San Diego County Health & Human Services Agency v. L.T. , 154 Cal. Rptr. 3d 669 ( 2013 )

Filed 3/5/13 In re T.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication
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published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.W., a Person Coming Under the
Juvenile Court Law.
D061960
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J515074B)
Plaintiff and Respondent,
v.
L.T. et al.,
Defendants and Appellants;
T.W.,
Appellant.
APPEALS from a judgment of the Superior Court of San Diego County, Richard D.
Huffman, Judge. (Associate Justice of the Court of Appeal, Fourth District, assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and remanded with
directions.
L.T. and Timothy W. (together the parents) appeal a juvenile court judgment removing
their minor daughter, T.W., from their custody following true findings made on a Welfare and
Institutions Code1 section 387 supplemental petition. The parents challenge the sufficiency of
the evidence to support the court's findings that the previous placement with L.T. was
ineffective in protecting T.W., and T.W.'s removal from parental custody was necessary to
prevent substantial danger to her. We conclude substantial evidence supports the court's
jurisdictional findings and dispositional order as to the section 387 supplemental petition.
T.W. also appeals, contending the court erred by granting L.T. six more months of
reunification services because the services she already received exceeded the statutory limit of
section 361.5. We conclude the time limits for services set forth in section 361.5 did not
become operable until T.W. was removed from the custody of both parents at a disposition
hearing on the section 387 petition. Because the parents have now used up some of their
entitlement to services under section 361.5, we remand the matter to have the juvenile court
determine whether to continue or terminate their services under current circumstances.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2009, the San Diego County Health and Human Services Agency (Agency)
filed a petition in the juvenile court under section 300, subdivision (j), alleging four-year-old
T.W. was at substantial risk of harm because L.T. had subjected T.W.'s sister, Olivia J., to
serious physical harm and excessive discipline in T.W.'s presence. The court detained T.W.
with Timothy. At a jurisdiction and disposition hearing in October 2009, the court declared
T.W. a dependent, removed her from L.T.'s custody and placed her with Timothy. The court
ordered the parents to participate in services consistent with their case plans.
1 Statutory references are to the Welfare and Institutions Code.
2
During the next 12 months, L.T. completed a parenting education program that was not
court approved, and 10 weeks of a 12-week anger management program. The court ordered
six more months of services for the parents, and amended L.T.'s case plan to include an
assessment by a substance abuse specialist because she had recently tested positive for
amphetamine and methamphetamine.
In July 2011, 15-year-old Olivia disclosed that Timothy, her stepfather, had molested
her when she was 11 years old and continued to molest her until she was 14 years old. Agency
filed a section 342 subsequent petition, alleging T.W. was at risk of being sexually abused by
Timothy because he had sexually abused Olivia. T.W. was detained first in foster care and
then with her adult sister. In October 2011, the court sustained the allegations of the
subsequent petition, placed T.W. with L.T. and ordered supervised visits for Timothy.
Several months later, social worker Angela Gaynor received information that Timothy
was living with L.T. and T.W. Gaynor reminded L.T. that Timothy could not be in her home
and L.T. could not supervise visits between Timothy and T.W. Timothy admitted he continued
to go to L.T.'s home but denied staying overnight. He refused to participate in sexual abuse
treatment as required by his case plan, saying he was "not a predator" and the requirement was
"stupid." Gaynor reported that L.T. continued to show poor judgment and repeatedly placed
T.W. at risk by allowing Timothy in her home. Risk factors included T.W.'s young age and
vulnerability, Timothy's sexual abuse of Olivia when she was younger and lived with L.T.,
Timothy's refusal to obtain treatment, and L.T.'s refusal to participate in therapy.
Consequently, Agency filed a section 387 supplemental petition, alleging T.W.'s placement
with L.T. had not been effective in protecting T.W. The parents declined Agency's offer of
services to prevent T.W.'s removal from L.T.'s custody.
3
At a detention hearing on March 6, 2012, the court made a prima facie finding on the
section 387 supplemental petition and found Agency had made reasonable efforts to prevent or
eliminate the need to remove T.W. from L.T.'s custody. The court detained T.W. in out-of-
home care.
