dependency legal strategy for .22 hearing

WIP

​BLACK LETTER LAW/ LEGAL PRECEDENTS
There is an upcoming .26 hearing. Parent’s counsel has been granted a continuance from the .22 status review hearing. As all counsel knows that for the .22 hearing, there are substantial differences between the .22 hearing and earlier .21 e and .21 f hearings. First, during the .22 hearing the court is not mandated by operation of law to order additional reunification services even for parents who meet criteria for reasonable services. Absent a no reasonable services finding, the court's only options are to set a .26 hearing or arrange for APPLA should there be no suitable relative. At the .22 hearing there is not explicit codification of the standard of proof which previously had been clear and convincing evidence at the .21 e and .21 f. Additionally, continuances are not solely predicated on a reasonable services finding. Prior legal precedent has held that the trial court erred in ordering further reunification services without proffered evidence of substantial likelihood that the minor could be returned at the end of the additional reunification period In re N.M. v Superior Court (2016) 5 CA5th 796. However, there remains some degree of conflict in the case law as In re Daniel G. (1994) 25 CA4th 1205, 1216 opined that the trial court does have discretion to order additional services, if there is reason to believe that the additional services may lead to reunification and if the benefits outweigh by the child's need for permanency. The court shall in a .22 hearing exercise its discretion in granting a continuance by relying on whether the department provided reasonable reunification services, whether the parent will benefit and success with more services, whether the parent’s benefit from more services shall overcome the child's need for prompt resolution of the case. Welf & I C § 352; Mark N. v. Superior Ct. (Los Angeles Cty. Dep't of Child. & Fam. Servs.), 60 Cal. App. 4th 996, 1019, 70 Cal. Rptr. 2d 603, 618 (1998). At this point, there are more cases on the other side of In re N.M. v Superior Court (2016) 5 CA5th 796 that indicate that the trial court would not err in extending services in the right circumstances at the .22 hearing, In re D.N. (2020) 56 CA5th 741; T.J. v Superior Court (2018) 21 CA5th 1229; In re J.E. (2016) 3 CA5th 557, 566; In re Elizabeth R. (1995) 35 CA4th 1774, 1798. A .22 hearing usually only allows the court to continue services to the 24-month deadline for parents who are either in a substance abuse treatment program or discharged from institutionalization or incarceration. If there is not a finding of reasonable services, then the court may set the .26 hearing within 120 days of the court’s order denying or terminating reunification services (TFR). All parents and counsel must be aware that once reunification services have been terminated and a case has been set for a .26, the focus will move to the child’s need for permanency and stability and services will not be addressed. At this point parent needs to be mindful that their “failure to participate regularly and make substantive progress in court-ordered programs is prima facie evidence of detriment.” Welf & I C §§ 366.21(e) & (f), 366.22(a). Although the department carries the burden (in an uncontested matter) to show that reasonable reunification services were provided, the courts be deferential to the department. Parent’s counsel must do their due diligence in demonstrating in subpoenaing the title XXs in building their no reasonable services legal theory.
 
 
 
 
CASE IN CHIEF
The working theory shall be (1) the parent’s poverty and inadequate housing are insufficient to meet the “substantial risk of harm” standard (In re Yvonne W. (2008); In re P.C. (2008)) and (2) that the department failed to meet its duty in providing a reasonable services, and as a last resort (3) IAC claim via writ of habeas corpus.
 
 
 
NO REASONABLE SERVICES
Counsel should be prepared to present evidence of the extent to which the parent has made use of the services provided and the efforts and/or progress the parent has made in addressing the need for dependency. A parent has a constitutional right to a contested 6-month review hearing without being required to make an offer of proof. David B. v Superior Court (2006) 140 CA4th 772, 777.
 
IAC CLAIMS
A parent has a due process right to competent counsel, right to challenge the effectiveness of their counsel, and by extension file a Welf & I C §388 petition to request a change of a prior court order on the ground of ineffective assistance of counsel. However, counsel should be aware that more common practice would be to file a writ of habeas corpus with the court. In re Jackson W. (2010) 184 CA4th 247, 257.
 
 
 
 
COUNSEL’S USE OF MOTIONS AND LEGAL CONSIDERATIONS
 
Counsel needs to be mindful that parents are not protected by the confrontation clause. Trial court does not necessarily violate due process rights when admitting a status review court report authored by declarant unavailable social worker. Sixth Amendment right to confrontation is inapplicable in the dependency context and People v Sanchez (2016) 63 C4th 665 does not apply to social service reports. They continue to be admissible in status review hearings. [citation]
 
 
 
 
 
 
SPLIT OPINIONS
If the parent has not been offered adequate reunification services, counsel may be able to persuade the court to extend those services even beyond the 18-month maximum.