Opinion
G056062
06-11-2018
L.B., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
Sharon Petrosino, Public Defender, Kenneth Norelli, Assistant Public Defender, Brian Okamoto, Deputy Public Defender, for Petitioner L.B. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. Law Office of Harold La Flamme, Yaria Kennedy, for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16DP0969, 16DP0969A, 16DP0969B) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Gassia Apkarian, Judge. Request for stay. Petition and request for stay is denied. Sharon Petrosino, Public Defender, Kenneth Norelli, Assistant Public Defender, Brian Okamoto, Deputy Public Defender, for Petitioner L.B. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. Law Office of Harold La Flamme, Yaria Kennedy, for the Minor.
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L.B. (Mother) seeks extraordinary writ relief (Cal. Rules of Court, rules 8.450 & 8.452) from the juvenile court's February 2018 order setting a Welfare and Institutions Code section 366.26 hearing (all further statutory references are to the Welfare and Institutions Code). Mother contends the court erred when it denied her request to continue reunification services. We disagree and deny the petition and Mother's request for a stay of the section 366.26 hearing, currently scheduled for June 14, 2018.
FACTS
The procedural posture of this case is complicated. We provide this brief overview to guide the facts set forth more fully below. The case began in April 2015 in Los Angeles County Superior Court. The Los Angeles Department of Children Family Services (DCFS) filed a petition alleging medical neglect of then seven-month-old Z.M. DCFS detained the child on April 10, 2015, and retained jurisdiction over the case. Because the Los Angeles County court continued the matter at least four times, the court held the six-month review hearing on July 26, 2016, more than 15 months into the case.
In September 2016, the Los Angeles County court transferred the case to the Orange County Superior Court because Mother moved to Santa Ana. The Orange County court sent the case back to the Los Angeles County court because the 18-month review period was within 90 days of the transfer order. The Los Angeles County court held an 18-month review hearing on November 15, 2016, ordered the child placed with Mother with family maintenance services, and set a hearing on a motion to transfer the matter to Orange County.
We note with concern there is no record of the Orange County court receiving the case back from Los Angeles County court. This is particularly troubling because the Los Angeles County court had just placed a medically fragile child with Mother. The Orange County court described it this way: "during the time [Mother] had the child no one was watching. It's not clear who was in charge of the case, and three months go by between November 15 and February 16, 2017."
Ultimately, the child was re-detained due to a new petition filed by the Orange County Social Services Agency (SSA) in February 2017. Eventually, the Orange County petition was dismissed, the transfer was sorted out, and an amended petition was filed in Orange County adding the February 2017 incident to the initial Los Angeles County petition. At the time of the February 2018 hearing in Orange County, the child was three and one-half years old. The case had been proceeding for 34 months since the child was first detained. We find the procedural issues of this case and its lengthy timeline deeply troubling.
I. Detention (Los Angeles)
On April 6, 2015, DCFS received a referral stating a seven-month-old baby girl, Z.M., was the victim of general neglect by Mother. The referral claimed Mother was homeless, but staying at maternal grandmother's house. It also stated Z.M. had kidney problems and Mother failed to seek appropriate medical care for the baby. It further alleged Mother abused drugs and was prostituting herself, taking the baby with her. DCFS responded to Mother's home in Lancaster, but did not remove the child.
One day later, Z.M.'s maternal grandmother called DCFS stating Mother was trying to leave with Z.M. Mother's caseworker contacted the Los Angeles County Sheriff's Department, stating Z.M. had a life-threatening condition and she needed to remove the child from Mother to seek immediate treatment. Sheriff deputies removed the child from Mother. Mother fled to a bathroom and sent a text message stating she wanted to kill herself. Upon determining Mother was a danger to herself, deputies detained her for a 72-hour psychological evaluation.
On April 10, 2015, DCFS filed a petition in Los Angeles County on behalf of Z.M. pursuant to section 300, subdivision (b), failure to protect. DCFS alleged Mother's inability to provide necessary medical treatment for Z.M. placed her at risk of serious physical harm. The petition also mentioned Mother's history of bipolar disorder, suicidal ideation, and self-mutilation.
At the detention hearing on April 10, 2015, the Los Angeles County juvenile court determined DCFS made a prima facie showing and ordered Z.M. detained from Mother. The Los Angeles County court granted Mother reunification services.
