Opinion
F081962
01-22-2021
JUAN G., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Heather A. Von Hagen for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CEJ300211)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M. Arax, Judge. Heather A. Von Hagen for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Juan G. (father) seeks extraordinary writ relief (Cal. Rules of Court, rule 8.452) from the juvenile court's orders terminating reunification services as to his now five-year-old daughter, M.G., and setting a Welfare and Institutions Code section 366.26 hearing for February 25, 2021, to implement a permanent plan of adoption. M.G.'s mother, N.G. (mother), did not file a writ petition. Father contends the Fresno County Department of Social Services (department) failed to provide him reasonable reunification services and the juvenile court abused its discretion in ordering them terminated. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Three-year-old M.G. was removed from mother's custody in June 2019 after law enforcement responded to a call at the home and found the conditions unlivable. The apartment was infested with mice and roaches and there was drug paraphernalia on the coffee table, empty alcohol containers under the couch and a large knife on the ground near the front door. There was a dog barricaded in the kitchen and the floor was covered with feces and trash. There was very little food.
Mother stated she and M.G. lived in the apartment. Mother's only support was her boyfriend whom the police arrested for violating a restraining order protecting the mother of his child. Mother stated father lived out of town and did not have contact with M.G. Mother admitted smoking marijuana on rare occasions and estimated she last used 30 days before. She voluntarily tested for the social worker and tested positive for marijuana. She estimated her boyfriend smoked marijuana daily in her apartment. She allowed her boyfriend to watch M.G. while she worked.
The department filed a dependency petition seeking M.G.'s removal under section 300, subdivision (b) because of mother's neglect and under subdivision (g) because father's whereabouts were unknown, and he left M.G. without support.
The juvenile court ordered M.G. detained and offered the parents parenting classes, substance abuse, mental health and domestic violence services and random drug testing. The court ordered supervised visits for mother. The department placed M.G. in a mentor placement with mother's friend where she remained throughout these proceedings.
In August 2019, the juvenile court adjudged M.G. a dependent under section 300, subdivision (b) but withdrew the subdivision (g) allegations because father was located in the Santa Clara County jail on gun charges. The court set the dispositional hearing for September 18, 2019. Father was transferred for the hearing.
On September 17, 2019, social worker Quentina Johnson met with father at the Fresno County jail. He spoke fondly of M.G. and became tearful remembering her as a small child. He wanted his mother considered for placement. He anticipated being released from jail in March 2020 and planned to move in with his mother and work. Father reported he was participating in anger management, drug classes and random drug testing at the Santa Clara County jail. He inquired about parenting classes but had to be moved to participate in them. He thought he may be able to participate in parenting classes after he was returned from court.
The juvenile court continued the dispositional hearing to October 2, 2019, and ordered the department to arrange a visit for father while he was in local custody. On September 19, 2019, Johnson supervised a visit with father and M.G. at the jail. M.G. did not recognize father and ended the visit within five to 10 minutes because she did not want to talk on the phone and pushed it away. Johnson told father he could send letters and gifts to her for M.G.
At the dispositional hearing in October 2019, the juvenile court sustained the petition, ordered M.G. removed from parental custody and ordered the parents to participate in reunification services. The court ordered a supervised visit for father at the Santa Clara County jail and one in-person visit at the Fresno County jail while he was in Fresno for the postdispositional mediation hearing set for December 4, 2019.
Father's reunification plan required him to complete a parenting class, substance abuse, mental health and domestic violence evaluations and any recommended treatment, and submit to random drug testing. The court ordered reasonable supervised visits for father upon his release from custody and supervised letter and gift exchange. Father's case plan indicated that he would participate in services available to him while incarcerated in the Santa Clara County jail. Upon his release, he was to contact the social worker to be referred to services in his area.
Father participated in the postdispositional mediation hearing with Johnson on December 4, 2019. Mother was not present. They discussed the paternal grandmother's application for placement and the department's concern about approving her home and her concern about lack of transportation and daycare for M.G. while she worked. Father said he was participating in a Spanish class at the Santa Clara County jail and anticipated being transported to prison on December 19, 2019. He expected to complete his sentence there and be released in March 2020. He said he would inquire about services available to him while incarcerated and mail any progress letters or notes to Johnson and his attorney. They agreed he would have quarterly visitation while incarcerated.
