'Non-appealable' order can be reviewed when juvenile court fails to give timely notice of procedures for relief.
Cite as
1998 DJDAR 12744Published
Apr. 1, 1999Filing Date
Dec. 14, 1998Summary
The C.A. 5th has ruled, in the published part of the opinion, that a non-appealable order following a dependency hearing was properly reviewed on the merits when the juvenile court failed to give timely notice of relief procedures to the aggrieved parent.
18 month old Cathina W., the daughter of Bessie W., was adjudged a juvenile dependent following removal from her mother's home. Sitting as a juvenile court, the Fresno County Superior Court exercised jurisdiction over Cathina. Fresno County Department of Social Services (County) investigated and found the toddler living in a filthy home. Additionally, it was determined that Cathina was at substantial risk of suffering sexual abuse from the father. At an April 1997 hearing, the trial court determined that even after 20 months of reunification services, Cathina still faced a substantial risk of harm if returned to her mother. Bessie did not attend this setting hearing. Under Welfare and Institutions Code, section 366.26, setting orders are not appealable. Direct appellate review of the propriety of the order may be obtained only by a petition for extraordinary writ. Under the statute, an aggrieved party must file the petition within twelve days of the court's setting order. Bessie did not file a timely petition. The parties agreed that, after the April hearing, the court clerk failed to give Bessie timely notice of the statutory relief procedures. The trial court ultimately held a permanency hearing in January 1998 and terminated Bessie's parental rights. County contended that even without proper notice, Bessie still had sufficient time to file a writ petition before the January 1998 hearing. Additionally, County argued that the failure to give notice was not prejudicial because Bessie could not have prevailed on the merits of the case.
The C.A. 5th affirmed. Section 366.26 directs the juvenile court to give "appropriate" notice to the parties of a "notice of intent to file a writ petition and request for record." The juvenile court is compelled to discharge its mandatory duties under the statute. When the juvenile court clerk failed to send timely notice, Bessie was deprived of her right to a ". . . substantive and meritorious review by the appellate court [of the setting order]." County's contentions that Bessie could not prevail on the merits of the order were without merit. In the unpublished portion of the opinion, Bessie's argument that the order terminating her parental rights was considered. Bessie alleged that there was insufficient evidence to support the juvenile court's findings that she failed to participate in court-ordered treatment programs and that dangerous conditions still existed in the home. Although the record reflected that Bessie had made good faith efforts to comply with the trial court's treatment program orders, it was determined that she "lacked the capacity" to protect, manage and care for Cathina. The termination of Bessie's parental rights was properly ordered.
— Brian Cardile
In re Cathina W.,
a Person Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
BESSIE W.,
Defendant and Appellant.
No. F030202
(Super. Ct. No. 82961-4)
California Court of Appeal
Fifth Appellate District
Filed December 15, 1998
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from a judgment of the Superior Court of Fresno County. John Fitch, Judge.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Phillip S. Cronin, County Counsel, and Holley H. Perez, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo- Bessie M. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, Cathina W. 1 She attacks findings previously made by the juvenile court at the time it set the matter for the section 366.26 permanency planning hearing. Subdivision (l) of section 366.26 would ordinarily forbid our consideration of these issues because the mother did not first pursue extraordinary writ review of the order setting the section 366.26 hearing (the setting order). However, the juvenile court did not give timely or correct notice of the entry of the setting order. We will therefore review on this appeal the findings made when the juvenile court ordered the section 366.26 hearing. Having conducted such review, we will affirm the termination order.
STATEMENT OF CASE AND FACTS In September 1995, Cathina W. (born 5-5-94) was adjudged a juvenile dependent and ordered removed from her mother's custody. The Fresno County Superior Court, sitting as a juvenile court, had previously exercised its jurisdiction over Cathina because she, along with her older half-sister Donna M., were found residing in a filthy home (§ 300, subd. (b)) and the toddler was at substantial risk of suffering sexual abuse because her father had sexually abused Donna on at least one occasion and the mother was unable to prevent the father from returning to the home (§ 300, subd.(j)). 2
After approximately 20 months of reunification services, the court in April 1997 found that reasonable services had been provided to the mother and terminated further services. Having also found the continued existence of a substantial risk of detriment to Cathina, the court set the matter of Cathina's dependency for permanency planning. 3 At the section 366.26 hearing ultimately conducted in January 1998, the court terminated the mother's parental rights. The mother filed a timely notice of appeal.
DISCUSSION I. JURISDICTION
The mother challenges some of the findings the court made when it set the section 366.26 hearing. She acknowledges that appellate review of a setting order is not available to a parent unless all the conditions of section 366.26, subdivision (l), are met. She also concedes she cannot satisfy any of these conditions because she never filed a petition for extraordinary writ review. Nevertheless, she maintains there is good cause to excuse her noncompliance with the statute and that we therefore should review the merits of her claims on this appeal from the termination order.
A. SECTION 366.26, SUBDIVISION (l)
A setting order 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. 4 (§ 366.26, subd. (l); In re Charmice G. (1998) 66 Cal.App.4th 659, 664, 666-667; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 812, fn. 5.) An aggrieved party may seek review of the setting order by appeal from the order subsequently made at the section 366.26 hearing, but only if: (1) the party filed a timely petition for extraordinary writ review of the setting order; (2) the petition substantively addressed the specific issues to be challenged and supported the challenge by an adequate record; and (3) the appellate court summarily denied or otherwise did not decide the petition on the merits. (§ 366.26, subd. (l)(1); Ronald S. v. Superior Court (1995) 34 Cal.App.4th 1467, 1468-1469).
Section 366.26, subdivision (l), is implemented by California Rules of Court, rule 39.1B (rule 39.1B), adopted pursuant to the Legislature's directive in section 366.26, subdivision (l)(3). The rule in part provides that the required writ proceeding is initiated by the filing with the juvenile court clerk of "a notice of intent to file a writ petition and request for record." (Rule 39.1B(f)). The "notice of intent" must be "signed by the party intending to file a writ petition, or if to be filed on behalf of the child, by the attorney of record for the child." 5 (Ibid.) The rule thereafter contains explicit and detailed directions concerning notice, the preparation of the record, the content and filing of the writ petition itself, the disposition of the writ proceeding, and other related subjects. (Rule 39.1B(f)-(r).)
To secure the expeditious resolution of a challenge by extraordinary writ of an order for a section 366.26 hearing (§ 366.26, subd. (l)(4), rule 39.1B(a)), rule 39.1B prescribes numerous, successive time limits applicable to the initiation and progression of the writ proceeding. (Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1402-1403.) Included among these limits is a seven-day period from "the date of the order setting" the section 366.26 hearing within which the parent must file the notice of intent and request for record with the clerk of the juvenile court, extended by an additional five days if the only notice of the order was given to the parent by mail. (Rule 39.1B(f).) All the time limits in the rule are mandatory. (Karl S., supra, 34 Cal.App.4th at p. 1404.) However, a parent "in default by the filing of a late notice of intent may obtain relief from that default for good cause shown." (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1831; Karl S., supra, 34 Cal.App.4th at p. 1404.)
