Filed 8/26/13 In re Jesse Y. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE




In re JESSE Y., a Person Coming Under
the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
         Plaintiff and Respondent,
v.                                                                   A137111
SIMONE M.,
                                                                     (Alameda County
         Defendant and Appellant.                                    Super. Ct. No. HJ-10-015922)



         Appellant Simone M. (mother) appeals from the juvenile court‘s order terminating
her family reunification services. We shall affirm.
                                                   BACKGROUND
         On November 5, 2010, Alameda County Social Services Agency (Agency) filed
an original petition pursuant to Welfare and Institutions Code1 section 300, alleging
mother failed to protect her male child, Jesse Y. (minor), born in October 2010. The
detention report states the minor tested positive for cocaine and oxycodine at birth, and is
being treated with morphine for withdrawal symptoms. The minor is the second drug-


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        Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
exposed child born to mother. Mother admitted using cocaine, has a history of drug
abuse and failed to complete a prior drug treatment program. At the detention hearing,
the court found removal necessary and vested temporary placement and care of minor
with the Agency.
       The Agency‘s jurisdiction/disposition report dated November 22, 2010, states
minor remains hospitalized in the Neonatal Intensive Care (NIC) unit on a low dose of
morphine. Mother is living with father (James Y.) in Livermore, father works full time in
Mendocino and has not yet been interviewed. Mother wants the Agency to release the
minor to father, but wants to live in the home and care for the child. The Agency
recommended placement in out-of-home care and that mother receive family
reunification services.
       The Agency filed a first amended petition on November 23, 2010, alleging the
social worker smelled marijuana while at father‘s home and father has a criminal record,
including convictions for assault and drug possession. On December 8, 2010, the Agency
filed a second amended complaint, further alleging father is a registered drug offender
and was convicted of assault in May 2004, and that in November 2010 mother tested
positive for methamphetamines and amphetamines on a hair test.
       At the jurisdiction hearing held on December 2, 2010, the court adjudged minor a
dependent child of the court, and placed care and custody of the minor under Agency
supervision with the minor to reside with father. The court ordered family maintenance
services to father and informal child welfare services to mother.
       The Agency‘s six-month status review report dated May 12, 2011, states minor
was initially diagnosed with a seizure disorder when hospitalized after birth, responded to
treatment and is being weaned off the anti-seizure medication. The minor was noted to
be at high risk for delayed development, with impaired range of motion and abnormal
muscle tone; however, rehabilitation potential with physical therapy is good. The report
notes father resides in his mother‘s home with the minor. Mother moved into her
mother‘s home a few months ago and is working 30 hours per week at Wal-Mart. Father


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reports mother visits daily with minor and mother has attended all minor‘s medical
appointments.
       The report states mother ―has complied with her case plan minimally.‖ Mother
visits minor every day and started substance abuse treatment; she tested four times for
drugs and all four tests were clean. However, mother‘s attendance at substance abuse
group treatment has been poor—she started treatment in February 2011 and only attended
three out of 48 group sessions and completed four out of 15 required drug tests. She was
discharged from the drug program for poor attendance. Mother has been referred to drug
court for services, but has not responded to attempts to engage her in those services.
       The six-month report concludes mother has not addressed her substance abuse and
has made minimal progress towards her case plan goals. Father has made partial progress
towards his case plan goals, but is in a relationship with mother and has little or no
awareness of her drug use. At a hearing held on May 26, 2011, the court continued the
six-month review until November 3, 2011, with current orders remaining in effect.
       The Agency filed a status review report on October 19, 2011. The report states
father resides in his mother‘s home with minor and minor‘s paternal grandmother; father
was arrested in July for cultivation of marijuana. Mother continues to reside in her
mother‘s home, but is no longer working at Wal-Mart; however, a Livermore police
report prepared on father‘s arrest for marijuana cultivation charges states father identified
mother as living in his home. Mother denied living with father. Regarding the minor, the
report states he has been off anti-seizure medication for about six months, is in good
health and the quality and variety of his movements are good.
       The October 2011 status review report states mother has not complied with her
case plan. She has not taken any action to address her substance abuse nor provided any
evidence to show she is substance free. Mother has failed to followup with referrals to
drug treatment. Mother is apparently acting as the primary caregiver to minor with the
acquiescence of father and minor may have been left unsupervised with mother. Father
has been minimally compliant with his case plan. Father and paternal grandmother both


