In re X.Z.
Filed 11/14/13 In re X.Z. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
>
In re X.Z., A Person Coming Under the Juvenile Court Law. | |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JASMIN S., Defendant and Appellant. | B247449 (Los Angeles County Super. Ct. No. CK86090) |
APPEAL from an
order of the Superior Court of
County, Marguerite Downing, Judge. Diane Reyes, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Lori A. Fields,
under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Office of the County Counsel, James M. Owens, Assistant County Counsel
and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
Appellant
Jasmin S. (Mother) filed this appeal after the juvenile court’s December
4, 2012
order terminated her parental rights over her infant daughter X.Z. under
Welfare and Institutions Code section 366.26.
the court’s decision to terminate her reunification services at the September
12, 2011 six-month review hearing based on its understanding that Mother would
be incarcerated for a period that exceeded the maximum reunification time
permitted by statute. She contends
reasonable reunification services were not provided prior to September 2011,
that the caseworker misled the court about when she was likely to be released
from prison, and that the court failed to make statutorily-mandated findings.
Mother does
not dispute that orders terminating reunification services are ordinarily reviewable
solely by way of writ, or that the court provided notice at the September 2011
hearing of the writ review requirement. She
contends she is entitled to raise issues related to the reunification period in
this proceeding because the notice the court provided did not inform her of the
deadline to file a notice of intent to seek a writ. We conclude that Mother received sufficient
notice of the writ requirement to preclude her from raising issues pertaining
to the September 2011 order at this late date, and that, in any event, she
raises no issues with respect to the September 2011 order requiring reversal. Accordingly, we affirm.
In January
2011, the family home was raided by police and a large quantity of
methamphetamine and chemicals for the manufacture of methamphetamine were
found.
Department of Children and Family Services
(DCFS), along with her two half-siblings.
placed with Mother’s sister, Conseulo M. A few days after the detention hearing, Mother
was arrested and charged with possession of methamphetamine and child
endangerment.
On February
16, 2011, the
caseworker reported that Mother’s case was about to be submitted to the
district attorney’s office for felony filing consideration. The court ordered a supplemental report to
address the status of both parents’ criminal cases before the jurisdictional/dispositional
hearing, but the caseworker was unable to obtain further information.
At the March
14, 2011, jurisdictional/dispositional hearing, the court found that Mother and
Father “created a detrimental and endangering home environment for the
children†by (1) “possess[ing] toxic, flammable, hazardous chemicals, used in
the manufacture of methamphetamine in the children’s home, within access of the
children†and exposing the children to such chemicals; (2) keeping eight and
one-half pounds of methamphetamine in the children’s home, within access of the
children; and (3) exposing the children to illicit drug trafficking in the home
and in their presence. At the same
hearing, the court addressed disposition for Mother and ordered reunification
services. Mother’s plan required her to
participate in a parenting class and individual counseling to address case
issues and drug awareness.
On April
20, 2011, a
new caseworker met with Mother, then incarcerated at Twin Towers.
Mother advised her that the facility did not offer any programs for
parents, and that she would be unable to make progress on the reunification
plan until she was transferred to a state
prison. Mother further reported that
she anticipated receiving a four-year sentence and serving half or less. On June 8, the caseworker talked to Mother’s
probation officer, who reported he was working on the probation report and that
Mother was likely to face a sentence of three to six years.
the caseworker she had spoken with Mother and that Mother had said she was
going to serve 14 months in state prison and would enroll in classes once she
arrived at the prison.
name="_ftnref5" title="">[5] In mid-July, Mother was transferred to the
California Institute for Women. In
August, the caseworker left a message with Mother’s correctional counselor asking
for Mother’s release date, but received no return call.
