Opinion
G054816
06-28-2017
J.C., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
Juvenile Defenders and Lawrence A. Aufill for Petitioner. No appearance by Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DP0791) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Petition denied. Juvenile Defenders and Lawrence A. Aufill for Petitioner. No appearance by Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre Deputy County Counsel, for Real Party in Interest.
V.C. was declared a dependent of the juvenile court following her mother's physical altercation with her landlord, and her father's failure to provide V.C. with support. After 18 months of services, J.C. (mother), was unable to reunify with V.C. Mother petitions for extraordinary relief to vacate an order entered at a status review hearing finding reasonable services had been provided to mother, terminating reunification services, and scheduling a permanency planning hearing under Welfare & Institutions Code section 366.26. Mother contends the court erred in determining: (1) there was a substantial risk of detriment to V.C. if she were returned to mother's care; and (2) she was not provided reasonable reunification services in Mandarin Chinese, her native language. We disagree and deny the petition.
All statutory references are to the Welfare & Institutions Code unless otherwise stated.
FACTS
Background, Detention, and Jurisdiction
Mother was 35 years old in 2015 and born in China. She came to America and lived with a Chinese landlord while pregnant. Mother gave birth to V.C. in Los Angeles County. Father still lives in China and never made an appearance in the case.
On July 31, 2015, mother was arrested for mayhem (Pen. Code, § 203) after a tussle with her landlord. As a result, the Los Angeles Department of Children and Family Services (DCFS) placed V.C. in foster care. DCFS's special unit Asian Pacific office filed a juvenile dependency petition under section 300, subdivision (a) (serious physical harm) and (b) (failure to protect) in Los Angeles County Superior Court. Shortly thereafter DCFS filed a first amended petition (FAP) adding an additional count under subdivision (g) (no provision for support). The FAP is labeled, "Chinese: Mandarin-speaking Case."
As to the subdivision (a) count related to mother, the FAP alleges on July 29, 2015, mother engaged in a violent physical altercation with an unrelated female in which mother forcefully bit the unrelated female's arm in the presence of V.C., inflicting a bleeding laceration. The unrelated female grabbed mother's neck and choked mother inflicting scratches to mother's neck. The unrelated female grabbed mother's arm inflicting bruises. Mother slapped the unrelated female's face, inflicting redness and mother grabbed the unrelated female's wrist inflicting redness and swelling. Mother sustained bruises on her legs and swelling on her left toe. Such violent conduct of mother, in the presence of V.C., endangers V.C.'s physical health and safety, placing the child at risk of serious physical harm, damage, and danger.
The subdivision (b) and (g) counts relate to father's failure to provide the child with the necessities of life.
On August 4, 2015, mother was released and her mayhem case was dismissed. Still, on August 6, 2015, the court ordered V.C. detained but gave DCFS discretion to release V.C. to mother. Mother was given monitored visits for a minimum of three times per week or three hours per week. At the jurisdiction/disposition hearing on November 12, 2015, the court sustained the FAP. The court declared V.C. a dependent of the court and ordered her removed from mother's custody. The court ordered mother to attend parenting classes and individual counseling to address case issues including child abuse awareness and stress and anger management. The court ordered DCFS to provide family reunification services to mother.
Reunification Services
The six-month review hearing took place on July 14, 2016. The court found mother was in compliance with her case plan but continued jurisdiction was necessary. The court found return of V.C. to the physical custody of mother would create a substantial risk of detriment to the physical and emotional well-being of V.C. and that placement was necessary and appropriate. The court found DCFS had complied with the case plan and reasonable services had been provided. Because mother had moved to Orange County, the court ordered the matter transferred to Orange County Superior Court with a 12-month review hearing scheduled for January 12, 2017. Orange County accepted the case on August 1, 2016. The court scheduled a case plan review for September 15, 2016 and a 12-month review for January 12, 2017.
The case plan review took place on October 11, 2016. The court directed the Orange County Social Services Agency (SSA) to refer mother to a Mandarin-speaking licensed therapist, age-appropriate parenting classes and to assess mother's visitation and make up any missed visits. Mother requested a new social worker, but the court denied the request and ordered mother to cooperate with the social worker and sign any referrals as needed.
