Sean S. v. Superior Court

Filed 4/28/08 Sean S. v. Superior Court CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Albert Garcia, Commissioner (pursuant to Cal. Const., art. VI, 21.) Petition denied.

Los AngelesDependency Lawyers, Inc., Law Offices of Barry Allen Herzog, Ellen L. Bacon and Linda Simmons, for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Real Party in Interest.

Childrens Law Center, Elaine Bradshaw, for Minor.

Sean S. (father) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court terminating family reunification services with his daughter, J.S., and setting the underlying dependency proceeding for a hearing pursuant to Welfare and Institutions Code section 366.26.^[1] We deny the petition.

FACTS AND PROCEDURAL HISTORY

The Los Angeles County Department of Children and Family Services (DCFS) detained 19-month-old J. on June 28, 2006. J. was at a motel with her mother and mothers companion, Mr. A. Both mother and Mr. A. were using methamphetamine. While J. was asleep in the next room, Mr. A. was handling his loaded rifle when the gun discharged. The round passed through Mr. As foot, went through the floor, and injured the tenant in the unit below, who called police. Both mother and Mr. A. were on active parole. Mother was arrested for being under the influence of a controlled substance, being in possession of a loaded firearm, and child endangerment.

DCFS filed a section 300 petition on July 3, 2006. The petition contained allegations against mother but no allegations against father, whose whereabouts were unknown at that time.

On July 13, 2006, DCFS investigator Jennifer Adams located father at a motel in Torrance, where he was staying with his father. Father told Ms. Adams that he would be at the motel for the next four to five days, and would then travel to Sacramento. Father said he had been released from jail in November 2005, and was on probation. Father told Ms. Adams he had been incarcerated during the first year of J.s life.^[2] Although he and mother had ended their six-year relationship in January 2006 (approximately 14 months after J. was born), father had purchased clothes, baby bottles, diapers and food for J. Father said he could not care for J. at that time because he was caring for his disabled father at the motel in which they lived. Father wanted about six months of stability including a job and a stable place to live, before DCFS could consider placing J. with him. Father had not visited with J. and had not requested a visit. Ms. Adams personally served father with a copy of the petition and a notice of the July 31, 2006, jurisdiction/disposition hearing. She also told him that if he did not reunify with J. during the ensuing six months, DCFS could proceed with adoptive planning.

At the jurisdiction/disposition hearing on July 31, 2006, the paternal grandparents informed the court that father was incarcerated. The court continued the hearing to allow father to be transported from Los Angeles County Jail. Prior to the continued hearing date, DCFS learned that on July 19, 2008, (six days after his conversation with Ms. Adams), father had been arrested by the Palos Verdes Estates Police Department for robbery, burglary, taking a vehicle without the owners consent, and receiving stolen property. Father was subsequently sentenced to four years in state prison.

Father was transported to court on August 1, 2006. Father submitted to the courts jurisdiction and agreed to the court-ordered disposition case plan, which required him to complete a parenting program, undergo drug testing, and enroll in a drug program if he tested dirty or missed a test. The court ordered DCFS to provide services for father as an incarcerated parent. Father was permitted visitation with J. for three hours, three times per week, to be monitored by a DCFS-approved monitor.

A six-month review hearing was set for January 30, 2007. Father waived his right to appear at the hearing. DCFS social worker Norma Saldivar reported that after making several phone calls, she was able to locate father at the California Institute for Men in Chino. Ms. Saldivar wrote father on December 6, 2006, and asked whether he was enrolled in any of the court-ordered programs, or if such programs were available to him. On December 12, 2006, Ms. Saldivar received a collect telephone call from father, but the call failed. Shortly thereafter, father wrote Ms. Saldivar a letter informing her that he had taken parenting classes in 2005 and 2006 at the Pitchess Detention Center, and had put in numerous requests here at Chino to see what I can become involved in. Father enclosed a visiting form for Ms. Saldivar to fill out, and inquired whether she would be at the January 30, 2007, hearing. Just prior to the hearing, fathers counselor notified Ms. Saldivar that parenting classes were available at Chino but that father had not taken any action to enroll himself. In a report prepared for the January 30, 2007, hearing, Ms. Saldivar recommended that the parents receive six additional months of reunification services.

Father did not appear at the January 30, 2007, hearing, but he was represented by counsel. The court found that father was in partial compliance with the case plan. The court followed the recommendation of DCFS that the parents receive six more months of reunification services.

In a report prepared for the 12-month permanency planning hearing ( 366.21, subd. (f)), Ms. Saldivar stated that she had tried numerous times to get information as to visiting with [father]. On June 19, 2007, an individual at the prison instructed Ms. Saldivar on how to request a visit. Ms. Saldivar faxed the requested information and expected a response within two weeks. Ms. Saldivar also reported that father had completed a parent education program. He had also begun working in an accounts receivable job in prison and said that by the time of his release he hoped to have enough experience to obtain a similar job so he could provide for himself and J. Father also stated he was grateful that he, Ms. Saldivar and J.s caregivers had an open line of communication. With respect to visitation, Ms. Saldivar stated that neither parent had been able to visit with J. due to their incarceration, but Ms. Saldivar and J.s caregiver had facilitated visitation with relatives, including fathers grandmother. Mother was due to be released from prison in July 2007, and father was due to be released in August 2008.

On July 31, 2007, the court ordered that the parents receive six more months of reunification services. The court found mother was in compliance with the reunification plan, father was in partial compliance, and DCFS had provided reasonable reunification services. The matter was set for an 18-month review hearing ( 366.22, subd. (f)) on December 26, 2007.

