Opinion
NOT TO BE PUBLISHED.
ORIGINAL PROCEEDING; petition for an extraordinary writ. Sherri Sobel, Juvenile Court Referee. Petition granted in part and denied in part. Los Angeles County Super. Ct. No. CK69807
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro and Ellen L. Bacon for Petitioner.
No appearance for Respondent.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Real Party in Interest.
MALLANO, P. J.
The mother of one-year-old H.A. challenges a May 7, 2009 six-month review hearing order terminating her reunification services and setting a permanent plan hearing for September 3, 2009. We deny her petition as to the order terminating reunification services because substantial evidence supports the juvenile court’s findings that the Los Angeles County Department of Children and Family Services (DCFS) provided reasonable reunification services and visitation while she was incarcerated and that there was no substantial probability that H.A. may be returned to her custody within six months. But we grant the request in her petition seeking to vacate the September 3, 2009 date for the permanent plan hearing because there was insufficient evidence to support the setting of such hearing within 120 days.
H.A.’s father, W.A. (Father), also filed a petition challenging the May 7, 2009 order. Before the hearing on the parents’ petitions, the juvenile court reinstated Father’s reunification services. Pursuant to a stipulation entered into by counsel for Father, DCFS, and H.A., we granted that part of Father’s petition requesting a vacation of the September 3, 2009 permanent plan hearing date.
BACKGROUND
H.A. was detained at birth in July 2008 after opiates were found in her system and in that of A.H. (Mother). DCFS placed H.A. with the maternal aunt and uncle, who are her prospective adoptive parents. Before H.A. was born, Mother lived with Father. Both parents had a history of drug abuse. Mother claimed that Father used heroin for three years and then stopped. Mother used crystal methamphetamine for about 10 years and heroin for one year, 2007. Father had been in a drug rehabilitation program in 2005, and Mother had been in a rehabilitation program in 2006; the parents claimed that they had not used methamphetamines after those rehabilitation programs.
Father was aware that Mother was using drugs when she was pregnant with H.A. Mother admitted that she used heroin in her first trimester before she knew that she was pregnant.
When H.A. was born, her older half-brother, B.P., born in 2001, was already a dependent of the juvenile court because of Mother’s drug use. B.P. was placed in foster care with prospective adoptive parents. Mother was offered reunification services as to B.P. in 2007, but from October 2007 to June 2008, she had not been in compliance with the court order that she submit to random drug tests. In April 2008, DCFS mailed to Mother referrals for drug treatment programs, counseling, and parenting classes. In early June 2008, Mother enrolled in those programs, including a three-month drug treatment program.
Parental rights to B.P. were terminated on May 7, 2009.
After H.A. was born, Mother enrolled in a “detox” program at the Tarzana Treatment Center, and in early August 2008, DCFS facilitated Mother’s transfer to the Tarzana Treatment Center’s inpatient drug treatment program, where she also was able to receive individual counseling, group therapy, parenting classes, and health education. In the first week after H.A. was released from the hospital in July 2008, Mother called the caregivers four times to inquire about H.A., but Mother did not call at all during the second week. Before August 2008, Father had contacted the caregivers only once to inquire about H.A.
At the detention hearing on July 9, 2008, the parents appeared; they were afforded monitored visits three times per week and ordered to participate in a drug treatment program with random drug testing. DCFS was ordered to provide referrals for drug testing and counseling. DCFS’s July 30, 2008 jurisdiction and disposition report stated that Father did not make any effort to contact DCFS to arrange visitation or receive referrals. Mother had not visited A.H. because Mother was in an inpatient drug treatment program, but she had completed a parenting class offered by her program.
In August 2008, both parents were incarcerated on charges of grand theft, a crime they committed together before H.A. was born. According to DCFS, Mother was “AWOL from her last drug treatment program when the alleged crime occurred.” Father pleaded guilty and expected to be released in June 2009. Mother made a plea bargain to participate in a prison-run drug diversion program.
