IN RE: C.L.

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Court of Appeal, Sixth District, California.

IN RE: C.L., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. C.L., Defendant and Appellant.

H043863

Decided: March 30, 2017

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 30, 2017, be modified as follows:

On page 9, replace the very last sentence of the opinion so that the new sentence reads: “Importantly, as the court recognized at the hearing, C.L. has until July 15, 2018 to manifest a different inclination.”

There is no change in the judgment.

C.L. has been a dependent of the juvenile court intermittently since 2004, when the Monterey County Department of Social and Employment Services (the Department) took her and her six siblings into protective custody at the age of six. At 18 she was admitted to the Nonminor Dependent (NMD) program under the California Fostering Connections to Success Act (Assem. Bill No. 12 (2009-2010 Reg. Sess.); Assem. Bill No. 212 (2011-2012 Reg. Sess.), commonly known as AB 12. The court terminated NMD jurisdiction over her in January 2016, but she asked the court thereafter to return her to juvenile court jurisdiction. From the August 2016 order denying that petition, C.L. brought this appeal, asserting abuse of discretion based on the court's failure to compel the Department to file a report before the hearing. We will affirm the order.

Background

C.L. and her six siblings were declared dependents of the juvenile court on May 14, 2004, after an uncontested jurisdiction and disposition hearing. In its order the court sustained the Department's petition under Welfare and Institutions Code section 300, subdivisions (b) and (g),1 and ordered C.L. removed from her mother's custody. On November 12, 2004, C.L. was returned to her mother, but she was removed again at the mother's request after the mother decided she “could no longer parent her” and wanted to relinquish her parental rights to C.L.2 A supplemental petition was sustained on February 18, 2005 and C.L was again removed from her mother's custody.

On June 10, 2005 the court held a selection and implementation hearing under section 366.26 and selected long-term foster care as C.L.'s permanent plan . (§ 366.26, subd. (c)(1), (4), (5)). On August 1, 2007, however, C.L. was returned to her mother's custody under court supervision. On July 18, 2008, the court dismissed the dependency and terminated its jurisdiction.

On November 1, 2012, C.L. was again taken into protective custody.3 Shortly afterward, she was formally detained, and on December 12, 2012, a new petition was sustained under section 300, subdivisions (b), (c), and (g). C.L. was again declared a dependent child and removed from her mother's custody. She was returned to her mother on May 1, 2013, but a month later she was removed yet again when her mother was incarcerated. At the detention hearing on June 10, 2013, the court noted that C.L. was on “ru[na]way” status, and it issued a bench warrant. The court sustained a supplemental petition on July 24, 2013 and ordered family reunification services; but C.L. could not be placed with her siblings because her current whereabouts were unknown and she had resisted out-of-home placement.

On February 14, 2014, C.L. was arrested for resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) and battery on a sheriff's deputy. (Pen. Code, § 243, subd. (b).) The district attorney filed a petition alleging that C.L. was a person described by section 602, subdivision (a). At a hearing on February 28, 2014, C.L. admitted the first count, and the battery count was dismissed. The juvenile court placed her on probation without declaring her a ward of the court. By the following August, the court found that she had made “satisfactory progress” and continued her on probation without wardship.

On July 15, 2015, while still a dependent of the court, C.L. turned 18. By this time she was at a group home with a specific goal of placement in a less restrictive setting, and services had been made available to assist her in making the transition from foster care to independent living. She had stated that she did not want to be under the court's jurisdiction beyond her 18th birthday; consequently, she was given a “Transitional Independent Living Case Plan” (TILCP), which included a plan for housing, education, employment, and a support system. On July 21, 2015, she was declared to be an NMD.

In preparation for the January 2016 NMD status review, the social worker reported that C.L. had been living at “Peacock Acres THP+FC” (Peacock Acres). She had been applying for employment and enrolling in adult education. Her participation criteria also included regular school attendance, completing school assignments, submitting to random drug testing, participating in therapy as well as alcohol and drug counseling, and “abstaining from AWOLing.” The social worker had been meeting with C.L. monthly, had affirmed the importance of one's credit history, and had advised her about the availability of Medi-Cal, medical and dental examinations, and other resources. C.L., according to the social worker, could be “insightful and productive when she is not distracted by boyfriends or smoking marijuana.” She had indicated that she hoped to become a nurse, and she was “making plans” to complete her high school education through an adult program. The social worker noted that C.L. was “articulate and [would] speak up for herself in a respectful manner.”

In the social worker's opinion, C.L. “clearly” understood the advantages of her current placement and program. In mid-December 2015 she had signed a case plan update and a “Transitional Independent Living Plan & Agreement. Nevertheless, by the time of the January 5, 2016 review hearing, she had left Peacock Acres, and a missing person's report had been filed. The court continued jurisdiction that day; but 10 days later the Department filed a “Request to Change Court Order” in which it asked the court to terminate jurisdiction over C.L. She had been discharged from Peacock Acres, her address was unknown, and she had not contacted the Department since she disappeared.

