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41 Cal.App.5th 568
Cal. Ct. App.
2019
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Background

  • 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)
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Case Details

Case Name: In re M.S.
Court Name: California Court of Appeal
Date Published: Oct 30, 2019
Citations: 41 Cal.App.5th 568; 254 Cal.Rptr.3d 162; D075278
Docket Number: D075278
Court Abbreviation: Cal. Ct. App.
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