Friday, September 27, 2002
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Court Strictly Enforces Notice Rule in Dependency Case
By a MetNews Staff Writer
A statutory requirement that social workers provide counsel for a parent facing termination of rights in a dependency case with a status report at least 10 days before a hearing is mandatory rather than directory, the Court of Appeal for this district held yesterday.
Div. Three further held, in an opinion by Justice Walter Croskey, that a Los Angeles Superior Court commissioner committed fundamental error requiring reversal by allowing a hearing to go forward without the required notice or a waiver by the parent.
The court granted a new hearing to Judith P., as she was identified, a mother of three with a history, as Croskey described it, of mental illness.
The Department of Children and Family Services initiated dependency proceedings after she was arrested for shoplifting about $700 worth of jewelry at a department store. One of her children, Courtney, was with her, and the mother was accused of having the child remove security tags from the items.
The child claimed that her mother had used her once before to help steal. DCFS, which noted that Courtney and her sister Casey had been dependents of the court once before and that Courtney had developed a spotty record of school attendance after jurisdiction was terminated, sought to have the two children declared dependent again.
Courtney and Casey’s older sister was not made a subject of the proceeding because she was living with her maternal grandparents. The two younger girls were placed with foster parents, who eventually said they were willing to adopt them, and were declared dependent in February of last year.
A six-month review hearing was held in August; the court found that the mother was only in partial compliance with the reunification plan and maintained the status quo. A 12-month hearing was set for Feb. 13 of this year.
The status report for that hearing, which was filed the day of the hearing and dated Feb. 9, indicated that the mother failed to make visits, did not stay in contact with the social worker, and could not verify that she was in counseling, all as required by the reunification plan. DCFS recommended that reunification efforts be terminated.
Judith P. told the court, through her attorney, that she was doing everything that the plan required, other than visiting the children. The lack of visitation, she claimed, was due to her inability to obtain transportation.
Commissioner Irwin H. Garfinkel terminated reunification efforts, over the objection of the mother’s attorney, and set a hearing on possible termination of parental rights.
That was error, Croskey said, because Welfare and Institutions Code Sec. 366.21 contains an “express mandate” that the status report be served on the mother’s counsel at least 10 days before the hearing. In Judith P.’s case, he explained, it appeared that the report was prepared on a Saturday, and made available to counsel on the following Monday, meaning that it was not served until two days before the hearing.
The 10-day rule, he went on to say, is one of the due process safeguards that the Legislature has included in the dependency laws. The law, he noted, says that the report “shall” be filed and served “[a]t least” 10 days before the hearing.
While the statute does not specifically say that the hearing cannot take place if the 10-day rule is not complied with, that appears to be the legislative intent, the justice said, since the purpose of the notice is to protect individuals facing loss of valuable rights.
The case is In re Courtney P., B156495.
Copyright 2002, Metropolitan News Company