By November 2016 mother's visits had become so problematic SSA filed a modification petition requesting suspension of visits until mother's mental health was stabilized. Mother had displayed erratic outbursts in the presence of V.C. during visits and outside of visits and made threatening statements to SSA staff face-to-face, telephonically, and via e-mail. V.C. reacted poorly before and after visits, and mother refused to participate in court-ordered services. The court granted the petition and suspended mother's visits. The court confirmed the January 12, 2017 date remained on calendar and ordered the social worker to report on mother's mental health status by the next hearing.
The hearing giving rise to this petition for extraordinary relief was conducted over seven days in March and April, 2017. We summarize the evidence adduced at the hearing.
SSA filed a 99-page status review report and an addendum report, both of which were admitted into evidence at the outset of the first day. The status review report stated mother had been given a court-ordered service plan consisting of general counseling and parenting education, but mother had made minimal progress on her services.
The social worker referred mother to free parenting classes and individual counseling services in August, September, and October 2016. While mother initially agreed to participate in individual counseling, mother declined counseling after the therapist attempted to schedule the intake appointment. Mother was to address anger management and parenting education in individual counseling. Mother would be notified if a Chinese language parenting class was located. In December 2016 the social worker referred mother to a mental health assessment. Mother refused to undergo the mental health assessment.
SSA reported mother continued to exhibit erratic and combative behavior as evidenced by her ignoring redirections during visits, making untruthful statements, making threatening remarks, and becoming verbally and physically aggressive towards SSA staff outside of visits and in V.C.'s presence. V.C. had negative reactions post-visits including clinginess, fearfulness, tantrums, biting, and waking up screaming from nightmares. She was also non-verbal during visits despite being able to speak in complete sentences at a young age.
In the addendum report, SSA stated since visits had been suspended, V.C.'s emotional and behavioral outbursts had subsided. SSA recommended the court terminate mother's reunification services and schedule a section 366.26 hearing. After SSA's reports were admitted into evidence, SSA rested.
Mother then testified with the assistance of a Mandarin interpreter. She testified when she spoke with social worker Yilin Tzeng in Mandarin she was not confident they were understanding each other. Though she studied English on and off for 10 years in China, it was all on paper with no opportunity to carry on a conversation. When she tried to communicate in English, she had miscommunications very often. Sometimes she used Google translator to send e-mails in English. She said she had participated in five group parenting class sessions in Mandarin while in Los Angeles. She did not complete the class because it was geared towards teenagers and her baby was four months old at the time and she needed help with an infant. In Orange County, every parenting class she was referred to was in English when she preferred a class in Mandarin.
When asked if she had had any contact with the social worker since October 2016, mother replied she made a phone call to her, left a message, and e-mailed her, but she never responded. She admitted e-mailing the social worker in English and Chinese. Mother then made a complaint to the manager, Kristi Fiskum. She first spoke with her in English, but she was not able to understand, so eventually they used an interpreter. With the interpreter, she felt they were able to communicate effectively.
Mother testified she believed SSA was prejudiced against her. Mother stated, "All the way from [Los Angeles] County to Orange County, all of the attorneys and social workers had not protected [her] rights and they also discriminated against [her]." Mother also stated the court ordered SSA to provide her with parenting classes in Mandarin and give her regular visits, but they did not do so. Mother alleged that after she complained, SSA canceled her visits and provided false reports to the court. They also said she had a mental disorder without any basis for their conclusion. Mother stated she could not communicate with the counselor provided because the counselor spoke "Chinese like a three-year-old." At one point, mother demanded an apology from SSA before continuing or enrolling in services, "because all the actions and their talk were illogical and [she] was very disappointed by them."
Mother called Luz Vergara to testify. Vergara was employed by SSA and supervised a unit of appeals and civil rights investigators for SSA's "Program Integrity." The Program Integrity unit investigates complaints from all the services agency programs and its contractors. Vergara investigated a complaint of discrimination by mother. She interviewed mother and SSA staff and reviewed case documentation. Vergara concluded SSA discriminated against mother by not providing her with a Mandarin interpreter to communicate with SSA. Vergara testified since mother's primary language is Mandarin, SSA should have communicated with mother in the Mandarin language at all times unless she stated it was alright to be spoken to in English. Even if a client had a conversation with someone in English, it would not mean SSA is no longer required to provide the client with an interpreter at other meetings. Each and every encounter with someone at SSA would require an interpreter if the person was not Mandarin-speaking.