To insure that a parent aggrieved by a setting order is made aware of the requirements of the statute and its impact on the parent's right to appellate review of such an order, section 366.26, subdivision (l)(3)(A), directs the juvenile court to give appropriate notice to the parties, as follows:
California Rules of Court, rules 1461 (c)(3)(I) [12-month review hearing] and 1462 (b)(2)(I) [18-month review hearing] carry out this aspect of section 366.26, subdivision (l); these rules identically state:
Item 5 of the form states:
B. GOOD CAUSE
We agree with the mother that she has shown good cause for her failure to file a notice of intent and request for record and a writ petition pursuant to section 366.26, subdivision (l) and rule 39.1B. We therefore will address on this appeal from the termination order, her contentions with respect to the merits of the juvenile court's setting order.
So far as we can determine, no case has afforded this remedy to a party in the mother's position. We believe relief is warranted here because the juvenile court, through no fault of the mother, failed to discharge its duty to give her timely, correct notice, as required by California Rules of Court, rule 1462(c)(3)(I).
The mother did not personally attend the April 24, 1997, review proceeding at which the court set the section 366.26 hearing with respect to Cathina. The juvenile court therefore directed that "39.1b(1) notice ... be sent to the mother ...." However, the juvenile court clerk did not mail notice to the mother within 24 hours of the court's order; instead a judicial council form "NOTICE OF INTENT TO FILE WRIT PETITION AND REQUEST FOR RECORD, RULE 39.1B" ("rule 39.1B notice") was mailed to the mother at her last known address on April 28th, four days after entry of the setting order. In addition, the face of the notice contains the typed date "8-26-97" in the space provided for insertion of the day on which the juvenile court calendared the section 366.26 hearing. This date was wrong by some four months, the setting order having been announced on April 24, 1997.
The mother maintains she never received the notice and thus was not "aware of her right to seek review of the ... order by way of petition for extraordinary writ or of the consequences to her should she fail to do so." Nothing in the record disputes this claim. On May 6th, the envelope containing the rule 39.1B notice to the mother was returned to the clerk's office; it had a "RETURN TO SENDER" stamp dated May 2nd on its face, along with a label setting forth a new address for the mother and the date "4/30/97." 6 The clerk apparently did not re-mail the rule 39.1B notice to the mother at the new address shown on the return envelope.
Moreover, even if the mother had received the notice, whether timely mailed by the clerk or not, it was defective in a material way. If nothing else, the "8/26/97" date inserted on the form would have told the mother that she had until September 7, 1997, twelve days after August 26, 1997, within which to file a notice of intent. A notice of intent filed during that time frame would have been late by a wide margin. 7
Respondent believes the bar of section 366.26, subdivision (l), should apply despite the defects in the clerk's notice because it "was incumbent upon [the mother's] attorney [to] ensure [the mother's] rights of appeal were protected by timely filing the notification of intent ... and the writ petition ...." We disagree. The "burden is on the parent in a juvenile dependency case to pursue his or her appellate rights[; i]t is not the attorney's burden." (Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692; Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 788.) 8 In the absence of a specific direction from the mother, her attorney in the juvenile court was not obligated to take any steps to comply with section 366.26, subdivision (l), on the mother's behalf. Because the mother had not been notified that she must seek relief by writ petition under this statute, she could not very well have directed her attorney to take steps to do so.
We are similarly unpersuaded by respondent's assertion the mother had sufficient time to file a late notice of intent with a showing of good cause because: (1) the section 366.26 hearing did not proceed on August 26, 1997, and was continued to and held nine months later, on January 27, 1998, and (2) the mother was given notice of the initial section 366.26 hearing date and the continued hearing date. Nothing in the notices concerning the date of the section 366.26 hearing included any reference to the provisions and requirements of section 366.26, subdivision (l). (§ 366.26, subd. (a).)
Respondent also maintains that substantial evidence supports the findings subsumed in the disputed order and thus the mother cannot show she would have prevailed had she properly brought a writ petition challenging that order. As respondent sees it, the mother is not entitled to a review of the merits of the setting order on this appeal because she has not established she was prejudiced by the failure of the juvenile court to serve a correct and timely rule 39.1B(f) notice.
We will not impose such a condition upon the mother's right to appellate review of the merits of the setting order. Under respondent's argument, as we understand it, we cannot evaluate the merits of the setting order unless we find that the order was the result of prejudicial error by the juvenile court and, consequently, that a writ reversing the order would have issued had the mother filed a timely and proper rule 39.1B petition. However, a determination that the setting order was infected with prejudicial error obviously requires an evaluation of the merits of the order. We therefore do not see any purpose to be served by adopting the rule advocated by respondent.
C. Karl S.
Last, we revisit our opinion in Karl S. v. Superior Court, supra, 34 Cal.App.4th at page 1404, where we held in part that "the time standards of rule 39.1B are mandatory rather than directory." 9 This conclusion was questioned in Roxanne H. v. Superior Court (1995) 35 Cal.App.4th 1008 and Jonathan M. v. Superior Court, supra, 39 Cal.App.4th 1826. The court in Roxanne H. said:
We do not disagree with Roxanne H. or Jonathan M. that a petitioner ought not to suffer for the failure of the respondent or the courts to meet the time limits imposed upon them by the statute and the rule. We find no inconsistency, however, between this concern and our determination in Karl S. that all the time limits in section 366.26, subdivision (l), whether applicable to the parties, to the juvenile court, or indeed to this court, are mandatory. That it would be unfair or improper to punish the petitioner for the delicts of his or her opponent or the courts to meet the applicable time constraints does not justify absolving the respondent or the courts from strictly complying with these time standards. To hold to the contrary would frustrate the Legislature's intent to "achieve a substantive and meritorious review by the appellate court [of a setting order] within the time specified in Sections 366.21 and 366.22 for holding a [permanency planning] hearing ...." (§ 366.26, subd. (l)(4).) Such a holding would also ill-serve the paramount interests of the child in a "stable, secure, long term, continuous home environment" (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160) and the state in reasonable expedition and finality (id. at p. 1152, & fn. 4).
This case confirms the point. As a consequence of the juvenile court's untimely -- as well as incorrect -- notice of the setting order, we are required to evaluate the merits of that order not within 120 days but instead more than 18 months after entry of the order. The resulting prejudice to the interests of the child and the state is apparent, and will only be enhanced if we were to reverse the setting order. (See In re Meranda P., supra, 56 Cal.App.4th at p. 1152.)
Deeming the time standards applicable to subdivision (l) writ proceedings to be mandatory preserves our ability to remedy violations, particularly those committed by the juvenile court. 10 Depending upon the circumstances of the individual case, isolated or infrequent failures by the juvenile court to meet the requirements of rule 39.1B will simply require the appellate court to dispose of the case as promptly as possible or permit the parent to raise the propriety of the setting order on appeal from the termination order, as we have done here. However, persistent or repeated violations by the juvenile court of the duties imposed upon it by the statute and the rule might call for sterner measures calculated to compel the juvenile court to discharge its mandatory duties under the statute and the rule. (See Code Civ. Proc., § 128, subds. (a)(3) & (a)(5); People v. Center (1880) 54 Cal. 236, 237.)