In August 2007, the case was transferred to DCFS social worker Margaret Buapim. Ms. Buapim reported that after numerous attempts to contact father at the Institute for Men in Chino, she traveled there to meet with him on December 11, 2007. Ms. Buapim told father that timely permanence was in J.s best interest. Father agreed, and provided the names of paternal relatives who might be considered to adopt J. (J.s maternal grandparents had indicated they wished to pursue adoption.) Father said he was interested in maintaining his parental rights if he was able to do so.

Father submitted a declaration, which Ms. Buapim attached to her report for the 18-month hearing. Father said he had no intention of forfeiting his parental rights, intended to reunite with J. upon his release from prison, and would pursue full-time employment and enroll in community college courses. Father requested that a review date be set sometime after 8/1/08 (fathers anticipated release date), and that J. remain with her present caregivers until that time.

Mother requested a contested hearing so the matter was continued to February 7, 2008. DCFS prepared an updated report for the continued hearing. The maternal grandparents had said they wished to adopt J. and DCFS was in the process of evaluating the maternal grandparents home.

On February 7, 2008, the court held a contested hearing. Fathers counsel questioned Ms. Buapim about the reunification services she had provided to father. She testified about her visit with him at the prison in December 2007, and also said she had talked to one of J.s caregivers about facilitating visits with father.

Father testified that he had been incarcerated since July 2005. He had completed a parenting program and had done everything I could do for being incarcerated. Father said he had not been able to do drug testing or have visitation with J. because he had been incarcerated. Ms. Buapim had not provided him with any assistance regarding visitation, and he had not had any contact with J. during the prior six months. Father had written to J. twice a month, but had not phoned her caretaker. Father stated he had a friend named Christine who might be able to facilitate his visitation with J., but did not have any relatives who could do so.

At the conclusion of testimony, the court found, by a preponderance of the evidence, that there was a substantial risk of detriment to J. if she were returned to the physical custody of the parents at that time; DCFS had complied with the case plan by making reasonable efforts to return the child to a safe home and to complete whatever steps are necessary to finalize permanent placement of the child; father had partially complied with the case plan; and the permanent plan for J. was adoption. The court terminated reunification services for both parents and set the matter for a permanency planning hearing. ( 366.26.)

DISCUSSION

We review the juvenile courts order under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency courts findings.
(In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence is evidence that is reasonable, credible and of solid value that would allow a reasonable trier of fact to reach the same conclusion as the juvenile court. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support the courts order, contradicted or not, we must affirm the dependency courts decision.
(In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

Father contends there was not substantial evidence to support the juvenile courts finding that DCFS provided adequate reunification services to him, because it did not maintain monthly contact with him, did not determine what programs were available to him in prison, and did not facilitate court-ordered visitation. We find substantial evidence supports the courts finding.

[T]he focus of reunification services is to remedy those problems which led to the removal of the children. [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.]
A social services agency is required to make a good faith effort to address the parents problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) 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. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

Substantial evidence supports the juvenile courts finding that the reunification services DCFS provided to father were reasonable under the circumstances. Father became incarcerated approximately one month after J. was detained, and remained so throughout the entire reunification period, which was ultimately extended to 18 months. DCFS was initially told that father was housed at North Kern State Prison. After making several telephone calls, DCFS social worker Ms. Saldivar learned that father had been transferred to the state prison in Chino. Ms. Saldivar corresponded with father once she learned his whereabouts. Ms. Saldivar also contacted fathers counselor at Chino to determine what programs were available to father and what procedures Ms. Saldivar would have to follow to visit father. Father enrolled in a parenting class on his own initiative. Although the court had ordered father to undergo drug testing, that service was not available at Chino and the court took this into account when it assessed fathers compliance with the case plan. Father corresponded with Ms. Saldivar concerning his completion of the parenting program, the employment skills he was learning in prison, and his wishes concerning J. In fact, father said he was grateful that he, Ms. Saldivar and J.s caregivers had an open line of communication. Ms. Buapim visited father at the prison after she took over the case. Although the court allowed father to have monitored visitation with J., father did not have any friends or family members who could transport J. to Chino and DCFS did not have the resources to do so.

As DCFS points out in its answer to the petition, there is no evidence in the record that father objected to the lack of visitation until the 18-month hearing. The court found at each stage of the reunification period that DCFS had provided reasonable reunification services, and there is no evidence in the record that either father or his counsel raised an objection.

DCFS has raised two other issues concerning fathers claims that bear noting. First, the juvenile court would have been acting within its discretion had it failed to offer father any reunification services, because he had never developed any kind of relationship with J., had been incarcerated for the first year of her life, and did not qualify as a presumed father who would be entitled to reunification services.

Second, the court could have terminated reunification services after six months because J. was under the age of three at the time she was detained. ( 361.5, subd. (a)(2).) Instead, the court twice extended the reunification period, which ultimately was the statutory maximum of 18 months. Section 366.22 provides that at the 18-month hearing, the court [s]hall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. If the court finds that the child cannot be returned to the parent or guardian after 18 months, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child. In this case, J. obviously could not be returned to fathers custody at the time of the 18-month hearing because he was incarcerated. No paternal relatives had come forward to offer J. a permanent home. The juvenile court did not have jurisdiction to extend the reunification to fathers preferred date of sometime after 8-1-08.

DISPOSITION

The petition for extraordinary writ is denied. Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

______________________, P. J. BOREN

______________________, J.

DOI TODD

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Father has a lengthy criminal history, including two felony convictions and numerous arrests for drug and theft offenses.