Opinion
No. H047279
02-05-2020
J.R., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA Respondent, SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. 18JD025153; 18JD025154; 18JD025155)
J.R. is the father of Z.H., Gi.V. and Ga.V., who are dependents of the Santa Clara County Juvenile Court. He has filed a petition for extraordinary writ and requested a stay of a Welfare and Institutions Code section 366.26 hearing pursuant to California Rules of Court, rule 8.452. We granted a stay of the 366.26 hearing on December 18, 2019.
All further statutory references are to the Welfare and Institutions Code.
Father asserts he was denied due process because the Santa Clara County Department of Family and Children's Services (Department) did not provide its addendum status review report within 10 days of the contested status review hearing as required by section 366.21, subdivision (c). Father also argues the juvenile court should not have set the section 366.26 hearing, and instead, should have returned his children to him or, in the alternative, granted him additional reunification services. For the reasons set forth below, we grant Father's writ petition.
I. STATEMENT OF THE FACTS AND CASE
In April 2018, the Department responded to a referral of emotional abuse and general neglect by Father of his three children: nine-year-old Z.H., eight-year-old Gi.V., and six-year-old Ga.V. The Department investigated the claim, and found that Father engaged in domestic violence with his live-in partner in the children's presence.
The Department filed petitions alleging that all three children came within section 300, subdivisions (a), (b), (c), and (g). The juvenile court sustained the petitions as alleged, and placed the children with Father's partner. The juvenile court ordered reunification services be provided to Father. As part of his case plan, Father was ordered to complete a parenting class, a 16-week Parenting Without Violence class, individual counseling, and a certified 52-week Batterer's Intervention Program.
In August 2018, Father was again violent with his partner in front of the children. The Department filed a section 387 petition seeking to remove the children from the partner of Father because she failed to protect the children from domestic violence. The juvenile court sustained the section 387 petition and ordered the children placed in a foster home. The court also ordered that Father participate in: "parent orientation, parenting class, Nurturing Father, a 16-week Parenting without Violence class, a program of counseling or psychotherapy which addresses issues of Intimate Partner Violence, Coping Skills, Trauma, Problem Solving, and Mental Health and a certified 52-week batterer's intervention program."
Mother was not a viable placement for the children as she was incarcerated on various felony charges commencing November 4, 2018, and was released on August 20, 2019, shortly before the 12-month review hearing, with probation conditions including substance abuse treatment, mental health treatment, batterer's intervention, and an order to stay away from her former abusive partner.
The juvenile court conducted a six-month review hearing in January 2019. The juvenile court adopted the recommendation of the Department and continued reunification services for Father. The juvenile court found that Father had not made substantial progress on his case plan, and returning the children to his care would present a substantial risk of harm to their health, safety, or physical or emotional well-being. The juvenile court set a 12-month review hearing for June 21, 2019.
In May 2019, the Department successfully petitioned the court to move Gi.V. to a short term therapeutic residential program in Marin County. He had been placed on a psychiatric hold as a danger to others under section 5150 because of his violent behavior towards his siblings, other children, and the foster parents in their home, and required more intensive therapeutic services.
By the time of the 12-month review, Father had completed many of his court-ordered services; his assigned social worker, Raymond Gonzalez, provided information on Father's progress with respect to the remaining elements of his case plan in the June 21, 2019 status review report. Father attended nearly all of the scheduled visits with his children. Father completed the 16-week Parenting Without Violence class. The Parenting Without Violence assessor stated, "For the most part, he seemed open to the material being discussed." In further conversation with Mr. Gonzalez, the assessor reported that Father was also argumentative in class. When Mr. Gonzalez discussed this with Father, he denied doing anything wrong. The Parenting Without Violence report reflected that Father gained some insight into his behavior; he was assessed in most categories at a 3 on a scale of 1-5. Father wrote, "I abused people with IPV [Intimate Partner Violence]. I have used all these tactics at some point in my life." However, he scored a 2 regarding his willingness to accept responsibility for the impact his behavior may have on his children.
Father did not complete "the main component of his case-plan," the 52-week Batterer's Intervention Program, but had enrolled in and completed approximately a quarter of the program. In the Batterer's Intervention Program, Father received scores of "poor," "unsatisfactory," or "marginal" in all of the assessment categories. In particular, he was assessed as "poor" with respect to accepting responsibility for his prior abusive conduct, and recognizing its impact on his children.
