L. A. Cnty. Dep't of Children & Family Servs. v. Shailyn A. (In re Malick T.)

73 Cal.App.5th 1109

288 Cal.Rptr.3d 889

IN RE MALICK T. et al., Persons Coming Under the Juvenile Court Law.

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

v.Shailyn A., Defendant and Appellant.

B311135

Court of Appeal, Second District, Division 7, California.

Filed January 18, 2022

Marsha F. Levine, Irvine, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell for Plaintiff and Respondent.

PERLUSS, P. J.

Eighteen months after the juvenile court terminated her family reunification services and set the matter for a selection and implementation hearing, Shailyn A. petitioned pursuant to Welfare and Institutions Code section 388¹ for an additional six months of reunification services with her children. Although the juvenile court found Shailyn had demonstrated changed circumstances, the first step of the section 388 analysis, the court stated it lacked authority to order additional reunification services for a parent whose time for services had expired. The court deemed Shailyn's petition a request for immediate return of the children to her care; determined it would not be in her children's best interest to do so, the second step of the section 388 analysis; and denied Shailyn's petition.

On appeal Shailyn contends the juvenile court misunderstood the scope of its authority to order reunification services and, as a consequence, failed to properly exercise its discretion in considering the merits of her petition. Shailyn is correct. Although section 361.5, subdivision (a), generally limits family reunification services to a period not exceeding 18 months after the date a child was originally removed from the physical custody of the child's parent, nearly 30 years ago in In re Marilyn H. (1993) 5 Cal.4th 295, 19 Cal.Rptr.2d 544, 851 P.2d 826 the Supreme Court held a parent may utilize the section 388 petition procedure to demonstrate circumstances have changed and additional reunification services would be in the child's best interest. Moreover, section 366.3, subdivisions (e) and (f), expressly authorize the juvenile court at post-permanent plan review hearings to order a second period of reunification services if it would be in the child's best interest to do so, ample statutory authority for the relief Shailyn requested. We reverse the order denying Shailyn's section 388 petition and remand for the juvenile court to reconsider Shailyn's request for additional reunification services on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Sustained Dependency Petitions and Removal of the Children from Shailyn's Custody

On July 6, 2016 the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to section 300, subdivisions (a) and (b)(1), on behalf of Shailyn's children Malick (now 14 years old), De'Asia (now 12 years old), Iliah (now 11 years old), Ashanie (now 10 years old), Tayvione (now nine years old), Jaimar (now eight years old) and Rashaad (now seven years old). The initial petition included allegations concerning Shailyn and Deonte J., Shailyn's male companion and the father of all her children except Malick. Malick's father, Michael T., was not named in the petition.²

On October 27, 2016 the juvenile court sustained the petition, finding the Department had proved allegations pursuant to section 300, subdivisions (a) (nonaccidental serious physical harm) and (b)(1) (failure to protect), that Shailyn and Deonte had a history of engaging in violent altercations in the presence of the children and that Deonte's violent conduct against Shailyn (with specific instances identified) and Shailyn's failure to protect the children endangered the children's physical health and safety. The court also sustained an allegation pursuant to subdivision (b)(1) that Deonte had a history of substance abuse, was a current abuser of illicit drugs and on prior occasions was under the influence of illicit drugs while the children were in his care and custody. The children were allowed to remain in Shailyn's care under the Department's supervision with an order for family preservation services. The court also signed a permanent (three year) restraining order protecting Shailyn and the children from Deonte. Deonte was allowed monitored visits with the children; Shailyn was not permitted to be the monitor.

