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Kief G. v. Superior Court

California Court of Appeals, First District, Third Division
Jul 24, 2007
No. A117368 (Cal. Ct. App. Jul. 24, 2007)

Opinion


KIEF G., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest. A117368 California Court of Appeal, First District, Third Division July 24, 2007

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. JD04-3297

Parrilli, J.

Kief G. petitions this court (Cal. Rules of Court, rules 8.450, 8.452) for writ relief from the juvenile court’s order terminating reunification services and setting a permanent plan hearing (Welf. & Inst. Code, § 366.26) with respect to his son Keifer G. Petitioner asserts he was denied adequate reunification services. The petition for a writ is denied.

All further statutory references are to the Welfare and Institutions Code.

FACTS & PROCEDURAL BACKGROUND

On August 9, 2004, real party in interest, San Francisco Department of Human Services (“the Department”), filed a juvenile dependency petition pursuant to section 300, subsections (b) and (j). The petition states Keifer G. was born in August 2004, to Julia M.; that Julia M. used heroin while pregnant with Keifer, has a longstanding substance abuse problem and tested positive for opiates at the time of Keifer’s birth; and that Keifer exhibited signs of severe drug withdrawal at birth, including seizures associated with in-utero opiate exposure. The petition also stated Keifer’s father, petitioner Kief G., is currently receiving treatment for substance abuse. The petition recommended Keifer be detained in foster care upon discharge from the hospital. Additionally, the petition noted the Indian Child Welfare Act (ICWA) does or may apply and stated the Oglala Sioux tribe had been notified.

At a detention hearing on August 10, 2004, the juvenile court appointed counsel for petitioner, ordered Keifer detained in foster care and set a jurisdictional hearing for August 24, 2004. On that date, petitioner denied the allegations in the petition and the court continued the matter to September 29, 2004, for a settlement conference regarding jurisdiction and disposition.

The Department filed a disposition report on September 28, 2004. The report stated petitioner had been living at Twelve-Step Program, a secondary drug treatment program, since August 2004. The report noted although petitioner denied current drug or alcohol use, he’d been asked to leave the hospital during a visit with Keifer because staff smelled alcohol on him. In terms of evaluation, the report opined petitioner had made “small strides to change his life . . . free from substance abuse” but he’d been trying for three years “without substantial evidence that he’ll succeed.” Also, petitioner’s “life and stability are a roller coaster which would pose instability to Keifer if allowed to be in his care.” Noting petitioner had received services for Hunter and Laurie (Keifer’s siblings) but had not been able to have those children returned to his care, the Department recommended no services be provided to petitioner pursuant to section 361.5 and the court set a section 366.26 hearing because adoption would be the preferred plan for Keifer.

On September 29, 2004, the juvenile court issued trial setting orders for a contested hearing regarding jurisdiction and disposition on November 23, 2004. The matter was continued on several occasions thereafter, apparently because of defective notice under the ICWA. It was finally set for March 18, 2005, but was continued again until April 18, 2005, at the request of mother’s counsel due to a calendaring conflict.

The Department’s progress report, filed on March 18, 2005, states the mother had not seen Keifer since he was placed in foster care and had made no effort towards reunification. However, it states petitioner had visited Keifer “fairly regularly, ” but “has not made significant changes in his life” indicating he would be successful if offered reunification services. The report noted petitioner had been discharged from the Twelve-Step Program on January 6, 2005, due to a positive alcohol screen, was allowed to reenter the Program, but had been discharged again on March 10, 2005, for another positive alcohol screen. The Department continued to recommend no reunification services be provided to the parents.

The matter was again subject to a string of continuances from April 18, 2005, until May 9, 2005, then to June 2, 2005, and finally to July 11 and 12. On July 8, 2005, the court granted the Oglala Sioux Tribe’s motion to intervene and appear at the contested hearing, which began on July 11. During these proceedings, the Department filed an addendum report on September 30, 2005, stating that since July 29, 2005, petitioner “continues to visit Keifer somewhat sporadically and he continues to reside at the Twelve Step Program.” The reported noted he had tested drug free since his reinstatement in that program in March 2005. The report states Keifer “is doing well in his foster home” and has been in the same home since he was initially placed in 2004. The report continued to recommend no services be provided to petitioner.