During monitored visits, mother was not always provided with a Mandarin-speaking monitor. Further, Tzeng, who speaks Mandarin, did not always speak with mother in Mandarin. She spoke with her in English. After she submitted her findings, Children Family Services management or upper management was advised and it was up to them to make necessary adjustments.
Vergara authored a December 22, 2016 letter to mother setting forth the Program Integrity unit's findings of discrimination. Vergara testified mother expressed an interest in appealing the decision. The letter was to become final only upon review of an appeal by the State. At the time she testified, Vergara had not received a response from the State and the case had not yet been closed.
The letter was entered into evidence. On June 19, 2017, we granted mother's motion to augment the record to include the letter in the record on appeal.
On rebuttal, SSA called Tzeng, who testified Mandarin is her first language but she also speaks English. Although she speaks Mandarin, she cannot read or write fluently in Mandarin. She said mother never asked her to communicate only in Mandarin. However, when she spoke with mother in English, mother appeared to understand and responded in English appropriately. She e-mailed mother first in English and then later after she found an interpreter, in Chinese Traditional.
Tzeng testified she asked for visits to be suspended hoping mother would participate in individual counseling and the counselor would report back, but that never happened. The therapist attempted to schedule an intake appointment with mother, but she did not comply and gave various excuses including that she would not participate if her visits were not reinstated. Tzeng testified mother sent threatening e-mails and left a voicemail making a death threat to her and her family. She also threatened lawsuits.
According to Tzeng, mother's voicemail said she hopes Tzeng's child and family members go out in the street and get hit by a car and die.
After hearing all the evidence, the court found by clear and convincing evidence continued supervision was necessary pursuant to section 366.21, subdivision (f) and return of V.C. to mother would create a substantial risk of detriment to her safety, protection, physical or emotional well-being. The court found reasonable services had been provided or offered and mother's progress had been minimal, at best. The court ordered mother's reunification services terminated and found there were no extenuating circumstances to offer mother more services. The court scheduled a section 366.26 hearing for July 20, 2017.
In making its ruling, the court commented, "I don't think there's any doubt that there is a language barrier. It's how the language barrier is overcome that is at issue or how it is addressed that's at issue. [¶] Certainly, there's probably some miscommunication along the way, but I believe that the issue of mother's native language is not the real issue in this case." The court continued, "The theme that is portrayed throughout the testimony and throughout the reports is that mother refuses to partake in any of the services, refuses to communicate with social workers unless it's on her terms. If they don't do something she demands, she then refuses to go to counseling or to go to a parenting class or whatever's being asked of her." The court also stated, "It's not the language barrier that prevented mom from obtaining the services. It's mother's refusal to cooperate and to partake in the services." And, "So in terms of the services, the court does believe that reasonable services were provided to the mother. It wasn't an issue of a language barrier. It was an issue of mother's anger and frustration with the system that caused her to not take advantage of the services. It's that simple in this case." Finally, "The other issue is when she did have visitation with her child, there were instances that eventually caused this court to suspend the visitation because this court could not ignore the detriment that was being caused to the child."
Mother filed her petition for writ of mandate on May 12, 2017.
DISCUSSION
Detriment Finding
Section 366.22 provides following the permanency review hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child would create a substantial risk of detriment to the safety, protection, physical or emotional well-being of the child. (§ 366.22, subd. (a)(1).) The agency has the burden to establish detriment. (Ibid.) "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker's report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers of a minor parent or a nonminor dependent parent, or an incarcerated or institutionalized parent's or legal guardian's access to those court-mandated services and ability to maintain contact with his or her child; and shall make appropriate findings pursuant to subdivision (a) of Section 366." (Ibid.)
