Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Albert J. Garcia, Commissioner, Los Angeles County Super. Ct. No. CK31694
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aleen L. Langton, Deputy County Counsel, for Respondent.
Susan M. Crane, for the minor.
RUBIN, ACTING P. J.
INTRODUCTION
Mother, A.H., appeals from the juvenile court’s order terminating reunification services and placing her minor daughter in long-term foster care. Mother, as well as respondent Department of Children and Family Services (DCFS) and the minor have stipulated to reverse the court’s findings and orders. We conclude this is a proper case for a stipulated reversal, and therefore reverse the juvenile court’s orders.
FACTS AND PROCEEDINGS
In June 2006, when the minor was 14 years old, DCFS filed an eight-count petition against mother alleging, among other things, that she had physically struck the minor with her fists and threatened to kill her. The petition also alleged the minor did not want to live with her mother. The social worker’s detention report noted the minor was seeing a psychiatrist and was at “high risk” for suicide. The minor was placed in foster care.
In the social worker’s report for the jurisdiction hearing, mother explained her daughter “is often depressed and she has been hospitalized. It is not true that I don’t give good care and supervision of [my daughter]. I would never medically neglect any of my children. I make sure [my daughter] sees her therapist and has her medicine. I visited her in the hospital, even when she didn’t seem to care that I was there.” The minor’s adult sister, T.H., said, “My mom was the one to call the ambulance when [my sister] cut her wrists.”
The social worker concluded mother was developing insight into her situation and that she was willing to change the behaviors that created difficulties for her and the minor. The social worker recommended unmonitored visits for mother and the minor. On July 17, 2006, the juvenile court sustained the petition against mother and ordered reunification services. Mother was ordered to (1) participate in individual counseling to address anger management and case issues, (2) complete a program of parent education, and (3) participate in conjoint therapy with her daughter.
The social worker’s August 2006 interim report noted the minor did not want to see mother and was adamant about not attending conjoint counseling with her. On November 1, the minor ran away from her foster home. The court issued a protective custody warrant on November 8, stating, “I will not recall the warrant until they bring the child in, and I want this referred to the abduction unit and missing persons.”
For the six-month review hearing, the social worker reported the minor was still a runaway. Nonetheless, mother had completed all court-ordered programs. Her therapist said mother had made “substantial improvement in the understanding of ‘parenting and the dynamics of domestic violence.’” The juvenile court found mother had made substantial progress toward alleviating or mitigating the causes which required court intervention.
In a last-minute report, the social worker indicated she had received a telephone call from the minor, who said she would return, but only if she was allowed to return to her mother’s home. On January 20, 2007, the social worker returned the minor from Puebla, Mexico, and the juvenile court recalled its custody warrant. Nonetheless, the minor again ran away from her foster home on February 5.
On March 12, 2007, DCFS asked the juvenile court to recall the custody warrant because the minor had returned. On May 13, the minor left a message for the social worker indicating that if the foster parents did not “let up” she would again run away. Two days later, the minor made good on her promise. On July 11, the minor called the social worker and told her she was staying with her sister, C.B. On July 13, the minor called the social worker saying she was sick of her sister. The sister told the social worker the minor had run away on July 17. Mother found her daughter on August 27.
At the 12-month hearing on August 29, the juvenile court found mother was compliant with its orders and the case plan, and reiterated its order that mother and her daughter were to be in conjoint therapy. The minor had run away from her foster home yet again on August 28, 2007. But she was present on October 18, when the juvenile court recalled the custody warrant. The minor told the court that she did not want conjoint therapy.
For the 18-month review hearing, the social worker reported that mother had complied with the service plan and attempted to complete conjoint therapy but was unsuccessful because of her daughter’s resistance. The social worker said, “[Mother] continues to show that she is willing to support her Daughter . . . in whatever the Court orders. [Mother] continues to stay in contact with the [DCFS] and tries to remain in contact with her daughter and/or the caregiver for her Daughter . . . .” The social worker also noted in a supplemental report that the minor did not wish to return home. She said that “on numerous occasions [she] tried to work with [the minor] to come to an agreement that will work in the best interest for [her]. [The minor] will say one thing and do the opposite. [She] appears to be attempting to get her way in any way she can.” Despite mother’s progress, DCFS ultimately recommended that family reunification services be terminated and that the minor’s permanent plan was long term foster care.
On January 25, 2008, the day of the 18-month hearing, DCFS informed the juvenile court that the minor had run away from her foster home and had not returned. The court issued a custody warrant but conducted the hearing without the minor. After admitting documentary evidence and mother’s testimony, the court said, “The extent of the progress made by the parent toward alleviating, mitigating the causes necessitating placement has been, the mother has complied with the court orders. And the fact that [the minor] does not want to go with her with respect to do the counseling really has to do with the family dynamics of this case which goes way back.” Despite this finding, the juvenile court terminated family reunification services, ordered that the minor’s permanent plan was long-term foster care, and issued a protective custody warrant for the minor.