Gaynor recommended six more months of services for L.T. to give her the opportunity
to recognize the signs and red flags of sexual abuse, and to understand the dynamics of sexual
abuse and the role she plays in protecting her children. Gaynor said services would enable
L.T. to empathize with her children and discuss how she would prevent further incidents of
sexual abuse. Services for Timothy would help him identify his triggers for sexual abuse,
change his patterns of sexual behavior and develop a relapse prevention plan. Gaynor could
not recommend placing T.W. with L.T. because she had violated the court's visitation order by
allowing Timothy to visit T.W. in her home and she only recently began participating in
services. Further, Gaynor was concerned that L.T. would allow Timothy to live with her
because he was homeless.
The court held a contested jurisdiction and disposition hearing on May 4, 2012. Gaynor
testified T.W. would be at risk if returned to L.T.'s custody because L.T. had participated in
only three therapy sessions and refused to drug test twice, Timothy was still untreated for
sexual abuse, and L.T. did not fully understand the dynamics of sexual abuse. Also, the
parents had violated the court's visitation order on several occasions. Gaynor identified two
safety threats to T.W.: (1) L.T. had allowed Timothy access to T.W. or had not protected her
from the risk of sexual abuse; and (2) L.T. was likely to flee with T.W.
T.W.'s adult sister, L.C., testified she lived with L.T. and was asked to supervise
Timothy's visits with T.W. She knew Timothy could not stay in L.T.'s home overnight and
4
T.W. could not be left alone with the parents. L.C. said she never left T.W. alone with
Timothy, and L.T. never supervised visits between T.W. and Timothy. L.C. testified she
supervised eight visits between Timothy and T.W., four of which took place in L.T.'s home.
She denied being told visits could not occur there.
The court received in evidence the stipulated testimony of social worker Rafael Munoz,
who was assigned to T.W.'s case from December 2009 to July 2011 when T.W. was placed
with Timothy. Throughout that time, the parents violated the court's orders for supervised
visits with T.W. Munoz did not believe that L.T. would abide by the court's order prohibiting
Timothy from being in her home or that she could protect T.W. from Timothy.
After considering the evidence and arguments of counsel, the court sustained the
allegations of the section 387 supplemental petition and found reasonable efforts had been
made to prevent T.W.'s removal from L.T.'s custody. The court removed T.W. from parental
custody and placed her with a relative. The court found neither parent was entitled to an
additional 12 months of services, but under the exceptional circumstances of this case, it was in
T.W.'s best interests to order six more months of services for both parents.
DISCUSSION
The Parents' Appeals
I
The parents contend the evidence was insufficient to support the court's findings on the
section 387 supplemental petition. They assert there was no evidence Timothy was having
unsupervised contact with T.W. in L.T.'s home and, therefore, there was no showing T.W. was
at risk of sexual abuse by Timothy.
5
A
A section 387 supplemental petition is used to change the placement of a dependent
child from the physical custody of a parent to a more restrictive level of court-ordered care.
(§ 387; Cal. Rules of Court,2 rule 5.560(c).) In the jurisdictional phase of a section 387
proceeding, the court determines whether the factual allegations of the supplemental petition
are true and whether the previous disposition has been ineffective in protecting the child.
(§ 387, subd. (b); rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a
dispositional hearing to determine whether removing custody is appropriate. (Rule
5.565(e)(2); In re H.G. (2006) 146 Cal.App.4th 1, 11.) A section 387 petition need not allege
any new jurisdictional facts, or urge different or additional grounds for dependency because a
basis for juvenile court jurisdiction already exists. (In re John V. (1992) 5 Cal.App.4th 1201,
1211; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) The only fact necessary to modify a
previous placement is that the previous disposition has not been effective in protecting the
child. (§ 387, subd. (b); In re Joel H., at p. 1200.)
We review the court's jurisdictional and dispositional findings for substantial evidence.
