Recovery Center for detoxification which she completed. Around this time, Jessica discovered she and father were expecting another child. She began attending group meetings while on a waiting list for outpatient treatment at First Step Perinatal Drug & Alcohol Treat ment Program (First Step) and calling Redwood Family
Center for admittance into their sober livi ng facility.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.3 The agency advised the juvenile court that Jessica was willing to engage in services but became easily overwhelmed and was prone to anger an d resistance when she
was confused. Her social worker believed sh e would need services for a “considerable time” and emphasized Jessica’s need to initiate services promptly. The agency did not
recommend reunification services for father base d on his sex offender status. (§ 361.5, subd. (b)(16).) In October 2013, the juvenile court t ook jurisdiction over the children, ordered
reunification services for Jessica but denied services for father. The court set the six-month review hearing for March 2014. In December 2013, Jessica tested positiv e for methamphetamine and was admitted
for residential treatment at Nirvana Drug & Alcohol Treatm ent Program (Nirvana). In late January 2014 while a resident of Nirvana, Jessica delivered N.H. by cesarean section (C-section). Jessica was unable to have N. H. with her at Nirvana and consented to having N.H. placed in pr otective custody. In February 2014, the juvenile court orde red N.H. detained and the agency placed
her with her brothers in foster care. That same month, the agen cy received a progress report that Jessica continued to test ne gative for drugs and was on track with her treatment plan. She was expected to comple te her program in early March and transition to Redwood Family Center and First Step for day treatment. Her counselor also reported that father attempted to see Jessica at the hospita l when N.H. was bo rn but was turned
away. In mid-February 2014, N.H. was admitted to Valley Children’s Hospital in Madera for pertussis and placed on life support. Jess ica was allowed to leave Nirvana to stay at
the Ronald McDonald Hous e to be near her. In its report for the six-month review hear ing, the agency reported that Jessica had done very well in addressing her drug abuse and separating from father. She was testing negative for drugs, filed for divorce and had obtained a restraining order against him.4 However, she had not completed the other co mponents of her case plan because she was recovering from her C-section and attending to N.H. at the hospital. Given Jessica’s progress with her drug abuse, the agency belie ved Jessica could complete her services if given additional time and recomme nded the juvenile court con tinue her services until the 12-month review hearing. After the agency completed its report, social worker Diana Caradonna was informed by the program director at Nirvana that Jessica had been gone for four or five days. Jessica initially denied not being at the Ronald McDona ld House and using methamphetamine. When pressed, she said sh e was “stuck in Modesto” for a few days and used methamphetamine. In March 2014 the juvenile court conducted a dispositional heari ng as to N.H. and a six-month review hearing as to Christian a nd Aaron. The juvenile court declared N.H. a dependent, removed her from parental cu stody and granted Jessi ca six months of reunification services. The juvenile court f ound that father’s whereabouts were unknown
and denied him reunification services. As to Christian and Aaron, the juvenile court found that Jessica’s progress was “fair” and th at there was a likelihood the boys could be returned to her by the 12-month review h earing which it set for September 2014. Following the hearing, Caradonna arranged for Jessica to have another alcohol and drug assessment during which Jessica ad mitted to relapsing on methamphetamine. Jessica denied, however, using after being “caught.” Caradonna believed Jessica was minimizing her relapse and tr ying to avoid going back to Nirvana. She arranged for Jessica to pick up her belongings at the Ronald McDonald House and return to Nirvana. Approximately a week later, Caradonna wa s informed that Je ssica left Nirvana after walking out of a meeting to discuss her relapse. The substance abuse specialist said Jessica was told she could either “get honest or pack her bags.” Jessica chose to leave. The specialist said that Jessica did not appear to have achieved any recovery after all her time there and was heard laughing abou t her relapse in group session.5 The next day, Caradonna tested Jessi ca and she tested negative for drugs. Caradonna required Jessica to attend a Na rcotics/Alcoholics Anonymous (NA/AA) meeting daily for the next three weeks before she would refer her for drug treatment.
