San Bernardino Cnty. Children & Family Servs. v. C.T. (In re Molly T.)

27 Cal.App.5th 538

238 Cal.Rptr.3d 326

IN RE MOLLY T., a Person Coming Under the Juvenile Court Law.

San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.C.T., Defendant and Appellant.

E069626

Court of Appeal, Fourth District, Division 2, California.

Filed September 24, 2018

John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, Michael A. Markel, Principal Assistant County Counsel, Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

CODRINGTON, J.

I.INTRODUCTION

In dependency proceedings, " ‘reunification services’ are ‘activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care , while services are provided to reunite the family.’ " ( In re A.C . (2008) 169 Cal.App.4th 636, 643, 88 Cal.Rptr.3d 1.) In this case, defendant and appellant, C.T. (Mother), appeals from the dependency court’s dispositional judgment granting Mother reunification services in her absence, under Welfare and Institutions Code section 361.5.¹

Mother claims that her whereabouts were unknown on the date of the dispositional hearing for purposes of subdivision (b)(1) of section 361.5. Unlike other provisions of section 361.5, subdivision (b), a finding that the whereabouts of the parent or guardian are unknown under subparagraph (1) results in the setting of a six-month hearing rather than a selection and implementation hearing. If the court denies reunification services under section 361.5, subdivision (b)(1) and if the whereabouts of the parent become known within the first six months, the court may then order reunification services. ( § 361.5, subd. (d).) As a result, a parent could potentially gain six more months to reunify with the child up to the maximum 12-month period of reunification services from the date of entry into the dependency system. ( § 361.5, subd. (a)(1)(B).) In our case, section 361.5, subdivision (b)(1) was found not applicable and reunification services were ordered in Mother's absence. If mother does not participate in the first six-month period, then the court is likely to set a selection and implementation hearing at the six-month review hearing. (§ 366.21, subd. (e)(3).) Mother contends that the dependency court abused its discretion by commencing reunification services rather than withholding services under subdivision (b)(1) of section 361.5. Mother, in essence, seeks to use this bypass provision ( § 361.5, subd. (b)(1) ) as a sword by arguing that the trial court abused its discretion by granting her reunification services instead of denying them under section 361.5, subdivision (b)(1).

In support of her contention, Mother argues that the dependency court misconstrued subdivision (b)(1) of section 361.5, that the court acted contrary to the intent of section 361.5 and that, in so doing, the court prejudiced her ability to actually receive reunification services. Mother requests that we reverse the dispositional judgment and direct the dependency court to apply subdivision (b)(1) of section 361.5 to bypass her for reunification services. Plaintiff and respondent, San Bernardino County Children and Family Services (CFS), argues that Mother’s contention lacks merit. CFS also argues that the court’s action was not contrary to the intent of section 361.5, that any dispositional error was harmless, and that the disentitlement doctrine requires dismissal of Mother’s appeal.

We agree with CFS on all points, including that Mother’s conduct was sufficiently egregious to warrant dismissal of her appeal under the disentitlement doctrine. We nonetheless address the merits and reject Mother’s contention that the trial court erred in ordering reunification services in Mother’s absence, rather than bypassing services for Mother under section 361.5, subdivision (b)(1). To find otherwise would allow parents to absent themselves from a dependency proceeding and then invoke the bypass provision, section 361.5, subdivision (b)(1), in order to affirmatively extend their entitlement to reunification services. Mother’s proposed interpretation of the bypass provision turns the statute on its head. We find that the trial court did not misconstrue section 361.5, subdivision (b)(1) or act contrary to its intent. We affirm the judgment.

II.FACTUAL AND PROCEDURAL BACKGROUND

A. Relevant History of Mother and Child

Mother was a minor and a former court dependent when she gave birth to Molly T. (child) in September 2017. By her own admission, both Mother and N.E., the alleged father, are homeless substance abusers who cannot care for their child. Mother is also suffering from untreated mental illness that caused her to be placed on an involuntary psychiatric hold in October 2016, when she was found cutting her wrist. Since Mother and child tested positive for amphetamines at the time of the child’s birth, both were referred to a social services practitioner (SSP) on September 10, 2017. Mother was not cooperative and was anxious to leave the hospital. Mother was told that if she left the hospital, she would be abandoning the baby. Mother told the SSP that she and N.E. knew they couldn’t take the child with them and wanted N.E.’s foster mother to "have the child." The SSP requested and was granted a detention warrant, but he was unable to serve it on the parents because Mother and N.E. had left the hospital without their child.

