Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michael J. Rushton, Judge., Super. Ct.No. SWJ008668
Charles A. Casey for Petitioner.
No appearance for Respondent.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
OPINION
HOLLENHORST Acting P.J.
INTRODUCTION
Petitioner M.O. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order denying reunification services as to her child, J.K. (the child), and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues that the juvenile court erred in denying her services since the “section 361.5 timeline was never triggered.” We deny the writ petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2008, the Riverside County Department of Social Services (the department) filed a section 300 petition on behalf of the child, who was two years old at the time. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). With regard to mother, the petition alleged that she engaged in domestic violence in the presence of the child on or about September 6, 2008, and was arrested; she abused marijuana and alcohol; she had extreme mood swings and aggressive behaviors, which placed the child at risk of harm; and she was currently incarcerated. The juvenile court found that continuance in mother’s home was contrary to the child’s welfare (§ 319, subd. (b)(1)), removed him from mother’s custody, and detained him in foster care on September 10, 2008. The juvenile court ordered reunification services pending the next hearing.
The petition also named another child of mother’s, J.O.; however, he is not the subject of this writ.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on September 26, 2008, recommending that the juvenile court find the allegations in the petition true and that mother be provided with family maintenance services. (Mother was no longer incarcerated, as she was released on September 10, 2008.)
A jurisdiction hearing was held on October 1, 2008, and the juvenile court set a contested jurisdiction hearing for October 29, 2008. The hearing on October 29, 2008 was then continued for paternity testing. A contested jurisdiction hearing was held on December 3, 2008, and the parties stipulated to another continuance. The juvenile court authorized the department to return the child to mother’s care, provided that she comply with her case plan and not reside with R.B., the alleged father of her other child. The child was placed with mother on December 5, 2008.
A contested jurisdiction hearing was held on January 26, 2009. The juvenile court found that the child came within section 300, subdivisions (b) and (g), and adjudged him a dependent of the court. The juvenile court ordered that mother retain custody of the child, subject to the supervision of the social worker, and that mother be provided with family maintenance services.
A semi-annual review hearing was held on July 23, 2009, and the matter was set for contest and continued to August 26, 2009. On August 26, 2009, the juvenile court ordered that mother maintain custody of the child and that family maintenance services continue. The juvenile court set the next review hearing for February 24, 2010.
The social worker filed a section 364 family maintenance review report on February 9, 2010. She reported that the department had received several referrals regarding mother and the child, since the detention of the child in September 2008. Most of the referrals were closed as unfounded. However, the most recent referral from January 2010, regarding allegations of physical abuse of the child by mother, was under investigation. In an addendum report, the social worker expressed grave concerns about mother, who denied responsibility for her actions that brought the child to the department’s attention. Mother failed to participate in counseling, refused to comply with a court order for a medication evaluation, denied substance abuse of any kind, and denied having a history of child abuse.
At the review hearing held on February 24, 2010, the matter was set for contest and continued to March 30, 2010.
The social worker filed a report on March 25, 2010, recommending that the juvenile court detain the child from mother, for failure to comply with the court orders and for putting the child at risk. The report discussed the January 2010, referral. The child had a faded black eye and several bruises on his body. The police investigated, but found the bruises to be nonsuspicious.
At the contested hearing on March 30, 2010, mother was not present, and the juvenile court found that she was not in full compliance with the court’s orders. The juvenile court removed the child from mother’s care and set a detention hearing.
On April 1, 2010, the department filed a section 387 supplemental petition. The next day, the juvenile court held a detention hearing and found a prima facie case had been established and that the child came within section 387. It temporarily detained the child from mother, and continued the hearing to April 5, 2010, so that mother’s counsel could appear on her behalf. On April 5, 2010, the juvenile court adopted the previous detention findings. A jurisdiction hearing on the section 387 petition was set for April 27, 2010. The matter was then set for contest and continued to May 27, 2010, and May 28, 2010. A contested status review hearing pursuant to section 364 was continued to the same days.
On May 27, 2010, the parties appeared in court. The matters were set to begin the next day, and the juvenile court ordered certain witnesses to appear on May 28, 2010, and others to appear on June 2, 2010.
After hearing all the testimonies, the juvenile court returned the child to mother’s custody on continued family maintenance, on June 3, 2010.
On November 10, 2010, the department filed a second section 387 petition. The petition included the allegation that mother had been arrested on November 8, 2010, for being under the influence of a controlled substance. The department recommended that the child be detained and placed in foster care. At a hearing on November 12, 2010, the juvenile court found that the child came within section 387 and detained him.
The jurisdiction hearing on the section 387 petition and the six-month status review hearing on the original dependency petition were held on December 8, 2010. Both matters were set for contest and continued to January 20, 2011.
