Opinion
D076934
05-18-2020
In re Q.A., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jessica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4237) APPEAL from an order of the Superior Court of San Diego County, Edlene C. McKenzie, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jessica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
A.B. (Father) appeals from an order under Welfare and Institutions Code section 366.26 selecting adoption as the permanent plan for his son Q.A. and terminating his parental rights. Father contends the juvenile court erred in denying him additional reunification services after this court reversed the juvenile court's finding at the six-month review hearing that he had been provided or offered reasonable reunification services. He argues the juvenile court lacked statutory authority to terminate his parental rights because he had not been offered reasonable services for at least six months. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
This is Father's second appeal in this case. On June 12, 2019, this court filed an unpublished opinion reversing the juvenile court's finding in its six-month review order that Father had been provided or offered reasonable reunification services. (In re Q.A. (June 12, 2019, D075440).) Our summary of the facts and procedural history through the six-month review hearing is derived from our prior opinion.
On February 6, 2018, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition under section 300, subdivision (b) on behalf of two-year-old Q.A. after receiving reports that he had sustained physical abuse. The Agency filed an amended petition under section 300, subdivisions (b) and (e), and Q.A. was detained in the home of a relative. The amended petition alleged that Q.A., who had resided with his mother and her boyfriend, suffered or was at substantial risk of suffering serious physical harm or illness; and was under the age of five and had suffered severe physical abuse by a parent, or by a person known by the parent, and the parent knew or reasonably should have known of the physical abuse. Father had no relationship with Q.A. and was incarcerated in Florida on burglary and drug charges with an expected release date of May 3, 2019.
The Agency social worker assigned to Q.A.'s case mailed a letter to Father at the correctional facility in which he was incarcerated, notifying him about the upcoming jurisdiction and disposition hearing and providing contact information for an attorney to represent him in the dependency proceedings. On March 28, 2018, the social worker spoke over the telephone with Father, who was aware of the dependency proceeding and requested counsel. Father told the social worker he was "100 percent sure" he was Q.A.'s biological father and planned to return to San Diego after his release from prison. He wanted to build a relationship with Q.A., but required "assistance" to figure out "what he need[ed] to do to be part of his son's life."
At the jurisdiction and disposition hearing, the juvenile court appointed counsel for Father; granted Father's request for voluntary services; and ordered crisis intervention, case management, counseling, and transportation services for Father. The court ordered the Agency to provide Father a $25 phone card per month to call Q.A., as long as Q.A.'s caregiver agreed to accept the calls. At a continued jurisdiction and disposition hearing, the court found the allegations of the petition to be true, declared Q.A. a dependent of the court, and removed Q.A. from his mother's custody.
After a paternity test revealed a 99.9 percent statistical probability that Father was Q.A.'s biological father, the juvenile court scheduled a special paternity hearing. In advance of that hearing, the Agency filed an addendum report requesting reunification services for Father and recommending elevation of Father's status to biological father. The Agency reported that the services available at Father's correctional facility included narcotics/alcohol anonymous groups, individual counseling, and reentry programs. The Agency stated it would provide Father a monthly phone card, a parenting packet, and service recommendations. The addendum report included a proposed case plan that specified several service objectives and "client responsibilities" for Father. Father did not sign the proposed case plan and there is no indication in the record that the Agency reviewed the proposed case plan with him.
At the special paternity hearing on August 23, 2018, the court elevated Father's status to biological father, found the case plan appropriate, ordered reunification services for Father, and ordered Father to comply with the case plan. The court also ordered reasonable supervised visitation for Father while he remained in custody and liberal supervised visitation upon his release from custody. Father's counsel later informed the court that Father had been transferred to a different correctional facility. The record does not indicate whether Father's counsel advised the court of the name or address of Father's new correctional facility, but counsel later provided Father's change of address information to the social worker.
