Orange County Social Services Agency v. Sheri W.

I concur in the result and the analysis contained in part II of the majority opinion. I also agree with the result in part I, but I reach that conclusion by a different route.

In this case, at the 12-month review hearing the juvenile court found reasonable family reunification services had been offered to mother (Welf. & Inst. Code, § 366.21, subd. (f)) 1 and set the matter for a permanency planning hearing pursuant to section 366.26. (§ 366.21, subd. (g)(3).) In part I, the majority conclude a writ would have been the only way to attack the juvenile court’s finding on the reunification services prior to the permanency planning hearing. (Maj. opn., ante, at p. 1406, fn. 6.) Nonetheless, the majority hold the mother’s right to challenge the finding was preserved for appeal by concluding that, while she could have attacked it by a writ, her failure to do so did not preclude her from raising the issue by appeal from the order terminating her parental rights. (Maj. opn., ante, at pp. 1404-1406.)

A different analysis is required under In re Megan B. (1991) 235 Cal.App.3d 942 [ 1 Cal.Rptr.2d 177 ]. In Megan B., this court held that subdivision (j) of section 366.25 (and by parity of…

*1402 Opinion

In this appeal we are faced with two troubling and recurring problems, one substantive, the other procedural. The substantive problem is this: If a minor becomes a dependent under the Welfare and Institutions Code because the minor’s parent is incarcerated, what reunification services are appropriate and reasonable? The issue is important because reunification services are a major component of the “service plan,” and a parent’s failure to comply with the service plan almost invariably leads to termination of parental rights. If a parent cannot avail himself or herself of reunification services because of incarceration, it is a fait accompli that the parent will fail to comply with the service plan. That is what occurred here. While “use a gun, go to prison” may well be an appropriate legal maxim, “go to prison, lose your child” is not. We therefore reverse the judgment. We also hold that all issues raised by the parent in this appeal are properly before us, even though she did not seek extraordinary relief at an earlier stage of the proceedings.

Facts

The minor, Brittany S., was born on March 27, 1989. Less than eight months later, and while Brittany was living…