In re
Filed 1/28/13 In re L.A. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE
DISTRICT
DIVISION FIVE
In re
Juvenile Court Law.
LAKE COUNTY
DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
DOUGLAS A.,
Defendant and Appellant.
A134705
(
Nos. JV320394A, JV320394B,
JV320394C, and JV320394D)
Douglas
A. (Father) appeals from an order of the juvenile court terminating his
reunification services as to his four minor children, L.A., J.A., A.A., and
G.A. at the six-month review hearing. He
contends the juvenile court erred: (1)
in finding respondent
Department of Social Services (Department) provided him reasonable services to
aid him in overcoming the problems that led to the children’s removal; and (2) in
not continuing his reunification services. (Welf. & Inst. Code, § 366.21, subd.
(e).)
juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Detention of the Children
On May 5, 2011,
two-week old G.A. was detained by law enforcement after her caregiver, Jara
Davis, reported that the child’s parents, Father and Candy M. (Mother) had
abandoned the child. Davis said she
barely knew the family, and the parents did not know her address but called on
May 1, 2011, and asked her to take G.A. for a few hours. Davis said the parents did not provide
formula, bottles, clothing, and diapers, forcing her to obtain these items. When she tried to return G.A. the next day, the
parents were unwilling to take the child.
She tried again to return the child on May 4, 2011, but Mother told her
to “ ‘get the baby out of here.’ â€
Davis was unwilling to provide further care.
Later
that day, a social worker attempted a welfare check of the parents’ other
children, L.A. (age four), J.A. (age three), and A.A. (age 11 months). Mother refused to provide information that
day or the next regarding the children’s location, and the social worker was unable
to confirm their well-being and safety.
On
May 10, 2011, the Department filed a petition asking the juvenile court to take
jurisdiction of all four children under section 300, subdivision (b) (failure
to adequately supervise or protect, provide adequate food, clothing, shelter,
and medical treatment). In addition to
allegations the parents left G.A. with an inappropriate caregiver, the petition
alleged they had failed to provide a suitable and stable living environment and
were unable to meet the children’s basic needs by providing adequate parenting
and hygiene. The family shared one
bedroom of a single-wide, two-bedroom trailer, where three other adults also
lived. The trailer had no running water
and no glass in the windows, and living conditions were “cramped, squalid, filthy, and cluttered.†The unfenced yard was “an increasingly
hazardous ‘playground,’ †“piled high with clutter, debris, inoperable
vehicles†and toxins. The children were
filthy and “exhibiting wild and feral behaviors . . . .â€
The
petition alleged further that the parents continually exposed the children to
family violence, noting over 100 law enforcement contacts at the residences
where the children had lived the previous year, including an incident in which
their maternal grandfather tried to hang himself, and a heated argument on May
4, 2011, that resulted in a tug of war involving the children. The petition also alleged ongoing domestic
violence by Father toward Mother in the children’s presence.
Father
was alleged to pose a significant risk to the safety of the children due to his
mental instability, violent, unpredictable nature, cognitive delays, and
substance abuse. He “frequently
present[ed] with erratic, angry, and uncooperative behaviors and developmental
delays.†His criminal history included
violent offenses, and he was required to register as a sex offender. On May 5, 2011, he was cited in the
children’s presence for being under the influence of methamphetamine.
Noting
the parents’ resistance to services they had been offered in the past, the Department
requested removal of the children from their custody.
At
a detention hearing that day, the court appointed counsel for each parent and
the children, ordered detention of all the children, and issued protective
custody warrants for L.A., J.A., and A.A.
These children, who were all found to have head lice, were taken into
protective custody two days later.
The Jurisdiction
Hearing
The
jurisdiction hearing was held on May 23 and 31, 2011. The report for this hearing notes 12 prior
referrals regarding the children since October 2006, including three referrals
in Fall 2010 for emotional
and physical abuse by Father and general neglect.
filthy condition†of the home; numerous law enforcement contacts relating to
family discord and violence, including incidents relating to the maternal
grandparent’s divorce; the parents’ constant fighting, Father’s physical and
emotional abuse of Mother, and bruises on L.A.; transient strangers staying in
the home; and the parents’ failure to follow through with medical and dental
appointments for the children. Mother
signed risk reduction plans in October 2010 and February 2011, agreeing to work
with service providers. Father was
present at every home visit and agreed to be part of the process when the plans
were read and explained, but he declined to sign.
in services.