The jurisdiction and disposition hearing was continued several times to October 1, 2008. Father, but not Mother, appeared at the October 1, 2008 jurisdiction and disposition hearing. H.A. was declared a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) (failure to protect), based on her parents’ drug use. The parents were afforded monitored visits twice a week, with Father’s visits to begin only after he was released from custody. In the meantime, Father was allowed one telephone call per week to the caregiver. The parents were ordered to attend individual counseling, parenting and random drug testing, as well as “CPR medical training.”
Unspecified statutory references are to the Welfare and Institutions Code.
The medical training was apparently ordered because H.A., who was born prematurely, suffered from apnea and required a breathing monitor. But in September 2008, H.A.’s doctor discontinued use of the apnea monitor and discharged her from the apnea clinic. The issue of medical training was not argued by the parents at the six-month review hearing, and the juvenile court did not fault the parents for failing to participate in medical training. As stated in Mother’s petition, “the inability of [M]other to [participate in CPR training while incarcerated] was not argued as a basis for finding [M]other not in compliance with her case plan by [DCFS].”
According to an April 1, 2009 status review report, while Father was incarcerated, he participated in educational programs, including substance abuse prevention (176 hours) and parent-child communication (100 hours), but he was not eligible for a drug treatment program while incarcerated and thus had not completed such a program, nor had he completed random drug testing and parenting.
In February 2009, Mother enrolled in a court-ordered 18-month drug treatment program, the Los Angeles County Sentenced Offender Drug Court Program, which consisted of three months of in-custody treatment, followed by three months in transitional residential living, and then 12 months in a sober living outpatient facility. The program required participation in group and individual counseling sessions, 12-Step meetings, random drug testing, parenting, and personal relationship classes. Mother was scheduled to transfer from the in-custody program to the residential phase of the program on June 10, 2009. DCFS’s report noted also that because Mother had received referrals and enrolled in a drug treatment program, individual counseling, and parenting classes in June 2008 (before H.A.’s birth and in connection with B.P.’s case), no additional referrals were provided.
Between July 2008 and April 2009, Mother visited H.A. on two occasions in August 2008; Father visited once in August 2008. After his incarceration, Father had not telephoned H.A.’s caretakers to inquire as to her well-being, even though the caretakers were willing to accept collect calls from Father. DCFS concluded that, notwithstanding the parents’ active participation in treatment while incarcerated, their histories were not conducive to reunification and they had not proven that they will be able to overcome the obstacles that led to H.A.’s detention within the legal time frames. DCFS recommended termination of reunification services.
Both parents were in custody at the time of the six-month review hearing on May 7, 2009. Father waived his appearance for the hearing, but Mother attended. The DCFS social worker testified that he visited Mother once a month when she was in her court-ordered treatment program; Mother told him that she should be released from her in-custody treatment in June 2009 and that she planned to follow through with the remaining phases of the program. The social worker stated that it would take Mother another 15 months to complete the program.
The social worker testified that Father was in custody locally at the Pitchess Detention Center and that he was supposed to be released in June or July 2009. The social worker, who visited Father monthly at the Pitchess Detention Center, did not talk with Father’s parole officer and did not know whether Father had completed programs in parenting and drug education. Father’s facility did not offer an individual counseling program. But in the previous four weeks, Father had been in telephone contact with the caregivers and H.A. Father had attempted to phone the caretakers earlier but was unable to contact them because their cell phones did not accept collect calls.
Mother testified that when she entered the inpatient phase of her drug treatment program in June 2009, she would be entitled to visits with H.A. Mother also expected to complete her parenting program in six weeks.
With respect to Mother, the juvenile court stated, “I don’t have any faith in the mother’s ability to do any program at any time for anything. When parents are in custody, they do everything.... It’s when someone is out of custody that it counts.”
