Opinion
2d Civ. No. B236072 Super. Ct. No. J1395458
01-04-2012
T.R., SR., Petitioner, v. SANTA BARBARA COUNTY SUPERIOR COURT, Respondent, SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Real Party in Interest.
T. R., Sr., in pro. per., for Petitioner. No appearance for Respondent. Dennis A. Marshall, County Counsel, Toni Lorien, Deputy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Barbara County)
Petitioner T.R., Sr., in pro per, seeks extraordinary writ review of a juvenile court order bypassing reunification services and setting a permanent plan hearing. (Welf. & Inst. Code, §§ 361.5, subd. (e)(1), 366.26.) T.R., Sr., the minor's father, was in prison both at the time of the child's birth and the subsequent dependency proceedings. He asserts the court erred in denying him reunification services. Father claims that he was denied due process because he was not present at the jurisdiction/disposition hearing and did not have a sufficient opportunity to consult with counsel, and the court abused its discretion by removing his child from the home of his relatives. Because substantial evidence supports the juvenile court's determinations, we deny father's petition.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
T.R., Jr., was born in March 2011. Both of his parents were incarcerated at the time of his birth--mother in California and father in Oklahoma--after being arrested on October 10, 2010, at the home of the paternal grandmother, for felony possession of a firearm, promoting felony crime in a street gang, prohibited ownership of ammunition, child cruelty with possible injury or death, possession of a controlled substance, and battery. The couple was arrested as the result of a parole search to investigate a drive-by gang shooting. Father began serving a 16-month prison sentence on November 3, 2010. As a juvenile, father had been arrested for battery and was paroled to the California Youth Authority.
At the time of the child's birth, mother signed a power of attorney/temporary custody agreement giving the child's paternal grandmother and maternal grandmother temporary custody of the child. The child was taken home from the hospital to his paternal grandmother's home. Child Welfare Services (CWS) received a referral on May 24, 2011, alleging caretaker absence/incapacity. A social worker visited the home of the paternal grandmother on that day and observed that she was incapacitated by diabetes and could only walk with the aid of a walker. The maternal grandmother had had knee surgery in April 2011and had visited the child only once while he was in the care of the paternal grandmother.
The paternal grandmother stated that she had help caring for the child from a friend, a niece, a sister-in-law and grandmother's 17-year-old son, who lived at home. The paternal grandmother admitted that she would not be able to handle the child and her walker in the event of an emergency if she were home alone. Although the child appeared clean and healthy, CWS was concerned that the paternal grandmother would not be able to act to save the child in case of an emergency that required immediate egress from the home. CWS informed the paternal grandmother that it was not safe for the child to be in the home without another caretaker present. During the visit, the paternal uncle arrived at the home. He stated he was suspended from school, had a summer job, and was studying to obtain his driver's permit. He was responsible for the laundry and cleaning the house.
At the family meeting on May 25, 2011, attended by friends of the family and several paternal relatives of the child, it was agreed that a secondary caregiver would always be present in the paternal grandmother's home. The paternal uncle agreed that he would not drive the child until he received his driver's license. After further discussion, CWS determined that the child was at risk because mother had her parental rights terminated to another child and had not made significant progress in improving her life since that time.
On May 26, 2011, CWS took the child into temporary custody. When the social worker arrived at the paternal grandmother's home to pick up the child, the paternal grandmother was home alone with the child, in violation of the agreement made the previous day that a secondary caregiver would be present in the home at all times. As the social worker was leaving with the child, she observed the paternal uncle driving a car with two children as passengers. The paternal uncle denied being the driver of the car. After he was told that the child was being removed, he punched the wall of the house.
After detention hearings on May 31 and June 6, 2011, the court ordered that the child be detained. He was placed in a foster home in Santa Barbara. Attorneys were appointed for mother and father. A jurisdiction/disposition hearing was set for July 11, 2011. Father was given notice of the hearing on June 16, 2011.
In the jurisdiction/disposition report, CWS recommended that mother and father not be offered family reunification services based on their extensive criminal histories and incarcerations. Father was represented by his appointed counsel at the hearing. On August 4, 2011, father was determined to be the child's presumed father. The jurisdiction/disposition hearing occurred on September 6, and 7, 2011. Father was represented by counsel at those hearings.
In an addendum report prepared for the hearing, CWS reported that it had received applications for placement from the paternal grandmother, the maternal grandmother, a paternal uncle, and a paternal great aunt. CWS recommended that it was not in the best interests of the child to be placed with relatives at the time. CWS denied the applications of the paternal grandmother and paternal uncle based on the prior concerns regarding the child's safety and the need for a second caregiver in the home.
CWS recommended that the maternal grandmother not be approved for placement for several reasons: (1) Physical limitations due to injuries, (2) lack of contact with child while he was living at the paternal grandmother's house, (3) her belief that her daughter had done nothing wrong and should not be incarcerated even though she knew that mother and father were gang members and there was a loaded gun in the home, (4) she had not been employed since 2003 and had no stable housing, (5) she did not maintain close contact with her other grandchildren, and (6) she was living with her daughter at a time when the daughter was abusing her nephew, the daughter was convicted of second degree murder, and her boyfriend was convicted of felony child abuse. Grandmother reported she did not suspect abuse was occurring in the home and does not believe that her daughter was responsible for the child's death despite the murder conviction.
The maternal great aunt was approved by the licensing department for placement. However, she was not a relative entitled to statutory preference, she resided in a very small one-bedroom trailer with her boyfriend, worked full time, and did not have a relationship with the child.
