In re A.W. CA4/1 ( 2022 )

Filed 4/13/22 In re A.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.W., a Person Coming Under
the Juvenile Court Law.
D079417
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4568)
Plaintiff and Respondent,
v.
J.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis, III, Judge. Affirmed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant
and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
Emily Uhre, under appointment by the Court of Appeal, for Minor.
J.W. (Mother) appeals an order declining to extend her reunification
services for minor A.W., who was under three years old at the time of
detention, after the six-month review period. Mother contends the juvenile
court abused its discretion in declining to extend her services pursuant to
Welfare and Institutions Code section 366.21, subdivision (e)(3).1
Alternatively, Mother contends she was denied due process and was not given
sufficient notice because minor’s counsel did not file a section 388 petition to
terminate her services and the court did not make certain findings under
section 361.5, subdivision (a)(2)(A)–(C). She also contends the court abused
its discretion in denying her attorney’s request to continue the contested
hearing due to her absence.
We conclude there is substantial evidence to support the juvenile
court’s finding that Mother made no substantial progress in her case plan
and the court did not abuse its discretion in declining to extend Mother’s
services. As to the first alternative ground, Mother forfeited her procedural
challenge to minor’s counsel’s request to terminate services because she did
not object to the proceeding. Even if she did not forfeit the issue, we conclude
the requirements under sections 361.5, subdivision (a)(2) and 388,
subdivision (c)(1) for a motion to “terminate” existing services do not apply to
the court’s consideration at a six-month review hearing under 366.21,
subdivision (e)(3) of whether to continue services for a parent of a child under
three. As to the second alternative ground, the trial court did not abuse its
discretion in denying a continuance request because Mother voluntarily
failed to appear for the scheduled hearing. The order is affirmed.
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention.
Police officers responded to a call by a tow truck driver who said
someone threatened him with a gun while towing a vehicle. The officers
stopped a vehicle that was attempting to flee the scene. Mother and two-
year-old A.W. were passengers in the vehicle. Mother was arrested on an
outstanding robbery warrant, which she said was for stealing cleaning
supplies and then failing to appear in court. Mother’s boyfriend, who is not
the biological father of A.W., was arrested for brandishing a loaded firearm at
the tow truck driver, for being a felon in possession of a loaded firearm, and
for child endangerment.
Mother claimed her boyfriend received a call about a tow truck
confiscating vehicles at a collision repair shop where he worked because the
owner lost the business. She said the boyfriend was attempting to retrieve
some personal vehicles he stored at the shop when the incident occurred.
Mother denied knowing he had a gun and said she only witnessed her
boyfriend bickering with the tow truck driver.
Mother, who was nine months pregnant, admitted she used “a little bit
of drugs,” but said she was trying to stop during her pregnancy. She used
methamphetamine with her boyfriend on the day of her arrest, however,
while A.W. was alone in an adjacent bedroom.
This was not Mother’s first contact with the Agency. Several reports
were made in 2019 about Mother’s use of cocaine or methamphetamines and
criminal behavior such as selling “salt” to pass for cocaine or crystal
methamphetamines, stealing items, robbing people, and choosing to be
homeless with A.W. When Mother and A.W. were found in a car without a
license plate in December 2019, Mother said she was kicked out of her
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apartment for having her boyfriend over. She declined help finding housing,
saying, “I’m just chilling in my car and steal stuff when I need it.” She said
she and her boyfriend used methamphetamines in her car.
A.W. was detained and placed at the Polinsky Children’s Center on
October 2, 2020. The Agency filed a petition three days later. The Agency
expressed concern about A.W.’s continued exposure to unstable
environments, illegal activity, and drug abuse. Mother demonstrated
significant lack of insight about the dangers of inadequate environments for
young children. A.W.’s father was incarcerated and was unable to protect her
at the time.
The court found detention was necessary due to a substantial danger to
the physical health of the child and removed her from her parents’ care. The
court ordered voluntary services to be provided as soon as possible to
effectuate reunification. The court ordered the Agency to provide services for
crisis intervention, case management, counseling, and transportation. The
court ordered reasonable supervised visitation while Mother was in custody
and liberal supervised visitation after her release.
B. Events Between Detention and the Contested Jurisdiction and
Disposition Hearing.
A.W. was thereafter placed with a relative who was willing to adopt
her. The Agency’s jurisdiction/disposition report dated October 28, 2020
stated that a child and family team meeting was pending to discuss services.
Once that meeting occurred, the Agency planned to submit a case plan. At
the scheduled adjudication and disposition hearing, Mother appeared by
telephone. Mother’s counsel reported that Mother was participating and
engaged in a McAlister treatment program, as well as parenting classes and
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therapy. At Mother’s request, the court set a contested adjudication and
disposition hearing.