Father completed 24 individual therapy sessions; both he and his therapist reported that he was making progress and could benefit from more sessions. Father requested financial assistance for an additional 12 sessions; however, the Department denied his request because Department funds covered only 24 sessions. Father, who had a fourth grade education, was raised in the dependency system, and was emotionally and physically abused by his foster parents. He reported to his therapist that he felt that his children were not safe in the dependency and foster systems; the therapist noted that he "holds a lot of pain and anger for the abuse he lived through...." The therapist also indicated that Father had "issues with anger management," would benefit from skills to address problems calmly, and that he had difficulty trusting others. When frustrated with the service providers or his social worker, Father would reference his traumatic experience in the dependency system.
Mr. Gonzalez indicated in the June 21, 2019 status review report that Father was aggressive and combative with the service providers; he became irate, threatened the social worker, and yelled obscenities. He threatened to sue the Uplift Family Services Agency, the organization tasked with providing therapeutic (WRAP) services for Father and the children, and refused to allow his children to be assessed for Individualized Education Programs, calling the participants "rejects." Father was argumentative with the staff at Kindred Souls Visitation Center who provided therapeutic supervised visitation services to facilitate contact between Father and the children, threatened to sue the agency, and used profanity with the director. Father refused to work with the parent advocate assigned to his case. Father was unable to manage his children's behavior during some of the visits, and alienated the foster parents with his demands to control day to day issues with the children; the foster parents felt uncomfortable in his presence.
However, in a letter to the social worker dated June 13, 2019, the Clinical Director of Uplift Family Services indicated that "I have been present at all child and family team meetings to offer support to [Father] and the wraparound services team. Outside of the use of profanity, which appears to [be] his coping skill to manage frustration, [Father] has been appropriate and does not appear to be threatening. [Father] is working very hard to heal from his own personal trauma and reunify with his family. He's currently building trust with his wraparound team and advocating for his family in an appropriate way during child and family team meetings."
When providing his assessment of the case in the June 21, 2019 status report, Mr. Gonzalez was concerned that Father had completed only a quarter of the core of his service plan, specifically the 52-week Batterer's Intervention Program, and was not scheduled to complete it until April 2020. In the social worker's view, Father would not take responsibility for the impact the domestic violence he visited on his partner had on his children, and would not let the social worker speak with his current partner. He focused on his own past trauma or that of his children, and when provided with constructive input, attacked service providers and the Department with invective and threats of lawsuits. Mr. Gonzalez and the Department recommended that the children not be returned to the parents, but that Father continue to receive reunification services.
Father did not agree with the Department's recommendation and asserted that the children should be returned to him; he requested an early resolution conference, which was held on July 8, 2019. After the conference, Father requested a contested hearing, which was set on August 21, 2019, 16 months past the date on which the children were taken into protective custody.
At the contested hearing, the Department submitted its June 21, 2019 status review report, as well a 25-page addendum report dated August 21, 2019, written by the assigned social worker, Mr. Gonzalez. In a section entitled "Additional Information," the addendum report assessed Father's case plan progress in the two months "[s]ince the last Court Hearing on 6/21/19." Mr. Gonzalez reported that Father "asked that the undersigned no longer contact him and that he wanted a new social worker," and that Father contacted a Department supervisor to discuss the issue. As a result, the assigned social worker had no contact with Father from June 21 to August 21, met with the children twice, and with the service providers "multiple times from 6/21/2019 to 7/31/19."
Mr. Gonzalez also reported that, according to Diana Traub, the therapeutic services facilitator at Uplift Family Services, Child Family Team Meetings with Father were "not going well and have not been productive" because Father focused on his grievances against the Department, and insisted those be documented, rather than working on "a family vision" or ways to address "his children's trauma when they are in his care." Because Father was argumentative, insistent that he be assigned a new social worker, and resistant to feedback from the therapeutic team, Uplift Family Services no longer provided Child Family Team meetings to Father, but "decided to take [a] different approach with [Father] and meet with him and his support team to provide him with trauma based psycho-education so he can gain insight to his children's behaviors and learn trauma informed parenting when visiting . . . with his children." The Uplift Family Services facilitator attempted to schedule a conference call to discuss the purpose of the Child Family Team Meetings and to "engage him in the therapeutic process for his children," but Father declined the meeting.
