Filed 12/13/17 Tammy W. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TAMMY W.,

Petitioner,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Respondent;

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Real Party in Interest.

F076357

(Super. Ct. No. 0081373-3)


OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary Green, Commissioner.
Richard A. Ciummo & Associates and Alicia Borrego, for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner Tammy W. (mother) seeks an extraordinary writ from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing as to her now 14-year-old daughter, A.W. On September 20, 2017, at an uncontested 12-month review hearing (§ 366.21, subd. (f)(1)), the court terminated mother’s reunification services and set a section 366.26 hearing to implement a permanent plan. Mother was not present at the hearing and her court-appointed trial counsel could not account for her absence. The court, not finding good cause to continue the hearing, issued its ruling.
Appellate counsel contends the juvenile court prejudicially erred in denying mother a contested 12-month review hearing. In a declaration attached to the petition, appellate counsel asserts mother checked in with the court within two minutes of the court’s issuance of its ruling. Counsel claims she immediately asked the court to go back on the record but the court denied her request, stating it had already made its decision. She contends the court violated mother’s right to due process by refusing to reopen the proceedings and grant her a contested 12-month review hearing. We concur and grant the petition.
PROCEDURAL AND FACTUAL BACKGROUND
In August 2016, the Fresno County Department of Social Services (department) and law enforcement responded to a crisis referral alleging mother’s husband, Scott, was living in her home and having unsupervised contact with their then 13-year-old daughter, A.W., and mother’s then 17-year-old son, Kurt, despite a restraining order against Scott and a custody order requiring that his visits with A.W. be supervised by a licensed clinician.
The family has a history of domestic violence and sexual abuse allegations. Scott is a registered sex offender, a status he acquired by sexually molesting his daughter from another relationship. In addition, the department removed A.W. and Kurt from the parents’ custody in August 2012 after A.W., then nine, alleged Scott touched her private parts and wanted to take a bath with her. The juvenile court adjudged the children dependents based on the parents’ domestic violence and ordered them to participate in parenting, domestic violence and mental health services. In November 2013, the court terminated Scott’s services at the six-month review hearing and, in February 2014, returned the children to mother’s custody under family maintenance. In May 2014, the court granted mother sole legal and physical custody and terminated its dependency jurisdiction.
Mother explained to the police officer that Scott was in counseling and she was going to court to get the restraining order lifted. She said Scott was a good father and the only man who loved her and her children and accepted Kurt as his own. Mother also stated Scott was a good man and did not “do anything” in the first place.
The department took the children into protective custody and placed A.W. in foster care and Kurt with a family friend. Scott was arrested for violating the restraining order.
The juvenile court ordered Kurt and A.W. detained pursuant to a petition filed by the department alleging the children were at a substantial risk of being sexually abused by Scott and mother failed to protect them. (§ 300, subds. (b)(1) & (d).) The court ordered supervised visitation for mother with both children and therapeutic supervised visitation for Scott with A.W. The court did not order any other services at that time.
The juvenile court found the allegations true as to A.W. and adjudged her a dependent child. The court amended the petition to exclude Kurt because he had reached the age of majority. At the dispositional hearing, the court ordered mother to participate in parenting, mental health and domestic violence services and ordered the department to arrange weekly, supervised visitation. The court denied Scott services.
By the six-month review hearing in May 2017, mother had her own residence, which she shared with Kurt. She and Scott were still married, although she claimed to have no contact with him. She was regularly visiting A.W. and participating in her services. However, the department was concerned that she was still seeing Scott and did not take responsibility for endangering the children. In addition, she estranged herself from the two people who provided her a support system; the family friend who cared for Kurt and her sister. The department opined it would be detrimental to return A.W. to mother’s custody.
On May 31, 2017, following a contested six-month review hearing, the juvenile court continued mother’s reunification services to the 12-month review hearing, which the court set for September 20, 2017. Mother’s trial counsel filed a notice of appeal, which is pending (case No. F075989).
