Jimmy M. v. Sup. Ct.

Filed 9/13/06 Jimmy M. v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Julia Kelety, Judge. Petition denied.

Jimmy M. seeks review of juvenile court orders terminating reunification services regarding his son, Andrew M., and referring the matter to a Welfare and Institutions Code section 366.26 hearing.^[1] He contends he was not offered or provided reasonable reunification services and the court erred in not extending services for an additional six months. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On February 25, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of five-year-old Andrew under section 300, subdivision (b), alleging he had suffered serious physical harm because of his mother, Jacqueline B.'s, mental illness. On February 23, after Jacqueline stood in the rain with Andrew for almost two hours, he was taken to Children's Hospital and treated for hypothermia. Earlier, there had been concern about Jacqueline's mental health. Andrew was detained with his maternal grandmother (the grandmother).

At the jurisdictional/dispositional hearing on March 22, 2005, Jimmy appeared and completed a paternity inquiry, stating he believes he is Andrew's father. On that day the court designated him Andrew's alleged father; on April 14 the court found he is Andrew's biological father and ordered the Agency to provide services for him. The court ordered Jimmy would have visitation with Andrew and gave the Agency discretion to expand visitation. Jimmy's case plan included parenting education, an evaluation by the Substance Abuse Recovery Management System (SARMS) and substance abuse testing. On April 27 the court ordered him to report for a SARMS assessment and to comply with the provisions of his case plan. Subsequently, a SARMS recovery specialist determined he did not have a substance abuse problem, and on June 15 the court discharged him from SARMS.

On September 15, 2005, Jimmy was arrested for charges related to him possessing cocaine base for sale. The grandmother reported he had been visiting Andrew at her home and that he and Andrew got along fine. On September 24 she took Andrew to visit Jimmy at the jail.

At the six-month review hearing on October 13, 2005, the court found Jimmy had made some progress with the provisions of his case plan. It ordered six more months of services and for the Agency to provide him with a prison package. In a report dated April 12, 2006, the social worker reported Jimmy was still incarcerated, he had not contacted the Agency about services, and there had been no further visits. The social worker recommended terminating services.

At the 12-month permanency hearing on May 30, 2006, the social worker testified he began working on the case in December 2005. He said in November the previous social worker had sent a prison package to Jimmy at the jail. Jimmy promptly completed and returned the package. The social worker testified Jimmy never attempted to contact him, but he admitted he did not send any correspondence or his contact information to Jimmy and he did not contact the jail to learn Jimmy's release date or what services were available to him there, and he did not attempt to set up telephone contact.

The grandmother testified that from February through April 2005 Jimmy visited Andrew about once every other month and while he was in jail he telephoned Andrew every month or two months and wrote about three letters. She took Andrew to see him at the jail, but the visit upset Andrew. The former social worker told her not to take Andrew to the jail again and Jimmy did not request any more visits.

Jimmy testified he was released on May 24, 2006, to a residential drug treatment program and was attending Narcotics Anonymous and Alcoholics Anonymous classes. He said he indicated on the prison package that he wanted to have telephone contact with Andrew and to continue a parenting program.

The court found Jimmy had been offered or provided reasonable services, he had not made substantive progress and there was no substantial probability Andrew could be returned to his care by the 18-month date. It terminated reunification services, continued Andrew's placement in relative care and set a section 366.26 hearing.

Jimmy petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Jimmy contends the Agency did not provide reasonable services. He argues services should be extended for six additional months because the Agency failed to communicate with him or facilitate visitation when he was in custody. He asserts it is in Andrew's best interests to provide six more months of services.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) In determining the sufficiency of reunification services the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

We agree with Jimmy's assessment that the social worker was remiss in not attempting to contact Jimmy for the several months after he received the case in late December 2005 up until the hearing in late May 2006. After Jimmy returned the prison packet, the social worker should have made some effort to communicate with him. But, as the county counsel commented during the hearing, reunification is a two-way street. Jimmy bears a major share of the responsibility for his lack of participation in his case plan before he went to prison and for his insufficient contact with Andrew during that time period. The requirements of Jimmy's case plan were not onerous, requiring only an evaluation by SARMS and a parenting education program. Jimmy was quickly discharged from SARMS, leaving only the parenting education component. However, from April 27, when Jimmy received his case plan, through September 19 when he was arrested, he never began a parenting education program. Also, although Jimmy was granted weekly visitation in April, the grandmother reported that he visited only "once every other month or so" until he went into custody in September. There were no barriers to him having frequent visitation with Andrew. The grandmother said she and Jimmy have a good relationship and like and respect one another. She said she never prevented Jimmy from talking with Andrew. As for his complaint the social worker did nothing to facilitate visitation while he was incarcerated, the grandmother testified Jimmy called from the jail every month or two months and talked with Andrew and wrote three letters. He told the court he knew the grandmother's telephone number by memory. Thus, he did not require the social worker to facilitate telephone or written communication, nor were there any restrictions on this contact. Further, Jimmy acknowledged he had in his possession at the jail contact information for the former social worker. Yet, he never contacted the Agency. He also testified he knew how to reach his attorney and called once to leave a message, but he did nothing more. As the court commented, if Jimmy had wanted contact visits he could have telephoned or written to the Agency, his attorney or the grandmother to request them, but he did not. "Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.)

