In re MALIK T. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SHAILYN A., Defendant and Appellant.
B311135
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 1/18/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. CK79785A-G)
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell for Plaintiff and Respondent.
Eighteen months after the juvenile court terminated her family reunification services and set the matter for a selection and implementation hearing, Shailyn A. petitioned pursuant to
On appeal Shailyn contends the juvenile court misunderstood the scope of its authority to order reunification services and, as a consequence, failed to properly exercise its discretion in considering the merits of her petition. Shailyn is correct. Although
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petitions and Removal of the Children from Shailyn‘s Custody
On July 6, 2016 the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to
On October 27, 2016 the juvenile court sustained the petition, finding the Department had proved allegations pursuant to
On March 14, 2017 the Department filed a subsequent petition pursuant to
2. Termination of Shailyn‘s Reunification Services, Setting the Selection and Implementation Hearing and Identification of Adoption as the Permanent Plan for the Children Other Than Malick
The children‘s six-month review hearing (
By the
On January 10, 2019 the court continued the
At the next RPP on July 11, 2019, with identical orders for the six children other than Malick, the juvenile court confirmed the permanent plan of adoption as a specific goal remained appropriate and was ordered as the permanent plan. The court found each of the children will be adopted and the likely date that goal would be achieved was December 19, 2019. The Department was ordered to provide permanent placement services to each of the children.4 Also on July 11, 2019 the court again continued the
3. Placement of Malick with His Father and His Subsequent Removal; Shailyn‘s Unsuccessful Requests for Reunification Services
On September 14, 2018 the Department filed a
After learning of another incident of domestic violence and receiving a referral concerning emotional abuse of Malick by Michael, the Department filed a supplemental petition for a more restrictive placement pursuant to
Following the disposition hearing for Malick, on September 26, 2019 Shailyn filed a
4. Shailyn‘s March 10, 2020 Section 388 Petitions
On March 10, 2020 Shailyn filed a new set of
On September 18, 2020 the court ordered the Department to prepare a response to the
The Department‘s response summarized interviews with the program coordinator and a resident advocate at the Valley Oasis domestic violence shelter where Shailyn was living. The staff believed Shailyn would be overwhelmed if required to care for any children other than one-year-old Shane then living with her. The shelter personnel were also concerned that Shailyn seemed focused on obtaining her high school diploma rather than finding employment and housing.
Shailyn, interviewed at the shelter by a dependency investigator, said she had been clean and sober since March 2019, had completed the Tarzana Treatment program and was actively involved in after-care through her church, where she had a sponsor (another member of the church). Shailyn stated she was working the steps and attended virtual narcotics anonymous meetings daily. Shailyn expressed her goal of regaining custody of her children and said she felt she cоuld provide appropriate care. Shane, who was with Shailyn during the interview, appeared clean and healthy, was dressed appropriately for the weather and seemed comfortable in his mother‘s care.
The maternal grandmother, with whom six of the children were residing,6 when informed that Shailyn was seeking additional reunification services, responded that it was not a good idea and said she did not want the children returned to their mother, who she believed did not have the mental capacity to care for all eight children.
The investigator also met individually with each of the seven children. Malick, then 12 years old, said he wanted to live with his father, but indicated
In a last minute information report filed shortly after its response to the
5. The Section 388 Hearing and the Court‘s Order Denying Shailyn‘s Petitions
At the hearing on March 8, 2021 Shailyn‘s counsel summarized Shailyn‘s efforts to achieve and maintain her sobriety (her change of circumstance) and, as to the second step of the
Responding to Shailyn‘s request, Malick‘s counsel stated additiоnal reunification services would not be in Malick‘s best interest. Minors’ counsel for the other children argued the court lacked the authority to grant additional reunification services because the case was “well beyond the period of
The Department argued, although Shailyn had made some progress, she had not established changed circumstances: “She has a long history of unresolved substance abuse. And while she‘s currently on the path to sobriety, her sobriety is very much in the early stages. She‘s not yet established a lengthy period of sobriety.” The Department also reminded the court there had been a sustainеd petition for another of Shailyn‘s children (Mariah) due to Shailyn‘s substance abuse and Shailyn‘s parental rights as to that child had been terminated. Concurring in the argument of minors’ counsel, the Department noted Shailyn was “well past this period of reunifying” and asserted the court could not make a finding that immediate return of the children would be their best interest.
