Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte A. Wittig, Commissioner, Super. Ct. Nos. JJV060815A, JJV060815B, JJV060815C & JJV060815D
Beckers Law Firm and Earlynnda S. Beckers, for Petitioner.
No appearance for Respondent.
Kathleen Bales-Lange, County Counsel and Carol E. Helding, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from orders entered at a dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her four children. We will grant the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In May 2006, the juvenile court detained petitioner’s four children, ranging in age from nine months to six years, pursuant to section 300 based on allegations petitioner struck the six-year-old and used drugs while caring for the children. The juvenile court ordered the children placed in the temporary care and custody of the social services department (department) pending the jurisdictional hearing which it set for the following month. At the time, petitioner’s husband (the children’s father), who also had a history of drug use, was incarcerated but expected to be released within six months. The department placed the children together in foster care.
The children’s father did not file a writ petition.
In June 2006, at the jurisdictional hearing, the juvenile court adjudged the children dependents of the court, placed them with petitioner under family maintenance and ordered family maintenance services for petitioner and reunification services for the children’s father (father). Petitioner’s family maintenance plan required her to complete outpatient drug treatment and submit to random drug testing, complete a parenting course, and complete evaluations for domestic violence treatment and general counseling.
Over the next six months, petitioner complied with her court-ordered services and the children fared well in her care. Consequently, the juvenile court continued family maintenance and family reunification services for petitioner and father respectively at the semiannual review hearing in December 2006. The court indicated it would convert father’s reunification services to family maintenance services if he were allowed to return home. The court also set a family maintenance review hearing for May 2007. In early February 2007, the father returned to live with the family.
In May 2007, the department reported petitioner and father were providing the children a stable environment and complying with their case plans with a few exceptions. They each missed several drug tests and the father had not completed a domestic violence evaluation. Nevertheless, the department recommended the court terminate dependency jurisdiction at the next review hearing.
Minors’ counsel objected to the department’s recommendation and, in June 2007, the court conducted a contested review hearing. At the conclusion of the hearing, the court ordered another six months of family maintenance services for both parents and set a family maintenance review hearing for November 2007.
In the months following the June hearing, petitioner continued to miss drug tests, claiming lack of daycare prevented her from testing. In late October 2007, she was tested for drugs and the results were negative. In addition, the father was still not compliant with the domestic violence portion of his case plan and the case worker was concerned neither parent was motivated to complete court-ordered services. Nevertheless, the children appeared to be safe in their care. Consequently, the department recommended another six months of family maintenance services which the court granted at the review hearing in November 2007. The court set the next review hearing for April 2008.
By April 2008, father had violated his parole and was incarcerated. He was released from custody later that month. Meanwhile, petitioner was trying to provide a stable home for the children but was having financial problems and did not have transportation. However, she was more compliant with drug testing. Again, the department recommended the court dismiss dependency jurisdiction and place the children in petitioner’s sole custody. Again, minors’ counsel objected and a contested hearing was set for May 2008.
However, just prior to the hearing, the department filed a supplemental petition pursuant to section 387, alleging both parents repeatedly failed to meet with the case worker to discuss compliance with their case plans and that petitioner was not drug testing. In addition, father admitted to relapsing the previous January or February and failed to provide drug test results from his parole officer. The department expressed its concern the parents were abusing drugs and the children could be at risk of abuse.
In May 2008, the court convened the detention hearing on the section 387 petition and counsel for both parents entered denials. The court did not find sufficient evidence to detain the children and set a jurisdictional hearing on the section 387 petition for late June 2008. The court vacated the family maintenance review hearing previously set for May 2008.
In July 2008, at a combined jurisdictional/dispositional hearing, the juvenile court sustained the supplemental petition and ordered the children removed from parental custody. During the dispositional phase of the hearing, county counsel argued the court should deny petitioner and father further reunification services because they had already received in excess of the 18 months provided by the statute. Petitioner’s attorney argued that, because the children were never removed from her custody, the court should provide her services to reunify with them. The court reserved the issue of reunification, ordered briefing and continued the hearing.
Meanwhile, the department placed the children in foster care as a sibling group. Within the month, the children had to be removed from their foster care and placed separately because of their aggressive and violent behaviors. The two younger children had to be referred for therapy for acting out sexually.
In August 2008, the juvenile court reconvened the dispositional hearing and denied petitioner and father further services, concluding they had exceeded the 18-month statutory limitation on services under section 361.5, subdivision (a). The court also set a section 366.26 hearing to consider a permanent plan of adoption. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court erred in denying her reunification services. We concur.
Once the juvenile court assumes jurisdiction under section 355 by finding the child is a person described by section 300, it may order the child removed from parental custody and order family reunification services. (§§ 361, subd. (c); 361.5, subd. (a).) The provision of family reunification services is governed by section 361.5. The duration of services ranges from 6 to 12 months depending on the age of the child on the date of the initial removal from the parent’s physical custody. (§ 361.5, subd. (a).) Under section 361.5, subdivision (a), services may be extended to 18 months from the date of the initial removal and case law provides authority for services even beyond 18 months under certain circumstances. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)
“[F]amily reunification services are activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family.” (§ 16501, subd. (h).)
As an alternative to removal, the juvenile court may, as it did here, permit the child to remain in parental custody under family maintenance services. (§ 362, subd. (b); Cal. Rules of Court, rule 5.695(a)(5).) Family maintenance review hearings are conducted every six months pursuant to section 364. At the hearing, the court only determines “whether continued supervision is necessary.” (§ 364, subd. (c).)
“[F]amily maintenance services are activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families.” (§ 16501, subd. (g).)
