Opinion
G040217
8-4-2008
MICHAEL O., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Offices of J. Michael Hughes and Lawrence A. Aufill for Petitioner. Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Not to be Published
Law Offices of Harold LaFlamme and Linda ONeil for the Minor.
Michael O., father of Michael O., Jr., petitions for extraordinary relief from the orders of the juvenile court terminating reunification services, refusing to place the child with the paternal grandmother, and referring the case to a permanent plan selection hearing. (Cal. Rules of Court, rule 8.450.) The father contends these orders, as well as the prior jurisdiction findings and disposition orders, must be vacated because he was a minor and the court failed to appoint a guardian ad litem to represent him. The father also contends there is insufficient evidence to support the finding that he was provided with reasonable reunification services, and he contends the juvenile court erroneously denied the relative placement preference to the grandmother. We find the father has not shown any prejudice from the failure to appoint a guardian ad litem and there is substantial evidence in the record to support the juvenile courts remaining findings. Accordingly, we deny relief.
FACTS
Five-month-old Michael O., Jr., was detained by the Orange County Social Services Agency (SSA) on May 2, 2007, when his mother was arrested and incarcerated for possession of a controlled substance. His father, who was 17 years old, was nearing the end of an eight-month incarceration stint at the Youth Guidance Center (YGC). The father appeared in custody at the detention hearing, and the juvenile court appointed an attorney to represent him.
SSA placed Michael in protective custody and filed a dependency petition on his behalf, alleging failure to protect, no provision for support, and sibling abuse. (Welf. & Inst. Code, § 300, subds. (b) (g) & (j).). The father was released from YGC on May 11. He told the social worker he "began smoking marijuana when he was thirteen years old. At fourteen, he began smoking methamphetamine. . . . At fifteen, . . . he was smoking methamphetamine every day." He was first arrested when he was 13, for possession of a switch-blade knife, possession of a weapon at school, and failure to obey an order of the juvenile court. He had been in and out of custody several times. The father denied that he had an unresolved substance abuse problem, explaining, "I am working on it now." Michaels mother had lost parental rights to her three older children, who were previously made dependents of the juvenile court. The youngest, Destiny P., had been adopted; the older two were awaiting adoption.
The mother did not file a petition under California Rules of Court, rule 8.450.
At the jurisdiction hearing on June 21, 2007, the father submitted a waiver of rights form, indicating he intended to plead no contest to the petition. Upon questioning by the court, the father confirmed his understanding of the plea. The court explained, "Now, by pleading no contest to the petition, that means that we are not going to have a trial; do you understand?" The father replied, "Yes." The court continued, "That means that the court is going to rely on the social workers reports to decide whether or not the petition is true; do you understand?" The father replied, "Yes." The court then listed the rights given up by the plea: "[T]he right to have your attorney represent you at the trial. The right to watch the witnesses in the courtroom, hear them testify. Your attorney would be able to ask all of those people questions while they are here. That way we could figure out if what they are saying in court is accurate. [¶] If you wanted to have people come in here that could testify for you, you could do that also. Use the courts power to make them come here for the trial. If you wanted to testify, you could. If you did not, though, no one could force you. [¶] Those are your trial rights that you do give up by . . . pleading no contest to the petition and . . . by submitting the matter to the court; do you understand?" The father replied, "Yes."
Pursuant to the parties stipulation, the court found the allegations of the petition true, removed custody of Michael from his parents, refused reunification services to the mother, and offered reunification services to the father.
In November 2007, SSA filed reports prepared for the six-month review hearing, originally scheduled for November 29. The father had done well for the first few months of reunification, but things started to fall apart in September. He started missing appointments with his probation officer and his counselor, failed to come home at night or show up for drug tests, and resumed drug use. In October, the fathers probation officer concluded, "[He] has relapsed." On November 14, the father was arrested and incarcerated in Orange County juvenile hall. SSA recommended the termination of reunification services.