The
jurisdiction report indicates Father tested positive for marijuana and
methamphetamine on May 6, 2011, and for marijuana on May 16. He reported daily marijuana use to
“ ‘self-medicate,’ †noting it calmed him down and he could not
function without it. This report also
details his criminal history, which includes convictions for drug-related
offenses, domestic violence, and assault with a deadly weapon; a 2006
conviction for annoying or molesting a child; and an April 23, 2011 vandalism
arrest for jumping on the roof of a car in which the children were riding. In February 2011, he was identified as the
perpetrator of a brutal assault on a woman who said he had raped her three
years earlier.
The
court sustained the allegations in the petition, took jurisdiction, and
directed the Department to “start services as best you can.â€
The Disposition
Hearing
The
juvenile court held a disposition hearing on June 20, 2011. The report for this hearing indicates the
parents’ progress toward alleviating or mitigating the causes necessitating
placement was minimal. They had attended
all scheduled weekly visits but had not signed the necessary releases to permit
referral of L.A. and A.A. to services addressing their developmental
delays. The parents had attended three
of four sessions of a weekly Parent Engagement Group, but Father attended one
session smelling of marijuana. In early
June 2011, he missed two appointments with the social worker and failed to
contact her, preventing her from obtaining a social history, evaluating
Father’s strengths, and soliciting input regarding his needs. He also failed to attend a June 8, 2011
meeting to participate in development of his case plan, and did not call to
explain his absence.
The
Department recommended a case plan requiring the parents to obtain and maintain
a stable and suitable residence; attend and actively participate in the Parent
Engagement Group in preparation for an 18-week Nurturing Parenting Program, if
deemed eligible; and, thereafter, to attend an Empowerment Group. In addition, Father was to remain drug-free
and comply with random drug testing. He
was to be referred to Alcohol and Other Drug Services (AODS) for substance
abuse services and was required to comply with the treatment plan, including
inpatient treatment if necessary.
Finally, he was to submit to a psychological evaluation to assess his
developmental disabilities and current mental health diagnosis;
the Department was to tailor his services accordingly “for maximum
effectiveness . . . .â€
The
juvenile court declared Father the children’s presumed father; adjudged the
children dependents of the court and removed them from the parents’ physical
custody; adopted the recommended case plan and ordered the parents to
participate in services; and set a six-month review hearing for December 5, 2011.
The Six-Month
Review Hearing
On December 1,
2011, the Department filed its report for the six-month review hearing,
recommending an additional six months of services for Mother and termination of
services to Father. Father had been
arrested on June 13, 2011, for felony assault with a deadly weapon and felony
battery with serious bodily injury. He
was arrested again on September 5, 2011, for possession of a controlled
substance and carrying a concealed dirk or dagger, and was incarcerated
thereafter. Mother told the social
worker the next day that Father was in jail, stating he “ ‘got really
violent,’ †tried to choke her and said he was going to kill her, and told
her to “ ‘take [her] children and shove them.’ †She obtained a restraining order against him
on October 14, 2011.
name="_ftnref5" title="">[5]
Father
had attended a total of 4 of 10 sessions of the parenting class—only one
session since the disposition hearing.
After the first group on May 12, 2011, his attendance began to lag; he
arrived late, left early, or did not attend at all, and when he did attend, he
appeared to be under the influence. He
had completed only one of four assignments.
Father
had submitted to eight random drug tests since the disposition hearing. He tested positive for methamphetamine on
June 24, 2011, and positive for marijuana every test thereafter. He had missed two appointments for an ASI in
May and June 2011, and his ASI was not completed until August 1, 2011. His AODS intake, scheduled for September 1,
2011, never took place. AODS reported
“there has been no contact with the father whatsoever.â€
Father had attended only 7 of 22
scheduled visits prior to his incarceration.
On one occasion, he arrived so late he was only able to say goodbye to
the children. He appeared distracted,
was not always appropriate with the children, and limited his interaction with
them. The social worker observed during
one visit that Father did not hold G.A. at all and appeared to favor the male
children. During his last visit on
August 30, 2011, he took several smoke breaks, checked his cell phone
frequently, and answered one or more calls.