Moreover, Jimmy did little in Andrew's early years to develop a relationship with him. He told the former social worker he saw Andrew when Andrew was a baby and then went to prison. He next saw him when Andrew was five years old in September 2004, and did not see him again until April 2005, after the dependency case began. He testified that from September 1999, when Andrew was born, until September 2005 he was in custody "maybe like four years."

Jimmy also argues the former social worker overstepped her authority by discontinuing visits at the jail. Although it is under the court's discretion, not the Agency's, to determine whether visits will occur (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009), we hold there was no prejudicial error. The grandmother testified Andrew became upset when she took him to see Jimmy at the jail, the social worker told her visits there were not a good idea, and Jimmy did not ask her to bring him again. Even if the social worker exceeded her authority in telling the grandmother not to take Andrew to the jail to visit Jimmy, Jimmy has not shown there would have been a different result had the Agency sought a court order on the issue. At the 12-month hearing the court stated it was not surprised that Andrew was alarmed by the visit and the social worker was wise to suggest that visits at the jail not continue. Jimmy has not shown prejudicial error.

The holdings of Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, In re Precious J. (1996) 42 Cal.App.4th 1463 and In re Monica C. (1994) 31 Cal.App.4th 296 do not support Jimmy's arguments. In each of those cases, the social services agencies did not provide reasonable services to incarcerated parents, thwarting the parents' prospects of reunifying with their children.

In Mark N. v. Superior Court, supra, 60 Cal.App.4th 996, the reviewing court held an incarcerated father had not received reasonable reunification services because, even though he had written to the social worker four to five times during his incarceration, the social worker had made little effort to maintain contact with him and did not explore alternatives to help him meet the requirements of his case plan that were not available at the prison. (Id. at pp. 1012-1013.) In Mark N., the father was incarcerated for all but one month of the dependency period. (Id. at p. 1003.) Jimmy, by contrast, was not confined for the first five months of Andrew's dependency, yet he did not begin a parenting course or spend much time with Andrew then, and he did not attempt to contact the social worker while he was in custody. In re Precious J., supra, 42 Cal.App.4th 1463 also is not helpful to Jimmy's cause. There, the social services department did not facilitate court-ordered visits that were on a set schedule. (Id. at pp. 1468-1469, 1478.) Here, there was no schedule of visits and Jimmy made little effort to contact Andrew even though he had the grandmother's telephone number and address. In In re Monica C., supra, 31 Cal.App.4th 296, the mother gave birth to her child while she was in prison. After she was rearrested for a parole violation, she applied to enter a prison program that would have allowed her to care for the child while incarcerated. (Id. at pp. 299-300.) Jimmy, on the other hand, visited only occasionally when he had the opportunity and made little effort to care for Andrew or seek his custody. The authorities of Mark N. v. Superior Court, supra, 60 Cal.App.4th 996, In re Monica C., supra, 31 Cal.App.4th 296, and In re Precious J., supra, 42 Cal.App.4th 1463, do not aid Jimmy's position.

Jimmy also asserts it was in Andrew's best interests for the court to grant him an additional six months of services. Section 361.5, subdivision (a) provides a court may extend reunification services beyond the 18-month date

"only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian."

The juvenile court found the Agency had provided reasonable services and there was no probability Andrew could be returned by the 18-month date, which was then only three months away. Jimmy testified he had been released from jail and had just begun a three- to six-month residential drug treatment program. He clearly would not be ready to assume custody of Andrew within the three months remaining until the 18-month date and, given his failure to begin parenting classes or visit Andrew regularly when he was out of custody, there were no special circumstances to justify extending the reunification period beyond that time. Andrew had never lived with Jimmy and Jimmy had no experience caring for him. Indeed, he had seen him only rarely for much of Andrew's life. The court did not err in not extending services for an additional six months.

DISPOSITION

The petition is denied.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

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