Opinion
F075859
10-03-2017
MEGAN O., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Dana Rae Gross, for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JV7777)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald I. Segerstrom, Jr., Judge. Dana Rae Gross, for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Meehan, J. and Black, J.†
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Megan O. seeks extraordinary writ review (Welf. & Inst. Code, § 366.26, subd. (l)(1); Cal. Rules of Court, rule 8.452) of the juvenile court's order that a section 366.26 hearing be held October 10, 2017. She challenges the court's refusal to grant her an additional six months of reunification services after it sustained a supplemental petition (§ 387) to remove her then 10-year-old son, Jayden, from her custody for a second time. Megan contends the court erred because she was entitled to further services as a matter of law. Alternatively, she argues the court erred in not exercising its discretion to continue reunification efforts. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
Rule references are to the California Rules of Court.
Section 387, as relevant here, permits the removal of a dependent child from parental custody where such placement has not been effective in protecting the child. --------
FACTUAL AND PROCEDURAL BACKGROUND
These dependency proceedings originated in Calaveras County, in September 2015, when the Calaveras County Health and Human Services Agency (agency) received a report that Megan and her boyfriend, Jimmy, engaged in domestic violence in front of then eight-year-old Jayden and that Jayden was injured during one of their fights. Jayden told a social worker Jimmy punched a closet door, which hit him, injuring his arm, hip and foot. Jayden also described seeing Jimmy choke his mother and hearing her gasp for air and witnessing her punch Jimmy in the head to make him stop. A sheriff's deputy placed Jayden in protective custody on September 3rd.
This was not the first time Jayden required protective custody. In January 2013, he was removed from Megan's custody because of her methamphetamine use. Megan successfully reunified with him in August 2014 after participating in court-ordered services. However, the agency immediately began to receive reports concerning Jayden's welfare related to Megan and Jimmy.
The Calaveras County Juvenile Court exercised its dependency jurisdiction over Jayden pursuant to an original petition under section 300, subdivision (b), ordered Jayden removed from Megan's custody and ordered Megan to participate in domestic violence, mental health, substance abuse and parenting services.
In May 2016, the agency reported Megan was making progress in her case plan, was attending counseling sessions and testing negative for substances. She had taken measures to prevent Jimmy from having access to her, including obtaining a restraining order. On the agency's recommendation, the juvenile court returned Jayden to Megan's custody under family maintenance at the six-month review hearing in August 2016 and set a review hearing for January 2017.
In early January 2017, the agency received a report of emotional abuse after Megan locked Jayden out of the apartment because he refused to go to school. Jayden told the investigating social worker he was worried about the "Jimmy thing" and having to return to foster care. He explained that Jimmy was arrested at their apartment because he screamed at Megan. According to the police report, Megan allowed Jimmy to stay in the apartment with them. He had been there since mid-December. The agency allowed Jayden to stay with Megan on the condition she not have any further contact with Jimmy. Megan decided she needed family support to keep Jimmy away and planned to move into her aunt's home in Sonora.
On January 31, 2017, the juvenile court continued family maintenance services for Jayden and ordered the case transferred to Tuolumne County. The Tuolumne County Juvenile Court accepted the case and in March 2017, ordered a family maintenance plan that required mother to participate in domestic violence counseling, individual therapy and family counseling, parenting education classes, and substance abuse testing. Two weeks later, Megan stopped communicating with the agency. She had not initiated any of her court-ordered services, including substance abuse testing. On March 24, 2017, Megan emailed her social worker that she was moving to Nevada with Jayden but provided no information about her whereabouts. Jayden stopped attending school and the social worker could not locate him or ascertain his wellbeing.
On April 7, 2017, the Tuolumne County Department of Social Services (department) received a report from the Calaveras County Sheriff's Department that Megan and Jimmy engaged in a domestic violence incident in Jayden's presence the day before. According to the report, Jimmy pushed Megan to the ground, punched her multiple times in the face and head and strangled her. Jayden ran for help and had to dive off the road to avoid Jimmy's car, as he quickly drove away. Jayden was taken into protective custody.
The department filed a supplemental petition on Jayden's behalf, alleging family maintenance had proven ineffective in protecting Jayden. The juvenile court sustained the petition and set the dispositional hearing for May 23, 2017. The department placed Jayden in foster care.
The department offered Megan four hours of visitation each week following Jayden's removal in April but she did not visit him, offering a variety of excuses. She also declined to give the department her address and tested positive for methamphetamine in May while at the child welfare office to visit Jayden. Megan denied using methamphetamine but said she needed to make changes and was sad that she "let Jayden down."
Jayden wanted to return to Megan's custody and cried when he could not visit her or reach her by phone. He blamed himself for his situation and stated, "This is all my fault. If I didn't call the police, I wouldn't be in foster care." He also threw tantrums, refused to attend school, lied and stole, resulting in several placement changes in the months of April and May 2017.
The department recommended the juvenile court discontinue reunification efforts because Megan received 18 months of reunification services, the maximum allowable under the law.
In June 2017, the juvenile court conducted a contested dispositional hearing on the supplemental petition. Jayden's social worker testified it would not be in Jayden's best interest to reunify with Megan and there was not a substantial probability Jayden could be returned to Megan after additional services. The juvenile court found Megan had been provided reasonable services and ordered them terminated.
DISCUSSION
I
Authority to Set Section 366 .26 Hearing
Megan contends she was entitled to 12 months of reunification services but only received six. Therefore, she argues, the juvenile court erred in setting a section 366.26 hearing. We conclude she received the maximum allowable months of court-ordered services provided under the law.
