D.Y. v. Super. >Ct.>

 

 

 

 

 

 

 

 

Filed 5/30/13  D.Y. v. Super. Ct. CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
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D.Y.,             Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA,             Respondent;   SONOMA COUNTY HUMAN SERVICES DEPARTMENT et al.,               Real Parties in Interest.	A138072         (Sonoma County Super. Ct.       No. 3903-DEP)

 

            D.Y.
(Father), father of one-year-old D.H., petitions this court pursuant to
California Rules of Court, rule 8.452, to set aside the juvenile court’s
order terminating reunification services
to him and the mother of D.H. (Mother) and setting a permanency hearing under
Welfare and Institutions Code section 366.26 (section 366.26
hearing).href="#_ftn1" name="_ftnref1" title="">[1]  He contends there was no href="http://www.mcmillanlaw.com/">substantial evidence supporting the
finding that he was provided with reasonable reunification services.  We reject the contention and deny the
petition on the merits.

Factual and Procedural Background

            The
Sonoma
County Human Services Department (the Department) filed an original
petition on April 30, 2012,
alleging that Father, who was named as a presumed father in the petition, and
Mother, had failed to protect D.H. 
Mother had mental health and substance abuse issues and was unable to
provide adequate care and support for D.H. 
She had been placed on an involuntary psychiatric hold while D.H. was in
her care and “was assessed as unable to safely care for herself or the child.”  During her pregnancy, she was diagnosed with
“ â€˜Narcotic Addiction with drug-seeking behavior’ â€ and
“ â€˜non-compliance with medical treatment.’ â€  She failed to follow through with referrals
to psychiatrists, mental health case managers, a public health nurse, and the
Drug Free Babies Program.  Father was
aware of Mother’s issues yet allowed her to continue to care for D.H.  Father also “ha[d] a propensity for substance
abuse . . . [and had been] arrested approximately thirteen times with
six convictions (4 felony) for substance abuse related crimes” from 1987 to
2009.  The court detained D.H.

            On
May 23, 2012, Father
and Mother submitted on the allegations and the court sustained the
petition.  The court further found that
giving Father presumed father status may have been premature in light of
evidence the Department presented that Father’s name was not on the birth
certificate, he and Mother had never been married, and D.H. had never lived
with Father.  After a contested hearing
on the issue of paternity, the court ruled that Father did not meet any of the
conditions necessary to establish a legal presumption of paternity, and that he
was therefore ineligible for reunification services.  The court advised that “this determination
could change” as the court retained continuing jurisdiction over the issue. 

            Father
filed a notice of appeal in our court on July 23, 2012, challenging the order denying his
request for presumed father status. 
Father also filed a section 388 petition for an order reinstating
his presumed father status, stating he had signed a declaration of
paternity.  The court granted the
section 388 petition and elevated Father to presumed father status, and in
an order filed October 17, 2012,
granted him reunification services.  We
thereafter dismissed Father’s appeal regarding paternity as moot. 

            Father’s
case plan identified substance abuse, anger management, and parenting as issues
and recommended that he “participate in and complete a course of Domestic
Violence/Anger Management,” parenting education sessions, a substance abuse
evaluation at DAAC (Drug Abuse Alternative Center) and “follow all
recommendations resulting therefrom, including . . . residential
substance abuse treatment, out-patient substance abuse treatment, 12-Step
meetings and substance use testing.”  The
case plan also stated that Father was to “cooperate with the assigned social
worker accepting all referrals for services, keeping the social worker informed
of all changes in circumstances (including changes in housing, household
composition, and participation in services) . . . .”

            In
its status review report of December 6, 2012, the Department stated it was not
able to obtain a clear understanding of Father’s current circumstances due to
his “lack of communication.”  Father had
not complied with a single component of his case plan.  He had not drug tested, had not completed a
substance abuse assessment even though he had been referred to DAAC as early as
May 15, 2012, had not participated in parenting education sessions, and
had not attended an anger management program. 
He had visited D.H. only twice, and because he was not present for most
of the visits, he had been unable to work with the parent educator.  During the visits he attended, he appeared to
have minimal knowledge of age appropriate behavior for an infant.  He had not submitted verification sheets for
attendance in a 12-step program and the Department had been unable to make
referrals for him due to his lack of communication and cooperation.  Even before the court awarded services to
Father, the Department had referred Father to drug treatment and had also
provided him with bus passes and supervised visits.  The Department met with Father on five
occasions between July 2 and October 11, 2012, and also made efforts
to meet with him to review his case plan and provide him with services as soon
as the court granted services to him in October 2012. 

            The
Department further reported that Father had a history of becoming aggressive
while at the Department and in the presence of the social worker.  Due to Father’s angry outbursts, the
Department had a guard present during visits. 
Father also had a very difficult time taking responsibility for his
actions.  The Department recommended that
reunification services be terminated as to both parents.  At a review hearing on December 6, 2012,
Father requested a settlement conference and a contested hearing. 

