Opinion
B208017
8-29-2008
J.L., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; [PG]_ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
Law Office of Barry Allen Herzog, Sue Dell and Ellen L. Bacon for Petitioner. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.
Not to be Published
Petitioner J.L. (father) is the father of two children — a three and one-half year old boy, and an almost one-year girl — who were declared dependents of the juvenile court at different times. Sometime after the boy was first detained from his parents, he was placed with father subject to certain conditions, including a requirement that the childs mother — who is not a party to this writ proceeding — not reside in the home. However, the child was redetained one year later, though father continued receiving services.
After father received approximately two years of family maintenance and reunification services, the juvenile court terminated services and scheduled a hearing for the selection and implementation of a permanent plan (Welf. & Inst. Code, § 366.26) for the children. The court did so at what the juvenile court characterized as an 18-month review hearing, even though, as to the girl, it should have been no more than a six-month review hearing. However, fathers counsel did not dispute the juvenile courts characterization of the hearing, did not ask for additional services with respect to either child, and essentially consented to the setting of the section 366.26 hearing.
All statutory references are to the Welfare and Institutions Code.
Father filed a writ petition challenging the juvenile courts decision. (Cal. Rules of Court, rule 8.452.) He raises several legal arguments relating to the manner in which the juvenile court calculated the period of his entitlement to services. Both the Los Angeles County Department of Children and Family Services (Department) and counsel for the children oppose the granting of relief. We conclude father is not entitled to relief. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
As noted, the childrens mother has not petitioned for relief. Therefore, we discuss her involvement in the dependency proceeding only to the extent necessary for a full understanding of the issues raised by fathers writ petition. In addition, because father does not challenge any of the juvenile courts factual findings, we focus primarily on the procedural aspects of the case.
In March 2006, the Department received referrals alleging that then one-year-old D.L. was the victim of physical abuse by his mother, A.J. (mother). A Department social worker then heard from several witnesses that mother physically abused D.L., had significant drug problems, and was having serious mental issues, including hallucinations. At the conclusion of a team decision meeting, father agreed to assume responsibility for the childs care, and to monitor mothers visits with him, while mother moved out of the home and into the home of fathers parents.
It appears father and mother are not married.
However, after a series of events which included father failing to appear for a scheduled drug test and advising a Department social worker that D.L. was with mother whose whereabouts he did not know, the Department detained D.L., placed him with his maternal grandparents, and filed a dependency petition on his behalf. The petition alleged that D.L. was at risk because: (1) mother physically abused him on many occasions and father failed to protect him; (2) D.L. had been exposed to violent physical confrontations between his parents; (3) mother used amphetamines and methamphetamines, and had recently tested positive for those drugs; (4) mother had an emotional condition characterized by hallucinations and paranoia; and (5) both parents had medically neglected D.L. by failing to provide him with age appropriate immunizations.
At the conclusion of a detention hearing in April 2006, the juvenile court found a prima facie case for the detention and ordered D.L. placed with his maternal grandparents. The court ordered family reunification services for both parents, which included domestic violence referrals for father. The court approved monitored visits for both parents.
In its jurisdictional report from June 2006, the Department expressed some concerns about fathers ability to protect D.L. because he was aware of mothers extensive problems for many months before D.L. was detained, yet failed to protect him. However, the Department stated it would be amenable to releasing D.L. to father if mother did not live in the house and father received family maintenance services.
In August 2006, and pursuant to a mediated agreement between the parties, the juvenile court: (1) sustained allegations in the petition relating to mothers drug use, emotional problems, aggressive behavior toward father, and physical abuse of D.L., and apparently also the allegation that father failed to protect D.L.; (2) placed D.L. with his father under Department supervision; (3) ordered the Department to provide father with family maintenance services; (4) ordered the Department to provide mother with family reunification services; and (5) ordered that mother not spend the night in fathers home.
There is some confusion whether the juvenile court sustained the allegation which included the claim that father failed to protect D.L. The copy of the dependency petition that is included in the record shows a handwritten line drawn across the allegation, suggesting it could have been dismissed. However, the courts minute order for the hearing expressly states that the court sustained the allegation in question and the allegation is not included among the list of dismissed allegations in that minute order. In addition, several subsequent minute orders include the allegation when listing the sustained allegations.
In anticipation of a combined section 364 review hearing for father and a six-month review hearing for mother, the Department reported in December 2006 that father had been arrested in October for obstructing a public officer and had spent one month in jail. During that time, father made arrangements for D.L.s paternal grandmother to care for D.L. After father was released, he moved in to the paternal grandmothers home.
