Tonya M. v. Superior Court
| Decision Date | 20 December 2007 |
| Docket Number | No. S149248.,S149248. |
| Citation | 69 Cal.Rptr.3d 96,42 Cal.4th 836,172 P.3d 402 |
| Court | California Supreme Court |
| Parties | TONYA M., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Department of Children and Family Services, Real Party in Interest. |
Merrill Lee Toole, under appointment by the Supreme Court, Monrovia, and Helen Yee, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, Larry Cory and James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Real Party in Interest.
Jennifer B. Henning; John J. Sansone, County Counsel (San Diego), John E. Philips, Chief Deputy County Counsel, and Katharine R. Bird, Deputy County Counsel, for California State Association of Counties as Amicus Curiae on behalf of Real Party in Interest.
Children's Law Center of Los Angeles and Kristen N. Walker for Minor.
When a child is removed from parental custody and made a dependent of the court, reunification services generally must be provided to the child's parents. At a six-month review hearing, the court must decide whether to continue or terminate those services. In doing so, should the court consider the likelihood of reunification during the next six months after the hearing, or the likelihood of reunification in such time as remains until a potential 12-month review hearing, even if less than six months? (See Welf. & Inst.Code, § 366.21, subd. (e).) We conclude the latter interpretation of section 366.21, subdivision (e), which ensures faster resolution for the child, is the one most consistent with the Legislature's intent in enacting the juvenile dependency scheme.
The facts as recited in the Court of Appeal's opinion are essentially undisputed. Petitioner Tonya M. is the mother of I.D., born five weeks prematurely in October 2005. At I.D.'s birth, he and Tonya M. both tested positive for methamphetamine. Tonya M. admitted to having used drugs throughout her pregnancy and as recently as two days before I.D.'s birth. Real party in interest the Los Angeles County Department of Children and Family Services (Los Angeles County) removed I.D. from Tonya M.'s custody, placed him in foster care, and filed a petition under Welfare and Institutions Code section 300 on behalf of I.D.1
By the time of the combined jurisdictional and dispositional hearing on November 28, 2005, Los Angeles County had lost contact with Tonya M. A caseworker had reached her by telephone on November 21 and informed her of the hearing, but she subsequently failed to keep an appointment with the caseworker and failed to appear at the hearing itself. The court found the allegations of drug abuse to be true and ordered that reunification services be provided to Tonya M., including monitored visitation.
Los Angeles County was still unable to locate or contact Tonya M. when the court held a review hearing in February 2006. As the whereabouts of Tonya M. and I.D.'s father were unknown, Los Angeles County was required to complete a lengthy due diligence process prior to every hearing where their rights could be affected. The six-month review hearing (§ 366.21, subd. (e)) was scheduled for May 1, 2006, but continued to May 30 because the parents had not been given proper notice and Los Angeles County had not established due diligence. When May 30 arrived, the hearing date was again continued, to June 26, for the same reason.
On June 13, 2006, the caseworker received a telephone call informing her that Tonya M. was in custody. On June 26, Los Angeles County received a letter indicating Tonya M. was participating in the Los Angeles County Drug Court program and receiving drug rehabilitation services through MELA Counseling Services (MELA). According to the letter, the in-custody portion of the program had begun on May 26, and Tonya M. was scheduled to be released to a residential treatment program on July 5. Tonya M. appeared at the June 26 continued six-month review hearing, and the matter was put over for a contested hearing on July 24, later continued to August 16, approximately nine months after the combined jurisdictional and dispositional hearing.
Prior to the August 16 hearing, the caseworker reported that Tonya M. had been associating with I.D.'s father, which violated her probation because he was still using drugs. MELA reported that Tonya M. had been admitted to an outpatient drug program on July 13. Her counselor considered her to be "in compliance with program requirements," although she had missed four Alcoholics Anonymous/Narcotics Anonymous meetings, five group counseling sessions, and two scheduled drug tests. Tonya M. had also enrolled in a parenting program through MELA, with an anticipated start day of August 24 and a completion date of November 2.
At the August 16, 2006, contested six-month hearing, both Los Angeles County and the minor's attorney advocated termination of reunification services. In opposition, Tonya M. testified that she had participated in the Impact drug and alcohol treatment program beginning May 26 and had entered MELA's outpatient drug treatment program after her release from custody in July. She had last used drugs on April 28, the date of her most recent arrest. All her drug tests had been negative since April 28.
Tonya M. visited I.D. once, on August 10, 2006. She sat with him, fed him, played with him, and changed his diaper. This was the only time she had visited him since his detention almost 10 months earlier. She had made previous efforts to obtain visitation, beginning after her July 2006 release from custody. Initially, the foster parents were unavailable to bring the child for a visit. When a visit was finally arranged, Tonya M. missed it because she went to the wrong social services office. Tonya M. testified that when I.D. was first detained, she was made to feel hopeless by the caseworker, who told her she would never get her son back. She decided to straighten her life out because, due to her own childhood experiences, she did not want her son to be adopted.
The parties stipulated that if Tonya M.'s drug rehabilitation counselor were called she would testify that Tonya M. had been "attending her program regularly"; had been "doing very well in her program[,] showing a lot of motivation"; and was "in compliance with the program." The counselor would have further testified that if Tonya M. "ke[pt] up the good work," she could "complete her program in six months."
After hearing the evidence, the court found by a "preponderance of the evidence [that] return of [I.D.] to the physical custody of [Tonya M.] would create a substantial risk of detriment to the safety, protection, physical and emotional well-being of [I.D.]" and that Los Angeles County had provided reasonable services. The court further found "by clear and convincing evidence" that although Tonya M. had made "some progress" to alleviate the problems that led to I.D.'s removal, on balance her progress was "minimal." The court specifically found that Tonya M. had not regularly and consistently visited I.D. and that "even if [she] had visited every week since [her release from custody], this court still could not make a finding that [she] has consistently and regularly visited with [I.D.]." Finally, the court found there was no substantial probability that I.D. would be returned to Tonya M. because Tonya M. had not "demonstrated the capacity and ability to complete the objectives of the treatment program and to provide for [I.D.'s] safety, protection, physical and emotional health and special needs." The court ordered reunification services terminated and set a section 366.26 permanency planning hearing for December 12, 2006, to consider termination of parental rights.
In a writ petition, Tonya M. challenged the juvenile court's failure to consider the entire six-month period following the August six-month review hearing, i.e., the period through February 2007 rather than November 2006, in deciding whether reunification services should be continued. In a published opinion, the Court of Appeal denied relief. It acknowledged an existing split between Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 87 Cal.Rptr.2d 870 (Dawnel D.), which supported Tonya M.'s position, and Jessica A. v. Superior Court (2004) 124 Cal.App.4th 636, 21 Cal. Rptr.3d 488 (Jessica A), which supported the juvenile. court's approach, and sided with Jessica A
We granted review to resolve this division of authority.2
When a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family. (§ 361.5, subd. (a).) For a child under three years of age at the time of removal, as I.D. was, reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(2).) The child's status, and the question whether services should be extended for an additional period, must be reconsidered no less frequently than every six months. (§ 366, subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, 32 Cal.Rptr.3d 89, 116 P.3d 550.) The absolute maximum period for services is 18 months (§ 361.5, subd. (a)), provided the court determines at both a six-month review hearing and a 12-month review hearing that continuation of services is warranted (see § 366.21, subd. (e) []; id., subds. (f), (g) []). We consider here the basis on which a juvenile court should decide at the six-month review hearing whether to order further reunification...
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