            On
February 5, 2013, the Department filed an addendum report recommending
termination of services for both parents. 
According to the report, Father had visited D.H. only sporadically.  He did not call to cancel and did not show up
for visits, was incarcerated during one visit, and on one occasion was so loud
and aggressive that the Department’s staff members spent 30 minutes trying
to calm him down.  Father did not return
the social worker’s phone calls, went “ â€˜out of town’ â€ without
notifying the social worker, and otherwise did not maintain contact with the
social worker.  When the social worker
informed Father on November 11, 2012, that the Department would be recommending
termination of services, Father said, “ â€˜you guys are stealing my
baby.’ â€  The social worker reminded
Father that he had failed to meet with her or show up for visits.  Father acknowledged that was true, then asked
to visit D.H. on November 13, 2012. 
The Department scheduled a visit but Father did not show up and did not
call to cancel.  When the social worker
called Father about the missed visit, he said he “ â€˜was coming [down] with
the flu or something.’ â€  The social
worker then asked Father to drug test, which he failed to do.

            When
the social worker tried to contact Father on December 11, 2012, to
schedule a meeting to discuss his case plan, Father did not answer his phone
and his voicemail box was full.  The
social worker then attempted to set up a meeting with him by sending him a
letter on December 19, 2012.  The
social worker also called various contact numbers for Mother and Father in
hopes of finding Father, but was unable to locate him.  On January 7, 2013, Mother informed the
social worker that Father was in jail. 
The social worker spoke to Father on January 17 and 22 and met with
him at jail to encourage him to participate in any parenting, alcohol, or anger
management groups available to him in jail. 
The social worker also provided him with 12-step meeting attendance
verification sheets.  At a review hearing
on February 22, 2013, the court continued reunification services but
scheduled a contested hearing for March 4, 2013, on the issue of services.


            At
the start of the contested hearing,
Father made a Marsden motion (>People v. Marsden (1970) 2 Cal.3d 118),
which the court heard and denied. 
Thereafter, Father was so disruptive during the proceedings that the
court admonished him several times, and ultimately gave him a “last warning”
that he would be removed from the courtroom if he continued to interrupt people
or “provide[d] the court with a distraction.” 


            Social
worker Juana Marquez, who was assigned to the case, testified that D.H. was
removed from her parents in part due to Father’s drug and alcohol abuse and
criminal history relating to his drug and alcohol use.  She testified regarding the services the
Department had provided to Father, including referring him to DAAC on three separate
occasions—May 2012, October 2012, and February 2013.  As of the date of the hearing, Father had
still not contacted DAAC.  He voluntarily
participated in a residential treatment program in or about May 2012 but
left in about August 2012 without completing the program and was “picked
up on warrants” for shoplifting that same month.  Father also drug tested at the beginning of
the case but had not tested a single time after that.  When Marquez called Father in
September 2012 asking him to drug test, Father became “very aggressive”
and yelled at her, “Well, fuck you, bitch.” 
He was also difficult during visits and “would usually become very
aggressive, loud and demanding,” requiring the Department to have a security
guard present during visits. 

            Marquez
further testified that she had a difficult time communicating with Father, who
would “come in” to her office periodically to ask for bus passes or visits, but
was otherwise difficult to get a hold of. 
He had provided her with multiple contact numbers, many of which were
not numbers at which he could be reached. 
Father did call at times but he would leave no contact information, or
if he did, Marquez would call back and no one would answer.  When she called Father on October 29,
2012, to set up a meeting to discuss his case plan and provide him with
referrals, she was unable to reach him. 
On November 8, 2012, Marquez was able to reach Father on the phone
and asked him why he had not scheduled a meeting, and why he was not visiting
D.H.  He responded that he had been out
of town, but when asked where he was, responded that it was “none of
[Marquez’s] business.”  Marquez told
Father that the visits were still happening and gave him the date for the next
visit.  Father did not show up for the
visit and also missed the rest of the November visits.  From the time he was elevated to presumed
father status in October 2012 to mid-February 2013, Father had missed
five of six scheduled visits.  Father was
incarcerated in November 2012 for shoplifting.

            As
Father’s counsel cross-examined Marquez, Father became upset, stating that his
attorney was “not going to the meatball of this case,” and that the hearing was
“a circus.”  He stated, “I’m leaving,
man.  I’m leaving, man. [¶]
. . .[¶] This is a circus, man. 
You guys are just a straight circus, man.”  As the court began to speak, Father
interrupted, stating, “Right. 
Removed.  I’m gone.  Bye-bye. 
I object, man.  And stay out of my
life, man.  I’m taking this shit to the
Ninth Circuit Appeal, man.”  Mother also
left the courtroom.  Upon conclusion of
Marquez’s testimony, the court heard closing arguments, then ruled that “it was
clear that Father did not engage in terms of making substantive progress or
regularly participating in services.” 
The court further found that consistent visitation “was simply not
there,” and also noted there were “only 2 months left to the 12 month date by
which time services absolutely would come to an end.”  The court terminated reunification services
and scheduled a section 366.26 hearing. 


Discussion

            Father
contends there was no substantial evidence
supporting the finding that he was provided with reasonable reunification
services.  We disagree.

