In re Alexandria P.

Filed 6/18/08 In re Alexandria P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline Lewis, Juvenile Court Referee. Affirmed.

Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant Dawn G.

Joseph D. Mackenzie, under appointment by the Court of Appeal, for Respondent Robert P.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Deputy County Counsel, for Plaintiff and Respondent.

___________________________

Appellant Dawn G. (mother) appeals from the juvenile courts jurisdictional and dispositional orders establishing dependency jurisdiction over Alexandria P. (born 1/91) and Aaron P. (born 12/96), removing Aaron from her custody, granting Robert P. (father) sole legal and physical custody of Aaron, and terminating jurisdiction.

Mother contends juvenile court jurisdiction was improper because this case involved parental custody and visitation issues that should have been adjudicated in family law court, the petition filed under Welfare and Institutions Code section 300 failed to allege facts sufficient to establish jurisdiction, and the evidence was insufficient to support the juvenile courts jurisdictional findings. Mother further contends the juvenile court abused its discretion by removing Aaron from her custody and by denying her reunification services.

We affirm the juvenile courts jurisdictional and dispositional orders. Dependency jurisdiction was proper in this case, and substantial evidence supports the juvenile courts jurisdictional findings. The juvenile court did not abuse its discretion by ordering Aaron removed from mothers custody, denying her reunification services, and terminating jurisdiction.

BACKGROUND

1. December 13, 2006 Detention Report

On December 8, 2006, Long Beach police officers responded to two 911 calls initiated by then 15-year-old Alexandria. Alexandria told the officers that mother was using speed, and that mothers behavior was driving her crazy to the point that Alexandria was thinking of harming herself. When responding to the first call, police officers found a methamphetamine pipe in mothers room, but left Alexandria in the home without taking further action. Police officers responded to the second 911 call with personnel from the Los Angeles County Department of Mental Health and the Los Angeles County Department of Children and Family Services (DCFS).

A DCFS social worker interviewed Alexandria, who was caring for her own three-month-old son, Gino A.[1] Alexandria said that mother had been using methamphetamine for the past 18 months, and would ingest the drug by inhaling it through a straw or smoking it in a pipe. Alexandria told the social worker that strangers often appeared at the home to purchase drugs, and that she had called the police because she was afraid the authorities would raid the home and remove Gino from her custody. She said mother often accused her of untrue and irrational things, threw objects at her, and kicked in her bedroom door. Alexandria admitted to assaulting mother in the past. She was incarcerated for assaulting mother in October 2005 and was on probation from November 2005 through September 2006. Alexandria said that Ginos father, 22-year-old George A., had lived in mothers home from June 2006 through November 2006. She said she had dated George since she was 13 or 14 years old and that mother knew about the relationship.

In a separate interview with the social worker, mother denied using methamphetamine or any illegal substance. Mother also denied ownership of the pipe found in her bedroom, and claimed that Alexandria had planted the pipe. When asked why her daughter would do such a thing, mother said that Alexandria was angry because mother had confronted her about accepting $75 worth of collect telephone calls from a friend. The social worker observed several open wounds on the right side of mothers face, which mother claimed were warts removed by a dermatologist. Mother could not, however, provide the social worker with the dermatologists name, address, or telephone number. Mother said she did not know about Alexandrias sexual relationship with George A. until Alexandria was three months pregnant. She denied allowing George A. to reside in her home, but admitted that she let him stay with Alexandria during the day while mother was at work.

Long Beach Police Officer W. Starbird told the DCFS social worker that the wounds on mothers face were likely caused by methamphetamine use over an extended period of time. Officer Starbird further stated that she strongly suspected mother to be under the influence of some drug, because mother repeated the same statements over and over and could not stay still.

The social worker interviewed father on December 9, 2006. Father had ended his relationship with mother in April 2004 and resides in a separate residence. Father told the social worker that he believed mother began abusing drugs approximately 18 months ago. When asked whether mother had any problems with her skin in the past, father replied no, and went on to advise the social worker that mothers methamphetamine use had caused the sores on her face. Father admitted to using marijuana in the past, but said that he quit when he left mother in April 2004. He expressed his willingness to submit to drug testing.

Father said the children had called him in May 2006 to inform him that mother was keeping company with undesirable people who were using methamphetamine. Aaron moved out of mothers home and began living with father at about that time. Father reported what the children had told him to both DCFS and the Long Beach Police Department; however, after investigating the matter, DCFS was unable to verify mothers drug use and the allegations were deemed unfounded.