Several
visits were marked by Father’s emotional outbursts. Before one visit, he called Mother a “fucking
liar†in the presence of G.A. and her foster family and told Mother to take her
“dick suckers†into the other room.
During one visit, he became upset when the social worker tried to
intercede to address his increasingly loud tone in disciplining L.A.; he said,
“ ‘[S]o just let her get away with it!’ †and abruptly left the room, slamming
both doors on the way out and not returning.
During another visit, he called Mother a “fucking liar,†and used a
racially derogatory term to refer to a staff member. When the social worker encouraged him to
leave, noting he was not feeling well and the children should not be exposed to
his poor attitude, Father called her a “fucking bitch.†The social worker and Mother entered the
building, and the doors locked behind them; Father began banging on the glass
so hard the social worker thought he would shatter it. He continued shouting obscenities and yelling
for Mother to leave the visit. The
children could hear his outburst, and the social worker called police.
The
children were negatively affected by Father’s demeanor. After visits, G.A. showed signs of anxiety;
L.A. and J.A. were “hyper†and hard to calm down.
On
July 19, 2011, the Department referred Father for a psychological evaluation by
Dr. Albert Kastl, which Father failed to complete.
hallway, “ ‘Give me my fucking phone,’ †and he was seen yelling and
pacing in the parking lot with his shirt off.
Upset that Dr. Kastl knew about his criminal history, Father said he
considered this “harassment,†noting “ ‘[I]f he wants a confrontation, he
will get a confrontation.’ †Father
later returned to resume the evaluation, but left before testing was complete.
Dr.
Kastl diagnosed Father with a mood disorder and a personality disorder with
prominent paranoid, anti-social, and aggressive features, as well as mild
mental retardation. Dr. Kastl said
Father was “ ‘singularly aggressive and hostile and cannot contain his
impulses,’ †had “ ‘a long history of anti-social behavior, and this
condition is thought refractory to treatment.’ †He also noted major problems with addiction
and substantial evidence of bipolar disorder, “especially in terms of mood
lability, intense anger, verbal outbursts . . . unrealistic demands,â€
but Father refused medication and other psychiatric intervention. Dr. Kastl concluded, “ ‘[T]here are no
services which would change his condition within six (6) months, nor would he
be able to safely parent his children on a long-term basis.’ â€
On
October 3, 2011, the Department referred Father to Dr. Gloria Speicher for a
second psychological evaluation, hoping he would be more stable and amenable
since he had presumably been off marijuana in jail. In her October 15, 2011 report, Dr. Speicher
diagnosed him with dysthymic disorder, cannabis and methamphetamine abuse,
borderline personality disorder with antisocial features, and mild mental
retardation/intellectual disability. She
also noted Father’s impaired judgment, poor internal controls, and poor
understanding of how his behavior affects others. She found he “would not be able to make
sufficient changes in his awareness and behavior to safely parent his children
within the limited amount of time allowed,†noting “the initial stage of resolution of drug abuse issues would likely take
at least 6 months. Solidifying a clean
and sober life in recovery usually takes extensive time beyond that. Doing the work of learning new responses to
emotionally volatile situations takes considerable time, commitment, effort and
support as well.â€
The
social worker visited Father in jail on October 4, 2011, and encouraged him to
participate in A.A./N.A. meetings.
Father expressed interest and asked the social worker to send him a
sign-in sheet, which she did two days later.
When the social worker visited him again on November 23, 2011, Father
said he had asked to attend A.A./N.A. meetings, but “they ‘haven’t been letting
[me] go.’ â€
The
Department found no substantial probability the children could be reunified
with Father if services were extended to May 30, 2012, as his compliance with
his case plan before his arrest was minimal at best, and he was incarcerated
without access to services. The social
worker explained: “Given the
circumstances of [Father’s] mental health issues, substance abuse, and violent
behavior, a successful reunification would require more services than the time
remaining allows.†The social worker
noted that, even apart from Father’s noncompliance before his incarceration,
“the Department is at a loss as to how to tailor future services to overcome
the challenges raised in either evaluation, particularly if [he] continues to
use marijuana if/when he is released.â€
As Father had made little to no progress with services, was facing
charges that could result in a lengthy sentence, and was the subject of a
restraining order by Mother, the Department concluded continued services were
not justified by a substantial probability of success and were not in the
children’s best interests.
