Filed 2/28/18 Gustavo P. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO


GUSTAVO P., et al.,
Petitioners,
v.
THE SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent.




A152716

(San Francisco County
Super. Ct. No. JD17-3026)


SAN FRANCISCO HUMAN SERVICES AGENCY, et al.,
Real Parties in Interest.


Ashley M. (Mother) and Gustavo P. (Father) separately petition this court for extraordinary relief from dependency court orders terminating reunification services as to their child H.P. (Minor) and setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the child. Mother and Father argue that they are entitled to additional reunification services, with Mother claiming that, contrary to the court’s determination, she had made substantive progress in the services offered to her and there was a substantial likelihood that Minor could be returned to her care by the 12-month review, and Father claiming that he was denied reasonable services. We conclude that neither parent has shown that the dependency court abused its discretion in terminating reunification services and setting the section 366.26 hearing, and therefore we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Minor Is Detained
Four days after Minor’s birth in January 2017, the San Francisco Human Services Agency (Agency) filed a petition under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling) alleging that he was at risk as a result of his being born exposed to methamphetamines, Mother’s long history of substance abuse and her previous child protective services referrals concerning an older daughter, and Father’s history of drug activity and the lack of a safe environment for an infant in Father’s home. According to the Detention Report that the Agency filed with the petition, Minor remained in the hospital because of concerns about his brain development. The dependency court ordered Minor detained and placed him in foster care, and ordered supervised visits for Mother and paternity testing for Father.
B. Jurisdiction and Disposition
Mother and Father submitted to amended allegations of failure to protect (§ 300, subd. (b), as follows: “B1 – The infant is at substantial risk of abuse and neglect in that the mother has a 14 year history of substance abuse addiction and entered Jelani House [a treatment program] on 1-28-17. Mother and the infant tested positive for methamphetamines at delivery and the mother admitted to using methamphetamines the day before delivery. The baby has [symptoms] of drug exposure including an inability to suck and a[] ‘slightly abnormal neuro exam’. Mother has two older children who are not in her care due to her substance use. Mother is in need of assessment and treatment for drug addiction. [¶] B2 – This minor is at risk as Mother has mental health issues requiring assessment and treatment. [¶] B4 – [Father] is in need of substance abuse assessment. [¶] B5 – The father cannot provide adequate housing at this time.”
The court ordered reunification services for both parents. Mother was ordered to complete a residential drug treatment program and follow recommendation for aftercare; undergo individual counseling that “addresses her history of substance use/abuse, trauma from her child being detained at birth, and alternative ways to cope with her homeless, unstable housing and employment”; “successfully complete a parenting education program focusing on how substance abuse impacts her ability to provide adequate care for her infant child”; and visit the child on a regular basis. Father was ordered to complete a substance abuse assessment and participate in services as recommended; to complete a parenting education program; to visit the child regularly; and to “obtain and/or maintain suitable housing for himself and the child for a reasonable period of time prior to reunification.” With respect to housing, the requirement stated that it was Father’s responsibility to locate and apply for housing, and the Agency’s responsibility to provide housing referrals when needed.
C. Six-Month Review Hearing
In advance of the six-month review hearing, the Agency prepared a status report recommending that the court terminate reunification services and set a section 366.26 hearing. The Agency reported that Minor was healthy, that he had delays in motor skills and was a client of the Golden Gate Regional Center, and that he wore a helmet 23 hours per day to help reshape his head and decrease asymmetry.
The Agency reported that Mother completed three months at Jelani House treatment program and then transferred to another program, Casa Aviva. After about three months she was asked to leave Casa Aviva because she tested positive for methamphetamines and there were concerns that she was using drugs at the house. In addition, several Casa Aviva residents reported they felt threatened by Mother when she became upset during a group, asked to take a break and was not allowed to do so. The Agency facilitated a new intake at a third program, but Mother reported that she could not attend the appointment. For about six weeks, Mother was not in any residential treatment program. Instead, she was squatting in apartments in Potrero Hill with Father, did not maintain sobriety, and did not maintain contact with service providers. After about six weeks, and just 10 days before the status report was submitted to the court, Mother re-entered treatment at a different program, Walden House. From the time of her discharge from Casa Aviva to the preparation of the report, Mother missed a number of scheduled drug tests, and was tested only once, with a positive result.
The Agency observed that Mother could do well in a structured environment, but was unable to remain sober outside of treatment and even while in treatment she used drugs when she was upset by something. Mother had participated in therapy while in residential treatment, but not during the six weeks she was outside residential treatment. Mother had completed just one of three modules of a parenting education program. Mother visited regularly with Minor, and while Mother was at Casa Aviva, visits went so well that they became longer day visits and then overnight visits. But after Mother left Casa Aviva, her demeanor was different during supervised visits. Notes reported that Mother appeared stressed and agitated, with a rough demeanor, and her feelings appeared to be interfering with Minor. Mother cursed and took long bathroom breaks; the visitation supervisor reported that a pipe fell from Mother’s lap during one of the visits. According to the Agency, Mother had shown that she had not developed healthy coping skills, and it was “difficult to assess” her ability to safely care for Minor, a baby with special needs.