Jessica succeeded in do ing so; however, she was asked to drug test several times but did not, making various excuses. When asked if she was using drugs, sh e said she needed to get back into treatment. She said she did not use “a lot” and used alone. In April 2014, N.H. was discharged from the hospital and placed with her
brothers. In early June 2014, Jessica was admitted to Nirvana for residential treatment. She tested positive for methamphetamine at the time of her admission. According to the staff, Jessica’s attitude and demeanor had greatly im proved and she was engaging in services. She also regularly visited th e children once a week for tw o hours. She interacted appropriately with them and did her best to attend to all three children. However, on several occasions while visiting the children at the agency facilitie s, the staff noticed Jessica had difficulty caring for all th ree children at the same time. In July 2014, Jessica successfully completed residen tial treatment at Nirvana and transitioned to Redwood Family Center and day treatment at Nirvana. However, the agency was concerned th at she maintained contact with father. Consequently, Caradonna
checked Jessica and father’s Face book pages. In two separate postings in August, father
stated that he missed Jessica a nd the children and had fun with Jessica the day before. He said they were both excited. In the other post father stated that Jessica called him and wanted him to go with her to the hospital to see her “pops.” Jessica adamantly denied having any contact with father. She said she went to see her grandfather in the hospital
but father was not there. She believed he heard about her grandfather through her family’s Facebook page. In mid-August 2014, Caradonna rece ived a progress report from Tracey McCullough, Nirvana’s Program Director, st ating that Jessica was attending group6 sessions, working with her sponsor and testi ng negative for drugs. Jessica was tentatively scheduled to complete day treatment in early September 2014 and transition to First Step for outpatient services. McCullough noted that Jessica was complacent at times and appeared to be going through the motions. By the end of September 2014, Jessica had been in treatment at First Step for approximately a month. According to the pr ogram director, she wa s compliant with the program standards, had an excellent attitude and tested negative for drugs. She also completed eight of the require d eight parenting group sessi ons, was attentive to group topics, completed her assignments and was re ceptive to suggestions and feedback. Jessica was also participating in domes tic violence and individual counseling though Sierra Vista Child & Fa mily Services. Jessica appe ared motivated and open to counseling since she retu rned to services in July 2014. She was able to identify the
characteristics of a batterer and how ch ildren are affected by domestic violence and
discussed how she could make better life c hoices. Her counselor believed she could make further progress if she continued to a ttend counseling consistently and comply with the program requirements. Jessica was also reportedly doing well at Redwood. According to the program director, she attended the required NA/AA meetings, met weekly with her sponsor, participated in drug treatment and tested negative for drugs. In addition, she was
attentive to the childre n during their monitored visits, a ppropriately disciplined them and
never left them unattended. In October 2014, the juvenile court cond ucted a contested 6-month review hearing as to N.H. and 12-month review hearing as to Christian and Aaron. The agency’s recommendation going into the hearing was to terminate Jessica’s reunification services
as to all three children because Jessica had not made sufficient progress toward meeting her case plan objectives and did not appear ab le to do so in the time remaining. The agency was particularly concerned about the possibility Jessica was going through the7 motions of treatment given her failure to se ek out support after she relapsed and her
resistance to continue treatme nt. The agency was also concerned that Jessica had difficulty maintaining healthy boundaries in her personal relationships and at times struggled to manage all three children wi thout assistance during visitation.
Jessica was the sole witness at the contes ted hearing. She testified that she was 24 years old and first used methamphetamine wh en she was 16. She last used the drug in June 2014, the day she entered Nirvana. Pr ior to that, she was using methamphetamine “pretty much on a daily basis. ” She was still receiving treat ment at First Step, working on step three of the 12-step program and had a sponsor. She was participating in, but had not completed, parenting classes and indivi dual and domestic violence counseling.
