Reunification services after removal of minors are necessary after parent received family maintenance services for 18 months before minors' removal.
Cite as
1999 DJDAR 1808Published
Mar. 29, 1999Filing Date
Feb. 23, 1999Summary
The C.A. 3rd has ruled, in the published portion of the opinion, that a new hearing was required to determine if a parent was properly denied reunification services.
Epifania B. was the mother of five minors ranging in age from five months to nine years. The minors were detained in October 1996 based on the allegation that Epifania permitted Steven T., the father of the youngest child, into her home although he had sexually molested the other children. The juvenile court ordered a trial placement of the minors pending a hearing on jurisdiction since Epifania was voluntarily participating in drug testing, counseling, and housing program, and parenting classes. At the combined jurisdictional and dispositional hearing in January 1997, the juvenile court adjudged the minors dependents, found that a return to Epifania would be detrimental to the minors, and committed the minors to the Department of Health and Human Services (DHHS) for placement. The juvenile court allowed the minors to remain in Epifania's care and custody on a trial basis and ordered Epifania to participate in a "reunification" plan. In February 1998, the juvenile court removed the children from Epifania's custody because she had violated the court's order by allowing Steven into her home on more than one occasion. In April 1998, the juvenile court found the allegations in the supplemental petition to be true. The juvenile court denied Epifania's request for additional services after finding that DHHS had already provided 18 months of services, and ordered the minors placed in long-term foster care.
The C.A. 3rd reversed in part, affirmed in part, and remanded. "When a dependency is declared, the juvenile court must order child welfare services be provided to the parents whether or not the child remains in the parent's home . . . . However, if the child remains in the parent's custody, . . . the court determines only whether the dependency should be terminated or whether further supervision is necessary. . . . Unlike the situation where the child is removed from the home and court-ordered services are statutorily limited to 18 months . . . nothing in the statutes or rules limits the time period for court supervision and services when the child remains in the home . . . ." The juvenile court denied reunification services solely because Epifania had received court-ordered services for 18 months following the children's original detention. However, Epifania had not received time-limited services prior to the minors' second detention on the supplemental petitions they were in her custody subject to DHHS supervision. Consequently, the juvenile court denied reunification services under an improper statutory limitations theory. Since under Welfare and Institutions Code Section 361.5(a), reunification services must be ordered when a minor is removed from parental custody the first time, unless the exception in Section 361.5(b) applies, the matter was remanded for a new hearing. In the unpublished portion of the opinion, it was held that the juvenile court failed to place its reasons for denying placement with relatives on the record as required by statute.
—
In re JOEL T. et al., Persons Coming
Under the Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
EPIFANIA B.,
Defendant and Appellant.
No. C029825
(Super.Ct.Nos. JD207911, JD207912,
JD207913, JD207914 and JD207915)
California Court of Appeal
Third Appellate District
(Sacramento)
Filed February 23, 1999
CERTIFIED FOR PUBLICATION*
APPEAL from a judgment of the Superior Court of Sacramento County, Alice A. Lytle, Judge. Reversed in part, remanded with directions.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert A. Ryan, Jr., County Counsel, and Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Respondent.
Epifania B., mother of the five minors, appeals from orders entered at a combined hearing for status review and disposition on a supplemental petition, denying her further services and placing the minors in long-term foster care. (Welf. & Inst. Code, §§ 364, 387 [further section references are to the Welfare and Institutions Code unless otherwise designated].) Appellant contends the juvenile court erred in denying reunification services and in failing to give preference to the minors' relatives when determining their placement. We reverse the order denying appellant reunification services and remand the case for a new dispositional hearing.
FACTS The five minors, ranging in age from five months to nine years, were detained in October 1996, based upon allegations that appellant permitted Steven T., father of the youngest child, into the appellant's home although Steven T. had sexually molested the other children. Appellant believed the molestations had occurred, but was afraid of Steven T. The court authorized a trial placement of the minors with appellant pending a hearing on jurisdiction since appellant was participating voluntarily in drug testing, counseling, a housing program and parenting classes.