II. Jurisdiction/Disposition (Los Angeles)
After several continuances, on September 23, 2015, the Los Angeles County court held a jurisdiction/disposition hearing. Mother submitted. The court sustained the petition, ordered Z.M. removed from Mother pursuant to section 361, subdivision (c), and ordered reunification services.
III. Six-Month Review (Los Angeles)
The Los Angeles County court continued the six-month review hearing several times, ultimately holding the hearing on July 27, 2016, nearly 15 months after the detention. The court found DCFS provided reasonable services. It also determined Mother to be in compliance with her case plan and found "there is a reasonable likelihood that this child will be returning back to custody of the [M]other within the next six months."
IV. First Attempt to Transfer The Case to Orange County
After the six-month review hearing, the Los Angeles County court transferred the case to Orange County Superior Court on August 25, 2016. However, on September 12, 2016, pursuant to juvenile court transfer protocol, Orange County transferred the case back to Los Angeles County because the 18-month review was within 90 days of the transfer order.
V. 18-Month Review (Los Angeles)
On November 15, 2016, Los Angeles County court held the 18-month review hearing. The court ordered the child placed with Mother under a plan of family maintenance. The court set the case for a motion to transfer to Orange County on December 15, 2016. From the time the child was first detained until she was returned to Mother, 19 months had passed, during which time Mother was provided services.
VI. Second Attempt to Transfer Case to Orange County
There was no record of Orange County receiving the case from Los Angeles County. In fact, the Orange County Inter-County Transfer coordinator noted that although the case was ordered sent to Orange County, "the case ha[d] not materialized" and "jurisdiction continue[d] to belong to [Los Angeles] County."
On January 5, 2017, a note in the minutes says the file was inadvertently not sent to Orange County. The Orange County court that eventually took the case explained the issues as follows: "So now the child is with Mother and it is not clear if anyone is paying attention to what is happening. There is a file that is lost. [¶] February 2, 2017, Los Angeles verifies case has been transferred to Orange County. [¶] On February 16, 2017, Orange County detains the child from Mother. [¶] . . . [¶] . . . Which means the child was in [M]other's care and custody from November 15 to February 16, almost perfectly three months. During which time the file seems to be lost."
VII. Detention (Orange County)
On February 15, 2017, SSA filed a petition in Orange County court pursuant to section 300, subdivisions (a), (b), and (e). The petition alleged that on February 10, 2017, then two-year-old Z.M. was observed with a black eye, mark on her right ear, dark mark on the back of her knee, abrasion on the back of her thigh, irregular shaped scar on her abdomen, thin red lines on her forearms, and an injury to her upper gum area. It further alleged Mother's mental health appeared to remain untreated. There was a history of substance abuse and domestic violence with Mother's boyfriend. The petition also alleged the circumstances that brought the child within the jurisdiction of Los Angeles County. On February 16, 2017, the Orange County court detained the child from Mother and provided reunification services.
VIII. Jurisdiction/Disposition (Orange County)
The Orange County court, recognizing a potential jurisdictional issue, granted SSA's motion to dismiss the February 15, 2017, petition without prejudice. SSA then filed a supplemental petition under section 387, alleging the same claims as initially filed on February 15, 2017. On April 20, 2017, the Orange County court found true the allegations in the supplemental petition after Mother submitted.
On May 9, 2017, the court declared the child a dependent under section 360, subdivision (d), and ordered the child removed. Z.M. was placed with her maternal aunt. The court made findings under section 361, subdivision (c)(1), and section 361.2, subdivision (a). Mother's case plan included general counseling, parenting education, medical visits, and random drug and alcohol testing. The court granted Mother six hours of monitored visitation per week.
IX. Interim Review Hearing
SSA's interim review report noted Mother maintained "stable, safe housing" in Santa Ana. She also completed a parenting class and was attending therapy. She was going to school and was interviewing for a job. Mother's drug tests were all negative. The social worker reported Mother had a pleasant, cooperative, and friendly attitude. The court granted Mother an additional four hours of visitation per week, for a total of 10 hours weekly. In October 2017, the court approved another four hours per week of monitored visitation, and granted up to two hours of unsupervised visits per week.
