L. A. Cnty. Dep't of Children & Family Servs. v. C.P. (In re J.P.)

• Citation: 15 Cal.App.5th 789,223 Cal.Rptr.3d 426
• Decision Date: 26 September 2017
• Docket Number: B281438
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE J.P., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. C.P., Defendant and Appellant.

15 Cal.App.5th 789

223 Cal.Rptr.3d 426

IN RE J.P., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.C.P., Defendant and Appellant.

B281438

Court of Appeal, Second District, Division 5, California.

Filed September 26, 2017

Joseph T. Tavano, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the County Counsel, Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.

DUNNING, J.^*

The mother of a dependent child in a group home placement filed a Welfare and Institutions Code section 388¹ petition seeking, inter alia, reappointment of counsel. The juvenile court scheduled a hearing on the petition, but did not appoint counsel to represent mother at the hearing. At the section 388 hearing, the juvenile court ruled on mother's petition, but again did not appoint counsel to represent mother. The juvenile court's error in failing to timely appoint counsel for mother resulted in a miscarriage of justice, and we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

J.P. is the youngest of nine children. All his siblings were involved in dependency proceedings at one time or another, and two found adoptive homes several years before J.P. was born. J.P. was born in 2006 and has been in the juvenile dependency system almost his entire life. From 2007 to May 2011, he remained with C.P. (mother) under a family maintenance plan. He was removed from mother's home in May 2011 after she was arrested for assaulting her boyfriend with a deadly weapon. The court appointed counsel to represent mother at the detention hearing. After a contested jurisdiction and disposition hearing in March 2012, the court sustained the petition's allegations, denied mother reunification services, issued a three-year restraining order limiting mother's contact with J.P. to monitored visits, and directed the Department of Children and Family Services (DCFS) to address permanency planning and implementation under section 366.26 at the next hearing.²

Adoption was originally identified as the permanent plan for J.P., but his mental and emotional health never stabilized to the point where a long-term foster home, let alone a prospective adoptive home, could be identified. Between November 2011 and July 2014, J.P. attempted suicide and had numerous involuntary psychiatric hospitalizations. He suffered from enuresis and encopresis, was quick to anger and tantrum, and was prescribed a regimen of psychotropic medications.

Legal guardianship was the next identified permanent plan, and the court appointed J.P.'s foster parent as his legal guardian in November 2013. After J.P. made another suicide attempt, the guardian—believing she could not provide a safe home for J.P.—requested termination of the guardianship. The most recent permanent plan called for long-term foster care with a nonrelative. J.P. has resided in a group home for more than three years, since his removal from the legal guardian's care in May 2014. In J.P.'s more than six years in out-of-home placements, mother's visits with him have remained monitored.

On May 7, 2014, the juvenile court conducted a detention hearing on the section 387 subsequent petition to remove J.P. from the home of his legal guardian. Neither mother nor mother's counsel was present, but the court relieved mother's counsel. Nothing in the court minutes or the DCFS report for that hearing provides an inkling as to why mother's counsel was relieved.³

Mother still attended most of J.P.'s juvenile court hearings after counsel was relieved. She consistently visited J.P. in his group home.

On November 3, 2016, mother filed a section 388 petition requesting reappointment of counsel, family reunification services, and extended and liberalized visits with J.P., including "unmonitored off ground visits and overnight visits." At the time she filed the petition, she was entitled to two, one-hour monitored visits per month at the group home. DCFS did not have the discretion to liberalize the visitation schedule. Mother attached five letters of support to her petition: three from individuals at J.P.'s group home who were regularly interacting with mother and child; one from the counselor at her methadone maintenance program; and one from J.P.'s oldest sibling, who was interested in exploring J.P.'s long-term placement with him.

A review hearing had previously been scheduled for November 8, 2016. On that date, a "Last Minute Information" report was filed, summarizing interviews by J.P.'s Court Appointed Special Advocate (CASA) with the child's group home therapist and family specialist. Both individuals noted mother had been visiting every other week for the past six months. Group home staff felt it would benefit the child to see mother more; they relied on mother "to help console [J.P.] when he is having an outburst;" they noted mother's "influence on [J.P. was] supportive and in alignment with his treatment plan" and she presented "a calming influence" on him. The CASA noted every time mother visited, J.P. "states ... he wants to see his mom more and wish[es] it could be unmonitored."

