Opinion
B205828
5-14-2008
JEROME D., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, Respondent, LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Los Angeles Dependency Lawyers, Inc., and Law Offices of Barry Allen Herzog for Petitioner Jerome D. No appearance for Respondent. Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
I. INTRODUCTION
Jerome D., the father of D.D., born June 2004 and Baby Boy D., born in March 2007, has filed a mandate petition pursuant to California Rules of Court, rule 8.452. The father seeks to set aside an order scheduling a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26. Specifically, the father contends he complied substantially with the reunification plan managed by the Department of Children and Family Services (the Department). He argues he should be granted additional time to complete the reunification plan pursuant to section 361.5, subsection (a). We deny the petition.
II. FACTS AND PROCEDURAL HISTORY-D.
On October 29, 2006, social worker, VaSonne McDonald, received a child abuse hotline referral alleging that D. was wandering about a laundromat parking lot and in the street. This occurred while D.s parents were asleep in chairs nearby. The Santa Monica Police Department was notified and officers drove to the laundromat where they interviewed the witnesses who related that the parents were drinking alcohol, passed out, and left D. unattended. The witnesses also reported that the mother hit D. on the buttocks prior to falling asleep in the chair. When questioned by the police, the parents stated that they had been drinking, but were not drunk. Rather, they said that they had been moving between motels and were essentially homeless, had not slept in at least three days, and were exhausted. After interviewing the father and the mother, both parents were arrested for child endangerment. A subsequent check of the backgrounds of each parent revealed that: the father had a significant criminal history in both Wisconsin and California for robbery, pimping, and other crimes; both parents had outstanding warrants from 2004; and the mother was wanted on a prostitution charge and the fathers warrant was premised on a pandering allegation.
On November 1, 2006, a dependency petition was filed alleging that D. fell within the provisions of section 300, subdivisions (a) and (b). The first detention hearing was held on November 1, 2006. The parents were incarcerated at the time and were not transported to this hearing. The matter was continued to November 7, 2006 to allow the parents to appear. However, once again, they were not brought to the court. The parents were released from custody some time prior to the next hearing date set for November 17, 2006. However, despite being free from custody, they failed to appear.
In the parents absence, the court sustained the allegations of the petition, as amended, but dismissed the allegation pursuant to section 300, subdivision (a). The reunification plan required the father to attend: a drug rehabilitation program with random drug and alcohol testing; parenting classes; and parenting and individual counseling. D. remained with an extended family member, Kathleen S. The case was then scheduled for a section 366.21, subdivision (e) hearing on June 4, 2007. After a continuance, the section 366.21, subdivision (e) hearing was held on June 20, 2007. At that time, the department recommended that reunification services be terminated because the parents visits with D. had been sporadic and she had not heard from them since May 14, 2007.
On July 31, 2007, the father informed the dependency investigator, Thelma Gadson, that he had entered a residential drug and alcohol program at the Midnight Mission. The father also informed Ms. Gadson that mandatory Alcoholics Anonymous and Narcotics Anonymous meetings were offered at the Midnight Mission as well as individual counseling. A letter dated September 5, 2007 from Ronald Holmes, a program manager at the Midnight Mission stated that the father remained in compliance and had entered phase two of the program. Another letter dated September 28, 2007 from the Midnight Mission stated that all of the fathers drug tests had been negative. Also, the father had been attending twice weekly parenting classes. Moreover, the father had been speaking to D. by phone regularly. On October 12, 2007, the contested section 366.21, subdivision (f) hearing was held as to D. Following the fathers testimony and introduction of exhibits, the respondent court continued the provision of reunification services and found that he was in partial compliance with the plan.