The juvenile court adopted the mediation agreement at a hearing on December 4, 2019, at which father appeared in custody. The court set the six-month review hearing for March 18, 2020.
By March 2020, father completed a 12-week course in English as a second language and visited with M.G. at the Fresno County jail on November 28, 2019. He was appropriate with her and talked and sang with her. He was scheduled to have another visit with her before he was transported back to Santa Clara County but there was a mix-up at the jail and he was not able to visit her. In mid-March 2020, in-person visitation was suspended at the jails because of the COVID-19 pandemic.
On February 27, 2020, Johnson received a letter addressed to M.G. in which father talked about the difficulty getting assigned to classes because he was in a nonprogramming dorm. He stated it had been " 'crazy the last few month[s]' " in jail and he did not know if he would be going to prison. Johnson did not send the letter but told M.G. father loved and missed her and gave her the picture he drew. The mother, who had not had contact with the department since August 2019, reported she had been using methamphetamine and marijuana and did not want M.G. to see her in that condition. She had been clean for about a month and did not believe she needed substance abuse treatment. Johnson referred her for a parenting class and drug court.
Father appeared in custody on March 18, 2020, in the Fresno County Juvenile Court. He remained in local custody throughout the remaining proceedings. The juvenile court continued the six-month review hearing because of the COVID-19 pandemic court closures and set a combined six- and 12-month review hearing for June 24, 2020. In the interim, mother lost contact with the department again and a parent search was initiated.
The department recommended the juvenile court terminate reunification services at the combined hearing. Father had not completed any court-ordered or comparable services at the Santa Clara County jail. Mother completed a domestic violence assessment and was recommended for treatment but did not participate in the class. She completed a substance abuse assessment and was not recommended for treatment. However, she reported using drugs while out of contact with the department. She was referred for treatment but did not go. She did not attend a parenting class or register for drug testing and was removed multiple times from the visitation schedule for nonattendance. The department also reported that the paternal grandparents withdrew their application for placement. The maternal great-grandmother expressed an interest in placement but had health problems and was not in a living situation where she could have a child. By June 2020, she had not applied for placement.
On June 24, 2020, father was not transported from the Fresno County jail because of the COVID-19 pandemic. The court ordered that he remain in local custody and continued the hearing to August 5. On August 5, the matter was set for a contested combined hearing on October 29, 2020. Mother's attorney stated he had not had any contact with mother.
The contested combined hearing was conducted on October 29, 2020. Father asserted the department did not provide him reasonable reunification services and the COVID-19 pandemic presented good cause to continue reunification efforts. Mother's attorney objected to the department's recommendation but did not present any evidence or argument.
Johnson could not remember whether she reviewed father's case plan with him or gave him a copy of it. She estimated she missed three or four monthly meetings with him. She did not attempt telephone visits for father because she did not know that was an option. He had one visit with M.G., although the record indicates he had two. No one disputed her assertion. She did not inform the Santa Clara County jail that father had been ordered reunification services. She talked to father about finding services at the Santa Clara County jail that would satisfy his services plan but did not discuss that with anyone at the jail. However, in almost every letter she sent him she asked him to tell her what services he completed or was participating in and to get a letter from his counselor confirming his participation. In addition to completing classes in English as a second language and Spanish, he told her he completed a substance abuse class and was working on his General Education Degree. She considered the substance abuse class equivalent to the court-ordered class. However, she did not know the extent and nature of the treatment provided and father did not provide her any documentation. She did not investigate what services were available for father at the Fresno County jail. She had difficulty getting visitation approved at Santa Clara County, so when father was transferred to Fresno County for the court hearing, he had his visit there. After April 2020, the COVID-19 pandemic limited in-person visits, but father sent M.G. a letter and some drawings.
