In Re Monique S.
- Area
- dependency
- Panel
- Daniel J. Kremer (author)
Analysis
The trial court terminated the mother's parental rights and referred the child for adoption after setting a selection and implementation hearing at the six-month review based on the mother's failure to contact and visit the child. The Court of Appeal affirmed, holding that the trial court had jurisdiction to set the hearing at six months under Welfare and Institutions Code section 366.21, subdivision (e), and that the order was reviewable on appeal from the final judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Jurisdiction to set section 366.26 hearing at six-month review“We interpret the Legislature's placement of the comma after the word "unknown" to create an additional ground for setting the section 366.26 hearing, where "the parent has failed to contact and visit the child," regardless of the initial grounds for removal.” | de novo | correct | agree with court The appellate court correctly applied the plain language of the statute and the California Rules of Court to determine that the failure to contact and visit a child for six months is an independent ground for setting a section 366.26 hearing, regardless of the initial basis for removal. This interpretation is supported by the structure of the statute and the implementing rules, and aligns with the legislative intent to provide stability for dependent children. |
Reviewability of the order setting the section 366.26 hearing“In light of our Supreme Court's recent decision in In re Matthew C. (1993) 6 Cal.4th 386 [24 Cal. Rptr.2d 765, 862 P.2d 765], Dorina's challenge to the order setting the section 366.26 hearing is reviewable on appeal from the final order terminating her parental rights.” | de novo | correct | agree with court The appellate court correctly applied the holding in In re Matthew C., which established that orders setting section 366.26 hearings are not immediately appealable but are reviewable on appeal from the subsequent final judgment. This resolves the procedural question raised by the Department and allows the court to address the merits of the mother's challenge. |
Authorities
- relied: In re Matthew C. (1993) 6 Cal.4th 386 — An order setting a section 366.26 hearing is not immediately appealable but is reviewable on appeal from the subsequent final judgment.
The appellate opinion: sound — The opinion is sound because it correctly applies the controlling Supreme Court precedent regarding reviewability and provides a well-reasoned statutory interpretation supported by the California Rules of Court. The court also adequately addresses the factual record to support the conclusion that the mother's lack of contact justified the early hearing.
The juvenile court, at the six-month review, found Dorina had failed to contact and visit Monique, set a section 366.26 hearing under section 366.21, subdivision (e), and later terminated Dorina's parental rights and referred Monique for adoption. The Court of Appeal held the referral order was reviewable on appeal from the termination judgment under In re Matthew C., construed section 366.21(e) to permit a six-month referral for failure to contact and visit regardless of the original ground for removal, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order at the six-month review hearing setting a section 366.26 selection and implementation hearing under section 366.21, subdivision (e), based on the mother's failure to contact and visit the child, although the child was removed under section 300(b) rather than (g)“We interpret the Legislature's placement of the comma after the word "unknown" to create an additional ground for setting the section 366.26 hearing, where "the parent has failed to contact and visit the child," regardless of the initial grounds for removal.” | de novo | correct | unsure The statutory text is genuinely ambiguous: the clause can be read so that both the 'whereabouts unknown' and 'failed to contact and visit' alternatives are conditioned on an initial subdivision (g) removal, which is Dorina's reading. The court resolved the ambiguity by comma placement, by rule 1460(f)(2)(A), and by the policy of stability for dependent children, but it did not confront the principle that a Judicial Council rule cannot enlarge a statute, and it relied in a footnote on a dissent in a depublished opinion. The result is defensible and consistent with the dependency scheme's purposes, but the reasoning is thin enough that I cannot say the court was clearly right or point to a specific misapplied authority. |
Rejection of the mother's due process claim that she was entitled to a twelve-month hearing and a minimum of twelve months of reunification services“On this record we cannot see how Dorina was harmed by any purported curtailing of services offered.” | de novo | correct | agree with court Because the court construed section 366.21(e) to authorize the six-month referral, there was no statutory entitlement to twelve months of services, and the record shows Dorina refused all services, never requested visits, and attended only one hearing. The court's alternative harmlessness analysis is well supported by the facts recited and answers the due process argument even if the statutory reading were debatable. |
Order terminating parental rights at the section 366.26 hearing upon findings that Monique was adoptable and no circumstance made termination detrimental“Under these circumstances the court properly terminated Dorina's parental rights and referred Monique for adoption.” | unclear | correct | agree with court Dorina did not separately attack the adoptability or detriment findings; her only challenge was to the antecedent referral order. Once that order was upheld, affirmance of the termination followed, and the recited facts (ten months in foster care, healthy and developing normally, no parental contact) support the findings. |
Authorities
- relied: In re Matthew C. (1993) 6 Cal.4th 386 — An order setting a section 366.26 hearing is not immediately appealable under section 366.26, subdivision (k), but may be reviewed on appeal from the subsequent final judgment terminating parental rights.
