Imperial Cnty. Dep't of Soc. Servs. v. T.S. (In re M.S.)

• Citation: 254 Cal.Rptr.3d 162,41 Cal.App.5th 568
• Decision Date: 11 October 2019
• Docket Number: D075278
• Court: California Court of Appeals
• Parties: IN RE M.S., a Person Coming Under the Juvenile Court Law. Imperial County Department of Social Services, Plaintiff and Respondent, v. T.S., Defendant and Appellant.

41 Cal.App.5th 568

254 Cal.Rptr.3d 162

IN RE M.S., a Person Coming Under the Juvenile Court Law.Imperial County Department of Social Services, Plaintiff and Respondent,

v.T.S., Defendant and Appellant.

D075278

Court of Appeal, Fourth District, Division 1, California.

Filed October 11, 2019

Tungsten Legal and Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant.

Henderson and Ranasinghe and Kelly Ranasinghe, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

In this Welfare and Institutions Code section 300¹ dependency proceeding involving M.S., a minor, T.S., her mother (Mother), appeals an order at M.S.'s jurisdiction and disposition hearing denying Mother reunification services based on the juvenile court's finding that Mother's whereabouts were unknown pursuant to section 361.5, subdivision (b)(1), and setting a section 366.26 permanency planning hearing. Mother also appeals the court's subsequent order at the section 366.26 hearing terminating her parental rights. On appeal, Mother contends: (1) there is insufficient evidence to support the court's finding at the jurisdiction and disposition hearing that her whereabouts were unknown within the meaning of section 361.5, subdivision (b)(1), and, based thereon, it erred in denying her reunification services; and (2) the court also erred at the jurisdiction and disposition hearing by setting a section 366.26 hearing after denying reunification services to her under section 361.5, subdivision (b)(1), and by subsequently terminating her parental rights at the section 366.26 hearing. Because, as explained below, we agree with Mother's contentions, we reverse the orders and remand the matter to the juvenile court with directions that it, inter alia, order that Mother be provided with a minimum of six months of reunification services.

FACTUAL AND PROCEDURAL BACKGROUND

In 1993, Mother was born in Los Angeles. In July 2017, Mother gave birth to M.S. at an El Centro hospital. At the time of M.S.'s birth, both Mother and M.S. tested positive for amphetamines. A subsequent test showed that M.S. was also positive for methamphetamines. The Imperial County Department of Social Services (Department) received a report regarding Mother and M.S.'s positive amphetamines tests. Mother told a Department social worker that D.V. (Father) was M.S.'s father and the father of her three other children. Mother stated she had a seven-year relationship with Father, but did not live with him and was currently separated from him. Mother stated she was unemployed and lived with her parents and her three other children at her parents' Mexicali, Mexico house, which they owned mortgage-free. Mother apparently provided the social worker with the address of her Mexicali residence (Mexicali Address). Mother stated she had smoked methamphetamine since she was 23 years old, smoked it every three days, and had smoked it the day before M.S.'s birth. When E.A., Mother's friend, arrived to take Mother home, E.A. gave the social worker her telephone number at which Department could leave messages for Mother. M.S. was detained from Mother and placed in foster care.

The following day, Department left a message for Mother at the telephone number given it by E.A. Mother returned Department's call the next day and stated she wanted to be present at M.S.'s detention hearing and would require transportation services.

On August 4, Department filed a section 300 juvenile dependency petition for M.S., alleging she had suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of the failure or inability of Mother to supervise or protect her adequately and by the inability of Mother to provide regular care for her due to Mother's substance abuse within the meaning of section 300, subdivision (b)(1). The petition also alleged Father's whereabouts were currently unknown and M.S. had been left without an adequate caregiver and provisions for support within the meaning of section 300, subdivision (g). On August 4, the juvenile court clerk served Mother with notice of the August 7 detention hearing by mailing a copy of the petition and notice to the Mexicali Address.

