Kimberly B. v. Superior Court

Filed 1/18/08 Kimberly B. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, James P. Marion, Judge. Petition denied. Request for stay denied.

Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Stacy Roark and Paul T. DeQuattro, Deputy Public Defenders for Petitioner.

No appearance for Respondent.

Benjamin P. de Mayo, County Counsel and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Law Offices of Harold LaFlamme and Yana Kennedy for the Minors.

* * *

Three sibling children were detained when the youngest was under age three. Subsequently, their mother, Kimberly B. (mother), gave birth to a fourth child while in prison. That child was also detained. At the continued six-month review hearing, the court scheduled a Welfare and Institutions Code section 366.26 hearing to take place within 120 days.^[1] Mother challenges that order with respect to the three oldest children, who were detained as a sibling group. She says the court failed to provide her information as required by section 361.5, subdivision (a)(3) and failed to exercise its discretion and consider the section 366.21, subdivision (e) factors to determine the best interests of the children.

As to the first point, the courts failure to comply with the advisement requirements of section 361.5, subdivision (a)(3) was harmless error under the facts of this case. As to the second point, an addendum report prepared by the Orange County Social Services Agency (SSA) specifically addressed the section 366.21, subdivision (e) factors, including the wishes of the children, and the record reflects that the court took that report into consideration in making its ruling. Furthermore, SSA offered to stipulate that the two oldest children would testify that they wanted to reunify with their mother. The petition for a writ of mandate and the request for stay are denied.

I

FACTS

On October 2, 2006, a juvenile dependency petition ( 300 et seq.) was filed on behalf of mothers three children, ages eight years, seven years and 15 months. The petition alleged that, in September 2006, mother had been arrested and incarcerated for possession of controlled substances and for willful cruelty to a child. The petition further alleged that mother had a history of methamphetamine use and an extensive criminal history, including numerous arrests and convictions, and that these histories impaired her ability to care for her children. The children were ordered detained and they were placed as a sibling group in the home of their maternal grandmother.

On November 20, 2006, a juvenile dependency petition was filed on behalf of mothers fourth child. The petition alleged that the infant was born earlier in the month, while mother was incarcerated. It also alleged that mother had used methamphetamines during the first trimester of her pregnancy. The infant was ordered detained. In its jurisdiction/disposition report for the infant, SSA reported that the maternal grandmother did not want placement of the infant, since it would be too much for her to care for an additional child. The infant was later placed in a confidential adoptive placement.

By order of November 28, 2006, the court found the allegations of the amended October 2, 2006 report true and ordered the three members of the initial sibling group declared dependent children of the Orange County Juvenile Court under section 360, subdivision (d). The court warned mother pursuant to section 366.26 about the effects of noncompliance with the service plan and the possibility of termination of parental rights within six months. It set a six-month review hearing for May 10, 2007.

In its May 10, 2007 status review report, SSA alleged that mother was incarcerated, having been arrested about three months earlier, and charged with first degree burglary, grand theft auto, possession of stolen property, and a probation violation. It also alleged that mothers probation officer was recommending a prison sentence for the probation violation, and that the lowest possible term for that violation, exclusive of any sentence if mother were found guilty on the other charges, would be 16 months in prison. In addition, SSA stated: The childrens mother had five elements in her case plan including parenting education, substance abuse testing, substance abuse treatment program, Twelve-Step Program, and general counseling. The childrens mother has not attended the required activities on her case plan. The report also stated that the maternal grandmother had expressed an interest in adopting the children if reunification efforts failed.

In its May 10, 2007 addendum report, SSA recommended the termination of reunification services and the scheduling of a section 366.26 selection and implementation hearing. It identified a case plan goal of the adoption of the three oldest children as a sibling group, with a projected completion date of November 8, 2007.

The six-month review hearing was continued many times. In its September 26, 2007 addendum report, SSA addressed the section 366.21, subdivision (e) factors pertaining to the scheduling of a section 366.26 hearing for the members of a sibling group consisting of the oldest three children. On September 27, 2007, the court found that the return of the children to the parents would create a substantial risk of detriment to the children and that reasonable services had been provided. It ordered the termination of reunification services, the adoption of the service plan submitted on May 10, 2007, and the holding of a section 366.26 hearing within 120 days.

