Opinion
F050872
12-14-2006
AMBER A., Petitioner, v. SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Janet G. Sherwood, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Michael H. Krausnick, County Counsel, Carrie Stephens, Deputy County Counsel, for Real Party in Interest.
INTRODUCTION
Six months ago, we reversed the juvenile courts 12-month-review finding that reasonable reunification services had been provided to the developmentally disabled mother in this case. We were unaware that the juvenile court had already terminated reunification services four months before and had already terminated the mothers parental rights one day before we filed our opinion. The court and parties did nothing in response to our opinion for two months. Then, two days after the remittitur issued, county counsel sent a letter informing us of the situation. We deemed the letter a petition on behalf of the mother for a writ directing the juvenile court to vacate its orders and to comply with the order in our opinion. We then consolidated, for briefing purposes, the writ with the mothers appeal from the termination of her parental rights.
The late Justice Stone of this court observed a number of years ago that, "[i]f ... generic reunification services are offered to a parent suffering from a mental incapacity such as retardation, failure is inevitable, as is termination of parental rights." (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1332-1333.) We described an inevitable failure of that kind in our previous opinion in this case, and nothing the parties have told us now changes our view. Having received opposition from real party in interest Stanislaus County Community Services Agency (the agency), we issue a peremptory writ of mandate requiring the juvenile court to vacate its orders finding reasonable services and terminating those services and terminating parental rights. The court is required to comply with our previous order.
The record discloses that the agency never offered, at any stage, services reasonably calculated to provide a mother who is probably mentally retarded any hope of keeping her children. The agency makes procedural arguments about why we should refuse to consider the mothers contention that the services remained unreasonable in the period following the 12-month review, which we reject. It also repeats arguments that the mother is not really disabled or has only herself to blame for her predicament—implying that the services provided did not need to be tailored to any disability and therefore were reasonable. We rejected these arguments before and it is too late for them now. We do not know whether this family can be preserved, but the law requires the agency to enhance the mothers opportunity to try by providing reasonable reunification services tailored to meet her needs. This has not been done. Further, the children are currently placed with their maternal grandparents. Adoption by either the maternal or paternal grandparents is the only permanency plan that has been considered. Hopefully, this fact will minimize further disruptions to these two childrens lives.
It is in the best interest of all parties to expedite the resumption of these proceedings in the juvenile court. As a result, we order finality of this opinion (No. F050872) upon filing, pursuant to California Rules of Court, rule 24(b)(3). We also direct immediate issuance of the remittitur pursuant to rule 26(c)(1) if the parties agree to so stipulate.
Subsequent rule references are to the California Rules of Court.
Our disposition of the writ petition will render the appeal (No. F050713) moot unless the agency decides to seek Supreme Court review of the writ. If the agency does not seek Supreme Court review of the writ, Amber may request dismissal of the appeal, which would enable us to order immediate finality and immediate issuance of the remittitur in No. F050713 pursuant to rules 20(c), 24(b)(2)(E), and 26(c)(1). We suggest that the parties meet and confer to decide how to proceed.
FACTUAL AND PROCEDURAL HISTORIES
The facts are set forth in our previous opinion, which we filed on May 23, 2006. (In re Dennis A. (May 23, 2006, F048762) [nonpub. opn.].) In brief, two-year-old Dennis and infant Trinnitti (they are now four and three) were declared dependents after a babysitter injured Dennis. Among the injuries were burns from a cigarette lighter, apparently inflicted deliberately. The mother, Amber, who, according to school records and a current psychological evaluation, has an IQ of 55 to 65, let the babysitter care for the children even though she suspected prior abuse. She also failed to seek medical treatment for the injuries. (Id. at pp. 1-4, 5, 7, 8.) The juvenile court ordered reunification services consisting of parenting and anger-management classes, but these were not designed for developmentally disabled parents, and Amber could not understand the material. (Id. at pp. 5, 6, 9.)
Our opinion reversed the portion of the juvenile courts 12-month-review order that found reasonable reunification services had been provided. It directed the court "to order a new reunification plan designed to accommodate the mothers specific needs and limitations and requiring the agency to do all that is reasonably possible to help her regain custody of her children." (In re Dennis A., supra, F048762, at p. 19.) On July 26, 2006, two days after the remittitur issued, we received a "Request for Clarification of Courts Orders in its Opinion Filed May 23, 2006" from county counsel. The letter explained that the juvenile court had terminated reunification services on January 12, 2006, and had terminated Ambers parental rights on May 22, 2006.