The September
2011 report, filed in advance of the six-month review hearing, stated that in
June, Mother had been convicted of possession of a controlled substance for
sale and child endangerment and that the court had imposed sentences of three
years for the former crime and four years for the latter. The report did not indicate whether the
sentences were to run consecutively or concurrently and gave no estimate of
Mother’s release date. It described the
caseworker’s unsuccessful effort to obtain Mother’s precise release date from the
correctional counselor. The report
stated that maternal relatives were bringing X.Z. for prison visits, but that due
to her incarceration, Mother had been unable to participate in court-ordered
programs. The report said it was “highly
unlikely†Mother would be able to reunify with her children, even if additional
reunification services were ordered.
Therefore, it was recommended that reunification services be terminated.
At the September
12, 2011
six-month review hearing, the court stated it was inclined to terminate reunification
services with respect to X.Z. due to her age (less than a year old).
longer than the statutory period of reunification; however, I’m going to enter
an objection today to terminating her services.†The court expressed its understanding that
both parents objected, but found that “since both parents will be incarcerated
longer than the reunification period . . . [¶] . . . there is
not a substantial probability that [X.Z.] may be returned to her parents by the
12-month permanency hearing.†The court further
found that the parents were unable to “complete any of the disposition case
plan†due to their incarceration or to “demonstrate[] the capacity or ability
to complete the objectives of the treatment plan and to provide for the child’s
safety, protection, physical and emotional health.†The court terminated services and set a
section 366.26 hearing for January 9, 2012. The minute order stated that the court found
by a preponderance of the evidence that return of the minors to the physical
custody of the parents would create a substantial risk of detriment to their
DCFS had complied with the case plan, that Mother was not in compliance with
the case plan, and that reasonable services had been provided to meet the needs
of the minors.
After
terminating reunification services and setting the section 366.26 hearing, the
court provided the following advisement:
“[T]he court advises all parties present and directs the clerk of the
court to forward written advisement to parties not present that to preserve any
right to review on appeal of the court’s order setting a hearing to select and
implement a permanent plan under 366.26, the party must seek an extraordinary
writ by filing a notice of intent to file writ petition and request for record,
or other notice of intent to file writ petition and request for record, and a
writ petition-juvenile form, or other petition for extraordinary writ. [¶] I would advise you to speak to your
attorney.â€
Mother did not
seek writ review of the September 2011 order.
After multiple continuances, the section 366.26 hearing was held on December
4, 2012. Mother presented no evidence, but objected to
termination of her parental rights.
name="_ftnref7" title="">[7] The evidence presented established that Consuelo,
Mother’s sister and X.Z.’s guardian since shortly after the detention, had repeatedly
expressed her desire to adopt X.Z., and that X.Z. was thriving in Consuelo’s
care. The adoption home study was
completed in August 2012. On December 4,
the court found by clear and convincing evidence that X.Z. was adoptable, and
that no exception to adoption applied.
The court issued an order terminating parental rights over X.Z. Mother filed a notice of appeal from the
order. Mother was released from prison
in January 2013.
DISCUSSION
An
order terminating reunification services and setting a section 366.26 hearing
is “not appealable†unless “(1) A petition for extraordinary writ review was
filed in a timely manner.[
name="_ftnref8" title="">[8]] [¶] (B)
The petition substantively addressed the specific issues to be challenged and
supported that challenge by an adequate record. [¶] (C)
The petition for extraordinary writ review was summarily denied or otherwise
not decided on the merits.†(§ 366.26,
subd. (l)(1); see § 366.26, subd. (
intended to ensure that resolution of challenges to setting orders are resolved
before the section 366.26 hearing. (
1397, 1402-1403.) The provision supports
“‘the state’s interest in expedition and finality’†and the child’s interest in
“‘securing a stable, “normal,†home,’†which goals would be compromised if the
validity of issues addressed in the order terminating reunification services
and setting the section 366.26 hearing remained undecided until after the
court’s adoption of a permanent plan. (
1017, 1022-1023; see In re Rashad B.
