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In Re L.L. et al., Persons Coming Under the Juvenile Court v. C.B


October 12, 2011


(Super. Ct. Nos. J05298 & J05333)

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

In re L.L.



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

San Joaquin County Human Services Agency (the Agency) appeals from the juvenile court's order granting reunification services to incarcerated mother. The Agency contends the order is an abuse of discretion because mother was not scheduled to be released from prison until after 18 months from the time her children entered protective custody, which is the limitation period for reunification services, and no facts were present to legally justify extending services beyond that limit.

We requested and received supplemental briefing from both parties, asking whether subsequent events had mooted or affected the issues raised on appeal. The parties disagreed as to the correct answer to our question, but made no requests for judicial notice to support their competing factual contentions.

In the absence of any additional evidence, we reach the merits as originally briefed. We shall reverse.


On November 4, 2009, the Agency filed a petition under Welfare and Institutions Code section 300*fn1 as to sisters L.L. (born in November 1998) and D.L. (born in November 2000), alleging that mother had pled guilty on October 27, 2009, to assault on a person with a firearm (Pen. Code, § 245, subd. (a)(2)) and further had a criminal history that included drug offenses. The juvenile court ordered the minors detained on November 5, 2009--they had been in protective custody since November 2, 2009.

On December 11, 2009, the Agency filed a section 300 petition as to T.W. (born in December 2004), the half sister of L.L. and D.L., alleging that her father, who had obtained physical custody of her after mother's arrest, had physically abused her.

According to the disposition reports, while mother was at home with the older minors present, she shot a pregnant woman in the stomach. She was sentenced to four years in state prison (the maximum term for her offense). The minors were living with their maternal great-aunt, who was meeting their needs and was committed to caring for them long term if necessary.

The reports recommended denying reunification services to mother under section 361.5, subdivision (e)(1) (section 361.5(e)(1)) because of the nature of her crime, the presence of the minors when she committed it, the length of her prison term, and the fact that her earliest possible release date (August 2011) would be beyond the 18-month limit for reunification services.*fn2

At a contested disposition hearing which began on July 22, 2010, and continued on September 10, 2010, mother testified regarding the facts and circumstances surrounding her offense and minimized her conduct. She claimed that she entered her guilty plea "at the last minute," even though she believed she was innocent. She entered Valley State Prison on October 29, 2009. She was expected to be released on August 2, 2011.

Since entering prison, mother had attended Bible studies, earned a high school diploma, completed a three-day anger management class, and enrolled in (but not taken) a parenting class. She also hoped to get into a substance abuse program, but it was unavailable in the yard where she was housed; the earliest she might get into it was some time next year.*fn3 She had not received any disciplinary write-ups in prison. She regularly called and wrote to her children, and visited with them as much as possible.*fn4

After the parties argued, the juvenile court opined that the decision was a "close, close call." Mother had availed herself of programs at the prison and was bonded to the minors, but "there's just no question that [the case] doesn't meet [the] 18-month timeline."*fn5 Although the Agency offered to stipulate that the minors wanted to be with mother, the court continued the hearing to hear the minors' testimony.

At the continued dispositional hearing, L.L. and D.L. testified as expected--that they loved their mother and wanted to live with her (and with each other) again.

After argument, where the Agency again opposed provision of services due to the length of mother's incarceration, the juvenile court found in part that it ". . . must take into account all different aspects of this case and not only the

18-month time period but all of the other factors that are part of it. . . ." Considering the "detriment to the children of not providing services to the parent" as well as the "very strong relationship" between the oldest two minors and their mother, the juvenile court found that "not giving the mother services would be detrimental to both girls," and ordered services be offered to mother. It is from this order that the Agency appeals.


The Agency contends that the controlling statutes did not give the juvenile court the discretion to order reunification services for mother. Mother replies that we should affirm the order because substantial evidence supports it.

We agree with the Agency that the juvenile court lacked discretion to order services.

"'"'The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]"' [Citation.]" The scope of discretion always resides in the particular law being applied, i.e., in the '"legal principles governing the subject of [the] action . . . ."' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an '"abuse"' of discretion. [Citation.] If the trial court is mistaken about the scope of its discretion, the mistaken position may be '"reasonable,"' i.e., one as to which reasonable judges could differ. [Citation.] But if the trial court acts in accord with its mistaken view the action is nonetheless error; it is wrong on the law." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.)

