JENNIFER v. SUPERIOR COURT

Filed 12/28/07; part. pub. & mod. order 1/24/08 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

PURPORTED APPEAL from an order of the Superior Court of Los Angeles County, treated as petition for writ of mandate. Valerie Skeba, Referee. Petition denied.

Harry Zimmerman for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Associate County Counsel, for Real Party in Interest.

_________________________

Jennifer T., mother of B.B.T. and S.T., purports to appeal an order of the juvenile court terminating her family reunification services (Welf. & Inst. Code,  366.21, subd. (e))^[1]and setting the section 366.26 permanency planning hearing.^[2]

The essential issue presented is whether the juvenile court properly found reasonable reunification services were provided to the mother. We affirm, concluding the record fully supports the juvenile courts ruling.

FACTUAL AND PROCEDURAL BACKGROUND

The record reflects mother had 10 children. Her five oldest children live in Ohio with their maternal grandmother because, according to mother, she is unable to care for them. Four of those children were adopted by the maternal grandmother in 2001, and she is also seeking to adopt the fifth child in her custody.

Another child, M., died in December 2004 at age of two months. According to mother, the cause of death was Sudden Infant Death Syndrome (SIDS). However, the medical examiner ruled SIDS out and the cause of death was opined to be undetermined.

On April 18, 2006, the family came to the attention of the Department of Children and Family Services (DCFS) by way of a referral generated by the child abuse hotline, which alleged mother severely neglected child S.T. by not providing him with appropriate medical care. The referral also alleged that three siblings, Jewel, B.B.T. and A., were at risk for abuse.

On April 26, 2006, DCFS filed a section 300 petition on behalf of Jewel (age four), B.B.T. (age three), and S.T. (age three months), alleging S.T. is medically fragile and suffers from asthma and a cardiac disorder, conditions which require appropriate follow-up medical treatment and medication on a consistent basis, mothers failure to provide S.T. with proper care has resulted in his requiring repeated hospitalizations for emergency treatment, and that siblings Jewel and B.B.T. were at risk of similar neglect.

At the detention hearing on April 26, 2006, the juvenile court found prima facie evidence for detaining the three minors, finding no reasonable means to protect them without removal from the home.

On May 10, 2006, DCFS filed the operative second amended juvenile dependency petition.

At the hearing held May 10, 2006, mother, represented by counsel, pled no contest to the petition. The juvenile court accepted the plea, sustained the petition pursuant to section 300, subdivision (b), by a preponderance of the evidence and declared the minors dependent children of the court.

The court ordered disposition case plan called for mothers participation in family reunification services consisting of: drug rehabilitation with random testing; alcohol program with random testing; parent education; and individual counseling to address case issues, including parenting and substance abuse issues. Mother also was given monitored visitation, with discretion in DCFS to liberalize visitation.

Mothers counsel advised the court that mother has agreed to the case disposition plan in an effort to cooperate and work with the Department, including testing.

A progress hearing was held one month later, on June 13, 2006. DCFS submitted information that on June 7, 2006, mother had threatened staff members at King-Drew Medical Center Hospital that if [they] reported anything negative to Court or Child Protective Services, she would come after them and send her gang members after them. DCFS further reported that mother had not contacted her DCFS social worker to receive counseling and drug referrals and had not visited the children. Further, the social worker had attempted to contact mother but mother had not responded.

On August 2, 2006, a DCFS worker provided mother with referrals for parenting, random drug testing, individual counseling and substance abuse programs. Mother signed an acknowledgement that she had received the referrals.

On August 28, 2006, a DCFS worker attempted to contact mother by leaving her a voice mail message. Mother did not respond.

According to a September 5, 2006 report, B.B.T.s foster mother indicated mother visits with [B.B.T.] . . . sporadically[,] . . . [she] pops in whenever she finds time, but exhibits no consistency in visiting with the child.

On September 29, 2006, a DCFS worker submitted a referral for mother to participate in random drug testing.

