Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SJN1500026) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed. Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
In December 2015, the juvenile court terminated 18-year-old S.P.'s nonminor dependency under Welfare and Institutions Code section 391 because his whereabouts were unknown, he was not participating in services, and he had previously told the Riverside County Department of Public Social Services (DPSS) that he no longer wanted to be a dependent. Although S.P.'s whereabouts remain unknown, he appeals the order terminating dependency through his attorney who argues DPSS failed to fulfill its duties under section 391 to: (1) make reasonable efforts to locate S.P. before the termination hearing, (2) file the requisite termination report and provide a best interest analysis, and (3) advise S.P. of his dependency options in a timely manner. Because the record demonstrates DPSS fulfilled each of these requirements and S.P. did not meet the criteria to be a nonminor dependent, we affirm.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
A. S.P.'s Dependency
S.P. came to DPSS's attention in January 2012 when he was 14 years old. A Murrieta police officer found him walking alone on the shoulder of Highway 15 and he told the officer he had run away from home to escape physical and emotional abuse. After investigating S.P.'s family, DPSS filed a dependency petition alleging S.P.'s stepfather threatened to kill S.P. and subjected him to various forms of extreme punishment, such as submerging him in ice-cold water, forcing his face under running water to prevent him from breathing, and forcing him to sleep in the bathtub. S.P.'s mother had neglected to enroll him in school and obtain medical care for him. She had an extensive history of referrals for general neglect and physical and sexual abuse, and had refused to participate in family maintenance services in 2011. DPSS took S.P. and his younger sister, J.P., into protective custody and placed them together in a foster home.
In April 2012, the juvenile court established dependency jurisdiction over S.P. and found S.P., Sr., to be his presumed father. DPSS recommended reunification services for S.P.'s mother, but she waived them. The court terminated S.P., Sr.'s services after only six months.
In July 2012, S.P. was diagnosed with posttraumatic stress disorder, psychosis (not otherwise specified), and reactive attachment disorder, and the court authorized psychotropic medication to treat delusions, mood instability, aggression, and nightmares. Over the next three and a half years, S.P.'s diagnosis expanded to include schizophrenia, bipolar disorder, and dissociative identity disorder, and his prescriptions included Abilify, Risperdal, Depakote, Lexapro, and Trazadone.
S.P. was initially placed in foster care, but in the early part of 2014 he went to live with his paternal grandfather in Alabama. This arrangement lasted only a few months and by March 2014, S.P. was back in California. Over the next several months, S.P. moved to three different group homes. According to DPSS, the placements were unsuccessful because S.P. "continuously refused to follow the program rules at his first two placements and eventually [ran away]."
In April 2014, S.P. was hospitalized "for self[-]harm." From mid-July to mid-September 2014, he was on runaway status and DPSS could not locate him. On September 11, 2014, DPSS placed S.P. at his fourth group home since moving back to California.
In a January 2015 post permanent plan review report, DPSS recommended the court continue S.P.'s dependency when he turned 18 in May 2015 and select a planned permanent living arrangement with the goal of emancipation as his permanent plan. S.P.'s social worker reported, "[S.P.] has been informed of the potential benefits of remaining under Juvenile Court Jurisdiction as a Non-Minor Dependent (NMD), and is currently opting in to Extended Foster Care (EFC)." At the time of the report, S.P. was enrolled in high school but was not on track to graduate.
In February 2015, during a Team Decision Making meeting, S.P.'s social worker "reminded" S.P. of his right to participate in extended foster care until the age of 21. S.P. stated he no longer wanted to participate in extended foster care and wished to terminate his dependency when he turned 18. The social worker informed him of the benefits of remaining in foster care and of his right to reenter foster care until the age of 21 if he changed his mind after termination.
In March 2015, S.P. told his social worker he wanted "nothing to do with extended foster care."
S.P. ran away from his group home on April 2, 2015. His social worker tried contacting him through his relatives and enlisting the help of law enforcement, to no avail. However, on May 8, 2015, S.P. called his social worker and asked to be placed in a group home. He said he had been living in a tent until the rain washed it and his belongings away. DPSS staff retrieved S.P. and took him to his new placement, Ferree's Group Home in Banning (Ferree's).
