Vol. 15, No. 13 November 26, 2019
Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Maggie Lee (ML), Kristin Hallak (KH).
NEW DEPENDENCY CASELAW
Bypass Provisions; Whereabouts Unknown—WIC 361.5(b)(1)
In re M.S.—filed 10/11/19, Cert. for Publ. 10/30/19; Fourth Dist., Div. One
Docket No. D075278
Link to Case https://www.courts.ca.gov/opinions/documents/D075278.PDF
THE AGENCY’S CURSORY ATTEMPT TO LOCATE A PARENT WHEN THE RESIDENCE OR LOCATION OF THE PARENT IS KNOWN DOES NOT SUPPORT A FINDING BY CLEAR AND CONVINCING EVIDENCE THAT THE PARENT’S WHEREABOUTS ARE UNKNOWN PURSUANT TO THE PLAIN MEANING OF 361.5(b)(1).
M.S. was born in July 2017 with a positive test for methamphetamines. Mother told the social worker that she and her other three children lived with her parents in Mexicali, Mexico. Mother provided the social worker with her address in Mexicali and a phone number where the social worker could leave messages for mother. Mother was noticed at the Mexicali address of the detention hearing. Also, the Agency sent an e-mail to Sistema pare El Desarrollo de la Familia Integral (DIF) and called the Mexican Consulate to ask about the procedures for conducting a home assessment of the family. Mother appeared at the detention hearing on August 7, 2017 and filed a JV-140 listing her mailing address as a postal box in Calexico, California. Due to issues related to UCCJEA and notice to father, the jurisdiction/disposition hearing was continued several times. Each time notice was sent to mother at the Mexicali address, and on one occasion in December 2017 mother was personally served when she appeared in court. In May 2018 the Agency again mailed notice to mother, but for the first time the notice included a statement that the Agency would be seeking to deny family reunification services pursuant to 361.5(b)(1). At the jurisdiction and disposition hearing the court found the allegations in the petition to be true and removed M.S. from the parents’ custody. Further, the court found by clear and convincing evidence that: (1) the agency exercised a reasonably diligent search to locate and contact mother and (2) the whereabouts of mother were unknown; the court set a 366.26 hearing. The court denied reunification services to mother under 361.5 subdivision (b)(1) because her whereabouts were unknown. At a visit with M.S., mother was served with .26 notice that listed the Mexicali address as mother’s address. At the 366.26 hearing the court terminated parental rights; mother was not present. Mother filed a notice of appeal challenging the jurisdiction and disposition hearing and the termination of parental rights.
Reversed and remanded with directions. The plain meaning of 361.5(b)(1) that “the whereabouts of the parent…are unknown,” means that the residence or other location of a parent is not known. There was insufficient evidence to support a finding that at the time of the jurisdiction and disposition hearing mother’s whereabouts were unknown because at all times the agency knew that mother resided at her parent’s home at the Mexicali address. First, while in the hospital after giving birth to M.S., mother told the social worker that she lived with her parents in Mexicali. Second, at the outset the Agency contacted DIF and the Mexican Consulate to request assistance regarding its investigation of mother’s residence at the Mexicali address. Third, since the beginning of the case, the Agency consistently served mother with notices of hearings by mailing those notices to her at the Mexicali address. There was no reasonable inference that mother had moved from the address in Mexicali and even if there was, and the Agency was uncertain of where mother lived, the Agency could have, and reasonably should have, contacted DIF and/or the Mexican Consulate for assistance in ascertaining whether mother, in fact, continued to reside at the Mexicali address. Presumably if the Agency had exercised reasonable diligence in ascertaining mother’s whereabouts by requesting assistance by DIF or the Mexican Consulate they could have, and would have, provided it with assistance. Instead, the agency took no action to obtain assistance in ascertaining mother’s whereabouts. The agency’s cursory attempts to locate Mother were insufficient to support a finding by clear and convincing evidence that mother’s whereabouts were unknown because the Agency ignored the most likely means of finding mother: seeking assistance from DIF or a Mexican Consulate representative. The agency’s argument that mother failed to remain in consistent contact with the Agency and did not consistently visit M.S. are not factors that show that mother’s whereabouts were unknown within the meaning of section 361.5, subdivision (b)(1).
Furthermore, if the sole basis of denial of services is the unknown whereabouts of the parent under section 361.5 subdivision (b)(1), the juvenile court must set a six-month review hearing. Lastly, the agency’s argument that mother cannot be provided with reunification services on remand because 361.5(a)(1(B) imposes a maximum 12-month period for reunification services after M.S. entered foster care is not persuasive. That statute necessarily presumes that a parent is timely provided or offered reunification services. In cases in which a parent is not timely provided or offered reunification services and no exception to the parent’s right to reunification services applies, the statutory and constitutional interests of the parent and child in reunification if possible, prevails over that general 12-month limitation for reunification services. (NS)
Standing —Relatives; WIC 387
In re K.T. – Certified for Partial Publ. 11/12/19; Fourth Dist. Div. One
Docket No. E072082
WHEN A MINOR IS REMOVED FROM A RELATIVE UNDER SECTION 387, THE RELATIVE HAS STANDING TO APPEAL THE REMOVAL.
K.T. was removed from his mother when he was around 9 months old and placed with distant relatives, Mr. and Mrs. B. K.T. was found to have a subdural hematoma. The B.s began refusing to communicate with the social worker and the agency. K.T. was detained and placed in a special health care needs foster home. The agency filed a section 387 petition, and the B.’s filed a section 388 petition asking for return. The court denied the 388 petition and granted the 387 petition. The B.s appealed.
Affirmed on the merits in the unpublished portion of the opinion. The published section dealt with a relative’s standing to appeal under section 387. In re Miguel E. (2004) 120 Cal.App.4th 521 (“Miguel E.”) seems to suggest that relatives lack standing to appeal a removal under section 387. However, the Miguel E. court did not consider the same arguments and so is not the authority on this issue. Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 held that relatives have standing to appeal an order denying a request for placement under section 361.3. There are two ways to sustain a petition under section 387. The first prong is that the previous disposition was not effective, and the second prong is that the placement with the relative is not appropriate under section 361.3. If the section 387 petition is sustained under the second prong, it is essentially denying a relative’s placement request under section 361.3. Likewise, if the section 387 petition is sustained under the first prong, a new placement is needed for the minor and section 361.3 would necessitate that the relatives be considered for placement, which is also essentially denying a relative’s request for placement under section 361.3. Thus, there is no real distinction between a decision not to place a minor with a relative and a decision to remove a minor from a relative. Thus, under Cesar V., a relative has standing to appeal when a minor is removed from the relative. (KH)