In re GABRIEL L., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
ALEJANDRO L., Defendant and Appellant.
Court of Appeals of California, Fourth District, Division One.
*647 Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
John S. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Marsha F. Levine, under appointment by the Court of Appeal, for Minor.
OPINION
NARES, Acting P. J.
Alejandro L. appeals orders placing his son, Gabriel L., with Gabriel's mother, Ashley O., providing family maintenance services for Ashley and terminating his services. The case presents the following issue: If, after a period during which both parents were offered reunification services, the child is then placed with one parent, what is the extent of the court's discretion to decide whether to continue to offer services to the noncustodial parent. As we shall explain, the court's discretion should be examined under Welfare and Institutions Code section 364[1] and is similar to the court's broad discretion as to whether to offer services under section 361.2 because in both situations the child is not in out-of-home placement, but in placement with a parent. We conclude the court may, but is not required to, continue services for the noncustodial parent. Given this discretion, we further conclude the court did not abuse its discretion by terminating *648 Alejandro's services when placing Gabriel with Ashley and providing family maintenance services for her. Accordingly, we affirm the court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
On July 30, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of two-year-old Gabriel under section 300, subdivision (b), alleging he was at risk because the family home was filthy and in severe disrepair, and there was no electricity, running water or furniture except mattresses on the floor. Gabriel was very dirty when he was taken into protective custody; his teeth were decayed and he had scratches and bruises on his body.
Ashley was on probation for a misdemeanor burglary conviction in June 2007. She said she began using methamphetamine and marijuana at an early age. Alejandro had been arrested in January 2006 for being under the influence of a controlled substance and in December 2006 had pleaded guilty to being under the influence of a controlled substance and possessing drug paraphernalia. He also had started using drugs when he was very young.
On August 20, 2007, the Agency amended the petition, adding Alejandro was unable to provide regular care for Gabriel because of his drug use and drug-related incarcerations. The social worker provided Alejandro and Ashley with referrals for the Substance Abuse Recovery Management System (SARMS), parenting education, counseling and in-home support services.
The court found the allegations of the amended petition to be true, declared Gabriel a dependent child, removed him from his parents' care, placed him in foster care and ordered Ashley and Alejandro to comply with their services plans. Subsequently, Gabriel was placed with his paternal aunt and uncle. On October 11, the court ordered Ashley to undergo substance abuse treatment. The substance abuse treatment referral for Alejandro was delayed because he was then in custody.
Ashley did not comply with drug abuse treatment requirements at first, but on November 28, 2007, she entered residential treatment. She also began parenting classes and therapy, completed a psychological evaluation and was visiting Gabriel.
Alejandro did not contact the social worker until February 2008, and he had his first visit with Gabriel at that time. Alejandro said he had been deported to Mexico after being incarcerated. He had been given referrals for services, but did not participate in any services. At the six-month review *649 hearing on March 4, 2008, the court continued services for both parents to the 12-month date. By that time Alejandro had been returned to custody.
Over the following months, Ashley continued to participate in residential treatment, therapy and parenting education and she had unsupervised extended overnight visits with Gabriel. Alejandro did not participate in any services. In August 2008, he contacted the social worker and said he had recently returned from Mexico. A visit with Gabriel was scheduled, but Alejandro did not appear. When the social worker met with him in September, Alejandro said he had lost the referrals the social workers had given him because of being deported.
Alejandro did not attend the 12-month hearing on September 23, 2008. It was stipulated that were he to testify he would say he did not come to court because he was afraid he would be arrested and deported again, but he would start services if they were offered and Ashley wanted him to be a part of Gabriel's life. The court placed Gabriel with Ashley and terminated Alejandro's court-ordered services. It ordered family maintenance services for Ashley.
DISCUSSION
Alejandro contends the court abused its discretion by terminating his services while ordering that Gabriel be placed with Ashley and ordering services for her. He argues terminating his services was not in Gabriel's best interests or in the interests of the permanent plan of reunification.
A. Statutory Framework
The Agency and Alejandro agree we should base our analysis of whether the court erred by terminating Alejandro's services under section 364, which governs hearings concerning dependent children who are not removed from their parents' physical custody, rather than under sections 366 and 366.21, which govern hearings concerning dependent children in foster care. The Agency reasons that because Gabriel had been returned to Ashley, the goal of reunifying with at least one parent had been achieved, and, thus, under section 364, the court had broad discretion to decide whether to continue to provide services for Alejandro. We agree that section 364 is the applicable statute.
The juvenile court must hold review hearings for dependent children no less often than once every six months. (In re N. S. (2002)
(1) Section 364 establishes procedures for review hearings for children who have been adjudged dependent children, but have not been removed from their parents. When proceeding under section 364, because the child is in placement with a parent, the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. (§ 364, subd. (c).) In In re N. S., supra,
(2) Under section 364, subdivision (c) and California Rules of Court, rule 5.710(e)(2),[2] if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. "The court shall terminate its jurisdiction unless the [social services agency] establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are *651 likely to exist if supervision is withdrawn." (§ 364, subd. (c); see Bridget A. v. Superior Court (2007)
(3) A court's discretion to provide services for parents when a child has been placed with one parent after a period of reunification services is similar to the situation when the child is removed from the custodial parent and placed with the noncustodial parent under section 361.2 because in both cases the child is in parental custody, not in foster care. When a child is in foster care, unless the case falls within a specified statutory exception, it is assumed that reunification services will be ordered. Under section 361.2, by contrast, that presumption is not present because the child is not in out-of-home placement, but with a parent. Instead, under section 361.2, the court has several choices. It may provide services to the previously custodial parent, to the parent who is assuming custody, to both parents, or it may instead bypass the provision of services and terminate jurisdiction. (§ 361.2, subd. (b)(1), (3).) The decision whether to provide services and to which parent is discretionary to the court because the child is not out of the home, but in placement with a parent. (In re Erika W. (1994)
(4) A court has discretion to terminate services for one parent even when ordering services for the other parent. (In re Jesse W. (2007)
*652 (5) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988)
B. Analysis
(6) The court did not abuse its discretion by terminating Alejandro's services, placing Gabriel with Ashley, continuing dependency court jurisdiction and ordering family maintenance services for Ashley. Alejandro had made no progress in the services that had been offered during the 14 months of Gabriel's dependency. He did not appear at the disposition hearing, causing the court to issue a bench warrant. The social workers provided referrals for services to help him deal with the problems that had caused Gabriel to be brought into protective custody. The social workers supplied him with lists of therapists, parenting education classes, and a psychological evaluation and he was ordered to participate in substance abuse treatment through SARMS. His drug tests in August 2007 were positive for methamphetamine and marijuana. At times during the reunification period, he was arrested, incarcerated and deported. He did not participate in drug abuse treatment, nor did he begin therapy, start a parenting class or have a psychological evaluation. Also he did not visit Gabriel from the time Gabriel was removed in July 2007 until February 2008. He then failed to appear for most scheduled visits. The social worker reported every time she met with Alejandro he provided excuses for why he had not complied with his services plan.
"Resources available to the juvenile court are not unlimited." (In re Alanna A., supra,
*653 DISPOSITION
The orders are affirmed.
Haller, J., and Aaron, J., concurred.
NOTES
Notes
[1] Statutory references are to the Welfare and Institutions Code.
[2] Rule references are to the California Rules of Court.