Mother gave birth to A.W.’s sibling a couple of weeks thereafter. The
infant tested positive for drugs. That child was subsequently removed from
Mother and placed with A.W.’s relative caregiver.2
The court held the contested adjudication and disposition hearing on
December 9, 2020, after the clerk of the court attempted unsuccessfully to
reach Mother to appear telephonically. The court received into evidence an
addendum report dated December 2, 2020, which included an initial case
plan.
The stated goal of the initial case plan was for A.W. to return home by
June 2, 2021. The parents were required to work with the Agency to show
that they could safely parent A.W., maintain a stable home that is free from
drugs and illegal activity, and meet all of A.W.’s emotional and physical
needs. The Agency wanted to see the plan in place and working continuously
for six months before allowing A.W. to return home. Mother’s service
objectives included developing positive support systems, avoiding arrests and
convictions, paying attention to and monitoring the child’s health, safety and
well-being, showing an ability to live free from illegal drugs, and complying
with required drug tests. Mother was required to participate in a parenting
education program, substance abuse services, and substance abuse testing.
Mother’s counsel asked the court to dismiss the petition contending
that the Agency had not met its burden. If the court found jurisdiction,
2 A.W.’s sibling was removed from Mother’s care a couple of weeks after
birth. Mother took the child to visit the child’s father, who was abusing
controlled substances. The child became infected with a respiratory illness,
which caused vomiting and fever.
5
Mother’s counsel requested placement of A.W. with Mother. Counsel said
Mother was engaged in a program through McAlister for substance abuse
and she had no missed or dirty drug tests. Mother was willing to participate
in all aspects of her case plan. Alternatively, Mother’s counsel asked that the
minor remain in the current placement.
The court, by clear and convincing evidence, found jurisdiction and
declared the child a dependent pursuant to section 360, subdivision (d). The
court removed A.W. from Mother’s custody concluding there was a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the child, or there would be such a danger if the child
were returned home. The court found the Agency made reasonable efforts to
prevent or eliminate the need for removal, but that there were no reasonable
means by which the child could be protected without removal from Mother’s
physical custody. The court found Father was a non-custodial parent, but
that it would be detrimental to place the child with him.
The court ordered the agency to provide services to both Mother and
Father consistent with the case plan. The court ordered Mother to comply
with the plan.
C. Events Over the Six-Month Review Period.
Over the next six months, A.W. appeared comfortable in her placement
with her paternal relative and her sibling. The caregiver met the physical,
emotional and developmental needs of both children.
Mother, however, struggled with consistency in her case plan services.
She initially participated remotely in outpatient drug treatment, but said she
stopped attending in December 2020 due to housing instability. She
contacted a substance abuse specialist in January 2021 for inpatient services
and scheduled an intake at the Family Resource Center (FRC) for February
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2021. She never entered the substance abuse program. She started visiting
the children at the Family Visitation Center because she was habitually late
for caregiver-facilitated visits. She had good attendance for the visits at the
Family Visitation Center, but continued to be habitually late.
Mother did not communicate with the social worker throughout the
month of February. She did not respond to the social worker’s phone calls
and text messages. The children’s caregiver told the social worker that
Mother still had no housing, but that Mother called for updates about the
children.
Mother contacted the social worker in March 2021 to report that she
completed an online parenting class. She said she had a job with a cleaning
company and signed a lease to move into an apartment in April 2021.
The caregiver noticed in March 2021 that A.W. had increased anxiety,
tantrums, and possible night terrors that disrupted her sleep and those of
others in the home. The behaviors appeared to increase after visiting with or
receiving packages from Mother. A.W. calmed considerably over the
following months.
The caregiver informed the social worker of two instances when Mother
made comments about taking the children and running away. Mother came
into the caregiver’s home unannounced and without permission. She became
frustrated or angry when the caregiver said she could not make visitation
changes or decisions without the Agency’s approval. The caregiver was
worried Mother would come to her home and take the children.
Mother participated in a child family team meeting in April 2021. The
team discussed the concerns about Mother’s inconsistency in both services
and visitation. Mother said she would work on those issues. The team
provided Mother with another referral to a substance abuse specialist. She
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also received referrals for housing and services from a community treatment
program that provides comprehensive, individualized services. Their
collaborative and recovery-oriented programs provide a wide range of support
including psychiatric assessment, individual supportive therapy, substance
abuse treatment, supportive housing, supportive employment and education
development, links to resources, peer support, and group counseling.
