Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn H. Mackel, Temporary Judge, Ct. No. CK12896
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Owen L. Gallagher, Deputy County Counsel.
BOREN, P.J.
Appellant, James M. (father), appeals the denial of his Welfare and Institutions Code section 388 petition. Appellant’s petition sought to reinstate reunification services, which the juvenile court had terminated 12 months previously, and to enforce prior visitation orders as to his three children. Appellant’s children had been detained and placed in the custody of others approximately 24 months prior to appellant’s petition to reinstate reunification services. We affirm the denial of the petition, because the juvenile court lacked statutory jurisdiction to reinstate family reunification services beyond an 18-month period from when custody of the children was taken from appellant.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
Appellant’s three children (now ages 13, 12, and 11) are the subjects of this appeal. The children were declared dependents of the juvenile court in April of 2005, after appellant (a cocaine and marijuana user) abandoned them at a police station. Since April of 2005, the children have been placed together with foster parents who want to adopt them. On May 8, 2007, at a continued section 366.26 hearing, the court found that the children were adoptable and it would be detrimental for them to be returned to the custody of their parents; the court terminated parental rights.
Previously, in October of 2004, appellant had similarly abandoned the children at a police station.
Appellant contends the juvenile court abused its discretion in denying his section 388 petition without a full evidentiary hearing. Appellant asserts that his section 388 petition (filed on the day of the contested section 366.26 termination hearing and over a year after reunification services had been terminated) established a prima facie showing of new evidence and changed circumstances (i.e., his drug rehabilitation) to warrant reinstating reunification services.
Respondent, Los Angeles County Department of Children and Family Services (DCFS), argues that the juvenile court did not abuse its discretion in denying the modification petition for two reasons. First, respondent urges that appellant failed to establish that the modification sought satisfied the requisite “best interests” (§ 388, subd. (c)) of the children. Second, respondent contends the juvenile court lacked jurisdiction to extend reunification services beyond the “maximum time period [of] 18 months” (§ 361.5, subd (a)), calculated from “the date of the child was originally taken from the physical custody of [the] parent.” (§ 366.21, subd. (g)(1).)
We affirm the order denying the section 388 petition based on well-settled authority, which establishes the juvenile court’s lack of jurisdiction to grant appellant’s belated petition. It is thus unnecessary to address (1) the failure of appellant’s petition to establish that additional reunification services would be in the best interests of the children’s stability and their prospects for a permanent home, and (2) the failure of the petition’s general and conclusory allegations to warrant a plenary hearing.
“The Legislature has recognized that a parent who has a child removed for neglect, abuse or substantial risk thereof, in most cases should be provided with services to assist the parent in overcoming the problems that led to removal. (§ 361.5.) It has also recognized that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308; see also In re Jasmon O. (1994) 8 Cal.4th 398, 421.) “‘[O]nce court intervention is determined necessary, children and parents should receive appropriate legal representation, time-limited and clearly focused protective and/or reunification services, and permanency planning at the earliest possible stage for those children who cannot live safely with their family.’” (In re Zacharia D. (1993) 6 Cal.4th 435, 446.)
In fashioning the statutory scheme for the reunification process, “‘the Legislature balanced numerous competing fundamental interests, including the child’s compelling interest in “a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child,” the parents’ compelling “interest in the companionship, care, custody and management” of their child [citation], and the “preservation of the family whenever possible. . . .” (§ 300, subd. (j).)’” (In re Zacharia D., supra, 6 Cal.4th at p. 446.)
