Supreme Court of California Justia
Docket No. S129821
P. ex rel. Dept. of Conservation v. El Dorado Co. SC S116870.PDF - S116870.DOC Aug 08 2005 Sara M. v. Super. Ct.

Filed 8/8/05

IN THE SUPREME COURT OF CALIFORNIA

SARA M.,
Petitioner,
S129821
v.
) Ct.App.
5
F045972
THE SUPERIOR COURT
OF TUOLUMNE COUNTY,
Tuolumne
Co.
Respondent;
Super.
Ct. Nos. JV5731, JV5732 &
JV5733
TUOLUMNE COUNTY DEPARTMENT )
OF SOCIAL SERVICES,
Real Party in Interest.

In this case, three children were removed from the custody of their mother,
petitioner, Sara M. (hereafter mother), on grounds that she had failed to protect
them and they had suffered serious emotional damage. (Welf. & Inst. Code,
§ 300, subds. (b), (c).)1 The juvenile court declared them dependents of the court
and began reunification services to try to reunite the family. After six months of
reunification services, the court found that mother had failed to contact or visit the
children. (§ 366.21, subd. (e).) Under section 366.21, subdivision (e), and

1
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
1


California Rules of Court, rule 1460(f)(1)(B),2 it terminated reunification services
and scheduled a hearing to establish a permanent plan for the children. (See
§ 366.26.)
In this writ proceeding, mother contends that section 366.21, subdivision
(e), does not permit a court to terminate reunification services after only six
months due to a parent’s failure to contact or visit a child, unless the child had
originally been removed from the parent’s custody because of abandonment.
Because she did not originally abandon the children, she argues, she is entitled to a
full year of reunification services before the court may begin to consider a
permanent plan. She also argues that rule 1460(f)(1)(B) is invalid because it is
contrary to the statute. The Court of Appeal agreed with her.
Section 366.21 can be read as mother and the Court of Appeal in this case
read it. But it can also be read differently. Previous Court of Appeal decisions, as
well as the Judicial Council in adopting rule 1460(f)(1)(B), have long interpreted
section 366.21, subdivision (e), as permitting a court to terminate reunification
services whenever a parent fails to contact or visit a child for six months after
those services commenced. If this were a matter of first impression, the question
would be close, but we are not writing on a clean slate. At this late date, we will
not overturn the earlier appellate court decisions and the applicable rule of court.
Mother also claims her failure to contact or visit her children during this
time was excusable because the Tuolumne County Department of Social Services
(hereafter department) effectively prevented her from visiting them. As we
explain, we disagree.

2
All further rule references are to the California Rules of Court unless
otherwise indicated.
2


I. FACTUAL AND PROCEDURAL HISTORY
In November 2003, the department filed juvenile dependency petitions on
behalf of mother’s three children, who were four, seven, and eight years old at the
time, under section 300, subdivisions (b) (failure to protect) and (c) (serious
emotional damage). The petitions alleged, among other things, that mother failed
to provide the children with “adequate food, clothing, and shelter,” and that she
was “unable to provide regular care for her children due to her substance abuse”
involving crack cocaine and methamphetamine. The juvenile court detained the
children. On December 9, 2003, it conducted the initial jurisdictional hearing.
Mother appeared at that hearing, and the court ordered her to participate in a drug
dependency program. The court set a contested jurisdictional hearing for
December 30, 2003.
Mother failed to appear at the December 30 hearing, and her attorney did
not know where she was. The juvenile court found it had dependency jurisdiction
under section 300, subdivisions (b) and (c). It ordered reunification services,
including visitation “as deemed appropriate by the case managing social worker
pursuant to” section 362.1, subdivision (a), and scheduled a six-month review
hearing. It also ordered mother to review, sign, and comply with the family
reunification plan. On January 13, 2004, 3 mother appeared before the juvenile
court sitting as the drug dependency court. She said that she had not received
notice of the previous hearing by mail until after it was conducted, but she also
acknowledged that the court had informed her of the hearing date when she
appeared in court on December 9, 2003. At the January 13 hearing, the court
ordered her to sign and comply with the family reunification case plan. She
signed the plan. It required mother, among other things, to stay free from illegal

