In Re Daniel G.
JOHNSON, J.
Willeta W. appeals from a judgment permanently severing her parental rights as to Daniel and ordering Daniel be placed for adoption. We conclude the juvenile court erred in holding it had no discretion to order continued reunification services beyond the 18-month review under
FACTS AND PROCEEDINGS BELOW
Daniel was born on April 6, 1991. At that time his mother, Ms. W., was living in a board-and-care home under a conservatorship of her person and estate. The record shows Ms. W. is mildly mentally retarded and has been
In June of 1991 Daniel was declared a dependent child of the juvenile court and placed in foster care. The court ordered DCS to provide family reunification services to Daniel and his mother.
Ms. W.‘s conservatorship was terminated in August 1991 but she continued to live in monitored surroundings at a board-and-care home.
The court conducted a six-month review of the case under
The next review did not occur until nine months later, in September 1992. Again, the court continued its placement order for Daniel. This time, however, the court specifically ordered Ms. W. have weekly visitations with Daniel and found DCS had not made reasonable efforts to reunite Daniel and his mother since the previous hearing in January 1992.
A final 18-month review under
The court received in evidence a written report by Charles Brown, Daniel‘s social worker at DCS. In this report, Brown stated the family reunification services since the last review consisted of monitoring Daniel‘s placement through home visits and telephone calls to the foster parent; monitoring Ms. W.‘s progress in board and care; and providing referrals as needed to the foster mother. The foster mother, the report stated, “is gracious enough to facilitate visits between minor and mother by bringing minor to see mother ... when scheduling allows.” Ms. W. had satisfactorily cooperated with the visitation plan.
At the hearing Brown testified he had been the social worker on the case throughout 1992. He did not know if Ms. W. was in an independent living
Following Brown‘s testimony and arguments by counsel for DCS, Daniel and Ms. W., the court made a finding DCS had not provided reasonable reunification services to Daniel and his mother from the time of the six-month review to the end of the eighteen-month review period. The court noted the social worker “didn‘t even talk to her once” and “Department has relied on old reports, hearsay, and has done nothing....”
Despite its view that DCS‘s reunification efforts on behalf of Daniel and his mother had been “a disgrace,” the court stated it felt constrained to order a hearing on a permanent plan for Daniel because “[t]his is the 18-month hearing date” and because DCS had made reasonable reunification efforts in the first six months after Daniel‘s placement. Thus, the court terminated further reunification efforts and set the matter for hearing on the selection and implementation of a permanent plan for Daniel.
At the hearing on the permanent plan, the court made the requisite findings under
(1a) For the reasons set forth below, we hold the juvenile court erred in concluding that despite the fact the reunification services provided this family were a “disgrace” it had no discretion to continue efforts at reunification beyond the 18-month review period. Therefore, we reverse the judgment and remand the matter to the juvenile court for a proper exercise of its discretion as to continued reunification services.
DISCUSSION
To orient the issue in this appeal it is necessary to understand the four stages in a dependency proceeding leading up to the termination of parental rights. Those four stages are: jurisdiction, disposition, reunification and implementation of a permanent plan, which may include termination of
Promptly after a child is removed from a parent, a jurisdiction hearing is held to determine if there were adequate grounds for removal. If so, a disposition hearing is held to determine whether the child should be returned to the parents or must be removed pending further review. If the child is removed from the parent‘s custody, the court, in most cases, must make orders regarding reunification services. (
The appeal in this case focuses on the reunification stage of the proceeding. Ms. W. does not challenge the sufficiency of the evidence to support termination of parental rights under
(3) The purpose of California‘s child welfare law is threefold. First, “to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm.” (
Recognizing these goals might often conflict, the Legislature adopted procedures to balance the interest of the child in being free from physical or emotional harm and in a permanent relationship with nurturing adults, the interest of the parent in raising the child without inappropriate intrusion into family life and the interest of the public in traditional family values including the preservation of parental bonds. Thus, the legislative scheme allows
To achieve the goal of preserving the family whenever possible, the Legislature required the county child welfare departments to develop and implement family reunification plans and required the courts to monitor those plans through periodic review. Family reunification efforts are required to begin with the first determination the child will be detained in juvenile court custody. (
Unfortunately the Legislature did not specify what the court should do if, as in the present case, the court finds reasonable reunification services were not offered. The only guidance is provided in
(1b) DCS argues 18 months is the outer limit for family reunification efforts. At the end of this time, if the child cannot be returned to the parent, the court must order a permanent placement hearing under
In support of this argument DCS points out that while the Legislature was concerned with preserving the family unit whenever possible, it was also concerned with providing an expeditious final resolution of the case. (See Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 246-247.) Therefore the Legislature provided for “services to the minor and the minor‘s parents or guardians for the purpose of facilitating reunification of the family within a
Similar arguments were made and rejected in In re Dino E. (1992) 6 Cal. App.4th 1768 [8 Cal. Rptr.2d 416]. In Dino, no reunification plan was ever developed for the father. The juvenile court nonetheless concluded it was compelled to terminate reunification services and order a permanent placement hearing. (Id. at p. 1777.) The court denied the father‘s request to extend reunification services beyond 18 months because the court believed “`[t]he law doesn‘t permit it.‘” (Id. at p. 1775.) The Court of Appeal disagreed with the juvenile court‘s interpretation of the statutory scheme and issued a writ of mandate ordering the court to vacate the permanent placement hearing and to exercise its discretion in determining whether an additional period of family reunification services should be required.