The next day, we issued an order deeming county counsels letter a petition for a writ of mandate filed on behalf of Amber "to compel respondent court to comply with this courts disposition in In re Dennis A. et al. and vacate its subsequent findings and orders inconsistent with that disposition," including the orders terminating reunification services and parental rights. At the same time, we stayed briefing in Ambers appeal from the termination of her parental rights. We granted the agency leave to file an informal letter brief opposing writ relief, which it did on August 21, 2006. On August 31, 2006, we consolidated the writ petition and the appeal for briefing purposes, lifted the stay on appellate briefing, and requested briefing on whether Amber would be prejudiced if writ relief were denied. In requesting briefing on that issue, we were concerned with whether substantial evidence in the subsequent record would support the conclusion that Amber eventually did receive reasonable services. The parties then filed briefs addressing both the writ petition and the appeal, and an appellate record was submitted.
Where the appellate record in the prior appeal left off, there had been a progress review hearing on July 29, 2005 (a month after the 12-month review hearing), and an order on August 16, 2005. (In re Dennis A., supra, F048762, at pp. 11-12.) To the previously ordered services, the order added job training from the Department of Rehabilitation, academic assistance with reading skills from a junior college, and counseling to help Amber "address the anger and frustration she feels with her custody situation." (Id. at p. 12.) It did not add any services related to augmenting a developmentally disabled persons parenting skills. Previously, the court had set an 18-month review hearing for September 28, 2005. (Id. at p. 11.) This was only about a month and a half after the new services were ordered.
The briefs and record filed in the present proceedings disclosed what happened while the prior appeal was pending. The 18-month review hearing was not actually held until January 12, 2006. The agency filed a status review report and an addendum in anticipation of the hearing. It reported that, as of November 22, 2005, Amber had made and then missed several appointments for the newly ordered counseling and reading skills and job training services, but said she still intended to use those services. It also reported that Amber was continuing to live at the home of her boyfriends family. She also continued to refuse to ask the other adults living there to submit to criminal background checks, which were necessary to permit the children to visit. It described this living situation and Ambers rejection of offered assistance as "[t]he main obstacle to demonstrating to the court that [Amber] can provide for the full time care of her children ...."
The agencys report for the 18-month review recommended terminating reunification services. The report and addendum said nothing, however, about Ambers disability and described no action taken that might have helped a person like her to obtain adequate parenting skills. It noted that Amber had completed the parenting and anger-management classes originally provided and referred to the psychological examination. The report did not state that the providers of the classes had found Amber unable to understand them, that the evaluation concluded she had a verbal IQ of 65, or that her school records reported her IQ as 55 to 65. (See In re Dennis A., supra, F048762, at pp. 5-6, 7-8.) Overlooking Ambers participation in the parenting and anger-management classes, and in apparent disregard for the cognitive obstacles to Ambers benefiting from those services, the report concluded, "It is evident to the undersigned [the social worker] that [Amber] has failed to take advantage of the services offered for a successful reunification, and that a permanent plan of adoption would be in the best interests of the children." The juvenile court followed the agencys recommendation. It again found that reasonable reunification services had been provided, terminated those services, and scheduled a hearing to decide whether to terminate Ambers parental rights.
That hearing was held on May 22, 2006. In the report filed for the hearing, the agency recommended terminating Ambers parental rights. It stated that the children were living with their paternal grandparents, with whom they had been placed by the court and whom the agency identified as prospective adoptive parents. The agency asserted that the children had developed a parent-child relationship with the paternal grandparents, who could "not imagine their [lives] without the children there." The paternal grandparents did not choose to enter into a post-adoption agreement with Amber, but said they "wish to maintain family contact" and would allow contact "on a case-by-case basis."