On January 26, 2016, the court granted the Department's request, which was not opposed by any party.4 It retained general jurisdiction only for the purpose of considering a future petition under section 388 to resume dependency jurisdiction.

On May 17, 2016, C.L. filed a petition under section 388, subdivision (e), seeking to return to juvenile court jurisdiction and foster care. C.L. alleged that she planned to work at least 80 hours a month and that she had signed a voluntary re-entry agreement on May 16, 2016, the day she signed the petition. In fact, she executed the agreement more than three weeks later, only five days before the hearing on the petition.5

At the June 14, 2016 hearing on the petition, at which C.L. personally appeared with her attorney, the Department asked for a 30-day continuance to “further assess the situation” and help C.L. in any way it could. Neither the Department nor county counsel had discovered any re-entry agreement, and C.L. had not been in contact with the social worker. County counsel recommended that the petition not be granted “until she demonstrates that she actually is following through, or we will be right back where we were before.” The court agreed to the continuance; it did comment that C.L. should take advantage of the program, especially because she was pregnant. The court continued the matter to August 2, 2016. C.L. agreed to attend 12-step meetings in the interim.

At the August 2 hearing C.L.'s attorney appeared, but she did not. County counsel informed the court that C.L. was not living in a place that the Department could approve. She could participate in NMD services, but she could not receive a stipend unless she lived in an approved living facility and stayed in contact with the Department at least monthly. County counsel recalled that “one thing the Court and [D]epartment wanted to see was follow[-]through” on the participation criteria. C.L.'s attorney responded that she had signed a voluntary re-entry agreement; but the court observed that “just signing an agreement is something anyone can do. She has got to fulfill the requirements, and thus far, she has not given any indication that she is [doing so].” The court therefore denied the reinstatement petition. It reminded counsel that because C.L. was still in the NMD age range, “once she is finally ready, she can petition for reentry again.” In the meantime, “she has got to get her ducks in a row.” C.L.'s attorney filed a timely notice of appeal on her behalf.

Discussion

Through AB 12, California provides for continued services for youth who have been dependents of the juvenile court but have attained age 18. AB 12 was passed in response to the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 (Pub.L.No. 110-351 (Oct. 7, 2008) 122 Stat. 3949), which authorized federal grants to the states to offset the cost of providing benefits to young adults who remained in foster care after they reached 18 but were not yet 21. (See In re A.A. (2016) 243 Cal.App.4th 765, 772-773.)

Under California's statutory scheme, a former NMD—which C.L. became on January 26, 2016 when dependency jurisdiction was terminated 6 —may petition for re-entry into the program by completing a “[v]oluntary reentry agreement,” defined in section 11400, subdivision (z). Section 11403, subdivision (b), makes a former NMD eligible for AFDC-FC benefits 7 as long as he or she meets at least one of the following conditions: “(1) The nonminor is completing secondary education or a program leading to an equivalent credential. [¶] (2) The nonminor is enrolled in an institution which provides postsecondary or vocational education. [¶] (3) The nonminor is participating in a program or activity designed to promote, or remove barriers to employment. [¶] (4) The nonminor is employed for at least 80 hours per month. [¶] (5) The nonminor is incapable of doing any of the activities described in subparagraphs (1) to (4), inclusive, due to a medical condition, and that incapability is supported by regularly updated information in the case plan of the nonminor.” (§ 11403, subd. (b)(1)-(b)(5).)

C.L. submitted her petition to return to dependency jurisdiction under section 388, subdivision (e)(1). Under that statute, a former nonminor dependent who is not yet 21, and whose dependency has been terminated under section 391 with a reservation of general jurisdiction, may petition the juvenile court for a hearing to resume dependency jurisdiction. Subdivision (e)(4) of section 388 (hereafter, section 388(e)(4)) and California Rules of Court, rule 5.906, require the court, before the hearing on the reentry petition, to “order the county child welfare or probation department to prepare a report for the court addressing whether the nonminor intends to satisfy at least one of the criteria set forth in subdivision (b) of Section 11403.” (§ 388(e)(4).)8 Here, C.L. contends that the court abused its discretion by failing to order the Department to prepare the section 388(e)(4) report.

In supplemental briefing requested by this court, C.L.'s counsel implicitly acknowledged that an error in a dependency case only rarely requires automatic reversal. (See In re James F. (2008) 42 Cal.4th 901, 915-918 [distinguishing dependency proceedings from criminal proceedings for purposes of determining whether error is structural or subject to harmless error analysis].) We thus may evaluate the individual circumstances in this case to determine whether the absence of a social worker's report affected the outcome of C.L.'s petition to return to NMD status. (Id. at p. 918.)