(In re Henry V. (2004) 119 Cal.App.4th 522, 529; In re A.O. (2004) 120 Cal.App.4th 1054,
1061.) Evidence is " '[s]ubstantial' " if it is " 'reasonable, credible, and of solid value.' " (In re
S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses,
attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record favorably to the juvenile
court's order and affirm the order even if other evidence supports a contrary finding. (In re
2 Rule references are to the California Rules of Court.
6
Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596,
610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial
nature to support the findings or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, the supplemental petition alleged the court's previous order placing T.W. with
L.T. had been ineffective in protecting her because L.T. had allowed Timothy to be in T.W.'s
home for extended periods after Timothy had sexually abused T.W.'s sister in the family home,
and he refused to participate in services for sexual offenders. The evidence showed L.T. knew
Timothy had sexually abused Olivia but still allowed him to spend time with T.W. in her home
in violation of Agency's restrictions on supervision. The social worker admonished the parents
on several occasions that Timothy was prohibited from being in the home and L.T. was
prohibited from supervising his visits with T.W. However, Timothy, who was homeless,
continued to spend time there. In the social worker's opinion, Timothy's presence in the home
placed T.W. at risk of sexual abuse because she was young and vulnerable, Timothy refused
sexual abuse treatment, and L.T. refused to participate in therapy and did not understand the
dynamics of sexual abuse or know how to protect T.W. (See § 300.2; In re Heather A. (1996)
52 Cal.App.4th 183, 194-196 [dependency statutes are designed to protect children at risk of
harm and thus, the court need not wait until a child is abused to assume jurisdiction].) The
court expressly found the social worker's testimony was credible and we defer to this finding
because we have no power to judge the effect, value or weight of the evidence, consider the
credibility of witnesses or resolve conflicts in the evidence. (In re S.A., supra, 182
Cal.App.4th at p. 1140.) Substantial evidence supports the court's jurisdictional findings on the
section 387 supplemental petition.
7
II
The parents challenge the sufficiency of the evidence to support the court's order
removing T.W. from L.T.'s custody. They assert there was no evidence of a substantial danger
to T.W.'s health, safety, protection, or physical or emotional well-being if she remained in the
home. They further assert Agency should have considered less drastic alternatives to removal
from L.T.'s custody.
A
When a section 387 petition seeks to remove a minor from parental custody, the court
applies the procedures and protections of section 361. (In re Paul E. (1995) 39 Cal.App.4th
996, 1001-1003.) Before a minor can be removed from the parent's custody, the court must
find, by clear and convincing evidence, "[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the minor if the
minor were returned home, and there are no reasonable means by which the minor's physical
health can be protected without removing the minor from the minor's parent's . . . physical
custody." (§ 361, subd. (c)(1); In re Javier G. (2006) 137 Cal.App.4th 453, 462.)
A removal order is proper if it is based on proof of: (1) parental inability to provide
proper care for the minor; and (2) potential detriment to the minor if he or she remains with the
parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous
and the minor need not have been harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
B
The record supports a finding L.T. was unable to provide proper care for T.W., and
T.W. would be at risk of harm if she remained in L.T.'s custody. (§ 361, subd. (c)(1).) L.T.
8
allowed Timothy to have contact with T.W. in her home, even though she knew he had
sexually abused Olivia. She had been repeatedly told that Timothy could not be in her home
and she could not supervise visits. L.T. delayed starting therapy, and she did not understand
the risk Timothy posed to T.W. Timothy continued to deny sexually abusing Olivia and
refused to participate in treatment for sex offenders. Substantial evidence supports the court's
finding its previous disposition had not been effective in protecting T.W. from the risk of
sexual abuse by Timothy.
C
Substantial evidence also supports a finding reasonable efforts were made to prevent or
eliminate the need for T.W.'s removal from L.T.'s custody. (§ 361, subd. (d).) T.W. became a
dependent in 2009 and remained in the custody of one or the other parent for three years under
the juvenile court's supervision. The parents consistently ignored the restrictions on visitation,
even after being reminded, and did not participate in services as required by their case plans.
When Agency filed the section 387 supplemental petition, the parents declined an offer of
services to prevent T.W.'s removal from L.T.'s custody. A team decision meeting was held to
determine whether T.W. could remain in L.T.'s custody with a safety plan in place. The social
worker and her supervisors assessed the risk to T.W. and determined there were no services or
precautions available to ensure T.W.'s safety in the home. Thus, Agency did consider less
drastic alternatives and used reasonable efforts to prevent T.W.'s removal from L.T.'s custody.
