Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. 2213-DEP, 2214-DEP & 2548-DEP
Ruvolo, P. J.
I.
INTRODUCTION
Petitioner Shaun A. (Father), father of the three minors A.A.A., S.A. and A.A., files this petition for extraordinary writ under California Rules of Court, rule 8.452, seeking vacation of the order terminating reunification services and setting a permanent plan hearing under Welfare and Institutions Code section 366.26. We deny the petition on the merits.
II.
BACKGROUND
In October 2004, the Lake County Department of Social Services (the Lake County Department) received a child abuse report regarding Father’s two older children, A.A.A. and S.A., based on their living conditions. Father and Mother both signed a voluntary “Protection Plan.” In it, Father agreed to stay free of drugs and alcohol, attend parenting and anger management classes, refrain from breaking the law, and provide the minors with a safe home free from illegal activity.
In November 2004, the Lake County juvenile court found that Father’s two oldest children, A.A.A. and S.A., came within section 300 of the Welfare and Institutions Code. The petition, filed in October 2004, alleged that S.A. tested positive for methamphetamine at birth. It also alleged that S.A.’s mother (Mother) tested positive for controlled substances, had two or more arrests for driving under the influence, and had failed to comply with drug testing under a “Voluntary Family Maintenance Service/Protection Plan.” Mother was an SSI recipient based on a mental health diagnosis, but failed to participate in mental health services. The petition further alleged that Father was unable to care for the children due to his “chronic criminal behavior and periodic incarcerations,” and was incarcerated at the time of the petition. Father failed to protect the minors from Mother, and failed to provide stable housing. Both Father and Mother had “periods of homelessness,” and lived in “uninhabitable” dwellings.
Mother is not a party to this writ petition.
The Department filed an amended petition December 2004. The petition added the allegations that Mother was now incarcerated, that she refused to disclose the whereabouts of the minors, and that she refused an offer of residential or day treatment from the Drug Abuse Alternative Center.
At the January 3, 2005 jurisdictional hearing, Father was represented by counsel. The court sustained the allegations in the amended petition. The Lake County Department filed a disposition report on March 3, 2005, in which it noted that Father failed to cooperate with it and stated “he shouldn’t have to do anything” because the children were not removed from him. Both parents were arrested on the same date for possession for sale of methamphetamine. Mother gave birth to a child, A.A., in May 2005.
On October 31, 2005, the Lake County juvenile court transferred the case to Sonoma County. The court ordered that the minors continue to be dependent children, and that family maintenance services be provided to Mother for the purpose of her retention of custody of the minors. At the time the case was transferred, Father was still in custody in Lake County.
The court set a hearing for December 1, 2005, at which a citation was issued for Mother to appear and counsel was appointed for her. Mother appeared on December 22, 2005, and the matter was continued until April 27, 2006, with notice given to Father at the Lake County jail.
At a May 11, 2006 review hearing, the minors continued to be placed with Mother. The court continued family maintenance services to Mother. Father was served with the order in the Lake County jail.
On September 25, 2006, Father was served by mail at the California Rehabilitation Center in Norco (Norco) with notice of the review hearing to be held on October 12, 2006. The notice indicated that the social worker was recommending “possible dismissal.” He was also served with the status review report. The court continued family maintenance services, and continued the matter for hearing on March 29, 2007.
On January 25, 2007, the Sonoma County Human Services Department of Family, Youth and Children (the Department) filed petitions under section 387 regarding A.A.A. and S.A, the two older minors. The Department also filed a petition under section 300 for A.A., born in May 2005, of whom Father is the presumed father. The petitions alleged that Mother had tested positive for methamphetamine and Father was incarcerated, and that both had an extensive criminal and drug use history. On January 26, 2007, notice of the hearings on the new and supplemental petitions was served by mail on Father in prison at Norco. On January 29, 2007, notices of the jurisdictional hearing to be held on March 7, 2007, were served by mail on Father. The notices included the advisements that “If you fail to appear, the court may proceed without you,” and “If the parent . . . is indigent . . . and desires to be represented by an attorney, the parent . . . shall promptly notify the clerk of the juvenile court.” The record reflects that Father received these notices on February 1, 2007.
