I really liked how Justice Ikola began this opinion. It reads:
"Mother’s petition for writ of mandate arises from an order terminating
reunification services and setting a Welfare & Institutions Code section 366.26 hearing
(.26 hearing). Mother was offered reunification services for six months. For the first
three months, her participation in her case plan was minimal. For the last three months, it
was excellent. Nonetheless, the court terminated reunification services, finding mother
had “failed to participate regularly and make substantive progress” in her case plan.
(§ 366.21, subd. (e)(3).) We conclude that finding is not supported by substantial
evidence and thus we will issue the requested writ of mandate."
That's really good. Short. To the point. And sounds spot on. Everything you want from an opening paragraph of an opinion.
So then I continue to read the opinion. Yep, during the first three weeks, things are bad. Very bad. I am sitting here reading about all the terrible things that have happened to the kid, all the incredibly bad parenting, the escalating methamphetamine abuse by the mother, etc. And I'm thinking: "Whoa. This is not good. I totally understand why they want to take away her kid. This is not good. Not at all. I get it." At the same time, I remember the introduction. Justice Ikola told me at the outset that things stunk for a while. Moreover, that during those first three months, things were not good. Fear not, I'm assured. Things will get better.
Still, before Social Services intervenes, things are really, really bad.
And, true enough, even after they intervene, things continue to stink. And I think that Justice Ikola may even undersell how bad those first three months are. He says that the mother's participation in the case plan is "minimal". Yeah, I guess that's one word you could use for missing every single drug test, and also getting arrested and convicted during this period for spousal battery. You might even want to use a little harsher word to describe this pregnant-at-15-continuing-methamphetamine-addict-who-neglects-and-harms-her-children. But okay. For now, we'll just say that her progress during the first three months was "minimal".
But, remember, she gets better. During the next three months, her progress "was excellent". That's why the Court of Appeal reverses.
And, indeed, excellent it was. During those subsequent three months, Mother was indeed doing a ton of good things. Wasn't using methamphetamine any more, and, as a result, was making real progress.
Just one more thing. One thing that Justice Ikoka doesn't mention in the sparking introduction.
During those "excellent" three months, she's in jail.
To me, that makes a difference. A big one.
If you were to write an introduction that says "Yeah, Mom was a mess for three months, but then for the next three months cleaned up her act," I'd think one thing. But it's a fair piece different to say "Yes, Mom was a mess for three months, and then got thrown into jail, but in jail, when she finally was no longer able to use, she actually did a good job." Because when you're in jail, your drug use really isn't under your control anymore. So the fact that you're now "clean" when you're compelled to be is a far less accurate predictor of what you'll be once you're released. Especially when, as here, the person at issue was previously in prison, got clean and did incredibly well there, and then promptly relapsed and did all the events at issue in the present action once released.
The Court of Appeal says that there's "no substantial evidence" to support the trial court's ruling. But I wonder if that's really right. There's a technical argument that perhaps the Court of Appeal's ruling, since there's an underlying two-step doctrinal process that's not all that worth getting into. But on a larger level, at a minimum, the introduction nonetheless seems a bit misleading to me. Or at least I was somewhat surprised when I first read the introduction and then read the rest of the case.
Because I can't see why a trial court would deny reunification services to a parent who simply messed up for three months but then got her act together for the next three. But I totally can see why a trial court might deny reunification services to a parent who is entirely off the rails for three months (even after getting busted by Social Services), gets her act marginally together only while incarcerated, and has a demonstrated history of relapsing -- in an incredibly bad and dangerous way to her kids -- once she's no longer in prison and again has access to her drug of choice.
Those two situations feel very, very different to me.
