Matthew C., In re

• Decision Date: 06 December 1993
• Docket Number: No. S025565,S025565
• Citation: 24 Cal.Rptr.2d 765,6 Cal.4th 386,862 P.2d 765
• Court: California Supreme Court
• Parties: , 862 P.2d 765 In re MATTHEW C., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DEBORAH C., Defendant and Appellant.

Page 765

24 Cal.Rptr.2d 765

6 Cal.4th 386, 862 P.2d 765

In re MATTHEW C., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DEBORAH C., Defendant and Appellant.

No. S025565.

Supreme Court of California,

In Bank.

Dec. 6, 1993.

Carole Greeley, Fairfield, Bradley Bristow, California Public Defenders Ass'n, Sacramento, for appellant Deborah C.

Linda S. Macy, Deputy County Counsel, Modesto, for respondent Stanislaus County Dept. of Social Services.

Steven B. Solomon, Burlingame, for minor Matthew C.

ARABIAN, Justice.

In this case, Deborah C. appeals certain juvenile court orders, including an order terminating her parental rights to her son, Matthew C. Prior to the Welfare and Institutions Code section 366.26 hearing at which Deborah's parental rights were terminated, the juvenile court issued an order terminating reunification services for Deborah, and setting the section 366.26 hearing. The issue we confront is whether findings subsumed within this earlier order are reviewable on appeal from the final order terminating Deborah's parental rights. We conclude that such findings are reviewable on appeal, and thus reverse the judgment of the Court of Appeal.

FACTS

Matthew C. was born on March 14, 1989, addicted to heroin. He was taken into protective custody on March 16 suffering from neonatal narcotic withdrawal. On March 20, a dependency petition was filed, alleging that he came within WELFARE AND INSTITUTIONS CODE SECTION 300¹, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support), as a result of his mother Deborah C.'s habitual use of illegal substances. At the March 28 pretrial hearing, Deborah pled no contest to the allegations of the petition. Matthew was found to be a person described in section 300, subdivisions (a), (b), and (g), and continued to be detained in protective custody.

On April 11, a dispositional hearing was held. Matthew was declared a dependent child, and officially removed from Deborah's custody. The court found that reasonable efforts to prevent Matthew's removal from his home and to effect reunification had failed, that there was clear and convincing evidence of a substantial danger to Matthew's health, and that his placement was necessary. The court approved a reunification plan, which required Deborah to visit Matthew at least once a month, provide a suitable and stable home for him, make significant progress in counseling through a substance abuse program, submit to drug testing, successfully complete parent counseling, and cooperate with the assigned social worker by allowing announced and unannounced home visits, signing any necessary releases of information, contacting the social worker at least once a month, and keeping the social worker informed of her whereabouts and other relevant information regarding her circumstances. No reunification plan for any alleged father was presented because his At the six-month review hearing held in September 1989, and at the February 9, 1990, review hearing, the juvenile court ordered that reunification services be continued.

[862 P.2d 767] whereabouts and present circumstances were unknown. ²

On April 17, 1990, the 12-month review hearing was held. The juvenile court commissioner found that reasonable reunification services had been provided to Deborah, that there was no substantial likelihood that Matthew could be returned to Deborah's physical custody in the next six months, and that Matthew's return to Deborah would create a substantial risk of detriment to Matthew's physical and emotional well-being. The court ordered that reunification services be terminated, and set a section 366.26 hearing.

Deborah did not seek writ review of this order. She did apply for and was granted rehearing by a juvenile court judge under section 252.

At the rehearing on June 14, 1990, the juvenile court judge found that reasonable reunification services had been offered Deborah but that she had failed to participate in the programs. Reunification services were ordered terminated, and a hearing pursuant to section 366.26 was set.

On November 5, 1990, the section 366.26 hearing was held. The juvenile court commissioner found that there was "an exceedingly high likelihood" that Matthew would be adopted, and terminated Deborah's parental rights.

