M.V. v. Superior Court

equally appears that . . . the social services agency in Mexico has not been cooperating with anybody here, in this country, to verify the extent to which mother is participating or addressing the service plan that was ordered by this court. It appears that she’s not getting reasonable services, [ft] Now, I realize that that’s not the control of the agency here, who has no control over what [the Mexican agency] does for her down there, but to the extent that there is going to be an argument mother is not making substantial progress and is unable to show a likelihood of return within six months, I’ve got to think that this is not due to mother’s lack of efforts . . . . [ft] . . . [I]t seems like, given the dramatic changes and upheaval in her life, being deported back to her home state and the speed with which she got engaged in services and her efforts to document them .... It seems like mother is really making substantial progress and substantial effort at trying to regain custody of the child.”

The court responded to counsel’s argument by setting forth what it believed to be the relevant legal standard. “THE COURT: Counsel, the finding that the court has to make is that there is a substantial probability of return; is that true? [ft] [COUNSEL FOR MOTHER]: Yes. [ft] THE COURT: And the code defines what that means, [ft] Have you looked at those subsections?” “THE COURT: It says that ‘The parent or guardian has consistently and regularly contacted and visited the child’ is the first of the three criteria. The second one is that ‘The parent or legal guardian has made significant progress in resolving the problems that led to the child’s removal from the home,’ and the last one is the (c) section, which indicates that ‘the parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well being and special needs.’ [ft] What evidence do I have before me ... to suggest that all three of those have been satisfied?”

After hearing additional argument from counsel for all parties, the court refused to extend reunification services and instead set a hearing to decide whether to terminate mother’s parental rights. The court first explained it found the services provided by SSA to be reasonable: “Counsel’s comments regarding services, certainly, [it is concerning] that the mother finds herself in a position where it’s difficult for her to receive services; however, ... the mother has failed to maintain regular contact with the social worker here . . . and to that extent, there seems to be some difficulty with the mother, actually, engaging in services, even if adequate services are available to her.” The court continued: “The court does note that based on what I have before me, that the court cannot make a finding that there is a substantial probability of return within the next six months, and as a result, will order that reunification services be terminated at this time, [ft] The matter is set for a contested 366.26 hearing.”

The minute order generated from the hearing states: “Court finds pursuant to sec. 366.21(e) W&I Code that return of child to parents would create a substantial risk of detriment to the physical or emotional well being of the child based on parents’ failure to regularly participate in and complete the service plan. [f] Court finds reasonable services have been provided or offered to the parent(s)/guardian. [f] The court cannot find that there is a substantial probability of return within six months, [f] Court finds pursuant to sec: 366.21(e) that the child was under the age of three on the date of initial removal and the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. A hearing pursuant to sec. 366.26 is in the best interests of the child based on the reports and recommendations provided by the social services agency. [][] Court orders reunification services to parent(s) terminated: [][] Court orders pursuant to sec. 366.21(e) that a hearing be held within 120 days pursuant to sec. 366.26.”

DISCUSSION

Mother timely filed a petition for writ of mandate (Cal. Rules of Court, rule 8.452), claiming the court applied the wrong legal standard at the six-month review and challenging the court’s factual findings for lack of substantial evidence.

Legal Standards Utilized at Six-month Reviews and 12-month Reviews

Before explaining mother’s argument in detail, it is necessary to provide a brief summary of relevant dependency law. “.[F]amily preservation is the first priority when dependency proceedings are commenced.” (In re Lauren Z. (2008) 158 Cal.App.4th 1102 , 1112 [ 70 Cal.Rptr.3d 583 ].) To that end, “[w]hen a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836 , 843 [ 69 Cal.Rptr.3d 96 , 172 P.3d 402 ] (Tonya M.); see § 361.5, subd. (a).)

In cases like the instant one, where the child is less than three years old and reunification services have been ordered, “the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months.” (§ 361.5, subd. (a)(3), italics added.) Whereas services are presumptively provided for 12 months to children over the age of three and their parents (§ 361.5, subd. (a)(1)), the presumptive rule for children under the age of three on the date of initial removal is that “court-ordered services shall

not exceed a period of six months from the date the child entered foster care” (§ 361.5, subd. (a)(2); see In re Christina A. (2001) 91 Cal.App.4th 1153 , 1160-1161 [ 111 Cal.Rptr.2d 310 ]). The “ ‘unique developmental needs of infants and toddlers’ ” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606 , 612 [ 71 Cal.Rptr.2d 668 ]) justifies a greater emphasis on establishing permanency and stability earlier in the dependency process “ ‘in cases with a poor prognosis for family reunification’ ” (id. at p. 611).

“The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months . . . .” (§ 366, subd. (a)(1).) Pursuant to section 366.21, subdivision (e), the court is required at the initial six-month review to return any dependent child to “the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ... The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” Mother does not challenge the court’s finding that her son should not be returned to her custody at the time of the six-month review. It is uncontested mother failed to participate regularly and make substantive progress in court-ordered treatment programs during the first six months of her service plan.

Instead, mother asserts her reunification services should have continued until the 12-month permanency hearing and the court should not have set a .26 hearing to terminate her parental rights. The third paragraph of section 366.21, subdivision (e), requires a specialized inquiry at tile six-month review for children like mother’s son, who are “under the age of three years on the date of the initial removal” and are not being returned to the custody of their parents at that time. For such dependent children, if “the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e), italics added.)

