Dorothy People v. Super. Ct. CA2/7

Filed 3/6/23 Dorothy P. v. Super. Ct. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DOROTHY P., No. B323637
Petitioner, (Super. Ct. No.
20CCJP02576A)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary
writ. Gabriela H. Shapiro, Juvenile Court Referee. Petition
denied.
Jonathan Lynn, under appointment by the Court of Appeal,
for Petitioner.
No appearance for Respondent.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Real Party in Interest.
The Children’s Law Center of Los Angeles, Ann-Marissa
Cook and Nikole Omotoy for Minor.
__________________
Dorothy P., the mother of seven-year-old Rozlyn G., seeks
extraordinary writ relief (Welf. & Inst. Code, § 366.26, subd. (l);1
Cal. Rules of Court, rule 8.452) from the juvenile court’s order at
the 12-month review hearing (§ 366.21, subd. (f)) terminating her
reunification services and setting a hearing pursuant to
section 366.26 to consider implementation of a permanent plan of
adoption for her daughter. Dorothy contends she was in
substantial compliance with her case plan, including drug
testing, and demonstrated at the review hearing, as specified by
section 366.21, subdivision (g), a substantial likelihood that
Rozlyn could be returned to her care with the provision of
additional family reunification services. The authority of the
juvenile court at the 12-month review hearing to continue the
case and extend reunification services upon finding a substantial
probability the child will be returned to the physical custody of
his or her parent and safely maintained in the home, however, is
1 Undesignated statutory references are to this code.
2
limited to a period not to exceed 18 months from the date the
child was originally taken from the physical custody of his or her
parent. (§ 366.21, subd. (g)(1); see § 361.5, subd. (a)(3)(A).) Here,
Rozlyn was removed from Dorothy’s physical custody on March 3,
2021, more than 18 months prior to the September 13, 2022
section 366.21, subdivision (f), hearing. We deny on the merits
Dorothy’s petition for extraordinary writ.
FACTUAL AND PROCEDURAL BACKGROUND
1. Rozlyn’s Removal from Dorothy, the Sustained
Dependency Petition and the Disposition Orders
The Los Angeles County Department of Children and
Family Services received an initial referral in mid-March 2020
indicating then-four-year-old Rozlyn might be a victim of
parental neglect. After an investigation the Department filed a
petition on behalf of Rozlyn on May 8, 2020 pursuant to
section 300, subdivision (b)(1), alleging in part that Dorothy had
failed to protect the child due to Dorothy’s mental and emotional
problems and substance abuse issues.
At the May 13, 2020 detention hearing the juvenile court
released Rozlyn to Dorothy with various conditions, including
“Mother shall continue to test and test cleanly.” The court stated
it shared the Department’s concern about Dorothy’s continued
marijuana use and agreed Rozlyn could be detained if Dorothy
failed to abide by the conditions imposed. On March 3, 2021,
following an incident of domestic violence between Dorothy and
Colby G., Rozlyn’s presumed father, during which Dorothy left
Rozlyn alone with Colby to smoke marijuana in a different room,
the court ordered Rozlyn detained and removed her from
Dorothy’s care.
3
On July 21, 2021 the juvenile court sustained in part an
interlineated second amended petition pursuant to section 300,
subdivision (b)(1), finding Dorothy had mental and emotional
problems, including bipolar depression, that rendered her
incapable of providing Rozlyn with appropriate care and
supervision; Dorothy had a history of substance abuse and was a
current abuser of marijuana, which, given the child’s young age,
also rendered Dorothy unable to provide Rozlyn with appropriate
care; Colby had mental and emotional problems, including
schizophrenia, that rendered him incapable of providing Rozlyn
appropriate care; and Dorothy and Colby had a history of
domestic violence, including on numerous occasions violating
court-issued protective orders restraining Colby from having
contact with Dorothy. At disposition the court declared Rozlyn a
dependent child of the court, removed her from the care, custody
and control of her parents and ordered her suitably placed.