At
the six-month review hearing on December 12, 2011, Father’s counsel objected to
termination of his reunification services based on his “not receiving
reasonable services,†specifically, the Department’s failure to tailor services
through the Regional Center’s programs.
Father attributed his initial failure to participate in his case plan to
his substance abuse and requested another six months of services, noting this
would not delay permanency because the Department recommended continued
services to Mother. He testified jail
staff denied his request to attend A.A. meetings because he is housed in
administrative segregation and is only allowed out of his cell for one-half an
hour a day. Jail staff had not responded
to his written request to attend N.A. meetings.
Officer Santana, who accompanied Father to the hearing, told the court
Father’s housing prevented his participation in group services. Father did not believe the jail offered
parenting classes in any case.
The juvenile court
granted Mother an additional six months of services but continued Father’s
request for additional services to January 3, 2012, and directed the Department
to inquire why he was housed in administrative segregation “just to clarify the
record.â€
On
December 30, 2011, the social worker filed a supplemental report stating that,
according to jail classification officer, Sylvia Pascoe, Father requested
administrative segregation due to concerns about another inmate; he could
attend in-house services, including A.A./N.A. meetings, but he must request
these services; and he could receive outside services as well if he obtained
approval from the sergeant or lieutenant.
Pascoe did not know why Father’s request to attend meetings had been
denied. This report indicates the social
worker later left a voicemail message asking classification staff what services
Father could receive while in administrative segregation; this call was not
returned.
At
the January 3, 2012 hearing, Officer Santana stated Father was originally in
protective custody due to his status as a sex offender, but he requested a
keep-away order for his safety. Santana
said individual visits by A.A. could be accommodated, but A.A. usually serves
groups of inmates.
Father’s
criminal attorney told the court she and the district attorney were “looking
very earnestly at some sort of a [substance abuse] program†for Father, and she
was anticipating placement in a local program.
Counsel
for the children opposed additional services for Father.
The
juvenile court adopted the findings and recommendations in the status report,
including findings that Father’s progress toward alleviating the causes of
placement had been inadequate, and that there was no substantial probability he
would reunify with the children by May 29, 2012. In terminating services to Father, the court noted
a number of factors that would be “problematic†to continuing services,
specifically, that he had chosen administrative segregation, his criminal case
remained unresolved, and he was expected to be placed in a drug treatment
program for six months to one year. In
addition, the court noted the age of the children and evidence showing limits
on Father’s ability to benefit from services.
The court adopted a modified case plan and set the case for a 12-month
hearing on May 21, 2012.
Father
filed a timely appeal from the court’s January 3, 2012 order.
DISCUSSION
At
issue in this appeal are the Department’s duty to provide reasonable
reunification services to parents and the juvenile court’s authority to
terminate such services at the six-month review hearing. “To achieve the goal of preserving the family
whenever possible, the Legislature required the county child welfare
departments to develop and implement family reunification plans and required
the courts to monitor those plans through periodic review.†(In re
Daniel G. (1994) 25 Cal.App.4th 1205, 1211.) “[W]henever a child is removed from a
parent’s . . . custody, the juvenile court shall order the social
worker to provide child welfare services to the child and the child’s mother
and statutorily presumed father . . . .†(§ 361.5, subd. (a); see § 361.5, subd.
(e)(1) [“If the parent . . . is incarcerated . . . the
court shall order reasonable services unless [it] determines, by
services would be detrimental to the childâ€].)
If a child is not returned to the parent at the six-month review
hearing, the juvenile court shall determine whether reasonable services
designed to aid the parent have been provided or offered to the parent, and
shall order that those services be initiated, continued or terminated. (§ 366.21, subd. (e); Cal. Rules of
Court, rule 5.708(e).) The provision of
reasonable reunification services before termination of parental rights is also
a due process requirement. (
Section
361.5, subdivision (a)(1) governs the time periods for which services must be
offered. For children, like A.A. and
G.A. who were less than three years of age on the date of the initial removal,
court-ordered services must be provided beginning with the dispositional
hearing and ending 12 months after the date the child entered foster care as
defined in section 361.49, unless the child is returned to the home of the
parent. (§ 361.5, subd. (a)(1)(B).) The court also has discretion to limit services
to the same period for older children like L.A. and J.A., who are part of “a
sibling group whose members were removed from parental custody at the same
time, and in which one member of the sibling group was under three years of age
on the date of initial removal from the physical custody of his or her parent
. . . .†(§ 361.5,
subd. (a)(1)(C).)