9
T.W.'s Appeal
I
T.W. contends the court erred by ordering six more months of reunification services for
L.T.3 She asserts that at the time of the jurisdiction and disposition hearing on the section 387
supplemental petition, L.T. had already received 31 months of services, which exceeded the
section 361.5, subdivision (a), statutory limit. T.W. calculates the length of services beginning
with the detention hearing in August 2009, claiming this is when the court originally removed
her from L.T.'s custody within the meaning of section 361.5, subdivision (a).
Agency contends the period for reunification services under section 361.5, subdivision
(a), began to run only when T.W. was removed from the custody of both parents at the
disposition hearing on the section 387 supplemental petition and not when T.W. was detained
or initially removed from L.T.'s custody and placed with Timothy. L.T. joins in this
contention. Timothy filed a supplemental appellant's brief, claiming he, like L.T., is entitled to
reunification services ending 12 months after the date T.W. was removed from both parents'
custody.
A
The issue of whether the services the parents received exceeded the statutory limit
requires us to consider the interplay between two statutes governing the provision of
reunification services: sections 361.2 and 361.5. Because this issue is one of statutory
interpretation, we apply a de novo standard of review. (Tyrone W. v. Superior Court (2007)
151 Cal.App.4th 839, 849 [issues of law and statutory construction are reviewed de novo]; In
3 T.W. does not make this argument as to Timothy.
10
re Alanna A. (2005) 135 Cal.App.4th 555, 562 [where facts are not disputed, the effect or legal
significance of those facts is a question of law to be reviewed de novo].)
B
Sections 361.2 and 361.5 were enacted in 1986 as parts of a single legislative scheme.
(In re Erika W. (1994) 28 Cal.App.4th 470, 475.) Section 361.5 contains general rules for
providing family reunification services to parents of minor children removed from parental
custody. (Ibid.) "[F]amily 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." (§ 16501, subd. (h); see In re A.L. (2010) 188 Cal.App.4th 138, 145.) The
goal of section 361.5 is to promote the return of the child to parental custody. (In re Ericka W.,
at p. 478.) Reunification services under this statute are mandatory except in certain specified
circumstances. (§ 361.5, subds. (a) & (b)(1)-(15); In re Ericka W., at p. 475.)
Section 361.5 includes time limitations on the provision of family reunification services.
When the child is over the age of three, "court-ordered services shall be provided beginning
with the dispositional hearing and ending 12 months after the date the child entered foster
care . . . ." (§ 361.5, subd. (a)(1)(A).) A child is "deemed to have entered foster care on the
earlier of the date of the jurisdictional hearing . . . or the date that is 60 days after the date on
which the child was initially removed from the physical custody of his or her parent . . . ."
(§ 361.49.) Notwithstanding the presumptive 12-month limitation, services can be extended up
to 18 months "after the date the child was originally removed from physical custody of his or
her parent . . . ." (§ 361.5, subd. (a)(3).)
11
Under the plain language of section 361.5, subdivision (a)(1)(A), the period for
mandatory reunification services begins at the time of disposition and continues while the child
is in foster care or until the child is returned to the home of the parent. The statute does not
apply if, at the disposition hearing, a child does not enter foster care, but is placed with a
parent. (In re Pedro Z. (2010) 190 Cal.App.4th 12, 19.) Thus, the " 'clock' " for services under
section 361.5, subdivision (a), does not start to run unless and until the child is removed from
the physical custody of the parents and the court determines whether they are entitled to
reunification services according to the lengthy analysis set forth in that statute. (In re A.C.
(2008) 169 Cal.App.4th 636, 650 (A.C.); In re Pedro Z., at p. 21.)
Section 361.2 also pertains to the provision of reunification services but, unlike section
361.5, applies only when the minor is removed from the physical custody of one parent under
section 361 and placed in the custody of the noncustodial parent under the supervision of the
juvenile court. (§ 361.2, subds. (a) & (b); In re Erika W., supra, 28 Cal.App.4th at p. 475;
A.C., supra, 169 Cal.App.4th at p. 644.) "Section 361.2, subdivision (a)(2) expressly
contemplates that reunification services will be offered only for the purpose of facilitating
permanent parental custody of the child by one or the other parent." (In re Erika W., at p. 476;
In re Jesse W. (2007) 157 Cal.App.4th 49, 60 [reunification often involves one, but not both,
parents].) Thus, a different set of rules regarding reunification services applies in cases where
custody of a minor is shifted from one parent to another parent. (In re Erika W., at p. 475;
A.C., at pp. 644, 645.) Under the limited circumstances of section 361.2, the court may: (1)
order reunification services for the parent "from whom the child is being removed"; (2) order
services "solely to the parent who is assuming physical custody in order to allow that parent to
retain later custody without court supervision"; or (3) order services for both parents, followed
12
by review hearings under section 366 to determine which parent, if either, should have custody
of the child. (§ 361.2, subd. (b)(3).)