Family reunification services were ordered for Dorothy and
Colby. Dorothy’s case plan required her to participate in weekly
random, on-demand drug testing, a support group for victims of
domestic violence and continued mental health treatment with a
psychiatrist; to take all prescribed psychotropic medication; and
to abide by all outstanding court orders. She was permitted
monitored visitation with Rozlyn. The court also ordered the
Department to begin proceedings under the Interstate Compact
on the Placement of Children (ICPC) to allow Rozlyn’s placement
with her maternal grandparents in New York.2
2 Dorothy appealed the jurisdiction findings regarding her
emotional problems and substance abuse issues and that portion
of the disposition order requiring her to drug test, but not the
finding her history of domestic violence with Colby endangered
4
2. The Six-month and 12-month Review Hearings and
Order Terminating Reunification Services
The Department’s January 18, 2022 report for the six-
month review hearing (§ 366.21, subd. (e)) stated Dorothy had
four positive drug tests and failed to appear nine times for
required random drug tests. Dorothy was participating in mental
health counseling. According to the report, Dorothy had
indicated she wanted her parents to have custody of Rozlyn, and
the maternal grandparents had expressed a desire to have Rozlyn
in their custody. At the hearing on February 14, 2022 the
juvenile court ordered continued reunification services for
Dorothy and Colby.
Dorothy petitioned for modification of prior court orders on
August 12, 2022 (§ 388), asserting she was in full compliance
with her case plan and requesting the court either return Rozlyn
to her custody or grant the maternal grandparents legal
guardianship of Rozlyn. She attached letters from her substance
abuse program indicating she had remained sober while in
treatment and “has made progress since June 8, 2022.” The court
denied the petition without a hearing, finding it did not state a
change of circumstance and the requested modifications would
not be in Rozlyn’s best interest.
The Department’s August 12, 2022 report for the 12-month
review hearing (§ 366.21, subd. (f)) stated Dorothy had seven
Rozlyn or the order declaring Rozlyn a dependent child of the
court and removing Rozlyn from the care and custody of Dorothy
and Colby. We held Dorothy’s limited challenge to the
jurisdiction findings was not justiciable and the order requiring
her to drug test well within the juvenile court’s discretion. (In re
Rozlyn G. (Nov. 15, 2022, B314519) [nonpub. opn.].)
5
positive tests and had failed to appear five times on 21 unexcused
drug test dates. She had attended an out-patient substance
abuse treatment program; participated in therapy for her mental
health issues; was compliant with her medication; and had
enrolled in, and attended seven sessions of, a domestic violence
course. Dorothy had again told the social worker she wanted the
maternal grandparents to be Rozlyn’s legal guardians.
On August 15, 2022, the date scheduled for the 12-month
review hearing, the court ordered an expedited ICPC evaluation
with the State of New York and allowed Rozlyn to have a 29-day
visit with her maternal grandparents. The review hearing was
continued to September 13, 2022.
At the hearing on September 13, 2022 the juvenile court
found that continued jurisdiction was necessary and by clear and
convincing evidence that the return of Rozlyn to the physical
custody of her parents would create a substantial risk of
detriment to the child. It also found the Department had
complied with the case plan and made reasonable efforts to
return Rozlyn to a safe home but that neither Dorothy nor Colby
had made substantial progress toward alleviating the causes
necessitating Rozlyn’s out-of-custody placement. The court
terminated reunification services and set a selection and
implementation hearing pursuant to section 366.26 for
January 10, 20233—a date that was subsequently continued to
3 The court’s minute order setting the section 366.26 hearing
directed the Department to prepare a written visitation schedule
for the parents; to interview Dorothy, Colby and Rozlyn “about
the visits, their feelings about a parental-child bond and any
emotional attachment”; and to address those issues raised in the
interviews in its report for the hearing.
6
March 14, 2023 with an order directing the Department to fully
comply with its inquiry obligations under the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The court
ordered Rozlyn placed with her maternal grandparents.
3. Dorothy’s Petition for Extraordinary Writ Relief
Dorothy filed a petition for extraordinary writ relief on
December 1, 2022, challenging the order setting the
section 366.26 hearing (Cal. Rules of Court, rule 8.452(a)).
As grounds for the petition Dorothy asserts she had been in
substantial compliance with her case plan and her recent
negative drug tests, combined with her progress in her classes,
were sufficient to show the court there was a substantial
likelihood Rozlyn would be returned to her custody if
reunification services were continued pursuant to section 366.21,
subdivision (g)(1).4
Dorothy does not argue the juvenile court erred in finding
the Department had established that return of Roslyn to Dorothy
at the time of the hearing would create a substantial risk of
detriment to the safety or physical or emotional well-being of the
child and that reasonable services had been provided prior to the
12-month review hearing. Nor does she contend she comes
within one of the limited categories of parents for whom more
than 18 months of reunification services may be ordered
4 Although Colby filed a notice of intent to file writ petition,
his counsel notified this court pursuant to Glen C. v. Superior
Court (2000) 78 Cal.App.4th 570 that she was unable to file a
petition on the merits. Colby did not thereafter file a petition for
extraordinary writ.
