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ROBERT v. Los Angeles County Department of Children and Family Services et al., Real Parties in Interest.

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Court of Appeal, Second District, Division 7, California.

ROBERT T., Petitioner, v. The SUPERIOR COURT Los Angeles County, Respondent; Los Angeles County Department of Children and Family Services et al., Real Parties in Interest.

No. B124710.

Decided: November 24, 1998

Michel H. Eisner, Los Angeles, for Petitioner. No appearance for Respondent. Lloyd W. Pellman, County Counsel, Jill Regal, Monterey Park, Wayne H. Song, Los Angeles, Auxiliary Legal Services, Inc. for Real Party in Interest Los Angeles County Department of Children and Family Services. Law Offices of Jo Kaplan, Monterey Park, Grace Yoo for Real Parties in Interest Ashley T., Robert T., Jr., and Daniel T.

Petitioner Robert T. is the father of Ashley T., Robert T., Jr., and Daniel T., children who have been declared dependents of the juvenile court.   In the instant proceeding, Robert seeks extraordinary writ review (Welf. & Inst.Code § 366.26, subd. (l ); 1  Cal. Rules of Court, rule 39.1B) of the juvenile court's order setting a hearing for the selection and implementation of a permanent plan for the children, with the possibility of termination of the parental relationship.   Robert contends there was insufficient evidence to support the juvenile court's findings (1) reasonable reunification services were offered to him by the Los Angeles County Department of Children and Family Services (the Department) and (2) the return of the children to Robert would create a substantial risk to their well-being.   Robert further urges the court should have exercised its discretion to extend reunification services beyond the statutory period.   Under the unusual circumstances of this case, we will order extension of reunification services to Robert beyond the statutory period.

FACTS

In December of 1996, when Ashley was five years old and Robert, Jr. was not quite one, the Department's child abuse hotline received a call advising that the two children were being emotionally abused and neglected by their parents.   A social worker for the Department found the family living in a garage with no doors or windows, no ventilation, and accessible only by crawling through a two-foot by three-foot hole cut through an automobile-size door which had been sealed shut.

On December 26, 1996 the juvenile court sustained the Department's petition seeking to declare Ashley and Robert, Jr. dependents of the court (§ 300).   The court ordered the children placed with their mother at the home of the maternal grandparents, and the Department was ordered (inter alia) to provide reunification services to Robert T. Eight days later the Department filed a supplemental petition (§ 385), requesting detention of the children because the maternal grandparents had ceased to permit the mother to live in their home.   The report accompanying the supplemental petition advised the grandparents had stated Robert T. had disrupted the home, insisting the children be awakened for a visit, and they further stated he had been abusive to the mother and the children.   At a hearing held January 7, 1997 the court issued orders detaining the children in the maternal grandparents' home, requiring both parents to undergo counseling as directed by the Department and including drug testing, and restraining Robert from visiting the children at the grandparents' home.   Two days later the court granted Robert unmonitored visitation in the home of the paternal grandparents.

On January 28, 1997, the date set for the dispositional hearing, the Department filed a subsequent petition (§ 342) alleging drug use by both parents.   In a report submitted with the petition, the Department advised Robert had admitted using marijuana within the last six months, and the paternal grandparents had reported a history of regular marijuana use by both parents in the children's presence.   Both parents denied the allegations and the matter was continued, with appointment by the court of an expert (Dr. Fairbanks) to evaluate the family.  (Evid.Code, § 730.)

Following several further continuances, on June 3, 1997 the court sustained the subsequent petition, as amended to allege a history of substance abuse by both parents which periodically rendered them unable to provide regular care for the children, and which placed the children at risk.   On July 15, 1997 Ashley and Robert, Jr. were declared dependents of the court and were ordered placed with the maternal grandparents.   Robert was ordered into treatment programs of drug counseling with random testing, domestic violence counseling, and parenting education, and he was granted unmonitored day visits with the children.   In his report, which was considered by the court in making its orders, Dr. Fairbanks described the parents as sorely in need of multiple types of treatment and counseling if they were going to become able to regain custody of their children.   Also at the July 15 hearing, the Department filed a new petition pursuant to section 300, alleging Daniel, who was just four days old, had been born with a positive toxicology for amphetamines and suffering from drug withdrawal symptoms.   A detention hearing for Daniel was held the following day, but no orders were made as to Robert, as another man (Louis A.) was named as Daniel's father in the Department's petition.

