Alan B. v. Superior Court

Filed 7/28/08 Alan B. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Robert Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Maria G. Niciforos for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.

INTRODUCTION

Petitioner Alan B. is the presumed father (father) (see Fam. Code, 7611) of the minor. By this petition, he challenges the trial courts order terminating reunification services, arguing that the services he received were inadequate and not properly offered. We find no error and deny the petition.

STATEMENT OF FACTS

The minors mother (mother), who is not a party to the petition, had herself been a dependent child for over 10 years up through 2005. The minor was born in January 2007; mother had an older child, who was born in August 2005. The older child had become the subject of dependency proceedings due to mothers instability and substance abuse. In October 2006, when mother had failed to complete her reunification program, services were terminated as to that child. Mother has a lengthy criminal history primarily involving prostitution.

Mother met father around July 2006; they were married in November 2006. Father is aware that he is not the biological father of the minor.

At the time of minors birth, father (who is a sergeant in the Marines) was deployed to Iraq. By late January, the social worker was in contact with father by e-mail and father indicated his desire to have the baby as [his] own. He also expressed great empathy for mother and told the social worker that she has the heart to be the best mom she can be and [he] see[s] it in her every day [they] are together.

After the court found father to be a presumed father, the minor was declared a dependent child. The court ordered reunification services for father. Because father was still in Iraq and internet services were very limited (if available at all), the court agreed that father should receive six months of services after his return, projected for August 2007. The social worker provided father with a copy of his case plan in April. The social worker continued to communicate with father by e-mail. In June 2007, the social worker warned father that mother was making no progress. The social worker said that father had told her that he had married mother in order to help her keep her child.

By this time, the minor had been diagnosed with chronic kidney disease and had been hospitalized several times. The minor had been placed with a foster mother shortly after his detention. He was doing well and was very attached to his foster mother and family.

When father returned to California, the social worker met with him on September 6, 2007, and reviewed his case plan, which focused on parenting and counseling. The plan also made note of the minors medically fragile condition. Both parents were given referrals for parenting and counseling services in the Morongo Basin area, where father was stationed. The social worker also arranged for weekly supervised visits with the minor.

In the March 28, 2008, 12-month status review report, the social worker reported that she had met with father on October 3, 2007, at which time father indicated that he had completed a parenting program. However, he had not begun any counseling services and, most significantly, had not visited with the minor. Father explained that his duties in the military had interfered with his ability to visit or complete his plan. The social worker had no contact with father during November or December. But, on January 11, 2008, the social worker contacted father about participating and completing his case plan, including counseling. Father indicated he would call her on January 14, but failed to do so. Several days later, he left a message for the social worker, but when she returned his call, he was not available and did not respond.

The social worker also reported that father called a counseling program in early February and asked for Friday morning appointments because his Friday afternoons were spent visiting with the minor. However, he never attended the counseling appointments and no such visits with the minor ever took place. When asked about the minor, father admitted he was unsure how to pronounce the minors name and did not know the name.

Subsequently, father did visit with the minor on April 4, and was reportedly quite emotional. A second visit took place a few weeks later, which the social worker indicated was appropriate. By the time of the 12-month hearing on April 23, father had also begun counseling.

At the hearing, father testified extensively, if not concretely, concerning his difficulties in leaving the military base to participate in services or to visit with the minor. On the other hand, he had completed a parenting program in the fall of 2007, had participated in at least four counseling sessions within the past 30 days and, as noted above, had recently visited the minor twice.^[1]

Father also testified that it had been impossible for him to visit the minor on the scheduled days and that he did not know he could have asked for a new day.^[2] He admitted that when he asked for gas cards or scrip, the social worker provided it, but he stated that gas was still too expensive and it was a hard drive to visit the minor in the Riverside area. He testified that he had never been offered transportation or bus passes.

Father also testified that he was currently living with mother, but eventually, with clear reluctance, agreed that he would separate from her if necessary to obtain custody of the minor. (The department was resistant to placing the minor in mothers care due to her failure to reunify and the problems that led to the minors removal.)

The social worker testified that at the October meeting, she reminded father to contact her about visitation and encouraged him to begin visiting the minor. The social worker admitted that she had not had monthly meetings with father in November or December.

After reviewing the evidence, the trial court found that father had failed to make substantial progress and that reasonable services had been offered. Reunification services were terminated and a hearing set pursuant to Welfare and Institutions Code section 366.26.^[3]

DISCUSSION

It is axiomatic that if the department does not provide reasonable reunification services to a parent, the court must order that services be continued. ( 361.5, subd. (a)(3); In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) We review a trial courts finding that services were adequate under the substantial evidence standard. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)

Father argues that the services offered were inadequate because they did not prepare him to care for a medically fragile child. We agree that this is a red herring. The case plan did not include a provision for such specific services and father never requested any. More importantly, the trial court did not decide to terminate services to father because it believed he could not care for the minors special needs. Instead, it relied upon the finding that father had not initiated and maintained regular visitation with the minor. Section 366.21, subdivision (g)(1)(A), permits the court to extend services beyond the 12-month point only if the parent has consistently and regularly contacted and visited with the child. The trial court stated, I certainly cant find that, and implicitly rejected fathers explanations for his failure to visit. The lack of specific care training was irrelevant in light of fathers failure to act diligently to establish a relationship with the minor.

Insofar as father also argues that he was prevented from visiting the minor due to the distant placement from his home, we also reject the contention. We accept that a drive of 100 miles each way is tiring. However, we cannot assume that an adequate placement nearer to fathers assignment could have been found, considering the minors medical problems and the need to be close to a care facility. Furthermore, as the trial court noted, [Fathers] given more than . . . another person coming into the situation would do. But hes not doing what a parent would do. I say yes youve done good with what you have and what youre trying to accomplish. Its not what a parent would do. (Italics added.)

The fact is, father made no attempt to visit with the minor from September until Aprilby which time, perhaps not coincidentally, a report had been filed recommending that services be terminated and a permanency planning hearing be scheduled. Father did not make use of the gas scrip provided. Furthermore, when father finally began to inquire about counseling, he told the counselor that Friday afternoons were reserved for visitsvisits that had not yet taken place, but which he now was able to arrange. Substantial evidence supports the implied finding that fathers failure to visit was not the result of the minors placement in Riverside.^[4]

If father is arguing that he was making adequate progress and should have been given more services, we disagree. Although he had apparently completed a parenting program and had received a certificate, his participation in counseling and visits with the minor were too little too late to permit him to show any progress either in understanding his family dynamics^[5]or establishing a relationship with the minor.

Finally, insofar as father notes that the social worker assumed the duty to make monthly contact with him, and failed to carry out this obligation during the months of November and December 2007, he has not shown that this omission had any bearing on his failure to progress. He shares responsibility, having neglected to make any attempt to inform the social worker of his claimed difficulties in arranging for visitation or counseling.

DISPOSITION

The petition for writ of mandate is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

McKINSTER

J.

GAUT

J.

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^[1] Father explained that he had transferred to a nondeployable unit, but did not explain why he could not have done so sooner.

^[2] In fact, it is not completely clear from fathers testimony whether he took the position that all Fridays were impossible, or that his unavailability was unpredictable and would depend on his military assignments.

^[3] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[4] It will be remembered that when Father first spoke to the counselor, he was not even sure of the minors name or how to pronounce it.

^[5] Father testified that his counseling subjects included How I feel about what is going on . . . about [not being] the actual birth father [and] how I feel about, you know, having the child in my home.