Marilyn H., In re

• Decision Date: 03 June 1993
• Docket Number: No. S025592,S025592
• Court: California Supreme Court
• Parties: , 851 P.2d 826 In re MARILYN H., et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. DEBBIE H., Defendant and Appellant.

Page 544

19 Cal.Rptr.2d 544

5 Cal.4th 295, 851 P.2d 826

In re MARILYN H., et al., Persons Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. DEBBIE H., Defendant and Appellant.

No. S025592.

Supreme Court of California,

In Bank.

June 3, 1993.

[851 P.2d 827] [5 Cal.4th 298] Kimball J.P. Sargeant, under appointment by the Supreme Court, Davis, for defendant and appellant.

B.C. Barmann, County Counsel, and Stacy L. Inman, Deputy County Counsel, Bakersfield, for plaintiff and respondent.

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Terri L. Richardson and Gary C. Seiser, Deputy County Counsel, San Diego, as amici curiae on behalf of plaintiff and respondent.

Lucretia Hoke Parks, Davis, under appointment by the Supreme Court, for Minors.

PANELLI, Justice.

This is one of several cases we have taken to resolve issues involving juvenile dependency proceedings pursuant to Welfare and Institutions Code section 300 et seq. ¹ The issue we address in this case is whether the statutory framework gives the juvenile court discretion to consider returning the minors to the parent at the section 366.26 selection and implementation hearing, and, if not, whether it denies due process. ² The Court of Appeal held that section 366.26 does not authorize consideration of reunification as an option but that due process is satisfied because the issue may be raised by filing a petition pursuant to section 388 for modification or termination of jurisdiction based on changed circumstances. We agree and affirm the judgment.

FACTS

Dependency petitions were filed in the Kern County Juvenile Court alleging that Marilyn H., age five, and Richard H., age seven, (minors) came within subdivision (a) of section 300 in that they would suffer serious physical harm or illness by the willful and negligent failure of Debbie H. (mother) to provide adequate food, clothing, shelter or medical treatment for them. The petitions alleged that the family had been living in a 14-foot trailer in the open desert with no electricity or running water. The trailer had several broken windows, debris covered the floor, and there were holes in the trailer shell. A large gas barbecue had been used for heat inside the trailer. Both minors were infested with lice. Minors were detained and placed in a foster home.

At the dispositional hearing in March 1989, minors were adjudged dependent children of the juvenile court and were ordered into foster home placement. Reunification services for mother were ordered. Visits with the paternal grandparents were also ordered. In May 1989, minors were placed with their paternal grandparents.

At the 12-month review hearing on March 7, 1990, the juvenile court continued the out-of-home placement and extended reunification services an additional 5 months.

On July 25, 1990, at the 18-month review hearing, the juvenile court found that there had been only moderate compliance with the reunification plan, that return of the minors to mother would create a substantial risk of detriment to the minors, and that reasonable services had been provided. Reunification services were therefore terminated. Pursuant to section 366.26, the juvenile court ordered a selection and implementation hearing to be held within 120 days and ordered the county adoption agency to prepare an assessment of minors.

On January 9, 1991, the section 366.26 hearing was held to determine appropriate placement for minors. At that time mother requested the juvenile court to consider returning minors to her custody based on changed circumstances. Since the last hearing, she and her live-in boyfriend had completed programs that were part of the reunification plan as to their child Bobby, who had been born during the pendency of these proceedings. Bobby had been adjudged a dependent of the juvenile court in July 1989 and had been returned to mother's custody in November 1990 upon his parents' completion of the reunification plan. After discussion, the juvenile court concluded that return to parental custody was not an option at a section 366.26 hearing. According to the court, the only options available at that hearing were whether minors were to be adopted, placed in long-term foster care, or placed under guardianship. The court noted that mother had a remedy for seeking return of the minors by filing a petition pursuant to section 388 for modification based on changed circumstances. ³

The juvenile court then proceeded with the section 366.26 selection and implementation hearing, finding by clear and convincing evidence that minors were not adoptable. Without terminating parental rights, it appointed the paternal grandparents as guardians of minors and ordered monthly visitation with mother. The juvenile court also terminated juvenile court dependency jurisdiction over the minors. ⁴

Mother appealed the guardianship order and judgment. The Court of Appeal, as previously mentioned, affirmed the judgment, holding that the placement options set forth in section 366.26 are exclusive and that section 366.26 does not violate due process when read in conjunction with section 388, which adequately affords children and parents the opportunity to be heard and present new evidence.

ISSUES

Mother contends that the Court of Appeal erred in concluding that the section 366.26 hearing did not include the option of returning minors to her custody. She argues that the court had the inherent discretion to reconsider its prior order referring the case to permanency planning and to consider returning minors to mother. Mother further contends that to the extent the statutes preclude consideration of return to parental custody at the section 366.26 hearing, those provisions violate her and her children's due process rights under the federal and state Constitutions.

Scope of Section 366.26 Hearing

Section 366.26 provides in pertinent part:

"(b) At the hearing, which shall be held in juvenile court for all minors who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these minors, shall review the report as specified in Section 361.5, 366.21, or 366.22, shall indicate that the court has read and considered it, shall receive other evidence that the parties present, and then shall do one of the following:

"(1) Permanently sever the parent or parents's rights and order that the child be placed for adoption.

"(2) Without permanently terminating parental rights, identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the minor for a period not to exceed 60 days.

"(3) Without permanently terminating parental rights, appoint a legal guardian for the minor and issue letters of guardianship.

"(4) Order that the minor be placed in long-term foster care, subject to the regular review of the juvenile court."

Mother argues that section 366.26, when read in conjunction with section 366, permits consideration of return to the parents before ordering a permanent placement. ⁵ Section 366 provides:

"(a) 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, as calculated from the date of the original dispositional hearing, until the hearing described in Section 366.25 or 366.26 is completed. The court shall determine the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and shall project a likely date by which the child may be returned to the home or placed for adoption or legal guardianship.

"(b) Subsequent to the hearing periodic reviews of each child in foster care shall be conducted pursuant to the requirements of Section 366.3 and 16503."

Section 366 was added to the Welfare and Institutions Code in 1982 as part of Senate Bill No. 14, which was enacted to bring California into compliance with federal law aimed at reducing the emphasis on foster care and encouraging efforts to find permanent homes for children by either making it possible to return them to their families or by placing them in adoptive homes. (Stats.1982, ch. 978, p. 3539; see Comment, Senate Bill 14: California Foster Drift Solutions Create New Problems for the Physically Abused Child (1984) 18 U.S.F.L.Rev. 301, 302-303.) Senate Bill No. 14 changed the emphasis from removal of children from the home to attempts to keep at-risk children within the home by requiring welfare departments to provide in-home services. The standard for removal from parental custody was changed from the best interest of the child to clear and convincing evidence of substantial danger to the physical or emotional health of the child. (§ 361.) The status of children who were removed was subject to review at least once every six months under section 366, and section 366.25 was added to require permanency planning for children who could not be returned to parental custody within twelve months. (Stats.1982, ch. 978, § 27, pp. 3540-3541.)

Under the 1982 legislation, section 366 was the mechanism by which dependent children obtained periodic review of their status prior to the permanency planning hearing described in section 366.25. Such reviews could also be combined with the permanency planning hearing by virtue of the express language of section 366.25, subdivision (a), which provided that the permanency planning hearing "may be combined with the six months' review as provided for in Section 366." At the permanency planning hearing the juvenile court was required to first determine whether the child could be returned to parental custody. If not, then the court was to determine whether there was a substantial probability of return within six months, and, if there were, the court...