The status review report for the March 7, 2007 hearing indicated that Mother had relapsed, testing positive for methamphetamine while the three minors were in her care. Father was still incarcerated in Norco. The court sustained the allegations of the petitions, declared all three minors dependents of the juvenile court, and declared Father the presumed father of the three minors. The minors were placed with their maternal grandfather, and the matter was continued for a review hearing on August 23, 2007.
A copy of the jurisdictional/dispositional report was sent to Father in prison, but it was returned, apparently because Father had been released. The record also reflects that a copy of the jurisdictional/dispositional report was served on March 5, 2007, by fax and mail on Ciummo and Associates, a law firm, although the record does not disclose when Father was appointed an attorney.
Father testified that he did not have an attorney prior to August 23, 2007.
Father was released from prison in Norco in March 2007, and entered a residential substance abuse treatment program as a condition of his parole. On June 18, 2007, while in the residential program, the social worker met with Father and discussed his case plan, including the requirement that he participate in individual therapy.
Father was discharged from the residential program on June 28th because “his work schedule interfered with the responsibilities he was assigned.” On August 15, 2007, the social worker filed a declaration of due diligence, indicating that she had no current address for Father, and her last contact with him was on July 30, 2007. Father had not provided her with a current address, but indicated he might be staying in motels. Father nevertheless appeared in court for the hearing on August 23, 2007.
On August 23, 2007, Ciummo and Associates filed a “Notice of Assignment,” which stated “Ciummo and Associates, Primary, hereby assigns representation of Shaun A., Father[,] to Carolyn McBeath, Ciummo Secondary. Ciummo Primary will represent . . . Mother.”
The matter was ultimately continued to November 13, 2007. At that hearing, the parties stipulated that the hearing was an 18-month review because A.A.A. and S.A. were removed in December 2004, returned on family maintenance in October 2005, and removed again in January 2007. The court found that reasonable services had been offered and that Father had not made substantive progress in his case plan. The court set the matter for a section 366.26 hearing to be held on March 13, 2008.
Father filed this timely writ petition on December 26, 2007.
III.
DISCUSSION
A. Reasonableness of Reunification Services
Father asserts in his writ petition that the trial court erred in finding that he had received sufficient reunification services. He claims that the Department failed to “follow through in finding a therapist” for him so that he could comply with his reunification plan. He also asserts that he was not informed and did not understand that his failure to comply with the reunification plan could result in termination of reunification services.
We review the court’s findings regarding the sufficiency of reunification services for substantial evidence. “ ‘[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered.’ ” (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) “ ‘ “ ‘[W]hen two or more inferences can reasonably be deduced from the facts,’ either deduction will be supported by substantial evidence, and ‘a reviewing court is without power to substitute its deductions for those of the trial court.’ [Citations.]” [Citation.]’ . . . ” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
“[I]n reviewing the reasonableness of the reunification services provided by the [d]epartment, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. . . .” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969; In re Misako R., supra, 2 Cal.App.4th at p. 547.)
When at least one of the dependent children in a sibling group is under three years of age, as was the case here, reunification services are usually limited to a period of six months. At the six-month review hearing, on a finding of “substantial probability” that the child will be returned to the parent within the additional period of services, the court may extend services to the 12-month status review hearing. At the latter hearing it may again extend services based on a similar finding, for a period no longer than 18 months from the date of initial removal from the parent’s physical custody. (§§ 361.5, subd. (a); 366.21, subds. (e)-(g).)
Father maintains that the reunification services were inadequate in that the Department did not “follow through in finding a therapist.” for him. He also claims, apparently to demonstrate that the reunification services were inadequate, that the social worker “ambiguously construed” a “key element of the case plan”—the requirement that Father participate in individual therapy.
The record indicates that Father was released from prison in March 2007. He then entered a residential substance abuse treatment program as a condition of his parole. On June 18th, while in the residential program, the social worker met with Father and discussed his case plan, including the requirement that he participate in individual therapy. The social worker testified she believed she told Father the consequence of not complying with the case plan would be that his children would not be returned to him, but was not certain. On that date, Father signed his case plan, which he acknowledged included the requirement of weekly individual therapy. He also acknowledged reading the paragraph above his signature in the case plan, which stated that his failure to comply with the case plan could lead to termination of reunification services.
All subsequent undesignated dates are in 2007.