For the foregoing reasons, we persist in our conclusion that all of the time standards in rule 39.1B are mandatory. (Karl S. v. Superior Court, supra, 34 Cal.4th at p. 1404.)
[This Part Is Not Certified for Publication
II. SUFFICIENCY OF THE EVIDENCE*
The mother contends the termination order should be reversed because there was insufficient evidence to support certain findings at the previous review hearing. Specifically, she challenges the juvenile court's determinations that: (i) she failed to participate in court-ordered treatment programs; and (ii) conditions still existed which justified the initial assumption of jurisdiction over Cathina.
A. COMPLIANCE
The juvenile court made inconsistent findings about the mother's compliance with the reunification plan. According to the reporter's transcript of the April 1997 hearing, the court orally announced the finding that the mother made "good-faith efforts to comply with the case plan [but was not] in a position, despite the provision of services, to provide appropriate care and a safe environment for the children." However, the minute order relating to the hearing found in the clerk's transcript includes check marks next to the following preprinted findings:
The minute order was signed by the court.
When the record is in conflict, it must be harmonized if possible. (People v. Smith (1983) 33 Cal.3d 596, 599.) If reconciliation is not possible, that part of the record will prevail which, because of its origin and nature, is entitled to greater credence. (Id. at p. 599.) 11 The particular circumstances of each case governs the resolution of such record conflicts. (Ibid.)
We believe the reporter's transcript should prevail. First, no claim was made during the April 1997 review hearing that the mother had failed to participate as required of her by the plan. Indeed, counsel for the Department conceded "the mother did attempt to comply with everything the Department required" and argued that the mother was unable "to incorporate that knowledge into her everyday life to make it so these minors would be safe in her custody." Respondent's position on appeal is consistent; respondent does not identify any evidence which would support the inconsistent written finding and instead pursues the argument it made in the trial court that despite services the mother could not adequately parent.
Second, the record supports the court's oral finding regarding the mother's good-faith efforts to comply with the case plan. Putting aside the question of what benefit if any the mother derived from the services, the record establishes she participated in all court-ordered treatment programs and maintained regular visitation with Cathina. 12
Third, there was insufficient evidence to support the written finding that the mother failed to participate in court-ordered treatment programs. As part of the original September 1995 reunification plan, the court directed the mother to participate in a mental health assessment. The mother complied with this order by submitting to not one but two mental health assessments in the fall of 1995. Then, for approximately nine months, she attended counseling as recommended as a consequence of the assessments. In late August 1996, the mother's therapist discontinued these sessions because he felt the mother had gained all she could from them.
The only hint in the record that the mother may not have done all that was asked of her by respondent concerned an August 12, 1996, mental health referral made by the social worker. The department had not previously requested such an evaluation, and thus the juvenile court did not order it at the preceding status review hearing, conducted in June of 1996. There is nothing in the record which demonstrates that the mother's therapist or any other mental health professional recommended a new assessment in 1996. Although the record does not explain definitively why the social worker sought the additional assessment, there are indications in the record that the new referral was intended to assess the possibility of conjoint therapy for the mother and her two older children, something which the mother's therapist had recommended. This therapy, however, did not involve or relate to Cathina. Although the mother made appointments for a teenage son, David, who was also a juvenile dependent, as well as for Donna, she did not make an appointment for herself. Soon after the referral, though, Donna experienced a severe emotional crisis, culminating in her placement in a therapeutic school located in Northern California. Thereafter, it appears that conjoint therapy was no longer possible, given the geographical distance separating the three individuals. The mother did attend Donna's interview at the school and was, in the social worker's words, "very cooperative in supplying said minor's medical history and in filling out the appropriate forms." Under these circumstances, any failure of the mother to fully participate in the referral made by the social worker in 1996 did not justify a global determination that the mother failed to comply with the reunification plan applicable to Cathina.
Fourth, there is nothing in the record to indicate the court, between the close of the hearing and the execution of the minute order, chose to rethink and reverse its oral finding. In fact, the record suggests a different and quite logical scenario. When the referee verbally announced her decision, she did not make an express finding that return of Cathina to her parent's physical custody would create a substantial risk of detriment to the child. (See §§ 366.21, subds. (e) & (f); 366.22, subd. (a).) Yet, the referee ordered that Cathina and her sister remain under the Department's care, custody and control, and set Cathina's case for a section 366.26 hearing. It is reasonably likely that, given the fundamental requirement of a finding of a substantial risk of detriment if continued out-of-home placement is ordered, let alone a setting order, (see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249, 253), the referee or a courtroom staff member realized the omission in the findings after the fact. Then, in a possible effort to cure what would have been error, the "failure to participate" box on the minute order was checked and endorsed by the referee because it contained the only reference to a "substantial risk of detriment" in the minute order form. However, for some reason, such as simple oversight, delay in signing the minute order or press of court business, the referee failed to also interlineate into the form order her prior finding of the mother's lack of progress despite good faith efforts to comply with the plan.
For each of the foregoing reasons, the court's oral finding -- that the mother made a good-faith effort to satisfy the reunification plan but was nevertheless unable to provide appropriate care for Cathina -- is entitled to prevail over the minute order finding that she had not fully participated in reunification. We therefore need not address the mother's argument that there was insufficient evidence to support the minute order finding. 13
B. CONDITIONS JUSTIFYING ASSUMPTION OF JURISDICTION
Although the juvenile court also made a finding at the April 1997 hearing that conditions still existed which would justify the initial assumption of jurisdiction over Cathina, the law did not require it to do so. The statutes relating to periodic status reviews of dependency cases involving minors in foster care make no reference to such a determination as a condition to the retention of jurisdiction or otherwise. (See §§ 366, 366.2, 366.21, 366.22; see also Cal. Rules of Court, rules 1460(e), 1461(b)(2) & 1462(b)(2).) 14 Such a finding is required, however, as a condition to the retention of jurisdiction when a dependent minor has not been removed from parental custody. Section 364 provides in pertinent part:
However, the "conditions still exist" finding is subsumed within the required "substantial risk of detriment" finding the juvenile court must make in order to continue the out-of-home placement of a dependent child. (See §§ 366.21, subds. (e) & (f); 366.22, subd. (a).) If the conditions which would justify an initial assumption of jurisdiction did not exist at the time of a review hearing with respect to a removed child, the court could not find that return to parental custody would pose a substantial risk of detriment to that child.
Here, the mother has not directly attacked the juvenile court's express finding that return of Cathina to her mother would create a substantial risk of detriment to the child. She questions only the minute order finding that she had failed to participate in court-ordered treatment, a finding we have determined should not be credited.
C. SUBSTANTIAL RISK OF DETRIMENT
Even though the mother has not expressly questioned the juvenile court's finding that substantial detriment to Cathina would accrue if she were returned to her mother, we will address whether this finding is supported by substantial evidence. 15 For the reasons expressed in the prior section of this opinion, the mother's contention -- the court's "conditions still exist" finding is unwarranted by the record evidence -- is tantamount to a claim the "substantial risk of detriment" finding was without evidentiary support.
The controlling legal principles are well-known and not subject to dispute.
