REVIEW HEARINGS AT THE 18 MONTH REVIEW
Michael G. v. Superior Ct., 14 Cal. 5th 609, 526 P.3d 120 (2023)
Issue: Is the juvenile court obligated to provide a continuance to parents at the 18 month review hearing if there has been a finding of no reasonable services?
Dependency law does not patently forbid courts from extending reunification services past 18 months under Cal. Welf. & Inst. Code § 366.22 (a)(3). The code does not require the court to extend time in every case in which they find reasonable services were not offered. The court must at all times engage in a balancing act [citation] where it weighs the parent’s rights to raising their children and the best interest of the minor. At every review hearing, the court must consider three factors; the parents’ efforts in redressing the issues that brought minor under the court’s jurisdiction, the minor’s best interests, and the efforts that DCFS has put forth in providing reasonable services to the parents.
This case comes before the Supreme Court concerning a father who on cert questioned the uncertain nature of the Legislature regarding the proper course of action when at the 18-month hearing , he did not receive reasonable reunification services during the 12 to 18-month extension period and therefore asserted he was owed an extension of time. The trial court had terminated reunification services and set the matter for a .26 at the 18 month review hearing. Father filed a writ petition challenging the lower court’s decision to terminate. The appellate court denied the petition. Father petitioned for cert and the Supreme court granted cert. This opinion followed.
When a minor is adjudicated a dependent per Cal. Welf. & Inst. Code § 300, the court must task the child welfare agency with adopting a case plan for the parents. Cal. Welf. & Inst. Code § 16501.1 establishes that the foundation and central unifying tool in child welfare services is the case plan. This case plan shall be instrumental in the plan to reunify the minor with parent. Before the setting of a .26 hearing, the court must balance many factors throughout the life of a case. It must bear in mind the overarching goal of the dependency scheme; the vital interest of the minor’s safety, stability, and protection, the parents’ interests and rights in raising their children, and the state’s interest in protecting its most vulnerable. In re Caden C., supra, 11 Cal.5th at p.625. During the reunification period parents must be offered services to address the causes that led to dependency. If the court finds that it cannot safely return minor to the parent within the statutorily specified timeframe, the court shall terminate services and set the matter for a .26 hearing to select a permanent plan to the permanency stage, where places the child up for adoption or it selects another permanent plan, such as placement with a guardian or long-term foster care.
The Legislature provides at the 18 month review hearing the juvenile court bears the responsibility for determining how to proceed after entering a finding that DCFS failed to provide reasonable services. The law is not explicit in whether reunification services were mandatory if there was a no reasonable services finding. Rather the law intones that the court must properly consider an extension based on the totality of the circumstances rather than entering a decision based on individual elements in a vacuum devoid of context. However, in considering the best interest of the minor, prior precedent establishes that childhood does not wait for the parent to become adequate and lengthy delays in the court system is a lifetime to a child. In In re Marilyn H. (1993) 5 Cal.4th 295.
This urgency for permanency really controls at the 18-month review hearing; an attitude that reflects the core legislative import of seeking to prevent children from spending their lives in the uncertainty of court. Cal. Welf. & Inst. Code § 366.22(a)(3). As a general rule, once a child has been out of a parent's custody for 18 months, the court must proceed to set a hearing to select a permanent plan for the child. Cal. Welf. & Inst. Code § 352 does find that the although the Legislature favours adherence to timelines, said timelines were not intended to be enforced strictly at the expense of due process concerns or preservation of family when the proper factors permit.
A possible caveat to this is if the court at the .22 hearing may not terminate parental rights and place child for adoption if it finds that reasonable services were never provided throughout reunification period. Cal. Welf. & Inst. Code § 366.26(c)(2)(A).
The code specifically reads
(2) 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.
The operative term being “each” review period. This means that the court at each review hearing shall have entered into the record that reasonable services were not provided to parent. This means at the 6 month, 12 month, and 18 month. It implies that there cannot have been a reasonable services finding at the 6 month, then no reasonable services finding at the 12 month, and then another no reasonable services finding at the 18 month.
Another caveat that this case mentions is that there should be extraordinary circumstances barring parent from engaging in their services. Extraordinary circumstances could also entail a reunification plan that cannot completed until well over the 18-month reunification period or a case where the parent was hospitalized for most of the reunification period but demonstrated a near perfect record of visitation and substantial efforts to comply with the case plan. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777–1778. However, exceptional circumstances sufficient to trigger the discretion to extend services are limited to the Agency's serious flaws or external events that prohibit the parent’s compliance and do not include a parent’s own failings
The Michael G case establishes that both case law and statutory authority is not “clear cut” on whether the juvenile court’s broad authority under Cal. Welf. & Inst. Code § 352 confers it the right to extend the reunification period beyond the 18 month period in all instances of no reasonable services.
If a statute is susceptible to two interpretations wherein one will render it constitutional and other constitutionally violative in whole or in part, the court must either adopt a construction that does not violate the meaning of the language contained therein, render it valid in its entirety, or free any doubt as to its constitutionality, even though the other construction could be held reasonable.
Whether to grant a continuance of a hearing in a dependency case, pursuant to statute providing juvenile court with discretionary authority to continue, for good cause, “any hearing” under dependency law beyond otherwise-applicable time limit, is a decision reviewed for abuse of discretion, a deferential standard. Cal. Welf. & Inst. Code § 352. Deferential standard provides a great deal of deference to the lower courts’ authority in that there is a high burden of proof that the appealing party must show to evince that the lower courts erred in their decision making process.
In this case the Supreme court upheld the instant court and the reviewing appellate court’s decision and concluded that there were not extenuating circumstances in the father’s case that warranted that the court’s exercising of its authority under section 352 and that extending services to father would be fruitless, as father had not maintained consistent and regular contact with child, had not made significant progress in redressing the issues that led to juvenile court involvement, and had not demonstrated capacity to complete the components of his case plan.
Juvenile Dependency and