The Agency reported that Father completed a substance review assessment at which he disclosed a past addiction to methamphetamines and said he had last used methamphetamines about a year before the assessment. The assessment recommended that Father undergo drug testing to verify his claims of infrequent drug use, but Father did not participate in any drug testing. The assessment also recommended that Father attend a parenting program. The Agency referred Father to a parenting program, but he did not even begin it. Father was able to meet Minor’s basic needs during his visits, but when Father and Mother visited together, Father let Mother perform most of the parenting duties. On some visits Father was seen nodding off and sleeping. The Agency also reported that Father had not obtained or maintained suitable housing for Minor, but “continue[d] to squat in different units on Potrero Hill in San Francisco.”
A contested hearing was held, at which testimony was taken from Mother and the social worker who prepared the status report. The social worker testified that she continued to recommended terminating reunification services to both parents, based on the information in the status report, which had been submitted about three weeks earlier. She testified that since the report was prepared, Mother had three negative drug tests, and had re-engaged in her parenting education program. Mother had been participating in a drug treatment program at Walden House and had transferred to a program that allowed children to live with their mothers. Despite the apparent progress of the last three weeks, the social worker continued to recommend termination of reunification services because Mother had been in several treatment programs during the past six months but had not demonstrated changes in her behavior, and continued to use drugs as a coping mechanism when things didn’t go her way or she was upset about something. Mother tested positive for drugs three times even while in treatment, once at Jelani House and twice at Casa Aviva, and she had not maintained sobriety or contact with service providers during the six weeks she was outside a treatment program.
Mother testified on her own behalf and described her history of drug use and addiction over the past 15 years, including periods of sobriety and relapses. Mother testified that during the past five years she had been using methamphetamines on and off, with time spent sober that was equal to or more than time spent addicted.
After hearing testimony and argument, the dependency court found by clear and convincing evidence that that the Agency complied with the case plans by making reasonable efforts for Minor to return to his parents, and found that that with respect to alleviating or mitigating the causes that led to Minor’s placement, Mother made minimal progress and Father, who had done nothing more than have the required assessment, “less than minimal” progress. The court found by clear and convincing evidence that Mother and Father failed to participate regularly in court-ordered treatment plans, and that there was not a substantial probability of Minor’s being returned to parents within the next six months. The dependency court ordered that reunification services be terminated, and set a hearing under section 366.26.
Mother and Father subsequently filed petitions for extraordinary relief and we stayed the section 366.26 hearing, which was scheduled for February 15, 2018.
DISCUSSION
A. Applicable Law and Standard of Review
“ ‘[F]amily preservation is the first priority when dependency proceedings are commenced.’ (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) To that end, ‘[w]hen a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.’ (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 . . .; see § 361.5, subd. (a).)” (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174 (M.V.).)
For a child who, like Minor, is less than three years old at the time of removal from the family, “the presumptive rule . . . is that ‘court-ordered services shall not exceed a period of six months from the date the child entered foster care.’ (§ 361.5, subd. (a)(2); see In re Christina A. (2001) 91 Cal.App.4th 1153, 1160-1161.” (M.V., supra, 167 Cal.App.4th at pp. 174-175.) Although services are presumptively provided for 12 months to children over the age of three and their parents (§ 361.5, subd. (a)(1)), the developmental needs of younger children “justif[y] a greater emphasis on establishing permanency and stability earlier in the dependency process ‘ “in cases with a poor prognosis for family reunification.” ’ ” (M.V. at p. 175, quoting Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611.)
“ ‘The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months.’ (§ 366, subd. (a)(1).) Pursuant to section 366.21, subdivision (e), the court is required at the initial six-month review to return any dependent 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 . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . 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.’ ” (M.V., supra, 167 Cal.App.4th at p. 175.)
Section 366.21, subdivision (e)(3), requires specialized inquiries at the six-month review for children who are under the age of three when they are removed from their families. “First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that if found by clear and convincing evidence, would justify the court in scheduling a .26 hearing to terminate parental rights.” (M.V., supra, 167 Cal.App.4th at pp. 175-176.) “[T]his inquiry does not require the court to schedule a .26 hearing . . .[;] [i]nstead, it authorizes the court to set such a hearing if the required findings have been made.” (Id. at p. 176.) The Agency has the burden of proving failure to participate and make substantive progress in a treatment plan by clear and convincing evidence. (§ 366.21, subd. (e)(3).)
Section 366.21, subdivision (e)(3), also requires inquiries that “protect[] parents and guardians against premature .26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a .26 hearing if it finds either: (1) ‘there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months’; or (2) ‘reasonable services have not been provided’ to the parent.” (M.V., supra, 167 Cal.App.4th at p. 176, quoting § 366.21, subd. (e).) “In other words, the court must continue the case to the 12-month review if it makes either of these findings. . . . The parent is also entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent.” (Ibid.) The Agency has the burden of proving by clear and convincing evidence that reasonable services have been provided. (§ 366.21, subd. (g)(1)(C)(ii).)