The grandmother requested placement of Michael in early November. Michaels caregivers, who had previously expressed an interest in adoption, told the social worker they had changed their minds. After an assessment by its placement unit, SSA concluded in late November that placement with the grandmother would not be considered for the following reasons: (1) There was no bond between Michael and the grandmother as she had visited him only three times since he was born. (2) She rejected placement initially, choosing instead "to allow the childs father to continue residing in her home." (3) The father continued "to reside in and out of the home . . . and would have access to the child"; the mother also visited the home. (4) The grandmother had a history of substance abuse, including two convictions for possession of illegal drugs in 2005. She completed a drug treatment program, which was a condition of her probation, in November 2006.
The six-month review hearing was continued to January 2008 because the father contested SSAs recommendations and requested a placement assessment for the grandmother. The father remained in juvenile hall, except for a brief transfer to the YGC. The social worker reported the father could not visit with Michael while he was in juvenile hall because no visitors under the age of 18 were allowed. Notwithstanding, the social worker was able to arrange a visit at juvenile hall in late January. "[T]he childs father [was] in shackles and [had] difficulty holding . . . and playing with the child . . . . [The father] reported . . . he was in shackles because he was being investigated for attempted murder with gang involvement."
As of January 2008, the grandmother was visiting Michael weekly, and she enrolled in a parenting program. SSAs adoptions social worker performed a home visit and a preliminary assessment. She reported that the grandmother has another son besides the father who is incarcerated due to criminal and gang involvement. The grandmother minimized her sons histories of incarceration, although they both "had committed violent, gang related crimes." The social worker worried she "does not have the knowledge and/or skills to prevent" Michael from such involvement. The grandmother has a third son, her youngest, who lives with his father, visits her every weekend, and stays with her every summer. The social worker reported when she told the grandmother her one-bedroom apartment would be too crowded when her son was there, the grandmother said she would "`just have him stop coming. It is of great concern that [the grandmother] would stop all visitation with her own biological minor child in order to have [Michael] placed in her home." The grandmother also said she would "never see her son [the father] again if it means being able to have Michael . . . placed in her home."
The grandmother denied being on probation, although her records showed the contrary. She also denied the possession of methamphetamine that resulted in her conviction, saying, "`[I]t wasnt mine, it was my sons." She "denie[d] all drug and alcohol use currently and in her past." When asked about child care for Michael, the grandmother did not have a credible response. The adoptions social worker reported it was "unlikely that [the grandmother] would be approved for an adoptive home study."
SSAs placement unit first concluded it was unable to approve the grandmother for placement due to her two felony charges within the last five years. The father requested a hearing on placement, and the six-month review was continued again, first to March, then April 2008. Subsequently, the placement unit reconsidered: "Although [the grandmother] did receive two felony convictions of possession of a controlled substance, one on November 16, 2004 and one on March 13, 2005, [the grandmother] did complete a drug treatment program, and based on Penal Code Section 1210.1, the two felony convictions were dismissed from [her] record, as if the two crimes had never occurred, on November 29, 2006. Therefore, [the grandmother] could be approved for Placement of the child."
The adoptions unit, however, was unconvinced: "We dont have the same exemption rules as Placement and based on [the grandmothers] character, the way she raised her three children, and her past and current lifestyle, it would be highly likely that we would deny her for an adoption homestudy." The father filed a petition under Welfare and Institutions Code section 388, seeking a court order to have Michael placed in the grandmothers home.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The father was moved from juvenile hall to YGC on February 22, 2008, and Michael was able to visit him there. By March, the grandmothers visits with Michael had become inconsistent. The foster mother reported, "She may visit one week and skip the next week. Also, she does not call to check on Michaels well-being."
The six-month review hearing began on April 8, 2008. By this time, the father had turned 18. The social worker testified that the placement unit could approve the grandmother if SSA decided to place Michael there, but she recommended against the placement. "I have concerns that [the grandmother] would not be able to provide appropriate boundaries and protection of the child from the mother and father." Although the grandmother had completed a parenting class, the social worker was concerned about her lack of honesty with SSA. Furthermore, the mother was pregnant with the fathers second child, and the grandmother had extended offers of help to the mother.
