Opinion
NOT TO BE PUBLISHED
Original Proceedings; petition for extraordinary writ review, No. JD119969-00, Robert J. Anspach, Judge.
H.S., Petitioner, in Propria Persona.
No appearance for Respondent.
Theresa Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Poochigian, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s orders issued at a continued and contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son M. We conclude she did not receive notice of the continued hearing and will grant the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner has a history of methamphetamine use dating back to 2002. In November 2008, she gave birth to M. who tested positive for methamphetamine at birth. Petitioner agreed to participate in voluntary family maintenance services, which included parenting counseling and random drug testing. However, she failed to comply by not drug testing in December and tested positive for methamphetamine in early January 2009. In addition, a Public Health Nurse reported that M. was not gaining sufficient weight.
In mid-January 2009, when petitioner failed to drug test, the Kern County Department of Human Services (department), accompanied by police officers, went to petitioner’s house and took then two-month-old M. into protective custody. The officers searched the home and found items used for the preparation of methamphetamine for sale. In addition, petitioner had less than five ounces of formula for the baby.
The juvenile court ordered M. detained pursuant to an original dependency petition, alleging petitioner’s substance abuse and failure to adequately feed M. placed him at a substantial risk of harm. (§ 300, subd. (b) [failure to protect].) The department placed M. in foster care.
In May 2009, the juvenile court sustained the petition, ordered M. removed from petitioner’s custody and ordered petitioner and M.’s father to participate in counseling for parenting, substance abuse and neglect and submit to random drug testing. The court advised both parents that their failure to regularly participate in and make substantive progress in their court-ordered services could result in termination of reunification services after six months. The court also ordered supervised twice-weekly visitation for petitioner and set the six-month review hearing for November 13, 2009.
In its six-month review of dependency dated October 2009, the department reported that the only component petitioner completed of her case plan was the course in parenting. She enrolled in counseling for child neglect and substance abuse in March 2009 but failed to provide any documentation as to her progress. In addition, she tested positive for methamphetamine in April, May, June and September 2009 and failed to drug test multiple times throughout the same time period, including three consecutive dates in October 2009. At the same time, she denied having a problem with drugs. M.’s father failed to participate in his court-ordered services and did not maintain contact with M.
The department further reported that petitioner regularly visited M. but the quality of visits was not good. Under the circumstances, the department recommended the juvenile court terminate reunification services for both parents and set a hearing to implement a permanent plan.
On November 13, 2009, the juvenile court called M.’s case. Petitioner’s attorney informed the court that Petitioner arrived for the hearing but was sent away before going into the courtroom because she was ill. In addition, county counsel advised the court the department’s report was incomplete because the department was having difficulty obtaining a progress report from petitioner’s substance abuse counselor. Consequently, the court continued the matter until mid-December 2009.
Meanwhile, the department filed a supplemental report stating petitioner completed a 24-week outpatient substance abuse program but, according to her counselor, was in denial about her substance abuse. Consequently, he recommended she repeat the program. In addition, the counselor opined petitioner had begun to decompensate emotionally and psychologically as manifested by paranoid thinking. She believed people were talking about her and tampering with her drug samples. In addition, physical illness was interfering with her treatment. On one occasion, the counselor asked her to leave the class because she was physically unable to stay awake. She was also unable to finish her last class.
The department also included in its supplemental report updated results of petitioner’s random drug testing. She tested positive for methamphetamine in late October 2009 and subsequently failed to test on five dates spanning from late-October through and including the first 10 days of December 2009.
In December 2009, on the date set, the juvenile court conducted the six-month review hearing. Father’s attorney specially appeared for petitioner’s attorney and informed the court petitioner was not present. He objected to the department’s recommendations on behalf of both parents but did not offer any evidence. The court found petitioner was provided proper notice, without objection. The court also found petitioner had failed to participate and make substantial progress in her court-ordered services and there was not a substantial probability M. could be returned to her custody within six months. Accordingly, the court terminated petitioner’s reunification services and set a section 366.26 hearing for April 2010. The court also terminated reunification services as to M.’s father.
Petitioner filed a writ petition and appeared for oral argument.
The father did not file a writ petition.
DISCUSSION
Petitioner contends her attorney advised her not to remain for the six-month review proceedings on November 13 and assured her everything would be fine. He also told her, she claims, that she would be notified of her next court date either by a court representative or by letter from the court. However, no one, not the court clerk or her attorney, contacted petitioner to advise her that the hearing was rescheduled to December 14, nor did she receive written notification of the continued court hearing date. Rather, the only notice she received was written notice from the court that a section 366.26 hearing had been set and that her parental rights were at risk.
“Review hearings are a critical aspect of our state’s dependency system.” (In Re Kelly D. (2000) 82 Cal.App.4th 433, 439.) From the parent’s perspective, they represent his or her best and perhaps only opportunity to make a case for return of the child to parental custody. (In re James Q. (2000) 81 Cal.App.4th 255, 263.) “Thus, review hearings represent one of the ‘[s]ignificant safeguards... built into the current dependency scheme.’ [Citation.]” (Ibid.)
In this case, petitioner was advised she had six months to complete her court-ordered services. Consequently, petitioner knew what was at stake at the six-month review hearing. Apparently, when it became clear the hearing was going to be continued, petitioner’s attorney advised her to leave and assured her she would be notified of the next court date. According to petitioner, she was not notified and the appellate record supports her claim by its silence on the issue. Given petitioner’s otherwise regular appearance at the dependency hearings and her effort to appear before this court, we are convinced petitioner would have appeared for the continued six-month review hearing had she been notified. Further, the lack of notification to petitioner deprived her of the opportunity to participate in a critical juncture of the proceedings.
Moreover, we cannot say that the failure to notify petitioner and her failure to appear were not prejudicial. Along with her petition, petitioner provided evidence she completed all three of her court-ordered programs before the six-month review hearing. Such evidence is contained in three certificates of completion: two awarded in October 2009 for a 26-week child neglect course and a 24-week substance abuse course; and one awarded in August 2009 for a nine-week parenting course. Since the juvenile court was aware that petitioner completed the parenting and substance abuse programs, the only new evidence petitioner could have presented was her completion of the child neglect course. And, while we recognize that evidence may not have resulted in a different outcome, we cannot say that it would not. Consequently, we will grant the petition and direct the juvenile court to conduct a new six-month review hearing.
DISPOSITION
Let an extraordinary writ issue directing respondent court to vacate its order of December 14, 2009, terminating petitioner’s reunification services and setting the section 366.26 hearing. Respondent court is further directed to conduct a new six-month review hearing and cause notice of the hearing to be provided as set forth in section 293.