Father said that Alexandria has been in physical altercations with several tenants in his apartment building, and that his landlord told him that he will be asked to leave if Alexandria moves in with him. Father further stated that he does not currently have the space or financial resources to house Alexandria and Gino.

Aaron told the social worker that he had been living with father for the past four to six months, and that he enjoys living with father. He said that when he had lived with mother, she often left him alone with Alexandria. Aaron called father on two or three occasions when mother had left the children alone, and father would take them to his home until mother returned. He told father that he no longer felt safe living with mother, and father had Aaron move into his home.

2. Section 300 Petition and Detention Hearing

On December 13, 2006, DCFS filed a petition pursuant to Welfare and Institutions Code section 300,[2] subdivisions (b), (d), (g), (i), and (j), alleging that Alexandria was sexually abused by her 22-year-old male companion, resulting in her pregnancy and the birth of Gino A., and mother failed to take action to protect Alexandria from such abuse, putting both children at risk of physical or emotional harm; mothers history of substance abuse and her current abuse of methamphetamine rendered her incapable of providing the children with regular care and supervision and endangers their physical and emotional health and safety; fathers history of substance abuse rendered him incapable of providing the children with regular care and supervision; mother created a detrimental home environment by throwing objects at Alexandria and kicking the bedroom door; mother left the children home alone without adult supervision for extended periods of time; and father is unable to provide Alexandria with the basic necessities of life.

At the detention hearing on December 13, 2006, the juvenile court found that a prima facie case existed for removing the children from mothers home and ordered them both detained. The juvenile court further found that father was the presumed father of both children, and released Aaron to father. Alexandria and Gino were placed in shelter care. The court ordered DCFS to provide family reunification services to both parents; monitored visitation and referrals to mother for drug rehabilitation, testing, and individual counseling; and referrals to father for parenting classes and conjoint counseling with Alexandria.

An interim review report dated December 20, 2006, stated that Alexandria and Gino had left their foster care placement without permission and their whereabouts were unknown. The juvenile court issued a protective custody warrant for Alexandria and Gino on December 20, 2006.

3. January 25, 2007 Jurisdiction/Disposition and Interim Review Reports

As of January 25, 2007, Alexandrias and Ginos whereabouts were still unknown. Alexandria had telephoned the social worker on January 11, 2007, to recant the allegations she had made about mothers drug use. Alexandria told the social worker that she had falsely accused mother because she was angry with mother.

In a December 28, 2006 interview, Aaron stated that George A. had lived on and off in mothers home both before and after Ginos birth and slept in Alexandrias room. Aaron said he had seen mother smoke marijuana on about four occasions, and had seen her use a pipe for drugs once or twice. When mother used drugs, she would get drowsy and tired, she would yell at Alex, sometimes me. Aaron also reported that mother kicked, slapped, and punched Alexandria once a month or every two or three weeks, and that when Alexandria attempted to telephone the police, mother unplugged the phone.

In a January 4, 2007 interview, mother denied allowing George A. to live in her home. She also denied knowing Georges age or that he had been involved in a sexual relationship with Alexandria. When mother learned that George was 22 years old, she did not notify the police about his sexual relationship with Alexandria because he was providing financial support for Gino. Mother denied using or selling drugs and expressed her refusal to enroll in a drug program. She said that Alexandria had obtained the methamphetamine pipe found in mothers bedroom from a dumpster at their apartment building and accused Alexandria and father of plotting against her. Mother also denied hitting Alexandria or kicking in her door and denied leaving the children alone for extended periods of time.

In a December 28, 2006 interview, father said that Aaron had informed him about George A. spending the night in mothers apartment. When mother made no effort to stop the relationship, father notified the authorities, but the police told him they could do nothing unless Alexandria herself reported a rape. Father also telephoned the police when Aaron told him that mother had left him alone. Father reported that Alexandria also called him to complain about mothers drug use. Alexandria once showed father a bag she had found in mothers room containing several pipes and plastic baggies containing a white substance.

4. Mothers Contacts With Aaron

In January 2007, father reported that mother was calling him repeatedly and using excessive profanity on the phone and in voice messages. Aaron also told the social worker that he wanted mother to stop calling and leaving threatening messages. In response, DCFS arranged to have Aaron call mother on a daily basis for monitored telephone calls.

