Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) David Fields, Judge. Los Angeles County Super. Ct. No. CK81000
Law Offices of Timothy Martella, Melissa Chaitin and Hans Chen for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Real Party in Interest.
CHAVEZ J.
Albert O. (father) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court terminating reunification services with his son, A., and setting a hearing pursuant to Welfare and Institutions Code section 366.26. Father contends the juvenile court did not consider certain factors relating to father’s incarceration in determining whether father had failed to participate in court-ordered services, and the court erred when it determined that the Los Angeles County Department of Children and Family Services (DCFS) had provided reasonable services. We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In April 2010, A.’s 47-day-old half sister was taken to the emergency room
after falling off a bed. X-rays revealed a healing rib fracture. The child’s mother was unable to satisfactorily explain the circumstances of the fall or how the child came to have a fractured rib. DCFS detained mother’s three children: the injured infant daughter, two-year-old A., and mother’s four-year-old son, D.
At the time of the detention, A. was two years, 11 and one-half months old.
DCFS filed a section 300 petition on April 12, 2010. On April 13, 2010, the juvenile court found DCFS had made a prima facie case for detaining all three children. On April 20, 2010, father filed a “Statement Regarding Parentage, ” stating he believed he was A.’s father and requesting that the court enter a judgment of parentage.
Initially, father’s whereabouts were unknown. Mother had informed DCFS that father was incarcerated in Tehachapi State Prison, and DCFS alleged in the petition that father was unable to care for A. because he was incarcerated. DCFS subsequently learned that father had been arrested for first degree murder on November 22, 2009, and was in the Los Angeles County Jail, housed in the Pitchess Detention Center (Pitchess) awaiting trial. In a May 12, 2010 report prepared for the disposition hearing on the section 300 petition, DCFS social worker Jonathan Willey stated that he was ordering a copy of father’s court docket to ascertain the status of father’s case. Willey reported that DCFS was considering amending the allegations of the petition to include the murder charge, and would recommend no family reunification services for father if he was going to be incarcerated for “longer.” Willey recommended that the court order family reunification services for father “pending further information on his criminal court status.”
On May 23, 2010, DCFS filed a supplemental petition adding the infant’s father to the allegations regarding her injuries, and amending the allegation regarding father to incorporate the murder charge.
On June 1, 2010, the court ordered that all three children be placed with the paternal grandmother. The court directed the paternal grandmother “to make best efforts to take the minor [A.] to see his father at his place of incarceration.” The court later rescinded its placement order because the paternal uncle (father’s brother) was still being investigated as a possible suspect in the murder case. The children were thereafter placed with the maternal grandmother.
The amended petition (amended again by interlineations) was sustained on July 29, 2010. Father was ordered to attend a DCFS-approved parent education program and individual counseling to address case issues. Father was also given monitored visitation, which DCFS had the discretion to liberalize.
The matter was set for a February 3, 2011, hearing to terminate reunification services for mother and the infant child’s father, both of whom had failed to comply with the court-ordered reunification plan. In a report prepared for that hearing, DCFS stated that father “has had some visits with his child [A.] when the [maternal grandmother] or the [paternal grandmother] has the time to take the child for a visit.” All three children remained in the care of the maternal grandmother. DCFS recommended that the court schedule a hearing pursuant to section 366.26 to determine a permanent plan for the children. The maternal grandmother had expressed her preference for legal guardianship. DCFS recommended that father be provided reunification services “upon his release.”
At the contested section 366.21, subdivision (e) hearing on March 21, 2011, the court indicated it would terminate reunification services for all parents. Counsel for the children “reluctantly” argued against terminating services because counsel believed DCFS had not made reasonable efforts to provide services to father. Father’s counsel pointed out that when the court adjudicated the amended petition on July 29, 2010, it had directed DCFS to inquire whether the parenting and individual counseling programs in which the court had ordered father to participate were available at his place of incarceration. Counsel argued that because DCFS had not made any such effort, father should receive an additional six months of reunification services. The court agreed there was nothing in the DCFS status review report concerning the availability of such services at Pitchess. Counsel for DCFS suggested that the absence of such services at Pitchess was such common knowledge that counsel “had not realized that it was unknown.” The court adjourned the hearing briefly so that counsel for DCFS could obtain that information.
