IN RE: JOSHUA G. (1993)

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 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).

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.²  None of these people felt Lisa could care for a baby without supervision.   Nevertheless, Ozenbaugh recommended a reunification plan, which included referring Lisa to the juvenile court evaluation and guidance unit and requiring her to participate in the county's mental health program, obtain a source of income and suitable housing and 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 the 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 failed to keep their scheduled appointments.   She 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 the 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 the 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 the 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 the 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.³

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; ⁴  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.) ⁵  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 ⁶ 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.”

The 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).   As discussed below, however, we interpret the statute to mean that removal of the child from the home under section 300, subdivision (g) is a prerequisite to scheduling the section 366.26 hearing both when the whereabouts of the parent is unknown and when the parent has failed to contact and visit the child.

 All parties agree in order to advance the case directly to a section 366.26 hearing, the court must find by clear and convincing evidence that the parent has failed to contact and visit the child.   But if we read the phrase “or the parent has failed to contact and visit the child” as standing apart from a previous adjudication under section 300, subdivision (g), it would then also stand apart from the requirement of a finding under clear and convincing evidence, a result which makes no sense.   Furthermore, it is not reasonable to assume the Legislature meant that a failure to contact and visit the child alone is an independent ground for advancing directly to the section 366.26 hearing when it carefully enumerated a second ground, conviction of a felony indicating parental unfitness, in a separate sentence and indicated that finding must be made by clear and convincing evidence.   The structure of the paragraph indicates there are only two situations where the court can schedule a section 366.26 hearing at the six-month review:  (1) when the child has been removed under section 300, subdivision (g) and the court finds by clear and convincing evidence the whereabouts of the parent are still unknown or the parent has failed to contact and visit the child;  or (2) when the court finds by clear and convincing evidence the parent has been convicted of a felony indicating parental unfitness.

The SSA points out that under Civil Code section 232, subdivision (a)(1), parental rights can be terminated for abandonment if a parent leaves the child for six months in the custody of a nonparent and fails to provide support or communicate with the child, regardless of a prior adjudication of dependency.   The SSA argues dependent children should be treated the same if their parents fail to contact and visit them for six months.

But Civil Code section 232 does not base a termination on a parent's failure to communicate alone;  the failure to communicate must be “with the intent on the part of the parent ․ to abandon the child.”  (Civ.Code, § 232, subd. (a)(1).)   While the failure to communicate is presumptive evidence of the intent to abandon, the parent has the opportunity to rebut that presumption with opposing evidence.   Under the SSA's interpretation of section 366.21, subdivision (e), the mere failure to contact and visit, without the opportunity to explain the failure, would cut off any possibility of reunification between the parent and child.   Thus the analogy between the two sections is inapt.

The SSA urges its interpretation should be favored because the intent of dependency law is to protect the child's needs.   But the needs of the child are not always best served by rushing to terminate parental rights, thus freeing a child for adoption.  “[A]doption of children will frequently have long term adverse consequences to the lives of all concerned.  [¶] In any adoption, the natural family, the adoptive family, the child, and society will all pay a price for what is all too often unnecessary.   Termination of parental rights should never be undertaken lightly.”  (Families in Crisis, Report No. 2, San Diego County Grand Jury (Feb. 6, 1992) p. 24.)   Our interpretation of section 366.21, subdivision (e) ties the failure to contact and visit for six months to a previous adjudication that the child had been abandoned, whether voluntarily or involuntarily.   Under these circumstances, there is justification for accelerating the section 366.26 hearing.

We recognize that the SSA's interpretation is supported by California Rules of Court, rule 1460(f)(2)(A), which states the court may set the section 366.26 hearing at the six-month review if “(i) The child was removed under section 300(g) and the court finds by clear and convincing evidence that the parent's whereabouts are still unknown;  or [¶] (ii) The court finds by clear and convincing evidence that the parent has not had contact with the child for six months;  or [¶] (iii) The court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness.”   Because the interpretation set out by the Judicial Council contradicts the plain language of the statute, however, rule 1460(f)(2)(A) exceeds the council's authority to “adopt rules for court administration, practice, and procedure, not inconsistent with statute” (Cal.Rules of Court, rule 1400(b)) and does not bind us.  (People v. Cheatham (1979) 23 Cal.3d 829, 833–834, 153 Cal.Rptr. 585, 591 P.2d 1237.)

