Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK49298, Steven L. Berman, Referee.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
In this dependency proceeding, appellant Ruby P. (mother) is the mother of John P. who was born in 2000. The juvenile court terminated mother’s parental rights pursuant to Welfare and Institutions Code section 366.26. Mother appealed.
John’s father is not a party to this appeal.
Unless stated otherwise, all statutory references are to the Welfare and Institutions Code.
Mother asserts that the order terminating parental rights must be reversed because (1) the juvenile court did not conduct an 18- month review hearing pursuant to section 366.22; (2) the DCFS did not provide mother with reasonable reunification services from August 2005 to March 2006; (3) the juvenile court abused its discretion by failing to give mother a brief continuance on the morning of the section 366.26 hearing; and (4) the juvenile court abused its discretion by failing to hear testimony from John and the foster mother, Patricia H., to determine John’s best interests.
In addition, mother filed a petition for a writ of habeas corpus asserting that she was denied effective assistance of counsel. Specifically, mother contends that counsel did not assert any defense to the termination of parental rights, that there was no tactical basis for counsel’s omissions, and had counsel asserted a defense, the court would not have terminated parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
This court consolidated mother’s writ petition and appeal. We reverse and remand for further proceedings. The trial court erred by failing to conduct an 18-month review hearing prior to scheduling the section 366.26 selection and implementation hearing. The trial court is therefore ordered to vacate the orders made at the March 27, 2006 and February 8, 2007 hearings. This case is remanded to the trial court to conduct an 18-month review hearing in accord with section 366.22. We do not address the issues raised in mother’s petition for a writ of habeas corpus.
1. Detention
On June 13, 2002, this case came to the attention of the Los Angeles Department of Children and Family Services (DCFS) when John’s maternal grandmother and maternal aunt took John to a police station. John was almost two years old at the time. Mother was a minor when John was born.
Maternal grandmother observed fresh superficial bruising on the right side of John’s face and swelling below his left ear. Mother stated that John had fallen from a scooter and that another child bit him on the ear. When maternal grandmother asked questions, mother became defensive and threatened to take John away.
The week before, maternal grandmother had observed a bite mark on John’s back. When she confronted mother about the injury, mother refused to explain.
Mother and John had resided with the maternal grandmother since John’s birth. Maternal grandmother reported to the police that she had been John’s primary caretaker since birth. Mother cared for John for a few days at a time, but then returned him to maternal grandmother. Mother admitted to her family that she used “crystal meth.” She stated that she intended to start a drug rehabilitation program, but had not done so.
Police officers took John to Children’s Hospital. Dr. Zimmerman concluded that the size of the bite mark was more suggestive of an adult than a child. The fresh bite mark below John’s left ear could have resulted from an adult bite, but the swelling made it difficult to determine the origin of the bite.
The DCFS concluded that John would be at high risk if returned to mother’s care. The DCFS took John into protective custody and detained him with maternal grandmother.
2. The Juvenile Dependency Petition
On June 18, 2002, the DCFS filed a juvenile dependency petition on behalf of John pursuant to section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], and (i) [cruelty]. The petition alleged that John suffered injuries which resulted from unreasonable or negligent acts by mother and that mother was a user of methamphetamine, all of which placed John at risk of serious harm.
Mother appeared for the detention hearing. The juvenile court detained John in the home of maternal grandmother. The court ordered reunification services for mother. The court also ordered monitored visitation for mother.
3. Jurisdiction/Disposition Report and Hearing
On August 12, 2002, the juvenile court conducted a jurisdiction and dispositional hearing. Mother was not present when the case was called. Mother’s attorney, Henry S. Parks, submitted the matter on her behalf. According to the DCFS report, mother admitted that she had a problem with methamphetamine and that she needed help. Mother denied, however, neglecting John. She believed that another child bit John. The DCFS noted that John was bonded with mother and maternal grandmother. Mother, who was not to live with maternal grandmother, visited John daily.
The court found by clear and convincing evidence that the petition, as amended, was true. The court found John to be a child described by section 300, subdivisions (a) and (b). The court dismissed the section 300, subdivision (i), count.
The court proceeded to disposition and declared John a dependent of the juvenile court. The court removed John from mother’s custody. The court ordered mother to complete a drug rehabilitation program with random testing, a parenting course, and individual counseling to address case issues, including anger management.
Mother then appeared after the hearing. She explained that she was late because her car broke down. A friend brought her to court. The juvenile court informed mother that if she was late, she should call her attorney and the court, or the court could proceed without her. Mother signed a waiver of rights form and a case plan form. The juvenile court advised her that she was entitled only to six months of reunification services. The court granted mother monitored visits with John.
4. The Supplemental Petition Against Maternal Grandmother
On October 17, 2002, the DCFS removed John from maternal grandmother and placed him in foster care. The DCFS learned that maternal grandmother had permitted two unrelated teenage boys to reside in her home. The boys had molested her 10-year-old daughter and two nephews, ages nine and seven. Maternal grandmother knew what the boys were doing, but she failed to report it or make them leave. She asserted that she reported the conduct to a psychologist, Dr. Zamudio, who was allegedly providing counseling in her home. Maternal grandmother reported that Dr. Zamudio advised her not to report the problem because she could not be certain the children were telling the truth.
On October 22, 2002, the DCFS filed a section 387 supplemental petition. Mother and maternal grandmother appeared for the hearing. The court detained John into foster care. The court ordered the DCFS to investigate any other relatives for possible placement. The court also ordered the DCFS to provide maternal grandmother with referrals for sexual abuse awareness counseling. The court gave maternal grandmother monitored visitation. The court also ordered that mother and maternal grandmother were each to receive a minimum of three hours a week visitation with John.
5. Mother’s Participation in Family Reunification Services
After the juvenile court removed John from maternal grandmother’s custody, the DCFS placed him into a foster home. Then, on December 23, 2002, the DCFS placed John into the home of Maria T., along with his 10-year-old maternal aunt and his two cousins. John adjusted well to this new home. The social worker visited him and found that he was smiling and happy.
Mother appeared for the February 10, 2003, six-month review hearing. For the hearing, the DCFS reported mother’s compliance with her case plan. Mother failed to maintain contact with the DCFS in July, August and September 2002. In October 2002, the social worker made contact with mother, who explained that she was attending His Sheltering Arms program. Mother stated that she was participating in parenting classes, alcohol/drug counseling and AA meetings.
In December 2002, mother stopped going to the program stating that she was sick and unable to get out of bed. Mother had not been drug testing. In December 2002, the social worker gave mother a referral for random drug testing, but mother had not tested by the time of the February 2003 hearing. She resided in a small trailer with her boyfriend. She stated that they were looking for an apartment. Mother had not gone back to her program. She stated that she was still sick with stomach pain and headaches. At a February 2003 hearing, mother stated that she received treatment in the emergency room but she did not seek additional treatment because of the cost.
