Dependency Case Law

In re Stuart S. (Dec. 10, 2002) 104 Cal.App.4th 203 [127 Cal.Rptr.2d 856]. Court of Appeal, Third District.

The juvenile court terminated reunification services, reduced the mother’s visitation, and adopted a plan for a “permanent living arrangement.” The Sutter County Department of Human Services (DHS) removed the child, then age 10, from the mother’s custody due to her neglect and emotional abuse. The child was placed in a restrictive group home, and the court adopted a reunification plan. It was believed that the child still needed a structured and stable environment in order to fully treat his emotional and behavioral problems. Although the child made progress in the group home and was looking forward to a less restrictive placement, the mother was making little progress on her plan. The social worker’s report for the 12-month review hearing recommended a change of visitation based upon the mother’s erratic behavior, her failure to address her own mental health issues, and her inability to reliably access transportation to and from visits without the assistance of DHS. It further stated that a permanent plan for “another permanent living arrangement” was appropriate. However, the plan attached to the report recommended placement in long-term foster care and included a change in visitation. At the review hearing, the juvenile court terminated reunification services and adopted the findings and orders recommended by the social worker’s report. The juvenile court did not specifically adopt the case plan or separately modify visitation, stating only that “[t]he plan for a permanent living arrangement is appropriate. A permanent plan is necessary.” On appeal, the mother contended that the juvenile court exceeded its jurisdiction in adopting a permanent plan that was not one of the three plans authorized by the Welfare and Institutions Code at the 12-month permanency hearing. DHS argued that the mother had waived the issue by failing to raise it in the juvenile court and further asserted that the designation of “another planned permanent living arrangement” was federally mandated.

The Court of Appeal, in this partially published opinion, determined that the issue was subject to waiver, but decided to exercise its discretion to address the merits in order to clarify the application of “another permanent planned living arrangement” as it related to the selection of a permanent plan. Under Welfare and Institutions Code section 366.26, the options available to the juvenile court when determining a permanent plan for the child due to failed reunification efforts are adoption, legal guardianship, and continuation in long-term foster care. (§ 366.26(b)(1), (b)(3), (b)(4).) Federal regulations state that if after considering reunification, adoption, legal guardianship, or permanent placement with a fit and willing relative, the state concludes that the most appropriate permanency plan for a child is placement in another planned permanent living arrangement, then the state must document to the court the compelling reason for the alternate plan. (45 C.F.R. § 1356.21(h)(3).) Examples of compelling reasons for establishing a permanency plan include emancipation, a parent’s emotional or physical disability, or a tribe’s identification of a planned permanent living arrangement for the child. (Ibid.) The California Legislature brought the state’s case review system into compliance with the federal requirements by enacting changes to sections 366 and 366.3 in 1999 and by adding “another planned permanent living arrangement” to the list of potential permanent plans to be considered in periodic reviews. The appellate court noted that DHS had failed to document a compelling reason to place the child in a planned permanent living arrangement. Rather, the appellate court believed that the juvenile court’s finding appeared to simply replace the phrase “long-term foster care” with the phrase “another planned permanent living arrangement.” The appellate court concluded that a planned permanent living arrangement was inapplicable under the circumstances, and the child’s current permanency plan was long-term foster care. The finding of a planned permanency living arrangement was ordered to be stricken. All other orders of the juvenile court were affirmed.