Filed 2/6/18; pub. order 3/2/18 (see end of opn.)




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                               DIVISION TWO



W.P.,

         Petitioner,                                     E069569

v.                                                       (Super.Ct.No. J269683)

THE SUPERIOR COURT OF                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for extraordinary writ. Erin K. Alexander,

Judge. Petition granted.

         Law Office of Dennis Moore and Dennis Moore for Petitioner.

         No appearance for Respondent.




                                                    1
       Michelle D. Blakemore, County Counsel, and Michael A. Markel, Deputy County

Counsel, for Real Party in Interest.

       The juvenile court terminated petitioner, W.P.’s (Mother), reunification services as

to G.N. (born in September 2016), R.Y. (born in January 2009), M.M.M.1 (born in

March 2005), and M.M.M.2 (born in May 2003) (collectively Minors) and set the

Welfare and Institutions Code section 366.26 hearing.1 In her petition, Mother contends

the juvenile court erred as a matter of law in declining to grant her another six months of

reunification services as to the elder three Minors. The petition is granted.

                      I. FACTUAL AND PROCEDURAL HISTORY

       On December 27, 2016, personnel from real party in interest, San Bernardino

County Children and Family Services (CFS), received a referral alleging emotional abuse

and general neglect of Minors by Mother and physical abuse by R.N. (Father 1). The

allegations alleged substance abuse by Mother and domestic violence in the presence of

Minors; Father 12 reportedly threw a beer can at Mother and hit G.N.

       On January 3, 2017, CFS personnel received a second referral alleging Mother

was transient, on drugs, and had left Minors with a friend, J.C. Minors disclosed

witnessing the parents engage in domestic violence while in their care. They also

described substance use by both the parents and drug paraphernalia in the home. They

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

       2  Father 1 was the presumed father of G.N. F.M. (Father 2) was the presumed
father of R.Y., M.M.M.1, and M.M.M.2. Father 2 was incarcerated at the time of the
investigation.


                                               2
described being hit by both the parents. They disclosed that Father 1 hit Mother’s head

causing her to have a bloody ear and, on one occasion, threw a cup at Mother’s head.

Father 1 would pull Mother’s hair and hit her with his hands. Minors said they did not

feel safe with the parents. On January 25, 2017, M.M.M.2 reported she had not seen

Mother in four months; she said Mother left Minors because Mother wanted to be with

her boyfriend.

       Mother had a previous history with CFS, including three previous neglect

investigations, three prior abuse investigations, and a separate general neglect

investigation with respect to M.M.M.1, which prompted voluntary family maintenance

services. When the social worker met with Mother, Mother refused to provide an address

for the social worker to assess provisions for G.N. Mother admitted mutual domestic

violence with Father 1: “I would get the best hits.” However, she denied Minors were

present during these incidents; she said the children were lying when they said otherwise;

Mother reported that the parents would tell Minors to go to their room when the parents

fought. The social worker told Mother to drug test the day after their initial interview;

Mother failed to show for the test.

       Father 1 had an extensive history with CFS; reunification services as to six of

Father 1’s other children had previously been terminated; Father 1’s parental rights had

been terminated as to one of his other children. Father 1 also had an extensive criminal

history. At the time of the initial investigation, the social worker could not locate Father

1.



                                              3
        The social worker filed separate juvenile dependency petitions as to each Minor.

With respect to G.N., the petition alleged Mother had a substance abuse problem (b.1);

Father 1 had a violent criminal history (b.2); Father 1 had a history of domestic violence

(b.3); Mother exposed Minors to domestic violence (b.4); and six of Father 1’s previous

children had been removed from his custody, with all of whom he had failed to reunify

and as to one of whom he had had his parental rights terminated (j.5-j.8). The petitions

with respect to the other Minors alleged Mother had a substance abuse problem (b.1);

Mother failed to protect Minors from exposure to domestic violence (b.2); Father 2 was

incarcerated (g.3); and Mother had left Minors with J.C. with no provision for support

(g.4). On February 23, 2017, the juvenile court detained Minors.

        In the jurisdictional and dispositional report filed on March 13, 2017, the social

worker noted G.N. had been placed in foster care; the other Minors were left in the care

of J.C. The older Minors reported feeling safe with J.C.; M.M.M.1 reported having lived

with J.C. for seven months; J.C. reported she had Minors since September 2016. Father

1, who had apparently been located, denied any instances of domestic violence. Mother

visited with Minors separately. Mother provided a negative drug test on February 27,

2017.

