Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Ct. No. DP016232, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Deborah A. Kwast, Public Defender; Frank Ospino, Assistant Public Defender, Joseph Flohr, Paul DeQuattro, and Dennis Nolan, Deputy Public Defenders, for Petitioner.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Karen S. Cianfrani for the Minor.
OPINION
SILLS, P. J.
E.C., mother of K.M., seeks writ relief from the orders of the juvenile court terminating reunification services and setting a permanent plan selection hearing (Cal. Rules of Court, rule 8.450), contending the juvenile court used the wrong statutory criteria in making its determination. We agree with the mother’s contentions and find the juvenile court must conduct a new hearing. Accordingly, we grant the petition.
FACTS
E.C. was 14 years old when she had her first child, B.C., in 1997. During the next eight years, she had three more children with three additional men. These four children were adjudicated dependents of the juvenile court in October 2006 based on the mother’s physical abuse of the older two. The mother was provided reunification services and monitored visitation.
In November 2007, the mother gave birth to K.M., a daughter, by a fifth man, L.M. The mother admitted to using crystal methamphetamine during the first three months of her pregnancy. Although both she and the newborn had negative toxicology screens when the child was born, Orange County Social Services Agency (SSA) took K.M. into protective custody. The mother had not been complying with her reunification plan in the case of the half-siblings, and an 18-month review hearing in that case was scheduled for February 2008. The father was unable to assume custody of K.M. “because of his long hours of employment.” The child was placed with the maternal grandmother, where K.M.’s half-siblings had been placed for over one year.
The juvenile court continued K.M.’s jurisdiction and disposition hearing to coincide with the half-siblings’ 18-month review hearing. The combined hearing began on February 26, 2008 and continued off and on over eight court days to March 12, 2008. The juvenile court sustained a dependency petition alleging that K.M. was described by Welfare and Institutions Code section section 300, subdivision (b) [failure to protect], subdivision (g) [failure to provide support], and subdivision (j) [sibling abuse]. The petition alleged that the mother used methamphetamines while pregnant with K.M.; she had an unresolved problem with substance abuse “that impairs her ability to effectively care for, parent and protect [K.M.]”; and she has “failed to consistently participate in and benefit from Court ordered case plan activities including substance abuse treatment testing and substance abuse programs.” The juvenile court removed K.M. from parental custody. It expressed its concern that the mother had not progressed in the half-siblings’ case, despite her participation in two parenting programs. “[T]he mother still sees that the appropriate way to discipline these children is by a display of anger and that by displaying anger, that’s an appropriate way to modify behavior of these children.” The court ordered SSA to provide the mother with counseling to address “her reliance on anger as a way of manipulating people’s behavior, specifically hurt children, and towards the idea of what appropriate parenting techniques would be.” It also authorized drug and alcohol testing twice a week and “the application of a drug patch.”
All statutory references are to the Welfare and Institutions Code.
The six-month review hearing for K.M. was held in July 2008. SSA’s reports showed that the mother had completed an outpatient substance abuse treatment program in June 2008. The social worker encouraged her to participate in the voluntary after-care program “for sobriety support,” but the mother did not do so. The mother also attended interactive parenting therapy through the Child Guidance Center but had not yet completed the program. The mother participated in individual therapy with Francisco Perez; she told him she was not ready to have the half-siblings returned to her because she was “afraid she can hurt the children.” Perez opined the mother wanted to reunify with K.M. because “the baby provides a chance for her to manipulate [the father].” He also reported the relationship between the mother and the father “is not going well.” The mother confirmed with the social worker that she did not want to reunify with the half-siblings. “The mother stated she felt she could hurt the children if she was left alone with the children, and did not feel safe with 5 hours of unmonitored visitations.” The social worker explained to the mother she could not recommend K.M.’s return to her because K.M. “is the one that possesses the greater risk given her age and inability to self-protect.”
The case was submitted on SSA’s reports. After argument, the juvenile court stated, “[T]his is sort of a close call. You’ve got a situation where you have an infant and you have got a parent who, at least on the face of it, seems to be going through the programs and is fairly compliant with what’s going on. [¶] But . . . in looking at the [Welfare and Institutions] Code, especially subsection (C) of [section] 366.21(g)(1), where it indicates the parent or legal guardian has demonstrated the capacity and ability to both complete the objectives of his or her treatment plan, and to provide for the child’s safety, protection, physical and emotional well-being and special needs, . . . the court needs to make that . . . part of the definition for a substantial probability of return within the next six months.”
The court was “impressed . . . that the mother is honest enough with her therapy to indicate when she feels that she may be a risk to the child so that they can deal specifically with those issues. And I must say that, certainly in one sense, it tilts the court towards the direction of perhaps moving to have additional services.” But the court expressed concern that the mother appeared ambivalent about her desire to reunify and that she could be a risk to K.M. “I think [that] also mitigates against the criteria for substantial probability of return where the Code specifically refers to the ability, capacity to provide for the child’s safety, protection, and physical and emotional well-being.”
The court found K.M.’s return to the mother would create a substantial risk of detriment and that reasonable services had been provided. It terminated reunification services and set a permanent plan selection hearing under section 366.26.
DISCUSSION
The mother contends the juvenile court failed to apply the correct statutory test to determine whether it could terminate reunification services and set a permanent plan selection hearing. We agree.