C.L. does not suggest how, in light of her lack of cooperation and evident lack of interest, a social worker's report would have altered the court's conclusion that she was not prepared to comply with the Department criteria for participation in the NMD program. None of the conditions outlined in section 11403, subdivision (b), was yet applicable. C.L. knew, having been at the June 14 hearing, that the social worker needed information from her to enable him to make a recommendation to the court on her petition. Instead of cooperating even to that extent, she withdrew from contact not only with the Department but with her own attorney. She then did not even show up in court on her own petition. Had a social worker's report been prepared, these facts would have remained indisputable. Given that plain evidence before it, the court was entitled to discredit the claim in C.L.'s petition that she planned to work at least 80 hours, the condition she had agreed to in her request to return to the court's jurisdiction. And had the Department and the court been provided with the voluntary re-entry agreement C.L. signed in June 2016, it is not reasonably likely that the court would believed the representations in that document that C.L. would “meet face to face” with her case worker at least once a month, update her TILCP goals at least once every six months, and generally inform her case worker about any housing problems or changes in residence or contact information. C.L. expressly understood that if she left her foster care placement, the foster care funding might be stopped. The court therefore had ample evidence from which to infer that C.L. did not intend “to satisfy at least one of the criteria set forth in subdivision (b) of Section 11403.” (§ 388(e)(4).) No showing of prejudice has been made here.

In short, C.L. herself demonstrated that, as in In re Holly H. (2002) 104 Cal.App.4th 1324, 1337, she “does not want the assistance of the juvenile dependency system.” As the Holly H. court pointed out, “the court may not, and should not, force her to accept its services ․ [¶] Despite the many impediments to a secure and productive life that [the nonminor] still confronts, the state can no longer paternalistically insist that she live her life as the juvenile court thinks best.” (Id. at pp. 1337, 1338.) Importantly, as the court recognized at the hearing, C.L. has until July 15, 1998, to manifest a different inclination.

Disposition

The order is affirmed.

FOOTNOTES

1.   All further statutory references are to the Welfare and Institutions Code except as otherwise specified.

2.   C.L. was described as “a very aggressive child, often resorting to physical violence when she does not get her way.” In December 2004 her mother told the social worker that if C.L.'s behavior “continued to be out of control, she could not assure the social worker that she would not harm the child.”

3.   C.L. was initially placed with her 18-year-old sister, but the day ended with C.L.'s being arrested for physically attacking her sister when her sister would not let C.L.'s boyfriend in the home.

4.   An attorney who appeared for C.L. in her absence commented only that “if she should return and want to, she can reenter.” The social worker assured the court that he would give her information on how to re-enter the program.

5.   We grant C.L.'s February 16, 2017 request to admit a copy of the “Voluntary Reentry Agreement for Extended Foster Care,” which was provided to appellate counsel during the pendency of this appeal. The agreement was signed by C.L. on June 9, 2016, not May 16, 2016, as she stated in her petition. C.L. expressly acknowledged at the June 14 hearing that she had signed the re-entry agreement with the social worker “a few days ago.”

6.   There is no question that at the time she petitioned to return to juvenile court jurisdiction on May 17, 2016, C.L. was a nonminor former dependent, within the meaning of section 11400, subdivision (aa)(1). The term “nonminor former dependent” includes a nonminor “who reached 18 years of age while subject to an order for foster care placement, and for whom dependency ․ jurisdiction has been terminated, and who is still under the general jurisdiction of the court.” (§ 11400, subd. (aa)(1).)

7.   AFDC-FC is the program providing aid “on behalf of needy children in foster care.” (§ 11400, subd. (a).)

8.   California Rules of Court, rule 5.906 (h) states: “(1) The social worker, probation officer, or Indian tribal agency case worker (tribal case worker) must submit a report to the court that includes: [¶] (A) Confirmation that the nonminor was previously under juvenile court jurisdiction subject to an order for foster care placement when he or she attained 18 years of age and that he or she has not attained 21 years of age, or is eligible to petition the court to assume jurisdiction over the nonminor pursuant to section 388.1; [¶] (B) The condition or conditions under section 11403(b) that the nonminor intends to satisfy; [¶] (C) The social worker, probation officer, or tribal case worker's opinion as to whether continuing in a foster care placement is in the nonminor's best interests and recommendation about the assumption or resumption of juvenile court jurisdiction over the nonminor as a nonminor dependent; [¶] (D) Whether the nonminor and the placing agency have entered into a reentry agreement for placement in a supervised setting under the placement and care responsibility of the placing agency; [¶] (E) The type of placement recommended if the request to return to juvenile court jurisdiction and foster care is granted; [¶] (F) If the type of placement recommended is a placement in a setting where minor dependents also reside, the results of the background check of the nonminor under section 16504.5. [¶] (i) The background check under section 16504.5 is required only if a minor dependent resides in the placement under consideration for the nonminor. [¶] (ii) A criminal conviction is not a bar to a return to foster care and the resumption of juvenile court jurisdiction over the nonminor as a nonminor dependent. [¶] (2) At least two court days before the hearing, the social worker, probation officer, or tribal case worker must file the report and any supporting documentation with the court and provide a copy to the nonminor and to his or her attorney of record; and [¶] (3) If the court determines that the report and other documentation submitted by the social worker, probation officer, or tribal case worker does not provide the information required by (h)(1) and the court is unable to make the findings and orders required by (i), the hearing must be continued for no more than five court days for the social worker, probation officer, tribal case worker, or nonminor to submit additional information as ordered by the court.”

ELIA, J.

WE CONCUR: RUSHING, P. J. PREMO, J.