X. Six-Month Review (Orange County)
SSA filed the six-month review status report on November 9, 2017, followed by three addendum reports. In the six-month status review report, SSA recommended terminating reunification services at the six-month review hearing. Z.M. was living with her maternal aunt, who was willing to adopt. SSA noted Mother only partially participated in therapy. Mother was inconsistent in visiting, but was appropriate and positive with the child when she did visit. SSA expressed concern for Mother's limited support system and for the fact her apartment in Santa Ana was paid by someone with whom she had allegedly experienced domestic violence.
In the first addendum report dated January 16, 2018, SSA reported Mother was making little progress with her therapist and noted nine missed drug tests in the reporting period. SSA noted it gave Mother a list of Orange County transitional housing programs and told Mother she needed to search for her own housing. Mother was working in Orange County.
The second addendum report, filed January 31, 2018, stated Mother was resistant to therapy, did not accept challenges, shut down in stressful situations, and had no support system. It also noted Mother said she was moving back to Lancaster. The third addendum report from February 14, 2018, pertained only to Father and is inapplicable to this petition.
Father is not a party to this petition.
What was deemed the six-month review hearing began on February 20, 2018. Even though the court initially called the hearing a six-month review, the court recognized that the hearing was "at the end of every possible timeline" and also referred to the hearing as an 18-month review. In fact, the hearing took place over 34 months after Z.M. was initially detained.
The social worker assigned to the case since June 2017 testified. She stated she never reviewed the petition from Los Angeles County, nor did she receive any documents from the Los Angeles County case. She never contacted any social workers from Los Angeles County.
While the social worker did not have concerns based on Mother's visits with Z.M., she had a "gut" feeling Mother's apartment was not safe due to Mother not being forthcoming about who lives there. She believed Mother's boyfriend lived in her apartment because during one visit she heard a male coughing in a bedroom. She counseled Mother to find more suitable housing on multiple occasions. The social worker said that after Mother moved out of Orange County, her visits changed and she began missing visits.
SSA recommended terminating Mother's services because she had not fully complied with or shown a lot of progress in her case plan. She also noted the child remained placed with a relative who was willing to adopt.
Mother testified Z.M. was initially removed from her care due to medical neglect, her being a young mother, and lacking transportation to get the child medical help. Mother stated she participated in 18 months of services, including drug testing, counseling, and parenting courses to get her child back.
Mother testified the coughing the social worker heard was from a television. Mother testified she quit her job and moved to Lancaster in hopes of reuniting with her daughter. Mother stated the sole reason she moved from her apartment in Santa Ana to Los Angeles County was because the social worker made her feel if she stayed in Santa Ana she would not obtain custody of her child.
The court determined SSA failed to provide Mother with reasonable services because it pushed her to move from a stable housing situation to an unstable situation. "I have gone through each part of the case plan for . . . Mother and based on the shortcomings of the agency as it relates to . . . pushing the Mother in directions that were absolutely unnecessary the court does make the finding that reasonable services were not provided."
While the court determined Mother had been compliant with services until December 2017, once she moved out of Orange County, Mother showed a lack of understanding as to what she needed to do as a parent. The court found Mother had not made significant progress in her case plan objectives and found it was not in the best interest of the child to extended services for another six months.
DISCUSSION
Mother claims the court erred by denying her request to continue reunification services. We disagree.
"Continuances are discouraged in dependency cases." (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) However, upon request of counsel for the minor or petitioner, the court may continue a hearing unless a continuance would be "contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).) "We review the court's rulings on a continuance request for an abuse of discretion. [Citation.]" (In re Mary B. (2013) 218 Cal.App.4th 1474, 1481.)
Under section 361.5, subdivision (a), whenever a child is removed from a parent's custody, the court must order SSA to provide reunification services to the child and to the parents for a statutorily specified time period. (§ 361.5, subd. (a).) "This requirement implements the law's strong preference for maintaining the family relationship if at all possible. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) It is also the "intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.)
