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Melissa R v. the Superior Court of the City and County San Francisco

July 10, 2012

MELISSA R., PETITIONER,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY SAN FRANCISCO, RESPONDENT, SAN FRANCISCO HUMAN SERVICES AGENCY ET AL., REAL PARTIES IN INTEREST.



Trial Court: San Francisco City and County Superior Court Trial Judge: Hon. Linda Colfax Super. Ct. No. JD11-3300)

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

CERTIFIED FOR PUBLICATION

(San Francisco City & County

At the conclusion of the dispositional hearing for C.R. (born September 2006), the San Francisco Superior Court, Juvenile Division, denied reunification services for Melissa R. (Mother) pursuant to Welfare and Institutions Code*fn1 section 361.5, subdivision (b)(10), and set the matter for a hearing under section 366.26 to select a permanent plan for C.R.

Mother challenges these orders by petition for extraordinary writ. As discussed below, we conclude in this case of first impression that the juvenile court erred in denying reunification services under section 361.5, subdivision (b)(10). The evidence showed a half brother of C.R.'s had previously been removed from Mother's custody, and Mother subsequently failed to reunify with him, but it also showed the half sibling had been removed pursuant to Wisconsin law, and not "pursuant to Section 361" as the statute expressly requires. Accordingly we grant Mother's petition.

I. Background

Mother admitted she began using heroin when she was still a minor and had been an addict for many years. When she became pregnant with C.R., however, she became "really serious" about overcoming her addiction, completed a residential treatment program in 2006, began a methadone maintenance program, and remained drug free until 2011. In April 2011, James R., Mother's husband and C.R.'s father, died. It was some months after this event that Mother relapsed and began injecting methamphetamine. In early October 2011, Mother was hospitalized and remained there for some six weeks as she was treated for endocarditis, an inflammation of the inner lining of the heart. A medical social worker at St. Luke's Hospital reported this condition was "probably associated" with Mother's methamphetamine abuse.

The San Francisco Human Services Agency (Agency) detained C.R. on October 8, 2011, after Mother's hospitalization, and filed its initial dependency petition four days later. In its detention report filed the same date, the Agency expressed concern about whether the friend with whom Mother had left C.R. would be able to care for him adequately during Mother's anticipated six-week stay in the hospital. The juvenile court formally ordered detention on November 4.

An amended dependency petition filed February 22, 2012 set out a number of allegations under section 300, subdivisions (b) and (j). On March 5, Mother submitted to, and the juvenile court sustained, the following jurisdictional facts: (B1) Mother's ability to care for the minor was impaired due to a long history of substance abuse for which she was currently on methadone treatment, she had been abusing methamphetamine as recently as two days before her hospitalization, and she required treatment for substance abuse; (B3) Mother's ability to care for the minor was impaired because she had been hospitalized for six weeks due to a serious medical condition; (B6) at the time of her hospitalization, Mother had untreated mental health issues requiring assessment and treatment; and (J1) the minor's half sibling, M.R., had been the subject of a dependency proceeding in Grant County, Wisconsin, Mother had failed to reunify with M.R., and M.R. was currently in the care of his maternal grandmother under a legal guardianship.

The Agency initially recommended services for Mother. After learning of the earlier dependency proceeding in Wisconsin, however, it recommended instead that the juvenile court deny reunification services based on Mother's failure to reunify with C.R.'s half sibling, and also based on Mother's "recent non-compliance" with substance abuse treatment.

At the conclusion of the contested dispositional hearing on March 15, 2012, the juvenile court found by clear and convincing evidence that "Mother ha[d] failed to reunify with a sibling [and] ha[d] not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling." On that basis the court denied reunification services for Mother pursuant to section 361.5, subdivision (b)(10), and set the matter for a hearing under section 366.26.

Mother's petition followed. (See § 366.26, subd. (l).)

II. Discussion

"[U]p until the time the section 366.26 hearing is set, the parent's interest in reunification is given precedence over the child's need for stability and permanency." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Thus at the time of the dispositional hearing, when a dependent child is ordered removed from the parent's custody under section 361, the standard of proof for removal is by clear and convincing evidence, and if the child is ordered removed the juvenile court must make orders regarding reunification services. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; see ยง 361, subd. (c).) The dependency scheme ...


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