Michael G. v. Superior Court of Orange Cnty.

• Decision Date: 06 October 2021
• Docket Number: G060407
• Parties: MICHAEL G. et al., Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Orange County Social Services Agency et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

69 Cal.App.5th 1133

285 Cal.Rptr.3d 110

MICHAEL G. et al., Petitioners,

v.The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Orange County Social Services Agency et al., Real Parties in Interest.

G060407

Court of Appeal, Fourth District, Division 3, California.

Filed October 6, 2021

Martin Schwarz, Public Defender, Seth Bank, Assistant Public Defender, and Brian Okamoto, Deputy Public Defender, for Petitioner Michael G.

Juvenile Defenders and Donna P. Chirco, Ladera Ranch, for Petitioner Kristie G.

Leon J. Page, County Counsel, and Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Law Office of Harold LaFlamme and Hannah Gardner for Real Party in Interest A.G.

OPINION

GOETHALS, J.

In separate petitions for extraordinary writ relief, Michael G. (Father) and Kristie G. (Mother) ask us to set aside the juvenile court's order at the 18-month review hearing terminating reunification services and setting a permanency planning hearing under Welfare and Institutions Code ¹ section 366.26 as to their 16-year-old daughter, A.G. According to the parents, the court should have continued services in light of its finding that the Orange County Social Services Agency (SSA) had provided inadequate services during the most recent review period. Father further contends there is a substantial probability that A.G. could be returned to him with additional services, and the court should have granted a continuance under section 352. Father also argues the court's ruling denied him fundamental fairness and due process. For the reasons set forth below, we disagree and deny the writ petitions.

FACTS

As detailed in our previous opinion in this case ( Orange County Social Services Agency v. Michael G. (Oct. 26, 2020, G059045), 2020 WL 6268531 [nonpub. opn.]), A.G. left home in the fall of 2019 due to Father's escalating mental health issues. According to A.G., Father heard voices and had delusions of persecution by demons, witches, and the government; he also yelled, threw things, and punched the walls in their home. At the time, A.G. was not in contact with Mother, who lives in North Carolina, and whose background includes mental health issues, psychiatric hospitalization, alcohol abuse, attempted suicide, and a criminal history.

The juvenile court found A.G.'s reports were credible and concluded Father's mental health issues, coupled with Mother's mental health issues, criminal history, and failure to maintain a relationship with the child, put the child at risk of suffering serious physical harm. Based on these findings, the court assumed jurisdiction over the child in January 2020, removed her from her parents' custody, ordered both parents to undergo general counseling and other reunification services, and ordered an Evidence Code section 730 evaluation of Father.

During the six-month review period, Father refused to sign his case plan and the therapy referral, or to participate in the section 730 evaluation. Mother made even less progress and was terminated from counseling due to non-attendance.

At the six-month review hearing in September 2020, the juvenile court found that returning A.G. to her parents "would create [a] substantial risk of detriment to [her] safety, protection, or physical or emotional well-being"; that reasonable reunification services had been provided or offered to the parents, who each had made only "minimal" progress toward alleviating or mitigating the causes necessitating placement; and that there was a substantial probability A.G. may be returned to their custody within six months. The court scheduled the 12-month review hearing for December 2020 and continued reunification services, as recommended by SSA.

During the 12-month review period, Father signed the case plan and engaged in some recommended services, including counseling and the parenting class. He continued to refuse to participate in the section 730 evaluation, however, relenting only after we affirmed the juvenile court's jurisdictional finding and disposition order in October 2020. ( Orange County Social Services Agency v. Michael G., supra , G059045.) The section 730 evaluator, Dr. Gerardo Canul, conducted his evaluation of Father in November and issued his report in December, concluding Father's "psychological and psychiatric problems are significant."

At the 12-month review hearing in December, the juvenile court again found that returning A.G. to her parents "would create [a] substantial risk of detriment to [her] safety, protection, or physical or emotional well-being"; that reasonable reunification services had been provided or offered to the parents; that Father's progress toward alleviating or mitigating the causes necessitating placement was "moderate," while Mother's progress was "minimal"; and that there was a substantial probability A.G. may be returned to their custody within six months. The court scheduled the 18-month review hearing for April 2021 and continued reunification services, as recommended by SSA.