Services ordered under section 361.2 are discretionary and not expressly time-limited4
because the minor remains in the custody of a parent and the goal of placing a child in parental
custody has been met. (In re Erika W., supra, 28 Cal.App.4th at p. 478; see also In re Gabriel
L. (2009) 172 Cal.App.4th 644, 651.) Nevertheless, the juvenile court may "structure the
provision of reunification services around the ultimate goal of providing a stable permanent
parental home for the child." (In re Erika W., at p. 476.) When both parents potentially are
appropriate permanent placements, the court may provide services to both parents, with
permanent custody to be determined at a later review hearing. (Id. at p. 477.)
C
A comparison of sections 361.5 and 361.2 suggests there are two separate statutory
tracks for services: one when a child is placed with a noncustodial parent (§ 361.2), and
4 T.W. asserts section 16507 limits reunification services to 12 months when a minor has
been placed with a noncustodial parent. Under that statute, "[f]amily reunification services"
must be provided to reunite a "child separated from his or her parent because of abuse, neglect
or exploitation. These services shall not exceed 12 months except as provided in subdivision
(a) of [s]ection 361.5 and subdivision (c) of section 366.3." (§ 16507, subd. (a).) Family
reunification services can "only be provided when a child has been placed in out-of-home care,
or is in the care of a previously noncustodial parent under the supervision of the juvenile
court." (§ 16507, subd. (b).) To the extent section 16507 limits the duration of reunification
services when a minor has been placed with a noncustodial parent (§ 361.2), we are not here
concerned with that limitation. The challenge in this appeal is to the order for reunification
services when a minor has been removed from the custody of both parents and placed in foster
care. (§ 361.5.) A proper order under section 361.5 would not provide for more than 12
months of services and would not exceed the 12 months specified in section 16507. Although
the language of section 16507 is not entirely clear, we conclude an order for reunification
services under section 361.5 is to be treated separately from an order for reunification services
under section 361.2, and the 12-month duration of services under section 16507 is not
amalgamated when services are ordered under both sections 361.2 and 361.5.
13
another when a child is placed with someone other than a parent (§ 361.5). (In re Erika W.,
supra, 28 Cal.App.4th at p. 475.) Here, the juvenile court followed the procedure of section
361.2 when, at a jurisdiction and disposition hearing held in October 2009, it declared T.W. a
dependent, ordered her removed from L.T.'s physical custody and placed her with Timothy
subject to the court's supervision. (§ 361.2, subds. (a) & (b)(3).) The court exercised its
discretion under section 361.2 by ordering services for both parents.5 (§ 361.2, subd. (b)(3).)
Because T.W. was not removed from the custody of both parents at the October 2009
disposition hearing and she did not enter foster care at that time, section 361.5 was not
implicated. (A.C., supra, 169 Cal.App.4th at p. 649.) Similarly, with respect to the section
342 subsequent petition, the time-limited services of section 361.5 did not apply at either the
detention hearing in July 2011 or the disposition hearing in October 2011 because T.W. had
not yet been removed from the custody of both parents.6
Contrary to T.W.'s argument, the timeline for services under section 361.5 did not begin
to run when T.W. was detained in out-of-home care, either in August 2009 or July 2011.
Section 361.5 applies only when a child is "removed" from parental custody, not "detained"
out of the home. Before the court holds a hearing where jurisdiction is established, it lacks
authority to remove a child from a parent's custody. A child may be taken into temporary
5 In its jurisdiction and disposition report, Agency recommended reunification services
for L.T. and family maintenance services for Timothy. The court's order states Agency is to
provide services to the parents consistent with their case plans and the parents are to comply
with those services.
