Opinion
San Francisco County Super. Ct. No. JD06-3285
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
STEIN, Acting P. J.
N. L., the father of a minor child, appeals from an order setting a six-month review. We affirm.
Background
The child was born in March 2005. Although the record is not entirely clear on this point, it appears the child may have been born after the father was incarcerated on drug charges. The mother has a 2005 felony conviction for drug sales and a 2005 misdemeanor conviction for petty theft. The mother and child came to the attention of the Department of Human Services (the Department) in October 2005, after the mother told paramedics she was hearing voices and was referred for a psychiatric evaluation. It seems that after the mother stated she no longer was hearing voices, she was allowed to go home, and she continued to care for the child until June 2006, when she initiated contact with the Department, seeking aid for herself and the child. On June 28, 2006, the mother, her family members and the social worker reached an informal agreement that the mother’s uncle and his girlfriend would care for the child while the mother got back on her medications. Approximately two weeks later, the mother disappeared with the child. She was referred to a mental health clinic on July 14, 2006, where she was observed to be actively psychotic. On July 20, 2007, the Department’s team met with the mother, the mother’s uncle and his girlfriend, and it was then agreed the mother could not stay in her uncle’s home and would not be left alone with the child until a psychiatrist had found her to be capable of caring for the child.
On July 24, 2006, the Department filed a petition alleging that the child, then 15 months old, was a child described by Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support.) On July 26, 2006, the court ordered the detention of the child, placing her with the mother’s uncle. The father was in jail awaiting trial for possession of cocaine, but stated an interest in raising the child. The child had adjusted well to living with the mother’s uncle and his girlfriend, who stated a willingness to adopt or to be legal guardians if the parents were unable to reunify with the child. The matter was continued to September 20, 2006, to November 3, 2006, to November 17, 2006, to December 8, 2006 and finally to December 21, 2006.
All statutory references are to the Welfare and Institutions Code.
In the meantime, in October 2006, the mother was arrested for petty theft with a prior. As of December 2006, both the mother and father were in jail and the mother continued to exhibit mental issues suggestive of schizoaffective disorder or schizophrenia. By this time, the Department also had learned a little about the father’s criminal history, reporting that at the age of 17, the father had killed a man in connection with a drug deal. The father served time for that offense until late 1998. The father was about to be sentenced on his current case, and it was believed he would be released in March or April 2007. The Department believed it was unlikely either parent would be able to reunify with the child, noting the father had continued to engage in a drug-related lifestyle.
At the December jurisdictional/dispositional hearing, both parents appeared. They agreed to waive their rights to a contested hearing, and admitted to the allegations of an amended petition. The court set the matter over to March 21, 2007, for the six-month review hearing, over the father’s objection that the March date was only three months away. The court adopted the reunification requirements set forth in the disposition report, which included that the father successfully complete a parenting education program, obtain suitable housing, cooperate with the child welfare worker in developing a case plan, sign necessary releases, complete a drug and alcohol assessment, participate in drug testing on a regular, consistent basis, participate in mental health services and provide adequate supervision for the child. The Department explained that when the father was released, he would need to contact the Department so he could be assessed for visitation.
The father appeals.
Discussion
I.
Time for Six-Month Review
The father contends the juvenile court erred by setting the six-month review hearing only three months after the dispositional hearing.
When, in 1998, the Legislature amended sections 361.5 and 366.21, it created a conflict or inconsistency in the statutes relating to the provision of services to dependent children in foster care. (Stats. 1998, ch. 75, § 1; ch. 1054, §§ 25, 25.5, 25.6, 25.7, 33, 33.5, 33.6, 33.7; ch. 1055, §§ 2–3.3; ch. 1056, §§ 12, 12.1, 12.3, 12.5, 15, 15.1, 33, 34.) Section 361.5, subdivision (a) provides that when a child under the age of three is removed from a parent’s custody, the court shall order services to the child and the parents. It further specifies that such services “shall not exceed a period of six months from the date the child entered foster care. [¶] . . . [¶] . . . [A] child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing . . . or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian.” (Italics added.) Section 366.21, subdivision (f) also uses the date the child entered foster care as the benchmark for setting the permanency hearing: “The permanency hearing shall be held no later than 12 months after the date the child entered foster care, as that date is determined pursuant to subdivision (a) of section 361.5 . (Italics added.)
Other statutes in the same scheme, however, describe the six-month review as being held “six months after the initial dispositional hearing.” (§ 366.21, subd. (e), italics added.) Section 366, subdivision (a)(1) further provides in pertinent part: “The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing, until the hearing described in Section 366.26 is completed.” (Italics added.)
The Court of Appeal, in In re Christina A. (2001) 91 Cal.App.4th 1153 (Christina A.), acknowledged the inconsistency of these provisions and construed the statutory scheme as a whole to require the six-month review hearing to be held six months after the date of the jurisdictional order or the date that is 60 days after the child’s initial removal from the parent’s physical custody, whichever is earlier. (Id. at pp. 1164-1165.) California Rules of Court, rules 5.695(h) and 5.710(a)(1) also follow that interpretation, providing that the six-month review must be held no later than, or within, six months after the child entered foster care. The court in Jessica A. v. Superior Court (2004) 124 Cal.App.4th 636 (Jessica A.) took a similar view in connection with the inconsistency between sections 361.5, subdivisions (a)(2) and (a)(3), and section 366.21, subdivision (e).
California Rules of Court, rule 5.695(h) provides: “Review of the status of every dependent child must be performed within 6 months after the date of the original disposition order, and no later than 6 months after the date the child is determined to have entered foster care . . . .”
