In re MARILYN A.

Filed 3/5/07 (reposted same date to correct processing lapse)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING petition for writ of mandate. Albert Garcia, Commissioner. Petition granted.

Martha A. Matthews for Petitioners Bridget A. and Christopher A.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Kim Nemoy Deputy County Counsel for Real Party Interest.

Jenny Cheung for Marilyn A., Real Party in Interest.

Cameryn Schmidt and Carol B. Gasa-Kittler for Joseph and Xochilt E., Real Parties in Interest.

______________

Absent extraordinary circumstances, at the 18-month permanency review hearing held pursuant to Welfare and Institutions Code section 366.22[1]the juvenile court either orders the return of a dependent child to parental custody or terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26. ( 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(1) & (3);[2]see In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.) If the juvenile court determines there would be no substantial danger to the child if he or she were returned home provided there is continued supervision by a social worker and the on-going provision of reasonable support services to preserve the family, is such supervised return an option available to the court? Or are the only alternatives returning the child and terminating dependency jurisdiction, on the one hand, or terminating reunification services and setting a section 366.26 hearing, on the other hand?

In this case the Los Angeles County Department of Children and Family Services (Department) recommended at Bridget and Christopher A.s 18-month hearing that the two children and their three siblings be returned to their mother, Xochitl C., but that the juvenile court retain jurisdiction and family maintenance services be provided to ensure the childrens safety. The juvenile court rejected the Departments recommendation, stating it had no statutory authority to order the children returned home without also terminating its jurisdiction. Following entry of the courts order returning the children to their mother and terminating its jurisdiction, Bridget and Christopher, who had objected to the juvenile courts refusal to consider the Departments proposed middle option, petitioned this court for a writ of mandate directing the juvenile court to vacate its order terminating jurisdiction and to issue a new order setting a hearing pursuant to section 364 to determine whether continued court supervision is necessary to ensure their safety in the home of their mother.

We grant the requested relief. In determining whether to return a dependent child in an out-of-home placement to the custody of his or her parent at the six-month review hearing ( 366.21, subd. (e)), the juvenile court properly considers if providing family maintenance services to the child and parent will facilitate the childs return to, and safe maintenance in, the home. Although the juvenile court in this case correctly observed there is no express authority in either statute or rule for a similar order returning the child to his or her parents custody and ordering family maintenance services at the 12-month ( 366.21, subd. (f)) or 18-month ( 366.22) permanency review hearings, neither is there anything in the statutory scheme, including in section 364, that precludes the court in an appropriate circumstance from entering such an order at those hearings. In fact, this middle option appears to have been contemplated by the Legislature, as reflected in section 361.5, subdivision (a), and is fully consistent not only with the broad-ranging authority of the juvenile court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child ( 362, subd. (a)), but also with the fundamental policies underlying the dependency system.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Original Dependency Petition

Bridget (now 14 years old) and Christopher (now 13 years old) and their three siblings were initially named in a dependency petition filed on April 22, 2004 by the Department pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (j) (abuse of sibling). The petition, as amended and sustained on June 7, 2004, alleged Antonio E., Bridget and Christophers stepfather, physically abused Christopher and two of his siblings (Joseph E. and Xochitl E.) and their mother, Xochitl C., failed to take appropriate action to protect her children, thereby placing all five children at risk; Xochitl C. herself physically abused Joseph E. and Marilyn A., placing not only those two children but also their siblings at risk; Antonio E. and Xochitl C. have a history of domestic violence in which they have assaulted each other in the childrens presence; Antonio E. has a history of substance abuse and drug-related criminal activity and is a current user of alcohol and illicit drugs, which renders him incapable of providing regular care for the children; and Xochitl C. knew of Antonio E.s substance abuse problem and failed to take appropriate action to protect the children.[3] The children were placed with their maternal grandmother, who came to live with the children in the family home. (Because the maternal grandmothers own home was too small to accommodate all the children, she moved into the family home to care for them; Antonio E. and Xochitl C. moved out of the home.)

