In re M.H.

Filed 6/20/07 In re M.H. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

In this appeal from a dispositional order, Christina H. contends the court erred by calculating the date for the six-month review hearing from the date M. H. was placed in foster care, instead of from the date of the dispositional hearing.

We shall hold that the court correctly set the six-month review hearing, and shall affirm the order.

Facts

On April 25, 2006, the San Francisco Department of Human Services (the Department) filed a petition alleging that six-day-old M. H. was a child described by Welfare and Institutions Code section 300, subdivision (b).[1] On April 26, 2006, the court detained M H. in foster care. It also granted supervised visitation.

Christina had entered a residential treatment program by the time of the detention hearing. Soon thereafter, Christina left that program, but by May 18, 2006, she had entered a treatment program at Walden House. The Department assisted her in arranging visitation with M. H. at Walden House, and at the Departments visiting room. With Christinas participation, the Department developed a case plan and submitted it to the court on June 1, 2006.

On June 7, 2006, Christina submitted to jurisdiction. The case plan recommended services for Christina consisting of: (1) participation in a residential treatment program, in which Christina had already enrolled; (2) individual and group therapy with a focus on the effects of parental drug addiction on children; and (3) completion of a parenting program.

The dispositional hearing was continued several times, in part because of pending results of paternity testing. On August 17, 2006, the court conducted the hearing, and declared M. H. to be a dependent of the court. The court placed the minor in foster care. It also set a six-month review hearing for February 14, 2007, which was six months from the date of the dispositional hearing.

On application for rehearing by the minors counsel, the court re-set the six-month review hearing for December 7, 2006, which was six months from the date M. H. entered foster care as measured from the date Christina submitted to jurisdiction. That same day, September 12, 2006, Christina filed a timely notice of appeal.

While this appeal was pending, the court held the six-month review and ordered the Department to provide an additional six months of reunification service to Christina.[2]

Analysis

Christinas sole contention on appeal is that the court erred by calculating the date for the six-month review hearing from the date M. H. entered foster care as measured from the date of the jurisdictional hearing, instead of from the date of the dispositional hearing. Christina argues that in cases such as hers, where there is a delay between the jurisdictional hearing and disposition, the courts method of calendaring the six-month review deprives the parent of the benefit of receiving a full six months of reunification services before the court makes the critical decisions it must make at the six-month review hearing, including whether the child may be returned home under a family maintenance plan.

The problem of statutory interpretation arises because of a lack of consistency between several different provisions created in 1998 when the Legislature amended sections 361.5 and 366.21, relating to the provision of services and to foster care for dependent children. (Stats. 1998, ch. 75, 1; ch. 1054, 25, 25.5, 25.6, 25.7, 33, 33.5, 33.6, 33.7; ch. 1055, 23.3; ch. 1056, 12, 12.1, 12.3, 12.5, 15, 15.1, 33, 34.) Section 361.5, subdivision (a) provides that when a child under the age of three is removed from a parents custody, the court shall order services to the child and the parents. It further specifies that such services shall not exceed a period of six months from the date the child entered foster care. [] . . . [] . . . [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.[3] (Italics added.) Section 366.21, subdivision (f) also uses the date that the child entered foster care as the benchmark for setting the permanency hearing: The permanency hearing shall be held no later than 12 months after the date the child entered foster care, as that date is determined pursuant to subdivision (a) of section 361.5. (Italics added.)

Other statutes in the same scheme, however, describe the six-month review as being held six months after the initial dispositional hearing. ( 366.21, subd. (e), italics added.) Section 366, subdivision (a)(1) further provides in pertinent part: The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing, until the hearing described in Section 366.26 is completed. (Italics added.)

The Court of Appeal, in In re Christina A. (2001) 91 Cal.App.4th 1153 (Christina A.), acknowledged the inconsistency of these provisions and construed the statutory scheme as a whole to require the six-month review hearing to be held six months after the date of the jurisdictional order or the date that is 60 days after the childs initial removal from the parents physical custody, whichever is earlier.[4] (Id. at pp. 1164-1165.) We agree with this interpretation for the reasons stated by that court, and because this interpretation furthers the purpose of the dependency law to minimize delay and reduce the time a dependent stays in temporary placement. (Id. at p. 1163.) We therefore find no error with respect to the juvenile courts scheduling of the six-month review hearing in this case.

We also note Christinas argument that setting the review hearing from the date M. H. entered foster care deprived her of a meaningful opportunity to achieve reunification at this critical stage of the dependency process assumes that she received no reunification services until the dispositional hearing. Section 319, subdivision (e) provides that when the court detains the minor, it must order that reunification services be provided as soon as possible. In this case, although the case plan was not formally approved until the dispositional hearing, the record shows that Christina started receiving services after the jurisdictional hearing. She had already entered a residential drug treatment program by the time of the detention hearing and began receiving assistance with visitation and other services through the jurisdictional and dispositional hearings. In fact, in the proceedings below, in briefing on rehearing of the order setting the six-month review, Christinas counsel conceded that she will have received six months of services on December 7, 2006. Therefore, even if she were correct that the period for setting the six-month review should be calculated from the date of the dispositional hearing, she cannot demonstrate any prejudice. (See In re Celine R. (2003) 31 Cal.4th 45, 58-60.)

Conclusion

The dispositional order is affirmed.

_________________________

STEIN, J.

We concur:

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MARCHIANO, P. J.

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MARGULIES, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] This court granted the Departments request to take judicial notice of the December 6, 2006 order. The Department contends that Christina waived her contention on appeal by failing to reassert her objection that the date was premature at the time of the six-month review hearing. In her opposition to the minors request to reset the six-month review hearing, counsel for Christina clearly stated her objections to resetting the six-month review for an earlier date. When the court overruled those objections and set the hearing for the earlier date, defense counsel reasonably concluded that further objection would be futile. We therefore do not find the contention waived.

[3] There is no dispute, based upon this statutory definition, that the date M. H. entered foster care is the date of the initial jurisdictional hearing at which Christina submitted to jurisdiction.

[4] We decline the Departments invitation to find the appeal moot based upon the fact that, while this appeal was pending, the court held the six-month review hearing and ordered that Christina receive six more months of reunification services. The timing for the review hearing at issue in this case is a question otherwise likely to evade review due to the expedited nature of dependency proceedings. (See, e.g., Christina A., supra, 91 Cal.App.4that p.1159; Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 192; In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) Therefore, we exercise our discretion to decide the issue on the merits.