Filed 3/15/22 In re B.H. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Isabel Apkarian, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.

* * *

M.H. (Father) appeals from the juvenile court’s order issued at the six‑month review hearing which terminated his reunification services for his daughter B.H. (Welf. & Inst. Code,^[1] § 366.21, subd. (e).) At the hearing, the court found Father continued to be unwilling to participate in services and concluded services would be “a poor use of resources.” The court also found that the rule generally limiting reunification services to six months from the date of the disposition hearing applied because, in the words of the statute, B.H., “on the date of [her] initial removal from the physical custody of the child’s parent or guardian, was under three years of age.” (§ 361.5, subd. (a)(1)(B), hereafter sometimes § 361.5(a)(1)(B).) Father had therefore reached the limit of his services under the statute. (Ibid.)

Father contends he was entitled to a minimum of a year of reunification services, not just six months. He argues that, to apply the statutory limitation of six months of services for children under age three (§ 361.5(a)(1)(B)), the relevant timeframe is the child’s age on the date of the disposition hearing; here B.H. had turned three years old by that date. In other words, Father interprets the phrase, “initial removal from . . . physical custody” (ibid.), to refer to the date on which formal dispositional custody orders are entered, rather than the earlier date on which physical custody changed. As we explain, longstanding precedent is contrary to Father’s interpretation, and the statute’s plain meaning regarding “initial removal from . . . physical custody” controls. (Ibid., italics added.) We therefore affirm the juvenile court’s order terminating Father’s reunification services.

FACTUAL AND PROCEDURAL BACKGROUND

Because there is no dispute regarding B.H’s age on the relevant dates, i.e., that she was under three years old when she was initially removed from her parents’ physical custody, but had turned three by the date of the disposition hearing, we limit our background discussion to the contours of B.H.’s dependency.

B.H. has been in dependent care virtually her whole life. She was detained at birth in late 2017 by San Diego County’s social services agency based on drug withdrawal symptoms she exhibited. Those dependency proceedings were subsequently dismissed, according to a social worker’s report, after a “settlement conference” at which B.H.’s mother (Mother) documented her compliance with a methadone treatment program.

Within months, B.H. was detained again in Illinois by the relevant child protective services agency after she was found unrestrained in a car seat with drug paraphernalia within her reach while Mother and Father were purchasing heroin. The Illinois dependency supervision continued for more than two years, during which B.H. was placed with her maternal aunt in Anaheim and the parents also returned to Orange County. Those proceedings terminated in September 2020; within a month, on October 12, 2020, two syringes of suspected illicit drugs were found in B.H.’s diaper bag.

Apparently due to a delay in the police investigation, the Orange County Social Services Agency (SSA) did not immediately detain B.H.; instead, pursuant to a safety plan SSA ensured that B.H. remained in her maternal grandmother’s physical custody at her home, where Mother also lived. Simultaneously, SSA filed a dependency petition with the juvenile court. SSA had discovered pending drug possession charges against both parents and deduced that their rehabilitation, if any, had been short-lived. The Illinois dependency process had not included drug testing orders in Orange County for lack of an approved testing location. In an addendum report for the initial hearing on the petition, SSA requested that the juvenile court detain B.H., with authorization for SSA to release her to a suitable caretaker.

At the detention hearing, which was held approximately two weeks before B.H. turned three years old, the juvenile court ordered B.H.’s initial removal from the parents’ physical custody by ordering Mother to relocate immediately so that B.H. could remain solely in the maternal grandmother’s care. The court authorized SSA to allow Mother and Father to live with B.H. “upon three consecutive weeks of negative drug testing”; unfortunately, that milestone never occurred. In December 2020, B.H. was placed with her maternal aunt when the maternal grandmother could no longer provide a long-term placement.

At the combined jurisdiction and disposition hearing held on February 24, 2021, which occurred after B.H. turned three years old, the juvenile court sustained the dependency petition allegations, assumed jurisdiction over B.H., and entered various dispositional orders. Among those orders, the court found that “to vest custody with [the] parents would be detrimental,” that the “[w]elfare of the child requires that custody be taken from [the] parents,” and ordered “[c]ustody of the child to be vested with the Social Services Director for suitable placement,” which remained with the maternal aunt. The court approved the parents’ respective case plans, which included tailored reunification services for each. The court found that, as of the date of the hearing, the extent of each parent’s progress toward alleviating or mitigating the causes which required placement of B.H. out of their custody was “none.”

Mother made some progress by the date of the six-month review hearing; Father did not. At the hearing, the court noted that at an earlier hearing Father had been “highly emotional and cursing in open court, [and] said he did not want services.” The court nevertheless heard “what [Father] had to say when [Father] had time to reflect upon the importance of today’s hearing.”