With respect to visitation with the children, the social worker reported that Father missed one visit with the two older children and was late for others. He also indicated "[t]he undersigned was not able to review county visitation logs after 7/19/19, as they were not entered into the county database as of 7/31/19." However, "[s]ince the writing of the last court report [Father] has had improvements during visitation with his children. It appears the frequency of [the children's] physical aggression has decreased during visitations with [Father] and [Father] has not blatantly discussed his case or the children's biological mother during visits." Mr. Gonzalez was exploring the possibility of community-based visitation at the request of Father and the children. "[Father] has been consistent with disclosing his love to [the children] while on visits. He has also been consistent with bringing them treats and snacks and has made improvements while visiting [them]." The social worker noted, "[Father] will benefit from continued services to support him with validating [the children] and acknowledging their interest and autonomy to increase their self-esteem and reduce their trauma," as he did not always recognize their progress. Father's visitation with the youngest child, still in a group home, had been consistent and positive.
Father was scheduled to complete the Batterer's Intervention Program by April 1, 2020. He "improved from a 1 (poor) to a 2 (marginal) during this progress report."
Concluding the August 21, 2019 addendum report, Mr. Gonzalez noted Father's improvement during visitation. He expressed concern that "in addition to [Father] not alleviating the risk factors that brought him and his family to the attention of the agency, particularly with IPV, [Father] continues to demonstrate unsafe and inappropriate behaviors and boundaries to his service providers and to the Department." In the Addendum Report, the social worker again recommended that Father continue to receive Family Reunification Services.
Father's counsel objected to the admission of the addendum report into evidence because he had received it the day before the hearing, and had not had time to investigate its contents. "[T]he report contains information that would require—in order to properly investigate—would require me to have discovery information, such as CFT meeting notes from the Uplift organization and as well as other communications that I would be looking at between the social worker and various other staff members there which, because I do not have them I'm really unable to properly contest . . . ." Father's attorney specifically indicated that he wanted to order and examine underlying notes related to Father's alleged conversations with a Department supervisor, Minerva Beltran-Gonzalez, requesting that his assigned social worker, Raymond Gonzalez, be replaced. He also expressed concern that he be able to obtain documents related to the exchange Uplift Wrap Services facilitator, Diana Traub, had with Father, regarding Father's desire to obtain a new social worker.
The juvenile court indicated that "everything you've identified are conversations involving your client which your client can address when he testifies," or that other witnesses already scheduled to testify could address. Father's attorney stated: "The problem is I don't know what's in the documentation that I would be asking for and that's the issue. I don't know what I don't know. Yes, my client has all sorts of information, and he can testify and the Court could determine what he's saying is inaccurate. That's why the documentation can be important to have."
The juvenile court overruled Father's objection and admitted the 25-page addendum report, finding there was nothing materially different in the addendum than was written in the June 21, 2019 status review report. The juvenile court also found that the report contained information about conversations Father had with third parties that could be addressed or refuted by Father when he testified at trial.
At trial, Gi.V.'s therapist and case manager from his therapeutic placement, Chelsea Choi, testified that Gi.V. had begun his individual treatment nine weeks prior, and she believed that it was too early to determine whether Gi.V. could reside in an environment with a lower level of care.
Mr. Gonzalez, the assigned social worker and author of the June 21, 2019 status report and August 21, 2019 addendum report, testified he believed there would be a substantial risk to the children's safety if they were returned to Father's care. Mr. Gonzalez's opinion was based on the children's past severe trauma, Father's volatile behavior with service providers, and his lack of significant progress on his case plan. Mr. Gonzalez then testified the following day on cross examination by counsel for the children, that despite the Department's written recommendation, which he had authored, he had changed his opinion and no longer believed that there was a substantial likelihood that the children could be safely returned to Father's care by the 18-month review date. Mr. Gonzalez believed that Father's reunification services should be terminated because "[t]here's substantial risks. And I don't feel that father will be able to complete enough services or have enough behavioral changes by the 18 months to have the kids safely placed in his care." He indicated Father's only incomplete service in his case plan was the 52-week Batterer's Intervention Program. He believed the completion of this program was crucial because domestic violence brought the family to the attention of the courts.