3
All further dates are in the year 2004, unless otherwise indicated.
3


drugs, to show her ability to live free from drug dependency, and to comply with
all required drug tests. It conditioned her right to visit the children on her not
being under the influence of alcohol or drugs and not ingesting alcohol or drugs
before the visit.
Over the next six months, mother failed to comply with her drug
dependency treatment and reunification plans. According to the department’s six-
month review report prepared in June, the only time she visited her children was
on January 7. At that time, she had a “faint negative” test for methamphetamine
on a presumptive test and was permitted to visit. During that visit, mother
reportedly acted inappropriately and challenged the visitation rules.
Consequently, the visit ended early, and the department discontinued further visits
until mother agreed to abide by the visitation rules. Mother failed to appear at a
court hearing on February 3, and the court issued a bench warrant. At a hearing on
April 13, at which mother again did not appear, the court ordered her terminated
from the dependency drug court program because she failed to participate or
appear in hearings before that court.
On May 21, mother asked the department for permission to visit her
children. However, she admitted she was under the influence of
methamphetamine and marijuana, and she declined to take a urinalysis test. The
social worker denied visitation and told her that she must test “clean” on
presumptive tests to have visits rescheduled. Except for a voice mail message
mother left the department a few days later stating that she had not yet decided
what to do and would call again later, mother had no further contact with the
department before the next court hearing on June 22.
Mother appeared at the six-month review hearing on June 22. The court
told mother that it had “ordered you to do certain things, you haven’t done it.
There hasn’t been any contact, you’re not going to groups, you’re not testing.” It
4
told her she had “a couple of weeks to fall in line and . . . start doing what you
need to do . . . . If you don’t, then the Court’s going to terminate reunification
services.” It scheduled another hearing for July 13, and told mother to “get over to
your social worker and get with this program.”
A contested hearing was held on July 13, and then continued to July 15. A
supplemental report the department provided for the July 13 hearing stated that on
June 22, mother provided a random substance abuse test that was positive for
methamphetamine. She was arrested that day for driving under the influence. She
failed to take any scheduled substance abuse tests after June 22. She was arrested
on June 30 for possession of a controlled substance and drug paraphernalia,
although she denied that the drugs and paraphernalia were hers. On July 8, the
social worker called mother and asked why she had not complied with the court’s
directives. Mother said after her arrest she was unable to comply. She asked to
visit her children and was told she had to comply with the case plan and not be
under the influence of methamphetamine for a visit to occur.
The department recommended the court terminate reunification services
under section 366.21, subdivision (e), and schedule a hearing to establish a
permanent plan. It also recommended the court make certain statutory findings to
support these actions. The report indicated that the youngest child’s grandmother
wished to adopt him, and that the other two children might be placed with a
grandfather.
Mother testified at the July 15 hearing. She admitted that she had signed
the reunification case plan, but she said she did not fully understand it. She said
she attended about three “group meetings,” but then her “car had broken down and
stuff like that, so I failed to go to any more.” She said that if the court permitted
her to participate in reunification services for the next six months, she was
“hoping” that she could comply with the court’s orders. She hoped to be placed in
5
a rehabilitation program of some kind. Accordingly, she asked for six more
months of reunification services. She said that on May 21, when she asked to visit
her children, she declined to take a drug test “because I told [the social worker] I
was dirty for marijuana at the time.” After her arrest for driving under the
influence, she had no further drug testing.
At the end of the July 15 hearing, the court terminated reunification
services and scheduled a hearing on November 9 to establish a permanent plan. It
told mother that in June it had given her “another chance, perhaps to get into DDC
[dependency drug court], to give the Court a reason to extend [reunification]
services.” It noted the difficulty of balancing “the time it takes for someone to
actually get clean and sober and build some sort of a foundation so they can stay
that way, versus . . . what’s in the best interests of the children and that the
children be placed . . . in an appropriate supportive living environment, a safe
living environment. They just don’t always mesh.” It said it had no “reasonable
belief that the child will be returned to [mother] in the next six months.” It also
made the findings the department’s report recommended, including finding by
clear and convincing evidence that there had been no contact between mother and
the children in the last six months. In the meantime, the court ordered that the
youngest child be placed with his grandmother and the other two with their
grandfather.
Mother filed the instant writ petition challenging the order terminating
reunification services. The Court of Appeal granted the petition. It directed the
superior court to conduct a new six-month review hearing and to reinstate
reunification services for an additional six months. We granted the department’s
petition for review.
6
II. DISCUSSION
A. Interpretation of section 366.21, subdivision (e)
“California has a comprehensive statutory scheme establishing procedures
for the juvenile court to follow when and after a child is removed from the home
for the child’s welfare. (§ 300 et seq.; [citation].) ‘The objective of the
dependency scheme is to protect abused or neglected children and those at
substantial risk thereof and to provide permanent, stable homes if those children
cannot be returned home within a prescribed period of time.’ [Citation.] When
the child is removed from the home, the court first attempts, for a specified period
of time, to reunify the family.” (In re Celine R. (2003) 31 Cal.4th 45, 52.) If, after
the specified time period has expired, the efforts to reunify the family have failed,
“ ‘the court must terminate reunification efforts and set the matter for a hearing
pursuant to section 366.26 for the selection and implementation of a permanent
plan. (§ 366.21, subd. (g).)’ ” (Ibid.) The hearing under section 366.26 is called a
permanency planning hearing. (In re Celine R., supra, at p. 52.)
In this case, the court terminated reunification efforts and scheduled a
permanency planning hearing. The permanency planning hearing does not
necessarily result in a loss of parental rights, but it very often does. (In re Celine
R., supra, 31 Cal.4th at pp. 52-53.) Accordingly, terminating reunification
services and setting the matter for a permanency planning hearing has potentially
serious consequences for a parent.
The issue here is whether the specified period of time in which the court
must provide reunification services had expired before the court set the
permanency planning hearing. Mother contends she was entitled to an additional
six months of services. This is a question of statutory interpretation. Generally,
subject to certain exceptions not relevant here that can extend the time period, if,
7
as here, the child is over three years of age when removed from the home, the
reunification period “shall not exceed” 12 months. (§ 361.5, subd. (a)(1).)4 The
court is also required to review the status of the child at least once every six
months after the initial dispositional hearing until the matter is finally resolved.
(§ 366, subd. (a)(1).) The initial six-month review hearing in this case was the one
begun on June 22, then continued to July 13 and finally to July 15.
Section 366.21, subdivision (e), governs this initial six-month review
hearing. The fifth paragraph of that subdivision is critical here and gives rise to
the present legal dispute. It provides: “If the child was removed initially under
subdivision (g) of Section 300 and the court finds by clear and convincing
evidence that the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a hearing pursuant to
Section 366.26 within 120 days. If the court finds by clear and convincing
evidence that the parent has been convicted of a felony indicating parental
unfitness, the court may schedule a hearing pursuant to Section 366.26 within 120
days.”
This paragraph was interpreted in In re Monique S. (1993) 21 Cal.App.4th
677 (Monique S.).) In that case, the child was initially removed from the mother
under subdivision (b), but not subdivision (g), of section 300. The mother, like
mother here, argued that section 366.21, subdivision (e), permitted the court to
terminate reunification services “after six months of no parental contact only for
those children initially removed under subdivision (g) (the parent’s whereabouts
are unknown).” (Monique S., supra, at p. 682.) The court disagreed: “We
interpret the Legislature’s placement of the comma after the word ‘unknown’ to
create an additional ground for setting the section 366.26 hearing, where ‘the

4
When the child is under the age of three, the maximum period of
reunification services is generally six months. (§ 361.5, subd. (a)(2).)
8


