In re S.P.
Filed 2/7/13 In
re S.P. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re S.P., a Person Coming Under
the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
CLAYTON P.,
Defendant and
Appellant.
F064763
(Super.
Ct. No. 11CEJ300013)
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
County. Mary Dolas, Commissioner.
Thomas S.
Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin
Briggs, County Counsel, William G. Smith, Deputy County Counsel, for Plaintiff
and Respondent.
-ooOoo-
Clayton P.
(father) appeals an order issued at a contested combined six- and twelve-month
review hearing terminating his reunification
services as to his daughter, S. He
contends (1) there was insufficient evidence to support the finding he was
provided reasonable reunification services and (2) the juvenile court abused
its discretion when it terminated his services.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2011, 16-month-old twins
C. and his sister S. were taken into protective custody after C., who had a
seizure disorder, was admitted to the hospital due to seizures for the sixth
time in 10 months. The twins’ mother,
Ca. G. (mother), had a history of missing C.’s neurology appointments and
failing to give C. his seizure medication.
Mother, who did not have stable housing or money to provide for the
twins, admitted abusing drugs and alcohol.
Father had been incarcerated at the Fresno County jail on first degree
burglary charges since December 25, 2010; it was not known when he would be
released.
The Fresno County Department of
Social Services (Department) filed a petition alleging the twins came within
the provisions of Welfare and Institutions Code section 300, subdivision (b)
issues, and instability placed them at risk of harm. The petition was later amended to add an
allegation under section 300, subdivision (g), that father left the twins
without any provision for their support, supervision and protection, as he was
incarcerated and unable to provide for them.
At the January 27, 2011
removed the twins from mother’s custody, and ordered services for mother and
father. Father’s services were comprised
of parenting classes, and completion of an addiction severity index assessment
and any recommended treatment. Upon
father’s release from custody, he was ordered to submit to random drug testing
and to report to the Department for concurrent planning orientation. Father was given supervised visits twice a
month while incarcerated, and twice weekly if not. On January 31, 2011, a social worker sent
father a letter advising him of the services he was being offered and to take
advantage of any programs offered through the jail.
On March 16, 2011, father was
convicted of first degree burglary, and taking a vehicle without the owner’s
consent/vehicle theft, and sentenced to 44 months in prison. He was in custody at the Wasco Reception
Center (Wasco) with a tentative release date of February 9, 2014. On April 7, 2011, the juvenile court found
the amended petition’s allegations true after mother and father submitted on
the social worker’s report.
In a report prepared for the July
7, 2011, dispositional hearing, the social worker stated that father had not
participated in any services due to his incarceration. The Department recommended that father be
denied reunification services pursuant to section 361.5, subdivision (e)(1),
due to the length of his incarceration.
The Department was unable to confirm what, if any, services would be
available to father while in prison, but noted that even if he participated in
services, he likely would remain incarcerated beyond the statutory time frame
for reunification.
At the dispositional hearing, the
juvenile court adjudged the twins dependents, removed them from mother’s and
father’s custody, placed them in foster care, and ordered reunification
services for both mother and father. The
juvenile court ordered father to participate in parenting classes, counseling
for substance abuse, domestic violence and relationships, and AA/NA meetings
that were offered in state prison, and ordered the Department to assist father
with services that were offered in state
prison. Boxes were also checked on
the minute order that indicated father was to participate in domestic violence
and substance abuse evaluations, and any recommended treatment. Father was given monthly supervised visits
with S., but his visits with C. were suspended until C. could be medically
cleared. C., however, passed away on
July 18, 2011, due to respiratory and cardiac arrest, and presumed status
epilepticus.
By September 2011, father was
transferred to Corcoran State Prison (Corcoran). On September 6, 2011, the Department filed a
section 388 petition to temporarily suspend father’s visits with S., as her
therapist thought it would be detrimental to S. to visit father in prison. On October 11, 2011, the juvenile court
issued an interim order suspending visits while father was in custody. On November 1, 2011, the juvenile court
denied the section 388 petition and ordered resumption of supervised visits.
A combined contested six- and
twelve-month review hearing was held on April 5, 2012, on the issue of whether
father was provided reasonable reunification services. In reports prepared for the review hearings,
the social worker stated she contacted father’s counselor at Corcoran on
November 23, 2011, who had completed an initial assessment of father on
September 7, 2011. According to the
counselor, father was not eligible for prison services due to his expected release
date, but would be eligible to participate in substance abuse treatment and
anger management as his release date neared.