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have medical marijuana cards and father has been arrested for cultivation of marijuana.
Father has not engaged in individual therapy during this report period and needs to
develop a detailed plan to protect the minor from the impacts of marijuana use in the
home, and stop illegal activity related to marijuana. In its minute order of the hearing
held on November 3, 2011, the court continued the present order and ordered hair follicle
tests for father and minor.
       On January 17, 2012, the Agency filed a supplemental petition pursuant to section
387. The detention report related to the supplemental petition states minor is in the home
of the paternal grandmother and father has moved out of this home. The drug tests
ordered by the court resulted in minor‘s hair follicle testing positive for
methamphetamine. Father and paternal grandmother blamed mother for the positive test,
and mother admitted this was true. The detention report states that due to lack of
supervision by father regarding mother‘s contacts with the minor, mother‘s failure to
address substance abuse problems, father‘s recent drug arrest and the minor‘s recent
positive drug test, the Agency decided to remove the child from father‘s care. Father
agreed to move out of the house in order for minor to remain in grandmother‘s care.
Father also resumed drug testing and started an anger management class. On January 18,
2012, the court adopted the Agency‘s recommendations, finding continuance in the home
of the father is contrary to the minor‘s welfare and reunification services shall be
provided, if appropriate. On January 30, 2012, the Agency filed a jurisdiction report,
recommending the court find jurisdiction on the supplemental petition and continue the
matter for disposition in order to allow the Agency to further assess the appropriateness
of the minor‘s current placement with paternal grandmother. The jurisdiction report
noted father faces pending felony drug possession charges and Livermore police have an
open investigation pertaining to the minor‘s ingestion of methamphetamine. Mother
states she is set to begin DUI and drug treatment classes at Axis, to include twice weekly
drug testing, and that she is willing to see her son at the Agency office. On February 2,
2012, the court sustained the jurisdictional allegations in the supplemental petition,


                                              4
adopted the Agency‘s recommendations and scheduled a disposition hearing for March 8,
2012.
        On February 7, 2012, the Agency filed an amended supplemental petition under
section 387 alleging father allowed mother unrestricted access to minor, placing minor at
risk due to his young age and mother‘s untreated substance abuse issues. In a
memorandum (memo) to the court filed on February 14, 2012, the Agency informed the
court minor was moved from the home of paternal grandmother and placed in an
Alameda County foster home after results of a second hair follicle test indicated the
minor now has higher levels of methamphetamine in his system. The Agency‘s public
health nurse confirmed that for the levels of methamphetamine in his hair follicle minor
must have ingested methamphetamine. The memo states minor‘s first positive hair
follicle test was thought to be the result of ―a one time exposure, ‗a fluke‘ perhaps when
the mother stated ‗maybe‘ something fell out of her purse,‖ but the second positive test
―shows that the child is being repeatedly exposed—the exact manner is not known.‖
Further, the memo states ―the Agency has found the family to be dishonest with the
Agency . . . about the current concerns. It is with this in mind and the child‘s drug level
being markedly higher that the Agency believes it could not assure the child‘s safety in
this current placement . . . .‖
        The Agency filed a disposition report on the section 387 petition dated March 8,
2012. Regarding mother‘s status, the report states she refuses to participate in hair
follicle drug tests. Mother is enrolled in a drug program at Axis consisting of twice
weekly group meetings and random urine drug tests, but failed to attend several group
meetings and failed to show up for drug tests on three occasions. The director of the Axis
program reported mother is avoiding drug testing, not taking her treatment seriously and
recommended a residential treatment program. The Agency recommended the minor
remain in out-of-home placement and the parents be offered family reunification services.
The Agency‘s addendum, dated March 26, 2012, proposed the same recommendation.
Also, as to mother‘s status, the addendum stated mother was discharged from her


