Opinion
C090669
07-01-2020
In re N.R. et al., Persons Coming Under the Juvenile Court Law. LASSEN COUNTY HEALTH AND SOCIAL, Plaintiff and Respondent, v. M.P., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. J6353, J6352)
Appellant M.P., mother of the minors G. and N., appeals from the juvenile court's orders denying her petitions for modification and terminating parental rights. (Welf. & Inst. Code, §§ 388, 366.26, 395.) She contends the juvenile court erred by denying her petitions for modification seeking reinstatement of reunification services or return of the minors. We conclude the juvenile court erred as to the petition relating to minor N. only and remand with instructions.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts is unnecessary to the resolution of this appeal.
On February 20, 2018, Lassen County Child and Family Services (Department) was informed that mother and her newborn, minor G., had tested positive for methamphetamine at the time of G.'s birth. Mother agreed to sign a voluntary case plan, which permitted her to retain custody of G. and G.'s two-year-old half sibling, N. On March 8, 2018, the Department was informed by a hospital social worker that the parents were having trouble caring for G. G. was taken into protective custody on March 12, 2018.
On March 14, 2018, the Department filed a detaining section 300 petition on behalf of G. based on mother's methamphetamine use and history of illicit substance abuse, G.'s positive toxicology screen at birth, parents' failure to provide food and proper care, and father's history of criminal activity and substance abuse. The Department filed a nondetaining section 300 petition on behalf of N., based on G.'s positive toxicology screen, mother's methamphetamine use and history of illicit substance abuse. The juvenile court ordered G. detained at the March 15, 2018, initial/detention hearing. The initial hearing for N. was held on April 9, 2018. N. was not detained.
Jurisdiction hearings for both minors were held on April 30, 2018. The juvenile court found the allegations of the petitions true and took jurisdiction over both minors. Disposition hearings for both minors were held on May 14, 2018. Both minors were declared dependents. G. was ordered removed from parental custody. N. was not removed from parental custody. Mother was provided reunification services as to G. and family maintenance services as to N.
On July 9, 2018, the Department filed a section 387 petition on behalf of N. based on mother's continued methamphetamine use, failure to provide proper care for N., and failure to comply with her case plan. A detention hearing on the section 387 petition was held on July 9, 2018, after which N. was ordered detained. The jurisdiction hearing on the section 387 petition was held on August 13, 2018. The juvenile court found the allegations of the petition true. The disposition hearing on the section 387 petition was held on September 10, 2018. N. was ordered removed from mother's custody and mother was afforded reunification services. N. was placed in the same home as G.
Mother worked on her sobriety but had been in and out of the Crossroads program on multiple occasions and had been unable to secure stable housing. On April 8, 2019, at the conclusion of the combined six-month review hearing for N. and 12-month review hearing for G., reunification services as to both minors were terminated. A combined section 366.26 hearing for both minors was set for July 29, 2019, but was continued and ultimately held on September 5, 2019.
On August 21, 2019, prior to the section 366.26 hearing, mother filed section 388 petitions for modification in each minor's case seeking reinstatement of reunification services or, in the alternative, placement of the minors with family maintenance services. A contested hearing on the section 388 petitions was held on September 5, 2019, just prior to the combined section 366.26 hearing. After hearing evidence, the juvenile court denied mother's petitions. As it is relevant to our discussion, we set forth the juvenile court's oral ruling, in its entirety here:
Mother had also filed earlier section 388 petitions on July 29, 2019, seeking reinstatement of reunification services as to each minor. Those petitions were denied without prejudice.
"[Minors' counsel] said it best, this case just timed out. Children under three years of age, you are up against a timeline. The initial removal for G[.] was on the 12th of March, 2018. We had our six-month review hearing, services were continued and finally terminated on April 8th of 2019.
"The sibling, N[.], was detained on the 9th of April, 2018. In hearing the request, in essence, to obtain services from the department, the Court still is bound by Welfare & Institutions Code Section 361, specifically 361 (a) (3). And it says court ordered services may be extended up to a maximum time period not to exceed 18 months from the date the child was removed from physical custody of his or her parents or guardian if it can be shown at the hearing held pursuant to subdivision (f) of 366.21 that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period.
"It further states the court shall extend the time period only if it finds there were substantial probability the child will be returned to the physical custody of his or her parents or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian.
"As we stated, the 18 months runs from the initial removal. The initial removal is March 12th, 2018. Eighteen months is September 12th, 2019, six days from today.
"The likelihood of these issues that need to be resolved prior to that running to the sixty [sic] days, not great. It's actually nonexistent.
