Fabian L. v. Superior Court
Filed 2/22/13 Fabian L. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
FABIAN L.,
Petitioner;
v.
THE SUPERIOR COURT
OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,
Real Parties
in Interest.
G047627
(Super. Ct.
No. DP022269)
O P I N I O
N
Original proceedings;
petition for a writ of mandate/prohibition to challenge an order of the
Superior Court of
County, Gary Bischoff, Temporary Judge.
(Pursuant to Cal. Const.,
art. VI, § 21.) Writ denied.
Michelle Jarvis for
Petitioner.
Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel,
for Plaintiff and Respondent.
Rebecca N. Captain for
the minor.
* *
*
Fabian L. (Father)
challenges the termination of reunification
services at the six-month review hearing, regarding his three-year-old
daughter A.L. He asserts there was
juvenile court’s finding that as an incarcerated parent he failed to make
substantive progress in his court-ordered treatment plan and the court abused
its discretion in terminating reunification services. Finding his arguments lack merit, we affirm
the judgment.
I
On February 27, 2012, two-year-old A.L. was taken
into protective custody after her paternal great-grandmother and paternal
grandmother took the child to a hospital.
Orange County Social Services
Agency (SSA) filed a petition alleging A.L. fell within the provisions of
Welfare and Institutions Code section 300, subdivision (b) [failure to
protect].
an “unkempt condition,†having an odor and redness in her vaginal area. They observed A.L. had numerous bruises and
scratches to her face. She was diagnosed
as having a urinary tract infection. The
child’s 22-year-old mother (Mother) was unable to provide a reasonable
explanation for A.L.’s physical condition.
The petition stated
Mother, while under the influence of methamphetamine, was the child’s primary
custodian. On numerous occasions, Mother
left A.L. without adequate supervision, allowing A.L.’s three-year-old cousin
to fight with and injure A.L. Mother
failed to provide A.L. with adequate medical care, including
immunizations. Mother had an unresolved
history of substance abuse and domestic violence with Father. In May 2010, she was granted a temporary
restraining order against Father due to allegations of domestic violence. Mother was fearful Father would kidnap A.L.
The petition alleged
23-year-old Father also had an unresolved history of substance abuse,
unresolved anger management problems, and a criminal history dating back to his
teens. The offenses included robbery,
possession of a controlled substance, carrying a concealed weapon, and multiple
counts of participating in a criminal street gang. Father was incarcerated in Yucaipa.
The paternal grandmother
stated she and paternal great-grandmother picked up the child every Friday and
returned her sometime the following week.
They took her to the hospital after they picked her up for a visit and
found her soiled, unkempt, dirty, and smelly.
Paternal grandmother told the social worker Father had been in prison
for two years for tagging and gang association.
She believed he was due to be released in one and one-half years. When Mother gave her permission, the paternal
relatives took A.L. to visit Father.
A.L. lived with paternal
grandmother for the first part of her life.
This arrangement ended when paternal great-grandmother discovered Mother
had been stealing from her. Mother kept
the child from the paternal relatives for about
eight
months, but for the past few months she had permitted them to take the child on
weekends. The paternal relatives stated
the child was always dirty and injured when they visited her. The paternal grandmother stated A.L. told her
the bruise under her eye occurred when Mother punched her. Paternal grandmother stated Mother’s parents
were also drug addicts.
A.L. was placed with her
maternal great aunt. At the detention
hearing, the court found Father to be A.L.’s presumed father. On March 13, 2012, a social worker sent an
“‘incarcerated parent’s packet’†to Father.
The packet included blank paper, addressed, postage paid envelopes, a
suggested reading list, and two chapters from a parenting handbook. The social worker advised Father to attend parent
education classes and any counseling services available at the prison.
In April 2012, the
social worker interviewed Father at Oak Glen Conservation Camp in Yucaipa. He denied Mother’s allegations of domestic
violence. Father stated he stopped smoking
methamphetamine when he turned 18, but he still drank occasionally. He denied being involved with a gang
anymore. He stated that during A.L.’s
last visit, she knew who her daddy was.
