M.D. v. Super. >Ct.>





















Filed 5/22/13 M.D. v. Super. Ct. CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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
FOUR




>

M.D., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.

A138096 (San Francisco County Super. Ct. No. JD113358)

M.D.
(father), the presumed father of M.A., petitions this court for extraordinary
writ review of a juvenile court order terminating his href="http://www.mcmillanlaw.com/">reunification services and setting a
selection-and-implementation hearing. He
argues that reunification services were improperly withheld from him during his
incarceration and that services were inadequate. We disagree and deny his petition.

I.

Factual and Procedural

Background

On December 18, 2011, M.A.’s
mother, A.A. (mother), arrived at an emergency room in a psychotic state with
M.A. and was hospitalized under Welfare and Institutions Code
section 5150.href="#_ftn1" name="_ftnref1"
title="">[1] Several days later, the href="http://www.mcmillanlaw.com/">San Francisco Human Services Agency
(Agency) filed a juvenile dependency petition, and the juvenile court promptly
ordered M.A. to be detained and placed in foster care. M.A. was later placed with the paternal
grandmother.

While
this was going on, father was in jail.
In fact, at all times relevant to this petition, father has been
incarcerated in the San Francisco
or San Bruno jail.href="#_ftn2" name="_ftnref2" title="">[2] He had been arrested in October on charges of
possessing a knife and punching a police officer in the face. And before that, a restraining order had been
issued against him after he reportedly punched mother in the face several times
in August on a Muni bus while she was holding then one-month old M.A.

In
early February 2012, the juvenile court ordered father to receive supervised
visitation with M.A. That same month,
the court found that M.A. was a child described by section 300,
subdivision (b), after sustaining allegations that mother had mental
health issues that interfered with her ability to safely parent M.A., that
father had a “lengthy criminal history” and was currently incarcerated, and
that father had been arrested for domestic violence against mother.

Father
apparently had two or three visits with M.A. while he was incarcerated in the San
Francisco jail in the early part of 2012. At some point, he told the social worker that
he was involved in a fight at the jail and was “locked up for a while.” He later was released from “lock up” and in
March attended three sessions of a parenting class.

By
May 16, father had been transferred to the San Bruno
jail, where he soon started misbehaving.
A sheriff’s deputy reported that father was uncooperative and
aggressive, had thrown feces at staff, and had to be transferred to an
individual cell. The social worker spoke
with a deputy about father’s court-ordered services and provided him with a
copy of father’s reunification requirements.
The deputy responded by explaining that father could not attend
parenting classes until his behavior improved.

Father
had supervised visits with M.A. at the San Bruno
jail on May 18, June 8, and June 13. At a disposition hearing held on
June 19, the juvenile court adjudged M.A. a dependent child and ordered
reunification services for both parents.
Father’s reunification plan included, among other things, supervised
visitation, individual therapy, a substance
abuse assessment, and completion of parenting education and domestic violence
programs.

By
late July, father’s discipline problems worsened, and he was placed in maximum
security for regularly making death threats to jail staff, saying things such
as “ ‘I am going to kill you’ and ‘I know what car you drive’ while making
hand motions of pulling a gun trigger pointed at staff.” Visits between father and M.A. were stopped
because of safety concerns. A sheriff’s
deputy explained to the social worker that in order for visits to be allowed,
father would have to make “dramatic changes in his behavior[, including] no
longer making death threats to staff.”
Father was later released into a less restrictive part of the jail, but
was returned to segregation after only a few days because he “blew up.” As of November 12, 2012, he had not started reunification
services in the San Bruno
jail. He was permitted around this time
to have no-contact visits through glass, although this method of visitation was
considered inappropriate for M.A. because she was so young.

Some
time before January 2013, father was transferred back to the San Francisco
jail. In the first week of January, he
signed a contract of good behavior for 30 days. He insisted during a meeting with the social
worker on January 15 that he had the right to visit with M.A. The social worker investigated the issue and
learned that father could submit a request for visits but was currently unable
to visit with his daughter because of his “unsafe behaviors and level of
risk.” Father was also unable to
participate in other services because of his security level and his
disciplinary history.