At the combined section 364 and six-month review hearing in December 2006, the juvenile court ordered that D.L. continue in his placement with father on condition that father remain in the home of the paternal grandmother. The court also ordered that father continue receiving family maintenance services, consisting of parent education and domestic violence counseling for victims. The court also ordered additional reunification services for mother.
In June 2007, at the conclusion of a combined section 364 review hearing for father and a 12-month review hearing for mother, the juvenile court ordered additional family maintenance services for father and additional reunification services for mother.
A little less than two months later (in August 2007), a Department social worker learned that father had been sentenced in late 2006 to three years probation following a drug conviction. The Department also learned that father had recently admitted violating probation following another drug arrest, and that he was ordered to attend a four-month inpatient drug treatment program. Father admitted having a history of methamphetamine use.
In light of this information, the Department redetained D.L., placed him with his paternal grandmother, and filed a subsequent dependency petition under section 342, alleging that father had a history of illicit drug use which rendered him incapable of caring for D.L. At the conclusion of the detention hearing, the juvenile court found a prima facie basis for the detention and ordered D.L. placed with his paternal grandmother. The court also ordered the Department to provide father with family reunification services.
In September 2007, the juvenile court sustained the subsequent dependency petitions drug history allegation as described above. The court ordered family reunification services for father and ordered father to complete a drug rehabilitation program with random drug testing.
In early October 2007, mother gave birth to a baby girl, M.L. A little over a week later, as part of mothers 18-month review hearing regarding D.L., the juvenile court ordered D.L. placed with mother. The court ordered family maintenance services for mother and additional reunification services for father.
The following month, the Department detained D.L. and M.L. from mothers custody after a series of events that culminated in mothers involuntary hospitalization for a psychiatric evaluation. The Department placed the children with the paternal grandmother, filed a new dependency petition on behalf of M.L. and another subsequent dependency petition on behalf of D.L. At the conclusion of the latest detention hearing, the juvenile court upheld the detention and ordered the children placed with the paternal grandmother.
In January of this year, the parties reached a mediated agreement regarding the latest petitions for both children, pursuant to which the juvenile court sustained only certain allegations concerning mother, and dismissed without prejudice the allegations relating to father. Pursuant to the agreement, the court ordered additional reunification services for both parents. Fathers services were to include, among other things, participation in Narcotics Anonymous and random drug testing. The court approved unmonitored visits for father and monitored visits for mother. The court continued the matter to March for a progress review hearing and it scheduled what the courts minutes describe as an 18-month review hearing for both parents in April.
Unless otherwise specified, all subsequent references to dates are to date in 2008.
Before what had been characterized as the 18-month review hearing in late April, the Department advised the court that father had recently tested positive for methamphetamines on two occasions. When the parties appeared for the hearing, the parents requested a contest, and the court continued the matter for approximately three weeks for that purpose. No one disputed the characterization of the hearing as an 18-month review hearing. At the hearing, the court also ordered that fathers visits with the children be monitored.
In May, the parties appeared for what was announced as a contested 18-month review hearing (hereafter, the termination hearing). At the hearing, no one disputed the characterization of the hearing as an 18-month review hearing and no one requested additional services. In addition, no one objected to the setting of a hearing for the selection and implementation of a permanent plan for both children (§ 366.26). Indeed, counsel for both parents essentially consented to the setting of such a hearing. Thus, in response to the courts question how he wished to proceed with the contested hearing, fathers counsel stated: "Well, on behalf of the father, Your Honor, in light of the most recent positive test, I dont see a factual basis to request return of the children to the father at this point. [¶] We may bring a [section] 388 [petition for modification based on changed circumstances] between now and the .26 date if hes able to establish clean testing during that time." Mothers counsel stated she was in the same position as father and she expressed hope she also would be able to file a section 388 petition. Mothers counsel also noted mother was not present and counsel believed she had no factual or legal basis to mount a challenge on mothers behalf.
While it was appropriate to characterize it as an 18-month review hearing with respect to D.L., it was not appropriate to characterize it as an 18-month review hearing for M.L., who had been detained approximately six-months earlier, shortly after her birth. This error serves as the basis for two of fathers contentions in this writ proceeding.
The juvenile court then formally terminated reunifications services for both parents and scheduled a hearing for the selection and implementation of a permanent plan for the children. In announcing its decision, the court made several findings, including: (1) a finding by clear and convincing evidence that both parents failed to make satisfactory progress in their respective treatment plans, and; (2) a finding that that there was no substantial probability the children could be returned to the parents by the 12-month review date.