parent has failed to contact and visit the child,’ regardless of the initial grounds for
removal.” (Monique S., supra, at p. 682.)
The court found support for its interpretation in former rule 1460(f)(2)(A).
(Monique S., supra, 21 Cal.App.4th at p. 682.) The relevant subdivision of the
rule has been renumbered, but it is still substantially identical to the rule cited in
Monique S. Today, as relevant, it provides that the court may set the permanency
planning hearing at the initial six-month review hearing if: “(A) the child was
removed under section 300(g) and the court finds by clear and convincing
evidence that the parent’s whereabouts are still unknown; or [¶] (B) the court finds
by clear and convincing evidence that the parent has not had contact with the child
for six months; or [¶] (C) the court finds by clear and convincing evidence that the
parent has been convicted of a felony indicating parental unfitness . . . .” (Rule
1460(f)(1).)
The Monique S. court noted that the “[r]ules relating to the juvenile court
are ‘designed to implement the purposes of the juvenile court law by promoting
uniformity in practice and procedure and by providing guidance to judges,
referees, attorneys . . . and others participating in the juvenile court.’ (Rule
1400(b).) ‘Insofar as these rules are substantially the same as existing statutory
provisions relating to the same subject matter, these rules shall be construed as
restatements of those statutes . . . . [¶] Insofar as these rules may add to existing
statutory provisions relating to the same subject matter, these rules shall be
construed so as to implement the purposes of the juvenile court law.’ (Rule
1400(c)(1) & (2).) We conclude rule 1460(f)(2)(A) restates section 366.21,
subdivision (e), providing three discrete grounds for setting a selection and
implementation hearing after six months.” (Monique S., supra, 21 Cal.App.4th at
p. 682.) The court found its “interpretation allowing the selection and
implementation hearing to be set after six months of a parent’s failure to contact
9
and visit a child is consistent with the intent of the dependency scheme to provide
stability for abused, neglected and exploited minors. There is no purpose served
in continuing to offer services where a parent, absent extenuating circumstances,
makes no effort to reach out to his or her child for six months in the dependency
process.” (Id. at pp. 682-683.)
The Monique S. opinion was followed, albeit without independent analysis,
in In re Tameka M. (1995) 33 Cal.App.4th 1747, 1754, and cited with approval in
dicta in In re David H. (1995) 33 Cal.App.4th 368, 386, footnote 11.
The Court of Appeal in this case disagreed with Monique S. It concluded
that “the Legislature tied parental failure to visit or contact the child with a prior
adjudication of abandonment. We believe our interpretation is sound both
structurally and logically. For example, if we read the phrase ‘or the parent has
failed to contact and visit the child’ as standing apart from a previous adjudication
under section 300, subdivision (g), it would then also stand apart from the
requirement of a finding under clear and convincing evidence, a result which
makes no sense. Furthermore, it is not reasonable to assume the Legislature meant
that a failure to contact and visit the child alone is an independent ground for
advancing directly to the section 366.26 hearing when it carefully enumerated a
second ground, conviction of a felony indicating parental unfitness, in a separate
sentence and indicated that finding must be made by clear and convincing
evidence. [¶] Therefore, we interpret section 366.21, subdivision (e) as
establishing only two situations where the court can schedule a section 366.26
hearing at the six-month review: (1) when the child has been removed under
section 300, subdivision (g) and the court finds by clear and convincing evidence
the whereabouts of the parent is still unknown or the parent has failed to contact
and visit the child; or (2) when the court finds by clear and convincing evidence
10
the parent been convicted of a felony indicating parental unfitness. Either of these
circumstances reasonably justifies accelerating the section 366.26 hearing.”
Although the statute can be read as the Court of Appeal did here, over 15
years have passed since rule 1460 was promulgated, and 12 years have passed
since Monique S. interpreted the statute. For several reasons, we conclude that we
should not abruptly change the rule and this interpretation. Rule 1460(f)(1) is
unambiguous. The Judicial Council adopted the rule “pursuant to its constitutional
and statutory authority to adopt rules for court administration, practice, and
procedure, not inconsistent with statute.” (Rule 1400(b).) The Legislature has
specifically directed the Judicial Council to “establish rules governing practice and
procedure in the juvenile court not inconsistent with law.” (§ 265.) “The rules
have the force of statute to the extent that they are not inconsistent with legislative
enactments and constitutional provisions.” (In re Richard S. (1991) 54 Cal.3d
857, 863.)
Ultimately, the interpretation of a statute is a legal question for the courts to
decide, and an administrative agency’s interpretation is not binding. (Reno v.
Baird (1998) 18 Cal.4th 640, 660.) Certainly the Judicial Council’s interpretation
of a statute, as reflected in the Rules of Court, is not binding on the courts, and we
will invalidate a rule if it is contrary to statute. (People v. Hall (1994) 8 Cal.4th
950, 960-961.) But we have also said that when a statute is susceptible of more
than one interpretation, we will consider an administrative interpretation of the
statute that is reasonably contemporaneous with its adoption. (Robinson v. Fair
Employment & Housing Com. (1992) 2 Cal.4th 226, 234.) “ ‘Consistent
administrative construction of a statute over many years, particularly when it
originated with those charged with putting the statutory machinery into effect, is
entitled to great weight and will not be overturned unless clearly erroneous.’ ”
11
(Ibid.; see also Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th
557, 568.)
Courts have given similar deference to rules of court that the Judicial
Council has promulgated. In Adams v. Commission on Judicial Performance
(1994) 8 Cal.4th 630, we considered a constitutional provision that was construed
in a rule of court. We said that “past or contemporaneous interpretation by an
administrative entity . . . of a constitutional provision it is charged with
implementing, is accorded considerable weight [citation], and courts generally will
not depart from such construction unless it is clearly erroneous or unauthorized.
[Citations.] The Judicial Council, as an independent agency charged with a
specialized and focused task of promulgating rules . . . , is the entity ‘ “presumably
equipped or informed by experience” ’ to perform such task, and whose findings
warrant deferential treatment by the court.” (Id. at pp. 657-658; see also Leydon v.
Alexander (1989) 212 Cal.App.3d 1, 4; Zenker-Felt Imports v. Malloy (1981) 115
Cal.App.3d 713, 720 [Judicial Council’s “interpretation of the statutory term ‘the
time of the trial’ is consequently to be accorded the benefit of the familiar rule that
the contemporaneous construction of a statute by an administrative agency
charged with its enforcement is entitled to ‘great weight’ unless it is ‘clearly
erroneous or unauthorized’ ”].)
In Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th
1 (Yamaha), we considered in detail how much weight courts should give to
administrative rules. We recognized the existence of two distinct categories of
rules: quasi-legislative and interpretive. Quasi-legislative rules are those that the
agency promulgates as part of the lawmaking power the Legislature has delegated
to it. Judicial review of these rules is very limited. (Id. at pp. 10-11.) Rules that
interpret a statute receive less judicial deference. “Unlike quasi-legislative rules,
an agency’s interpretation does not implicate the exercise of a delegated
12
lawmaking power; instead, it represents the agency’s view of the statute’s legal
meaning and effect, questions lying within the constitutional domain of the courts.
But because the agency will often be interpreting a statute within its administrative
jurisdiction, it may possess special familiarity with satellite legal and regulatory
issues. It is this ‘expertise,’ expressed as an interpretation . . . , that is the source
of the presumptive value of the agency’s views. An important corollary of agency
interpretations, however, is their diminished power to bind. Because an
interpretation is an agency’s legal opinion, however ‘expert,’ rather than the
exercise of a delegated legislative power to make law, it commands a
commensurably lesser degree of judicial deference.” (Id. at p. 11.)
The rules of court that the Judicial Council adopts can fall into either
category; some rules are genuine lawmaking and some are interpretive. The rule
at issue here (rule 1460(f)(1)) falls within the second category; it effectively
interprets section 366.21, subdivision (e). So this rule is entitled to a lesser degree
of judicial deference than a rule that comes within the agency’s delegated
legislative power to make law. But it is still entitled to some deference. In such a
case, “ ‘the judiciary, although taking ultimate responsibility for the construction
of the statute, accords great weight and respect to the administrative
construction.’ ” (Yamaha, supra, 19 Cal.4th at p. 12.) How much weight to give
such a rule is “situational” and depends on a number of factors. (Ibid.) Factors to
consider are whether the administrative interpretation is “ ‘contained in a
regulation adopted after public notice and comment [rather than one] contained in
an advice letter prepared by a single staff member’ ”; whether the interpretation is
long-standing and has been consistently maintained; and whether the interpretation
was contemporaneous with the legislative enactment of the statute being
interpreted. (Id. at p. 13.) “If an agency has adopted an interpretative rule in
accordance with Administrative Procedure Act provisions—which include
13
procedures (e.g., notice to the public of the proposed rule and opportunity for
public comment) that enhance the accuracy and reliability of the resulting
administrative ‘product’—that circumstance weighs in favor of judicial
deference.” (Ibid.)
The Judicial Council’s membership consists of appellate and trial judges, as
well as others (Cal. Const., art. VI, § 6, subd. (a)), so it “is uniquely situated to
implement the legislative policy.” (People v. Wright (1982) 30 Cal.3d 705, 713.)
It is charged, by both constitution and statute, with adopting rules of court. (Cal.
Const., art. VI, § 6, subd. (d); § 265; see People v. Hall, supra, 8 Cal.4th at p.
956.) Moreover, although the Judicial Council is not subject to the Administrative
Procedure Act (APA) because it is an agency in the judicial branch of state
government (Gov. Code, § 11340.9, subd. (a)), its process for promulgating rules
includes procedures similar to those of the APA that enhance the final product’s
reliability. These procedures include internal review as well as notice to the public
and an opportunity for public comment whenever the proposed rule is other than a
minor or technical change. (See Cal. Rules of Court, tit. 6, Jud. Admin. Rules,
rules 6.13(c), 6.20, 6.22.) The Judicial Counsel also has standing advisory
committees that advise it in areas of each committee’s expertise. These standing
committees are directed to “act in the best interests of the public and the entire
court system.” (Id., rule 6.31(a).) Among the standing advisory committees is one
on family and juvenile law, which is required to have members with a wide variety
of experience and perspectives. (Id., rule 6.43.)
Rule 1460 was adopted contemporaneously with section 366.21,
subdivision (e), and its interpretation has never changed. It was subjected to
public comment and internal review. (See Judicial Council of Cal., Admin. Off. of
Cts., mem. to Superior Court Com. of Jud. Council re Proposed Revisions to
Juvenile Court Rules (May 2, 1989) pp. 2, 71-73.) The Judicial Council’s
14
Advisory Committee on Juvenile Court Law considered these comments and the
proposed juvenile court rules, and ultimately recommended adoption of the rules,
including rule 1460. That advisory committee had 21 members, including
appellate and juvenile court judges, a wide variety of public and private attorneys
practicing juvenile court law and representing varying constituencies, and others
involved in the juvenile court system. (Judicial Council of Cal., Ann. Rep. (1990)
pp. 11, 20-21.)
All of these circumstances support the conclusion that the formal rules the
Judicial Council adopts that interpret a statute, including rule 1460, are entitled to
a measure of judicial deference. Accordingly, rule 1460’s interpretation of section
366.21, subdivision (e), although not binding on the courts and invalid if contrary
to statute, is entitled to great weight and will be overturned only if it is clearly
erroneous. (Adams v. Commission on Judicial Performance, supra, 8 Cal.4th at
pp. 657-658; Robinson v. Fair Employment & Housing Com., supra, 2 Cal.4th at
p. 234.) We emphasize that this is merely deference, not abdication. Statutory
construction remains ultimately a matter for the courts.5
Another circumstance weighing against overturning rule 1460(f)(1) and
Monique S., supra, 21 Cal.App.4th 677, is legislative acquiescence. The