Father testified and admitted that he had been violent with his partner. He said that he had previously completed the Batterer's Intervention Program, and that the juvenile court's order for the program covered the same curriculum. He also stated that he was not in an intimate relationship and knew it would be inappropriate for him to be in a relationship if the children were returned to him. Father testified that he asked the social worker for financial assistance in participating in services, including help paying for his individual counseling. When the Department could not provide funds, he followed their directions to obtain funding through other county government sources. He denied requesting that the Department supervisor, Ms. Beltran-Gonzalez, remove his assigned social worker. While indicating that he had historically complained about services from the Department, he denied enlisting outside service providers to remove his social worker. He also disputed that Uplift Family Services or Diana Traub terminated Child Family Team Meetings because of his behavior. He felt he should be consulted by the foster parents regarding his children's haircuts and other personal issues.
At the conclusion of testimony, the court considered the parties' arguments. The Department asked that reunification services be continued for Father to the 18-month review date. Minor's counsel requested that reunification services be terminated based on the social worker's testimony. Father requested that the children be returned to his care or that reunification services be continued.
The juvenile court indicated, "This was a difficult decision and I had to write out my findings to make sure I didn't miss anything." It then rejected Father's request, finding that return of the children to his care would create a substantial risk of detriment to their safety, and their physical and emotional well-being. Noting that Father had "shown tangible efforts regarding his case plan" and had completed a number of reunification services, the court concluded that Father had "not made significant progress on his case plan" and had "not shown the capacity and ability to complete his treatment plan objectives . . . . [¶] . . . there has been a lack of any discernible change in [Father's] accountability, awareness and insight into the reasons for these dependency proceedings." The juvenile court found that Father had not satisfied the requirements in section 366.21, subdivisions (g)(1)(B) and (g)(1)(C). In ruling, the juvenile court referred to Father's poor performance in the Batterer's Intervention Program, his volatile and aggressive behavior with service providers, his argumentative and combative communications with the social worker, and his controlling demands of the foster parents.
Section 366.21, subdivision (g)(1)(B) provides: "[T]he parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home." Subdivision (g)(1)(C) provides: "The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs."
The juvenile court terminated Father's reunification services, and set the matter for a selection and implementation hearing pursuant to section 366.26, to be held on December 30, 2019. Father filed a timely notice of intent to file a petition for extraordinary writ.
The trial court also ordered that family services be terminated for Mother. --------
II. DISCUSSION
Father argues that he was denied due process when the Department failed to provide the August 21, 2019 addendum report to him 10 calendar days in advance of the contested hearing as mandated in section 366.21, subdivision (c). Section 366.21, subdivision (c), states: "[a]t least 10 calendar days prior to the hearing, the social worker shall file a supplemental report with the court regarding the services provided or offered to the parent or legal guardian to enable him or her to assume custody and the efforts made to achieve legal permanence for the child if efforts to reunify fail, including but not limited to, efforts to maintain relationships between a child who is 10 years of age or older and has been in out-of-home placement for six months or longer and individuals who are important to the child, consistent with the child's best interests; the progress made; and, where relevant, the prognosis for return of the child to the physical custody of his or her parent . . . and shall make his or her recommendation for disposition. . . . If the recommendation is not to return the child to a parent ... the report shall specify why the return of the child would be detrimental to the child. The social worker shall provide the parent . . . with a copy of the report, including his or her recommendation for disposition, at least 10 calendar days prior to the hearing." (§ 366.21, subd. (c), italics added.)
Father relies on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), to support his contention that the Department's failure to adhere to the 10-day statutory deadline violated his right to due process. In Judith P., the juvenile court ordered the termination of reunification services at a 12-month status review hearing. (§ 366.21, subd. (f).) The Department of Children and Family Services had not, however, served the mother or her counsel with the section 366.21 status report until the day of the hearing, contrary to the statute's requirement that it be served at least 10 days before the hearing. (Id. at pp. 541-543.) The appellate court determined that the 10-day statutory deadline was mandatory and failure to provide the status report within the statutory period was a violation of the mother's due process rights. (Id. at pp. 549-553.)