Thereafter, Mother sent messages to the social worker about her desire
for unsupervised visits. The social worker reminded Mother that she needed
to participate in a drug treatment program and again provided contact
information for a substance abuse specialist.
Mother reported to the social worker on May 3, 2021 that she was not
sentenced to jail for the charges arising from her October 2020 arrest. She
said she was struggling with housing and preferred to enter an inpatient
treatment program. She said she called the FRC and was told to keep calling
to see when a “detox” bed would open up.
A week later, on May 10, 2021, Mother was arrested and charged with
transporting or selling methamphetamine and possession for the sale of
methamphetamine. She was also charged with enhancement allegations for
committing a felony while out on bail or release, possession of a firearm
without being the registered owner, and carrying a loaded firearm in public.
After this arrest, Mother initially moved in with her father and said
she scheduled another intake with McAlister to restart outpatient drug
treatment. She did not, however, enroll in an outpatient treatment program.
She moved out of her father’s home a few weeks later and to an
unincorporated area of San Diego County.
Mother wanted A.W. and her sibling returned to her care. She thought
she should be awarded unsupervised and overnight visits. For concurrent
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planning, Mother stated that she wanted the children to remain together.
Although she was aware that the current caregiver was willing to adopt both
children, she suggested a different relative placement for adoption if she
could not reunify. Father was incarcerated and could not provide his
perception of the family needs at the time of the Agency’s report. However,
for purposes of concurrent planning, Father wanted A.W. to be adopted by
her current caregiver, who was his relative.
In its June 2021 status review report, the Agency noted that A.W. had
been in protective custody for eight months since the incident with the tow
truck driver. Throughout that period Mother showed a continued lack of
insight regarding the danger the incident posed to A.W. Shortly after that
incident, Mother gave birth to another child who tested positive for drugs.
Although Mother was initially able to care for A.W.’s sibling, that child was
removed when Mother continued to make poor choices and demonstrated lack
of insight into the child’s well-being and safety. Mother continued to engage
in illegal activity as shown by her recent arrest for drug and weapon charges.
Mother did not communicate regularly with the Agency and had not
completed or participated in enough services to show substantial progress on
her case plan. Nevertheless, the Agency requested an additional six months
of reunification services for Mother because Mother visited A.W. each week,
said she had employment and housing, and expressed a desire to participate
in services. The Agency recommended continuation of reunification services
for Father to the 12-month date in the hope that after his release from prison
he would fully engage in his case plan and services.
The Agency’s case plan update in June 2021 included the same service
objectives as those identified in the December 2020 plan. It required Mother
to participate in substance abuse testing and substance abuse treatment.
9
At the scheduled six-month review hearing on June 9, 2021, minor’s
counsel asked the court to set a trial date for the issue of terminating
Mother’s reunification services. Minor’s counsel noted that A.W. was under
three years old, Mother was recently re-arrested, and she had not engaged in
substance abuse treatment. Minor’s counsel argued there was no substantial
probability the child could be returned by the 12-month date. Minor’s counsel
did not request termination of Father’s reunification services because he was
reportedly getting out of jail.
Mother’s counsel submitted on the Agency’s report. He did not object to
the trial set request by minor’s counsel, but did not join it. The court set a
pretrial conference followed by a contested hearing at the end of July. The
court advised Mother, who appeared by telephone, that it was moving
forward with the hearing about termination of services and admonished her
to stay in touch with both the Agency and her attorney.
Mother appeared by telephone at the pre-trial status conference at
which the court confirmed the trial date. Mother’s counsel asked the Agency
to prepare an addendum report prior to the hearing.
The July 26, 2021 addendum report prepared for the sibling’s case gave
more details of Mother’s May 2021 arrest. After a traffic stop, law
enforcement found a loaded handgun, 10 grams of methamphetamine, and
other paraphernalia. Mother admitted she owned the gun and the
methamphetamine. She also admitted she smoked methamphetamine daily.
The Agency’s recommendations remained the same.
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D. The Contested Hearing Regarding Mother’s Services.
The matter regarding Mother’s services as to A.W. proceeded to trial on
July 28, 2021.3 Mother did not appear for the hearing even though the court
made three attempts to contact her. Her counsel asked for a continuance,
which the court denied finding she had notice of the hearing and voluntarily
did not appear.4
The court received into evidence the June 9, 2021 status review report
as well as the July 26, 2021 addendum report prepared for the sibling’s case.
Counsel asked no questions of the Agency’s social worker. Mother’s counsel
presented no affirmative evidence.
The Agency asked the court to find that return of A.W. to either parent
would be detrimental and to find that reasonable services were provided.
