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In re A.C.

December 22, 2008

IN RE A.C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
ORANGE COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
O.H. ET AL., DEFENDANTS AND RESPONDENTS;
A.C. ET AL., APPELLANTS.



Appeal from an order of the Superior Court of Orange County, Caryl A. Lee, Judge. Affirmed. (Super. Ct. Nos. DP013303 & DP013304).

The opinion of the court was delivered by: Ikola, J.

CERTIFIED FOR PUBLICATION

OPINION

In this juvenile dependency proceeding, brothers A.C. and J.C. (dependents) appeal a June 2008 post-disposition order continuing reunification services for their parents. Dependents were detained from their mother's home in April 2006. Shortly thereafter, dependents were placed with their father at his residence. In September 2007, dependents were detained for a second time pursuant to a Welfare & Institutions Code section 387 supplemental petition.*fn1 Parents received reunification services following this second detention. At a review hearing held in June 2008, dependents contended their parents had already received more than two years of child welfare services, which exceeds the 18 months of services statutorily authorized by section 361.5. It was therefore inappropriate, according to dependents, for the court to conduct a "six-month" review in June 2008 pursuant to section 366.21, subdivision (e), and to continue reunification services at that time. Dependents argue in the alternative there is insufficient evidence to support the court's finding of a "substantial probability that [dependents] may be returned" to parents within the six months following the June 2008 hearing. (§ 366.21, subd. (e).)

We affirm. The trial court properly interpreted the relevant dependency statutes in finding parents were entitled to additional reunification services at the June 2008 hearing. Section 361.5 time limits for reunification services start to run when a child is removed from all parental custody at the disposition hearing. The clock does not start running when the child is placed with a non-custodial parent pursuant to section 361.2. There is also sufficient evidence supporting the court's finding of a substantial probability dependents may be returned to the care of their parents by the 12-month review.

FACTS

As a result of allegations of abuse by mother's boyfriend and a failure to protect by mother, Orange County Social Services Agency (SSA) first took A.C. (age six at the time) and J.C. (age 2 at the time) into protective custody in April 2006. The court held a detention hearing on April 14, 2006, at which time the court continued the detention of dependents, authorized SSA to release dependents (to a parent, relative, or suitable adult), and ordered reunification services to commence "as soon as possible." Mother appeared at the April 14 hearing; father had not yet been located. By May 15, father had been located, SSA had referred mother and father to various programs, and mother had commenced a child abuse treatment program.

On May 23, 2006, SSA released dependents into their father's custody. On May 31, 2006, the court conducted a jurisdictional and dispositional hearing at which it declared A.C. and J.C. "dependent children . . . under section 360, [subdivision] (d) . . . ." At this hearing, the court agreed to a stipulated case plan in which father received "family maintenance" services and mother received an "enhancement plan." At least some of the services actually participated in by mother, however, were ordered by the criminal court and not by the dependency court. Following the disposition, the court provided notice of and conducted two separate six-month reviews, which SSA designated as section 364 hearings.

In September 2007, SSA detained dependents and filed a section 387 supplemental petition alleging father had engaged in drug-related misconduct. In October 2007, SSA placed dependents with their grandmother. On November 13, 2007, the court conducted a jurisdictional and dispositional hearing on the amended petition, and approved a proposed order signed by all parties, including dependents, which provided reunification services for the family and set the matter for a "six-month" review the following spring.

At the June 2008 "six-month" review, conducted pursuant to section 366.21, subdivision (e), the court continued reunification services for dependents' parents, and set a section 366.21, subdivision (f), 12-month permanency hearing for October 2008.*fn2 Counsel for dependents objected, claiming the matter should be set for a section 366.26 hearing because parents had already received services beyond those authorized by section 361.5, subdivision (a). The court rejected this argument, explaining "enhancement" and "maintenance" services previously received by dependents' parents did not constitute "reunification" services. In essence, the court found section 361.5 did not apply during the period of the dependency in which dependents were placed with their father and their mother did not receive reunification services. The court also found a substantial probability dependents may be returned to their parents by the 12-month permanency review, and therefore continued the case to the 12-month review and declined to set a section 366.26 hearing.

DISCUSSION

Dependents argue the court abused its discretion by allowing reunification services to continue in this matter. Relying primarily on In re N.M. (2003) 108 Cal.App.4th 845 (N.M.), dependents contend parents had already received child welfare services in excess of those allowed by section 361.5, subdivision (a), by the June 2008 hearing.*fn3 We begin our analysis of the issue with a review of the statutes applicable to this action.

Placement of Dependent Child with Previously Non-custodial Parent

At the May 2006 jurisdictional and dispositional hearing, dependents were ordered removed from the physical custody of their mother. When the court removes a dependent child from the physical custody of his or her parent pursuant to section 361, subdivision (c), it must "first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of ...


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