The juvenile court finally issued its jurisdictional and dispositional order on October 7, 2005, some 14 months after the detention hearing. The court found the allegations of the petition true; that petitioner had made “substantial” progress in mitigating the causes necessitating placement; ordered the Department to arrange for petitioner to provide random urine analysis samples; continued Keifer in foster care; ordered a report be prepared by October 20, 2005, on reunification requirements for petitioner; and set the 18-month permanency review for February 9, 2006.

A “permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. The court shall 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.” (§ 366.22, subd. (a).)

The Department filed a progress report on October 19, 2005. The report stated that for purposes of concurrent planning the Department had contacted various agencies in an attempt to locate a placement for Keifer in keeping with his Native American ancestry. Also, the report listed the following reunification requirements and services: petitioner to complete a residential drug treatment program; petitioner to complete a parenting class focusing on infant care; petitioner to visit Keifer on a regular basis as arranged; petitioner to maintain a legal source of income for support of the child; and petitioner to undergo a psychological evaluation addressing his ability to adequately care for Keifer and to “learn and assess any developmental delays” Keifer may have, and to follow any recommended treatment. On October 20, the court adopted the reunification requirements. After several continuances, the juvenile court held the 18-month permanency review hearing on June 15, 2006.

In the meantime, the Department submitted a Status Review Report (filed March 21, 2006) and an Addendum Report (filed June 15, 2006). The Status Review notes mother’s whereabouts are unknown, she is homeless, and reunification services have been terminated as to her. Also, petitioner continues to reside at the Twelve Step Program, has achieved almost one year of sobriety, and attends all in-house and outside AA meetings. It states petitioner has been compliant with the reunification plan with the exception of one spell in December 2005 when he was under the stress of trying to help mother. It states Keifer had been assessed and identified as developmentally delayed in speech and language, that petitioner visits weekly at the American Child Resource Center and for the most part had been regular and timely in his visits, as well as appropriate in his interaction with staff and child.

The Status Review Report also reports petitioner completed a psychological evaluation on January 7, 2006, and the results indicate he would be liable to relapse into alcohol abuse if faced with the stresses of parenting outside of a structured environment. Although the Status Review Report notes petitioner “clearly loves this child, ” it recommends termination of services for petitioner and Keifer’s adoption by his current caregivers, who are “capable of understanding and meeting the child’s special needs, ” but who are “committed to maintaining contact and involvement with [petitioner].” The Addendum Report expresses concern petitioner’s continuing involvement with the mother, Julia M., negatively affects his emotional state. It notes petitioner has been receiving services since November 2005, and recommends an additional six months of reunification services, including longer, “more intensive therapeutic visits” for petitioner with Keifer, “to provide him with the opportunity to experience what full time care of a child is like.” However, it states adoption by the current care-givers, who want petitioner to stay involved with Keifer, is still the preferred plan. On June 15, 2006, the court found petitioner had made substantial progress, ordered petitioner receive another six months reunification services, and reset the 18-month permanency review for October 12, 2006.

The Department filed another Status Review Report on September 26, 2006. This report states Keifer is making good progress in his current foster home but is exhibiting increased symptoms of prenatal drug exposure including delayed development overall, particularly in the area of language development. It notes Keifer displays signs of attachment disorder expressed in extreme temper tantrums and sleeplessness following visitations with petitioner. The report states petitioner has weekly supervised two-hour visits with Keifer through the American Indian Child Resource Center in Oakland. Staff there felt two hours was enough and did not think unsupervised visitations would be appropriate. However, the report also states week-end visitations of longer duration were currently being arranged under the aegis of Bay Area Children First (“BACF”), after a referral was placed with that organization in June 2006. Nonetheless, the report recommended terminating services because petitioner had not shown he could care for Keifer on a full time basis.