Where, like here, a child is less than three years old when they are detained, "the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months." (§ 361.5, subd. (a)(3)(C).) While services are presumptively provided for 12 months to children over the age of three and their parents (§ 361.5, subd. (a)(1)(A)), the general rule for children under the age of three on the date of initial removal is that "court ordered services shall be provided for a period of [six] months from the dispositional hearing." (§ 361.5, subd. (a)(1)(B); see In re Christina A. (2001) 91 Cal.App.4th 1153, 1160-1161.) "'[U]nique developmental needs of infants and toddlers'" justify a greater emphasis on establishing permanency and stability earlier in the dependency process "'in cases with a poor prognosis for family reunification.'" (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611-612.)
We are mindful of the procedural posture of this case. While the Orange County court purported to hold a six-month review hearing in February 2018, Mother concedes "the court was correct in giving deference to section 366.22 [18-month review]." "[O]nce the section 361.5 clock begins, it continues to run despite a placement of the child with a parent during the dependency." (In re A.C. (2008) 169 Cal.App.4th 636, 648.)
At the 18-month review hearing, "[t]he minor must either be returned to the physical custody of his or her parent or the court must terminate reunification services and set a hearing for the selection and implementation of a permanent plan." (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015; § 366.22.) "At the critical juncture of the 18-month hearing, the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a reasonable services finding. In mandatory, unequivocal terms, section 366.22, subdivision (a)[,] states that if the minor is not returned to parental custody at the 18-month review, 'the court shall order that a hearing be held pursuant to [s]ection 366.26 . . . . The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent . . . . The court shall determine whether reasonable services have been offered or provided to the parent . . . ."' (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511(Denny H.).)
Section 361.5, subdivision (a)(3)(A), provides that reunification services may not be extended beyond 18 months from the date the child was removed from the parent's physical custody absent extraordinary circumstances involving some external factor which prevented the parent from participating in the case plan. (Denny H., supra, 131 Cal.App.4th at p. 1510.) "In determining whether court-ordered services may be extended, the court shall consider the special circumstances of an incarcerated or institutionalized parent or parents, parent or parents court-ordered to a residential substance abuse treatment program, or a parent who has been arrested and issued an immigration hold, detained by the United States Department of Homeland Security, or deported to his or her country of origin, including, but not limited to, barriers to the parent's or guardian's access to services and ability to maintain contact with his or her child." (§ 361.5, subd. (a)(3)(A).) Under these limited circumstances the court may delay a "section 366.26 hearing if the court finds reasonable reunification services have not been offered or provided." (Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1504.) In such a situation, a parent may request a continuance pursuant to section 352, which "provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing." (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799.)
Mother argues the Orange County trial court erred by refusing to grant a continuance under section 352 for an additional six months of reunification services. She further claims a continuance is in the best interest of her child because the court determined SSA failed to provide reasonable services. She, however, "concedes she does not otherwise fit the statutory description as she is not in a court-ordered residential treatment program nor recently released from government custody."
For a child under three years old at the time of detention, like Z.M., court-ordered reunification services may be extended up to a maximum period of 18 months. This is consistent with the imperative to resolve dependency cases in a timely manner and to provide permanent placement for young children quickly. The 18-month period commences on the date the minor originally was removed from parental custody. (§ 361.5, subd. (a)(3)(A).) Here, the child was removed from Mother's custody on April 10, 2015. At the time of the "six-month" hearing in Orange County, 34 months had elapsed since removal—16 months beyond the 18-month maximum.
We conclude a continuation for six months, bringing the total time since initial detention to 42 months, would be outside the scope of what the Legislature intended with enactment of the continuance statute. Indeed, the Orange County court likely acted in excess of its authority by holding the "six-month" review hearing 16 months past the 18-month mark. However, this extension inured to Mother's benefit by extending her services, and it does not entitle her to any relief.
This case has gone on for more than three years since Z.M. was initially detained. She will turn four years old this fall. Reunification efforts were ongoing for many, many months, even if the services provided were not always perfect. After the time for reunification services expires, the juvenile court's focus shifts from the initial goal of family reunification to "promoting the child's needs for permanency and stability. [Citation.]" (In re J.C. (2014) 226 Cal.App.4th 503, 527.) The court did not abuse its discretion in denying Mother's request for a continuance.
DISPOSITION
The petition seeking extraordinary relief from the juvenile court's orders terminating reunification services and setting a section 366.26 hearing for June 14, 2018, is denied, as is the request for a stay of that hearing.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. THOMPSON, J.