Filed 5/29/13 In re L.P. CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re L.P., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E057054

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ1200092)

v.                                                                       OPINION

J.K.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Matthew Perantoni,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.

         Diana W. Prince, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel,

for Plaintiff and Respondent.



                                                             1
       This is an appeal by J.K. (mother) from the trial court’s order under Welfare and

Institutions Code section 366.261 terminating her parental rights to her then 12-month-old

son, L.P. Mother contends the trial court erred in denying her section 388 petition in

which she requested the trial court order reunification services because, although her

whereabouts were unknown at the start of the dependency process, mother appeared in

court on the date set for the selection and implementation hearing. Therefore, mother

contends the trial court was required to provide reunification services to her and that it

erred in failing to do so.

       We agree with mother that the trial court erred, but do not share her view that

ordering reunification services is the only appropriate remedy, as we discuss below.

Therefore, we will reverse the order terminating mother’s parental rights and remand the

matter to the trial court but with options on how to proceed on remand.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Riverside County Department of Public Social Services (DPSS) filed a section 300

petition on February 3, 2012, with respect to L.P. after mother was arrested in court at a

hearing for the child’s father who was in custody on a criminal charge. Mother had tried

to communicate with father and also appeared to be under the influence of a controlled

substance. When mother was bailed out of jail, she picked up L.P. at the home of his

paternal grandmother, and left him with her own mother, L.P.’s maternal grandmother.




       1   All further statutory references are to the Welfare and Institutions Code.


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DPSS contacted the maternal grandmother after receiving a referral that claimed she uses

methamphetamine and is an alcoholic.

       The maternal grandmother lived in a mobilehome park open to residents 55 years

of age and older. The social worker contacted the maternal grandmother and, after

discovering she had a warrant for being under the influence of a controlled substance,

detained L.P.

       DPSS attempted to locate mother but was unsuccessful. When DPSS contacted

the infant’s father, who was incarcerated, he reported that mother had been seen in

Banning. He did not know whether mother was currently using drugs, but acknowledged

mother had in the past used methamphetamine. Mother had failed to appear for her most

recent court hearing.

       DPSS had not located mother and she did not appear at the detention hearing on

February 6, 2012. In the report for the combined jurisdiction and disposition hearing, the

social worker reported that mother’s whereabouts were still unknown and, therefore, the

social worker recommended the trial court deny reunification services to mother under

section 361.5, subdivision (b)(1).2 In the interim, DPSS had placed L.P. in the home of a

paternal cousin who wanted to adopt the child.



       2 Section 361.5, subdivision (b), states, “Reunification services need not be
provided to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following: [¶] (1) That the whereabouts of the
parent or guardian is unknown. A finding pursuant to this paragraph shall be supported
by an affidavit or by proof that a reasonably diligent search has failed to locate the parent
or guardian. The posting or publication of notices is not required in that search.”


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       Mother was not present at the combined jurisdiction and disposition hearing on

February 29, 2012. At that hearing, the trial court sustained the allegations of the

petition, removed L.P. from the custody of his parents, and denied them both

reunification services on the grounds stated in the social worker’s report. The trial court

then set a selection and implementation hearing for June 28, 2012. The trial court

directed DPSS to provide notice to mother by publication.

       Mother appeared at the selection and implementation hearing on June 28, 2012.

Because it was mother’s first appearance in the proceeding, the trial court continued the

hearing to August 9, 2012. Mother was in court on the continued hearing date and

represented by an attorney. Mother’s attorney, in the course of stating his appearance on

the record, said, “We’re here for a .26 hearing, and the Department is aware mother did

appear during the first six months, so we’re asking for services.” After several additional

continuances, the trial court conducted the selection and implementation hearing on

August 28, 2012.

       Mother filed a so-called section 388 petition on August 28, 2012, in which she

asked the trial court to change its earlier order denying her reunification services under

section 361.5, subdivision (b)(1), and grant her six months of reunification services with

L.P. Mother’s attorney represented that although DPSS was aware of mother’s

whereabouts on June 28, 2012, when she appeared in court, the social worker did not give

mother any referrals for services. Mother’s attorney claimed that DPSS “insisted on a

388 [petition] being filed.” Her attorney also purported to acknowledge that although

mother was only entitled to services for the length of time remaining based on the time


                                             4
she appeared, she nevertheless was asking for six months. In the attorney’s view,

because mother’s whereabouts became known on June 28, at the very least she was

entitled to two months of services.

       The trial court denied mother’s section 388 petition, noting L.P. had been in the

same adoptive home since February and, therefore, it was not in the child’s best interest

to grant services to mother. The trial court then conducted the selection and

implementation hearing and terminated mother’s parental rights after finding, among

other things, that the trial court had denied reunification services to mother under section

361.5, subdivision (b)(1).

       Mother appeals from the order terminating her parental rights.

                                      DISCUSSION

       Mother contends she was entitled to reunification services as a matter of law under

section 361.5, subdivision (d), which provides, “If reunification services are not ordered

pursuant to paragraph (1) of subdivision (b) and the whereabouts of a parent become

known within six months of the out-of-home placement of the child, the court shall order

the social worker to provide family reunification services in accordance with this

subdivision.”

       County counsel concedes that the trial court erred, but it claims the error was in

setting the selection and implementation hearing after denying reunification services to

mother under section 361.5, subdivision (b)(1). According to county counsel, the trial

court should have set a six-month review hearing. To support that assertion, county

counsel cites In re T.M. (2009) 175 Cal.App.4th 1166, in which the Third District Court


                                             5
of Appeal, in an opinion authored by then appellate court justice and now California State

Supreme Court Chief Justice Cantil-Sakauye, effectively held that if a trial court denies

reunification services under subdivision (b)(1) of section 361.5, it may not terminate

parental rights at the selection and implementation hearing. (In re T.M., at p. 1173.)