On December 4, 2007, the department submitted a report for the continued 366.21, subdivision (f) hearing as to D. The report stated that the father had been consistent in visiting D. and had missed only three visits due to criminal court hearings or job training. However, due to his limited income, the father had been unable to begin individual counseling. The Midnight Mission also submitted a letter to the respondent court stating that the father had completed phase three of the program, he was transitioning to a job program, and continued to test negative for all substances. Despite these reports, the department recommended termination of reunification services as to D. The father requested a contested hearing.
The contested hearing was held on February 4, 2008. The department called the fathers case worker, Sandi Brown, as a witness. Ms. Brown testified that she had provided the father with referrals to complete the court ordered case plan and she believed that he understood the case plan. She testified further that the father had not complied with the case plan because he had not received individual counseling or individual therapy, both of which were ordered by the court. On cross-examination, Ms. Brown testified: the father had completed parenting classes; all of his drug tests had been clean; and he visited and called D. regularly. She also admitted that the father had obtained regular employment. However, she recommended termination of the reunification plan because the father refused to participate in individual counseling to address case issues including his criminal past and possible past domestic abuse incidents. Ms. Brown also stated that she had attempted several times to assist him in obtaining low or no cost individual therapy and had actually circled some of the counselors who would see him on that basis. The father testified at the hearing that he had lived at the Midnight Mission for six months and a few days and expected to reside there for a full year. He also admitted that he could not have a child living with him during the time he was residing at the Midnight Mission.
After hearing all of the evidence, both testimonial and documentary, the respondent court found by a preponderance of the evidence that return of D. to the father created a substantial risk of detriment to her physical or mental health which created a continuing necessity for the appropriateness of the current placement. The respondent court also found by clear and convincing evidence that reasonable services had been provided to the father to reunify with D. The respondent court stressed that Ms. Brown had on three occasions provided the father with the names of low cost or no cost therapists and times for phone calls with D. The respondent court further ruled that the father had only partially complied with the case plan and there was no likelihood or probability D. would be returned to him by the statutory 18-month date set forth in section 366.22, subdivision (a) and terminated reunification services.
III. BABY BOY D.
While incarcerated on prostitution charges, the mother gave birth to Baby Boy D. Baby Boy D. was born prematurely in March 2007, at 31 weeks gestation and weighed a mere 1 pound, 11 ounces at birth. Baby Boy D. remained hospitalized at LAC-USC Medical Center in Los Angeles. On May 10, 2007, a nurse at that facility reported that Baby Boy D. was doing well and now weighed 3 pounds and 11 ounces. However, he was still being fed through a nasal tube because he was unable to feed by mouth. Baby Boy D. was not expected to be ready to be discharged for at least another month or possibly longer. However, the hospital was pleased with his progress.
On May 14, 2007, the department filed a section 300, subdivision (b) dependency petition on the ground that there was a substantial danger to the physical health of Baby Boy D. based on his fragile medical condition and the parents inability to maintain suitable housing for their children. The petition also alleged the parents had failed to make progress on the case plan which was ordered previously for D. Thereafter, a pretrial resolution conference was set for Baby Boy D. However, the conference was continued due to insufficient notice to the parents. On July 27, 2007, the department filed a first amended petition concerning Baby Boy D. which added the allegation that the parents were current cocaine abusers. To complicate matters further, the mother reported that she was putting both of the children up for adoption and that the father was not the biological father of Baby Boy D. Her assertion that the father was not the natural father of Baby Boy D. led to further continuances of the proceedings while paternity tests were performed. After paternity testing confirmed that the father was in fact Baby Boy D.s biological father, the matter was set for an adjudication hearing.
On October 12, 2007, the adjudication hearing as to Baby Boy D was held. Following a contested hearing, the respondent court sustained the allegations of the first amended petition. The respondent court also ordered reunification services for the father in the form of a drug rehabilitation program and parenting and individual counseling to address case questions as well as domestic violence issues. In addition, a section 366.21, subdivision (e) hearing as to Baby Boy D. was set for January 14, 2008.