The juvenile court's "substantial risk of detriment" finding is supported by the record. Notwithstanding the mother's participation in the reunification plan, she was limited in her ability to derive benefit from the services. Her attorney at the June 1996 review hearing remarked that it was "clear, not only I'm sure from the client's testimony, but also to everyone in this room that my client has extreme delays. She's slow." Similarly, at the April 1997 review hearing, counsel conceded: "[i]t's no secret that my client has special needs." 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ervations were borne out by the evidence. The professionals who had had contact with the mother during the reunification period were unanimous in their concern over her parenting capacity, for she failed to set limits on her children and did not enforce established rules. For example, though the mother completed a parenting course, "little or no change was seen in her during the class." She was very passive in class and appeared to be passive in her life. Workers involved with the mother in her parenting course noted she had had a "very difficult childhood - abuse, emotional neglect and alcoholic parents." Consequently, these workers thought it would be difficult for her to set and enforce limits on her children.
Another of the counselors who dealt with the mother was unsure of her ability to care for another young child in addition to her infant child, Cheyenne, born after the court exercised its dependency jurisdiction over Cathina. The counselor also noted that the mother sought to avoid conflict and, when confronted with demands from a child, she was likely to give in even if it was inappropriate to do so. The counselor was unable to recommend whether Cathina should be returned to her mother's care.
A therapist reported that the mother "continued to minimize responsibility for some of the areas identified as problematic by CPS and the Court, but did accept that she needed to make constructive changes in order to achieve reunification with her children." There is no indication in the record that the mother made any of the necessary changes.
Persons who supervised visits between the mother and her children noticed she neither exhibited control of her children nor did she set limits. The mother had difficulty setting boundaries with her children; she tended to follow the instructions of her children. One time, the mother said and did nothing when Donna, then 12 years old, became angry and hit Cathina, causing the toddler to cry. In addition, the mother ignored Cathina unless she threw toys. On one visit scheduled at a restaurant, the mother did not have much interaction with any of the children. Another visit was described as very chaotic. The older children were loud and misbehaved, yet, the mother made no attempt to discipline them.
As of early April 1997, case managers and foster care personnel who had worked with Cathina had serious concerns about the mother's ability to adequately parent; she was still not supervising her children. One of the reports stated:
[End of Part Not Certified for Publication]
DISPOSITION The judgment (order terminating parental rights) is affirmed.
We concur:
ARDAIZ, P.J.
LEVY, 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.
1 All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
1 For these and other reasons, Donna was also adjudged a dependent. The mother does not raise any issue pertaining to Donna, who was subsequently found unadoptable and placed in long-term foster care.
1 The mother refers to this hearing as a 12-month review because it was only the second status hearing conducted by the juvenile court involving Cathina. The statutory scheme requires a review of the dependency every six months. (§ 366.) However, for all practical purposes, the April 1997 hearing was the equivalent of an 18-month review, for more than 20 months of services had already been provided. If, at an 18-month review, the court determines reasonable reunification services have been provided but the minor still cannot be returned to parental custody, the court has no choice but to proceed to permanency planning. (See § 366.22.)
1 Section 366.26, subdivision (l) provides in full:
1 If this date corresponded to the last day the postmaster would forward the mother's mail to her new address, it suggests the clerk's notice would have reached the mother had it been mailed within the 24 hours of the court's April 24 order prescribed by California Rules of Court, rules 1461 (c)(3)(I) and 1462 (b)(2)(I).
1 We suspect that had the mother filed a notice of intent within 12 days of August 26, 1997, respondent would have moved to strike it, or to dismiss a subsequent writ petition, as untimely.
1 This principle is based for the most part upon rule 39.1B(f)'s requirement that the party seeking writ relief must sign the notice of intent unless good cause is shown and upon the case law which has held that a writ petition signed by an attorney must be dismissed if its filing was not expressly authorized by the client. (See Janice J. v. Superior Court, supra, 55 Cal.App.4th at pp. 691-692.)
1 The parent in Karl S. filed a rule 39.1B notice two months late; his untimely notice in turn delayed each ensuing step of the writ proceedings. Pursuant to section 366.26, subdivision (l), and rule 39.1B, we held the father's failure to file a timely notice of intent required dismissal of his subsequently filed writ petition. (Karl S. v. Superior Court, supra, 34 Cal.App.4th at p. 1403-1404.)
1 A respondent who fails to timely file and serve its response to the petition (rule 39.1B(m)) creates no major difficulty for the petitioner or the appellate court. A late or nonexistent response does not delay the hearing on the petition (see rule 39.1B(q)), and the absence of the response does not absolve us from examining the merits of the petition (see § 366.26, subd. (l)(1)(B)).
* See footnote, ante,
1 Smith rejected the former rule that inconsistencies must necessarily be resolved in favor of the reporter's transcript as a "mechanical rule." (33 Cal.3d at p. 599.)
1 The reunification plan included a parenting class, mental health assessment and any recommended treatment.
1 To the extent this argument includes the contention that the mother made sufficient improvement as a result of her participation in the plan to warrant an order returning custody of Cathina to her, we take up this topic post, in Part II. C.
1 Perhaps the "conditions still exist" finding was made, and has been made in other cases by the juvenile court of Fresno County (e.g. In re Malcolm D. (1996) 42 Cal.App.4th 904, 909) out of an overabundance of caution.
1 The mother does not contend she received inadequate reunification services.
1 In August 1996, the department referred the mother to the Central Valley Regional Center for an evaluation of her eligibility for the services the center provided to the developmentally disabled. However, the center determined the mother was ineligible for its services.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Part II. * See footnote, ante,
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Phillip S. Cronin, County Counsel, and Holley H. Perez, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo- Bessie M. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, Cathina W. 1 She attacks findings previously made by the juvenile court at the time it set the matter for the section 366.26 permanency planning hearing. Subdivision (l) of section 366.26 would ordinarily forbid our consideration of these issues because the mother did not first pursue extraordinary writ review of the order setting the section 366.26 hearing (the setting order). However, the juvenile court did not give timely or correct notice of the entry of the setting order. We will therefore review on this appeal the findings made when the juvenile court ordered the section 366.26 hearing. Having conducted such review, we will affirm the termination order.
STATEMENT OF CASE AND FACTS In September 1995, Cathina W. (born 5-5-94) was adjudged a juvenile dependent and ordered removed from her mother's custody. The Fresno County Superior Court, sitting as a juvenile court, had previously exercised its jurisdiction over Cathina because she, along with her older half-sister Donna M., were found residing in a filthy home (§ 300, subd. (b)) and the toddler was at substantial risk of suffering sexual abuse because her father had sexually abused Donna on at least one occasion and the mother was unable to prevent the father from returning to the home (§ 300, subd.(j)). 2
After approximately 20 months of reunification services, the court in April 1997 found that reasonable services had been provided to the mother and terminated further services. Having also found the continued existence of a substantial risk of detriment to Cathina, the court set the matter of Cathina's dependency for permanency planning. 3 At the section 366.26 hearing ultimately conducted in January 1998, the court terminated the mother's parental rights. The mother filed a timely notice of appeal.
