IN RE: JOSHUA G. (1992)

OPINION

After Lisa L. failed to appear for a hearing under Welfare and Institutions Code section 366.26,¹ the court entered her default and terminated her parental rights to her young son, Joshua.   Lisa appeals from the termination order contending, among other things, that the trial court improperly scheduled the section 366.26 hearing after the six-month review.   We find the court prematurely scheduled the termination hearing and reverse.

Facts

Joshua was born on June 29, 1990, at the University of California, Irvine, Medical Center, to Lisa L., then 29 years old.   The nursing staff noticed Lisa did not respond appropriately to Joshua and seemed unable to care for him.   Hospital psychiatric evaluations of Lisa revealed she was “hypomanic with evidence of thought disorder” and in need of outpatient mental health services.   Joshua was taken into protective custody and a dependency petition was filed on July 3 under section 300, subdivision (b).²

Further investigation showed Lisa had an extensive history of mental illness.   Since the age of 15, she had been frequently hospitalized for psychiatric problems, including three times during the year immediately preceding Joshua's birth.   From 1982 to 1988 she was under a conservatorship.   Her illness had been previously diagnosed as “Bipolar Affective Disorder and Personality Disorder Not Otherwise Specified.”   She consistently refused medication, left the hospital against medical advice, and refused to follow up with recommended outpatient treatment.   She exhibited bizarre, impulsive and self-destructive behavior.   Her therapist at Mental Health Services, Joe Lorentz, stated Lisa had been treated there on and off for years.   Although her case had been closed for about a year, she called frequently when she had difficulty with her daily functioning.   Lisa had never held a job and had a history of being homeless, living on the streets and in motels and shelters.

The social worker, Deanna Ozenbaugh, interviewed Lisa and confirmed her bizarre behavior.   Ozenbaugh also interviewed various friends and family members, including Lisa's father and Joshua's father.³  None of these people felt Lisa could care for a baby without supervision.   Nevertheless, Ozenbaugh recommended reunification services, which included referral to the juvenile court evaluation and guidance unit, continued participation in the county's mental health program, that Lisa obtain a source of income and suitable housing and that she maintain visitation with Joshua.

At the pretrial hearing on July 30 Lisa appeared and the public defender was appointed to represent her.   The court ordered a focused assessment of Lisa by the evaluation and guidance unit and continued the jurisdictional and dispositional hearing to September 28.   In the interim, Lisa failed to keep appointments for the focused assessment, other scheduled medical evaluations and visitations with Joshua.   She did, however, speak several times to the social worker by telephone.

Lisa failed to appear for the jurisdictional and dispositional hearing.   At the outset, the public defender made an oral motion to be relieved as Lisa's counsel “due to lack of cooperation.”   Although Lisa had not been given notice of the motion, and over the objection of the Orange County Social Services Agency (SSA), the trial court granted the motion.   No substitute counsel was appointed.   The court then accepted into evidence SSA court reports and a stipulated adjudication signed by county counsel and Joshua's counsel.   Subsequently, the court found the allegations of the petition to be true and declared Joshua a dependent child under section 300, subdivision (b).   It adopted the reunification plan as recommended and set the case for a six-month review.

The SSA report prepared for the six-month review showed Lisa had maintained telephone contact with the social worker through March, but she had failed to keep their scheduled appointments.   She had also failed to keep appointments to visit Joshua, although she had been offered transportation by the social worker.

Lisa did not appear for the six-month review hearing.   Based on the recommendation of SSA and a stipulation between county counsel and Joshua's counsel, the court found by clear and convincing evidence that it would be detrimental to return Joshua to the custody of Lisa and that reasonable services had been provided or offered to her, and it ordered a termination hearing under section 366.26 to be held on August 9.   Lisa had no contact with SSA between the six-month review and August 9, and failed to appear for the termination hearing.   The court continued the hearing to October 29 and, after SSA's search efforts failed, subsequently ordered publication of notice of the hearing date.   In response to a letter sent to one of the motels where she often stayed, Lisa called SSA on October 8 and was told of the October 29 hearing.

At 10:30 a.m. on October 29, Lisa not having appeared, the court entered her default, found Joshua to be adoptable by clear and convincing evidence and terminated her parental rights.   Sometime later that day, however, Lisa did appear.   On the afternoon calendar, the court reappointed the public defender to represent her and set a hearing date for her motion to set aside the default under Code of Civil Procedure section 473.   The motion was heard on December 11;  the court ruled its power to set aside the default was barred by section 366.26, subdivision (h), which prohibits the modification of orders terminating parental rights.

