Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of San Bernardino County. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed, Super.Ct.No. J209043.
Jennifer Mack, under appointment by the Court of Appeal, for Minor and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent, San Bernardino County Department of Children’s Services.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Respondent, T.F.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Respondent, P.L.
OPINION
RAMIREZ P. J.
INTRODUCTION
Minor M.F. appeals the order of the juvenile court granting T.F. (mother) an additional six months of reunification services. We will dismiss the appeal as moot.
FACTS AND PROCEDURAL HISTORY
Mother was incarcerated in the West Valley Detention Center awaiting extradition to Wyoming on a federal probation violation charge when she gave birth to M.F. in June 2006. The San Bernardino County Department of Children’s Services (the department) removed the infant on June 25, 2006, and placed her in foster care. In 2001, mother had been convicted of drug trafficking and sentenced to 63 months in federal prison. She was eventually released to a halfway house in Casper, Wyoming, where, in 2005, she met father and soon became pregnant. On January 1, 2006, the two fled Wyoming and went to Arizona. On May 9, 2006, about six weeks before M.F.’s birth, they were arrested in Tucson.
By her own report, mother had a history of drug and alcohol abuse and her criminal record included convictions for driving under the influence of alcohol and conspiracy to distribute methamphetamine. Her three older children live with their maternal grandmother. No relative was available to care for the baby.
On June 27, 2006, the department filed a Welfare and Institutions Code section 300 petition alleging (1) that mother had a substance abuse history, which negatively affected her ability to parent, and (2) that she was incarcerated for an unknown period of time and had been unable to make appropriate arrangements for her child’s care. (§ 300, subds. (b), (g).) The juvenile court detained M.F. on June 28 and ordered the department to provide reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The jurisdiction/disposition (J/D) report of July 17, 2006, recommended that reunification services be provided to mother. However, because she was incarcerated and it would be difficult for her to comply, the social worker planned to wait to provide referrals and services until after her release. The report emphasized mother’s poor lifestyle and recommended that she receive a psychological evaluation. She would need to have intensive individual counseling; demonstrate her ability to lead a crime-free life; obtain and maintain a legal source of income; learn proper parenting skills; and establish a suitable and stable home environment. M.F.’s transition back to mother, the report said, should be “slow and gradual.” M.F. was doing well in her foster home.
The case plan attached to the J/D report included a variety of service objectives: (1) that mother show ability and willingness to have custody of her child; (2) that she be able to complete job applications and participate in job interviews; (3) that she comply with all orders of the court; (4) that she maintain a relationship with the child by following the conditions of the visitation plan; (5) that she stay sober and free of alcohol and drug dependency; (6) that she have and keep a legal source of income; (7) that she not break the law; (8) that she parent her child and meet the child’s physical and emotional needs; (9) that she accept responsibility for her actions; (10) that she participate in counseling; and (11) that upon release, she submit to random drug testing and if any tests were positive she complete a substance abuse program.
At a contested J/D hearing on September 13, 2006, the court found the allegations in the petition true; removed M.F. from parental custody; and again ordered the department to provide reunification services as outlined in the case plan, amended to include a parenting class, and drug testing and treatment upon release. There was to be no visitation until mother was out of custody. The six-month review hearing was set for March 13, 2007.
Over the next six months, while incarcerated in California and at the Federal Detention Center in Seattle, Washington, mother participated in and/or completed numerous classes and programs: mother and infant support, domestic violence, parenting, drug abuse, Alcoholics Anonymous, Narcotics Anonymous, stress management group therapy, victim impact, and vital statistics. She requested psychological counseling and was put on the waiting list for individual counseling. She took job preparation courses, including resume writing, job search and interview skills, and money management; she participated in a mock job fair. She worked as a tutor in the education department of the federal prison facility and received a “Worker of the Month” certificate in recognition of her performance. She wrote numerous letters to service agencies trying to arrange for assistance once she was released from prison. On six separate occasions, she either wrote to her children or talked to them by telephone. She sent letters and drawings to M.F., even though the child was an infant. Mother believed that taking the drug abuse class might enable her to be released to a halfway house as early as January 2008.
