IN RE: JENNIFER S. et al. (1990)

Wendy S., the mother of Jennifer H., Jeremy S. and Royanna S., appeals from an order of the juvenile court directing the minors to be placed with their grandmother in Rockville, Missouri.¹  As we shall explain we conclude the court erred in denying the mother the opportunity to present evidence on her efforts at reunification at a placement hearing occurring more than two years after the initial dispositional order.   Our decision is based on the unusual circumstances of this case and Welfare and Institutions Code section 366.3, subdivision (c),² which authorizes a case to be taken out of permanency planning and ordered back into a period of reunification for six months where the parent or parents can show by a preponderance of the evidence that further efforts at reunification are the best alternative for the minor.   We hold that the error is not prejudicial here, however, where the mother did not later seek to introduce evidence on reunification in a hearing authorized by section 388.³  We believe the expeditious resolution of matters affecting dependent children requires us to treat the error as harmless in this case where the trial court expressly instructed Wendy to obviate the ruling by presenting such evidence at the trial court under section 388.   Because there is no showing here that Wendy attempted to invoke section 388 at any time after the court ruled, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Because the context in which the challenged evidentiary ruling was made is important to our analysis, we state the facts and procedural background in some detail.

Jennifer H., now 11 years old, is the daughter of Wendy and Wendy's former husband Brian H. who separated shortly after Jennifer's birth.   She has had no contact with her father for over 10 years.

The father of nine-year-old Jeremy and seven-year-old Royanna is Roy S. with whom Wendy lived in Rockville, Missouri for about five years.   When that relationship ended Wendy and her children moved to California.

In California the minors were made dependents of the juvenile court in 1985.   In August 1986 the court terminated its jurisdiction.

In January, 1987 Jennifer was overheard talking about sexual contacts with Robert Q., Wendy's boyfriend.   Following an investigation a dependent child petition on behalf of Jennifer was filed under Welfare and Institutions Code section 300(d) alleging her home was unfit because Robert Q. sexually abused her and her mother failed to protect her.   Petitions were also filed on behalf of Jeremy and Royanna.   On February 4, 1987, the court ordered the children from the family home and detained at a confidential foster home pending further hearing.

At the dispositional hearing on April 27, 1987, the children were declared dependents of the juvenile court to remain outside their mother's house in a licensed confidential foster home.   The court also ordered the mother to comply with a reunification plan including undergoing a psychiatric evaluation, enroll in parenting classes, participate in a program of counseling and in Parent's United, remain drug free and participate in drug testing and drug treatment.

A six-month review hearing was held on October 27, 1987.   The court continued its earlier order including the provision that Wendy comply with the reunification plan.   A permanency planning hearing was scheduled for April 25, 1988.

At the permanency planning hearing the court again ordered the minors placed outside the mother's home.   For “good cause,” however, the hearing was continued to August 2, 1988.   The basis for the “good cause” is unclear, but apparently it was due to the court's concern that Wendy be allowed to pursue her efforts at reunification.

At the August 2, 1988, hearing the court found in part that:  it was not substantially probable the minors could be returned to their mother within six months;  the minors were not adoptable because a parent had “maintained regular visitation and contact and the minor would benefit from continuing this relationship”.   The court also directed the social worker to “address mother's therapy and other aspects of the [reunification] plan” and “inform [the court what was in the] best interest of [the] minor[s]—placement [with paternal] relatives or foster care.”

At the September 20, 1988, hearing the court continued its earlier orders including the reunification plan for Wendy.   Because Jeremy's and Royanna's paternal grandmother in Missouri wanted to take care of the children, the court ordered an investigation pursuant to the Interstate Compact on Placement of Children and set a review hearing for December 23, 1988.

After examining the reports from the out-of-state agencies, the Department of Social Services (DSS) recommended in March 1989 as well as in its later reports that the minors' permanent plan be long-term foster care with their maternal grandmother.   Following the mother's objection to this recommendation, a trial to decide this issue was set for May 10, 1989.