Father’s attorney maintained that DCFS had not “done their job under the new law,” section 366.21, subdivision (e), which required the juvenile court to take into account the particular barriers of incarcerated or institutionalized parents to access to services. Father’s attorney argued that DCFS has “to document what services are available. Institutional parents are not supposed to be required to do all kinds of services that there is no way they can do in incarceration. When [Father] gets out, he can get into his drug-treatment program. He can get in his counseling. [¶] I believe he most likely finished parenting. I believe that all of those programs qualify in some way to... comply with a DCFS court-ordered program. [¶] I’m sure if [the social worker] did his job and did what the... new law requires..., that he would find that some of the substance-abuse prevention classes do qualify as outpatient treatment centers. I believe the parenting would comply with that. [Father] took everything available to him. He’s done 369 hours of classes. That’s a father that’s trying to do his best.”
The first paragraph of section 366.21, subdivision (e), pertaining to the six-month review hearing, provides 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 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. In making its determination, the court shall review and consider the social worker’s report and recommendations...; and shall consider the efforts and progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself to services provided, taking into account the particular barriers to an incarcerated or institutionalized parent or legal guardian’s access to those court-mandated services and ability to maintain contact with his or her child.” The underlined portion was added to the statute by Statutes 2008, chapter 482, section 2, effective on January 1, 2009.
The juvenile court remarked, “I do not understand what these new code sections mean.... [¶] How this helps a 10-month-old to excuse parents in custody by their own behavior, to hold off on permanency for babies because parents who are in custody can’t do the programs they need to do to become the parents they should have been before they went into custody, is completely beyond me. But here it is, and I have to respond to it. [¶]... [¶] So I will take this section [section 366.21, subdivision (e)] to mean the following: That a parent was doing everything that was required, ended up in custody on a warrant or for some other reason but really had made a good faith effort before the... parent went into custody, always that it’s in the best interest of the child to extend, always take into account the relationship between the child and the parent.”
The court then found that “[t]hese parents have zero relationship with this child. None. [¶] It’s a little trickier for the father.... [¶] [DCFS] didn’t set up the phone call. If the child were of an age to recognize Father’s voice, if the child were even two or three, then I would have some serious considerations. But the child is 10 months old. The phone call was to find out whether or not the child was healthy. [¶] The father is doing some programs. I have no information when he’s getting out or whether those programs are appropriate or whether he’s going to be clean and sober when he gets out, whether he’s going to change his life, get an apartment, get a job, visit his child. He’s going to have four months to show me that. [¶] One of the things I need to look at is that the parent has consistently and regularly contacted or visited the child. [¶] And I still must find the three findings for a child under the age of three: I must find that the parents are in substantial compliance and that there is a substantial probability of return by the 12-month date, which in this case — which is... October 1st. [¶]... [¶] I would have to find regular and consistent contact, and I can’t. [¶] I would have to find that the parents made significant progress in resolving the problems which led to removal. I cannot find that for the mother. I can actually find that for the father, taking into account everything he’s trying to do in custody but I have to make all three findings; and that the parents demonstrated the capacity and ability to complete the objectives of the treatment plan and provide for the child’s safety, protection, physical or emotional well-being and special needs. [¶] The court-ordered reunification services are hereby terminated.”
The court permitted Father to continue the phone calls and stated that, if Father was released from custody in June, “I expect him to see his child twice a week and do everything he’s supposed to do, sober and outside of a facility, and I will certainly look at it again if that’s what he does.” The court concluded, “If the father’s done everything you think he did, I expect a 388 [section 388 motion].”
The May 7, 2009 minute order recited that the return of H.A. to parental custody would create a substantial risk of detriment to her well-being, that the parents were not in compliance with the case plan, that reasonable services had been provided, that there was no substantial probability that H.A. could be returned to her parents within six months, and that “the parents have not consistently and regularly contacted and visited with the minor, that the father has made some progress (but not the mother) in resolving the problems that led to the minor’s removal from the home, and that they have not demonstrated the capacity and ability both to complete the objectives of their treatment plan and to provide for the minor’s safety, protection, physical and emotional well-being, and special needs.” A permanent plan hearing was scheduled for September 3, 2009.