With respect to visitation, mother was consistent. She missed only one visit during the month of January 2003. John’s caregiver reported that John enjoyed his visits with mother. Maternal grandmother also consistently visited John, who enjoyed the visits.
The juvenile court set the matter for a contested review hearing. Mother was present for the review hearing on February 20, 2003, which was continued to February 25, 2003, for which she was also present.
6. Contested Six-Month Review Hearing
On March 7, 2003, the juvenile court conducted the six-month review hearing. Mother did not appear. The DCFS reported that mother and her sister had been sexually abused by their father and that maternal grandmother had failed to protect them. Maternal grandmother continued to have contact with the perpetrator. The DCFS recommended that John not be released to maternal grandmother because of the recurring abuse in the family.
By the time of the hearing, mother had failed to re-enroll in drug counseling, parenting classes or individual counseling to address case issues including anger management. She had also failed to drug test.
The juvenile court found by clear and convincing evidence that the DCFS had provided reasonable services. The court found that mother was not in compliance with the case plan. The court also found by a preponderance of evidence that there was a substantial risk of harm to John if he were returned to mother’s custody. The court also found that there was no substantial probability that John could be returned to mother’s custody within six months. The juvenile court terminated family reunification services. The court scheduled a section 366.26 selection and implementation hearing for July 2003.
The March 7, 2003, minute order states that the clerk sent writ procedures to the parents by first class mail.
7. Juvenile Court Sustains 387 Petition Against Maternal Grandmother
Mother and maternal grandmother appeared for the April 10, 2003, hearing on the section 387 petition. Maternal grandmother stated to the DCFS that it was “stupid on her part” not to have reported the problem in her home. She reiterated that she told the proper authorities by telling Dr. Zamudio about the incident.
Mother and maternal grandmother also appeared on April 9, 2003,
Dr. Zamudio executed a declaration. There, she stated that she was counseling the two teenage boys at another home. She did not, however, provide counseling to maternal grandmother or her children. Dr. Zamudio also declared that she did not advise maternal grandmother not to call the police.
The juvenile court sustained the 387 petition as amended. The DCFS reported that John was bonded with maternal grandmother, who stated that she intended to do everything possible to regain custody of him. The court ordered maternal grandmother’s monitored visits to be increased to four hours per week.
8. Mother Files a Section 388 Petition
On July 1, 2003, mother filed a section 388 petition requesting additional reunification services. Mother stated that she was complying with her case plan. She stated that she was enrolled in drug counseling, parenting classes, and individual and group counseling at Sheltering Arms. Mother also stated that she had tested clean since April 2003. Mother’s counselor provided a written statement confirming mother’s participation. Mother also stated that she was consistently visiting with John. According to mother, John stated that he loved her and wanted to live with her. The juvenile court granted mother a hearing on the petition, which was not heard until October 23, 2003.
9. The July 2, 2003, Hearing
Mother appeared for the July 2, 2003, section 366.26 hearing. By this point in time, mother was regularly visiting John. In addition, mother had entered into a six- to 12-month inpatient drug rehabilitation program. According to the social worker, as a result of mother’s schedule, mother was having twice a month visits with John for three hours per visit. The social worker reported positive interaction between mother and John and that mother was engaged with John. She played with him, gave him water and appeared “very patient” with him. John appeared to enjoy the visits. Mother wanted to return to once a week visits as soon as possible. Maternal grandmother was also visiting John every Sunday for four hours. The social worker reported that John loved maternal grandmother and was always happy to see her.
For the first 30 days of the drug program, mother was not allowed to leave or receive any visitors.
John was doing well in the home of Maria T. She, however, did not want to adopt him because she was concerned about problems with the biological family. She was only interested in long term foster care.
The court continued the section 366.26 hearing. The court ordered the DCFS to file a report addressing the issues raised in mother’s section 388 petition.
10. Mother Complies With Her Case Plan
By September 2003, mother was in full compliance with her case plan. She continued to reside in an in-patient drug program and was two months from completing the drug rehabilitation program. For the prior four months she had tested clean. The staff at His Sheltering Arms reported that mother was doing really well. Mother intended to enroll in an aftercare program and return to school. Mother was also participating in individual counseling at Kedren Mental Health (Kedren). Her therapist reported that mother had developed a good rapport with him. She had completed 26 hours of parenting classes. The social worker reported that mother was “doing really well” and that she was motivated to regain custody of John.
Mother also had regular visits with John. The visits went well. Mother acted appropriately and John appeared to enjoy the visits.
Mother did not see John for a two-week time period. This was the result of communication problems with the foster mother, Maria T. The social worker reported that the problem was resolved and visits were going well.
Mother appeared for the September 3, 2003 hearing. At the hearing, John’s attorney stated that she observed visits between mother and John. She reported that John is “extremely bonded” with mother. The attorney also commended mother for pulling herself together for John.
The court granted mother’s section 388 petition in part, by allowing mother unmonitored visits twice a week for four hours each visits at her drug treatment facility. The court also ordered that commencing October 1, 2003, mother could have unmonitored overnight weekend visits. The court denied maternal grandmother’s request for unmonitored visits.
The social worker and mother arranged for mother’s boyfriend, Juan Carlos, to pick up John on weekends and transport him to mother’s treatment facility for visits. The social worker informed mother that John was not to be left alone with maternal grandmother.
However, in September 2003 maternal grandmother dropped John off at the foster home following a visit with mother. The social worker spoke to mother about this. Mother responded that she did not know that Juan Carlos allowed maternal grandmother to be alone with John. Mother told Juan Carlos not to allow it to occur again.
By October 2003, the social worker concluded that mother was doing well in her programs. She was in full compliance with her case plan and expressed a desire to reunify with John. The social worker observed, however, that mother was not able to handle certain situations appropriately. For example, when problems arose with respect to visitation, mother called maternal grandmother, who then called the foster mother. The social worker concluded that mother had difficulty making independent decisions on her own and exhibited some immaturity.
Mother appeared for the October 22 and 24, 2003 hearings. The juvenile court ordered mother’s visits could be unmonitored while she was in her program. The court further ordered that when mother completed her program, monitored visits were to occur at a DCFS approved location. The court ordered that Juan Carlos was not to transport John to visits and that maternal grandmother was not to contact the foster mother. During the hearing, the court stated that the reunification stage was complete and that a section 366.26 hearing was pending.
By December 2003, mother had completed the in-patient drug program. Mother’s counselor reported that mother had done well, but recommended six months of individual therapy sessions. Mother’s therapist reported that mother would continue to do well as long as maternal grandmother allowed her to take control of her life.