On January 29, 2007, when father and Aaron left for school in the morning, they discovered that mother had discarded Aarons bicycle and various articles of his clothing on the lawn outside fathers residence. Aaron sat in the car while father retrieved the childs possessions.

On February 9, 2007, mother screamed at Aaron during a monitored telephone call and complained about being on the speaker phone. During a February 15, 2007 monitored call, mother spoke repeatedly about how no one at DCFS answered the phone. When father told mother to discuss something else, mother cursed at father, and father terminated the call. At a hearing on March 7, 2007, the juvenile court suspended mothers telephone contact with Aaron pending further court order, but ordered DCFS to ensure that mothers weekly monitored visits continued.

On April 10, 2007, a hearing was held on an ex parte request by father for a temporary restraining order against mother. Fathers counsel explained that a restraining order was necessary because mother was appearing at fathers apartment complex, dumping food on his car, and yelling at him from the street, and that her behavior was upsetting to both Aaron and the apartment manager. The juvenile court granted fathers request and issued a temporary restraining order against mother, requiring her to stay 100 yards away from father and Aaron, except for court ordered monitored visitation.

DCFS arranged for one-hour weekly monitored visits between mother and Aaron. Mother was 30 minutes late for the January 18, 2007 visit. On January 4, 2007, Aaron told the social worker that he did not want to visit with mother for an hour and preferred that the visits last 30 minutes instead. The February 1, 2007 and February 8, 2007 visits occurred without incident. Mother failed to appear at the February 15, 2007 visit, and arrived an hour late for the February 22, 2007 visit. She also missed a scheduled visit with Aaron on June 6, 2007, and was 40 minutes late for the June 13, 2007 visit.

5. Case Plan Compliance

Mother was referred to random drug testing and tested negative on January 23, 2007 and April 14, 2006. Mother missed drug tests on February 5, February 28, March 15, March 26, March 27, April 11, April 27, May 9, May 21, and June 11, 2007. As of June 2007, mother had failed to enroll in any parenting, counseling, or substance abuse treatment services.

By May 2007, father had completed a parenting class and had drug tested on four occasions, the results of which were all negative. He had also enrolled Aaron in individual counseling.

6. Adjudication Hearing

A contested adjudication hearing commenced on May 17, 2007. The juvenile court received into evidence all of DCFSs reports, subject to cross-examination of the social workers. At the outset of the hearing, the juvenile court struck the allegations in DCFSs section 300 petition that mother failed to protect Alexandria from sexual abuse by George A., and that father was incapable of providing the children with adequate care.

Aaron testified that he saw mother smoke marijuana in her home on three or four occasions, and that he also saw mother use a pipe to smoke a white powder and a green substance that looked like salad. He saw the white powder in a small square baggie lying on a dresser in mothers bedroom maybe twice. Aaron also witnessed altercations between mother and Alexandria in which the two would hit, slap, and scratch each other.

DCFS social worker, Deborah Jaffe, testified concerning mothers weekly visits with Aaron. She described an April 5, 2007 visit that had to be cancelled because mother wanted to confront Aaron about statements he had made to social workers. Ms. Jaffe also described a subsequent visit when mothers loud comments about the monitored visits made Aaron uncomfortable. When Ms. Jaffe intervened, mother responded in a loud voice and Aaron began to cry.

Father testified that he stopped living with mother approximately two years ago. Shortly after he moved out, Alexandria informed him that she had found drugs in mothers room. Father went to mothers home, and Alexandria showed him a small pouch containing two or three pipes and several plastic baggies containing a white residue. Father further testified that during one telephone conversation with Alexandria, he could hear mother screaming in the background. He telephoned the police and went to mothers home. When the police entered the home, mother dashed into her bedroom and father could smell marijuana. Father also stated that Aaron had called him on two or three occasions to report that mother was using drugs and had left him home alone. Father telephoned the police because Aaron was left alone.

Mother testified and denied leaving the children home alone for extended periods of time. She also denied using methamphetamine and said she had not smoked marijuana in 17 years. Mother denied possessing any paraphernalia used to ingest methamphetamine. She said Aaron was lying when he testified that he had found white powder in a small plastic bag in mothers bedroom. When questioned about the open sores on her face, mother testified that she suffered from warts her entire life, as documented by dermatologists. Mother denied being inappropriate during her visits with Aaron and could not explain why Aaron had cried during one visit.