DISCUSSION I. JURISDICTION
The mother challenges some of the findings the court made when it set the section 366.26 hearing. She acknowledges that appellate review of a setting order is not available to a parent unless all the conditions of section 366.26, subdivision (l), are met. She also concedes she cannot satisfy any of these conditions because she never filed a petition for extraordinary writ review. Nevertheless, she maintains there is good cause to excuse her noncompliance with the statute and that we therefore should review the merits of her claims on this appeal from the termination order.
A. SECTION 366.26, SUBDIVISION (l)
A setting order 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. 4 (§ 366.26, subd. (l); In re Charmice G. (1998) 66 Cal.App.4th 659, 664, 666-667; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 812, fn. 5.) An aggrieved party may seek review of the setting order by appeal from the order subsequently made at the section 366.26 hearing, but only if: (1) the party filed a timely petition for extraordinary writ review of the setting order; (2) the petition substantively addressed the specific issues to be challenged and supported the challenge by an adequate record; and (3) the appellate court summarily denied or otherwise did not decide the petition on the merits. (§ 366.26, subd. (l)(1); Ronald S. v. Superior Court (1995) 34 Cal.App.4th 1467, 1468-1469).
Section 366.26, subdivision (l), is implemented by California Rules of Court, rule 39.1B (rule 39.1B), adopted pursuant to the Legislature's directive in section 366.26, subdivision (l)(3). The rule in part provides that the required writ proceeding is initiated by the filing with the juvenile court clerk of "a notice of intent to file a writ petition and request for record." (Rule 39.1B(f)). The "notice of intent" must be "signed by the party intending to file a writ petition, or if to be filed on behalf of the child, by the attorney of record for the child." 5 (Ibid.) The rule thereafter contains explicit and detailed directions concerning notice, the preparation of the record, the content and filing of the writ petition itself, the disposition of the writ proceeding, and other related subjects. (Rule 39.1B(f)-(r).)
To secure the expeditious resolution of a challenge by extraordinary writ of an order for a section 366.26 hearing (§ 366.26, subd. (l)(4), rule 39.1B(a)), rule 39.1B prescribes numerous, successive time limits applicable to the initiation and progression of the writ proceeding. (Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1402-1403.) Included among these limits is a seven-day period from "the date of the order setting" the section 366.26 hearing within which the parent must file the notice of intent and request for record with the clerk of the juvenile court, extended by an additional five days if the only notice of the order was given to the parent by mail. (Rule 39.1B(f).) All the time limits in the rule are mandatory. (Karl S., supra, 34 Cal.App.4th at p. 1404.) However, a parent "in default by the filing of a late notice of intent may obtain relief from that default for good cause shown." (Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1831; Karl S., supra, 34 Cal.App.4th at p. 1404.)
To insure that a parent aggrieved by a setting order is made aware of the requirements of the statute and its impact on the parent's right to appellate review of such an order, section 366.26, subdivision (l)(3)(A), directs the juvenile court to give appropriate notice to the parties, as follows:
"A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if they are present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order."
California Rules of Court, rules 1461 (c)(3)(I) [12-month review hearing] and 1462 (b)(2)(I) [18-month review hearing] carry out this aspect of section 366.26, subdivision (l); these rules identically state:
"When the court orders a hearing under section 366.26, the court shall advise orally all parties present, and by first class mail for parties not 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 by filing a Notice of Intent to File Writ Petition and Request for Record form (JV-820) or other notice of intent to file writ petition and request for record and a Writ Petition-Juvenile form (JV-825) or other petition for extraordinary writ. Within 24 hours of the hearing, notice by first class mail shall be provided by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under section 366.26. Copies of Judicial Council form Writ Petition-Juvenile (JV-825) and Judicial Council form Notice of Intent to File Writ Petition and Request for Record form (JV-820) shall be available in the courtroom, and shall accompany all mailed notices of the advice." (Emphasis added.)Consistent with section 366.26, subdivision (l)(3)(A), the Judicial Council form, JV-820, requires the clerk of the juvenile court to include on the face of the notice the date on which the court made its setting order, so that the party may calculate the deadline for filing the notice of intent and request for record. In relevant part, the form provides:
"If you intend to file the petition for a writ, you must file a notice of intent to file a writ petition and request for record with the juvenile court clerk within 7 days of the date specified in item 5. You may use this form ...."
Item 5 of the form states:
"On (date): ___________________ the juvenile court set a hearing under Welfare and Institutions Code section 366.26. I intend to file a petition for extraordinary writ to challenge the findings and orders made by the court on that date and request that the clerk assemble the record."
B. GOOD CAUSE
We agree with the mother that she has shown good cause for her failure to file a notice of intent and request for record and a writ petition pursuant to section 366.26, subdivision (l) and rule 39.1B. We therefore will address on this appeal from the termination order, her contentions with respect to the merits of the juvenile court's setting order.
So far as we can determine, no case has afforded this remedy to a party in the mother's position. We believe relief is warranted here because the juvenile court, through no fault of the mother, failed to discharge its duty to give her timely, correct notice, as required by California Rules of Court, rule 1462(c)(3)(I).
The mother did not personally attend the April 24, 1997, review proceeding at which the court set the section 366.26 hearing with respect to Cathina. The juvenile court therefore directed that "39.1b(1) notice ... be sent to the mother ...." However, the juvenile court clerk did not mail notice to the mother within 24 hours of the court's order; instead a judicial council form "NOTICE OF INTENT TO FILE WRIT PETITION AND REQUEST FOR RECORD, RULE 39.1B" ("rule 39.1B notice") was mailed to the mother at her last known address on April 28th, four days after entry of the setting order. In addition, the face of the notice contains the typed date "8-26-97" in the space provided for insertion of the day on which the juvenile court calendared the section 366.26 hearing. This date was wrong by some four months, the setting order having been announced on April 24, 1997.
The mother maintains she never received the notice and thus was not "aware of her right to seek review of the ... order by way of petition for extraordinary writ or of the consequences to her should she fail to do so." Nothing in the record disputes this claim. On May 6th, the envelope containing the rule 39.1B notice to the mother was returned to the clerk's office; it had a "RETURN TO SENDER" stamp dated May 2nd on its face, along with a label setting forth a new address for the mother and the date "4/30/97." 6 The clerk apparently did not re-mail the rule 39.1B notice to the mother at the new address shown on the return envelope.
Moreover, even if the mother had received the notice, whether timely mailed by the clerk or not, it was defective in a material way. If nothing else, the "8/26/97" date inserted on the form would have told the mother that she had until September 7, 1997, twelve days after August 26, 1997, within which to file a notice of intent. A notice of intent filed during that time frame would have been late by a wide margin. 7
Respondent believes the bar of section 366.26, subdivision (l), should apply despite the defects in the clerk's notice because it "was incumbent upon [the mother's] attorney [to] ensure [the mother's] rights of appeal were protected by timely filing the notification of intent ... and the writ petition ...." We disagree. The "burden is on the parent in a juvenile dependency case to pursue his or her appellate rights[; i]t is not the attorney's burden." (Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692; Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 788.) 8 In the absence of a specific direction from the mother, her attorney in the juvenile court was not obligated to take any steps to comply with section 366.26, subdivision (l), on the mother's behalf. Because the mother had not been notified that she must seek relief by writ petition under this statute, she could not very well have directed her attorney to take steps to do so.