On January 20, 2011 and January 24, 2011, the juvenile court held a contested jurisdiction hearing on the second section 387 petition, and a contested section 364 family maintenance review hearing. Upon consideration of the evidence and mother’s testimony at the hearing, the juvenile court found that there would be a substantial danger to the physical health, safety, protection, and well-being of the child if he was returned to mother’s home. The juvenile court removed the child from mother’s custody. The department then asserted that it was time to focus on the stability of the child, citing In re N.M. (2003) 108 Cal.App.4th 845 [Fourth Dist., Div. Two] (N.M.), and asked the court to set a section 366.26 hearing. Mother’s counsel asked the juvenile court to order reunification services to be provided to mother. He argued that the section 361.5 timeline for services was never triggered, citing In re Joel T. (1999) 70 Cal.App.4th 263 (Joel T.) and other cases. Pursuant to the reasoning set forth in N.M., the juvenile court stated that the timeline was triggered when the child was removed from mother’s care prior to the initial detention hearing in September 2008. Accordingly, the juvenile court found that mother had received 28 months of services. The juvenile court denied reunification services, concluding that mother had exceeded the section 361.5 timeline for provision of services, since she had been provided with more than 18 months of services. The juvenile court added that, were the decision to rest on a best interests of the child standard, it would still refuse to provide mother with additional services, since it did not believe it was appropriate to put the child through “the additional upheaval of return or the prospect of return, [or] the prospect of additional removal, now that [the case was] 28 months out.” The juvenile court set a section 366.26 hearing for May 24, 2011.
ANALYSIS
The Juvenile Court Properly Denied Mother Reunification Services
Mother argues that the juvenile court erred in denying her reunification services because “the section 361.5 timeline was never triggered.” She claims that when a child is not legally removed from a parent pursuant to section 361, subdivision (c), but rather, is left in the custodial care of a parent, then the clock for reunification services is not triggered. However, if a subsequent petition is filed, and the child is removed, the juvenile court must provide reunification services pursuant to section 361.5. Mother additionally contends that the clock for reunification services starts when section 361 findings are made at the jurisdiction/disposition hearing. She asserts that no section 361 findings were made until the most recent hearing on January 24, 2011. In the alternative, she argues that the clock starts on the date of the jurisdiction hearing, or 60 days from the initial removal, whichever is earlier. We conclude that the juvenile court properly determined, under N.M., supra, 108 Cal.App.4th 845, that the timeline for services was triggered when the child was initially removed from mother’s care in September 2008.
A. Standard of Review
“The grant of child welfare services, including reunification services, is governed by section 361.5.” (N.M., supra, 108 Cal.App.4th at p. 852.) “We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.]” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839 [Fourth Dist., Div. Two].)
B. The Juvenile Court Properly Denied Services and Set a Section 366.26 Hearing
Section 361.5, subdivision (a)(1)(B) provides as follows: “For a child who, on the date of the initial removal from the physical custody of his or her parent[, ]... was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49 unless the child is returned to the home of the parent or guardian.” Subdivision (a)(3) provides: “[C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian....” “However, despite the ‘maximum’ 18-month limitation set forth in section 361.5, subdivision (a), courts have held that a juvenile court may, in rare instances, continue reunification services beyond 18 months. The court must determine that the best interests of the child warrant the continuation, despite the recognized need for a prompt resolution of his or her custody status. [Citations.]” (N.M., supra, 108 Cal.App.4th at p. 852.)
As the juvenile court here recognized, this court’s opinion in N.M., supra, 108 Cal.App.4th 845, is on point. In that case, the juvenile court detained an 18-month old child (the minor) and placed him with his grandparents in January 2001. (Id. at p. 848.) It ordered the department to provide reunification services. (Ibid.) A jurisdiction hearing was held on January 30, 2001, and the juvenile court declared the minor a dependent of the court and then placed him with the mother on a family maintenance plan. (Ibid.) On February 5, 2002, the department filed a supplemental petition under section 387. (Id. at p. 849.) On February 26, 2002, the juvenile court found the allegations of the supplemental petition true, removed the minor from the mother’s custody, and ordered reunification services. (Id. at p. 850.) On October 2, 2002, the juvenile court held a hearing, which it characterized as a six-month review of the matter initiated by the section 387 petition. (N.M., at p. 851.) The juvenile court ordered reunification services to continue, and the minor appealed from that order. (Ibid.)
N.M., supra, 108 Cal.App.4th 845, also discusses the father of the minor, who was later allowed to move in with the mother and the minor. (Id. at p. 849.) However, for purposes of this opinion, and for brevity’s sake, we will only discuss the facts about the mother.