On January 18, 2012, father was transferred to Fresno County jail for a
court hearing in this case. He told the
court on February 9, 2012, that he wanted to stay in local custody in order to
appear at future court hearings. On
February 17, 2012, the social worker contacted someone at the jail to ask if
father was eligible for services while in local custody; the jail, however, did
not have classes available for medium security inmates and its programs did not
meet court mandates, as they were intended for pre-sentenced inmates. Father had not participated in any of the
ordered services due to his incarceration.
He had supervised visits with S. on November 2, 2011, January 6, 2012,
February 10, 2012 and February 17, 2012.
The Department recommended mother continue to receive reunification
services, but that father’s reunification services be terminated.
At the hearing, the Department
submitted on the six- and 12-month reports.
Father testified that when he was first in state prison custody he was
at “Wasco reception,†where he stayed for approximately five months, and then
he was transferred to Corcoran. While at
Wasco, father found out he could not take classes there, as they were not
offered to anyone in “reception.†Once
he got to Corcoran, he found out there were no classes in which he could
participate. While in local custody,
father obtained instructional materials from the county jail, which included
“packets†on parenting, improving relationships, approaches to discipline, substance abuse, building attachment with
children and child development. He also
obtained an “A.A.†blue book which included the 12 steps, and a packet for
incarcerated parents. He requested
classes at the county jail, including “N.A.†and parenting, but was told they
were not offered in his housing unit.
Accordingly, he was not able to participate in services at the county
jail.
Father testified at length and in
detail about what he had learned from the packets concerning the various
aspects of parenting. The juvenile court
acknowledged father clearly had received information from which he benefited,
but asked father’s counsel the relevance of the testimony to the reasonable
services issue. Father’s counsel asked
to include as an issue that father had made enough progress on his own to
justify continuation of services, which was relevant to whether he had made
progress in alleviating the problems that led to S.’s removal.
Father described what he had
learned concerning improving family relationships and ways to promote
attachment between a parent and child.
He had not been able to practice much of what he had learned during
visits with S. because all of the visits were behind glass. Father had started to read the Alcoholics
Anonymous materials. While he admitted
using controlled substances in the past, he had not used for a year and a half
and did not feel he had a current substance abuse problem. Father believed he had learned from the
materials he had studied to be a better father to S. Being incarcerated had opened his eyes and he
now realized how important it was for him to be “out there†for S. and to
better himself.
Father had about six contacts with
the social worker since July 2011. In
these contacts, they never went into detail about the case, although they had
discussed the classes and services a couple times. Father had received the social worker’s
letter in which she stated she had contacted his counselor at Corcoran, who
told her there were no classes he could attend.
Father did not have any visits with S. during the five months he was at
Wasco, although visits were allowed.
Between July 2011 and January 2012, father had one in-person visit with
S. at Corcoran, where he was allowed to have physical contact with S., and
seven other visits while in county jail.
Since January 18, father had visits with S. nearly every Friday. Father’s scheduled release date was February
9, 2014, but he did not expect to be at Corcoran that whole time, since he had
recently “been endorsed†to Jamestown, a correctional facility where he could
go to “fire camp.†Father anticipated
that, after the hearing, he would go back through reception at Wasco, then to
Corcoran and then to Jamestown.
The social worker who had been on
the case since its inception testified she formulated father’s case plan. She reviewed the case plan with father in
April 2011 and again in July 2011, after the dispositional hearing. The components included parenting, substance
abuse and mental health treatment. She
could not recall if the plan had been modified.
To help with father’s services, she attempted to reach Wasco, but never
received a response from them, and then spoke with a counselor at Corcoran
around October 2011. The Corcoran
counselor told her father was in the substance abuse facility, but at the time
he was not able to participate in services due to his release date. The social worker asked if the date of participation
could be advanced, but was told the counselor would continue to assess father
and he would be eligible for services as his release date approached. Due to prison funding cuts, there were not
any written materials that Corcoran could provide to father. The social worker was not aware if any
classes would be available to father at Jamestown.
The social worker had recommended
father complete a parenting class because she wanted to ensure he had the
necessary parenting skills. She,
however, did not have any information that father did not possess such
skills. She had seen father interact
with S. during visits about three times, but it was difficult to give an
opinion as to father’s parenting skills since visitation took place through a
glass window; she did not observe anything inappropriate during visits. The Department was not able to provide father
with self-study parenting materials because, as far as the social worker knew,
such materials were not available for parents.
The social worker admitted the Department was not able to provide father
anything to further his parenting education, and had not talked with father
about the topics that are covered in the parenting nurturing class. The social worker was aware father had
obtained pamphlets on parenting.