At trial Wendy's counsel unsuccessfully sought to present evidence on his client's improving and relatively successful efforts at reunification.   In ruling the evidence inadmissible, the court said, “On these issues, I think substantially most of your issues should be resolved by submission under a 388 motion, that is, the mother's progress, the change of circumstances, and so forth ․   I think that 366.3(c) provides for more of the concentrated interest in the child's placement and well-being rather than the issue of the mother's compliance with the reunification plan.   The court has the authority to continue granting reunification services six months—for a period of six months, as stated in the last paragraph of 366.3.   And however, I believe that the issue as to this type of hearing, relating strictly to appropriateness of the placement—and when I say ‘the appropriateness of the placement,’ I'm referring to the recommended placement, which is that in Missouri—and that is the specific issue to be addressed.”   The court then evaluated the evidence relating to the suitability of the recommended placement and ordered placement with the paternal grandmother in Rockville, Missouri and visitation for the mother.   This appeal ensued.

DISCUSSION

I

The preceding statement setting out the procedural history in this case contains the requisite terms of art—some might say “buzz words”—that are used to describe the processing of a dependent child petition.   Phrases such as “permanency planning”, “dispositional hearing”, “reunification efforts” and “reunification plan” are a product of the legislation defining the respective rights and responsibilities of parents, children, social agencies and attorneys who come within the purview of the juvenile court.   For a better understanding of these terms, we briefly describe the pertinent provisions of the statutory framework governing dependent children and their application to this case.

 The purpose of dependency proceedings is to protect and promote the welfare of the child, not to punish the parent.  (See Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52, 141 Cal.Rptr. 273.)   The various statutory programs and services “are designed to provide protection, support or care of children, ․ [and] to insure that the rights or physical, mental or moral welfare of children are not violated or threatened by their present circumstances or environment.”  (§ 19.)

Section 300 authorizes the juvenile court to adjudge a person under 18 years old to be a dependent of the juvenile court in circumstances where for a variety of reasons it is essential the court intervene to protect the child.   Here judicial intervention was commenced pursuant to section 300(d) providing for juvenile court jurisdiction where the minor has been sexually abused and the child's parent has failed to protect the child from such abuse.   The findings establishing the juvenile court's jurisdiction in this case have never been challenged.

Section 358 describes the procedure to determine “the proper disposition ․ of the minor.”  (§ 358(a).)   The court must “receive in evidence the social study of the minor made by the probation officer, ․ and such other relevant and material evidence as may be offered.”  (§ 358(b).)   The proferred social study must include a factual discussion on whether child protective services have been offered;  what plan, if any, is recommended for returning the child to his or her parents;  whether the parents or family should have reasonable visitation;  and whether the child appears to be a person who is eligible to be considered for further court action to free the child from parental custody and control.  (§ 358.1;  see In re Michael S. (1987) 188 Cal.App.3d 1448, 1457–1458, 234 Cal.Rptr. 84;  In re John B. (1984) 159 Cal.App.3d 268, 274, 205 Cal.Rptr. 321.)

When a minor is removed from a parent's custody as was done here “the juvenile court shall order the probation officer to provide child welfare services to the minor and the minor's parents or guardians for the purpose of facilitating reunification of the family within a maximum time period not to exceed 12 months.”  (§ 361.5(a).)

Where the court finds the minor cannot be returned home pursuant to section 366.2(e) the court, as it did here, conducts a “hearing to make a determination regarding the future status of the minor no later than 12 months after the original dispositional hearing in which the child was removed from the custody of his or her parent, ․” (§ 366.25(a).)   Thus in this case, the permanency planning hearing should have been conducted before April 27, 1988.   As noted earlier, however, the permanency planning hearing was conducted after that date, continued first to August 2, 1988, and then to September 20, 1988.

