In re D.N.

Filed 10/27/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.N., a Person Coming B302910
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK99900)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
D.N.,
Defendant and Appellant;
D.N., a Minor, etc.,
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel Zeke Zeidler, Judge. Reversed and
remanded with instructions.
Roni Keller, 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.
____________________
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
2
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 BACKROUND
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
3
under Welfare and Institutions Code1 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
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
4
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
2 Although the minute order for the February 23, 2015
hearing does not expressly state that D.N. was returned to
mother’s custody, father, D.N., and DCFS concede that D.N. was
returned to mother’s custody at this hearing. (See Artal v. Allen
(2003) 111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
statements therein as admissions against the party.’ ”].)
3At the detention hearing, mother’s counsel represented
that mother no longer resided with MGGM.
5
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.
6
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.”
7
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 parenting course on special needs
children, and “work with the child’s . . . wraparound team at his
current placement.”
4. The October 30, 2017 six-month review hearing and
documents relating thereto
On October 12, 2017, DCFS filed a status review report.4
Father reported he had not obtained appropriate housing and,
although father told the agency on October 3, 2017 that he
contacted “ ‘several’ ” prospective housing options, they had not
returned his telephone calls. A social worker recommended that
father “call 3-5 places a day and [father] agreed.” “Father . . .
stated that he need[ed] stable housing and [wanted] to have
[D.N.] back as soon as possible,” and D.N. “stated that he
want[ed] to live with his mother or father.”
DCFS reported that father was “not in compliance with his
Court ordered parenting classes.” Although “[f]ather originally
planned to complete parenting classes through the child’s WRAP
team, . . . the child recently was placed in a home in which
WRAP” services were not available. Father indicated that he did
4 The remainder of this paragraph and the following three
paragraphs summarize pertinent aspects of the October 12, 2017
status report.
8
not enroll in these courses on his own because “he did not know
where to go” or “how many hours he needed[,]” and father had
“scheduling problems due to his unpredictable job hours.” DCFS
reported that a social worker and “father [were] working on
having father enrolled in services in the beginning of the month
of October 2017.”
DCFS claimed father was only partially compliant with the
juvenile court’s case plan concerning father’s visits with D.N.
“Father ha[d] visited the child several times, but [was] still not in
full compliance. Father ha[d] expressed that the reason for the
inconsistency [was] transportation, distance, and his work
schedule.” D.N. told the agency that “visitation with his father
[was] going well and . . . he want[ed] more visits.”
According to DCFS, although father had “been in regular
contact with the agency, [he had] not fully complied with his
Court orders.” “Father ha[d] been involved in the case, but ha[d]
not been proactive”; “[fa]ther need[ed] a steady push and
reminders to handle his Court orders and responsibilities
regarding the case,” and a social worker told father that “he
need[ed] to make a much stronger effort.” Father asserted he
had “trouble balancing life and ‘the case,’ ” given that he worked
“Monday-Friday most weeks” (although father noted he had “no
set schedule and [was] on-call”) and “like[d] to spend time with
his girlfriend who live[d] in the valley on weekends.” Father
reiterated that “lack of housing and transportation” were “his
biggest road blocks.” DCFS opined “father needs more time to
complete Court services and to find appropriate housing.”
The court appointed special advocate (CASA) filed a report
on October 27, 2017. The CASA reported father stated he was
“working two part-time jobs, one at Disneyland and one as a
9
security guard” and he did “not make enough money to afford his
own apartment. According to the CASA, father said he was
“looking for free parenting classes and [intended to] complete the
classes as soon as possible, [but] not[ed] that most parenting
classes cost money and he [could not] afford to pay them.” The
CASA opined that if father “had assistance from DCFS to pay for
the parenting classes, the classes would be completed sooner” and
“the only significant barrier to [D.N.] returning to the home of his
father is housing.”
On October 30, 2017, the juvenile court held a six-month
review hearing pursuant to section 366.21, subdivision (e). At the
hearing, the court noted that it had read and considered the
October 12, 2017 status report and found that “the extent of
progress made toward alleviating or mitigating the causes
necessitating placement[ ] . . . [¶] [b]y father has been
substantial.” Specifically, the court found that “father has[ ]
consistently and regularly contacted and visited the child, has[ ]
made significant progress in resolving the problems that led to
the child’s removal from the home, and has[ ] demonstrated the
capacity and ability to complete the objectives of the treatment
plan and to provide for the child’s safety, protection, physical and
emotional well-being, and special needs . . . .” The court also
found that DCFS “complied with the case plan by providing or
offering or making active efforts to provide or offer reasonable
services to enable the child’s safe return home and to complete
and finalize the permanent placement of the child.”
The juvenile court ordered DCFS to continue to provide
reunification services to father. In particular, the court ordered
DCFS to “provide . . . father with transportation assistance and
work with him to help him obtain housing.”
10
5. The June 14, 2018 12-month review hearing and
documents relating thereto
DCFS filed a status review report on April 5, 2018.5 The
agency reported that on February 23, 2018, DCFS had removed
D.N. from a foster home and placed him in a group home in part
because he was “possibly displaying sexualized behaviors towards
other children” while at the foster home. The group home
reported that while at its facility, D.N. exhibited “the following
behaviors of concern: [s]uicidal ideations and threats[,] . . . self-
injurious behavior[,] . . . and homicidal ideation, threats, and
attempts . . . .” D.N. told DCFS that he hated the group home at
which he was placed and wanted to “be placed with his mother or
father, in a different group home, or foster home.”
Father told DCFS that he had “been having trouble finding
a parenting program that ha[d] a focus on special needs
children”; the agency then provided father with additional
parenting plan referrals, and father “stated that he would be
enrolling in a program.” Father reported he had not yet secured
suitable housing, but that he obtained new employment with a
schedule that allowed him to “start consistent visitation with his
son.” As of April 4, 2018, father had attended “less than 3 visits
in this review period”; father attributed the infrequency of his
visits to “the distance of the visits” and his prior work schedule.
DCFS recommended that father continue to receive family
reunification services because he “need[ed] more time to complete
Court ordered services and to find appropriate housing.” A DCFS
5 The remainder of this paragraph and the following two
paragraphs summarize pertinent aspects of the April 5, 2018
status report.
11
social worker told father that “too much time [was] passing by
without much improvement and that he need[ed] to make a much
stronger effort.” The agency claimed that although father had
“been in regular contact with [DCFS], . . . . [he] ha[d] been
reactive instead of proactive and [DCFS] . . . had to give [father]
reminders and encouragement to handle Court orders and
responsibilities in the case.” The April 5, 2018 status report
did not specifically discuss DCFS’s efforts to assist father in
securing affordable housing.