Father filed a writ petition challenging the juvenile courts order. He does not challenge any of the juvenile courts factual findings. Rather, he argues: (1) in determining the length of services father was entitled to receive, the juvenile court should have considered only the reunification services he received after the Department redetained D.L. in August 2007; (2) with respect to D.L., the juvenile court erred at the termination hearing when it purported to make findings that are made at a six-month review hearing; and (3) with respect to M.L., the juvenile court erred by failing to declare it to be a six-month review hearing.
The Department filed an answer opposing the granting of relief. Counsel for the children filed a joinder in the Departments answer.
DISCUSSION
1. BIFather May Not Complain About The Manner in Which The Juvenile Court Calculated the Amount of Services He Was Entitled to Receive. In Any Event, The Juvenile Court Did Not Err.
As discussed above, the juvenile court terminated reunification services at what it characterized as an 18-month review hearing. Father claims this was error, in an argument that appears to pertain to D.L. (As discussed below, the hearing could not have been an 18-month review hearing with respect to M.L.) Father maintains that, in determining the nature of the review hearing, the juvenile court should have considered only the services he received after D.L. was redetained in August 2007. According to father, the more than one-year period between D.L.s initial detention and his redetention in August 2007 — during which time father received both reunification and maintenance services — should not have been considered.
We have reframed fathers argument. Father asserts the juvenile court "erred . . . by tolling the reunification period prior to the [second] removal of [D.L.] from fathers home." Father probably meant to say the court erred by not tolling the period. Moreover, fathers argument is not a tolling argument at all. Rather, he appears to be claiming the relevant time period did not even begin to run before D.L. was redetained in August 2007.
As also discussed above, at no time did fathers counsel complain that the hearing in question was calendared and announced as an 18-month review hearing. Under these circumstances, father may not now complain of alleged error in the calculation of the relevant time period. As the Court of Appeal explained in In re Wilford J. (2005) 131 Cal.App.4th 742, 754:
We note that the hearing in question was characterized as an 18-month review hearing before it took place, and no one ever complained about that characterization. Thus, the Department referred to it as such in the report it prepared in anticipation of the hearing, and which it served on the parties. And in late April (almost three weeks before the termination hearing took place), the juvenile court stated in open court that the matter was on calendar for a section 366.22 (18-month review) hearing, before it agreed to continue the matter for a contest at the parents request. Thus, when the parties appeared for the hearing in mid-May, they could not have been surprised that the court referred to it as a section 366.22 hearing. And if anyone was surprised by the characterization of the hearing as a section 366.22 hearing, there was even more reason to object.
"An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. [Citation.] Dependency cases are not exempt from this forfeiture doctrine. [Citations.] The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. [Citation.] Although forfeiture is not automatic, and the appellate court has discretion to excuse a partys failure to properly raise an issue in a timely fashion [citation], in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion `should be exercised rarely and only in cases presenting an important legal issue. [Citation.]" (Accord In re S.B. (2004) 32 Cal.4th 1287, 1293.)
We see no reason to depart from this rule. In this case, not only did fathers counsel fail to object to the characterization of the hearing as a section 366.22 hearing, he essentially consented to the termination of services and to the setting of a section 366.26 hearing. Under these circumstances, father may not complain of alleged error in the computation of time in order to now seek additional services.
In any event, the juvenile court did not err. For purposes of this argument, it is worth keeping the following dates and events in mind:
April 2006: The juvenile court upholds D.L.s initial detention and orders the Department to provide father with family reunification services.
August 2006: The juvenile court sustains certain allegations in D.L.s original dependency petition and places him with father, while ordering the Department to provide father with family maintenance services.
August 2007: D.L. is redetained and the juvenile court upholds the detention, while ordering the Department to again provide father with family reunification services.
September 2007: The juvenile court sustains the subsequent petition filed on D.L.s behalf.
October 2007: The juvenile court places D.L. with mother.
November 2007: D.L. is detained from mother and the juvenile court upholds the detention.
May 2008: The juvenile court terminates reunification services and schedules a section 366.26 hearing.
D.L. was one-year-old when he was first detained. "For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care." (§ 361.5, subd. (a)(2), italics added.)
Under certain conditions, this six-month period may be extended by up to 12 additional months. (§ 361.5, subd. (a).)
"[A] child shall be deemed to have entered foster care on the earlier of [1] the date of the jurisdictional hearing held pursuant to Section 356 or [2] the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian." (§ 361.5, subd. (a), italics added.) In this case, when we consider D.L.s original detention, the earlier date is the second of the two dates referenced in the statute. Therefore, D.L. is deemed to have entered foster care in June 2006. The termination hearing took place almost two years later, in May 2008. Therefore, it is safe to say that, insofar as D.L. is concerned, it could not have been anything less than an 18-month review hearing.