When a child under the age of three is adjudicated a dependent of the juvenile court and removed from her parents, the juvenile court must, absent certain statutory exceptions (§ 361.5, subd. (b)) offer the parents services to effect the reunification of the family. After six months, the juvenile court must review the case and decide whether to return the child to the parents, continue reunification services for six more months, or terminate reunification efforts and set a hearing to select a permanent plan for the child. (§ 366.21, subd. (e).) If the court continues reunification services for another six months, at the end of that period it must again review the case and decide whether to return the child to the parents, continue reunification services for six more months, or terminate reunification efforts and set a hearing to select a permanent plan for the child. (§ 366.21, subd. (f).) Thus, “the dependency scheme sets up three distinct periods and three corresponding distinct escalating standards for the provision of reunification services . . . . The effect of these shifting standards is to make services during these three periods first presumed, then possible, then disfavored.” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845.)
After the first six months of reunification services offered to the parents of a dependent child under three, the juvenile court must return the child to parental custody unless it finds, by a preponderance of the evidence, that return would “create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e), first paragraph.) Although detriment to return may be shown in a variety of ways, a showing that the parent has failed “to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Ibid.) If the juvenile court does not return the child to the parents, it must offer six more months of reunification services unless it “finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan . . . .” (§ 366.21, subd. (e), third paragraph.) If the juvenile court makes that finding, it may terminate reunification services and set a permanent plan selection hearing unless it finds “there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . . .”. (Ibid.)
After 12 months of reunification services to the parent of a child under three, the juvenile court must return the child to the parents unless it finds the return would be detrimental. The statutory test for detriment to return at the 12-month review hearing is found in section 366.21, subdivision (f) and is substantially the same as the test for detriment to return at the six-month review hearing (§ 366.26, subd. (e)). If the juvenile court does not return the child to the parents at the 12-month review hearing, however, the criteria for offering more reunification services and finding a substantial probability of return differ from those at the six-month review hearing. At the 12-month review hearing, the juvenile court must terminate reunification services and set a permanent plan selection hearing unless it finds “that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home” within the next six-month period or 18 months from the date of the child’s physical removal from the parents, whichever is sooner. (§ 366.21, subd. (g).) In order to find a substantial probability of return, and thus provide more reunification services, the juvenile court must find (1) “the parent . . . has consistently and regularly contacted and visited with the child”; (2) “the parent . . . has made significant progress in resolving problems that led to the child’s removal from the home”; and (3) [t]he parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1).)
Here, the juvenile court mixed up the two statutory tests. Instead of making the required finding that the parents had “failed to participate regularly and make substantive progress in a court-ordered treatment plan,” which is the precondition to the termination of reunification services at the six-month hearing for a child under three (§ 366.21, subd. (e)), the court ruled it could not make all the findings necessary to find there was a substantial probability of return under subdivision (g)(1), which is the precondition to the termination of reunification services at the 12-month hearing for any dependent child, including a child under three (§ 366.21, subd. (g)). (See M.V. v. Superior Court (2008) 167 Cal.App.4th 166.) These are significant differences: “First, the court is not charged by section 366.21, subdivision (e), with finding a substantial probability the child will be returned. The court is charged with finding a substantial probability the child may be returned. . . . [¶] Second, 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) . . . .” (Id. at p. ___.)
M.V. v. Superior Court, supra, 167 Cal.App.4th 166 is a recent case out of this court involving an almost identical situation. At a six-month review hearing for a child under three, the juvenile court terminated reunification services because it could not find that the parent had met all three criteria under section 366.21, subdivision (g)(1), which is the statutory test for substantial probability of return at the 12-month review hearing. This court reversed, finding the “three mandatory factual findings set forth in section 366.21, subdivision (g)(1)” should not be imposed at the six-month review hearing. (Id. at p. ___.) In doing so, the court pointed out that California Rules of Court, rule 5.710(f)(1)(E), incorporates the three mandatory factual findings from section 366.21, subdivision (g)(1) into the test for “substantial probability of return” at the six-month review hearing. The court disapproved rule 5.710(f)(1)(E) “[t]o the extent [it] purport[s] to require the court to do so . . .,” stating, “It is inconsistent with the language and structure of the statute to impose the same three mandatory factual findings set forth in section 366.21, subdivision (g)(1) to support a finding that the child may be returned to his or her parent pursuant to section 366.21, subdivision (e).” (Id. at p. ___, fn. 8.) We also disapprove rule 5.710(f)(1)(E) to the same extent.
SSA argues the record makes it clear the juvenile court was conducting a hearing under subdivision (e) rather than subdivision (g) and urges us to imply findings under the correct standard. We decline to do so. First, we cannot say the error was harmless under the clear and convincing standard. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 501, 1515.) The court stated it was a close case. It observed that the mother was attending her programs, and her candor during therapy weighed in favor of providing more services. Had the court applied the correct statutory provision, it is reasonably probable that it would not have found by clear and convincing evidence that the mother “failed to participate regularly and make substantive progress in a court-ordered treatment plan,” or that it would have found the child “may be returned” to the mother within six months. (§ 366.21, subd. (e).)
Furthermore, the juvenile court may have been conducting a hearing under subdivision (e), but it was clearly using the standards of subdivision (g) to terminate reunification services. Where the juvenile court bases its factual findings on the wrong statutory provision, the “better practice” is to remand the matter to the juvenile court for consideration under the appropriate statutory provision, even where the record “arguably” would support the same result. (In re V.F. (2007) 157 Cal.App.4th 962, 972-973.)
DISPOSITION
Let a writ issue directing the juvenile court to vacate its order terminating reunification services and setting a permanent plan selection hearing under section 366.26. The juvenile court is directed to hold a new six-month review hearing and make findings under section 366.21, subdivision (e). This decision shall be final as to this court 10 days after its filing. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR: FYBEL, J., IKOLA, J.