In
a status review report filed at the end of January, the Agency recommended that
reunification services be terminated as to both parents and that the juvenile
court set a selection-and-implementation hearing (§ 366.26). A combined six-month/12-month review hearing
was held in late February and early March 2013.
Father did not attend. At the
hearing, the social worker testified that he believed father was not allowed to
participate in reunification services while in jail because father was “out of
control,” and the social worker lacked the power to override the decision by
the sheriff’s department to deny father access to services. He acknowledged on cross-examination by
father’s counsel that he did not personally contact the sheriff’s department
about arranging services or reinstituting visitation, and he instead relied on
the outside agency that arranged services for incarcerated parents. The social worker also acknowledged that he
did not speak with a sheriff’s deputy regarding whether any accommodations or
changes could be made for father to safely engage in services, or whether
individual therapy or a substance-abuse assessment (elements of his
reunification plan) were available to father.

Father’s
counsel argued that the Agency had failed to offer reasonable reunification
services and urged the court to order an additional six months of services, a
request that the Agency and the minor’s counsel opposed. The juvenile court instead found that
reasonable services had been provided, terminated those services, and scheduled
a hearing under section 366.26. Father
filed a timely notice of his intent to seek writ relief; mother did not.

II.

Discussion

Father claims that the juvenile
court should have extended reunification services for an additional six months
because it did not properly take into consideration the “special circumstances
of [his] incarceration” and because he did not receive reasonable reunification
services while incarcerated. The record
does not support these arguments.

The
juvenile court ordered reunification services for father notwithstanding his
incarceration. This was proper since the
court made no determination that reunification services would harm M.A.
(§ 361.5, subd. (e)(1) [court required to offer services for
incarcerated parents unless it determines services would be detrimental to
child]; V.C. v. Superior Court (2010)
188 Cal.App.4th 521, 527.) Accordingly,
the Agency was required to provide father with reasonable services during his
incarceration. (Ibid.; Mark N. v.
Superior Court (1998) 60 Cal.App.4th 996, 1011.) These services may include, where
appropriate, maintaining contact between the parent and child through telephone
calls and visits, and facilitating transportation. (§ 361.5,
subd. (e)(1)(A)-(C).) The social
worker is required to document in the child’s case plan the barriers to an
incarcerated parent’s access to court-mandated services and the ability to
maintain contact with his or her child.
(§ 361.5, subd. (e)(1)(D).)

Parents
are typically provided with six months of reunification services, which may be
extended for another six months, for dependent minors, such as M.A., who are
under the age of three at the time of removal.
(§ 361.5, subd. (a)(1)(B).)
The hearing held in this case was a combined six-month/12-month hearing,
which means that the maximum time period for services had passed. (§ 361.5, subd. (a)(1)(B).) The juvenile court shall extend this time
period “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 . . . within the extended time period or that reasonable
services have not been provided to the parent . . . .” (§ 361.5, subd. (a)(3).) Father quotes this statutory language, but
fails to discuss whether there was a substantial probability that M.A. would be
returned to him in six months. This is
probably because the record lacks evidence demonstrating any reasonable possibility (let alone a “substantial probability”)
that father would gain physical custody of M.A. within six months.

Instead,
father focuses on supposed deficiencies in the services provided to him. He correctly notes that the juvenile court,
in determining whether court-ordered services should be extended, “shall
consider the special circumstances of an incarcerated . . .
parent . . . , including, but not limited to, barriers to
the parent’s . . . access to services and ability to maintain
contact with his or her child.”
(§ 361.5, subd. (a)(3); see also § 366.21, subd. (e)
[when determining at six-month review hearing whether return of child to parent
would be detrimental, court shall consider particular barriers faced by
incarcerated parents in accessing reunification services].) He argues that it is “undisputed that
father’s incarceration prevented him from being able to access services and in
any[]way meaningfully engage in his court ordered reunification plan.” But in doing so he fails to mention, much
less take responsibility for, the fact that his inability to access
reunification services was due to his own misbehavior. His placement in administrative segregation
is what precluded him from participating in visits and other services, and this
placement “was not an external factor over which he had no control.” (V.C.
v. Superior Court, supra, 188
Cal.App.4th at p. 530.) “[T]he
statutory provisions calling for special consideration do not suggest the
incarcerated parent should be given a free pass on compliance with the service
plan or visits. That there are barriers
unique to incarcerated parents is but one of many factors the court must take
into consideration when deciding how to proceed in the best interests of the
dependent child.” (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060.) “Perfection” on the part of the incarcerated
parent to complete the objectives of his or her treatment plan “is certainly
not the standard, but a demonstrated lack of progress necessary for
reunification, regardless of its cause,
is absolutely relevant when the ultimate goal is expeditious resolution for the
child.” (Id. at p. 1062, italics added.) Father’s lack of progress here was the result
of his misconduct, which was absolutely relevant in the juvenile court’s
determination to terminate services in order to expeditiously resolve these
proceedings for the benefit of M.A.