Two days later, S.P. ran away from Ferree's. He returned shortly after, ran away again, and again returned.
In a status review report filed May 14, 2015, DPSS recommended terminating S.P.'s dependency. His social worker wrote: "Throughout this reporting period, [S.P.] had stated he did not want to participate in extended foster care. He had plans to leave the group home on his 18th birthday and go live with his friends. He stated his uncle would be able to help him obtain a job at Walmart. [S.P.] was not interested in listening to reason and how [DPSS] will be able to help him. [S.P.] self[-]medicates with marijuana and felt [DPSS] should help him with obtaining a marijuana card. Once he understood [DPSS] would not help him obtain a marijuana card he stated he definitely did not see any point in participating in extended foster care." The social worker added S.P. had told her "numerous times" he believed he would be better off without the dependency. He had not been attending school since before he ran away, had not been attending therapy, and rarely participated in life skills classes.
In a meeting on May 19, 2015, the social worker informed S.P. of the upcoming termination hearing and his right to be present. S.P. replied he was "unsure" he wanted his dependency terminated. In an addendum report filed May 27, 2015, the social worker explained that despite S.P.'s apparent change of heart, she still believed termination was appropriate because S.P. was not utilizing services. He "continuously" tested positive for marijuana, broke group home rules, and ran away. He also refused to take his medication, attend school, and participate in therapy.
B. S.P.'s Nonminor Dependency
S.P. turned 18 on May 30, 2015. In an addendum report filed June 29, 2015, the social worker changed her recommendation to continuing the dependency due to recent changes in S.P.'s outlook and behavior. S.P. had been working 32 hours a week as a busboy at a restaurant, following group homes rules, and keeping supervisors apprised of his whereabouts. He had decided he wanted to continue his dependency and he qualified for extended foster care because he was working at least 80 hours a month.
On July 1, 2015, S.P. met with his social worker and updated his transitional independent living plan. He agreed to the goals of enrolling in adult school and researching transitional housing programs. The next day, July 2, 2015, the juvenile court established nonminor jurisdiction over S.P., who was not present at the hearing. This turned out to be the last day DPSS had contact with S.P.
A transitional independent living case plan is defined as "the nonminor dependent's case plan, updated every six months, that describes the goals and objectives of how the nonminor will make progress in the transition to living independently and assume incremental responsibility for adult decisionmaking, the collaborative efforts between the nonminor and the social worker . . . and the supportive services as described in the transitional independent living plan . . . to ensure active and meaningful participation in one or more of the eligibility criteria described in paragraphs (1) to (5), inclusive, of subdivision (b) of Section 11403, the nonminor's appropriate supervised placement setting, and the nonminor's permanent plan for transition to living independently, which includes maintaining or obtaining permanent connections to caring and committed adults." (§ 11400, subd. (y).)
On August 1, 2015, Ferree's reported S.P. had left with all of his belongings. S.P. said he was going to live with a friend and did not give Ferree's an address or telephone number. On October 16, 2015, DPSS filed an ex parte application seeking to terminate dependency. S.P.'s social worker informed the court she had been unable to locate him since he left his group home.
On October 28, 2015, DPSS filed a section 391 report to support its termination recommendation. The social worker reported she had discussed transitioning out of dependency with S.P. in February 2015, had given him "all his vital documents," informed him of Medi-Cal eligibility, and explained how he could petition to reenter extended foster care in the event he wanted to return prior to turning 21.
On December 7, 2015, DPSS filed an addendum report detailing its attempts to notify S.P. of the termination hearing. DPSS had sent notice to S.P.'s last known address and to S.P.'s biological father's address. S.P.'s social worker was unable to call him because S.P. did not have a cellular phone. She had unsuccessfully tried to reach S.P.'s father numerous times at his last known telephone number.