Father was discharged from the residential program on June 28th because “his work schedule interfered with the responsibilities he was assigned.” Though the conditions of his parole required only a 90-day stay in residential program, his parole officer recommended he stay for six months. On July 6, Father reported to the social worker that he was not attending the AA/NA (Alcoholics Anonymous/Narcotics Anonymous) meetings required by his case plan due to his work schedule. The social worker told Father he must go to three AA/NA meetings per week and provide documentation of attendance. Father “said that he was not interested in individual therapy, that he felt he couldn’t trust a therapist, and that he didn’t want to rehash the past,” despite the social worker’s explanation that if he did not participate in therapy, he would not be in compliance with his case plan.
On July 16th, Father’s parole officer told the Department that Father had not informed the residential program of his whereabouts, staff had reported his participation in the program had been inadequate, and Father was “doing his own thing.”
On July 26th, the social worker met with Father. He was not in compliance with the case plan. Father was still “not . . . willing to participate in individual therapy.” He was unable to provide verification of AA/NA attendance, did not have a sponsor, and appeared “resistant to the idea.” The social worker testified she was certain that, at this meeting, she told Father the consequence of not following the case plan. She testified that she had no reason to believe Father did not understand the importance of complying with every element of the case plan.
Between July 26th and September 20th, the only contact between the social worker and Father was telephone messages. On September 20th, Father telephoned the social worker and said he was interested in therapy. The social worker asked him to call her back with his schedule so she could provide him with a list of referrals. Father did not call back until October 11th. The social worker located a therapist who would contract with the county, and provided his name and telephone number to Father on November 2nd. On November 9th, Father called the social worker and said he had the wrong number for the therapist, and was again given the number.
Father testified that, prior to September 20th, “It was not explained to me that [individual therapy] was . . . mandatory or . . . needed as part of my case plan . . . .” He called the social worker about therapy referrals after his attorney explained to him that “this is on your case plan, that you need to do individual therapy, and it was not an option . . . .” He testified he knew individual therapy was part of his written case plan, but he “misunderst[ood]” that it was mandatory.
The record does not reflect a “failure to follow through” by the Department. The record demonstrates that Father read and signed his case plan, which he acknowledged included the requirement that he participate in individual therapy. Father also acknowledged that he read the portion of the case plan indicating if he did not follow the case plan, it could result in termination of reunification services. When he finally contacted the Department about individual therapy in September, he failed to call back with his schedule for approximately three weeks, telling the social worker that he forgot. Then, when provided with the name and telephone number of a therapist able to see him, he called the Department a week later to say he had the wrong number. The juvenile court noted that “[w]hat strikes me the most is the delays that have happened between phone calls placed by the social worker and your returning those phone calls.” Accordingly, we cannot say that no substantial evidence supports the trial court’s finding that reasonable reunification services were provided to Father.
B. Advisement Regarding Failure to Participate in Court Ordered Programs
Father argues that the court did not advise him that his failure to participate in court-ordered programs could lead to termination of reunification services, as required by section 361.5, subdivision (a)(3). He asserts that this constituted reversible error.
Section 361.5, subdivision (a)(3) provides in part that “In cases where the child was under the age of three years on the date of the initial removal from the physical custody of his or her parent or guardian or is a member of a sibling group as described in paragraph (3), the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months. . . .”
While the statute “does require the court to provide the specified information to the parent . . . the ‘legislative purpose’ is fully served if the required advice is provided in a written document which the party may read and consider at his or her own pace. . . . [¶] . . . We therefore hold that the warning mandated by section 361.5, subdivision (a)(3) may be provided in writing, as long as the record indicates that the parent represented in court that the advice had been read and understood.” (In re Arlena M. (2004) 121 Cal.App.4th 566, 570-571, italics in original, fns. omitted.)
Here, Father signed the written case plan, which included the advisement, on June 18th. Father maintains that “[t]here is no evidence that [Father] read and understood the admonition . . . .” To the contrary, Father testified that he knew individual therapy was part of his case plan. He also testified that he read the paragraph containing the advisement. His claim now is that “he did not understand the consequences of failing to comply . . . .”