Discussion

 Lisa claims the trial court failed to follow statutory procedures when it scheduled the termination hearing without first holding a 12–month review.   We agree and find this error requires reversal.⁴

The statutory scheme dealing with dependent children (§ 300 et seq.) contemplates giving a parent whose child has been removed from the home 12 months of child welfare services directed towards the reunification of the family, with status review hearings held every 6 months; ⁵  the reunification services can be extended to 18 months if it appears likely that the additional time period will yield successful results.  (§ 361.5.)   Section 366.21, subdivision (e) deals with the status review hearing held six months after the initial dispositional hearing.   It provides generally that if the court finds the return of the child to the home would create a substantial risk of detriment, it shall order the continuation of reunification services to the parent.   The court is directed to inform the parent that if the child is not returned by the 12–month review hearing, a proceeding under section 366.26 may be instituted.

There are several limited exceptions to this statutory pattern.   The court can bypass reunification services and order a section 366.26 hearing held within 120 days of the dispositional hearing if it finds, by clear and convincing evidence, that the parent is suffering from an incapacitating mental disability, the child has previously been removed from the parent due to physical or sexual abuse, the parent has caused the death of another child through abuse or neglect, or the parent has inflicted severe physical abuse on the child.  (§ 361.5.) ⁶  And section 366.21, subdivision (e) sets out certain circumstances under which the court may order a section 366.26 hearing held within 120 days of the 6–month review hearing.

It is this subdivision (e) over which the litigants here disagree.   The paragraph in question provides, “If the minor was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days.   If the court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness, the court may schedule a hearing pursuant to Section 366.26 within 120 days.”

SSA reads this paragraph as allowing the court to schedule the section 366.26 hearing at the six-month review if the parent has failed to contact and visit the child regardless of whether the child was previously adjudicated a dependent under section 300, subdivision (g).   Although the comma placed between the phrase “still unknown” and “or the parent” suggests support for SSA's interpretation, allowing the court to cut off a parent's right to reunification services and order a section 366.26 hearing based on a failure to contact and visit for six months is not consistent with the legislative intent displayed throughout the statutory scheme.   Furthermore, it is not likely the Legislature would have begun the sentence with a reference to section 300, subdivision (g) if it had not intended it to apply to the entire sentence.

We find the interpretation urged by Lisa makes much more sense:  Removal of the child from the home under section 300, subdivision (g) is a prerequisite to both findings that the whereabouts of the parent is unknown and that the parent has failed to contact and visit the child.   And both findings must be made by clear and convincing evidence.   Subdivision (g) basically describes the “absent parent” situation when the child has been left without any provision for support, or the parent has been incarcerated and cannot arrange for care, or the whereabouts of the parent is unknown and the child's caretaker can no longer provide care.   If the child is removed from the home under these circumstances, and after six months the situation still persists, then there is justification for accelerating the section 366.26 hearing.

Here, although Lisa did fail to contact and visit Joshua for the six months following the dispositional hearing, she was not the absent parent contemplated by subdivision (g) of section 300.   Joshua was removed from Lisa's custody under subdivision (b) of section 300, not subdivision (g);  thus, she did not fall under the exception to the 12–month review in section 366.21, subdivision (e) and the court improperly scheduled the section 366.26 hearing.

The judgment terminating Lisa's parental rights is reversed and the matter is remanded for a new six-month review hearing.

I dissent from the majority's opinion to the extent it interprets Welfare and Institutions Code section 366.21, subdivision (e) ¹ as requiring the minor's previous removal from the home pursuant to section 300, subdivision (g) before a court faced with a parent who has not maintained contact and visitation may order a selection and implementation hearing.

Before discussing this issue, however, I would like to expand upon footnote four of the majority opinion, which points to serious improprieties in the handling of this case.   It was utterly inappropriate for Lisa's counsel to withdraw representation without first giving her notice, and it was similarly improper for the court to allow counsel to withdraw under these circumstances.  (See In re Rubin P. (1991) 2 Cal.App.4th 306, 312, fn. 5, 3 Cal.Rptr.2d 301;  Cal.Rules of Court, rule 376;  Code Civ.Proc., § 284.)   Had counsel been present in appellant's behalf, the court would not and could not have accepted a stipulation affecting appellant's fundamental rights to which appellant was not privy.

These stipulations were flawed because appellant did not enter into or accede to them.   How a stipulation affecting appellant's fundamental rights, entered by parties representing interests opposed to appellant, could be accepted by a court is beyond me.