We are similarly unpersuaded by respondent's assertion the mother had sufficient time to file a late notice of intent with a showing of good cause because: (1) the section 366.26 hearing did not proceed on August 26, 1997, and was continued to and held nine months later, on January 27, 1998, and (2) the mother was given notice of the initial section 366.26 hearing date and the continued hearing date. Nothing in the notices concerning the date of the section 366.26 hearing included any reference to the provisions and requirements of section 366.26, subdivision (l). (§ 366.26, subd. (a).)
Respondent also maintains that substantial evidence supports the findings subsumed in the disputed order and thus the mother cannot show she would have prevailed had she properly brought a writ petition challenging that order. As respondent sees it, the mother is not entitled to a review of the merits of the setting order on this appeal because she has not established she was prejudiced by the failure of the juvenile court to serve a correct and timely rule 39.1B(f) notice.
We will not impose such a condition upon the mother's right to appellate review of the merits of the setting order. Under respondent's argument, as we understand it, we cannot evaluate the merits of the setting order unless we find that the order was the result of prejudicial error by the juvenile court and, consequently, that a writ reversing the order would have issued had the mother filed a timely and proper rule 39.1B petition. However, a determination that the setting order was infected with prejudicial error obviously requires an evaluation of the merits of the order. We therefore do not see any purpose to be served by adopting the rule advocated by respondent.
C. Karl S.
Last, we revisit our opinion in Karl S. v. Superior Court, supra, 34 Cal.App.4th at page 1404, where we held in part that "the time standards of rule 39.1B are mandatory rather than directory." 9 This conclusion was questioned in Roxanne H. v. Superior Court (1995) 35 Cal.App.4th 1008 and Jonathan M. v. Superior Court, supra, 39 Cal.App.4th 1826. The court in Roxanne H. said:
"the consequence of strictly enforcing all of the time frames prescribed by rule 39.1B by threat of dismissal would place the petitioner in the untenable position of suffering the consequence for untimely filings over which he or she has no control." (Roxanne H. v. Superior Court, supra, 35 Cal.App.4th at p. 1012.)In Jonathan M., the court reiterated the point:
For instance, a writ petitioner could hardly be subject to the sanction of dismissal, or any other sanction, for the failure of a county clerk to timely prepare the record, the failure of the real party in interest to timely file an opposition to the petition, or the failure of the reviewing court to timely hold oral argument. It would be problematic indeed if all time frames of rule 39.1B are considered mandatory. (Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1829.)
We do not disagree with Roxanne H. or Jonathan M. that a petitioner ought not to suffer for the failure of the respondent or the courts to meet the time limits imposed upon them by the statute and the rule. We find no inconsistency, however, between this concern and our determination in Karl S. that all the time limits in section 366.26, subdivision (l), whether applicable to the parties, to the juvenile court, or indeed to this court, are mandatory. That it would be unfair or improper to punish the petitioner for the delicts of his or her opponent or the courts to meet the applicable time constraints does not justify absolving the respondent or the courts from strictly complying with these time standards. To hold to the contrary would frustrate the Legislature's intent to "achieve a substantive and meritorious review by the appellate court [of a setting order] within the time specified in Sections 366.21 and 366.22 for holding a [permanency planning] hearing ...." (§ 366.26, subd. (l)(4).) Such a holding would also ill-serve the paramount interests of the child in a "stable, secure, long term, continuous home environment" (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160) and the state in reasonable expedition and finality (id. at p. 1152, & fn. 4).
This case confirms the point. As a consequence of the juvenile court's untimely -- as well as incorrect -- notice of the setting order, we are required to evaluate the merits of that order not within 120 days but instead more than 18 months after entry of the order. The resulting prejudice to the interests of the child and the state is apparent, and will only be enhanced if we were to reverse the setting order. (See In re Meranda P., supra, 56 Cal.App.4th at p. 1152.)
Deeming the time standards applicable to subdivision (l) writ proceedings to be mandatory preserves our ability to remedy violations, particularly those committed by the juvenile court. 10 Depending upon the circumstances of the individual case, isolated or infrequent failures by the juvenile court to meet the requirements of rule 39.1B will simply require the appellate court to dispose of the case as promptly as possible or permit the parent to raise the propriety of the setting order on appeal from the termination order, as we have done here. However, persistent or repeated violations by the juvenile court of the duties imposed upon it by the statute and the rule might call for sterner measures calculated to compel the juvenile court to discharge its mandatory duties under the statute and the rule. (See Code Civ. Proc., § 128, subds. (a)(3) & (a)(5); People v. Center (1880) 54 Cal. 236, 237.)
For the foregoing reasons, we persist in our conclusion that all of the time standards in rule 39.1B are mandatory. (Karl S. v. Superior Court, supra, 34 Cal.4th at p. 1404.)
[This Part Is Not Certified for Publication
II. SUFFICIENCY OF THE EVIDENCE*
The mother contends the termination order should be reversed because there was insufficient evidence to support certain findings at the previous review hearing. Specifically, she challenges the juvenile court's determinations that: (i) she failed to participate in court-ordered treatment programs; and (ii) conditions still existed which justified the initial assumption of jurisdiction over Cathina.
A. COMPLIANCE
The juvenile court made inconsistent findings about the mother's compliance with the reunification plan. According to the reporter's transcript of the April 1997 hearing, the court orally announced the finding that the mother made "good-faith efforts to comply with the case plan [but was not] in a position, despite the provision of services, to provide appropriate care and a safe environment for the children." However, the minute order relating to the hearing found in the clerk's transcript includes check marks next to the following preprinted findings:
"The failure of MO/FA/(1)(2)(3) to participate in court-ordered treatment programs, is prima facie evidence that a return would create a substantial risk of detriment
"The case plan has not been complied with by MO..."
The minute order was signed by the court.
When the record is in conflict, it must be harmonized if possible. (People v. Smith (1983) 33 Cal.3d 596, 599.) If reconciliation is not possible, that part of the record will prevail which, because of its origin and nature, is entitled to greater credence. (Id. at p. 599.) 11 The particular circumstances of each case governs the resolution of such record conflicts. (Ibid.)
We believe the reporter's transcript should prevail. First, no claim was made during the April 1997 review hearing that the mother had failed to participate as required of her by the plan. Indeed, counsel for the Department conceded "the mother did attempt to comply with everything the Department required" and argued that the mother was unable "to incorporate that knowledge into her everyday life to make it so these minors would be safe in her custody." Respondent's position on appeal is consistent; respondent does not identify any evidence which would support the inconsistent written finding and instead pursues the argument it made in the trial court that despite services the mother could not adequately parent.
Second, the record supports the court's oral finding regarding the mother's good-faith efforts to comply with the case plan. Putting aside the question of what benefit if any the mother derived from the services, the record establishes she participated in all court-ordered treatment programs and maintained regular visitation with Cathina. 12
Third, there was insufficient evidence to support the written finding that the mother failed to participate in court-ordered treatment programs. As part of the original September 1995 reunification plan, the court directed the mother to participate in a mental health assessment. The mother complied with this order by submitting to not one but two mental health assessments in the fall of 1995. Then, for approximately nine months, she attended counseling as recommended as a consequence of the assessments. In late August 1996, the mother's therapist discontinued these sessions because he felt the mother had gained all she could from them.