On appeal, this court reversed the juvenile court’s order, since it effectively extended services beyond the statutory 18-month maximum. (N.M., supra, 108 Cal.App.4th at p. 848.) We pointed out that section 361.5 states that the 18-month period begins running from “‘the date the child was originally removed from physical custody of his or her parent or guardian....’” (Id. at pp. 854.) We further noted that “[t]he fact a parent had custody during part of the total period does not stop the limitation period in section 361.5 from continuing to run.” (Id. at p. 854.) “Physical custody of the child by the parents or guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1) shall not serve to interrupt the running of the period.” (§ 361.5, subd. (a)(3).) Citing Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166, we asserted that, “‘[w]hen a juvenile court sustains a supplemental petition pursuant to section 387, the case does not return to “‘square one’” with regard to reunification efforts. [Citations.] Instead, the question becomes whether reunification efforts should resume. The answer is yes if: the parent has received less than 12 months of child welfare services [citations]; the parent did not receive reasonable child welfare services [citations]; or the case has passed the 12-month mark but there is a substantial probability the child will be returned within 18 months of the date the child was originally removed from the parent’s physical custody [citation].’ [Citation.]” (N.M., supra, 108 Cal.App.4th at p. 853.) In addition, we stated that “[t]he 18-month limitation set forth in section 361.5, subdivision (a) applies to all ‘court-ordered services.’ [Citation.] Nothing in [section 361.5] suggests the limitation period should be calculated separately for maintenance and reunification services.” (Id. at p. 853.) This court concluded that the mother’s “18-month period commenced at the time of the original detention and not later when she lost custody on the section 387 petition.” (Id. at p. 855.) We determined that the juvenile court could only order services beyond 18 months if it found exceptional circumstances, and there were none in that case. (Id. at pp. 855-856.)
The juvenile court in the instant case properly followed the reasoning in N.M., supra, 108 Cal.App.4th 845, and denied mother further services. Section 361.5, subdivision (a)(3), delineates the starting point for the 18-month limitation period as “the date the child was originally removed from physical custody of his or her parent or guardian.” (Italics added; see also N.M., at p. 855.) “Case law demonstrates that a detention pending a jurisdictional hearing should be considered an original removal from custody for purposes of section 361.5, subdivision (a).” (Id. at p. 854.) The juvenile court here originally removed the child from mother’s custody on September 10, 2008. By the time the juvenile court sustained the second section 387 petition in January 2011, mother had received approximately 28 months of services, which was well over the 18-month limit. We further note that there was and is no claim that the services provided to her were not reasonable. (See N.M., at p. 853.) Moreover, it was not in the child’s best interests to continue services past 28 months, in light of “the recognized need for a prompt resolution of his... custody status. [Citations.]” (Id. at p. 852.) Therefore, the juvenile court properly concluded that mother was not entitled to reunification services after the second section 387 petition was sustained.
Mother acknowledges this court’s conclusion in N.M., supra, 108 Cal.App.4th 845, that the 18-month period commenced at the time of the original detention, and not when the mother lost custody pursuant to the section 387 petition. (See N.M., at p. 855.) She does not distinguish N.M. Instead, she claims, as she did below, that the lead case on the timeline issue presented in this case is Joel T., supra, 70 Cal.App.4th 263. However, Joel T. is distinguishable, since the minors in that case were not initially removed from the mother’s custody. In Joel T., five children were detained from their mother in October 1996. The juvenile court authorized a “trial placement” in the mother’s home before the dispositional hearing in January 1997, and this placement continued after the disposition. (Id. at p. 265.) The mother received welfare services from October 1996 through early 1998. (Id. at pp. 265-267.) Pursuant to a supplemental petition, the juvenile court removed the children in February 1998. (Id. at p. 266.) The juvenile court denied the mother’s request for reunification services at that time, finding that 18 months of services had already been provided and that the facts did not justify any further extension of services. (Id. at pp. 266-267.)
On appeal, the mother in Joel T. contended that the juvenile court erred in failing to order reunification services following the removal of the minors pursuant to the supplemental petition. (Joel T., supra, 70 Cal.App.4th at p. 267.) The appellate court remanded the case for a new dispositional hearing on the supplemental petition, stating that, “when the juvenile court removes a minor from parental custody for the first time, section 361.5, subdivision (a), requires the court to order reunification services except in the circumstances specified in subdivision (b) of that section. [Citation.]” (Id. at p. 268.) The juvenile court noted that, “[u]nlike the situation in which the child is removed from the home and court-ordered services are statutorily limited to 18 months [citation], nothing in the statutes or rules limits the time period for court supervision and services when the child remains in the home [citations].” (Id. at pp. 267-268.)
Joel T. essentially holds that “if the child is never removed from the physical custody of the custodial parent pursuant to section 361, subdivision (c), and instead receives services pursuant to section 362, the section 361.5 clock does not start at all—at least until an amended petition results in a removal of custody. [Citations.]” (In re A.C. (2008) 169 Cal.App.4th 636, 648.) Unlike Joel T., the child in the instant case was removed from mother’s custody at the onset of the dependency case. As discussed ante, the section 361.5 clock started running at that time.
In sum, we stand by our decision in N.M., supra, 108 Cal.App.4th 845, as the juvenile court here did. The juvenile court properly denied mother reunification services.
DISPOSITION
The findings and orders of the juvenile court are affirmed.
We concur: McKINSTER J., KING J.