Mother was living with her boyfriend, Juan Carlos, in a studio apartment. They had been in a relationship for two years. Juan Carlos was working full time and providing financial stability.
Mother was present for the December 1, 2003, hearing. The court ordered that mother was to receive a minimum of eight hours a week of unmonitored visits with John. The court gave the DCFS discretion to liberalize visits to include weekend overnight visits.
11. The Continued Section 366.26 Selection and Implementation Hearing
By late January 2004, the DCFS reported that it had not identified any prospective adoptive parents for John. Mother was visiting John every chance she had. She had unmonitored visits all day on Saturday and Sundays. Mother showed a strong desire to be there for her son. She was attentive to John and interacted in a loving way. Based upon her observations, the social worker concluded that mother and John had a close and positive relationship.
The social worker also noted that Juan Carlos maintained a close and fatherly relationship with the child. He was loving and affectionate. Mother’s home was clean. Mother stated that she loved John and wanted to regain custody.
With respect to her plan, mother was continuing to test clean. The DCFS reported that she was in full compliance with her case plan. Mother had finished parenting classes and was attending individual counseling. Mother also had a part-time job.
Mother appeared for the continued January 26, 2004, section 366.26 hearing. She requested a contested hearing. Mother’s attorney, Mr. Parks, represented to the court that there was adequate evidence of a section 366.26, subdivision (c)(1)(A), exception to the termination of parental rights. He also stated that mother intended to file another section 388 petition to regain custody. John’s attorney also stated that she intended to file a section 388 petition on behalf of John.
The court continued the matter for a contested section 366.26 hearing. The court instructed mother to attend the hearing. The court cautioned that at the hearing there was a possibility that the court could terminate parental rights and arrange adoption for John. The court noted that mother had unmonitored visits and gave mother unmonitored weekend overnight visits with John. The court gave the DCFS further discretion to liberalize the visits.
12. Review of Permanent Plan Hearing
By early March 2004, mother and Juan Carlos were having consistent overnight weekend visitation with John. The social worker stated that John had a positive and loving relationship with them, based on the way John laughed when they were together. John ran to mother and Juan Carlos when they arrived for visits. The social worker also noted that John seemed bonded with mother based upon the way he hugged and kissed her when together. For her part, mother showed positive parenting and patience when she directed John, who appeared to feel safe in her care. The social worker noted significant improvement in mother’s ability to care for John.
Mother had completed a 30-hour parenting class. She continued to test negatively for drug use. She attended Narcotics Anonymous (NA) meetings twice a week and continued with her individual therapy. Mother’s home was clean and organized. She had plenty of toys and food for John.
Mother appeared for the March 3, 2004, hearing. Based in part upon the DCFS recommendation, the court ordered John to reside with mother in the home of parent. The court found mother in compliance with her case plan. The court also ordered mother to continue weekly drug testing. The court ordered mother not to leave John alone with maternal grandmother, whose visits remained monitored. The court vacated the section 366.26 selection and implementation hearing. Finally, the court ordered family maintenance services for mother. The court scheduled a section 364 review hearing for September 2004.
13. DCFS Recommends Termination of Jurisdiction
By early September 2004, John remained in mother’s care. Mother was continuing to test clean. Mother and Juan Carlos moved to a new apartment, which was clean and well stocked. Mother was cooperative with the social worker, who described John as a normal happy child. John appeared right at home in mother’s company. Mother was scheduled to graduate from the drug treatment program.
The DCFS recommended termination of jurisdiction. The court maintained jurisdiction so that the DCFS could obtain progress reports from mother’s therapist. The court continued to order family maintenance services for mother and John.
14. Continued Judicial Review
By early December 2004, John continued to reside with mother. Mother continued to test clean, but had missed three tests. In addition, she was not attending individual therapy. Mother, however, was continuing to attend NA meetings. The social worker believed that mother was overwhelmed with the responsibility of complying with court orders and attending to a young child.
Mother explained to the social worker that she had been clean for two years and had no reason to relapse. She admitted that she was stressed by her responsibilities and her lack of employment. Mother’s home, however, was clean and well-managed. The DCFS recommended continued jurisdiction as well as family preservation services to reduce mother’s stress.
Mother appeared for the December 1, 2004, hearing. The court warned her that if she did not continue to drug test and attend individual therapy, the court would order the DCFS to detain John. The court ordered family preservation services for the family and continued the matter for progress reports.
On January 19 and March 2, 2005, the juvenile court conducted section 364 review hearings. Mother appeared for both hearings. John continued to reside with mother. At the January hearing, the court ordered a letter from mother’s therapist showing that she was attending counseling once a week. The court also ordered mother to submit proof that she was drug testing at least twice a month.
By March 2005, mother was receiving family preservation services. The DCFS report states that mother “receives in-home demonstration and outreach services in-home counselor visits once a week.” (Sic.) The DCFS assigned mother an in-home counselor from the Personal Involvement Center. In addition, mother started attending individual counseling at the Kedren Center. She attended two sessions in February 2005. Mother’s therapist reported that mother had self-esteem issues and conflicts with family members. Mother, however, was cooperative and open to suggestions.
At the March 2, 2005, hearing, the court found that mother was complying with her case plan. The court also found that the DCFS was providing adequate services. The court ordered mother not to miss or cancel any family preservation meetings. The court maintained jurisdiction over John. The court continued the matter to August 2005 for a section 364 review hearing.
15. The DCFS Detains John From Mother’s Custody
According to the DCFS detention report, on June 1, 2005, John told his aunt that his mother had held a knife to his throat and threatened to kill herself or John if Juan Carlos left her. John also told his aunt that mother and Juan Carlos (whom John called dad), fought in front of him.
On June 2, 2005, the DCFS received a hotline referral and initiated an investigation. John told the social worker that a knife was placed to his throat and that his dad wanted to kill him. Mother denied that she did anything to scare John. Mother and Juan Carlos denied the knife incident. Mother explained that she worked hard for four years to regain custody of John and that she would never hurt him.
The social worker interviewed John, who stated that he was scared of mother because she put the knife to his neck. John was otherwise in good physical health. He had no marks or bruises.
By this time, mother was in full compliance with her case plan. She was testing clean. She was attending the individual therapy sessions.
On June 14, 2005, the DCFS detained John from mother’s custody and placed him in a foster home. Patricia H. was the licensed foster mother.
16. The Section 342 Subsequent Petition
On June 17, 2005, the DCFS filed a section 342 juvenile dependency petition on behalf of John pursuant to section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect). The petition alleged that mother physically abused John by placing a knife to his throat. The petition also alleged mother and Juan Carlos engaged in violent confrontations in front of John during which Juan Carlos hit mother in the face, all of which placed John at risk of serious harm.