At the combined jurisdictional and dispositional hearing on January 23, 1997, the court found the minors came within the provisions of section 300, subdivisions (b), (d) and (j), adjudged the minors dependents, found that return of the minors to appellant's custody would be detrimental to the minors' best interests, and committed the minors to the Department of Health and Human Services (DHHS) for placement. The court allowed the minors to remain in the care and custody of appellant on a trial basis. The court ordered appellant to participate in a "reunification" plan which included counseling and drug testing, and ordered appellant to maintain a stable home and attend parenting classes. DHHS was to provide the relevant services. Finally, the court ordered that Steven T. was to have no contact with the minors.
By March 1997, appellant continued to make progress in parenting and providing a stable home and the social worker recommended extending the trial placement. The report for the six-month status review stated appellant continued to make positive progress on the plan although she had difficulty in establishing a firm routine for the children and at times her judgment was questionable. The court continued the trial placement and ordered DHHS to provide further services to appellant.
In January 1998, the social worker reported appellant had maintained her participation in the housing program, but had terminated her therapy and stopped drug testing in October 1997. Appellant's counselor had closed appellant's case for lack of meaningful participation by appellant. Believing appellant had shown some improvement in parenting skills, however, and being aware appellant could not successfully parent her children without assistance, the social worker referred her to a new program.
Because appellant had "on more than one occasion" allowed Steven T. into appellant's home in violation of the court's previous order, the court removed all five children from appellant's custody in February 1998 pursuant to a supplemental petition to modify the minors' placement. The social worker had warned appellant as recently as December 1997 not to permit such contact.
In April 1998, in a combined report for the hearing on the supplemental petition and for the 12-month dependency status review, the social worker stated again that appellant did well in her services until she stopped testing and counseling in October 1997. Nonetheless, the social worker felt conditions had not altered significantly from the time of the initial removal as appellant still permitted Steven T. access to minors he had molested and abused previously. The social worker further reported appellant had moved to San Francisco and had visited only twice since the minors' detention in February. The social worker recommended the minors be placed in long-term foster care and that no further services be provided to appellant. In an addendum, the social worker addressed the suggested relative placements, noting that Joshua's paternal grandmother was interested in adoption and the minors' maternal great-grandmother, with whom the maternal grandfather resided, was interested in having the minors placed with her. There is little indication that either of these relatives visited, or maintained, a relationship with the minors during the dependency period.
At the combined hearing on April 28, 1998, 18 months after the initial detention, the court that found the allegations of the supplemental petition were true. Appellant argued she should be provided further services or, alternatively, the minors should be placed with the maternal great-grandmother or, in Joshua's case, with the paternal grandmother. The court ordered the minors placed in long-term foster care and denied appellant's placement requests and her request for additional services, finding DHHS had provided 18 months of services to her already and there was no probability the minors could be returned to her.
DISCUSSION I Failure to Order Reunification Services
Appellant contends the juvenile court erred in failing to order reunification services following removal of the minors pursuant to the supplemental petition. Appellant contends the services she received previously were "family maintenance" services, not "reunification" services as the minors had not been removed from her custody and she was entitled to reunification services. DHHS asserts appellant received 18 months of services and is entitled to no more.
When a dependency is declared, the juvenile court must order child welfare services be provided to the parents whether or not the child remains in the parent's home (§§ 361.5, subd. (a), 362, subd. (b)) and must review the status of the case every six months (§§ 364, 366.21, 366.22). However, if the child remains in the parent's custody, at each six-month review, the court determines only whether the dependency should be terminated or whether further supervision is necessary. (§ 364; Cal. Rules of Court, rules 1460(e)(1), 1461(b)(2)(A), 1462(a)(2)(A).) Unlike the situation where the child is removed from the home and court-ordered services are statutorily limited to 18 months (§ 361.5, subd. (a)), nothing in the statutes or rules limits the time period for court supervision and services when the child remains in the home (§ 364; Cal. Rules of Court, rules 1460(e)(1), 1461(b)(2)(A), 1462(a)(2)(A)). 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.
However, if the social worker becomes aware of a change in circumstances which may trigger removal, a supplemental (§ 387) or subsequent (§ 342) petition may be filed. (§ 364, subd. (e).) In either case, the court must hold jurisdictional and dispositional hearings. (§ 342; Cal. Rules of Court, rule 1431.) At the dispositional hearing on the supplemental petition, the court must again decide whether to leave the minors in the custody of their parents or remove them and provide or deny services. (Cal. Rules of Court, rule 1431(e).)