After the court continued the 18-month permanency review to November 16, 2006, the Department submitted an Addendum Report on November 13, 2006. This Addendum states that the foster mother reports Keifer appears to be greatly stressed by the additional weekend visitations with petitioner, manifested in severe temper tantrums, loss of appetite, and insomnia. The Addendum reports that Patti Boucher, the BACF therapist who supervises the weekend visits, states petitioner “tries very hard in the visits” but “appears to be burned out” and is demonstrating “thought pattern disorders” and cognitive problems because he does not remember Boucher’s name, had trouble putting a diaper on Keifer, ignored staff directions to dilute juice before giving it to Keifer, and let go of Keifer as he watched for traffic while crossing the street. Boucher also stated Keifer often rejects petitioner during the Sunday visits. The Department requested that weekend visitations cease and the Thursday visitation be maintained.

On November 16, 2006, the 18-month permanency review hearing was continued until December 7, 2006. On November 17, 2006, the Department filed an ex parte request to terminate weekend visitation, which the court granted after a hearing on November 20, 2006. A further Addendum Report filed on December 5, 2006, states that the foster mother reports Keifer’s behavior has moderated since weekend visitations ceased and he is eating more and sleeping better.

On January 29, 2007, approximately 30 months after Keifer was detained, the court conducted the 18-month permanency review hearing. The court found “the return of the child to the father . . . would create a substantial risk of detriment to the safety, protection, emotional or physical well-being of the child and this is because while the father has participated in his services and has done, I think, the best he could with regard to those, not everything that was taught to him was able to be put into action.” The court also found by clear and convincing evidence reasonable efforts had been provided to petitioner, terminated his reunification services, and set a section 366.26 hearing for May 30, 2007. Petitioner timely filed a notice of intent to file a writ petition on January 30, 2007. On May 18, 2007, we issued an order to show cause and stayed the section 366.26 hearing until we determined the merits of the petition. We now deny the petition and lift the stay so that the juvenile court may proceed with the section 366.26 hearing.

DISCUSSION

On appeal, we review the trial court’s discretionary rulings for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We review its factual findings to determine whether they are supported by substantial evidence. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341.) In reviewing for substantial evidence, we review the record in the light most favorable to the prevailing party. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “[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. [Citation.]” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) As to any pure issues of law, we exercise de novo review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.)

Petitioner asserts the trial court abused its discretion by continuing the case for almost 14 months because of the Department’s alleged failure to properly comply with ICWA notice requirements. However, petitioner offers no argument in support of this contention. Therefore, we deem it abandoned.

“[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 604, pp. 638-639 [“The court need not consider an issue or alleged error where the appellant fails to offer pertinent argument on it; i.e., the court may consider the point as abandoned” (italics omitted) ].)

Petitioner also asserts the juvenile court abused its discretion by denying him an additional six months of reunification services. However, the court terminated services after finding reasonable efforts had been provided or offered to petitioner to overcome the problems causing Keifer’s initial removal. Accordingly, we review this factual finding for substantial evidence. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341.)

The services provided “should be tailored to the specific needs of the particular family.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) “Services will be found reasonable if the Department has ‘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 (such as helping to provide transportation).’ ” (Ibid.) However, services will rarely be perfect. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1159; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) “ ‘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.’ ” (Melinda K., supra, 116 Cal.App.4th at p. 1159, quoting In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

The problems which led to petitioner losing custody of Keifer were clearly reflected in the objectives and client responsibilities set forth in the case plan developed in October 2005. The objectives required petitioner to “[s]tay sober and show your ability to live free from alcohol dependency”; “[s]tay free from illegal drugs and show your ability to live free from drug dependency [and] comply with all required drug tests”; and “[o]btain and maintain a stable and suitable residence for yourself and your child.” To meet these objectives, the case plan called for petitioner to undergo general counseling, a parent education program an inpatient substance abuse program, and a psychiatric/psychological evaluation.

