Renee J. v. Superior Court

KENNARD, J., Dissenting.

When a child is removed from a parent’s custody as part of a dependency proceeding (Welf. & Inst. Code, § 300), 1 the juvenile court must normally order the social services agency to provide reunification services to the child and the parent. Without such services, a parent whose child has been removed has little hope of ever regaining custody of the child.

But reunification services need not be provided in certain instances specified by statute. Subdivision (b)(10) of section 361.5 (section 361.5(b)(10)) describes two such instances: When past efforts at reunification proved unsuccessful after removal of another child, and when parental rights to another child have been severed. A clause at the end of section 361.5(b)(10) states that reunification services must nonetheless be afforded if the parent has made a “reasonable effort” to treat the problems that led to the other child’s removal. At issue here is whether this clause (the reasonable effort clause) applies only when parental rights to the other child were severed, or whether it also applies when reunification services were unsuccessfully provided after removal of the other child.

The majority concludes that the reasonable effort clause applies only when parental rights were severed. I disagree.

*752 I. Facts

Petitioner Renee J. and her boyfriend Robert R. had a long history of drug use and domestic violence. As a result, the Orange County Social Services Agency (SSA) removed their children, Anthony and Christopher, and Renee’s daughter Dylan. After reunification services proved unsuccessful, the superior court terminated the parental rights of Renee and Robert as to those three children.

Thereafter Renee and Robert had Sayrah R., the subject of this proceeding, who was bom in October 1998. According to Renee, she stopped using drags when she was pregnant with Sayrah; when Sayrah was four months old, Renee broke up with Robert, taking Sayrah with her. Two months later she was charged and convicted of burglary and forgery. Sentenced to 60 days in jail, she failed to turn herself in to serve her sentence, and a bench warrant was issued for her arrest. When arrested on that warrant in January 2000, she was driving a car. Sayrah was in a child safety seat that lacked the required base and was not properly attached. Renee told police she was a transient, and she could not name a responsible adult who would care for Sayrah during incarceration.

SSA filed a petition asking the superior court to declare Sayrah a dependent child. The petition alleged that Renee’s negligence in the matter of the safety seat showed a lack of concern for Sayrah’s safety; that Renee was unable to care for Sayrah because of her history of drug abuse, her criminal history, her incarceration on the bench warrant, and her lack of a permanent residence; and that Renee had abused or neglected Sayrah’s siblings and there was a substantial risk she would abuse or neglect Sayrah. The superior court found the allegations of the petition true.

At the time of the dispositional hearing, Renee was separated from Robert (who had apparently left the state), and there was no evidence that she had resumed using drugs. SSA argued that under section 361.5(b)(10), it need not provide reunification services to Renee because it had afforded them without success after removal of Renee’s other children. The superior court construed section 361.5(b)(10) as entitling Renee to reunification services if she had made a reasonable effort to treat the problems that led to the removal of her other children, but it ruled that she had not made such an effort. It therefore refused to order reunification services.

Renee filed a petition for writ of mandate in the Court of Appeal to challenge the superior court’s ruling. The Court of Appeal agreed with the superior court that Renee was entitled to reunification services if she had *753 made a reasonable effort to treat her problems, but it held that the superior court had abused its discretion when it ruled that Renee had not made such an effort. We granted review, limited to the question of whether a parent who made a reasonable effort to treat the problems that led to the previous removal of a child or children may obtain reunification services when another child is later removed in a dependency proceeding.

II. The Statutory Scheme

Subdivision (a) of section 361.5 sets forth the general rule that a parent whose child has been removed in a dependency proceeding must be afforded reunification services. Subdivision (b) of that section lists the relatively extreme or unusual circumstances in which reunification services are not required. These circumstances include death of a sibling from abuse or neglect, severe sexual abuse or physical harm, repeated physical or sexual abuse, parental conviction of a violent felony, and willful abduction of the child from placement by the parent.

At issue here are the circumstances described in section 361.5(b)(10). That provision states that reunification services need not be afforded if the superior court finds: “That (A) the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a), or (B) the parental rights of a parent or guardian over any sibling or half-sibling of the child had been permanently severed, and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian.” (Italics added.) The superior court and the Court of Appeal here concluded that the reasonable effort clause, italicized above, applies to both subparts of section 361.5(b)(10). SSA argues that it applies only to subpart (B).

Ordinarily, the removal of a child in the course of dependency proceedings would require reunification services. Thus, subpart (A) of section 361.5(b)(10) applies to most parents whose children were removed in dependency proceedings. Subpart (B), however, applies if reunification services for the sibling in a dependency proceeding were denied because of circumstances described in subdivision (b) of section 361.5, which we described earlier. Subpart (B) also applies when parental rights are severed outside of the dependency system. This occurs when a child has been abandoned or *754 voluntarily relinquished for adoption, or when a third party brings an action to sever parental rights after the parent has been convicted of a felony or is seriously mentally ill. (Fam. Code, § 7800 et seq.)

III. Discussion

At issue here is how to construe section 361.5(b)(10). In performing that task, we are guided by these principles: “The aim of statutory construction is to discern and give effect to the legislative intent. (Phelps v. Stostad (1997) 16 Cal.4th 23, 32 [ 65 Cal.Rptr.2d 360 , 939 P.2d 760 ].) The first step is to examine the statute’s words because they are generally the most reliable indicator of legislative intent.” (Summers v. Newman (1999) 20 Cal.4th 1021, 1026 [ 86 Cal.Rptr.2d 303 , 978 P.2d 1225 ].) I therefore begin with the language of section 361.5(b)(10).

