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Case of the Month Archive

May 2023

As a matter of first impression, juvenile courts' discretionary authority pursuant to W&I C §352 to continue a permanency planning hearing includes the authority to extend reunification services to parent beyond 18-month time limit. . .


In affirmance, the California Supreme Court held that neither dependency law nor due process requires a court in a dependency action to extend reunification services to a parent beyond the 18-month period, where reasonable services had been provided at least 12 months but not provided during the 12- to 18-month extension period; however, a court has discretion to extend such services beyond the 18-month period in exceptional circumstances, per W&I C §352.


Michael G. v. Superior Court (Orange County Social Services Agency)

(April 6, 2023)

Supreme Court of California, S271809, 526 P.3d 120, 306 Cal.Rptr.3d 387, 2023 FA 2079, per Kruger (Guerrero, C.J., Corrigan, J., Liu, J., Groban, J., Jenkins, J., and Evans, J.). Orange County: Ufland, J. For Michael G. (Petitioner): Brian Okamoto. For Orange County Social Services Agency (Real Party in Interest): Jeannie Su and Aurelio Torre. For A.G. (Real Party in Interest): Harold Francis LaFlamme and Konrad Lee. CFLP §G.168.1.30.


A.G., who at the time was 14 years old, lived alone with her father, Michael G., and had no contact with her mother, who lived in North Carolina. The Orange County Social Services Agency (Agency) filed a dependency petition alleging that Michael suffered from escalating mental health issues that resulted in violent outbursts. According to A.G., Michael often spoke about demons, witchcraft, and government conspiracies. A.G. further stated that she often woke up to Michael yelling and punching walls or throwing things. The juvenile court assumed jurisdiction over A.G. and ordered that she be removed from Michael's custody. The juvenile court also ordered the Agency to provide Michael with reunification services, including a psychological evaluation.

At the six-month hearing, the Agency reported that Michael had refused to begin the recommended services but that he had periodic phone calls with A.G. The juvenile court found that Michael had been offered reasonable services but that he had made minimal progress with his case plan. Concluding that returning A.G. to Michael would pose a substantial risk to A.G.'s safety, the juvenile court continued the case.

At the 12-month hearing, the Agency reported that Michael had made moderate progress since the last hearing. For example, Michael had signed his case plan, begun individual counseling, and completed parenting classes. Michael also completed his psychological evaluation. The juvenile court continued the case another six months after finding "'there [wa]s a substantial probability that the child w[ould] be returned to the physical custody of her parent.'"


The Agency failed to provide reasonable services to Michael during the most recent review period. . .
At the 18-month hearing, the Agency reported that Michael's progress with his case plan had regressed. Michael had stopped returning phone calls from his social worker and had moved out of state without notifying the Agency. Michael also told his psychological evaluator that he would not continue mental health services, claiming that such services interfered with his religious beliefs. At this hearing, Michael argued that the Agency failed to provide reasonable services to him during the preceding period since his social worker failed to facilitate visitation with A.G., obtain or review his psychological evaluation in a timely manner, or contact Michael about further mental health services. The juvenile court found that although the Agency failed to provide reasonable services to Michael during the period between the 12- and 18-month hearings, additional services would not be in A.G.'s best interest nor reasonably lead to reunification. As a result, the juvenile court (Orange County's Ufland) ended reunification services and scheduled a permanency planning hearing pursuant to W&I C §366.26.

Michael filed a writ petition challenging the juvenile court's termination of reunification services, arguing that he was entitled to an extension of services given the juvenile court's finding that the Agency failed to provide reasonable services to him during the preceding period. The Court of Appeal, Fourth District, denied the petition, concluding that the juvenile court was not statutorily required to grant an extension of services. The California Supreme Court granted review of the petition and affirmed the judgement of the Fourth District.

As a preliminary matter, the justices noted that the case became "'factually moot'" after the juvenile court subsequently set a permanent plan of legal guardianship for A.G. and ended the dependency proceedings. Despite this, the justices exercised their discretion to retain and decide the case "'as one presenting issues of public importance, capable of repetition, yet tending to evade review.'"


Juvenile courts must balance family reunification and permanency for the child. . .
The justices began their analysis by noting that the dependency law governing six- and 12-month review hearings and 18-month review hearings differ. The reason for this difference involves the competing interests that must be balanced in dependency actions. In the early period of the reunification stage, the interest in family preservation, where possible, is a weightier consideration. As such, W&I C §361.5(a)(1)(A-B) provides that parents of children under three years old are presumptively eligible for six months of reunification services and parents of children three or older are presumptively eligible for at least 12 months of services. Moreover, in the contexts of six- and 12-month hearings, a court may schedule the W&I C §366.26 permanency planning hearing only if it finds by clear and convincing evidence that reasonable services have been provided or offered to the parent. These services are also normally provided for a maximum length of 18 months. The justices observed that in contrast to the six- and 12-month hearings, the statutory provisions governing the 18-month review hearing, in particular W&I C §366.22(a)(3), do not expressly require the court to first find that reasonable services have been provided or offered to the parent before the court schedules a W&I C §366.26 permanency planning hearing. The justices explained that by the time a child has been out of her parent's custody for 18 months, the child's interest in "prompt resolution of the child's custody status and her permanent and stable placement" becomes the leading focus.