A substance abuse assessment had
not been completed for father, so the social worker did not know if he needed
treatment. The Department did not
contract with anyone who could administer a substance abuse inventory to an
incarcerated parent, and its substance abuse specialists, who are Department
employees, only do assessments at Department offices, not at a jail. Since a domestic violence assessment had not
been completed for father, the social worker did not know if he needed any
treatment for domestic violence or anger management. The Department did not contract with anyone
to provide domestic violence inventories to an incarcerated parent. The social worker recalled speaking with
father about substance abuse, as well as mental health or general therapy for
the family. The social worker did not
recall if she asked the prison counselor specifically whether there was
counseling that could deal with substance abuse or domestic violence issues. The counselor told her, however, that father
would not be eligible for any services until closer to his release date. She had tried to contact the Corcoran
counselor again, but was unable to reach her.
The Department did not have any resources to assist an incarcerated
parent with reunification services aside from contacting the facility where the
parent was housed to try to find out what is offered there. The Department is not able to provide written
materials for services or correspondence courses.
County counsel argued that father’s
services should be terminated as he was unable to continue with services, he
had not made significant progress, and there was no basis to extend his
services to 18 months. County counsel
further argued that even if he were given six more months of reunification
services, he would not be able to complete them during the reunification period
due to his incarceration, and the services provided were reasonable because the
Department’s only duty to incarcerated parents is to identify available
services. S.’s counsel also argued the
services provided were reasonable and asked that father’s reunification
services be terminated. Father’s
attorney argued the Department could not recommend termination of services
based on father’s failure to comply, as it was impossible for him to comply
with the case plan, and it was pure speculation that he needed any services as
there was no evidence father’s parenting was inadequate or that he needed
treatment for substance abuse, domestic violence, or mental health. Father’s attorney asserted services were not
reasonable, as the Department had a duty to provide some sort of services and
to comply with court ordered services, beyond calling the prisons and
concluding there was nothing it could do, and the Department failed to provide
consistent visitation.
The juvenile court found that,
based on the evidence, it could not return S. to either parent and that
reunification services should continue to be provided to mother. With respect to father’s services, the court
reviewed the disposition orders which showed father’s ordered services were
primarily parenting classes and participation in any counseling, including
substance abuse classes or relationship counseling, that was offered in the
institution. Evidence provided by father
and the Department showed that counseling sessions or classes other than A.A.
or N.A. meetings are not offered at the institution in which he was
residing. Nevertheless, the court found
that father had completed and participated in parenting instruction via the
packets he obtained, and was participating in what was offered regarding A.A.
and N.A. meetings by reading the materials.
The juvenile court noted, however,
that the obstacle was father’s incarceration until 2014, which exceeded the
statutory time for reunification. It
recalled that services were ordered for father at disposition because there was
a possibility he would either be released earlier or sentenced to a facility
that would have more options for reunification, and the parents intended to
continue their relationship. The court
explained that even if it found father had complied with services, there was no
evidence it could find any probability that it would be able to return S. to
his custody within an extended period of time.
The court was willing to extend the reunification period to 18 months as
mother had a substantial probability of having S. returned to her based on her
progress, but father’s length of incarceration prevented him from having S.
returned to him within the statutory period.
While the court found the law required it to terminate services, it
found that father had complied by participating in parenting and the only
things available to him regarding substance abuse. With respect to domestic violence and mental
health, the court found those services were not available and the Department
was required only to identify available services and assist incarcerated
parents in participating in them.
The juvenile court found the
Department provided and offered reasonable reunification services to mother and
father, and complied with the case plan by making reasonable efforts to return
S. to a safe home and complete the steps necessary to finalize her permanent
placement. The court found mother’s
progress with reunification services significant, father’s progress good, and
that out of home placement was necessary as return of S. to either parent would
create a substantial risk of detriment.
The court ordered S. remain a dependent, mother’s reunification services
continue, and set an 18-month review hearing for July 2012. The court ordered monthly supervised visits
for father.
of Reunification Services
Father contends the juvenile court
erred in terminating his reunification services because he was not provided
with reasonable services. Section
366.21, subdivision (f), governs the juvenile
court proceedings at the 12-month review hearing. When the juvenile court decides it cannot
safely return the child to parental custody and long-term foster care is not an
option, the juvenile court may continue services to the 18-month review hearing
if it finds either (1) the parent was not provided reasonable services, or (2)
there is a substantial probability the child will be returned to the parent’s
physical custody by the 18-month review hearing. (§ 366.21, subd. (g)(1).) In making its determinations, the juvenile
court must consider the barriers to an incarcerated parent, such as father, and
his ability to access court-mandated services and maintain contact with his
child. (§ 366.21, subd. (f).)