Father’s failure to “understand” the admonition does not demonstrate error. Father admits reading the admonition during a meeting with the social worker. He admits signing the case plan. The social worker had no reason to believe he did not understand the consequences of failure to comply, though she testified that she could not be certain she specifically explained that to him. On July 26th, however, the social worker testified she told Father he was not in compliance with his case plan, and was certain she told him a potential consequence of that failure would be no reunification with his children. We find that the “legislative purpose” of section 361.5, subdivision (a)(3) was served here, pursuant to In re Arlena M., supra, 121 Cal.App.4th 566.
Even if there was any error in this regard, it was harmless. A failure to provide the section 361.5, subdivision (a)(3) advisement is not an error of constitutional dimension, and does not require reversal absent a showing of prejudice by the parent. (In re Arlena M., supra, 121 Cal.App.4th at p. 573.)
The evidence here demonstrates that Father knew of the individual therapy requirement, and specifically told the social worker he would not comply with it. Even after the social worker explained to Father that his lack of compliance with this portion of the case plan could lead to failure of reunification, he did not participate in individual therapy. After his attorney advised him to comply with his case plan, he asked the social worker for referrals to therapists. He did not call back the social worker for three weeks, saying he forgot. After receiving the telephone number of a therapist able to see him, he waited a week before calling the social worker to say he had the wrong number. At the hearing terminating reunification services, Father admitted he was not working the 12 steps of the AA/NA program and did not have a sponsor. He testified that he “passed the third step” but was “not ready with the fourth step to do it on my own.” When asked what the third step entailed, he responded “I haven’t done that in awhile. It’s been awhile. I kind of give up on that. I am not going to lie.” He stated he could not remember “word for word” the third or second steps. Given Father’s minimal efforts to comply with the case plan even after he admits his attorney advised him to do so, Father has not demonstrated that any initial misunderstanding regarding the mandatory nature of his case plan prejudiced him.
C. Appointment of Counsel
Father claims that he was denied his right to counsel because the court did not appoint counsel for him until August 23, 2007. He also asserts that he “was not provided with the Jurisdiction and Disposition report for the March 8, 2007 hearing date.”
Section 317 and California Rules of Court, rule 5.534(g)-(h), requires appointment of counsel for indigent parents in dependency proceedings under certain circumstances. The juvenile court, however, is not required to appoint counsel. absent a request from the parent. (In re Ebony W. (1996) 47 Cal.App.4th 1643, 1648.)
The record reflects that the Lake County juvenile court appointed counsel for Father at the initial proceedings in November 2004. The dependency proceedings were transferred to Sonoma County in 2005, and the court ordered placement of the minors with Mother and family maintenance services. During the pendency of the minors’ placement with Mother in Sonoma County, the court was not required to appoint counsel for Father. (Cal. Rules of Court, rule 5.534(h)(1)(B).)
Father was incarcerated when the new petition regarding A.A. and the supplemental petitions regarding A.A.A. and S.A., the two older children, were filed in January 2007. The record reflects that notice was sent to him in prison, and that he received it. A copy of the jurisdictional/dispositional report was sent to Father in prison, but it was returned, apparently because Father had been released. The record also reflects that a copy of the jurisdictional/dispositional report was served on March 5, 2007, by fax and mail on Ciummo and Associates, a law firm, although the record does not disclose when Father was appointed an attorney. On August 23, 2007, Ciummo and Associates filed a “Notice of Assignment,” which stated “Ciummo and Associates, Primary, hereby assigns representation of Shaun A[.,] Father[,] to Carolyn McBeath, Ciummo Secondary. Ciummo Primary will represent . . . Mother.”
See footnote 2, ante, at page 4.
The record does not demonstrate that a copy of the jurisdictional/dispositional report was not served on Father, nor does it disclose a request for appointment of counsel by Father in regards to the new and supplemental petitions. It appears from the record that Father was represented by counsel “Ciummo and Associates, Primary” prior to August 23, 2007. In any event, “[w]here, as here, a parent in no manner indicates any desire for counsel, we hold the juvenile court is not obligated to appoint counsel.” (In re Ebony W., supra, 47 Cal.App.4th at p. 1648, citing In re Angela R. (1989) 212 Cal.App.3d 257, 276-277.) We find no error.
IV.
DISPOSITION
The petition for writ of mandate is denied on the merits. (§ 366.26, subd. (l)(1)(c); Cal. Rules of Court, rule 8.452; In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: Reardon, J. Rivera, J.