The social worker testified the father visited Michael on the average of once every two weeks; there were no concerns during the visits. However, there was no chance the father could reunify based on his "failure to prove his commitment to sobriety and . . . lack of participation in his case plan." The father was at juvenile hall for about six weeks, and during that time, "he was being investigated for attempted murder, so he was 23 hours in his cell . . . and one hour out." The father did not ask the social worker to help him participate in any of his case plan services, and the social worker did not offer him any assistance because "where he was located, he wasnt able to receive any." He could have received an "in-custody parent packet," but the social worker did not provide him with one because she felt it "would be a repeat of information he received in his actual parenting class." When the social worker met with the father two weeks before the hearing, he told her "he was just now going to get started in some services they could offer him." The social worker was in contact with the fathers assigned psychologist, who met with him once weekly for individual counseling.
Debra Martin, the adoptions social worker, testified she was asked to perform a preliminary assessment of the grandmothers home "because they were making a placement decision. To see if it would be appropriate for an adoption home study." Martin said the two felony convictions, even if they had been dismissed, were an "absolute bar to an adoption home study."
The grandmother testified she would get restraining orders against both the mother and the father to protect Michael from them, if necessary. She would not let the father live with her after he was released from custody because "he failed to bring my grandson home to reunify" and "he lacks responsibility and the drug problem." She helped the mother find a sober living home because she is pregnant with another child by the father and the grandmother was worried for "the new grandson." She testified she participated in two drug programs ordered by the criminal court, and she learned that she had been an enabler to the father because she felt "bad" for him.
The father testified if Michael was placed with the grandmother, he would obey all court orders and respect any boundaries she might set. He was currently incarcerated at YGC. Since February 22, 2008, he had been participating in the A.S.E.R.T. program, which included "substance abuse, anger management. Im going to obtain my G.E.D. Im doing R.O.P., skills, business tech. And Im going to start a parenting class and gang intervention." He also participated in individual weekly counseling. The father testified his longest period of sobriety was five to six months.
"The A.S.E.R.T. program (an acronym for Addiction, Substance Abuse, Education and Recognition Treatment) provides education and intervention services for minors committed to juvenile institutions for 6 months to one year. Case plans are individualized to address the varying needs of each participant. Minors take part in activities designed for emotional, behavioral, educational and vocational development through the collaborative efforts of Deputy Juvenile Correctional Officers, Clinical Psychologists, a substance abuse counselor, the Orange County Department of Education, the Health Care Agency and the North Orange County Regional Occupational Program." (Probation Department, County of Orange, Youth Guidance Center <http://www.oc.ca.gov/Probation/facilities/guidancecenter.asp> (as of July 25, 2008).)
The court observed the 18-month deadline for services was only a month or two away, and it was not realistic that the father could reunify within that time. Accordingly, the court terminated services and set a permanent plan selection hearing under section 366.26. The court then conducted an independent assessment of the grandmother as a relative placement. The court found it was not likely the grandmother would be able to protect Michael from his parents. Although she "has learned that she did enable and . . . shes taking steps to learn how to treat that problem," the court found considering her "track record," it would be very difficult for her to keep Michael away from the parents. "[E]specially in light of the fact there is another child to be born," the grandmother "would have to hide this child from everyone and try to juggle this and I dont know that that is realistic based on the facts that this court has heard and read."
The court was also concerned that the grandmother demonstrated a lack of parenting insight when she pleaded guilty to possession of drugs when they belonged to her son. "The [father] has had years of substance abuse and certainly this wasnt a way to assist him in dealing with his substance abuse problem." The court also noted the grandmothers "very limited" visitation with Michael.
The court found reasonable services were provided to the father while he was in custody, albeit not by SSA, but by the A.S.E.R.T. program. The court stated that the A.S.E.R.T. program is "an amazingly intensive program which has very, very controlled aftercare and a multitude of subjects that are covered . . . ." The court commented that a brief substance abuse class given by SSA would not have been as effective.
DISCUSSION
The father contends the orders terminating reunification services and setting a permanent plan selection hearing must be reversed, along with the previous jurisdiction findings and disposition orders, because the juvenile court did not appoint a guardian ad litem to represent him at the detention hearing or subsequent hearings. He claims the courts acceptance of his waiver of rights and no contest plea without the benefit of a guardian ad litem constituted prejudicial error because he was a minor. We disagree.