5
The dissent argues that the Judicial Council’s interpretation of section
366.21, subdivision (e), is not entitled to any deference because the section is not a
“ ‘regulatory statute’ that the Judicial Council is ‘immersed in administering,’ ” or
one of its “ ‘own regulation[s],’ ” or “ ‘a statute that the [Judicial Council]
enforces.’ ” (Dis. opn., post, at p. 10.) But, as noted, the Legislature has
specifically directed the Judicial Council to establish rules governing practice and
procedure in juvenile court (§ 265), and the Judicial Council has a standing
committee of experts to assist it in this endeavor. Whether or not a court would be
“ ‘more likely to defer’ ” to an administrative interpretation of some other kind of
statute (dis. opn., post, at p. 9, italics added), we think it appropriate to give the
Judicial Council’s interpretation of this statute a measure of deference. Moreover,
as discussed in the text, we are deferring to the long-standing administrative and
judicial interpretation of the statute for a combination of reasons.
15


Legislature has amended section 366.21, as well as other closely related
dependency statutes, at least once, sometimes more than once, sometimes in
response to judicial rulings, virtually every year since the Judicial Council adopted
rule 1460 and the Court of Appeal decided Monique S. (See Historical and
Statutory Notes, 73 West’s Ann. Welf. & Inst. Code (1998 ed.) foll. § 366.21, pp.
401-403, and id. (2005 supp.) pp. 188-194; Renee J. v. Superior Court (2002) 96
Cal.App.4th 1450, 1457-1458; Maribel M. v. Superior Court (1998) 61
Cal.App.4th 1469, 1471-1472.) The Legislature has been very active in this area
of the law and has carefully watched judicial interpretations of these statutes. But
during all this time, it has left untouched rule 1460 and Monique S. It has not
substantially changed the paragraph from section 366.21, subdivision (e), that is at
issue since its original enactment. (See Stats. 1987, ch. 1485, § 43, p. 5631.)
This is not just a matter of legislative inattention, which is often of little
significance. In Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, we refused to overrule previous Court of
Appeal interpretations of a statute for similar reasons. “During that time [in the
course of judicial interpretation], the Legislature has amended California’s statutes
regulating competition numerous times, sometimes to overrule judicial
interpretations. [Citation.] But it has left this rule intact. Legislative inaction is
often not a convincing reason to refuse to change a statutory interpretation.
[Citation.] Under the circumstances here, however, including the longevity of the
rule and the unanimity of the decisions stating it, we believe it is up to the
Legislature to change it if it is to be changed.” (Id. at p. 178.)
Here, not only has the Legislature failed to overturn a judicial
interpretation, it has failed to overturn a rule of court (rule 1460) that the Judicial
Council promulgated at the Legislature’s direction. (See § 265.) Because the
Legislature has specifically directed the Judicial Council to promulgate these
16
rules, we can presume it was aware of the administrative interpretation, which
makes its acquiescence all the more significant. (See Yamaha, supra, 19 Cal.4th
at pp. 21-22 (conc. opn. of Mosk, J.), and cases cited; Robinson v. Fair
Employment & Housing Com., supra, 2 Cal.4th at p. 235, fn. 7 [“Because the
Legislature authorized the FEHC to establish the system of publication in which
precedential decisions are printed [citations] the Legislature now is presumed to be
aware of the two administrative decisions on which the Court of Appeal relied,
and thus has reason to be aware of the construction the agency placed on its own
regulation.”].)
Moreover, we agree with the court in Monique S., supra, 21 Cal.App.4th at
pages 682-682, that its interpretation of the statute is consistent with the overall
legislative intent behind the statutory scheme—to balance efforts to reunify the
family with the child’s need for stability. “The parent’s interest in having an
opportunity to reunify with the child is balanced against the child’s need for a
stable, permanent home. The parent is given a reasonable period of time to
reunify and, if unsuccessful, the child’s interest in permanency and stability takes
priority.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) It makes sense for the
Legislature to permit the court to set the permanency planning hearing if the
parent has not contacted or visited the child for six months. “Childhood does not
wait for the parent to become adequate.” (Id. at p. 310.)
Mother and the Court of Appeal claim the legislative history supports their
interpretation of the statute. The Court of Appeal stated that “any doubt that
remains is readily clarified by express Legislative intent. Section 366.21,
subdivision (e) was enacted in 1987 as part of Senate Bill No. 243 (1987-1988
Reg. Sess.), a bill intended to establish a new structure for making permanency
decisions. With respect to the six-month review, the Senate Committee on
Judiciary stated ‘the new structure would allow a case to go directly from the 6
17
month review to a permanency planning hearing if the child had been abandoned
or the parent was convicted of a felony which indicated parental unfitness.’ (Sen.
Com. on Judiciary, Analysis of Sen. Bill No. 243, as amended Apr. 27, 1998.)”
We do not believe that this legislative analysis supports mother’s position.
The report is fully consistent with rule 1460(f)(1) and Monique S. Contrary to
mother’s argument, the report does not show that the Legislature intended to
require that additional technical requirements for abandonment stated in different
statutes be met. (Cf. Civ. Code, former § 232, subd. (a)(1), now Fam. Code,
§ 7822.) The author of the report may simply have considered allowing six
months to pass without contacting or visiting a child to constitute a form of
abandonment. A commentary noted that rule 1460(f)(1) and Monique S. do not
require that the original jurisdictional finding be made under section 300,
subdivision (g), before the court may terminate services due to the parent’s failure
to contact and visit the child. As explained, this rule “recognizes that a parent can
abandon a child whether that parent’s whereabouts is known or unknown. Either
way, the effect on the child is the same.” (Seiser et al., Cal. Juvenile Courts
Practice and Procedure (2005 ed.) § 2.152[4][c], p. 2-293; see also Cal. Judges
Benchguides, Juvenile and Family Court Procedures, Benchguide 103, Juvenile
Dependency Review Hearings (CJER 2004 rev.) § 103.35, p. 103-47 [“A court
may set a [section 366.26] hearing at this stage [the six-month review hearing]
when the parent has failed to contact and visit the child; there is nothing to be
gained in continuing to offer services when a parent makes no effort to reunify
with the child for six months and there are no extenuating circumstances”], citing
In re Monique S., supra, 21 Cal.App.4th 677.)
Mother also argues the statute would violate due process if it were
interpreted to permit the finding that the parent had failed to contact and visit the
child to be based on some lesser showing than clear and convincing evidence.
18
However, rule 1460(f)(1)(B) indicates that the court must make this finding by
clear and convincing evidence.
For these reasons, we reaffirm the long-standing administrative and judicial
construction of section 366.21, subdivision (e), as permitting the court to terminate
reunification services and set the matter for a permanency planning hearing
whenever it finds by clear and convincing evidence that the parent has failed to
contact and visit the child for six months after reunification services have begun,
whether or not jurisdiction was originally asserted under section 300, subdivision
(g).
B. Application to this case
Mother also argues that even if we accept the Monique S. interpretation of
the statute, the court erred in terminating reunification services because her
“failure to contact or visit the child [was] caused by the social worker’s refusal to
make the children available for frequent and regular visitation as required by
section 362.1.” Monique S. held that reunification services need not be continued
“where a parent, absent extenuating circumstances, makes no effort to reach out to
his or her child for six months in the dependency process.” (Monique S., supra, 21
Cal.App.4th at pp. 682-683, italics added.) The italicized words imply that
reunification services must be continued if there are extenuating circumstances
excusing the failure to contact and visit the children. In effect, mother argues the
department’s actions constitute such extenuating circumstances.
Section 362.1, subdivision (a)(1)(A), states that any order for reunification
services shall provide, “[s]ubject to subparagraph (B), for visitation between the
parent . . . and the child. Visitation shall be as frequent as possible, consistent
with the well-being of the child.” Subparagraph (B) of that subdivision provides,
as relevant: “No visitation order shall jeopardize the safety of the child.”
19
In this case, the department ended mother’s visit with her children on
January 7 because it found she was acting inappropriately, a finding mother has
never challenged. After that, it did not permit mother to visit the children unless
she was free of drugs, as the reunification plan that mother signed required.
Mother failed to participate in dependency drug court and for this reason was
terminated from that program. The only time before the June 22 hearing that
mother asked to visit her children she was, by her own admission, under the
influence of methamphetamine and marijuana, and she declined to take a random
urinalysis test. She has never claimed the department refused to permit her to visit
the children anytime she was free of drugs.
Mother may not challenge the court’s order providing for reunification
services because she never appealed it. Section 395 provides in relevant part: “A
judgment in a proceeding under Section 300 may be appealed from in the same
manner as any final judgment, and any subsequent order may be appealed from as
from an order after judgment . . . .” “A consequence of section 395 is that an
unappealed disposition or postdisposition order is final and binding and may not
be attacked on an appeal from a later appealable order.” (In re Jesse W. (2001) 93
Cal.App.4th 349, 355.) An appeal from the most recent order in a dependency
matter may not challenge earlier orders for which the time for filing an appeal has
passed. (Ibid.) “Permitting a parent to raise issues going to the validity of a final
earlier appealable order would directly undermine dominant concerns of finality
and reasonable expedition,” including “the predominant interest of the child and
state . . . .” (In re Janee J. (1999) 74 Cal.App.4th 198, 207.) Accordingly, “By
failing to appeal, [mother] has waived any complaint she may have regarding the
[reunification] plan as ordered.” (In re Julie M. (1999) 69 Cal.App.4th 41, 47.)
To the extent mother challenges the department’s actions, sufficient
evidence supports the trial court’s implicit finding that the department provided
20
reasonable reunification services. (In re Julie M, supra, 69 Cal.App.4th at p. 46.)
The appellate court “construe[s] all reasonable inferences in favor of the juvenile
court’s findings regarding the adequacy of reunification plans and the
reasonableness of [the social services department’s] efforts.” (Ibid.) Here, the
department merely required that mother be free of drugs and alcohol before she
visited her children, as the reunification plan required. The record shows, and
mother never claimed otherwise, that she has a substance abuse problem.
Accordingly, requiring her to be drug and alcohol free before she could visit with
her children was reasonable to protect their well-being. (In re Christopher H.
(1996) 50 Cal.App.4th 1001, 1007-1008; see § 362.1.) “The program in which a
parent or guardian is required to participate shall be designed to eliminate those
conditions that led to the court’s finding that the child is a person described by
Section 300.” (§ 362, subd. (c); see In re Christopher H., supra, at p. 1006.)
In this case, mother made no apparent effort after January 7 to visit her
children under the reunification plan when she was free of drugs and alcohol. At
the June 22 hearing, the court gave her another chance, and she still failed to visit
the children. Under the circumstances, we find no error in the court’s ultimate
order of July 15 terminating reunification services and setting a hearing to
establish a permanent plan.
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
21