In its August 7 detention report, Department stated that on August 2 it sent an e-mail to Sistema para El Desarrollo de la Familia Integral (DIF) requesting that it "work jointly in reference to the current investigation with [Mother] as she stated that she resides in Mexicali, Mexico."² Department provided DIF with information regarding M.S.'s dependency proceeding, the Mexicali Address, and information regarding Mother's children. Also on August 2, Department called the Mexican Consulate to inquire about the procedures for conducting a home assessment for the family as Department needed to make contact and assess the safety and well-being of the other three children who currently resided in Mexicali, Mexico. A Mexican Consulate representative informed Department that it needed to request a socio-economic study on the family in writing and to fax the request to the Consulate and it would then forward the request to DIF. On August 4, Department faxed its written request to the Mexican Consulate.

On August 7, the juvenile court held M.S.'s detention hearing. Mother appeared at the hearing and was appointed counsel to represent her. On the court's inquiry, Department confirmed that Mother had provided it with her parents' contact information. Mother's counsel asked that M.S. be placed with her maternal grandparents. On behalf of Mother, he denied the petition's allegations. After considering Department's detention report, the court found that Department had made a prima facie showing that M.S. is a child described under section 300 and that placement of M.S. in the parental home would be detrimental to her. It removed M.S. from parental custody, ordered Department to assess and evaluate her placement with relatives in Mexicali, and adopted all of the recommended findings and orders set forth in Department's detention report, including that reunification services be provided. Department was ordered to facilitate supervised visits by Mother with M.S. a minimum of three times per week. The court also noted that Mother had filed a form JV-140, which listed her mailing address as a postal box in Calexico, California. The court advised Mother to immediately notify it in writing if she changed her mailing address. The court then set a jurisdiction hearing for August 28.

Department served Mother with notice of the August 28 jurisdiction hearing by mailing a copy of the notice to the Mexicali Address. In its August 23 jurisdiction report, Department stated it had scheduled an interview with Mother at its office, but she called that day and stated she was running late. She did not show up for the interview. Department had since unsuccessfully attempted to contact her by telephone. Department's social worker had yet to contact Mother for the purpose of providing her with referrals for predisposition reunification services. Department recommended that the juvenile court find the petition's allegations were true and that M.S. was a child described under section 300, subdivisions (b) and (g). On August 28, the court vacated the scheduled jurisdiction hearing and instead set a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) hearing for September 13 to determine whether Mexico intended to take jurisdiction over the case.

Department served Mother with notice of the September 13 UCCJEA hearing by mailing a copy of the notice to the Mexicali Address. On September 13, the court held the UCCJEA hearing, spoke by telephone with a Mexicali family court judge, and found that that court would not be asserting jurisdiction over M.S.'s case. The juvenile court then asserted jurisdiction over the case and set a jurisdiction and disposition hearing for September 18.

On September 18, Department stated that it needed to serve M.S.'s parents by letters rogatory and requested that the court continue the jurisdiction and disposition hearing until December 11. The court found good cause for the continuance and set the jurisdiction and disposition hearing for December 11.

Department served Mother with notice of the December 11 jurisdiction and disposition hearing by mailing a copy of the notice to the Mexicali Address. On December 11, Mother appeared with her counsel. Department's counsel noted her presence, stating:

"Your Honor, [Mother] is present. Although I thought she resided in Mexicali, I guess [Mother] is present. I thought she was one of the parties for which we would need to effectuate service through the letters rogatory process. But she's present and has an attorney.

"[Father], however, is -- the only information we have is that he's in Mexico. We don't even know where. We did send the letters rogatory request."

Department stated that it could not proceed with the jurisdiction and disposition hearing at that point despite Mother's presence because of its lack of information regarding Father. The court noted that Mother had made a general appearance in the case and was present at the hearing. Department requested a continuance of the jurisdiction and disposition hearing so that it could serve Father with letters rogatory. After Department represented that it had been taking three to six months to effect service by letters rogatory, the court continued the jurisdiction and disposition hearing until June 5, 2018 (i.e., a date almost six months later).³ The court personally gave Mother notice of that hearing and ordered her to return then. Mother confirmed that she was to return on the date of the continued hearing. Mother stated that Father was currently living with her and their other three children at her parents' house at the Mexicali Address, but Father did not have the right to cross the border for the continued hearing. Mother confirmed the accuracy of the Mexicali Address that Department had.⁴

On May...