California Rules of Court, rule 5.710(a)(1) provides: “[T]he review hearing must be held within 6 months after the date the child entered foster care, as defined in rule 5.502.”
The question in Jessica A. turned on the meaning of a provision in section 366.21, subdivision (e) under which the court, at the six-month review, was required to consider if there was a substantial possibility the parents’ children could be returned to the parents within six months. A literal construction of the statute meant that, if the six-month review hearing was delayed, the court would be required to look to a date more than 12 months after removal. The court rejected that construction, finding, in light of the whole system of dependency law, the question for the juvenile court was whether there was a substantial probability the children might be returned by the date set for the 12-month hearing, even though that date would be less than six months from the date of the six-month review hearing. (Jessica A., supra, 124 Cal.App.4th at pp. 643-645.)
The father makes a number of arguments that Christina A., supra, 91 Cal.App.4th 1153 and Jessica A., supra,124 Cal.App.4th 636 were incorrectly decided and that the Rules of Court are not persuasive and should not be followed. We, however, agree with Christina A. and Jessica A., for the reasons stated in those opinions, because an interpretation that calls for a six-month review six months from the date the child entered foster care is consistent with the mandate that the parent receive services for that six-month period and because this interpretation furthers the purpose of the dependency law to minimize delay and reduce the time a dependent stays in temporary placement.
The father complains that by adopting the reunification plan, but setting the review hearing for only three months later, the court impermissibly back-dated the plan so that the father would receive only three months of reunification services rather than the full six months of services contemplated by the statutory scheme. The court did not “back-date” anything. The statutory scheme does not guarantee parents will receive six months of services; it provides for no more than six months of services from the date the child entered foster care—which is what was ordered here. We also disagree the court’s action in some way deprived the father of due process. Section 361.5, Christina A., supra, 91 Cal.App.4th 1153, and the Rules of Court were in existence when the dependency proceedings were initiated and the father was notified of the Department’s recommendations in August 2006.
For all of these reasons we conclude the juvenile court properly scheduled the six-month review hearing for a date six months after the child was placed in the home of her mother’s uncle, rather than six months after the jurisdictional/dispositional hearing.
II.
Section 361.5 Advisements
Section 361.5, subdivision (a)(3) provides that “[i]n cases where the child was under the age of three years on the date of the initial removal from the physical custody of his or her parent . . ., the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or to avail himself . . . of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months.” Assuming error occurred, it would require reversal only upon a showing of resulting prejudice. (See Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 571-573.) As the father appealed from the order adopting the case plan, the record does not reveal if the father did or did not participate in the case plan, or if any failure to participate on his part might be attributed to a lack of oral advisements. The father’s contention assumes he would fail or refuse to participate in the case plan simply because he did not receive the advisements. We are unwilling to make the same assumption, concluding, therefore, that the father has not shown prejudice.
III.
Reasonableness of Case Plan
The father complains the case plan ordered for him was unreasonable because it did not facilitate visitation while he was incarcerated and also ordered him to undergo programs without determining whether those programs were available to him during the period of his incarceration. Ordinarily, claims such as these are made at the six-month, 12-month, and/or 18-month review hearings as part of a parent’s claim that his or her rights should not be terminated because reasonable reunification services were not provided. (E.g., Katie V. v. Superior Court (2005) 130 Cal.App.4th 586; In re Monica C. (1995) 31 Cal.App.4th 296, both considering the question as part of appeals from orders terminating parental rights.) At this stage of the proceedings, while it could be meaningful to review an order denying services altogether, there is little reason to decide if the services ordered were reasonable. While it is sensible to address a parent’s concerns about services as quickly as possible, the period of reunification contemplated by the order has passed and the adequacy of the services provided, and the father’s compliance with the plan, have been litigated at the six-month review hearing and the juvenile court’s findings are under review in a related writ proceeding. In addition, nothing in the case plan requires that all available services be offered to a parent at the outset. Reunification is an ongoing process, and it is perfectly reasonable to refrain from ordering visitation or services designed to promote reunification until it can be determined that a parent is in fact capable of reunification and may make a suitable parent.
The question of whether the father received adequate reunification services is the subject of a writ currently before this court. (N.L. v. Superior Court, case No. A118289.)
We also note that nothing in the record suggests the father ever actively sought visitation, either before or after the child was detained, and there is no indication the father ever wrote to her or in some other way attempted to make contact with her on his own. It further appears the child, a few months shy of two years old at the time of the hearing, had seen the father only during the first few months of her life, if at all, and it certainly appears there is no child-parent bound between them to preserve or further through visitation. While we do not decide the issue, under the circumstances, the failure to provide the father with visitation and/or telephone contact with his infant child does not appear to be at all unreasonable. For similar reasons we do not address the father’s claims that the juvenile court erred by ordering clearly needed services without first ensuring they were available. If they were available, and it is found that the father took advantage of them, he has no cause for complaint. If they were available and the father did not take advantage of them, he will have failed in the case plan. If they were not available, their unavailability is a point father can raise at the six-month review hearing.
We also decline to consider whether the father’s failure to object to the case plan constituted a waiver of the arguments he makes here, or if his attorney failed to provide him with the effective assistance of counsel by failing to object to the case plan. Those questions, too, are better left to proceedings where it can be determined if the services provided to the father were reasonable, and, if not, whether there was any likelihood some other case plan might have achieved a result more favorable to the father.
Conclusion
The order setting the six-month review hearing is affirmed.
We concur: SWAGER, J., MARGULIES, J.