He wanted the paternal relatives to be given as many visits as possible
and he requested A.L. be placed with paternal
great-grandmother
because A.L. was close to her. He stated
the paternal relatives would transport her to the jail for visits. He wanted A.L. to live with him when he was
released.
Father told the social
worker his mother abused drugs and physically abused him. As a child, he was removed from his mother’s
care on two occasions and placed with paternal great-grandmother. Father met Mother when he was 15, and they
married in 2009. Father stated he was
going to divorce her because she lied and did not remain faithful. Father was arrested in June 2010, for placing
graffiti on a federal building. He was
sentenced to four years and eight months because the offense was his second
strike.
In her April 2012
report, the social worker changed her recommendation for Father from
reunification to no reunification services.
Her recommendation was based on Father’s admission that in 2010 he was
sentenced to four years in prison, which meant he would be incarcerated for one
more year, and A.L. was two years old at the time of detention. The social worker stated the parent/child
bond could not be very strong because Father had been incarcerated for most of
A.L.’s young life.
In addition, the social
worker opined the prognosis for this family was poor. “It is unfortunate that both [Mother] and
[Father] . . . were both foster children at one time and the cycle has
continued. [Mother] seems too young and
immature to fully appreciate the meaning of being a responsible mother and has
emotional issues . . . . [Father] stated
that he was deeply involved with gangs, but is no longer involved with
them. The undersigned has no way of
knowing [if this is true], but at the time of his gang involvement, [Father]
was not considering the fact that he was married and had a child. [Father] is also young and has emotional
issues from his past, but this is not the child’s fault and the child deserves
a permanent home, free of drug abuse and gang violence.â€
On April 16, 2012, the
court found the petition to be true and ordered SSA to provide reunification
services to Mother and Father. Father’s
case plan required him to participate in counseling upon his release from
prison. While incarcerated, Father was
to participate in any available inmate service programs to facilitate
reunification, including drug treatment, parent education, vocational training,
and counseling.
Before the six-month
review hearing, a different social worker prepared a report in October 2012,
recommending the continuation of reunification services. A.L. was still placed with her maternal great
aunt, where she was happy and thriving.
The social worker reported Mother was living with her fiancé and they
were expecting a child. Mother admitted
she had not complied with the terms of her reunification plan, except for
visiting A.L. Mother indicated she had
concerns about the paternal relatives’ visits with A.L., and she requested they
be monitored.
The social worker noted
Father was still incarcerated at the camp, where he was working as a
firefighter. He had maintained regular
contact with the social worker by writing and by telephone, expressing his
commitment to A.L. Father had also
written to A.L. and was working hard to remain connected with the child. He expected to be released at the end of
2013. The social worker opined Father
was receiving good vocational training as a firefighter, but the camp did not
offer other services such as counseling or parenting classes. She said Father had studied the information
given to him about child development and parenting, and he reported the
information was very helpful. Father
stated he was saving the small salary he received for working as a firefighter
to provide for A.L. He intended to be a
part of A.L.’s life, and his family would provide him with a great support
system upon his release to facilitate their reunification.
The social worker mailed
Father additional stamped envelopes because he had consistently remained in
contact with the social worker and A.L.
She also sent him a book on parenting by the Boys Town
organization. Father reported the
materials were helpful, and he requested more literature on child development
and parenting. A.L. visited Father once
a month. The social worker concluded
Father’s cooperation with the case plan had been substantial, but qualified
this by also stating Father had “substantial compliance with visitation,
although limited participation in services due to being incarcerated.â€
The six-month review
hearing was continued to November 2012.
The social worker prepared an addendum report on November 1, 2012,
changing her recommendation. She
suggested the court terminate reunification services and schedule a permanency
hearing under section 366.26 (hereafter .26 hearing)
In her report, the
social worker did not explain the specific reason for the change of
recommendation, but rather reported on the following series of facts. Father had called the social worker to
reiterate his desire to reunify with A.L. when he was released at the end of
2013. Father stated he would like to
receive more reunification services. The
following day, the social worker spoke to Mother, who relinquished her parental
rights. Mother indicated she would like
the maternal great aunt to adopt A.L.
