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J. O. et al v. Superior Court of Sacramento County


July 8, 2011


Super. Ct. Nos. JD230261 & JD230262

The opinion of the court was delivered by: Blease , Acting P.J.


ORIGINAL PROCEEDING; petitions for extraordinary writ. Writs Denied.

Petitioners, mother J.O. and father M.H, seek an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the dispositional hearing on a supplemental petition, denying reunification services and setting a selection and implementation hearing. (Welf. & Inst. Code, §§ 366.26, 387 [further undesignated statutory references are the Welfare and Institutions Code].) We have previously stayed proceedings in the respondent court.

The question presented is whether the bypass provisions of section 361.5, subdivision (b)(13) apply where the parents have never been offered family reunification services and neither parent was previously a subject of court-ordered treatment. We conclude that it does not. However, because the court has broad discretion in entering disposition orders and properly exercised that discretion, the petitions must be denied.


The minors, ages two and five, were detained in October 2009 pending the jurisdiction and disposition hearings on a petition which alleged the minors were at risk of physical harm due to parental substance abuse and domestic violence. Although there were prior referrals for abuse and neglect, the parents had not previously been subject to the jurisdiction of the juvenile court. The juvenile court sustained the petition, adjudged the minors dependents and returned them to the custody of the mother. A requirement that the father be excluded from the home, as discussed in the social worker's report, was evidently a precondition for this order. However, the juvenile court's orders did not remove custody of the minors from the father.

The parents received 12 months of child welfare services which included substance abuse treatment in several programs, Dependency Drug Court, a domestic violence program, parenting education, and drug testing. The parents' participation in services was marred by repeated relapses and failures to complete programs.

In December 2010, the minors were detained on a supplemental petition (§ 387) which alleged the mother failed to benefit from services and continued to abuse drugs. The Sacramento County Department of Health and Human Services (Department) recommended a bypass of services pursuant to section 361.5, subdivision (b)(13) due to the parents' chronic substance abuse and failure to comply with court-ordered treatment prior to filing the supplemental petition. The Department asserted that if the bypass provisions of subdivision (b)(13) applied, the exception provisions of section 361.5, subdivision (c) would not apply because further attempts at reunification were not in the minors' best interests.

During the contested dispositional hearing, the court found that the bypass provisions of section 361.5, subdivision (b)(13) did apply. In ruling on disposition, the court expressed its belief that the minors were removed from the father and that he received reunification services while the mother retained custody of the minors. The court analyzed the question of further services for the father both from the standpoint of the exception to the bypass provision and of the 12-month review hearing provisions of section 366.21, subdivision (f) which could extend the father's reunification services to the 18-month maximum reunification period. The court first stated it could not find a substantial probability that the father could reunify within the 18-month period if services were not bypassed. The court then addressed the exception to the bypass provision. The court reviewed the parents' ongoing incidents of substance abuse and domestic violence, behavioral problems of the older child, the quality of visitation, the length of services already received, the parents' failure to benefit from services and the minors' needs for permanence and stability, and concluded there was not clear and convincing evidence that reunification was in the minors' best interests. The court denied further services for both parents and set a selection and implementation hearing.


The parents argue that the provisions of section 361.5, subdivision (b)(13) do not apply in this case since the parents never had court-ordered services before the filing of the section 300 petition and, after the disposition hearing on the section 300 petition, both parents had family maintenance services, not family reunification services.

Section 361.5 subdivision (b)(13) describes two ways in which services may be denied to parents who have been unsuccessful in substance abuse treatment programs prior to the disposition hearing at which the question of bypassing services is raised.*fn1 The first is: "That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention . . . ."

The parents argue that the phrase "prior to the filing of the petition that brought that child to the court's attention" must refer to the initial petition and, since neither parent was subject to court-ordered treatment prior to the initial petition, this provision cannot apply to them. The Department contends that the provision can be read to include section 387 supplemental petitions because these petitions also bring the child to the court's attention. We agree with the parents' reading of the statute.