Despite these efforts, the department’s six-month status review report (§ 366.21, subd. (e)) declared that “The mother . . . [has] remained incarcerated, therefore [she was] unable to comply with provided/offered services from the [d]epartment.” Because of her continued incarceration, the report recommended that services be terminated and a section 366.26 selection and implementation hearing be set with adoption as the permanent plan .M.F. continued to do well in foster care and the foster parents were willing to adopt her. While it does not appear from this record that the department actually offered mother any services, she was requesting that services be continued to the section 366.22, subdivision (f), 12-month review hearing.
At the contested six-month review hearing on April 10, 2007, the court received documentary evidence regarding mother’s completed courses and allowed her to testify by telephone. Mother told the court that she had not seen M.F. since the child’s birth. She was scheduled to be released to a halfway house on March 9, 2008, but would not be allowed to have M.F. with her there. She admitted that she would be unable to demonstrate her ability to meet M.F.’s physical and emotional needs until after May 21, 2008, the date she would leave the halfway house. No one objected to the admission of any of mother’s documentary evidence or disputed any of her testimony.
In closing argument, counsel for the department agreed that mother had participated regularly in services, but argued that “It is unfair for a court to hold a social worker somehow responsible for assessing a parent’s ability to parent or benefit from [services] . . . while the parent remains in an incarcerated setting during the entire course of reunification.” Counsel felt that “in hindsight” the department probably should have recommended denying services to mother at the time of disposition. Counsel for the minor also admitted that mother had “done all that she probably can do while incarcerated,” but urged that it was in the “child’s best interest” for the court to terminate services and set a section 366.26 hearing.
The court found that mother was participating in “all of the components of her case plan that are available to her as well as making efforts on her own to participate in other services and programs available through her place of incarceration in an attempt to position herself to take custody of this child.” Over objection from the department and M.F.’s trial counsel, and although the court said it could see no probability for M.F.’s return to mother within the statutory time frames, it ordered another six months of reunification services. The court invited counsel to appeal the order, but explained that it believed it was required to give mother the additional time partly because of our nonpublished opinion in Terence S. v. San Bernardino Superior Court (DCS) (Terence S.) (Dec. 15, 2006, E041386). On April 16, 2007, minor’s counsel filed a notice of intent to appeal the order extending services.
Mother has asked us to take judicial notice of the minute order of August 29, 2007, as well as the Terrance S. opinion. We initially reserved our ruling regarding the requests, but hereby grant them both, noting that in Terence S. we reversed a decision by this same trial court terminating services at the 12-month review hearing for an incarcerated parent. Although Terence S. is factually distinguishable because the parent there was due to be released before the expiration of the 18-month reunification period, our analysis of the criteria for termination of services at the 6- and 12-month review hearings remains unchanged.
At the 12-month review hearing on August 29, 2007, and based on the department’s status review report, the court found that while mother’s “progress toward alleviating or mitigating the causes necessitating placement” had been substantial, “there is not a probability the minor will be returned to the parents/guardians within the statutory time frames.” The court therefore terminated reunification services and set a section 366.26 hearing for December 27, 2007.
We do not have a copy of this report.
DISCUSSION
M.F. argues on appeal that because mother was not due to be released until after the expiration of the 18-month statutory time limit, the order extending services unnecessarily delayed the minor’s permanency and should be reversed. Mother replies that because the services have already been rendered, and because the court terminated services at the next hearing, the appeal is moot. Father, P.L., has filed a brief supporting mother’s contention, but he is not a party to this appeal. The department agrees with minor and argues that even if the propriety of the order extending reunification services to a parent who is scheduled to be incarcerated beyond the 18-month statutory limit is moot in M.F.’s case, we should nonetheless issue an opinion to “guide” the trial courts because the matter is capable of repetition yet escaping review.
Mootness:
An appellate court’s jurisdiction extends only to actual controversies for which it can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events have rendered the questions raised in the appeal moot, then the action no longer presents a justiciable controversy. (In re Christina A., supra, at p. 1158.) When an appeal has become moot, it is our duty to dismiss it. (In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204.) An exception may be made when the question raised is an issue of continuing public importance, which is capable of repetition, yet evading review. (In re Christina A., supra, at p. 1158.) This can sometimes occur in dependency cases where an appellate court may be unable to obtain the record and briefing by the parties in time to decide an important issue before it becomes moot in a particular case. (Ibid.)
