Filed 7/12/22 J.B. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ORIGINAL PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26[1] hearing. Michael J. Imhoff, Commissioner. Petition granted, matter remanded with directions; request for stay denied.

Law Office of Berta Zangari, Berta Zangari, and Cameron Edwards, for Petitioner.

No appearance for Respondent.

Claudia Silva, Acting County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa Madonado, Deputy County Counsel, for Real Party in Interest.

J.B. (Mother) petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. She challenges the juvenile court’s April 14, 2022, orders issued at a contested section 388 hearing, contending that the juvenile court: (1) erroneously failed to make a reasonable services finding as required by subdivision (c)(3) of section 388; and (2) erroneously found that the denial of further reunification services to her “ ‘would not be detrimental to [G.V.]’ ” because subdivision (e)(1) of section 361.5 expressly requires a determination whether the provision of reunification services would be detrimental to the child.

Real party in interest, the San Diego County Health and Human Services Agency (Agency), filed a response conceding that the juvenile court failed to make the required statutory finding pursuant to section 388, subd. (c)(3), and employed the wrong statutory analysis in assessing section 361.5, subd. (e)(1). We agree and remand the matter for the juvenile court to correct these errors.

FACTUAL AND PROCEDURAL BACKGROUND[2]

In March 2021, the Agency filed a section 300 petition alleging that after his birth, G.V. tested positive for amphetamine, methamphetamine, opiates, and marijuana, and that he suffered withdrawal symptoms. In July 2021, Mother was incarcerated at the Las Colinas Detention and Reentry Facility (Las Colinas). Mother represented to the Agency that she could not complete any reunification services due to her “level” at Las Colinas but that she was willing to engage in services.

In August 2021, the juvenile court found true the allegations in the petition. At the disposition hearing in early December 2021, the juvenile court ordered the Agency to provide Mother with reunification services consistent with her case plan. Mother’s case plan included substance abuse treatment and parenting education.

In February 2022, Mother received a four-year prison sentence and the Agency subsequently filed a modification petition under section 388 requesting termination of Mother’s reunification services based on the length of her incarceration. (§ 361.5, subd. (e)(1).) On March 16, 2022, Mother was transferred to the Central California Women’s Facility. On April 14, 2022, the juvenile court held an evidentiary hearing on the Agency’s section 388 petition. The juvenile court granted the petition and set a section 366.26 hearing for August 15, 2022. Mother timely filed a notice of intent to file a writ petition.

DISCUSSION

When the juvenile court removes a child from parental custody, it generally orders reunification services, the duration of which depends on the age of the child. If, as here, the child is under the age of three years on the date of the initial removal, the juvenile court must provide six months of reunification services beginning with the dispositional hearing and ending 12 months after the date the child entered foster care. (§ 361.5, subd. (a)(1)(B).) A parent, however, has no entitlement “to a prescribed minimum period of services.” (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1243.)

Subdivision (c)(1) of section 388 permits the early termination of reunification services if the juvenile court finds by a preponderance of the evidence that “reasonable services have been offered or provided” to the parent (§ 388, subd. (c)(3)), and by clear and convincing evidence that “one of the following conditions exists: [¶] (A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services. [¶] (B) The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent’s or guardian’s failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 388, subd. (c)(1)(A)-(B).)

“[T]he plain language of section 388, subdivision (c) requires the juvenile court to make a reasonable services finding before it may terminate reunification services to a parent.” (In re J.P. (2014) 229 Cal.App.4th 108, 125.) Here, however, the juvenile court terminated Mother’s reunification services without making a finding that she had received reasonable services. The Agency concedes, and we agree, that the omission of a reasonable services finding is prejudicial. (See § 366.26, subd. (c)(2)(A) [“The court shall not terminate parental rights if: [¶] (A) At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.”]; see generally Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 [“the procedure specified in section 366.26 for terminating parental rights comports with the due process clause of the Fourteenth Amendment because the precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion”].) Accordingly, the matter must be remanded to assess the reasonableness of the services provided to Mother as required by section 388, subd. (c)(3).

Mother next contends, and the Agency agrees, that the juvenile court erred when making its finding under section 361.5, subd. (e)(1). We again agree with the parties.

Reasonable reunification services must be offered to an incarcerated parent unless the juvenile court finds by clear and convincing evidence that “those services would be detrimental to the child.” (§ 361.5, subd. (e)(1).) “The focus is on the child, and there must be a finding of detriment before an incarcerated parent may be denied services.” (In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344; see id. at p. 1345 [remanding for a detriment determination under § 361.5, subd. (e)(1)].) Here, the juvenile court applied the wrong standard when it stated that failing to offer Mother reunification services would not be detrimental to G.V. On remand, the juvenile court is directed to reconsider its finding under section 361.5, subd. (e)(1). (See also M.C. v. Superior Court (2016) 3 Cal.App.5th 838, 849-851 [holding that trial court’s errors in failing to apply correct legal standard or make required findings under section 361.5 were not harmless].)

DISPOSITION

Let a peremptory writ of mandate issue directing the juvenile court to vacate its April 14, 2022, orders and conduct further proceedings consistent with this opinion. The request for a stay is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

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

[2] Because Mother’s challenges are confined to the April 14, 2022, hearing, we provide a limited recitation of the facts and procedural history leading up to this hearing.