The majority insists that, “as a matter of English usage,” nothing in the words of section 361.5(b)(10) indicates whether the Legislature intended the section’s reasonable effort clause to apply only to subpart (B) of that section, or to subparts (A) and (B). (Maj. opn., ante, at p. 743.) I disagree. As I shall explain, when the words of section 361.5(b)(10) are given their “usual and ordinary meaning” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [ 7 Cal.Rptr.2d 238 , 828 P.2d 140 ]), the reasonable effort clause at issue here logically applies to both subparts of that section.

Section 361.5(b)(10), as discussed earlier, does not require reunification services if the superior court finds: “That (A) the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify . . . after the sibling or half-sibling had been removed ... or (B) the parental rights of a parent . . . over any sibling or half-sibling of the child had been permanently severed, and that, according to the findings of the court, this parent. . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent. . . .” (Italics added.) As a matter of syntax, the second italicized “that” in that passage, which prefaces the reasonable effort clause, logically pairs with the first italicized “that” at the beginning of the section. Therefore, the reasonable effort clause after the second “that” necessarily applies to the entire section, not merely to subpart (B). Had the Legislature intended the reasonable effort clause to apply only to subpart (B), it could easily have omitted the second italicized “that.”

Furthermore, in the reasonable effort clause the Legislature uses the phrase “the problems that led to removal ...” (italics added), which suggests that the clause applies to both subparts (A) and (B). As previously *755 explained (see pt. II, ante), some parents fall under the provisions of subpart (B) (termination of parental rights to a sibling of the child without reunification services) not because the sibling was removed, but because the parents abandoned the sibling or voluntarily gave the sibling up for adoption. If anything, the word “removal” appears to refer to subpart (A), which uses the word “removed.” Had the Legislature intended the reasonable effort clause to refer only to subpart (B), it would most likely have said “the problems that led to termination of parental rights,” rather than “the problems that led to removal,” as currently stated in the statute.

Aside from the statutory language, an examination of the policy concerns underlying the Legislature’s decision to include the reasonable effort clause in section 361.5(b)(10) shows that it intended the clause to apply to both subparts of that provision. The purpose of the clause is to give a parent who has made a reasonable effort to deal with the problems that led to removal of one child a chance at reunification when a second child is removed. For example, if one child is removed because the parent is addicted to drugs, and the parent later gives up drugs but another child is thereafter removed because the parent has an abusive partner, the parent should, in the Legislature’s view, be given a chance to reunify with the second removed child.

This policy applies equally to parents in subpart (A) (parents for whom previous reunification services were unsuccessful) as it does to parents in subpart (B) (parents whose parental rights were severed). As I have explained (see pt. II, ante), included in subpart (B) are parents who never received reunification services before losing custody of a child in an earlier proceeding because their treatment of that child was so bad that it fell within one of the statutorily described circumstances in which the court could deny reunification services. (See § 361.5, subd. (b).) I can think of no reason why the Legislature would have chosen to give such parents a chance at reunification when a second child became a dependent of the juvenile court, while denying that opportunity to parents who were unsuccessful in reunifying with a previously removed child. Yet that is the effect of the majority’s holding today.

One more point. This court generally construes laws in a manner that avoids doubts about their constitutionality. (See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ].) This rule also applies when one of two possible constructions of a statute raises doubts about the constitutionality of another part of the statutory scheme. That is the case here. The majority’s construction of the reasonable effort clause raises doubts about the constitutionality of another part of the Legislature’s statutory scheme for the severance of parental rights to dependent children, as I explain below.

*756 Under California’s statutory scheme, parental rights may be permanently severed when a superior court finds by a preponderance of the evidence that returning the child to the parent’s custody would create a substantial risk of detriment to the child. (See §§ 366.21, subd. (e), 366.22, subd. (a), 366.26, subd. (c)(1).) In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 [ 19 Cal.Rptr.2d 698 , 851 P.2d 1307 ], a majority of this court rejected a due process challenge to that standard. As part of the basis for its decision, the majority noted that before a final determination by the superior court whether to sever a parental relationship, “there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent.” (Id. at p. 253, italics added.) I dissented in Cynthia D., reasoning that “the basic requirements of procedural due process do not allow the state to terminate parental rights in such a proceeding without clear and convincing evidence of a substantial risk of detriment to the child.” (Id. at p. 257 (dis. opn. of Kennard, J.).)

Under the majority’s decision today, a parent who, after failing to reunify with one removed child, makes a reasonable effort to treat the problems that caused that child’s removal but then suffers the removal of a second child, may not, as to the second child, receive the “series of hearings involving ongoing reunification efforts” that the majority in Cynthia D. v. Superior Court, supra, 5 Cal.4th at page 253, relied on in upholding the constitutionality of the “preponderance of evidence” standard established by the statutory scheme. Thus, the majority’s holding here weakens the underpinnings of Cynthia D., and it raises doubts about the constitutionality of the preponderance of evidence standard that the Cynthia D. majority upheld. To avoid those constitutional issues, I would construe the reasonable effort clause broadly, applying it to all parents in section 361.5(b)(10).

Here, the Court of Appeal agreed with the superior court that the reasonable effort clause applied to Renee, but it disagreed with the superior court’s finding that she was not entitled to reunification services with Sayrah because she had not made a reasonable effort to treat the problems that had led to the removal of her other children. Were the issue properly before this court, I might well find that the evidence supports the superior court’s ruling that Renee did not make a reasonable effort to deal with her problems. But that issue is not before us. In its petition for review, SSA did not challenge the Court of Appeal’s conclusion that Renee had made reasonable efforts to treat her problems; instead, it asserted that the reasonable effort clause was inapplicable. Therefore, I would affirm the judgment of the Court of Appeal, *757 which applied the reasonable effort clause in reversing the superior court’s ruling that Renee was not entitled to reunification services with reference to Sayrah.

Unless otherwise stated, all statutory references are to the Welfare and Institutions Code.