In re Matthew G.
Filed 6/24/13 In re Matthew G. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MATTHEW G., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JOHN M.,
Defendant and Appellant.
D063140
(Super. Ct.
No. SJ12739)
APPEAL from
an order of the Superior Court
of
County, Garry G. Haehnle, Judge. Affirmed.
Donna
Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
At the
six-month review hearing in the juvenile
dependency case of Matthew G., the juvenile court granted the modification
petition of the San Diego County Health and Human Services Agency (the Agency)
(Welf. & Inst. Code, § 388, subd. (c)(3))
and terminated reunification services for Matthew's father, John M. John appeals, contending he was deprived of
procedural due process because the
petition did not allege that continued services would be detrimental to
Matthew. John also contends the evidence
is insufficient to support the detriment finding; the finding that he was
provided reasonable services; and the finding that his action or inaction
created a substantial likelihood reunification would not occur. We affirm.
BACKGROUND
John began
using marijuana in 1999 or 2000, when he was 15 years old. Matthew was born in July 2005 to L.G., and
although John was aware of the pregnancy, he did not take an interest in
Matthew until 2011.
As of 2009
or 2010, John was on probation or parole
for a domestic violence conviction. He
was also subject to a criminal protective order obtained by the domestic
violence victim, his former girlfriend.
The protective order was set to expire April 21, 2013.
After 2009, John had no contact with his two children from that
relationship. John claimed he was
wrongfully convicted and he was the victim of the domestic violence. He completed a 52-week domestic violence
course in December 2011.
In 2011,
John began smoking marijuana for pain management. In November, he began living with L.G. and
Matthew. In January 2012, John attempted
to spank Matthew with a ruler. A metal
strip on the ruler struck Matthew's fingers and caused them to bleed. Matthew said that John hit him
"hard" and "he was afraid that [John] was going to rip my body
off."
On the
evening of March 2, 2012,
Matthew vomited and fainted. L.G. and
John (together the parents) took Matthew to the emergency room. John left the hospital and L.G. stayed with
Matthew. L.G. reported that John had
smoked marijuana in the car that afternoon, while Matthew was in the car. At the hospital, Matthew was unconscious for
six hours and tested positive for marijuana.
In
interviews with social workers, Matthew described John's marijuana use and
violence. Matthew said, "[John]
told me that [the social worker] was going to take me away and I was sad and I
cried a lot." John denied exposing
Matthew to marijuana and denied any domestic violence. John said he would not have taken Matthew to
the hospital if he had known that Matthew was under the influence of
marijuana.
On March 6, 2012, six-year-old Matthew
was detained in Polinsky Children's Center (Polinsky). On March 9, the Agency filed a dependency
petition. The petition, as later
amended, alleged that beginning in March, John used marijuana to excess. Matthew tested positive for marijuana
twice. John admitted he used marijuana
and had a medical marijuana card. The
parents denied they used marijuana at home or around Matthew. Matthew described how to use a marijuana pipe
and where to put the marijuana. He knew
how to inhale the smoke, hold it in and then exhale.
Beginning
in February, Matthew was exposed to the parents' violent confrontations. In Matthew's presence, the parents had an
argument that included slapping. During
the argument, John destroyed some items in the house and threw Matthew's bird
cage on the floor, killing the bird.
Matthew and L.G. said that John threw all of their clothes out of the
house and told them to leave. John had a
history of domestic violence, including a 2009 altercation with the mother of
Matthew's half siblings.
At the
detention hearing, the court ordered liberal, separate visits for the parents,
with supervisors chosen by the Agency, and ordered the Agency to give the
parents referrals to voluntary services.
While Matthew was at Polinsky, John had twice-weekly visits. On March
16, 2012, Matthew was moved to the home of a relative. John visited Matthew there.
On March 26, 2012, the Agency sent John
referrals to a domestic violence program, individual therapy, a parenting
course and substance abuse treatment. On March 29, the court made true findings on
the dependency petition, ordered Matthew placed with a relative and ordered
reunification services for the parents.
John's reunification plan included the four services listed above and
supervised visitation. On April 3, John
was incarcerated on charges of burglary and inflicting corporal injury on a
cohabitant. The court authorized a
telephone card for John while he was incarcerated, and ordered visitation
consistent with the policy of the facility.
In his
relative placement, Matthew was hostile and uncooperative and engaged in
self-destructive behavior. As a result,
the relative contemplated ending the placement.
