Opinion
F074047
01-30-2017
In re Q.M. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. B.P. et al., Defendants and Appellants.
Lelah Selene, under appointment by the Court of Appeal, for Defendant and Appellant, B.P. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant, J.M. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. Nos. 517453 & 517454) OPINION THE COURT APPEAL from orders of the Superior Court of Stanislaus County. Edward M. Lacy, Jr., Judge. (Retired judge of the Stanislaus County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Lelah Selene, under appointment by the Court of Appeal, for Defendant and Appellant, B.P. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant, J.M. No appearance for Plaintiff and Respondent.
Before Levy, Acting P.J., Kane, J., and Peña, J.
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Appellants Jeremy M. (father) and B.P. (mother) are the parents of a son and daughter, now 11-year-old Q.M. and seven-year-old N.M., respectively. At a contested dispositional hearing in May 2016, the juvenile court ordered the children removed from parental custody pursuant to a supplemental petition under Welfare and Institutions Code section 387 and denied appellants reunification services. The juvenile court also ordered the children directly into long-term foster care (§ 366.26, subd. (b)(7)) and, in a conflicting ruling, set a hearing to implement a permanent plan under section 366.26. Appellants contend the juvenile court erred in removing the children from their custody and in not providing them reunification services. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
PROCEDURAL AND FACTUAL SUMMARY
This dependency case originated in San Luis Obispo County in September 2013, when then eight-year-old Q.M. and four-year-old N.M. were taken into protective custody by the San Luis Obispo County Department of Social Services (department). The department had received reports that the family had very little food and the home was filthy and had no electricity or running water. In addition, mother was acting erratically, screaming profanities and hearing voices. Father suspected she was "coming down" from methamphetamine. He said he used methamphetamine once or twice a week and had done so for the past year.
In November 2013, the juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered the parents to participate in family reunification services. The parents fully complied with their services and maintained a strong and loving bond with the children. Consequently, in July 2014, the juvenile court ordered the children returned to their custody under family maintenance. In October 2014, father moved out of the family home after he tested positive for methamphetamine. He continued to struggle with methamphetamine addiction and was in and out of substance abuse treatment programs but was employed and randomly tested for drugs. Meanwhile, the children remained in mother's custody.
In December 2015, the Stanislaus County juvenile court accepted the case in transfer and set a review hearing in January 2016. Placement specialists from the Stanislaus County Community Services Agency (agency) visited mother at her home prior to the hearing. Mother admitted using a "line of meth" and drinking two, 16-ounce beers at approximately 9:00 p.m., on New Year's Eve. Afterward, she drove the children home. She had also relapsed in June and September of 2015.
The agency took then 10-year-old Q.M. and six-year-old N.M. into protective custody and placed them with a relative. The agency filed a supplemental petition, alleging family maintenance services had proven ineffective in protecting the children from their parents' drug abuse.
The juvenile court ordered the children detained and set the matter for a jurisdictional/dispositional hearing (combined hearing). In its report for the combined hearing, the agency advised the juvenile court mother and father were unable to parent the children safely despite 28 months of child welfare services. The agency recommended the court deny mother reunification services under section 361.5, subdivision (a)(3) (services exceeded 18 months) and father under section 361.5, subdivision (b)(13) ("extensive, abusive, and chronic" history of drug use) and set a section 366.26 hearing to consider a permanent plan of adoption or legal guardianship.
In April 2016, the juvenile court conducted the contested combined hearing. County counsel made an offer of proof that mother completed substance abuse services approximately a week before the hearing and was participating in aftercare. She had an appointment scheduled for individual counseling and tested negative for drugs. The children were living with a relative in the Bay Area and the parents were visiting them. The offer of proof was accepted.
The juvenile court sustained the supplemental petition and continued the hearing after requesting briefing on its dispositional options. The court stated it would not return the children to parental custody, but would not issue an order that could result in the termination of parental rights. The court's preference was to continue reunification services if legally possible. County counsel argued that the court could not continue services because the parents had already exceeded the statutory time limit on services. County counsel also acknowledged that the parents and children were bonded and stated that the agency's recommendation was to place the children with the relatives under a legal guardianship.
