L. A. Cnty. Dep't of Children & Family Servs. v. D.N. (In re D.N.)

56 Cal.App.5th 741

270 Cal.Rptr.3d 620

IN RE D.N., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.D.N., Defendant and Appellant;

D.N., a Minor, etc., Respondent.

B302910

Court of Appeal, Second District, Division 1, California.

Filed October 27, 2020

Roni Keller, Newbury Park, under appointment by the Court of Appeal, for Defendant and Appellant.

Linda B. Puertas, under appointment by the Court of Appeal, for Minor and Respondent.

Mary C. Wickham, County Counsel, Kristen P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.

BENDIX, Acting P. J. Dependency cases require the wisdom of Solomon. This is because juvenile courts typically balance parental rights against the child's best interests, important interests that sometimes conflict. The Legislature has given juvenile courts tools to ameliorate these conflicts, notably providing reunification services to a parent without custody of his or her child. The Legislature has set forth a deadline for how long reunification services can be offered to parents, after which the focus of the juvenile court is no longer to preserve parental rights, but instead, to secure permanency and security for the child. Thus, terminating reunification services to a parent is significant; it is often the prelude to termination of parental rights.

The case before us involves the minor, D.N., a teenager, who was failing in the group and foster care homes in which the juvenile court had placed him, and his father, who, because of his poverty and despite sincere efforts, could not find housing before expiration of the statutory deadline for providing reunification services. The questions before us are whether the juvenile court erred in finding it lacked authority to provide additional reunification services given that the statutory deadline had long passed, and whether, if so, given the confluence of father's poverty and efforts to find housing and D.N.’s failure to thrive in a nonparental environment, the court abused its discretion in not giving father additional time to find housing.

We answer these questions in the affirmative where father's failure to reunify with D.N. was due solely to poverty, and terminating reunification services for father was not in D.N.’s best interests. These errors, moreover, caused the juvenile court to make a premature finding of detriment that could affect father in future dependency proceedings. Finally, we reject DCFS's assertion that an order returning D.N. to mother's physical custody issued after the filing of this appeal renders the instant appeal moot.

Accordingly, we reverse the denial of father's request for a continuance of the permanency review hearing, the juvenile court's finding of detriment, and the order terminating reunification services, and remand for further proceedings consistent with our opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The record is extensive. We summarize only those portions of the proceedings to give context to our ruling.

1. The juvenile dependency proceedings preceding father's first appearance therein

On June 7, 2013, Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition concerning five-year-old D.N., whom DCFS had removed from his mother's (mother's) physical custody and released to D.N.’s maternal great-grandmother (MGGM) on June 4, 2013. The petition averred that mother struck D.N. with a belt on "numerous prior occasions" and that jurisdiction was thus proper under Welfare and Institutions Code ¹ section 300, subdivisions (a) and (b). According to the detention report accompanying the petition, mother had told the agency that D.N.’s father (father) "was not involved" in D.N.’s life and "his whereabouts [were] unknown."

At the detention hearing held on June 7, 2013, the juvenile court detained D.N. and placed him with his MGGM. Although father was not present at the detention hearing, the court declared that he is D.N.’s presumed father.

On December 13, 2013, the juvenile court sustained allegations in the first amended petition, asserting that jurisdiction was appropriate under section 300, subdivisions (a) and (b) because in May of 2013, mother "inappropriate[ly] physical[ly] disciplined" D.N. by "striking the child's body with a belt."

At the disposition hearing held on January 31, 2014, the juvenile court declared D.N. to be a dependent of the court, removed D.N. from mother's custody, placed D.N. in MGGM's custody, and allowed mother to reside with MGGM "provided [mother remained] in compliance [with her] case plan." The juvenile court further ordered that mother have monitored visits, and father have monitored visits upon contacting DCFS to secure a monitor approved by that agency. The juvenile court did not order reunification services for father because the court found that his whereabouts were unknown.

