Sara M. v. Superior Court of Tuolumne County8/8/2005
In this case, three children were removed from the custody of their mother, petitioner, Sara M. (hereafter mother), on grounds that she had failed to protect them and they had suffered serious emotional damage. (Welf. & Inst. Code, § 300, subds. (b), (c).) The juvenile court declared them dependents of the court and began reunification services to try to reunite the family. After six months of reunification services, the court found that mother had failed to contact or visit the children. (§ 366.21, subd. (e).) Under section 366.21, subdivision (e), and California Rules of Court, rule 1460(f)(1)(B), it terminated reunification services and scheduled a hearing to establish a permanent plan for the children. (See § 366.26.)
In this writ proceeding, mother contends that section 366.21, subdivision (e), does not permit a court to terminate reunification services after only six months due to a parent's failure to contact or visit a child, unless the child had originally been removed from the parent's custody because of abandonment. Because she did not originally abandon the children, she argues, she is entitled to a full year of reunification services before the court may begin to consider a permanent plan. She also argues that rule 1460(f)(1)(B) is invalid because it is contrary to the statute. The Court of Appeal agreed with her.
Section 366.21 can be read as mother and the Court of Appeal in this case read it. But it can also be read differently. Previous Court of Appeal decisions, as well as the Judicial Council in adopting rule 1460(f)(1)(B), have long interpreted section 366.21, subdivision (e), as permitting a court to terminate reunification services whenever a parent fails to contact or visit a child for six months after those services commenced. If this were a matter of first impression, the question would be close, but we are not writing on a clean slate. At this late date, we will not overturn the earlier appellate court decisions and the applicable rule of court.
Mother also claims her failure to contact or visit her children during this time was excusable because the Tuolumne County Department of Social Services (hereafter department) effectively prevented her from visiting them. As we explain, we disagree.
I. Factual and Procedural History
In November 2003, the department filed juvenile dependency petitions on behalf of mother's three children, who were four, seven, and eight years old at the time, under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). The petitions alleged, among other things, that mother failed to provide the children with "adequate food, clothing, and shelter," and that she was "unable to provide regular care for her children due to her substance abuse" involving crack cocaine and methamphetamine. The juvenile court detained the children. On December 9, 2003, it conducted the initial jurisdictional hearing. Mother appeared at that hearing, and the court ordered her to participate in a drug dependency program. The court set a contested jurisdictional hearing for December 30, 2003.
Mother failed to appear at the December 30 hearing, and her attorney did not know where she was. The juvenile court found it had dependency jurisdiction under section 300, subdivisions (b) and (c). It ordered reunification services, including visitation "as deemed appropriate by the case managing social worker pursuant to" section 362.1, subdivision (a), and scheduled a six-month review hearing. It also ordered mother to review, sign, and comply with the family reunification plan. On January 13, 2004, mother appeared before the juvenile court sitting as the drug dependency court. She said tha
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