In connection with the 12-month review hearing held on June 6, 2005 ( 366.21, subd. (f)), the Department reported Xochitl C. and Antonio E. had complied with the case plan requirements concerning parenting and domestic violence classes, counseling, alcohol and drug abstinence and visitation and recommended they be allowed to return to the family home. The court agreed and entered home-of-parent orders for the children to be returned to the physical custody of Xochitl C. and Antonio E. under the continued supervision of the Department. The court scheduled a section 364 review hearing for December 5, 2005.

2. The Subsequent Petition

On November 18, 2005 the Department filed a subsequent petition ( 342); and the children were again detained (and placed with their maternal grandmother in the family home with their parents required to leave) based on an allegation Xochitl C. had threatened Antonio E. with a loaded gun in the childrens presence because she was afraid he was molesting their six-year-old daughter, Xochitl E. Christopher had attempted to separate his mother and Antonio E. by stepping between the two of them; he managed to take the gun from his mother.

On January 26, 2006 the court sustained portions of the supplemental petition, terminated its prior home-of-parent orders, ordered the children suitably placed with Department discretion to place them with any appropriate relative except the parents and directed the Department to provide only six additional months of family reunification services to Xochitl C. and Antonio E., who were allowed monitored visitation with the children and ordered to participate in counseling and to complete a 52-week domestic violence program.

3. The Review Hearing

In connection with the review hearing on July 27, 2006 (held pursuant to 366.22 on the original petition and 366.21, subd. (e), on the supplemental petition), the Department reported both parents were visiting the children consistently and had enrolled, albeit belatedly, in the required domestic violence program. No conjoint counseling had been initiated. The Department also reported Bridget and Christophers visits with Xochitl C. were going well and both children wanted to return to their mothers care. The Department recommended termination of family reunification services because the parents had received the maximum amount (18 months) of services permitted by statute and had made only limited progress on the case plan. Because of notice issues, the court continued the review hearing to September 6, 2006. The Departments addendum report for the September 6, 2006 review hearing stated Xochitl C. was making good progress in the domestic violence program but, due to problems with scheduling and costs, the parents and children still were not participating in conjoint counseling. The Department again recommended termination of family reunification services, but also recommended Xochitl C. be permitted to have unmonitored visits with the children in the family home. The court granted unmonitored visits to Xochitl C. on condition Antonio E. not be present during the visits.

The review hearing was continued two more times, first to October 6, 2006, and then to November 6, 2006 for a contested hearing. An addendum report for the November 6, 2006 hearing states Xochitl C. was having unmonitored visits with the children, including overnight and weekend visits, that were going well with no concerns. Xochitl C. was making good progress in the domestic violence program (although Antonio E. had stopped attending), and the family was participating in conjoint counseling. The Departments report indicates the caseworker had discussed with Xochitl C. the possibility of her returning to the family home. The Department assessed the risk if this were to be allowed as moderate, and stated the risk would be reduced further if mother continued to attend her counseling and domestic violence programs. Accordingly, the Department recommended the court enter a home-of-parent-mother order (that is, that the court allow the mother to live in the family home with the children, who were already there with their maternal grandmother) and order family maintenance services for Xochitl C. and the children. The Department continued to recommend termination of family reunification services and monitored visitation for Antonio E.

4. The Courts Order Terminating Jurisdiction

At the outset of the contested review hearing on November 6, 2006, counsel for the Department stated, The Department is recommending home of parent mother on the condition that the mother move into the home where the children are currently residing, and the Department is recommending family maintenance services. In response, the court indicated its intention to return the children to the custody of their mother and terminate its jurisdiction without providing additional services. Following a recess, counsel for the Department repeated the Departments recommendation for a home-of-parent-mother order with family maintenance services, but added, if the court will not order home of parent mother, without the Department submitting on the issue of terminating jurisdiction, I will submit on that issue.