The social worker did not attend the special paternity hearing, and the court inadvertently failed to memorialize its order requiring services for Father in its minute order from the hearing. Although the Agency's counsel was present at the hearing when the court ordered services, the Agency maintained, both in the juvenile court and in the prior appeal, that the court's clerical omission led it to believe the court had not ordered reunification services for Father and, to the contrary, had exercised its discretion not to order services.
On October 5, 2018, the social worker mailed Father a parenting packet, postage paid envelopes for him to return the completed parenting packet, and a letter informing him that a new social worker would be assigned to the case. The materials were returned to the social worker as "undeliverable" for reasons that are not apparent from the record. In December 2018, the new social worker sent Father a second parenting packet but received no response from Father. The record does not indicate the specific address or city to which the social worker sent the packet.
At the six-month review hearing in January 2019, Father's counsel informed the court that she intended to contest whether reasonable services had been provided to Father. The court and the Agency's counsel expressed doubt as to whether the court had ordered services for Father. The court did not believe that Father had asked for services or that it had ordered services. The Agency's counsel was uncertain whether the court had ordered services. Due to this confusion, the court ordered the court reporter to send all parties a transcript of the special paternity hearing and continued the six-month hearing to February 21, 2019. On February 20, 2019, the day before the continued six-month hearing, Father was released early from custody.
At the continued six-month hearing on February 21, 2019, the Agency acknowledged that the juvenile court had ordered reunification services for Father, but noted the court's oral order was not memorialized in its written minute order. Due to the confusion regarding whether the Father was receiving reunification services, the Agency recommended six additional months of services for Father, but also recommended that the court find the Agency had offered reasonable services to Father during the previous six months. The Agency argued that it had provided reasonable services to Father, even though it professed "confusion" as to whether it was under an obligation to do so, because it had sent Father the parenting packet, which he did not complete and return. The Agency also emphasized that in-person visitation would not have been possible due to Father's out-of-state incarceration, and that Father could have proactively communicated with the Agency and accessed services on his own while in custody, but failed to do so.
Father opposed the Agency's position that reasonable services had been offered or provided, arguing the Agency had not identified services available to him in custody or assisted him in arranging access to services. Father also argued the Agency had not spoken to him about his progress with the case plan or facilitated telephone calls with Q.A. He claimed there was no evidence the Agency had ever sent him a phone card or included postage paid envelopes when it sent him the second parenting packet in December 2018.
The court ordered six additional months of reunification services for Father and found that the Agency had offered Father reasonable services and that Father had not made substantive progress with his case plan. The court found the Agency had offered reasonable services because it had sent Father the parenting packet in December 2018. The court opined that Father had an "affirmative duty to seek out services" and there was no indication in the record that he had been unable to obtain services for himself.
In his prior appeal, Father challenged the finding in the six-month review order that he was provided reasonable services. On April 22, 2019, two months after the six-month review hearing and while the prior appeal was still pending, the court held a contested 12-month review hearing. In a report prepared for that hearing, the Agency noted Father's release from custody in February 2019 to an address in Georgia. The Agency social worker had mailed a certified letter to Father at that address requesting him to contact the social worker and informing him of the phone number to contact Q.A., his attorney's phone number, and the next court date. The social worker did not receive a response or a receipt showing Father had received the letter. The social worker mailed the letter to four additional addresses in Florida that a parent search provided and received no response from two of the addresses and returned letters from the other two.
On April 18, 2019, the social worker received a text message from Q.A.'s relative caregiver that she had received a phone call from Father. The caregiver provided Father's phone number and the social worker called the number and spoke with Father. Father confirmed that he had been paroled to the Georgia address of Q.A.'s paternal grandmother, but he was living with the paternal grandfather in Florida due to "complications when he was released." Father provided his Florida address to the social worker and stated that he was trying to find a job and was working on stability. He wanted to have Q.A. placed with him even though he was not stable, but did not provide a plan to care for Q.A. His goal was to return to San Diego once he was stable.
The Agency recommended the court terminate Father's reunification services at the 12-month hearing and set a section 366.26 hearing. The Agency was "not aware of any evidence to support a substantial probability that [Q.A.] would be returned to [Father] by the 18-month date that [would occur] approximately in August 2019."