title="">[8]
I. Reasonable
Reunification Services
Father
contends the Department failed to provide reasonable reunification services to
him. It is the Department’s obligation
at the six-month review hearing to make a record that reasonable services were
provided. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1478.) “The adequacy of the reunification plan and
of the department’s efforts to provide suitable services is judged according to
the circumstances of the particular case.â€
(Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1011 (Mark N.).) We review a finding reasonable services were
provided for substantial evidence, viewing the evidence in the light most favorable
to the Department and indulging all reasonable inferences in favor of that
determination. (Precious J., supra, 42
Cal.App.4th at p. 1472; accord, Melinda
K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1158 (
at p. 1010.)
title="">[9] “When it appears at the six-month review
hearing that a parent has not been afforded reasonable reunification services,
the remedy is to extend the reunification period, and order continued
services.†(In re Alvin R. (2003) 108 Cal.App.4th 962, 973-974.)
The
Department must “make ‘[a] good faith effort to develop and implement a family
reunification plan.’ [Citation.]†(Robin
V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164 (Robin V.).) “Reunification
services need not be perfect.
[Citation.] But they should be
tailored to the specific needs of the particular family. [Citation.]
Services will be found reasonable if the Department has ‘identified the
problems leading to the loss of custody, offered services designed to remedy
those problems, maintained reasonable contact with the parents during the
course of the service plan, and made reasonable efforts to assist the parents
in areas where compliance proved difficult . . . .’ [Citation.]â€
(Alvin R.,
Applying these
principles, we conclude the Department offered Father reasonable services. (§ 366.21, subd. (e).) The record shows the Department identified
the problems that contributed to the children’s removal and continued
detention, specifically, Father’s substance abuse, lack of parenting skills,
and propensity for violence, which were complicated by his developmental
disabilities. The Department began
addressing these problems in May 2011, by conducting random drug testing,
referring Father to parenting education, and arranging supervised weekly
visitation, where Father had an opportunity to practice parenting in a
supervised setting, with feedback from a social worker. Thereafter, the Department referred Father
for an AODS intake, and conducted additional drug testing. The Department also referred Father for a
address his mental health and behavioral issues, as well as his developmental
disabilities. Notwithstanding his
failure to participate in these services, the Department maintained contact
with him and continued providing services after his incarceration, including a
referral for a second psychological evaluation (as he had failed to complete
the first), two social worker visits, and sign-in sheets for A.A./N.A.
meetings. The record also indicates the
social worker was “available by telephone to assist with [the parents’] issues
in a timely and reasonable manner.†(See
§ 361.5, subd. (e)(1) [“In determining the content of reasonable services
[to an incarcerated parent], the court shall consider the particular barriers
to [the] . . . parent’s access to those court-mandated services
. . .â€].)
Father
contends “the Department failed to make reasonable efforts to assist [him] in
areas where compliance proved difficult†in that it: (1) failed to contact the Regional Center for
assistance in determining the best plan and services for him; (2) failed to
tailor his services according to Dr. Speicher’s psychological evaluation; and
(3) failed to offer sufficient services during his incarceration. As discussed below, these contentions do not
alter our conclusion that the Department offered or provided reasonable
services.
A.
Father
contends the social worker was aware he was a client of the Regional Center but
failed to accommodate his disabilities in providing reunification services.
adequacy of his case plan, which the juvenile court adopted at the disposition
hearing on June 20, 2011. He raised no
objection to the recommended case plan at the disposition hearing, and did not
appeal from the disposition order adopting the case plan. He therefore has waived the right to contend
his case plan was inadequate. (
Cal.App.4th 521, 527-528, relying upon Steve
J. v. Superior Court (1995) 35 Cal.App.4th 798, 811; see also
the most recent order entered in a dependency matter may not challenge prior
orders, for which the statutory time for filing an appeal has
passed†’ â€].) Second, the
record refutes Father’s contention the Department failed to coordinate with the
Regional Center in developing his case plan.
