Opinion
G024940 (Super. Ct. Nos. J-437623, J-437624)
Filed June 24, 1999 Certified for Publication
Original proceedings; petition for a writ of mandate to challenge ordered of the Superior Court of Orange County, Gail A. Andler, Judge. Writ issued.
Carl C. Holmes, Public Defender, Marri Derby, Supervising Deputy Public Defender, and Paul T. DeQuattro, Deputy Public Defender, for the Petitioner.
Laurence M. Watson, County Counsel, and Jim Persinger, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Harold F. LaFlamme and Craig E. Arthur for the Minors.
* * * OPINION
Miguel V. seeks extraordinary relief from Orange County Juvenile Court six-month review orders terminating reunification services and scheduling a Welfare and Institutions Code section 366.26 permanency hearing for his daughters Anali and Angela G. Miguel contends the court abused its discretion when it terminated reunification services after only six months because reasonable reunification services were not provided to him; he substantially complied with the requirements of the service plan; and/or it violates due process to terminate services after only six months when a parent is incarcerated. We agree substantial evidence does not support the court's finding Miguel failed to substantially comply with the reunification plan. We therefore grant Miguel's petition and issue a peremptory writ.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL BACKGROUND
Anali and Angela were declared dependent children in July 1998 due to their parents' neglect and abandonment of them. At the time, Miguel was incarcerated in Soledad for sexual battery. (Pen. Code, § 243.4, subd. (a).) The girls' mother, Aynet G., had left them with their grandmother without providing authorization for medical care. The girls were then two-years old and eight-months old, respectively. In addition to his conviction for sexual battery, Miguel had a history of alcohol abuse, including a previous conviction for driving under the influence, and had physically abused Aynet during her pregnancies.Pursuant to a stipulation among the parties, the court ordered services with the goal of "enhancing the relationship between the minors . . . [and] their father." In accordance with this stipulation, Miguel was to "attend, participate in, and show progress in counseling, parenting classes, substance abuse treatment, [and] vocational training program[s] to the extent available within the institution." He was also to obey prison rules, ask for a transfer to a facility closer to the minors' residence, and maintain contact with the social worker and the minors through telephone calls and letters. Upon his release from custody, he was to participate in and complete substance abuse treatment and counseling for sexual abuse and domestic violence.
By the time of the six-month review hearing in February 1999, Miguel expected to be released in July. He had been unable to participate in any programs because they were not available to him. According to his attorney, however, some programs had become available and he was on the waiting list for them. He had not requested a transfer to a facility closer to his daughters. He did, however, obey the prison rules and maintain contact with the social worker and his children. Additionally, per Miguel's request, the social worker sent him parenting education reading material.
At the hearing, Miguel did not attack the quality or nature of the services offered to him. Instead, he contended he had substantially complied with the reunification plan and therefore the court should offer an additional six months of services. The court rejected Miguel's argument, concluding he had done nothing to address the issues underlying his conviction, i.e. sexual abuse of a minor and alcohol abuse, and therefore he could not be deemed to have substantially complied with the reunification plan. The court therefore terminated reunification services and scheduled a permanency hearing. This writ proceeding ensued.
DISCUSSION
Section 361.5, subdivision (a), and section 366.21, subdivision (e), set forth special procedures for dependency cases involving children who are age three or younger at the time they first enter foster care. In such cases, section 361.5 limits the period of reunification services to six months. (§ 361.5, subd. (a)(2).) However, regardless of the age of the child, the court still has discretion to order a maximum of 18 months of services if, at the 12-month review hearing, the court finds either there is a substantial probability the child will be returned to the parent in the time remaining before 18 months elapses or the services offered to the parent were unreasonable. (§ 361.5, subd. (a).)
At the six-month review hearing for a child under the age of three, the court may terminate reunification services and schedule a section 366.26 hearing if the court finds by clear and convincing evidence that the parent failed to participate regularly in any court-ordered services. (§ 366.21, subd. (e).) Regardless of the parent's compliance, however, if the court finds it is substantially probable the child will be returned home within six months or that the services offered to the parent were unreasonable, the court must schedule a 12-month review hearing and extend services for another six months. (§ 366.21, subd. (e).) Because the statute does not vest the court with discretion to terminate services under any circumstance except the parent's noncompliance, the court must also extend services to the 12-month date where the parent does comply with reunification services regardless of the likelihood of return at the end of 6 more months. (See § 366.21, subd. (e); Cal. Rules of Court, rule 1461, subd. (f)(2)(A)(v).)