On November 29, 2006, one day before a six-month status review, mother came into the DCFS office and met with a social worker, stating she had enrolled in parenting classes on September 18, 2006 and expected to receive a completion certificate on December 13, 2006. In response to the social workers inquiry about drug testing, mother denied that she was ordered to submit to drug testing. Mother stated she was enrolled in counseling but could not provide any information as to where she had received services. Mother also stated she was considering participating in a substance abuse program . . . but stated she did not want to participate in a residential program. (Italics added.)

On November 30, 2006, DCFS submitted a status review report for the section 366.21, subdivision (e), six-month review hearing. The report stated mother had not provided any documentation to the Department that she is in compliance with the court orders, and that the minors caregivers reported that mother was not visiting the children regularly.

Mother was present at the hearing held on November 30, 2006. Mothers counsel asserted mother had not received her drug testing referral, so the juvenile court ordered DCFS to provide her with a new referral.

Shortly before the January 11, 2007 six-month review hearing, DCFS updated the juvenile court on mothers progress. A letter from Solutions Family Resource Center indicated that as of January 4, 2007, mother was enrolled in an outpatient treatment program and would be participating in parenting classes, 12-step meetings, individual counseling and weekly drug testing. Also, mother had visited the children on Christmas Day and on January 8, 2007, and had failed to show up for a drug test on January 4, 2007.

At the review hearing on January 11, 2007, mother was present with counsel. DCFS recommended that mothers reunification services be terminated. Mothers counsel conceded that, as of today, she cant meet [the] standard [to extend reunification services]. But she does want the Court to know that she is enrolled at Solution Family Resource Center . . . [a]nd her goal is to file a 388 motion within about six months.

The juvenile court found by a preponderance of the evidence, that return of the children to the physical custody of the mother at this time would create a substantial risk of detriment to minors physical and emotional health and safety.

The juvenile court further found mother has not been able to comply with the case plan. [] Reasonable efforts have been made to prevent or eliminate the need for further removal. [] The children remain dependent of the court under . . . Section 300. [] With respect to mother, family reunification services are terminated. There is little likelihood the children could be placed with her by the .21(f) date. Accordingly, the juvenile court terminated mothers reunification services and set a section 366.26 hearing for B.B.T. and S.T. for May 31, 2007.

On March 12, 2007, mother filed a notice of appeal purporting to appeal from the January 11, 2007 order terminating reunification services as to B.B.T. and S.T.

CONTENTIONS

Mother contends: she may challenge the section 366.26 referral order as to S.T. and B.B.T., notwithstanding her failure to file for writ relief, because the juvenile court did not properly advise her of her writ rights when it terminated family reunification; the juvenile courts section 366.26 referral order must be reversed because the juvenile court never found, and could not have found based on the evidence before it, that the Department offered her reasonable reunification services; and the section 366.26 referral order must be reversed because the juvenile court failed to wait the required time period before finding notice was proper under the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.).

DISCUSSION

1. Due to juvenile courts failure to duly advise mother of her writ rights, we construe the purported appeal from the January 11, 2007 order terminating reunification services as a petition for writ of mandate.

An order setting a section 366.26 hearing is not appealable; direct appellate consideration of the propriety of the setting order may be had only by petition for extraordinary writ review of the order. ( 366.26, subd. (l); [citations].) (In re Cathina W., supra, 68 Cal.App.4th at p. 719, fn. omitted.) When the juvenile court orders a hearing under section 366.26, the court must orally advise all parties present 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. ( 366.26, subd. (l)(3)(A); rule 5.600(b).)

Although the January 11, 2007 minute order contains a recital that [t]he parties are advised of writ procedures in open court, the reporters transcript establishes the juvenile court failed to orally advise mother of her writ rights. In this regard, the transcript of the hearing indicates the court merely direct[ed] the clerk to give copies of the writ notices to the mother. Under these circumstances, given this conflict between the juvenile courts statements in the reporters transcript and the recitals in the clerks transcript, we presume the reporters transcript is the more accurate. (See People v. Smith (1983) 33 Cal.3d 596, 599.)

