The court did not err by terminating reunification services and setting a .26 hearing because father did not “contact and visit” S.W. during the six-month review period.  Father concedes he did not visit S.W.  His contention that his telephone contact with S.W. warrants additional services and a further review hearing fails under the plain reading of section 366.21, subdivision (e).

Father mistakenly relies upon California Rules of Court, rule 5.710.[2]  This rule interprets and implements the six-month review hearing procedures of section 366.21, subdivision (e).  (Sara M., supra, 36 Cal.4th at pp. 1010, 1013 [discussing former Rule 1460]; Derrick S., supra, 156 Cal.App.4th at pp. 449-450 & fn. 6 [discussing current and former rules].)  It provides the court may set a permanency planning hearing at the six-month review hearing if “[t]he court finds by clear and convincing evidence that the parent has not had contact with the child for 6 months.”  (Rule 5.710(f)(1)(B), italics added.)  Father asserts the rule is “consistent with the statute.”  The rule is consistent with section 366.21, subdivision (e), insofar as it makes lack of contact or visitation an independent basis for terminating services, without yoking it to the initial ground for removing the child or knowledge of the parent’s whereabouts.  (Sara M., at pp. 1016-1017.)

But rule 5.710 is inconsistent with the statute insofar as it deletes the visitation requirement.  “[T]he rule cannot be divorced from the statutes it is designed to effectuate.”  (Derrick S., supra, 156 Cal.App.4th at p. 449 [construing rule 5.701(f)(1) to comport with § 366.21, subd. (e)].)  It is entitled to “deference, not abdication” and is “not binding on the courts and invalid if contrary to statute.”  (Sara M., supra, 36 Cal.4th at p. 1014; accord M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 181, fn. 8 [disapproving different subdivision of rule 5.710 that conflicted with statute]; cf. Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847-848 [deferring to different subdivision of rule 5.710 as “not clearly erroneous” and in “accord[] with the other indicia of legislative intent”].)  To maintain consistency with section 366.21, subdivision (e), the term “contact” in rule 5.710(f)(1)(B) should be construed as a shorthand reference to the statute’s dual “contact and visit” requirement.

S.W. v. Super. Ct.-G041674-  5/15/09 CA4/3
S.W. v. Super. Ct.-G041674-  5/15/09 CA4/3

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