On June 14, 2018, the juvenile court held a 12-month
review hearing pursuant to section 366.21, subdivision (f). At the
hearing, the court admitted into evidence the status report filed
on April 5, 2018. The court found that “the extent of progress
made toward alleviating or mitigating the causes necessitating
placement: . . . [¶] [b]y father ha[d] been partial.” The court also
found “by clear and convincing evidence that reasonable services
ha[d] not been provided to the father to reunify with the child
and the child’s plan towards permanence.” The court ordered
DCFS to continue to provide father with family reunification
services.
6. The January 24, 2019 permanency review hearing, the
April 15, 2019 rehearing, and documents relating
thereto
On December 3, 2018, DCFS filed another status report.
DCFS stated that father had “not yet obtained suitable housing
despite applying for [a low-income] housing [program] and
shelter housing.” D.N. told DCFS “he would like to leave the
group home to live with his father.” Father reiterated that “the
distance of [D.N.’s] group home in relation to his residence, his
job schedule, lack of a car, and personal matters have made it
12
very difficult for him to visit and participate in conjoint therapy
with [D.N.] as much as he should,” but he also “maintain[ed] that
he [was] committed to reunifying with his son and . . . that he
want[ed] to continue to progress in the reunification process.”
The agency recommended that the court terminate father’s
reunification services “due to . . . father’s non-compliance with
Court orders and minimal visitation with the minor.”6
The CASA assigned to this case filed a report on
December 6, 2018. The CASA reported D.N. stated he wanted to
live with his father. Father told the CASA that he was “having
difficulty finding housing even though he ha[d] been attending
meetings” for two low-cost housing programs and a social worker
and a parent partner were “assisting him in this process.”
Father’s parent partner told the CASA that father met with the
parent partner and “speaks with her weekly on the phone.”
Father also stated he was coordinating with a social worker to
complete the steps necessary to obtain approval for overnight
visits at PGM’s home. The CASA recommended that father
continue to receive family reunification services and that
“DCFS . . . continue to assist Father in finding low income
housing.”
6 The December 3, 2018 status report once again stated
that father had difficulty finding a parenting program for special
needs children. The agency later filed a last minute information
report disclosing that father had completed a parenting program
on May 8, 2018. At the January 24, 2019 permanency review
hearing discussed further post, DCFS’s counsel did not dispute
D.N.’s counsel’s representation that this program was a
parenting class for special needs children.
13
On January 24, 2019, DCFS filed a “delivered service log”
that listed “All contacts, Services & Visits” offered by the agency
in connection with this case between June 14, 2018 and
December 13, 2018. The delivered service log indicated that on
July 17, 2018, a social worker gave father a housing referral to an
apartment complex and “encouraged him to fill out the
application.” It also showed that on October 11, 2018, the social
worker e-mailed father “a letter stating that he has an open
DCFS case and is currently homeless for the purpose of him
obtaining homeless housing at the Union Rescue Mission.” The
log further stated that on November 13, 2018, the social worker
mailed father a copy of the December 3, 2018 status report and a
housing referral packet.
On January 24, 2019, a juvenile court commissioner held a
permanency review hearing pursuant to section 366.22. The
commissioner admitted into evidence the status report that was
filed on December 3, 2018 and the “delivered service log” that was
filed on January 24, 2019.
DCFS’s counsel abandoned the agency’s position that father
had not complied with the case plan by stating: “[DCFS’s]
position today is that the father is in compliance, that only
barrier [sic] to return of the child to his custody is his lack of
housing.” Significantly, the commissioner found “by clear and
convincing evidence that reasonable services have not been
provided to father to reunify with the child and the child’s plan
towards permanence.” The commissioner also found that father
had “substantially complied with his case plan,” and “[t]he only
barrier to return of the child is [father’s] homelessness.” The
commissioner ordered DCFS to provide six more months of family
14
reunification services to father, and referred father to a program
called 211 for a housing assessment.
On February 20, 2019, DCFS filed an application for
rehearing of the January 24, 2019 rulings, which the juvenile
court granted as to the finding that the agency failed to provide
reasonable family reunification services to father. At the
rehearing held on April 15, 2019, the juvenile court reaffirmed
the commissioner’s findings that father’s “progress made toward
alleviating or mitigating the causes necessitating placement” had
been “substantial” and that DCFS failed to provide reasonable
services to father, along with the commissioner’s previous ruling
that the agency must continue to provide father with
reunification services.
7. The October 8, 2019 order granting mother’s
section 388 petition, the October 11, 2019 permanency
review hearing, and the December 6, 2019 rehearing,
and documents relating thereto
On July 9, 2019, DCFS filed another status review report.7
DCFS noted that D.N. was “losing hope in regards [sic] to going
home,” and began “to act out to display his feeling of
hopelessness . . . . in class” by failing to “sit still long enough to
complete many assignments” and having “physical and verbal
fights with several classmates.”
Father “express[ed] difficulty in finding housing, stating,
‘every place I apply to tells me no or they might accept me if I had
my son[,]’ ” and stated that “lack of housing opportunity, lack of
7 The remainder of this paragraph and the next four
paragraphs discuss relevant aspects of the July 9, 2019 status
report.
15
transportation, and distance from [D.N.] [were father’s] biggest
barriers” to reunifying with D.N. Father stated he applied to
“approximately twenty different apartments between Los Angeles
and Riverside Counties without success,” and that although the
parent partner assigned to this matter had “referred him to
multiple housing options in Riverside County, . . . all of the
options reported no vacancies, asked him to sign up for their
waitlist, or informed him that they would consider him if he had
his child with him already.” He reported that the 211 housing
referral from the court and the housing referrals provided by
DCFS “all had the same or similar results.” A social worker told
father that DCFS could ascertain whether a program called
“STOP” could finance his first and last month’s rent, and the
worker provided father with “a housing referral for multiple
housing programs.”
Father “expressed openness” to the following possibilities
that DCFS presented to him: “reunifying with [D.N.] at his
girlfriend’s home [(located in Riverside)], homeless shelter, or
hotel close to his current residence . . . .” Father stated that “he,
his girlfriend, his girlfriend’s mother, and his girlfriend’s
grandmother all live at the Riverside residence.” Father
“reported that all members of the family can pass live scan
background checks, but he would need to speak with his
girlfriend about the possibility of [D.N.] living with them.” “As of
the writing of [that status] report, [father had] not updated
[DCFS] regarding the option of having [D.N.] placed in” his
girlfriend’s family’s home. Additionally, DCFS reported that
father had “continued to visit [D.N.] sporadically, [and had] not
had consistent overnight weekend visits due to his weekend work
16
schedule,” and the agency observed that father’s “visits ha[d]
become more difficult due to relocating to Riverside, CA.”
DCFS further noted that although it had attempted to
contact all of D.N.’s known relatives, only mother and father had
responded to the agency’s mail or telephone messages.
Although it opined that father “ha[d] complied with Court
and [DCFS] orders, completed all Court ordered services outside
of conjoint therapy,[8] and [was] making great efforts to continue
phone calls and overnight visitation,” DCFS recommended that
the juvenile court terminate father’s family reunification services.