17. The Detention Hearing
Mother appeared for the detention hearing on June 17, 2005. The DCFS informed the court that mother was our of family reunification services. The court detained John and gave the DCFS discretion to release him to any appropriate relative other than maternal grandmother.
Despite the fact that the DCFS stated mother was out of family reunification services, on the record and in the minute order, the court ordered family reunification services for mother, including individual counseling, domestic violence counseling, drug counseling and drug testing. The court also ordered that mother was to receive psychological/psychiatric treatment including an evaluation for medication.
The court ordered monitored visits for mother. The court also ordered Juan Carlos to remain at least 100 yards from John. The court advised mother that the matter could be set for a section 366.26 selection and implementation hearing if the allegations in the section 342 petition were found to be true.
At the hearing, the court stated to mother: “So you should be aware that there is no time left for reunification, and the [DCFS] will not be offering any, which means if the petition is found to be true, the case could be set for a hearing for the child to be adopted.”
18. Mediation of Section 342 Petition
In a July 28, 2005, report, the DCFS noted that John was having a difficult time adjusting to his new placement. He was moody and introverted after visits with mother. In addition, the caretaker, Patricia H., reported that John sometimes awoke at night crying and stating, “ ‘she will not do it any more’ ” and “ ‘she will not try to put the knife to my throat.’ ”
The report also noted that mother was in full compliance with her case plan. However, with respect to visitation, mother had been inconsistent. The caretaker agreed to change the day and timing of the visits to accommodate mother’s schedule.
According to the DCFS report, maternal grandmother stated that she observed Juan hit mother. She stated, however, that she did not believe that mother would hurt John, but may have tried to threaten Juan Carlos. Mother stated that she was not close to her family and that she was emotionally abused by grandmother.
Mother appeared for the July 28, 2005, hearing, at which point the juvenile court scheduled a mediation of the section 342 petition. The court also ordered the DCFS to prepare a psychological assessment of John.
Mother appeared on August 12 and 26, 2005 for mediation of the section 342 petition. By this time, the psychological assessment of John had not been completed. John was doing well in the home of Patricia H. He was eating and sleeping well and had not mentioned the knife incident in two weeks. In addition, mother continued to comply with her case plan.
At the August 12 hearing, the court ordered monitored visitation for mother of three hours per week. The court also ordered the DCFS to submit a report including an interview with Juan Carlos, an interview with mother’s family preservation worker, an update from John’s therapist regarding the allegations and the best interests of John, and the result of John’s psychological assessment.
By August 26, 2005, the social worker had not been able to interview Juan Carlos. Mother’s family preservation worker explained that she visited mother weekly. During August 2005, the worker found mother was still in bed or not at home in the morning. The worker discussed with mother her concerns that about how much time John spent with his aunt and maternal grandmother.
The family preservation worker also stated that she knew little about the current allegations. However, she also stated that based upon her observations, mother interacted well with John. She stated that at all times she did not see anything wrong in the relationship between mother and John. She also noted that mother never displayed any aggressive behavior and the family preservation worker had no concerns for John’s safety.
The family preservation worker noted that at times mother appeared overwhelmed. Mother, however, was receiving individual therapy. Mother was also stressed about how to pay the rent. She concluded that mother and John had developed a strong bond. She also noted that John was always groomed and appeared healthy. Mother told the worker that she was completely over drugs and that she attended NA and AA regularly. Mother sometimes left John with her sister or mother for care in order to comply with her case plan.
Harold Fletcher, Ph.D., evaluated John. He reported that John was a bright, highly verbal child who was not lying about the knife incident. John also spontaneously informed Dr. Fletcher that he witnessed his parents fighting and that mother had held a knife to his throat.
Following the mediation, the parties dismissed all allegations except count b-2, which was amended. That count alleged that mother and Juan Carlos exposed John to domestic altercations; that on one occasion, Juan Carlos assaulted mother by striking her in the face; and that when mother was upset with Juan Carlos, she made threats of harm involving a knife, which frightened John.
At the August 26, 2005, mediation hearing, the juvenile court indicated that the case might be past the reunification stage. Counsel for the DCFS referred the court to section 366.3 regarding an option to order one period of six months of reunification services. Counsel stated: “John was home for a substantial amount of time, but mother should understand that it’s six months. We’re not in a position to offer 18 months.”
The parties agreed to provide mother with six months of reunification services. The mediation agreement provided that mother would participate in ongoing therapy with a DCFS-approved therapist who had expertise in domestic violence and child protection issues. The therapy was also intended to address the effect on John of the events leading to the June 2005 detention, as well as issues of anger management, stress and conflict. The agreement also provided that mother was to attend group domestic violence sessions and to participate in conjoint counseling with John as recommended by John’s therapist. Finally, the agreement provided that John was to participate in age-appropriate therapy.
The juvenile court stated: “John is to be in therapy forthwith. And when John’s therapist deems it appropriate, mother is to be in conjoint with [John.]”
Mother executed a waiver of rights form. The court accepted her submission and sustained the amended section 342 petition. The court found John remained a person described by section 300 and ordered him to remain a dependent of the court. The court removed John from the physical custody of mother, finding by clear and convincing evidence that there was a substantial danger to John’s physical and emotional well-being. The court ordered six months of reunification services for mother as specified in the mediation agreement. The court also ordered mother to attend a 52-week domestic violence program. The court continued its order that mother was to receive three hours of monitored visitation each week. Finally, the court scheduled a section 366.22 review hearing for February 24, 2006. The court ordered mother to appear and cautioned that if she did not appear, the court could proceed without her.
The minute order stated: “DCFS is ordered to prepare and submit the following report RPP/P22 on or before 02/24/06.”
Although the issue was not discussed on the record, the minute order stated that the juvenile court advised mother of her appeal, rehearing and sealing rights. In addition, the minute order stated the matter was continued to February 24, 2006 for a review of permanent plan hearing and a section 366.22 hearing.
19. The Reunification Period
During the six months following mediation of the section 342 petition, John continued to reside with Patricia H. The social worker opined that John was very close and bonded with Patricia H. and her son, who was John’s age.
Patricia reported that mother was inconsistent with visits; she was either late or did not show up at all. Mother, however, reported that she attended all of her weekly visits and that it was the foster mother, Patricia, who had been late. Maternal grandmother was also visiting John. She reported to the social worker that the foster mother, Patricia, was manipulative and either did not attend the Friday afternoon visits, or was late.
The social worker investigated this situation and concluded that Patricia H. “does not appear to make it easy for the family to arrange these visits.” The social worker also noted, however, that mother missed one visit and arrived for another visit five minutes before the visit was over.
