In re ADRIANNA P. Persons Coming Under the Juvenile Court Law. San Diego County Health

• Decision Date: 20 August 2008
• Docket Number: No. D052400.,D052400.
• Citation: 166 Cal.App.4th 44,81 Cal.Rptr.3d 918
• Court: California Court of Appeals Court of Appeals
• Parties: In re ADRIANNA P. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Appellant, v. Esther M. et al., Defendants and Respondents; Adrianna P. et al., Appellants.

166 Cal.App.4th 44

81 Cal.Rptr.3d 918

In re ADRIANNA P. et al., Persons Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency, Plaintiff and Appellant,

v. Esther M. et al., Defendants and Respondents;Adrianna P. et al., Appellants.

No. D052400.

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

Aug. 20, 2008.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Dana C. Shoffner and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Appellant.

Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Respondent Esther M.

William Hook, under appointment by the Court of Appeal, for Defendant and Respondent Maurice G.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Respondent Andrew P.

Susan Bookout, under appointment by the Court of Appeal, for Minors and for Appellants, Adrianna P., M.G., Maurice G., Jr., and Q.G.

HALLER, J.

The San Diego County Health and Human Services Agency (Agency) and the minor children, Adrianna P., M.G., Maurice G., Jr., and Q.G. (collectively, the children) appeal from orders directing the Agency to provide reunification services to Adrianna's presumed father, Andrew P., and to Maurice G., the presumed father of M.G., Maurice G., Jr., and Q.G.

Today we decide two factually related cases that concern the grant and denial of family reunification services to the parents of the four dependent children. In the related nonpublished case, In re Adrianna P. et al. (D052314, Aug. 12, 2008) 2008 WL 3331915, we discuss Esther's appeal from orders removing the children from her custody and denying her reunification services. Here we focus on appellants' challenges to orders directing the Agency to provide reunification services to Andrew and Maurice. To summarize our holdings and conclusions in their proper context, we briefly note the circumstances that gave rise to the issues presented in this appeal.

From May 2002 to June 2007, Adrianna and M.G. (together, girls) were dependents of the juvenile court due to Esther's physical abuse of Adrianna and domestic violence between Esther and Maurice. Adrianna's father, Andrew, was incarcerated for a lengthy period on felony drug charges. The Agency offered Andrew prison-based services and provided services to Maurice to address domestic violence and substance abuse issues. At the 18-month review hearing, the court terminated the fathers' services. About a year later, the court established a guardianship for the girls with Maurice's mother (grandmother) and retained jurisdiction.

Two years after the guardianship was established, the court returned Adrianna and M.G. to Esther's custody. Maurice, Jr., was then almost 18 months old, and Q.G. was born several months later. The family received family maintenance services for six months without any reported problems. In June 2007 the court terminated jurisdiction. Three weeks later the Agency initiated dependency actions on behalf of all four children after it determined Esther was physically abusing Adrianna and M.G. At that time, Maurice was in jail. Andrew remained incarcerated.

The Agency recommended the court deny services to the parents and proceed to a permanency plan hearing under the bypass provisions of Welfare and Institutions Code section 361.5, subdivisions (b) and (e)(1). ¹ The court determined there was no “clear legal direction” as to the appropriate procedure to follow when the court had denied a noncustodial parent's request for placement under section 361.2, subdivision (a), and it was not clear the bypass provisions under section 361.5 applied under the circumstances. Over the objections of the children and the Agency, the court ordered the Agency to provide services to Andrew and Maurice.

Appellants contend the court erred when it determined the bypass provisions under section 361.5 did not apply to a noncustodial parent. They further contend the court erred when it did not deny services to Andrew and Maurice under section 361.5, subdivision (b)(10), and to Andrew under section 361.5, subdivision (e)(1).

As we shall explain, we conclude the juvenile court erred as a matter of law when it determined section 361.5 did not authorize the court to bypass services to a noncustodial parent who had requested and had been denied placement of his or her child under section 361.2, subdivision (a). Despite the court's erroneous legal conclusion, we further conclude the court did not abuse its discretion when it ordered the Agency to provide reunification services to Maurice, and we affirm that order. We further conclude the court erred when it ordered the Agency to provide reunification services to Andrew, and we remand the case to the court with directions to vacate its order as to Andrew.