Father
also argues that the juvenile court erred when it determined that he had been
provided with reasonable reunification services. “In reviewing the reasonableness of the
services provided, this court must view the evidence in a light most favorable
to the [social services agency]. We must
indulge in all reasonable and legitimate inferences to uphold the
judgment. [Citation.] ‘If there is any substantial evidence to
support the findings of a juvenile court, a reviewing court is without power to
weigh or evaluate the findings.’
[Citation.]” (>In re Ronell A. (1996)
44 Cal.App.4th 1352, 1361-1362.)
The adequacy of a social services agency’s efforts is “judged according
to the circumstances of each case.” (>Id. at p. 1362.)

The
record in this case shows that the Agency made reasonable efforts to provide
reunification services to father. (>In re Ronell A., >supra, 44 Cal.App.4th at
p. 1363.) The social worker
repeatedly inquired whether father could receive services while
incarcerated. In his writ petition,
father faults the Agency for supposedly not doing more to work with the
sheriff’s department to make “accommodations.”
But social services agencies are not jailors and they cannot be expected
to challenge determinations made by prison officials to deny a prisoner access
to visits and other programs based on security concerns. (See ibid.
[“prisons are run by the Department of Corrections, not the department of
children’s services”].) As the social
worker testified, he did not have the power to override the decision of the
sheriff’s department to deny father access to services based on his behavior
problems.

The
facts of this case stand in stark contrast to those in Mark N. v. Superior Court, supra,
60 Cal.App.4th 996, upon which father primarily relies. In Mark N.,
the social services agency failed to contact the incarcerated parent for 13
months of a 17-month reunification period and made absolutely “>no effort to determine whether any
services were available or could be provided” to the parent. (Id.
at pp. 1012-1013, original italics.)
The court stated that the social services agency in Mark N. had “simply conclude[d]” that it “need not take any
action to facilitate the reunification process.” (Id.
at p. 1013.) Here, the Agency
informed the jail of father’s reunification plan, and father initially received
services as a result of the Agency’s efforts.
Thus, we have every reason to believe that he could have continued to
participate in court-ordered reunification services had he not engaged in serious
disciplinary infractions. Under these
circumstances, we conclude that there is substantial evidence in the record to
support the juvenile court’s finding that the Agency provided reasonable
services to father. (>Elijah R. v. Superior Court (1998)
66 Cal.App.4th 965, 971.)

The
court’s decision to terminate reunification services is supported by father’s
failure to challenge the court’s findings that entrusting father with M.A.’s
care would have created a substantial risk of detriment to the minor and that
there was no substantial probability that father would be entrusted with M.A.’s
care within the maximum time allowed.
“The safety valve the Legislature installed for incarcerated parents who
were somehow able to make significant progress despite their incarceration was
not intended to apply to parents such as Father.” (A.H.
v. Superior Court, supra,
182 Cal.App.4th at p. 1063.)

III.

Disposition

Father’s petition for an extraordinary writ is denied on
the merits. (§ 366.26, subd. (>l); Cal. Rules of Court,
rule 8.452(h).) This decision shall
be final at the conclusion of 10 days.
(Cal. Rules of Court, rules 8.452(i), 8.490(b)(3).) Father’s request for a stay of the
selection-and-implementation hearing scheduled for July 1, 2013, is denied
as moot.







_________________________

Humes,
J.





We concur:





_________________________

Reardon, Acting P.J.





_________________________

Rivera, J.