At the permanency review hearing conducted on February 23, 2015 pursuant to section 366.22, the juvenile court placed D.N. in mother's custody and ordered DCFS to provide her with family maintenance services.²

On April 18, 2016, almost three years after the initial petition, the juvenile court removed D.N. from mother's custody because DCFS presented evidence that she had (inter alia) recently consumed marijuana. On April 22, 2016, DCFS filed a subsequent petition pursuant to section 342, alleging that jurisdiction was proper under section 300, subdivision (b) because of mother's alleged substance abuse. The agency detained D.N. on April 19, 2016 and placed him with MGGM.

At the detention hearing held on April 22, 2016, the juvenile court found a prima facie case for detaining D.N., authorized the minor to remain in MGGM's custody, and permitted mother to have monitored visits with D.N.³ On August 8, 2016, the juvenile court held a jurisdiction and disposition hearing at which it sustained the subsequent petition, removed D.N. from mother's custody, ordered DCFS to provide mother with family reunification services, and stated that all prior orders not conflicting with that ruling remain in full force and effect (e.g., mother was entitled to monitored visits, and father was entitled to monitored visits once he contacted DCFS).

2. The section 387 supplemental petition and proceedings and documents relating thereto

On December 7, 2016, DCFS filed a supplemental petition pursuant to section 387, which alleged that MGGM violated the juvenile court's orders by "allow[ing] the mother ... and father ... to have unlimited access to the child and reside in the child's home against ... [o]rders ... that the mother and father are to have monitored visits with the child, with a DCFS approved monitor." The supplemental petition further alleged that "[d]uring the unmonitored visits with the father, the father threatened to physically abuse the child" and that "the child is afraid of the father." DCFS detained D.N. and placed him in foster care on December 2, 2016.

According to the detention report accompanying the supplemental petition, father told DCFS during a December 2, 2016 interview that "he did not know about DCFS being involved [with D.N.] due to the fact the mother never shared with him that the child was removed." The report also indicated that mother confirmed "she did not tell the father" D.N. had been removed from her custody.

At the detention hearing held on December 7, 2016, father made a special appearance to avoid waiving any challenges he could have to the propriety of DCFS's prior notice to him of the proceedings. The juvenile court thereafter found a prima facie case for removing D.N. from MGGM, vested temporary placement and custody of D.N. with DCFS, and authorized father to have monitored visits with D.N.

3. Father's section 388 petition and the new dispositional rulings as to father

On January 27, 2017, father filed a petition under section 388 that sought a ruling setting aside the juvenile court's January 31, 2014 dispositional order because prior to the disposition hearing, DCFS failed to show it had provided father with proper notice of the proceedings. (See § 388, subd. (a)(1) ["Any parent ... may, upon grounds of change of circumstance or new evidence, petition the court ... for a hearing to change, modify, or set aside any order of court previously made ...."].) The juvenile court granted father's petition on March 15, 2017.

DCFS filed a jurisdiction/disposition report on April 4, 2017. In the report, DCFS asserted that on March 29, 2017, father told the agency that he was living with his mother, he worked 40 hours per week, and he "wanted help with [securing] housing."

On April 26, 2017, DCFS filed a last minute information report concerning DCFS's inspection of father's home, which the agency concluded was "not a suitable placement for [D.N.]" DCFS reported that father was staying at his mother's (paternal grandmother's or PGM's) 2-bedroom, 1-bathroom apartment, which housed PGM, father's step-father, father's sister, and three children, two of whom had an open DCFS case. DCFS reported that father slept in the living room and was looking for housing, and stated that "he d[id] not feel comfortable with taking custody of [D.N.] in his current residence because he [was] hardly there himself due to the lack of space." The agency reported that on April 13, 2017, it provided father with "a 2017 [e]dition of housing referrals from the Housing Rights Center."

On May 1, 2017, the juvenile court issued an order that: sustained the section 387 supplemental petition; removed D.N. from his parents’ custody; ordered DCFS to allow mother and father to have monitored visits with D.N.; terminated mother's reunification services but offered her enhancement services; ordered DCFS to provide reunification services to father; and approved a case plan that required father to attend conjoint counseling with D.N., attend a...