California Court of Appeal Jun 16, 2017 No. D071620Published
Filed 6/16/17 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.G. et al., a Person Coming Under the Juvenile Court Law. D071620 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ15122ABC) Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.
Bowman, Judge. Affirmed in part; reversed in part.
Neale Bachmann Gold, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff and
Respondent.
A.J. appeals from a 12-month review hearing at which the juvenile court returned
his children to their mother's care. (Welf. & Inst. Code, § 366.21, subd. (f).)1 He
contends the court erred when it found that he had been offered or provided reasonable
services. We agree and reverse the reasonable services finding as to A.J. In all other
respects, the findings and orders are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A.J. and R.G. are the parents of three children, who are now ten, nine and seven
years old. In November 2011, A.J. was arrested and deported to Mexico after he
assaulted R.G. R.G. obtained an order prohibiting A.J. from having contact with her and
We review a reasonable services finding to determine if it is supported by
substantial evidence. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) We consider
the evidence in the light most favorable to the prevailing party and indulge in all
legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra,
2 Cal.App.4th at p. 545.) The burden is on the petitioner to show that the evidence is
insufficient to support the juvenile court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th
942, 947.)
B
The Court's Reasonable Services Finding Is Not Supported by Substantial Evidence
The uncontroverted record shows that the Agency did not provide court-ordered
reunification services to A.J. We conclude that the court erred when it found that under
the circumstances, the Agency provided reasonable services to A.J.
The court's finding was based in part on A.J.'s statement he was withdrawing his
request for reunification services. This statement does not constitute substantial evidence
to support the finding that services were reasonable under the circumstances. On June
13, Commissioner Imhoff ordered the Agency to provide reunification services to A.J.
The Agency sent a referral to DIF. After meeting with DIF, A.J. decided it was in the
children's best interests to stay in the United States. On July 19, he told the social worker
he did not need reunification services. The social worker warned A.J. not to relinquish
his right to reunification services until he had consulted his attorney. At the next hearing,
on July 25, A.J. asked for reunification services and Commissioner Imhoff ordered the
Agency to provide reunification services to him. Thus, any confusion about A.J.'s
8
interest in receiving reunification services was cleared up within the week, and the
Agency was required to offer or provide court-ordered reunification services to A.J.
(§ 361.5, subd. (a) [the court shall order the social worker to provide child welfare
services to the child and to the child's mother and statutorily presumed father].)
Further, statutory protections apply when a parent expresses a wish not to
participate in reunification services. The court may bypass services if the parent has
advised the court that he or she is not interested in receiving services or having the child
returned to his or her custody and does not wish to receive services. The parent must be
represented by counsel and must execute a waiver of services form. The court is required
to advise the parent of any right to services and of the possible consequences of a waiver
of services. The court is prohibited from accepting the waiver of services unless it finds
on the record that the parent has knowingly and intelligently waived the right to services.
(§ 361.5, subd. (b)(14).) Thus, as applicable here, a court may not rely on a parent's
uninformed statement about not wishing to receive reunification services to curtail the
parent's right to such services.
The court's finding the Agency could not provide services to A.J. because he was
responsible for his own deportation is legally indefensible. A.J.'s arrest and deportation
to Mexico do not make the Agency's failure to provide court-ordered services to A.J.
reasonable under the circumstances. Just as there is no " 'Go to jail, lose your child' " rule
in California (In re S.D. (2002) 99 Cal.App.4th 1068, 1077), there is no "Go to Mexico,
lose your child" rule in California (§ 361.5, subd. (a)(3)(A)). The Legislature recognizes
there may be barriers to providing services to a person who has been arrested and
9
deported to his or her country of origin. (§ 361.5, subd. (a)(3)(A).) However, under the
California dependency scheme, this circumstance may constitute reason to provide an
extended period of reunification services to the parent. (Ibid.) It does not relieve the
Agency from its obligation to provide reunification services to a deported parent.
The Legislature acknowledges in some circumstances, court-ordered services
may not be available to a parent who has been deported to his or her country of origin.
(§ 361.5, subd. (a)(3)(B).)4 This is not the situation here. The Agency represented that it
was looking for service providers and could provide discretionary services to A.J. in
Mexico. The record shows that visitation services were available, but were not
implemented on a regular basis. Parenting education programs were available through
DIF, but DIF had not yet referred A.J. to a program. Thus, the court's finding the Agency
could not provide services to A.J. because he was in Mexico is not supported by
substantial evidence.
Finally, the Legislature provides that services for a deported parent include
"[r]easonable efforts to assist parents who have been deported to contact child welfare
authorities in their country of origin, to identify any available services that would
substantially comply with case plan requirements, to document the parents' participation
in this services, and to accept reports from local child welfare authorities as to the
parents' living situation, progress and participation in services." (§ 361.5, subd.