(1999) 76 Cal.App.4th 442, 447 [“In adopting section 366.26, subdivision (
has unequivocally expressed its intent that [setting] orders be challenged by
writ before the section 366.26 hearing.’â€].)
Section 366.26,
subdivision (l) requires the court,
after terminating reunification and issuing an order setting a section 366.26
hearing, to “advise all parties of the requirement of filing a petition for
extraordinary writ review as set forth in this subdivision in order to preserve
any right to appeal in these issues.†(§ 366.26,
subd. (l)(3)(A).) The notice must be “made orally to a party if
the party is present at the time of the making of the order or by first-class
mail by the clerk of the court to the last known address of the party not
present at the time of the making of the order.†(Ibid.) Rule 5.590(b) of the California Rules of
Court similarly provides: “When the
court orders a hearing under . . . section 366.26, the court must advise all
parties and if present, the child’s parent, guardian, or adult relative, that
if the party wishes to preserve any right to review on appeal of the order
setting the hearing under . . . section 366.26, the party is required to seek
an extraordinary writ by filing a Notice of Intent to File Writ Petition and
Request for Record . . . (form JV-820) or other notice of intent to file a writ
petition and request for record and a Petition for Extraordinary Writ . . . (form
JV-835) or other petition for extraordinary writ. [¶] (1) the advisement must be given orally
to those present when the court orders the hearing under . . . section 366.26.
[¶] (2) Within one day after the court orders the hearing under . . . section
366.26, the advisement must be sent by first-class mail by the clerk of the
court to the last known address of a party who is not present when the court
orders the hearing under . . . section 366.26.â€
(Italics omitted.)
Rule 5.590(b)
of the California Rules of Court goes on to state that “[t]he advisement must
include the time for filing a notice of intent to file a writ petition†and
that “[c]opies of Petition for Extraordinary Writ . . . (form JV-825) and
Notice of Intent to File Writ petition and Request for Record . . . (form
JV-820) must be available in the courtroom and must accompany all mailed notices
informing the parties of their rights.†(Cal.
Rules of Court, rule 5.590(b)(3) & (4), italics omitted.)
Mother
contends the oral notice provided was defective because the court failed to
indicate the time for filing a notice of intent.
to advise the parent of his or her right to writ review of the order setting
the section 366.26 hearing, she contends she must be permitted to raise issues related
to a hearing that took place two years ago.
For the reasons discussed, we conclude otherwise.
Courts have
held that where the juvenile court fails entirely to advise a parent of his or
her right to seek writ review of an order terminating reunification services
and setting a section 366.26 hearing, claims of error relating to provision of reunification
services are cognizable on appeal from the order terminating parental rights. (In re
Frank R. (2011) 192 Cal.App.4th 532, 539; In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110;
831; In re Maria S. (2000) 82
Cal.App.4th 1032, 1038; In re Rashad B.,
supra, 76 Cal.App.4th at p. 450;
preserve any right to review on appeal†of the September 2011 order, she “must
seek an extraordinary writ by filing a notice
of intent to file writ petition and request for record, or other notice of
intent to file writ petition and request for record, and a writ
petition-juvenile form, or other petition for extraordinary writ.†In the presence of counsel, the court
expressly advised Mother to “speak to your attorney.†The court’s only fault was in failing to mention
the deadline for filing the notice of intent and request for record. But Mother did not merely miss the deadline
for filing a notice of intent and request for record. She failed to file a writ petition, notice of
intent or request for record at any
time, ignoring the court’s advisement that this was the sole method to preserve
her right to review its September 2011 order.
