Opinion
E045505
11-18-2008
In re P.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. H.A., Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent. Lori A. Fields, under appointment by the Court of Appeal, for Minor.
Not to be Published
INTRODUCTION
H.A. (father) challenges as an abuse of discretion the juvenile courts order terminating his reunification services with his infant daughter P.M. We will affirm.
FACTS AND PROCEDURAL HISTORY
The day after she was born at Rancho Springs Medical Center in May 2007, the Riverside County Department of Public Social Services (the department) removed P.M. from the physical custody of her parents. A Welfare and Institutions Code section 300 petition filed on May 15, alleged that P.M. was at risk of harm in that her mother had failed to obtain a restraining order against, and continued to have a relationship with, father despite his history of being physically abusive toward her and P.M.s half sibling L.E. (b-1); that father had a history of perpetuating acts of domestic violence including punching the mother in the face and threatening and having someone physically assault the maternal grandfather (b-2); and that L.E. had been abused and neglected, placing P.M. at risk of suffering similar harm (j-1).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Subsequent department reports documented prior referrals and the history of L.E.s abuse. The detention report filed May 15, 2007, indicated that in October 2006 the department received a report that mother had left L.E. in the care of a relative for several weeks because her drug-dealer boyfriend (father) did not want the baby in the house. That referral was closed as "inconclusive." On January 9, 2007, L.E.s maternal grandmother had taken L.E. to the emergency room at Rancho Springs Medical Center. Mother had dropped L.E. off at the maternal grandmothers house that day because mothers boyfriend (father) had beaten her up and she was planning to go to Mexico. In the emergency room, L.E. was diagnosed as "failure to thrive." She had a high fever (104 degrees), tested positive for opiates, was found to be malnourished and "too weak to walk," and her X-rays showed "old and healing" fractures of both arms. She was treated for the malnourishment and for bladder and eye infections. Although she had been living with them, both parents denied any knowledge of how L.E.s injuries could have occurred.
The record shows both "great grandmother" and "grandmother." However, for clarity, we will refer only to grandmother.
In a jurisdictional/dispositional (J/D) report filed June 1, 2007, and an addendum filed July 20, 2007, the department continued to recommend that reunification services be offered to both parents. In an interview with the social worker, mother said that the day she had taken L.E. to her maternal grandmothers house, father "slapped" her after an argument when she tried to leave their apartment. The June report documented fathers history of involvement with child protective services for physical and emotional abuse of his four other children: one in San Diego County and three in Riverside County. In his interview, father denied that L.E. had ever been abused. He said mother had said he slapped her only because she thought it would help her get L.E. back. The maternal grandmother told the social worker that father sold drugs, that he had hit her other children for failing to give him money from drug sales, that he had threatened her numerous times, and that on one occasion he had had someone punch the grandfather in the face.
Father had apparently fathered his first child when he was himself only 14 years old.
At a contested J/D hearing on July 25, 2007, the juvenile court reviewed the reports and received evidence from both parents via stipulated testimony from counsel. The court noted that mother had in fact not obtained a restraining order against father and that L.E. had been declared a dependent child on May 9, 2007. The court upheld the allegations in the petition and ordered reunification services as recommended in the case plans plus upon-demand drug testing for both parents. The case plans included general counseling, domestic violence counseling, completion of an "Alternatives to Domestic Violence" (ADV) program, and parenting classes. The court admonished both parents that they had six months from July 11, 2007, to complete reunification and that their failure to participate might result in the termination of efforts to reunify the family. The six-month review hearing was set for January 7, 2008.
The court referred to the case plan as attached to the addendum report of July 20. In our record, the case plan is attached only to the original J/D report.
A section 366.21, subdivision (e), six-month review report filed December 19, 2007, recommended that services to mother be extended another six months but that services to father be terminated. Mother had attended and completed the ADV program, had completed parenting classes, and had participated in individual and domestic violence counseling. Her counselor reported that she was doing very well and had improved by "leaps and bounds."
