Eric S. v. Superior Court
Filed 12/2/13 Eric S. v. Superior Court CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ERIC S.,
Petitioner,
v.
THE SUPERIOR
COURT OF SAN DIEGO
COUNTY,
Respondent;
D064463
(San Diego
County
Super. Ct.
No. SJ12789)
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
Proceedings
for extraordinary relief after reference to a Welfare and Institutions Code
section 366.26 hearing. Garry G.
Haehnle, Judge. Petition denied; request
for stay denied.
Dependency Legal Group of San Diego
and John P. McCurley for Petitioner.
Thomas E.
Montgomery, County Counsel,
John E. Philips, Chief Deputy County Counsel and Paula J. Roach, Deputy County
Counsel, for Real Party in Interest San Diego
County Health and Human Services
Agency.
Dependency
Legal Group of San Diego and Amanda
J. Gonzales for Real Party in Interest Chloe S., a Minor.
Eric S.
seeks writ review of juvenile court
orders granting a writ petition filed by his daughter, Chloe S., under
Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 388, subdivision (c)(1)B), terminating his
matter to a section 366.26 hearing. We
deny the petition and deny the request for a stay of the proceedings.
FACTUAL
AND PROCEDURAL BACKGROUND
On July 30,
2012, the San Diego County Health and
Human Services Agency (the Agency) petitioned under section 300,
subdivision (b) on behalf of five-year-old Chloe, alleging her mother, C.A.,
was mentally ill and incapable of providing regular care.
The social
worker reported Eric lives in Los Angeles County and had a voluntary services
case there due to domestic violence.
Eric admitted domestic violence in his relationships with his current
girlfriend and with C.A., and admitted he had been jailed and was currently on
probation for domestic violence. He had not
fully completed his voluntary services case in Los Angeles regarding two
other children. He admitted smoking
marijuana and said he had a marijuana card.
He indicated he was interested in having Chloe placed with him.
At the
jurisdictional/dispositional hearing the court ordered custody removed from the
parents, declared Chloe a dependent child of the court, ordered reunification
services for C.A. and Eric, and ordered Chloe placed in relative care. She was placed with her maternal grandmother
(the grandmother).
Chloe's
therapist reported Chloe showed anxiety, fear, grief and loss, guardedness,
avoidance and over-compliance caused by her exposure to domestic violence and
C.A.'s drug use and neglect. The
therapist said Chloe was afraid of being removed from the grandmother and said
she wanted to return to C.A. when it was safe.
During the
first six months of the dependency case, Eric did not travel to San Diego
to see Chloe. Chloe was indifferent to
his telephone calls and said she did not know him and had nothing to say to
him. Eric said he wanted to work on developing
a bond with Chloe and would like the Agency to help by facilitating visits.
At the six-month-review
hearing on March 27, 2013, the court ordered continued reunification services
and set a 12-month hearing.
On June 21,
2013, Chloe's counsel petitioned under section 388, subdivision (c)(1)B),
requesting the court terminate Eric's and C.A.'s reunification services. The petition stated Chloe needs stability and
permanency, C.A. no longer wished to participate in services, Eric's contact
with Chloe was inconsistent and limited, and Chloe sometimes said she did not
want to talk with him.
Chloe's
therapist reported Chloe's fear and insecurity had lessened through therapy and
she was thriving in the grandmother's care.
The social worker said Eric had made only minimal progress since the
time of the six-month review hearing. He
had come to San Diego to visit Chloe only twice, and said he was working on
obtaining more stable transportation so he could visit more often. At first, after the six-month hearing, he had
called her every week, but the frequency of his calls soon decreased. He said he did not want to disrupt Chloe's
placement with the grandmother, but wanted to continue to be able to visit her.
The court
ordered an evidentiary hearing on Chloe's petition. At the hearing on the petition on August 9,
2013, the parties stipulated that if Eric were to testify, he would say he had
his first in-person visit with Chloe in March 2013 and a second visit in
April. A third visit did not take place
because he lacked transportation. He
would say he had called multiple times after his first visit, but was
uncomfortable leaving messages because of his relationship with the
grandmother. He had problems reaching
Chloe and did not believe the grandmother would facilitate contact with her.