The record indicates the above-described case plan was substantially implemented by September 2006. The Status Review Report filed on September 26, 2006, states petitioner is living in the Twelve-Step clean and sober program, began attending the Morrisonia West substance abuse treatment in July 2006, and meets with a case manager as well as a counselor at Morrisonia West on a weekly basis. It also shows petitioner was referred to Talk Line in December 2005 regarding a parenting education program focusing on infant care, and was currently participating in such a class. It indicates petitioner had been visiting regularly with Keifer under supervision at the American Child Resource Center in Oakland on Thursday afternoons. It also indicated petitioner completed a psychological assessment on January 7, 2006. In addition, the Department also facilitated petitioner’s visits with Keifer at the American Child Resource Center by providing him with a transportation allowance to cover BART and bus expenses, and by picking him up and delivering him back to the bus or BART station after the scheduled visit. The Department also gave petitioner a monthly San Francisco transit pass to enable him to attend sobriety and parenting classes. Accordingly, we conclude substantial evidence supports the court’s finding that the services provided to petitioner were reasonable under the circumstances.

Petitioner, however, asserts the trial court abused its discretion by failing to extend reunification services for a further six months. Petitioner relies on In re Daniel G. (1994) 25 Cal.App.4th 1205. That case is wholly inapposite here. In Daniel G., at the 18-month review hearing the trial court not only found the Department had failed to provide reasonable reunification services to the mother, but branded the Department’s efforts “a disgrace.” (In re Daniel G., supra, 25 Cal.App.4th at p. 1209.) Despite this, the trial court ruled “it had no discretion to continue efforts at reunification beyond the 18-month review period.” (Ibid.) The appellate court concluded this ruling was error because the trial court retained discretion to extend reunification services beyond the 18-month review period where the Department had developed but failed to implement a reunification plan. (Id. at p. 1213.) Unlike the situation in Daniel G., in this case the Department developed a reunification plan, which was signed and accepted by petitioner. The plan was substantially implemented and the trial court found the Department’s reunification efforts were reasonable.

Petitioner also asserts the reunification plan was not tailored to his needs because he was not provided with a specialized parenting program to teach him how to deal with Keifer’s developmental delays caused by in-utero drug exposure. But as noted above, the issue is not “ ‘the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ ” (Melinda K., supra, 116 Cal.App.4th at p. 1159, quoting In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Petitioner was referred to a parenting class focused on infant care, which was reasonable and appropriate under the circumstances given petitioner’s potential status as sole caregiver to a young infant.

Last, without assigning error to the trial court on the point, petitioner suggests he was prejudiced by the fact he was not offered reunification services until October 2005, some 14 months after Keifer was detained. While we do not condone the delays in this case (see fn. 3, ante), we note that during this period petitioner was allowed visits with Keifer. Yet petitioner’s visits to Keifer were “inconsistent and sporadic.” Moreover, during the same time period he was twice discharged from the Twelve-Step Program for positive alcohol drug screens. Indeed, the Department’s recommendation as late as September 30, 2005, was that no reunification services should be provided to petitioner. The record does not support petitioner’s claim he was prejudiced by any delay in attaining jurisdiction.

Viewing the record in the light most favorable to the Department, (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762), we conclude substantial evidence supports the trial court’s finding that reasonable efforts were provided to petitioner before reunification services were terminated.

DISPOSITION

The writ petition is denied, the stay is dissolved, and the case remanded for further proceedings. The decision is final in this court immediately. (California Rules of Court, rule 8.264(b)(3).)

We concur: McGuiness, P. J., Siggins, J.

Notwithstanding petitioner’s abandonment of the issue, the number and extent of the continuances in this case is deeply troubling because such delay cuts against the “strong public policy in this state” that dependency matters be determined expeditiously. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1776.) On the other hand, we realize courts are under an obligation to ensure strict compliance with the notice provisions of the ICWA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) Moreover, the record indicates the Department complied with ICWA notice requirements by end of March 2005. Thereafter, the matter was then continued for another month at the request of mother’s counsel. The record does not illume why subsequent delay ensued between May and July 2005, or why the dispositional proceedings spanned July through October 2005. Also, the record does not show petitioner objected to any of the continuances.


Summaries of

Kief G. v. Superior Court

California Court of Appeals, First District, Third Division
Jul 24, 2007
No. A117368 (Cal. Ct. App. Jul. 24, 2007)
Case details for

Kief G. v. Superior Court

Case Details

Full title:KIEF G., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY…

Court:California Court of Appeals, First District, Third Division

Date published: Jul 24, 2007

Citations

No. A117368 (Cal. Ct. App. Jul. 24, 2007)

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