The court then made this relevant observation: “It became clear, when listening to [Father’s] testimony, that he is not interested in any of the services that the court has to offer. He doesn’t want to [drug] test, he doesn’t want to do drug counseling, he doesn’t want to do individual counseling, and he doesn’t want to have anger management. [¶] Not only is it a poor use of resources to continue to offer services to this father, it simply is not wanted by him. He testified that he’s willing to do anything for his daughter . . . [but] failed to acknowledge . . . he’s unwilling to do anything to have his child returned to him.”

The court continued with this: “He had a case plan. He was told, ‘You have to do these three or four things.’ Not only . . . has [he] been unwilling to do them, he’s unwilling to even have a conversation with the social worker and tell her where he lives. He’s asking for the return of his child without even giving us an address to know are there parolees, are there sex offenders, who else is living in the residence, are there guns, is this a safe place to have a three-year-old live. [¶] It’s unfortunate, because I think he loves his daughter. That’s evidenced by the fact that he goes to his visits.” Nevertheless, Father would not “follow[] the case plan. He says that he did all of this for Illinois for 27 months, but he hasn’t done a single thing in this county since this child has been removed.”

The juvenile court found that “while [Mother’s] participation in services still [leaves] much to be desired,” she “has been testing, has completed her parenting classes.” Based on Mother’s “minimal” progress, the court ordered continued reunification services for her and set the 12-month review date. The court terminated reunification services for Father; he now appeals. (§ 395, subd. (a)(1).)

DISCUSSION

Father contends the juvenile court erred as a matter of law by prematurely terminating his reunification services, depriving him of the minimum statutory service period to help him correct his course and demonstrate he could safely parent B.H. He contends he was entitled to 12 months of reunification services, relying on section 361.5, subdivision (a)(1)(A). He argues that to terminate services early, SSA had to file a modification petition to alter the reunification case plan the court earlier approved. (See § 388, subd. (c)(1).)

We ordinarily review fact-bound issues such as removing a child from parental custody or, here, termination of reunification services, “for substantial evidence viewing the record in the light most favorable to the juvenile court’s findings.” (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.) “When the issue on appeal involves the interpretation and proper application of the dependency statutes, however, our review is de novo.” (Ibid.)

“‘Our primary task in interpreting a statute is to determine the Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]’ [Citation.] We construe the statute’s words in context, and harmonize statutory provisions to avoid absurd results.” (John v. Superior Court (2016) 63 Cal.4th 91, 95-96.)

The relevant statute is section 361.5 which, except in circumstances not relevant here, requires the juvenile court, “whenever a child is removed from a parent’s or guardian’s custody,” to “order the social worker to provide child welfare services to the child” and to “the child’s mother and statutorily presumed father or guardians.” (Id., subd. (a).) Those “[f]amily reunification services, when provided, shall be provided” for six months or 12 months following the disposition hearing, depending on the child’s age. (Id., subd. (a)(1)(A), (B).)

As to younger children, section 361.5, subdivision (a)(1)(B), specifies that “[f]or a child who, on the date of initial removal from the physical custody of the child’s parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing . . . .” (Italics added.)

This period may extend up to six months, “but no longer than 12 months from the date the child entered foster care, as provided in Section 361.49, unless the child is returned to the home of the parent or guardian.” (§ 361.5, subd. (a)(1)(B).) Section 361.49 addresses the issue raised here: “Regardless of his or her age, a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing . . . 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” (italics added). ^[2]

Section 361.5, subdivision (a)(1)(A), sets the standard for older children: “[F]or a child who, on the date of initial removal from the physical custody of the child’s parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as provided in Section 361.49, unless the child is returned to the home of the parent or guardian.” (Italics added.)

Father argues that the phrase “initial removal from the physical custody of the child’s parent or guardian” in section 361.5, subdivision (a)(1)(A) and (a)(1)(B), refers to formal “removal” of a child accomplished by a juvenile court’s custody orders at the dispositional hearing, regardless of whether the child was earlier removed from the parents’ physical custody. We disagree.

We must construe statutory language as a whole, and both subdivision (a)(1)(A) and (a)(1)(B) of section 361.5 not only use the same phrase (“initial removal” from a parent or guardian’s “physical custody”), both also refer to section 361.49, which uses that same phrase. By referencing section 361.49, both subparagraphs (A) and (B) qualify the potential number of months of reunification services—whether six or 12 following the disposition hearing—by specifying that the reunification services period in either case presumptively should not exceed 12 months from “the earlier of the date of the jurisdictional hearing . . . or 60 days” after “the child was initially removed from the physical custody of his or her parent or guardian. (§ 361.49, italics added.)

If, as Father argues, the Legislature intended the “initial removal” date to be the date on which custody orders were issued by the court at the dispositional hearing, the jurisdictional hearing date would always be the “earlier” date because the court cannot enter dispositional orders until it has assumed dependency jurisdiction. (§ 358, subd. (a).) As a result, Father’s construction renders the “earlier of” language in section 361.49 meaningless, and the remainder of the statute becomes useless surplusage. “‘[C]ourts should give meaning to every word of a statute and should avoid constructions that would render any word or provision surplusage.’” (In re Gomez (2016) 246 Cal.App.4th 1082, 1096.) “‘“An interpretation that renders statutory language a nullity is obviously to be avoided.”’” (Ibid.)