At the 18-month review hearing, which was continued to June 2021, SSA recommended terminating services and setting a section 366.26 hearing. A.G.'s counsel joined in these requests. Counsel for Mother and Father both objected and asked the juvenile court to continue services under sections 352 and 366.22 and in accordance with principles of due process.

After taking the matter under submission, the juvenile court terminated reunification services and ordered a section 366.26 hearing to be held within 120 days. Citing section 366.22, subdivision (a), which we discuss below, the court found by a preponderance of the evidence that returning A.G. to her parents would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. (See § 366.22, subd. (a)(1).) The court also found that, notwithstanding its reasonable services findings at the six and 12-month hearings (which the court "firmly believe[d]" were the "right call, given the involvement or lack thereof of the parents at that time"), SSA had not provided reasonable services in the most recent review period.²

Even so, the juvenile court decided to terminate reunification services, finding the lack of reasonable services in the most recent review period did "not automatically require the court to extend services." Citing section 366.22, subdivision (b), and the parents' "lack of significant and consistent progress in this case to date," the court concluded the provision of additional services would not be in A.G.'s best interest and that further services were not likely to positively impact reunification. Accordingly, the court ordered a section 366.26 hearing to occur within 120 days and ordered the termination of services. (See § 366.22, subd. (a)(3).) Father and Mother each filed notices of intent to file writ petitions.

DISCUSSION

Father and Mother challenge the juvenile court's order terminating reunification services at the 18-month review hearing and setting a permanency hearing under section 366.26. They assert they should have received additional reunification services because they did not receive reasonable services in the most recent review period. Father further contends there was a substantial probability that A.G. could be returned to him with additional services, and the court should have granted a continuance under section 352. He also asserts he was denied due process.

Although we normally review an order terminating reunification services for substantial evidence ( In re M.S. (2019) 41 Cal.App.5th 568, 580, 254 Cal.Rptr.3d 162 ), we review the interpretation and application of the dependency statutes de novo ( In re M.F. (2019) 32 Cal.App.5th 1, 18, 243 Cal.Rptr.3d 510 ( M.F. )). We review the denial of a continuance request for abuse of discretion. (See In re J.E. (2016) 3 Cal.App.5th 557, 567, 207 Cal.Rptr.3d 642.)

Before addressing the issues raised on appeal, we begin with a brief overview of the statutory provisions governing the duration of reunification services and the time for setting section 366.26 hearings. "As a general rule, when a child is removed from parental custody under the dependency statutes, the juvenile court is required to provide reunification services pursuant to section 361.5 to ‘the child and the child's mother and statutorily presumed father.’ ( § 361.5, subd. (a).) The purpose of these reunification services is ‘to facilitate the return of a dependent child to parental custody.’ [Citations.] Unless an express exemption exists, reunification services provided pursuant to section 361.5 are mandatory, subject to strict timelines, and monitored through periodic court reviews at which parents are admonished that failure to participate successfully in reunification efforts could lead to the termination of their parental rights. ( §§ 361.5, 366.21, 366.22.)" ( In re Jaden E. (2014) 229 Cal.App.4th 1277, 1281, 177 Cal.Rptr.3d 876.)

The parent and child typically receive up to 12 months of reunification services. ( § 361.5, subd. (a)(1)(A) [for a child age three or older, "court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as provided in Section 361.49, unless the child is returned to the home of the parent or guardian"].) The juvenile court may extend services up to 18 months, however, if it finds there is a substantial probability the child will be returned to the parent's custody within the extended time period, or if it finds reasonable services were not provided. ( § 361.5, subd. (a)(3)(A) ; see also §§ 366.21, subd. (g)(1), 366.22, subd. (a)(1).)

If the case is so continued, at the 18-month permanency review hearing, the juvenile court must "order the return of the child to the physical custody of his or her parent ... unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent ......