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In re Monique H.

In re Monique H.
05/10/08



In re Monique H.



Filed 4/30/08 In re Monique H. CA2/1



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



SECOND APPELLATE DISTRICT



DIVISION ONE



In re MONIQUE H. et al., Persons Coming Under the Juvenile Court Law.



B201482



(Los Angeles County



Super. Ct. No. CK14597)



LOS ANGELES COUNTY DEPARTMENT



OF CHILDREN AND FAMILY SERVICES,



Plaintiff and Respondent,



v.



JAMES H.,



Defendant and Appellant.



APPEAL from orders of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Appeal dismissed.



Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.



Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.



_____________________________________



James H. appeals from a dependency court order finding that reasonable reunification services were provided to him. Because this finding is not appealable and because James has not in any event suffered prejudice (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147), we dismiss the appeal.



FACTS



A.



James H. and E.C. have four children, John (born in 1998), Veronica (1999), Monique (1999), and Carlos (2002), and E. has an older son (Jaime, born in 1993) fathered by another man. On August 21, 2006, all five children were taken into custody by the Department of Children and Family Services and a petition was filed alleging abuse and neglect by the parents. (Welf. & Inst. Code, 300.)[1] According to the reports, James became enraged when E. accused him of stealing money to buy methamphetamine, grabbed E., threw her to the ground, repeatedly punched and kicked her, all the while threatening to kill her if she reported him to the police or attempted to take his children away from him. Jaime witnessed the fight and tried to help his mother, but James pushed him away and hit Jaime in the head when he realized E. had called the police.



The petition was sustained and reunification services were ordered for both parents. Jaime was released to his father and the other children were placed in foster care, with visitation allowed, provided that visits with James (who was then incarcerated as a result of the domestic abuse incident) were authorized only while he was incarcerated within a reasonable distance. After Jamess lawyer complained in October that he had not had any visits with the children, the court ordered the Department to arrange weekly visits and asked for a status report -- to which the Department responded that James did not have a permanent housing location (he was temporarily housed at the Twin Towers jail).



In October, the court found that a substantial danger would exist if the children were returned to either parent, ordered random drug testing for E. and James, and also ordered domestic violence counseling, parent education classes, individual counseling, and conjoint counseling with the children when appropriate.



B.



James remained in custody from October 2006 to January 2007, during which time he maintained contact with the social worker by twice-monthly collect telephone calls. When James asked in November if he could call his children from jail, the social worker learned from her supervisor that the foster parents could not be reimbursed for collect calls, and there apparently were no funds to use for transporting the children to visit James while he was in custody.



In January 2007, James told the social worker he was about to be released but that he did not know where he would be living. He was in fact released on February 5, but he did not contact the social worker and he did not appear at hearings held in March and April. In May, E. obtained a restraining order against James because he had been stalking her since his release from jail, and had beat her when she had returned to their home to pick up her clothing. James was once again arrested and incarcerated.



C.



In July 2007, the Department recommended that the court terminate reunification services for James because he had not had any contact with the children. In opposition, Jamess lawyer conceded there was no contact with the children during the time James was incarcerated, but pointed out that James had stayed in touch with the social worker, who did not (according to counsel) do everything she could to find out which services were available to James at the prison. The court found that the return of the children to Jamess physical custody at that time would create a substantial risk of detriment to their physical and mental health, that reasonable services had been provided, and that there remained a possibility of reunification, and the court ordered continued services for both parents.



James appeals from the finding that reasonable services were provided.



DISCUSSION



The finding that reasonable services were rendered is not an appealable order ( 395; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1704) where, as here, the finding was not intertwined with a prejudicial order of the court (Melinda K. v. Superior Court, supra, 116 Cal.App.4th at pp. 1153-1154). There was no prejudicial order made vis--vis James -- to the contrary, the court found there remained a possibility of reunification and reunification services were continued for both parents. The fact that the court refused to return the children to Jamess physical custody at that moment is irrelevant since James does not contest that finding. More to the point, the remedy for a failure to provide reasonable services is an order for the continued provision of services -- which James already has (In re Alvin R. (2003) 108 Cal.App.4th 962, 975) and which can, if appropriate, be continued again. (Ibid.) Accordingly, there is no reason for us to treat this appeal as a petition for a writ of mandate. (Melinda K. v. Superior Court, supra, 116 Cal.App.4th at p. 1157.)



DISPOSITION



The appeal is dismissed.



NOT TO BE PUBLISHED.



VOGEL, Acting P.J.



We concur:



ROTHSCHILD, J.



JACKSON, J.*



Publication courtesy of San Diego pro bono legal advice.



Analysis and review provided by Poway Property line attorney.



San Diego Case Information provided by www.fearnotlaw.com



______________________________________________________________________________



*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.







[1] All section references are to the Welfare and Institutions Code.





Description James H. appeals from a dependency court order finding that reasonable reunification services were provided to him. Because this finding is not appealable and because James has not in any event suffered prejudice (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147), Court dismiss the appeal.

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