Filed 5/29/13 In re L.P.
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
J.K.,
Defendant
and Appellant.
E057054
(Super.Ct.No.
RIJ1200092)
OPINION
APPEAL
from the Superior Court of
County. Matthew Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, §
21.) Reversed with directions.
Diana
W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela
J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for
Plaintiff and Respondent.
This
is an appeal by J.K. (mother) from the trial court’s order under Welfare and
Institutions Code section 366.26
name="_ftnref1" title="">[1] terminating her parental rights to her then
12-month-old son, L.P. Mother contends
the trial court erred in denying her section 388 petition in which she
requested the trial court order reunification
services because, although her whereabouts were unknown at the start of the
dependency process, mother appeared in court on the date set for the selection
and implementation hearing. Therefore,
mother contends the trial court was required to provide reunification services
to her and that it erred in failing to do so.
We
agree with mother that the trial court erred, but do not share her view that
ordering reunification services is the only appropriate remedy, as we discuss
below. Therefore, we will reverse the
order terminating mother’s parental rights and remand the matter to the trial
court but with options on how to proceed on remand.
Riverside County
(DPSS) filed a section 300 petition on February 3, 2012, with respect to L.P.
after mother was arrested in court at a hearing for the child’s father who was
in custody on a criminal charge. Mother
had tried to communicate with father and also appeared to be under the influence
of a controlled substance. When mother
was bailed out of jail, she picked up L.P. at the home of his paternal
grandmother, and left him with her own mother, L.P.’s maternal grandmother. DPSS contacted the maternal grandmother after
receiving a referral that claimed she uses methamphetamine and is an alcoholic.
The maternal grandmother lived in a mobilehome
park open to residents 55 years of age and older. The social worker contacted the maternal
grandmother and, after discovering she had a warrant for being under the
influence of a controlled substance, detained L.P.
DPSS attempted to
locate mother but was unsuccessful. When
DPSS contacted the infant’s father, who was incarcerated, he reported that
mother had been seen in Banning. He did
not know whether mother was currently using drugs, but acknowledged mother had
in the past used methamphetamine. Mother
had failed to appear for her most recent court hearing.
DPSS had not
located mother and she did not appear at the detention hearing on February 6,
2012. In the report for the combined
jurisdiction and disposition hearing, the social worker reported that mother’s
whereabouts were still unknown and, therefore, the social worker recommended
the trial court deny reunification services to mother under section 361.5,
subdivision (b)(1).
title="">[2] In the interim, DPSS had placed L.P. in the
home of a paternal cousin who wanted to adopt the child.
Mother was not
present at the combined jurisdiction and disposition hearing on February 29,
2012. At that hearing, the trial court
sustained the allegations of the petition, removed L.P. from the custody of his
parents, and denied them both reunification services on the grounds stated in
the social worker’s report. The trial
court then set a selection and
implementation hearing for June 28, 2012.
The trial court directed DPSS to provide notice to mother by
publication.
Mother appeared at
the selection and implementation hearing on June 28, 2012. Because it was mother’s first appearance in
the proceeding, the trial court continued the hearing to August 9, 2012. Mother was in court on the continued hearing
date and represented by an attorney.
Mother’s attorney, in the course of stating his appearance on the
record, said, “We’re here for a .26 hearing, and the Department is aware mother
did appear during the first six months, so we’re asking for services.†After several additional continuances, the
trial court conducted the selection and implementation hearing on August 28,
2012.
Mother filed a
so-called section 388 petition on August 28, 2012, in which she asked the trial
court to change its earlier order denying her reunification services under
section 361.5, subdivision (b)(1), and grant her six months of reunification
services with L.P. Mother’s attorney
represented that although DPSS was aware of mother’s whereabouts on June 28,
2012, when she appeared in court, the social worker did not give mother any
referrals for services. Mother’s
attorney claimed that DPSS “insisted on a 388 [petition] being filed.†Her attorney also purported to acknowledge
that although mother was only entitled to services for the length of time
remaining based on the time she appeared, she nevertheless was asking for six
months. In the attorney’s view, because
mother’s whereabouts became known on June 28, at the very least she was
entitled to two months of services.
The trial court
denied mother’s section 388 petition, noting L.P. had been in the same adoptive
home since February and, therefore, it was not in the child’s best interest to
grant services to mother. The trial
court then conducted the selection and implementation hearing and terminated
mother’s parental rights after finding, among other things, that the trial
court had denied reunification services to mother under section 361.5,
subdivision (b)(1).
Mother appeals
from the order terminating her parental rights.
Mother
contends she was entitled to reunification services as a matter of law under
section 361.5, subdivision (d), which provides, “If reunification services are
not ordered pursuant to paragraph (1) of subdivision (b) and the whereabouts of
a parent become known within six months of the out-of-home placement of the
child, the court shall order the social worker to provide family reunification
services in accordance with this subdivision.â€
County
counsel concedes that the trial court erred, but it claims the error was in
setting the selection and implementation hearing after denying reunification
services to mother under section 361.5, subdivision (b)(1). According to county counsel, the trial court
should have set a six-month review hearing.