6 Although T.W. was briefly detained in out-of-home care on the section 342 subsequent
petition before disposition, she had not yet been removed from her parents' custody and thus,
did not enter "foster care." (See A.C., supra, 169 Cal.App.4th at p. 651 [foster care implies
placement with person not legally related to child by direct parental blood ties or through
formal adoption proceedings].)
14
custody by a peace officer or social worker (§§ 305 & 306), and at the detention hearing, the
court is empowered to determine, based on a prima facie showing, whether the minor shall be
"further detained." (§§ 315 & 319.) Only after the jurisdiction hearing may the court consider
whether it should "limit the control to be exercised over the dependent child" at the disposition
phase. (§ 361, subd. (a).) A court is not authorized to conduct a disposition hearing unless and
until it has conducted a jurisdiction hearing on the dependency petition and found the child
comes within one of the statutory definitions of a dependent child. (§ 300.) Before the court
can remove a child from parental custody and make its placement decision, it must make
findings based on clear and convincing evidence. (§ 361, subd. (c).) The high standard of
proof by which a removal decision is made "is an essential aspect of the presumptive,
constitutional right of parents to care for their children." (In re Henry V., supra, 119
Cal.App.4th at p. 525.) Because "removal" from parental custody is a milestone in juvenile
court proceedings, the distinction between removal and detention is crucial. (Ibid.)
T.W. relies on In re N.M. (2003) 108 Cal.App.4th 845, 853-854 (N.M.) to support her
argument the section 361.5 limited time for services begins running at the time of detention.
However, in N.M., the court relied on an earlier version of section 361.5 that stated services
"shall not exceed six [or 12] months from the date the child entered foster care," but made no
mention of when those services begin. (N.M., at p. 852.) Under the amended version of the
statute applicable here, "court-ordered services shall be provided beginning with the
dispositional hearing" and ending six or 12 months after the child entered foster care.
(§ 361.5, subd. (a)(1)(A) & (B), italics added.) We disagree with the court in N.M., at pages
854-855, to the extent it holds the limited time for reunification services under section 361.5
starts to run at detention. (See A.C., supra, 169 Cal.App.4th at p. 650 [disagreeing with
15
rationale of N.M. and holding that despite child's actual removal from parent's physical custody
between initial detention and disposition hearing, section 361.5 is inapplicable in the absence
of a disposition order placing child with someone other than a parent].)
Moreover, despite some ambiguities in the record before us, it is reasonable to infer that
the review hearings on the original section 300, subdivision (j), petition were not conducted to
determine whether T.W. could be returned to parental custody because she was already placed
with a parent. There were no six-month, 12-month or 18-month findings made at these
hearings as there would have been had the court placed T.W. in foster care. Instead, the
hearings were meant to monitor T.W.'s placements with a parent—first with Timothy and then
with L.T.—and to determine whether court supervision was still necessary. (See In re Joel T.
(1999) 70 Cal.App.4th 263, 267; In re Gabriel L., supra, 190 Cal.App.4th at p. 650 [when a
dependent child is safely in custody of one parent, "the court is not concerned with
reunification, but with determining whether continued supervision is necessary in the family
home"].) The court's goal at that time was to provide a stable, permanent parental home for
T.W. through services under section 361.2, with the possibility of eventually giving permanent
custody of T.W. to one or the other parent. (§ 361.2, subd. (b)(3); see In re Erika W., supra, 28
Cal.App.4th at p. 476.)
When the family's circumstances necessitated the filing of a supplemental petition, the
court was required to conduct a hearing to decide whether to remove T.W. from parental
custody and provide services. (§ 387; rules 5.565(e), 5.565(e)(2) & 5.695(a).) At the
disposition hearing in May 2012, the court removed T.W. from both parents' custody for the
first time, triggering the time limits of section 361.5. Thus, the services the parents previously
16
received under section 361.2 did not preclude them from receiving reunification services under
section 361.5.