The social worker enlisted the help of a therapist to stabilize the
placement and, over several months, Matthew's behavior improved.
Matthew
refused to visit John in jail. When
asked why, Matthew replied that John had killed his bird and hurt L.G. Matthew said he was scared when John killed
the bird. For several months, Matthew
remained resolute in his refusal to visit John.
Meanwhile, John was moved, several times, to different facilities. In August 2012, Matthew said he did not want
to visit John "because it was too far." The Agency asked John to write letters or
telephone Matthew as a way to increase Matthew's comfort with visitation. John did not send any letters, and his
incarceration apparently precluded telephone calls.
By
September 5, 2012, John had been transferred to a prison in Imperial County.
him to have any visitors during his assessment immediately following his
transfer. To receive approval for visits
after the assessment, the prison required John to sign forms and send them to
the Agency. John did so, and immediately
upon receiving the forms, the Agency sent them to the relative caregiver. By September 13, the caregiver had completed
the forms and sent them to the prison, and a 30-day waiting period for the
prison's approval had begun. The social
worker called the prison to ask for a visit during the waiting period, but
received no response. Meanwhile, the
social worker and Matthew's therapists encouraged Matthew to visit and, by
September, Matthew had reluctantly agreed.
As of
September 13, 2012, John's incarceration had prevented him from participating
in any services. On October 10, the
Agency filed its modification petition (§ 388, subd. (c)(1)(A) & (B)). The hearing on the petition took place at the
November 14 six-month review hearing. By
the time of the hearing, there had been no visits between John and Matthew in
jail or prison.
At the
hearing, the court received the following stipulated testimony of the social
worker, presented by John's counsel:
"[The social worker] received an e-mail from [John's] counsel
stating that her investigator found that [John's] current facility provides
substance abuse programs through [Alcoholics Anonymous (AA)] and narcotic abuse
programs through [Narcotics Anonymous (NA)], anger management, creative
conflict resolution, parenting classes and several religious based education
programs. [¶] [John's] counsel indicated
that she received this information from Ken Phillips who worked at the
facility. [The social worker] tried to
follow-up with Mr. Phillips . . . . [¶] . . . [¶] [The social
worker] left messages, but Mr. Phillips has never responded. [The social worker] was able to reach
[Rebecca Lores, the litigation coordinator in the warden's office, and Lores]
stated that there were the following programs available to [John]: AA group and NA group and anger management
class."
The court
granted the section 388 petition and terminated John's reunification services. The court continued L.G.'s reunification
services and confirmed the March 26, 2013, 12-month review hearing.
DISCUSSION
I
Introduction
"When
a dependent child is removed from parental custody, the court generally orders
services for the family to facilitate its reunification. [Citations.]
Reunification services for a parent of a dependent child over the age of
three are ordinarily limited to 12 months, but may be extended to the 18-month
date. [Citation.] A parent, however, has no entitlement 'to a
prescribed minimum period of services.'
[Citation.] Instead, the court
has discretion to determine whether continued services are in the best
interests of the minor, or whether services should be terminated at some point
before the applicable statutory period has expired." (In re
Katelynn Y. (2012) 209 Cal.App.4th 871, 876.) " '[R]eunification services are a
benefit, not a constitutional
entitlement . . . .' " (Id.
at p. 877, quoting In re Jesse W. (2007) 157 Cal.App.4th 49,
60.)
In the case
of "a child who, on the date of initial removal from the physical custody
of his or her parent . . . , was three years of age or
older" (§ 361.5, subd. (a)(1)(A)), the Agency may petition for
termination of reunification services before the 12-month review hearing
(§ 366.21, subd. (f)). A petition
is appropriate if "a change of circumstance or new evidence exists that
satisfies a condition set forth in subdivision . . . (e) of
Section 361.5" (§ 388, subd. (c)(1)(A)), or if "[t]he action or
inaction of the parent . . . creates a substantial
likelihood that reunification will not occur, including, but not limited to,
the parent's . . . failure to visit the child, or the
failure of the parent . . . to participate regularly and
make substantive progress in a court-ordered treatment plan" (
services . . . only upon a finding by a preponderance of
evidence that reasonable services have been offered or provided, and upon a
finding of clear and convincing evidence that one of the conditions in
subparagraph (A) or (B) of paragraph (1) exists." (Id.,
subd. (c)(3).)