Jessica testified she last saw father in J une 2014 before she went into treatment. She was at a park near her aunt’s house an d he approached her. She walked away from
him and had not seen him since. She denied having any contac t with him on Facebook. At the conclusion of the hearing, the juve nile court found it would be detrimental
to return the children to Jessica’ s custody. It also found that Jessica had not participated regularly and made substantive progress in he r services plan and that there was not a substantial probability the ch ildren could be returned to her within the statutory timeframe. Consequently, the co urt terminated Jessica’s reuni fication services as to all three children and set a section 366.26 hearing. This petition ensued.
DISCUSSION Jessica contends the juvenile court e rred in finding there was not a substantial probability the children co uld be returned to her custody by the 18-month revi ew hearing. As framed, Jessica’s contentio n presumes that the juven ile court had the option of continuing her reunification services to the 18-month review hearing as to all three children. Such is not the case, however, beca use the juvenile court’s rulings arise from a combined 6- and 12-month review hearing a nd the governing statutes, section 366.21,8 subdivisions (e) and (f) respec tively, impose different timelin es on reunification services. Thus, in order to address Jessica’s contention, it is necessary to provide a brief overview of the dependency law related to the duration of reunification services and the juvenile court’s considerations at the 6- and 12-month review hearings. When the juvenile court determines, as it did here, that a child cannot be returned to parental custody, its decision whether to continue reunification services depends on the child’s age at the time of the initial removal and the stage of the proceedings. (§ 361.5, subd. (a).) If the child was un der the age of three years, reunification services are presumptively limited to six m onths from the date of the dispositional hearing but no longer than 12 months from the date the child entered foster care. 2 (§ 361.5, subd. (a)(1)(B); Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 .) If the child was three years of age or older reunification services are presumptively limited to 12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(A).) Notwithstanding these limitations, the juvenile court may continue re unification services at the 12-month review hearing for any child up to 18 months af ter the child was orig inally removed from parental custody. (§ 361.5, subd. (a)(3).) Christian and Aaron were originally re moved from Jessica’s custody in August of 2013. Thus, all other considerations aside, the juvenile court could have continued
services for Jessica as to them until Fe bruary 2015 applying the 12-month review statutory limitation. The court’s limitation as to N.H. was different because it had to apply the six-month review statute. Since N.H. entered foster care on March 13, 2014 (the date of N.H.’s jurisdictional hearing), Je ssica’s services as to her were presumptively
limited to March 2015.

2 Under section 361.49, “a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing ... or the date that is 60 days after the date on which the child was initially removed fr om the physical custody of his or her parent ....”9 The question then is whether the juven ile court erred in finding there was not a substantial probability th e children could be returned to Jessica within the timeframes as
set forth above. The dependency statutes offer more lenien cy in the early stag es with respect to continuing reunification services . The implications of the juvenile court’s “substantial probability of return” finding refl ects this shift. At the 6-month review hearing, the juvenile court must continue reunification se rvices to the 12-month review hearing if it finds there is a substantial probability the child may be returned to parental custody. Even if the juvenile court finds there is not a substantial probability of return, the court may still continue services. ( M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 176. ( M.V .).) Such is not the case at the 12-month re view hearing. The juvenile court must
terminate reunification services if it finds ther e is not a substantial probability of return. (§ 366.21, subd. (g)(1).) In order to find a substantial probability of return at the 12-month review hearing, the juvenile court must find pursuant to s ection 366.21, subdivis ion (g)(1) all of the following: (1) the parent c onsistently and regularly cont acted and visited the child; (2) the parent made significant progress in reso lving the problems that led to the child’s removal; and (3) the parent demonstrated the capacity and ability to complete the objectives of his or her treatment plan and provide for the child’s needs. (§ 366.21, subd. (g)(1).) At the six-month review hearin g, the court is not limited to these three factors (subdivision (g) factors) and may consider all of the evidence. ( M.V ., supra , 167 Cal.App.4th at p. 181.) We review the juvenile court’s finding there is not a substantial probability of return for substantial evidence. ( Kevin R. v. Superior Court (2010) 191 Ca l.App.4th 676, 688-689.) Whether the juvenile court made th e correct decision upon its findings of fact
