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S.W. v. Superior Court of Orange County

May 15, 2009

S.W., PETITIONER,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; ORANGE COUNTY SOCIAL SERVICES AGENCY ET AL., REAL PARTIES IN INTEREST.



Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied. (Super. Ct. No. DP017075).

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

Certified for Publication

OPINION

Petitioner S.W. (father) seeks writ review of an order terminating reunification services and setting a hearing to select and implement an alternative permanent plan for his daughter, S.W. The court impliedly found father failed to "contact and visit" S.W. during the six-month review period. (Welf. & Inst. Code, § 366.21, subd. (e).)*fn1 Father's undisputed failure to visit S.W. supports the court's order, notwithstanding his single telephone contact with her. We deny the petition.

FACTS

The Orange County Social Services Agency (SSA) filed a juvenile dependency petition asserting father failed to protect and support S.W, who was 10 years old. (§ 300, subds. (b), (g).) SSA alleged father was homeless and had left S.W. in the care of relatives and caregivers for more than two months without providing for her support. S.W. needed long-term medical care and physical therapy due to a serious head injury she suffered at age six. Father failed to provide such care and did not "maintain a relationship and contact with the child." After a detention hearing, the court vested temporary placement of S.W. with SSA.

Father appeared at the June 2008 pretrial hearing, despite SSA's inability to locate him at any of six addresses. His appointed counsel told the court father had "been staying from hotel to hotel" and had no permanent mailing address. The court ordered father to report any change in his address or telephone number.

S.W.'s caregiver and foster mother told social workers that father later called her from White Plains, New York. Father told the foster mother he went there with his girlfriend and "was basically stranded in New York, as he had no identification and could not fly back to California." He found work but "could not get his paycheck due to not having identification." He had no "residence to bring the child home to."

Father failed to appear at the August 2008 contested disposition hearing. The court sustained an amended jurisdictional petition, declared S.W. a dependent child of the court, vested custody with SSA, offered reunification services to father, and set a six-month review hearing.

At the six-month review hearing in February 2009, the court terminated reunification services and set a hearing under section 366.26 to select and implement an alternative permanent plan for S.W. (.26 hearing). It found returning S.W. to father's care would create a substantial risk of detriment to her well-being. It noted father had not visited S.W in the preceding six months. The record showed father did speak once to S.W. on the telephone in November 2008 and once left a voicemail message for her. S.W. called father repeatedly and left a message for him, but he never called back. Meanwhile, S.W. flourished in foster care and had weekly telephone contact with her half-sibling's family in Florida, with whom S.W. used to spend her summers and who were eager to adopt her.

DISCUSSION

Father contends the court erred when it terminated reunification services and set a .26 hearing. He contends insufficient evidence supports the implied finding he failed to "contact and visit" S.W (§ 366.21, subd. (e)), noting he had one telephone contact with her in November 2008. He asserts contact alone, without visitation, requires the court to continue services and set a further review hearing.

"Section 366.21, subdivision (e), governs [the] initial six- month review hearing." (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009 (Sara M.).) At this hearing, the court must continue to offer reunification services pending a further review hearing unless it finds by clear and convincing evidence that an exception applies. (Id. at pp. 1008-1009; § 366.21, subd. (e).)

One exception is a parent's failure to "contact and visit the child" during the six-month review period. "If the child 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." (ยง 366.21, subd. (e), italics added.) Properly parsed, the statute makes the parent's failure "to contact and visit the child" an independent basis for terminating reunification services and setting a .26 hearing, regardless of why the child was ...


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