In the February 24, 2006, DCFS report, the social worker elaborated upon the visitation situation as follows: “Mom and [maternal grandmother] will call me before three and state they are waiting and caretaker is the one that is late or won’t show up [sic] then afterwards the caretaker will try to tell this [social worker] that it was mom and [maternal grandmother] who did not show up. Furthermore when caretaker comes to meet mom and [maternal grandmother] at 3:00 p.m. caretaker will only look around for one minute and if she does not happen to see them in eye view [sic] then she will leave right away and not even take [John] out of the vehicle to check and make sure they are not anywhere around. Caretaker does not allow mom to have her full three hours either per week, she has told mom that they can only have two hours since it gets dark so soon and mom can only get there in the late afternoon.”
Patricia reported, however, that if a couple of weeks passed without a visit with mother, John’s school behavior declined and he appeared sad.
By February 2006, mother had not completed any domestic violence or anger management counseling. Mother had moved to Pomona and stated that she had been unable to find affordable programs. The social worker reported, however, the DCFS had given mother referrals and a bus pass to assist her with programs. Mother stated that she wanted John back, but if she could not have custody, then she wanted John placed with maternal grandmother.
John’s behavior in school had improved. He was closely bonded with Patricia H, who was interested in a legal guardianship. Patricia reported that John’s anger issues and behavioral problems had improved. John was closely bonded to Patricia’s son. The social worker stated that Patricia took great care of John. Patricia also reported that because maternal grandmother is manipulative, John and mother should have visits without maternal grandmother present. Finally, while Patricia was critical of the visits occurring at a McDonald’s, the social worker reiterated that Patricia did not make it easy for mother to arrange visitation.
20. The February Review Hearing
Following the August 2005 mediation, the juvenile court scheduled a section 366.22 18-month review hearing for February 24, 2006. However, at the hearing, counsel could not agree whether the court had set a 366.22 hearing or a review of permanent plan hearing pursuant to section 366.3.
The DCFS status report for the February 24, 2006, hearing stated that the type of hearing was “366.22 18 Month/Permanency Review / 300.”
At this hearing, there was also discussion as to whether the court had ordered additional family reunifications services for mother and whether the court should consider terminating those services. County Counsel informed the court that it had not ordered family reunifications services for mother, that mother was out of family reunification services, and that the hearing was a review of permanent plan hearing for John. Counsel for mother responded that the court had ordered family reunification for mother.
The juvenile court stated that the hearing could not be a 366.22 hearing and that the court could not terminate reunification services that it did not give. The court instructed the DCFS to report as to why the family reunification services had been allowed.
John’s attorney told the court that John was not in counseling. The court questioned this since it had previously ordered John into counseling. The court continued the matter to March 2006 to allow the DCFS to file a supplemental brief addressing what efforts had been made to find an adoptive home, why John was not in counseling, and why mother was given additional family reunification.
The court stated: “This is a case that’s approximately . . . four years old. The mother shows no evidence of participating in reunification anyway. [¶] I think what we should do is put this over and find out why the child is not in counseling.”
21. The March 27, 2006, Hearing
Mother appeared for the hearing on March 27, 2006. The DCFS reported that the foster mother, Patricia H., wanted to adopt John. John had just recently started counseling. By this point in time, mother was visiting John four times a month. Mother had missed several visits and had been late for others. The character of the visits was good.
At the outset of the hearing, the juvenile court stated that it was conducting a review of permanent plan hearing only. Without hearing from the parties, the court found that the DCFS had provided adequate services and made reasonable efforts to move the case to permanence. The court explained that for a child John’s age, adoption should be the permanent plan. The court then set a section 366.26 hearing to select and implement the permanent plan for July 14, 2006. The court set a review of permanent plan hearing for September 2006. The court warned mother that if she did not attend, the court could terminate parental rights without her.
The minute order states that the hearing was a section 366.22 hearing and a review of permanent plan hearing.
The minute order for the hearing states that the court found by a preponderance of the evidence that John could not be returned to mother’s care without a substantial risk of detriment to his physical or emotional well-being. The minute order also stated that mother was not in compliance with the case plan, that mother’s family reunification services were terminated and that the DCFS complied with the case plan by making reasonable efforts to enable the child’s safe return home and to complete the steps necessary to finalize permanent placement. The court did not make these findings on the record. The record also shows that the court did not order that mother receive notice of the right to file a writ to contest the setting of the section 366.26 hearing.
As noted by mother’s counsel on appeal, at this hearing, the juvenile court did not orally make any findings of detriment or whether mother complied with the services provided. Nor did the court state on the record that it was terminating family reunification services.
22. The July 14, 2006, Section 366.26 Hearing
Mother appeared for the July 14, 2006, hearing. In its report, however, the DCFS recommended that the hearing be continued because proper notice had not been completed.
Patricia H., the foster mother, was taking excellent care of John. The social worker reported that Patricia H. and John had established a strong bond. Patricia H., however, was ambivalent about adoption. She was concerned that John would hate her for adopting him when he had regular visits with mother. Patricia also stated that if she did adopt, she would not allow visits with the family. The adoption assessment report stated that John wanted to go home to live with mother, but that he was bonded to Patricia H. and her family.
With respect to visitation, the DCFS report stated that mother visited John on a weekly basis. According to the foster mother, mother did not attend any visits in June 2006.
At the hearing, mother’s attorney advised the court that mother was having trouble with visitation. The foster mother’s boyfriend had made advances on mother. Counsel also represented that an aunt had witnessed this behavior. Counsel further stated that when the foster mother, Patricia H., learned of this, her attitude towards mother changed and mother encountered difficulty with visitation that had not existed previously. Finally, counsel represented that mother told the social worker about this conduct. According to counsel, the social worker either did not believe mother, or thought it was better left alone.
The DCFS reported that John had been assessed for individual counseling at the Los Angels Child’s Guidance. The report stated that John was expected to start counseling soon.
At the hearing, the juvenile court ordered that neither the foster mother nor her boyfriend could act as monitors and that future visits had to be arranged through the DCFS. The court ordered the DCFS to investigate the problems with visitation. The court also ordered John into counseling. The court continued the section 366.26 hearing to November 9, 2006 and scheduled a progress hearing for September 25, 2006.
23. The September 2006 Progress Hearing
The juvenile court conducted a progress hearing on September 25, 2006. Mother did not appear.
By this time, mother’s visits were inconsistent. The DCFS report stated that mother visited John once since the July 14, 2006 hearing. Mother had cancelled some visits. The social worker had difficulty maintaining contact with mother due to the fact that mother resided in Pomona and Los Angeles.