Here, the juvenile court found return of V.C. to mother would create a substantial risk of detriment to the V.C's safety, protection, physical or emotional well-being. The crucial question in considering mother's contention is whether there is any substantial evidence to support the juvenile court's finding. "'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.'" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.'" (Ibid.) Mother's contentions require her to "'demonstrate that there is no substantial evidence to support the challenged findings.'" (Ibid.) "A recitation of only [mother's] evidence is not the 'demonstration' contemplated under the above rule." (Ibid.) Accordingly, if as mother here contends, "'some particular issue of fact is not sustained, [she is] required to set forth in [her] brief all the material evidence on the point and not merely [her] own evidence. Unless this is done the error is deemed to be waived.'" (Ibid.)
Mother's argument the court erred in finding detriment is woefully inadequate. She devotes only two paragraphs to the factual portion of her argument, citing to only two pages of a 1400-page record. On this meager presentation, we deem mother's challenge to the court's detriment finding waived.
Reasonableness Of Services
As we explained in Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1501 (Earl L.), "Family preservation is the priority when dependency proceedings commence. [Citation.] 'Reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." [Citation.]' [Citation.] Therefore, reasonable reunification services must usually be offered to a parent. [Citation.] SSA must make a '"'good faith effort'"' to provide reasonable services responsive to the unique needs of each family. [Citation.] '[T]he plan must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding. [Citation.]' [Citation.] An effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success. [Citation.] The adequacy of SSA's efforts to provide suitable services is judged according to the circumstances of the particular case. [Citation.] '[T]he 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 . . . .'"
Mother argues she was not provided reasonable reunification services because SSA denied her a Mandarin-speaking interpreter and social worker. Mother's most persuasive evidence is contained in Vergara's testimony and the December 22, 2016 letter she authored. Vergara wrote SSA's investigation into mother's discrimination complaint revealed there is evidence to support a conclusion SSA employees discriminated against mother on the basis of her national origin (including language). SSA found evidence to support the allegations employees discriminated against mother by not providing her with a Mandarin interpreter; "not understanding [her] when [she] spoke in English and cancelling a visit with [V.C.] because of the misunderstanding; refusing to provide [mother] with a Mandarin speaking social worker and forcing [her] to make everyone understand what [she] was saying; insisting [she] speak in English no matter how much [she] complained . . . ." The letter is consistent with mother's testimony she had difficulty communicating with social workers and with the court's finding there was probably some miscommunication along the way. Nonetheless, the court found the difficulty in communicating with social workers did not result in a loss of services but that mother refused to participate in parenting and counseling services of her own volition.
Section 366.22, subdivision (a)(3) provides in part, "The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian." Here the court made the finding as required. However, we need not reach the issue whether mother was provided with reasonable reunification services, because the case had already reached the 18-month stage when services were terminated and mother did not qualify for more services. At an 18-month review hearing, the court must set a hearing under section 366.26 if the minor is not returned to the parent, except in limited circumstances not applicable here.
For minors under three years of age on the date of initial removal from his or her parent or guardian, family reunification services must be provided for six months from the dispositional hearing but no longer than 12 months from the date the child entered foster care, unless the minor is returned to the parent's home. (§ 361.5, subd. (a)(1)(B).) But court-ordered services may be extended up to a maximum of 18 months after the date the minor was removed from his or her parent's custody if it can be shown the permanent plan is for the child to be returned and safely maintained in the home. (§ 361.5, subd. (a)(3)(A); see § 366.22, subd. (a)(1) [when case has been continued pursuant to paragraph (1) or (2) of subdivision (g) of Section 366.21, permanency review hearing shall occur within 18 months after date child originally removed].) Hence, the maximum time a parent has to reunify with a child under three years old is ordinarily 18 months.
Here, mother concedes although the hearing was scheduled as a 12-month review, mother received 18 months of services. Section 366.22 governs the hearing. It provides, "Unless the conditions in subdivision (b) are met and the child is not returned to a parent or legal guardian 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 continued placement in foster care is the most appropriate plan for the child." (Id., subd. (a)(3).) Section 366.22, subdivision (b) provides three exceptions where the court may offer 24 months of services if the court determines by clear and convincing evidence that the best interests of the child would be met. The exceptions apply to (1) a parent who is making significant and consistent progress in a court-ordered residential substance abuse treatment program; (2) a minor or dependent parent who was making significant and consistent progress in establishing a safe home for the child's return; or (3) a parent recently discharged from incarceration, institutionalization or the custody of the United States Department of Homeland Security who is making significant and consistent progress in establishing a safe home for the child's return. There is no evidence mother satisfies any of these three exceptions and she does not argue otherwise.
