221 Cal. App. 4th 1243
Cal. Ct. App.2013Background
- In Jan 2011 police found methamphetamine and drug-manufacturing chemicals in the family home; infant X.Z. (2 months) was detained and placed with maternal aunt Consuelo.
- Mother was criminally convicted (possession for sale and child endangerment) and incarcerated; dispositional plan ordered parenting class and individual counseling and reunification services were set.
- Caseworker attempted to learn Mother’s release date but lacked definitive information; reports in Sept 2011 recommended terminating reunification services because Mother would be incarcerated beyond the statutory reunification period for a child under three.
- At the Sept 12, 2011 six‑month review the juvenile court terminated reunification services and set a section 366.26 hearing, orally advising present parties of the need to seek extraordinary writ review but not stating the 7‑day deadline; forms allegedly available in courtroom.
- Mother did not seek writ review, later participated in prison programs (beginning ~Oct 2011) and visited X.Z.; at the Dec 4, 2012 section 366.26 hearing the court found X.Z. adoptable and terminated parental rights; Mother appealed.
Issues
| Issue | Plaintiff's Argument (DCFS) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether Mother can raise objections to the Sept 2011 termination of reunification services on appeal from the Dec 2012 termination of parental rights | DCFS: Section 366.26(l) bars appellate review unless timely writ petition filed; Mother was advised and could have sought writ so issues are forfeited | Mother: Oral advisement at hearing omitted the filing deadline (7 days), so lack of proper notice excuses failure to file and permits review on appeal | Court: Mother received sufficient advisement; failure to file writ precludes appellate review of Sept 2011 order; appeal does not resurrect those reunification issues |
| Whether the juvenile court’s oral advisement was defective for omitting the writ filing deadline | DCFS: Oral advisement plus presumed availability of forms satisfied notice; Mother could seek relief for late filing if needed | Mother: Omission of the deadline rendered advisement defective and excused timely writ filing | Court: Mere omission of deadline does not automatically excuse failure to seek writ where party was told to seek extraordinary writ and could have filed late with a showing of good cause; no relief warranted here |
| Whether reasonable reunification services were provided before Sept 2011 and whether the court made required findings | DCFS: Services were reasonable under circumstances (incarceration, lack of programs at initial facility, Mother didn’t begin available programs until after Sept 2011); clerk’s minute order reflects required findings | Mother: DCFS provided no services pre‑six‑month review; court failed to make statutory findings or apply clear‑and‑convincing standard for failure to participate | Court: Substantial evidence supports that reasonable services were provided; clerk’s minute order shows required findings; any misstatement of standard was harmless given undisputed lack of progress |
| Whether September 2011 errors (if any) required reversal of termination of parental rights in Dec 2012 | Mother: Alleged defects in Sept 2011 process prejudiced later termination | DCFS: Even if some error, Mother forfeited review; substantial evidence supports adoptability and no exception applies | Court: Issues not reviewable due to failure to seek writ; on the merits Sept 2011 termination was proper; termination of parental rights affirmed |
Key Cases Cited
- In re Cathina W., 68 Cal.App.4th 716 (discussion of writ requirement under § 366.26)
- Karl S. v. Superior Court, 34 Cal.App.4th 1397 (stresses need for pre‑366.26 resolution of challenges to setting orders)
- In re Rashad B., 76 Cal.App.4th 442 (Legislature intended writ review of setting orders)
- In re Anthony B., 72 Cal.App.4th 1017 (policy favoring expedition and finality in dependency proceedings)
- In re Frank R., 192 Cal.App.4th 532 (failure to advise at all may excuse filing requirement)
- In re Lauren Z., 158 Cal.App.4th 1102 (parent’s placement out of reach of services can justify termination of reunification)
- Jonathan M. v. Superior Court, 39 Cal.App.4th 1826 (late filing of Notice of Intent may be excused for good cause)
- In re Merrick V., 122 Cal.App.4th 235 (clerk’s transcript may clarify reporter’s transcript when resolving recorded findings)