On the day set for the 366.21, subdivision (e) hearing, the department submitted a report about the father which stated that he was not in compliance with his case plan because he had not enrolled in individual counseling. The department recommended termination of reunification services. The hearing for Baby Boy D. was held on the same day as the 366.21, subdivision (f) hearing for D. The evidence presented at the combined hearings was the same for both children. As noted, Ms. Brown testified that, despite making progress with the reunification plan by participating in the programs at the Midnight Mission, abstaining from drugs and alcohol and gaining employment, the father refused to participate in individual counseling despite the fact that she had assisted him in locating therapists who would charge him little or nothing for their services. Accordingly, based on the fathers continued refusal to participate in individual counseling, the respondent court found that return of Baby Boy D. to the father created a substantial risk of detriment to the youngster. The respondent court also held that reasonable services had been provided to the father in an attempt to reunify with Baby Boy D. However, the father refused to avail himself of the counseling. Therefore, the respondent court terminated the reunification services and set a 366.26 hearing for June 16, 2008. This petition followed.
IV. DISCUSSION
We review dependency determinations for substantial evidence. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) We view the evidence in a light most favorable to the respondent courts findings. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Family preservation is the first priority when dependency proceedings are commenced. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) The Court of Appeal has held: "Reunification services implement `the laws strong preference for maintaining the family relationships if at all possible. [Citation.]" (Ibid; 1787 citing In re Rebecca H. (1991) 227 Cal.App.3d 825, 843.) Therefore, reasonable reunification services must be offered to a parent. (Ibid.; In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406.) The reunification plan is "a crucial part of a dispositional order." (In re John B. (1984) 159 Cal.App.3d 268, 275; accord Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165; In re Brittany S., supra, 17 Cal.App.4th at p. 1402; In re Terry E. (1986) 180 Cal.App.3d 932, 947.) The department must make a `"good faith effort" to provide reasonable services responsive to the unique needs of each family. (In re Precious J., supra, 42 Cal.App.4th at p. 1472; In re Monica C. (1995) 31 Cal.App.4th 296, 306; In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) Moreover, the Court of Appeal has held, "[T]he plan must be specifically tailored to fit the circumstances of each family (In re Michael S. [(1987)] 188 Cal.App.3d 1448, 1458), and must be designed to eliminate those conditions which led to the juvenile courts jurisdictional finding. (In re Rebecca H., supra, 227 Cal.App.3d at p. 837.)" (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1790; In re Brittany S., supra, 17 Cal.App.4th at pp. 1406-1407; In re Dino E., supra, 6 Cal.App.4th at p. 1777.) The adequacy of the reunification plan and of the departments efforts to provide suitable services is judged according to the circumstances of the particular case. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362; Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554; Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1164.) But in the final analysis, the assessment of whether adequate services were provided is evaluated under the following circumstances: "`In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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.)" (In re Julie M. (1999) 69 Cal.App.4th 41, 48.)
There is substantial evidence the reunification services provided to the father by the department were more than reasonable. Specifically, the fathers case worker went out of her way to meet with him several times in order to insure that he would be able to avail himself of the services of a private therapist on his current salary. She even went so far as to prepare a budget for the father in order to demonstrate to him that he could afford the services of a private counselor on his current salary. The juvenile court itself noted that the fathers case worker had made extraordinary efforts in an attempt to help him accomplish the reunification plan. Therefore, the fathers contention that the respondent court erred in terminating his reunification services is without merit. To the contrary, although the father did make substantial progress in attempting to turn his life around, he refused to participate in the individual counseling which the respondent court had ordered and which he had ample time in which to participate. Finally, the father admitted at the 366.21 hearing that in order to complete the program in which he was enrolled at the Midnight Mission, it would be necessary for him to remain there for at least another six months. He also admitted that his children could not live with him at the Midnight Mission. Substantial evidence supports the respondent courts reunification services findings.
V. DISPOSITION
The mandate petition is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur.
ARMSTRONG, J.
KRIEGLER, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.