S.H. v. Super. Ct.
Filed 1/23/14 S.H. v. Super.
Ct. CA6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
S.H.,
Petitioner,
v.
THE SUPERIOR COURT OF SANTA CLARA COUNTY,
Respondent;
SANTA CLARA
COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,
Real Party in Interest.
No. H040329
(Santa
Clara
Super. Ct. No. JD21486)
Petitioner
S.H. (father) is the biological father of now two-year-old T.H. Father filed this petition for
T.H.’s mother, S.P. (mother), and setting a permanency planning hearing (Welf.
& Inst. Code, § 366.26)
name="_ftnref1" title="">[1]
for February 27, 2014. For the reasons
stated here, we will grant the petition and stay the section 366.26 hearing
until the trial court decides to grant or deny petitioner’s request for reunification
services.
I.
Juvenile court
proceedings
Mother
gave birth to T.H. in October 2011. At
that time, and continuing until June 2013, father was incarcerated “for drug
related crimes perpetrated while in the company of [mother].†In September 2012, T.H.’s maternal grandmother
petitioned the probate court for
guardianship of T.H. The probate court,
in turn, petitioned the Santa Clara County Department of Family and Children’s
Services (Department) to investigate the matter. The Department filed a
pursuant to section 300, subdivision (b), obtained a protective custody warrant,
and temporarily detained T.H. The
petition listed father as T.H.’s alleged father. After an initial hearing, the court authorized
the Department to place T.H. temporarily with her maternal grandmother for the duration
of the dependency proceedings.
The
trial court set a jurisdiction and disposition hearing for November 28, 2012, and sent an order for father’s appearance to father’s penal fire
camp. Father waived his right to attend
that hearing. As discussed in the
jurisdiction and disposition report prepared by the Department for the hearing,
mother reported she had been “together†with father since 2007 and that they
were living together when T.H. was conceived.
In addition to T.H., mother has three other children. Maternal grandmother is the guardian of these
other children. Both mother and father
have extensive criminal records and are registered narcotics offenders. The Department recommended finding T.H. a
dependent of the court and providing family reunification services to mother. Regarding father, the Department recommended
no provision of services because “paternity has not been established.â€
At
the November 28, 2012 hearing, the trial court found true the allegations of an
amended juvenile dependency petition, adjudged T.H. a dependent of the court,
admitted the social worker’s report into evidence, continued T.H.’s placement
with maternal grandmother, ordered that mother receive services from the family
reunification program, ordered that no services be provided to father because
paternity had not been established, and set a six-month review hearing (§ 366)
for May 2013.
In
May 2013, father requested and received appointed counsel and the court
continued the six-month review hearing to allow father’s counsel to communicate
with father. Father was released from
incarceration in June 2013 and made his first personal appearance before the
juvenile court in July 2013, where he also requested paternity testing. The court granted father’s request for
genetic testing and continued the six-month review hearing pending the results
of the testing. In September 2013, the
court received genetic testing results from the Department and found father to
be T.H.’s biological father.
In
preparation for the six-month review hearing, the Department prepared a series
of addenda reports. The earliest
addendum in the record, prepared in May 2013, discussed mother’s “great
motivation†to comply with her case plan and recommended that the court provide
her an additional six months to continue engaging in reunification
services. In later addenda reports,
however, the Department changed its recommendation to terminate reunification
services for mother, citing mother’s failure to comply with her case plan as
well as multiple positive drug tests for amphetamines.
The
only Department addendum report with any significant discussion of father was
prepared in September 2013 after the genetic testing confirmed he is T.H.’s
biological father. In the report, the
social worker noted that father had visited T.H. between two and four times
since his release from the fire camp but that maternal grandmother reported
father did not provide items such as food, clothing, or diapers when he visited. The report also stated father told the social
worker that while he would like to have custody of T.H. at some point, he was
not currently in a position to care for T.H.
Based on this information, the social worker who drafted the report
opined that “recommending reunification services for the father is not in
[T.H.’s] best interest at this time.â€
Due
to the foregoing continuances, the “six-month†review hearing actually occurred
on October 28,
2013, 11 months after the juvenile court’s
jurisdictional and dispositional findings.
At the beginning of the hearing, counsel for the Department summarized
the issues to be determined by the court: “The issue regarding the Mother is the
Department is asking for termination of services. The issue in regards to the biological Father
is that the Department is not recommending Reunification services. I believe the Father would like services.†The court heard testimony from T.H.’s social
worker and father regarding father’s request for family reunification services. The social worker, Joseph Phan, testified as
an expert witness in risk assessment and the provision of services to families
and children. Phan recommended that the
court deny reunification services to father because it would “delay the
permanency process for [T.H.]†Father
expressed his desire to obtain custody of T.H. and his willingness to engage
fully in any services that were ordered.
After that testimony, the court heard argument from the parties
regarding father’s request for services.
The court took the matter under submission and instructed the parties to
return October 30.
On
October 30, the court terminated reunification services to mother and scheduled
a section 366.26 permanency planning hearing for February 27, 2014. In terminating family
reunification services, the court stated: “the parents have failed to participate
regularly and make substantial progress in the court-ordered treatment plan,
and there is not a substantial probability that the child may be returned to
his or her parents within six months.†When
counsel for the Department asked the court about father’s request to receive
reunification services, the court responded: “With respect to the Father’s request, the
Court does find that there was no [section] 388 [petition] filed. I am not entertaining that request at this
time.†This petition followed.