Mother filed a petition for an extraordinary writ, challenging the reasonable services finding, the setting of the 366.26 hearing, and the refusal of the juvenile court to continue her services up to the scheduled permanent plan hearing. Mother also requested a stay of the section 366.26 hearing.
DISCUSSION
A. Six-month Review Hearing
“‘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....’” (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (M.V.).) “The third paragraph of section 366.21, subdivision (e), requires a specialized inquiry at the six-month review for children... who are ‘under the age of 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 Section 366.26 within 120 days.... [¶]... But this inquiry does not require the court to schedule a.26 hearing.... [Citations.] Instead, it authorizes the court to set such a hearing if the required findings have been made.” (M.V., at pp. 175–176.) Notwithstanding any determinations made under the above provisions, “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. (§ 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.” (M.V., at p. 176.)
B. Return to Parental Custody at Six-month Review
The first paragraph of section 366.21, subdivision (e) (see fn. 5, ante) deals with the issue of whether the return of the child to parental custody would create a substantial risk of detriment. Mother’s petition fails to address the issues of detriment and whether H.A. could be returned to her custody on May 7, 2009. On May 7, 2009, Mother was incarcerated.
Citing to the juvenile court’s comments about the 2008 amendments to the first paragraph of subdivision (e) of section 366.21, Mother argues that the juvenile court failed properly to apply the new statute. But the court’s comments pertain to the language of the first paragraph of section 366.21, subdivision (e) and the issue of the return of H.A. to parental custody, a ruling that Mother’s petition does not address with any argument or citation to authority.
The rulings that are challenged in Mother’s petition are (1) the juvenile court’s finding that reasonable services had been provided and (2) the decision to set a permanent plan hearing. The former issue is addressed in the last paragraph and the latter issue in the third paragraph of section 366.21, subdivision (e).
C. Reasonable Services
We reject the assertion by DCFS that Mother waived the reasonable services issue. DCFS claims that Mother’s attorney admitted at the hearing that reasonable services were provided. But the record reveals that Mother’s attorney admitted only that there was no dispute that the DCFS social worker had helped Mother get into the inpatient program at the Tarzana Treatment Center before she was incarcerated. Mother thus did not waive her right to challenge the adequacy of reunification services provided after her incarceration in August 2008.
The last paragraph of section 366.21, subdivision (e) provides: “If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated.”
“The adequacy of reunification plans and the reasonableness of DCFS’s efforts are judged according to the circumstances of each case. [Citation.] Moreover, DCFS must make a good faith effort to develop and implement a family reunification plan. [Citation.] ‘[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....’ [Citation.]” (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.)
“The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) “[T]he mere fact that more services could have been provided does not render the Department’s efforts unreasonable.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 973.) We review a reasonable services finding under the substantial evidence test. (Id. at p. 971.)
Mother contends that “[b]y failing to facilitate visitation as ordered by the court, [DCFS] failed to make reasonable efforts to effect reunification.” But the record supports the inference that on May 7, 2009, Mother was in custody during the first phase of her drug treatment program and that Mother would not be allowed visits until the inpatient phase of the program, which was scheduled to begin in June 2009. There is no indication in this record that the lack of visits when Mother was incarcerated in the first phase of her drug treatment program was due to any failure on the part of DCFS, which was not in charge of her program or the facility where she was in custody. (See In re Ronell A. (1996) 44 Cal.App.4th 1352, 1363 [“prisons are run by the Department of Corrections, not the department of children’s services”].)