Subdivision (a) of section 361.5 was amended effective January 1, 1999. The prior version of the statute did not specify the 12-month review hearing (§ 366.21, subd. (f)) as the hearing where the court could extend services to the 18-month date if it found either a substantial probability of return or lack of reasonable services. Division Three of the Second District Court of Appeal recently held the prior version of section 361.5, subdivision (a), applies at a 6-month review hearing (as well as the dispositional hearing) and therefore the court may only extend services when it finds there is a substantial probability of return by the 18-month date regardless of whether the parent has substantially complied with the reunification plan. ( Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011.) While we believe the recent amendment to the statute demonstrates the relevant portion of section 361.5 applies at the 12-month review hearing and the court has significantly broader discretion at the 6-month review than that afforded in Armando D., we need not analyze our colleagues' analysis because the version of the statute which they interpreted is no longer in effect.
In this case, Miguel argues the court abused its discretion in applying the provisions which authorize the court to terminate services at six months because he was not provided with reasonable services and because he substantially complied with the reunification plan. He also contends terminating services to an incarcerated parent after only six months violates principles of due process. While we disagree there was any inadequacy in the services offered, we find no failure to take advantage of services to the extent they were available to him. Such compliance precludes termination of services at the six-month review. We therefore grant the relief he has requested.
Miguel's challenge to the reunification services is two-fold. First, he contends he was not offered "reunification" services at all because the plan references "enhancing" his relationship with his children. Second, he argues SSA inadequately implemented the plan. Miguel, however, stipulated to the plan as originally ordered and, at the six-month review hearing, referenced the reunification services provided to him. Moreover, he essentially conceded the services offered were reasonable by failing to attack their adequacy and instead arguing only that he had substantially complied with a reasonable reunification plan. As such, Miguel is precluded from challenging the adequacy of the service plan itself or the implementation of that plan in this writ proceeding. ( In re Cody W. (1994) 31 Cal.App.4th 221, 231.)
Specifically, his counsel stated: "[M]y client was given reunification services up to the six month review while he was in custody. He has been in custody. He has maintained contact with the minors by cards and letters. He has tried to establish the relationship or keep the relationship established as a father would do under like or similar circumstances. . . . [T]he father's in custody because of his actions on his own . . . but notwithstanding father will be released . . . in the early part of July of 1999, and at that time could finish any services that he hasn't finished. He has read reading materials furnished by SSA. He has applied for various programs at the institution, some of which are available. Some he's on a waiting list for. In other words, what he has done, Your Honor, is showed good faith that he is attempting to benefit from the services that were offered by this court. [¶]There was an incarcerated service plan and I believe he has complied with that. . . ."
We agree, however, with Miguel's contention he substantially complied with his reunification plan. While the record is unclear what, if any, services were available to Miguel in prison, the record is quite clear that he did everything within his power while he was in custody to maintain a relationship with his daughters and to prepare himself to parent them. He kept in regular contact with the girls and the social worker. He requested parenting education materials from the social worker once he discovered they were unavailable in prison. Although he did not participate in counseling to address alcohol abuse or the sexual battery or his physical abuse of Aynet, absent a showing such programs were available in prison, we cannot conclude Miguel "failed to participate regularly" in court-ordered services. (§ 366.21, subd. (e).) Thus, substantial evidence does not support the court's finding of Miguel's noncompliance with the service plan.
Given Miguel's substantial compliance, we have no choice but to issue a writ directing the juvenile court to order an additional period of services. The relevant portion of section 366.21, subdivision (e), vests the court with discretion to terminate services at six months when the children are under the age of three only when it finds the parent has not substantially complied with the reunification plan. (§ 366.21, subd. (e).) Because that condition precedent was not shown here, the court abused its discretion when it terminated reunification services at six months.
Given this conclusion, we do not need to address Miguel's contention that application of the relevant portion of section 366.21, subdivision (e), to incarcerated parents deprives them of due process of law.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to vacate its February 26, 1999 orders terminating reunification services and scheduling a section 366.26 permanency hearing, and enter new and different orders directing an additional six-month period of reunification and scheduling a hearing pursuant to section 366.21, subdivisions (f) and (g). The court shall consider the fact Miguel has not been convicted of sexual abuse on a minor in fashioning an appropriate reunification plan. The court shall also consider the minors' current circumstances as well as Miguel's incarceration status in fashioning an appropriate visitation order. The court is not required to reinstate services as to Aynet. The February 26, 1999 findings of detriment and reasonable services are unaffected by this ruling and remain intact. This opinion is final 10 days after filing pursuant to rule 24(d) of the California Rules of Court.We concur:
RYLAARSDAM, J. BEDSWORTH, J.