In determining legislative intent, we begin by examining the language of the statute, giving words their usual and ordinary meaning. (Estate of Griswold (2001) 25 Cal.4th 904, 910.) Where the statutory language is clear, there is no need to resort to other indicia of legislative intent and a court interpreting the statute should follow its plain meaning. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d. 152, 155.)

The phrase "the petition that brought that child to the court's attention" can only be read to mean the initial petition brought pursuant to section 300 which initiated the dependency proceeding. Prior to the initial petition, the child is not within the court's jurisdiction and the court may not exert dependency jurisdiction absent such a petition. (§§ 300, 325.) Thereafter, the child is the subject of the court's ongoing attention whether in review hearings, new petitions filed pursuant to section 342 (subsequent petition) or section 387 (supplemental petition), or any of the other potential matters which may be dealt with in a dependency proceeding. Thus, the first part of section 361.5, subdivision (b)(13) applies to parental resistance to court-ordered treatment prior to the initiation of the current dependency.

The first condition described in section 361.5, subdivision (b)(13) was not satisfied in this case because there was no evidence of resistance to court-ordered treatment prior to filing the section 300 petition. Thus, the first part of the bypass provisions cannot apply to the parents.

The second part of section 361.5, subdivision (b)(13) applies to a parent who has a chronic substance abuse problem and "has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."

The parents argue that because section 358.1 refers only to reunification service plans and they had family maintenance, not reunification services, the second portion of section 361.5 also does not apply to them. Respondent asserts the argument is moot because the first portion of the bypass provisions apply to the parents. As we have explained above, this is not the case. The parents' argument regarding the second portion of the provisions is not moot and we agree with the parents that the provisions do not apply to bar services to the parents.

The second part of section 361.5, subdivision (b)(13) refers to the case plan required by section 358.1. That section lists some, but not all, of the information which should be in the social study required by section 358.

Section 358 requires the court to receive the social study in evidence before determining the appropriate disposition in the case and mandates that the social study "shall include the individual child's case plan developed pursuant to Section 16501.1." (§ 358, subd. (b).) "[T]he foundation and central unifying tool in child welfare services is the case plan." (§ 16501.1, subd. (a)(1).) Child welfare services include several kinds of services not limited to family maintenance services and family reunification services. (§ 16501, subd. (a).) The written case plan for the child welfare services is based on an assessment of the circumstances of the case and identifies goals and appropriate services to meet the goals. (§ 16501.1, subd. (f).) When the child is out of the home, there are additional requirements for the plan designed to maintain contact between family members and reunify the family. (Ibid.)

While many types of plans exist, section 358.1 specifically requires the social worker's report to contain a discussion only of: "What plan, if any, for return of the child to his or her parents and for achieving legal permanence for the child if efforts to reunify fail, is recommended to the court by the county welfare department or probation officer." (§ 358.1, subd. (b).) This subdivision refers to return of the child and the options that may exist for permanency if reunification efforts fail. The plan can only be a reunification plan. In the other child welfare service context applicable at disposition, i.e., family maintenance services, the child has not been removed from the family thus, by its terms, section 358.1, subdivision (b) which deals with reunification services cannot apply.

Because the plan referred to in section 358.1 is a reunification plan, the second part of section 361.5, subdivision (b)(13) permits a bypass of services only when a parent fails to comply with services offered as a part of a reunification plan. Neither parent had a reunification plan prior to the current dependency and, as we shall explain, the case plan ordered at the disposition hearing was not a reunification plan for either parent.

After hearing evidence on disposition, the court may declare the minor a dependent, place the child in the home, and order that services be provided. (Cal. Rules of Court, rule 5.695; §§ 360, subd. (d), 361.) When the court makes this disposition, the services provided to the parents are classified as family maintenance services. (§ 16506, subd. (a).) These services are limited to six months but can be extended in six month increments "if it can be shown that the objectives of the service plan can be achieved within the extended time periods, and provided within the county's allocation." (Ibid.) The case plan for these services is a family maintenance case plan. (§§ 358, 16501.1.)