The Agency recommended that both parents continue to receive services until
the 12-month date. The Agency acknowledged the standard for continuing
services at the six-month review is permissive and that Mother had only done
the “bare minimum.” The Agency recommended continued services for
Mother, however, because services were continuing for Father and A.W. was
placed along with her sibling with a relative.
Minor’s counsel argued the court should not continue Mother’s services
because there was clear and convincing evidence that the Agency provided
Mother with reasonable services and that there was no substantial
3 The court continued the hearing regarding Mother’s services for the
sibling because the sibling’s father appeared for the first time at this hearing
and there was a concern about the sibling having no parent receiving
services.
4 A.W.’s father did not appear at the hearing. His counsel waived his
appearance.
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probability that A.W. could be returned by the 12-month date. Mother visited
A.W., but was habitually late. Otherwise, she made no progress with her
case plan services. The caregiver was concerned that Mother continued to be
under the influence and came to the caregiver’s home without permission.
Since A.W. and her sibling were both under the age of three, minor’s
counsel argued that the court had discretion not to continue services past six
months. Minor’s counsel noted that A.W. and her sibling were doing well
with their placement with A.W.’s relative.
Minor’s counsel pointed out that Mother was arrested at the time of the
detention incident for robbery and her case plan included a requirement that
she avoid arrest. The criminal court gave her a second chance by not
sentencing her to prison for the robbery charge. Yet, less than a month after
the criminal court’s decision, Mother was arrested again, this time for
transporting methamphetamine and possession of a weapon. Mother failed
to make progress with substance abuse treatment. She told the social worker
several times that she was trying to enroll in programs, but she never did.
She also told the social worker she had been clean since October 2020, yet the
police report of the May 10, 2021 arrest documented Mother’s admission that
she continued to use methamphetamine daily. Counsel argued there was no
indication mother would enroll in a substance abuse program and make
progress to the extent that A.W. could be returned to her by the 12-month
date.
Mother’s counsel argued that mother had visited with A.W., which met
the minimum standards even if the quality of the visitation was not what
minor’s counsel would like. Counsel referred to statements in the reports
that Mother had met with a substance abuse specialist at least twice and
made contact with multiple substance abuse recovery programs. He said she
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was “doing her best to deal with” her housing and income barriers so she
could reunify with A.W.
The court found that Mother had a substance abuse problem, not only
with personal use, but was recently arrested for transporting drugs.
Although Mother visited A.W., the court found by clear and convincing
evidence that her participation in services was minimal at best and that she
failed to make substantive progress with her plan. The court found that
there was no substantial probability A.W. could be returned to Mother within
12 months. Therefore, the court did not continue Mother’s reunification
services. The court did not set a section 366.26 hearing for A.W. at that time,
but confirmed a date for the 12-month hearing. Mother timely appealed.
DISCUSSION
I
The Court Did Not Err in Declining Mother Further Services
A. Guiding Legal Principles.
Parents in dependency proceedings are entitled to receive reasonable
services to facilitate family reunification. (Christopher D. v. Superior Court
(2012) 210 Cal.App.4th 60, 69; In re Katelynn Y. (2012) 209 Cal.App.4th 871,
876 (Katelynn Y.).) Reunification services for the parent of a child who was
under three years of age on the date of initial removal are generally provided
with a presumptive minimum of six months of services, but no longer than
12 months from the date the child entered foster care, unless the child is
returned to the home of the parent. (§ 361.5(a)(1)(B); In re M.F. (2019) 32
Cal.App.5th 1, 21; In re Jesse W. (2007) 157 Cal.App.4th 49, 59 (Jesse W.).)5
5 A child is “deemed to have entered foster care on the earlier of the date
of the jurisdictional hearing held pursuant to [s]ection 356 or the date that is
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At the end of the initial six-month period, if a child is not returned to
parental custody and “the court finds by clear and convincing evidence that
the parent failed to participate regularly and make substantive progress in a
court-ordered treatment plan,” the juvenile court may schedule a hearing
under section 366.26 to select a permanent placement plan for the child.
(§ 366.21, subd. (e)(3).) If, however, the court finds there is a “substantial
probability” that the child “may be returned to his or her parent . . . within
six months or that reasonable services have not been provided, the court shall
continue the case to the 12-month permanency hearing.”6 (Ibid.) This
expedited statutory scheme recognizes that “time is of the essence” for very
young children in the foster system and they require “ ‘a more timely
resolution of a permanent plan because of their vulnerable stage of
development.’ ” (Tonya M. v. Superior Court, supra, 42 Cal.4th at pp. 846,
847.)