The agency also recommended that the juvenile court find that
D.N. was “not a proper subject for adoption and ha[d] no one
willing to accept legal guardian[ship].” Consequently, DCFS
sought an order providing that D.N. would “remain in long term
foster care as a permanent plan.” (Capitalization omitted.)
On July 23, 2019, the CASA filed a report as well. The
CASA noted that DCFS placed D.N. in his then-current group
home on April 6, 2018, and that D.N. told the CASA that he
wanted to live with father or maternal grandmother (MGM.)
Father told the CASA that he continued to have difficulty finding
affordable housing even though he had contacted several housing
agencies and housing websites. The CASA recommended that
8 In the July 9, 2019 status report, the agency opined that
father was merely “partially compliant” with the conjoint therapy
aspect of the case plan because father and D.N. had completed
only six conjoint sessions since therapy commenced on
September 20, 2018. (Boldface & capitalization omitted.) DCFS
did not identify the number of conjoint sessions it believed would
have been adequate for father to have complied with this part of
the case plan.
17
the juvenile court place D.N. with his father “if appropriate
housing is secured.”
DCFS filed two last minute information reports that were
dated September 12, 2019. The first report stated that DCFS had
conducted a home assessment of MGM and, on May 8, 2019, it
denied her request to place D.N. in her residence primarily
because MGM “has a long history of substance abuse[,] [¶] . . . [¶]
a limited healthy support system[,] . . . [¶] . . . [and] demonstrated
poor judgement, specifically in relation to child care.”
The second last minute information report dated
September 12, 2019 addressed father’s unsuccessful efforts at
securing housing and DCFS’s unsuccessful attempts at placing
D.N. in a “lower level of care” than the group home at which he
resided. (Boldface omitted.) Father informed DCFS on June 26,
2019 that his girlfriend’s family was no longer interested in
having D.N. placed in their home.
In late August 2019, DCFS referred father to the family
reunification housing subsidy program and further inquired as to
father’s efforts to obtain housing. Father stated that he obtained
full-time employment in Riverside and applied to multiple
apartments in that area; he reported that several apartments
denied his application and he had not heard back from others.
Additionally, on August 29, 2019, DCFS attempted to move D.N.
from his group home to a foster home, but D.N. threw a tantrum
and refused to leave because he did not want to live far from
MGM.
On September 9, 2019, mother filed a petition pursuant to
section 388 to set aside the May 1, 2017 order terminating her
family reunification services. On October 8, 2019, the juvenile
court granted mother’s section 388 petition, reinstated her family
18
reunification services, and scheduled a permanency review
hearing for mother for April 7, 2020.
DCFS filed another last minute information report on
October 8, 2019. The report noted that DCFS had not yet been
able to find a suitable foster home for D.N. In addition, father
told DCFS that “several housing options [had] contacted him, but
[they] were not valid options due to them not accepting 3rd party
checks,” and that “he continue[d] to work with his 211 worker
closely and [was] continuing to apply to potential housing
options.”
On October 11, 2019, a commissioner of the juvenile court
held another permanency review hearing for father. At the
hearing, father’s counsel orally requested that the court utilize its
authority under section 352 to extend father’s reunification
services and continue the permanency review hearing, arguing
that father had completed his case plan, the only barrier to
reunification was father’s lack of suitable housing, and,
notwithstanding father’s efforts to secure such housing, factors
outside of his control (including “lack of finances”) have prevented
father from reunifying with D.N. D.N.’s counsel joined in father’s
request for a continuance under section 352.
The commissioner granted father’s request for a
continuance under section 352, and extended father’s family
reunification services until April 7, 2020 (i.e., the date scheduled
for mother’s permanency review hearing), at which time a further
permanency review hearing for father would be held. The
commissioner found that it would be in D.N.’s best interest to
extend reunification services, extenuating circumstances
warranted the continuance, and “[f]ather ha[d] fully complied
19
with his case plan and the only barrier to reunification [was]
housing.”
On November 1, 2019, DCFS filed an application for a
rehearing of the commissioner’s October 11, 2019 order, which
the juvenile court granted. At the rehearing held on
December 6, 2019, the juvenile court admitted into evidence,
inter alia, the July 9, 2019 status report, the July 23, 2019 CASA
report, the last minute information reports dated
September 12, 2019,9 and the October 8, 2019 last minute
information report.
The juvenile court thereafter denied father’s oral request
for a continuance under section 352 and terminated father’s
reunification services. In support of these rulings, the juvenile
court found that reasonable services had been offered to father
and “[r]eturn of the child to the physical custody of [father] would
pose substantial risk of detriment to his physical and/or mental
health creating a continuing necessity for and appropriateness of
the current placement.” The court also found that father’s
attempts to secure suitable housing for him and his son were
“sincere” and that he had made “substantial” progress “toward
alleviating or mitigating the causes necessitating placement.”
The court intimated that its denial of father’s continuance
request would not prejudice him because he could file a
section 388 petition to seek custody of D.N. if and when father
obtained housing. Additionally, upon being reminded by
mother’s counsel that her permanency review hearing was
scheduled for April 7, 2020, the juvenile court decided not to
9The juvenile court referred to these two last minute
information reports as if they were just one report.
20
schedule a hearing under section 366.26 to terminate father’s
parental rights.
On December 9, 2019, father appealed the juvenile court’s
December 6, 2019 order.
8. The proceedings following the December 6, 2019
rehearing
Mother’s permanency review hearing was ultimately
continued from April 7, 2020 to September 8, 2020. At the
September 8, 2020 permanency review hearing, the juvenile court
ordered DCFS to return D.N. to mother’s custody, retained
jurisdiction over the case, ordered mother to submit to drug
testing, and scheduled a section 364 review hearing for
March 8, 2021.10 On September 9, 2020, father appealed the
September 8, 2020 order.11 That appeal is not before us.
10 “[S]ection 364 . . . governs subsequent review hearings
when a dependent child has been placed back in the custody of
one parent.” (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650
(Gabriel L.).) At a section 364 review hearing, “[t]he court shall
terminate its jurisdiction unless the social worker or his or her
department establishes by a preponderance of evidence that the
conditions still exist which would justify initial assumption of
jurisdiction under Section 300, or that those conditions are likely
to exist if supervision is withdrawn.” (See § 364, subd. (c).)
11 We previously granted father’s request for judicial
notice of the September 8, 2020 minute order and of father’s
notice of appeal that was stamped “received” by the juvenile court
clerk. (Capitalization omitted.) (See Evid. Code, §§ 452, subd. (d)
& 459.) We also, sua sponte, take judicial notice of the version of
that same notice of appeal that was later file-stamped by the
juvenile court clerk, along with the minute orders that continued
21
DISCUSSION
At the December 6, 2019 hearing, the juvenile court denied
father’s request under section 352 for a continuance of the
section 366.22 permanency review hearing and of father’s family
reunification services.