The jurisdiction report indicates that, on May 17, 2011, the social
worker contacted Father’s service coordinator at the Regional Center Nola
Montgomery. At that time, Montgomery
said Father wanted to limit the exchange of information from the Regional
Center to the Department, apparently more concerned about the juvenile
dependency “charges†he was facing rather than the welfare of his
children. Montgomery said Father was
aware of supportive living services available to him through the Regional
Center but was “only choosing to receive ‘transportation assistance,’ in the
form of a monthly bus pass[.]â€
Montgomery noted that the Regional Center was finding it difficult to
put independent living services in place for Father because he continued to
insist he did not live in the home with Mother and the children. Thus, Father obstructed the Department’s
efforts to coordinate services through the Regional Center. We also observe the Department solicited his
input regarding his needs and in developing his case plan but he failed to
appear at the meetings set for this purpose.
B.
Father
also maintains the Department failed to tailor services according to Dr.
Speicher’s psychological evaluation.
below that services were unreasonable because the Department had not tailored
them to Dr. Speicher’s report; in seeking another six months of services,
counsel contended “Dr. [Speicher’s] report . . . does give guidance on how
services could be tailored and what would be beneficial for [Father],†and
“that inpatient treatment services would be extremely beneficial to
[him].†Father therefore appears to have
forfeited this assertion of error by failing to raise it below. (In re
Elijah V. (2005) 127 Cal.App.4th 576, 582.)
We do not find the Department acted unreasonably, in any event, in not
initiating services tailored to Dr. Speicher’s report in the two-month period
before the six-month review hearing. Both psychologists opined that the
serious mental health and substance abuse issues impacting Father’s ability to
parent his children were severe and resistant to treatment; Father had
expressed to Dr. Kastl his unwillingness to receive psychiatric intervention,
including medication; and neither psychologist was able to identify any
services that would allow him to reunify with the children given the brief
period for reunification that applies to this sibling group. (§ 361.5, subd. (e)(1) [“Reunification
services [for incarcerated parents] are subject to the applicable time
limitations imposed in subdivision (a)â€].)
Father
has failed, in any case, to show he was prejudiced because the Department did
not tailor services in this manner. (
557, 564 (Denham) [appellant’s duty
to demonstrate prejudicial error]; In re
Jonathan B. (1992) 5 Cal.App.4th 873, 876 [“We will not reverse for error
unless it appears reasonably probable that, absent the error, the appellant
would have obtained a more favorable resultâ€]; see In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365-1366.) Father had failed to participate in services
before his incarceration and had made little to no progress; there was no
substantial probability he would reunify with the children by the statutory
deadline.
C.
Father
contends the evidence does not show the social worker made reasonable efforts
to assist him to obtain services during his incarceration.
A
parent’s failure to comply with the case plan prior to incarceration does not
excuse the Department from providing reasonable services while he is
incarcerated. (Precious J., supra, 42
Cal.App.4th at p. 1479.) “In determining
the content of reasonable services [during incarceration], the court shall
consider the particular barriers to an incarcerated . . . parent’s
access to those court-mandated services and ability to maintain contact with
his or her child . . . .
Services may include, but shall not be limited to, all of the
following: [¶] (A) Maintaining
contact between the parent and child through collect telephone calls. [¶] (B) Transportation services,
where appropriate.
[¶] (C) Visitation services, where appropriate. [¶] (D) Reasonable services to extended
family members or foster parents providing care for the child if the services
are not detrimental to the child. . . . An incarcerated or detained parent may be
required to attend counseling, parenting classes, or vocational training
programs as part of the reunification service plan if actual access to these
services is provided.†(§ 361.5,
subd. (e)(1).) As discussed above, the
Department continued to provide services to Father during his incarceration,
including two social worker visits, sign-in sheets for A.A./N.A. meetings, and
a second psychological evaluation.
Father
contends, “There is no indication the social worker . . . followed up
on [his] dilemma [not being allowed to attend A.A./N.A. meetings,] until after
being instructed to do so at the December 12, 2011, hearing.†He fails to note, however, that this
obstacle to services did not arise until mid-October 2011, and the social
worker did not learn of it until November 23, 2011, less than two weeks before
the six-month review was set for hearing.
failure to follow up on Father’s problems accessing N.A./A.A. meetings during
that two-week period of his incarceration renders the services offered by the
Department unreasonable.
