Judith P. v. Superior Court

• Decision Date: 26 September 2002
• Docket Number: No. B156495.,B156495.
• Citation: 102 Cal.App.4th 535,126 Cal.Rptr.2d 14
• Parties: JUDITH P., Petitioner, v. The SUPERIOR COURT of the County of Los Angeles, Respondent. Los Angeles County Department of Children and Family Services, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

126 Cal.Rptr.2d 14

102 Cal.App.4th 535

JUDITH P., Petitioner, v. The SUPERIOR COURT of the County of Los Angeles, Respondent Los Angeles County Department of Children and Family Services, Real Party in Interest.

No. B156495.

Court of Appeal, Second District, Division 3.

September 26, 2002.

Review Denied December 18, 2002.

Petition for a writ of mandamus. Irwin H. Garfinkel, Temporary Judge.^* Petition granted.

Nancy Rabin Brucker, Los Angeles, for Petitioner.

Law Offices of Kenneth P. Sherman, Marissa Coffey for Minors.

No Appearance for Respondent.

Lloyd W. Pellman, County Counsel and Lois D. Timnick, Deputy County Counsel, for Real Party in Interest.

CROSKEY, Acting P.J.

In this dependency case, Judith P. challenges the order of the trial court made at a scheduled hearing under Welfare and Institutions Code section 366.21, subdivision (f),¹ (1) terminating her right to reunification services and (2) denying her request for a continuance and the setting of the matter for contested hearing. Judith P. is the mother of three children, Chelsea (approximately 14 years old), Courtney (approximately 11 years old) and Casey (approximately five and one-half years old).

The trial court made its order in accordance with the recommendations of the status report prepared and submitted by the Department of Children and Family Services (DCFS), a copy of which had not been served upon Judith P. (hereafter, Mother) or her counsel until the morning of the hearing. This is contrary to the express mandate of section 366.21, which requires that the status report be served "[a]t least 10 calendar days" prior to the hearing date. We hold that the failure to provide timely service of such report constituted a denial of due process that compels reversal and remand of the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND²

Mother apparently suffers from mental illness, and should be, but at the time the minors were removed from her custody, was not, taking psychotropic medication. In addition, she had been a welfare recipient, and, because of failure to comply with certain requirements, had her benefits cut. She and her children came to the attention of DCFS after she was arrested for shoplifting about $700 worth of jewelry at a department store. She had enlisted Courtney's assistance in removing the security tags from the items to be stolen, and, according to Courtney, Mother had once before had Courtney help her steal items.

In addition to making Courtney steal, Mother also had failed to make sure Courtney attended school. Both Courtney and Casey had been dependents of the court during the 1997 to 1998 school year, at which time Courtney's attendance was acceptable. In 1998, after the children had ceased to be dependents, Courtney's school attendance was atrocious. Mother also appeared unable to control Courtney; Mother reported that when Mother went to sleep, Courtney would sneak out of the house to spend time on the street with her friends.

No relatives were available to take the minors. The maternal grandparents already were legally responsible for taking care of Mother's oldest child, Chelsea, and did not feel able to take responsibility for the other two minors as well. Therefore, minors were placed with a foster family who had already raised four children. The placement went very well; the minors began calling the foster parents mom and dad, their school attendance and work improved dramatically, and after a while the foster parents wanted to adopt them.

As noted above, although the detention hearing was in October 2000, it was not until February 2001 that the jurisdiction and disposition hearing was held, apparently because Mother had been in jail. In February 2001, the minors were declared dependents of the court, custody was placed with DCFS, and DCFS was ordered to give Mother reunification services and monitored visitation. Mother was to attend counseling, a parenting course, and take psychotropic medication if prescribed.