John was not in yet in counseling. The foster mother, Patricia H., stated that she contacted three separate agencies, but none could accommodate John. Patricia reported that the foster agency was going to help her enroll John in counseling.
Patricia H. was no longer ambivalent about adoption, but stated that she wanted to adopt John and provide the best for him. Patricia H. and her husband had separated. The DCFS report did not address any issues related to whether Patricia had interfered with mother’s visitation.
The court reiterated the order that John was to be in counseling. The court also found continued jurisdiction was necessary and that John’s placement was appropriate. The court also found that the DCFS was providing adequate services and making reasonable efforts to move the case towards permanence.
24. The November 2006 Section 366.26 Hearing
Mother did not appear for the November 9, 2006, hearing. The juvenile court found that notice was not proper.
Counsel for John requested a continuance. Counsel explained that John was supposed to attend the hearing and that he was supposed to be in counseling. Counsel noted that the DCFS report did not address why John was not in counseling.
A DCFS representative responded that John was now in counseling. The representative also reported the foster mother’s home study had been approved.
At the hearing, the juvenile court continued the section 366.26 hearing to January 10, 2007. The court ordered proper notice to mother, and ordered John to be present. The court also ordered the DCFS to submit a letter from John’s counselor.
25. Letter from John’s Therapist
For the January 2007 hearing, the DCFS submitted a December 27, 2006, letter from Colleen Davidoff, the counseling intern from the Wings of Refuge family services agency. Davidoff wrote that she started working with John in October 2006. Davidoff wrote: “I had an opportunity of observing John in CFP, Patricia [H.’s] home. John expressed that he is sad when he is unable to see his biological mother and grandmother. After observing the interactions between [foster mother and John], he appears to be intimidated by [Patricia H.] and sad in the home.”
Davidoff also wrote: “It has been difficult for me to establish a trusting relationship with . . . Patricia [H.] On several occasions, it has been difficult for me to have [Patricia H.’s] cooperation for foster child, John. . . . It has been difficult for me to get [Patricia H.] to communicate with me regarding scheduling appointments and the progress of John’s counseling sessions.”
26. The January 10, 2007, Section 366.26 Hearing
Mother and John appeared for the January 10, 2007, hearing. The juvenile court found that notice was proper. Based upon the letter from John’s therapist, Davidoff, mother’s attorney requested a contested hearing. He informed the court that mother would seek to establish the section 366.26, subdivision (c)(1)(A), exception to the termination of parental rights. The court responded that the section 366.26, subdivision (c)(1)(A), exception required more than bonding; the law also required mother to show that she had consistently visited and that she had a parent-child relationship with John.
Counsel also advised the court that mother was visiting John once a week. Counsel also stated that with respect to some visits, the foster mother did not make John available. The juvenile court was concerned about therapy and visitation. The court continued the matter for a contested hearing. ~(CT 1010)~ The court ordered the DCFS to “cite” in Patricia H. for questions by the court. ~(CT 1010)~ The court also ordered mother to return and warned her that if she was not present, the court would proceed without her.
27. The February 8, 2007, Section 366.26 Hearing
The February 8, 2007, hearing commenced at 10:08 a.m. Mother was not present. Counsel for mother, however, informed the court that mother had called maternal grandmother to state that she was on her way to the court.
The foster mother, Patricia H. was present, but John was not. The DCFS submitted to the court a copy of the citation served on Patricia H. It indicated that she was to bring John to court.
Based upon the facts that mother and John were not present, counsel for mother requested a continuance. The court denied the request, stating: “This is second call. Mother was ordered here at 8 o’clock in the morning. It’s now 10:15. She’s not present. There are no grounds for a continuance. [¶] . . . [¶] Again, it’s 10:15. I don’t know how long mother would have expected us to wait.”
The court proceeded with the hearing and admitted a number of DCFS reports into evidence. The court then inquired why Patricia H. did not bring John to court. She responded that his school was conducting testing, which was important.
The court explained that court orders were not to be disobeyed. The court then stated that the matter would be continued to have John present. At that point, John’s attorney stated that she did not need to have him present. The attorney stated that she interviewed John on January 10, 2007, about issues to be raised at the section 366.26 hearing. The court then asked about the evidence that John was not in counseling and that he was intimidated and sad in the home of Patricia H. Counsel responded that John indicated he was happy in the home. She also stated that John was too young to address the issue as to why therapy was not occurring.
Counsel for mother, Parks, stated that he had no evidence to present because he did not have the assistance of his client. In response to the court’s inquiry as to whether any party intended to call John as a witness, counsel for mother stated that if mother were present, he would want to call John as a witness. Counsel then stated that he did not have a legal basis to prevent the court from proceeding with the hearing and reiterated that he had “no legal objection.” He did state, however, that mother had successfully reunited with John and that she had a significant bond with John. The court responded that it did not have evidence of the mother’s bond with John.
The juvenile court found, by clear and convincing evidence, that John was likely to be adopted. The court found it would be detrimental to return John to mother. The court terminated parental rights. The court found John’s placement was necessary and appropriate. The court selected adoption as John’s permanent plan.
In conclusion, the juvenile court noted that mother never called counsel and she did not call the court. At 10:27 a.m., the court adjourned the matter. Mother timely filed a notice of appeal.
28. Mother’s Habeas Petition
On July 9, 2007, mother filed a petition for a writ of habeas corpus asserting that her trial counsel engaged in ineffective assistance of counsel. In support of her petition for a writ of habeas corpus, mother submitted a declaration to this Court. There, mother declared that prior to the January 10, 2007 hearing, she was having trouble with visitation. Mother declared that Patricia H, the foster parent, cut visits short and did not allow full visits. Mother also stated that Patricia H. did not appear with John for several scheduled visits. Mother telephoned Patricia H., who stated that she could not come because John had an appointment or the time was not convenient. Mother explained that she had arranged with her employer to take time off every Wednesday, and that the behavior of Patricia H. was upsetting because mother had a close bond with John.
Mother also declared that she repeatedly called the assigned social worker to report troubles with visitation. Mother also stated that she left a message for Frank Lopez, the social worker’s supervisor. According to mother, neither the social worker nor Supervisor Lopez returned her calls.
In her declaration, mother noted that she appeared for the January 10, 2007, section 366.26 hearing. She explained that at that hearing, she requested a full contested hearing to fight to retain parental rights. She also noted that John’s therapist had stated that John was sad in the home of Patricia H. and intimidated by her. Mother explained the therapist’s report and her problems with visitation were the reasons that she wanted a section 366.26 contested hearing.
Mother declared that following the January 10, 2007, hearing, her attorney, Henry Parks, stated that he would try to obtain a report from John’s therapist and that he was going to have her testify at the contested hearing regarding mother’s bond with John. Mother stated that she never told attorney Parks that she was willing to give up her parental rights.