Father testified he had been at the Fresno County jail for approximately eight months. He received approximately five letters from Johnson about his services and had one contact with her by telephone in the beginning of the month. He participated in the English and substance abuse classes while in the Santa Clara County jail. He participated from June until December 2019 when he became involved in a fight and was moved from a programming dorm to a nonprogramming dorm. In January or February 2020, he told Johnson he was in a nonprogramming dorm. Being in a programming dorm allowed a person to attend classes every day, whereas in a nonprogramming dorm "you just do whatever people do." The substance abuse and English classes were available in the pod he was in. They offered a parenting class at the Santa Clara County jail and he requested the class multiple times but was unable to attend because he was transferred to Fresno County. He did not know if there were any services available for domestic violence and believed there were at least four or five programming dorms at Santa Clara County jail. He did not remember receiving a copy of his case plan.
Father was still awaiting sentencing but thought it possible his charges might be dropped, and he could be released because of the COVID-19 pandemic and overcrowded housing.
Father's attorney argued the department failed to provide father reasonable reunification services. It was the department's duty to notify the jail officials that father was court-ordered to complete certain services and inquire whether those services were available to him. However, Johnson did not make those inquiries, instead placing that responsibility on father. Johnson was aware father was having difficulty locating services because he was in a nonprogramming dorm yet did not inquire whether he could be transferred to a programming dorm. Counsel also argued father complied with his case plan by participating in all the services that were available to him in jail. She also argued services were not reasonable because the social worker did not make monthly contact with father as required by the services plan. She asked the court to continue reunification services.
The juvenile court found father was provided reasonable reunification services. The court acknowledged the department did not adequately explore the options available to father at the Santa Clara County jail but there was no evidence he was harmed by that since he participated in the only services available to him—the English language and substance abuse classes. He then was involved in a fight which prevented him from completing them and the court did not believe it was appropriate for the social worker to negotiate with the custodial authorities as to where to house father. As to father's status in Fresno, the court noted that he was there at his request. The court also found that father did not take full advantage of his opportunity to write and exchange gifts with his daughter.
The juvenile court found father made minimal progress overall and mother made no progress and terminated reunification services. This petition ensued.
DISCUSSION
Father contends the department created a "meaningless case plan" as evidenced by the fact he fully complied yet made only minimal progress. (Writ pet. at p. 52.) He further contends the reunification services provided to him were not reasonable because Johnson did not contact either county jail to determine what services were available to him and then did not advocate for his placement in a programming dorm to make sure he could continue to participate in services. He faults Johnson for not contacting the provider of the substance abuse class to determine what treatment was involved, what progress he made and whether he needed further treatment. Visitation was not reasonable, he argues, because Johnson provided him only one in-person visit and failed to explore other options such as telephone visits or arrange for a meeting to discuss other possibilities. We conclude father forfeited any objection he may have to the content of the services plan ordered and fails to show how he was prejudiced by the department's efforts to implement it.
Father further contends his ability to reunify was impacted by the COVID-19 pandemic, which the juvenile court could have remedied by applying Emergency Rule 6. The court's refusal to do so, he argues, was an abuse of discretion. We find it inapplicable.
I. Reunification Services
Dependency proceedings have the dual purpose of protecting the welfare of the dependent child and safeguarding the parent's right to properly raise their own child. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) If the child is removed from parental custody, the primary objective is to reunify the child with his or her family. (§ 202, subd. (a).) "The foundation and central, unifying tool in child welfare services is the [reunification] plan. The [reunification] plan must provide for the child's care and case management and must provide services that facilitate both return and, concurrently, permanency." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020 ed.) Disposition Hearing, § 2.129[4].)
Reunification, however, is not an open-ended process. Consequently, the dependency statutes place a limit on its duration and require the juvenile court to monitor its progress by conducting periodic review hearings at six-month intervals. (§§ 361.5, subd. (a), 366, subd. (a)(1).) In general, services are limited to 18 months from the date the child was originally removed from parental custody. (§ 361.5, subd. (a)(3).) M.G. was initially removed from mother's custody on June 10, 2019, making December 10, 2020, the 18th month.