Unlike family reunification services, nothing in the statutes or rules limits the time period for court supervision under family maintenance. (§§ 364, subd. (d); 16506, subd. (d); Cal. Rules of Court, rule 5.710(a)(2).) When supervision is no longer required, the court simply terminates dependency. (In re Joel T. (1999) 70 Cal.App.4th 263, 268 (Joel T.).) “Otherwise, the state may continue to provide supportive services and supervision to parents until the dependent minors reach their majority.” (Ibid.)
If, as here, family circumstances change necessitating the filing of a supplemental petition, the court must conduct jurisdictional and dispositional hearings. (§ 387; Cal. Rules of Court, rule 5.565(e).) At the dispositional hearing on the supplemental petition, the juvenile court must again decide whether to leave the child in parental custody or remove the child and provide services. (Cal. Rules of Court, rules 5.565 (e)(2); 5.695(a).) If the court removes a child for the first time on a supplemental petition, section 361.5, subdivision (a) requires that the court provide reunification services absent a finding that one of the exceptions specified in subdivision (b) of that section applies. (Joel T., supra, 70 Cal.App.4th at p. 268.)
Here, the juvenile court ordered the children removed from petitioner’s custody and denied her reunification services solely because she had received court-ordered services for the 18 months following the children’s detention on the section 300 petition. In so ruling, the court relied on In re N.M. (2003) 108 Cal.App.4th 845 (N.M.).
The facts in N.M., as relevant to our case, are as follows. In N.M., the juvenile court placed the child with his mother under family maintenance services following the jurisdictional hearing in January 2001 and continued family maintenance for the mother at the semiannual review hearing. (N.M., supra, 108 Cal.App.4th at pp. 848-849.) In February 2002, the court sustained a supplemental petition pursuant to section 387, ordered the child placed in the custody of the department of social services, and granted the mother reunification services. (Id. at pp. 849-850.) In October 2002, the juvenile court conducted what it deemed a six-month review of dependency, reasoning that the pendency of the case should be calculated from February 2002, the date the child was removed from parental custody, pursuant to the supplemental petition. (Id. at pp. 851, 853.) The court continued reunification services, which the child successfully appealed. (Id. at pp. 851, 858.) The appellate court concluded the mother received in excess of the 18-month statutory limitation on services under section 361.5, subdivision (a) and there were no exceptional circumstances warranting further services. (N.M., supra, 108 Cal.App.4th at pp. 855-856.)
We conclude N.M. is both factually distinguishable and legally unavailing. In N.M., the mother received a combination of family maintenance and family reunification services unlike petitioner who exclusively received family maintenance services. The only factual similarities between N.M. and this case are the children were detained on an original section 300 petition, returned to their mothers’ custody on family maintenance following the jurisdictional hearing, and then detained a second time on a supplemental petition.
Further, N.M. presented a different legal issue; namely, whether the 18-month limitation on services imposed by section 361.5, subdivision (a) began to run from the detention pursuant to the section 300 petition or from the detention pursuant to the section 387 petition. (N.M., supra, 108 Cal.App.4th at p. 854.) This case concerns a parent’s entitlement to reunification services under section 361.5, subdivision (a) following an exclusive period of family maintenance services.
On the facts of this case as applied to the legal principles set forth above, we conclude petitioner was entitled to reunification services. We do so drawing upon the analysis of Joel T., supra, 70 Cal.App.4th 263, a case both factually and legally on point. In Joel T., five minors were adjudged dependents under section 300 and placed in the care of their mother until they were detained 18 months later on a supplemental petition. (Joel T., supra, 70 Cal.App.4th at pp. 265-266.) After sustaining the petition, the juvenile court denied the mother further services because she had already received 18 months of services. (Id. at pp. 266-267.) The court’s order was reversed on appeal. (Id. at p. 269.)
The court in Joel T. concluded the juvenile court erred in denying the mother family reunification services because, like petitioner, she was not offered family reunification services prior to her children’s second detention on the supplemental petition. (Joel T., supra, 70 Cal.App.4th at p. 268.) Consequently, the time-limited services under section 361.5, subdivision (a) did not apply to her and the court could not rely on its provisions alone to deny her services. (Joel T., supra, 70 Cal.App.4th at p. 268.) The court in Joel T. held “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.]” (Joel T., supra, 70 Cal.App.4th at p. 268.) We concur in the court’s holding and conclude the facts of this case compel the same result.
On a final note, petitioner’s circumstances highlight the subtle yet important difference between family maintenance and family reunification services. (Joel T., supra, 70 Cal.App.4th at p. 268.) Services under family maintenance were designed to maintain the children in petitioner’s custody. However, once the children were removed from her custody and placed in foster care, it became apparent they were going to need additional services to reunite them with petitioner. At a minimum, based on the record, they were going to need therapy because of their aggressive and violent behavior.
For all the reasons cited above, we remand for a new dispositional hearing on the supplemental petition. At the hearing, the juvenile court should consider all applicable dispositional alternatives including denial of services pursuant to section 361.5, subdivision (b) if justified by the evidence.
DISPOSITION
Let an extraordinary writ issue directing respondent court to vacate its order of August 19, 2008, denying petitioner reunification services and setting a section 366.26 hearing. Respondent court is further directed to conduct a new dispositional hearing on the section 387 supplemental petition, and enter a new order granting petitioner six months of reunification services unless the court determines that an exception in section 361.5, subdivision (b) applies, in which case the court shall file a new order under section 361.5, subdivision (b) denying petitioner reunification services and setting the section 366.26 hearing. This opinion is final forthwith as to this court.