Here, after the court declared the minors dependents, it returned them to the mother and family maintenance services were provided to her. However, there was no order removing the minors from the father's custody and, based on the record, we must conclude the services provided to him were on condition that he remain outside the home. Because both parents retained custody rights under supervision of the Department, both had family maintenance services. Thus, neither parent had a plan required by section 358.1, since that plan is a reunification plan and not a family maintenance plan. Accordingly, the second part of section 361.5, subdivision (b)(13) does not apply to these parents.

As we have explained, neither part of the bypass provisions of section 361.5, subdivision (b)(13) can apply to the parents and the court erred in denying services to them pursuant to this subdivision. This conclusion, however, does not end the inquiry. "'"The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [].)' (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19[].)" (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1495.)

The most basic tenet of disposition hearings is that "[t]he court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) If the juvenile court did not abuse its discretion in denying further services, the parents' petition for an extraordinary writ must fail.

We find guidance in setting the parameters of the court's discretion in In re Michael S. (1987) 188 Cal.App.3d 1448. In that case, the court declared the minors dependents, removed one child, returned the other two to the mother's custody, and ordered reunification services. (Id. at pp. 1452-1453.) All three were detained on a section 387 supplemental petition. (Id. at p. 1454.) The court concluded the reunification services for the one child were the functional equivalent of family maintenance services for the other two. (Id. at pp. 1466-1467.) The question was whether further family reunification services should be provided as part of the disposition of the section 387 supplemental petition. (Id. at pp. 1456-1457.) The court concluded: "Thus when it is clear that family maintenance services have been provided to a family and have been ineffective in avoiding the need to modify the existing order and remove a dependent child from the home in order to protect the child, a judge in making a supplemental disposition is not required to reorder the same services for an additional period of time." (Id. at p. 1467.) The court recognized that the various classifications of child welfare services -- i.e., emergency, family maintenance, reunification, and permanency planning -- were not mutually exclusive and provision of any services was based upon consideration of the individual case. (Ibid.) The court found that "when an attempt has been made to maintain the family unit by the provision of family maintenance services but this attempt has failed, the juvenile court should not be compelled to engage in the idle exercise of ordering the same services again and thus prolonging the time a dependent minor is without a safe and stable placement." (Id. at pp. 1467-1468.)

At the disposition hearing, in the context of determining whether providing further services to the parents would be in the minors' best interest under the bypass exclusion provisions of section 361.5, subdivision (c), the court reviewed the parents' participation in, and benefit from, the 12 months of services which had been provided. The court found the mother had not followed through with counseling for the minors and the older minor continued to display out of control behavior. Both minors said they preferred living with grandparents and it was not clear that they wanted to return to either parent. The mother continued to engage in domestic violence and substance abuse although she had been through counseling and substance abuse treatment. The court was not sanguine about the probability of her success in her current treatment program. The father had been in several programs and had relapsed frequently and the court questioned the credibility of his testimony that he had "turned the corner" and would remain "clean and sober." The court observed he was still a long way from being rehabilitated and noted the minors' need for permanence and stability.

The juvenile court's denial of further services at the disposition of a section 387 supplemental petition was an act which was well within its broad discretion to determine what would best serve the minors' interests. The exercise of the court's discretion was based on a careful analysis of the circumstances of the case, the credibility of the parents' testimony and the minors' needs for permanence and stability. A court's exercise of discretion will not be reversed absent a showing of clear abuse. (In re Christopher H., supra, 50 Cal.App.4th at p. 1006.) We cannot conclude the court abused its discretion in declining to order further services for the parents.


The petitions for extraordinary writ are denied. The opinion is final in this court forthwith. The previously granted stay of proceedings in the juvenile court is vacated.

We concur: NICHOLSON , Acting P.J. DUARTE ,J.

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