Mother has filed a petition for a writ of mandate and request for stay. In her petition, she challenges the September 27, 2007 order only as it pertains to the three oldest children.^[2]

II

DISCUSSION

A. Introduction:

This case revolves around the duration of services to be provided when one member of a sibling group is under age three at the time the group is detained. If a child is over the age of three when removed from parental custody, he is entitled to a minimum of 12 months of reunification services. [( 361.5, subd. (a)(1).)] In the interest of expediting permanency and improving the chances of adoption for very young children, the Legislature has limited the reunification period to six months for children who are under three on the date of the initial removal. [( 361.5, subd. (a)(2).)] In the case of a sibling group which includes children in both categories, at the six month hearing the court may split up the siblings by expediting permanency for the younger sibling, expedite permanency for the entire sibling group (thus reducing the older siblings minimum reunification period to six months), or continue the case to the 12-month hearing for all of the children (thus increasing the reunification period for the younger sibling). [( 366.21, subd. (e).)] The clear purpose of these provisions is to give the court flexibility to maintain a sibling group together in a permanent home. (Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 13-14, fns. omitted.)

In furtherance of the societal interest in placing and maintaining a sibling group together in a permanent home, the Legislature has imposed strict requirements before the court may make a determination at the six-month hearing to schedule a section 366.26 hearing for some or all of the sibling group members. (Abraham L. v. Superior Court, supra, 112 Cal.App.4th at p. 14.) For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in paragraph (3) of subdivision (a) of Section 361.5, shall review and consider the social workers report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interest of each child in the sibling group. The court shall specify the factual basis of its finding that it is in the best interest of each child to schedule a hearing pursuant to Section 366.26 in 120 days for some or all of the members of the sibling group. ( 366.21, subd. (e).)

B. Mothers Contentions:

(1) Exercise of discretion/consideration of childrens wishes

Here, mother contends that, under the circumstances of this case, the court erred when, at the continued six-month review hearing, it applied section 366.21, subdivision (e) and scheduled a section 366.26 hearing to take place within 120 days. More specifically, she maintains that the court failed to exercise its discretion and to consider the factors enumerated under section 366.21, subdivision (e), in order to determine whether it was in the best interests of each of the three oldest children to set the section 366.26 hearing. The record belies this assertion.

Mother notes that at a hearing on September 21, 2007, her counsel asked the court to grant an additional six months of reunification services, arguing that SSA had not addressed all of the section 366.21 issues. Her counsel argued in the alternative: If the courts not inclined to do that, my argument then is that at least we have a right to examine the children to find out exactly what their wishes are in terms of reunification. The court indicated that another option was to have SSA prepare a supplemental report on the issues. After lengthy debate, the hearing was continued.

At the continued hearing on September 26, 2007, SSAs addendum report of that date was admitted into evidence without objection. The addendum report specifically addressed each one of the factors enumerated in section 366.21, subdivision (e). It also addressed the wishes of the children. Given this report, SSA reiterated at the hearing that it recommended keeping the three oldest children together as a sibling group and proceeding to a section 366.26 hearing. It argued against calling the two oldest children as witnesses and offered to stipulate that the two oldest children would testify that they wanted to reunify with their mother and that they wanted to stay together with the third child with whom they were detained as a sibling group. Minors counsel joined in SSAs arguments.

At the hearing, mothers counsel acknowledged that the September 26, 2007 addendum report addressed each of the section 366.21, subdivision (e) factors. She nonetheless argued that she had a right to examine the two oldest children as to whether they had an attachment with their mother, in order to determine their wishes and thus their best interests in setting a section 366.26 hearing.

