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dependency articles

 

Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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V. Issues Arising from Review Hearings Generally.

A. Was the time frame in which the hearing was held proper?.

B. Was the supplemental report adequate?.

C. Was appellant deprived of due process because of the lack of sufficient notice of the review hearing?

D. Did the court deprive appellant of any of the due process attributes of the hearing?.

E. Did the juvenile court appropriately deny or grant appellant's or the department's request for a continuance? 

F. Did substantial evidence support the juvenile court's decision not to return the minor to the appellant's care?

G. Did substantial evidence support the juvenile court's determination that reasonable reunification services were provided by the department in the period preceding the review hearing?.

H. Sibling groups.  (Welf. & Inst. Code, § 366.21.)

V. Issues Arising from Review Hearings Generally.

  1. Was the time frame in which the hearing was held proper?
    1. Was the review hearing held too early?
      1. The reference to recurrent six‑month hearings shows a legislative intent to give parents, during each period prior to recurrent review, a period of time to learn, adjust and amend their ways, which will approach six months. It would be error for a trial court to order a review hearing after a period substantially shorter than six months, but a five-month hearing was held not to be error. (In re Candace P. (1994) 24 Cal.App.4th 1128, 1132‑1133.)
  2. Was the supplemental report adequate?
    1. The social worker must file a supplemental report at least 10 days before each scheduled review hearing. (Welf. & Inst. Code, § 366.21, subd. (c).)
    2. See Welfare and Institutions Code section 366.1 for a list of subjects that the report must consider.
    3. Was the appellant denied a due process right to a social study/ report?
      1. If a report is required in the making of a dependency decision, the absence of the report is a non-waivable due process violation that is cognizable on appeal. (In re Linda W. (1989) 209 Cal.App.3d 222 [reversal of parental rights termination where department failed to prepare a mandatory written report]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411 [while court noted that absence of report implicates a due process violation, omissions in a report may not make the order reversible].)
  3. Was appellant deprived of due process because of the lack of sufficient notice of the review hearing?
    1. Due process requires notice reasonably calculated to apprise appellants of the pendency of the action and afford them an opportunity to present their objections. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) Reversal was mandated by respondent's failure even to make an effort to provide appellant mother the procedural safeguard of notice.
      1. The Fourth District, Division Three, reversed termination of appellant mother's parental rights where she was deprived of a fair hearing when respondent social services agency did not even attempt to notify her of the six‑month review hearing where the court terminated reunification services and scheduled a permanency hearing. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 107.)
  4. Did the court deprive appellant of any of the due process attributes of the hearing?
    1. Appellant has the right to present evidence and cross‑examine adversarial witnesses. (In re James Q. (2000) 81 Cal.App.4th 255, 266.)
    2. Appellant cannot be denied his right to a hearing even if he or she fails to tender an offer of proof. (In re James Q. (2000) 81 Cal.App.4th 255, 266.)
  5. Did the juvenile court appropriately deny or grant appellant's or the department's request for a continuance?
    1. In In re Julian L. (1998) 67 Cal.App.4th 204, the Second District, Division Four, reversed the termination of parental rights when the court refused to grant the mother's counsel a continuance. Counsel stated that he had not yet had an opportunity to ascertain the mother's wishes. The appellate court held that the juvenile court erred in refusing the continuance because counsel needed to effectively represent the mother. Furthermore, the court found the additional delay would not have negatively affected the minor's interest in stability.
  6. Did substantial evidence support the juvenile court's decision not to return the minor to the appellant's care?
    1. At the review hearings, there is a statutory presumption that the child will be returned to parental custody unless the court finds by a preponderance of the evidence that "the return of the child would create a substantial risk of detriment to the physical or emotional well‑being of the minor." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249; Welf. & Inst. Code, § 366.21, subds. (e) & (f); see also, § 366.22, subd. (a) [similar language].)
  7. Did substantial evidence support the juvenile court's determination that reasonable reunification services were provided by the department in the period preceding the review hearing? (Welf. & Inst. Code, '' 366, subd. (b), 366.21, subds. (e) & (f), 366.22, subd. (a).)
    1. "In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
    2. The record should show that the department identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed). (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
    3. Where the key to the reunification plan was that the parent and child participate in conjoint counseling and the department failed to provide such counseling, there was insufficient evidence to support the juvenile court's finding that reasonable services had been provided to the parent. (In re Alvin R. (2003) 108 Cal.App.4th 962, 973.)
  8. Sibling groups. (Welf. & Inst. Code, § 366.21.)
    1. If a child is over the age of three when removed from parental custody, the parent is entitled to a minimum of 12 months of reunification services. (Welf. & Inst. Code, § 361.5(a)(1).) For children who are under three on the date of the initial removal, the reunification period is limited to six months. (Welf. & Inst. Code, § 361.5(a)(2).) In the case of a sibling group that includes children in both categories, at the six month hearing the court may split up the siblings by expediting permanency for the younger sibling, expedite permanency for the entire sibling group, or continue the case to the 12‑month hearing for all of the children (Welf. & Inst. Code, § 366.21, subd. (e)) for the purpose of giving the court flexibility to maintain a sibling group together in a permanent home. (Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 14.)
    2. Did the court consider the proper factors when scheduling a 366.26 hearing for some or all of the sibling group members?
      1. Factors the report must address and the court must consider include the following: (a) whether the children were removed from parental care as a group; (b) the closeness and strength of the sibling bond; (c) the siblings' ages; (d) the appropriateness of maintaining the group together; (e) the detriment to each child if sibling ties are not maintained; (f) the likelihood of finding a permanent home for the group; (g) whether the group is currently placed together in a preadoptive home or has a concurrent plan or goal of legal permanency in the home; (h) the wishes of each child whose age and condition permit a meaningful response; and (i) the best interest of each child in the group. (Welf. & Inst. Code, § 366.21, subd. (e).) The court must also specify the factual basis for its finding that it is in each child's best interest to schedule a section 366.26 hearing for some or all of the members of the sibling group.
        1. The Second District, Division Seven, granted appellant's 39.1B writ where the court terminated reunification and set a 366.26 hearing where the department's report and the court failed to consider the statutory requirements before setting the section 366.26 hearing. (Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 14.)
    3. Appointment of counsel for siblings.
      1. When first appointing counsel in a dependency matter, the court may appoint a single attorney to represent all the siblings. Separate attorneys can be appointed only if there is an actual conflict among the siblings or if circumstances specific to the case present a reasonable likelihood that an actual conflict will arise. If these specific circumstances exist, the court should appoint separate counsel at the outset. (In re Celine R. (2003) 31 Cal. 4th 45, 58 (this case arose in the context of the new sibling exception to adoption, Welf. & Inst. Code, § 366.26, subd. (c)(1)(E).)

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