On appeal, Michael conceded that W&I C §366.22(a)(3) does not expressly require courts to order an extension of reunification services beyond 18-months if reasonable services were not offered or provided in the 12- to 18-month period. Instead, he argued that the language of W&I C §361.5(a)(4)(A) creates "tension" on the topic of whether such services should be extended and argued that the conflict should be resolved in favor of the more lenient approach. Describing Michael's argument as a misreading of the statute, the justices explained that W&I C §361.5(a)(4)(A) authorizes such extension only to a parent or guardian who falls within a narrow set of exceptions set out in W&I C §366.22(b). These exceptions include a parent or guardian who is making progress in a court-ordered residential substance abuse treatment program; was either a minor or nonminor dependent at the time of the initial hearing; or was recently discharged from incarceration, institutionalization, or custody of the U.S. Department of Homeland Security. Here, Michael fell into none of these categories. The justices further noted that a set of appellate opinions similarly have misinterpreted the statute and, as such, the justices disapproved these cases to the extent that their reasoning reflects a different interpretation than the justices' opinion. These cases include In re M.F. (2019) 32 Cal.App.5th 1, 243 Cal.Rptr.3d 510; T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 230 Cal.Rptr.3d 928; and In re M.S. (2019) 41 Cal.App.5th 568, 254 Cal.Rptr.3d 162.


W&I C §352 authorizes courts to continue "any hearing" in dependency actions, which includes the authority to extend reunification services. . .
After concluding there is no requirement that courts order an extension of services in Michael's situation, the justices turned to the discretionary authority juvenile courts have to order such extensions. Specifically, they noted that W&I C §352 acts as an "'emergency escape valve'" by authorizing courts to continue any hearing under dependency law beyond the otherwise applicable time limit, provided there is good cause and such a continuance would not be contrary to the best interest of the minor. "Any hearing," the justices observed, includes a permanency planning hearing.

As a matter of first impression, the justices further held that the discretionary authority vested in the courts by W&I C §352 also includes the authority to extend reunification services in the meantime, notwithstanding the applicable 18-month time limit on services set forth in W&I C §361.5(a)(3)(A). The justices further clarified that the source of the court's discretionary authority to order an extension of services at the 18-month review hearing is W&I C §352, not W&I C §366.22(a), thereby disapproving In re Daniel G. (1994) 25 Cal.App.4th 1205, 31 Cal.Rptr.3d 75. The justices reasoned that the Legislature would not have given courts the discretion to continue a permanent plan where reasonable services had not been provided "without also giving courts the corresponding discretion to order additional reunification services in the meantime." Furthermore, the Courts of Appeal have consistently read such authority into the statute for decades and the Legislature has never acted to correct them.

Michael lastly argued that due process requires reading into the dependency law an automatic extension of services when a court finds at the 18-month review that reasonable services were not provided during the most recent review period. The justices disagreed. First, the justices noted that Michael offered "no plausible interpretation of the statutory text that would authorize us to craft the sort of automatic extension he seeks." Second, the justices were unpersuaded that the statute created a constitutional concern. They reiterated the policy that during the early stages of the reunification period, greater focus is placed on family preservation, but where a child has already spent 18 months out of her parents' custody, the leading focus becomes the child's interest in prompt resolution of her custody status. Third, the justices noted that where the failure to provide reasonable services interferes with the court's ability to assess the prospects for family reunification, W&I C §352 offers the discretionary option to continue the permanency planning hearing and extend reunification services.

For these reasons, the California Supreme Court affirmed the judgment of the Court of Appeal.





As the justices commented in a footnote, the statute does not define "reasonable services." Instead, it appears that whether services were "reasonable" is determined according to the circumstances of a particular case. The justices further noted that Courts of Appeal have generally held that to support a finding that services were reasonable "'the record should show that the supervising agency 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…'" Here, the juvenile court based its finding that reasonable services were not offered or provided during the most recent period on several concerns. First, the social worker failed to obtain or review a copy of Michael's psychological evaluation until just before the 18-month hearing in June 2021, despite the court receiving a copy of the report in December 2020. Second, the Agency failed to offer Michael appropriate mental health support once he agreed to participate. And third, the social worker mistakenly believed A.G.'s mother was allowed only written communication with A.G., when mother's case plan permitted monitored phone calls and in-person visitation if mother visited California.


Library References
16 Witkin, Summary of Cal. Law (11th ed. 2022) Juvenile, §404A
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶7:40



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