In re Cathina W. held that juvenile courts failure to duly advise the mother of her writ rights entitled mother to obtain appellate review of the merits of the setting order on the appeal from the termination order. (In re Cathina W., supra, 68 Cal.App.4th at pp. 722-724.) The instant matter is in a somewhat different posture. Rather than an appeal from a termination order, we are presented with a purported appeal from the setting order. Because good cause exists for mothers failure to file a timely writ petition from the setting order in accordance with rule 5.600, we construe the purported appeal from the setting order as a petition for writ of mandate.

We now turn to the merits of mothers contentions.

2. No abuse of discretion in termination of mothers reunification services.

Mother contends the reunification plan was poorly devised and poorly executed. Her contentions are without merit.

a. Mother is precluded from challenging the terms of the reunification plan.

As set forth above, the May 10, 2006 court ordered disposition case plan called for mothers participation in family reunification services consisting of: drug rehabilitation with random testing; alcohol program with random testing; parent education; and individual counseling to address case issues, including parenting and substance abuse issues. Mother also was given monitored visitation, with discretion in DCFS to liberalize visitation.

Mother agreed to the case disposition plan and did not seek any modifications thereto. Moreover, the case plan was ordered by the juvenile court on May 10, 2006. Mother did not appeal the dispositional order. Mother cannot at this juncture contend the reunification plan as ordered by the court was inadequate or unreasonable. (Steve J. v Superior Court (1995) 35 Cal.App.4th 798, 811.)

b. No merit to mothers contention the trial court used an incorrect legal standard.

Section 366.21 states in relevant part at subdivision (g)(1)(C): The court may not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian. (Italics added.) Mother contends the trial court failed to apply this heightened standard. The argument is unavailing.

The record reflects that at the January 11, 2007 review hearing, the juvenile court found by a preponderance of the evidence, that return of the children to the physical custody of the mother at this time would create a substantial risk of detriment to minors physical and emotional health and safety. (Italics added.)

Separately, the juvenile court also found mother has not been able to comply with the case plan. [] Reasonable efforts have been made to prevent or eliminate the need for further removal. (Italics added.) In other words, the trial court determined that reasonable services had been provided to mother, without specifying the standard of proof applicable to that finding.

Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, is on point. There, as here, the juvenile court failed to state expressly the standard of proof under which it had made the determination that reasonable family reunification services had been provided. (Id. at p. 1025.) Armando D. rejected the appellant fathers contention the juvenile court had utilized the incorrect standard, stating [i]n light of the juvenile courts failure to articulate an incorrect standard, fathers failure to request clarification of the record below, and the presumption the juvenile court applied the correct statutory standard of proof, this issue fails for want of a record which affirmatively demonstrates error. (Ibid.)

c. Substantial evidence supports the determination that mother was offered reasonable reunification services but failed to avail herself of them.

With regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) We are also mindful that  [r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. [Citation.] (In re Christina L. (1992) 3 Cal.App.4th 404, 414.)  The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency of his or her minor children is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waitsuntil the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go on hold while the parent makes another stab at compliance. (Id. at pp. 414-415, italics added.)

Here, mother did almost nothing until the week before the January 11, 2007 review hearing. Then, on January 4, 2007, one week before the hearing, mother enrolled in an outpatient treatment program at Solutions Family Resource Center.

Prior to that date, mothers compliance with the reunification plan was almost nil. The record reflects mother repeatedly was given referrals by DCFS for drug testing, as well as for other services, but failed to follow through. On one occasion, in response to a DCFS workers inquiry about her compliance with drug testing, mother denied she had been ordered to participate in drug testing. Also, mother failed to show up for a scheduled drug test on January 4, 2007.

Further, mother visited her children sporadically and infrequently. She never completed a parenting course. She did not maintain contact with DCFS. She failed to provide proof of completion of any programs or services. Finally, mother delayed enrolling in a drug treatment program until the eve of the juvenile court hearing to determine whether her reunification services should be terminated.

In view of all the above, substantial evidence supports the findings of the juvenile court that DCFS has complied with the case plan by making reasonable efforts to enable the childs safe return home and that mother is not in compliance with the case plan.