Mother did not want the paternal relatives to have contact with A.L.
The paternal grandmother
told the social worker she would like more visits with A.L. She stated Father was scheduled to be
released in August 2013, but it could be sooner due to good behavior. The social worker opined Father and the
paternal relatives had expressed a great deal of love for A.L., and they were
interested in being involved in her life.
Father often wrote to the social worker about his hopes to reunify with
A.L.
The social worker also
noted A.L. was a happy, well-adjusted,
three-year-old
girl. A.L. appeared to be loved and well
cared for by the maternal great aunt and her husband. They were interested in adopting her.
The court held a
contested six-month review hearing on November 1, 2012. Counsel presented argument on whether Father
had made substantial progress with his case plan. Father’s counsel noted the parties’ stipulation
contained the finding Father made “substantial progress†with his reunification
plan. Father requested visitation be
extended from one hour to three hours with A.L.
Minor’s counsel stated the finding of substantial progress was based on
a social worker’s prior report and it was erroneous, because, “Father hasn’t
complied with any one component of his case plan besides visitation.â€
Counsel for SSA joined
in the statements made by minor’s counsel.
She added Father had certainly acquired job skills as a firefighter
while in custody, and he had been visiting A.L., but there was no evidence the
child could be returned to his care in
six
months because he will still be incarcerated.
Because the case was moving towards a .26 hearing, SSA did not believe
an increase in visitation would be appropriate.
Before ruling, the court
asked Father’s counsel to point to specific evidence in the record on which
there could be a finding of substantial progress with the case plan. Counsel pointed to Father’s training as a
firefighter, his efforts to become a better man, his consistent contact and
commitment to A.L., his correspondence with the social worker, his
demonstration of taking responsibility, and his self-study of parenting and
child development. Father’s counsel
stated the social worker’s finding of substantial compliance was based on
Father’s extraordinary efforts in light of the limited resources available.
The court stated that
after looking at the list of causes necessitating A.L.’s placement, the finding
of substantial progress must relate to Father’s efforts to alleviate or
mitigate those specific issues. The
court reasoned Father’s actual progress with respect to the original problems
(of drug usage and violence) was minimal.
The court modified the stipulated proposed orders and findings by
striking “‘substantial’†and checking the box titled “‘minimal.’†The court terminated reunification services
and scheduled a .26 hearing for February 25, 2013.
II
Father
timely filed a petition for writ of mandate (Cal. Rules of Court,
rule 8.452), challenging the
court’s factual findings for lack of substantial evidence. Father asserts he did all that he could do
while incarcerated. He contends the only
reason the social worker changed her recommendation regarding his services was
because Mother decided to relinquish her parental rights. We find the court’s order is supported by
substantial evidence and the court did not abuse its discretion in
discontinuing Father’s reunification services.
A. Applicable Law
“‘[F]amily preservation
is the first priority when dependency proceedings are commenced.’ [Citation.]
To that end, ‘[w]hen a child is removed from a parent’s custody, the
juvenile court ordinarily must order child welfare services for the minor and
the parent for the purpose of facilitating reunification of the family.’ [Citations.]
[¶] In cases like the instant
one, where the child is less than three years old and reunification services
have been ordered, ‘the court shall inform the parent or guardian that the
failure of the parent or guardian to participate regularly in any court-ordered
treatment programs or to cooperate or avail himself or herself of services
provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after
six months.’ (§ 361.5, subd. (a)(3),
italics added.) Whereas services are
presumptively provided for 12 months to children over the age of three and
their parents (§ 361.5,
subd.