Deborah filed a notice of appeal from the "Sections 366.21 [12-month review] and the 366.26 ... hearing that was held on November 5, 1990, terminating parental rights of the mother...." Deborah contended in part that there was insufficient evidence to support the finding that Matthew could not be returned to Deborah within six months and that the trial court abused its discretion in denying a one-day continuance at the twelve-month review hearing. Relying on section 366.26, subdivision (k), ³ the Court of Appeal held that an order terminating reunification services and setting a section 366.26 hearing was not appealable, but was reviewable only by extraordinary writ filed before the section 366.26 hearing was held. The court affirmed the judgment, and denied Deborah's petition for rehearing. We granted Deborah's petition for review. ⁴

DISCUSSION

A. General Procedure in Dependency Proceedings

We recently delineated in detail the procedure in dependency proceedings in Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, 19 Cal.Rptr.2d 698, 851 P.2d 1307 (Cynthia D.). A brief overview, however, is helpful to an understanding of the issues presented here.

Under the current ⁵ statutory scheme, dependency proceedings which involve removal Once jurisdiction is found, the juvenile court then conducts a disposition hearing. (Cynthia D., supra, 5 Cal.4th at p. 248, 19 Cal.Rptr.2d 698, 851 P.2d 1307; § 358.) At this hearing, the court "considers whether the child may remain with the parents" or must be removed. (Cynthia D., supra, 5 Cal.4th at p. 248, 19 Cal.Rptr.2d 698, 851 P.2d 1307; § 361.) "If the child is removed from the parents' custody, the court must make orders regarding reunification services ... [and] notify the parents that their parental rights may be terminated if they do not reunify within 12 months." (Cynthia D., supra, 5 Cal.4th at pp. 248-249, 19 Cal.Rptr.2d 698, 851 P.2d 1307; § 361.5.) This begins what is generally denoted the reunification phase.

[862 P.2d 768] of the child from his home essentially include four phases: jurisdiction, disposition, reunification, and implementation of a permanent plan, the last of which may include termination of parental rights. At the jurisdiction phase, a hearing is held to determine "whether the allegations in the petition that the [child] comes within section 300, and thus within the juvenile court's jurisdiction, are true." (Cynthia D., supra, 5 Cal.4th at p. 248, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

"Thereafter the juvenile court must review the case at least once every six months." (Cynthia D., supra, 5 Cal.4th at p. 249, 19 Cal.Rptr.2d 698, 851 P.2d 1307; § 366.) "At these review hearings there is a statutory presumption that the child will be returned to parental custody unless the court finds by a preponderance of the evidence that 'the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.' " (Cynthia D., supra, 5 Cal.4th at p. 249, 19 Cal.Rptr.2d 698, 851 P.2d 1307, fn. omitted.) "The court must also determine whether reasonable reunification services have been offered." (Ibid.)

"At the 12-month review, if the court does not return the child and finds that there is no substantial probability of return to the parent within 18 months of the original removal order, the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan." (Cynthia D., supra, 5 Cal.4th at p. 249, 19 Cal.Rptr.2d 698, 851 P.2d 1307; § 366.21, subds. (g) & (h).) This begins the final phase, implementation of a permanent plan, which may include termination of parental rights.

As we observed in Cynthia D., supra, one of the task force's goals was to reduce the delay inherent in dependency proceedings under the prior section 366.25 statutory scheme. ⁶ Senate Bill No. 243, enacted in 1987 (see ante, fn. 5), accomplished this goal in part by providing that the entire dependency proceeding be held in juvenile court, thus no longer requiring a second and largely duplicative proceeding in superior court. In addition, Senate Bill No. 243 minimized the " 'duplication between the regular review hearings and the termination hearing [by providing that] the decisions made at the review hearing regarding reunification are not subject to relitigation at the termination hearing.' " (Cynthia D., supra, 5 Cal.4th at p. 250, 19 Cal.Rptr.2d 698, 851 P.2d 1307, quoting Task Force Report, supra, at p. 12.) Rather, " 'the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such "Thus, in order to terminate parental rights [at the section 366.26 hearing], the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Cynthia D., supra, 5 Cal.4th at pp. 249-250, 19 Cal.Rptr.2d 698, 851 P.2d 1307.) Hence, the proceeding terminating reunification services and setting a section 366.26 hearing is generally a party's last opportunity to litigate the issue of parental fitness as it relates to any subsequent termination of parental rights, or to seek the child's return to parental custody. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310, 19 Cal.Rptr.2d 544, 851 P.2d 826 [juvenile court's dispositional options at §...