3. No merit to mothers contention the juvenile court prematurely found that ICWA notice was proper and that ICWA did not apply.

By way of background, because Timothy M., B.B.T.s biological father, asserted he was Cherokee on his mothers side, on July 11, 2006, ICWA notices were mailed to three Cherokee tribes as well as to the Bureau of Indian Affairs and the Secretary of Interior. At the hearing held 15 days later, on July 26, 2006, the juvenile court indicated the ICWA notice was proper and there was no information to indicate that ICWA applied. The court added that if any contrary information were received, it would recall the matter and apply ICWA.

Section 224.3, subdivision (e)(3) requires a juvenile court to wait 60 days from the receipt of ICWA notice before the court may determine that ICWA does not apply to the proceedings. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.)

Mother contends that because the juvenile court did not wait the required length of time before ruling on July 26, 2006 that ICWA did not apply, the referral order made at the January 11, 2007 review hearing must be reversed.^[3] The contention lacks merit.

The doctrine of harmless error applies to ICWA notice issues. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) Here, the juvenile courts premature finding on July 26, 2006, that ICWA does not apply was nonprejudicial. By the January 11, 2007 hearing date, the requisite 60-day period had long since passed. Further, there is no indication that ICWA does apply. Therefore, the juvenile courts noncompliance with ICWA was harmless.

DISPOSITION

The petition for writ of mandate is denied.

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

Filed 1/24/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE COURT:

It is ordered that the opinion filed herein on December 28, 2007, be modified as follows:

1. On page 7, line 3, at the end of the paragraph ending with the words petition for writ of mandate, insert the following two new paragraphs:

We are aware In re Merrick V. (2004) 122 Cal.App.4th 235, held the juvenile courts failure to provide a party with notice of the writ requirement allowed that party to appeal the order terminating reunification services and setting a section 366.26 permanency planning hearing. (In re Merrick V., supra, at pp. 247-249.) We respectfully disagree with Merricks resolution of the issue. In California, the right to appeal is entirely statutory. (Powers v. City of Richmond (1995) 10 Cal.4th 85, 108; In re Uriah R. (1999) 70 Cal.App.4th 1152, 1156; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  2, p. 60.) The Legislature has decreed that no direct appeal lies from an order setting a section 366.26 hearing. ( 366.26, subd. (l)(1).) As Merrick itself recognized, All court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ. [Citations.] (In re Merrick V., supra, 122 Cal.App.4th at p. 247.)

Because the right to appeal is purely statutory, an appellate court cannot confer the right to appeal as a remedy for the juvenile courts failure to advise a party of the writ requirement. ( 366.26, subd. (l)(3)(A). Instead, we believe the proper approach to the juvenile courts failure to advise a party of the writ requirement is that the party is entitled to obtain direct review of the order setting a section 366.26 hearing by way of an ordinary petition for writ of mandate, without regard to the shortened period for writ review that would otherwise be applicable. (Rules 8.450, 8.452.) Therefore, due to the juvenile courts failure to duly advise mother of her writ rights, we construe the purported appeal from the January 11, 2007 order terminating reunification services and setting a section 366.26 hearing as a petition for writ of mandate.

The opinion in the above-entitled matter filed on December 28, 2007, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be partially published in the Official Reports and it is so ordered. The portions of the opinion not to be published are sections 2 and 3 of the Discussion, on pages 7 through 10.

[There is no change in the judgment.]

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^[1] All statutory references are to the Welfare and Institutions Code, unless otherwise specified. Also, all rule references are to the California Rules of Court.

^[2] No direct appeal lies from an order terminating reunification services and setting the permanency planning hearing. Review of such order is by way of petition for an extraordinary writ. ( 366.26, subd. (l)(3)(A); rule 5.720; In re Cathina W. (1998) 68 Cal.App.4th 716, 719.) For the reasons set forth in the Discussion section, rather than dismissing the appeal, we construe the matter as a petition for writ of mandate and address the merits of mothers contentions.

^[3] Mother, although not Indian, has standing to assert an ICWA notice violation on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)