Father appeared by telephone at the contested 12-month review hearing on April 22, 2019. Father's counsel asked the court to continue Father's reunification services to the 18-month date. Counsel argued that Father had made efforts to contact Q.A. after being released from incarceration and had made efforts to show his ability to complete the objectives of his case plan. Father was willing to complete services and was asking for custody of Q.A. The Agency asked the court to terminate Father's reunification services and set a section 366.26 hearing. No one at the 12-month hearing mentioned Father's pending appeal challenging the court's reasonable services finding at the six-month review hearing.
The 12-month hearing was initially set for April 4, 2019, which was within the 12-month period following the child's entry into foster care. (See fn. 4, post.)
The trial court (Judge Bubis) found by clear and convincing evidence that reasonable services had been offered to Father and there was not a substantial probability that Q.A. would be returned to Father's custody by the 18-month date. The court terminated Father's reunification services; set a section 366.26 hearing for August 19, 2019; and advised Father of his right to challenge the court's rulings by a writ petition with appointed counsel.
On June 12, 2019, this court filed its opinion in Father's prior appeal. The opinion concluded that the juvenile court's reasonable services finding at the six-month review hearing was not supported by substantial evidence. The disposition in the opinion reversed the "order" but did not remand the matter with directions to the juvenile court. In an internal memorandum asking the juvenile court to review this court's remittitur from the appeal and indicate what action needed to be taken, the juvenile court stated: "Nothing."
At the scheduled section 366.26 hearing on August 19, 2019, Q.A.'s counsel raised the matter of the decision in Father's prior appeal, stating the decision indicated "that there might be an additional six months of services that need to be offered to the father in this case." The juvenile court noted there were no instructions in this court's opinion to order additional services and the opinion "didn't suggest I have to order six more months of services." Father's counsel expressed the need to research whether the court could terminate parental rights without "some sort of finding regarding services." The court decided to continue the section 366.26 hearing so "everybody can brief this out." At the request of counsel for all of the parties, the court also decided to transfer the case to Judge McKenzie because Q.A.'s sibling's dependency case was in her department. The court set a hearing for September 9, 2019 on "the issue regarding what the remedy is for [the court's] being overturned on appeal . . . ." On September 9, the court (Judge McKenzie) continued the matter further to allow the Agency additional time to file a brief and allow the court additional time to review the parties' briefs.
Father filed "points and authorities opposing the termination of parental rights" (capitalization omitted), in which he noted that reversal of the reasonable services finding at the six-month review hearing left intact only the reasonable services finding at the 12-month review hearing, which finding covered only the two-month period between the two hearings. Father argued that he was entitled to at least six months of reasonable services under section 361.5, subdivision (a)(1)(B), which provides that "[f]or a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing . . . ." He further argued the court could not limit reunification services to a period of two months without granting a petition to terminate services early under section 388, subdivision (c). Because Father had not received the required reunification services, he argued that at the 366.26 hearing, the court could consider only long term foster care or guardianship as Q.A.'s permanent plan and could not terminate parental rights.
Section 388, subdivision (c), provides that any party may petition the court prior to the applicable review hearing to terminate court-ordered reunification services if certain specified conditions exist.
Q.A.'s brief argued that Father's remedy for a finding of no reasonable services at the six-month review hearing was not to receive an additional six months of services but rather to receive services to the 12-month review date. Q.A. relied on section 366.21, subdivision (e), which provides that if the court finds a parent of a dependent child who was under three years of age on the date of initial removal failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a section 366.26 hearing, but if "the court finds . . . that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3), italics added.) Because Father received services to the 12-month review date, Q.A. argued the court could proceed with the section 366.26 hearing without providing Father additional services.