In any event, the same statutory language (“initial removal” from a parent or guardian’s “physical custody”) has long been construed contrary to Father’s interpretation. (See In re Christina A. (2001) 91 Cal.App.4th 1153, 1165, fn. 2 (Cristina A.).) In Christina A., the court interpreted substantially the same phrase which is at issue here: “‘the date on which the child was initially removed from the physical custody of his or her parent or guardian’” (ibid.), which at that time was codified in section 361.5, subdivision (a). “In view of the Legislature’s intent to conform California’s dependency laws to changes in federal law (see pt. II, ante), we construe this phrase to mean the date on which the child was initially removed from the home of a parent or guardian by a peace officer pursuant to section 305 or by a social worker pursuant to section 306. (See 42 U.S.C. § 675(5)(F).)” (Christina A., at p. 1165, fn. 2.)

As Christina A. explained, the Legislature in 1998 amended section 361.5 to conform to federal law in order to, “among other things, minimize delay in juvenile dependency proceedings, reduce the length of time that dependent children stay in a temporary placement, and increase the number of adoptions.” (Christina A., supra, 91 Cal.App.4th at pp. 1159‑1160.) These policy goals are served by interpreting section 361.5’s plain language to mean what it says—that “initial removal from the physical custody of the child’s parent,” is, as in Christina A., the date on which the child is taken from a parent’s physical custody. When the Legislature continues to use the same language after it has been judicially construed, we “‘“presume that the Legislature intended the same construction, unless a contrary intent clearly appears.”’” (In re Hoze (2021) 61 Cal.App.5th 309, 317.)

Father correctly argues that only statutorily presumed fathers are entitled to reunification services, (§ 361.5, subd. (a)), but we fail to see how that has any bearing on the meaning of the “initial removal” language construed in Christina A. Reunification services may be offered by the social services agency to a presumed father well before the dispositional hearing, as the court noted in referencing those services during the detention hearing at the outset of the case. Thus, there is no reason to suppose presumed father status has anything to do with the various time frames specified in subdivision (a)(1)(A) and (B) of section 361.5, which make no reference to that status.

Father notes that some courts have disagreed with In re N.M. (2003) 108 Cal.App.4th 845, a case decided after Christina A., and which concluded the limited time then-allotted for reunification services under section 361.5 began to run at the child’s initial detention from parental custody. But the Legislature has since clarified that the six‑month period of reunification services specified in subdivision (a)(1)(B) of section 361.5 begins to run when the disposition hearing is held and, further, that court‑ordered services are constrained by a presumptive limit of 12 months from the date the child entered foster care under section 361.49. Nothing about these changes affects the plain meaning of the language which has remained unchanged since Christina A. That language states that a child’s “initial removal” from his or her parent or guardian’s physical custody occurs on the date the child is, as the statute says, “initially removed from the physical custody of his or her parent or guardian.” In our view, this language could not be plainer.

If the statutory language were not clear enough, respondent also correctly observes that the provision on which Father relies—section 361.5, subdivision (a)(1)(A)—uses three separate terms or phrases to refer to significant events or timing considerations referenced in the statute. Specifically, the statute uses the phrase “initial removal from the physical custody of a parent or guardian”; it also includes the terms “dispositional hearing” and “the date the child entered foster care.” The use of this distinct language indicates distinct time periods. Thus, the Legislature contemplated that the date of “initial removal” is distinct from the date of the dispositional hearing, and also distinct from the date of entry into foster care that is defined under section 361.49. If the Legislature intended “initial removal” to refer to the date of the dispositional hearing, it would not have used such terminology. For the foregoing reasons, we find no merit in Father’s appellate challenge.

DISPOSITION

The juvenile court’s order terminating reunification services is affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

ZELON, J.*

* Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1] All further statutory references are to this code.

^[2] “Foster care” is not defined in section 361.5, but according to our Supreme Court, an appropriately “expansive definition of a foster parent [is] ‘one who, although not legally related to the child by direct parental blood ties, nor decreed a parent in formal adoption proceedings, assumes the role of parent.’” (In re Laura F. (1983) 33 Cal.3d 826, 831, fn. 4; see In re A.C. (2008) 169 Cal.App.4th 636, 651.) Thus, in In re A.C., the dependent children there entered foster care “when they were removed from their father’s custody and placed with their grandmother.” (In re A.C., at p. 651.)

Section 361.49, which was enacted after In re A.C. was decided, adds 60 days to the date of the child’s initial removal from a parent’s physical custody to mark the date of entry into foster care. Thus, the Legislature did not intend the removal date to be understood to mean the same thing as the date of entry into foster care, as we discuss more fully below.