        The social worker recommended that the juvenile court find the allegations in the

petitions true, remove Minors from the parents’ custody, deny reunification services to

both Father 1 and Father 2, and order reunification services for Mother. The




                                              4
recommended case plan for Mother included parenting classes, domestic violence classes,

counseling, and drug treatment.

       In an additional information for the court filed on April 18, 2017, the social

worker reported Mother had informed her that Father 1 had been arrested for domestic

violence against Mother on April 5, 2017. The social worker confirmed the arrest.

Mother continued to have supervised visits with Minors at CFS offices.

       At the jurisdictional and dispositional hearing on April 18, 2017, the juvenile court

found all the allegations in the petitions true, sustained the petitions, and declared Minors

dependents. The court removed Minors from the parents’ custody. The court denied

reunification services to Father 1 under section 361.5, subdivision (b)(10) (reunification

services terminated as to previous children) and (b)(11) (parental rights terminated as to a

previous child). The court denied Father 2 reunification services pursuant to section

361.5, subdivision (e)(1) (parent incarcerated). The court ordered reunification services

for Mother.

       In the status review report filed on October 17, 2017, the social worker

recommended that the court terminate Mother’s reunification services and set the section

366.26 hearing. The social worker referred Mother to individual counseling, parenting

education, domestic violence, substance abuse services, and random drug testing on

March 27, 2017. Mother enrolled in parenting classes on March 30, 2017; domestic

violence classes on April 3, 2017; and individual counseling on April 4, 2017. Mother

attended five parenting classes, six domestic violence classes, and individual counseling.



                                              5
Her last attendance in services occurred on June 22, 2017. Her service provider

attempted to re-engage Mother on July 24, 2017; however, Mother indicated she would

no longer be attending services at their agency; she said she would be taking classes at

another agency.

       Mother enrolled in substance abuse services on June 20, 2017, but appeared to be

struggling to stay clean; she was referred to an intense outpatient program on July 5,

2017, in which she enrolled on July 20, 2017. She attended those services between July

and September, and then stopped attending. During her attendance, she tested positive

for methamphetamine four times, failed to show for two tests, and tested negative once.

Mother failed to show for 12 random drugs tests requested by the social worker and

tested negative once.

       On August 17, 2017, Mother’s counselor brought her to the CFS offices where the

counselor reported that Mother had expressed that Father 1 had battered her. The social

worker observed Mother’s left eye was swollen and black and purple. On August 20,

2017, Mother reported the incident to police, who arrested Father 1. Father 1’s family

subsequently threw Mother out of their home; she was now homeless.

       On May 26, 2017, M.M.M.1 and M.M.M.2 had an argument with Mother because

she was blaming them for the dependency proceedings.3 During subsequent visits,

Mother was observed to act appropriately; Minors appeared to enjoy the visits. Mother


       3   M.M.M.2 had previously reported that Mother had asked her to lie to the social
worker.


                                             6
attended all visits as scheduled between April and June 2017; however, Mother left early

during visits in August and September 2017.

       On October 18, 2017, the court ordered Mother to drug test that day; failure to test

would be considered a positive result. In an additional information for the court filed on

December 1, 2017, the social worker reported that Mother had approached her after the

hearing on October 18, 2017, to ask if she had to test that day; Mother said that if she did,

it would reflect positive for methamphetamine because Mother had used

methamphetamine the previous night. Mother tested nonetheless; the result was positive

for amphetamines. Mother failed to show for another drug test scheduled for November

2, 2017. Mother began attending individual counseling again through another agency on

November 13, 2017, and had been showing improvement.

       At the hearing on December 1, 2017, Mother’s counsel argued: “Your Honor, one

thing I would like to point out, in the [section] [361].21[, subdivision] (e) report it states

that the older three minors are in one placement and the youngest minor G[.N.], he is in a

separate placement. He’s one year old. So for the kids that are—for the three kids in one

placement, the youngest of that group is eight. And children ages three and older get

twelve months—you get twelve months of services unless there is a sibling group. I

don’t think this is a proper sibling group because the one kid who would make this a

sibling group for only six months of services is in a separate placement.” The court

responded: “I have reviewed the statute as cited by counsel. I don’t have the same

reading. It looks to me when defining what a sibling group is, the requirements are a



                                               7
sibling group who were removed from parental custody at the same time, which did occur

in this case.”