No case of
which we are aware has held that failure to inform a party of the deadline,
standing alone, justifies disregarding section 366.26, subdivision (
reunification issues by an appeal filed after the permanent plan has been implemented. Nor do we believe such a rule would be
wise. It is not at all unusual for
dependency proceedings to move slowly after termination of reunification
services, as the focus shifts to determining a child’s adoptability and
considering potential permanent homes. A
year or more may pass before the necessary investigations and paperwork are
completed and the final plan approved by the court, during which time the child
becomes increasingly accustomed to a new environment and new caregivers. Any rule allowing a parent to belatedly raise
issues relating to the reunification phase should be drawn as narrowly as
possible. Where no information about the
writ review requirement was provided by the court, such a rule is a necessary
evil required to protect fundamental due process despite its detrimental impact
on the goals of expedition, finality and stability. (See In
re Frank R., supra, 192 Cal.App.4th
at p. 539.) But where the parent has
been advised of the necessity of seeking review by way of a writ proceeding with
no information about the deadline, he or she has the option of filing a writ
petition or notice of intent within any reasonable time and asking the Court of
Appeal to grant relief from default for a late filing. (See Jonathan
M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1831 [petitioner who files
notice of intent late may obtain relief from default on showing of good cause];
Karl S. v. Superior Court, supra, 34
Cal.App.4th at p. 1404 [same].) Mother could
have obtained review of the court’s September 2011 order by filing a late writ
petition or notice of intent, and presenting evidence that she had been misled
or confused by the court’s advisement. Instead,
having been advised of the need to seek writ review, she sought none at any
time during the nearly 15 months between the September 2011 hearing terminating
reunification services and the December 2012 section 366.26 hearing. On this record, we see no basis to apply the
rule applicable to parents who were not advised of their right to seek writ
review of an order terminating reunification services. Accordingly, we conclude the issues raised in Mother’s
appeal pertaining to the September 2011 order are not reviewable at this time.
Moreover, even
were we to reach the merits, we would not reverse the September 2011
order. Pointing out that the statutory
provision governing six-month review hearings for children under the age of
three (§ 366.21, subd. (e)) requires the court to continue the case to the
12-month permanency hearing if it finds that “reasonable services have not been
provided [to a parent],†Mother contends that she was provided no services
prior to the six-month review hearing and that no reunification plan was ever
developed. Preliminarily, we note that
Mother did not raise these issues at the September 11 hearing. “A parent’s failure to raise an issue in the
juvenile court prevents him or her from presenting the issue to the appellate
court.†(In re Elijah V. (2005) 127 Cal.App.4th 576, 582.) Moreover, the record reflects that reasonable
services were provided to the extent possible under the circumstances. (See Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164 [“The
adequacy of reunification plans and the reasonableness of [DCFS’s] efforts are
judged according to the circumstances of each case.â€]; In re Misako R. (1991) 2 Cal.App.4th 538, 547 [“The standard is not
whether the services provided were the best that might be provided in an ideal
world, but whether the services were reasonable under the circumstances.â€].) At the dispositional hearing, the court
ordered a straightforward plan for Mother, a parenting course and individual
counseling to address case issues and drug awareness. The caseworker met with Mother in April 2011,
shortly after the dispositional hearing, when Mother was still incarcerated at
Twin Towers, to discuss the plan. Mother
informed the caseworker that no services were available there, but would be
available when she was transferred to a state prison. She was transferred to the California
Institute for Women in mid-July 2011. She
informed her sister Consuelo that she going to enroll in the programs available
there, and Consuelo so advised the caseworker.
to participate in prison programs until late 2011, after the hearing
terminating reunification services and setting the section 366.26 hearing. Mother’s failure to make progress in the
programs assigned her within the six months following the dispositional hearing
was not the fault of the caseworker, but was a consequence of Mother’s criminal
conduct -- resulting in her incarceration for the first four months in a
facility with no services -- and of her failure even to begin the programs
available following her transfer in July.
(See In re Lauren Z.
[mother placed herself out of reach of any meaningful rehabilitative services Department
could have provided when she engaged in conduct that resulted in her imprisonment
out of state].)