            If,
at the six-month review hearing, “the court
finds . . . that the child, who was under three years of
age on the date of initial removal or is a member of a sibling group [in which
one of the siblings was under the age of three years on the date of initial
removal],^{[href="#_ftn2" name="_ftnref2"
title="">[2]]}
may be returned to his or her parent or legal guardian within six months >or that reasonable services have not been
provided, the court shall continue the case to the 12-month permanency
hearing.”  (§ 366.21,
subd. (e), italics added.)  A court
may terminate reunification services and order the setting of a
section 366.26 permanency hearing only if “there is clear and convincing
evidence that reasonable services have been provided or offered to the
parent . . . .” 
(§ 366.21, subd. (g)(1)(C).)

            The
reasonableness of services is judged according to the circumstances of each
case.  (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554.)  A social services agency is required to make
a good faith effort to address the parent’s problems through services, to
maintain reasonable contact with the parent during the course of the plan, and
to make reasonable efforts to assist the parent in areas where compliance
proves difficult.  (Id. at pp. 554-555.)  “In
almost all cases it will be true that more services could have been provided
more frequently and that the services provided were imperfect.  The standard is not whether the services
provided were the best that might be provided in an ideal world, but whether
the services were reasonable under the circumstances.”  (In re
Misako R. (1991) 2 Cal.App.4th 538, 547.)  We determine whether substantial evidence
supports the court’s finding that reasonable services were provided, reviewing
the evidence in a light most favorable to the prevailing party and indulging in
all reasonable inferences to uphold the court’s ruling.  (Id.
at p. 545.)

            The
reunification plan prepared by the Department and ordered by the court was
appropriately designed to address the issues that led to the removal of D.H.
from Father’s care and custody.  Among
other things, the plan required Father to attend anger management classes and
substance abuse classes, be tested for drug use, maintain contact with the
Department, and obtain an assessment from DAAC. 
Father did not comply with a single component of his case plan.  He failed to drug test, did not attend an
anger management program, did not participate in parenting education sessions,
and had not completed a substance abuse assessment even though he had been
referred to DAAC on three occasions.  He
did not visit D.H. regularly and did not maintain contact with the social
worker.

            Father
complains that services were not offered to him until October 17, 2012,
due to the erroneous finding that he was only an alleged father, and that the
Department should therefore be “equitabl[y] estopp[ed] . . . from
[arguing] that . . . [he] delayed in establishing paternity.”  He argues that as a result of the uncertainty
in his status, he “was only a presumed [father] for approximately three to four
months during the life of the case,” which “was not enough time
. . . .”  The record
shows, however, that even before paternity was established, the Department was
providing him with various services including meeting with him to discuss a case
plan, referring him to drug treatment, offering drug testing, and providing him
with bus passes and visitation.  Further,
once paternity was established, and until services were terminated in
March 2013, the Department made efforts to provide services to him by, among
other things, continuing to refer him to DAAC, visiting him in jail to
encourage him to participate in services available to him there, calling him
numerous times to schedule meetings to discuss his case plan, and offering drug
testing and visitation supervision. 
Thus, any delay in establishing paternity did not result in a denial of
reasonable reunification services.

            Father
also complains the Department failed to maintain regular contact with him.  The record shows, however, that the
Department went through great efforts to try to maintain contact with Father
by, among other things, calling him numerous times, trying to leave voice mail
messages for him, calling Mother and her contacts to see if they knew where
Father was, sending him letters, and meeting with him in jail.  Father, on the other hand, often did not
return calls, left no contact information, and disappeared for periods of
time.  “ â€˜The requirement that
reunification services be made available to help a parent overcome those
problems which led to the dependency of his or her minor children is not a
requirement that a social worker take the parent by the hand and escort him or
her to and through classes or counseling sessions.’ â€  (In re
Christina L. (1992) 3 Cal.App.4th 404, 414.)  Here, the record shows that Father’s “real
problem was not a lack of services available but a lack of initiative to
consistently take advantage of the services that were offered.”  (See Angela
S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

            Finally,
Father claims the Department made little or no effort to find a relative
placement for D.H.  Father has not shown,
however, that efforts to find a relative placement is a factor—or even
relevant—in determining reasonableness of services.href="#_ftn3" name="_ftnref3" title="">>[3]  We therefore reject his claim.  In sum, the conditions of the reunification
plan were reasonable, sensible and fair, and were properly designed to prevent
a recurrence of the circumstances that led to the removal of D.H.  (See In
re Dino E. (1992) 6 Cal.App.4th 1768, 1776-1777.)  We conclude there is substantial evidence to
support the juvenile court’s finding that the Department made reasonable
efforts to provide Father with adequate reunification services, and that the
reunification services provided were reasonable.

Disposition

            The
writ petition is denied.  Our opinion is
final as to this court forthwith.

 

 

                                                                                    _________________________

                                                                                    McGuiness,
P.J.

 

 

We concur:

 

 

_________________________

Pollak, J.

 

 

_________________________

Siggins, J.