California Cases January 10, 2020: A.J. v. Superior Court

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. SWJ1800168)

OPINION

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michael J. Rushton, Judge. Denied.

Colleen Crowley, for Petitioner.

Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath Shettigar, Deputy County Counsel, for Real Party in Interest.

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The juvenile court terminated petitioner, A.J.'s (Mother) reunification services and set the Welfare and Institutions Code section 366.26 hearing as to two-year-old J.M.V. and eight-month-old J.V. (minor or minors). In this petition, Mother contends insufficient evidence supported the court's determination that she failed to make substantive progress in her court ordered treatment plan as to J.M.V., that the court erred in declining to find a substantial probability of J.M.V.'s return to Mother's custody if she were granted six more months of services, and that insufficient evidence supported the court's determination to apply the section 361.5, subdivision (b)(10) (reunification services terminated as to Mother's other children) bypass provision of reunification services to Mother as to J.V.. The petition is denied.

Prior to the current petition, Father had an open juvenile dependency case regarding allegations of general neglect, emotional abuse, physical abuse, and severe neglect by the mother of their two children. The mother was using methamphetamine.

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The children were placed in protective custody on June 13, 2017. Father was given placement with family maintenance services on August 6, 2018.

Mother had an open case with respect to four of her older children in case No. SWJ1800168. The allegations in the petition as to Mother with respect to her four older children were for general neglect and the parents' use of methamphetamine. Mother's 18-month status review hearing was scheduled for December 20, 2018.

On November 19, 2018, Father tested positively for methamphetamine. Father had also missed multiple on-demand drug tests. On November 28, 2018, personnel from real party in interest, Riverside County Department of Public Social Services (Department), took J.M.V. into protective custody.

Department personnel filed a juvenile dependency petition alleging that the parents had an open dependency case as to J.M.V.'s siblings due to substance abuse issues and general neglect (b-1), Father's abuse of controlled substances (b-2), Mother knew or reasonably should have known of Father's substance abuse (b-3), and J.M.V.'s siblings were dependents of the court (j-1). On December 3, 2018, the juvenile court detained J.M.V.

In the jurisdiction and disposition report filed December 19, 2018, the social worker recommended Mother be denied reunification services pursuant to section 361.5, subdivision (b)(10). The social worker reported that Father had tested positively for methamphetamine again on December 11, 2018. Mother admitted all the allegations in

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the petition. Mother missed visits with J.M.V. on December 7, and 11, 2018. When Mother did visit, it was reported that Mother lacked participation and engagement with J.M.V. as Mother just sat at a table and minimally interacted with him. After the visit Mother was seen walking next door to where Father was waiting for her.

Mother was aware of Father's positive drug tests. She had been unable to obtain housing due to Father's extensive criminal history. The social worker conducted a home evaluation to confirm Mother's claim that Father had moved out of the residence. The social worker observed Father leaving the home and hopping over a fence. Mother said he was only retrieving his belongings, not residing there. After a Child and Family Team (CFT) meeting, Mother was seen in "an intimate hold" with Father, who appeared to be waiting for her. Mother's oldest child reported on December 11, 2018, that she saw Father "'hiding behind a wall'" when she left the CFT meeting. She said of her parents, "'My mom will always say he's kicked out but he's always there.'" The social worker was concerned that Mother would continually place Father's needs above J.M.V.'s.

At the hearing on December 20, 2018, the court ordered Mother not to permit contact between J.M.V. and Father. The court continued the matter for a contested jurisdictional hearing. In the detention report filed January 18, 2019, the social worker reported that J.M.V. had been returned to Mother's custody.

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On a January 14, 2019 visit to Mother's home, the social worker spoke to a code enforcement officer who said he had received many calls from Mother. The code enforcement officer said he had seen Father on December 11, 2018, standing on the sidewalk near the residence. On December 18, 2018, Father answered the door of the home.

On January 15, 2019, the social worker spoke with the property manager who said he saw Father at the home on December 24, 2018, talking with Mother who had J.M.V. in a stroller. On December 26, 2018, the property manager visited the home and observed Father hiding in the bedroom. Mother said he was hiding because of the Department; that he was not supposed to be in the home due to failed drug tests. On January 3, 2019, the property manager delivered a three-day eviction notice to the parents; Father was in the home. On January 12, 2019, the property manager saw Father walking out of the home. Mother insisted she had no contact with Father.