Father contends the Department
failed to provide reasonable services because the Department refused to assess
him for domestic violence, substance abuse and mental health issues, and the
social worker did not discuss the case plan with him, explore the options
available at Wasco, or revise the case plan to suit his circumstances.
As part of its reasonable services
finding, the juvenile court must find that the supervising agency offered services
targeting the family’s problems and made reasonable efforts to help the parent
comply with court-ordered services, even where compliance is difficult. (In re
Riva M. (1991) 235 Cal.App.3d 403, 414.)
We review the juvenile court’s reasonable services finding for
substantial evidence, i.e. we view the evidence in a light most favorable to
the respondent, indulging in all legitimate and reasonable inferences to uphold
the finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile
court’s finding, we will not disturb it.
(Ibid.)
The Department has no control over
the services available to an incarcerated parent. Father was incarcerated throughout the
proceedings in this case, with a projected release date in February 2014. The social worker attempted to identify
services available to father during his incarceration by contacting both
Corcoran in October 2011 and the Fresno County jail in February 2012, but the
services ordered for father were not available to him at any of the facilities
in which he was incarcerated. Since the
Department does not control the provision of services to inmates, there was
nothing more the social worker could have done through either the county jail
or the state prison system. On this
record, we conclude the Department’s efforts to assist father in accessing
services were reasonable and the juvenile court did not err in so finding.
Father asserts the Department had a duty to assess him while
in prison, and its refusal to do so “bordered on contempt.†Even if the Department could have done more,
the question is whether its failure to do what father suggests requires a
finding of unreasonable services. We
conclude it does not. According to the
record, the social worker tried to locate services for father. Ultimately, however, father’s failure to
reunify with S. had much more to do with his choice to break the law rather
than the social worker’s failure to scout out every conceivable service
available to him. Commendably, father
obtained parenting and substance abuse treatment materials on his own and
studied them. If he were out-of-custody,
there may have been a different outcome in this case. Under the circumstances, the Department’s
failure to assess him was not unreasonable.
We conclude, therefore, substantial evidence supports the juvenile
court’s reasonable services finding.
of Services to One Parent
Father contends the juvenile
dependency statutory scheme does not allow for termination of reunification services
as to a parent from whom the child was not removed, and for whom reunification
is not anticipated or likely, if services continue for the other parent. He claims that because S. was not removed
from his custody, the juvenile court could only terminate his services if it
found reunification with both parents will not occur, and here, reunification
between mother and S. was still a possibility.
If the
juvenile court finds a parent has been provided reasonable services, it must
terminate reunification services unless it finds there is a substantial
probability that the child will be returned to the parent’s custody and safely
maintained in the home by the 18-month review hearing. (§ 366.21, subd. (g)(1).) In making that finding, the juvenile court must
find, inter alia, that the parent made significant progress in resolving the
problems that led to the child’s removal from the home, and demonstrated the
capacity and ability to complete the objectives of his treatment plan and
provide for the child’s safety, protection, physical and emotional
well-being. (§ 366.21, subd. (g)(1)(B)
& (C).) Here, the juvenile court
found that there was a substantial probability S. would be returned to mother’s
custody, but not father’s, and therefore continued mother’s reunification
services and terminated father’s services.
Where
reunification services continue for one parent after a review hearing, the
juvenile court may, but need not, offer reunification services to the other
parent. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881 (
parent seeking additional services has the burden of showing such an order
would serve the child’s best interests.†(Katelynn Y., at p. 881.) In deciding whether to order additional
services, the court evaluates whether the parent will utilize those services
and whether services “would ultimately inure to the benefit of the minor.†(Jesse W., at p. 66.) We review that decision for abuse of
discretion. (Katelynn Y., at p.
881.)
Father contends the juvenile court
erred when it terminated his reunification services based on its finding that
there was not a substantial probability S. would be returned to him. He asserts that because S. was in mother’s
custody when she was detained, she could not be returned to his custody as she
was never removed from it. Father,
however, ignores that the juvenile court in fact ordered S. removed from both
his and mother’s physical custody pursuant to section 361, subdivision
(c)(1). Since S. was removed father’s
physical custody, the issue at the 12-month review hearing was whether there
was a substantial probability she could be returned to him by the 18-month
review hearing. (§ 366.21, subd.
(g).) Given father’s sentence, she could
not.
Consequently, substantial evidence
supports the juvenile court’s finding there was not a substantial probability
S. could be returned to his custody by the 18-month review hearing. Father does not otherwise contend the
juvenile court abused its discretion in terminating his reunification services
while mother’s continued, and we perceive no such abuse.
DISPOSITION
The six-
and twelve-month review orders are affirmed.
Franson, J.
Welfare and Institutions Code.