Mother timely appealed this ruling.
DISCUSSION
Mother’s main argument on appeal is that the juvenile court exceeded its authority when it terminated reunification services and ordered a plan of long-term foster care when the minor’s whereabouts were unknown. Mother argues that in this situation, the court was required to issue a custody warrant and wait until the minor was returned.
DCFS did not file a respondent’s brief. Instead, DCFS, mother, and the minor’s counsel filed a joint application and stipulation requesting reversal of the juvenile court’s judgment. They jointly request that this court vacate the court’s orders and direct it to order periodic review hearings until the minor is located, and then conduct a new permanency review hearing. We conclude the parties’ requests have merit and are appropriate.
In Katheryn S. v. Superior Court (2000) 82 Cal.App.4th 958 (Katheryn), the mother had absconded with the minor and remained outside of California for more than three years after the initial jurisdictional finding. The juvenile court held the permanency hearing while the mother was still outside of the state. The appellate court concluded the juvenile court had erred and directed it to set aside its orders made at both the hearing in which it terminated reunification services and the permanency hearing. (Id. at pp. 964-968.)
The court stated, “When the progress of ongoing dependency proceedings is thwarted because a parent absconds with his or her child and stays beyond the court’s jurisdictional grasp, the court has no reason to do anything but issue warrants for their arrest and return and await their return. [Citation.] The statutory scheme has empowered the district attorney to take steps on behalf of the court to locate and obtain the return of the parent and child to the court. [Citation.] But the court is not empowered to order or terminate reunification services until the prosecutor has succeeded in locating them--or they have otherwise been returned to the court’s jurisdiction.” (Katheryn, supra, 82 Cal.App.4th at p. 969, fn. 11.)
The juvenile court in this case specifically found mother had complied with all orders and that any lack of progress, especially with regard to conjoint counseling, had to do with the minor’s resistance and not mother’s substantial effort in the case. Regardless, the court terminated reunification services and ordered long-term foster case, all without any meaningful information about the minor’s current condition, wishes, or living situation. Not only was there no benefit to be derived by conducting the permanency review hearing prior to locating the 15-year-old minor, whose whereabouts were unknown, but the court erred legally in doing so. (See In re Baby Boy M. (2006) 141 Cal.App.4th 588, 602 [waiting until the child is present avoids decision-making that may ultimately prove not in the child’s best interest]; In re Jesusa V. (2004) 32 Cal.4th 588, 624 [a court acts in excess of its jurisdiction where it has no power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites].)
Code of Civil Procedure section 128, subdivision (a)(8)(A) and (B) governs stipulated reversals of judgment. The statute provides, “An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.”
We find the statutory criteria have been satisfied here. (See In re Rashad H. (2000) 78 Cal.App.4th 376 (Rashad) [applying Code Civ. Proc., § 128, subd. (a)(8)(A) & (B) to stipulated reversal in dependency matter].) First, no injury to nonparties or the public will arise from a stipulated reversal, and the reasons for the reversal clearly outweigh any erosion of public trust that may result from nullification of the juvenile court’s orders. DCFS reported, and the juvenile court found, that mother had fully complied with the court’s orders and the case plan, and all parties agree the court should not proceed until the minor is located. We likewise agree that there are grounds for reversing the court’s orders, because the minor was missing at the time of the contested permanency review hearing and the court was not empowered to proceed until she was located. (See Katheryn, supra, 82 Cal.App.4th at p. 969, fn. 11.) In expediting a speedy end to these proceedings, a stipulated reversal serves, rather than injures, the public’s interest. (Rashad, at pp. 380-381 [speedy correction of legal mistakes and quick resolution of dependency matters serves public].)
Second, a stipulated reversal will advance the public’s trust and confidence in the fairness and reliability of dependency proceedings, because it ensures the juvenile court will not make permanent decisions affecting the rights of parents and children until all parties are properly before it and the court has the fullest extent of current information to make a just decision.
Finally, a stipulated reversal in this case poses little risk of discouraging the incentive for pretrial settlement. The parties are in agreement that the case will be reversed anyway; so there is no risk that a stipulated reversal will reduce the incentive for a conciliatory resolution of the case.
DISPOSITION
The juvenile court’s findings and orders terminating reunification services and ordering a permanent plan of long-term foster care are reversed. The court is ordered to conduct periodic review hearings until the minor is located. The court shall thereafter conduct a new hearing under Welfare and Institutions Code section 366.22.
WE CONCUR: FLIER, J., BIGELOW, J.