Our conclusion is consistent with the court's holding in A.C., supra, 169 Cal.App.4th at
page 639: "Section 361.5 time limits for reunification services start to run when a child is
removed from all parental custody at the disposition hearing," and not when the child is placed
with the noncustodial parent under section 361.2. As the A.C. court explained, section 361.5 is
"inapplicable in the absence of a disposition ordering a placement with someone other than a
parent." (A.C., at p. 650.) The court saw no distinction between a section 361.2 placement
with a previously noncustodial parent and a section 362 placement with a custodial parent.
(A.C., at p. 649, citing In re Joel T., supra, 70 Cal.App.4th at pp. 268-269 [if child is never
removed from the physical custody of a custodial parent and that parent receives services under
section 362, the section 361.5 clock does not start to run unless and until an amended petition
results in removal at disposition].) In either case, the time limits for services set forth in
section 361.5 do not apply if the child is not removed from the custody of both parents at the
disposition hearing.7 (A.C., at p. 649.)
As the A.C. court noted, "this result makes sense. Children who are placed with at least
one of their parents from the beginning of the dependency are differently situated than those
who immediately enter foster care. Such a child, in most cases, is not suffering from the same
level of disruption and need for prompt permanency adjudication as he or she might otherwise
7 The mother in A.C., unlike L.T., did not receive reunification services when the minors
were originally removed from her custody and placed with the father. Instead, she received an
" 'enhancement plan' " in connection with a criminal matter while the father received " 'family
maintenance' services." (A.C., supra, 169 Cal.App.4th at p. 640.) Despite this factual
distinction, we believe the A.C. court's holding and rationale apply here.
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experience in a foster care placement. Moreover, a custodial parent who has lost custody to a
(previously) noncustodial parent following a dependency petition is not similarly situated to
one who loses custody of the child to an alternative placement. This parent does not have the
same section 361.5 right to attempt reunification during the dependency proceeding if the court
decides to maintain custody with the previously noncustodial parent." (A.C., supra, 169
Cal.App.4th at p. 652.) Termination of parental rights is not at issue for that parent because the
child remains in the custody of the other parent. (Rule 5.725(a)(2) [Court ordinarily "may not
terminate rights of only one parent under section 366.26 . . . ."].) Until T.W. was removed
from the custody of both parents at the disposition hearing on the section 387 supplemental
petition, the parents did not face ultimate termination of their parental rights, even had one or
the other parent been unable to reunify within the statutory period. (See In re A.L., supra, 188
Cal.App.4th at pp. 145, 146, fn. 7 [because minor was placed with mother, father was not at
risk of having parental rights terminated even though he did not receive reunification
services].)
D
After the court sustained the allegations of the section 387 supplemental petition,
removed T.W. from the custody of both parents and placed her in foster care, the time limits
for reunification services under section 361.5, subdivision (a)(1)(A), were triggered. Although
the court ordered six months of reunification services for the parents, it did not do so under a
section 361.5 analysis,8 and thus, the case must be remanded to the juvenile court with
8 Instead, the court found there were exceptional circumstances to warrant additional
services based on T.W.'s best interests. We are aware that with the passage of time since the
disposition hearing, the parents have used some of their entitlement to the statutory maximum.
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directions to determine whether services should continue for each parent based on current
circumstances, including the parents' reunification efforts and T.W.'s permanent placement
needs. (See In re Jesse W., supra, 157 Cal.App.4th at p. 60 [because reunification services are
a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those
services at any time, depending on the circumstances presented]; In re Aryanna C. (2005) 132
Cal.App.4th 1234, 1241-1242 [father's abysmal efforts at reunification supported court's
decision to terminate services before expiration of six-month period]; see also In re Eileen A.
(2000) 84 Cal.App.4th 1248, 1259 [appellate courts cannot, in dependency cases,
mechanistically make determinations without regard to passage of time and intervening events
in child's life], disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
II
T.W. contends the court abused its discretion by ordering six more months of
reunification services for L.T. because there were no exceptional circumstances justifying
further services, given L.T.'s minimal participation in services she received. However, because
we have concluded the statutory time limitation on services did not begin until T.W. was
removed from both parents' custody at disposition, which necessitates a remand to determine
whether the parents' services should be continued, we need not address this issue.
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DISPOSITION
The judgment declaring T.W. a dependent and removing her from parental custody is
affirmed. The matter is remanded to the juvenile court to determine whether to continue or
terminate the parents' services under current circumstances.
MCDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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