In June 2017, the department filed a modification petition under section 388, asking the juvenile court to order mother to participate in a psychological evaluation/risk assessment (assessment) at the request of mother’s therapist, Sara Fry. In a letter to the department, Fry stated mother had been enrolled in therapy services since December 21, 2016, and had attended 13 of 16 sessions. Although mother reported progress in reducing her symptoms of depression, she was struggling to take responsibility for her failure to protect A.W. and blamed A.W.’s removal on others. In addition, mother showed a lack of empathy for the impact her actions had on A.W. and demonstrated behaviors and thinking patterns that inhibited her ability to gain insight into the effect of her actions on A.W. There were also reports that mother was possibly having contact with Scott and allowing her children to have contact with him, although mother denied it. Fry recommended the assessment to determine the level of risk mother posed to A.W. if A.W. were returned to her custody.
On August 16, 2017, the juvenile court granted the department’s section 388 petition and ordered mother to undergo the assessment. Mother was not present at the hearing. Her attorney objected to the assessment, arguing there was insufficient evidence to indicate mother was not benefitting from services. The court stated it had observed mother during testimony and found the assessment warranted.
On August 30, 2017, the juvenile court conducted an interim review hearing and confirmed the 12-month review hearing for September 20. Mother was not present.
In its report for the 12-month review hearing prepared on September 1, 2017, the department recommended the juvenile court terminate mother’s reunification services. Although, she completed a parenting program, there were concerns about her ability to protect A.W. as expressed by Fry and she had yet to begin domestic violence counseling. She completed a domestic violence assessment and was referred for a 52-week child abuse intervention program, which apparently began in June 2017. However, she missed the first several classes as well as meetings in July and August to discuss her failure to attend. A meeting was scheduled for September 18.
Mother continued to visit A.W. under supervision and A.W. enjoyed her visits with mother. However, the resource parent who supervised them was frustrated and unwilling to continue supervising them. The resource parent began supervising visits after the six-month review hearing on May 24 and, in an effort to improve the quality, met with mother, A.W. and the social worker to explore ideas. They agreed to meet at a fitness center and a shopping mall, since mother and A.W. liked to work out together and shop. Mother and A.W. agreed that they could not leave the agreed upon location during visitation. However, after several visits, mother demanded to travel to different locations and wanted A.W. to ride in her car with her. When the resource parent refused her, mother became upset. The resource parent stated mother did not want any supervision.
The department opined it would be detrimental to return A.W. to mother’s custody and that mother’s prognosis for reunification was poor. A.W.’s foster parents regularly expressed their willingness to be her legal guardians and the department believed a permanent plan served A.W.’s best interest.
Mother did not appear at the hearing on September 20, 2017, and her attorney did not know why she was not there. The attorney stated mother called her two days before and said she was trying to attend a meeting scheduled by the department. The attorney was unable to obtain information about the meeting, however, because the social worker was not present. Mother’s attorney told the court, “After discussing the case on Monday, we were prepared to request a contest to termination of services.”
The juvenile court observed mother had not appeared in court since May 24 and was not attending classes, which suggested “she may not be interested in this process.” County counsel could not answer whether mother completed the risk assessment and submitted on the department’s report. County counsel informed the court the social worker assigned mother’s case was no longer with the department and a new social worker had not been assigned. Minor’s counsel told the court that A.W. loved mother and wanted to reunify. Counsel was in favor of continuing their visitation.
Mother’s attorney asked the juvenile court to continue the hearing so she could find out why mother did not appear. The court stated it had not heard good cause to continue the hearing and issued its ruling. The court found the department provided mother reasonable reunification services but that her progress was moderate. The court terminated reunification services and set the section 366.26 hearing for January 3, 2018.
DISCUSSION
“Review hearings are an integral part of the constitutional safeguards provided to the parent and child in California’s dependency scheme.” (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 778-779 (David B.).) Findings made at these hearings often result in the termination of parental rights at the permanency planning hearing. (§ 366.26, subd. (c)(1); (In re James Q. (2000) 81 Cal.App.4th 255, 262 (James Q.).) “From the perspective of the parent, review hearings are the essential mechanisms by which he or she may be foreclosed from any further relationship with the child.” (James Q., supra, 81 Cal.App.4th at p. 263.) “During this time, the parent has the best opportunity he or she will ever have to make the strongest case possible in favor of returning the child to parental custody.” (Ibid.)