The purpose of reunification services is to place the parent in a position to gain custody of the child. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1244.) To that end, the department must devise a reunification plan tailored to the unique needs of the family and make a good faith effort to help the parent access the services the plan provides. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) "The adequacy of reunification plans and the reasonableness of the [department's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "To support a finding reasonable services were offered or provided, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult ....' [Citation.] '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.' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)
Unless visitation would be detrimental to the child, it must be part of the reunification plan. (§ 362.1, subd. (a)(1)(A) & (B); In re Luke L. (1996) 44 Cal.App.4th 670, 679.) "Without visitation of some sort, it is virtually impossible for a parent to achieve reunification." (In re C.C. (2009) 172 Cal.App.4th 1481, 1491-1492.) To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) Visitation requirements exist " '[i]n order to maintain ties between the parent ... and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent.' (Id., subd. (a).)" (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 673.)
"With respect to an incarcerated parent, there is a statutory requirement that reunification services be provided 'unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor.' (§ 361.5, subd. (e)(1).)" (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) There was no finding in this case reunification services would be detrimental to M.G.; therefore, reasonable reunification services were required to be provided during father's incarceration. The department must preliminarily identify services available to an incarcerated parent. (In re Monica C. (1995) 31 Cal.App.4th 296, 307.) It cannot delegate to an incarcerated parent the responsibility for identifying such services. (Id. at pp. 307-308.)
A parent may challenge the service plan requirements at any time during the dependency proceedings, either by direct appeal from the dispositional order or subsequently by filing a modification petition under section 388. Failure to challenge the specific service plan requirements operates as an acquiescence and forfeits the issue. (See In re Julie M. (1999) 69 Cal.App.4th 41, 47.) Whether the department made reasonable efforts to implement the plan, however, remains an ongoing issue which must be addressed by the juvenile court at each review hearing.
A. Standard of Review
"When a finding that reunification services were adequate is challenged on appeal, we review it for substantial evidence." (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) In so doing, "we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
The juvenile court's finding that reasonable reunification services were provided must be made upon clear and convincing evidence. (§ 366.21, subd. (g)(1)(C)(ii).) When the juvenile court is required to apply the clear and convincing standard of proof, "the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
B. Father Forfeited Any Objection to the Services as Ordered
To the extent father's contention the department devised a "meaningless" case plan is a challenge to the adequacy of the plan content, he has forfeited his right to challenge it on appeal. (Writ pet. at p. 52.) The department devised a services plan comprised of specific services it believed were appropriate to his circumstances. Father had an opportunity to refute the necessity and appropriateness of any and all of the services by appealing from the dispositional hearing, which he did not do. Nor did he attempt to have any of the services eliminated from his case plan by filing a modification petition under section 388. Having failed to do so, he has accepted the plan as written and forfeited the right to now challenge its content.
C. Father's Status as a Noncustodial, Nonoffending Parent is Irrelevant
Father contends as M.G.'s noncustodial, nonoffending parent he was not involved in the circumstances that warranted her removal and should not have been required to participate in any services. His status is germane in two respects. First, section 300, subdivision (g), which was alleged against him and withdrawn, pertains where a parent was incarcerated and could not make a plan of care for the child. The withdrawal of that allegation made father a "nonoffending" parent, as that term is used. He attempted to make a plan of care with his mother, which was abandoned when she withdrew her request for placement. Father's status as the noncustodial parent is only relevant insofar as it entitled him to be considered for placement. (§ 361.2, subdivision (a).) He did not, however, request placement and was not in a position to take custody of M.G. because of his incarceration. The bottom line is that father was ordered to participate in reunification services, and he did not object. Having been ordered to participate in services, he was entitled to reasonable services.
The use of the terms "offending" and "non-offending" parent has met with some disfavor given the extensive case law expressing the concept that jurisdiction is not about parental fault. (In re Briana V. (2015) 236 Cal.App.4th 297, 310, fn. 3.)