DISSENTING OPINION BY KENNARD, J.

When a child is declared a dependent of the court (Welf. & Inst. Code,
§ 300)1 and is removed from parental custody, the trial court must generally order
the department of social services to provide reunification services to the parent,
and the court must schedule a review hearing in six months.
Ordinarily, the department of social services must provide the parent with
reunification services for one year. (§ 361.5, subd. (a)(1); Cal. Rules of Court,
rule 1456(f)(1).) But at the six-month review hearing the trial court may terminate
reunification services and schedule a permanency planning hearing that may
forever deprive the parent of any parental rights “[i]f the child was removed
initially under subdivision (g) of Section 300 and the court finds by clear and
convincing evidence the whereabouts of the parent are still unknown, or the
parent has failed to contact and visit the child . . . .” (§ 366.21, subd. (e), italics
added.) At issue here is this: Does the italicized phrase apply only when the child
has been removed under subdivision (g) of section 300? According to the
majority, the answer is “no.” I disagree.
I
In 2003, the Tuolumne County Department of Social Services (Department)
filed a dependency petition alleging that the three children of Sara M. should be

1
All further statutory citations are to the Welfare and Institutions Code.
1



declared dependents under subdivisions (b) (failure to protect) and (c) (serious
emotional damage) of section 300 because Sara was a drug addict who was not
providing them with adequate food, clothing, and shelter. The trial court sustained
the petition, ordered the Department to provide Sara with reunification services
(including visitation), and scheduled a six-month review hearing for June 13,
2004. Sara’s case worker told her that she had one year to complete the
reunification plan, and that if she failed to do so the court would order a permanent
plan that could result in termination of her parental rights. A court order and a
letter to Sara from a social worker also said that she had one year to comply with
the reunification plan.
Sara did not comply with the reunification program during the first six
months of the dependency. She visited the children once at the beginning of the
dependency, but the visit did not go well. She tried to visit a second time shortly
before the six-month review hearing, but she was not allowed to see the children
after she admitted being under the influence of methamphetamine and marijuana;
she was told that she could see the children only if she stopped using drugs. At the
six-month review on June 22, 2004, the trial court told Sara it would terminate
reunification services if she did not make a greater effort to comply with the
reunification program; the court continued the matter for three weeks to check on
Sara’s progress.
Later that day, Sara drove to her social worker’s office and submitted to a
drug test; when the test was positive for methamphetamine, the social worker had
Sara arrested for driving under the influence. The next week the police arrested
her for possession of a controlled substance and drug paraphernalia, both
misdemeanors. At the progress hearing, the trial court ordered termination of
reunification services and scheduled a permanency planning hearing. Sara filed a
writ petition challenging these rulings. The Court of Appeal held that the trial
2