4 In those circumstances, the failure to provide services does not prohibit a court from terminating parental rights. (See § 366.26, subd. (c)(2)(A).) However, the court must consider the child's wishes to have continued contact with his or her parent when choosing a permanent plan for the child. (§ 361.5, subd. (a)(3)(B).) 10
(e)(1)(E).) The record does not contain any evidence to show that during the review
period, the Agency assisted A.J. in contacting DIF for service referrals or identified any
available services that would substantially comply with case plan requirements. The
record shows that A.J. was not offered, or provided with, the court-ordered services in his
case plan during the review period. Accordingly, we conclude there is not substantial
evidence to support the reasonable services finding.
C
A Harmless Error Analysis Does Not Apply
The Agency argues providing discretionary services to A.J. will be an adequate
remedy for any failure to provide reasonable reunification services to him, and therefore
error, if any, is harmless. (See, People v. Watson (1956) 46 Cal.2d 818, 836 [miscarriage
of justice occurs where it is reasonably probable a result more favorable to the appealing
party would have been reached in the absence of error].) The Agency does not cite any
case holding that a harmless error analysis applies to an erroneous reasonable services
finding. The cases on which it relies do not support that proposition. (See, In re Celine
R. (2003) 31 Cal.4th 45, 60 [harmless error analysis applies to failure to appoint separate
counsel for siblings]; Adoption of A.B. (2016) 2 Cal.App.5th 912, 927 [ICWA notice
errors were harmless where Indian tribe had actual notice]; In re Michael G. (2012) 203
Cal.App.4th 580, 591 [inadequate adoption assessment reviewed for prejudicial error].)
We are not convinced a harmless error analysis applies to a reasonable services
finding. In view of federal statutes requiring the provision of services to safely reunify
11
families,5 the Legislature has created a statutory scheme with "precise and demanding
substantive requirements" which in part "protect the legitimate interests of the parents."
(Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) Among those requirements is
the provision of family reunification services to the child's mother and statutorily
presumed father for a specified period of time. (§ 361.5, subd. (a).) The Legislature has
mandated consequences for the failure to provide court-ordered reunification services to a
(c)(2).) There are no equivalent provisions for the failure to provide discretionary
services to a parent.
An erroneous reasonable services finding may have consequences for the parent if
the child is removed again from the other parent's custody during the dependency
proceedings (§ 361.5, subd (a)(1) [time limitations on services]), or if the parent is
5 In enacting the federal Adoption and Safe Families Act, Congress "tied federal funding of foster care and adoption assistance to each state's adoption of a plan regarding its foster care system." (In re D.C.D. (2014) 629 Pa. 325, 347; 42 U.S.C. § 671.) Absent a statutory exception, federal law requires state plans to provide that "reasonable efforts shall be made to preserve and reunify families." (42 U.S.C. § 671(a)(15)(B).) These efforts include the provision of reunification services. (42 U.S.C. §§ 629, 629a(a)(7).) To be eligible to receive federal foster care maintenance payments (42 U.S.C. §§ 671(a)(15), 672, 674), agencies must make reasonable efforts "to effect the safe reunification" of families. (45 C.F.R. 1356.21(b).) The Pennsylvania Supreme Court, interpreting federal law controlling state dependency plans, holds that the remedy for an agency's failure to provide services is for the court to conclude on the record that the agency has failed to make reasonable efforts. (In re D.C.D., supra, 629 Pa. at p. 347.) In this case, however, the record shows that the Agency made reasonable efforts to reunify the family as to the mother, which may satisfy federal requirements for funding purposes. (See 42 U.S.C. § 671(a)(15) [reasonable efforts shall be made to preserve and reunify families and make it possible to a child to safely return to the child's home].) 12
involved in a future dependency proceeding (see, e.g., § 361.5, subd. (b)(10) [permitting
court to bypass services where parent has not made reasonable efforts to remedy
problems].) The remedy for the failure to provide court-ordered reunification services to
a parent is to provide an additional period of reunification services to that parent and to
make a finding on the record that reasonable services were not offered or provided to that
parent.
DISPOSITION
The finding that A.J. was offered or provided reasonable services is reversed. In
all other respects, the findings and orders are affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
DATO, J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that the Agency failed to provide reasonable reunification services to the father, A.J., and that the juvenile court's finding to the contrary was not supported by substantial evidence. The court further held that a harmless error analysis does not apply to an erroneous reasonable services finding in dependency proceedings.
Issues
Whether the Agency provided reasonable reunification services to a deported parent.
Whether a parent's initial, uninformed statement declining services constitutes a valid waiver of the right to reunification services.
Whether a harmless error analysis applies to an erroneous reasonable services finding.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“The uncontroverted record shows that the Agency did not provide court-ordered reunification services to A.J.”
“We are not convinced a harmless error analysis applies to a reasonable services finding.”