Mother also declared that she intended to appear for the February 8, 2007, hearing. Mother explained that her car broke down on the 710 freeway, four blocks from the courthouse. Mother located a pay phone off the freeway and telephoned maternal grandmother. Mother knew that maternal grandmother was at the courthouse. Mother arrived at court just after the juvenile court had finished the hearing. Attorney Parks informed mother that the court had terminated parental rights.
Attorney Parks also submitted a declaration as part of mother’s writ petition. He declared that on January 10, 2007, he appeared with mother to set the matter for a contested hearing. Parks declared that the basis for requesting a contested hearing was mother’s bond with John, the letter from John’s therapist that John was sad and intimidated, and the problems mother had with arranging visitation.
Attorney Parks further declared that he did not contact John’s therapist prior to the February 8, 2007 hearing. In addition, Parks did not discuss with John’s therapist the contents of the therapist’s report or mother’s assertions regarding visitation. Moreover, Parks did not interview the social worker prior to the contested hearing and did not call her as a witness. Parks also declared that he had “no reason to believe that [mother] did not oppose the termination of her parental rights . . . .”
CONTENTIONS
In her appeal, Mother contends the order terminating parental rights must be reversed because (1) the juvenile court did not conduct a hearing pursuant to section 366.22 or make critical findings prior to scheduling the section 366.26 hearing; (2) the DCFS did not provide mother with reasonable reunification services from August 2005 to March 2006; (3) the juvenile court abused its discretion by failing to give mother a brief continuance on the morning of the section 366.26 hearing; and (4) the juvenile court abused its discretion by failing to hear testimony from John and the foster mother, Patricia H., to determine John’s best interests.
In the petition for writ of habeas corpus, mother contends that she was denied effective assistance of counsel. Specifically, mother contends that counsel did not assert any defense to the termination of parental rights, and did not assert the section 366.26 subdivision (c)(1)(A) exception to the termination of parental rights. Mother contends that there was no tactical basis for counsel’s omissions and had counsel asserted a defense, the court would not have terminated parental rights.
Additionally, mother contends there was ineffective assistance of counsel because her counsel did not contact or interview John’s therapist regarding her report or mother’s claims regarding visitation and that counsel did not interview or call the social worker to the stand.
Because we conclude that the juvenile court erred by failing to conduct the section 366.22 18-month review hearing, we have no occasion to address: (1) whether the juvenile court abused its discretion by failing to give mother a brief continuance on the morning of the section 366.26 hearing; (2) whether the juvenile court abused its discretion by failing to hear testimony from John and the foster mother, Patricia H., to determine John’s best interests or (3) the issues raised in mother’s petition for writ of habeas corpus.
DISCUSSION
1. The Juvenile Court Erred by Failing to Conduct a Hearing Pursuant to Section 366.22
Mother asserts that the trial court erred by failing to conduct an 18-month review hearing pursuant to section 366.22. Specifically, mother asserts that by failing to conduct the hearing, the juvenile court prohibited mother from litigating whether reunification services were reasonable or should have been terminated and whether it was detrimental to return John to mother’s care. We agree that the trial court prejudicially erred by failing to conduct a hearing pursuant to section 366.22.
The 18-month review hearing is a critical juncture in dependency proceedings. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015.) It is at this stage of the proceedings that critical decisions are made concerning parental rights. (Ibid.) The juvenile court must either embrace or forsake family preservation at this point in the proceedings. (Ibid.)
As explained in Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, “ ‘[a]t this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.’ [Citations.] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ ” (Id. at p. 311.) Section 366.22, subdivision (a), provides that “[i]f the child is not returned to a parent . . . at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child.” (§ 366.22, subd. (a).)
In David B. v. Superior Court (2006) 140 Cal.App.4th 772, the court explained: “Family preservation, which necessarily includes family reunification services, is the primary focus during the first 12 to 18 months of dependency proceedings. [Citations.] ‘ “During this time, the parent has the best opportunity he or she ever will have to make the strongest case possible in favor of returning the child to parental custody. Thus, review hearings represent one of the ‘[s]ignificant safeguards . . . built into the current dependency scheme.’ [Citations.]” ’ [Citation.] ‘[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over the child’s need for stability and permanency.’ [Citation.] However, ‘[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ ” (Id. at p. 778.)
Section 366.22, subdivision (a), contains a statutory presumption the child will be returned to parental custody, unless the court finds that return of the child would create a “substantial risk of detriment to the . . . physical or emotional well-being of the child.” (§ 366.22, subd. (a); Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 311.) The burden is on the DCFS to establish detriment. At a 366.22 hearing, the burden is also on the DCFS to establish that it provided reasonable reunification services to the parent. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
In this case, on March 3, 2004, the court ordered John placed with mother. At that hearing, the juvenile court vacated the order scheduling a section 366.26 selection and implementation hearing. Thus, during the summer of 2005, when the DCFS re-detained John, the case was not in the permanency planning stage. There was no pending section 366.26 selection and implemental hearing.
Because the juvenile court vacated the order scheduling the section 366.26 hearing, the case was not in the permanency planning stage in February and March 2006. Thus, contrary to the contention of the DCFS, section 366.3 did not apply to govern the juvenile court’s conduct of judicial review hearings.
Then, following mediation of the section 342 supplemental petition, on August 26, 2005, the juvenile court ordered that mother was to receive an additional six months of reunification services, including domestic violence, anger management, a 52-week domestic violence program and conjoint counseling with John. The juvenile court ordered John to be in counseling and when his therapist deemed it appropriate, then the DCFS was to provide conjoint counseling for John and mother. The court then scheduled a section 366.22 hearing for February 2006.
At the February 24, 2006, hearing, after discussing the matter with counsel, the juvenile court determined that the hearing was a review of permanent plan hearing instead of a judicial review hearing pursuant to section 366.22. The court then continued the matter and ordered the DCFS to file a supplemental report addressing efforts to find an adoptive home, why John was not in counseling, and why mother was given additional reunification services.
At the March 27, 2006, uncontested hearing, the court stated that the case was set for an R.P.P., a review of permanent plan hearing The court then proceeded to make findings under section 366.3 for review of a permanent plan. The court found that the DCFS had provided adequate services and that reasonable efforts had been made to move the case to permanence. The court then set a section 366.26 hearing for July 14, 2006.
Despite the March 27, 2006, minute order, at the hearing, the juvenile court did not conduct an 18 month review hearing. It did not find that return of John to mother’s custody would create a substantial risk of detriment and did not make an evaluation of the reasonableness of the reunification services provided to mother during the prior six-month time period.