The appellate opinion: sound with gaps — The court correctly applied Matthew C. to reach the merits and reached a defensible construction of section 366.21(e) reinforced by a persuasive harmlessness analysis on a record of total parental non-engagement. It skipped, however, the stronger counter-reading of the statutory text, did not address whether a rule of court may add a ground not clearly in the statute, and cited a dissent from a depublished opinion, which it should not have relied on.
Opinion
In re MONIQUE S., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
v.
DORINA S., Defendant and Appellant.
Court of Appeals of California, Fourth District, Division One.
*678 COUNSEL
Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.
Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Terri L. Richardson, Deputy County Counsel, for Plaintiff and Respondent.
*679 Gary S. Plavnick, under appointment by the Court of Appeal, for Minor.
OPINION
KREMER, P.J.
Dorina S. appeals after the court terminated parental rights to her dependent daughter, Monique S., and referred Monique for adoptive placement under Welfare and Institutions Code[1] section 366.26. Dorina contends the court lacked jurisdiction to set the selection and implementation hearing (§ 366.26) at the six-month review hearing (§ 366.21), rather than after a twelve-month hearing. The department of social services (Department) responds the appeal should be dismissed because the referral order may be reviewed only by petition for a writ. Alternatively the Department argues the order was proper and supported by substantial evidence. Counsel for the minor on appeal agrees with Dorina that the court lacked jurisdiction to set the section 366.26 hearing after six months, but concurs with the Department that the order is not now reviewable and asks the termination of parental rights be affirmed.
In light of our Supreme Court's recent decision in In re Matthew C. (1993) 6 Cal.4th 386 [24 Cal. Rptr.2d 765, 862 P.2d 765], Dorina's challenge to the order setting the section 366.26 hearing is reviewable on appeal from the final order terminating her parental rights. We conclude the court was authorized to set the section 366.26 hearing after only six months of reunification, based on Dorina's failure to contact and visit her child. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Dorina brought newborn Monique to Palomar Medical Center after giving birth at home on August 3, 1992. At the time Dorina was 18 years old and had a 16-month-old daughter, Jessica.[2] She was unemployed and received aid to families with dependent children funds. Although she lived with her boyfriend[3] and his mother, Dorina hid her pregnancy and received no prenatal care. Monique tested positive for amphetamines and needed intensive care for respiratory distress. Dorina admitted she used drugs during the pregnancy. She told social workers she wanted to relinquish Monique for adoption.
*680 Department filed a dependency petition on August 6, 1992, alleging Monique was at risk due to Dorina's drug use (§ 300, subd. (b)), and Monique was without any provision for support because Dorina did not want her. (§ 300, subd. (g).)[4] At the detention hearing the following day, the court detained Monique in a foster home and authorized liberal visitation for Dorina. The court also ordered Dorina be provided with counseling and drug testing.
Social workers interviewed Dorina on August 14. Dorina denied having a drug problem and refused services. She wanted Monique to be adopted.
Dorina attended a readiness hearing on August 18 and entered a denial on the petition. At that time she told the court she wished to relinquish Monique.
The court declared Monique a dependent on September 1 under section 300, subdivision (b), due to Dorina's drug use. The section 300, subdivision (g), allegation was dismissed. Dorina did not attend the hearing. The court ordered the Department to provide reunification services to Dorina if she requested them. Monique continued to be placed in a foster home.
Several days later Dorina told her social worker she changed her mind and did not want to relinquish the baby. However, Dorina made no effort to visit Monique. Social workers spoke frequently with Dorina over the next several months. Dorina canceled three out of five home visits. The other two visits were canceled by the social worker.[5] On February 3, 1993, Dorina said she wanted to discuss with her boyfriend whether she would participate in reunification. At that time Dorina was ambivalent and did not want to relinquish Monique or commit to reunification. On February 24, Dorina told *681 her social worker she would "like to see the baby, but had not changed her mind about relinquishing [Monique.]"
Dorina did not attend the six-month review hearing on February 26. The court found there was not a substantial probability Monique could be returned to Dorina's custody and Dorina had been offered reasonable services. The court also found Dorina had failed to contact and visit Monique for the last six months and set a hearing under section 366.26 to select a permanent plan for Monique.
Dorina did not attend the selection and implementation hearing on June 24. The court found Monique was adoptable and no circumstances existed to make termination of Dorina's parental rights a detriment to Monique. The court then terminated Dorina's parental rights. This appeal followed.