But father had done very little. He had been refused admission to Novell and Novell Counseling Services (Novell) because at the intake meeting on July 20, 2007, he said he had been falsely accused and insisted that he did not have a problem with domestic violence or child abuse. He had not attended any general counseling from July through October 31, 2007, and by then had had to have his referral reissued. When he finally did have a session, on December 6, 2007, he was adamant that he had never been violent towards anyone. Because of this, his counselor did not know what direction to take with him. Father had gone to the first three sessions of the parenting class to which the department had referred him but then had been dropped for lack of attendance. He told the social worker that he had been participating in a parenting class he had found and paid for himself and would provide the social worker with evidence of his enrollment later. In an interview with the social worker on December 13, 2007, he said he did not need anything other than for the department to believe him instead of the maternal grandmother. He also suggested that the maternal grandmother had framed him by giving L.E. medication so that the child would test positive for drugs.
It appears that father may have completed the program he chose himself because the hearing transcript indicates he submitted a copy of a certificate from "P.R.I.C.E. Parenting" program to the court. But there is no copy of the certificate in the appellate record and no information about the nature, location, or certification status of the parenting program in question.
Both parents were visiting P.M. on a fairly regular basis, although both had missed or arrived very late for some visits.
In the addendum six-month review report filed February 25, 2008, the department expressed concern about an ongoing relationship between the parents. Its recommendation regarding services remained unchanged. Mother said she had not seen or spoken to father after the court hearing in May 2007; but two acquaintances reported that the parents had been living together between May and October 31, 2007, when they had apparently moved out of their apartment in the middle of the night. The apartment was known for high traffic at all hours. During the time the parents were living together there, acquaintances had heard fighting and yelling coming out of the apartment and had seen mother with large black and purple bruises. Some once heard, through an open window, a loud slap followed by whimpering and a male voice saying in Spanish, "Shut up or I will hit you again."
Both parents had been arrested on felony child endangerment/abuse charges (Pen. Code, § 273a) in relationship to L.E., father on January 31, 2008, and mother on February 20, 2008, as she reentered the United States from Mexico. Both had been bailed out. Father reportedly faced serious criminal charges and possible jail time in relation to the charges. Mother had continued to participate in counseling services and her last session, on February 15, 2008, had included L.E. and P.M. and the maternal grandmother and had been reported by the therapist as "very enlightening" and very positive. Despite being bailed out two days after his arrest, father had not attended any visits with P.M. during the month of February. One was cancelled by the department and he did not attend any of the others because of "conflict[s] with his work schedule." Attempts to schedule make-up visits failed, as he was not available by telephone and had not returned any calls.
At a contested hearing on February 28, 2008, the court continued reunification services for mother but terminated services to father. His attorney argued vigorously on his behalf and said that although he missed some counseling sessions, father had attended seven since December 6, 2007, most recently on January 31, 2008. Counsel admitted that father had been refused admission to an anger management class because he would not admit that he had a problem but said that he—counsel—had asked the social worker to find father a program where he could "learn . . . whats appropriate and whats not appropriate." The court noted that while father had submitted a parenting class certificate he had not completed the other requirements of his case plan. "All along the way he has denied wrongdoing and has continued to be argumentative with the Department." The court told father that what he had done was "too little too late." However, it did encourage him to work with his attorney and to continue the things he had started doing the preceding month. The 12-month review date was set for July 3, 2008. This appeal followed.