Section 366.22, subdivision (a) provides in pertinent part:
“[T]he permanency review hearing shall occur within 18 months
after the date the child was originally removed from the physical
custody of his or her parent or legal guardian. After considering
the admissible and relevant evidence, the court shall order the
return of the child to the physical custody of his or her parent or
legal guardian unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child.
The social worker shall have the burden of establishing that
detriment. . . . [¶] . . . [¶] . . . Unless the conditions in
subdivision (b) are met[12] and the child is not returned to a
parent or legal guardian at the permanency review hearing, the
court shall order that a hearing be held pursuant to
Section 366.26 in order to determine whether adoption, . . .
guardianship, or continued placement in foster care is the most
appropriate plan for the child. . . . [and] order termination of
mother’s permanency review hearing from April 7, 2020 to
September 8, 2020.
12 As explained post, Discussion part B.2, it does not
appear that section 366.22, subdivision (b) is applicable to this
case.
22
reunification services to the parent or legal guardian.” (See
§ 366.22, subds. (a)(1) & (a)(3).)
In turn, section 352, subdivision (a) provides in relevant
part that “[u]pon request of counsel[,] . . . the court may continue
any hearing under this chapter beyond the time limit within
which the hearing is otherwise required to be held, provided that
a continuance shall not be granted that is contrary to the interest
of the minor” and “[c]ontinuances shall be granted only upon a
showing of good cause and only for that period of time shown to
be necessary by the evidence presented at the hearing on the
motion for the continuance.” (See § 352, subds. (a)(1) & (a)(2).)
“We review the juvenile court’s decision to deny a
continuance for abuse of discretion. [Citation.] ‘Discretion is
abused when a decision is arbitrary, capricious or patently
absurd and results in a manifest miscarriage of justice.’
[Citation.]” (In re D.Y. (2018) 26 Cal.App.5th 1044, 1056 (D.Y.).)
As discussed in more detail below, we conclude the juvenile
court abused its discretion in denying father’s continuance
request for two reasons. First, the juvenile court erroneously
believed it lacked authority to extend family reunification
services beyond 24 months. Second, the undisputed facts
established that good cause supported the request—a
continuance was in D.N.’s best interest and father needed at least
some additional time to obtain suitable housing.13
13 Because we conclude the juvenile court erred in denying
father’s request to continue the section 366.22 permanency
review hearing, we need not reach father’s claim that he would
have been entitled to the return of D.N. to his custody at any
such permanency review hearing. (Cf. In re Elizabeth R. (1995)
35 Cal.App.4th 1774, 1777, 1786–1787 (Elizabeth R.) [declining
to review the substance of a parent’s challenges to certain rulings
23
DCFS argues we should dismiss the instant appeal as
moot. We thus address that challenge first.
A. Father’s Appeal Is Not Moot
DCFS maintains that “[e]ven if this Court were to find the
juvenile court previously erred when it terminated father’s family
reunification services, [the Court of Appeal] can provide no
effective relief because . . . the [juvenile] court’s
[September 8, 2020] order returning the child to mother[ ] results
in father having no entitlement to family reunification services.”
(See also In re E.T. (2013) 217 Cal.App.4th 426, 436 (E.T.) [“An
appeal may become moot where subsequent events, including
orders by the juvenile court, render it impossible for the
reviewing court to grant effective relief.”].) In support of this
argument, DCFS invokes section 16507, subdivision (b), which
provides: “Family reunification services shall 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).) DCFS asserts that “[n]either
circumstance applies here” because “D.N. has been returned to
mother, who was the child’s custodial parent at the outset of the
case.”
DCFS’s argument rests on the assumption that mother
could not constitute “a previously noncustodial parent” for the
purposes of section 16507, subdivision (b), even though D.N. had
been living in group or foster care homes for nearly four years at
at the section 366.22 permanency review hearing because the
juvenile court should have considered whether a continuance
under section 352 was appropriate].)
24
the time the juvenile court returned the child to mother’s custody.
DCFS fails to develop adequately this assumption in its briefing.
Accordingly, we do not address it.
In any event, father’s purported ineligibility for
reunification services would not render this appeal moot. The
September 8, 2020 order did not address or otherwise alter the
juvenile court’s prior finding that returning D.N. to father’s
custody would create a substantial risk of detriment to the minor.
Because this finding “may have collateral consequences” in
this case, father’s appeal is not moot. (See E.T., supra,
217 Cal.App.4th at p. 436 [“ ‘ “An issue is not moot if the
purported error infects the outcome of subsequent
proceedings.” ’ ”].) Were we to rule the issue moot, the juvenile
court’s finding of detriment may escape review despite the
potential deleterious consequences to father of that ruling.
For instance, if the juvenile court terminates its
jurisdiction at a later section 364 hearing, then this detriment
finding could affect whether the court grants mother sole physical
custody of D.N. in the exit order.14 This is because the juvenile
court’s prior finding of detriment established that returning D.N.
14 “When terminating its jurisdiction over a child who has
been declared a dependent child of the court, section 362.4
authorizes the juvenile court to issue a custody and visitation
order (commonly referred to as an ‘exit order’) that will become
part of the relevant family law file and remain in effect in the
family law action ‘until modified or terminated by a subsequent
order.’ ” (In re T.S. (2020) 52 Cal.App.5th 503, 513 (T.S.).) “If no
family law action is pending, the court’s order ‘may be used as the
sole basis for opening a file in the superior court of the county in
which the parent, who has been given custody, resides.’
[Citation.]” (Id. at p. 513, fn. 3.)
25
to his father would contravene the child’s best interest. (See T.S.,
supra, 52 Cal.App.5th at pp. 513–514 [“[T]he court [is] required
to consider at [a section 364] hearing the totality of the
circumstances and the children’s best interest in determining
whether jurisdiction should be terminated and in fashioning
appropriate exit orders.”].) Although DCFS correctly points out
that section 364 empowers the juvenile court to modify its prior
orders, (see T.S., supra, at p. 514), the juvenile court should not
be able to rely in future proceedings on a detriment finding that
was premature when made given father’s sincere efforts to obtain
housing and D.N.’s failure to thrive in foster care or group home
settings.
In addition, were mother to resume her use of narcotics, as
she had in the past as set forth in our Factual and Procedural
Background, the juvenile court could remove D.N. from her
custody. (See T.S., supra, 52 Cal.App.5th at p. 514 [noting that
section 387 authorizes DCFS to “file a supplemental petition to
modify a previous order by removing a child from the physical
custody of a parent and directing placement in a foster home”];
§ 387, subd. (b) [“The supplemental petition shall be filed by the
social worker in the original matter and shall contain a concise
statement of facts sufficient to support the conclusion that the
previous disposition has not been effective in the rehabilitation or
protection of the child . . . .”].)