Here, the court ordered the minors removed from parental custody and denied reunification services solely because appellant had received court-ordered services for the 18 months following the minors' original detention. However, appellant had not received time-limited services prior to the minors' second detention on the supplemental petition as they were in her custody subject to the supervision of the juvenile court. Consequently, the court could not rely on the statutory limitations for services provided to parents whose children have been removed in denying services to appellant. This is not to say the court could not decline to order services under proper statutory authority. (See § 361.5, subd. (b).) The distinction between the services provided when the minors remain in parental custody and when the minors have been removed from parental custody is a subtle but important one. Services designed merely to support a family's functioning may or may not be the same as those designed to reunify a family even if the ultimate goal in each case is to ameliorate the problems which led to the dependency at the outset.
Accordingly, when the juvenile court removes a minor from parental custody for the first time, section 361.5, subdivision (a), requires the court to order reunification services except in the circumstances specified in subdivision (b) of that section. (Cf. Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 165-167.)
The case must be remanded for a new dispositional hearing on the supplemental petition. At the hearing, the court should consider all applicable dispositional alternatives including denial of services pursuant to section 361.5, subdivision (b), if justified by the evidence.
[THIS PART IS NOT CERTIFIED FOR PUBLICATION]
II Preferential Placement With Relatives
Appellant contends the juvenile court abused its discretion in failing to give preferential consideration for placement to relatives after the minors were removed from her custody.
At the time of the February 1998 hearing, section 361.3 provided, in relevant part: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interests of the child . . . [¶] (2) The wishes of the parent . . . [¶] (4) Placement of siblings and half-siblings in the same home, if such a placement is found to be in the best interests of each of the children . . . [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for the child.
"(c) For purposes of this section: (1) 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated. [¶] (2) 'Relative' means an adult who is related to the child or the child's half sibling by blood or affinity, including all relatives whose status is preceded by the words 'step,' 'great,' 'great-great' or 'grand' or the spouse of any such person even if the marriage has been terminated by death or dissolution. However, only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle or sibling.
"(d) Subsequent to the [dispositional] hearing . . . , whenever a new placement of the minor must be made, consideration for placement shall again be give as described in this section to relatives who have not been found to be unsuitable and . . . the county social worker shall consider whether the relative has established and maintained a relationship with the minor.
"(e) If the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied." (Stats. 1997, ch. 793, § 16.)
Arguably, the relative placement provision does not apply because the change in placement occurred when the minors were removed from appellant's custody in February 1998 and the relative placement issue was triggered at that time. Thus, when appellant failed to raise the issue or challenge the court's order at the detention hearing on the supplemental petition, she waived it.
Assuming the preference applies, the only two relatives proposed by appellant were Joshua's paternal grandmother and the minors' maternal great-grandmother. Of the two, only Joshua's paternal grandmother is entitled to preference. (§ 361.3, subd. (c)(2).) The court's denial of placement with Joshua's paternal grandmother can be justified as not in the best interests of the minors since she was considered as a placement for Joshua alone and had only limited contact with him. However, the juvenile court failed to state reasons for denial of this placement. As we must remand the matter for a new dispositional hearing, the court will have the opportunity to place its reasons in the record if appellant again seeks such placement.
[END OF PART NOT CERTIFIED FOR PUBLICATION]
DISPOSITION The dispositional orders of the juvenile court are reversed. In all other respects, the judgment is affirmed. The matter is remanded with directions to the juvenile court to hold a new dispositional hearing on the supplemental petition.
We concur:
SCOTLAND, P.J.
MORRISON, J.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert A. Ryan, Jr., County Counsel, and Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Respondent.
Epifania B., mother of the five minors, appeals from orders entered at a combined hearing for status review and disposition on a supplemental petition, denying her further services and placing the minors in long-term foster care. (Welf. & Inst. Code, §§ 364, 387 [further section references are to the Welfare and Institutions Code unless otherwise designated].) Appellant contends the juvenile court erred in denying reunification services and in failing to give preference to the minors' relatives when determining their placement. We reverse the order denying appellant reunification services and remand the case for a new dispositional hearing.