On January 17, 2019, when the social worker again took J.M.V. into protective custody, Father was observed at the home. That same day, Department personnel filed a first amended juvenile dependency petition adding an allegation that Mother placed J.M.V. at substantial risk of harm by failing to abide by the court order prohibiting contact between Father and J.M.V. (b-4). On January 22, 2019, the juvenile court again detained J.M.V.

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In an addendum report filed February 1, 2019, the social worker recommended Mother be denied reunification services pursuant to section 361.5, subdivision (b)(10). The social worker reported Mother had been issued a housing voucher, but due to Father's criminal history, she was unable to secure housing; Mother then said she would leave Father if it meant securing housing, but the voucher expired and she failed to apply for an extension. Mother reported she would be living in a motel for two weeks once the voucher expired until she was able to locate housing.

Mother canceled three visits with J.M.V. during the reporting period. At a visit on December 14, 2018, Mother was overheard telling V.F. and R.F. that Father never hit them with a belt. On January 24, 2019, V.F. and R.F. confirmed that Mother told them to tell the court they had never been hit; Mother also told them that Father had purchased them a laptop, puppy, bunnies, and tablets. V.F. reported she had concerns Mother was not capable of separating from Father; Mother responded that the Department had brainwashed the children.

Mother failed to show for one drug test but drug tested negatively three times. Father failed to show for five drug tests. At the jurisdiction and disposition hearing on February 6, 2019, the court found the allegations in the amended petition true, sustained the petition, ordered reunification services for Mother as set forth in the court ordered

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treatment plan proposed by the social worker, and denied reunification services for Father pursuant to section 361.5, subdivision (b)(10).

On March 5, 2019, the social worker filed an ex parte application and order for an "amended" case plan. In it, the social worker notes that at the February 6, 2019 dispositional hearing, the court "ordered the Department to provide an amended [sic] case plan . . . on behalf of the mother . . . as [r]eunification services were offered to her." Mother's case plan and objectives included maintaining a stable and suitable residence, compliance with medical or psychological treatment, participation in a psychological evaluation, participation in individual counseling, random drug testing, and completion of a 16-week anger management program.

In an April 16, 2019 detention report, the social worker reported that on February 6, 2019, the juvenile court terminated the parents' reunification services in case

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No. SWJ1800168 as to the minors' older siblings. Mother gave birth to J.V. in April 2019 and had only two prenatal visits. Father was at the hospital when she gave birth. Mother had moved and would not provide her address to the Department. On April 12, 2019, Father admitted using methamphetamine a week earlier. Father said he was still involved with Mother and was planning on moving in with her and J.V. Mother reported that she let Father come back to her home because she loved him. The social worker reported that the parents had recently completed psychiatric evaluations.

On April 16, 2019, Department personnel filed a juvenile dependency petition to add J.V. The petition alleged Mother had unresolved mental health issues (b-1), Mother had an open dependency case (b-2), and J.V.'s siblings were subject to the court's jurisdiction (j-1). An April 17, 2019 addendum report contained a psychologist's evaluation of the parents dated March 11, 2019. The psychologist noted that Mother had "very significant psychiatric problems which are not being treated properly at this time." Mother seemed "to be a very poor candidate to be a parent." The psychologist diagnosed Mother with generalized anxiety disorder; bipolar disorder; PTSD; and paranoid personality with negativistic, sadistic, and narcissistic aspects. The report stated: "I think she is a very poor candidate to function in a parental capacity." He added: "I question severely whether, in fact, she will benefit from classes, services or counseling. She has already had these services in the past and there are no indications based on my interview and testing today that it has modified her behavior and made her more insightful into the nature of why her children have been out or her [custody] for such a long period of time."

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On April 22, 2019, Department personnel amended the petition as to J.V. to add allegations that Father had an open dependency case as to J.V.'s siblings (b-4), that Father abused controlled substances (b-5), and had an extensive criminal history (b-6). The court detained J.V. the same day.