Counsel for Bridget and Christopher immediately objected to termination of dependency jurisdiction if the children were sent home. The court then asked if Xochitl C. had completed all requirements of the case plan. When counsel for the Department indicated she had made significant progress but had not yet completed the 52-week domestic violence course, the court suggested it might not allow the children to return home. Counsel for the Department urged the court to find there had been substantial compliance by Xochitl C. and repeated her clients position, I have made my argument for [family maintenance services], but not to the point where I dont want the children returned home of the parent mother. I will then submit on the issue of the termination of jurisdiction. If thats the only way the court will order home of parent mother, thats the Departments position.

Before entering its orders, the court observed, Its not a 364. Its not a [361.2]. It doesnt fall under any of those code sections. There is no code section controlling this thing. There is a maybe in the rules of court, but its not controlled by anything else. I am not keeping these cases. The court then terminated its prior suitable placement orders, dated January 26, 2006, as to all five children; ordered each of the children placed in the home of the mother; granted legal custody of the children to Xochitl C. and Antonio E. with sole physical custody and primary residence with Xochitl C.; and terminated its jurisdiction over the children, noting the objections of the Department and the childrens counsel to the termination order.

5. Bridget and Christophers Petition for Writ of Mandate

Following entry of the courts order terminating juvenile court jurisdiction, Bridget and Christopher petitioned this court for a writ of mandate directing the juvenile court to vacate that portion of its November 6, 2006 order terminating jurisdiction over them and to issue a new order setting a hearing pursuant to section 364 to determine whether continued court supervision is necessary to ensure their safety in the home of their mother.[4]The petition was supported in part by declarations from two attorneys with the Childrens Law Center of Los Angeles who appear before and are familiar with the procedures and practices in Department 416 (Commissioner Albert Garcia) of the Los Angeles Superior Court in which Bridget and Christophers dependency case was pending. Both attorneys declared Commissioner Garcia has stated on numerous occasion he has no authority to continue dependency jurisdiction or to set a section 364 review hearing after he has made an order returning children to the custody of a parent or guardian. Accordingly, when the Department recommends a home-of-parent order and provision of family maintenance services for a child in an out-of-home placement, as it did in this case, Commissioner Garcia will either continue the out-of-home placement or return the child to his or her parents and immediately terminate the juvenile courts jurisdiction.

The Department joined in Bridget and Christophers petition. Counsel for Bridget and Christophers three siblings have also filed joinders in the petition.[5] On December 7, 2006 we issued an order to show cause why the requested relief should not be granted. No return or other response has been filed by any real party in interest.

DISCUSSION

1. Standard of Review

We normally review the juvenile courts decision to terminate dependency jurisdiction and to issue a custody (or exit) order pursuant to section 362.4 for abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 318) and may not disturb the order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (Ibid.; see In re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1501-1502, disapproved on another ground in In re Chantal S. (1996) 13 Cal.4th 196, 204.) However, the sole question presented by Bridget and Christophers writ petition ‑‑ does the juvenile court at a section 366.22 18-month review hearing have the authority to return a dependent child to the home of his or her parent while providing family maintenance services under court supervision ‑‑ concerns the scope of the juvenile courts discretion, not the proper exercise of that discretion in a particular case, and thus is a question of law for this court. (See Choice-In-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422 [The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.].)

To answer this question we must construe and harmonize several related provisions of the Welfare and Institutions Code and the California Rules of Court governing dependency review hearings. In approaching this task we are guided by well-established principles of statutory interpretation: The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. (In re Eric H. (1974) 54 Cal.App.4th 955, 965; In re Christina A. (2001) 91 Cal.App.4th 1153, 1162.) [T]o determine this intent, we begin by examining the language of the statute. [Citations.] But [i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. [Citations.] Thus, [t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citation.] (People v. Pieters (1991) 52 Cal.3d 894, 898-899; see People v. Broughton (2003) 107 Cal.App.4th 307, 316-317.) If statutory language is susceptible to more than one interpretation, courts must adopt the meaning that conforms to the spirit of the statutory scheme and reject that which would result in absurd consequences unintended by the Legislature. In applying these principles, courts must keep in mind the object to be achieved, and the evil to be prevented, by the legislation. (In re Christina A., at p. 1162.)