DISCUSSION
Standard of Review:
We review an order terminating reunification services for abuse of discretion. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.) Discretion is abused when the decision is arbitrary, capricious, or patently absurd. (In re Mark V. (1986) 177 Cal.App.3d 754, 759.) A reviewing court will reverse an order terminating services only when, after reviewing all the evidence in the light most favorable to the juvenile courts decision, it concludes that no rational trier of fact could reasonably have arrived at that decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on other grounds as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)
Reunification Services:
The parent of a child who is less than three years old at the time of its entry into foster care is entitled to only six months of reunification services. (§ 361.5, subd. (a)(2).) A child is presumed to have entered foster care on the date of the jurisdictional hearing or 60 days after the date it was removed from the physical custody of its parents, whichever is earlier. (§ 361.5, subd. (a)(3).) The court may extend services beyond the six-month period (or the 12-month period if the child is over three) only if it finds that there is a substantial probability that the child will be returned to the parents custody at the end of the extended period or that the parent was not provided with reasonable services. (Ibid.) At the time it orders services, the court must inform a parent of a child under three that failure to participate may result in a termination of efforts to reunify the family after six months. (Ibid.)
Reunification services are a benefit offered to parents, not a constitutional entitlement. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Depending on the circumstances, a court has discretion to end services at any time after it has ordered them. (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242; In re Derrick S. (2007) 156 Cal.App.4th 436, 439.) When making a decision about whether to continue services a court may consider parental efforts and progress and whether the parent has availed himself of services provided to that point. (§ 366.21, subd. (e); In re Aryanna C., supra, at p. 1242.) Parents are evaluated individually. (In re Jesse W. (2007) 157 Cal.App.4th 49, 59-60.) The fact that a court orders continued services for one parent does not mean that it is required to do so for the other when that parent "has `made little or no progress in [the] service plan[] and the prognosis for overcoming the problems leading to the childs dependency is bleak." (Id. at p. 64, citing Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 612.) Termination of services not utilized or wanted is a step in the elimination of uncertainty in the lives of very young children. (In re Jesse W., supra, at p. 64.)
Applying these principles here, we find no error in the juvenile courts termination of reunification services to father. The problems that brought P.M. into dependency were domestic violence between her parents combined with the severe abuse sustained by her one-year-old sister L.E. during the period she lived with them. After a contested jurisdiction hearing at which father was present, the court had found allegations stemming from these problems to be true. The court told father what he needed to do to reunify with his child and warned him that he had only six months in which to do it. But by the end of February 2008, almost nine months after P.M. was removed, father had still not completed his case plan or made substantial progress toward that goal. In fact, when the court decided not to extend services beyond six months, it had evidence before it that he had not only not addressed either of these problems, but that his prognosis for overcoming them was bleak indeed.
From the beginning of the case, as the court said, father had failed to cooperate with the department. Despite mothers reports to the social worker and to her family that he had hit her and despite the fact that people had heard and seen evidence of his violence, he consistently refused to concede that he had a problem. As a result of his refusal, no one could help him and he had not been admitted to any remedial program that addressed the issue. Not only did the Novell program refuse to treat him, the counselor he finally did see was at a loss about how to help him in the face of his continued denials. And there was evidence that his pattern of violent physical abuse was ongoing. He continued to live with mother and appeared to be continuing to hit her.
Father argued at the contested review hearing, as he does on appeal, that the department was somehow at fault for not providing him with a program that could have helped him however unwilling he was to be helped. We are not persuaded. Father forgets that reunification services are voluntary. The department cannot force an unwilling or indifferent parent to participate. (In re Christina L. (1992) 3 Cal.App.4th 404, 417.) Father also suggests that his failure to see a counselor until December 6, 2007, less than two weeks before his court date, was not his fault because it "was beyond his control" that it took so long to get a new referral. Father ignores the fact that he only needed the reissued referral because he had not attended any sessions between July and the end of October. His failure to participate for over three months was a matter well within his control.
The court did not abuse its discretion in concluding that father had not used or wanted the services he had already been given for over nine months and that their termination would be a step toward the elimination of uncertainty in P.M.s young life. (In re Jesse W., supra, 157 Cal.App.4th at p. 64.)
DISPOSITION
The judgment is affirmed.
We concur:
GAUT, J.
MILLER, J.