Father was not transported to the hearing. His attorney, however, represented his interests adequately. She called father's adult brother and sister-in-law as witnesses. They testified that they were currently residing in the home of the paternal grandmother to provide care for his 17-year-old brother because the paternal grandmother recently had her foot amputated and was in a rehabilitation facility. During cross-examination, the brother admitted that he had a substantiated referral of child abuse when his young child was found wandering in the street while he was at a party.
The maternal grandmother also testified. She said she was physically able to care for the child, even though her disability application stated she could only reach with her arms 25 percent of the time, had no ability to grasp, and movement in her right upper extremity was limited.
After hearing argument, the court found that the allegations of the petition were true, proper arrangements for care were not made by the parents, father has been incarcerated for the duration of the child's life, and he had no relationship with the child. The court denied reunification services to father and set a permanency planning hearing for December 19, 2011.
In his writ, father requests family reunification services, placement of the child with his relatives, and a personal appearance at the December 19 hearing. He also contends his due process rights were violated because he was not transported to court from prison in Oklahoma and was not given an opportunity to personally appear and present evidence.
DISCUSSION
The Petition Is Inadequate
A writ petition to review an order setting a section 366.26 hearing must include, among other things, a memorandum which summarizes the significant facts supporting the petition, relates the facts to the grounds alleged as error, and supports each point with argument and citation to authority and the record. (Cal. Rules of Court, rule 8.452(a), (b); Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) A petition which fails to comply with these requirements may be dismissed. (Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000, 1005; Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956.)
All further references to rules are to the California Rules of Court.
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The petition filed by father contains only selective facts supporting his position with no citations to the record, and his arguments are not supported by citations to legal authority. Accordingly, the petition is subject to dismissal for failure to comply with rule 8.452. We are aware, however, that reviewing courts should consider such petitions on their merits when reasonably possible in light of the importance of the rights at stake and the critical state of the proceedings. (§ 366.26, subd. (l)(4)(B); see Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 806-807.) Therefore, we will review the issues raised by father.
No Error in Bypassing Reunification Services
Section 361.5 promotes the provision of family reunification services for incarcerated parents. When a juvenile court's decision to bypass reunification is challenged, we apply the substantial evidence rule. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.) "We review the record in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard." (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.)
Section 361.5, subdivision (e)(1), mandates services to an incarcerated parent unless the court determines by clear and convincing evidence that providing services would be detrimental to the child. "In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, [and] the degree of detriment to the child if services are not offered . . . ." (Ibid.)
Substantial evidence supports the juvenile court's finding that providing services to father would be detrimental to the child. Father's lack of relationship with the child and criminal history weighed heavily against him. He was incarcerated when the child was born and was removed when he was a newborn infant. Therefore, there is no established bond between father and child. In addition, under section 361.5, subdivision (a)(1)(B), if a child is under three years old at the time of removal from a parent's custody, reunification services cannot exceed six months after the date of entry into foster care. (See In re James C. (2002) 104 Cal.App.4th 470, 485-486.) The child entered temporary foster care on March 23, 2011, and was placed in a confidential foster home no later than May 31, 2011. At the most, services for the child could not be extended past December 2011, at a time when father would still be in prison. There was no evidence showing reunification services would be in the child's best interest. In sum, there was sufficient evidence to support the court's denial of reunification services.
Penal Code Section 2625Penal Code section 2625 requires that a prisoner in custody in a state prison, California rehabilitation center, or a county jail be transported to child dependency proceedings. Here, due to overcrowding in the California prison system, father was incarcerated in Oklahoma. Assuming that section 2625 applies in these circumstances, the failure to transport him for the hearing is subject to the harmless error standard. (In re Jesusa V. (2004) 32 Cal.4th 588, 622-624.) Under the harmless error standard, reversal is warranted only if it is reasonably probable that the result would have been more favorable to defendant absent the error. (Id. at p. 625.) There is no evidence in the record indicating that father could have made the showing required to obtain reunification services. Without such showing, father's claim that he should have been given an opportunity to do so fails.
No Error in Denying Relative Placement
Under section 361.3, "preferential consideration shall be given" to relatives seeking placement of dependent children. (At subd. (a).) We review a juvenile court's decision on relative placement for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
In In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493, the court explained the policy underlying relative preference at the disposition stage: "The object of dispositional hearings is to find a temporary caretaker who will meet the child's physical and psychological needs while cooperating in reunification efforts. A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child." (Accord, In re Luke L. (1996) 44 Cal.App.4th 670, 678.)
Although it is important to accord relatives a "'fair chance'" to obtain custody of a dependent child, the fundamental duty of the juvenile court is to assure the best interest of the child. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 864.) The "linchpin" of the analysis thus is "whether placement with a relative is in the best interests of the minor." (Id. at pp. 862-863.)
In the report prepared for the hearing, CWS gave detailed reasons, as stated above, why it did not recommend relative placement with any of the relatives who had filed applications. (See In re James F. (2008) 42 Cal.4th 901, 915 [juvenile court may rely on social worker's report to support findings].) At the hearing, the court stated it had given much thought to the issue of relative placement and gave a detailed explanation of its reasons for denying placement with those relatives who had filed applications. The child could not be placed with the paternal grandmother because she was in a rehabilitation facility; the maternal grandmother also had physical limitations and had no permanent residence. The evidence showed that they did not fulfill their promise of having a secondary caregiver present and the court was concerned about the child's safety in an emergency. On this record, father cannot complain about the child's placement.
The orders are affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
T. R., Sr., in pro. per., for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy Counsel, for Real Party in Interest.