At a pre-trial resolution conference held September 3, 1997, the court sustained the Department's newly filed dependency petition concerning Daniel, which alleged (inter alia) the whereabouts of Louis A., Daniel's alleged father, were unknown.   At a dispositional hearing held October 1, 1997 the court declared Daniel a dependent of the court, further determining Robert's attorney did not represent Daniel's father.   Daniel was placed, together with Ashley and Robert, Jr., with his maternal grandparents.

The six-month review hearing for all three children was conducted January 13, 1998.   In its report for the hearing, the Department advised (inter alia) Robert had not made contact with the social worker since the last hearing, he had not visited with the children, and he had not shown compliance with the treatment programs which had been ordered by the court.   Robert did not appear for the hearing.   The whereabouts of Louis A. remained unknown.   Robert's counsel requested an order for an “HLA” test, in order to defeat the presumption of paternity with respect to Daniel.  (Fam.Code, § 7540.)   The court ordered an HLA test, continued reunification services, and proceeded to set July 14, 1998 as the date for the 12-month review hearing for Ashley and Robert, Jr., and September 30, 1998 for Daniel's 12-month review hearing.   The court also granted the Department discretion to liberalize Robert's visits with his children.

On July 14, 1998, the date set for the 12-month review hearing as to Ashley and Robert, Jr., the Department submitted a report for all three children.   The Department reported it made its first contact with Robert on May 21, 1998 after numerous attempts;  Robert had completed a parenting class and had recently begun random drug testing, he had not yet enrolled in domestic violence counseling, and he had visited the children sporadically.   The Department further reported the HLA testing showed the probability that Robert was Daniel's father was 99.78 percent.   On July 16, 1998, Robert appeared before the court, and his counsel immediately made reference to the newly discovered evidence of Robert's paternity of Daniel.   Counsel noted that from the outset the mother had named another man as Daniel's father, leading Robert to believe she had been unfaithful and discouraging him from participating in family reunification.   Counsel further advised Robert and the mother had now reconciled, and both were earnestly working toward achieving full compliance with the court's orders.   Counsel added the children's grandparents were prepared to testify to the recent change in the parents' attitude, and to their belief the parents should be given an opportunity to regain custody of the children.   The matter was continued by the court to August 7, 1998 for a contested 12-month review hearing as to Ashley and Robert, with the hearing for Daniel remaining set for September 30, 1998.

On August 7, 1998 the court announced it would conduct a contested 12-month review hearing as to all three children.   The court justified its decision to advance the hearing as to Daniel by pointing out that inasmuch as Daniel was an infant when he was detained, under the law the parents were entitled to only six months of reunification services.  (§ 361.5, subd. (a)(2).)   Robert's counsel reminded the court the HLA test results indicating Robert was Daniel's father had been received just three weeks earlier, and Robert had received no reunification services at all as to Daniel.   Counsel further urged the Department's report for the hearing indicated Robert was in substantial compliance with his case plan.   The report disclosed Robert had visited with the children every weekend since the last court date;  he had submitted to eight random drug tests within the previous three months, and each time he tested negative;  he had completed two separate courses in parenting;  and since June he had been actively participating in parenting education classes, individual counseling, and drug counseling.   The social worker also reported that during her face to face contact with Robert, he appeared clean and well groomed.   The report described Robert as “compliant with court orders.” 2

At the hearing, Robert testified, with supporting evidence, to his completion of a drug diversion program through the probation department, to his completion of the two separate parenting courses, and to his negative random drug tests.   Robert further testified that for a period of six months during 1997 he left Los Angeles County and lived with his father in Sacramento, which was the reason for his sporadic visitation with the older children and his temporary failure to comply with the court's orders for counseling and treatment.   Robert also testified that upon his return to Los Angeles County he immediately began to participate in the court-ordered programs, to undergo random drug tests, and to visit regularly with the children.

The children's paternal and maternal grandmothers both testified on Robert's behalf.   The paternal grandmother testified she had seen a “100 percent” change in her son over the preceding six months:  His general attitude had improved, he took responsibility for his actions, he ceased using drugs and completed a drug diversion program, and his visits with the children were happy and successful.   The maternal grandmother (Valverde), with whom all three children were placed, also testified to a major positive change in Robert (as well as in the mother) over the preceding six months, and to his determination to maintain his sobriety.   Valverde further testified that although she had not previously been supportive of Robert, his recent progress had led her to change her opinion of him and to believe he would be able to take the children back within the next six months.3

At the conclusion of the hearing, the court found the Department had provided reasonable reunification services for Robert as to Ashley and Robert, Jr., and that Robert had not demonstrated sufficient compliance with his case plan.   Turning its attention to Daniel's case, the court stated