In considering the significance of the failure to timely file a status report required before a hearing to terminate reunification services under section 366.21, subdivision (c), the court in Judith P. noted the important procedural safeguards that timely filing of the report provides. "[T]he 10-day time period assures that the decision maker has an adequate opportunity to review and consider not simply the social worker's recommendations, but the factual bases for such recommendations, and to formulate questions about any discrepancies, omissions, or other matters of concern raised by the report. [¶] In addition, the 10-day time period allows parents and counsel for minors the time not only to review and consider the contents of the report and the recommendations, but also to assemble their own evidence that contradicts or explains information contained in the report, to analyze the recommendations in light of such other information, and to generate alternative recommendations and persuasive arguments in support of such alternative recommendations. It also allows counsel time to subpoena witnesses to be present at the hearing, to prepare for questioning and cross-examination of witnesses, and, of course, to consult with their clients. Obviously, counsel appointed to represent parents and children in such significant proceedings are entitled to sufficient time to meet such minimum standards of practice. It is clear that the Legislature concluded that 10 days was the minimum time necessary to allow such standards to be met, as well as to allow a parent to obtain the kinds of evidence relevant to the parent's progress." (Judith P., supra, 102 Cal.App.4th at pp. 548-549, fns. omitted.)
Here, as in Judith P., the matter was set for a contested pre-permanency planning hearing pursuant to section 366.21, subdivision (f). At the pre-permanency planning stage, there is a statutory presumption that the children will be returned to the parents. (§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) As a result, there are " 'precise and demanding substantive and procedural requirements [that] the petitioning agency must have satisfied before it can propose termination [that] are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.' [Citation.]" (Judith P., supra, 102 Cal.App.4th at p. 546.)
The Department argues that Judith P. is inapplicable to the present case, and attempts to distinguish the tardy provision of the social worker's addendum report here. In Judith P., the mother had only one day to prepare because she did not receive any report until the morning of the hearing. Here, Father had the first status review report for the original June 21, 2019 hearing in a timely fashion, whereas the untimely second report was an addendum to the original. The Department therefore contends Father had two full months from the filing of the original report in June to prepare for the August status review hearing. The addendum report merely provided updated information reflecting Father's current status in his case plan. As a result, the Department asserts that the addendum report did not fall within the provisions of section 366.21, subdivision (c), and that the Department was not required to deliver the report within the 10-day time period.
We are not persuaded. In its 25 pages, the addendum report sought to achieve the same purpose as the original status report, namely, to provide salient and detailed information regarding Father's progress on his case plan to reunify with his children. It contained the Department's recommendation for disposition, as well as an explanation for the recommendation not to return the children to Father. In short, it was a report prepared consistent with the content requirements of section 366.21, subdivision (c). The social worker provided information in the addendum report that covered a span of two months. Father's counsel had one day to review the report, and no time to gather information corroborating Father's testimony or refuting the additional assertions contained in the social worker's report. The social worker summarized conversations with service providers regarding Father's participation in various programs, and provided information supporting the social worker's contention that while Father had progressed in certain respects, particularly improving the quality of his visitation with the children, he had not progressed on his case plan sufficiently to compel the return of his children to him. The report contained substantive information, analysis and a Department recommendation.
We conclude that the 10-day statutory time period for delivery of status reports to the parties under section 366.21, subdivision (c) applied to the addendum report. Because of the stringent procedural requirements attendant on proposals to terminate parental rights in dependency proceedings, the Department's failure to comply with the statutory mandate to provide the addendum status report at least 10 days prior to the contested hearing date as required by section 366.21, subdivision (c), violated Father's due process rights.
Father contends that the violation of his due process rights and the juvenile court's error compels reversal of the court's order terminating reunification services for him and setting a selection and implementation hearing under section 366.26. He again relies on Judith P., wherein the court of review determined that failure to provide the status report more than 10 days prior to the review hearing constituted error that was reversible per se. (Id. at pp. 554-559.) The court found that failure to timely provide the status report in a dependency case is structural error because it implicates basic protections that affect the overall fairness of the proceeding; such error is reversible per se. (Id. at p. 558.) "If a section 366.21 hearing does not provide parents and children with the minimal due process required by statute, the resulting process, in the absence of a knowing and intelligent waiver of the right to such due process, cannot be regarded as fundamentally fair. It is fundamentally unfair to terminate either a parent's or a child's familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification." (Id. at pp. 557-558.)