(a)(1)), the presumptive rule for children under the age of three on the date
of initial removal is that ‘court-ordered services shall not exceed a period of
six months from the date the child entered foster care.’ (§ 361.5, subd. (a)(2); see
91
Cal.App.4th 1153, 1160-1161.) The
‘“unique developmental needs of infants and toddlersâ€â€™ [citation] justifies a
greater emphasis on establishing permanency and stability earlier in the
dependency process ‘“in cases with a poor prognosis for family
reunification.â€â€™ [Citation.]†(M.V.
v. Superior Court (2008) 167 Cal.App.4th 166,
174-175.)
“The status of every
dependent child in foster care shall be reviewed periodically as determined by
the court but no less frequently than once every
six
months.†(§ 366, subd. (a)(1).) “The third paragraph of section 366.21,
subdivision (e), requires a specialized inquiry at the six-month review for
children like [A.L.], who are ‘under the age of three years on the date of the
initial removal’ and are not being returned to the custody of their parents at
that time. For such dependent children,
if ‘the court finds by clear and convincing evidence that the parent failed to
participate regularly and make substantive progress in a court-ordered
treatment plan, the court may schedule a
hearing pursuant to [s]ection 366.26
within 120 days. If, however, the court
finds there is a substantial probability
that the child . . . 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.)†(M.V.,
supra, 167 Cal.App.4th at p. 175.)
“Thus, there are two
distinct determinations to be made by trial courts applying the third paragraph
of section 366.21, subdivision (e).
First, the statute identifies specific factual findings—failure to
participate regularly and make substantive progress in the court-ordered
treatment plan—that, if found by clear and convincing evidence, would
hearing to terminate parental rights.
But this inquiry does not require
the court to schedule a .26 hearing (“the court may schedule a hearingâ€). (§
366.21, subd. (e), italics added; see In
re Jesse W. (2007)
157
Cal.App.4th 49, 62 [‘The statute makes clear that the court has discretion to set
a section 366.26 hearing at the six-month review hearing under specified
circumstances
.
. . .†(italics added)].) Instead, it
authorizes the court to set such a hearing if the required findings have been
made.†(M.V., supra, 167 Cal.App.4th at pp. 175-176.)
“The second
determination called for by the third paragraph of
section
366.21, subdivision (e), protects parents and guardians against premature
.26
hearings. Notwithstanding any findings
made pursuant to the first determination, the court shall not set a .26 hearing
if it finds either[:] (1) ‘there is a
substantial probability that the child . . . may be returned to his or her
parent . . . within six months . . .’; or
(2)
‘reasonable services have not been provided . . .’ to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the
case to the 12-month review if it makes either of these findings. However, the court is not required to set a
.26 hearing even if it finds against the parent on both of these findings. The parent is also entitled to continued
reunification services (with any necessary modifications) if the court makes
either of these findings in favor of the parent. [Citations.]â€
(M.V., supra, 167 Cal.App.4th
at p. 176, fn. omitted.)
Reunification services
for incarcerated parents are specifically governed by section 361.5,
subdivision (e)(1), which provides, “the court shall order reasonable services
unless the court determines, by clear and convincing evidence, those services
would be detrimental to the child.†In
determining the existence of detriment, the court is to consider several
factors, “the likelihood of the parent’s discharge from incarceration
.
. . within the reunification time limitations described in subdivision (a), and
any other appropriate factors.†(
In ordering services for incarcerated parents, the court must consider
what is available to that parent: “In
determining the content of reasonable services, the court shall consider the
particular barriers to an incarcerated, institutionalized . . . parent’s access
to those court-mandated services and ability to maintain contact with his or
her child, and shall document this information in the child’s case plan.†(Ibid.) Thus, a parent may be required as part of
their service plan to attend counseling, parenting classes, or vocational
training programs if access to those services is provided.
“We review an order
terminating reunification services to determine if it is supported by
substantial evidence. [Citation.] In making this determination, we review the
record in the light most favorable to the court’s determinations and draw all
reasonable inferences from the evidence to support the findings and
orders. [Citation.] ‘We do not reweigh
the evidence or exercise independent judgment, but merely determine if there
are sufficient facts to support the findings of the trial court.’ [Citation.]