"The legal principles that govern the subject of discretionary action vary greatly with context. [Citation.] They are derived from the common law or statutes under which discretion is conferred." (City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1298.) The statute governing reunification services for incarcerated parents provides generally that an incarcerated parent shall receive services unless the juvenile court finds by clear and convincing evidence that those services would be detrimental to the child. (§ 365.1, subd. (e)(1).)

The statute continues as noted ante. Mother argues the language of the first portion of the statute, but omits and declines to address the sentence closely following mother's quoted portion, which provides that "[r]eunification services are subject to the applicable time limitations imposed in subdivision (a)."*fn6 (Italics added.)

The referenced time limits provide that reunification services normally may not extend beyond 12 months from the start of dependency proceedings. If the 12-month mark is successfully reached, specific circumstances must be shown to justify extending services to 18 months or, in very rare circumstances, 24 months. (§ 361.5, subds. (a)(1)(A), (a)(3), (a)(4).)

It was undisputed at the time of the juvenile court's ruling that mother would not be released from prison until August 2011--clearly after 18 months had elapsed from the start of protective custody.*fn7 Therefore, we must determine whether the juvenile court had the discretion to order services where the children's return to mother was factually impossible within 18, or even 24, months.*fn8

Section 361.5, subdivision (a)(3), provides in part: "Notwithstanding subparagraph[] A . . . of paragraph (1), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent . . . if it can be shown, at the [12-month permanency hearing], that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period or that reasonable services have not been provided to the parent . . . . In determining whether court-ordered services may be extended, the court shall consider the special circumstances of an incarcerated . . . parent . . . including, but not limited to, barriers to the parent's . . . access to services and ability to maintain contact with his or her child. The court shall also consider, among other factors, good faith efforts that the parent . . . has made to maintain contact with the child. If the court extends the time period, the court shall specify the factual basis for its conclusion that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period." (Italics added.)

Because mother was projected to remain incarcerated through the 18-month date, there was no "substantial probability that the children could be returned to her physical custody" by that time, as required in order to extend services under section 361.5, subdivision (a)(3).

Section 361.5, subdivision (a)(4), provides for an additional six months of services, for a total of up to 24 months from the child's physical removal, if the court determines by clear and convincing evidence at the 18-month permanency hearing that the best interests of the child would be met by the provision of additional reunification services to a parent . . . who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, or a parent recently discharged from incarceration . . . and making significant and consistent progress in establishing a safe home for the child's return (§ 366.22, subd. (b)).

Even under this provision, the juvenile court could not have made the findings required to justify granting reunification services to mother under the circumstances presented and briefed by the parties. A factual finding at the 18-month date that mother was "recently discharged from incarceration" was not possible, as everyone agreed she was expected to remain incarcerated until at least August 2011.

Thus, the controlling statutes on their face do not permit the juvenile court to grant reunification services to a parent who will remain incarcerated after the normal time limitations for services have expired, unless the court can make the express findings required to go beyond those limits. Here, the court could not make those findings and, indeed, made no attempt to do so.

Moreover, the statutes' strictness as to time limits furthers a key policy of the juvenile dependency system: to give minors stability and permanence at the earliest opportunity. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348-1350.) To extend a parent's reunification services beyond even 12 months, absent a substantial probability (according to the statutory criteria) that the parent will actually be able to reunify with her children within 18 months, or even 24 months for parents whose otherwise exemplary efforts have been hampered by incarceration, frustrates this policy. It also causes detriment to the children by raising false hopes and impeding their ability to form new bonds. In and of itself, excess delay is detrimental.

Simply put, the juvenile court erred by treating the time limitations contained in section 361.5, subdivisions (a)(1)(A), (a)(3), and (a)(4), as merely advisory. Under the plain language of section 361.5(e)(1), these time limitations trump all other factors set forth for consideration earlier in that provision of the statute.

Thus we conclude that the juvenile court's order granting services to mother was an abuse of its discretion. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061 [decision founded on error of law is necessarily abuse of discretion]; City of Sacramento v. Drew, supra, 207 Cal.App.3d at pp. 1297-1298.) We are therefore compelled to reverse.


The matter is reversed and remanded to the juvenile court with directions to vacate its order granting reunification services to mother and to enter a new order denying services. (§ 361.5(e)(1).)

We concur: ROBIE , Acting P. J. BUTZ , J.

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