The Agency's brief noted that section 366.26, subdivision (c)(2)(A) states: "The court shall not terminate parental rights if: [¶] (A) At each hearing at which the court was required to consider reasonable . . . services, the court has found that . . . reasonable services were not offered or provided." The Agency maintained that the plain language of this provision prohibits the court from terminating parental rights if no reasonable services finding is ever made; it does not require that the court make a reasonable services finding at every review hearing before it can terminate parental rights. Accordingly, because the juvenile court made a reasonable services finding at the 12-month review hearing, it was permitted to terminate parental rights notwithstanding this court's reversal of the reasonable services finding made at the six-month review hearing. The Agency argued that if Father believed the court erred in making a reasonable services finding at the 12-month review hearing, his remedy was to raise the issue in the juvenile court or file a writ petition challenging the reasonable services finding. The Agency further argued that because Q.A.'s case was at the permanency stage, the only way Father could receive additional services would be to file "a proper section 388 motion" showing changed circumstances and that additional services would be in Q.A.'s best interests. The Agency asserted that offering Father additional services would not be in Q.A.'s best interests because Father had shown no interest in reunification with Q.A., who had never met Father.
At the contested section 366.26 hearing on December 3, 2019, the court stated it had considered the parties' briefs regarding its "ability to go forward with this matter given the lack of reasonable services finding at the six-month review." After hearing additional argument on that issue, the court found persuasive and "specifically adopt[ed]" the Agency's and Q.A.'s arguments.
After receiving the Agency's reports in evidence and hearing argument from counsel on the section 366.26 issues, the court found by clear and convincing evidence that Q.A. was likely to be adopted, adoption was in his best interest, and that none of the circumstances specified in section 366.26, subdivision (c)(1)(B) that would make termination of parental rights detrimental to him existed. The court terminated parental rights and referred Q.A. to the Agency for adoptive placement.
DISCUSSION
I.
Impact of Prior Appeal on Reasonable Services Requirement
Father contends that, as a result of this court's prior opinion reversing the juvenile court's reasonable services finding at the six-month review hearing, he is entitled to an additional period of reunification services. The Agency contends that Father was "not automatically entitled to an additional period of reunification services" based on this court's prior opinion. Based on the unique procedural posture of this case, we agree with the Agency.
A. Statutory Framework and Standard of Review
Parents in dependency proceedings are entitled to receive reasonable reunification services. (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 69.) When a child is under three years of age at the time of removal, court-ordered services "shall be provided for a period of [six] months from the dispositional hearing as provided in subdivision (e) of [s]ection 366.21, but no longer than 12 months from the date the child entered foster care, as provided in [s]ection 361.49, unless the child is returned to the home of the parent or guardian. (§ 361.5, subd. (a)(1)(B); see id., subd. (a)(3)(C) [for children under three, the court "shall inform the parent . . . that the failure . . . to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself 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"].)
A child is "deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to [s]ection 356 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." (§ 361.49.) Here, it appears Q.A. entered foster care on April 6, 2018, 60 days after the initial removal date of February 5, 2018.
At the end of the initial six-month period, if a child is not returned to parental custody, the juvenile court may terminate services and set a hearing under section 366.26 to select a permanent placement for the child. (§ 366.21, subd. (e).) "If, however, the court finds [(1)] there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or [(2)] that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3), italics added; see M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 176 ["The parent is . . . entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent."].) Reunification services can again be further extended for a period no longer than 18 months from initial removal where reasonable services have not been provided to the parent. (See §§ 361.5, subd. (a)(3)(A) & 366.21, subd. (g)(1).)
Courts have held that an additional period of reunification services may be warranted, even beyond the 18-month time period from initial removal, where a parent has not yet received reasonable services. (See, e.g., In re M.S. (2019) 41 Cal.App.5th 568, 593 (M.S.) ["When a juvenile court . . . erroneously finds that reasonable services were provided or offered to a parent, the usual remedy is to reverse the judgment or order and remand the matter with directions that the court order that the parent be provided with reasonable reunification services."]; In re A.G. (2017) 12 Cal.App.5th 994, 1005 ["The remedy for the failure to provide court-ordered reunification services to a parent is to provide an additional period of reunification services to that parent and to make a finding on the record that reasonable services were not offered or provided to that parent."]; In re Alvin R. (2003) 108 Cal.App.4th 962, 975 ["The remedy for a failure to provide reasonable reunification services is an order for the continued provision of services, even beyond the 18-month review hearing."].)