court’s orders were premature. It directed the trial court to vacate the permanency
planning hearing and to reinstate reunification services for an additional six
months.
II
A child may be made a dependent of the court for many reasons, as set
forth in section 300’s ten subdivisions. Subdivisions (b) and (c), under which the
dependency in this case was created, authorize a dependency when a parent has
willfully or negligently failed to protect the child from abuse or to provide
adequate food, clothing, and shelter (subd. (b)) and when the child has suffered or
is at risk of suffering serious emotional damage (subd. (c)). Also pertinent here is
subdivision (g), which authorizes a dependency when a child is left without
support; when a parent voluntarily surrenders custody of a child and thereafter
does not reclaim it; when a parent is incarcerated or institutionalized and cannot
arrange for the child’s care; and when a custodian with whom the child is living
cannot or will not care for the child, the parent’s whereabouts are unknown, and
reasonable efforts to locate the parent are unsuccessful. Other subdivisions of
section 300 authorize dependencies for physical abuse (subd. (a)), sexual abuse
(subd. (d)), abuse inflicted on a young child by another person with the parent’s
knowledge (subd. (e)), negligently or intentionally causing the death of another
child (subd. (f)), relinquishment for adoption (subd. (h)), acts of cruelty (subd. (i)),
and abuse or neglect of a sibling (subd. (j)).
Once a dependency is created, the trial court must, subject to certain
exceptions, provide the parents with reunification services and must schedule a
review hearing in six months.
Subdivision (e) of section 366.21 (section 366.21(e)), at issue here, contains
eight paragraphs, all of which pertain to the six-month review hearing. It explains
that at the review hearing the trial court must return the child to the parent’s
3

custody unless it finds that doing so would be detrimental to the child, that the
court must make findings justifying a continued detention of the child, and that the
court must warn the parent that if return of the child is still inappropriate after an
additional six months, a permanency planning hearing may be scheduled.
As a general rule, after the six-month review hearing the parent must be
provided with reunification services for an additional six months. But section
366.21(e) provides that in certain circumstances, which are described in four
paragraphs, the court may terminate reunification services at the review hearing.
Pertinent here is one of these paragraphs, the fifth paragraph of section 366.21(e),
which states: “If the child was removed initially under subdivision (g) of Section
300 and the court finds by clear and convincing evidence the whereabouts of the
parent are still unknown, or the parent has failed to contact and visit the child, the
court may schedule a [permanency planning] hearing . . . within 120 days. If the
court finds by clear and convincing evidence that the parent has been convicted of
a felony indicating parental unfitness, the court may schedule a [permanency
planning] hearing . . . within 120 days.” (Italics added.)
At issue here is whether, as the Court of Appeal concluded, the italicized
phrase applies only when the dependency was created under subdivision (g) of
section 300, or whether, as the majority concludes, the italicized phrase applies to
dependencies created under any subdivision of section 300. To answer that
question, I turn to our standard rules of statutory construction. “The objective of
statutory construction is to determine the intent of the enacting body so that the
law may receive the interpretation that best effectuates that intent. (Hassan v.
Mercy American River Hospital (2003) 31 Cal.4th 709, 715.) ‘We first examine
the words themselves because the statutory language is generally the most reliable
indicator of legislative intent. [Citation.] The words of the statute should be given
their ordinary and usual meaning and should be construed in their statutory
4

context.’ (Ibid.) If the plain, commonsense meaning of a statute’s words is
unambiguous, the plain meaning controls. (In re Jennings (2004) 34 Cal.4th 254,
263.)” (Fitch v. Select Products Company (August 1, 2005, S116223) ___ Cal.4th
___, ___ [p. 4].)
The majority construes the fifth paragraph of section 366.21(e) as
permitting the trial court to set the matter for a permanency planning hearing in
three circumstances: (1) “If the child was removed initially under subdivision (g)
of Section 300 and the court finds by clear and convincing evidence the
whereabouts of the parent are still unknown,” (2) “[i]f . . . the parent has failed to
contact and visit the child,” and (3) “[i]f the court finds by clear and convincing
evidence that the parent has been convicted of a felony indicating parental
unfitness.” (§ 366.21(e).) So construed, there is a standard of proof (clear and
convincing evidence) that the Legislature specified for the first and third of these
circumstances, but not for the second. The majority offers no explanation for that
legislative omission.
The Court of Appeal, by contrast, concluded that the phrase at issue in the
fifth paragraph of section 366.21(e), which I italicized in my discussion on page 4,
ante, refers back to the beginning of the sentence, which states, “If the child was
removed initially under subdivision (g) of Section 300 . . . .” Therefore, the Court
of Appeal said, the italicized phrase applies only when the child was initially made
a dependent under subdivision (g) of section 300. Under that interpretation, a trial
court can schedule a permanency planning hearing at the time of the six-month
review in two circumstances. The first has two subgroups: “If the child was
removed initially under subdivision (g) of Section 300 and the court finds by clear
and convincing evidence [either (a)] the whereabouts of the parent are still
unknown, or [(b)] the parent has failed to contact and visit the child.”
(§ 366.21(e).) The second circumstance occurs “[i]f the court finds by clear and
5

convincing evidence that the parent has been convicted of a felony indicating
parental unfitness.” (Ibid.) Under the Court of Appeal’s interpretation, the
Legislature specified a standard of proof (clear and convincing evidence) for each
of the categories listed in the paragraph at issue, whereas the majority’s
construction here leaves one of the categories without a standard of proof.
Furthermore, the second of the majority’s three categories (“[i]f . . . the
parent has failed to contact and visit the child”) is so all-encompassing that it
completely swallows up the first category (“if the child was removed initially
under subdivision (g) of Section 300 and the court finds by clear and convincing
evidence the whereabouts of the parent are still unknown”), leaving the first
category meaningless. Otherwise stated, if the child was initially removed
because the parent’s whereabouts were unknown, and the parent’s whereabouts
are still unknown at the trial court’s six-month review, it is unlikely that the parent
would have contacted or visited the child during the intervening time.
Thus, the majority’s interpretation of the fifth paragraph of section
366.21(e) turns the entire first clause of the paragraph (“If the child was removed
initially under subdivision (g) of Section 300 and the court finds by clear and
convincing evidence the whereabouts of the parent are still unknown”) into mere
surplusage. This violates “one of the guiding principles of statutory construction,
that significance be accorded every word of an act.” (People v. Johnson (2002) 28
Cal.4th 240, 246-247.) This court has repeatedly explained that “whenever
possible, significance must be given to every word in pursuing the legislative
purpose, and the court should avoid a construction that makes some words
surplusage.” (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 330; see
also Elsner v. Uveges (2004) 34 Cal.4th 915, 931; Arnett v. Dal Cielo (1996) 14
Cal.4th 4, 22; Williams v. Superior Court (1993) 5 Cal.4th 337, 357; Brown v.
6

Superior Court (1984) 37 Cal.3d 477, 484; City and County of San Francisco v.
Farrell (1982) 32 Cal.3d 47, 54.)
Under the Court of Appeal’s statutory interpretation, by contrast, there is no
surplusage. In essence, the Court of Appeal construed the first sentence of the
fifth paragraph of section 366.21(e) as saying that a trial court may schedule a
permanency planning hearing at the six-month review hearing if the child was
removed because the parent abandoned the child and either (1) the parent’s
whereabouts are still unknown at the time of the review hearing, or (2) even
though the parent’s whereabouts have been discovered, the parent has not visited
the child. These categories do not overlap, and neither is so broad that it
encompasses the other.
As previously mentioned, the statutory scheme generally provides for up to
one year of services designed to reunify the parent and child before a permanency
planning hearing is scheduled. (§ 361.5, subd. (a)(1); Cal. Rules of Court, rule
1456(f)(1); see generally, Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-
249.) Under the majority’s interpretation of the fifth paragraph of section 366.21,
a trial court may end reunification services after only six months even when, as in
this case, a parent whose child was removed for reasons unrelated to abandonment
has shown an interest in visiting the child, but has not been permitted to do so
because of a continuing substance abuse problem. This broad reading is
inconsistent with the statutory scheme’s general policy of giving a parent a year to
meet the requirements of an individualized reunification plan. As interpreted by
the Court of Appeal, however, the Legislature crafted a narrow exception to that
general policy when a parent who initially abandoned the child has shown no
interest in reunification (because the parent’s whereabouts are unknown or the
parent has not visited the child), or when a parent has been convicted of a felony
that demonstrates parental unfitness. Offering an additional six months of services
7