(Kevin R. v. Superior Court (2010)
191 Cal.App.4th 676, 688-689.)
Analysis
When two-year-old A.L.
was taken into protective custody, Father was incarcerated. The trial court determined reunification
services would not be detrimental to A.L. (§ 361.5) despite the social
worker’s initial recommendation Father not receive services because his minimum
period of incarceration put him well beyond the six month period (for a child
under the age of three such as A.L.) to which reunification was limited. SSA changed its recommendation before the
disposition hearing, and the court ordered services for both parents, adopting
the social worker’s case plan.
The services provided to
Father as an incarcerated parent were reasonable, and Father does not allege
the reunification case plan provided to him was unreasonable. The social worker sent him appropriate
materials, and after investigating the services available in his institution,
tailored a suitable case plan. As
documented throughout the record, the “fire camp†offered excellent vocational
training but could not offer Father any meaningful reunification-relevant
resources. The social worker reported
Father had no access to drug treatment, counseling, anger management (to
address his issues with domestic violence), or a parenting class. But under section 361.5, Father was not
expected to participate in services that were not available. It is undisputed that, as required by his
specifically tailored case plan, Father took advantage of the vocational
services offered, kept in consistent contact with the social worker and A.L.,
and engaged in a self-study course of parenting with materials supplied by the
social worker. We conclude he
substantially complied with the case plan offered to him. He clearly exhibited a strong commitment to
his daughter regardless of the barriers he faced as an incarcerated
parent. We commend him for making such a
strong effort to turn his life around, away from a criminal gang lifestyle, and
towards becoming a responsible and better man.
While Father’s great
strides in personal growth will certainly serve him well after his release from
custody, it is simply not enough to compel reversal of the court’s orders. Father’s substantial compliance
with the requirement a parent make substantial progress towards reunification with a three-year old child within the statutorily
prescribed time period of six months.
The one finding does not automatically compel the other.
As reasonably determined
by the juvenile court, there was no evidence Father made more than minimal
progress with respect to alleviating or mitigating the problems that led to
A.L.’s detention, namely drug abuse and domestic violence issues. The six-month review hearing was held over
eight months after A.L.’s detention, two months past the statutorily prescribed
six month reunification period for a child A.L.’s age. Unfortunately, Father’s place of
incarceration prevented him addressing the serious problems that led to A.L.’s
detention. Indeed, there is simply no
evidence from which the court could reasonably conclude Father, following his
release from prison in August 2013, could be able to safely care for A.L. while
remaining sober, staying out of the gang, maintaining employment, and not
engaging in domestic violence in front of A.L.
Simply stated, Father’s
case plan compliance, while commendable, was not enough to justify making A.L.
wait any longer for the mere possibility of reunification with her father in
the distant future. This conclusion goes
to the heart of Father’s appeal. How can
substantial compliance with a reunification plan not be enough evidence to
warrant an additional six months of reunification services? We can certainly appreciate Father’s
frustration because he did all that was asked of him (given the limitations
presented by his incarceration). We can
also understand why Father feels SSA is to blame for “setting him up for
failure†given the unavailability at his camp of counseling and
reunification-type programs he needed to reunify with A.L.
We believe it was
ultimately the juvenile court’s application of the statutory scheme that
created these seemingly unfair circumstances.
We appreciate there is ample and familiar case authority holding
incarcerated parents must generally be provided reasonable services. (See In
re Brittany S. (1993) 17 Cal.App.4th 1399, 1402 [“‘go to prison, lose your
child’†is not an appropriate legal maxim in most circumstances];
1234, 1237-1238 [distance of prison cannot be sole factor in denying services
or visitation], overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414; § 361.5, subd.
(3) [in determining reasonable services, court must take into consideration
particular barriers to an incarcerated parent’s access to services].)