In considering the court’s factual findings, “ ‘[w]e do not reweigh the
evidence or exercise independent judgment, but merely determine if there are
60 days after the date on which the child was initially removed from the
physical custody of his or her parent or guardian.” (§ 361.49.)
6 Even if the six-month hearing is delayed, the juvenile court should only
consider at each step the “probable developments in the period for which the
services can be ordered. That is, the period for which services can be ordered
and the period for which the impact of those services is to be prospectively
evaluated should be coterminous. Thus, if at most four months remain until
the next review hearing (i.e., the 12-month hearing or 18-month hearing), at
most only four months of services can by law be ordered, and the juvenile
court therefore should consider only what the impact of those four months of
services would be on the parent and child, not whether another hypothetical
two months of services beyond the next prospective hearing might have a
different or additional impact.” (Tonya M. v. Superior Court (2007) 42
Cal.4th 836, 846.)
14
sufficient facts to support the findings of the trial court.’ ” (Kevin R. v.
Superior Court (2010) 191 Cal.App.4th 676, 689 (Kevin R.).) “[W]e review the
record in the light most favorable to the court’s determinations and draw all
reasonable inferences from the evidence to support the findings and orders.”
(Id. at pp. 688–689.)
The decision about whether to award additional reunification services
up to 12 months, even if there is no substantial probability the child may be
returned by that date, is discretionary. We review that decision for abuse of
discretion. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 179–181; In
re Alanna A. (2005) 135 Cal.App.4th 555, 565; see also Katelynn Y., supra,209 Cal.App.4th at p. 877.) “In exercising its discretion, the court has ‘the
ability to evaluate whether the parent will utilize additional services and
whether those services would ultimately inure to the benefit of the minor.’
[Citation.] We will not disturb the court’s determination unless the court has
exceeded the limits of legal discretion by making an arbitrary, capricious or
patently absurd determination.” (Katelynn Y., at p. 881.)
B. Application.
Here, there was substantial evidence to support the juvenile court’s
findings that Mother made no substantive progress with her court-ordered
case plan and that there was no substantial probability A.W. could be
returned to her by the 12-month date. After A.W. was detained, Mother
initially engaged in an online outpatient drug treatment program, which she
discontinued by the end of December 2020. She took one parenting class over
the course of a couple of days. She visited the child, but was habitually late
and never progressed to the point of being assessed for additional days or
unsupervised visits. Despite numerous referrals, Mother never re-enrolled in
a substance abuse program and did not follow-through with services to
15
connect her with secure housing.7 She said at one point that she had signed
a lease for an apartment, but that apparently never came to fruition. Mother
continued to abuse drugs and engaged in criminal activity resulting in
another arrest, in contradiction of her case plan. Mother did not maintain
stable housing thereafter. Despite being informed by the social worker that
her parental rights could be terminated if she did not participate in services,
Mother did not do so.
Given the court’s findings, the court was well within its discretion to
decline to extend services for Mother. “Where, as here, the court continues
one parent’s services and does not set a section 366.26 hearing, it retains
discretion to terminate the other (nonreunifying) parent’s services.
[Citations.] The parent seeking additional services has the burden of
showing such an order would serve the child’s best interests.” (Katelynn Y.,
supra, 209 Cal.App.4th at p. 881.)
Mother presented no affirmative evidence at the contested hearing and
failed to establish that continuing her reunification services would serve
A.W.’s best interests. To the contrary, the evidence showed that A.W. was
comfortable and thriving in her relative placement with her sibling. The
caregiver reported that A.W. showed signs of anxiety or stress after some
visits with Mother. Mother was not only habitually late to her visits with
A.W., but she came to the caregiver’s home without permission and the
caregiver thought Mother was still under the influence. The caregiver also
7 Mother reported that she previously participated in the McAlister
program “a bunch of times” as well as Parentcare for drug treatment. A
program previously assisted her in finding low-income housing, which she
lost after moving out of state in early 2019.
16
expressed concern for A.W.’s safety based on Mother’s comments about taking
the children and running away.
We are not persuaded by Mother’s arguments that the juvenile court’s
authority to terminate family reunification services for one parent is limited
to situations where the nonreunifying parent made no effort to reunify and
participated in no services. It is true that the cases cited by Mother involved
situations where the parent did not participate in offered services and did not
visit the children. (Katelynn Y., supra, 209 Cal.App.4th at p. 881; Jesse W.,
supra, 157 Cal.App.4th at p. 56.) The language of the statute, however, does
not include such a limitation. Rather, it requires the court to evaluate
whether the parent “failed to participate regularly and make substantive
progress in a court-ordered treatment plan.” (§ 366.21, subd. (e)(3), italics
added.) The plain language of the statute indicates that a juvenile court may
determine by clear and convincing evidence that a parent failed to make
substantive progress even if the parent made some minimal effort. As we
explained in Jesse W., the statutory scheme provides that “at each review
hearing, the court must evaluate the efforts or progress toward reunification
made by each parent individually by considering ‘the extent to which he or
she availed himself or herself to services provided.’ ” (Jesse W., at p. 60.)