       The court found Mother had made no progress. Thus, the court terminated

reunification services for Mother and set the section 366.26 hearing.

                                     II. DISCUSSION

       Mother contends the court erred as a matter of law in declining to provide her a

minimum of 12 months of reunification services because the court improperly interpreted

section 361.5, subdivision (a)(1)(c), to apply to any sibling group removed from parents,

regardless of whether those siblings were placed together. CFS concedes the juvenile

court erred in its interpretation of the statute and in terminating Mother’s reunification

services after only six months based upon that erroneous interpretation. We agree.

       “Except as otherwise provided in [section 361.5, subdivision (a)(1),] subparagraph

(C), for a child who, on the date of initial removal from the physical custody of his or her

parent or guardian, was three years of age or older, court-ordered services shall be

provided beginning with the dispositional hearing and ending 12 months after the date the

child entered foster care as provided in Section 361.49, unless the child is returned to the

home of the parent or guardian.” (§ 361.5, subd. (a)(1)(A).)

       “For the purpose of placing and maintaining a sibling group together in a

permanent home should reunification efforts fail, for a child in a sibling group whose

members were removed from parental custody at the same time, and in which one

member of the sibling group was under three years of age on the date of initial removal



                                              8
from the physical custody of his or her parent or guardian, court-ordered services for

some or all of the sibling group may be limited as set forth in subparagraph (B). For the

purposes of this paragraph, ‘a sibling group’ shall mean two or more children who are

related to each other as full or half siblings.” (§ 361.5, subd. (a)(1)(C).)

       “We review de novo the . . . purely legal question before us. [Citation.]” (People

v. Arroyo (2016) 62 Cal.4th 589, 593.) “‘“Thus, ‘we turn first to the language of the

statute, giving the words their ordinary meaning.’ [Citation.] The statutory language

must also be construed in the context of the statute as a whole and the overall statutory

scheme . . . .”’ [Citation.]” (Ibid.)

       The clear language of section 361.5, subdivision (a)(1)(C), reflects that the

juvenile court’s statutory power to limit a parent’s services to six months for all minors

removed from that parent’s custody, even when they were older than three years of age

when removed, when one member of the sibling group was three years of age or under at

the time of removal applies only when that sibling is placed with the older siblings. The

statute reflects that: “For the purpose of placing and maintaining a sibling group

together in a permanent home should reunification efforts fail . . . court-ordered services

for some or all of the sibling group may be limited . . . .” (§ 361.5, subd. (a)(1)(C), italics

added.)

       Here, however, Minors were not all placed together as a sibling group for the

purpose of maintaining a permanent home. Rather, G.N., the only minor who was under

the age of three at the time of removal and the only minor whom the court would have



                                               9
power alone to limit reunification services to Mother to six months, was placed in a foster

home separate from his older siblings. All three of the older siblings were placed with

J.C. Thus, the court erred in relying on the statute to terminate Mother’s reunification

services as to the elder three siblings after only six months. Thus, the petition must be

granted and the court must offer Mother six additional months of services as to the elder

three Minors.

                                    III. DISPOSITION

       The petition is granted.




                                                                McKINSTER
                                                                                Acting P. J.


We concur:

MILLER
                          J.

SLOUGH
                          J.




                                             10
Filed 3/2/18
                      COURT OF APPEAL -- STATE OF CALIFORNIA
                                FOURTH DISTRICT
                                  DIVISION TWO

                                        ORDER

W.P.,

        Petitioner,                                 E069569

v.                                                  (Super.Ct.No. J269683)

THE SUPERIOR COURT OF                               The County of San Bernardino
SAN BERNARDINO COUNTY,

        Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

        Real Party in Interest.


THE COURT

        A request having been made to this Court pursuant to California Rules of Court,
rule 8.1120(a), for publication of a nonpublished opinion heretofore filed in the above
entitled matter on February 6, 2018, and it appearing that the opinion meets the standard
for publication as specified in California Rules of Court, rule 8.1105(c),

       IT IS ORDERED that said opinion be certified for publication pursuant to
California Rules of Court, rule 8.1105(b).

                                                              McKINSTER
                                                                              Acting P. J.
We concur:

MILLER
                            J.

SLOUGH


                                            11
J.




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