To support that assertion, county counsel cites In re T.M. (2009) 175 Cal.App.4th 1166, in which the Third District
Court of Appeal, in an opinion authored by then appellate court justice and now
California State Supreme Court Chief Justice Cantil-Sakauye, effectively held
that if a trial court denies reunification services under subdivision (b)(1) of
section 361.5, it may not terminate parental rights at the selection and
implementation hearing. (
that section 361.5, subdivision (b), sets out circumstances under which the
trial court may deny reunification services at the jurisdiction and disposition
hearing. Under section 361.5,
subdivision (f), all but one of those circumstances allows the trial court to
then set the selection and implementation hearing
adoption as the permanent plan. (
and implementation hearing is when the court denies reunification services
under section 361.5, subdivision (b)(1), the subdivision at issue in that case
and in this appeal, which is the only one not listed in section 361.5,
subdivision (f). (In re T.M., at pp. 1172-1173.)
The appellate
court reasoned that because section
366.26, subdivision (c)(2)(A),
name="_ftnref4" title="">[4] “bars termination of parental rights when the
parent has never been offered services,†the dependency “law requires the
[trial] court to find either that services would have been futile or
detrimental to the minor under any of the relevant subdivisions of section
361.5, with the obvious exception of subdivision (b)(1), or that the agency at
least tried to reunite the family by making reasonable efforts or offering
services to the parents. (§§ 366.21,
subds. (e), (f), 366.22.)†(
finding, then it may not terminate parental rights. (Ibid.) Because the trial court could not make either
finding, it could not terminate parental rights and, therefore, its options at
the section 366.26 hearing were limited to either guardianship or long-term
foster care. (In re T.M., at p. 1173.)
Similarly,
the trial court in this case erred when it set the section 366.26 hearing. As previously discussed, section 361.5,
subdivision (b)(1), is the only subdivision not listed in section 361.5,
subdivision (f), which authorizes the court to proceed directly to setting the
selection and implementation hearing.
Therefore, the trial court should have set a six-month review hearing
under section 366.21, subdivision (e).
When mother’s whereabouts became known on June 28, 2012, as a result of
her appearance in court for the erroneously set selection and implementation
hearing, the trial court should have ordered DPSS to provide reunification
services to mother under section 361.5, subdivision (d), or the trial court
should have conducted a hearing to determine whether any of the other
exceptions under section 361.5, subdivision (f), to providing services
applied. Absent reunification services,
or a finding that an exception to providing services applied, the trial court
could not make the findings required under section 366.26, subdivision
(c)(2)(A), the statutory prerequisites to termination of parental rights.
Contrary
to county counsel’s claim, the trial court’s error in terminating mother’s
parental rights “under the circumstances of this case is not harmless. No opportunity to reunify was ever afforded
[mother] nor did she have an opportunity to challenge a request to deny her
services under any subdivision of section 361.5 [that] would have supported
termination of parental rights.†(
would have made progress toward reunification if she had been provided with two
months of reunification services; the issue is whether the trial court had
statutory authority to terminate mother’s parental rights in this case.
The
remaining issue we must resolve is the appropriate remedy in this case. In In
re T.M., the court reversed the order terminating parental rights and
remanded the case for a new selection and implementation hearing at which the
trial court would be limited to choosing between guardianship or long-term
foster care. (In re T.M., supra, 175
Cal.App.4th at p. 1173.) This case
differs from In re T.M. because
mother requested reunification services when she first appeared in court and
then again in a section 388 petition.
Moreover, the trial court in In re
T.M. correctly set a six-month review hearing at which the mother could
have but did not assert a request for services, whereas the court in this case
erroneously set the selection and implementation hearing. Given the factual and procedural differences,
the appropriate remedy in this case is an order directing DPSS to provide
reunification services to mother.
Because L.P. was
under three years of age on the date of initial removal, mother would have been
entitled to six months of court-ordered services from the date of the
dispositional hearing. (§ 361.5, subd.
(a)(1)(B).) That hearing took place on
February 28, 2012, and six months from that date would be August 28, 2012. Therefore, on June 28, 2012, when mother
appeared in court, two months remained of mother’s six-month reunification
period. Mother is entitled to receive
services, at the very least, for those two months. (§ 361.5, subd. (d).)
Therefore,
on remand, the trial court either must conduct a hearing and determine that an
appropriate exception to providing reunification services exists under section
361.5, subdivision (b), or it must order DPSS to provide mother with two months
of reunification services with L.P.
The
order terminating mother’s parental rights is reversed. The matter is remanded to the trial court
with directions to either order DPSS to provide mother with reunification
services or to conduct a hearing to determine that a valid exception to
providing reunification services exists under section 361.5, subdivision (b).
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title=""> [2] Section 361.5, subdivision (b), states,
“Reunification services need not be provided to a parent or guardian described
in this subdivision when the court finds, by clear and convincing evidence, any
of the following: [¶] (1) That the whereabouts of the parent or
guardian is unknown. A finding pursuant
to this paragraph shall be supported by an affidavit or by proof that a
reasonably diligent search has failed to locate the parent or guardian. The
posting or publication of notices is not required in that search.â€