In Earl L, supra, 199 Cal.App.4th 1490, the father contended the juvenile court erred by ordering a hearing under section 366.26 because it did not make a finding by clear and convincing evidence that reasonable services had been provided or offered to the father during the most current review period. (Earl L., at pp. 1495, 1503.) We observed case law in effect prior to a 2009 amendment to section 366.22 held that while the juvenile court must make a finding regarding reasonable services at the 18-month permanency review hearing, "'the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a reasonable services finding.'" (Earl L., at p. 1504.) The 2009 amendment added the option at the 18-month review hearing to continue the matter in certain limited circumstances. (Ibid.) "We disagree[d] with [the] father that setting a section 366.26 hearing is 'conditioned on a reasonable services finding' at the section 366.22 hearing covering the most recent reporting period" because only under limited circumstances were additional services permitted. (Ibid.) It was only in these limited cases that the juvenile court could avoid setting a section 366.26 hearing if the juvenile court found reasonable reunification services had not been offered or provided. (Earl L., at p. 1504.) There, like in this case, the parent had not made significant and consistent progress and did not qualify for an exception. (Ibid.) "It defies common sense to continue reunification efforts for a parent who has made minimal efforts throughout a case." (Id. at p. 1505.)
Here, we need not decide whether mother received reasonable reunification services, because even if we were to find substantial evidence does not support the juvenile court's finding that reasonable reunification services were provided, there is nothing more we can do. The court was required to set a section 366.26 hearing, which it did. Mother was not entitled to any different outcome given she had already received 18 months of services.
DISPOSITION
Mother's petition for extraordinary relief is denied.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J. Court of Appeal, Fourth Appellate District, Division Three - No. G054816
S243357
IN THE SUPREME COURT OF CALIFORNIA
En Banc
J.C., Petitioner, v. SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest. The petition for review and application for stay are denied.
/s/_________
Chief Justice
STATEMENT RESPECTING DENIAL OF REVIEW BY LIU, J.
This petition for review raises important issues under California's juvenile dependency statutes. Although I agree this case is not a proper vehicle for resolving the issues, lack of clarity in the statutory scheme has given rise to differing interpretations in the courts, and we may eventually have to intervene. But this case, like another we decided a few weeks ago, implicates a delicate balance of "competing values" — "protecting children from harm, preserving family ties, and avoiding unnecessary intrusion into family life" — that seems best resolved by the Legislature. (In re R. T. (2017) 3 Cal.5th 622, 638 (conc. opn. of Liu, J.).)
I.
Minor V.C. was removed from her mother's custody in November 2015 after her mother, J.C., a native of China, was arrested for injuring her landlord in a fight. V.C., an infant at the time, was placed in foster care. The Los Angeles County Superior Court ordered J.C. to attend parenting classes and to receive counseling for child abuse awareness and stress and anger management. It also directed the Los Angeles Department of Children and Family Services to provide J.C. with family reunification services. The case was transferred to Orange County after J.C. moved there. Upon J.C.'s request for communications in Mandarin, the Orange County Superior Court ordered the Orange County Social Services Agency (Agency) to refer J.C. to a Mandarin-speaking therapist. It also ordered the Agency to refer J.C. to parenting classes appropriate for V.C.'s age. The Agency assigned a Mandarin-speaking social worker to the case.
In November 2016, the Agency filed a petition requesting suspension of J.C.'s visitation after she displayed erratic outbursts in her daughter's presence. The petition was granted. At a review hearing in the spring of 2017, the Agency recommended that the court terminate reunification services and set a hearing on adoption, guardianship, or foster care pursuant to Welfare and Institutions Code section 366.26. (All statutory references are to this code.) In the Agency's view, J.C. had made minimal progress in her counseling and parenting classes because J.C. had refused to participate in the services. The Agency also presented evidence that J.C. exhibited combative behavior toward Agency staff and threatened her social worker.