C. Termination of S.P.'s Nonminor Dependency
The court held the termination hearing on December 10, 2015, in S.P.'s absence. DPSS submitted a declaration of due diligence detailing its efforts to locate S.P. and inform him of the hearing. S.P.'s social worker and her assistant had searched the Federal Bureau of Prisons website, spoken with employees of the California Department of Corrections and Riverside County Jail, searched welfare and voting records, and submitted an inquiry to the postmaster regarding various known addresses for S.P. and his relatives. The social worker also attempted to reach the "relatives [and] neighbors" she had come into contact with during S.P.'s dependency. The declaration described a total of 13 searches.
Each search description in the declaration states DPSS was looking for information "on the absent parent." We take this to be a typographical error and assume the phrase should instead read "on the absent dependent."
Because DPSS's search efforts were unsuccessful and because the last few times S.P. had talked to his social worker he had expressed a desire to terminate his dependency, counsel for DPSS recommended termination. Counsel added, "[S.P. is] aware that he is welcome to come back when he is ready to proceed with or be a non-minor dependent."
S.P.'s counsel acknowledged that "no one has seen [S.P.] since" he left his group home in August 2015. However, she was critical of the search efforts, arguing DPSS should have tried to find him "in and around the school that he was hoping to go to" and should have "look[ed] to his siblings and friends."
The court found DPSS had made reasonable efforts to locate S.P., noting the standard did not require DPSS to do "everything that you could have done or we could think of." In considering whether termination was in S.P.'s best interest, the court observed S.P. was an adult who had left his placement and expressed no interest in continuing his dependency. The court stated: "[I]t is unfortunate because the court does encourage non-minor dependents to take advantage of the program; but the old saying, 'you can't help those that don't want to be helped.' [¶] And there is a safety valve. If [S.P.] . . . presents himself to the court, he can petition the court for re-entry." The court terminated S.P.'s nonminor dependency but retained general jurisdiction to allow S.P. to petition to resume dependency in the future.
A. Terminating Dependency Under Section 391
"While the juvenile court may not acquire jurisdiction over a person who is 18 years of age or older, once it has obtained jurisdiction of a minor it may retain jurisdiction until the dependent child turns 21." (In re Holly H. (2002) 104 Cal.App.4th 1324, 1330 (Holly H.); § 303.) "Conversely, under section 390, the dependency petition may be dismissed any time before the minor reaches age 21 'if the court finds that the interests of justice and the welfare of the minor require the dismissal, and that the parent or guardian of the minor is not in need of treatment or rehabilitation.' " (Holly H., supra, at p. 1330.)
"In 2000, the Legislature added section 391 to the Welfare and Institutions Code . . . in response to concerns that dependent children who had reached the age of 18 were being removed from the dependency system before they had adequate skills or resources to support themselves, and evidence that 45 percent of these young persons became homeless within a year after leaving the foster care system." (Holly H., supra, 104 Cal.App.4th at pp. 1330-1331.) "In 2008, in order to improve outcomes for children who aged out of foster care, Congress passed the Fostering Connections to Success and Increasing Adoptions Act of 2008. (Pub.L. No. 110-351 (Oct. 7, 2008) 122 Stat. 3949.) Among other things, the 2008 act provided federal funding to reimburse states for part of the cost of providing maintenance payments to eligible youths who remained in foster care after their 18th birthdays, so long as those youths had not yet reached their 21st birthdays and were either enrolled in school, employed at least 80 hours a month, or participating in 'an activity designed to promote or remove barriers to employment.' " (In re A.A. (2016) 243 Cal.App.4th 765, 772 (A.A.).) In 2010, California passed Assembly Bill No. 12 (A.B. 12) in order to take advantage of expanded federal foster care funding. A.B. 12 permits a juvenile court to continue to exercise dependency jurisdiction and provide foster care benefits to eligible nonminors until the age of 21. (A.A., at p. 773.)