Nevertheless, there are substantial differences between this case and Rubin P.   It appears that here, unlike in Rubin P., there was a hearing and the court admitted the social worker's report.   Furthermore, and more important, the time for appeal from the six-month review hearing was allowed to run.   “[A]ppellate jurisdiction is dependent upon the filing of a timely notice of appeal.  [Citations.]  ‘An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.’  [Citations.]”  (In re Megan B. (1991) 235 Cal.App.3d 942, 950, 1 Cal.Rptr.2d 177, quoting In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483;  see also In re Rubin P., supra, 2 Cal.App.4th at p. 313, fn. 6, 3 Cal.Rptr.2d 301.)   I would find that appellant's claim she was prejudiced by the withdrawal of her counsel and the court's acceptance of an inappropriate stipulation is barred because the time for appeal has run.

As for the majority's interpretation of section 366.21, subdivision (e), I believe it is faulty.   While no court has previously been called upon to interpret this subdivision, references to it in the case law are often incomplete.  (See, e.g., In re Heather Nadine B. (1992) 9 Cal.App.4th 535, ––––, 11 Cal.Rptr.2d 891.) ²  In fact, even the statutes relating to dependency and termination of parental rights are themselves inconsistent in their interpretation of section 366.21, subdivision (e).  (See § 366.26, subd. (c)(1).) ³

Bearing these inconsistencies in mind, the second paragraph of subdivision (e) states, “If the minor was removed initially under subdivision (g) of section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact or visit the child, the court may schedule a hearing pursuant to section 366.26 within 120 days․”  (Emphasis added.)   The placement of a comma after the word “unknown” clearly evidences that the Legislature intended the phrase “or the parent has failed to contact and visit the child” to be separate from and not modified by the requirement that there have been an initial removal under section 300, subdivision (g).   This is the only reasonable interpretation.

The majority acknowledges that the placement of the comma “suggests support for SSA's interpretation,” but then goes on to state such an interpretation “is not consistent with the legislative intent displayed throughout the statutory scheme.”

Unfortunately the statutory scheme itself is not always consistent.   But I find nothing within the scheme that supports the majority's interpretation.   I would hold that a parents' failure to contact and visit the minor during the initial six months of reunification services is a sufficient basis for authorizing a section 366.26 hearing.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   Subdivision (b) describes a child who is at substantial risk of serious physical harm due to the parent's failure or inability to supervise or protect him.

3.   Joshua's father was living in Florida when Joshua was born.   Although he initially expressed an interest in the child, he never appeared at trial.

4.   Because we find this error dispositive, we do not reach Lisa's many other claims.   We feel compelled, however, to point out the impropriety of relieving Lisa's counsel without notice and leaving her unrepresented throughout the proceedings.   We trust this situation will not repeat itself on remand.  (See In re Rubin P. (1991) 2 Cal.App.4th 306, 312, fn. 5, 3 Cal.Rptr.2d 301.)

5.   See In re John B. (1984) 159 Cal.App.3d 268, 205 Cal.Rptr. 321, which held the process of permanent placement should not be commenced until a parent whose child was adjudicated a dependent under section 300, subdivision (a) has been provided two six-month periods of reunification services.

6.   The court can also bypass reunification services if the whereabouts of the parent is unknown, but it cannot directly order a 366.26 hearing from the dispositional hearing.  (§ 361.5, subd. (d), (f).)

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   In Heather Nadine B., the court paraphrases subdivision (e) of section 366.21, but makes no mention of its failure to contact and visit component.  “In juvenile court proceedings for dependent children, the Legislature has specified that clear and convincing evidence is the standard of proof to be applied to most of the findings which must be made.   These include the initial decision to remove a child from parental custody (§ 361, subd. (b));  the determination that reunification services not be offered (§ 361.5, subd. (b));  the determination that the whereabouts of the parent of a child removed initially under subdivision (g) of section 300 are still unknown or the parent has been convicted of a felony indicating parental unfitness (§ 366.21, subd. (e));  the determination at the 12–month review hearing whether reasonable reunification services were offered (§ 366.21, subd. (g));  and the determination at the hearing under section 366.26 whether the child is likely to be adopted (§ 366.26, subd. (c)).”  (Emphasis added.)

3.   That subdivision provides:  “At the hearing the court shall proceed pursuant to one of the following procedures:  [¶] (1) The court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted.   If the court so determines, the findings pursuant to subdivision (b) of section 361.5 that reunification services shall not be offered, or the findings pursuant to subdivision (e) of section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness, ․ shall then constitute a sufficient basis for termination of parental rights․”   The requirement of minor's prior removal from the home pursuant to section 300, subdivision (g) is never mentioned.

WALLIN, Associate Justice.

SILLS, P.J., concurs.