In Re Dino E.
BAMATTRE-MANOUKIAN, J.
Following a combined 12- and 18-month review hearing, the juvenile court issued an order authorizing a
(1a) A referral order pursuant to
We conclude that the peremptory writ of mandate must issue and we direct that the court hold further proceedings in order to determine whether to proceed with the
BACKGROUND
Dino E. was born on December 19, 1989. He was taken into protective custody due to his mother‘s mental illness and history of drug abuse. His parents were not married. Appellant Wendell E. was named as the father on the birth certificate. Two days later, on December 21, 1989, a
At the initial detention hearing the following day, appellant appeared and the hearing was continued in order that a public defender be appointed to represent him. Appellant failed to appear at the next hearing on December 26, 1989, and the court ordered that Dino be detained.
A jurisdictional hearing was set for January 11, 1990. The social worker‘s report of that date states that Dino‘s parents had been offered reunification services regarding two other children but that “after the initial investigation,
The matter was continued for a week, during which time Dino‘s mother informed the social worker that appellant was not the father. At the next hearing on January 19, 1990, the court ordered that the social worker facilitate a paternity test, and that appellant have supervised visitation with the child.
After several further continuances, representation was arranged for appellant and the case was set for March 27, 1990. The social worker‘s report of that date indicated that, due to the disappearance of the mother, the department of family and children‘s services (DFCS) had arranged for a special paternity test that required blood from only the alleged father and the child. The report also noted that while appellant was not in a position to provide a home for the child at present, his “persistence in wanting to accept responsibility for the minor is notable.” Appellant‘s mother, who lived in Cincinnati, Ohio, had contacted the social worker on March 8, 1990. The grandmother had informed the social worker that she wanted to raise the child “if the minor is the father‘s son.” The court sustained the allegations of the petition and ordered a dispositional hearing for April 17, 1990.
On April 17, 1990, Dino was adjudged a dependent child of the court. The dispositional orders incorporated the social worker‘s recommendations that the “parents,” either together or separately, obtain a suitable and stable residence for the minor, complete a parent education program, maintain adequate visitation with the child, and cooperate with and maintain regular contact with the social worker. In addition, the court ordered the social worker to proceed with the paternity test. And finally, the court set a hearing date of May 15 for receipt of the service plan, and a six-month review hearing for September 27, 1990. Appellant appeared with counsel at the dispositional hearing and signed the order of dependency.
A family reunification service plan was developed for the mother only, dated June 12, 1990. The mother accepted the plan on June 26, 1990, at which time she told the social worker again that appellant was not Dino‘s
The blood tests of appellant and the minor indicated only that appellant could not be excluded as the natural father. On June 28, 1990, the court ordered that the mother, who was at that time incarcerated, participate in blood testing. This was accomplished in due course and the results of all of the blood tests showed a high probability that appellant was the natural father of Dino. The court declared appellant to be Dino‘s natural father on August 14, 1990.
On August 23, 1990, appellant filed a petition under
The court conducted the scheduled six-month review hearing on September 27, 1990. Appellant was present, although he had been taken into custody in May and was serving six months in the county jail. The social worker‘s report noted that the father had not had an opportunity to participate in reunification services because his paternity had just been established the previous month. Appellant‘s mother was also present at the hearing. On the advice of the social worker she had travelled from her home in Ohio to attend the hearing and personally make known her wishes to have custody of Dino. The report stated that appellant wanted the child placed with his mother in Ohio. On the day of the hearing, the grandmother filled out a “Request for Relative Home Placement,” in which she stated that she provided a home for three children of appellant‘s sister and that she wanted to care for Dino and raise him with the rest of his family.
The court adopted the social worker‘s recommendations for continued foster care for Dino and ordered that visits be set up for Dino and his grandmother. The social worker‘s report repeated earlier recommendations that the parents maintain adequate residential accommodations for the minor, that they complete parenting programs, and that they maintain regular contact with the social worker. The report concluded by recommending that “continued reunification services” be provided, and the court so ordered.
Weekly visits between Dino and his grandmother were arranged and four or five such visits took place. Toward the end of November the grandmother
Upon his release from jail in November of 1990, appellant informed the social worker that he wanted to work on reuniting with Dino so that he could have Dino placed with him instead of with his mother in Ohio. The social worker arranged for weekly visits between appellant and Dino. Appellant was also referred to a parenting class. He enrolled in a class which began on February 5, 1991. His attendance was sporadic, however, and he was dropped from the class after three absences.
The 12-month review hearing was commenced on March 20, 1991, and was continued to April 18, for a contested hearing. The report prepared for the 12-month review recommended that reunification services be terminated and that a
The contested hearing was held over five days in April, May and June. Appellant testified in his own behalf. His mother had returned to California to participate in the hearing. She testified that she wanted to raise Dino with the other children in the family because he belonged to her “bloodline” and her “culture.” She said she came to California to get Dino as soon as possible after learning that appellant was legally the father. She went back to Ohio because she thought she had to in order for the home study to be conducted. No one contacted her there and her calls to the social worker in California were not returned. At the time of the hearing, no home evaluation had been done.