In the jurisdiction and disposition report filed May 17, 2019, as to J.V., the social worker recommended the court deny Mother reunification services pursuant to section 361.5, subdivision (b)(10). In the first week of April, Mother had reported that she was possibly moving in with a friend "'somewhere in Hemet,'" who did not want her to give the Department the address. On April 8, 2019, the social worker made a visit to Mother's last known address and found it vacant. On April 17, 2019, Mother reported the address of a residence into which she and Father were in the process of moving. However, on April 23, 2019, the social worker spoke to the receptionist for the realtor who said the unit was available and for which an open house was scheduled the next day.

On April 22, 2019, Mother said she would be an in-home support services caregiver for a friend at a specified address. On April 26, 2019, Mother said the address did not work out and she had been staying at an address in San Jacinto. On April 30, 2019, the social worker paid an unannounced visit to the last address reported by Mother; Mother was not there but the property owner invited the social worker in and showed her the room in which the property owner reported the parents had been staying since April 5, 2019. On May 1, 2019, the property owner reported that the parents were no longer

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welcome due to two incidents involving them which included banging on the owner's window at night and sending her threatening messages.

Mother failed to show to seven sessions of therapy between March 6, and May 8, 2019; she attended two sessions. The social worker reported that Mother had received over 18 months of services in the other case and did not benefit from them. Since the detention hearing on April 22, 2019, Mother visited with minors six times; she cancelled two visits.

In an addendum report filed June 13, 2019, the social worker reported that Mother's address remained unknown; Mother refused to provide the Department with her address. The social worker had referred Mother for counseling in February 2019. Since that time she had attended three sessions of counseling. Mother had attended one anger management class. She obtained medical prescriptions which she reported she filled but would not take. Mother visited the children 11 times between April 16 and June 10, 2019; she cancelled four visits. The parents were still together as Father showed up to some visits with Mother.

At the jurisdictional hearing on June 20, 2019, proceeding on the first amended petition filed April 22, 2019, as to J.V., and pursuant to the Department's request, the court struck the b-3 allegation against Father and found the remaining allegations true. The court continued the matter for a contested dispositional hearing.

In the status review report filed July 24, 2019, as to J.M.V., the social worker recommended the court terminate Mother's reunification services. Mother's then current

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whereabouts were unknown. On June 24, 2019, Mother had reported to the social worker that Mother was homeless. Mother failed to show to 13 counseling sessions without calling to cancel. She had shown up to her first visit on May 2, 2019, and two subsequent visits, but was discharged on July 18, 2019, when Mother reported she had moved to Los Angeles county. Mother's therapist reported that Mother "'continues to display the lack of assumption of responsibility concerning her behavior and how her behavior is affecting her case.'" The therapist reported that "'[n]o progress has been made.'" The therapist further noted that Mother needed to understand "'[w]hat it means to be protective of the children.'" He opined, "'I don't see her taking ownership with her circumstances and in order for therapy to work, she has to accept responsibility.'"

The social worker gave Mother referrals for anger management on February 26, 2019. Mother reported she enrolled on March 14, 2019. The social worker's inquiries reflected Mother had not enrolled. Mother reported she attended one class but stopped because they "'just talk.'" All Mother's drug tests were negative. Between February 19 and July 16, 2019, Mother visited with minors approximately 18 times; she failed to show or cancelled 22 times. The parents arrived together at two visits. Mother again reported filling prescriptions but not taking them. Mother also reported that she did not plan on leaving Father because she loved him.

On September 4, 2019, the social worker filed an addendum report regarding both minors. Mother had again reported that she was homeless on July 25, 2019. She continued to refuse to provide the social worker with an address. Between August 7 and

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28, 2019, Mother visited her therapist once; she canceled or failed to show three times. The therapist reported that Mother had not worked on any of her goals, and there was no sign of progress. Mother continued to report that she loved Father and planned to be supportive of him. On August 13, 2019, Mother cancelled one visit with minors.

In a September 9, 2019 addendum report, the social worker observed that Mother reported on August 27, 2019, that she was no longer with Father and that she had attempted to obtain a restraining order against him. However, Father was present when Mother arrived for a drug test on September 3, 2019.