To determine a nonminor's eligibility for continuing dependency jurisdiction and A.B. 12 benefits, the juvenile court is required to conduct a hearing under section 391. "Section 391 provides that the court 'shall continue' dependency jurisdiction over (and order continuing benefits for) a nonminor if he or she 'meets the definition of a nonminor dependent as described in subdivision (v) of Section 11400,' unless the court finds that the nonminor 'does not wish to remain subject to dependency jurisdiction' or 'is not participating in a reasonable and appropriate transitional independent living case plan.' (§ 391, subd. (c)(1).)" (A.A., supra, 243 Cal.App.4th at p. 773.) The juvenile court has broad discretion to retain or terminate jurisdiction and we review the court's actions for abuse of that discretion. (Id. at p. 772; § 391.)
It is undisputed S.P. did not meet the statutory criteria for nonminor dependency status at the time of his section 391 hearing—he did not wish to remain subject to dependency jurisdiction and he was not participating in his transitional independent living case plan. (§ 391, subd. (c)(1); see also A.A., supra, 243 Cal.App.4th at pp. 774-775 [trial court properly found nonminor did not wish to remain subject to dependency jurisdiction where he told his social worker he was not interested in continuing dependency despite previously vascillating on the subject].) S.P.'s counsel argues DPSS failed to satisfy three of its obligations under section 391 and the proper remedy is reversal with directions to "reinstate jurisdiction over [S.P.] unless and until [DPSS] provides the juvenile court the legally requisite evidentiary basis to terminate jurisdiction." We address each of these obligations in turn.
B. Efforts to Locate S.P. (Section 391, Subdivision (b)(1))
Section 391, subdivision (b)(1) requires the child welfare department to ensure the dependent nonminor is present in court "or document reasonable efforts made . . . to locate the nonminor when the nonminor is not available." S.P.'s counsel contends DPSS failed to make reasonable efforts to locate him before the termination hearing.
We are not aware of any case law analyzing what constitutes "reasonable efforts" to locate an unavailable nonminor under section 391, but where the concept is used in other aspects of dependency cases, it is synonymous with "good faith" efforts tailored to the particular facts of the case. (See, e.g., In re Justice P. (2004) 123 Cal.App.4th 181, 188 [duty to provide notice of a pending action to a missing parent]; In re K.C. (2012) 212 Cal.App.4th 323, 329 [duty to provide reasonable family reunification and maintenance services].) In the analogous context of a missing parent, "the issue becomes whether due diligence was used to locate the parent. [Citations.] The term 'reasonable or due diligence' ' "denotes a thorough, systematic investigation and inquiry conducted in good faith." ' " (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
S.P.'s counsel argues DPSS never submitted its declaration of due diligence to the juvenile court and as a result, it is impossible to tell what efforts DPSS undertook to locate S.P. In fact, DPSS did submit the declaration to the juvenile court (indeed, S.P.'s counsel discussed its contents during the hearing) and the declaration is part of the appellate record.
DPSS sought to augment the appellate record with the declaration of due diligence, and S.P.'s counsel did not oppose that motion. We deemed the motion a request to take judicial notice, granted it as to the declaration (exhibit A), and reserved our ruling on exhibit B, a minute order in S.P.'s sister's dependency, for consideration with this appeal. We now grant the request with regard to exhibit B. (Evid. Code, § 452.)
The contents of the declaration demonstrate S.P.'s social worker made numerous attempts to locate S.P. She and her assistant searched federal and California prisons, Riverside County's jail, as well as internet, voting, and welfare databases. She also sent various inquiries to the postmaster for the addresses she had on file for S.P. In addition to these searches, she reached out to S.P.'s group home, as well as the "relatives [and] neighbors" she had contact with "through the course of the investigation and/or providing services to [S.P.]." Other reports submitted by DPSS show the social worker mailed notice of the termination hearing to S.P.'s last known address and "made numerous contacts with [S.P.'s] care providers to discuss [his] possible location." Our review of this evidence leads us to conclude the social worker's search efforts were diligent and systematic and the juvenile court acted within its discretion in finding DPSS satisfied the reasonable efforts standard.