FACTS The five minors, ranging in age from five months to nine years, were detained in October 1996, based upon allegations that appellant permitted Steven T., father of the youngest child, into the appellant's home although Steven T. had sexually molested the other children. Appellant believed the molestations had occurred, but was afraid of Steven T. The court authorized a trial placement of the minors with appellant pending a hearing on jurisdiction since appellant was participating voluntarily in drug testing, counseling, a housing program and parenting classes.
At the combined jurisdictional and dispositional hearing on January 23, 1997, the court found the minors came within the provisions of section 300, subdivisions (b), (d) and (j), adjudged the minors dependents, found that return of the minors to appellant's custody would be detrimental to the minors' best interests, and committed the minors to the Department of Health and Human Services (DHHS) for placement. The court allowed the minors to remain in the care and custody of appellant on a trial basis. The court ordered appellant to participate in a "reunification" plan which included counseling and drug testing, and ordered appellant to maintain a stable home and attend parenting classes. DHHS was to provide the relevant services. Finally, the court ordered that Steven T. was to have no contact with the minors.
By March 1997, appellant continued to make progress in parenting and providing a stable home and the social worker recommended extending the trial placement. The report for the six-month status review stated appellant continued to make positive progress on the plan although she had difficulty in establishing a firm routine for the children and at times her judgment was questionable. The court continued the trial placement and ordered DHHS to provide further services to appellant.
In January 1998, the social worker reported appellant had maintained her participation in the housing program, but had terminated her therapy and stopped drug testing in October 1997. Appellant's counselor had closed appellant's case for lack of meaningful participation by appellant. Believing appellant had shown some improvement in parenting skills, however, and being aware appellant could not successfully parent her children without assistance, the social worker referred her to a new program.
Because appellant had "on more than one occasion" allowed Steven T. into appellant's home in violation of the court's previous order, the court removed all five children from appellant's custody in February 1998 pursuant to a supplemental petition to modify the minors' placement. The social worker had warned appellant as recently as December 1997 not to permit such contact.
In April 1998, in a combined report for the hearing on the supplemental petition and for the 12-month dependency status review, the social worker stated again that appellant did well in her services until she stopped testing and counseling in October 1997. Nonetheless, the social worker felt conditions had not altered significantly from the time of the initial removal as appellant still permitted Steven T. access to minors he had molested and abused previously. The social worker further reported appellant had moved to San Francisco and had visited only twice since the minors' detention in February. The social worker recommended the minors be placed in long-term foster care and that no further services be provided to appellant. In an addendum, the social worker addressed the suggested relative placements, noting that Joshua's paternal grandmother was interested in adoption and the minors' maternal great-grandmother, with whom the maternal grandfather resided, was interested in having the minors placed with her. There is little indication that either of these relatives visited, or maintained, a relationship with the minors during the dependency period.
At the combined hearing on April 28, 1998, 18 months after the initial detention, the court that found the allegations of the supplemental petition were true. Appellant argued she should be provided further services or, alternatively, the minors should be placed with the maternal great-grandmother or, in Joshua's case, with the paternal grandmother. The court ordered the minors placed in long-term foster care and denied appellant's placement requests and her request for additional services, finding DHHS had provided 18 months of services to her already and there was no probability the minors could be returned to her.
DISCUSSION I Failure to Order Reunification Services
Appellant contends the juvenile court erred in failing to order reunification services following removal of the minors pursuant to the supplemental petition. Appellant contends the services she received previously were "family maintenance" services, not "reunification" services as the minors had not been removed from her custody and she was entitled to reunification services. DHHS asserts appellant received 18 months of services and is entitled to no more.
When a dependency is declared, the juvenile court must order child welfare services be provided to the parents whether or not the child remains in the parent's home (§§ 361.5, subd. (a), 362, subd. (b)) and must review the status of the case every six months (§§ 364, 366.21, 366.22). However, if the child remains in the parent's custody, at each six-month review, the court determines only whether the dependency should be terminated or whether further supervision is necessary. (§ 364; Cal. Rules of Court, rules 1460(e)(1), 1461(b)(2)(A), 1462(a)(2)(A).) Unlike the situation where the child is removed from the home and court-ordered services are statutorily limited to 18 months (§ 361.5, subd. (a)), nothing in the statutes or rules limits the time period for court supervision and services when the child remains in the home (§ 364; Cal. Rules of Court, rules 1460(e)(1), 1461(b)(2)(A), 1462(a)(2)(A)). 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.