Further, if mother does not timely mitigate the substantial
risk of harm to D.N. resulting from her substance use, then the
juvenile court could set a section 366.26 hearing to determine
whether to terminate both parents’ rights, given that the court
has already found by a preponderance of the evidence that
returning the child to father’s custody poses a substantial risk to
26
D.N.’s “safety, protection, or physical or emotional well-being.”
(See § 366.22, subd. (a)(1) [“After considering the admissible and
relevant evidence, the court shall order the return of the child to
the physical custody of his or her parent or legal guardian unless
the court finds, by a preponderance of the evidence, that the
return of the child to his or her parent or legal guardian would
create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child. The social worker
shall have the burden of establishing that detriment.”]; id.,
subd. (a)(3) [providing in relevant part that if the child is not
returned to a parent at the permanency review hearing held
pursuant to section 362.22, subdivision (a)(1), “the court shall
order that a hearing be held pursuant to Section 366.26 in order
to determine whether adoption, . . . guardianship, or continued
placement in foster care is the most appropriate plan for the
child.”]; Elizabeth R., supra, 35 Cal.App.4th at p. 1788 [“If the
child is adoptable and if no extraordinary situation exists,
termination of parental rights at the section 366.26 hearing is
highly likely.”].) Thereafter, father would have to overcome “ ‘a
rebuttable presumption that continued foster care is in the best
interests of the child’ ” in order to secure custody of D.N. (See
Elizabeth R., supra, at p. 1796.) On the other hand, father would
have no such obstacle if we granted him appellate relief by
reversing the detriment finding.
Additionally, we note that even if the
September 8, 2020 order would effectively bar father from
receiving family reunification services in the future, he could
nonetheless secure some type of child welfare services upon
27
remand.15 “If, after a period during which both parents were
offered reunification services, the child is then placed with one
parent,” the juvenile court “may, but is not required to, continue
services for the noncustodial parent.” (See Gabriel L., supra,
172 Cal.App.4th at p. 647.) “[T]he court has discretion to provide
services for the nonreunifying parent if the court determines that
doing so will serve the child’s best interests.” (See id. at p. 652.)
As this discretion is “broad,” a “reviewing court will not reverse
the court’s order in the absence of a clear abuse of discretion.”
(See ibid.) Whether continuing to provide father with child
welfare services would still serve D.N.’s best interests and, if so,
whether these services should take the form of reunification
services, are questions for the juvenile court to address upon
remand.
15 “ ‘[C]hild welfare services’ means public social services
that are directed toward the accomplishment of any or all of the
following purposes: [¶] (A) Protecting and promoting the welfare
of all children, including disabled, homeless, dependent, or
neglected children[;] [¶] . . . [¶] (C) Preventing the unnecessary
separation of children from their families by identifying family
problems, assisting families in resolving their problems, and
preventing breakup of the family where the prevention of child
removal is desirable and possible[; and] [¶] (D) Restoring to their
families children who have been removed, by the provision
of services to the child and the families.” (See § 16501,
subds. (a)(1)(A), (a)(1)(C), & (a)(1)(D).) Child welfare services
include, inter alia, “family preservation services, family
maintenance services, family reunification services, and
permanent placement services . . . .” (See § 16501, subd. (a)(2).)
28
B. The Juvenile Court Erroneously Believed It Lacked
the Authority to Grant Father’s Continuance
Request
1. The rationale for the juvenile court’s ruling
The record demonstrates that at the December 6, 2019
hearing, the juvenile court denied father’s request for a
continuance because it believed it lacked the authority to grant
the request.
DCFS’s application for a rehearing sought a ruling setting
aside the commissioner’s October 11, 2019 order authorizing
father to continue to receive reunification services on the ground
that it “was without a basis in law, since there was no statutory
or case law provision for reunification services beyond the
twenty[-]four month date.” Although DCFS’s application for a
rehearing was not entirely clear on this point, it appears that the
agency was contending that the “twenty[-]four month” timeframe
began when father started receiving reunification services on
May 1, 2017.
Similarly, the juvenile court indicated it believed father
could obtain only one six-month continuance of the section 366.22
18-month permanency review hearing such that the hearing
should have occurred no later than November 2017 (i.e., six
months after the father initially received reunification services in
May 2017). Specifically, the juvenile court indicated it believed
that because the detention hearing occurred in June 2013 and
D.N. was initially removed from mother’s custody at the
disposition hearing in January 2014, section 366.22 required that
an 18-month permanency review hearing be held in “2014 or
2015” and the father could obtain only one six-month extension of
the permanency review hearing. The juvenile court also
29
expressed its skepticism regarding whether section 352
authorized it to continue the permanency review hearing further.
In particular, the court asked D.N.’s counsel: “How many
continuances does she [(father’s counsel)] get under 352 since the
father got one in November of 2017 and has continued to get
them for the last two years? How many continuances do you get
under 352?”
Besides the juvenile court’s belief that it lacked the
authority to grant father’s request for a continuance, the record
does not reveal any other rationale for the court’s ruling denying
this request.
2. The juvenile court’s authority to depart from the
statutory time limits on family reunification services
Admittedly, the juvenile dependency system’s statutory
scheme generally limits the time in which a parent can receive
family reunification services. Section 361.5, subdivision (a)(1)(A)
provides that, as a general rule, if a child “was three years of age
or older” as of “the date of initial removal from the physical
custody of his or her parent or guardian,” then “court-ordered
services shall be provided beginning with the dispositional
hearing and ending 12 months after the date the child entered
foster care as provided in Section 361.49,[16] unless the child is
returned to the home of the parent or guardian.” (See § 361.5,
subd. (a)(1)(A).) That 12-month date elapsed long before the
16 “Section 361.49 provides that a child is deemed to have
entered foster care on the earlier of the date of the jurisdiction
hearing or the date that is 60 days after the child is initially
removed from the physical custody of his or her parent.” (In re
M.S. (2019) 41 Cal.App.5th 568, 594 & fn. 15 (M.S.).)
30
juvenile court terminated father’s reunification services on
December 6, 2019.17
Furthermore, although section 361.5, subdivision (a)(3)(A)
creates an exception to subdivision (a)(1)(A)’s general rule, that
exception does not, by its terms, support father’s request for a
continuance of reunification services. It provides that “court-
ordered services may be extended up to a maximum time period
not to exceed 18 months after the date the child was originally
removed from physical custody of his or her parent or guardian if
it can be shown, at the hearing held pursuant to subdivision (f) of
Section 366.21, that the permanent plan for the child is that he or
she will be returned and safely maintained in the home within
the extended time period.” (See § 361.5, subd. (a)(3)(A), italics
added.) Even if father had shown that D.N. would be returned
and safely maintained in his home within any continued
reunification period, this provision would not have been available
to him because as of the December 6, 2019 hearing, more than
18 months had elapsed since D.N. had been removed from his
custody.18
17 Even assuming for the sake of argument that, because
the juvenile court found that DCFS initially failed to provide
father with proper notice of the proceedings, D.N. was not
properly removed from father’s custody until the May 1, 2017
hearing at which the court sustained the supplemental petition,
the 12-month period would have expired on May 1, 2018.
