Sara M. v. Superior Court

• Decision Date: 08 August 2005
• Docket Number: No. S129821.,S129821.
• Citation: 32 Cal.Rptr.3d 89,116 P.3d 550,36 Cal.4th 998
• Parties: SARA M., Petitioner, v. The SUPERIOR COURT of Tuolumne County, Respondent; Tuolumne County Department of Social Services, Real Party in Interest.
• Court: California Supreme Court

32 Cal.Rptr.3d 89

36 Cal.4th 998

116 P.3d 550

SARA M., Petitioner, v. The SUPERIOR COURT of Tuolumne County, Respondent Tuolumne County Department of Social Services, Real Party in Interest.

No. S129821.

Supreme Court of California.

August 8, 2005.

Sara M., in pro. per.; and Janet G. Sherwood, Corte Madera, under appointment by the Supreme Court, for Petitioner.

No appearance for Respondent.

Gregory J. Oliver, County Counsel, and Kim M. Knowles, Deputy County Counsel, for Real Party in Interest.

Kathleen Bales-Lange, County Counsel (Tulare), John A. Rozum, Chief Deputy County Counsel, Bryan C. Walters, Deputy County Counsel; and Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Real Party in Interest.

CHIN, J.

In this case, three children were removed from the custody of their mother, petitioner, Sara M. (hereafter mother), on grounds that she had failed to protect them and they had suffered serious emotional damage. (Welf. & Inst.Code, § 300 subds. (b), (c).)¹ The juvenile court declared them dependents of the court and began reunification services to try to reunite the family. After six months of reunification services, the court found that mother had failed to contact or visit the children. (§ 366.21, subd. (e).) Under section 366.21, subdivision (e), and California Rules of Court, rule 1460(f)(1)(B),² it terminated reunification services and scheduled a hearing to establish a permanent plan for the children. (See § 366.26.)

In this writ proceeding, mother contends that section 366.21, subdivision (e), does not permit a court to terminate reunification services after only six months due to a parent's failure to contact or visit a child, unless the child had originally been removed from the parent's custody because of abandonment. Because she did not originally abandon the children, she argues, she is entitled to a full year of reunification services before the court may begin to consider a permanent plan. She also argues that rule 1460(f)(1)(B) is invalid because it is contrary to the statute. The Court of Appeal agreed with her.

Section 366.21 can be read as mother and the Court of Appeal in this case read it. But it can also be read differently. Previous Court of Appeal decisions, as well as the Judicial Council in adopting rule 1460(f)(1)(B), have long interpreted section 366.21, subdivision (e), as permitting a court to terminate reunification services whenever a parent fails to contact or visit a child for six months after those services commenced. If this were a matter of first impression, the question would be close, but we are not writing on a clean slate. At this late date, we will not overturn the earlier appellate court decisions and the applicable rule of court.

Mother also claims her failure to contact or visit her children during this time was excusable because the Tuolumne County Department of Social Services (hereafter department) effectively prevented her from visiting them. As we explain, we disagree.

I. FACTUAL AND PROCEDURAL HISTORY

In November 2003, the department filed juvenile dependency petitions on behalf of mother's three children, who were four, seven, and eight years old at the time, under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). The petitions alleged, among other things, that mother failed to provide the children with "adequate food, clothing, and shelter," and that she was "unable to provide regular care for her children due to her substance abuse" involving crack cocaine and methamphetamine. The juvenile court detained the children. On December 9, 2003, it conducted the initial jurisdictional hearing. Mother appeared at that hearing, and the court ordered her to participate in a drug dependency program. The court set a contested jurisdictional hearing for December 30, 2003.