On May 16, 2016, the juvenile court issued its ruling. The court informed counsel it was satisfied based on the briefing that it could not order further reunification services because of the "time lapse." However, the court believed it could order that the children remain in foster care under section 366.26, subdivision (b)(7) subject to periodic review under section 366.3. The court stated:
"The court has looked at [s]ection 366.26, and the Court also looked at [section 366.3], which [counsel is] suggesting the Court could go to [section 366.3]. However, the Court believes that is jumping the gun, and the Court has to set a [section 366.26] hearing first.
"And the Court does not find that there is any need, at this time, for adoption or a guardianship.
"It appears to the Court that it can make an order under [section 366.26, subdivision (b)(7)], ordering that the children remain in foster care and then set a [section 366.3] review."
County counsel objected to the juvenile court's proposed ruling, arguing the agency was seeking to establish a guardianship for the children not terminate parental rights and that the children needed permanency. However, county counsel believed the court could legally rule as it proposed. The court stated, "I have to do the [section 366.26], and I'm suggesting I'm going to do it under [section 366.26, subdivision (b)(7)], which is long-term foster care. And, then, at this time, I would make that order. So the children would ... remain in foster care, at this time, and then I would set a [section 366.3] hearing." The court stated it was going to make the required findings necessary to make an order under section 366.26, subdivision (b)(7) but made no such findings on the record. Instead, the court set a "periodic review" for October 18, 2016. In the minute order, however, the court set a section 366.26 hearing for October 18, 2016, and, in a separate order, removed the children from parental custody. The court did not advise the parents of their right to seek writ review of its dispositional and setting orders.
On July 12, 2016, the juvenile court issued a minute order nunc pro tunc to clarify its dispositional orders. The order advised the parents of their right to file a writ petition within seven days of the date of the order and directed the courtroom clerk to mail a writ packet to the parents with a copy of the clarification order. The clerk e-mailed the minute order to the attorneys.
On July 14, 2016, the parents each filed a notice of appeal, which we assigned our case No. F074047. The following day, mother filed a notice of intent to file a writ petition in pro se in our case No. F074046. In her writ petition, mother argued the juvenile court lacked authority to order the children directly into long-term foster care under section 366.26, subdivision (b)(7) and appeared for oral argument. On the day of oral argument and after the panel submitted the case, father's appellate counsel filed a motion asking this court to consolidate the appeal with mother's writ petition and to stay the section 366.26 hearing. Mother's appellate counsel joined in the motion. We denied the motion and issued an opinion, granting mother's writ petition.
B.P. v. Superior Court (Oct. 10, 2016, F074046) [nonpub. opn.]. We take judicial notice of our opinion. (Evid. Code, § 452, subd. (d); Cal. Rules of Court, rule 8.1115(b)(1).)
CONTENTIONS
Father contends the juvenile court's oral pronouncement on May 16, 2016, setting a section 366.3 review hearing controls over the minute order for the same hearing setting a section 366.26 hearing. He further contends the juvenile court, having set a section 366.3 hearing, erred in not providing him family reunification services.
Mother contends the juvenile court erred in removing the children from her custody and in denying her family reunification services.
Real party in interest contends the only potentially reviewable issue is the one father raises concerning the provision of reunification services. Real party points out that the juvenile court's dispositional orders are not appealable because the court issued them in conjunction with an order setting a section 366.26 hearing. Such orders are not subject to review by direct appeal but by a petition for extraordinary writ. (§ 366.26, subd. (l)(1); Cal. Rules of Court, rule 8.450.) Under the circumstances, real party does not oppose our review of mother and father's issues by direct appeal given the court's failure to advise them of their writ rights. Nevertheless, real party contends our opinion in mother's writ petition disposed of the issues she raises and urges us to review father's issue only. We concur.
Real party in interest's concession that the juvenile court failed to properly advise appellants of their writ rights obviates the need for us to address the validity of the nunc pro tunc order. Appellants contend the court improperly used the order to change its ruling (i.e., the setting of a section 366.3 hearing to a section 366.26 hearing), instead of using it for its proper purpose—to correct a clerical error. Therefore, they argue, the order, including the writ advisement, is void, permitting them to proceed by way of direct appeal.
DISCUSSION
Mother's Writ Petition
The juvenile court fundamentally erred in this case when it prematurely selected a permanent plan of long-term foster care for the children at a dispositional hearing rather than from a section 366.26 hearing. The court then injected procedural confusion by issuing conflicting orders as to the nature of the hearing to follow.
In her writ petition, mother challenged the juvenile court's authority to order the children directly into long-term foster care under section 366.26, subdivision (b)(7) from a dispositional hearing. We first resolved the court's conflicting rulings in favor of its oral pronouncement ordering the children into long-term foster care and setting a review hearing under section 366.3. We concluded that the court had no authority to select a permanent plan and was required to conduct a section 366.26 hearing. We explained that section 361.5, subdivision (a), the governing statute, requires the court to set a section 366.26 hearing to determine whether adoption, guardianship or long-term foster care is the appropriate plan for the child. We directed the juvenile court to vacate its May 16, 2016 orders placing the children into long-term foster care and setting a section 366.3 hearing. We affirmed the court's orders removing the children from mother's custody and setting a section 366.26 hearing. (B.P. v. Superior Court, supra, F074046.)
Since mother did not challenge the juvenile court's orders removing the children from her custody and denying her reunification services in her writ petition, she forfeited appellate review of those orders. In addition, we affirmed the juvenile court's order setting the section 366.26 hearing and our opinion is final. Therefore, we have no jurisdiction to review the orders as to mother.
Reunification Services
Father's contention focuses on the juvenile court's act of setting a section 366.3 hearing and presumes the court was proceeding under the statute's provisions. He argues the juvenile court erred in not ordering reunification services for him under section 366.3, subdivision (b)(7). To support his argument, he cites D.T. v. Superior Court (2015) 241 Cal.App.4th 1017 (D.T.).
Section 366.3, subdivision (b)(7) authorizes the juvenile court to provide a parent up to six months of reunification services or family maintenance services in order to return the child to a safe home if the parent proves by a preponderance of the evidence that further efforts at reunification are the best alternative for the child. --------
The problem with father's argument is that the juvenile court was not conducting a hearing under section 366.3. Rather, it was conducting a dispositional hearing on a supplemental petition. In addition, the court was conducting the dispositional hearing prior to having selected a permanent plan under section 366.26. In other words, the court was in a pre-permanency plan phase of the dependency proceedings. Section 366.3 governs post-permanency review hearings for children for whom a permanency plan has been selected. It is that procedural characterization (i.e., pre- versus post-permanency) that was at play in this case and that renders the court's holding in D.T. distinguishable—D.T. addressed post-permanency treatment of a supplemental petition, not pre-permanency treatment as we now explain.
In D.T., the juvenile court ordered children removed from their mother pursuant to a supplemental petition after finding that family maintenance services had proven ineffective. The children had been in their mother's custody under family maintenance for 31 months. Prior to that, they had been under a permanent plan of long-term foster care for a year and under a legal guardianship for two years before that. (D.T., supra, 241 Cal.App.4th at pp. 1023-1027.) The juvenile court denied the mother further services and set a section 366.26 hearing which the mother challenged by extraordinary writ petition. (Id. at p. 1032.)
The appellate court in D.T. examined the juvenile court's ability to provide reunification services after sustaining a supplemental petition under section 387 before and after selecting a permanent plan for the child at a section 366.26 hearing. During the pre-permanent plan phase, section 361.5, subdivision (a) places time limits on reunification services, "with a 12-month presumptive period for children age three or older, and an 18-month maximum." (D.T., supra, 241 Cal.App.4th at pp. 1034-1035.) If, during that time, the juvenile court sustains a supplemental petition to remove a child from parental custody, it may set the matter for a permanency planning hearing under section 366.26 if the parent received 12 or more months of reasonable child welfare services. (D.T. at p. 1035.) However if the juvenile court sustains a supplemental petition to remove a child during the post-permanent plan phase (i.e., after having selected a permanent plan), the D.T. court held, the juvenile court may order additional reunification services for a parent under section 366.3, subdivision (b)(7) if the parent can show that continued reunification efforts are the best alternative for the child. (D.T. at p. 1041.)
Here, the juvenile court's ruling on the supplemental petition was governed by the pre-permanency limitations under section 361.5, subdivision (a) and both parents had received well in excess of the maximum allowable time under the statute. Thus, having sustained the petition, the juvenile court had no option but to set a section 366.26 hearing to consider a permanent plan.
DISPOSITION
The juvenile court's May 16, 2016 order denying father reunification services is affirmed.