More particularly, the appellate court noted that section 361.5, subdivision (b), sets out

circumstances under which the trial court may deny reunification services at the

jurisdiction and disposition hearing. Under section 361.5, subdivision (f), all but one of

those circumstances allows the trial court to then set the selection and implementation

hearing3 at which the court may, in turn, choose adoption as the permanent plan. (In re

T.M., at pp. 1172-1173.) The one exception to setting the selection and implementation

hearing is when the court denies reunification services under section 361.5, subdivision

(b)(1), the subdivision at issue in that case and in this appeal, which is the only one not

listed in section 361.5, subdivision (f). (In re T.M., at pp. 1172-1173.) The appellate




       3    Section 361.5, subdivision (f), in effect in 2012, states, in pertinent part, “If the
court, pursuant to paragraph (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14),
or (15) of subdivision (b) or paragraph (1) of subdivision (e), does not order reunification
services, it shall, at the dispositional hearing, that shall include a permanency hearing,
determine if a hearing under Section 366.26 shall be set in order to determine whether
adoption, guardianship, or long-term foster care . . . is the most appropriate plan for the
child . . . .”


                                                6
court reasoned that because section 366.26, subdivision (c)(2)(A),4 “bars termination of

parental rights when the parent has never been offered services,” the dependency “law

requires the [trial] court to find either that services would have been futile or detrimental

to the minor under any of the relevant subdivisions of section 361.5, with the obvious

exception of subdivision (b)(1), or that the agency at least tried to reunite the family by

making reasonable efforts or offering services to the parents. (§§ 366.21, subds. (e), (f),

366.22.)” (In re T.M., at p. 1173.) If the trial court cannot make either finding, then it

may not terminate parental rights. (Ibid.) Because the trial court could not make either

finding, it could not terminate parental rights and, therefore, its options at the section

366.26 hearing were limited to either guardianship or long-term foster care. (In re T.M.,

at p. 1173.)

       Similarly, the trial court in this case erred when it set the section 366.26 hearing.

As previously discussed, section 361.5, subdivision (b)(1), is the only subdivision not

listed in section 361.5, subdivision (f), which authorizes the court to proceed directly to

setting the selection and implementation hearing. Therefore, the trial court should have

set a six-month review hearing under section 366.21, subdivision (e). When mother’s

whereabouts became known on June 28, 2012, as a result of her appearance in court for

the erroneously set selection and implementation hearing, the trial court should have

ordered DPSS to provide reunification services to mother under section 361.5,

       4  Section 366.26, subdivision (c)(2), states, “The court shall not terminate parental
rights if: [¶] (A) At each hearing at which the court was required to consider reasonable
efforts or services, the court has found that reasonable efforts were not made or that
reasonable services were not offered or provided.”


                                               7
subdivision (d), or the trial court should have conducted a hearing to determine whether

any of the other exceptions under section 361.5, subdivision (f), to providing services

applied. Absent reunification services, or a finding that an exception to providing

services applied, the trial court could not make the findings required under section

366.26, subdivision (c)(2)(A), the statutory prerequisites to termination of parental rights.

       Contrary to county counsel’s claim, the trial court’s error in terminating mother’s

parental rights “under the circumstances of this case is not harmless. No opportunity to

reunify was ever afforded [mother] nor did she have an opportunity to challenge a request

to deny her services under any subdivision of section 361.5 [that] would have supported

termination of parental rights.” (In re T.M., supra, 175 Cal.App.4th at p. 1173.)

Therefore, the issue is not whether mother would have made progress toward

reunification if she had been provided with two months of reunification services; the

issue is whether the trial court had statutory authority to terminate mother’s parental

rights in this case.

       The remaining issue we must resolve is the appropriate remedy in this case. In In

re T.M., the court reversed the order terminating parental rights and remanded the case

for a new selection and implementation hearing at which the trial court would be limited

to choosing between guardianship or long-term foster care. (In re T.M., supra, 175

Cal.App.4th at p. 1173.) This case differs from In re T.M. because mother requested

reunification services when she first appeared in court and then again in a section 388

petition. Moreover, the trial court in In re T.M. correctly set a six-month review hearing

at which the mother could have but did not assert a request for services, whereas the court


                                              8
in this case erroneously set the selection and implementation hearing. Given the factual

and procedural differences, the appropriate remedy in this case is an order directing

DPSS to provide reunification services to mother.

       Because L.P. was under three years of age on the date of initial removal, mother

would have been entitled to six months of court-ordered services from the date of the

dispositional hearing. (§ 361.5, subd. (a)(1)(B).) That hearing took place on February

28, 2012, and six months from that date would be August 28, 2012. Therefore, on June

28, 2012, when mother appeared in court, two months remained of mother’s six-month

reunification period. Mother is entitled to receive services, at the very least, for those two

months. (§ 361.5, subd. (d).)

       Therefore, on remand, the trial court either must conduct a hearing and determine

that an appropriate exception to providing reunification services exists under section

361.5, subdivision (b), or it must order DPSS to provide mother with two months of

reunification services with L.P.




                                              9
                                     DISPOSITION

       The order terminating mother’s parental rights is reversed. The matter is

remanded to the trial court with directions to either order DPSS to provide mother with

reunification services or to conduct a hearing to determine that a valid exception to

providing reunification services exists under section 361.5, subdivision (b).

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               McKINSTER
                                                                                          J.

We concur:



RAMIREZ
                        P. J.



CODRINGTON
                           J.




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