to such parents would be pointless, because further services would not redress the
problems that resulted in the dependency. (See Carolyn R. v. Superior Court
(1995) 41 Cal.App.4th 159, 166 [goal of reunification services is to “address the
circumstances which required . . . court intervention into a family’s life”].)
In short, the majority’s interpretation of the fifth paragraph of section
366.21(e) makes one clause of the paragraph meaningless, is based on the
assumption that the Legislature specified a standard of proof for two of the
categories of cases discussed in the paragraph but not the third, and is inconsistent
with the statutory scheme governing dependencies. By contrast, the Court of
Appeal’s statutory interpretation gives meaning to all of the words in the
paragraph at issue, it specifies a standard of proof for each of the categories of
cases discussed in the paragraph, and it is consistent with the statutory scheme.
That construction far better reflects the Legislature’s intent than that of the
majority here.
III
The majority’s construction of the fifth paragraph of section 366.21(e)
mirrors that of the Judicial Council, as reflected in rule 1460(f)(1) of the California
Rules of Court. After considerable discussion of Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1 (Yamaha), in which this court
described the circumstances in which it defers to the statutory interpretations of
administrative agencies, the majority concludes that the Judicial Council’s
interpretation, in rule 1460(f)(1), of the fifth paragraph of section 366.21(e) “is
entitled to great weight and will be overturned only if it is clearly erroneous.”
(Maj. opn., ante, at p. 15.) Applying that standard, the majority concludes that it
“will not overturn” the Judicial Council’s interpretation. (Maj. opn., ante, at p. 2.)
Yamaha relied heavily Professor Michael Asimow’s views on
administrative law, as expressed in a law review article (Asimow, The Scope of
8

Judicial Review of Decisions of California Administrative Agencies (1995) 42
UCLA L.Rev. 1157 (Asimow)) and reflected in his work as administrative law
adviser to the California Law Revision Commission (Cal. Law Revision Com.,
Tent. Recommendation: Judicial Review of Agency Action (Aug. 1995)). As
pertinent here, Professor Asimow explained that in considering whether to defer to
an administrative agency’s determination on a question of law, courts look at
certain factors to decide whether an administrative agency has a “comparative
interpretive advantage over courts” (Asimow, supra, 42 UCLA L.Rev. at p. 1195;
see also Yamaha, supra, 19 Cal.4th at p. 12), and the courts also look at other
factors to determine whether the administrative agency’s interpretation has been
carefully considered and consistently maintained (Asimow, supra, 42 UCLA
L.Rev. at pp. 1196-1198; Yamaha, supra, 19 Cal.4th at p. 13). As the majority
here observes, the second group of factors tend to suggest deference to the Judicial
Council’s interpretation of the fifth paragraph of section 366.21(e). (Maj. opn.,
ante, at pp. 13-15.) But the majority does not discuss the first group of factors,
which I outline below and which point in the opposite direction.
In the words of Professor Asimow: “[A]gencies are often immersed in
administering a particular statute. Such specialization gives those agencies an
intimate knowledge of the problems dealt with in the statute and the various
administrative consequences arising from particular interpretations. In contrast, a
generalist court that visits a particular regulatory statute only infrequently lacks
the advantage arising out of specialization. . . . [I]f by reason of expertise,
specialization or both, an agency demonstrably has qualifications to interpret a
particular text that are superior to the court’s, deference is appropriate. [¶] . . . A
court is [also] more likely to defer to an agency’s interpretation of its own
regulation than to its interpretation of a statute . . . [and is] more likely to defer to
an agency’s interpretation of a statute that the agency enforces than to its
9

interpretations of some other statute . . . .” (Asimow, supra, 42 UCLA L.Rev. at
p. 1196; see also Yamaha, supra, 19 Cal.4th at p. 12.)
Here, section 366.21(e) is not a “regulatory statute” that the Judicial
Council is “immersed in administering.” (Asimow, supra, 42 UCLA L.Rev. at
p. 1196.) Nor does an interpretation of the statute give rise to “administrative
consequences.” (Ibid.) Nor is it the Judicial Council’s “own regulation,” nor is it
“a statute that the [Judicial Council] enforces.” (Ibid.) Rather, section 366.21(e)
is a law pertaining to judicial, not administrative, proceedings. I do not question
the Judicial Council’s expertise in matters pertaining to judicial proceedings. But
such matters also fall squarely within the scope of this court’s expertise. Because
this court’s expertise in interpreting laws pertaining to judicial proceedings is
equal to or greater than that of the Judicial Council, deference to the Judicial
Council in such matters is unwarranted.
The majority points out that in Adams v. Commission on Judicial
Performance (1994) 8 Cal.4th 630, this court said that the Judicial Council’s
interpretation of a constitutional provision, as reflected in its rules, should be
“accorded considerable weight” and should not be rejected unless it is “clearly
erroneous or unauthorized.” (Id. at pp. 657-658.) But there the provision in
question pertained to hearings before the Commission on Judicial Performance,
which are administrative proceedings. Judicial Council rules are not given
deference when, as in this case, they pertain to the operation of the judicial system,
because in such matters the Judicial Council’s expertise in determining the
Legislature’s intent does not exceed that of the appellate courts. (See, e.g., People
v. Hall (1994) 8 Cal.4th 950, 963; In re Robin M. (1978) 21 Cal.3d 337, 346;
Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 923;
Maribel M. v. Superior Court (1998) 61 Cal.App.4th 1469, 1476; Trans-Action
Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 363-
10

372; California Court Reporters Assn. v. Judicial Council of California (1996) 39
Cal.App.4th 15, 33-34; In re Keisha T. (1995) 38 Cal.App.4th 220, 235; People
v. Zamarron (1994) 30 Cal.App.4th 865, 872; Sadler v. Turner (1986) 186
Cal.App.3d 245, 248-250; Iverson v. Superior Court (1985) 167 Cal.App.3d 544,
548; Alsavon N. v. Superior Court (1981) 124 Cal.App.3d 586, 594-595.)
Thus, unlike the majority, I would not defer to the Judicial Council’s
interpretation of the fifth paragraph of section 366.21(e). Even if deference would
be appropriate when two competing interpretations of a statute were equally
plausible, here they are not. As I have previously explained (see pt. II, ante), the
majority’s interpretation of the statutory language at issue, which is reflected in
rule 1460(f)(1) adopted by the Judicial Council, is inconsistent with the plain
meaning of the statutory language. Therefore, I would reject that interpretation.
The majority also reasons that the principle of legislative acquiescence
supports its interpretation of section 366.21(e). It points out that rule 1460(f)(1) of
the Rules of Court, whose interpretation of the fifth paragraph in section 366.21(e)
the majority adopts here, was promulgated in 1990, and that three years later, the
Court of Appeal in In re Monique S. (1993) 21 Cal.App.4th 677, reached the same
interpretation. Since then, the majority notes, the Legislature has often amended
section 366.21, but it has left the paragraph at issue here unchanged. (Maj. opn.,
ante, at p. 16.)
As this court has stressed in the past, “legislative inaction is indeed a slim
reed upon which to lean.” (Quinn v. State of California (1975) 15 Cal.3d 162,
175; see also Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142,
1156.) Section 366.21 is an exceptionally long statute that includes 39 paragraphs.
In my view, the Legislature’s decision to amend portions of this complex
provision is not persuasive evidence that it intended to acquiesce in court rules or
decisions construing other unrelated parts, such as the paragraph at issue here.
11