At the conclusion of the hearing, on June 7, 1991, the court found that the DFCS had not complied with the relative placement requirements of
On July 2, 1991, appellant filed a notice of appeal from the referral orders made pursuant to
DISCUSSION
(2a) Appellant argues that the juvenile court abused its discretion in ordering a
(1b) At the outset we note that we are aligned with those courts which have held that a referral order authorizing a
At the time of the combined 12- and 18-month review in this case, the governing statute provided as follows: “If the minor is not returned to a parent or guardian at the 18-month hearing and the court determines that reasonable services have been offered or provided to the parent or guardian,
Unfortunately the statute does not provide any guidance as to what options are available to the trial court in the event it finds, as it did in our case, that reasonable services were not provided to the parent. Appellant argues that the court must extend the reunification period beyond the 18 months and order that the appropriate services be offered. Respondent contends that the court must set a
(4) The resolution of this issue reveals the tension inherent in a statutory scheme which endeavors to accommodate competing interests of fundamental importance. On the one hand there is a strong public policy in this state that “`judicial proceedings to declare a child free from parental custody and control shall be fully determined as expeditiously as possible.‘” (In re Jonathan R. (1989) 211 Cal. App.3d 1214, 1223 [259 Cal. Rptr. 863] (conc. opn. of Brauer, Acting P.J.).) To this end the Legislature has set an outer limit of 18 months from the original order of detention for the court to determine whether the child is to be returned to the parents or permanently placed elsewhere. On the other hand, the statutory scheme was designed with the purpose of allowing the parents the opportunity to reunite with the child by complying with a service plan within the given time frame. (Ibid.) Failure to formulate an adequate reunification plan which realistically can be implemented within the 18 months defeats this purpose and has been held to be reversible error. (In re Bernadette C. (1982) 127 Cal. App.3d 618, 625-626 [179 Cal. Rptr. 688]; In re Jeremy C. (1980) 109 Cal. App.3d 384, 388-393 [167 Cal. Rptr. 283];
(5a) The statutes and rules governing dependency actions clearly require that a family reunification plan be developed as a part of any dispositional order removing a child from its home. (In re Jamie M. (1982) 134 Cal. App.3d 530, 545 [184 Cal. Rptr. 778].) A recommended plan must be included in the social study which is submitted to the court prior to any dispositional order in a
(2c) Respondent DFCS points out that appellant was present at the dispositional hearing, signed the court‘s order which adopted the general recommendations contained in the social worker‘s report, and was presumably aware of those recommendations. Moreover, appellant was twice referred by the social worker to a parenting class, once in May of 1990 and again after his release from jail in November of 1990. He enrolled in a class but was dropped due to poor attendance. Also, visitation with Dino was arranged for him as well as for his mother.
The fact remains, however, that no reunification plan was ever developed for appellant. (5b) A “mechanical approach” to a reunification plan is not what the Legislature intended: “[s]uch a plan must be appropriate for each family and be based on the unique facts relating to that family.” (In re Edward C. (1981) 126 Cal. App.3d 193, 205 [178 Cal. Rptr. 694]; see also In re Kristin W., supra, 222 Cal. App.3d at pp. 254-255; In re Bernadette C., supra, 127 Cal. App.3d at p. 626.) The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success. (In re John B. (1984) 159 Cal. App.3d 268, 273, 276 [205 Cal. Rptr. 321].) (2d) Here the trial court found that the services offered to appellant were inadequate. As the court put it, “Nobody gave Mr. E. the map. He needed some direction. It wasn‘t there.” It appears the evidence supports the court‘s finding.
Having made such a finding, the trial court believed it was compelled nonetheless to terminate reunification and order the
Respondent points out that different requirements apply at the 12- and 18-month review hearings. At the 12-month review,
We do not agree that this is the only logical conclusion to be drawn from these statutes. In the usual case, a service plan will be developed at the dispositional hearing and its implementation will be reviewed at six- and twelve-month intervals. Provisions that the court may extend services for an additional six months, but not beyond a total of eighteen months, promote the dual purpose of expediting a permanent placement for the child while at the same time allowing the parents the opportunity to reunite the family. Where no reunification plan is in place, however, a strict enforcement of the time line does not provide the opportunity to reunite the family. We do not believe that such a result was intended by the Legislature.5
We conclude that under the circumstances of this case, where the court was faced with the prospect that the 18 months had elapsed and no reunification plan had been developed for the parent, the court was entitled to weigh the various interests involved and exercise its discretion.
One Court of Appeal, in a similar context, has recently observed that the juvenile court may, upon noticed motion and for good cause, “continue any hearing `beyond the time limit within which the hearing is otherwise required to be held’ provided only that such is not contrary to the best interests of the minor.” (In re Sarah D. (1992) 5 Cal. App.4th 448, 455, fn. 6 [6 Cal. Rptr.2d 772] review granted June 25, 1992 (S026737);
No motion was brought under
On the other hand, the court could have determined, in its discretion, that the child‘s need for prompt resolution of his custody status outweighed any need for a continuance to provide further services to appellant.
On remand the court may entertain a
In light of our disposition, we find it unnecessary to reach appellant‘s argument that as a putative father he was deprived of equal protection of the law.
DISPOSITION
Let a peremptory writ of mandate issue, directing that the trial court vacate its order authorizing a selection and implementation hearing pursuant to
Cottle, Acting P.J., and Stone, J.,* concurred.
Notes
Section 300, subdivision (j) provides in part: “The minor‘s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is substantial risk that the minor will be abused or neglected, as defined in those subdivisions....”