“ ‘We review an order terminating reunification services to determine if it is supported by substantial evidence. [Citation.] In making this determination, we review the record in the light most favorable to the court’s determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” [Citation.]’ (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.)” (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1028 (Fabian L.).)
B. Mother’s Claim
Mother argues that substantial evidence does not support the dependency court finding by clear and convincing evidence that she failed to make substantive progress in her treatment plan and that there was no substantial probability of the return of Minor to her care by the 12-month review, and that therefore the court should not have terminated reunification services. We disagree.
As an initial matter, Mother’s petition focuses on her participation in services, arguing that the record could support findings that she made substantive progress and that there was a substantial probability of Minor’s return to her within the statutory period. The question before us, however, is whether there is substantial evidence to support the dependency court’s findings, and not whether the evidence might support a different conclusion. (Fabian L., supra, 214 Cal.App.4th at p.1028.) Further, it bears emphasizing that Mother’s participation in services, though important, does not fulfill the “requirement [that] a parent make substantial progress towards reunification with a three-year-old child within the statutorily prescribed time period of six months.” (Id. at p. 1029.)
Here, Mother had used drugs since about 2003 and had a history since about 2011 of participating in drug treatment programs and then using drugs again. Her treatment plan in this proceeding required her to complete a parenting education program, to completing a residential drug treatment program and follow recommendations for aftercare, and to undergo therapy to address her history of substance abuse and develop alternative ways to cope. By the time of the six-month review hearing, Mother completed just one of three modules of her required parenting class. Mother had not completed residential drug treatment, to say nothing of following recommendations for aftercare. At one point in her treatment at Casa Aviva, she had progressed enough that overnight visits with Minor were permitted, but just after they were permitted she used drugs because, she said, the visits did not start the day she had hoped. Then, after just two overnight visits, she was asked to leave Casa Aviva for reasons that included a positive drug test. Mother started a new residential program just four weeks before the six-month hearing, after a six-week relapse into drug use during which she did not participate in any services. Although Mother participated in drug treatment services and therapy while she was in residential treatment, she had a six-week relapse into drug use during which she did not participate in any services. Even while Mother was in residential treatment during the course of the dependency proceedings, she had positive drugs tests on three separate occasions; while out of treatment she missed all but one test, on which there was a positive result. All of this constitutes substantial evidence that Mother had not made substantive progress in her treatment plan or in addressing the substance abuse and difficulty in coping that led to Minor being removed from her custody.
Mother’s argument that the dependency court erred in finding that there was no substantial probability of Minor being returned to her within the statutory period rests entirely on her contention that the court erred in finding that she had not made substantive progress in her treatment plan. We reject Mother’s premise, and therefore we also reject her conclusion.
C. Father’s Claim
Father’s primary claim is that the dependency court erred in finding that the Agency provided him reasonable reunification services. The claim is meritless.
The adequacy of a reunification plan is judged according to the circumstances of the case. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.) “[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .” (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) “[W]e . . . recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
Here, substantial evidence supports the dependency court finding by clear and convincing evidence that reasonable services were provided to Father. The record showed that the problems leading to the loss of custody included Father’s inability to provide adequate housing for Minor. The record further showed that the dependency court approved a plan, developed by the Agency with Father’s input, that included a drug assessment and follow-up, a parenting class, and Father’s obtaining suitable housing, which required him to locate and apply for housing. The Agency provided Father with referrals to services, more than once, and Father failed to follow through.
Father’s contention that the Agency “did nothing of substance” to address his needs is belied by evidence that the Agency provided referrals to drug testing and a parenting program, as recommended in Father’s assessment, and the Agency followed up with the providers and Father, though Father declined to participate. His contention that the Agency made no efforts to find a residence for him ignores the fact that it was his responsibility to locate and apply for housing. His contention that the Agency did not make good faith efforts to find his siblings, who might have taken Minor is belied by the fact that one of Minor’s paternal aunts was being assessed for placement.
In sum, substantial evidence supports the finding that the Agency offered Father reasonable services. His failure to engage in them does not constitute a failure by the Agency to offer them.
DISPOSITION
The petitions for extraordinary writ are denied and the stay of the dependency court’s section 366.26 hearing is lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
 







_________________________
Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.










A152716, Gustavo P. v. Superior Court