Thus, as the Supreme Court emphasized in In re Zacharia D., supra, 6 Cal.4th at page 446, while the statutory scheme generally requires that parents be offered reunification services, the Legislature has limited those services to “‘a maximum time period not to exceed 12 months,’” which under certain circumstances may be extended to 18 months. (§ 361.5, subd. (a).) This 18-month period is calculated from “the date the child was originally taken from the physical custody of [the] parent.” (§ 366.21, subd. (g)(1).) The reunification period, which is expressly not tolled by the parents’ physical custody of the child or by the parents’ absence or incarceration (§ 361.5, subds. (a), (d) & (e)(1)), in some situations may be as short as six months or may not be provided at all. (§§ 366.21, subd. (e), 361.5, subd. (b); see In re Troy Z. (1992) 3 Cal.4th 1170, 1177.)
At the juvenile court’s periodic review hearings (§ 366), DCFS “must . . . present evidence that reasonable reunification services have been provided to the parent.” (In re Marilyn H., supra, 5 Cal.4th at p. 308.) “If the child may not safely be returned to the parents within a maximum of 18 months from removal,” the court must terminate reunification efforts and set a section 366.26 selection and implementation hearing. (In re Marilyn H., at p. 308; §§ 366.21, subd. (f), 366.22, subd. (a).) “Prior to terminating reunification services, the court must make a determination that it would be detrimental to the child to be returned to the parent’s custody.” (In re Marilyn H., supra, 5 Cal.4th at p. 308.) “‘[T]he proceeding terminating reunification services and setting a section 366.26 hearing is generally a party’s last opportunity to litigate the issue of parental fitness as it relates to any subsequent termination of parental rights, or to seek the child’s return to parental custody.’” (In re Zacharia D., supra, 6 Cal.4th at p. 447.) “If there is clear and convincing evidence that the child will be adopted, and there has been a previous determination that reunification services should be ended, termination of parental rights at the section 366.26 hearing is relatively automatic.” (In re Zacharia D., at p. 447.)
“[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.” (In re Marilyn H., supra, 5 Cal.4th at p. 310.) “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (Id. at p. 309.)
We acknowledge that the juvenile court may, in the best interests of the child and for good cause, exercise its discretion to grant a continuance of any hearing, including the 18-month hearing, pursuant to section 352, subdivision (a). (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510-1511.) Also, “The statutes and rules governing dependency actions clearly require that a family reunification plan be developed as a part of any dispositional order removing a child from its home.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1776.) Thus, the 18-month hearing may be continued if “no reasonable reunification services have ever been offered or provided to a parent” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017), and the time frame for reunification services may be extended if “no reunification plan was ever developed.” (In re Dino E., supra, 6 Cal.App.4th at p. 1777.) Similarly, reunification services were extended where the mother was hospitalized during most of the reunification period and had otherwise substantially complied with the reunification plan. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1797-1799.) However, absent such “extraordinary” situations, “the juvenile court’s extension of services beyond 18-months [is] an abuse of discretion and in excess of its jurisdiction, as limited by statute.” (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1511.)
In the present case, reunification services had been offered, and there were no “extraordinary” circumstances. On April 7, 2005, the dependency petition was filed, and the children were ordered detained. Appellant was entitled to and did receive reunification services until the initial 12-month review date, April 24, 2006, on which date reunification services were terminated. A year later--after the children had been in foster care with their prospective adoptive family for approximately 24 months--on April 26, 2007, appellant filed his section 388 petition premised on the new evidence of his drug rehabilitation. Thus, the section 388 petition was filed long after the hearing terminating reunification services which had been offered for a year, and no “extraordinary” circumstances were alleged in the petition.
Accordingly, as respondent aptly asserts, if the court had granted appellant’s belated request for additional reunification services, 24 months after the children had been removed from appellant’s custody, it would have been “an abuse of discretion and an act in excess of the dependency court’s jurisdiction as limited by statute.” (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1091.) Finally, the denial of a plenary section 388 hearing was not an abuse of discretion because appellant’s petition failed to make a prima facie factual showing of the best interests of the child and merely relied on a general and conclusory allegation. (See In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
DISPOSITION
The order under review is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.
The children formerly were dependents of the juvenile court due to the substance abuse by their mother, Glenda T. Mother is not a party to this appeal.