There is no doubt that the question raised in M.F.’s appeal is moot in her case. The disputed services have already been rendered and we cannot rescind them. If the minor had challenged the order extending services via a timely-filed writ petition, we might have been able to review the matter before the passage of time made the issue moot. (In re Pablo D. (1998) 67 Cal.App.4th 759, 761.) But she did not. And because the juvenile court has now terminated services, the action no longer presents an ongoing justiciable controversy. And as we will explain, we do not find the question of the propriety of extending services at the six-month review hearing for an incarcerated parent, who is regularly participating in her case plan but is not presently scheduled to be released until after the expiration of the 18-month statutory reunification period, an issue we must address under the exception to the mootness rule. We will therefore dismiss the appeal.
Even if the matter were not moot, however, we would not find the order extending services erroneous.
Reunification Services to an Incarcerated Parent:
We review the decisions of the juvenile court regarding reunification services for substantial evidence to support the order. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626.) This means “[w]e must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
The focus of dependency law is to preserve the family as well as to provide for the safety and physical and emotional well-being of the child. (§ 300.2.) To this end, whenever a child is removed from the custody of her parent, the juvenile court must order reunification services for the child and the child’s parents. (§ 361.5, subd. (a).) When the child is under the age of three at the time of removal, services may not exceed six months from the date the child entered foster care. (§ 361.5, subd. (a)(2).) At the six-month review hearing, however, a court may not terminate services and schedule a section 366.26 selection and implementation hearing unless it finds by clear and convincing evidence that the parent has failed to participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e); Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 613.)
A child is deemed to have entered foster care on the earlier of either the date of the jurisdictional hearing or 60 days after the child was removed from the physical custody of her parent. (§ 361.5, subd. (a)(3).) In this case, it appears that the relevant date was August 25, 2006.
By the time of the 12-month hearing, the focus has shifted from the efforts of the parents to the provision of stability for the child, and services may be extended to 18 months only if the court finds that there is a substantial probability the child will be returned to the parent at the end of the extended period. (§ 361.5, subd. (a).) However, the juvenile court retains discretion to continue proceedings beyond the 18-month limit in rare instances, as when the agency has failed to provide services or the parent has complied with the case plan to the extent possible but has been institutionalized or incarcerated for much of the reunification period. (§ 352; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792-1793, 1798-1799; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1779; In re Michael R. (1992) 5 Cal.App.4th 687, 694-695.)
Subject to the applicable statutory time limits, an incarcerated parent is entitled to reunification services unless the juvenile court finds by clear and convincing evidence that services would be detrimental to the child. In determining detriment, the court shall consider, among other things, the age of the child, the degree of parent-child bonding, the length of the parent’s sentence, the nature of the crime, and the degree of detriment to the child if services are not offered, and “any other appropriate factors.” (§ 361.5, subd. (e)(1).) The statute “reflects a public policy favoring the development of a family reunification plan even when a parent is incarcerated.” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011-1012.)
Under the provisions of subdivision (b) of section 361.5, services may initially be denied outright to a parent for any of 15 separately listed reasons, most of which relate, directly or indirectly, to the infliction of abuse. The fact that a parent is incarcerated for an undetermined time period, standing alone, is not one of the specified reasons for which services may be denied.
Substantial evidence and the principles of dependency law supported the court’s reunification services orders at every stage of this case. At its inception, the department properly recommended that mother be provided services, although it apparently did not actually plan to provide her with any until after her release. Moreover, despite county counsel’s point in closing argument, it does not appear that mother could have been denied services at the beginning because there was no evidence that any of the 15 exceptions in subdivision (b) of section 361.5 applied to her. Thus, the court’s initial order of reunification services was appropriate.
It is possible that the exceptions of a history of termination of services or permanent severance of parental rights (§ 361.5, subd. (b)(10), (b)(11)) in relationship to mother’s loss of the custody of her three older children might have applied, but the department presented no evidence to that effect.