The court denied the request to call the oldest children as witnesses. The courts September 27, 2007 minute order stated that the court had read, considered and accepted into evidence certain social services court reports, including the September 26, 2007 addendum report. (Capitalization omitted.) This notwithstanding, mother steadfastly says that the court erred in failing to take the childrens wishes into consideration. However, the September 26, 2007 addendum report states with respect to the childrens wishes: The [two oldest] children . . . have stated to the undersigned that they like living with their grandmother if they cant be with their mother and dont want to be anywhere else. The [youngest] child [of that sibling group] is too young to make a statement, but her response to her grandmother indicates that she is happy in her care. The court, upon reading and considering the addendum report, thereby considered the wishes of the children. The childrens wishes having been stated in the addendum report, and mother having expressed no disagreement with the characterization of those wishes, the court simply chose not to take the childrens testimony on the point. However, the fact that the court decided not to put the children on the witness stand does not mean that the court failed to take the childrens wishes into consideration, or failed to exercise its discretion or determine the best interests of the children, in deciding to set a section 366.26 hearing within 120 days.

Mother nonetheless emphasizes certain of the judges comments concerning relevancy, made when the court denied the request to call the oldest children as witnesses. The judge stated: If these kids had been split up when they were removed, that would be a different issue. But theyre together. You want them together. They are together. . . . So, its not really relevant to call the . . . kids for their opinion. Weve got this last report helps you as far as keeping the kids together. The court further explained that at the .26 . . . then there are different issues . . . . And those are the things we talked about, best interest and the bonding with the parents. Thats when its relevant. And its not relevant at this point in time. So, thats the courts decision.

On the one hand, one could construe certain of the comments as meaning that the childrens testimony would really just be cumulative, given that the addendum report already addressed their wishes. On the other hand, one could also construe other comments as meaning that the childrens wishes in terms of reunification with their mother were irrelevant in the context at hand, but would be considered at a subsequent section 366.26 hearing. In evaluating the latter possibility, it is important to remember that SSA had offered to stipulate that the oldest two children would testify that they wanted to reunify with their mother.

It is also important to remember that section 366.21, subdivision (e) requires the court, at the six-month review hearing, to order the return of the child to his or her parent unless it finds that the return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child, and permits the court to schedule a section 366.26 hearing within 120 days if a member of the sibling group was under the age of three years at the time of the 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. Here, the court made both of these findings, and thus acted properly in scheduling the section 366.26 hearing.

(2) Failure to warn

As a separate matter, mother says that the court erred in failing to provide her with an admonition as required by section 361.5, subdivision (a)(3). The relevant portion of the statute provides: In cases where the child was under the age of three years on the date of the initial removal from the physical custody of his or her parent . . . or is a member of a sibling group . . . , the court shall inform the parent . . . that the failure of the parent . . . to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months. The court shall inform the parent . . . of the factors used in subdivision (e) of Section 366.21 to determine whether to limit services to six months for some or all members of a sibling group . . . . ( 361.5, subd. (a)(3).)

Mother does not argue that the court failed to advise her in accordance with the first quoted sentence. Rather, she argues only that the courts advisement did not include the information required by the second quoted sentence. That is to say, mother maintains the court did not inform her of the section 366.21, subdivision (e) factors.

However, a courts failure to comply with the advisement requirements of section 361.5, subdivision (a)(3) does not constitute a due process violation and does not require a reversal per se. (Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 571-573.) Rather, a harmless error standard applies. (Id. at pp. 571, 573.) [C]ourts should be (and are) cautious in determining which errors and omissions require that proceedings be returned to the trial court for further attempts at a reunification which the record suggests will never occur. (Id. at p. 572, fn. omitted.) Here, there is no evidence that if Mother had been . . . advised of the [section 366.21, subdivision (e) factors], she would have promptly and consistently participated in her plan. (Id. at p. 573, fn. omitted.) To the contrary, mother acknowledges that [a]t the six month review, [she had] failed to regularly participate and make substantive progress in a drug treatment plan . . . . Furthermore, she does not explain how the courts advisement with respect to the section 366.21, subdivision (e) factors could have affected the outcome in this particular case.

(3) Other

To the extent that mother raises additional arguments for the first time in her reply brief, we do not consider them. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)

III

DISPOSITION

The petition for a writ of mandate and the request for stay are denied.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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^[1] All subsequent statutory references are to the Welfare and Institutions Code, unless otherwise specifically noted.

^[2] On the cover sheet of her petition, mother lists the case numbers pertaining to the proceedings for each of her four children. However, in the body of her petition, she makes clear that she is not challenging the order as it pertains to the infant.