A finding of reasonable reunification services is not a precondition to ordering a section 366.26 hearing. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at pp. 1015-1016.) Conducting an 18-month review hearing, however, is required to determine whether return of John to mother’s custody would create a substantial risk of detriment to the physical or emotional well-being of the child. Conducting an 18-month review hearing when family reunification services have been granted is required so that a court can determine whether, under the facts of the case, it should exercise its discretion under section 352, which allows continuances, to order additional family reunification services because the services provided were deficient. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at pp. 1015-1017.)
Thus, mother was never permitted the opportunity to litigate whether services were reasonable, whether she should be allowed additional services under section 352 or whether John would face substantial risk of detriment if returned to mother’s care. In addition, the court did not provide mother with notice that she could seek writ review of the order setting the section 366.26 hearing.
The failure to conduct an 18-month review was prejudicial. The burden of proof was on the DCFS to show that reunification services were reasonable and that John would face substantial risk of detriment if returned to mother’s care. The court’s decision to treat the March 27, 2006, hearing as a review of permanent plan hearing relieved the DCFS from the burden of establishing these critical findings.
The juvenile court’s error cannot be remedied by implying the findings that the court did not make following a contested hearing. Omitted findings are not implied where the juvenile court did not proceed pursuant to the correct code section. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848-849 [reviewing court will not make omitted finding of detriment]; and In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824-1825.)
In any event, on this record, we can not make the implied finding that the DCFS provided reasonable reunification services. The burden was on the DCFS to show that it provided reasonable services. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) In David B. v. Superior Court, the court stated: “As this court has previously explained, ‘to make the requisite findings, the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed).’ ” (Id. at p. 794.)
Pursuant to the mediation agreement, on August 26, 2005, the DCFS agreed to provide and the court ordered mother to receive family reunification addressing the issues which led to the June 2005 detention, including: therapy with a DCFS approved therapist with expertise in domestic violence and child protection, as well as a 52-week domestic violence program and anger management counseling also intended to address issues of stress and conflicts. Additionally, the court ordered John into counseling and ordered conjoint counseling at the discretion of John’s therapist.
By the time of the next hearing on February 24, 2006, mother was not able to show that she had participated in these services. The DCFS report explained that mother had moved to Pomona and was not able to find services she could afford. In response, the social worker stated that she provided mother with referrals and a bus pass. The record does not contain the referrals, nor any indication of when the referrals were given. The record does not show that the social worker maintained reasonable contact with mother during this time period. In addition, the record does not show that under the circumstances the social worker made reasonable efforts to assist mother in areas where compliance proved difficult, such as timely finding affordable services in Pomona. On this record, the DCFS has not shown that providing a bus pass and a list of referrals was sufficient to assist mother.
More importantly, however, was the issue of John’s counseling. During this six-month period of family reunification services, there is no evidence that any efforts were made to place John in counseling. As a result, mother could not participate in conjoint counseling with John. Given this deficiency, the record does not support the conclusion that reunification services were reasonable. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971-972 [reasonable services not provided because DCFS failed to place the child into counseling, which precluded conjoint counseling and visitation]; and In re Mark L. (2001) 94 Cal.App.4th 573, 584-585 [reasonable reunification services not provided between six- and 12-month review hearings because child’s counselor was precluded from discussing counseling which would have allowed father and child to initiate court-ordered conjoint counseling.].)
Finally, the DCFS had evidence that the foster mother, Patricia H., was making it difficult for mother to have visitation with John. The social worker noted that John was bonded with mother and that if he did not have visits with mother, his school behavior deteriorated and he appeared sad. Given the social worker’s knowledge under these circumstances that Patricia H. was making visitation difficult, pursuant to David B. v. Superior Court, the DCFS had an affirmative responsibility to make reasonable efforts to assist mother in this aspect of the reunification plan.
In conclusion, this record does not contain substantial evidence that the DCFS provided reasonable reunification services during this six-month time period. Thus, had the juvenile court conducted a proper 18-month review hearing, it would have had discretion under section 352 to continue reunification services to remedy the defects in services prior to proceeding to the permanency stage. By failing to conduct an 18-month review hearing, the juvenile court was prohibited from employing this procedure to remedy any of the problems with the services provided.
We reject the DCFS contention that mother waived her right on appeal to challenge the fact that she was not provided with a proper 18-month review hearing. Due process demands that the DCFS provide mother with an appropriate 18-month review hearing. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) The waiver rule is not enforced where it conflicts with due process. (In re Gladys L., supra, 141 Cap.App.4th at p. 849.)
2. Conclusion
Because the juvenile court failed to conduct a proper 18-month review hearing, the March 27, 2006, order scheduling the section 366.26 hearing must be reversed. (See In re Gladys L., supra, 141 Cal.App.4th at p. 849.) Because of this failure, the court did not make appropriate detriment findings to schedule a section 366.26 selection and implementation hearing. Thus, the February 8, 2007, order terminating parental rights is also reversed.
This case is remanded for the juvenile court to conduct the required eighteen month review hearing. At the review hearing, the juvenile court can consider all relevant evidence, including new evidence which may have developed since this appeal was undertaken. (David B. v. Superior Court, supra, 140 Cal.App.4th at p. 780.)
DISPOSITION
The juvenile court’s February 8, 2007, section 366.26 order terminating parental rights and selecting adoption as the permanent plan is reversed. The March 27, 2006, order scheduling the section 366.26 hearing is also reversed. The matter is remanded to the juvenile court with direction to conduct a section 366.22 18-month review hearing. No costs are awarded on appeal. The writ petition is denied.
We concur: KLEIN, P. J. ALDRICH, J.
At the hearing, the court stated: “Ostensibly, this case is set for a .22.” DCFS Counsel responded: “No, it’s not. That’s wrong. It’s an R.P.P. Mother was out of [family reunification] when we redetained.” The court responded: “The minute order says [Review of Permanent Plan] and .22. [¶] . . . [¶] In that 342, I ordered mother to be in therapy with – I think she was at the .22 on the 300 when we set the 342.” DCFS counsel stated: “No. [¶] . . . [¶] The 342 was sustained, and you terminated the [home of parent order] and went to suitable placement.” The Court responded: “But I also ordered mother to be in conjoint counseling with [John].” Counsel for DCFS stated: “Right. Because you felt that it was in the best interest of [John], not because you were giving her [family reunification].” Counsel for mother interjected: “But he did give her [family reunification].” To this DCFS counsel stated: “No, he didn’t give her [family reunification]. It’s [a Review of Permanent Plan]. He couldn’t give her [family reunification] because if you look at – June, 2002, was the original petition, so how are you going to give [family reunification] in August of [2005]?”