The court found "failure to give a parent or minor adequate time to prepare for a section 366.21 hearing is an error that does not happen during the presentation of the case; in other words, it does not happen during the section 366.21 hearing. Rather, it happens before the hearing." (Judith P., supra, 102 Cal.App.4th at p. 557.) Thus as a practical matter, "our holding mandates that any party to a dependency proceeding who did not receive the status report at least 10 days before a pre-permanency planning review hearing must be granted a continuance or must expressly waive his or her right to the timely service of such report." (Id. at p. 558.)
Citing more recent dependency cases in which the harmless error test was applied to due process violations, the Department argues that we should not follow Judith P., but instead should evaluate whether any error in this case was harmless. For example, in the case of In re Celine R. (2003) 31 Cal.4th 45, 59-60 (Celine R.), the California Supreme Court considered the issue of whether denial of the appointment of separate counsel for each minor child at the section 366.26 hearing was reversible per se. The court concluded that the harmless error analysis should apply, finding that reversal is permitted "only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)" (Celine R., supra, 31 Cal.4th at pp. 59-60.)
Similarly, in the case of In re James F. (2008) 42 Cal.4th 901 (James F.), the California Supreme Court criticized the application of the structural error doctrine in certain dependency cases. The "significant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases. [Citations.]" (Id. at pp. 915-916.) The court considered whether a procedural error in appointing a guardian ad litem for a father suffering from mental illness required per se reversal, or was subject to harmless error review. (Id. at p. 911.) The court concluded that while the procedural error violated due process, it was not structural error and did not require per se reversal because the reviewing court could accurately determine whether any error was harmless: "[d]etermining prejudice in this context does not necessarily require 'a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (Id. at p. 915.) It was possible to evaluate whether the procedural violation impacted the outcome of the proceeding and caused actual harm. As such, the appropriate analysis was the harmless error test. (Id. at p. 918.)
While we appreciate the significance of the standard of review, we need not reach the issue of whether the Department's late delivery of the addendum report here constituted structural or harmless error because we conclude that Father's petition for a writ of mandate must be granted under either standard; even if we apply a harmless error analysis, the late filing of the addendum report was not harmless here. The Department contends that the addendum report "did nothing to alter the substance of the June 21 report," and the juvenile court found there was "nothing materially different" in the addendum report. The Department also asserts that Father was already aware of the information in the addendum report because he had interacted with the service providers who provided summaries to the assigned social worker, Mr. Gonzalez. As a result, the Department argues that although Father and his counsel did not have the addendum until a day before the pre-permancy planning hearing, the late provision of the report did not impact the hearing in any way, and the result, the juvenile court's decision to terminate reunification services for Father, would have been the same.
We are not persuaded by the Department's arguments. The August 21, 2019 addendum report contained new elements that were prejudicial to Father's case. First, it offered an assessment of Father's participation in WRAP services provided by Uplift Family Services that contrasted starkly with the letter from its Clinical Director contained in the original report of June 21, 2019. The Clinical Director stated on June 13, 2019 that Father "has been appropriate and does not appear to be threatening" and was "currently building trust with his wraparound team and advocating for his family in an appropriate way during child and family team meetings." Two months later in the addendum report, the assigned social worker indicated that according to the therapeutic services facilitator at Uplift Family Services, Child Family Team Meetings were not progressing well because of Father's focus on grievances against the Department and his desire to remove Mr. Gonzalez as his assigned social worker. As a result, according to the social worker, the team had shifted to a form of psycho-education with Father. The clear inference to be drawn was that Father was hostile to his social worker and was not participating effectively with the provider of WRAP services. Similarly, the addendum report indicated that Father had requested, in a conversation with a Department supervisor, Minerva Beltran-Gonzalez, that Mr. Gonzalez be removed as his assigned social worker. The addendum report portrayed Father as angry and unreasonable in the face of the assigned social worker's best efforts to reunite him with the children.