18 Although section 361.5, subdivision (a)(4)(A) allows for
“court-ordered services [to] be extended up to a maximum time
period not to exceed 24 months after the date the child was
originally removed from physical custody of his or her parent,”
that provision is applicable only if certain findings are made at a
“hearing held pursuant to subdivision (b) of Section 366.22 . . . .”
31
Notwithstanding these statutory limits on reunification
services, a juvenile court may invoke section 352 to extend family
reunification services beyond these limits if there are
“extraordinary circumstances which militate[ ] in favor of”
such an extension. (See Andrea L. v. Superior Court (1998)
64 Cal.App.4th 1377, 1388–1389 (Andrea L.); see also M.S.,
supra, 41 Cal.App.5th at p. 596 & fn. 16 [holding that, under
certain circumstances, “reunification services can . . . be ordered
or provided beyond section 361.5, subdivision (a)(4)(A)’s 24-month
limit”].) Extraordinary circumstances exist when “inadequate
services” are offered by the child welfare agency or “an external
force over which [the parent has] no control” prevented the
parent from completing a case plan. (See Andrea L., supra, at
pp. 1388–1389; see also In re G.S.R. (2008) 159 Cal.App.4th 1202,
1213, 1215 (G.S.R.) [holding that the juvenile court could “restart
the clock on reunification services and related efforts, including
housing assistance” to remedy the child welfare agency’s failure
(See § 361.5, subd. (a)(4)(A).) Section 366.22, subdivision (b)
applies only if the “parent or legal guardian . . . is making
significant and consistent progress in a court-ordered residential
substance abuse treatment program, a parent . . . was either a
minor parent or a nonminor dependent parent at the time of the
initial hearing making significant and consistent progress in
establishing a safe home for the child’s return, or [is] a parent
recently discharged from incarceration, institutionalization, or
the custody of the United States Department of Homeland
Security and making significant and consistent progress in
establishing a safe home for the child’s return . . . .” (See
§ 366.22, subd. (b).) There is no indication in the record that
father satisfies any of these criteria and, even if he did, the
December 6, 2019 hearing was well beyond the 24-month date.
32
to “craft[ ] a plan to help [the father] obtain affordable housing
for his family”].)
For instance, a juvenile court could continue a
section 366.22 permanency review hearing and delay the
termination of reunification services for “a mother who had
worked hard to comply with the case plan but had been
hospitalized during a critical stage of the reunification period.”
(See Andrea L., supra, 64 Cal.App.4th at p. 1388, citing
Elizabeth R., supra, 35 Cal.App.4th at pp. 1790–1792;
Elizabeth R., supra, at p. 1799 [“A section 352 continuance . . . is
a mechanism the court could have utilized had it not erroneously
concluded it was required to terminate services and order a
selection and implementation hearing.”].) Conversely, a
“mother’s relapse into cocaine abuse” likely would not constitute
extraordinary circumstances warranting the extension of
reunification services beyond the statutory limits. (See
Andrea L., supra, at p. 1389.)
The rationale for allowing for an “emergency escape valve
in those rare instances in which the juvenile court determines the
best interests of the child would be served by a continuance of the
18-month review hearing” is that the “ ‘Legislature never
intended a strict enforcement’ ” of these statutory limits to
“ ‘override all other concerns including preservation of the family
when appropriate.’ ” (See Elizabeth R., supra, 35 Cal.App.4th at
pp. 1798–1799; M.S., supra, 41 Cal.App.5th at pp. 594–595.) Put
differently, under unusual and rare circumstances, “the statutory
and constitutional interests of the parent and child in
reunification if possible prevails [sic] over” such limits. (See
M.S., at p. 594.)
33
Thus, the juvenile court erred in finding it lacked
the authority to grant father’s continuance request. (See In re
Priscilla D. (2015) 234 Cal.App.4th 1207, 1215 [“ ‘A decision that
rests on an error of law constitutes an abuse of discretion.’
[Citation.]”].)
As discussed further below, the juvenile court’s findings
and the undisputed facts demonstrate that, notwithstanding
DCFS’s provision of reasonable reunification services and father’s
sincere efforts in attempting to obtain suitable housing, an
external force over which father had no control prevented him
from reunifying with D.N. within section 361.5, subdivision (a)’s
restrictions—i.e., the lack of readily accessible affordable
housing. The undisputed facts also establish that a continuance
of the section 366.22 hearing and of the father’s reunification
services was the only means by which the juvenile court could
have effectuated the Legislature’s “ ‘strong preference for
maintaining the family relationships if at all possible,’ ” (see
Elizabeth R., supra, 35 Cal.App.4th at p. 1787), and was in the
best interests of D.N.
C. As a Matter of Law, Good Cause Supported Father’s
Request for a Continuance
1. Extraordinary circumstances existed such that there
was good cause for continuing the permanency review
hearing and father’s reunification services
As discussed in greater detail below, this case presented
“extraordinary circumstances” giving rise to good cause to grant
father’s continuance request because, notwithstanding father’s
sincere efforts and DCFS’s assistance, external forces resulted in
34
his inability to secure affordable housing for himself and D.N.
(See Andrea L., supra, 64 Cal.App.4th at p. 1388.)
DCFS and the juvenile court recognized that father did not
have suitable housing because he was indigent. DCFS’s records
showed that the agency had provided father with a letter
intended to help him obtain “homeless housing” at a rescue
mission, and the court referred father to the 211 housing
program on account of his “homelessness.”
Furthermore, DCFS’s counsel conceded at the
December 6, 2019 hearing that the only obstacle to D.N.’s
placement with father was his lack of adequate housing for D.N.
The juvenile court found at that hearing that since the prior
permanency review hearing, “reasonable services have been
provided to the father to reunify with the child . . . .”19 Yet, the
juvenile court found at that hearing that father’s attempts to
obtain housing were “sincere,” and that he had made
“substantial” progress “toward alleviating or mitigating the
causes necessitating placement.”20 Father reported during the
19 Father challenges that finding on appeal because
“[DCFS] had been unable to find housing for [father and D.N.]”
and father had made “every effort to find housing.” “The
standard is not whether the services provided were the best that
might be provided in an ideal world, but whether the services
were reasonable under the circumstances.” (In re Misako R.
(1991) 2 Cal.App.4th 538, 547.) The mere fact that DCFS and
father were unable to secure suitable housing for D.N. does not
establish that the agency’s services failed to satisfy this
reasonableness standard.
20 Although DCFS suggests it does not believe that father
acted in good faith in attempting to secure affordable housing,
the agency does not challenge the juvenile court’s findings that
35
most recent six-month period in which he received reunification
services that, notwithstanding his sincere efforts to procure
housing, several apartments simply denied his applications,
others did not respond to his applications, and still others would
not allow him to move in because they did not accept third-party
checks or because he did not “have” D.N.