Section
361.5, subdivision (e)(1), referred to in section 388, subdivision (c)(1)(A),
states "the court shall order reasonable services [for an incarcerated
parent] unless the court determines . . . those services
would be detrimental to the child. In
determining detriment, the court shall consider the age of the child, the
degree of parent-child bonding, the length of the
sentence, . . . the nature of the
crime . . . , the degree of detriment to the child if
services are not offered . . . , the likelihood of the
parent's discharge from incarceration . . . within the
reunification time limitations described in subdivision (a), and any other appropriate
factors." (§ 361.5, subd.
(e)(1).) As to section 388, subdivision
(c)(1)(B), "[i]n determining whether the
parent . . . has failed to visit the child or participate
regularly or make progress in the treatment plan, the court shall consider
factors that include, but are not limited to, the
parent's . . . incarceration . . . ." (§ 388, subd. (c)(2).)
On appeal,
we first determine whether the required factual findings are supported by
substantial evidence. (
1059-1060.) If substantial evidence
supports those findings, we decide whether the juvenile court abused its
discretion by terminating reunification services based on the findings. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415.)
" ' "The sufficiency of evidence to establish a
given fact, where the law requires proof of the fact to be clear and
convincing, is primarily a question for the trial court to determine, and if
there is substantial evidence to support its conclusion, the determination is
not open to review on appeal."
[Citations.]' [Citation.] Thus, on appeal from a judgment required to
be based upon clear and convincing evidence, 'the clear and convincing test
disappears . . . [and] the usual rule of conflicting
evidence is applied, giving full effect to the respondent's evidence, however
slight, and disregarding the appellant's evidence, however strong.' " (Sheila
S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Here, the
Agency's petition cited section 388, subdivision (c)(1)(A) and (B) and alleged
the following facts: John was
incarcerated with a release date of April 5, 2013. Because his detention facility did not
provide services, he would be unable to complete domestic violence and drug
abuse programs by the 12-month review date.
John was a part of Matthew's life for a short period before the
inception of this case, and Matthew was not emotionally attached to him. John was the primary aggressor in the
domestic violence. Matthew was upset
with John's conduct toward L.G. and did not wish to visit or reunify with
him. L.G. was doing well in her services
and was likely to reunify with Matthew by the 12-month date.
The court
found reasonable services were offered or provided. The court also found continued services would
be detrimental to Matthew, and John's actions created a substantial likelihood
that reunification would not occur by the 12-month date or the 18-month
date. We conclude substantial evidence
supports the findings, and the court did not abuse its discretion by granting
the Agency's section 388 petition and terminating John's reunification
services.
II
Reasonable Services
John
contends that after he was sent to prison, the social worker did not consult
with him or revise the reunification plan.
In the seven months between the time John was incarcerated and the date
of the six-month review hearing, neither he nor his trial counsel sought
adjustment of the plan or complained that services were unavailable.
Christina L., supra, Cal.App.4th at p. 416.) On October 11, 2012, John's counsel said,
"nothing in [the Agency's petition] says there aren't services available
to [John] at his current facility . . . . Perhaps he is able to engage in services
right now." The stipulated
testimony shows that after John was sent to prison, the social worker attempted
to contact prison personnel and eventually reached a prison employee, who
listed the available services. No
consultation with John could have expanded the list to encompass all of the
services in his plan. Eliminating
unavailable services, such as domestic violence treatment, would have prevented
the plan from addressing the problems that led to the dependency. (In re
Misako R. (1991) 2 Cal.App.4th 538, 547.)
John
asserts the court erroneously believed services were available to him in prison
during the six months preceding the hearing.
The record does not support this assertion. The court stated: "Had [John] been in substance abuse
through NA or AA, taking some anger management class, something to show he made
a good faith effort to take advantage of those services that were available to
him, if indeed, they were available to him, he has not done so." The court also found that John "was able
to send letters to [Matthew] and did not do so." " 'It is . . . well
established that "[r]eunification services are voluntary, and cannot be
forced on an unwilling or indifferent parent." ' " (In re
Nolan W. (2009) 45 Cal.4th 1217, 1233, quoting In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) There is no " 'requirement that a social
worker take the parent by the hand and escort him or her to and through
[services].' " (
In re Michael S. (1987) 188
Cal.App.3d 1448, 1463, fn. 5.)