The court found Shailyn had proved changed circumstances and congratulated her on her efforts: “You are doing all the things you need to do to make yourself well and whole for your children.”8 The court then stated it agreed with minors’ counsel‘s interpretation of the court‘s authority: “Counsel is right with respect to the time period for family reunification services, the time to reinstate those services for the majority of your children has expired. So the court would have to make a determinаtion of whether or not it‘s suitable to place the children with you at this time.” The court concluded immediate return to Shailyn was not in the children‘s best interest based on the concerns expressed by various individuals who had contact with Shailyn, including the maternal grandmother (as reflected in the Department‘s response to the
After the court announced its ruling, minors’ counsel advised all parties on the record that she was asking the court to assess the maternal grandmother for legal guardianship, rather than adoption, as the permanent plan for her six clients. Counsel explained, because of pandemic-related and other delays in the case, as well as Shailyn‘s ongoing progress, the children had built “a rеal
Shailyn filed a timely notice of appeal from the order denying her
DISCUSSION
1. Section 388 and the Standard of Review
When, as in this case, a
We generally review the denial of a
2. The Juvenile Court Erred in Concluding It Lacked the Authority To Order Additional Reunification Services
a. Pre-permanent plan reunification services
Notwithstanding these time limits,
Except for this further limited exception at the 18-month review hearing, the juvenile court must “order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (
b. Post-permanent plan reunification services
The juvenile court believed it was precluded from granting additional family reunification services to Shailyn because services authorized by
A
The Marilyn H. Court‘s recognition of a parent‘s right to utilize
In sum, the juvenile court erred in concluding that, prior to a properly noticed
3. Shailyn Did Not Forfeit Her Challenge to the Juvenile Court‘s Order
Although Shailyn‘s
The Department, of course, is correct that forfeiture rules apply in dependency cases. As the Supreme Court explained in In re S.B. (2004) 32 Cal.4th 1287, “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been made but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so they may be corrected. [Citation.] [1] Dependency matters are not exempt from this rule.” (Id. at p. 1293, fn. omitted; accord, In re Aaron S. (2015) 235 Cal.App.4th 507, 521.) But forfeiture generally applies when a party did not alert the juvenile court that he or she objected to an order being made or when a party failed to ask in the juvenile court for relief being sought on appeal, not when, as here, the court has denied а party‘s request for an order on a legally incorrect ground. For example, in In re S.B. the issue was whether the mother‘s failure to object to the court‘s order granting the legal guardian authority to determine visitation forfeited the issue. (In re S.B., at p. 1291.) Similarly, in In re Aaron S. the court of appeal held a nonminor dependent had arguably forfeited his challenge to the absence of a transition plan by failing to request one or to object to termination of jurisdiction without the statutorily required plan. (In re Aaron S., at p. 521.)
The three dependency cases cited by the Department in support of its forfeiture argument are substantially the same. In In re Dakota S. (2000) 85 Cal.App.4th 494, 501, the court of appeal held, by failing to raise the issue in the juvenile court, the parent had forfeited the argument a guardianship order should be reversed because the child services agency had not prepared, and the juvenilе court had not considered, a statutorily required preliminary assessment of the foster parent as a prospective guardian. In In re Anthony P. (1995) 39 Cal.App.4th 635, 641, the court held the absence of any objection to the court‘s failure to provide for sibling visits forfeited the issue on appeal. And in In re Richard K. (1994) 25 Cal.App.4th 580, 590, the court concluded the parent‘s submission on the child service agency‘s report and recommendation without any evidence or argument forfeited the claim on appeal that the disposition order adopting that recommendation was not supported.
The Department cites no authority for its position a party who petitions the court for an order based on pertinent statutory authority (here,
Additionally, “application of the forfeiture rule is not automatic.” (In re S.B., supra, 32 Cal.4th at p. 1293.) Although the Supreme Court has cautioned that an appellate court‘s discretion to consider forfeited claims in dependency cases should be used rarely and with special care, it has approved the exercise of that discretion in cases presenting an important question of law. (Ibid.) Whether the juvenile court may grant a
4. The Juvenile Court‘s Error Was Not Harmless
The harmless error doctrine applies in dependency cases. (In re Jesusa V. (2004) 32 Cal.4th 588, 624; In re Celine R. (2003) 31 Cal.4th 45, 59-60; In re M.M. (2015) 236 Cal.App.4th 955, 963.) “This practice derives from
Without addressing In re Marilyn H., supra, 5 Cal.4th 295, the Department contends what it calls the juvenile court‘s “alleged error” in asserting it could not order additional reunification services was harmless because Shailyn could not demonstrate an additional six months of services would be in the children‘s best interest. In support the Department argues, as reflected in its response to the
Entirely omitted from the Department‘s effort to explain why the juvenile court‘s legal error/abuse of discretion was harmless is any reference to the fact that Shailyn was not seeking an immediate return of any of the children—the apparent focus of concern about her ability to care for all eight children and the basis for the juvenile court‘s ruling—but rather additional reunification services to promote a slow transition back to her care. And although Shailyn sought further services with respect to all seven children subject to this dependency proceeding, the court in properly evaluating her petitions would be able to assess the potential benefit of additional services as it related to each of them (excluding Mаlick, for example, or focusing on De‘Asia, who expressed a desire to live with her mother). As discussed, under
In addition, the record shows—and the Department does not discuss—not only that Shane was in Shailyn‘s custody and, according to the dependency investigator‘s report, doing well, but also that, based on ongoing visitation and her own improvement, Shailyn had built such a strong relationship with the children by March 2021 that minors’ counsel believed legal guardianship, rather than adoption, was the preferred permanent plan for her clients.
Based оn this record, the juvenile court‘s failure to evaluate Shailyn‘s actual request for reunification services, rather than for an immediate return of all seven children to her custody, was not harmless. On remand the juvenile court is to conduct a new
The order denying Shailyn‘s
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.