We also note that this was not the first time the Agency was involved in
A.W.’s young life. Despite her prior contact with the Agency and the services
offered in this case, Mother made no substantial progress in addressing the
underlying issues that led to A.W.’s removal over the eight or nine months
since she was detained. Mother’s continued difficulties with substance abuse,
housing and financial instability, and criminal activity demonstrate there
was not a substantial probability A.W. could be returned to Mother’s custody
17
by the 12-month review date. Therefore, we conclude the juvenile court did
not abuse its discretion in declining to extend services for Mother.
II
The Juvenile Court Properly Considered Minor’s Request to Decline Continued
Services for Mother
Mother contends for the first time on appeal that minor’s counsel did
not file a petition under section 388, subdivision (c), to terminate Mother’s
services at the six-month review hearing and the court did not make the
findings listed in section 361.5, subdivision (a)(2)(A)–(C). As a result, she
contends she did not have adequate notice and was denied due process.
Minor contends the statutes cited by Mother apply to situations
involving the request for an early termination of services and do not apply
where the juvenile court is considering whether to exercise its discretion to
extend services for the parent of a child under three years old after six
months under the provisions of section 366.21, subdivision (e)(3). Minor also
contends Mother forfeited the issue by failing to raise any procedural
objection with the juvenile court.
We agree the issue is forfeited. We generally do not consider
contentions raised for the first time on appeal. (In re Marriage of Davenport
(2011) 194 Cal.App.4th 1507, 1528 [argument not raised below is forfeited on
appeal]; Kevin R., supra, 191 Cal.App.4th at p. 686 [forfeiture applies in
juvenile dependency litigation and is intended “to prevent a party from
standing by silently until the conclusion of the proceedings”]; In re A.S. (2018)
28 Cal.App.5th 131, 151 [failure to object to the juvenile court forfeits the
issue on appeal].) “The purpose of this rule is to encourage parties to bring
errors to the attention of the trial court, so that they may be corrected.”
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(In re S.B. (2004) 32 Cal.4th 1287, 1293.) Had Mother objected, the juvenile
court could have taken steps to remedy any procedural error.
In any event, Mother had notice of minor’s request to terminate her
services. She was present at the hearing on June 9, 2021 when minor’s
counsel made the oral motion. The court informed Mother that it was moving
forward with minor’s counsel’s request and admonished her to stay in touch
with both the Agency and her attorney. She was also present at the pre-trial
hearing when the court confirmed the date for the contested hearing. Mother
did not appear on the date originally set for the contested hearing. That
hearing was briefly continued at the request of Mother’s counsel. She did not
appear at the next hearing and her counsel did not know why. Therefore,
any error was harmless. (In re Celine R. (2003) 31 Cal.4th 45, 58, 60
[harmless error test applies in dependency matters].)
Even if Mother did not forfeit the issue, we agree with minor’s
interpretation of the statutory scheme and conclude the juvenile court
properly considered minor’s position on the issue of whether to continue
Mother’s services beyond the six-month period as part of its duties required
under section 366.21, subdivision (e)(3). In reaching this conclusion, we
independently consider and interpret the pertinent statutes. (In re R.T.
(2017) 3 Cal.5th 622, 627 (R.T.).)
Section 361.5, subdivision (a)(2) states in relevant part, “Any motion to
terminate court-ordered reunification services . . . prior to the hearing set
pursuant to subdivision (e) of Section 366.21 for a child described by
subparagraph (B) or (C) of paragraph (1) [of subdivision (a) of section 361.5, a
child under three or a sibling group in which one sibling is under three], shall
be made pursuant to the requirements set forth in subdivision (c) of Section
388. A motion to terminate court-ordered reunification services shall not be
19
required at the hearing set pursuant to subdivision (e) of Section 366.21 if the
court finds by clear and convincing evidence one of the following: [¶]
(A) That the child was removed initially under subdivision (g) of Section 300
and the whereabouts of the parent are still unknown. [¶] (B) That the
parent has failed to contact and visit the child. [¶] (C) That the parent has
been convicted of a felony indicating parental unfitness.” (Italics added.)
Section 388, subdivision (c)(1) states in relevant part that any party,
including the dependent child “may petition the court, . . . prior to the hearing
set pursuant to subdivision (e) of Section 366.21 for a child described by
subparagraph (B) or (C) of paragraph (1) of subdivision (a) of Section 361.5 [a
child under three or a sibling group in which one sibling is under three], to
terminate court-ordered reunification services provided under subdivision (a)
of Section 361.5” only if certain conditions exists, one of which is “(B) The
action or inaction of the parent or guardian creates a substantial likelihood
that reunification will not occur, including, but not limited to, the parent’s or
guardian’s failure to visit the child, or the failure of the parent or guardian to
participate regularly and make substantive progress in a court-ordered
treatment plan.” (Italics added.)
As we described in section I.A., ante, section 366.21, subdivision (e)(3)
provides the criteria a court must consider at a six-month review hearing to
determine if it should extend services for a parent of a child under three: “If
the child was under three years of age on the date of the initial removal, or is
a member of a sibling group described in subparagraph (C) of paragraph (1)
of subdivision (a) of Section 361.5, and the court finds by clear and convincing
evidence that the parent failed to participate regularly and make substantive
progress in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court finds
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there is a substantial probability that the child, who was under three years of
age on the date of initial removal or is a member of a sibling group described
in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, may
be returned to his or her parent or legal guardian within six months or that
reasonable services have not been provided, the court shall continue the case
to the 12-month permanency hearing.”
In considering the interplay of these statutes, we must “interpret
relevant terms in light of their ordinary meaning, while also taking account
of any related provisions and the overall structure of the statutory scheme to
determine what interpretation best advances the Legislature’s underlying
purpose.” (R.T., supra, 3 Cal.5th at p. 627.) “ ‘[W]e do not
consider . . . statutory language in isolation.’ [Citation.] Instead, we
‘examine the entire substance of the statute in order to determine the scope
and purpose of the provision, construing its words in context and
harmonizing its various parts.’ [Citation.] Moreover, we ‘ “read every statute
‘with reference to the entire scheme of law of which it is part so that the
whole may be harmonized and retain effectiveness.’ ” ’ ” (State Farm Mutual
Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
When sections 361.5, subdivision (a)(2), and 388, subdivision (c)(1), are
read as a whole, it is apparent that they contemplate early motions to
terminate existing services within the presumptive minimum services period
of either six months for children under age three or 12 months for children
age three or older. The Legislature added these provisions in 2008 as part of
a “major policy shift” away from the view that these timelines were maximum
services periods (Seiser & Kumli, Cal. Juvenile Courts Practice and
Procedure (2021) § 2.129[1], pp. 2-519–2-520 (Seiser & Kumli).) and to
narrow the circumstances in which a juvenile court can exercise discretion to
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set aside or change orders for reunification services before the conclusion of
the minimum timeframes. (M.C. v. Superior Court (2016) 3 Cal.App.5th 838,
846–847 (M.C.).)
Minor contends the second sentence of section 361.5, subdivision (a)(2),
which requires the court to make special findings if a motion to terminate
reunification services is made at the six-month review hearing, should be
interpreted within the context of this statutory framework, meaning it only
applies to early motions to terminate services. This interpretation is
consistent with the statutory scheme and gives effect to section 366.21,
subdivision (e)(3), which provides different criteria for a court to consider in
deciding whether to continue services beyond the statutory minimum services
for the parent of a child under three. In other words, if a motion is brought to
terminate services before the end of the statutory period, a moving party
must comply with the requirements of sections 361.5, subdivision (a)(2) and
388, subdivision (c)(1). But once a parent receives reasonable services for the
statutorily prescribed minimum period for a child under three, the juvenile
court is required by section 366.21, subdivision (e)(3) to decide whether to
continue those services after evaluating the parent’s progress and the
probability of whether the child can be returned to the parent.
The parties cite one published case addressing the interplay of section
361.5, subdivision (a)(2) with section 366.21, subdivision (e)(3). In M.C., the
appellate court determined the juvenile court erred in terminating
reunification services before the end of the 12-month period without a section
388 petition. The children involved in that case were over three at the time
of detention.8 (M.C., supra, 3 Cal.App.5th at pp. 840, 849.) Although the
8 Section 361.5, subdivision (a)(2) states in relevant part, “Any motion to
terminate court-ordered reunification services prior to the hearing set
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issue was not directly before it, the court commented in a footnote that
section 366.21, subdivision (e)(3), “allowing for the setting of a 366.26 hearing
on a finding of failure to participate in and make progress in a treatment
plan, is not inconsistent with the Legislature’s intent in amending section
361.5 or, specifically, with the language of subdivision (a)(2). Section 361.5
provides for only six months of services if the child is under three or for an
entire sibling group if one of the group is under three. (§ 361.5, subd.