is reviewed under the abuse of discretion standard. ( In re Brequia Y . (1997) 57 Cal.App.4th 1060, 1068.)10 With those principles in mind, we turn to Jessica’s contentions. Jessica contends the only evidence she was not likely to reunify with the children wa s that she had only been engaged in services for approximately four months. If given until February 2015, she further contends, she could have comple ted her programs and demonstrated another seven to eight months of sobriety. She poin ts out that she regularly visited the children and made significant progress in her court-ordere d services plan “even if for only the past four months.” She argues the juvenile cour t should have consider ed the hardships she faced early in the reunification period (i.e. N. H.’s birth and critical illness) in assessing her progress, as well as the fact that she wa s in a residential substance abuse treatment
program. We conclude substantial evidence suppor ts the juvenile court’s finding there was
not a substantial likelihood the children co uld be returned to Jessica in the time remaining. As to the subdiv ision (g) factors, no one disp utes that Jessica visited and
maintained contact with the children. The evid ence does not, however, support a finding she made significant progress in treating he r methamphetamine abuse. She had over 12 months to achieve some level of recovery . Instead, she was in and out of drug treatment programs and continuing to use me thamphetamine. It was not until June 2014, nine months into the reunification peri od, that she settled into treatment. At the combined hearing, the juvenile court told Jessica that it would have
continued services for her had she demons trated such progress sooner. However, the court stated it could not find a substantial proba bility the children could be returned to her and the evidence supports that unlikelih ood. Jessica has a long history of methamphetamine abuse and a hi gh relapse potential. She also demonstrated a resistance to treatment multiple times dur ing this reunifi cation period. As to Jessica’s contention the juvenile court should have considered how N.H.’s birth and illness impacted her ability to participate in services, the record is silent as to
whether or how the court viewed that eviden ce. Having reviewed the record, however,11 we can say that the juvenile court was very sympathetic to Jessica. We can presume that
it considered how N.H.’s illne ss impeded Jessica’s progress. However, we must note that
N.H.’s condition had resolved in April 2014, at least to th e point where N.H. could be discharged from the hospital, and yet Jessi ca continued to use methamphetamine. Therefore, Jessica cannot attribute all of her delay in pursuing treatme nt to N.H.’s illness. Finally, Jessica’s contention the juvenile court should have considered her status
as a resident of a substance abuse treatm ent program is misplaced. Section 361.5, subdivision (a)(3) requires the court to cons ider the special circumstances of a parent
court ordered to a substance abuse treatment program in deciding whether to continue reunification services. These parents are to be given special consideration to the extent
that their residential status lim its or bars access to services and ability to maintain contact with the child. (§ 361.5, su bd. (a)(3).) Jessica was not in residential treatment when the juvenile court decided not to extend her servi ces. In addition, there is no evidence that Jessica at any time was limited or barred from accessing services or contacting her
children. In light of the foregoing, we conclude substantial evidence supports the juvenile court’s finding there was not a substantial pr obability the children co uld be returned to Jessica’s custody within the statutory time rema ining. We further conclude the juvenile
court did not abuse its discretion in not conti nuing reunification services for Jessica as to N.H. Finally, we conclude substantial evid ence supports the juvenile court’s orders terminating Jessica’s reunification services as to Christian, Aaron and N.H. and setting a section 366.26 hearing. Notwithstanding our opin ion, nothing precludes Jessica from petitioning the juvenile court pursuant to section 388 to m odify its order terminating her reunification
services should circumstances ch ange such that it would be in the children’s best interest
to do so.12 DISPOSITION The petition for extraordinary writ is denied. This opini on is final forthwith as to
this court.