DISCUSSION
Section 366.26, subdivision (k), provides "An order by the court directing that a hearing pursuant to this section be held is not an appealable order, but may be the subject of review by extraordinary writ." (1) Our Supreme Court recently interpreted this language to mean the order setting a section 366.26 hearing is not an immediately appealable order, but is subject to review on appeal from a subsequent final judgment. (In re Matthew C., supra, 6 Cal.4th 386.) In other words, a parent aggrieved by a referral order, and the findings underlying that order, may seek review by petition for a writ at the time of the order and also may seek review by way of appeal after the section 366.26 hearing.
Dorina did not seek writ review of the referral order. (2) She now argues the court deprived her of due process because she was entitled to "a fair twelve-month hearing" and a constitutional challenge may by raised at any time in the proceedings. Parenthetically she claims she was entitled to a minimum of 12 months of services.
The court relied on section 366.21, subdivision (e), to set a selection and implementation hearing six months after Monique was declared a dependent, based on Dorina's failure to contact and visit her child. That section prescribes the subject matter and findings of a six-month review hearing and provides in part: "If the minor was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If the court finds by clear and convincing *682 evidence that the parent has been convicted of a felony indicating parental unfitness, the court may schedule a hearing pursuant to Section 366.26 within 120 days." Dorina interprets the section to read the court may set a section 366.26 hearing after six months of no parental contact only for those children initially removed under subdivision (g) (the parent's whereabouts are unknown). She points out Monique was removed under section 300, subdivision (b) (neglect).
We interpret the Legislature's placement of the comma after the word "unknown" to create an additional ground for setting the section 366.26 hearing, where "the parent has failed to contact and visit the child," regardless of the initial grounds for removal.[6] Our interpretation is supported by California Rules of Court,[7] rule 1460(f)(2)(A), which states the court may set the section 366.26 hearing at the six-month review if "(i) The child was removed under section 300(g) and the court finds by clear and convincing evidence that the parent's whereabouts are still unknown; or [¶] (ii) The court finds by clear and convincing evidence that the parent has not had contact with the child for six months; or [¶] (iii) The court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness."
Rules relating to the juvenile court are "designed to implement the purposes of the juvenile court law by promoting uniformity in practice and procedure and by providing guidance to judges, referees, attorneys ... and others participating in the juvenile court." (Rule 1400(b).) "Insofar as these rules are substantially the same as existing statutory provisions relating to the same subject matter, these rules shall be construed as restatements of those statutes.... [¶] Insofar as these rules may add to existing statutory provisions relating to the same subject matter, these rules shall be construed so as to implement the purposes of the juvenile court law." (Rule 1400(c)(1)&(2).) We conclude rule 1460(f)(2)(A) restates section 366.21, subdivision (e), providing three discrete grounds for setting a selection and implementation hearing after six months.
Moreover, our interpretation allowing the selection and implementation hearing to be set after six months of a parent's failure to contact and visit a child is consistent with the intent of the dependency scheme to provide stability for abused, neglected and exploited minors. There is no purpose served in continuing to offer services where a parent, absent extenuating circumstances, makes no effort to reach out to his or her child for six months *683 in the dependency process. On this record we cannot see how Dorina was harmed by any purported curtailing of services offered. Dorina refused all services, never asked to see Monique and failed to attend all but one hearing. She made absolutely no effort to reunify with her child and at best expressed an ambivalence toward her. At the time of the section 366.26 hearing, Monique had lived in foster care for 10 months, was happy, healthy and developing normally. Under these circumstances the court properly terminated Dorina's parental rights and referred Monique for adoption.
DISPOSITION
Judgment affirmed.
Todd, J., and Froehlich, J., concurred.
NOTES
[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] Jessica is not a dependent of the juvenile court.
[3] Dorina's boyfriend is not Monique's father. The alleged natural father, Moustapha A., wanted Monique to be adopted.
[4] Section 300 provides in relevant part:
"Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:
".... .... .... .... .... .... ....
"(b) The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor, ... or by the inability of the parent or guardian to provide regular care for the minor due to the parent's or guardian's mental illness, developmental disability, or substance abuse....
".... .... .... .... .... .... ....
"(g) The minor has been left without any provision for support; the minor's parent has been incarcerated or institutionalized and cannot arrange for the care of the minor; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent is unknown, and reasonable efforts to locate the parent have been unsuccessful."
[5] The social worker canceled one visit due to emergency. The reason for the other cancellation is not in the record.
[6] We are in accord with Justice Moore's dissent in In re Joshua G. (Cal. App.) (G011938), ordered depublished July 1, 1993.
[7] All rule references are to the California Rules of Court.
Cites, in this corpus
- San Diego County Department of Social Services v. Dorina S. No. D019242 · 1993-12-29
- In Re Matthew C. S025565 · 1993-12-06
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