As we explained in M.S., "section 361.5, subdivision (a)(1)(B)'s limitation on the maximum period for reunification services can be extended to 18 or 24 months after a child's removal if, inter alia, the court finds at a child's permanency hearing or permanency review hearing that reasonable services have not been provided to the parent. (§ 361.5, subd. (a)(3)(A), (4)(A)." (M.S., supra, 41 Cal.App.5th at p. 595.) In exceptional cases, given delays in the scheduling of review hearings and inherent delays in the appellate process, a parent may be entitled to reasonable services even beyond the 24-month maximum statutory period for extension of reunification services. (Id. at p. 596.)
Whether Father was statutorily entitled to additional reunification services after the juvenile court terminated services at the 12-month review hearing, and this court issued its opinion in Father's prior appeal, is a question of law subject to de novo review. (In re M.F. (2019) 32 Cal.App.5th 1, 18 ["When the issue on appeal involves the interpretation and proper application of the dependency statutes, review is de novo."].) Similarly, "[w]hether the trial court has correctly interpreted an appellate opinion is an issue of law subject to de novo review." (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 313 (Ducoing).)
B. Analysis
Father contends the juvenile court erred because it took "no corrective action"—i.e., it did not offer additional services—following our prior opinion. But because our opinion reversed the juvenile court's reasonable services finding at the six-month hearing without directing that the juvenile court provide Father additional services, the juvenile court did not err.
"The reviewing court may affirm, reverse or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. (Code Civ. Proc., §§ 43, 906.) The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned." (In re Anna S. (2010) 180 Cal.App.4th 1489, 1499.) In our prior appeal, this court reversed the juvenile court's reasonable services finding at the six-month review hearing, but we did not direct the juvenile court to provide additional services. Although the remedy for not offering or providing reasonable reunification services to a parent is, generally speaking, an extension of reunification services to the next review hearing (M.S., supra, 41 Cal.App.5th at p. 594), Father did not request that relief in his prior appeal. "[H]ad we intended to issue specific directions in our dispositional order, we would have done so." (Anna S., at p. 1502.) The absence of a specific directive mandating the provision of additional services defeats Father's claim that the juvenile court erred in not taking appropriate action in response to our prior opinion.
Father's opening brief in the prior appeal requested that we "reverse the order terminating his reunification services and remand the case directing the juvenile court to enter an order finding reasonable services were not been [sic] provided to Father at the time of the six-month review hearing." Father did not request that we direct the juvenile court on remand to provide six more months—or any other specified time period—of additional services.
Based on the information before this court during the prior appeal, our disposition was appropriately limited. Although the juvenile court concluded that Father had received reasonable services by the time of the six-month review hearing—a determination we concluded was erroneous—the juvenile court nonetheless ordered six additional months of reunification services for Father. By the time we filed our prior opinion in June 2019, Father would have received nearly four more months of services, and he would have received nearly six more months of service by the time the remittitur issued in August 2019. Because the juvenile court ordered an additional six months of services—the same remedy it would have provided if it had correctly found that Father had not been afforded reasonable services—no further specificity was required in our prior disposition.
See section 366.21, subd. (e)(3) ["If . . . the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . . , may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing."].
"If a court of review inadvertently omits to include in its instructions to a trial court on the reversal of a judgment essential elements within the issues necessarily determined on the appeal, the aggrieved party has his remedy in a petition for rehearing." (Stafford v. Municipal Court, Los Angeles Judicial Dist. (1960) 180 Cal.App.2d 368, 371; see Ducoing, supra, 234 Cal.App.4th at p. 314 ["A petition for rehearing is the correct remedy to address material inaccuracies or omissions in a disposition."].) To the extent Father was aggrieved by the lack of directions in the prior disposition, his available remedy was to petition for rehearing.