On September 18, 2019, the court held the contested disposition as to minor J.V. on the first amended petition filed April 22, 2019, and the contested review hearing on the second amended petition filed January 18, 2019, as to J.M.V. Mother called her therapist to testify. The therapist testified that he started working with Mother on May 2, 2019. He had seen her for a total of eight sessions. She was initially uncooperative and disinterested in participating. He eventually discharged Mother from therapy.

The Department re-referred Mother to the therapist in August 2019. Mother cancelled or failed to show for three appointments that month. Since then, she had been opening up and made some progress. The therapist saw a "glimpse of a possibility" "of [a] potential change or potential acceptance." Mother now appeared to be accepting responsibility for her situation. She was "just beginning the first steps" toward her goals. The therapist did not believe Mother posed any risk to minors.

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Mother told the therapist at her fourth session on June 19, 2019, that she was no longer taking her medication. Since then, he had not discussed her medication regime with her. Nonetheless, he opined that she should have been on medication since he first diagnosed her as bipolar. The therapist had referred her to a psychiatrist to get on medication.

The therapist opined that if Mother consistently came to her appointments and stayed on the path she was on, she would meet her goals in about a year. Getting Mother to orient herself and decrease her outbursts were long term goals. There was no evidence Mother was decreasing her outbursts or doing a better job expressing herself to adults.

The court found that with respect to Mother's medication: "there's no evidence that she is taking them. We have evidence that she goes and gets her pill bottles filled, but I don't have any evidence that she's taking her medication." "I don't even have her testifying. [¶] Do I have a statement from her to somebody that she's taking her medication?" Mother "said she wasn't taking her medication anymore. She didn't like the way it made her feel, and she was off and on [] her medication, and, in the Court's view, it does not appear that she participated regularly in her psychiatric treatment."

The court found that Mother's ongoing relationship with Father, who was abusing methamphetamine, was "a very significant issue." The court further observed: "I really feel like she's been weak in the area of general counseling, which is obviously the part

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that she needs the very, very most. And when I review case plan objectives, I really don't feel like she's making a great deal of progress toward any of the case plan objectives . . . ." The court found Mother did not participate in anger management.

The court ultimately ruled that Mother had failed to participate regularly and make substantive progress in her court ordered treatment plan as to J.M.V.: "She participated irregularly, sporadically, and half-heartedly . . . ." The court terminated Mother's reunification services as to J.M.V. and set the section 366.26 hearing. As to J.V., the court found Mother had not made reasonable efforts to treat the problems which led to termination of Mother's reunification services as to his siblings and that reunification services were not in minor's best interest. The court then denied Mother reunification services as to J.V. pursuant to the bypass provision of section 361.5, subdivision (b)(10), and set the section 366.26 hearing.

A . Substantive Progress on Mother's Court Ordered Treatment Plan as to J . M . V .

Mother contends insufficient evidence supported the court's determination that she failed to make substantive progress on her case plan such that her reunification services should be terminated. We disagree.

"'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 . . . .' [Citation.] 'The third paragraph of section 366.21, subdivision (e), requires a specialized inquiry at the six-month review for children like [J.M.V.], who are "under the age of

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three years on the date of the initial removal" and are not being returned to the custody of their parents at that time. For such dependent children, if "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 [ s ] ection 366 . 26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . 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." [Citation.]' [Citation.]" ( Fabian L . v . Superior Court (2013) 214 Cal.App.4th 1018, 1027 ( Fabian L .).)

"'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.]' [Citation.]" ( Fabian L ., supra , 214 Cal.App.4th at p. 1028.)

Substantial evidence supports the court's determinations that Mother had not made substantive progress on her court ordered treatment plan and that there was no reasonable probability J.M.V. would be returned to Mother within six months. Here, Mother's court ordered treatment plan required that Mother obtain and maintain a stable and suitable residence for herself and J.M.V., comply with all orders of the court, comply with

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medical or psychological treatment, participate in individual therapy, complete a 16-week anger management program, and submit to random drug testing. Mother consistently drug tested negatively and the court found she had complied with this portion of her court ordered treatment plan.