This lack of affordable housing constituted an “external
force over which [father] ha[d] no control” that warranted an
extension of reunification services beyond the statutory limits.
(See Andrea L., supra, 64 Cal.App.4th at p. 1389.)
2. Denying father’s request for continuance, terminating
his reunification services, and requiring father to file
a section 388 petition if he secures suitable housing
do not constitute a reasonable alternative to a
continuance
As we noted at the outset of our discussion, section 366.22,
subdivision (a)(3) provides that if “the child is not returned to a
parent or legal guardian at the permanency review hearing, . . . .
[t]he court shall . . . order termination of reunification services to
the parent or legal guardian.” (See § 366.22, subd. (a)(3).)
Section 366.22, subdivision (a)(1) in turn provides that at the
permanency review hearing, “the court shall order the return of
the child to the physical custody of his or her parent or legal
guardian unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment to the
father’s attempts to obtain an affordable home for D.N. were
sincere and that he substantially complied with DCFS’s case
plan.
36
safety, protection, or physical or emotional well-being of the
child.” (See § 366.22, subd. (a)(1).)
At the December 6, 2019 hearing, the juvenile court
terminated father’s reunification services pursuant to
section 366.22 and found that returning D.N. to father’s custody
would create a substantial risk of detriment to D.N. That finding
is reviewed for substantial evidence. (In re Yvonne W. (2008)
165 Cal.App.4th 1394, 1400–1401.)
The juvenile court erred in making a finding of detriment
without giving father more time to find housing. As we explained
ante, Discussion part C.1, father’s “lack of housing . . . arises
directly out of the fact of his poverty,” which is not “a legitimate
ground for removing” D.N. from father’s custody. (See G.S.R.,
supra, 159 Cal.App.4th at pp. 1212–1214.) As a matter of law,
“indigency, by itself, does not make one an unfit parent” and,
therefore, cannot support a finding that returning D.N. to father’s
custody would create a substantial risk of detriment to the child.
(See id. at p. 1212; see also id. at p. 1214 [“As for the finding of
detriment based on [father’s] lack of housing, that finding arises
directly out of the fact of his poverty. The record is devoid of
evidence that, but for his inability to obtain housing, [father] is
incapable of adequately parenting his sons.”]; see also In re S.S.
(Oct. 2, 2020, E074852) __ Cal.App.5th __, __ [2020 Cal.App.Lexis
926, at pp. *37–38] (S.S.) [“[F]ather couldn’t regain custody of
[the minor] because of his economic situation, not his parenting
ability. He lacked adequate housing . . . . We agree with the
court in G.S.R. that these housing problems do not support the
trial court’s detriment finding as a basis for terminating father’s
parental rights.”].) Given that father’s lack of housing was the
only barrier to reunifying with D.N. and that D.N. was failing to
37
thrive in group and foster care homes, the juvenile court should
have given father more time to find housing instead of
terminating his reunification services and making a premature
finding of detriment.21
The juvenile court suggested that the denial of father’s
continuance request would not prejudice him because he could
simply file a section 388 petition and seek the return of the child
if father obtained suitable housing. To the extent the juvenile
court determined that a section 388 petition was an equivalent
remedy to a continuance, we disagree.
If father were relegated to filing a section 388 petition to
set aside the December 6, 2019 order, he would have been
required to “ ‘show by a preponderance of the evidence that there
is new evidence or that there are changed circumstances that
make a change of placement in the best interests of the child.’ ”
(See Elizabeth R., supra, 35 Cal.App.4th at p. 1796.)
21 DCFS argues that we should not reach this issue
because father forfeited his challenge to the juvenile court’s
detriment finding by failing to raise it below. We exercise our
discretion to entertain this appellate challenge because of the
unique circumstances of this case. Given that the facts relevant
to our assessment of the detriment finding are undisputed, that
finding presents an important and purely legal issue. (See In re
Anthony Q. (2016) 5 Cal.App.5th 336, 345 [“Although the
forfeiture doctrine applies in dependency cases and the failure to
object to a disposition order on a specific ground generally forfeits
a parent’s right to pursue that issue on appeal [citations], when
the appeal involves an important and purely legal issue subject to
our independent review . . . , we have discretion to entertain the
challenge to the juvenile court’s order notwithstanding the
parent’s failure to object on that basis in the juvenile court.”].)
38
In contrast, if the section 366.22 hearing were instead
postponed, DCFS would have borne “the burden of establishing”
by a preponderance of the evidence that “the return of the child to
his or her parent or legal guardian would create a substantial
risk of detriment to the safety, protection, or physical or
emotional well-being of the child” in order to prevent D.N. from
being reunited with father. (See § 366.22, subd. (a)(1).) Finally,
as we observed ante, Discussion part A, if a hearing to terminate
his parental rights under section 366.26 were ultimately
scheduled, father would also confront “ ‘a rebuttable presumption
that continued foster care is in the best interests of the child.’ ”
(See Elizabeth R., supra, 35 Cal.App.4th at p. 1796.)
Thus, a continuance of the section 366.22 permanency
review hearing would have effectuated the Legislature’s “ ‘strong
preference for maintaining the family relationships if at all
possible[,]’ ” a preference that is especially apt here because
DCFS agreed that lack of suitable housing was the only basis for
finding detriment to D.N. were he reunited with his father, and
the juvenile court found that father made “sincere” efforts to find
suitable housing and otherwise substantially complied with his
case plan. (See Elizabeth R., supra, 35 Cal.App.4th at p. 1787;
see id. at p. 1788 [“ ‘The focus during the prepermanent planning
stages is preserving the family whenever possible [citation]
whereas the focus after the permanent planning hearing is to
provide the dependent children with stable, permanent
homes.’ ”].) Thus, the juvenile court’s denial of the continuance
motion “ ‘result[ed] in a manifest miscarriage of justice.’ ” (See
D.Y., supra, 26 Cal.App.5th at p. 1056.)
We acknowledge that the 31-month period in which father
was attempting to reunify with D.N. is considerably longer than
39
the statutory allowance for reunification services, as well as the
period reunification services were offered in other cases holding
that poverty alone cannot be the basis for a detriment finding.
(See G.S.R., supra, 159 Cal.App.4th at pp. 1206–1208 [father
began receiving reunification services in March 2005, and the
juvenile court terminated those services in March 2006];
S.S., supra, __ Cal.App.5th at pp. __ [2020 Cal.App.Lexis 926, at
pp. *1–3] [the juvenile court ordered DCFS to provide father with
reunification services at a jurisdiction and disposition hearing
held in July 2018, but terminated those services in February
2019].)
