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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057054
Plaintiff and Respondent, (Super.Ct.No. RIJ1200092)
v. OPINION
J.K.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside 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.
1 This is an appeal by J.K. (mother) from the trial court’s order under Welfare and
Institutions Code section 366.261 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.
FACTUAL AND PROCEDURAL BACKGROUND
Riverside County Department of Public Social Services (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.
1 All further statutory references are to the Welfare and Institutions Code.
2 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).2 In the interim, DPSS had placed L.P. in the home of a
paternal cousin who wanted to adopt the child.
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.”
3 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
4 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.
DISCUSSION
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.”
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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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057054
Plaintiff and Respondent, (Super.Ct.No. RIJ1200092)
v. OPINION
J.K.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside 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.
1 This is an appeal by J.K. (mother) from the trial court’s order under Welfare and
Institutions Code section 366.261 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.
FACTUAL AND PROCEDURAL BACKGROUND
Riverside County Department of Public Social Services (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.
1 All further statutory references are to the Welfare and Institutions Code.
2 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).2 In the interim, DPSS had placed L.P. in the home of a
paternal cousin who wanted to adopt the child.
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.”
3 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
4 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.
DISCUSSION
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.”
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
5 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. (In re T.M., at p. 1173.)
More particularly, the appellate court noted 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
hearing3 at which the court may, in turn, choose adoption as the permanent plan. (In re
T.M., at pp. 1172-1173.) The one exception to setting the selection 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
3 Section 361.5, subdivision (f), in effect in 2012, states, in pertinent part, “If the court, pursuant to paragraph (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) or paragraph (1) of subdivision (e), does not order reunification services, it shall, at the dispositional hearing, that shall include a permanency hearing, determine if a hearing under Section 366.26 shall be set in order to determine whether adoption, guardianship, or long-term foster care . . . is the most appropriate plan for the child . . . .”
6 court reasoned that because section 366.26, subdivision (c)(2)(A),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.)” (In re T.M., at p. 1173.) If the trial court cannot make either 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,
4 Section 366.26, subdivision (c)(2), states, “The court shall not terminate parental rights if: [¶] (A) At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.”
7 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.” (In re T.M., supra, 175 Cal.App.4th at p. 1173.)
Therefore, the issue is not whether mother 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
8 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.
9 DISPOSITION
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.