The Department argues that this information was similar to that provided in the original report of June 21, 2019. But these two items of addendum evidence were particularly prejudicial here because the social worker himself reversed his recommendation that services continue. Having authored the original and addendum reports that recommended continued reunification services for Father and the children, the assigned social worker, with no written notice to the parties, changed his opinion while testifying and asserted that services should be terminated for Father and the three children. He stated that he based his modified recommendation on Father's inability to complete the Batterer's Intervention Program within the 18-month window established in section 366.21, subdivision (g)(1)(C), as well as Father's inability to modify abusive interactions with the Department and service providers. Given the statutory presumption at a section 366.21 pre-permanency planning hearing that children will be returned to their parents, the information in the addendum report provided critical corroboration of the social worker's opinion that Father could not work constructively with service providers or the Department, and bolstered the impression that Father's angry behavior had worsened in the two months since the original report had been issued, such that termination of services was the logical next step for him.
When Father testified, he denied that he had requested the removal of the assigned social worker, although he affirmed that he had complained about the services provided by the Department. He similarly denied that the provider of WRAP services had modified the approach to reunification services because of Father's lack of cooperation. However, he had no way to corroborate his assertions. Father's attorney had objected to the introduction of the addendum report because the one-day notice of its contents did not make it possible for him to examine the Department supervisor's notes, or the notes from the WRAP service provider. He was unable to determine whether he could corroborate his client's testimony, or refute the testimony of the social worker. As counsel accurately noted, such evidence, if it existed, would have provided important input that could have impacted the juvenile court's determination of the credibility of the witnesses and the accuracy of the information contained in the Department's addendum report. And if such evidence did not exist, it would have provided Father's attorney with information enabling him to counsel his client to accept the Department's written recommendation that Father continue to receive reunification services without the contested hearing that resulted in a termination order.
We are mindful that the record amply describes Father's inability to control his anger and his failure to constructively address his own trauma experience in foster placement for the sake of his children. But the record also shows that Father participated in the reunification services ordered by the juvenile court. He had completed the 16-week Parenting Without Violence class, was attending the Batterer's Intervention Program, participated in 24 individual therapy sessions, and agreed with his therapist that he could benefit from additional therapeutic services. He also attended nearly all of his scheduled visits with his children, and was interacting with them lovingly. The juvenile court found that Father had taken "tangible" steps in his case plan. On this record, we conclude that even under a harmless error analysis, Father was prejudiced by the Department's failure to deliver the addendum report within the 10-day statutory timeline established by section 366.21, subdivision (c), because his attorney did not have the opportunity to review and investigate the information in the report and prepare a meaningful response to it. The result of the hearing was a decision to terminate reunification services to Father. The error in this case was not harmless.
Even assessed through the lens of harmless error, we emphasize that the Department should not ignore the 10-day statutory timeline established in section 366.21, subdivision (c). Given the statutory presumption of reunification at a section 366.21 pre-permanency planning hearing, as well as the procedural and substantive requirements imposed on the Department before a recommendation of termination may be proposed, it is unlikely that this court would find that one-day notice of an addendum report before a contested pre-permanency planning hearing is harmless where the Department recommends termination of services, or the juvenile court exercises its discretion to issue an order terminating reunification services. Nor is the remedy for the late provision of a supplemental report from the Department to thrust a parent who has not had an opportunity to consult carefully with counsel about the addendum report's contents or allow counsel to conduct basic investigation into its accuracy into the witness box to explain away new allegations. As Father's counsel rightly observed, the parent may have relevant information, but if the court, as the judge of credibility, does not believe the parent, evidence corroborating the parent or contradicting the contents of the supplemental report can be crucial. As noted in Judith P., as a practical matter, the parties may waive any defect in service; otherwise, a continuance should be the procedural remedy for defective service of the report.
III. DISPOSITION
The petition for extraordinary writ is granted. Let a peremptory writ of mandate issue directing respondent court to (1) vacate its August 21, 2019 order terminating reunification services and setting a permanency and planning hearing under Welfare and Institutions Code section 366.26; and (2) conduct a new contested section 366.21 hearing re-determining the issue of termination of reunification services. This court's stay order shall remain in effect until this decision is final. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490, subd. (b)(2)(A).)
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.