Nor, given mother’s record of extraordinary efforts, could the court have terminated services at the end of the first six-month service period. Mother had taken and completed what we imagine must have been every single remedial class and program available to her in prison. She had obtained a job in the education department at the federal facility and had received a merit certificate as “Worker of the Month.” At the hearing, she testified that she was attending a weekly “woman’s process group” and all available ongoing programs. She admitted she had not had contact with M.F. since the infant’s birth and so had not been able to demonstrate that she could fulfill the case plan objective of meeting the child’s physical and emotional needs. But she testified that she had met the objectives of remaining sober and obtaining employment.
As the court found, because mother participated regularly in reunification services and met the objectives of her case plan to the best of her ability throughout the first six months of the reunification period, she was entitled to the extension of services to 12 months. It is true that she had been unable to demonstrate her ability to meet M.F.’s physical and emotional needs, but—to paraphrase the department’s own argument—it would be unfair for a court to hold a mother somehow responsible for demonstrating to a social worker her ability to parent while the mother remained incarcerated and had been permitted no contact with the child.
It is also true that by the time of the review hearing it was apparent that mother was not scheduled to be released until five months after the expiration of the 18-month reunification period. Thus there was not a substantial probability that M.F. could be returned to her custody by that date. But substantial probability of return is not the relevant criterion at the six-month hearing. Parental effort and participation in reunification services is the standard. (§ 366.21, subd. (e).) Because of her extraordinary efforts, the court could not have made a finding that she had failed to participate; nor could it arbitrarily decide to impose the standard for terminating services that is statutorily specified for the 12-month hearing.
“In In re Brittany S. [(1993)] 17 Cal.App.4th [1399,] 1402, the court commented, ‘[w]hile “use a gun, go to prison” may well be an appropriate legal maxim, “go to prison, lose your child” is not.’ By this reasoning, it might seem to follow that the mother of a dependent child should not lose the child because she is sentenced to a term of more than 18 months . . . . But sections 366.21 and 366.26 in fact allow only limited avenues for avoiding this result.” (In re Monica C. (1995) 31 Cal.App.4th 296, 308.) Mother was obviously seeking to make her way through one of those limited avenues.
We cannot believe that the Legislature was unaware of the potential conflict between its mandate for services to incarcerated parents and the 18-month reunification timeline. And we see much wisdom in the law as it stands. For one thing, life is uncertain. Even prison sentences are not written in stone and it is always possible that a sentence may be commuted and a parent released early. Apparently, this is what mother was hoping might happen when she signed up for the drug rehabilitation classes she was not otherwise required to take until after her release. Other expected postremoval events are also not written in stone. On rare occasions, when a parent is participating regularly, a court may elect to exercise its discretion to continue a matter beyond the 18-month deadline. (§ 352.) This is what happened in In re Elizabeth R., supra, 35 Cal.App.4th at page 1798, in In re Dino E., supra,6 Cal.App.4th at page 1779-1780, and in In re Michael R., supra, 5 Cal.App.4th at page 695. And, of course, governments sometimes elect to relieve overcrowded prison conditions by instituting early release programs.
For another thing, to automatically deny or terminate services to incarcerated parents would engender a number of perverse incentives, both for departments of social services and for incarcerated parents. Agencies may be tempted to completely ignore such parents, to deny them entry into even the “limited avenues” available, and to hastily place their children with adoptive families that social workers find more suitable than biological families. Incarcerated parents may be overwhelmed with hopelessness and bypass opportunities for rehabilitation and reunification from which they and their children might greatly benefit.
Finally, we cannot see that delaying the adoption of a nine-month-old child for an additional six months, to give the participating incarcerated parent the statutorily-mandated services to which she is entitled, generates such “detriment” to anyone that those services must be prematurely cut short. Section 300 nowhere says anything about terminating services to such a parent at the time of the six-month review and we do not presume to “guide” the trial court in that direction.
In sum, the law is clear. We do not find the question of extending reunification services to an incarcerated parent who is participating in her case plan but is not scheduled for release until after the expiration of the 18-month statutory reunification period an exception to the rule of mootness.
DISPOSITION
The appeal is dismissed as moot.
We concur: HOLLENHORST J., GAUT J.