Once the juvenile court assumes its dependency jurisdiction by finding the child is a person described by section 300, it may order the child removed from parental custody and order family reunification services. (§§ 361, subd. (c), 361.5, subd. (a).) The provision of family reunification services, including the duration, is governed by section 361.5, subdivision (a). Duration of services is generally dependent upon the age of the child and his or her inclusion in a sibling group. However, the court may extend services for any child up to 18 months after the child was originally removed from parental custody and beyond under exceptional circumstances. (§ 361.5, subd. (a)(1) & (3)-(4).)
As an alternative to removal, the juvenile court may permit the child to remain in parental custody under family maintenance services. (§ 362, subd. (c).) Family maintenance review hearings are conducted every six months pursuant to section 364. At the hearing, the court only determines "whether continued supervision is necessary." (§ 364, subd. (c).) Unlike family reunification services, nothing in the statutes or rules limits the time period for court supervision under family maintenance. (§§ 364, subds. (c)-(d), 16506, subd. (d).)
If the juvenile court removed the child from parental custody with family reunification services, it must conduct review hearings at six-month intervals. The court has various options at the review hearing, including returning the child to parental custody with family maintenance services. (§§ 366.21, subds. (e)(1) & (f)(1), 366.22, subd. (b), 364 [Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 313-316].)
If, as here, family circumstances change necessitating the filing of a supplemental petition, the juvenile court must conduct jurisdictional and dispositional hearings. (§ 387, subd. (d); rule 5.565(e).) At the dispositional hearing on the supplemental petition, the juvenile court must again decide whether to leave the child in parental custody or remove the child and provide services. (Rule 5.565(e)(2).)
The issue Megan raises is whether the time limits of section 361.5, subdivision (a) apply where a child is removed from a parent's physical custody after a period of family maintenance services. The answer in this case is affirmative and the reason is Jayden was removed from Megan's custody at the dispositional hearing on the original petition. In re Joel T. (1999) 70 Cal.App.4th 263 (Joel T.), a case Megan cites, illustrates the point.
In Joel T., the minors were adjudged dependents under section 300 and allowed to remain in their mother's care with services. They were detained 18 months later on a supplemental petition. (Joel T., supra, 70 Cal.App.4th at pp. 265-266.) After sustaining the petition, the juvenile court denied the mother further services because she had already received 18 months of services. (Id. at pp. 266-267.) The court's order was reversed on appeal. (Id. at p. 269.)
The court in Joel T. concluded the juvenile court erred in denying the mother family reunification services because she did not receive "time-limited services" prior to her children's second detention on the supplemental petition, as they were in her custody and subject to the juvenile court's supervision. (Joel T., supra, 70 Cal.App.4th at p. 268.) Consequently, the time limited services under section 361.5, subdivision (a) did not apply to her and the court could not rely on its provisions alone to deny her services. (Joel T., at p. 268.)
Here, the juvenile court removed Jayden from Megan's custody at the dispositional hearing on the original petition and ordered family reunification services. Therefore, the time limits of section 361.5, subdivision (a) applied. The court subsequently returned Jayden to Megan's custody under family maintenance at the six-month review hearing. The question is how that period of family maintenance factors into the time limits of the statute. We answered that question in Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159 (Carolyn R.).
In Carolyn R., as here, a mother whose children were removed received family reunification services followed by family maintenance services. At the dispositional hearing on a section 387 petition, the juvenile court found the mother had exhausted the period for reunification and set the matter for a section 366.26 hearing. The mother filed a writ petition, which we denied. (Carolyn R., supra, 41 Cal.App.4th at pp. 162-163, 167.) We held, "once a court sustains a supplemental petition to remove a dependent child for a second time from a parent's physical custody, it may set the matter for permanency planning under section 366.26 if that parent received 12 or more months of reasonable child welfare services." (Id. at p. 162.) Child welfare services includes reunification and maintenance services. (Id. at p. 165.)
Here, by the dispositional hearing in June 2017, Megan had received 21 months of reunification services from the date Jayden was originally removed from her physical custody in September 2015. Further, as we discuss in the next section, Megan did not satisfy any of the exceptional circumstances that would justify continuing reunification efforts up to 24 months.
II
Additional Reunification Services
Megan contends the juvenile court erred in not continuing reunification services to the 24-month review hearing on two grounds: (1) it did not understand it had the discretion to continue services; and (2) the department did not provide her reasonable reunification services. We conclude the court had no choice but to terminate reunification efforts.
The juvenile court may extend reunification services up to 24 months from the date the child was originally removed from the parent's physical custody under section 361.5, subdivision (a)(4)(A), if the court finds "it is in the child's best interest to have the time period extended and that there is a substantial probability that the child will be returned to the physical custody of his or her parent ... within the extended time period, or that reasonable services have not been provided to the parent ...." (§ 361.5, subd. (a)(4)(A).)
However, the court must also find the parent meets one of the following criteria: he or she (1) "is making significant and consistent progress in a court-ordered residential substance abuse treatment program," (2) was "either a minor parent or a nonminor dependent parent at the time of the initial hearing making significant and consistent progress in establishing a safe home for the child's return," or (3) was "recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and making significant and consistent progress in establishing a safe home for the child's return." (§ 366.22, subd. (b).)
Here, section 361.5, subdivision (a)(4)(A) does not apply because Megan does not fall into any of the three categories listed above. Consequently, the juvenile court had no authority to continue reunification efforts. Therefore, the issues of Jayden's best interest and the reasonableness of the services provided were not considerations the juvenile court had to make. Nevertheless, the court found services were reasonable and considered Jayden's best interests, especially in light of his clear desire to return to Megan's custody.
We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.