A six-month status review hearing pursuant to section 366.21 was held August 15, 2001.³ The status report for that hearing indicated that "[a]t this time, the [social worker] cannot ascertain whether [M]other has completed any of the tasks. Phone calls and attempts to meet with [M]other have proved unfruitful. The [social worker] has had only two very brief phone calls with the mother. The phone calls came when the mother contacted the [social worker] to ask a specific question, and then [M]other hung up. Mother did state that she has completed the parenting class at Southern California Counseling Center, but she has not provided the [social worker] with a copy of the parenting certificate. The court ordered that [M]other was to have a psychological evaluation and to be assessed for psychotropic medication. The [social worker] has no knowledge that [M]other has complied with the counseling or with the assessment for medication. The [social worker] has given the mother referrals for counseling." The report also indicated that Mother had not regularly visited with the minors, and that she had told the social worker she was rarely at home, a fact confirmed by the apartment manager when DCFS made an attempted home visit. In addition, when the social worker attempted to confirm that Mother was in counseling, she was unable to do so without the name of the therapist and a consent form from Mother; Mother couldn't give the name or phone number of the psychiatrist or therapist to the social worker.

No change in placement was recommended. The children continued to do very well in the foster home. Mother continued to fail to make regular visits to them. At the August 15 hearing the trial court found Mother was in partial compliance with the case plan, and continued family reunification services. It set the 12-month status review hearing for February 13, 2002, and ordered DCFS to submit a section 366.21, subdivision (f), status report on or before that hearing.

Notably, and of particular relevance to the problem raised by this petition, the juvenile court also set a sanctions hearing to be held if the status report for the February 1, 2002 hearing was not filed at least two days before the hearing. The juvenile court's expectations of DCFS visa-vis the timeliness of its status report were quite modest, because section 366.21 actually requires status reports to be filed with the court and to be provided to parents, legal guardians, and counsel for minors at least 10 calendar days before a review hearing.

When the February 13, 2002 hearing was held, the operative status report had not been filed with the court until the day of the hearing. Furthermore, because the status report was dated February 9, a Saturday, the only reasonable inference is that it was not even available to provide to the parties, including counsel for Mother and the minors, until the following Monday, February 11—only two days before the hearing. Thus, there is nothing in the record to indicate that DCFS ever attempted to provide this report to the court, Mother or the minor at least 10 days before the February 13 hearing, as required by section 366.21, subdivision (c).⁴

The February 13 status report, just as had the August 15, 2001 report, indicated that DCFS did not know if Mother was in compliance with the case plan or not. DCFS recommended that family reunification services be terminated, that Mother be required to sign consent forms for the release of information on court-ordered counseling, and that visitation still be monitored.

Specifically, DCFS's status report stated that "[Mother] has not maintained contact with DCFS, nor has she provided any proof that she has complied with a single component of her case plan that includes parenting classes, individual therapy and compliance with psychotropic medication. In addition, [Mother] has not maintained consistent contact with her children. Therefore, [Mother] has not benefited from reunification services and returning the children to her care would be detrimental to their wellbeing."

The hearing was set for February 13, 2002, at 8:30 a.m. The hearing did not begin until 2:39 p.m. At the beginning of the hearing, Mother was not present, although she had been in the hallway before the hearing began. Mother's attorney stated, "My client was here all morning. I do not see her out there. I do not know whether she had another appointment or tried to find me. I don't know. I'm going to be making some requests on her behalf."⁵

The dependency court noted that it had read the report, the report was received in evidence, and that "notice has been given as required by law." It then asked some questions about a proposal to send the children to live with a maternal aunt in Louisiana, refused to order an ICPC (a review of an out-of-state possible placement) based on what it termed "flimsy information," and then began the hearing on the section 366.21, subdivision (f), matter.

Mother's attorney then stated that Mother had told counsel that she had completed her parenting classes, was in individual counseling, and was seeing a psychiatrist for psychotropic medication, as well as a psychologist—all the things required by the case plan, other than visitation with the children. Counsel stated that Mother had not relayed this information to the social worker because the worker had changed so many times that Mother did not know the name of the current social worker.⁶ Mother's counsel also represented that Mother was no longer living at her former address, so it appeared that Mother did not get in touch with DCFS, and DCFS did not get in touch with Mother.

Mother's counsel then asked for a continuance of the section 366.21, subdivision (f), hearing or that the court simply wait until the section 366.22 hearing, which already was scheduled for early April, so as to allow time for the social worker to interview Mother and find out exactly how much of the reunification plan Mother...