The only hint in the record that the mother may not have done all that was asked of her by respondent concerned an August 12, 1996, mental health referral made by the social worker. The department had not previously requested such an evaluation, and thus the juvenile court did not order it at the preceding status review hearing, conducted in June of 1996. There is nothing in the record which demonstrates that the mother's therapist or any other mental health professional recommended a new assessment in 1996. Although the record does not explain definitively why the social worker sought the additional assessment, there are indications in the record that the new referral was intended to assess the possibility of conjoint therapy for the mother and her two older children, something which the mother's therapist had recommended. This therapy, however, did not involve or relate to Cathina. Although the mother made appointments for a teenage son, David, who was also a juvenile dependent, as well as for Donna, she did not make an appointment for herself. Soon after the referral, though, Donna experienced a severe emotional crisis, culminating in her placement in a therapeutic school located in Northern California. Thereafter, it appears that conjoint therapy was no longer possible, given the geographical distance separating the three individuals. The mother did attend Donna's interview at the school and was, in the social worker's words, "very cooperative in supplying said minor's medical history and in filling out the appropriate forms." Under these circumstances, any failure of the mother to fully participate in the referral made by the social worker in 1996 did not justify a global determination that the mother failed to comply with the reunification plan applicable to Cathina.
Fourth, there is nothing in the record to indicate the court, between the close of the hearing and the execution of the minute order, chose to rethink and reverse its oral finding. In fact, the record suggests a different and quite logical scenario. When the referee verbally announced her decision, she did not make an express finding that return of Cathina to her parent's physical custody would create a substantial risk of detriment to the child. (See §§ 366.21, subds. (e) & (f); 366.22, subd. (a).) Yet, the referee ordered that Cathina and her sister remain under the Department's care, custody and control, and set Cathina's case for a section 366.26 hearing. It is reasonably likely that, given the fundamental requirement of a finding of a substantial risk of detriment if continued out-of-home placement is ordered, let alone a setting order, (see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249, 253), the referee or a courtroom staff member realized the omission in the findings after the fact. Then, in a possible effort to cure what would have been error, the "failure to participate" box on the minute order was checked and endorsed by the referee because it contained the only reference to a "substantial risk of detriment" in the minute order form. However, for some reason, such as simple oversight, delay in signing the minute order or press of court business, the referee failed to also interlineate into the form order her prior finding of the mother's lack of progress despite good faith efforts to comply with the plan.
For each of the foregoing reasons, the court's oral finding -- that the mother made a good-faith effort to satisfy the reunification plan but was nevertheless unable to provide appropriate care for Cathina -- is entitled to prevail over the minute order finding that she had not fully participated in reunification. We therefore need not address the mother's argument that there was insufficient evidence to support the minute order finding. 13
B. CONDITIONS JUSTIFYING ASSUMPTION OF JURISDICTION
Although the juvenile court also made a finding at the April 1997 hearing that conditions still existed which would justify the initial assumption of jurisdiction over Cathina, the law did not require it to do so. The statutes relating to periodic status reviews of dependency cases involving minors in foster care make no reference to such a determination as a condition to the retention of jurisdiction or otherwise. (See §§ 366, 366.2, 366.21, 366.22; see also Cal. Rules of Court, rules 1460(e), 1461(b)(2) & 1462(b)(2).) 14 Such a finding is required, however, as a condition to the retention of jurisdiction when a dependent minor has not been removed from parental custody. Section 364 provides in pertinent part:
"(a) Every hearing in which an order is made placing a minor under the supervision of the juvenile court pursuant to Section 300 and in which the minor 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. The continued hearing shall be placed on the appearance calendar. The court shall advise all persons present of the date of the future hearings, of their rights to be present, and to be represented by counsel.
"...............................................................................
"(c) After hearing any evidence presented by the probation officer, the parent, the guardian, or the minor, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the probation department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that such 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." (Emphasis added.)Section 364 is limited in its application to those cases where the court has deemed supervision in the home adequate for the child's protection. (See In re Michael W. (1997) 54 Cal.App.4th 190, 193-4; In re Roger S. (1992) 4 Cal.App.4th 25, 27 & 29; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1489-1491; In re Esperanza G. (1985) 173 Cal.App.3d 358, 360.)
However, the "conditions still exist" finding is subsumed within the required "substantial risk of detriment" finding the juvenile court must make in order to continue the out-of-home placement of a dependent child. (See §§ 366.21, subds. (e) & (f); 366.22, subd. (a).) If the conditions which would justify an initial assumption of jurisdiction did not exist at the time of a review hearing with respect to a removed child, the court could not find that return to parental custody would pose a substantial risk of detriment to that child.
Here, the mother has not directly attacked the juvenile court's express finding that return of Cathina to her mother would create a substantial risk of detriment to the child. She questions only the minute order finding that she had failed to participate in court-ordered treatment, a finding we have determined should not be credited.
C. SUBSTANTIAL RISK OF DETRIMENT
Even though the mother has not expressly questioned the juvenile court's finding that substantial detriment to Cathina would accrue if she were returned to her mother, we will address whether this finding is supported by substantial evidence. 15 For the reasons expressed in the prior section of this opinion, the mother's contention -- the court's "conditions still exist" finding is unwarranted by the record evidence -- is tantamount to a claim the "substantial risk of detriment" finding was without evidentiary support.
The controlling legal principles are well-known and not subject to dispute.
"[A]n appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding.... All that is required is to point out testimony which, if given credence by the trial court, would logically lead to [its] conclusion ...." (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142; emphasis added.)This "substantial evidence" rule means that our appellate power "begins and ends" with an assessment about whether there is any substantial evidence to support the conclusion reached by the trial court, and we must resolve all conflicts in the evidence in favor of the findings of the trial court. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) The test is not whether there is a substantial conflict in the evidence, but rather whether there is substantial evidence in favor of the respondent. (In re Estate of Teel (1944) 25 Cal.2d 520, 526-527.) Although we examine all of the evidence, we cannot and will not weigh it. (Id. at pp. 526-527.) The presence of evidence which may have supported a ruling in appellant's favor as to a particular issue, or which might be said to cast doubt upon facts helpful to respondent, is immaterial to us. This court plays a much different role in the judicial process than does the trial court, and we are obliged to respect that difference. (Bennett v. City of Los Angeles (1970) 12 Cal.App.3d 116, 120.)
The juvenile court's "substantial risk of detriment" finding is supported by the record. Notwithstanding the mother's participation in the reunification plan, she was limited in her ability to derive benefit from the services. Her attorney at the June 1996 review hearing remarked that it was "clear, not only I'm sure from the client's testimony, but also to everyone in this room that my client has extreme delays. She's slow." Similarly, at the April 1997 review hearing, counsel conceded: "[i]t's no secret that my client has special needs." 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ervations were borne out by the evidence. The professionals who had had contact with the mother during the reunification period were unanimous in their concern over her parenting capacity, for she failed to set limits on her children and did not enforce established rules. For example, though the mother completed a parenting course, "little or no change was seen in her during the class." She was very passive in class and appeared to be passive in her life. Workers involved with the mother in her parenting course noted she had had a "very difficult childhood - abuse, emotional neglect and alcoholic parents." Consequently, these workers thought it would be difficult for her to set and enforce limits on her children.