(See People v. Blakeley (2000) 23 Cal.4th 82, 90; People v. Morante (1999) 20
Cal.4th 403, 429; People v. Escobar (1992) 3 Cal.4th 740, 751.)
CONCLUSION
Because Sara’s three children were not made dependents under subdivision
(g) of section 300, she was entitled to a year of reunification services (as
mentioned in the trial court’s order and in a letter to Sara from her social worker),
rather than the six months allowed by the majority, before the trial court could
schedule a permanency planning hearing. Thus, the trial court erred when it
terminated reunification services after only six months. For the reasons given
above, I would affirm the judgment of the Court of Appeal, which reversed the
trial court’s order terminating reunification services.
KENNARD,
J.
I CONCUR:
MORENO, J.
12

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Sara M. v. Superior Court
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 123 Cal.App.4th 1251
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S129821
Date Filed: August 8, 2005
__________________________________________________________________________________

Court:

Superior
County: Tuolumne
Judge: Eric L. Du Temple

__________________________________________________________________________________

Attorneys for Appellant:

Sara M., in pro. per.; and Janet G. Sherwood, under appointment by the Supreme Court, for Petitioner

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Gregory J. Oliver, County Counsel, and Kim M. Knowles, Deputy County Counsel, for Real Party in
Interest.

Kathleen Bales-Lange, County Counsel (Tulare), John A. Rozum, Chief Deputy County Counsel, Bryan C.
Walters, Deputy County Counsel; and Jennifer B. Henning for California State Association of Counties as
Amicus Curiae on behalf of Real Party in Interest.

1



Counsel who argued in Supreme Court (not intended for publication with opinion):

Janet G. Sherwood
5643 Paradise Dr., Suite 12
Corte Madera, CA 94925-1815
(415) 924-0585

Kim M. Knowles
Deputy County Counsel
2 South Green Street
Sonora, CA 95370
(209) 533-5517

Bryan C. Walters
Deputy County Counsel
11200 Avenue 368, Room 102
Visalia, CA 93291
(559) 713-3230

2


Opinion Information
Date:Docket Number:
Mon, 08/08/2005S129821

Parties
1M., Sara (Petitioner)
P.O. BOX 1671
TUOLUMNE, CA 95379

Represented by Janet G. Sherwood
Attorney at Law
5643 Paradise Dr #12
Corte Madera, CA

2Superior Court Of Tuolumne County (Respondent)
3Tuolumne County Department Of Social Services (Real Party in Interest)
Represented by Kim Maureen Knowles
Ofc County Counsel
2 S Green St
Sonora, CA

4California State Association Of Counties (Amicus curiae)
Represented by Bryan Cole Walters
Tulare County Counsel
11200 Avenue 368, Rm. 102
Visalia, CA


Disposition
Aug 8 2005Opinion: Reversed

Dockets
Dec 9 2004Petition for review filed
  Real Party in Interest ( Tuloumne County ).
Dec 9 2004Record requested
 
Dec 9 2004Request for depublication (petition for review pending)
  Real Party in Interest ( Tuolumne County ).
Dec 10 2004Received Court of Appeal record
  two doghouses
Jan 19 2005Petition for review granted (civil case)
  Votes, George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jan 20 2005Note:
  Records sent to Cal-Coord. Office: RT=3, CT=6, 3 w/supplemental, 5, 7, Depub. Req., misc. recs. and docs.
Jan 31 2005Filed:
  letter from CCAP (G. MCurty) re: recommendation of counsel appt.
Jan 31 2005Letter sent to:
  Office of Dist. Atty Tuolumne Co. re: briefing schedule.
Feb 2 2005Counsel appointment order filed
  Upon request for appointment of counel Janet G.Sherwood is hereby appointed to represent petitioner on the appeal now pending in this court.. Your attention is directed to California Rules of Court, rule 29.1, for the briefing requirements. Please note also that, because this is a child dependency case, the court may grant an extension of time only on "an exceptional showing of good cause." (Code Civ. Pro., Sec. 45; Cal Rules of Court 38.2 (d).)
Feb 17 2005Opening brief on the merits filed
  by counsel for RPI (Tuolumne Co. Dept. of Soc. Svcs.)
Mar 1 2005Motion filed (non-AA)
  by counsel for petnr. (Sara M.) Dismiss as Improvidently granted; Motion to Brief a New Issue.
Mar 1 2005Request for extension of time filed
  counsel for petnr. requests extension of time to 30-days after court's rules on previously filed motions on 3-1-05.
Mar 11 2005Opposition filed
  by counsel for (Tuolumne Co. Dept. of Soc. Svcs.) to Motion to Dismiss Review as Improvidently Granted and to Brief a New Issue.
Mar 16 2005Request Denied
  Petitioner's motion to dismiss review as improvidently granted, filed on March 1, 2005, is denied. The court considers the issue petitioner wishes to brief to be fairly included in the issue on which it granted review. (Cal. Rules of Court, rule 29.1(b)(3).) Accordingly, petitioner may brief it in her answer brief, and real party in interest may make any responsive arguments it wishes in its reply brief, including whether petitioner has forfeited the right to raise the issue. Petitioner's motion to brief a new issue is denied as moot. The court grants petitioner an extension of time to serve and file the answer brief on the merits until [20 days after the date of the order]. It will grant any further extensions of time only on an exceptional showing of good cause. (Code Civ. Proc., ? 45; Cal. Rules of Court, rule 38.2(d).) The court intends to place the matter on the late May 2005 or June 2005 oral argument calendar. Brown, J., was absent and did not participate.
Apr 4 2005Answer brief on the merits filed
  by counsel for Sara M.
Apr 6 2005Permission to file amicus curiae brief granted
  California State Association of Counties in support of Real Party in Interest.
Apr 6 2005Amicus curiae brief filed
  California State Association of Counties in support of Real Party in Interest. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 6 2005Received application to file Amicus Curiae Brief
  California State Assn of Counties
Apr 25 2005Reply brief filed (case fully briefed)
  by counsel for RPI (Tuolumne Co. Dept. of Soc. Svcs.)
May 3 2005Case ordered on calendar
  5/25/05, 9am, S.F.
May 11 2005Compensation awarded counsel
  Atty Sherwood
May 12 2005Filed:
  Request of Real Party in Interest (Tuolumne County Dept. of Social Services) to divide oral argument time.
May 20 2005Order filed
  The request of counsel for Real Party in Interest to allow two counsel to argue on behalf of Real Party in Interest at oral argument is hereby granted.
May 20 2005Order filed
  The request of Real Party in Interest to allocate to amicus curiae California State Association of Counties 10 minutes of Real Party in Interest's 30-minute allotted time for oral argument is granted.
May 25 2005Cause argued and submitted
 
Aug 8 2005Opinion filed: Judgment reversed
  and Remanded. OPINION BY: Chin, J. --- joined by: George, C.J., Baxter, Werdegar, JJ. DISSENTING OPINION BY: Kennard, J. --- joined by: Moreno, J.
Sep 8 2005Remittitur issued (civil case)
 
Sep 22 2005Received:
  receipt for remittitur from CA 5
Sep 23 2005Compensation awarded counsel
  Atty Sherwood

Briefs
Feb 17 2005Opening brief on the merits filed
 
Apr 4 2005Answer brief on the merits filed
 
Apr 6 2005Amicus curiae brief filed
 
Apr 25 2005Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website