"While there is a person that would come in and inform the Court that there is residence that she can move to with the children, it hasn't happened. Second of all, we don't even know if it is a safe environment for those children to be.
"On that alone, the Court doesn't have sufficient time to work with [mother] to try and get to that point to where we're satisfied that the children are in a safe environment.
"Second of all is that we don't even know, there's no time that she's actually put into the residential treatment to show that it's likely that she'll substantially comply while she's been in treatment residence, it is not the same as what the Second Step is to provide to her. She has made progress, she has done things on her own.
"Had this petition come to us and the facts that were generating the 180 petition were the same in May, we would have had time to work with it, we could have granted additional services, we could have worked with it because the review date wouldn't be until September 12th, next week, 18 months would expire and there's a possibility there would have been stable housing involved where we could have proceeded towards maintenance.
"Based upon the facts as they stand today and what's been presented, the Court has taken into consideration the case of in re P.C. at 165 Cal App 4th 98 regarding housing. Also taken into consideration in re GSR, 159 Cal App 4th 1202. The Court has heard from the parties with regards to housing and the department did assist. While there is—the Court's also aware that Section 8 has been approved but it's not materialized, there's nothing there, so I can't say in the next six days there's actually going to be a residence for these children to reside in and that it would be a proper residence for them pursuant to the code and that we can actually comply with Welfare & Institutions Code Section 361 (a) (3) and therefore, the Court cannot find a substantial probability that the children would be returned to the physical custody of the mother by September 12th, 2019 based upon the facts that were provided here today.
"Furthermore, the Court doesn't find that the level of services provided by the department were such that the Court could make a finding that the services were not reasonable and they did not provide services to the parent pursuant to the code and also to the case plan that's been provided in these proceedings. While there always could have been better service provided, they weren't such that the Court finds the department inept in providing services.
"This is a difficult case because we do want to reunify families. I've looked at the code sections, I've looked at the statutes, we just timed out on this case. Based upon the age of the children, I'm going to have to deny the request for services in these proceedings because I cannot find that the permanent plan for the children that they will be returned to their safely maintained residence with the mother by extending this case for the 18th month which would expire in six days. I can't make that finding. Therefore, the 180 request is denied in this proceeding."
The combined section 366.26 hearing was continued and ultimately concluded October 10, 2019. The juvenile court found both minors adoptable, no exceptions to adoption to apply, and terminated parental rights.
DISCUSSION
Mother contends the juvenile court erroneously denied her section 388 petitions for modification on the ground that she had already exceeded the maximum time for reunification services.
A. Section 388 Petitions for Modification
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on "new evidence" or a showing of a "change of circumstance." "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
Section 388 provides, in part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a)(1).) The court must set a hearing if "it appears that the best interests of the child . . . may be promoted by the proposed change of order." (§ 388, subd. (d).)
However, "[a]fter the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317; accord, In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)
The determination of a petition to modify is "committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The court necessarily abuses its discretion, however, if it bases its decision on findings of fact that are not supported by substantial evidence in the record as a whole. (See People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.)
B. Reunification Timelines
As we have previously noted, "[t]he manner in which the timeframe for providing reunification services is calculated changes as the case progresses." (San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 222 (San Joaquin Human Services Agency).)
At the time these minors were removed, they were both under the age of three. Reunification services for a child under age three at the time of initial removal are limited to "a period of 6 months from the dispositional hearing . . ., but no longer than 12 months from the date the child entered foster care." (§ 361.5, subd. (a)(1)(B).) Section 361.49 provides that "a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or 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." The time of initial removal is properly measured from the date the minor was taken into protective custody. (San Joaquin Human Services Agency, supra, 227 Cal.App.4th at p. 222.)
In these cases, if the "parent failed to participate regularly and make substantive progress in a court-ordered treatment plan," the court is authorized to set a hearing under section 366.26 at the six-month review. (§ 366.21, subd. (e)(3).) If the Department has provided reasonable services, extension of reunification services beyond six months is authorized only if the court finds a "substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months." (§ 366.21, subd. (e)(3).) Section 361.5 creates a presumption that services will be provided only for six months in the case of such a young child. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843; Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027.) The juvenile court can, however, continue reunification services up to 12 months from the time the minor entered foster care. (§§ 361.5, subd. (a)(1)(B), 366.21, subd. (g)(1).)