FACTUAL AND PROCEDURAL BACKGROUND

Esther and Maurice began living together when Esther was pregnant with Andrew's daughter, Adrianna, who was born in October 1996. Esther and Maurice's daughter, M.G., was born in June 1998.

The record indicates Andrew had some contact with Adrianna during Adrianna's early years. However, starting in 2000, Andrew committed a series of drug-related offenses that resulted in his commitment in August 2002 to the California Department of Corrections and Rehabilitation for a term of eight years eight months.

In May 2002 the Agency detained the girls after Esther struck five-year-old Adrianna with a belt and injured her. The court removed the girls from parental custody and ordered the Agency to offer or provide reunification services to Andrew, Maurice and Esther.

The Agency referred Maurice to a domestic violence program, counseling and substance abuse treatment for cannabis dependence and abuse. Maurice initially participated in services and visited the children almost every day. However, toward the end of 2002, Maurice stopped participating in treatment and his visits with the girls became less frequent.

The Agency sent Andrew a prison packet in March 2003.

During fall 2003, after the Agency recommended the court terminate reunification services, Maurice reengaged in services and visited the girls more frequently.

In January 2004 the court terminated services to Andrew and Maurice, and continued services to Esther. In December the court approved a permanent plan of guardianship for the girls with grandmother. Maurice continued to visit the girls several times each week.

The record suggests Maurice and Esther lived together from time to time between 1996 and 2007. Maurice and Esther had a son, Maurice, Jr., in August 2005, and a daughter, Q.G., in March 2007. Maurice was convicted in October 2006 on a felony drug charge. In April 2007 he was again arrested on drug charges. Maurice pleaded guilty to one count of possession of rock cocaine, and was sentenced to 180 days in jail, less credits, and three years' probation.

The court placed the girls with Esther under a plan of family maintenance services in January 2007, and terminated dependency jurisdiction on June 4. Several weeks later, the Agency learned Esther had hit Adrianna with a belt on a number of occasions, causing bruises. The Agency detained all four children with grandmother and filed petitions under section 300, subdivisions (a) and (j).

The Agency recommended the court remove the children from Esther's custody, deny reunification services to the parents and set a section 366.26 hearing. Andrew requested legal custody of Adrianna. Maurice asked the court to place M.G., Maurice, Jr., and Q.G. in his care.

The contested jurisdiction and disposition hearing was held on October 16, November 28 and December 17, 2007, and January 7, 2008. The court admitted into evidence Agency reports from 2006 and 2007. Social worker Jonathan Ogle testified in person and by stipulation. The court also accepted the stipulated testimony of Maurice and Maurice's probation officer.

Briefly, the evidence before the court showed, at maximum, Andrew would be incarcerated until 2011, although it was possible he might be eligible for release as early as 2009. Adrianna was reluctant to have any contact with Andrew except through written correspondence.

After Maurice was released from jail in 2007, ² he completed an anger management class and attended parenting classes. Maurice participated in a substance abuse treatment group while waiting to enter a more intensive substance abuse treatment program. He tested negative for drugs in October. Maurice attended classes on weekdays and visited the children on weekends.

After removing the children from Esther's custody, the court determined it would be detrimental to the children to place them with their fathers under section 361.2, subdivision (a). The court noted section 361.2 did not explicitly authorize the court to deny reunification services to a noncustodial parent whose request for placement of his or her child had been denied. The court stated it was not clear whether it could bypass services to Maurice and Andrew under section 361.5, subdivision (b)(10), and declined to “exercise [the] option” to deny services to Andrew under section 361.5, subdivision (e)(1). The court stated it would “err in an abundance of caution” and ordered the Agency to provide services to Andrew and Maurice.

DISCUSSION

I. The Issues Raised on Appeal Are Not Moot

Andrew, Maurice and Esther (respondents) contend the issues raised on appeal have been rendered moot because Andrew and Maurice have received services for more than six months. ³ Respondents argue because the ordered services cannot be rescinded, this court cannot grant effective relief and should therefore dismiss the appeal as moot. ( In re Christina A. (2001) 91 Cal.App.4th 1153, 1158, 111 Cal.Rptr.2d 310.)

Appellants assert this action, if moot, involves a matter of continuing public interest that is likely to recur, and this court should exercise its inherent discretion to resolve the issue. ( In re Robert A. (1992) 4...