Another of the counselors who dealt with the mother was unsure of her ability to care for another young child in addition to her infant child, Cheyenne, born after the court exercised its dependency jurisdiction over Cathina. The counselor also noted that the mother sought to avoid conflict and, when confronted with demands from a child, she was likely to give in even if it was inappropriate to do so. The counselor was unable to recommend whether Cathina should be returned to her mother's care.
A therapist reported that the mother "continued to minimize responsibility for some of the areas identified as problematic by CPS and the Court, but did accept that she needed to make constructive changes in order to achieve reunification with her children." There is no indication in the record that the mother made any of the necessary changes.
Persons who supervised visits between the mother and her children noticed she neither exhibited control of her children nor did she set limits. The mother had difficulty setting boundaries with her children; she tended to follow the instructions of her children. One time, the mother said and did nothing when Donna, then 12 years old, became angry and hit Cathina, causing the toddler to cry. In addition, the mother ignored Cathina unless she threw toys. On one visit scheduled at a restaurant, the mother did not have much interaction with any of the children. Another visit was described as very chaotic. The older children were loud and misbehaved, yet, the mother made no attempt to discipline them.
As of early April 1997, case managers and foster care personnel who had worked with Cathina had serious concerns about the mother's ability to adequately parent; she was still not supervising her children. One of the reports stated:
"She lacks the capacity to evaluate danger or maintain adequate hygiene, boundaries, or appropriate nutrition for the children. It is surmised that the biological mother falls within the 70-90 IQ range for intellectual functioning causing basic, common sense childcare requirements to allude her.
"The biological mother lives in the home of an adult female ... caretaker who finds it too difficult to oversee both the mother and visits with her children. She too has concerns regarding Cathina's mother's ability to adequately take care of her children."
"...............................................................................
"Bessie clearly cares for Cathina yet is unable to appropriately parent or protect her. She lacks the discrimination skills to assess what is healthy or safe. [During visits] Bessie primarily sits on the sofa and watches the children from a distance. She regularly brings Cathina early morning treats of Cheetos, candy or soda. During visits with Cathina Baby Cheyenne (approximately ten months old) who is learning to walk continually wanders out of the playroom and onto a very hard, slick pea-gravel floor in the lobby while Besse sits immobile on the sofa. Numerous times it has been case managers and other foster parents who have grabbed Cheyenne before her head hit the floor as Bessie looked on."We are satisfied the foregoing evidence amply supports the juvenile court's "substantial risk of detriment" finding.
[End of Part Not Certified for Publication]
DISPOSITION The judgment (order terminating parental rights) is affirmed.
DIBIASO, J.
We concur:
ARDAIZ, P.J.
LEVY, 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.
1 All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
1 For these and other reasons, Donna was also adjudged a dependent. The mother does not raise any issue pertaining to Donna, who was subsequently found unadoptable and placed in long-term foster care.
1 The mother refers to this hearing as a 12-month review because it was only the second status hearing conducted by the juvenile court involving Cathina. The statutory scheme requires a review of the dependency every six months. (§ 366.) However, for all practical purposes, the April 1997 hearing was the equivalent of an 18-month review, for more than 20 months of services had already been provided. If, at an 18-month review, the court determines reasonable reunification services have been provided but the minor still cannot be returned to parental custody, the court has no choice but to proceed to permanency planning. (See § 366.22.)
1 Section 366.26, subdivision (l) provides in full:
"(l) (1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following applies:
"(A) A petition for extraordinary writ review was filed in a timely manner.
"(B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.
"(C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.
"(2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.
"(3) The Judicial Council shall adopt rules of court, effective January 1, 1995, to ensure all of the following:
"(A) A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if they are present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.
"(B) The prompt transmittal of the records from the trial court to the appellate court.
"(C) That adequate time requirements for counsel and court personnel exist to implement the objective of this subdivision.
"(D) That the parent or guardian, or their trial counsel or other counsel, is charged with the responsibility of filing a petition for extraordinary writ relief pursuant to this subdivision.
"(4) The intent of this subdivision is to do both of the following:
"(A) Make every reasonable attempt to achieve a substantive and meritorious review by the appellate court within the time specified in Sections 366.21 and 366.22 for holding a hearing pursuant to this section.
"(B) Encourage the appellate court to determine all writ petitions filed pursuant to this subdivision on their merits.
"(5) This subdivision shall only apply to cases in which an order to set a hearing pursuant to this section is issued on or after January 1, 1995."1 For good cause shown to the appellate court, the requirement for the party's signature may be waived. (Rule 39.1B(f).)
1 If this date corresponded to the last day the postmaster would forward the mother's mail to her new address, it suggests the clerk's notice would have reached the mother had it been mailed within the 24 hours of the court's April 24 order prescribed by California Rules of Court, rules 1461 (c)(3)(I) and 1462 (b)(2)(I).
1 We suspect that had the mother filed a notice of intent within 12 days of August 26, 1997, respondent would have moved to strike it, or to dismiss a subsequent writ petition, as untimely.
1 This principle is based for the most part upon rule 39.1B(f)'s requirement that the party seeking writ relief must sign the notice of intent unless good cause is shown and upon the case law which has held that a writ petition signed by an attorney must be dismissed if its filing was not expressly authorized by the client. (See Janice J. v. Superior Court, supra, 55 Cal.App.4th at pp. 691-692.)
1 The parent in Karl S. filed a rule 39.1B notice two months late; his untimely notice in turn delayed each ensuing step of the writ proceedings. Pursuant to section 366.26, subdivision (l), and rule 39.1B, we held the father's failure to file a timely notice of intent required dismissal of his subsequently filed writ petition. (Karl S. v. Superior Court, supra, 34 Cal.App.4th at p. 1403-1404.)
1 A respondent who fails to timely file and serve its response to the petition (rule 39.1B(m)) creates no major difficulty for the petitioner or the appellate court. A late or nonexistent response does not delay the hearing on the petition (see rule 39.1B(q)), and the absence of the response does not absolve us from examining the merits of the petition (see § 366.26, subd. (l)(1)(B)).
* See footnote, ante,
1 Smith rejected the former rule that inconsistencies must necessarily be resolved in favor of the reporter's transcript as a "mechanical rule." (33 Cal.3d at p. 599.)
1 The reunification plan included a parenting class, mental health assessment and any recommended treatment.
1 To the extent this argument includes the contention that the mother made sufficient improvement as a result of her participation in the plan to warrant an order returning custody of Cathina to her, we take up this topic post, in Part II. C.
1 Perhaps the "conditions still exist" finding was made, and has been made in other cases by the juvenile court of Fresno County (e.g. In re Malcolm D. (1996) 42 Cal.App.4th 904, 909) out of an overabundance of caution.
1 The mother does not contend she received inadequate reunification services.
1 In August 1996, the department referred the mother to the Central Valley Regional Center for an evaluation of her eligibility for the services the center provided to the developmentally disabled. However, the center determined the mother was ineligible for its services.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Part II. * See footnote, ante,
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