However, as to the remainder of Mother's court ordered treatment plan, sufficient evidence supports the court's finding that Mother "participated irregularly, sporadically, and half-heartedly . . . ." Throughout the proceedings, Mother moved from place to place, often failing to or refusing to provide the social worker with her address. Her whereabouts were unknown at times. At others, Mother represented that she was homeless. The Department originally helped mother obtain a housing voucher, but Mother was unable to obtain a residence because of her insistence on remaining with Father whose criminal record proved to be a major obstacle in finding appropriate housing. Ultimately, Mother let her voucher lapse by failing to apply for an extension. Thus, Mother made no progress on the part of her court ordered treatment plan requiring that she obtain and maintain suitable housing.

Mother admitted the b-3 allegation in the initial petition that she knew or reasonably should have known of Father's substance abuse and failed to protect J.M.V. from it. Mother further knew that Father continued to drug test positively. Nonetheless, Mother continued to allow Father into her home even after J.M.V. was returned to her custody. Thus, the court issued an order that Mother not allow contact between J.M.V.

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and Father. Nevertheless, Father continued to be witnessed at Mother's home in violation of the court's order.

Department personnel added an allegation that Mother placed minor at substantial risk of harm by failing to abide by the court order prohibiting contact between Father and J.M.V. (b-4) which the court found true. Nevertheless, Mother continued to live with and associate with Father despite his continued drug use. Thus, the social worker was appropriately concerned that Mother would continually place Father's needs above J.M.V.'s. Likewise, Mother's ongoing relationship with Father, who was abusing methamphetamine, supported that court's determination that it was "a very significant issue" which posed continued danger to J.M.V. Therefore, Mother failed to make progress on her court ordered treatment plan's requirement that she obey court orders to protect J.M.V. from Father.

Although visitation was not an express component of Mother's court ordered treatment plan, it was at least an implicit component. ( Tracy J . v . Superior Court (2012) 202 Cal.App.4th 1415, 1426 ["Visitation is an essential component of a reunification plan. [Citation.]"].) Although Mother visited often, she almost as often missed or cancelled visitation. Indeed, between February 19 and July 16, 2019, Mother visited with minors approximately 18 times but failed to show or cancelled 22 visits. Thus, at best, Mother made moderate progress with the visitation component of her court ordered treatment plan.

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Mother's court ordered treatment plan required that she complete a 16-week anger management program. Mother reported that she attended one class but stopped going because they "'just talk.'" Thus, Mother had not substantively participated in the anger management component of her court ordered treatment plan.

Although Mother complied with the requirement in her court ordered treatment plan that she participate in a psychological evaluation, that evaluation noted that she, at minimum, needed to maintain her psychotropic medication regime. Indeed, even with such medication, the psychologist's evaluation of Mother was less than auspicious. The psychologist noted very significant psychiatric problems which were not being treated properly. Mother seemed "to be a very poor candidate to be a parent." The psychologist diagnosed Mother with generalized anxiety disorder; bipolar disorder; PTSD; and paranoid personality with negativistic, sadistic, and narcissistic aspects. "I think she is a very poor candidate to function in a parental capacity." He added: "I question severely whether, in fact, she will benefit from classes, services or counseling. She has already had these services in the past and there are no indications based on my interview and testing today that it has modified her behavior and made her more insightful into the nature of why her children have been out or her [custody] for such a long period of time."

However, Mother would not comply with either the medication regime or counseling components of her court ordered treatment plan. Mother reported more than once that she would obtain her medical prescriptions but would not take them. Mother

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told the therapist on her fourth session on June 19, 2019, that she was no longer taking her medication.

Mother failed to show to seven sessions of therapy between March 6, and May 8, 2019, attending only two. Mother later failed to show to 13 counseling sessions without calling to cancel. She showed up to one subsequent visit but was discharged on July 18, 2019. Mother's therapist reported that "'[n]o progress ha[d] been made.'" The therapist further noted that Mother needed to understand "'[w]hat it means to be protective of the children.'" He opined, "'I don't see her taking ownership with her circumstances and in order for therapy to work, she has to accept responsibility.'"

Between August 7, and 28, 2019, Mother visited her therapist once; she canceled or failed to show for another three sessions. The therapist again reported that Mother had not worked on any of her goals and there was no sign of progress. Although the therapist testified that Mother had since attended four additional sessions for a total of eight sessions, he opined that she had only recently begun to take the steps necessary toward the goals they set and that only if she consistently attended sessions for a year would she meet her goals. Thus, Mother had not substantially complied with either the medication or counseling components of her court ordered treatment plan.