D. Father Was Provided Reasonable Reunification Services
The department failed father when Johnson did not identify the services available to him in the Santa Clara and Fresno County jails. It was the department's duty to inquire and it did not. However, father fails to show how he was prejudiced by that dereliction. He knew what was required of him and inquired on his own, apparently with the exception of domestic violence services. As a result, he participated in substance abuse counseling and attempted, though unsuccessfully, to enroll in a parenting class. Contrary to his assertion, Johnson was not required to negotiate a programming dorm for him. His placement in a nonprogramming dorm was a disciplinary action, resulting from his participation in a fight. While it may be doubtful that a request by Johnson to have father moved to a programming dorm would have been granted, nothing prevented him from asking. Ultimately, father's failure to reunify had little to do with Johnson's efforts to assist him. Even if he completed all his services, he could not reunify with M.G. because he was incarcerated with an unknown release date.
As for visitation, father's multiple transports between Santa Clara and Fresno, as well as the restrictions imposed because of the COVID-19 pandemic, complicated Johnson's ability to arrange visitation. Although father claims he only received one visit, the record reflects he received in-person visits in Fresno on September 19 and November 28, 2019. The juvenile court ordered quarterly visits in December 2019. Why Johnson did not arrange any in-person visits for father at Santa Clara from December 2019 through March 2020 is unexplained in the record. However, by the time he returned to Fresno for the six-month review hearing in March 2020, in-person visitation was suspended because of the COVID-19 pandemic. Real party in interest acknowledges its efforts to provide father visitation were less than ideal but points out the department planned to make up visits once the restrictions were lifted.
Father's chief complaint regarding visitation is the department did not make telephone contact or explore other modes of contact. However, telephone contact was never ordered, and father did not request it. Further, father did not take full advantage of the option he had, which was to write letters and send gifts.
Although the department's efforts to promote reunification in this case are far from stellar, we cannot say under the totality of the circumstances they were unreasonable, particularly in the absence of any evidence father was prejudiced.
E. There Was Not a Substantial Probability of Return
Given the juvenile court's finding father was provided reasonable reunification services, the burden shifted to him to show there was a substantial probability M.G. could be returned to his custody by the 18-month review hearing with continued services. Substantial probability of return requires a showing the parent consistently and regularly visited the child, made substantial progress in resolving the problems that led to the child's removal from the home, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection, physical and emotional well-being and special needs. (§ 366.21, subd. (g)(1).) Here, father cannot be faulted for his inability to regularly visit M.G. under the circumstances and, as he points out, he was not responsible for the circumstances that necessitated her removal. However, as we have discussed above, his difficulty in reunifying is the uncertainty of his release and unassessed ability to provide for M.G.'s physical and emotional well-being.
II. Emergency Rule 6
On March 4, 2020, Governor Gavin Newsom declared a state of emergency because of the outbreak of the COVID-19 virus. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. On March 27, 2020, Governor Newsom issued an executive order acknowledging that "the Judicial Branch retains extensive authority, statutory and otherwise, to manage its own operations as it deems appropriate to mitigate the impacts of COVID-19." (Exec. Order N-38-20.) Acting on that authority, the Judicial Council issued emergency rules on April 6, 2020. Emergency Rule 6 addresses juvenile dependency proceedings and provides guidance regarding continuances, "If a court hearing cannot occur either in the courthouse or remotely, the hearing may be continued up to 60 days ....", except under circumstances not applicable here. (Emergency Rule 6(c)(6).)
Executive Department State of California Proclamation of a State of Emergency <https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf> [as of Jul. 30, 2020], archived at <https://perma.cc/W85V-VLNF>.
WHO Director-General's opening remarks at the media briefing on COVID-19 (Mar. 11, 2020) <https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> [as of Jul. 30, 2020], archived at <https://perma.cc/HB3P-Y3ZU>. --------
Emergency Rule 6 does not apply here because there was no impediment to conducting the contested combined hearing. While it is not clear from the record how each party appeared, it is apparent they appeared in the courtroom or by Zoom. In any event, the hearing was conducted, obviating the need to continue it under the emergency rule.
Finally, the juvenile court expressed the best reason in this case for terminating reunification efforts and proceeding to a permanent plan. The court stated, "I don't see any light at the end of the tunnel at this time in terms of exercising [the court's discretion to continue the hearing]. All I see is denying a child permanence and stability with a father who remains indefinitely in custody."
We concur and find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court. The petition for extraordinary writ is denied.