The juvenile court may extend reunification services beyond that 12-month date and up to 18 months from the date of initial removal only if it makes the specific factual findings set forth in sections 361.5, subdivision (a)(3) and 366.21, subdivision (g)(1). (§ 361.5, subd. (a)(1), (3); see In re T.W. (2013) 214 Cal.App.4th 1154, 1165.) Again, this time is properly measured from the date the minor was taken into protective custody. (San Joaquin Human Services Agency, supra, 227 Cal.App.4th at p. 222.) Specifically, section 366.21, subdivision (g)(1) provides that if the minor is not ordered returned to the parents within the time period provided in subdivision (a)(1) of section 361.5, the juvenile court may "[c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the minor was originally taken from the physical custody of his or her parent. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." In order to find a substantial probability the child will be returned to his parent's custody and safely maintained in the home within the extended period of time, the court must find "all of the following: [¶] (A) That the parent . . . has consistently and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent . . . 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." (§ 366.21, subd. (g)(1).) "[T]he Legislature has set a very high hurdle for continuing the case beyond 12 months," essentially requiring the juvenile court to determine if the parent "has demonstrated sufficient rehabilitation to complete the program plan in the extended time, as well as the ability to once more adequately provide for a child's emotional and physical well-being." (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060, 1062.)
"The parallel provisions of section 361.5, subdivision (a), limit reunification services to ' "a maximum time period not to exceed 12 months," which under certain circumstances may be extended to 18 months.' [Citation.] Services may be extended for this additional six-month period 'if it can be shown that the objectives of the service plan can be achieved within the extended time period.' " (In re Monica C. (1995) 31 Cal.App.4th 296, 304; § 361.5, subd. (a)(3)(A).)
There are some circumstances, not present here, which may permit the juvenile court to extend reunification services beyond the 18-month limit. Those circumstances require the juvenile court to make the additional findings set forth in section 366.22, subdivision (b)(1)-(3) or involve exceptional circumstances, such as an external factor that thwarted the parent's efforts at reunification. (See San Joaquin Human Services Agency, supra, 227 Cal.App.4th at p. 222; In re J.E. (2016) 3 Cal.App.5th 557, 564 ["juvenile court may extend services beyond the 18-month statutory period if it finds 'extraordinary circumstances "involv[ing] some external factor which prevented the parent from participating in the case plan" ' "].)
It is clear from the juvenile court's remarks in this case that it considered the 18-month time limit for reunification services in denying mother's section 388 petitions. Mother contends the juvenile court erred and violated her right to due process in applying the timelines set forth in 361.5 to her section 388 petitions for modification. As support for her contention, mother cites to Marilyn H., supra, 5 Cal.4th 295. Marilyn H. does not support her contention.
The court in Marilyn H. considered whether a parent is denied due process by limiting the issues at a section 366.26 hearing to exclude consideration of return of the minor to parental custody. (Marilyn H., supra, 5 Cal.4th. at p. 307.) It found significant safeguards built into the dependency system, including the parent's right to utilize the "escape mechanism" of a section 388 petition "to revive the reunification issue" to provide "the parent due process and fundamental fairness while also accommodating the child's right to stability and permanency." (Marilyn H., at pp. 307-309.) Because a section 388 petition allowed a parent to address the possibility of considering reunification, even after the focus has shifted from reunification to stability for the child and up to the time of the section 366.26 hearing, the termination of reunification services and setting of the section 366.26 hearing did not establish an "irrefutable presumption of parental unfitness, which is then applied at the section 366.26 hearing." (Marilyn H., at p. 309.) Thus, "the Legislature has provided the parent an adequate opportunity to show current evidence of changed circumstances and has given the court the chance to consider it prior to the section 366.26 hearing without unnecessarily disrupting the focus and efforts of the court to establish permanency for the child" by including return of the minor to parental custody in the section 366.26 dispositional options. (Marilyn H., at p. 310.)
Marilyn H. addressed a parent's due process rights to have the court consider the possibility of reunification up to the time of the section 366.26 hearing, not the parent's right to obtain additional reunification services up until that time or beyond the 18-month period. (Marilyn H., supra, 5 Cal.4th at pp. 309-310.) Nothing in Marilyn H., or the other cases cited by mother, secure a parent the right to receive reunification services beyond the 18-month timeframe set forth in section 361.5. Indeed, Marilyn H., repeatedly and expressly notes the 18-month limitation for reunification services. (Marilyn H., at pp. 308-310.)
In considering the minors' best interests, the juvenile court properly considered whether return of the minors to parental custody was likely to occur within the remaining timeframe. This was necessary since the court cannot indefinitely continue reunification services, but rather, is constrained by the timeframes set forth in section 361.5. It appears from the record, however, that the juvenile court relied on its incorrect belief that mother was "out of time" as to both minors and it did not have the authority to grant her section 388 request seeking additional reunification services.