                                             5
outpatient drug treatment program on March 15. Program staff observed mother
repeatedly showed up appearing to be under the influence and did not follow directions or
submit to drug tests. Mother has been advised to enter a residential treatment program
and has been provided with several contacts to that end. At the disposition hearing on
March 26, 2012, the court ordered that the minor be removed from the physical custody
of father and placed with a licensed foster parent. The court found mother had made no
progress, and father minimal progress, toward alleviating the causes necessitating
placement; however, the court ordered the Agency to provide family reunification
services to father and mother and scheduled a status review hearing for September 13,
2012.
        The Agency‘s six-month status review report dated September 13, 2012,
recommended the minor‘s dependency continue and he remain in out-of-home care. The
Agency further recommended family reunification services be continued for father and be
terminated for mother. The Agency reported mother‘s exact residence is unknown and
mother stated she has been living with different friends recently. Mother was arrested for
disorderly conduct due to intoxication on July 1 and spent two days in jail before being
released. According to the police report, mother is three months pregnant with father‘s
second child, and is currently unemployed.
        The September 2012 six-month status review states mother has been minimally
compliant with her case plan. Mother was provided with a list of residential substance
abuse programs, enrolled herself in Shepherd‘s Gate in May 2012, but left the program
after a few days. Mother‘s face-to-face intake at Cronin House on August 9 was
incomplete due to lack of necessary paperwork, and mother did not produce the
paperwork necessary to complete intake. Mother was referred to Terra Firma for drug
testing and outpatient treatment at the end of March 2012; mother started testing in May
and on June 1 she returned a positive result for methadone. Mother claimed her doctor
prescribed methadone for back pain. ―Currently the mother is not testing, nor involved in
a substance abuse treatment program. Her substance abuse remains unaddressed.‖


                                             6
Mother visited the minor from March to early May 2012, but has not visited since May 3.
Mother has not started dyadic therapy with a Services to Enhance Early Development
(SEED) therapist due to lack of visitation and engagement in substance abuse treatment.
On September 13, 2012, the court continued the minor as a dependent of the court and
continued the matter for contest on October 31, 2012.
       The Agency‘s addendum report dated October 31, 2012, states mother enrolled
herself in the Project Pride Residential Substance Abuse Treatment Program (Project
Pride) on October 4, 2012. The social worker visited mother and her counselor at Project
Pride on October 11. The counselor confirmed mother has been attending groups and
meetings since her entrance, and has done one urine test on which the result is pending.
Mother is five months pregnant and the baby is due in February 2013. The addendum
continued to recommend termination of reunification services to mother. At the hearing
held on October 31, 2012, the court adopted the Agency‘s recommendation and
terminated reunification services to mother. Mother filed a timely notice of appeal on
November 15, 2012.
                                        DISCUSSION
       Mother contends the court improperly terminated services based on the erroneous
belief it lacked discretion to continue services. Specifically, mother asserts the court
believed it was required to terminate services under section 366.21, subdivision (e)2 after