J.C., testifying through a Mandarin interpreter, claimed that the reunification services were inadequate because they were not offered in Mandarin. Although her social worker spoke Mandarin, J.C. explained that she was not confident they could understand each other. J.C.'s parenting class in Orange County was taught in English. J.C. admitted to e-mailing in English but said she did so by using the Google Translate program. She said that at one meeting with an Agency manager in which an interpreter was used, she was able to communicate more effectively with the staff through the interpreter.
Luz Vergara, an Agency employee responsible for supervising the Agency's program integrity unit, also testified. Vergara had investigated J.C.'s complaints about her services and concluded that the Agency had discriminated against J.C. by not providing her with a Mandarin interpreter for each Agency interaction or with a Mandarin-speaking monitor during her visits with V.C. Vergara further testified that it was the Agency's policy to require an interpreter for every communication with a parent whose primary language is not English.
The court concluded that returning V.C. to her mother would create a substantial risk of detriment to V.C.'s safety, protection, or physical or emotional well-being, and it scheduled a section 366.26 hearing. The court found that reasonable services had been provided, explaining that it was "not the language barrier that prevented mom from obtaining the services. It's mother's refusal to cooperate and to partake in the services." The court ordered the reunification services discontinued.
J.C. filed a petition for writ of mandate challenging the court's findings. The Court of Appeal held that substantial evidence supported the juvenile court's finding of a risk of detriment. The appellate court declined to decide whether the Agency's reunification services were reasonable because "the case had already reached the 18-month stage when services were terminated," and at that point "the court must set a hearing under section 366.26 if the minor is not returned to the parent, except in [the] limited circumstances" listed in section 366.22, subdivision (b). Relying on Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490 (Earl L.), the court reasoned that although a juvenile court must determine whether reasonable services have been offered, the requirement to set a section 366.26 hearing is not conditioned on a finding of reasonable services. The Court of Appeal interpreted the statutory scheme to permit an extension of services only in the limited circumstances specified in section 366.22, subdivision (b).
II.
Section 361.5, subdivision (a) provides that "whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services" to any parents deemed eligible for reunification services. For a child who is under three years old when removed from parental custody, services shall be provided "no longer than 12 months from the date the child entered foster care . . . unless the child is returned to the home of the parent or guardian." (§ 361.5, subd. (a)(1)(B).) Services can be extended "up to a maximum time period not to exceed 18 months after the date the child was originally removed" from parental custody if the court finds that there is a substantial probability the child will be returned to the parent's custody within the extended time period or that reasonable services have not been provided. (§ 361.5, subd. (a)(3)(A).)
As relevant here, section 366.22 says that a permanency review hearing "shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent." (§ 366.22, subd. (a)(1).) If the "child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26" to determine whether adoption, guardianship, or foster care is the best plan for the child. (§ 366.22, subd. (a)(3).)
In 2009, the Legislature amended section 366.22 to specify three circumstances in which the juvenile court may postpone the permanency review hearing for up to six months. (See § 366.22, subd. (b).) The hearing may be postponed when it is in the child's best interests to have additional services provided to (1) a parent or guardian making significant progress in a substance abuse treatment program; (2) a parent who was either a minor parent or a dependent parent at the time of the initial hearing and is making significant progress in establishing a safe home for the child's return; or (3) a parent who was recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and is making significant progress in establishing a safe home for the child's return. (Ibid.) For one of these exceptions to apply, the juvenile court must also find that there is a substantial probability the child will be returned to the parent's custody within the extended time period or that reasonable services have not been provided. (Ibid.) It is undisputed that none of the circumstances listed in section 366.22, subdivision (b) applies in this case.