Father claims D.L. should be deemed to have entered foster care only after he was redetained from father in August 2007. Father is mistaken.
In Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, the Court of Appeal held that the various deadlines contained in section 361.5, subdivision (a), apply to all court-ordered services, including family maintenance services. Among other things, the court explained that section 361.5 "speaks in terms of `child welfare services (§ 361.5, subd. (a)) which consist of maintenance as well as reunification services (§ 16500 et seq.). Both reunification and maintenance services are part of the continuum of child welfare services. (§ 16501, subd. (a).)" (Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 165.)
Thus, "[w]hen a juvenile court sustains a supplemental petition pursuant to section 387, the case does not return to `"square one" with regard to reunification efforts. [Citation.] Instead, the question becomes whether reunification efforts should resume [i.e., whether, among other things, the parent is entitled to receive services for an additional time period]." (Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 166.)
Carolyn R. involved a supplemental petition under section 387, while the case before us involves a subsequent petition under section 342. For purposes of our analysis, there is no difference between the two. As the Court of Appeal explained in In re Barbara P. (1994) 30 Cal.App.4th 926, 933, "[a] subsequent petition is filed when new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child. (§ 342.) A supplemental petition is filed, inter alia, when a dependent child has been placed with a parent, but the department now seeks to remove the child, effectively requesting the court to modify its previous placement order. (See § 387, subd. (a).) Despite these distinctions, we believe the same rule ought to apply—that is, a finding of jurisdiction on a subsequent petition should not automatically trigger a new period of reunification services."
The case of In re N.M. (2003) 108 Cal.App.4th 845 is directly on point. In that case, an 18-month old child was detained from the custody of both parents and the juvenile court upheld the detention. The court ordered the countys child welfare services agency (DPSS) to provide the parents with family reunification services. Later that same month, the juvenile court sustained the dependency petition, but placed the child with his mother, ordering DPSS to provide mother with family maintenance services (and to provide the other parent with reunification services). (Id. at p. 848.) Thus, the position of the mother in In re N.M. is comparable to that of the father in our case.
A little over one year later, DPSS filed a supplemental petition, which the juvenile court sustained. The child was removed from the parents custody (the father had been permitted to move back in with the mother and the child sometime earlier), and it ordered DPSS to provide both parents with reunification services. (In re N.M., supra, 108 Cal.App.4th at pp. 849-850.) More than nine months later (i.e., 21 months after the child was first detained), the juvenile court conducted what it characterized as a six-month review hearing. At the conclusion of the hearing, the juvenile court ordered additional reunification services for both parents. (Id. at p. 851.) However, the child appealed and the Court of Appeal reversed.
The Court of Appeal explained:
"The 18-month limitation set forth in section 361.5, subdivision (a) applies to all `court-ordered services. (§ 361.5, subd. (a).) Nothing in the statute suggests the limitation period should be calculated separately for maintenance and reunification services. . . .
"The fact a parent had custody during part of the total period does not stop the limitation period in section 361.5 from continuing to run. Section 361.5 states: `Physical custody of the child by the parents or guardians during the applicable time period . . . shall not serve to interrupt the running of the period. (§ 361.5, subd. (a).) `To construe the sections language as requiring the court to start services anew simply because a parent succeeded in temporarily regaining physical custody "would scuttle the purpose of the statute merely to preserve its form." [Citation.]" (In re N.M., supra, 108 Cal.App.4th at pp. 853-854, original brackets and ellipsis, quoting Carolyn R. v. Superior Court, supra, 41 Cal.App.4th 159.)
In Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at page 165, footnote 8, the Court of Appeal stated it was not addressing "the procedure a court should follow if a parent has received exclusively maintenance services, in other words, in the event a section 387 [or section 342] petition triggers the first time in a given case that a court removes a dependent child from parental custody." (Italics added.) The Court of Appeal in In re N.M., supra, 108 Cal.App.4th 845, declared that it also was not required to consider this issue because the supplemental petition was not the first time the juvenile court had removed the child from the mothers custody:
"Even assuming that family maintenance services should not be counted against the 18-month period where the child is not removed from the parents custody until after the services are provided, the principle would not apply in this case. Minor was originally removed from [the parents] custody [pursuant to the juvenile courts order at the detention hearing] in January 2001 . . . . And although Mother was granted custody at the January 2001 jurisdictional hearing, Minor was originally removed from her custody when the court ordered him detained earlier that month.
"Case law demonstrates that a detention pending a jurisdictional hearing should be considered an original removal from custody for purposes of section 361.5, subdivision (a)." (In re N.M., supra, 108 Cal.App.4th at p. 854.)