The juvenile court began the November 8, 2016 hearing by asking counsel for DCFS if he wished to be heard concerning mother's petition. DCFS's counsel, who acknowledged he had not seen the section 388 petition, recited events concerning mother going back five years, suggested mother's visits were responsible for J.P.'s "[deterioration] to the point where [the child] could not stay in a foster home" and stated DCFS "has very strong beliefs that ... any further ... visitation would be detrimental to [J.P.] at this time without a full hearing." Without asking for the views of minor's counsel, the juvenile court agreed to set a hearing. At that point, the following exchange occurred:

"[Minor's Counsel]: Would the court be inclined to appoint counsel for mother based on her having a 388 hearing.

"[DCFS's Counsel]: The court's been denying that.

"The Court: I'm not going to appoint counsel. [¶] We'll set it over for a hearing."

The section 388 hearing was conducted as scheduled on December 8, 2016. J.P. was present with his CASA. The social worker's report for the section 388 hearing reiterated the positive reports from J.P.'s group home concerning mother's increased involvement with the child and acknowledged the increased contact was beneficial to him. The report criticized mother's minimization of the event that led to J.P.'s removal from her home more than five years earlier as well as mother's denial of extensive DCFS involvement. The social worker recommended a family reunification plan and increased visitation.

The juvenile court initially acknowledged to mother and J.P. the progress it saw in the current report was "very exciting." The court announced it would grant the section 388 petition, order six months of reunification services, and continue with monitored visits with DCFS discretion to liberalize. J.P.'s counsel immediately asked for unmonitored visits on the group home premises. The juvenile court responded, "Good idea," but then DCFS's counsel asked to be heard and requested that J.P. leave the courtroom.

It is not necessary to recite the arguments made by DCFS's counsel, but by the time he asserted mother needed a psychiatric evaluation to determine whether she should be on medication, minor's counsel appropriately interrupted and asked the juvenile court to "please make a ruling to appoint mother a lawyer." The juvenile court responded, "I'm thinking about it as we're talking," but did not appoint counsel for mother, did not continue the hearing, and did not order unmonitored visits on the group home premises. Instead, the juvenile court advised, "we'll have an attorney who represented you in the past get in touch with you. She's not here now."⁴ When mother asked the juvenile court commissioner to repeat the attorney's name, he replied, "You're an experienced litigant in my courtroom."

Minor's counsel also objected on mother's behalf to the "plethora of services" the juvenile court ordered for mother and asked "that if the court is going to order her into all these services [I request] that we put it over, allow her to have counsel to represent her." Before the juvenile court could address this request, DCFS's counsel interrupted to argue "these are the services that the court would have been asked to order if she [were] given services [years ago]."

J.P.'s CASA then advised that the child wished to address the court. When J.P. was brought back into the courtroom, the court told him, "Your mom filed papers today. I want more time. I want her to ultimately get more involved in your life and look to a future possibly of getting back with your mom. I told her that I'm going to allow that to happen and she's going to start to have more contact with you and do some things and hopefully we'll come back and see how things are progressing. ..." The juvenile court then said to J.P.: "Now I want to hear from you. What do you want to say?" J.P.'s response: "I want to go home."

Mother timely appealed, challenging the juvenile court's denial of her requests to reappoint counsel before the section 388 hearing and for unmonitored visits with J.P.

During the pendency of this appeal, we asked counsel to advise this court, "Whether, and if so to what extent, the juvenile court has made any further orders respecting [mother's] visitation with J.P. following the order made at the December 8, 2016 hearing. Appellate counsel for mother and DCFS responded. DCFS's counsel provided copies of orders for the following dates, and we take judicial notice of them: January 24, 2017, April 25, 2017, and June 8, 2017.

The January 24, 2017 minutes reflect that appointed counsel advised she may have a conflict and a section 388 petition filed by mother was denied without a hearing. On ...