The Legislature has unequivocally declared the purpose of dependency law is to provide for the protection and safety of . . . each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minors family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare. . . . When removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective . . . . ( 202, subd. (a); see In reChristina A., supra, 91 Cal.App.4th at p. 1162.) The Legislature has further instructed that the provisions of the Welfare and Institutions Code shall be liberally construed to carry out that purpose. ( 202, subd. (a).)

2. The Statutes Governing Dependency Review Hearings

California has a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the childs welfare. [Citations.] The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. [Citation.] (In re Celine R. (2003) 31 Cal.4th 45, 52; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008.) Under the current statutory scheme dependency proceedings in which a child is removed from his or her home typically involve four phases: jurisdiction, disposition, reunification and implementation of a permanent plan if reunification is unsuccessful. (See generally Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-250; In re Summer H. (2006) 139 Cal.App.4th 1315, 1324.)

After the juvenile court has assumed jurisdiction under section 355 by finding the child is a person described by section 300, the court is required to hear evidence on the question of the proper disposition to be made of the child. ( 358, subd. (a).) In most cases at the disposition hearing the court determines what services the child and the family need to be reunited and free of court supervision. The court may enter an order ranging from dismissal of the petition ( 390; rule 5.695(a)(1)) to declaring dependency, removing physical custody from the parents and making a general placement order for the child ( 361; rule 5.695(a)(7)). If appropriate, the court may declare the child a dependent and, without removing the child from his or her home, order family maintenance services to ameliorate the conditions that made the child subject to the courts jurisdiction. ( 362, subd. (a); rule 5.695(a)(5).) Alternatively, if the court determines by clear and convincing evidence there is a substantial danger to the physical health, safety, protection or physical or emotional well-being of the child if the child remains in his or her home and there is no other reasonable means to protect the child ( 361, subd. (c)(1)-(4); rule 5.695(d) [removal of custody ‑‑ required findings]), in the absence of a noncustodial parent who desires custody (see 361.2), the child must be removed from the physical custody of his or her parents and placed under the supervision of the [county] social worker who may place the child in an appropriate home. ( 361.2, subd. (e).)

Whether or not the dependent child remains in the parents home, however, child welfare services (either in the form of family reunification services for a child in an out-of-home placement[6]or family maintenance services for a child who remains at

home[7]) must be provided to the parent unless the court finds by clear and convincing evidence that one of the 15 exceptions set forth in section 361.5, subdivision (b), applies. ( 361.5, subd. (a), 362, subd. (b); Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188; In re Joel T. (1999) 70 Cal.App.4th 263, 267.)

a. The six-month hearing

If a child has been declared a dependent of the juvenile court and placed under court supervision, the status of the child must be reviewed every six months. (In re N. S. (2002) 97 Cal.App.4th 167, 171 [In any matter in which a minor has been declared a dependent, the court must hold review hearings.]; In re Natasha A. (1996) 42 Cal.App.4th 28, 38 [As long as a minor remains a dependent of the juvenile court, the court is statutorily required to hold review hearings every six months.].) That initial six-month review hearing will be held under either section 364 for a child who remains with his or her parent or guardian or section 366.21, subdivision (e), for a child in an out-of-home placement.

i. Section 364 review hearing

If the child has not been removed from the physical custody of his or her parent, the court must schedule a review hearing pursuant to section 364 to be held within six months of the date of the declaration of dependency and every six months thereafter. ( 364, subds. (a), (d);[8]rule 5.710(a)(2); In re N. S., supra, 97 Cal.App.4th at p. 171; In re Janee W. (2006) 140 Cal.App.4th 1444, 1450 (Janee W.); see In re Nicholas H., supra, 112 Cal.App.4th at pp. 263, 264.) At the hearing the issue before the court is whether continued supervision is necessary. ( 364, subd. (c);[9]In re Natasha A., supra,42 Cal.App.4th at p. 35; In re N. S., at p. 172.) Termination of dependency jurisdiction is required unless the Department establishes the conditions still exist that would justify the court taking jurisdiction of the child or such conditions would exist if jurisdiction were terminated. ( 364, subd. (c); see In re N. S., at p. 173; Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692,700; rule 5.710(e)(1).) If dependency jurisdiction is continued, the court must order continued services and set a further review hearing pursuant to section 364 to be held within six months. (Rule 5.710(e)(2).) This review process is repeated until the court terminates jurisdiction. ( 364, subd. (d); rule 5.710(a)(2).)[10]