Mother’s reliance on In re Precious J. (1996) 42 Cal.App.4th 1463 is misplaced. In Precious J., the social services department did not facilitate any visits for the incarcerated mother and her newborn child even though she made her desire for visitation known at the dispositional hearing; indeed, the issue of visitation was “the central focus of the dispositional hearing,” the juvenile court obtained express assurances from the social services department that visitation would occur, and the court ordered the department to set up a specific visitation schedule. (Id. at pp. 1477–1478.) Here, Mother did not appear at the jurisdiction and dispositional hearing, there was no set schedule for visits, and there is no evidence that Mother raised the issue of visitation with the social worker during his monthly visits to Mother or with the court at the six-month review hearing. In addition, even before Mother was incarcerated, she made little effort to visit her daughter and to call the caretakers on a consistent basis. Mother does not fault DCFS with respect to the other components of her reunification plan, and the record shows that her drug program offered her the counseling and parenting classes ordered by the juvenile court. The record thus supports the findings that DCFS made reasonable efforts, including efforts with respect to visitation, and that reasonable services were provided to Mother.
We also note that Mother does not claim that the order terminating reunification services constituted an abuse of discretion. “[T]he juvenile court has the discretion to terminate the reunification services of a parent at any time after it has ordered them, depending on the circumstances presented.” (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.) Thus, “[i]t remains within the discretion of the juvenile court to determine whether continued services are in the best interests of the minor, or whether those services should be ended at some point before six months have elapsed.” (Id. at p. 1243.) “Where, as the record shows in this case, the likelihood of reunification is extremely low [citation], a continuation of the reunification period would waste scarce resources and delay permanency for dependent minors.” (Id. at p. 1242.)
Notwithstanding the adequacy of the reunification services provided and the propriety of the order terminating services, there was insufficient evidence to support the setting of the section 366.26 hearing within 120 days.
September 3, 2009, is 119 days after the May 7, 2009 order.
D. Setting of the Section 366.26 Hearing within 120 Days
Mother challenges the sufficiency of the evidence to support the juvenile court’s findings supporting its decision to set a section 366.26 hearing within 120 days. The juvenile court’s decision at the six-month review hearing to set a section 366.26 hearing within 120 days for a child under age three is governed by the third paragraph of section 366.21, subdivision (e). It provides in pertinent part: “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 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.”
“In all cases where the minor is under the age of three, the provision for continued services found in section 366.21, subdivision (e) is self-limited by the mandatory time periods of section 361.5, subdivision (a). Because a parent of a minor under the age of three can receive a maximum of six months of services unless there is a substantial probability the minor will be returned to that parent’s physical custody (§ 361.5, subd. (a)(2)), the provision for continued services beyond six months applies only when a parent is so entitled, that is, has participated in and made substantive progress with services and has shown there is a substantial probability of reunification by the 12-month date. Thus, the requirement for continued services under section 366.21, subdivision (e) does not apply when a parent has been offered or received six months of services for a child under the age of three and there is no probability of return.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 62–63.) Accordingly, “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, 157 Cal.App.4th at p. 64.)
“Section 366.21, subdivision (e), which relates solely to the conduct of the six-month review hearing, does not provide further guidance concerning how to determine at the six-month review whether there is a ‘substantial probability’ the child ‘may be returned’ to a parent within the following six months. (§ 366.21, subd. (e).) California Rules of Court, rule 5.710(f), restates subdivision (e) and in addition provides a three-factor test for assessing the probability of return at the six-month review: ‘If the court does not return custody of the child: [¶] (1) The court may set a hearing under section 366.26 within 120 days if: [¶]... [¶] (E) The child was under the age of three when initially removed and the court finds by clear and convincing evidence that the parent has failed to participate regularly and make substantive progress in any court-ordered treatment plan, unless the court finds a substantial probability that the child may be returned within 6 months or within 12 months of the date the child entered foster care, whichever is sooner, or that reasonable services have not been offered or provided. [¶] In order to find a substantial probability of return within the applicable time period, the court must find all of the following: [¶] (i) The parent or guardian has consistently and regularly contacted and visited the child; [¶] (ii) The parent or guardian has made significant progress in resolving the problems that led to the removal of the child; and [¶] (iii) The parent or guardian has demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health, and special needs.’ (Cal. Rules of Court, rule 5.710(f), italics added.)” (M.V., supra, 167 Cal.App.4th at pp. 176–177.)