Father
contends, in any case, the social worker failed in December 2011, to identify
the services he could receive while in administrative segregation, and “it is
not clear that services could not be provided to him
. . . .†Citing
“should have explored whether changes in [his] incarceration status or housing
could have been made to facilitate the provision of his services consistent
with legitimate prison, public safety concerns, and [his own] safety.†He maintains the alleged error was not
harmless, as additional reunification services “may well have made a
difference[.]â€
In
Mark N., the court vacated an order
terminating reunification services, finding there was no substantial evidence
reasonable reunification services were offered to a father who was
incarcerated. (Mark N., supra, 60
Cal.App.4th at pp. 1012, 1018.) The
court stated: “If, as the father
testified, no services were available to him in prison (because of the manner
in which he was housed), his inability to participate was not the department’s
fault. [Citation.] The prisons are run by the Department of
Corrections, not by the department.
[Citation.] However, the
department should, at a minimum, have contacted the relevant institutions to
determine whether there was any way to make services available to the
father. [Citations.] In other words, while the department cannot
tell prison officials how to run their institutions, it can: notify the prison an incarcerated parent is
in need of reunification services; determine whether any appropriate services
are available at the particular institution in question; and explore whether
changes in the housing of the parent prisoner can be made to facilitate the
provision of such services consistent with legitimate prison and public safety
concerns. The department does not meet
its obligations when, as here, it simply concludes: The father is in prison; he knows what the
requirements of his case plan are; he was imprisoned before any referrals were
made; he says no services are available to him; and being unaware of any
resources to assist the incarcerated parent with reunification, the department
need not take any action to facilitate the reunification process.†(Id. at
p. 1013.)
In
this case, the report for the six-month status review does not specifically
identify the services available to Father during his incarceration; the social
worker simply notes that Father was in jail and “not currently engaged in
services[.]â€
title="">[15] Still, her encouragement to Father to attend
A.A./N.A. meetings suggests she was familiar with the services available at the
jail—at least initially, and Father has not shown otherwise. Moreover, although she did not succeed in her
attempts to determine the services available to an inmate housed in administrative
segregation, the record demonstrates that she made reasonable efforts to do so
in December 2011; the jail staff’s lack of knowledge and failure to respond
does not render her efforts any less reasonable. The question before us is not whether the
services the Department provided were perfect:
“[R]arely will services be perfect.
[Citation.] ‘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.’ [Citation.]â€
(Melinda K.,
accord, Kevin R. v. Superior Court
(2010) 191 Cal.App.4th 676, 692 (Kevin R.).)
case, “the department failed to make
any effort to reunify the incarcerated father and his daughter.†(Mark
N., supra, 60 Cal.App.4th at p.
1015.) The father was incarcerated
before the department could provide him with referrals and the department made
no effort to determine whether any services were available to him during his
incarceration, so his case plan at all times called for him to participate in
services which were unavailable to him.
(Id. at pp. 1013-1014.) In addition, the department failed to contact
him during 13 months of the 17-month reunification period and to facilitate his
presence in court for two hearings. (
services in May 2011, and received them for almost four months before his
incarceration.
title="">[16] Thereafter, the Department maintained contact
with him, encouraged him to attend N.A./A.A. meetings, and referred him for a
second psychological evaluation. The
court also arranged for his attendance at the December 12, 2011, and January 3,
2012 hearings.
Father
has again failed to demonstrate that he was prejudiced by the Department’s
alleged failure to identify and offer services to him in jail. (Denham,
supra, 2 Cal.3d at p. 564;
p. 876.) Ample evidence in the record
supports the juvenile court’s conclusion there was no substantial probability
he would be able to reunify with his children by the statutory deadline in May
2012, and he has not shown the Department failed to make additional services
available to him that would have altered this result.
II. Termination
of Reunification Services
Next,
Father challenges the court’s decision to terminate his services, contending it
was error not to continue his services for another six months. “We review an order terminating reunification
services to determine if it is supported by substantial evidence.†(Kevin
R., supra, 191 Cal.App.4th at p. 688.)
As
previously noted, section 361.5 required court-ordered services to Father until
the six-month review hearing, but no longer than May 31, 2012, 12 months after
the date the children are deemed to have entered foster care. Father concedes, “there is no absolute right
to receive the maximum amount of statutorily fixed services in any and all
circumstances,†and the juvenile court has discretion to terminate the
reunification services of a parent at any time after it has ordered them,
depending on the circumstances presented.
(In re Derrick S. (2007) 156
Cal.App.4th 436, 445, 447; In re Kevin N.