Mother also
contends that the caseworker misled the court by indicating in the September
2011 report that she would be imprisoned longer than was expected. The record indicates that when Mother and the
caseworker met in April 2011, Mother anticipated being incarcerated for a total
of two years. The probation officer had
estimated three to six years. The
caseworker attempted to determine the precise date Mother was scheduled to be
released, but was unable to reach the appropriate prison official. In the meantime, the caseworker heard from
Consuelo that Mother believed she would serve 14 months, but did not include
this information in the September 2011 report.
The caseworker was not required to report secondhand speculation which,
in any event, proved to be incorrect. The
caseworker included in the September 2011 report the only concrete information
she had: the length of the two sentences
imposed for the two offenses Mother committed.
Based on the information provided, the court presumed -- correctly --
that Mother would be incarcerated longer than the one-year period of
reunification generally applicable to children under the age of three. (See § 361.5, subd. (a)(1).) Mother was present in court, with her
counsel, and could have corrected any misapprehension on the court’s part. Instead, Mother’s counsel agreed she would be
“incarcerated longer than the statutory period of reunification.†In fact, Mother was not released until
January 2013 and would not have been in a position to reunify with X.Z., even
if the court had waited to terminate services and set a section 366.26 hearing until
the 12-month or 18-month review dates. Under
these circumstances, any misinformation in the September 2011 report about
Mother’s period of incarceration did not prejudice her.
Mother
contends the court failed to make statutorily-mandated findings at the
September 2011 hearing, specifically, a finding that reasonable services were
provided to Mother or a finding by clear and convincing evidence that Mother
“‘failed to participate regularly and make substantive progress in a
court-ordered treatment plan.’†The last
paragraph of section 366.21, subdivision (e) provides that if the child is not
returned to his or her parent or legal guardian, “the court shall determine
whether reasonable services that were designed to aid the parent or legal
guardian in overcoming the problems that led to the initial removal and the
continued custody of the child have been provided or offered to the parent or
legal guardian.â€
title="">[11] (See also Cal. Rules of Court, rule
5.708(e)(1).) Although not articulated
at the hearing, the minute order reflects that the court made this finding. (See In
re Merrick V. (2004) 122 Cal.App.4th 235, 249 [conflicts between reporter’s
transcript and clerk’s transcript may be resolved in favor of clerk’s
transcript where particular circumstances dictate]; In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 [reporter’s
transcript and clerk’s transcript are to be harmonized if possible and clerk’s
transcript may be viewed as clarifying point reporter’s transcript left
ambiguous]; People v. Smith (1983) 33
Cal.3d 596, 599 [“‘[T]hat part of the record will prevail, which because of its
origin and nature or otherwise, is entitled to greater credence [citation].’â€];
People v. Malabag (1997) 51
Cal.App.4th 1419, 1423 [“Absent a conflict between the transcripts, the clerk’s
transcript can establish a valid waiver where the reporter’s transcript is
silent on the matter.â€].) For the
reasons already discussed, we have concluded that substantial evidence supports
that the services provided were reasonable under the circumstances.
The court must
also find “by clear and convincing evidence that the parent failed to participate
regularly and make substantive progress in a court-ordered treatment plan†if
it terminates reunification services and sets a section 366.26 hearing, as it
did here. (§ 366.21, subd.
(e).) Although the court found that
Mother was not in compliance with the case plan, it erroneously made the
finding under the preponderance of the evidence standard. We do not, however, believe this constitutes
ground for reversal. The evidence was
undisputed that Mother had made no progress and Mother offered no excuse for
her lack of progress or failure to enroll in the programs available. Accordingly, assuming Mother had not
forfeited her right to appellate examination of these issues by failing to seek
writ review, we would find no basis for reversing the September 2011 order terminating
services and setting the section 366.26 hearing.
The order
terminating parental rights is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
to the Welfare and Institutions Code.
arrested and charged with possession of methamphetamine for sale,
transportation of a controlled substance, manufacture of methamphetamine, and
manufacture of methamphetamine in the presence of a child. He is not a party to this appeal.