C. Reunification Timelines as Applied
Applying the timelines for reunification services set forth in sections 366.21 and 361.5 here, G. was taken into protective custody on March 12, 2018, and placed in foster care, as defined by section 361.49, on April 30, 2018 (the date of the jurisdiction hearing). Accordingly, mother's six-month reunification period for G. began at the time of disposition on May 14, 2018. The 12-month period ended on April 30, 2019 (12 months from G.'s entry into foster care) and the 18-month time frame expired September 12, 2019 (18 months from initial removal).
As to N., she was not, as the juvenile court believed, detained at the April 9, 2018 initial hearing on the March 14, 2018 section 300 petition. She was detained on July 9, 2018, in conjunction with a section 387 petition. She was placed in foster care, as defined by section 361.49, at the August 13, 2018 jurisdiction hearing on the section 387 petition. Thus, mother's six-month reunification period for N. began at the time of section 387 disposition, which took place on September 10, 2018. The 12-month period ended on August 13, 2019 (12 months from N.'s entry into foster care) and the 18-month time frame expired January 9, 2020 (18 months from initial removal).
Mother's reunification services were terminated on April 8, 2019. At that time, mother had received almost 12 months of reunification services with G. and seven months of reunification services with N. The hearing on mother's section 388 petitions seeking additional reunification services took place on September 5, 2019. As it can be seen, although mother's reunification period with G. was to expire in seven days, there were four months remaining in the 18-month reunification period with N.
Although mother's petitions sought, in the alternative, return of the minors to her custody, she does not challenge the juvenile court's denial of this request.
Thus, as shown, the juvenile court, having used the incorrect date for N.'s detention, incorrectly found mother was "out of time" as to that minor. At the time of the hearing on mother's section 388 petitions, the juvenile court was authorized to provide four additional months of reunification services as to N., if it found mother had made a sufficient showing of changed circumstances and that such services were in N.'s best interests. (See In re A.A. (2012) 203 Cal.App.4th 597, 612 ["change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order"].)
D. Remedy
We cannot find the court's reliance on being "out of time" harmless in this case. The juvenile court's oral remarks expressly indicated it may have come to a different conclusion had the petitions and circumstances supporting it occurred in May when there were still four months remaining before expiration of the 18-month time limitation. The court remarked that, under those circumstances, there would have been a possibility of stable housing such that return of the minors may be appropriate. Of course, there was remaining reunification time as to only one (N.) of the two young half siblings. We recognize that these minors have been placed together such that the reunification and permanency plans of one may affect the best interests of the other. But the juvenile court, having believed mother was out of time as to both minors, did not have the occasion to consider N.'s best interests in this regard and we cannot impose our judgment in lieu of the juvenile court's in determining the best interests of the minors.
Therefore, we reverse the order denying mother's section 388 petition for modification and conditionally reverse the section 366.26 orders terminating parental rights as to minor N., and remand for the limited purpose of permitting the juvenile court to make its findings on mother's section 388 petition regarding change of circumstances and best interests of N. Dependency matters are not static and circumstances may change between the time of the hearing appealed and the hearing on remand. (In re S.D. (2002) 99 Cal.App.4th 1068, 1083; In re Eileen A. (2000) 84 Cal.App.4th 1248, 1259.) Thus, the juvenile court should make its findings based on the state of the evidence as presented on remand. If the juvenile court denies mother's section 388 petition, it shall reinstate its section 366.26 orders terminating parental rights. If the juvenile court grants mother's section 388 petition for modification, the section 366.26 orders terminating parental rights are vacated and the juvenile court shall proceed accordingly.
DISPOSITION
As to minor G. (Lassen County case No. J6352), the orders of the juvenile court are affirmed.
As to minor N. (Lassen County case No. J6353), the order denying mother's section 388 petition for modification is reversed and the section 366.26 orders terminating parental rights are conditionally reversed. The matter is remanded for the limited purpose of permitting the juvenile court to make its findings and new orders on mother's section 388 petition regarding change of circumstances and best interests of N. If the juvenile court denies mother's section 388 petition, it shall reinstate its section 366.26 orders terminating parental rights. If the juvenile court grants mother's section 388 petition for modification, the section 366.26 orders terminating parental rights are vacated and the juvenile court shall proceed accordingly.
/s/_________
BLEASE, J. We concur: /s/_________
RAYE, P. J. /s/_________
MURRAY, J.