B. Juvenile Dependency Petition—September 12, 2017

A "Juvenile Dependency Petition" was filed on September 12, 2017. The petition stated in allegation "G-6" that Mother’s whereabouts were unknown and that "[r]easonable efforts to locate the mother were unsuccessful." The petition also listed Mother’s guardian as Mother’s older sister, J.C.

C. Detention Hearing—September 13, 2017

Although J.C. was present, Mother did not appear at the detention hearing held on September 13, 2017. During the hearing, the dependency court read and considered the September 12, 2017, "Detention Report" and determined that the child was subject to section 300 and a prima facie case for the child’s out-of-home detention had been established. The court ordered the child be removed from Mother and N.E. and placed in temporary custody of CFS.

D. Jurisdiction/Disposition Hearing—October 16, 2017

J.C. was present at the first jurisdiction/disposition hearing held on October 16, 2017, but Mother again failed to appear despite having been given the SSP’s contact information in a text message from J.C. a few days earlier. In response to the contact information given to her and J.C.’s request that she call the SSP, Mother stated she would contact the SSP. However, the SSP had no contact with Mother. When J.C. was specifically asked by the court whether Mother was in the town of Crestline, J.C. affirmed that Mother was somewhere in Crestline, and she had seen Mother walking through Crestline on October 1, 2017.

On October 10, 2017, CFS filed a "Declaration of Due Diligence" that listed three "909" area code phone numbers for Mother and three addresses for Mother in Crestline. The declaration indicated that all three of the phone numbers were called on September 26, 2017. The first phone number had voicemail, on which a message was left, the second was a wrong number, and the third had no voicemail set up. The third phone number was called again on September 27, 2017, but the voicemail was still not set up. According to the declaration, the three Crestline addresses for Mother were collected from reliable search sources, such as the sheriff, the Department of Motor Vehicles, and Mother’s medical records. The declaration included copies of the certified mail receipts for the notices sent to each address.

E. Jurisdiction/Disposition Hearing—December 7, 2017

At the continued jurisdiction/disposition hearing on December 7, 2017, the dependency court noted that Mother was not present and stated it had read and considered the detention report, the declaration of due diligence, and the jurisdiction/disposition report. The court received all the materials into evidence and adopted the findings on pages 18 through 21 of the jurisdiction/disposition report, with the exception of findings regarding the Indian Child Welfare Act ( 25 U.S.C.A. § 1901 et. seq. ) notice requirements (finding no. 6) and correction of Mother’s name (finding no. 17).

Because the jurisdiction/disposition report recommended that reunification services should be ordered, Mother’s counsel requested that the dependency court bypass Mother for services given that her whereabouts were unknown. The court heard arguments from both sides on the request. CFS argued that the bypass provision ( § 361.5, subd. (b)(1) ) was inapplicable because Mother and N.E. had received legal notice of the proceedings. CFS also advised the court that the whereabouts unknown allegations had been dismissed, and the declaration of due diligence did not conclude that Mother’s whereabouts were unknown. Mother’s counsel argued that Mother had received neither legal nor actual notice of the proceedings.

After both sides conferred with the court off the record, the court addressed Mother’s counsel and stated: "[W]hat you suggest is that the Court knows that she doesn’t know, and she is not findable, and that’s where you’re asking me to interpret between the lines. And frankly, I don’t know that—it’s actually speculation whether or not she knows of this. For all I know she knows of this and is choosing not to be part of this right now because of the reasons [CFS] said. [¶] Either way, there is speculation. So to say that the Court knows that she can’t be found isn’t actually true. So I don’t know that she can’t be found. I know that she has been noticed. I don’t have any case law to the contrary or any authority that you’ve given to the contrary." The court then ordered reunification...