In re Christian T.

Filed 8/22/08 In re Christian T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanco, Principal Deputy County Counsel, for Plaintiff and Respondent.

Tomson T. (father) appeals from the order terminating reunification services concerning his son Christian T. at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e).^[1] He contends the dependency court lacked jurisdiction to terminate reunification services for him because it continued services for Christians mother. Fathers contention is mistaken, as the dependency court has discretion under section 366.21, subdivision (e) to terminate services for one parent while continuing services for the other parent. Accordingly, we affirm the order.

FACTS AND PROCEDURAL BACKGROUND

Christian, born to Valerie G. (mother) and father^[2]in February 2007, was detained in a foster home by the Department of Children and Family Services at birth because he had methamphetamines in his system. Father abused drugs and was aware mother abused drugs during the pregnancy. On March 8, 2007, father was arrested for drug possession; he was released from custody on April 12, 2007. Christian was detained with the maternal great aunt and uncle on April 19, 2007.

On May 25, 2007, the petition was sustained and Christian was declared a dependent of the court under section 300, subdivision (b), based on allegations that father was a current abuser of drugs which rendered him incapable of providing Christian with regular care and supervision, and endangered Christians health and safety. Custody was taken from the parents, the Department was ordered to provide reunification services, and father was ordered to participate in a drug rehabilitation program, parent education, and individual counseling. Father was granted monitored visitation.

Father visited Christian twice a week until mid-July 2007, when he had a positive drug test. He moved out of mothers home so he would not jeopardize her efforts at reunification. He visited inconsistently until early September 2007, when he stopped visiting. He failed to drug test in August 2007, which was considered a dirty test.

On September 9, 2007, father went to mothers home. Drunk and armed with a knife, he physically assaulted mother. On October 5, 2007, father was arrested and charged with fraud and violation of parole. Father did not stay in contact with the social worker. He was not enrolled in any court-ordered programs.

At the six-month review hearing pursuant to section 366.21, subdivision (e), the Department recommended that reunification services be terminated for father and continued for mother. Father, who was in custody, asked for a contest. The dependency court continued mothers reunification services. At fathers contested hearing on December 5, 2007, counsel argued that reasonable services were not provided to father to help him become rehabilitated and requested reunification services be continued during the next review period. Counsel stated father would be released from custody in June 2008. The dependency court found reasonable reunification services were offered, father did not regularly participate in the case plan or make substantive progress in rehabilitation, and there was no likelihood Christian would be returned to father within the next six months. Fathers reunification services were terminated, and the matter was set for a 12-month review hearing under section 366.21, subdivision (f), on April 28, 2008. This timely appeal followed.

DISCUSSION

Section 366.21, Subdivision (e) Gives the Dependency Court Discretion to Terminate Reunification Services for One Parent While Continuing Them for the Other Parent

Father contends that section 366.21, subdivision (e), does not authorize terminating reunification services for one parent when services for the other parent continue. Fathers contention is incorrect as a matter of law.^[3] The dependency court had discretion under section 366.21, subdivision (e), to terminate fathers reunification services.

Section 366.21, subdivision (e), provides in pertinent part: If the child was under the age of three years 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 probability that the child, who was under the age of three years 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. [] . . . [] . . . [T]he court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services. [] If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.

Section 361.5, subdivision (a), provides in pertinent part: Child welfare services, when provided, shall be provided as follows: [] . . . [] (2) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care. [] . . . [] Regardless of the age of the child, 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.

The issue before us was decided in In re Jesse W. (2007) 157 Cal.App.4th 49, 55: whether, at a six-month review hearing involving dependent minors under the age of three, the juvenile court is required to continue previously offered reunification services for one parent when reunification efforts continue for the other parent and the court does not set a section 366.26 selection and implementation hearing. After analyzing the interplay between sections 366.21, subdivision (e) and 361.5, subdivision (a)(2), the court concluded that the juvenile court may, but need not, continue an offer of reunification services to one parent when services are extended for the other parent and no selection and implementation hearing is set. Given that discretion, . . . the court here properly terminated [the parents] services because the evidence showed [the parent], despite receiving six months of services, made no attempt at reunification and was extremely unlikely to do so in the near future. (Id. at pp. 55-56, 58, 63.) We agree with this holding, and decline fathers invitation to depart from it.

As Christian was under the age of three, the statutory period during which reunification services could be offered to father was six months from the date Christian entered foster care.^[4] ( 361.5, subd. (a).) The six-month reunification period ended in mid-October 2007. The six-month review hearing took place on December 5, 2007. Section 366.21, subdivision (e), gave the dependency court discretion at the six-month review hearing to extend the reunification period if reasonable services had not been offered or if it was likely the father would successfully reunify within the extended period. (In re Jesse W., supra, 157 Cal.App.4th at p. 59.) Since the dependency court found that reasonable services had been provided and there was no probability the child would be returned to father within an additional six months,^[5]father was not entitled to additional reunification services. (See 366.21, subd. (e); In re Jesse W., supra, 157 Cal.App.4th at pp. 55-56, 63, 66.)

DISPOSITION

The order is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J. MOSK, J.

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^[1] Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] The dependency court found Tomson was Christians presumed father.

^[3] Respondent argues father forfeited the contention by failing to assert it in the dependency court. As the contention raises a pure question of law and is the only issue in the appeal, we exercise discretion to consider it.

^[4] Christian entered foster care, within the meaning of section 361.5, subdivision (a), in mid-April, 2007, 60 days after he was detained in mid-February 2007.

^[5] Father does not challenge the sufficiency of the evidence supporting these findings.