The juvenile court learned at the hearing, however, that the children were not living with the paternal grandparents and had not been doing so for several months. Instead, they were living with Ambers mother, Victoria, and her husband. An earlier placement with Victoria had been revoked and the children removed from her custody because her husband was arrested for driving under the influence. The paternal grandmother, Lori, became ill and could not take care of the children, so she turned them over to Victoria despite the previous revocation. "Thats why," Victoria testified, "she was afraid to come today because she knew she would be a witness and she didnt want to." Lori was passing her foster-care money on to Victoria. The agency learned of the change in the childrens living situation for the first time at the hearing, and the court said it was "stunned" by this development. The juvenile court commented that the entire extended family might be conspiring against its authority, saying, "I dont know if this is just some big scheme the whole family has worked up to try to keep the children in the family ...."
Ambers counsel argued that parental rights should not be terminated until the likelihood of adoption by one set of grandparents could be clarified. He also suggested that long-term foster care or a guardianship, which would preserve the childrens relationship with Amber, would be appropriate.
The court rejected these arguments. It found that there was clear and convincing evidence that the children were likely to be adopted. In support of this finding, the court observed that the paternal grandparents "have come forward and at least given lip service that they would be willing to adopt," despite the fact that they had turned the children over to Victoria months before without notifying the agency. The court also had "no doubt," based on Victorias testimony and the fact that she had come to hearings and been highly involved in the entire process, that she also would be willing to adopt. This is true even though she was not asked about this during her testimony, never said she was willing to adopt, and had previously had the children removed from her custody. The court also stated that the law did not require it to identify a specific adoptive placement before terminating parental rights. It further found that there was "no evidence" that the children would benefit from continuing to have a relationship with their mother, despite Victorias testimony that ending that relationship would be detrimental to them.
On the basis of these findings, the court terminated Ambers parental rights. Our opinion was filed the next day, leading to these proceedings.
DISCUSSION
The only question presented on this writ petition is whether the juvenile court is excused from its usual duty to follow our orders. We understand that the court was not authorized to reverse its termination-of-parental-rights order on its own motion even after receiving our opinion (see Welf. & Inst. Code, § 366.26, subd. (i) [after making order permanently terminating parental rights, juvenile court has no power to modify or set it aside]), but now that these writ proceedings are before us, we must decide whether we will order it to do so. The only potential reasons for permitting our opinion to not be enforced are (1) that Amber was not prejudiced because later events gave her the needed services or proved their futility; and (2) a legal obstacle to enforcement of our decision exists, such as an expiration of time or a failure to preserve issues. The record does not support either possibility.
Subsequent statutory references are to the Welfare and Institutions Code.
I. Prejudice
In our order filed August 31, 2006, we directed appellate counsel to "address the question of prejudice, i.e. would appellant be prejudiced if this court did not compel the trial court to comply with this courts disposition in her former appeal and if so, how?" We hold that Amber will be prejudiced if our previous orders are not enforced.
First, and most important, the services added by the order filed August 16, 2005, are not sufficient to address the concerns set forth in our prior opinion. The new services were job training, assistance with reading skills, and counseling to help with feelings of frustration. Even though these services may be helpful, they do not pertain to the obstacle that stood in the way of reunification. As we explained in our prior opinion, the reason it was not safe to return the children to Amber was that she did not understand the material presented in classes designed to improve her parenting skills, and this "left her as incapable of protecting her childrens safety as she was initially found to be." (In re Dennis A., supra, F048762, at p. 15.) Amber was offered no services reasonably calculated to make a difference in the time after the 12-month review, just as she was offered none before then.
Second, problems with Ambers living situation do not alter our analysis of the reasonableness of the offered reunification services. The agency emphasizes these problems in its briefing here. As stated in our prior opinion, Amber has declined assistance in finding her own residence, moved in with her boyfriend and his family, and "resisted" having the adults in her boyfriends household submit to criminal background checks as a condition of having visits there with her children. (In re Dennis A., supra, F048762, at p. 9.) We did not previously believe these facts constituted sufficient evidence to conclude that appropriate reunification services would be futile, and our opinion has not changed. Further, the juvenile court never made any findings about Ambers living situation or her willingness to change it. (See id. at p. 15.) Based on this record, we do not know what affect, if any, the provision of services that deal with Ambers developmental disabilities may have on her decision-making abilities with respect to her living arrangements. This is due to the fact that Amber has never received these types of relevant services.
Third, nothing has been added to the record that would cause us to doubt the reality of Ambers disability. Saying that reunification services were terminated because of Ambers "decision and conduct" regarding her living situation, the agency contends that Amber failed to reunify with her children because she did not want to do so—not because of cognitive limitations. If the agency is correct, this could show that the reunification services offered were reasonable because there really never was any developmental disability to which they could have been tailored.