However, if the social worker becomes aware of a change in circumstances which may trigger removal, a supplemental (§ 387) or subsequent (§ 342) petition may be filed. (§ 364, subd. (e).) In either case, the court must hold jurisdictional and dispositional hearings. (§ 342; Cal. Rules of Court, rule 1431.) At the dispositional hearing on the supplemental petition, the court must again decide whether to leave the minors in the custody of their parents or remove them and provide or deny services. (Cal. Rules of Court, rule 1431(e).)
Here, the court ordered the minors removed from parental custody and denied reunification services solely because appellant had received court-ordered services for the 18 months following the minors' original detention. However, appellant had not received time-limited services prior to the minors' second detention on the supplemental petition as they were in her custody subject to the supervision of the juvenile court. Consequently, the court could not rely on the statutory limitations for services provided to parents whose children have been removed in denying services to appellant. This is not to say the court could not decline to order services under proper statutory authority. (See § 361.5, subd. (b).) The distinction between the services provided when the minors remain in parental custody and when the minors have been removed from parental custody is a subtle but important one. Services designed merely to support a family's functioning may or may not be the same as those designed to reunify a family even if the ultimate goal in each case is to ameliorate the problems which led to the dependency at the outset.
Accordingly, when the juvenile court removes a minor from parental custody for the first time, section 361.5, subdivision (a), requires the court to order reunification services except in the circumstances specified in subdivision (b) of that section. (Cf. Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 165-167.)
The case must be remanded for a new dispositional hearing on the supplemental petition. At the hearing, the court should consider all applicable dispositional alternatives including denial of services pursuant to section 361.5, subdivision (b), if justified by the evidence.
[THIS PART IS NOT CERTIFIED FOR PUBLICATION]
II Preferential Placement With Relatives
Appellant contends the juvenile court abused its discretion in failing to give preferential consideration for placement to relatives after the minors were removed from her custody.
At the time of the February 1998 hearing, section 361.3 provided, in relevant part: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interests of the child . . . [¶] (2) The wishes of the parent . . . [¶] (4) Placement of siblings and half-siblings in the same home, if such a placement is found to be in the best interests of each of the children . . . [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for the child.
"(c) For purposes of this section: (1) 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated. [¶] (2) 'Relative' means an adult who is related to the child or the child's half sibling by blood or affinity, including all relatives whose status is preceded by the words 'step,' 'great,' 'great-great' or 'grand' or the spouse of any such person even if the marriage has been terminated by death or dissolution. However, only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle or sibling.
"(d) Subsequent to the [dispositional] hearing . . . , whenever a new placement of the minor must be made, consideration for placement shall again be give as described in this section to relatives who have not been found to be unsuitable and . . . the county social worker shall consider whether the relative has established and maintained a relationship with the minor.
"(e) If the court does not place the child with a relative who has been considered for placement pursuant to this section, the court shall state for the record the reasons placement with that relative was denied." (Stats. 1997, ch. 793, § 16.)
Arguably, the relative placement provision does not apply because the change in placement occurred when the minors were removed from appellant's custody in February 1998 and the relative placement issue was triggered at that time. Thus, when appellant failed to raise the issue or challenge the court's order at the detention hearing on the supplemental petition, she waived it.
Assuming the preference applies, the only two relatives proposed by appellant were Joshua's paternal grandmother and the minors' maternal great-grandmother. Of the two, only Joshua's paternal grandmother is entitled to preference. (§ 361.3, subd. (c)(2).) The court's denial of placement with Joshua's paternal grandmother can be justified as not in the best interests of the minors since she was considered as a placement for Joshua alone and had only limited contact with him. However, the juvenile court failed to state reasons for denial of this placement. As we must remand the matter for a new dispositional hearing, the court will have the opportunity to place its reasons in the record if appellant again seeks such placement.
[END OF PART NOT CERTIFIED FOR PUBLICATION]
DISPOSITION The dispositional orders of the juvenile court are reversed. In all other respects, the judgment is affirmed. The matter is remanded with directions to the juvenile court to hold a new dispositional hearing on the supplemental petition.
HULL, J.
We concur:
SCOTLAND, P.J.
MORRISON, J.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
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