Mother did not substantially comply with her court ordered treatment plan, and there was no probability that J.M.V. could be returned to Mother within six months. Sufficient evidence supported the court's order terminating Mother's reunification services.

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B . Application of the Section 361 . 5 , subdivision (b)(10) Bypass Provision as to J . V .

Mother contends insufficient evidence supports the court's denial of reunification services as to J.V. pursuant to the bypass provision of section 361.5, subdivision (b)(10). We disagree.

"Section 361.5, subdivision (b), states that '[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . and that parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling . . . .'" ( In re B . H . (2016) 243 Cal.App.4th 729, 735-736 ( B . H .).) "'When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be "'an unwise use of governmental resources.'" [Citation.]' [Citation.]" ( Id . at p. 736.)

"Section 361.5, subdivision (b)(10), contemplates a two-prong inquiry: (1) whether the parent previously failed to reunify with the child's sibling or half sibling; and (2) whether the parent 'subsequently made a reasonable effort to treat the problems that led to [the] removal of the sibling or half sibling.' [Citation.]" ( B . H ., supra , 243 Cal.App.4th at p. 736.) "'We do not read the "reasonable effort" language in the bypass provisions to mean that any effort by a parent, even if clearly genuine, to address the

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problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable.' [Citation.]" ( In re D . H . (2014) 230 Cal.App.4th 807, 816.)

"[T]he court [also] retains authority to order services if it finds by clear and convincing evidence they would be in the children's best interests. [Citation.] In making its determination, the court may consider the 'failure of the parent to respond to previous services.' [Citation.]" ( In re Lana S . (2012) 207 Cal.App.4th 94, 109 ( Lana S .).) The parent "has the burden of proving her children would benefit from the provision of court-ordered services. [Citation.]" ( Ibid .)

"'The standard of review of a dispositional order on appeal is the substantial evidence test, "bearing in mind the heightened burden of proof."' [Citations.]" ( In re Madison S . (2017) 15 Cal.App.5th 308, 325.) "[O]nly one valid ground is necessary to support a juvenile court's decision to bypass a parent for reunification services . . . ." ( Id .

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at p. 324; Lana S ., supra , 207 Cal.App.4th at p. 108 [evidence of parent's lengthy history of drug abuse sufficient to deny parent reunification services].)

Here, it is undisputed that Mother failed to reunify with five of J.V.'s siblings whom the court had removed and with respect to whom the court had terminated Mother's reunification services. Mother's reunification services as to the older siblings had been terminated upon sustained allegations that Mother failed to provide them with adequate shelter (b-1), led a transient lifestyle (b-2), and exposed the children to drug use by Father (b-3 & b-6). For the reasons discussed above, Mother failed to make reasonable efforts to address the problems which lead to removal of J.V.'s siblings. As discussed above, Mother continued to associate and live with Father despite his continued drug use which threatened to put minors at risk if they were ever returned to her custody. Furthermore, Mother failed to maintain suitable housing, at times indicating she was homeless.

The psychologist who evaluated Mother noted: "I question severely whether, in fact, she will benefit from classes, services or counseling. She has already had these services in the past and there are no indications based on my interview and testing today that it has modified her behavior and made her more insightful into the nature of why her children have been out or her [custody] for such a long period of time." The social worker reported that Mother had received over 18 months of services in the other case

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and did not benefit from them. Finally, as the court observed, "it's almost as if the mother has made no progress in over two years." Sufficient evidence supported the court's termination of Mother's reunification services pursuant to the bypass provision of section 361.5, subdivision (b)(10), as Mother had failed to make reasonable efforts to treat the problems that led to removal of the older siblings despite over two years of services.

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.

I concur:

RAMIREZ
P. J.

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Menetrez J., Concurring in the judgment:

I concur in the judgment only, because I believe the majority opinion conflates several distinct issues raised in the petition and also mischaracterizes the record.