The court went on to explain that "if it were otherwise, a parent whose child was initially detained but who regained custody at the jurisdiction hearing could receive up to 12 months of family maintenance services [citation], lose custody again on a section 387 petition, and then receive up to 18 additional months of reunification services under section 361.5, subdivision (a) by arguing that the `original removal did not occur until the loss of custody pursuant to the section 387 petition. The resulting total hiatus of 30 months manifestly would not advance the legislative purpose of minimizing delay in dependency proceedings. `While [22 months] may not seem a long period of time to an adult, it can be a lifetime to a young child." (In re N.M., supra, 108 Cal.App.4th at p. 855, last brackets in original, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
The same reasoning applies in the instant case. Father lost custody of D.L. in April 2006, when the juvenile court approved his initial detention. The fact D.L. was temporarily placed with him four months later, did not alter the fact that D.L. was originally detained in April 2006. Therefore, when D.L. was redetained in August 2007, the clock continued to run. By the time the termination hearing took place in May 2008, father had received approximately two years of services. Therefore, it was not error to characterize the hearing as an 18-month review hearing (at least for D.L.). But as discussed above, even if it was, father may not complain about it at this time.
Father claims In re Joel T. (1999) 70 Cal.App.4th 263 — which was decided four years before In re N.M., supra, 108 Cal.App.4th 852 — supports his position. That case appears to be distinguishable because in that case, there is no indication the juvenile court upheld the childrens initial removal. (See In re Joel T., supra, 70 Cal.App.4th at p. 265 [after children detained, "[t]he court authorized a trial placement of the minors with appellant pending a hearing on jurisdiction"].) As discussed above, In re N.M., supra, 108 Cal.App.4th 852, is directly on point.
2. Insofar as D.L. is Concerned, the Juvenile Courts "Six-Month Review Findings" Served No Relevant Purpose and Any Error Was Harmless.
As an alternative to his first argument, father claims that because the termination hearing was an 18-month review hearing (as to D.L.), the juvenile court erred in making findings that a juvenile court ordinarily makes to justify termination of reunification services at the six-month review hearing.
These included a finding by clear and convincing evidence that the parents had not made progress in their treatment plans and a finding by a preponderance of the evidence that there was no substantial probability the children could be returned to their parents by the 12-month review date. (See § 366.21, subd. (e).)
However, father never explains how this error prejudiced him. If, as father concedes (at least for purposes of this argument), the hearing in question was an 18-month review hearing, what difference did it make that the court made findings which are made at a six-month review hearing? If it was an 18-month review hearing, father was not entitled to additional services, regardless of the progress he had made or the likelihood that his child could be returned to him at a future date. (See § 361.5, subd. (a); Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 167.) Father does not dispute that the juvenile court made the only finding it was required to make — that the children would be at substantial risk if returned to him (§ 366.22, subd. (a)) — and he does not challenge that finding. Therefore, while it may have been "error" for the juvenile court to make "six-month review findings" as to D.L., any such error was harmless.
There are some limited exceptions when additional services may be ordered beyond the 18-month date (see Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 167), but father never claimed any of the exceptions applied.
3. Father May Not Complain That the Juvenile Court Failed to Declare the Termination Hearing Was a Six-Month Review Hearing for M.L.
Father correctly claims that, insofar as M.L. was concerned, the termination hearing should not have been characterized as an 18-month review hearing. After all, M.L. had been detained only about six-months earlier. Father seems to claim the juvenile court should have declared the hearing to be a six-month review hearing for M.L. Father then claims that had he been told it was a six-month review hearing, he would have sought additional services. However, as already discussed, fathers counsel knew well in advance that the hearing had been characterized as an 18-month review hearing and that the Department was recommending termination of services, yet he never objected to the characterization (even with respect to M.L.) and he did not seek additional services. Under these circumstances, and for the reason discussed in connection with fathers first argument, father may not complain about the matter for the first time in this writ proceeding.
We also note that the juvenile court made the requisite six-month review findings when it terminated services and set a section 366.26 hearing. While we acknowledge fathers claim that he did not attempt to present evidence to challenge the factual basis for these findings because the juvenile court had characterized the hearing simply as an 18-month review hearing, counsel should have raised the issue with the court, especially after the court made the "six-month review findings." Instead, counsel essentially invited the court to terminate services and he expressed hope father would make progress in dealing with his drug problems so counsel could file a section 388 motion. That option is still available to father.
DISPOSITION
The writ petition is denied on the merits. This opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur:
COOPER, P. J.
RUBIN, J.