“there's a conflict in evidence and [Robert's] own mother believed he can't take care of the child without the assistance of the mother, and I don't have a basis for a substantial probability finding with respect to [Robert].   He needs the mother's assistance, and now the maternal grandmother is more optimistic and there's a conflict of interest evidence, but I don't think that creates a preponderance of evidence and based on what I could see, there's a substantial finding that with additional services Danny could be returned to his father and it does however suggest the 26 hearing isn't going to be terribly gratifying for father.   So I think I have to terminate reunification services and we'll set a 26․”

The court added the parents should not give up the hope of getting the children back, suggesting a petition for modification of its orders (§ 388) might later be filed by Robert upon a further showing of compliance with his case plan.

DISCUSSION

1. Robert Is Entitled to Additional Reunification Services as to Daniel.

 The Department's petition seeking to declare Daniel a dependent of the court, filed four days after Daniel's birth in July of 1997, named Louis A. as Daniel's father.   Accordingly, no orders were made in Daniel's case as to Robert, and at the subsequent hearings the Department and the court continued to treat Louis A. and not Robert as Daniel's father.   At a hearing in January of 1998, Robert's counsel requested an order for an HLA test in order to defeat the legal presumption of paternity.   It was not until July 14, 1998, when the HLA test results were disclosed by the Department, that Robert first became aware Daniel was in fact his child.   Just over three weeks later the juvenile court terminated reunification services for Robert as to all of the children, including Daniel on the ground his dependency petition was filed more than six months earlier.   Under the law Robert was entitled to a minimum of six months of reunification services as to Daniel.  (§ 361.5, subd. (a)(2).)  He received none.   Under these circumstances Robert is entitled to an additional six months of services to reunify with Daniel.

2. Under the Circumstances of this Case, Reunification Services For Robert Should Also Be Extended Beyond the Statutory Period as to Ashley and Robert, Jr.

 It is settled that in cases involving exceptional circumstances the juvenile court has discretion to extend reunification beyond the statutory limit.  (See In re Dino E. (1992) 6 Cal.App.4th 1768, 8 Cal.Rptr.2d 416;  In re Daniel G. (1994) 25 Cal.App.4th 1205, 31 Cal.Rptr.2d 75; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 42 Cal.Rptr.2d 200.)   Such exceptional circumstances include cases where no reunification services were developed for a parent (In re Dino E., supra ), or where a reunification plan was developed but not implemented during most of the reunification stage (In re Daniel G., supra ), or where the reunification plan fails to accommodate a family's unique hardship such as mental illness or incarceration.  (See In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1789-1798, 42 Cal.Rptr.2d 200.)

 In this case, Robert has been denied reunification services as to one of three siblings, and as we have previously explained he is thus entitled to an extension of the reunification period as to that child.   But we also take note of the following matters in this case:  The three children are placed together;  the evidence shows they all desire to be reunited with Robert;  the evidence also shows Robert has recently made great strides in achieving compliance with his case plan, and if he continues to do so there is every indication Daniel may be returned to him following the extended reunification period we will order.   Under these unique circumstances, in view of the policy favoring preservation of the family unit whenever possible (see In re Daniel G., supra, 25 Cal.App.4th at pp. 1214-1215, 31 Cal.Rptr.2d 75), and in order to preserve and cultivate the existing bond between the children themselves, the proper exercise of discretion requires a continuance of the matter and an extension of reunification services for Robert beyond the statutory period not just with respect to Daniel, but as to Ashley and Robert, Jr. as well.  (§ 352.)

DISPOSITION

Let a peremptory writ of mandate issue directing the respondent superior court to vacate its order of August 7, 1998 in case number CK 26317 setting a hearing under section 366.26, and thereafter issue a new and different order (1) requiring the Department to provide additional reunification services to Robert, as to all three children, for a period of six months commencing on the date of finality of this decision as to this court;  and (2) setting a hearing, on a date no sooner than six months following the date of its order, to determine whether the children are to be returned to Robert's custody.   Such hearing shall be conducted substantially in accordance with the procedures set forth in section 366.22.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

2.   The Department's report also indicated Robert and the children's mother were living together, and the mother was actively participating in all aspects of her own case plan and testing negatively for drugs.

3.   Valverde also testified the children were “ecstatic” when they visited with Robert and their mother, and they desired to be returned to their parents.

JOHNSON, J.

LILLIE, P.J., and WOODS, J., concur.

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