In order to terminate Mother's reunification services as to J.M.V. at the six-month review hearing, the juvenile court had to find that Mother failed to (1) participate regularly and (2) make substantive progress in her case plan, and also that (3) there was no substantial probability of return by the 12-month review hearing. (Welf. & Inst. Code, § 366.21, subd. (e)(3).) Those are three separate issues, and if Mother prevails on just one of them, her services cannot be terminated. In particular, as long as she is participating regularly in her case plan, her services cannot be terminated at the six-month review hearing, even if she is not (yet) making substantive progress and even if it appears there is not a substantial probability of return by the 12-month review hearing. The petition argues there is a lack of substantial evidence to support the trial court's findings on each of those three points. The majority opinion conflates the three issues and treats them as one, all under the heading "Substantive Progress on Mother's Court Ordered Treatment Plan as to J.M.V." (Typed opn. at p. 14.)

In evaluating Mother's participation, it is imperative that we be clear about what the case plan is, because Mother cannot be faulted for failing to participate regularly in things she was not ordered to do. The majority opinion gets the case plan wrong, because some of the case plan components identified in the majority opinion are merely "service objectives" but not "client responsibilities" under the case plan. For example, the

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majority opinion repeatedly states that the case plan required Mother to acquire and maintain a stable residence. That is not a client responsibility under the case plan. If it were, it would probably be improper under case law holding that poverty (even extreme poverty resulting in homelessness) cannot be the basis for a finding of detriment or similar adverse consequences in dependency proceedings. ( In re P . C . (2008) 165 Cal.App.4th 98; In re G . S . R . (2008) 159 Cal.App.4th 1202.) The case plan does not, however, suffer from that infirmity. Rather, a stable residence is a service objective (and rightly so). But the client responsibilities (i.e., the only things Mother was required to do under the case plan) are: (1) a psychiatric/psychological evaluation, which the plan further specifies as a psychological evaluation; (2) general counseling; (3) a 16-week anger management program; and (4) random and on-demand drug testing. So in determining whether the record contains substantial evidence that Mother did not regularly participate in her case plan, those four things are all we can consider.

Mother completed her psychological evaluation, did some individual counseling, attended one session of her anger management program, and complied with drug testing. That is, she participated once in anger management and a few times in general counseling. (From her initial referral on February 25, 2019, through the date of the contested hearing on September 18, 2019, Mother attended a grand total of eight therapy sessions; three of them were in September.) Given the issues in the case, especially the central role of Mother's mental health, substantial evidence supports the finding that Mother did not participate regularly in her case plan because, as the trial court put it, she "participated irregularly, sporadically, and half-heartedly."

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The other two issues are more straightforward. Apart from Mother's clean drug tests, the record contains no evidence that she made substantive progress in her case plan — there is no evidence that she has made any meaningful progress in addressing the issues that are targeted by the case plan and that led to the removal of her children. And the psychological evaluation alone, with its extremely grim prognosis for successful treatment, constitutes substantial evidence that there was not a substantial probability of return by the 12-month review hearing.

As to J.V., Mother argues that she should not have been bypassed because of subsequent reasonable efforts to treat the problems that led to removal of the older siblings. The majority opinion treats this as if it is the same issue as termination of reunification services as to J.M.V. at the six-month review hearing, but it is not. Rather, the issue is whether, in the time since Mother's services as to the older siblings were terminated , Mother has made reasonable efforts to treat the problems that led to removal of those siblings. (Welf. & Inst. Code, § 361.5, subd. (b)(10).) So, for example, the fact that Mother received over 18 months of services in the siblings' case and apparently did not benefit from them is relevant context but tells us nothing about what subsequent efforts she made. The issues are (1) what efforts Mother made since those services were terminated and (2) whether those efforts were reasonable.

Mother's reunification services as to the older siblings were terminated at the contested 18-month review hearing on February 6, 2019. Between that date and J.V.'s contested disposition hearing on September 18, 2019, Mother's efforts were minimal, consisting of one anger management session and eight individual counseling sessions,

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which were outnumbered by cancelled or missed sessions and in which, according to the therapist, Mother "has not worked on any of [her] goals." Substantial evidence supports the finding that Mother's efforts, considered in the context of Mother's history and the serious mental health issues presented, were far from reasonable.

For all of the foregoing reasons, I concur in the judgment only.

MENETREZ
J.