As aptly noted by one
treatise, Seiser & Kumli, California Juvenile Court Practice and Procedure
(2012) § 2.129[2][b], page 2-390 (hereafter Seiser), there is also a statutory
provision authorizing courts to deny services to incarcerated parents and it is
“one of the underutilized dependency provisions.†Section 361.5 recognizes that mandating
services for incarcerated parents in some cases may be detrimental to the
child. In deciding the issue of
detriment, the court considers many factors, including the age of the child,
the period of incarceration, the nature of the crime, the services offered in
custody, and the likelihood of the parent’s release within the reunification
time limits. (§ 361.5, subd.
(e)(1).)
We agree with and
embrace Seiser’s conclusion that “there are many cases in which the provision
of . . . services has little or no likelihood of success and thus only serves
to delay stability for the child, particularly if the incarcerated parent is
the only parent receiving services. This
is especially true when the parent will be incarcerated longer than the maximum
time periods for reunification efforts.
It is also frequently true when the parent is incarcerated in a facility
that has no services sufficient to help the parent work toward reunification
and there is no reasonable way to provide services to that parent. Indeed, to
attempt services in such circumstances may be setting everyone up for failure,
including the parent, agency, and child.
Thus, in cases such as these, it may be possible to show that providing
services to the incarcerated parent would be detrimental to the child since it
would delay permanency with no likelihood of success. Juvenile courts and attorneys for social
services agencies and children should carefully consider the question of
whether providing services to an incarcerated parent would be detrimental to
the child and should utilize this provision to deny services when
appropriate.†(Seiser,
2-391, italics added.)
This statutory provision
should have been applied in this case.
For reasons not clearly apparent in this record, SSA withdrew its
recommendation to deny Father services, and the court approved the proposed
case plan for both parents. Of course
this ruling cannot be reviewed in this appeal at this late date, but the error
necessarily affects our consideration of the court’s decision at the six-month
review hearing (held pursuant to section 366.21) denying Father
serve to remind the court and attorneys to carefully consider in future cases
whether providing services to an incarcerated parent will cause detriment to
the child (and merely serve to disappoint the parent).
Returning to the issue
at hand in this appeal, we hold that despite Father’s substantial compliance
with his case plan, the trial court did not abuse its discretion in denying
further reunification services and scheduling the .26 hearing. Section 366.21, subdivision (e), does not
compel the court to order additional reunification services simply because a
parent makes substantial progress with their court ordered treatment plan. Moreover, the provision gives the juvenile
court discretion to schedule a
.26
hearing, unless there is a substantial probability the child will be returned
to his or her parent in six months or if there was evidence of unreasonable
services. (§ 366.21, subd.
(e).) Neither delaying event occurred in
this case.
First, there was no
substantial probability A.L. would be returned to Father in six months. Father was not scheduled to be released until
August 2013, after which he could start reunification-related
services. And at this point, A.L. will
have been waiting in the dependency system for nearly 18 months without a
permanent placement. Eighteen months is
the outside time limit for all children in the system absent extraordinary
circumstances not present in this case.
(§ 361.5, subd. (a)(3) [notwithstanding section 361.5, subd.
(a)(1)(B), limiting reunification services to a parent of a child under the age
of three to 12 months “court-ordered services may be extended up to a maximum
time period not to exceed 18 monthsâ€].)
Second, the services SSA
provided were not unreasonable. As noted
earlier, the service plan provided for Father reasonably complied with the
statutory scheme for incarcerated parents.
The plan appropriately took into consideration “the particular barriers
. . . and [Father’s limited] access to those court-mandated services and ability
to maintain contact with his or her child.
(§ 361.5, subd. (e)(1).)
Father’s case plan was the best it could be given his location and the
length of his prison sentence. Father,
not SSA, created these circumstances. He
engaged in criminal activity as a teenager and later participated in gang
activity knowing he had a child to provide for and protect. He took part in a firefighting program in
prison that provided good future job prospects but did not offer any
reunification-related services. He was
located in a facility so far away from A.L. that she could only visit him once
a month for one hour and their communication was limited to his letters to
her. In light of the above, Father’s
writ petition lacks merit.
III
The writ is denied.
O’LEARY,
P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.
name="_ftn1" title="">[1] All further statutory
references are to the Welfare and Institutions Code.