George A. testified on mothers behalf and said that Aaron was lying about drugs in mothers home. He said Alexandria had never told him that mother used drugs and that any statements Alexandria made against mother were made by someone impersonating Alexandria.

At the conclusion of the hearing, the juvenile court found the allegations that mother was a current abuser of methamphetamine, created a detrimental home environment by throwing objects at Alexandria and kicking the childs bedroom door, failed to provide adult supervision for the children, and placed the children at risk of physical harm, damage, and danger, all to be true. The court continued Alexandrias disposition until she could be located.

After hearing argument from the parties, the juvenile court found that Aaron was at risk in mothers care, and ordered him removed from mothers custody. The court further found that Aaron was safe with father, and that there was no need for continued jurisdiction. The court terminated dependency jurisdiction and issued family law custody orders granting father sole legal and physical custody of Aaron. Mother was given monitored visitation. The juvenile court issued a permanent restraining order against mother and in favor of father and Aaron until June 21, 2010. The restraining order allowed mother to contact Aaron only for court ordered visitation.

Mother filed this appeal.

DISCUSSION

I. Standard of Review

We review the juveniles courts jurisdictional findings under the substantial evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record to determine whether there is any reasonable, credible, and solid evidence to support the juvenile courts conclusions, resolve all conflicts in the evidence, and make all reasonable inferences from the evidence in support of the courts orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We review the juvenile courts dispositional orders for abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)

II. Jurisdiction

A. Dependency Court Versus Family Law Court

Mother contends dependency court jurisdiction was improper because this case involved parental custody and visitation issues that should have been adjudicated in family law court. Family law and juvenile dependency courts have separate purposes. (In re Chantal S. (1996) 13 Cal.4th 196, 201.) The family law court provides parents a forum in which to resolve . . . private issues relating to the custody of and visitation with children. In that setting parents are presumed to be fit and capable of raising their children. [Citation.] The juvenile court, by contrast, provides the state a forum to restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents or guardians. [Citation.] . . . [A]lthough both courts focus on the best interests of the child, [t]he presumption of parental fitness that underlies custody law in the family court . . . does not apply to dependency cases decided in the juvenile court. [Citation.] (Id. at pp. 200-201.)

The instant case was not a private custody dispute between parents. At issue here was mothers fitness as a parent, which came under the juvenile courts scrutiny because of mothers substance abuse, neglect, and physical and emotional abuse of the children. Resolution of this issue fell squarely within the jurisdiction of the juvenile dependency court. (In re Chantal S., supra, 13 Cal.4th at p. 201.)

B. Sufficiency of the Petition

Mother challenges the sufficiency of the allegations in counts b-4, b-5, and j-2 of the petition, claiming that they fail to state facts sufficient to establish jurisdiction under section 300. DCFS argues that mother waived this argument by failing to challenge the sufficiency of those allegations in the juvenile court. Alternatively, DCFS claims the petition was sufficient.

There is a conflict in authority as to whether a parent waives the right to challenge the sufficiency of the allegations in a dependency petition on appeal after failing to raise the issue in the juvenile court. (Compare In re James C. (2002)104 Cal.App.4th 470, 481, In re S.O. (2002) 103 Cal.App.4th 453, 460, and In re Shelley J. (1998) 68 Cal.App.4th 322, 328 [factual deficiency of petition waived on appeal if not challenged in juvenile court] with In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1132-1133, and In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [no waiver].) We need not resolve this conflict, however, because even absent any waiver, the allegations here were sufficient to establish juvenile court jurisdiction.

Section 300, subdivision (b) accords the juvenile court jurisdiction over a child if [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child. ( 300, subd. (b).) A challenge to the sufficiency of a petition is treated as a demurrer. [Citations.] A reviewing court construes the well-pleaded facts in favor of the petition and determines whether a basis for jurisdiction is stated. [Citations.] (In re James C., supra, 104 Cal.App.4th at p. 480.) [A] facially sufficient petition . . . does not require the pleader to regurgitate the contents of the social workers report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction. (In re Alysha S., supra, 51 Cal.App.4th at pp. 399-400.)