(2007) 148 Cal.App.4th 1339, 1345.)
We conclude the circumstances of this case provide substantial evidence
supporting the juvenile court’s decision to terminate services at the six-month
review hearing. From the outset,
Father’s participation in services was minimal:
he failed to meet with the social worker and assist the Department in
developing a case plan; to appear for appointments to address his drug
addiction; to attend and participate in parenting classes after June 2011; and
to regularly attend visits with his children.
He had made little to no progress in remedying the problems that led to
removal. Both psychologists noted the
severity of the problems he would have to overcome to parent his children
safely and the extended period required to address these problems, and Dr.
Kastl concluded he would not be able to safely parent the children on a
long-term basis. Neither psychologist
was able to identify any services that would allow Father to reunify with the
children in another six months, i.e., the maximum period of services for
children so young. (§ 361.5, subd.
(a)(1)(B) & (C).) Father was
expected either to face a lengthy prison sentence or be committed to a
substance abuse treatment program that “is typically six months to a year.†In light of this evidence, the juvenile court
did not act unreasonably in terminating services to Father at the six-month
review hearing and denying his request for an additional six months of
services. As Father concedes, “[W]here the likelihood of reunification is
extremely low, a continuation of the reunification period would waste scarce
resources and delay permanency for dependent minors.†(See Earl
L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1505 [“It defies common
sense to continue reunification efforts for a parent who has made minimal
efforts throughout a caseâ€]; In re
Aryanna C. (2005) 132 Cal.App.4th 1234, 1242 [father’s abysmal efforts at
reunification supported court’s decision to terminate services before
expiration of six-month period]; see also § 366.21, subd. (e) [requiring
the court to continue the case to the 12-month hearing if it finds there is a
substantial probability the child may be returned to the parent within six
months].)
title="">[19]
Father
denies that the likelihood of reunification here was extremely low, contending
he had demonstrated the ability to comply with his case plan. We disagree.
In the months before his incarceration, Father was never in full
compliance with his case plan, and his ability to remain drug-free in a
structured setting where he has limited or no access to drugs does not
demonstrate that he is able to do so outside that setting or that he is able to
comply with other requirements of his case plan, from which he has been
exempted during his incarceration.
Father
notes that continuing services to him would not have delayed permanency for the
children because the court continued services to Mother. “[A]t a six-month review hearing, the
juvenile court retains the discretion to terminate the offer of services to one
parent even if the other parent is receiving services and no section 366.26
hearing is set.†(In re Jesse W. (2007) 157 Cal.App.4th 49, 58.) “[E]ven when a section 366.26 hearing is not
set, the termination of services previously not utilized . . . is a
step toward eliminating uncertainty in the lives of very young children and
ultimately achieving the stability and permanence the Legislature sought to
provide for them. . . .
[T]he Legislature has recognized that in some circumstances, it may be
fruitless to provide additional reunification services. ‘In such a case, the general rule favoring
reunification services is replaced by a legislative assumption that offering
services would be an unwise use of governmental resources.’ [Citation.]â€
(Id. at pp. 64-65.)
Father
also points out that Dr. Speicher noted in her report his “sensitive, caring,
parental, and nurturing nature,†described him as “thoughtful, open,
vulnerable, polite, and very cooperative;†and indicated he had demonstrated
that he cared about his children and wanted to be there for them and had
acknowledged his need and desire for drug treatment. Dr. Speicher’s comments do not alter our
conclusion. Although we sympathize with
Father’s desire to reunify with the children, there is evidence showing that
there was no substantial probability he would be able to do so and that it was
not in the children’s best interests to remain in limbo on the off chance that
he would. “[C]hildhood does not wait for
the parent to become adequate.†(
In
so holding, we note that Father was already a client of the Regional Center and
had phone access to contact his service coordinator and request the services he
desires; that his criminal attorney anticipated his placement in an inpatient
substance abuse treatment program; and that nothing in the court’s ruling
precluded Father from seeking further reunification services in a section 388
motion if he made progress in his ability to safely parent his children in the
long-term.
title="">[20]
DISPOSITION
The
juvenile court’s January 3, 2012 order is affirmed.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS,
J.
the Welfare and Institutions Code.
living with the children. He appears to
have moved in with them and Mother in August 2010, when his parole ended.