II.
Discussion
Father
claims the court erred by not considering and deciding whether to grant or deny
his request for reunification services. Though
he does not set forth a standard of review, we discern father argues that by
refusing to either grant or deny his request for services, the juvenile court
failed to exercise its discretion. “A
trial court’s failure to exercise discretion is itself an abuse of discretion,
and we review such action in accordance with that standard of review.†(In re
Marriage of Gray (2007) 155 Cal.App.4th 504, 515.)
The
provision of reunification services is governed by section 361.5, subdivision (a). Family reunification services are generally
provided by right to a child’s mother and “statutorily presumed father.†(§ 361.5, subd. (a).) For a biological father who, like father
here, has not attained the status of a “statutorily presumed father,†reunification
services are not automatically provided.
Instead, section 361.5, subdivision (a) provides the juvenile court with
discretion to provide reunification services “if the court determines that the
services will benefit the child.†(
Father
does not disclose when he first requested reunification services. Until his paternity was established in
September 2013, the Department recommended that father not receive services
because “paternity has not been established.â€
Once his paternity was established, however, the Department discussed the
possibility of reunification services for father in a September 2013 addendum
report, suggesting that father requested services once his paternity was
confirmed.
At
the October
28, 2013 contested six-month review
hearing, counsel for the Department stated at the outset: “The issue in regards to the biological
Father is that the Department is not recommending Reunification services. I believe the Father would like services.†The transcript of that hearing reveals that
whether father should receive reunification services (including discussion of
father’s fitness as a parent) was the central issue explored during the
testimony of father and social worker Phan.
The parties’ arguments also centered on father’s request for
services. After allowing testimony and
argument on October 28 and 30, the juvenile court determined it would not
entertain father’s request for reunification services, citing his failure to
file a section 388 petition for modification.
In doing so, we find that the juvenile court abused its discretion.
As
relevant to father’s petition, section 388, subdivision (a)(1), provides: “Any parent or other person having an interest
in a child . . . may, upon grounds of change of circumstance or new evidence,
petition the court . . . for a hearing to change, modify, or set aside any
order of court previously made . . . .â€
A section 388 petition is the general method of requesting modification
of any juvenile court order. It is also
a proper method for a biological father to request reunification services. (In re
Zacharia D. (1993) 6 Cal.4th 435, 454 (Zacharia
D.).) However, when, as here, a
biological father requests reunification services before a section 366.26
hearing is set, the Department provides a written recommendation regarding the
request, and the juvenile court holds a hearing where the central issue is
father’s entitlement to reunification services, a juvenile court abuses its
discretion when it fails to render a decision on the request.
We
find support for our decision in Zacharia
D., where the Supreme Court considered a biological father’s request for
reunification services despite his failure to file a formal section 388
petition. In Zacharia D., Javan, who was the biological father of Zacharia,
filed a “complaint to establish a parental relationship†after the juvenile
court held an 18-month review hearing regarding the mother’s compliance with
court-ordered reunification services. (
as the proper method for Javan to request a hearing to reconsider the juvenile
court’s previous orders. Although the
court recognized that “Javan never filed a motion under section 388,†it
nonetheless considered his request because “[Javan] did seek custody and
visitation in his petition to be declared Zacharia’s father . . . [and] his
counsel impliedly requested reunification services . . . by requesting a
continuance so that the County could ascertain what reunification services
Javan would require.†(
While
a section 388 petition remains the proper vehicle for seeking modification of
prior orders, in this case the October 28, 2013 hearing was essentially
a hearing of the type that would have been held had father filed a section 388
petition. By allowing that hearing to
occur but not taking the final step of deciding whether to grant or deny
father’s request for reunification services, the court failed to exercise its
discretion.
The
Department relies on the following finding from the court to argue that, rather
than defer a decision on father’s request, the juvenile court actually
considered and denied it: “By clear and
convincing evidence, the parents have failed to participate regularly and make
substantial progress in the court-ordered treatment plan, and there is not a
substantial probability that the child may be returned to his or her parents
within six months.†However, mother was
the only parent who received a court-ordered treatment plan. Indeed, the point of father’s request for
reunification services was to receive a court-ordered treatment plan. For this reason, the Department’s argument is
without merit.
Although
we find that the juvenile court abused its discretion in not rendering a
decision regarding father’s request for services, we express no opinion on the
merits of father’s request. That
determination is the province of the juvenile court, and we will not substitute
our judgment based on a cold record for that of the court before whom the parties
are appearing.
III.
Disposition
Father’s
petition for writ of mandate is granted.
Let a peremptory writ of mandate issue directing respondent court to
vacate its October
30, 2013 order declining to entertain
father’s request for reunification services and to issue a new order in which
it determines whether to grant or deny father’s request. The section 366.26 hearing currently
scheduled for February
27, 2014 is stayed until the juvenile court
determines whether to grant or deny father’s request for reunification
services. In the interests of justice, this
opinion shall be final as to this court seven days from the date of
filing. (Cal. Rules of Court, rules 8.452(i),
8.490(b)(2)(A).)
____________________________________
Grover,
J.
WE CONCUR:
____________________________
Elia, Acting P.J.
____________________________
Mihara, J.
Welfare and Institutions Code.