On March 14, 2017 the Department filed a subsequent petition pursuant to section 342, and the children were detained from Shailyn. On May 16, 2017 the court sustained the petition, finding pursuant to section 300, subdivisions (a), (b)(1) and (j) (sibling abuse), that Shailyn had physically abused Tayvione by throwing a toy at him, which struck him in the face causing bleeding and sustained swelling and bruising, creating an endangering situation for Tayvione and his siblings. The court further found pursuant to subdivision (b)(1) that Shailyn had a history of substance abuse and was a current user of methamphetamine, amphetamine and marijuana, which rendered her incapable of providing regular care for the children; that Shailyn had on prior occasions endangered the children by driving with them as passengers in her car without using appropriate child safety restraints; and that she also endangered them by allowing Deonte to frequent the home and have unlimited access to the children notwithstanding the court order that his visitation be monitored and the restraining order prohibiting such contact. At the disposition hearing three days later, the court terminated its home-of-parent order, removed the children from Shailyn and ordered family reunification services for her, including a full alcohol/drug treatment program with aftercare and weekly testing, as well as parenting classes and individual counseling to address case issues.

2. Termination of Shailyn's Reunification Services, Setting the Selection and Implementation Hearing and Identification of Adoption as the Permanent Plan for the Children Other Than Malick

The children's six-month review hearing (§ 366.21, subd. (e)) was held on November 14, 2017; the 12-month review hearing (§ 366.21, subd. (f)) on April 14, 2018; and the 18-month permanency review hearing ( § 366.22 ) on September 11, 2018. Shailyn's progress with her case-ordered programs was inconsistent during this period. She completed an in-patient drug treatment program in August 2017 and again in June 2018. She began out-patient treatment in July 2018 but stopped attending soon thereafter.

By the section 366.22 review hearing on September 11, 2018, the Department was recommending adoption with the maternal grandmother for all the children other than Malick. The court found Shailyn had made only partial progress toward alleviating or mitigating the causes necessitating the children's placement, terminated Shailyn's family reunification services and set the matter for a section 366.26 selection and implementation hearing on January 10, 2019.

On January 10, 2019 the court continued the section 366.26 hearing³ because of inadequate notice. Proceeding to a permanency planning review hearing under section 366.3 (an "RPP," or review of permanent plan in dependency argot), the court found continued jurisdiction was necessary because the conditions that had justified the court in taking jurisdiction still existed. The court also found the permanent plan of adoption as a specific goal was appropriate and ordered adoption as the permanent plan for all the children other than Malick.

At the next RPP on July 11, 2019, with identical orders for the six children other than Malick, the juvenile court confirmed the permanent plan of adoption as a specific goal remained appropriate and was ordered as the permanent plan. The court found each of the children will be adopted and the likely date that goal would be achieved was December 19, 2019. The Department was ordered to provide permanent placement services to each of the children.⁴ Also on July 11, 2019 the court again continued the section 366.26 hearing.

3. Placement of Malick with His Father and His Subsequent Removal; Shailyn's Unsuccessful Requests for Reunification Services

On September 14, 2018 the Department filed a section 342 subsequent petition concerning Malick, who was then living with a nonrelated caregiver, alleging his father, Michael, and Michael's female companion had a history of engaging in violent altercations in Malick's presence. On October 3, 2018 the Department filed an amended section 342 petition on behalf of Malick. At a hearing the following day, which had been scheduled for the jurisdiction hearing on the original section 342 petition, the court ordered Malick released to Michael over the objection of the Department. During the hearing the court observed Shailyn had already received 18 months of reunification services. On November 14, 2018 the court sustained the amended petition pursuant to section 300, subdivision (b)(1), which now alleged violent conduct by Michael's female companion placed Malick at a substantial risk of serious physical harm. Malick remained released to Michael under the Department's supervision.

After learning of another incident of domestic violence and receiving a referral concerning emotional abuse of Malick by Michael, the Department filed a supplemental petition for a more restrictive placement pursuant to section 387, alleging Michael and several female partners had histories of domestic violence and Michael had a history of substance abuse. The court ordered Malick removed from Michael's custody on June 24, 2019. The court subsequently sustained an amended version of the petition on September 24, 2019 and ordered the Department to provide him with reunification services. The court denied reunification services to Shailyn.

Following the disposition hearing for Malick, on September 26, 2019 Shailyn filed a section 388 petition...