If the
social worker were to testify, she would state Chloe did not appear to be
afraid of Eric, but to enjoy her two visits with him. She would say Chloe told her that at times
she did not want to talk with Eric because she was busy and she did not know
him or know what to say. The social
worker suggested topics to talk about and Chloe discussed these issues with her
therapist. The social worker would say
Eric did not ask for assistance with transportation, and every time he
requested her help, she followed up on his request.
The parties
stipulated that if the grandmother were to testify, she would say Eric
telephoned about once each month, he did not leave messages, and, if she saw he
had called, she would ask Chloe if she would like to call him back. She would say Eric last called on Fathers'
Day and he never sent any letters.
After
considering the evidence and argument by counsel, the court found Eric had been
provided with reasonable services and he had made minimal efforts to contact
Chloe. It found because of his lack of
action, it was reasonably likely that reunification would not occur by the
12-month date. It terminated services
and set a section 366.26 hearing.
Eric
petitioned for review of the juvenile court's orders. (§ 366.26, subd. (l); Cal.
Rules of Court, rule 8.452.) This court issued an order to show cause, the
Agency responded and the parties waived oral
argument.
DISCUSSION
Eric contends
the court abused its discretion by holding a hearing on Chloe's petition. He also argues there was insufficient evidence
to support the order granting the petition and insufficient evidence to support
finding he had failed to visit Chloe, and the court erred and violated his
right to due process by granting the petition without finding by clear and
convincing evidence that placing Chloe with him would be detrimental. He further claims he did not receive
reasonable reunification services, and the court erred by not making a finding
regarding Chloe's best interests.
A. Legal Principles
When a
juvenile court removes a child who is three years old or older from parental
custody, the parents are generally entitled to 12 months of reunification
services. (§§ 361.5, subd. (a)(1)(A), 366.21, subd. (f).) However, a party may petition under section
388, subdivision (c) for the court to terminate services before the 12-month
date. Section 388, subdivisions (c)(1)(B) and (c)(3) provide the court shall
terminate reunification services if it finds the actions or inactions of the
parent have created a substantial likelihood that reunification will not occur
and that reasonable services were offered or provided. In making its determination, the court
considers factors such as the parent's failure to visit the child or
participate regularly and make substantive progress in a court-ordered
treatment plan. (§ 388, subd.
(c)(1)(B); In re Katelynn Y.
(2012) 209 Cal.App.4th 871, 880.)
B. Application
1. Prima Facie Finding on the
Section 388 Petition
Eric first
contends the court abused its discretion by holding a hearing on the section
388 petition because Chloe's counsel did not make a prima facie showing. This argument is moot because the hearing was
held and the court made a determination on the evidence. It is the court's decision from the
evidentiary hearing that affects Eric's rights, not the decision to hold the
hearing. (See In re Richard D. (1972) 23 Cal.App.3d 592, 595.)
2. Sufficiency of the Evidence to
Grant the Petition
Eric
contends insufficient evidence supports the court's decision to grant the
petition. He argues there was not
sufficient evidence to support finding he had failed to visit Chloe in that he
called her at least once each month and twice visited her in person.
Eric's
argument lacks merit. The statute does
not require, as he suggests, that the parent completely fail to visit, but that
his or her actions or inactions have created a substantial likelihood that
reunification will not occur. Eric had
only a minimal relationship with Chloe and he did very little during the
dependency period to remedy this situation.
During the first six months of the case, he had no face-to-face visits
with Chloe and during the second reporting period had only two in-person
visits, and, according to the grandmother, called only a handful of times and
did not leave messages. He last talked
with Chloe in June, almost two months before the hearing on the petition.
At the
six-month hearing the court commented that the case was not progressing as it
should. Eric's counsel said Eric was
aware of the problem and that she had discussed with him and his relatives the
urgent need for Eric to take a more proactive role. She reported Eric understood and said he
would take more initiative to visit and call Chloe. In the July 2013 addendum report, the social
worker said that at first after the six-month review hearing, Eric followed
through with his promise to make a greater effort to come to San Diego to visit
and be more consistent with telephone calls, but "unfortunately, this
pattern did not last too long, and it became difficult for [Eric] to continue
the initial forward progress."