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pursuant to sections 361.5, subdivision (a)(4)(A), and 366.22,
subdivision (b).5
We issued an order to show cause on December 14, 2022,
stating our intention to decide the matter on the merits (Cal.
Rules of Court, rule 8.452(d)).
DISCUSSION
Section 361.5, subdivision (a)(1)(A), provides, for a child
such as Rozlyn who was at least three years old on the date of
initial removal from the physical custody of the child’s parent,
“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,[6] unless
5 Sections 361.5, subdivision (a)(4)(A), and 366.22,
subdivision (b), authorize the juvenile court to extend
reunification services beyond 18 months in specific limited
circumstances, including for a parent making significant and
consistent progress in a court-ordered residential substance
abuse treatment program. There are also cases in which
appellate courts have ruled reunification services may continue
beyond the 18-month statutory period, but those involved truly
exceptional situations in which an external factor thwarted
efforts at reunification. (See, e.g., In re Elizabeth R. (1995)
35 Cal.App.4th 1774, 1787, 1796 [mother was hospitalized during
most of the reunification period; after her release the child
welfare agency attempted to restrict visitation]; see generally
Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864,
fn. 9.)
6 Section 361.49 defines the date of foster care entry as the
earlier of the date of the jurisdiction hearing or 60 days after the
child was initially removed from the physical custody of his or her
parent. Because Rozlyn was first removed from Dorothy’s
8
the child is returned to the home of the parent or guardian.” For
Rozlyn, that 12-month period ended on May 2, 2022.
Section 361.5, subdivision (a)(3)(A), however, provides an
exception to the 12-month limit, authorizing the juvenile court to
extend court-ordered services “up to a maximum time period not
to exceed 18 months after the date the child was originally
removed from the physical custody of the child’s 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 the child will be returned and safely maintained in
the home within the extended time period.” Subdivision (a)(3)(A)
further provides, “The court shall extend the time period only if it
finds that there is a substantial probability that the child will be
returned to the physical custody of the child’s parent or guardian
within the extended time period or that reasonable services have
not been provided to the parent or guardian.”
Section 366.21, subdivision (g), the basis for Dorothy’s
petition for extraordinary writ, likewise provides, if the 12-month
period has been met or exceeded and the child is not returned to
the custody of a parent, the court may “[c]ontinue the case for up
to six months for a permanency review hearing [pursuant to
section 366.22], provided that the hearing shall occur within
18 months of the date the child was originally taken from the
physical custody of his or her parent or legal guardian. The court
shall continue the case only if it finds that there is a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in
custody on March 3, 2021, her date of entry was May 2, 2021,
several months prior to the jurisdiction hearing.
9
the home within the extended period of time or that reasonable
services have not been provided to the parent or legal guardian.”
Here, as argued by both the Department and Rozlyn in
opposing Dorothy’s petition, Rozlyn was originally removed from
Dorothy’s custody on March 3, 2021; and the 18-month period for
extension of reunification services (and for holding a
section 366.22 review hearing) ended on September 3, 2022,
10 days before the section 366.21, subdivision (f), hearing. As a
consequence, given the unchallenged findings that Rozlyn could
not be safely returned to Dorothy as of the hearing date and the
Department had provided Dorothy with reasonable reunification
services, absent a finding that Rozlyn was not a proper subject
for adoption and had no one willing to accept a legal
guardianship (§ 366.21, subd. (g)(5)), the juvenile court had no
option other than to terminate reunification services and set the
section 366.26 hearing. (§ 366.21, subd. (g)(4); see Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 249 [“[a]t the 12-month
review, if the court does not return the child and finds that there
is no substantial probability of return to the parent within
18 months of the original removal order, the court must
terminate reunification efforts and set the matter for a hearing
pursuant to section 366.26 for the selection and implementation
of a permanent plan”]; see also Georgeanne G. v. Superior Court
(2020) 53 Cal.App.5th 856, 864 [“[t]he Legislature has
determined the juvenile court may generally offer family
reunification services for a maximum period of 18 months”].)
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DISPOSITION
Dorothy’s petition for extraordinary writ is denied.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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