Where the court decides a minor cannot be returned home and there is no substantial probability the minor will be returned home to his or her parent within the ensuing six months, the court must place the case on tracks leading to adoption, legal guardianship or long term foster care.  (§ 366.25(a);  § 366.25(d)(1);  and § 366.25(d)(2).)

 The specified time limits in the foregoing statutory provisions make clear the Legislature intended that courts and social agencies perform designated tasks within specific time periods in order to provide the minor a permanent and stable environment.  (See e.g. In re Corienna G. (1989) 213 Cal.App.3d 73, 83, 261 Cal.Rptr. 462 [permanency planning can be delayed beyond 12 months only where the court makes a determination the child will be returned to his or her parents' custody within the next 6 months].)  Pursuant to that goal once a court orders a permanent plan involving long term foster care where adoption and legal guardianship have been rejected a reunification plan is generally no longer appropriate.  (See In re Heather P. (1989) 209 Cal.App.3d 886, mod. 210 Cal.App.3d 730b, 257 Cal.Rptr. 545;  In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1332, 253 Cal.Rptr. 161.)   The exception to this rule is contained in section 366.3(c) which provides that a parent or parents may still “prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the minor ․ [and] the court may order that further reunification services be provided to the parent or parents for a period not to exceed six months.”  (§ 366.3(c).)   Consequently even where there is a permanent plan involving long term foster care, a parent can take the case out of permanency planning and back into a period of reunification.  (In re Heather P., supra, at p. 730c, 257 Cal.Rptr. 545.)

 Obviously the latter provision has significance here particularly where the court deviated from the statutory time constraints.   We say that because in this case the time limits ordinarily would have precluded implementation of a reunification plan after April 27, 1988.   However, delay was understandable in this case in light of the efforts being made by interested persons to develop a sensible solution for the minor children.   There are dependency cases like the one before us which simply do not fit within the statutory grid establishing specified time limits for the various legally prescribed events.

Here, as late as July 27, 1988, in preparation for the August 2, 1988 permanency planning hearing, the DSS adoption assessment stated, “the mother [was] working on her reunification plan [and] ․ it appears that [long term foster care] is the best plan at this time to allow the mother more time to work on reunification and to allow the children to maintain contact with her.”   Clearly DSS wanted to give Wendy additional reunification services so she could prove that further efforts at reunification were in the best interests of her children in accordance with section 366.3(c).   The August 2, 1988, order supports this inference directing the social worker to address the mother's reunification plan.   Moreover the court continued the reunification plan at the September 20, 1988, hearing when the statutory period for a reunification had expired.   These orders reflect the court's uncertainty over placement and its awareness of the mother's progress at making reunification.   The court did not wish to foreclose the possibility the minors could be reunified with their mother.   Although inconsistent with the rigidity of the statute this approach served the needs of the children and their mother reflecting the compassion of the social workers and judicial personnel who reviewed this case on a periodic basis.   It was not until March 21, 1989, that DSS finally recommended that reunification services be terminated in favor of a permanent plan providing for long term foster care with their paternal grandmother.

Based on the foregoing events and the application of section 366.3(c) we must conclude the court erred in denying Wendy the opportunity to explain her efforts at reunification in circumstances where her accomplishments were the direct result of DSS's efforts in assisting her pursuant to the court's orders.⁴  Whether the error was prejudicial requires further discussion.

II

 If we were required to narrowly examine the court's erroneous ruling, we would conclude the error was prejudicial, describing it as preventing a mother from presenting evidence on whether she should be reunited with her children.   We believe we are not so obligated in a procedural setting where Wendy was judicially invited to present the same evidence in a later proceeding but failed to do so.

Although the law is an intellectual process, it does not deal with abstractions.   Decisions are not made in a laboratory, initially tested on non-humans to determine their detrimental effect.   People are the guinea pigs of our decisions.   With this mindset we admit to being less than enthusiastic about disrupting the minors' present living arrangement.   Their excellent adjustment in their new home for the past year is hardly an incentive to search for prejudicial error.