In determining the juvenile court had discretion to extend family reunification services beyond the 18-month review, the court noted at the time of the 18-month review in Dino
We find the reasoning in Dino applicable to the present case.
At the time of the 18-month review in the present case, the language requiring the court to determine whether reasonable services have been offered or provided to the family had been moved from the opening sentence of
While it is true in the present case some reunification services were provided to Ms. W. and Daniel this does not alter our conclusion the court had discretion to extend reunification services. Rather, it is a factor the court should consider in exercising its discretion whether to order a permanent placement hearing. We see no meaningful distinction between a case such as Dino, in which no reunification plan was ever developed, and a case such as the one before us where a reunification plan was developed but not implemented during most of the reunification stage. To draw such a distinction would be to take a “mechanical approach” to reunification inconsistent with the legislative intent in requiring reunification services discussed above.
We find nothing in the legislative intent or the specific language of
While the Legislature was concerned with reducing delays in arriving at a permanent resolution of the child‘s placement, we do not believe the Legislature intended a speedy resolution of the case to override all other concerns including “the preservation of the family whenever possible” especially given the lengths to which the Legislature went to try to assure adequate reunification services were provided to the family. In upholding the parent‘s right to challenge on appeal an order terminating reunification services and setting a permanent placement hearing, the Supreme Court, in Matthew C., stated: “Although delay in a child‘s permanent placement is a legitimate policy concern, it alone in the absence of any other evidence does not warrant a finding of legislative intent to eliminate appellate review of these orders.” (6 Cal.4th at p. 400.)
The provision in
The provision in
Thus, as shown above, interpreting the statutes to provide the juvenile court with discretion to order continued family reunification services at the
In Cynthia D., supra, a parent whose parental rights had been terminated under
Referring to the risk of erroneous factfinding, the court found this risk was substantially diminished under the statutory scheme “which emphasizes `preservation of the family whenever possible‘” (5 Cal.4th at p. 254) and requires “a series of hearings involving ongoing reunification efforts.... Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the [parental termination] stage even reached.” (Id. at p. 253, italics added.)
Clearly, one of the “precise and demanding” substantive requirements DCS must meet to satisfy due process is affording reasonable reunification services. Where reasonable services are not afforded there is a substantial risk the court‘s finding the child cannot be returned to the parent will be erroneous. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.) To put it another way: in order to meet due process requirements at the termination
In the present case, the reunification services DCS provided in the last 12 months of the reunification stage were virtually nil — a “disgrace” as the trial court put it. The social worker assigned to the case did not even contact the mother during this period but put all his time into working with Daniel and the foster mother who wished to adopt him. The worker did not investigate the possibility Ms. W. and Daniel could be housed together in a facility which would meet both their needs and had no idea whether Ms. W. was progressing toward an independent living situation. He never asked Ms. W.‘s psychiatrist whether he believed Ms. W. would ever reach the point where she could care for Daniel and, if so, when. Despite the fact the court ordered weekly visits between Ms. W. and Daniel, the record shows visits were only arranged monthly — the social worker taking the view that even these visits were through the “grace” of the foster parent.
We recognize Ms. W. appears to have serious emotional problems and realistically she may never be able to properly care for her son. On the other hand, it appears from the record DCS gave up on this case without really trying. This it cannot do. (In re John B. (1984) 159 Cal. App.3d 268, 273 [205 Cal. Rptr. 321].) If DCS believed reunification services should not be provided for one of the reasons contained in
As our Supreme Court has recognized, the 18-month review under
(1c) On remand the juvenile court should determine whether to exercise its discretion to order further reunification services. In making this determination, the court should consider the services already provided Ms. W. and
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further proceedings consistent with the views expressed herein. Appellant is awarded costs on appeal.
Lillie, P.J., and Woods (Fred), J., concurred.