       2
         Section 366.21, subdivision (e) states in pertinent part: ―At the review hearing
held six months after the initial dispositional hearing . . . the court shall order the return
of the 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 to his or her parent
or legal guardian would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child. The social worker shall have the burden of
establishing that detriment. . . . 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. [¶] . . . [¶] If the child was under
three years of age on the date of the initial removal, . . . and the court finds by clear and
convincing evidence that the parent failed to participate regularly and make substantive
progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to
Section 366.26 within 120 days. If, however, the court finds there is a substantial
                                              7
finding mother failed to participate and make substantial progress in her treatment plan.
Mother‘s assertion, however, is reputed by the record.
       At the hearing held on October 31, 2012, counsel for the Agency argued ―because
the statutory framework of reunification for a child under three dictates that unless . . . the
parent has participated regularly in and made substantial progress in a . . . treatment plan,
that reunification services should be terminated,‖ to which the court responded
rhetorically, ―Well, must they be terminated?‘ Counsel for the Agency replied, ―Your
Honor, the Agency believes that the statutory framework does dictate . . . such a finding.‖
       Following further argument of counsel, the court engaged in the following
colloquy with mother‘s counsel: ―The Court: [T]his case was before me . . . back in
March . . . . And then it was on calendar again September the 13th . . . . [¶] But then here
we are on October the 31st, and the Court is being told that the mother has just enrolled
in Project Pride on October the . . . 4th. . . . [¶] So we‘ve got a period at least . . . of about
seven months, and the mother is just now getting herself into treatment. Is there a reason
for that? [¶] Mr. O‘Rourke: [I] don‘t have knowledge as to why that was. [¶] The Court:
[M]y question is essentially why didn‘t the mother take it upon herself―if she is
interested in reunifying with her child, why didn‘t she take it upon herself to get herself
together earlier than she has? [¶] Mr. O‘Rourke: Well, that‘s a good question, Judge.
But the fact of the matter is she has gotten started. . . . [S]he‘s come to the party a little
bit late, but she‘s in the live-in program now. . . . [¶] The Court: [T]his Court sees in
these cases too much where adults are not taking responsibility for themselves. And then,
as a result of that, their kids get impacted . . . . And the parent‘s off doing whatever they
want to do and not taking responsibility for their lives and their kids‘s lives. [¶] Let‘s
take a recess for about ten minutes.‖



probability that the child, who was under three years of age on the date of initial removal
. . . may be returned to his or her parent or legal guardian within six months or that
reasonable services have not been provided, the court shall continue the case to the 12-
month permanency hearing.‖
                                                8
       Following the recess, the court announced its ruling, stating, ―The Court is going
to adopt the recommendations from the agency in this matter. The Court finds that as has
been indicated, the mother has come to the party somewhat late. And although the court
is pleased that she‘s currently in a program, the only progress that has been made to date
is the fact that she is now, finally, in a program. But the Court doesn‘t have any
information that she‘s actually made any progress in that program, and the Court does not
have any information that she‘s actually alleviated or eliminated her drug problems,
which are fairly significant. The mother has a . . . fairly lengthy history of drug-related
problems, and the Court has no indication that she‘s turned her life around in that
regard. . . . I cannot find today that she‘s made any significant progress at all in
alleviating the problem. And so the Court will . . . therefore, terminate the reunification
services to the mother.‖
       In its ruling, the court does not state it was required to terminate services or that it
lacked discretion to continue services. Although the record perhaps reflects it was the
Agency’s position termination was mandated by statute, nothing in the record
demonstrates the court‘s decision to terminate mother‘s reunification services was other
than a valid exercise of its discretion. Accordingly, mother‘s contention runs counter to
the presumption that the juvenile court knew and correctly applied the law. (Evid. Code,
§ 664; see also Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [―scores of appellate
decisions, relying on [Evid.Code, § 664], have held that ‗in the absence of any contrary
evidence, we are entitled to presume that the trial court . . . properly followed established
law‘ ‖]; In re Julian R. (2009) 47 Cal.4th 487, 499 [stating ―. . . ‗the general rule [is] ―that
a trial court is presumed to have been aware of and followed the applicable law.
[Citations.]‖ ‘ ‗This rule derives in part from the presumption of Evidence Code section
664 ―that official duty has been regularly performed,‖ ‘ and thus when ‗. . . the record is
silent, a reviewing court will presume the trial court had a proper basis for a particular
finding or order.‘ [Citation.]‖].) Thus, mother‘s contention the court terminated her
services based on an improper legal standard must fail.