In support of this position, the agency relies on a letter from Valley Mountain Regional Center (VMRC) opining that Amber was not retarded. The agency erroneously asserts that we were not aware of this letter. To the contrary, the letter was in the appellate record in the previous appeal and we discussed it in our opinion. This letters purpose was to justify VMRCs decision to deny Amber services. Rejecting the results of the psychological evaluation and many years worth of school records attesting to Ambers retardation, the letter stated that Amber was "not mentally retarded or functioning at a level similar to mental retardation" but instead had "a learning disability." Apparently unaware of the fact that Amber had already participated in parenting classes as part of her reunification plan but was unsuccessful because she could not understand the material, the letter recommended that she take classes of that kind. It concluded that Ambers "weaknesses" as a parent were "not caused by cognitive limitations" but are a "lifestyle choice." (In re Dennis A., supra, F048762, at pp. 11-12.)
In our previous opinion, after discussing VMRCs letter, we held that the reunification services provided were not reasonable. As a result, we have already rejected the argument that the letter is sufficient evidence that Amber is not retarded and therefore the reunification services provided were reasonable even though they were designed for a parent who is not retarded. Nothing has happened that would alter this conclusion.
The agencys argument also implies that, even if Amber is retarded, her actions show that she lacks the interest and motivation needed to make a reunification effort successful, so the lack of reasonable reunification services was nonprejudicial for that reason. The agency points to Ambers failure as of November 2005 to keep appointments for the new services added in August 2005 and her failure to take steps to make her living situation suitable for the children. We do not think the facts have materially changed in this regard. In our previous opinion, we acknowledged that Amber had failed in some respects to exhibit a full commitment to reunification, but still concluded that she was entitled to reunification services designed with her disability in mind. It can only be hoped that appropriate services will help Amber understand what a full commitment requires of her. As her counsel argues, "It is only after the parent has received the required reasonable services that the juvenile court can make an informed decision as to whether the parent is going to be able to reunify with his or her child ...."
Further, in determining the significance of Ambers responses to the agencys requests in the areas of housing and the appointments for job, reading, and counseling services, we cannot ignore the tenor of the agencys actions toward Amber. The record does not show that the agency has lived up to its legal obligation to make preserving the family its first priority until reasonable means of doing so have been tried and have failed. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Although Ambers service providers reported to the agency before the six-month review hearing that she could not understand the material presented in her parenting and anger-management classes and recommended a psychological evaluation, the agencys six-month review report did not recommend this evaluation or any additional services. The agency obtained a psychological evaluation only after the juvenile court ordered it to do so at the six-month hearing. (In re Dennis A., supra, F048762, at pp. 5-7.) After obtaining the evaluation, which stated that Ambers disability should be taken into account in adjusting her service plan, the agency attempted but failed to secure appropriate services for Amber from VMRC. (Id. at pp. 7-8.) Although the agency never secured any services that would have complied with the psychological evaluators recommendation, it still recommended terminating reunification services in its 12-month review report. (Id. at p. 9.) The juvenile court ordered the agency to continue reunification services (id. at p. 11), but the agency did not provide any additional services. In the interim review report filed after the 12-month hearing, the agency said it was recommending the continuation of reunification services, but at the same time stated its "opinion that no further services are available to assist [Amber] to complete her case plan." No case plan was attached to the report. The juvenile court ordered the job, reading, and counseling services on August 23, 2005, but the agency again recommended terminating reunification services less than a month later, saying in its status review report filed September 12, 2005, that Amber had "refused to follow through" by that time.
In all this, the agency evinced an apparent desire to prioritize movement toward termination of parental rights over a substantial effort to meet the challenge of preserving a family with a single, developmentally disabled parent. The discussion in Ambers reply brief about why she did not keep appointments for the job, reading, and counseling services has some force: "There is another explanation for Ambers failure to `participate in those new services that makes more sense [than] respondents assertion that she was no longer interested in reunifying with her children. Given how she had been treated by the county throughout this whole process, Ambers lack of enthusiasm for engaging in the new services is certainly understandable."