The allegations in counts b-4 and j-2 of the petition state: On numerous prior occasions, the children Alexandria [P.] and Aaron [P.]s mother, Dawn [G.], created an endangering and detrimental home environment for the child, Alexandria [P.]. The endangering and detrimental home environment included but was not limited to the mother throwing various objects at the child and the mother kicking the childs bedroom door. Such an endangering and detrimental home environment established for the child, Alexandria [P.], by the mother endangers the childs physical and emotional health and safety and places the child and the childs sibling, Aaron [P.] at risk of physical harm, damage and danger.

These allegations are sufficient to establish jurisdiction under section 300, subdivision (b). Although mother claims the petition is deficient because no injury or actual harm is alleged, the absence of such an allegation does not defeat jurisdiction. The statute accords dependency jurisdiction if there is a substantial risk of physical harm, and throwing objects at a child places the child at risk. Actual harm or injury need not be alleged.

Mother also challenges the sufficiency of the allegations in count b-5 of the petition, which states: On numerous prior occasions, the children Alexandria [P.] and Aaron [P.]s mother, Dawn [G.], left the children alone without adult supervision for an extended period of time. Further, such failure to provide adult supervision for children by the mother endangers the childrens physical and emotional health and safety and places the children at risk of physical harm, damage and danger.

Mother argues these allegations are insufficient to establish jurisdiction because (1) Alexandria was 15 years old, had a child of her own, and was capable of babysitting nine-year-old Aaron in mothers absence; (2) father had testified about only one occasion, in April 2006, when mother had left the children alone; and (3) there is no allegation of substantial risk of harm to the children. Mothers arguments are without merit. The petition on its face alleges that mother left the children alone [o]n numerous occasions for an extended period of time and that the failure to provide adult supervision endangered the childrens physical and emotional health and safety. These allegations are sufficient to establish jurisdiction under section 300, subdivision (b).

C. Sufficiency of the Evidence

Mother contends there was insufficient evidence to support the juvenile courts jurisdictional findings concerning mothers substance abuse. Substantial evidence supports those findings. Long Beach police officers found a methamphetamine pipe in mothers room when responding to a 911 call from Alexandria on December 8, 2006. Alexandria told a DCFS social worker that mother had been using methamphetamine for approximately 18 months and that she would ingest the drug by inhaling it or smoking it in a pipe. The social worker observed open wounds on mothers face consistent with sustained methamphetamine use. Officer Starbird observed that mothers speech and behavior was also consistent with someone who was under the influence of drugs. Aaron described in detail mothers substance abuse. He testified that he saw mother use a pipe to smoke a white powder and a green salad-like substance three or four times in her home.

Mother disputes Officer Starbirds opinion that mother was under the influence of drugs at the time the children were detained. She also challenges the credibility of fathers testimony as tainted by his underlying desire to avoid child support and claims that father coached Aaron to testify along the same lines. Under the substantial evidence standard, however, all conflicts in the evidence must be resolved in favor of the juvenile courts findings, and we defer to the juvenile court on issues of credibility of the evidence and witnesses. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.)

There was also evidence that mothers substance abuse caused a substantial risk of harm to the children. Mothers drug use precipitated a 911 call by Alexandria, in which she threatened to harm herself. Both children had access to drugs in mothers home, and other substance abusers frequented the home. Aaron stated that he was often left home alone, and that he no longer felt safe living with mother. Substantial evidence thus supports the juvenile courts jurisdictional findings.

III. Disposition Orders

Mother challenges the juvenile courts dispositional orders removing Aaron from her custody, denying her reunification services, and terminating jurisdiction. As we discuss, the record discloses no abuse of discretion.

A. Removal Order

Section 361, subdivision (c) states that a child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence that [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1).)

1. Applicable Standard of Proof

Mother claims the order removing Aaron from her custody must be reversed because the juvenile court failed to state on the record its express finding that clear and convincing evidence supported Aarons removal. She argues that the circumstances of this case are similar to those in In re Henry V. (2004) 119 Cal.App.4th 522, in which the court reversed an order removing a child from the mothers custody because there was no indication on the record that the juvenile court understood the necessity of making the dispositional findings on clear and convincing evidence. (Id. at p. 530.) The court in Henry V. noted that the clear and convincing evidence standard was not mentioned at the hearing or in the social workers reports, and although the dispositional order form contained a box for determining the allegations of the petition true by clear and convincing evidence, . . . this box was left blank. (Ibid.) In this case, although the juvenile court did not expressly state the words clear and convincing evidence when making its dispositional findings, the written order removing Aaron from mothers custody plainly states the courts findings by clear and convincing evidence. The record indicates the juvenile court applied the proper standard.

