In re Marilyn A.
| Decision Date | 05 March 2007 |
| Docket Number | No. B195282.,B195282. |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re MARILYN A. et al., Minors. Bridget A. et al., Petitioners, v. The Superior Court Of Los Angeles County, Respondent. Los Angeles County Department of Children and Family Services et al., Real Parties in Interest. |
Martha A. Matthews, Los Angeles, for Petitioners Bridget A. and Christopher A.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Real Party Interest.
Jenny Cheung for Marilyn A., Real Party in Interest.
Cameryn Schmidt and Carol B. Gasa-Kittler for Joseph and Xochilt E., Real Parties in Interest.
Absent extraordinary circumstances, at the 18-month permanency review hearing held pursuant to Welfare and Institutions Code section 366.221 the juvenile court either orders the return of a dependent child to parental custody or terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26. (§ 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(1) & (3);2 see In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788, 42 Cal.Rptr.2d 200.) If the juvenile court determines there would be no substantial danger to the child if he or she were returned home provided there is continued supervision by a social worker and the ongoing provision of reasonable support services to preserve the family, is such supervised return an option available to the court? Or are the only alternatives returning the child and terminating dependency jurisdiction, on the one hand, or terminating reunification services and setting a section 366.26 hearing, on the other hand?
In this case the Los Angeles County Department of Children and Family Services (Department) recommended at Bridget and Christopher A.'s 18-month hearing that the two children and their three siblings be returned to their mother, Xochitl C, but that the juvenile court retain jurisdiction and family maintenance services be provided to ensure the children's safety. The juvenile court rejected the Department's recommendation, stating it had no statutory authority to order the children returned home without also terminating its jurisdiction. Following entry of the court's order returning the children to their mother and terminating its jurisdiction, Bridget and Christopher, who had objected to the juvenile court's refusal to consider the Department's proposed "middle option," petitioned this court for a writ of mandate directing the juvenile court to vacate its order terminating jurisdiction and to issue a new order setting a hearing pursuant to section 364 to determine whether continued court supervision is necessary to ensure their safety in the home of their mother.
We grant the requested relief. In determining whether to return a dependent child in an out-of-home placement to the custody of his or her parent at the six-month review hearing (§ 366.21, subd. (e)), the juvenile court properly considers if providing family maintenance services to the child and parent will facilitate the child's return to, and safe maintenance in the home. Although the juvenile court in this case correctly observed there is no express authority in either statute or rule for a similar order returning the child to his or her parent's custody and ordering family maintenance services at, the 12-month (§ 366.21, subd. (f)) or 18-month (§ 366.22) permanency review hearings, neither is there anything in the statutory scheme, including in section 364, that precludes the court in an appropriate circumstance from entering such an order at those hearings. In fact, this "middle option" appears to have been contemplated by the Legislature, as reflected in section 361.5, subdivision (a), and is fully consistent not only with the broad-ranging authority of the juvenile court to make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child" (§ 362, subd. (a)), but also with the fundamental policies underlying the dependency system.
Bridget (now 14 years old) and Christopher (now 13 years old) and their three siblings were initially named in a dependency petition filed on April 22, 2004 by the Department pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect;) and (j) (abuse of sibling). The petition, as amended and sustained on June 7, 2004, alleged Antonio E., Bridget and Christopher's stepfather, physically abused Christopher and two of his siblings (Joseph E. and Xochitl E.) and their mother, Xochitl C, failed to take appropriate action to protect her children, thereby placing all five children at risk; Xochitl C. herself physically abused Joseph E. and Marilyn A., placing not only those two children but also their siblings at risk; Antonio E. and Xochitl C. have a history of domestic violence in which they have assaulted each other in the children's presence; Antonio E. has a history of substance abuse and drug-related criminal activity and is a current user of alcohol and illicit drugs, which renders him incapable of providing regular care for the children; and Xochitl C. knew of Antonio E.'s substance abuse problem and failed to take appropriate action to protect the children.3 The children were placed with their maternal grandmother, who came to live with the children in the family home. (Because the maternal grandmother's own home was too small to accommodate all the children, she moved into the family home to care for them; Antonio E. and Xochitl C. moved out of the home.)
In connection with the 12-month review hearing held on June 6, 2005 (§ 366.21, subd. (f)), the Department reported Xochitl C. and Antonio E. had complied with the case plan requirements concerning parenting and domestic violence classes, counseling, alcohol and drug abstinence and visitation and recommended they be allowed to return to the family home. The court agreed and entered home-of-parent orders for the children to be returned to the physical custody of Xochitl C. and Antonio E. under the continued supervision of the Department. The court scheduled a section 364 review hearing for December 5,2005.
On November 18, 2005 the Department filed a subsequent petition (§ 342); and the children were again detained (and placed with their maternal grandmother in the family home with their parents required to leave) based on an allegation Xochitl C. had threatened Antonio E. with a loaded gun in the children's presence because she was afraid he was molesting their six-year-old daughter, Xochitl E. Christopher had attempted to separate his mother and Antonio E. by stepping between the two of them; he managed to take the gun from his mother.
On January 26, 2006 the court sustained portions of the supplemental petition, terminated its prior home-of-parent orders, ordered the children suitably placed with Department discretion to place them with any appropriate relative except the parents and directed the Department to provide only six additional months of family reunification services to Xochitl C. and Antonio E., who were allowed monitored visitation with the children and ordered to participate in counseling and to complete a 52-week domestic violence program.
In connection with the review hearing on July 27, 2006 (held pursuant to § 366.22 on the original petition and § 366.21, subd. (e), on the supplemental petition), the Department reported both parents were visiting the children consistently and had enrolled, albeit belatedly, in the required domestic violence program. No conjoint counseling had been initiated. The Department also reported Bridget and Christopher's visits with Xochitl C. were going well and both children wanted to return to their mother's care. The Department recommended termination of family reunification services because the parents had received the maximum amount (18 months) of services permitted by statute and had made only limited progress on the case plan. Because of notice issues, the court continued the review hearing to September 6, 2006. The Department's addendum report for the September 6, 2006 review hearing stated Xochitl C. was making good progress in the domestic violence program but, due to problems with scheduling and costs, the parents and children still were not participating in conjoint counseling. The Department again recommended termination of family reunification services, but also recommended Xochitl C. be permitted to have unmonitored visits with the children in the family home. The court granted unmonitored visits to Xochitl C. on condition Antonio E. not be present during the visits.
The review hearing was continued two more times, first to October 6, 2006, and then to November 6, 2006 for a contested hearing. An addendum report for the November 6, 2006 hearing states Xochitl C. was having unmonitored visits with the children, including overnight and weekend visits, that were going well with no concerns. Xochitl C. was making good progress in the domestic violence program (although Antonio E. had stopped attending), and the family was participating in conjoint counseling. The Department's report indicates the caseworker had discussed with Xochitl C. the possibility of her returning to the family home. The Department assessed the risk if this were to be allowed as "moderate," and stated the risk would be reduced further if mother continued to attend her counseling and domestic violence programs. Accordingly, the Department recommended the court enter a home-of-parent-mother order (that is, that the court allow the mother to live in the family home with the children, who were already there with their maternal grandmother) and order family maintenance services...
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