In contending otherwise, S.P.'s counsel argues DPSS should have tried contacting his younger sister, J.P., and should have searched "near the school he hoped to attend," as well as the restaurant where he had worked as a busboy. A campus search was not a viable option for DPSS because S.P. never identified an adult school he wanted to attend despite agreeing to do so as part of his transitional independent living plan. As for the restaurant, the record does not indicate whether S.P. was still working as a busboy when he left Ferree's to live with friends in August 2015, but we assume the social worker asked whether S.P. was still working during one of the many conversations she had with Ferree's staff after he moved out. Regarding S.P.'s sister, it is not clear from the record that she was not included in the "relatives" the social worker attempted to contact. In any event, even if these were viable options, as the trial court correctly reasoned, DPSS was not required to follow every conceivable lead in order to find S.P.
Moreover, even if we were to conclude DPSS's search efforts were inadequate, any error in proceeding without S.P. was harmless under these circumstances because S.P. was not eligible for nonminor dependency and his counsel cannot make a showing he desired to give testimony likely to affect the outcome of the hearing. In short, S.P. had already been informed of his dependency options (see part II.D, post); had already been provided all of his exit documents; had told his social worker on numerous occasions he did not want to continue as a dependent; and did not meet section 391's criteria for continuing dependency.
C. The Section 391 Report (Section 391, Subdivision (b)(2))
Section 391, subdivision (b)(2) provides that prior to any hearing at which the court is considering terminating jurisdiction over a nonminor, the child welfare department shall submit a report that "describ[es] whether it is in the nonminor's best interests to remain under the court's dependency jurisdiction." (§ 391, subd. (b)(2).)
S.P.'s counsel's contention DPSS "did not file" a section 391 report is demonstrably wrong. --------
"On multiple occasions since his last Court hearing on July 2, 2015 [in which the court established nonminor dependency jurisdiction], [S.P.] had stated he was not interested in participating in extended foster care and had plans to leave the group home. On August 1, 2015, [S.P.] packed all his belonging and left his group home placement informing them he was moving in with a friend. [DPSS] has not heard from [S.P.] since July 2015.
"On February 23, 2015, [S.P.] was informed of his right to petition the Court to resume jurisdiction as [a nonminor dependent] should his current dependency be terminated and should he wish to reinstate it prior to age 21. [S.P.] was provided with his birth certificate, social security card, health and educational passport, and pictures from the file upon turning eighteen. He was informed of his Medi-Cal eligibility until the age of 26."
Elsewhere in the report, the social worker noted that, upon moving out, S.P. "did not provide the group home with a forwarding address nor telephone number. He simply stated he was moving in with a friend. Since moving out of his approved placement, [S.P.] has not made contact with [DPSS] to provide his current whereabouts or circumstances." She added she had made numerous contacts with S.P.'s group home to discuss his possible location. She was unable to comment on S.P.'s current perception of his needs because she had no way of contacting him, however, she noted he had stated before leaving his placement that he no longer wanted to participate in extended foster care.
The social worker detailed the services DPSS had been offering S.P. up until he left his placement, which included medical, dental, mental health, educational, case management, and employment services, as well as monthly in-person meetings. She noted S.P. was enrolled in a transitional independent living plan that had been finalized on July 2, 2015, but had not been participating in the plan because he was avoiding contact with DPSS. She concluded the report by recommending termination "as [S.P.] fails to show any interest in Extended Foster Care pursuant to W&IC 11403 (b), and his whereabouts remain unknown."
Counsel argues we must reverse the termination order because DPSS's analysis of whether termination was in S.P.'s best interest was too brief and "terse." As an initial matter, the statute contains no legal standard for a best interest analysis under section 391, subdivision (b) nor does it condition the court's authority to terminate jurisdiction on the sufficiency of the best interest analysis. The only failure on the part of a child welfare department that divests termination authority from the juvenile court is the failure to provide a nonminor with the "information, documents, and services" listed in section 391, subdivision (e).