Moreover, Eric did not bring his transportation difficulties to the
Agency's attention until about one month before the hearing. His argument he did not leave messages
because of his poor relationship with the grandmother is not persuasive. If he wanted a relationship with Chloe it was
his responsibility to take the initiative to help it happen. Substantial evidence supports finding that
Eric did not have regular, consistent visitation with Chloe and made only
minimal efforts to contact her, and there was not a substantial likelihood of
her returning to parental custody by the 12-month date.
3. Termination of Reunification
Services without a Finding of Detriment
Eric
asserts because he was the non-offending, non-custodial parent in this case,
the court violated his due process rights by terminating his reunification
services and setting a section 366.26 hearing without finding by clear and
convincing evidence that placing Chloe with him would be detrimental to her
safety and well being.
The court
complied with the substantive and procedural requirements by finding at the
six-month review hearing by a preponderance of the evidence that returning
Chloe to parental custody would create a substantial risk of detriment to her
physical and emotional well being. This
finding was supported by substantial evidence.
In addition the court found by clear
and convincing evidence that Eric's inaction created a substantial
likelihood that reunification would not occur.
Eric had little relationship with Chloe and, although he first indicated
he wanted placement, he never asked for her to be placed with him, but said his
main concern was that Chloe be with family and agreed she should be placed with
the grandmother as long as he could visit her.
No further finding of detriment at the hearing on the section 388
petition was required. (§ 361.2,
subd. (a), see Robert L. v. Superior
Court (1996) 45 Cal.App.4th 619, 628.)
Eric's
reliance on In re Manolito L. (2001)
90 Cal.App.4th 753 is misplaced. In
reviewing court held that when a social services agency petitions under section
388, subdivision (a) to suspend a parent's visitation pending a section 366.26
hearing, the court must make a finding of detriment. (In re
Manolito L., supra, 90 Cal.App.4th at pp. 759-760.) Section 366.21, subdivision (h) requires "[t]he
court shall continue to permit the parent . . . to visit
the child pending the [section 366.26] hearing unless it finds that visitation
would be detrimental to the child."
This holding is inapplicable here because this case does not involve a
termination of visitation. The
requirement of a finding of detriment also is not required as Eric suggests by
the California Rules of Court. Eric has
not shown a denial of due process.
4. Reasonable Reunification
Services
Eric's
argument that he did not receive reasonable reunification services is unpersuasive. Substantial evidence supports the court's
finding that reasonable reunification services were provided.
Eric argues
that although conjoint therapy was part of his services plan, this component of
the plan was not employed. However,
conjoint therapy could not be implemented until the social worker and Chloe's
therapist determined it was appropriate.
Chloe was emotionally fragile and was in therapy because of the trauma
she had experienced in C.A.'s care. She
feared she would be removed from the grandmother, and Eric had had little
contact or communication with her before the time of the hearing. Conjoint therapy would not have been
appropriate. Further, Eric had great
difficulty travelling to San Diego to visit and there was no showing that he
would have had more success in attending conjoint therapy sessions. Substantial evidence supports the finding
that Eric received or was offered reasonable reunification services.
5. Lack of a Finding as to Chloe's
Best Interests
We also
reject Eric's argument that the court erred by not making a finding as to Chloe's
best interests. It can be implied that
the court considered Chloe's best interests in making its decision. The court commented on the absence of a bond
between Chloe and Eric and on Eric's failure to stay in contact with her and
develop a relationship. Chloe needed
stability and a permanent home and was making progress in therapy to overcome
the trauma she had endured in the C.A.'s care.
Eric had not shown he was interested in being her full-time parent. The court's comments showed it took into
account Chloe's best interests in making its decision.
Substantial
evidence supports the court's findings.
Eric has not shown error by the court granting Chloe's petition under
section 388, subdivision (c)(1)(B), terminating reunification services and
setting a section 366.26 hearing.
DISPOSITION
The petition is denied.
The request for stay is denied.
NARES, J.
WE CONCUR:
BENKE, Acting P.J.
AARON, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code.