Code of Civil Procedure section 372, subdivision (a) provides: "When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case." The Supreme Court has acknowledged that "`[s]ection 372 represents a recognition by the Legislature that whenever a minor is involved in litigation, his rights cannot be protected unless a guardian ad litem or a similar representative acts for him. [Citation.]" (In re Josiah Z. (2005) 36 Cal.4th 664, 678.) Because a minor is "considered legally incapable of providing adequate direction to counsel," the failure to appoint a guardian ad litem for the father was clearly error. (See In re M.F. (2008) 161 Cal.App.4th 673, 679-680.)
The father contends this error requires us to direct the juvenile court to reverse all orders made in this proceeding and return to "square one" after appointing a guardian ad litem for the father. But reversal is not required unless the father can show he was prejudiced by the failure to appoint a guardian ad litem. (In re M.F., supra, 161 Cal.App.4th at p. 680.) We conclude he cannot.
The father pleaded nolo contendere to the petition, but only after some of the allegations against him were amended. The juvenile court carefully explained to the father, in plain and simple language, the rights he was giving up by entering the plea, and the father signified that he understood the explanation. Even if a guardian ad litem had been appointed and had refused to enter such a plea, it is likely the petition would have been sustained. The facts were undisputed that the father had a lengthy history of substance abuse, including recent use. He was involved in gangs, had a criminal record, and was on probation. These same facts made it highly unlikely that the father could have avoided Michaels removal from parental custody.
The father argues he was unable to provide meaningful input to his attorney during the preparation for the six-month review hearing. But his attorney set the six-month review hearing as contested, requested and received a placement hearing, called witnesses on the fathers behalf, and cross-examined the social worker. The father attended all significant hearings and testified. The father cannot point to any stone left unturned on his behalf. Unfortunately, the father relapsed and was reincarcerated during the reunification period, and he failed to complete any programs while he was out of custody. Under these circumstances, the failure to appoint a guardian ad litem did not result in a miscarriage of justice.
The father next contends there was insufficient evidence to support the finding that he received reasonable services. If a parent was not provided or offered reasonable reunification services, the juvenile court may not order a permanency planning hearing pursuant to section 366.26. (§ 366.21, subd. (g)(1).) The record here, however, provides ample evidence that the father received reasonable services.
When the father was first released from custody, in May 2007, the social worker referred him to a substance abuse program, a parenting program, and an anger management program. He participated in the programs until September 2007, when he relapsed. He was provided eight hours of visitation each week, but he failed to take full advantage of it, instead visiting only two or three hours per week. In November 2007, the father was rearrested and shuttled between juvenile hall and YGC. He ended up at juvenile hall in lock-down for six weeks; he was returned to YGC on February 22, 2008. As soon as he returned to YGC, he enrolled in A.S.E.R.T. Through this program, the father received substance abuse prevention services, skills training, and anger management education. He also participated in individual counseling. The available parenting class was scheduled to start approximately one week after the hearing. The social worker arranged monthly visits between the father and Michael starting in January 2008.
The father complains the social worker was unaware of the services available to him in YGC and did nothing to help him. Even if this were true, the father had services available to him throughout the reunification period with the exception of the six weeks he was in lock-down, when it was impossible to provide them. The courts finding that reasonable services were provided or available is supported by the record.
The fathers final contention is that the juvenile court should have placed Michael with the grandmother under the relative placement preference. (§ 361.3, subd. (d).) He is mistaken.
Section 361.3 gives "preferential consideration" to a relative request for placement, which means "that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) The assessment of the relative involves eight statutory factors, including "[t]he ability of the relative to . . . [¶] [p]rovide a safe, secure, and stable environment for the child"; "[e]xercise proper and effective care and control of the child"; and "[p]rotect the child from his or her parents." (§ 361.3, subd. (a)(7)(A), (B) & (D).) "[T]he juvenile court must exercise its independent judgment rather than merely review SSAs placement decision for an abuse of discretion." (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.) We review the determination of the juvenile court for an abuse of discretion.
The grandmother received the preference to which she was entitled under the statute. She was assessed by SSAs placement unit and the adoptions unit, and the juvenile court held a full evidentiary hearing on the issue. The court found the grandmother would not be able to protect Michael from his parents and she lacked the insight necessary to provide him with a safe and stable environment. The record supports these findings and the denial of placement was not an abuse of discretion.
DISPOSITION
The petition for extraordinary relief is denied.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.