When the hearing reconvened, the court admitted into evidence a “Last Minute” report from DCFS. The Los Angeles County Sheriff reported that Pitchess “does not offer any services to those incarcerated as it is only a temporary Detention Center. Services are not offered until [the inmates] are transferred to a long term incarcerated facility.”
Father’s counsel argued that DCFS should at least have sent father a “booklet” (presumably referring to a self-study program). The children’s counsel, after reviewing the report concerning the lack of services at Pitchess, joined in the request of DCFS that father’s reunification services be terminated.
The court found that the appropriate reunification period was six months because A. was under the age of three at the time of the initial detention. The court states: “Obviously, nothing can be done when he’s at a temporary detention center. That’s where he is. He’s been charged with [an] extremely serious crime and we’re at a six month date for a child under three when this case began; therefore, I’m going to terminate family reunification services.” After father’s counsel asserted an objection, the court reiterated its view that “[father] cannot reunify with this child at this time. He’s in custody. He’s not able to do services due to the circumstances under which he’s operating right now in custody.... Therefore, I’m going to terminate reunification services.”
DISCUSSION
1. Father’s incarceration.
“Section 366.21, subdivision (e) governs the procedure for children... who were under three years of age when they were initially removed and who are not being returned to a parent or guardian at the time of the six-month review hearing. If the court finds by clear and convincing evidence ‘that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to section 366.26 within 120 days.’” (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1015.) However, the court may not set a section 366.26 hearing if it finds (1) there is a substantial probability the child may be returned to the parent within the ensuing six months, or (2) reasonable services have not been provided to the parent. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 176.)
Father first contends the court erred when it found he had failed to participate regularly and make substantive progress in court-mandated services, because the court did not take into account the particular barriers to those services.
Section 366.215 provides in pertinent part: “With respect to a hearing held pursuant to subdivision (e) of Section 366.21, if the child in question was under three years of age on the date of the initial removal, ... the court, in determining whether to schedule a hearing pursuant to Section 366.26, shall take into account any particular barriers to a parent’s ability to maintain contact with his or her child due to the parent’s incarceration or institutionalization.” Pertinent provisions of section 366.21, subdivision (e), provide that in determining whether a parent has availed himself or herself of court-ordered services, the court shall take into account “the particular barriers to an incarcerated or institutionalized parent or legal guardian’s access to those court-mandated services and ability to maintain contact with his or her child.”
In fact, the availability (or unavailability) of such services at Pitchess was crucial to the court’s decision whether or not to terminate father’s reunification services. When DCFS failed to include this information in its report, as the court had ordered, the court recessed the hearing so that counsel could ascertain what services, if any, were available to father at Pitchess. The court terminated father’s reunification services only because there were no such services available at Pitchess, father was charged with a serious crime, and the case had already reached the six-month date.
2. Reasonable reunification services.
We review the juvenile court’s finding that DCFS provided adequate reunification services under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency court’s findings. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Where there is any substantial evidence to support the court’s order, contradicted or not, we must affirm the juvenile court’s decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) Father contends the court’s finding that DCFS had provided reasonable reunification services is not supported by substantial evidence.
Father is correct that the reports prepared by DCFS are devoid of any evidence that DCFS inquired about the services available at Pitchess. In fact, the court chastised DCFS for this omission and for its apparent reliance on the “common knowledge” that no such services were available. However, there wasevidence before the court, in the form of the “Last Minute” report, that Pitchess did not offer such services because it was only a temporary detention facility. We agree with the juvenile court that DCFS should have contacted Pitchess sooner and should not have relied on the speculative notion it was “common knowledge” no services were offered there. However, DCFS could not refer father for services that were unavailable at the facility where father was incarcerated. In other words, evidence that these services were not available at Pitchess supports the court’s finding that the actions of DCFS were reasonable under the circumstances. Further, given father’s current situation, it is unlikely that he would be able to comply with the reunification plan even if the reunification period were extended for six months.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is made final forthwith as to this court.
We concur: BOREN, P. J., DOI TODD, J.