Here, although Lisa did fail to contact and visit Joshua for the six months following the dispositional hearing, she had not previously abandoned him.   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 three 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 B. (1992) 9 Cal.App.4th 535, 548, 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 and 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.

Support for such an interpretation exists in California Rules of Court, rule 1460(f)(2)(A).   It states the court may set the section 366.26 selection and implementation hearing at the six-month review if “(i) The child was removed under section 300(g) and the court finds by clear and convincing evidence that the parent's whereabouts are still unknown;  or [¶] (ii) The court finds by clear and convincing evidence that the parent has not had contact with the child for six months;  or [¶] (iii) The court finds by clear and convincing evidence that the parent has been convicted of a felony indicating parental unfitness.”

The rules relating to juvenile court “are designed to implement the purposes of the juvenile court law by promoting uniformity in practice and procedure and by providing guidance to judges, referees, attorneys ․ and others participating in the juvenile court.”  (Cal.Rules of Court, rule 1400(b).)  “Insofar as these rules are substantially the same as existing statutory provisions relating to the same subject matter, these rules shall be construed as restatements of those statutes․  [¶] Insofar as these rules may add to existing statutory provisions relating to the same subject matter, these rules shall be construed so as to implement the purposes of the juvenile court law.”  (Cal.Rules of Court, rule 1400(c)(1) & (2).)

It was the discovery of rule 1460(f)(2)(A) that led this court to grant a rehearing.   Yet the majority again reaches the same result by asserting that the rule contradicts the plain meaning of section 366.21, subdivision (e), and is therefore nonbinding.   But the majority's reference to the statute's purported plain meaning merely begs the question.   The inconsistencies in the statutory and case law references to section 366.21, subdivision (e), plus the Judicial Council's construction of the statute demonstrate the bankruptcy of the majority's plain meaning argument.

As I have pointed out, the rule and the statute appear to be consistent in their failure to require a previous removal under section 300, subdivision (g).   My interpretation is also consistent with the legislative intent behind our dependency laws, which is to provide for stability in the lives of dependent minors.  (See Sen. Select Com. Rep. on Children & Youth, Sen. Bill. No. 1195, p. 10 (1988 Reg. Session);  In re Tammy H. (1992) 11 Cal.App.4th 48, 52, 14 Cal.Rptr.2d 16.)   A minor whose parent or parents have not kept in contact for six months is in dire need of stability, and will not be aided by further attempts which are almost certain to be futile and which will merely perpetuate the minor's court-imposed “limbo.”   The Legislature has sought to eliminate this problem by reducing court delay as much as possible.  (See In re Arturo A. (1992) 8 Cal.App.4th 229, 240, 10 Cal.Rptr.2d 131.)

Here, I believe rule 1460(f)(2)(A) is substantially the same as section 366.21, subdivision (e), though it does add by way of clarification to the statute.   My interpretation of the statute, taking into account its rule of court counterpart, would implement the underlying purposes of the juvenile court law;  the majority's interpretation does not.   While the San Diego County Grand Jury Report upon which the majority relies is certainly interesting, it does not provide a sufficient basis for reversal.

Nor am I swayed by the majority's assertion that if the phrase “or the parent has failed to contact and visit the child” stands apart from the requirement of a previous adjudication under section 300, subdivision (g), then it must also stand apart from the requirement of a finding under clear and convincing evidence.   While I agree that the clear and convincing standard of proof would also be applicable to an abandonment (see Cal.Rules of Court, rule 1460(f)(2)(A)), the omission appears to be a manifestation of sloppy draftsmanship rather than of an intent to require a prior finding under section 300, subdivision (g).

I would hold that a parent's 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.   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.

3.   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.)

4.   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.

5.   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, subds. (d) & (f).)

6.   Subdivision (g) describes a child who “has been left without any provision for support;  the minor's parent has been incarcerated or institutionalized and cannot arrange for the care of the minor;  or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent is unknown, and reasonable efforts to locate the parent have been unsuccessful.”   Joshua was adjudicated a dependent under subdivision (b), which 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.

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

2.   In Heather 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․”  (Emphasis added.)   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.