Mother failed to appear at the December 30 hearing, and her attorney did not know where she was. The juvenile court found it had dependency jurisdiction under section 300, subdivisions (b) and (c). It ordered reunification services, including visitation "as deemed appropriate by the case managing social worker pursuant to" section 362.1, subdivision (a), and scheduled a six-month review hearing. It also ordered mother to review, sign, and comply with the family reunification plan. On January 13, 2004,³ mother appeared before the juvenile court sitting as the drug dependency court. She said that she had not received notice of the previous hearing by mail until after it was conducted, but she also acknowledged that the court had informed her of the hearing date when she appeared in court on December 9, 2003. At the January 13 hearing, the court ordered her to sign and comply with the family reunification case plan. She signed the plan. It required mother, among other things, to stay free from illegal drugs, to show her ability to live free from drug dependency, and to comply with all required drug tests. It conditioned her right to visit the children on her not being under the influence of alcohol or drugs and not ingesting alcohol or drugs before the visit.

Over the next six months, mother failed to comply with her drug dependency treatment and reunification plans. According to the department's six-month review report prepared in June, the only time she visited her children was on January 7. At that time, she had a "faint negative" test for methamphetamine on a presumptive test and was permitted to visit. During that visit, mother reportedly acted inappropriately and challenged the visitation rules. Consequently, the visit ended early, and the department discontinued further visits until mother agreed to abide by the visitation rules. Mother failed to appear at a court hearing on February 3, and the court issued a bench warrant. At a hearing on April 13, at which mother again did not appear, the court ordered her terminated from the dependency drug court program because she failed to participate or appear in hearings before that court.

On May 21, mother asked the department for permission to visit her children. However, she admitted she was under the influence of methamphetamine and marijuana, and she declined to take a urinalysis test. The social worker denied visitation and told her that she must test "clean" on presumptive tests to have visits rescheduled. Except for a voice mail message mother left the department a few days later stating that she had not yet decided what to do and would call again later, mother had no further contact with the department before the next court hearing on June 22.

Mother appeared at the six-month review hearing on June 22. The court told mother that it had "ordered you to do certain things, you haven't done it. There hasn't been any contact, you're not going to groups, you're not testing." It told her she had "a couple of weeks to fall in line and ... start doing what you need to do.... If you don't, then the Court's going to terminate reunification services." It scheduled another hearing for July 13, and told mother to "get over to your social worker and get with this program."

A contested hearing was held on July 13, and then continued to July 15. A supplemental report the department provided for the July 13 hearing stated that on June 22, mother provided a random substance abuse test that was positive for methamphetamine. She was arrested that day for driving under the influence. She failed to take any scheduled substance abuse tests after June 22. She was arrested on June 30 for possession of a controlled substance and drug paraphernalia, although she denied that the drugs and paraphernalia were hers. On July 8, the social worker called mother and asked why she had not complied with the court's directives. Mother said after her arrest she was unable to comply. She asked to visit her children and was told she had to comply with the case plan and not be under the influence of methamphetamine for a visit to occur.

The department recommended the court terminate reunification services under section 366.21, subdivision (e), and schedule a hearing to establish a permanent plan. It also recommended the court make certain statutory findings to support these actions. The report indicated that the youngest child's grandmother wished to adopt him, and that the other two children might be placed with a grandfather.

Mother testified at the July 15 hearing. She admitted that she had signed the reunification case plan, but she said she did not fully understand it. She said she attended about three "group meetings," but then her "car had broken down and stuff like that, so I failed to go to any more." She said that if the court permitted her to participate in reunification services for the next six months, she was "hoping" that she could comply with the court's orders. She hoped to be placed in a rehabilitation program of some kind. Accordingly, she asked for six more months of reunification services. She said that on May 21, when she asked to visit her children, she declined to take a drug test "because I told [the social worker] I was dirty for marijuana at the time." After her arrest for driving under the influence, she had no further drug testing.

At the end of the July 15 hearing, the court terminated reunification services and scheduled a hearing on November 9 to establish a permanent plan. It told mother that in June it had given her "another chance, perhaps to get into DDC [dependency drug court], to give the Court a reason to extend [reunification] services." It noted the difficulty of balancing "the time it takes for someone to actually get clean and sober and build some sort of a foundation so they can stay that way, versus ... what's in the best interests of the children and that the children be placed ... in an appropriate supportive living environment, a safe living environment. They just don't always mesh." It said it had no "reasonable belief that the...