(a)(1)(B) [child under three], (C) [entire sibling group].) Accordingly, under
the statutory scheme, the specified six-month period of services will not be
‘terminated’ at the six-month hearing on the setting of a 366.26 hearing;
rather, the specified period of time for services will simply have ended. Thus,
the six-month hearing termination provisions set forth in section 361.5,
subdivision (a)(2), can be harmonized with the provisions of section 366.26,
subdivision (e), allowing for the setting of a section 366.26 hearing at the six-
month hearing.” (M.C., at p. 848, fn. 3.)
We agree with the M.C. court’s interpretation. Although counsel and
the court referred to “termination” of Mother’s services, the court’s order is
more accurately viewed as an order denying an extension of her services.
Here, Mother received reunification services for the minimum six-month
period, but, as the court found by clear and convincing evidence, she made no
substantive progress with her case plan and there was no probability A.W.
would be returned by the 12-month date. Therefore, the court appropriately
declined the Agency’s recommendation to extend her services and they
pursuant to subdivision (f) of Section 366.21 for a child described by
subparagraph (A) of paragraph (1) [of subdivision (a) of Section 361.5, a child
three or older] . . . shall be made pursuant to the requirements set forth in
subdivision (c) of Section 388.”
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expired. The court did not immediately set a section 366.26 hearing for
Mother, but confirmed the 12-month review date, at which time it would
consider Father’s services.
Viewing the statutes in this way, any of the requirements under section
361.5, subdivision (a)(2) for a motion to “terminate” existing services do not
apply to the court’s consideration of whether to continue services for a parent
who has reached the end of the minimum service period for a child under
three. It also does not matter whether the request to decline further services
was made by the minor or the Agency, since section 366.21, subdivision (e)(3)
requires the court to undertake this evaluation of the parent’s progress at the
six-month hearing for children under three.9
Mother’s statutory interpretation, which would require a section 388
petition or additional findings by the juvenile court under section 361.5,
subdivision (a)(2) at a six-month review hearing for children under three
would render section 366.21, subdivision (e)(3) ineffective. It would also
undermine the legislative intent to provide expeditious resolution of these
cases for very young children.
For all these reasons, we reject Mother’s claim that the court erred in
considering minor’s request not to continue Mother’s reunification services.
III
The Court Did Not Abuse Its Discretion in Denying a Continuance
Mother finally contends the juvenile court erred in failing to grant her
attorney’s request for a continuance when she failed to appear for the
contested hearing regarding her reunification services. We conclude there
was no abuse of discretion.
9 This reading of the statutes is also consistent with a noted commentary
on dependency law. (Seiser & Kumli, supra, § 2.140[1], p. 2-584.)
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Continuances are generally discouraged in dependency cases (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 604) and may be granted “only upon
a showing of good cause” and provided that it is not “contrary to the interest
of the minor.” (§ 352, subd. (a).) “We review the court’s ruling on a
continuance request for an abuse of discretion.” (In re Mary B. (2013) 218
Cal.App.4th 1474, 1481.)
In this case, Mother was present telephonically for both the hearing
where minor’s counsel requested a contested hearing on the issue of
continuing Mother’s services and for the pre-trial conference confirming the
date of the hearing on July 26, 2021. Mother did not appear at the scheduled
July 26, 2021 hearing despite two attempts by the court to contact her. The
court granted her attorney’s request for a two-day continuance until July 28,
2021 so the court could consider matters related to both A.W. and her sibling
and so that Mother could attend the hearing.
Two days later, however, Mother again failed to appear for the
contested hearing. The court made three unsuccessful attempts to reach
Mother. After the court granted a continuance at the request of the sibling’s
father, Mother’s counsel requested another 30-day continuance of the
contested hearing to allow consideration of A.W.’s case and her sibling’s case
on the same track. Counsel stated that he did not know why Mother did not
respond to the court’s call. The court found that Mother had notice of the
hearing, that the court made three attempts to contact her, and that she
“voluntarily absented herself from the proceedings.” Therefore, the court
denied the continuance request and proceeded with the hearing.
Based on this record, we find no abuse of discretion. An “unjustified
failure to appear at a duly noticed hearing reflects a parent’s choice not to
attend. [Citation.] A court may properly treat this choice as a waiver of the
25
right to be present at that hearing and of the benefits of being present.” (In
re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132.) There is no indication
another 30-day continuance of this matter was in the best interests of A.W.
DISPOSITION
The July 28, 2021 order is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
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