The agencys stance continues unaltered in this litigation. Making no concession to the reality that Amber faces unusual obstacles as a developmentally disabled parent, it insists that the services it provided before the six-month review and after the 12-month review were reasonable even though they were not addressed to those obstacles. It says it is "obvious" that Ambers lack of progress toward reunification is not because of a disability, but because "she decided to have a relationship with her boyfriend instead." It describes the prospect of reunification as "futile." In spite of the holding in our prior opinion that substantial evidence of reasonable reunification services was lacking because the services provided did not take account of Ambers disability, the agency argues, in effect, that Ambers disability has nothing to do with the propriety of the juvenile courts decisions.
Finally, the agency contends that Amber was not prejudiced by the nonenforcement of the orders in our previous opinion because she received "in excess of twenty-one months of reunification services, only six of which have been deemed by this court to be unreasonably flawed." We disagree. The record does not contain substantial evidence that Amber ever received reasonable reunification services at any time. In our previous opinion, we reversed the juvenile courts 12-month review finding that reasonable services had been provided. We rejected the agencys argument that Ambers objections were untimely because she did not appeal from the six-month review order. (In re Dennis A., supra, F048762, at p. 12.) In the time between the 12-month review and the 18-month review, the only new services were unrelated to augmenting the parenting skills of a developmentally disabled parent.
For all these reasons, we conclude that Amber will be prejudiced if the orders in our previous opinion are not enforced. Without services adapted to her disability, Amber will be deprived of the reasonable opportunity to reunify with her children—a right to which she is entitled. (In re Victoria M., supra, 207 Cal.App.3d at pp. 1320, 1327.)
II. No legal obstacle to relief
The agency contends that Amber is barred from claiming that she has not received reasonable reunification services because the juvenile court found that she received them at the 18-month review hearing and she never filed the necessary petition for writ relief from the courts 18-month review order. This argument is based on a misunderstanding of the basis for the present proceedings. A timely writ petition is necessary to challenge an 18-month review order setting a termination-of-parental-rights hearing. (§ 366.26, subd. (l); Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1160-1161, fn. 1.) However, this case is not here because Amber claims the juvenile court committed error in its 18-month review order. It is here because the orders in our previous opinion conflict with action taken by the juvenile court immediately preceding its issuance and because our orders, consequently, have not been followed. Amber is entitled to raise the question of whether services provided between the 12- and 18-month review orders were reasonable because the answer to that question determines whether those services cured any prejudice from the nonenforcement of our prior orders.
The agencys position on this point assumes that the case should be treated the same 1) as if the juvenile court had complied with our previous order and then found reasonable services at the 18-month review hearing, or 2) as if our previous order had never issued and Amber were trying to challenge the 18-month review order without having filed the necessary writ petition. We are not in either of those situations.
The agency also argues that there are at least six months of reunification services Amber is barred from challenging because she never filed an appeal from the juvenile courts six-month review order, which found reasonable services during those first six months. The agency made essentially the same argument in the prior appeal. We rejected this argument in our previous opinion. (In re Dennis A., supra, F048762, at p. 18.)
The agency devotes a substantial portion of its brief to the argument that "the juvenile court properly convened the section 366.26 hearing" to decide whether to terminate Ambers parental rights. We do not doubt that this is true. The question is whether that hearings results can and should be vacated in light of what we ordered in our opinion.
If our opinion had been filed one day before the termination-of-parental-rights hearing instead of one day after, the juvenile court could not have acted as it did. It would have known then of our view that none of the services previously provided were reasonable in light of Ambers disability, and it could not have found that the newly added job, reading, and counseling services filled the gap. Since terminating parental rights is error if reasonable reunification services have never been offered, the court would have known that it could not terminate Ambers parental rights at that time. "[I]n order to meet due process requirements at the termination stage, the court must be satisfied that reasonable services have been offered during the reunification stage." (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1215-1216.) In light of its duty to follow the orders of an appellate court, the juvenile court could not have been satisfied with the reunification services offered if it had first received our opinion. The chance circumstance that the opinion was filed one day after termination does not justify the opposite result.