The petition for review raises two questions concerning this statutory scheme. First, if the juvenile court determines that reasonable reunification services have not been offered to a family, may it postpone a section 366.26 placement hearing? As noted, section 366.22 requires the court to order a hearing on adoption, guardianship, or foster care if the child has not been returned to a parent or guardian after 18 months. But other provisions suggest that the placement process may not move forward unless the court finds that reasonable reunification services have been provided:
- Section 366.22, subdivision (a)(3) requires the juvenile court to "determine whether reasonable services have been offered or provided to the parent or legal guardian" at the permanency hearing, although it does not expressly condition a placement hearing on a finding of reasonableness.
- Section 366.21, subdivision (g)(1)(C)(ii) and section 366.22, subdivision (b)(3) both state that the "court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian." But this prohibitory language resides in a subdivision of each statute, and it is not clear whether the prohibition applies in all situations or only in the situations addressed by those subdivisions. For example, section 366.22, subdivision (b) creates an exception to the deadline for scheduling a permanency review for parents who were recently discharged from incarceration, who are minors or dependents, or who are making progress in a substance abuse program. The prohibitory language in section 366.22, subdivision (b)(3) could be read to apply only to parents who fall into these specific categories, although it is unclear why the Legislature would have chosen to provide such protection only to this subset of parents and guardians.
- Section 352, subdivision (a) authorizes juvenile courts to "continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor." This provision could be read to authorize trial courts to continue a section 366.26 placement hearing after 18 months in the event that reasonable reunification services have not been provided.
This leads to a second question about the statutory scheme. If the court is authorized to postpone a section 366.26 hearing beyond the 18-month deadline because reasonable reunification services have not been provided, does the court have the authority to order additional services? Section 361.5, subdivision (a)(3)(A) provides that services can be extended "up to a maximum time period not to exceed 18 months after the date the child was originally removed" from parental custody. But if the court cannot order a section 366.26 hearing until reasonable services have been received, and if 18 months have already elapsed, then presumably it would be necessary for the court to order services beyond the 18-month deadline so that the child dependency proceedings can move forward.
In sum, there appears to be a substantial tension in the statutory scheme. On one hand, there are provisions stating that reunification services must cease after 18 months and that a section 366.26 placement hearing must be ordered no later than 18 months after the child has been removed from parental custody. On the other hand, there are provisions requiring or strongly implying that reasonable reunification services must be provided before a section 366.26 placement hearing is ordered.
The Court of Appeal held that the juvenile court must observe the 18-month deadline for setting a section 366.26 placement hearing whether or not reasonable reunification services had been provided. This conclusion is not without supporting authority. (See San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 224 [juvenile court could not "make the necessary findings to extend services beyond 18 months, regardless of whether or not reasonable services were provided" because "the statutorily required factors were not present"].) But it is in tension with other cases that have held to the contrary. (See In re J.E. (2016) 3 Cal.App.5th 557, 563-566; Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424 ["At the 18-month review hearing, the court may continue the hearing under section 352 if it finds that reasonable family reunification services have not been offered or provided to the parents."]; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1016 ["[T]he Legislature never intended a strict enforcement of the 18-month limit to override all other concerns including preservation of the family when appropriate."]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1795-1796.)
The issues presented by these cases lie at the crosshairs of competing policy objectives. The dependency scheme is intended to prioritize family preservation and protect parental rights whenever possible. (See Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) Reunification services play a critical role in advancing that goal. (See In re Elizabeth R., supra, 35 Cal.App.4th at p. 1787 ["Reunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.' "]; Earl L., supra, 199 Cal.App.4th at p. 1501.) But this interest must be considered alongside the "child's need for stability and security within a definitive time frame." (In re Elizabeth R., at p. 1787.) In the case before us, there appears to be substantial evidence supporting the juvenile court's finding that J.C. had not adequately participated in the services provided to her. But the facts of this case, including the language barrier faced by J.C., pose the conundrum of balancing the child's interest in a timely permanent placement with the parent's interest in adequate opportunity to achieve reunification.
The statutory scheme is ambiguous, and the balance to be struck is fundamentally a policy decision. How should a juvenile court proceed when 18 months have elapsed since the child has been removed from parental custody but reasonable reunification services have not been provided? The answer to this question would benefit from careful examination of the adequacy of reunification services throughout California's diverse counties and the likelihood of achieving reunification within particular time frames. The Legislature seems the best forum for studying and resolving these issues in the first instance.