Our holding is based on the unique circumstances of this
family at the time the court denied continuing the permanency
review hearing. No party disputes the juvenile court’s finding
that father had made substantial progress toward alleviating or
mitigating the causes necessitating placement, or the fact that
father applied for housing at multiple locations only to be
rebuffed at the housing options available to someone of his scant
means. At the same time, D.N. was consistently failing in group
and foster care homes. For example, in these settings, he was
perceived as displaying sexualized behavior to other children,
suicidal and homicidal ideation, and aggressive behavior. He
strenuously expressed his wish to live with father, mother, or
MGM.
Recall the balance of the parties’ interests discussed at the
beginning of our opinion. Had the juvenile court continued the
permanency review hearing, it would have harmonized father’s
parental interest in caring for his son with the son’s best
interests in finding a parental placement in which he hoped to
thrive. Refusing to continue that hearing, discontinuing
40
reunification services, and prematurely finding detriment
thwarted those interests, and thus resulted “ ‘in a manifest
miscarriage of justice.’ ” (See D.Y., supra, 26 Cal.App.5th at
p. 1056.) There may come a time when the balance between
parental rights and D.N.’s need for permanency shifts in favor of
a permanent and secure home for D.N., father’s poverty
notwithstanding. That time, however, had not yet come based on
the record before us.
3. We reject DCFS’s claim that father’s oral motion was
procedurally deficient
Section 352, subdivision (a)(3) provides that, “[i]n order to
obtain a motion for a continuance of the hearing, written notice
shall be filed at least two court days prior to the date set for
hearing, together with affidavits or declarations detailing specific
facts showing that a continuance is necessary, unless the court
for good cause entertains an oral motion for continuance.” (See
§ 352, subd. (a)(3).) DCFS does not argue expressly that the
juvenile court should have denied father’s oral motion for a
continuance pursuant to this subdivision. Rather, the agency
remarks in passing that “there was no written motion, and no
good cause was demonstrated at the hearing.”
To the extent that DCFS asks us to affirm the juvenile
court’s denial of the continuance motion on that basis, we find
that DCFS has waived that argument by failing to clarify
whether it intended to raise this claim at all. (See Pack v. Kings
County Human Services Agency (2001) 89 Cal.App.4th 821, 826,
fn. 5 [“ ‘Although it is the appellant’s task to show error, there is
a corresponding obligation on the part of the respondent to aid
the appellate court in sustaining the judgment. “[I]t is as much
the duty of the respondent to assist the [appellate] court upon the
41
appeal as it is to properly present a case in the first instance, in
the court below.” [Citations.]’ ”].)
Furthermore, at the December 6, 2019 hearing, DCFS was
already well-aware of father’s intention to seek a continuance
because he initially made this request at the underlying
October 11, 2019 hearing before the commissioner. Thus, there
was good cause for excusing father’s failure to file a written
notice of motion at least two days before the December 6, 2019
rehearing.
D. The Undisputed Facts Establish a Continuance
Was Not Contrary to D.N.’s Best Interest
Section 352, subdivision (a)(1) provides that “a continuance
shall not be granted that is contrary to the interest of the minor,”
and “[i]n considering the minor’s interests, the court shall give
substantial weight to a minor’s need for prompt resolution of his
or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary
placements.” (See § 352, subd. (a)(1).)
Continuing the December 6, 2019 hearing would not have
undermined D.N.’s interest in the prompt resolution of his
custody status, deprived him of a stable environment, or
prolonged his temporary placement. On the date of the hearing,
mother did not have physical custody of D.N., and her
permanency review hearing was scheduled for approximately
five months later. MGM was the only other relative who
expressed any interest in having custody of D.N., but DCFS
determined that she was not a suitable custodian largely because
of her history of substance abuse. Several months before the
December 6, 2019 hearing, DCFS attempted to move D.N. from
the group home at which he was placed to a foster home. D.N.
42
refused to leave the group home because he stated that the foster
home was too far from his MGM. Additionally, the court declined
to set a hearing to terminate father’s parental rights under
section 366.26. Thus, the record establishes that D.N. would
have remained in a temporary placement regardless of whether
the juvenile court granted father’s continuance request.
Hence, the undisputed facts establish that as of the
December 6, 2019 hearing, a continuance of that hearing and of
father’s reunification services was not contrary to D.N.’s interest.
E. Father Needed Additional Time to Procure Suitable
Housing
Section 352, subdivision (a)(2) provides that “[c]ontinuances
shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence
presented at the hearing on the motion for the continuance.” (See
§ 352, subd. (a)(2), italics added.)
DCFS does not challenge the juvenile court’s finding that
father’s sincere efforts to secure housing had thus far proven
unsuccessful. DCFS does not dispute that D.N. was not thriving
in the group and foster care settings in which he had been living
for several years. D.N. was already in his mid-teens and
desperately wanted a chance to live with family before it was too
late. A brief continuance would have given D.N. that chance.
Instead, the juvenile court’s orders deprived D.N. in his own
words, of hope. Thus, the undisputed facts demonstrate that
father needed at least some additional time to attempt to reunify
with D.N.
DCFS suggests that extending reunification services would
have been futile. DCFS contends that “father’s housing had been
an issue for more than two years[ ] and he presented no evidence
43
at the hearing supporting the likelihood of reunification occurring
with additional time.”
DCFS’s argument is not based on a fair reading of the
record. The agency concedes the juvenile court found that for one
year of the reunification period, the agency failed to provide
reasonable family reunification services to father. It is
speculative to conclude from this record that with reasonable
extra time, father’s sincere and continuous efforts and DCFS’s
reasonable assistance could not yield affordable housing suitable
for father and D.N. (whether in Los Angeles County or
elsewhere). Because the juvenile court concluded that it lacked
the authority to grant father’s request, it never considered how
much more time would have been reasonable to allow father to
secure suitable housing.
Again, we observe that D.N. had been cycling
unsuccessfully through foster care and group homes. Father had
demonstrated a strong interest in caring for D.N. and satisfying
the requirements of his case plan. Under these circumstances,
the juvenile court’s failure to continue the permanency review
hearing to enable father to find suitable housing, and its
termination of reunification services, were an abuse of
discretion.22
22 We note that, regardless of whether father obtains
services upon remand, it is necessary to reverse the order
terminating his reunification services because it was the product
of a permanency review hearing that should not have happened,
but instead, should have been continued. (See § 366.22,
subd. (a)(3) [providing that reunification services must be
terminated if the child is not returned to the parent at this
permanency review hearing].)
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DISPOSITION
The juvenile court’s ruling denying father’s motion for a
continuance of the section 366.22 permanency review hearing, its
finding that returning D.N. to father’s physical custody would
create a substantial risk of detriment to the child, and its order
terminating father’s reunification services are reversed. We
remand this matter to the juvenile court to consider whether
DCFS should continue to provide father with child welfare
services, order visitation or grant joint legal or physical custody
over D.N., and for such other proceedings based on the record
then before it.
CERTIFIED FOR PUBLICATION.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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