Father further contends that, as a result of the juvenile court's failure to provide additional services based on our prior opinion, he received two months of services—which fails to comply with the six months of services required by statute. As we have just discussed, however, this court's prior opinion did not require the juvenile court to provide additional services and Father's claim based on that ground fails. In addition, we conclude Father has forfeited his claim that he did not receive reasonable services as required by statute when he received two additional months of reunification services—rather than six—between the six-month review hearing and the 12-month review hearing.
Waiver is the intentional relinquishment or abandonment of a known right. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 521, fn. 3.) Forfeiture is the failure to make a timely assertion of a right. (Ibid.) Although the terms "forfeiture " and "waiver" have been used interchangeably, it is more accurate to use the term "forfeiture" when referring to " 'the loss of the right to raise an issue on appeal due to the failure to pursue it in the trial court.' " (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912.)
Generally, a parent's failure to object or raise an issue in the juvenile court forfeits the right to raise the issue in the appellate court. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge court's ability to set a section 366.26 hearing when it determined reasonable reunification efforts were not made].) The rule exists to "encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Here, despite having the same counsel at both review hearings, Father did not object to the juvenile court's finding that he was provided or offered reasonable services at the 12-month hearing, and he did not mention his pending appeal challenging the court's reasonable services finding at the six-month review hearing. As a result, Father cannot now challenge the juvenile court's finding, at the 12-month review hearing, that he was offered or provided reasonable services. (See § 361.5, subd. (a)(3)(A) [at the 12-month hearing pursuant to section 366.21, subdivision (f), the juvenile court may extend court-ordered services to 18 months only if it finds, inter alia, "that reasonable services have not been provided"].) Given the juvenile court's findings at the 12-month hearing, the juvenile court complied with its statutory obligations governing the provision of reasonable reunification services.
Father simply asked the court to order additional reunification services to the 18-month date.
Father acknowledges he did not timely challenge—and therefore does not now challenge on appeal—the findings at the 12-month review hearing. But Father maintains that he is challenging the juvenile court's ruling at the section 366.26 hearing that it was not required to order additional services for him based on the disposition of his prior appeal, and he preserved that challenge by raising it in the juvenile court. We conclude the juvenile court correctly viewed Father's argument for additional services at the section 366.26 hearing as an untimely challenge to the reasonable services finding at the 12-month review hearing, and properly denied his request for additional services on that basis. Although this court reversed the juvenile court's reasonable services finding at the six-month review hearing, the opinion in Father's prior appeal did not direct the court to order additional reunification services; it simply reversed "the order." If the disposition of Father's prior appeal had directed the juvenile court to order additional services, the court would have been required to do so at the August 2019 hearing when the parties and the court addressed the effect of this court's decision in the prior appeal after it had become final. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1434-1435 ["When an appellate court's reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed."].) Given the absence of directions in the disposition, the juvenile court reasonably concluded it was not required to delay the section 366.26 hearing to provide Father additional services.
Notwithstanding Father's characterization of his claim, it is clear Father is objecting to, and seeks to overturn, the juvenile court's findings from the 12-month review hearing. Father repeatedly contends that six months of services are required, and he only received two months of services. But the reason he received two months of services is that—while Father's appeal from the six-month review hearing (held in February 2019) was pending—the juvenile court terminated reunification services at the 12-month review hearing (held in April 2019). In other words, Father is challenging the court's conclusions that he was provided reasonable services, and that no further reunification services were warranted, and these findings were made in April 2019 at the 12-month review hearing.
The two-month period between the review hearings resulted from strict timing requirements imposed by the governing statutes. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846 [explaining that "the periods for reunification services and timing of review hearings are to be determined relative to the child's initial removal into custody or the jurisdictional or dispositional hearing, not the length of previous services or the dates of previous review hearings," and "[d]elays in the timing of one hearing should not affect either the timing of subsequent hearings or the length of services to be ordered"].)