Finally, the agency argues that any order extending reunification services at this point would exceed a statutory maximum time during which reunification services may be provided. It cites section 361.5, which deals with time limits for court-ordered services. Court-ordered services are limited to six months for children who are under three when removed from their parents physical custody and 12 months for older children. The juvenile court may extend services up to 18 months upon a showing either that a child will probably be returned to the parent during the extended time or that the parent did not previously receive reasonable services. (§ 361.5, subd. (a); see also 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 643, p. 780.) The agency argues that Amber received reasonable services for well over six months (the children were under three when the agency took custody of them) and that her behavior shows there is no likelihood that the children can be safely returned to her custody within an extended period. For the reasons we have explained, Amber never received reasonable services at any time. As a result, she did not receive reasonable services for any period, let alone a period exceeding the statutory maximum.
The agencys argument may imply that section 361.5 means that 18 months after removal from custody is an outer limit after which reunification services may not be provided even if reasonable services were never provided before. The agency removed Dennis and Trinnitti from Ambers custody over two years ago, so arguably no relief in the form of additional reunification services is now available, and parental rights can be terminated even if reasonable services have never been provided.
The Courts of Appeal have not interpreted section 361.5 in this manner. Instead, when holding that sufficient evidence did not support a reasonable-services finding, they sometimes have ordered or authorized juvenile courts to require additional services even though more than 18 months have passed since removal from custody. (See, e.g., Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 498, 508-510 [child removed from mother at birth in June 2003; Court of Appeal held in April 2005 that reasonable reunification services were not provided and directed juvenile court to provide additional services or return child to mother]; In re Daniel G., supra, 25 Cal.App.4th at pp. 1209, 1216 [18-month review order terminating reunification services even though services were "a `disgrace" reversed; juvenile court failed to exercise discretion to continue reunification period beyond 18 months]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1770-1771, 1779-1780 [juvenile court mistaken in believing it must terminate reunification services after 18 months and set termination-of-parental-rights hearing even though no reasonable reunification services had been provided; court has discretion on remand to decide whether to extend reunification services].)
In re Elizabeth R., supra, 35 Cal.App.4th 1774 is instructive. There, three children were declared dependents because of their mothers mental illness. (Id. at p. 1779.) The mother made diligent efforts to comply with her reunification plan, but was hampered by the fact that she was hospitalized for all but five months of the reunification period. (Id. at p. 1777.) She also encountered active resistance to reunification from the foster parents, who renamed her youngest child, caused the children to call them mommy and daddy, canceled visits, and refused holiday contacts. The county called her criticism of these developments inappropriate and used them as grounds for denying later visitation. (Id. at pp. 1783-1785.) At the 18-month review hearing, the mother showed that her conservatorship had been terminated and that she had received intensive counseling and medication and been released from the hospital; she asked the court to continue reunification services. The county, however, contended that unless the children were to be ordered returned to her at that time, reunification services must be terminated and a termination-of-parental-rights hearing set because the 18-month reunification period was over. Believing it had no other choice, the court terminated reunification services. (Id. at pp. 1782-1783.) Subsequently, it terminated the mothers parental rights. (Id. at p. 1786.)
The Court of Appeal held that the juvenile court was incorrect in thinking it could not extend reunification services beyond the 18-month cutoff. It concluded that section 352 provided the juvenile court with discretion to consider extending the reunification period. (In re Elizabeth R., supra, 35 Cal.App.4th. at pp. 1792, 1795.) It held that the juvenile court erred in terminating reunification services, reversed the order terminating parental rights, and remanded with directions to consider extending the reunification period. (Id. at pp. 1796, 1799.)
We agree with Elizabeth R. and the other cases we have cited on this point. The rule cannot be that the agency is empowered to run out the clock while providing no reasonable services and then contend that the parents claim for reasonable services is time-barred. Further, there is no need for a remand to allow the court to exercise its discretion and determine whether the period should be extended. In light of the fact that Amber is developmentally disabled, that her children were removed from her custody because this disability impairs her parenting ability, and that the services provided never offered any parenting help adapted for a developmentally disabled parent, not providing additional services would be an abuse of discretion.
This conclusion is reinforced by the fact that the children are presently in one of the only two placements the agency or court has ever considered for them. Although the court once removed the children from Victorias custody, it found at the termination-of-parental rights hearing that they were bonded to Victoria and that it would be detrimental to them to disturb their placement. Adoption by one set of grandparents was the only permanency plan discussed at the hearing or in the agencys report. Delaying one of those potential outcomes in order to extend reunification services while the children continue in their present placement is not likely to cause them any additional detriment. Consequently, the statutory goal of promoting permanency will not be undermined by the extension of reunification services under these unique circumstances.