John argues
the court incorrectly considered his incarceration as a reason to terminate
services, rather than as a barrier to services.
made . . . an excuse for not being in services. It's [John] who got himself incarcerated,
violated his parole and was sent back to prison for a significant period of
time[, causing] this situation that he's in." This is an accurate statement of the
law. It was John's responsibility to
stay out of custody as "a fundamental first step" in the
reunification process. (
Cal.App.3d 1154, 1162; see also Elijah R.
v. Superior Court (1998) 66 Cal.App.4th 965, 971.)
John argues
that his incarceration was a barrier to visitation because "Matthew's
concerns about visiting [John] appeared to be intimately tied to [John]'s
incarceration." John notes that
before he was incarcerated, the Agency described his visits with Matthew as
"typical" and "normal."
That period of visitation was extremely short, as John was incarcerated
only four weeks after Matthew was detained.
It was not John's incarceration that was a barrier to further visits,
but rather the trauma he had inflicted upon Matthew. The social worker suggested that John send
letters to increase Matthew's comfort, but John ignored the suggestion.
" '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.' " (
Cal.App.4th 586, 598-599, quoting In re
Misako R., supra, 2 Cal.App.4th at p. 547.)
Substantial evidence supports the finding that John was offered or
provided reasonable services.
III
Detriment
John
contends he was deprived of procedural due process because the Agency's petition
did not allege continued services would be detrimental to Matthew. Although the petition does not contain the
word "detriment," it does cite section 388, subdivision (c)(1)(A),
which refers to detriment. The petition
also alleges elements of detriment listed in section 388, subdivision
(c)(1)(A), including John's presence in Matthew's life for a short time;
Matthew's lack of an emotional attachment to John; and Matthew's negative
emotional reaction to John's violence.
Moreover, in closing argument, John's counsel cited the detriment
provision in 388, subdivision (c)(1)(A).
John was not deprived of procedural due process.
John also
contends there were no changed circumstances or new evidence to prove
detriment. John's incarceration and
consequent inability to participate in critically important services, including
domestic violence treatment, was a circumstance that had changed since the
dispositional hearing. Matthew's refusal
to visit John was another changed circumstance.
In
determining detriment, the focus is on the child. (In re
Kevin N. (2007) 148 Cal.App.4th 1339, 1345.) Substantial evidence supports the finding
continued services would have been detrimental to seven-year-old Matthew. John took little interest in Matthew until he
was five or six years old, and did not begin living with Matthew until he was
six years old. John hit Matthew with a
ruler, causing bleeding; exposed him to domestic violence; killed a pet bird
while Matthew watched; and exposed him to marijuana smoke, requiring him to be
hospitalized. John's brutality
traumatized Matthew. John was
incarcerated after living with Matthew for just four or five months, and was to
be released after the 12-month review hearing.
L.G. had completed parenting and drug treatment programs and individual
therapy, and was making progress in domestic violence treatment. She had demonstrated an ability to handle
Matthew's behavior and they were "very close." John speculates that he will interact with
Matthew and L.G. after his release. This
will be detrimental to Matthew unless John has been rehabilitated. There was no evidence the services available
to John in prison would become unavailable if the court terminated his
reunification plan.
IV
Likelihood of Reunification
In finding
there was not a substantial likelihood of reunification by the 12-month date,
or even the 18-month date, the court cited John's pattern of violence: his "original" act of domestic
violence, his killing of the bird in Matthew's presence, and the continued violent
behavior that led to John's incarceration.
The court believed John needed a year-long domestic violence program
and, considering his past conduct in this case, he was not likely to succeed in
the program. The court also noted that
John had not written to Matthew.
The above
facts support the finding. John
completed a one-year domestic violence course before he committed the acts of
violence that led to this case. He
denied responsibility for his violence in his earlier relationship, and denied being
violent with L.G. and Matthew. John
ignored the social worker's advice to send letters to Matthew as a way to
decrease Matthew's emotional trauma and make visits possible.
John
speculates that he might be released from prison early; he might be moved to
another facility with more services; and Matthew's feelings might change. This speculation does not undermine the
court's conclusion. Substantial evidence
supports the finding that John's actions or inactions created a substantial
likelihood that reunification would not occur.
DISPOSITION
The order
is affirmed.
McDONALD,
J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
name="_ftn1" title="">[1] Further
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
Various parts of the record are
in conflict on this point.