2. Sufficiency of the Evidence

Mother contends there was insufficient evidence to support the juvenile courts removal order, arguing there was no evidence linking mothers alleged drug use to a lapse in parenting. Substantial evidence supports the juvenile courts order removing Aaron from mothers custody. There was evidence that mother was under the influence of drugs at the time of detention, that mother used drugs in the childrens presence on multiple occasions, and that drugs and drug paraphernalia were available to the children. Mother left Aaron home alone, causing him to be fearful and prompting him to call father. Mother hit, slapped, and scratched Alexandria in Aarons presence. Mothers inappropriate behavior during monitored telephone calls caused the juvenile court to suspend telephone contact with Aaron. Mother failed to appear for several scheduled monitored visits with Aaron and her inappropriate behavior during certain visits resulted in the cancellation or termination of those visits. Mother failed to appear for drug testing and to enroll in any drug counseling or treatment program. Finally, mothers erratic behavior outside of the monitored visits, including yelling in the street in front of fathers apartment building and depositing Aarons belongings on fathers front lawn, caused the juvenile court to issue a restraining order against her.

Mothers reliance on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 in support of her position is misplaced. In that case, the court determined that the evidence was insufficient to support a finding that the parents use of marijuana on a single occasion put the children at risk when there was no evidence of clinical substance abuse, no testimony from a medical professional, no testimony of a clinical evaluation, and no testimony linking the parents marijuana use to a lapse in parenting skills or judgment. (Id. at p. 1346.) Here, the children themselves stated that mother had used methamphetamine or marijuana in their presence on multiple occasions, that mother yelled at them after using drugs, and that mother often left them home alone. No clinical evaluation, or testimony from a medical professional, was necessary in this case.

B. Denial of Reunification Services

When the juvenile court removes a child from the custodial parents home and places the child with the formerly noncustodial parent, section 361.2 accords the court discretion as to whether to order reunification services for the parent who has lost custody. ( 361.2; In re Erika W. (1994) 28 Cal.App.4th 470, 474-476; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1501-1502, disapproved on another ground in In re Chantal S., supra, 13 Cal.4th at p. 204.) Reunification is one of several options available to the juvenile court under section 361.2, subdivision (b), which authorizes the court to do any of the following: (1) order the formerly noncustodial parent to become the legal and physical custodian of the child, provide reasonable visitation by the noncustodial parent, and terminate its jurisdiction; (2) order the formerly noncustodial parent to assume custody subject to the juvenile courts jurisdiction; and (3) order the formerly noncustodial parent to assume custody subject to the supervision of the juvenile court. Under option three, the juvenile court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody . . . or that services be provided to both parents. (361.2, subd. (b)(3).)

Mother contends the juvenile court abused its discretion by terminating jurisdiction and denying her reunification services with Aaron. She argues that the court disregarded DCFSs recommendation at the adjudication hearing that reunification services be provided. DCFS takes no position with regard to this issue on appeal.

The record discloses no abuse of discretion. At the time of the adjudication hearing, Aaron had been living safely and happily with father for approximately one year. Mother had drug tested twice, with both results negative, but had missed all drug tests scheduled after April 4, 2007. She continued to deny all allegations and failed to enroll in any parenting, counseling, or drug treatment programs. She had either failed to appear, or appeared late, for several monitored visits with Aaron. Mothers erratic behavior outside of the monitored visits caused the juvenile court to issue a restraining order prohibiting her from contacting father or Aaron except through court ordered visitation. Reunification services are a benefit, not a right. (In re Derrick S. (2007) 156 Cal.App.4th 436, 445). The juvenile courts denial of such services in this case was not an abuse of discretion.

DISPOSITION

The orders establishing juvenile court jurisdiction over Aaron and Alexandria, removing Aaron from mothers custody, granting father legal and physical custody of Aaron, and terminating jurisdiction, are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

CHAVEZ

We concur:

__________________________, P. J.

DOI TODD

__________________________, J.

ASHMANN-GERST

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[1] Alexandria and Gino were the subjects of a companion referral by DCFS alleging that Gino was a victim of general neglect by Alexandria.

[2] All further statutory references are to the Welfare and Institutions Code.