Dependency Case Law

In re Courtney P. (Sept. 26, 2002) 102 Cal.App.4th 535 [126 Cal.Rptr.2d 14]. Court of Appeal, Second District, Division 3.

The juvenile court terminated a mother's reunification services, denied her request for a contested Welfare and Institutions Code section 366.21(f) hearing and a hearing continuance, and set the contested matter for a section 366.26 hearing.

After declaring the children dependents, the juvenile court had ordered reunification services and monitored visitation for the mother. The mother was ordered to attend counseling and a parenting class, and to take any prescribed psychotropic medication. The status report submitted by the Department of Children and Family Services (DCFS) at the six-month section 366.21 hearing stated that the mother had not complied with the case plan and had failed to regularly visit her children. DCFS recommended that the children continue their placement in foster care. A 12-month status review hearing was set and the court ordered DCFS to submit a section 366.21(f) status report on or before the hearing. DCFS did not file the report with the court until the day of the hearing. The status report indicated that DCFS did not know if the mother was in compliance with the case plan or not and recommended that reunification services be terminated.

The juvenile court received the report into evidence and concluded that adequate notice of its contents had been given to the mother. Mother's counsel then stated that her client had completed the requirements of her case plan but had been unable to inform the social worker because she did not currently know how to contact him (the social worker had changed six times in two years). The mother had documentation of her completion, but did not bring it with her. Mother's counsel then asked that the court either continue the section 366.21(f) hearing or wait until the section 366.26 hearing to terminate reunification services so that the social worker could have time to interview the mother. Counsel also added that the mother would have liked to visit the children more frequently but had financial constraints concerning transportation.

The juvenile court concluded that the mother's compliance with the case plan was incomplete, terminated reunification services, and ordered DCFS to provide permanent placement. Mother's counsel then requested a contested section 366.21(f) hearing. The court denied the request but decided that the section 366.26 hearing would be set as a contested matter. On appeal, the mother contended that the juvenile court erred by failing to allow her to set a contested hearing in accordance with section 366.21(f).

The Court of Appeal held that DCFS's failure to provide timely service of their status report as mandated by section 366.21(c) constituted a denial of due process and compelled a reversal of the juvenile court's order. Section 366.21(c) provides that, "[a]t least 10 calendar days" prior to the hearing, the social worker must file a status report with the court and provide copies of it to both the parents and counsel of any dependent children. This report must include, among other things, the social worker's recommendation for disposition and, if the social worker does not recommend returning the child to a parent, the specific reasons why the return of the child would be detrimental to the child. The appellate court stated that this 10-day time period provides parties the time to review the contents of the report and recommendations and, more importantly, the time to assemble their own evidence that contradicts or explains the findings in the report. Thus, substantive and procedural requirements must be satisfied before proposing termination of reunification in order to protect the interests of parents and diminish the risk of erroneous findings of parental inadequacy. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)

The appellate court also found that the minimum 10-day requirement was mandatory, meaning that the failure to comply has the effect of "invalidating the governmental action to which the procedural requirement relates." (Edwards v. Steele (1979) 25 Cal.3d 406, 409-410.) In ascertaining whether the Legislature intended to make the time requirement permissive or mandatory, the court applied two tests. The "promotes test" focuses on whether the likely consequences of holding a time limitation mandatory would defeat or promote the purpose of the enactment. The "penalties test" finds the time limitation mandatory only if the penalty for failure to do the act within the time commanded is provided in the enactment. The appellate court concluded that, under the "promotes test," the consequences of holding the 10-day notice requirement mandatory promoted the preservation and strengthening of the child's family ties and the reunification of the family (Welf. & Inst. Code, § 202 (a)), which is of paramount importance at all pre-permanency planning stages of the proceedings. The court also found that the "penalties test" weighed in favor of finding the 10-day minimum requirement mandatory because, although section 366.21 does not expressly provide for a consequence in failing to meet its requirements, the due process provisions of both the state and federal constitutions have the effect of invalidating actions taken in violation of reasonable notice requirements. Accordingly, the court found that the DCFS had a mandatory duty to give parents and children the status report at least 10 days before a pre-permanency plan review hearing.

Last, the appellate court concluded that the failure to provide parents and children with the status report at least 10 days before a status review hearing is per se reversible error in the absence of either a continued hearing or an express waiver. Although the appellate court considered arguments by DCFS that notice should be reviewed using a harmless error standard, it agreed with the child's counsel that the failure to provide this kind of notice is a structural error rather than a trial one. A structural error involves basic protections, without which no punishment may be regarded as fundamentally fair. (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) The appellate court reasoned that it is fundamentally unfair to terminate the parent-child relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification. Although Arizona v. Fulminante was a criminal case, the court concluded that dependency cases were analogous in that both involve the deprivation of a fundamental constitutional right via adjudicatory processes-the parent's relationship with his or her child may be permanently terminated (loss of the right to parent) while the defendant may be convicted (loss of liberty). Based on this comparison, the appellate court found that the failure to give the minimum 10 days' notice was a structural error and that the per se reversible error standard applied. As such, the order terminating reunification services, denying the mother's request for a continuance, and setting the contest for the section 366.26 hearing was reversed.