Father forfeited this challenge to the reasonable services finding at the 12-month review hearing by failing to seek review of that finding by writ petition. Under section 366.26, subdivision (l), "[a]ll court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ." (In re Merrick V. (2004) 122 Cal.App.4th 235, 247; In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.) Such orders may not be reviewed on appeal from a later appealable order. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1024 ["[T]he Legislature, by its enactment of section 366.26, subdivision (l), sought to outlaw review by appeal of all decisions made in conjunction with a setting order."].) As the court observed in In re T.G. (2010) 188 Cal.App.4th 688, 697, "[a] parent . . . faces [a] . . . procedural hurdle if the juvenile court terminates reunification services at the 12-month review hearing based, in part, on an erroneous reasonable services finding at the six-month review hearing, and at the same time sets a hearing pursuant to section 366.26 to consider the termination of parental rights. 'All orders issued at a hearing in which a section 366.26 hearing is ordered are subject to section 366.26, subdivision (l) and must be reviewed by extraordinary writ.' " Because Father did not seek writ review of the court's reasonable services finding and order terminating his reunification services made at the 12-month review hearing, he may not obtain review of that finding and order in his present appeal from the order terminating parental rights.
In sum, Father forfeited his claim that he had not received reasonable services for the statutory minimum time period by not raising that issue at the 12-month review hearing when the juvenile court found he had been provided or offered reasonable services and terminated his services. Father failed to raise the issue at the 12-month hearing even though he had challenged the court's previous reasonable services finding on appeal and knew that his appeal was pending at the time of the hearing. He did not raise the issue in the juvenile court until after this court had issued its opinion in his prior appeal, but by then it was too late because the time to challenge the reasonable services finding at the 12-month hearing by writ petition had expired.
II.
Termination of Parental Rights
Father contends the juvenile court did not have the statutory authority to terminate his parental rights under section 366.26, subdivision (c)(2)(A). We disagree.
Section 366.26, subdivision (c)(2)(A) provides: "The court shall not terminate parental rights if: [¶] (A) At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided." Father construes this language to mean that the juvenile court has no authority to terminate parental rights unless it has found reasonable services were provided or offered to the parent at each review hearing at which it was required to make such a finding. In other words, Father construes the statute as imposing an affirmative obligation on the juvenile court to make a reasonable services finding at each review hearing. (See § 366.21 [specifying requirements for, including timing of, hearings to review the status of the dependent child].)
Father's construction is contrary to the plain meaning of section 366.26, subdivision (c)(2)(A). Under the statute, the juvenile court is prohibited from terminating parental rights only where it has found reasonable services were not provided or offered to a parent at every review hearing at which it was required to make a reasonable services finding—i.e., where it never made a finding that reasonable services were provided or offered to the parent whose rights are terminated. (See In re T.M. (2009) 175 Cal.App.4th 1166, 1173 ["Subdivision (c)(2)(A) of section 366.26 simply bars termination of parental rights when the parent has never been offered services because the parent's whereabouts were unknown or when the agency has not developed a plan or offered reasonable services even though the parent was available."] Section 366.26, subdivision (c)(2)(A) does not prohibit termination of parental rights where the juvenile court (or appellate court) found that reasonable services had not been provided as of the time of a particular hearing, but found at a later hearing that reasonable services had been provided.
To support the claim that his parental rights could not be terminated, Father relies on the absence of a valid reasonable services finding at the six-month review hearing. Although the juvenile court made a defective reasonable services finding at the six-month review hearing (as established by our prior appeal), it was not prohibited from terminating parental rights under section 366.26, subdivision (c)(2)(A) because it made the necessary statutory finding at the 12-month review hearing. As Father admits, and as we have found, Father did not timely challenge that finding, at the 12-month review hearing, that Father had been provided reasonable services. Given this unchallenged finding that reasonable services were provided at the 12-month review hearing, the juvenile court had the statutory authority to terminate Father's parental rights at the section 366.26 hearing.
DISPOSITION
The order terminating parental rights and selecting adoption as the permanent plan for Q.A. is affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.