In any event, assuming we are required to review whether DPSS's analysis was sufficiently detailed, we find it is. DPSS tried to provide S.P. with meaningful services and convey the benefits of participating in a transitional independent living plan and receiving extended foster care benefits, but S.P. repeatedly evaded those efforts. Given S.P.'s avoidance of DPSS, we do not see how his social worker could have attained any further information to augment the best interest analysis. As the court explained in Holly H., when a nonminor refuses services and does not wish to continue dependency, it cannot be said that dependency is in his best interest because his "continued participation in the juvenile dependency system cannot reasonably be expected to prevent any future harm when [he] has effectively rejected nearly all offers of assistance from the department." (Holly H., supra, 104 Cal.App.4th at p. 1337.)
Finally, even if we assume the juvenile court erred by terminating S.P.'s dependency without requiring DPSS to provide a fuller best interest analysis, the error would not be prejudicial. Without knowing S.P.'s whereabouts, DPSS cannot augment its best interest analysis and, more fundamentally, no augmentation would change the fact S.P. failed to meet the criteria for continuing nonminor dependency.
Counsel mistakenly relies on In re Nadia G. (2013) 216 Cal.App.4th 1110 (Nadia G.) as mandating reversal. In that case, the appellate court reversed the order terminating jurisdiction as "premature" because the department—which recommended continuing Nadia's dependency—never filed a section 391 report despite the juvenile court's order directing it to do so. (Nadia G., supra, at p. 1121.) The appellate court concluded the department was attempting to "block" termination of the dependency by "flout[ing]" the order to file the report. (Nadia G., at p. 1123.) Because DPSS did not recommend continuing S.P.'s dependency and did file a section 391 report, the conclusion in Nadia G. has no bearing on this case.
D. Advice About Dependency Options (Section 391, Subdivision (b)(4))
When a nonminor "has indicated that he or she does not want dependency jurisdiction to continue," section 391, subdivision (b)(4) requires the child welfare department to address in its report "the manner in which the nonminor was advised of his or her options, including the benefits of remaining in foster care, and of his or her right to reenter foster care and to file a petition pursuant to subdivision (e) of Section 388 to resume dependency jurisdiction prior to attaining 21 years of age." (§ 391, subd. (b)(4).) S.P.'s counsel acknowledges DPSS provided S.P. with this option information in February 2015, but argues DPSS should have reiterated the information closer to the termination hearing. Counsel argues it was unreasonable for DPSS to discuss dependency options with S.P. 10 months before the termination hearing because "it is safe to assume he lacked clarity, and by extension, retention."
Section 391, subdivision (b)(4) does not mandate a time period within which DPSS must discuss dependency options with a nonminor and we decline to read one into the statute. The record demonstrates S.P.'s social worker discussed dependency options with S.P. at least twice leading up to his 18th birthday, not just in February 2015 but also some time before DPSS filed its January 2015 post permanent plan review report. The record also demonstrates S.P. had no problem understanding those options and was aware of his right to petition the court to resume jurisdiction any time before he turns 21. Under these circumstances, we find no violation of section 391, subdivision (b)(4).
We are sensitive to counsel's concern that 18-year-old S.P. still needed the juvenile court's protection and may not have been the most accurate judge of his best interest in August 2015 when he severed contact with DPSS. However, as the court in Holly H. explained, "once a young person has reached majority the juvenile court must give substantial deference to the youth's wishes before deciding to retain jurisdiction." (Holly H., supra, 104 Cal.App.4th at p. 1327.) At that point, "the court may not, and should not, force [a nonminor] to accept its services. . . . [¶] Despite the many impediments to a secure and productive life that [the nonminor] still confronts, the state can no longer paternalistically insist that [he] live [his] life as the juvenile court thinks best." (Id. at pp. 1337-1338.)
Fortunately, the juvenile court system contains a safety valve. If S.P. changes his mind before he turns 21 and decides he would like to receive A.B. 12 benefits, he can petition the court to resume jurisdiction.
We conclude DPSS satisfied its obligations under section 391 and the juvenile court properly terminated nonminor dependency jurisdiction over S.P.
The order terminating S.P.'s nonminor dependency is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: McKINSTER
Acting P. J. CODRINGTON