The agency cites Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501 in support of its view that reunification services cannot be extended. Denny H. is inapplicable. There, the Court of Appeal held that, "[w]hen extraordinary special needs are not at issue," reunification services cannot be extended beyond 18 months from removal even if reasonable reunification services have never been provided. (Id. at p. 1511.) It relied on Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015-1016, which interpreted a 1991 amendment to the statutes as permitting a permanency hearing to be set even if reasonable services have never been provided. It also held that a permanent plan of guardianship may be implemented even if reasonable services have never been provided. (Denny H. v. Superior Court, supra, 131 Cal.App.4th at pp. 1511-1512.) Here, extraordinary special needs are at issue and the permanent plan the court approved was termination of parental rights and adoption.
The agency also cites In re Aryanna C. (2005) 132 Cal.App.4th 1234, which upheld a juvenile courts termination of reunification services after only three months, leading to termination of parental rights. Aryanna C. also fails to support the agencys position. The Court of Appeal there only held that the juvenile court had discretion to terminate reunification services early because of the parents "abysmal record of failure at reunification" consisting of twice failing drug tests and missing all scheduled visits. (Id. at pp. 1241-1242.) Although it stated that "a parent is not entitled to a prescribed minimum period of services," it also asserted that "ordinarily a parent must be granted reasonable reunification services." (Id. at pp. 1242-1243.) Ambers case involves a failure to provide reasonable services for any period, and the record does not justify reducing the required period of services to zero, even assuming the law sometimes permits this to occur.
For all these reasons, we issue the requested writ. We order early finality pursuant to rule 24(b)(3) and suggest that the parties meet and confer regarding issuance of the remittitur and the disposition of the appeal as explained in part IV below.
III. Instructions to juvenile court
Under the circumstances, we believe it will be helpful to specify what the juvenile court needs to do to comply with the writ of mandate we are issuing:
1. The juvenile court shall vacate the orders in which it found reasonable reunification services were provided to Amber, terminated those services, and terminated Ambers parental rights.
2. The juvenile court shall comply with the orders set forth in our opinion in appeal No. F048762 filed on May 23, 2006. In doing so, the juvenile court shall take the following steps:
a. After taking any necessary steps regarding appointment of counsel, the juvenile court shall order the agency to prepare and file a new status review report. This report shall set forth the additional services and service providers the agency has identified for Amber and shall include a new reunification plan. The services identified shall address Ambers needs as a developmentally disabled parent and shall be "services which are responsive to the familys special needs in light of the parents particular disabilities" (In re Victoria M., supra, 207 Cal.App.3d at p. 1320) and "tailored to [the mothers] intellectual limitations" (id. at p. 1327). The report shall detail the agencys efforts to find appropriate services and shall explain why the services it identifies are the most suitable services available. The juvenile court shall not accept a report merely reiterating that VMRC has denied eligibility and no other services are available. The agency must exhaust all reasonable efforts to obtain suitable services.
The juvenile court shall direct Ambers counsel to file responsive briefing, after a reasonable time for review of the status review report and any briefing by the agency. Ambers brief shall set forth her position regarding the availability of appropriate services. It may propose services other than those proposed by the agency.
b. In its discretion, before or after ordering the above report and briefing, the juvenile court may order a further psychological evaluation of Amber for the purpose of assisting the parties and court in determining what services she should receive. The previous psychological evaluation by Dr. Trompetter was imprecise, stating that Amber has a "Verbal IQ of 65" and that this "is indicative of Mild Mental Retardation if she also had accompanying significant deficits in adaptive functioning." This comment left some uncertainty about whether Ambers disability fell into the category of mental retardation or not. That ambiguity, together with the apparent mildness of the retardation, may explain why VMRC found Amber ineligible even though Dr. Trompetter had no doubt that she had a "disability" involving "diminished intellectual functioning ...." An additional psychological evaluation could resolve the ambiguity and point the way to appropriate services.