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       Furthermore, we reject mother‘s alternative argument that even if the court applied
the proper legal standard the court abused its discretion in terminating services. ―A court
has discretion to terminate services for one parent even when ordering services for the
other parent.‖ (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651 [― ‗In deciding whether
to terminate the services of one parent who has failed to participate or make progress
toward reunification, the court is not constrained by a consideration of the other parent‘s
participation in services.‘ ‖].)
       Moreover, if the dependent child was under three years of age on the date of the
initial removal (here minor was removed at birth), and at the six-month review hearing
the court does not return a minor to parental custody or set a section 366.26 hearing, the
court is not required to continue reunification services for any parent who was previously
receiving services, irrespective of that parent‘s compliance with those services; rather,
―even when the court does not set a section 366.26 hearing at the six-month review
hearing, it retains discretion to terminate services.‖ (In re Jesse W. (2007) 157
Cal.App.4th 49, 63 [noting the provision under § 366.21, subd. (e) that if the minor is not
returned to a parent‘s custody, the court must assess the reasonableness of services
offered or provided and ― ‗shall order that those services be initiated, continued, or
terminated‘ ‖ is consistent ―with the notion that a parent‘s services can be terminated at a
six-month review hearing without regard to whether the other parent is receiving services
or the court sets a section 366.26 hearing.‖].) In short, ―[c]onstrued together, sections
361.5, subdivision (a)(2) and 366.21, subdivision (e) provide the court with the option to
terminate reunification services after six months when a parent of a minor under the age
of three has ‗made little or no progress in [his or her] service plan[ ] and the prognosis for
overcoming the problems leading to the child‘s dependency is bleak.‘ [Citation.]‖ (In re
Jesse W., supra, at p. 64.)
       Here, the mother‘s failure to address the problem that caused the child to be made
a dependent child of the court—her substance abuse—is apparent throughout the course
of these proceedings, as is her failure ―to participate regularly and make substantive


                                             10
progress‖ in her treatment plan. (§ 366.21, subd. (e).) In report after report since the
original petition was filed in November 2010, the Agency documented mother‘s failings
on these points: Mother tested positive for methamphetamines and amphetamines in
November 2010; in May 2011, the Agency reported she had been discharged from her
drug treatment program for poor attendance and failed to engage in services offered
through drug court; in October 2011, the Agency reported mother had failed to followup
with referrals to drug treatment and had taken no action to address her substance abuse;
in January 2012, the Agency reported mother admitted she was responsible for the
minor‘s hair follicle testing positive for methamphetamine; in February, the Agency
reported minor had been removed from the home of paternal grandmother and placed in
an Alameda County foster home after a second hair follicle test revealed the minor now
had ingested methamphetamine; in March 2012, the Agency reported mother refuses to
participate in hair follicle drug tests, and was discharged from her outpatient drug
treatment program for failure to attend group meetings, failure to report for drug testing
and attending meetings while under the influence; in September 2012, the Agency
reported mother had been arrested for disorderly conduct and public intoxication, left a
residential program after a few days and failed to complete the paperwork for admission
to another residential program, tested positive for methadone, did not visit with the minor
since May 3, and had not started dyadic therapy with SEED due to lack of visitation and
engagement in substance abuse treatment.
       On this record, and despite mother‘s belated enrollment in a residential treatment
facility a few weeks before the six-month review hearing, we cannot say the trial court‘s
decision to terminate reunification services to mother at the six-month review hearing
constitutes a clear abuse of discretion. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318
[trial court‘s ruling will not be disturbed absent a clear abuse of discretion] and Shamblin
v. Brattain (1988) 44 Cal.3d 474, 478–479 [―The appropriate test for abuse of discretion
is whether the trial court exceeded the bounds of reason. When two or more inferences



                                             11
can reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.‖].)
                                          DISPOSITION
       The juvenile court‘s order is affirmed.



                                                   __________________________________
                                                   Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




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