ii. Section 366.21, subdivision (e), review hearing

If the child has been removed from parental custody and remains out of custody, the court must schedule a hearing pursuant to section 366.21, subdivision (e), to be held within six months after the date the child entered foster care.[11] (Rule 5.710(a)(1); see In re Christina A., supra, 91 Cal.App.4th at pp. 1163-1165 [six-month review hearing for child in out-of-home placement must be held within six months from date of entry into foster care notwithstanding language in 366.21, subd. (e), stating hearing to be held six months from date of disposition hearing].)

TO BE CONTINUED AS PART II..

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

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

[2] All references to rule or rules are to the California Rules of Court.

[3] At the time of the original section 300 petition, Christian A., the biological father of Marilyn, Bridget and Christopher, was identified as whereabouts unknown. In subsequent filings the Department reported Christian A. was incarcerated at the United States Penitentiary in Lompoc.

[4] Although the order terminating jurisdiction is appealable ( 395 [order entered after disposition hearing is appealable as an order after judgment]; see, e.g., In re Natasha A. (1996) 42 Cal.App.4th 28, 33-34), Bridget and Christopher allege there is a substantial risk they could suffer serious physical abuse or emotional trauma absent court supervision and Department involvement during the time it would take to resolve an appeal.

[5] The documents filed on behalf of Bridget and Christophers siblings, although denominated as joinders, are in the form of statements of support for the positions asserted and relief requested by Bridget and Christopher rather than separate petitions to review the juvenile courts order terminating jurisdiction over them. (See rule 8.490(b) & (c) [detailing requirements for a petition for writ of mandate, certiorari or prohibition]; cf. Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1391 [although standard practice permits parties to join in each others arguments, joining in an argument is different from joining in a motion; absent compliance with procedural requirements for a properly filed motion, party joining other partys motion lacks standing to seek relief from the court].) Nonetheless, in response to a question from the court at oral argument, counsel for Bridget and Christopher stated it was her understanding the siblings had intended to seek affirmative relief from this court. That position was confirmed by counsel for Joseph and Xochitl E. in a letter submitted after argument. However, counsel for Marilyn A. expressly disclaimed any intent to seek writ relief for her client. Accordingly, although it is far better practice in these circumstances for counsel to file a document that not only properly identifies itself as a petition but also complies with the applicable requirements of the California Rules of Court for a writ petition, we will exercise our discretion and treat the joinder by Joseph and Xochitl E. in this matter as, in effect, a supplemental petition for writ of mandate.

[6] Family reunification services are activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family. ( 16501, subd. (h).)

[7] Family maintenance services are activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families. ( 16501, subd. (g).)

[8] Section 364, subdivision (a), provides, Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing. . . . Section 364, subdivision (d), provides, If the court retains jurisdiction [at the hearing held pursuant to this section], it shall continue the matter to a specified date, not more than six months from the time of the hearing, at which point the court shall again follow the procedure specified in subdivision (c).

[9] Section 364, subdivision (c), provides, After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.

[10] [N]othing in the statutes or rules limits the time period for court supervision and services when the child remains in the home. . . . If supervision is no longer required, the court simply terminates the dependency. Otherwise, the state may continue to provide supportive services and supervision to parents until the dependent minors reach their majority. (In re Joel T., supra, 70 Cal.App.4th at pp. 267-268; see 16506 [family maintenance services may be extended in periods of six-month increments if it can be shown that the objectives of the service plan can be achieved within the extended time periods . . . .].)

[11] Section 361.5, subdivision (a), and rule 5.502(9)(A) define the date the child entered foster care in dependency proceedings as the earlier of the date on which the court sustained the section 300 petition or 60 days after the childs initial removal from the physical custody of his parent or guardian. (See In re Christina A., supra, 91 Cal.App.4th at p. 1160.)