The court shall entertain a motion by any party requesting this evaluation, may order the evaluation on its own motion, and may delay filing of the status report and briefs until after the evaluation has been completed. If the court orders an additional psychological evaluation, it shall direct the agency to provide the evaluator with copies of this opinion and this courts opinion filed May 23, 2006, to ensure that the evaluator knows why the additional evaluation is being requested.
c. After receiving the status report and briefing and any psychological evaluation, the juvenile court shall conduct a hearing to determine what new reunification services to order. It may in its discretion receive any additional evidence relevant to that determination.
d. After the hearing, the juvenile court shall make findings regarding what additional reunification services are appropriate and shall order that those services be provided to Amber.
e. The Courts of Appeal have taken a variety of approaches in determining the length of an additional reunification period ordered on appeal. In Robin V. v. Superior Court, supra, 33 Cal.App.4th 1158, the court vacated a reasonable-services finding in a 12-month review order. (Id. at pp. 1163-1164, 1167.) Reasoning that the services became inadequate at about the time of the six-month review hearing, it ordered that the "case will resume its six-month status." (Id. at p. 1167.) In In re Monica C. (1995) 31 Cal.App.4th 296, the court reversed a reasonable-services finding in a 12-month review order. It directed the juvenile court to provide services for six months and then hold a final review hearing—equivalent to an 18-month review hearing—on the ground that this was comparable to what would have happened if the juvenile court had itself found the services unreasonable at the 12-month review and had set an 18-month review to revisit the issue. This was essentially the same as resuming the case at its 12-month status. (Id. at pp. 310-311.)
Here, it will be necessary for the juvenile court to make findings before determining the length of time for which services should be provided. Since reasonable services were never provided to Amber, the juvenile court could proceed as if the hearing required by item (c) above were similar to a dispositional hearing (at which reunification services are first ordered) and could then conduct review hearings 6, 12, and possibly 18 months later. On the other hand, in light of a variety of factors, it could conclude that a shorter reunification period is reasonable. A necessary consideration will be the nature of the services available and the length of time probably required for Amber to derive substantial benefits from them. The juvenile court may defer its decision on how long services will be provided to subsequent hearings.
f. The juvenile court shall set a status review hearing six months after the commencement of the newly ordered services. It shall decide whether reasonable reunification services have been provided and whether to continue services for another six months and shall set further hearings as required.
IV. Finality and issuance of remittitur
Due to the importance of speed in dependency proceedings, this matter shall be placed before the juvenile court as soon as possible. As we have said, this opinion will be final upon filing. The remittitur cannot issue immediately without a stipulation by the parties, however, and the pendency of Ambers appeal from the termination of her parental rights (No. F050713) may prevent the jurisdiction of the juvenile court from attaching until the remittitur issues in that appeal. Unless reversed, the writ relief we are granting will render the appeal moot, but Amber presumably will not wish to dismiss the appeal before she knows whether the agency will seek review of the writ.
Accordingly, we suggest that the parties meet and confer as expeditiously as possible and determine whether the matter will proceed immediately in the juvenile court or whether the agency will seek Supreme Court review. If the parties wish to proceed immediately in the juvenile court and forego Supreme Court review, they may stipulate to immediate issuance of the remittitur in No. F050872 pursuant to rule 26(c)(1). If that occurs, Amber may request dismissal of her appeal in No. F050713 so that we can order immediate finality and immediate issuance of the remittitur pursuant to rules 20(c), 24(b)(2)(E), and 26(c)(1). We also suggest that the parties file a joint statement as soon as possible, informing this court of the course to be taken and setting forth the necessary stipulations and requests, if any. Ambers appellate counsels appointment shall cover these matters.
DISPOSITION
Let a peremptory writ of mandate issue (1) directing the juvenile court to vacate the following orders: the orders finding that reasonable reunification services have been provided to Amber; the order terminating reunification services to Amber; and the order terminating Ambers parental rights; and (2) directing the juvenile court to comply with the orders contained in our opinion filed in appeal No. F048762 on May 23, 2006. The juvenile court shall comply with those orders by following the steps described in part III of this opinion.
Pursuant to rule 24(b)(3) and to promote the interests of justice, the decision in this matter (No. F050872) shall be final upon filing. Ambers appellate counsels appointment shall cover actions taken pursuant to this courts comments set forth in part IV of this opinion.
This opinion does not dispose of Ambers appeal, No. F050713, from the termination of her parental rights. The writ and appeal proceedings were consolidated for briefing purposes only and shall be treated separately from this point forward.
We Concur:
Cornell, J.
Hill, J.