Thus, although the three-factor test for substantial probability of return in California Rules of Court, rule 5.710(f)(1)(E) was taken from an identical test in section 366.21, subdivision (g)(1), dealing with a continuance at the 12-month review hearing, the two subdivisions of section 366.21 “present distinct legal standards: subdivision (e) asks whether there is a substantial probability the child may be reunited with the parent by the 12-month review; subdivision (g)(1) asks whether there is a substantial probability the child will be reunited with the parent by the 18-month review.” (M.V., supra, 167 Cal.App.4th at p. 180.) Accordingly, the juvenile court is not charged by section 366.21, subdivision (e) with finding a substantial probability the child will be returned; rather, the court is charged with finding a substantial probability the child may be returned. (M.V., at p. 181.)
The word “may” in section 366.21, subdivision (e) “alters the typically high burden of ‘substantial probability,’” commanding the court to determine “whether there is a strong likelihood of a possibility of return (not simply a strong likelihood the return will in fact occur).” (M.V., supra, 167 Cal.App.4th at p. 181.) And the court “may take all of the evidence into consideration in making its findings. The court is not limited to inquiring into the three factors set forth in section 366.21, subdivision (g)(1), and California Rules of Court, rule 5.710(f)(1)(E).” (M.V., at p. 181.)
In this case, we agree with Mother’s argument that there was insufficient evidence to support the conclusion that she did not “participate regularly... in [her] court-ordered treatment plan” (§ 366.21, subd. (e)), a finding which is a prerequisite for a court order setting a section 366.26 hearing within 120 days. The evidence established that Mother was regularly participating in her drug court treatment program. She was scheduled to begin the second phase of that program in June 2009 and testified that she intended to complete the program. Mother also expected to complete a parenting program in June 2009. Because there is insufficient evidence to support the requisite finding of lack of regular participation, there is insufficient evidence to support the order setting the 366.26 hearing within 120 days. That part of the order cannot stand.
Although the September 3, 2009 date for the section 366.26 hearing must be vacated, Mother nevertheless is not entitled to a continuance of the case to the 12-month date. The juvenile court must continue a case to the 12-month permanency hearing if “the court finds there is a substantial probability that the child... may be returned to his or her parent... within six months or that reasonable services have not been provided.” (§ 366.21, subd. (e).)
As explained above, substantial evidence supports the juvenile court’s conclusion that reasonable services were provided to Mother. And substantial evidence also supports the implied finding that there was not “a strong likelihood of a possibility of return” (M.V., supra, 167 Cal.App.4th at p. 181) of H.A. to her custody within the next six months.
The juvenile court reasonably could have concluded that, notwithstanding Mother’s regular participation in her program, she had not shown the capacity and ability to complete the objectives of her program and to provide for the safety and well-being of H.A. within the next six months. Mother had been in her drug court treatment program for only a little over three months at the time of the May 7, 2009 hearing; she had a 10-year history of drug use, she had lost custody of her older child, and she used drugs while pregnant with H.A. The juvenile court reasonably could have found that, given Mother’s long history of drug use, her prognosis for staying clean and sober after being released from her program was poor, and that it was unlikely that H.A. would be returned to Mother within six months.
We conclude that substantial evidence supports the juvenile court’s refusal to continue the case to the time of the 12-month review hearing. Because the September 3, 2009 date will be vacated, Mother’s request for a stay is moot, and it is denied on that ground.
DISPOSITION
The petition for an extraordinary writ is granted in part and denied in part. Let a peremptory writ of mandate issue commanding the juvenile court to vacate that part of the May 7, 2009 order setting a permanent plan hearing for September 3, 2009. In all other respects the petition is denied. The request for a stay of the September 3, 2009 hearing is denied as moot.
We concur: ROTHSCHILD, J., CHANEY, J.