41 Cal.App.5th 568
Cal. Ct. App.2019Background
- Minor M.S. removed at birth after mother (T.S.) and infant tested positive for amphetamines/methamphetamine; mother gave a Mexicali, Mexico residential address and a third‑party phone contact.
- Department of Social Services (Department) initially sought DIF/Consulate assistance to assess relatives in Mexicali and mailed hearing notices to the Mexicali address; mother attended early hearings and was ordered predisposition reunification services and supervised visits.
- Department later recommended denial of reunification services under Welf. & Inst. Code §361.5(b)(1) (parent’s whereabouts unknown), supported by a social‑worker declaration describing limited phone calls shortly before the June 6, 2018 dispositional hearing.
- Juvenile court (June 6, 2018) found by clear and convincing evidence that mother’s whereabouts were unknown, denied reunification services, and set a §366.26 permanency hearing; at the December 5, 2018 §366.26 hearing the court terminated parental rights.
- Mother appealed; the Court of Appeal held the evidence insufficient to support the §361.5(b)(1) finding, ruled the court erred in setting a §366.26 after denying services on that ground, reversed the orders, and remanded with directions to provide mother a minimum of six months of reunification services.
Issues
| Issue | Plaintiff's Argument (Dept.) | Defendant's Argument (T.S.) | Held |
|---|---|---|---|
| 1) Sufficiency of evidence that mother’s whereabouts were "unknown" under §361.5(b)(1) | Department: its last‑minute phone contacts and searches constituted reasonably diligent efforts. | Mother: Department had her Mexicali address, had earlier contacts and mailed notices; whereabouts were known. | Reversed — insufficient evidence. Dept. knew Mexicali address, failed to use DIF/Consulate or reasonably diligent means; phone calls weeks before hearing were inadequate. |
| 2) Authority to set a §366.26 hearing after denying services under §361.5(b)(1) | Department: (conceded below that court erred in part; alternatively argued any error was forfeited). | Mother: Denial under (b)(1) requires six‑month review, not immediate §366.26. | Reversed — court erred to set §366.26; denial under (b)(1) requires six‑month review and cannot be sole basis to set §366.26. |
| 3) Forfeiture of challenge to setting §366.26 (failure to object below) | Department: Mother forfeited by not timely objecting. | Mother: Counsel objected; fundamental rights warrant review. | No forfeiture — counsel effectively objected and exceptional circumstances justified appellate review. |
| 4) Remedy and statutory time limits for reunification (12/18/24 months) | Department: statutory caps preclude providing more services beyond the limits. | Mother: due‑process and statutory scheme require remand and additional services where services were erroneously withheld. | Remand with directions to provide at least six months of reunification services to mother despite exceeding ordinary statutory deadlines; parental/child liberty interests prevail where services were wrongly denied. |
Key Cases Cited
- In re Jonathan P., 226 Cal.App.4th 1240 (2014) (if denial is solely for unknown whereabouts under §361.5(b)(1), court must set six‑month review, not §366.26)
- In re M.F., 32 Cal.App.5th 1 (2019) (remedy for failure to provide reasonable services is to order additional services on remand)
- In re A.G., 12 Cal.App.5th 994 (2017) (erroneous failure to offer services requires extending services and remand)
- In re T.M., 175 Cal.App.4th 1166 (2009) (§366.26(c)(2)(A) bars termination when parent was never offered services due to unknown whereabouts)
- In re David B., 21 Cal.App.4th 1010 (1994) (department’s search must use most likely means of finding parent; cursory efforts may be ‘‘woefully deficient’’)
- In re R.L., 4 Cal.App.5th 125 (2016) (agency satisfied diligence by requesting DIF assistance and foreign home visits)
- In re Daniel G., 25 Cal.App.4th 1205 (1994) (court may extend reunification period where agency failed to provide reasonable services)
- In re Celine R., 31 Cal.4th 45 (2003) (harmless‑error/miscarriage of justice standard in dependency appeals)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental liberty interest in care, custody, and control of children)
- Stanley v. Illinois, 405 U.S. 645 (1972) (parental rights are fundamental liberty interests)