Thus, there are two distinct determinations to be made by trial courts applying the third paragraph of section 366.21, subdivision (e). First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a .26

evidence that the parent has failed to participate regularly and make substantive progress in any court-ordered treatment plan, unless the court finds a substantial probability that the child may be returned within 6 months or within 12 months of the date the child entered foster care, whichever is sooner, or that reasonable services have not been offered or provided. [<][] In order to find a substantial probability of return within the applicable time period, the court must find all of the following: H] (i) The parent or guardian has consistently and regularly contacted and visited the child; [f] (ii) The parent or guardian has made significant progress in resolving the problems that led to the removal of the child; and [f] (iii) The parent or guardian has demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health, and special needs.” (Cal. Rules of Court, rule 5.710(f), italics added.)

Presumably, the three-factor test for substantial probability of return presented in California Rules of Court, rule 5.710(f)(1)(E) was taken from a substantively identical test in section 366.21, subdivision (g). Subdivision (g) provides, in relevant part: “If the time period in which the court-ordered services were provided has met or exceeded the time period set forth in [section 361.5, subdivision (a)] and a child is not returned to the custody of a parent or legal guardian at the permanency hearing held pursuant to subdivision (f), the court shall do one of the following: [f] (1) Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian .... For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following: Q] (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child, [f] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [(ft] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g), italics added.)

Thus section 366.21, subdivision (g), purports to apply only after the child has not been returned to the parent at a hearing conducted pursuant to section

probability the child may be returned to the parent, in which case the court must continue the case to the 12-month hearing.

Furthermore, subdivisions (e) and (g)(1) of section 366.21 present distinct legal standards: subdivision (e) asks whether there is a substantial probability the child may be reunited with the parent by the 12-month review; subdivision (g)(1) asks whether there is a substantial probability the child will be reunited with the parent by the 18-month review. (See Tonya M., supra, 42 Cal.4th at pp. 844—848.) As observed by our Supremé Court, there is a different “operable standard” in play at each of the hearings. (Id. at p. 848.) Simply applying subdivision (g)(1) at a six-month review as if the court were making findings on “substantial probability” at a 12-month review is legal error. We do not think the Legislature intended to countermand these different operable standards by using the word “section” in its preface to the subdivision (g)(1) test, rather than specifically referencing subdivisions (f) and (g). Moreover, the statute expressly conditions all of the court’s options under subdivision (g), including the subdivision (g)(1) test, on a finding first being made at the 12-month permanency hearing that the child will not be returned to the parent or legal guardian. (§ 366.21, subd. (g) [“If ... a child is not returned to the custody of a parent or legal guardian at the permanency hearing held pursuant to subdivision (f), the court shall do one of the following”].)

The more difficult question, however, is precisely what the “operable standard” of “substantial probability” at a six-month review should be. Tonya M. did not provide an answer to this question (beyond simply quoting the language of the statute). (Tonya M., supra, 42 Cal.4th at p. 848.) California Rules of Court, rule 5.710(f)(1)(E), suggests the substantive factors considered in the “substantial probability” component of the inquiry remain unchanged—sensibly, the three factors by which a parent should be judged to be on the road to reunification (maintaining consistent and regular contact with the child, making progress in addressing the issues that led to dependency, and demonstrating the potential to be a good parent) are the same at both the six-month review and the 12-month review. A court certainly does not err by considering at the six-month review evidence pertaining to the factors identified in section 366.21, subdivision (g)(1), and California Rules of Court, rule 5.710(f)(1)(E).

However, for the purposes of this case, we see two crucial differences between the “substantial probability” inquiry required at the six-month review

the six-month stage only when ‘parental unfitness is so well established that there is no longer “reason to believe that [a] positive, nurturing parent-child relationship!] exist[s]” [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished.’ ” (Daria D. v. Superior Court, supra, 61 Cal.App.4th at p. 613.)

Application to the Trial Court’s Ruling

The court erred by ending its inquiry into substantial probability of return with the determination there was insufficient evidence to support a finding that “all three” of the factors set forth in section 366.21, subdivision (g)(1) “have been satisfied.” The court was not required to find the existence of all three factors to continue reunification services to a 12-month review. The court was entitled to consider any other evidence, including mother’s extenuating circumstances, in mitigation of mother’s relative lack of evidence of satisfying all three factors (in particular, her inability to visit her son and follow her prescribed case plan in light of her incarceration, detainment by the INS, and deportation). The court’s ruling indicates it exercised discretion to set a hearing terminating parental rights. The minute order states: “A hearing pursuant to sec. 366.26 is in the best interests of the child based on the reports and recommendations provided by the social services agency.” However, had the court found a substantial probability of return pursuant to section 366.21, subdivision (e), the court would not have had discretion to set such a hearing or terminate reunification services. And the court believed it lacked the discretion to find a probability of return unless the three factors in section 366.21, subdivision (g)(1) were satisfied. The court’s belief was mistaken.

The error was not harmless. Mother is no longer incarcerated (indeed, she was free in Mexico more than a month prior to the six-month review). There is no evidence in the record indicating she is addicted to illegal drugs. She has made significant efforts to demonstrate her desire to continue parenting her son. It is reasonably probable mother could have obtained a more favorable result had the court applied the correct legal standard at the six-month review. (See In re Justin L. (1987) 188 Cal.App.3d 1068 , 1077-1078 [ 233 Cal.Rptr. 632 ] [harmless error standard applies to dependency proceedings].) We grant mother’s petition for writ of mandate.

Substantial Evidence

The remaining issue raised by the parties is whether there is substantial evidence supporting the court’s order. We need not reach this issue, as we grant the writ of mandate requested by mother based on legal error.

DISPOSITION

Let a peremptory writ of mandate issue directing the court to vacate its order of June 26, 2008, and to conduct a new hearing pursuant to section 366.21, subdivision (e), in conformity with this opinion. In the interests of justice, this decision is final 10 days after its filing. (Cal. Rules of Court, rule 8.264(b)(3).)

Moore, Acting P. J., and Aronson, J., concurred.