It is equally clear, however, that our satisfaction with the minors' living arrangements cannot serve as the basis to summarily reject Wendy's claim that she was denied a fair trial.   In evaluating that claim, we nonetheless believe that we may consider the effect of Wendy's failure to exhaust her remedies at the trial court.

 In a different context—petitions seeking extraordinary relief—it is well established that “sound principles of judicial administration call for the exhaustion of possible remedies at the trial court as a condition to application for the writ.”  (8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 122, p. 761.)   Where relief can be granted by the trial court, the appellate court should not be involved.   We should not use our resources where the trial court can resolve the contested issue in a fair and impartial manner.   This principle permits the economic use of judicial resources while giving appropriate deference to the trial court.   We see no reason why this rule should not be applied here.

In ruling Wendy's efforts at reunification were inadmissible the court told counsel that he should present such evidence in a section 388 proceeding.   There is no showing on this record that counsel pursued that avenue or had he done so his effort would not have been successful.

We have not coined the phrase “exhaustion of trial court remedies” for the purpose of denying Wendy appellate relief.   We adopt that phrase from other state courts where there are prescribed trial court remedies to be used before the appellate court will consider the trial court error.   For example in Minnesota the trial court has the statutory duty on motion to reconsider family law orders on such matters as child support, visitation and attorney's fees.   In discussing the effect of that procedure on the appellate process the appellate court explained:  “We increasingly find cause to urge that appeals in dissolution proceedings be made only after the trial court has had an opportunity to hear grievances over the judgment and make adjustments it considers appropriate.   Such motions immediately after issuance of a decree not only reaffirm the trial court's role in finding facts and exercising discretion, but also contribute to judicial economy by reducing the number of appeals and limiting the number of issues raised on appeal.”  (Barrett v. Barrett (1986) 394 N.W.2d 274, 277.)   That rationale is equally applicable here.   There is no functional difference between the statutory post-trial procedure authorizing the trial court to reconsider its earlier ruling and the judicially invited post-trial procedure here through which Wendy could have corrected the court's earlier ruling.

Accordingly we will treat the error as harmless and affirm the order.   This decision should not be construed as our holding that every erroneous evidentiary ruling can be corrected in a section 388 proceeding and necessarily treated as harmless.   There are cases where the evidence would be clearly inadmissible in such a proceeding and an offer of proof would demonstrate that the error was prejudicial.

DISPOSITION

Order affirmed.

FOOTNOTES

1.   We take literary license in using the word “grandmother.”   Although the paternal grandmother of both Jeremy and Royanna, she is unrelated to Jennifer.

2.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.   For convenience we omit repetition of the word “subdivision” in our statutory references.

3.   Section 388 provides in part:  “Any parent ․ may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court․ [¶]  If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held․”

4.   Our conclusion is consistent with Wendy's contention that section 388 is not the exclusive remedy through which evidence may be introduced to show that further efforts at reunification are warranted.   Wendy's concern that section 388 may be deemed an exclusive remedy is the result of her reading of In re Heather P., supra, 209 Cal.App.3d 886, modified at 210 Cal.App.3d 730b, 257 Cal.Rptr. 545.   A case must be considered in light of the facts presented.   As Heather P. explained, the trial court did not intend by its reference to a “reunification plan” to undermine its implementation of the “permanency plan.”   Moreover the mother in Heather P. wanted a change of custody not merely a determination that further efforts at reunification were warranted.   Thus Heather P. is distinguishable on both the facts and the law from the case here.In light of our conclusion that the court erred and Wendy's failure to proceed at the trial court to correct that error, we reject her argument that the statutory framework is constitutionally infirm by denying a parent due process of law.

WIENER, Acting Presiding Justice.

TODD and WIEN,** JJ., concur.