A parent’s rights at dependency proceedings are governed by California Rules of Court, rule 5.534(g), which affords a parent, as relevant to this case, the right to confront and cross-examine the persons who prepared the reports or documents submitted to the court by the petitioner, the right to use the process of the court to bring in witnesses and the right to present evidence to the court. (Rule 5.534(g)(1)(B)-(D).) Moreover, a parent has a liberty interest in his or her relationship with his or her child. (James Q., supra, 81 Cal.App.4th at p. 263.) This interest is fundamental and, therefore, may not be extinguished without due process. (Ibid.)
Due process requires that the court strike a balance between the state’s strong interest in prompt and efficient resolution of dependency matters and a parent’s right to a meaningful hearing and the opportunity to present evidence. (Maricela C. (1998) 66 Cal.App.4th 1138, 1146.) In effectuating the state’s interest, the juvenile court is accorded broad general authority to control its proceedings. (§ 350, subd. (a)(1).)
At the 12-month review hearing, the juvenile court must decide whether to return the child to parental custody and whether to continue reunification services. As to the first, the court must return the child unless it finds that doing so would create a substantial risk of detriment to the child’s safety and well-being. If the court finds it would be detrimental to return the child, the court must decide whether to continue reunification services to the 18-month review hearing. The court must assess the reasonableness of services offered or provided by the agency, the probability the child could be returned to parental custody with continued services and how much time, if any, remains before it must conduct the 18-month review hearing. (§§ 366.21, subd. (f)(1), 361.5, (a)(3).) The agency bears the burden of proof at review hearings. (David B., supra, 140 Cal.App.4th at p. 779.)
Thus, the issues subject to contest before the juvenile court were whether return of A.W. to mother’s custody posed a substantial risk of detriment to A.W., whether the agency provided mother reasonable reunification services and whether there was a substantial probability A.W. could be returned to mother’s custody by February 19, 2018. The question for this court is whether the juvenile court violated mother’s right to due process by refusing to set a contested 12-month review hearing. We conclude in this case that it did.
Mother’s trial counsel appeared at the hearing set for the 12-month review and requested a contested hearing. The juvenile court denied it, apparently because mother was not physically present in court. Real party in interest in effect conceded as much at oral argument, stating the juvenile court would have set a contested hearing had mother been there. When mother arrived several minutes after the court issued its ruling, trial counsel made a second request for a contested hearing. Again, the juvenile court denied the request, this time because it had already issued its ruling.
We agree with mother that the juvenile court abused its discretion and denied her due process in denying her request for a contested hearing. As we have suggested, the dependency proceedings had progressed to a critical juncture and the stakes were high. If the juvenile court terminated reunification services, as the department was recommending, the next procedural step was the selection of a permanent plan and the growing prospect of losing custody of A.W. permanently. By summarily denying mother’s requests, the court deprived her the opportunity to challenge the department’s evidence on the critical issues before it.
Further, we cannot say on this record that the juvenile court’s error was harmless. The results of the risk assessment, if positive, may have persuaded the court to return A.W. to mother’s custody. Further, evidence mother participated in reunification services and maintained regular contact with A.W. and the fact that six months remained before the 18-month limitation on services may weigh in her favor on the issue of probability of return. That said, we are not indicating to the juvenile court how it should rule at a contested 12-month review hearing should one occur.
We are mindful that “time is not an unlimited commodity in today’s busy juvenile courts.” (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 760.) However, the juvenile court has ample means to control contested hearings and a “contested hearing is the minimal procedural safeguard available, one which is not onerous or unwarranted.” (David B., supra, 140 Cal.App.4th 772, 780.) More importantly, the “risk of an erroneous deprivation of a parent’s fundamental interest in his or her child outweighs [any] interest in an expeditious decision.” (Ibid.) In our view, a juvenile court should tread cautiously in cases such as this and err on the side of ensuring a parent’s due process rights are not unduly circumscribed.
DISPOSITION
Let an extraordinary writ issue directing respondent court to vacate its orders of September 20, 2017, terminating petitioner’s reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Respondent court is further directed to set a contested 12-month review hearing. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.