Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Los Angeles County Super. Ct. No. CK78545, Rudolph A. Diaz, Judge.
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro, Ellen Bacon Wiley and Maryam Assadi for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Real Party in Interest.
FLIER, J.
INTRODUCTION
Petitioner is the father of Andre, Andrew and A., dependents of the juvenile court. On March 14, 2011, the juvenile court terminated father’s reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26 as to A. only. Father has filed a petition for extraordinary writ pursuant to rule 8.452 of the California Rules of Court challenging the juvenile court’s order. As we shall explain, we disagree with father that the court erred in its order as to A., and thus deny the petition as it relates to her. We dismiss the petition as it relates to Andre and Andrew because the court did not set a section 366.26 hearing for them, a prerequisite to a rule 8.452 writ petition.
All further statutory references are to the Welfare and Institutions Code.
All further references to rules are the to the California Rules of Court.
PROCEDURAL BACKGROUND AND FACTS
Father and Los Angeles County Department of Children and Family Services (DCFS) set out the complete history of the lengthy juvenile court proceedings in this case, which does not require repetition except when necessary to briefly address the specific claims for extraordinary relief.
Father and the mother of Andre, Andrew and A. were separated in August 1999. Father had no contact with mother, although he would at times visit the children. Father has an extensive criminal history, including a conviction for assault in 1992, a conviction for possession of marijuana in 1992, a conviction for possession of marijuana for sale in 2008, and numerous arrests for drug-related offenses, battery, and possession of a firearm. Father was released on parole in June 2009 and resided with mother until August 2009. Father acknowledged he had been diagnosed with depression and was taking antidepressants.
Mother is not a party to this writ proceeding.
The dependency petition was filed in August 2009, and in October the juvenile court sustained a dependency petition alleging the children’s mother had been diagnosed with major recurrent and severe depression and psychosis, which interfered with her ability to provide a safe and stable environment for the children, placing them at risk of harm. Mother believed others were stalking her, tapping her telephone and conspiring to harm her and steal the children, resulting in her becoming aggressive and erratic in attempting to defend herself and the children. As to father, the court sustained allegations that he knew or should have known of mother’s erratic and aggressive behavior but failed to take steps to protect the children.
The juvenile court ordered father to attend a parenting program and undergo conjoint counseling with the children once their therapist recommended it. Father was also ordered to undergo drug testing and complete a drug program if he tested positive or missed a test. The court ordered DCFS to give father referrals in Riverside County, where he resided. Father was allowed monitored visits. The children, who had initially been placed together in foster care in Los Angeles when detained in August 2009, were now separated, with Andre and Andrew in one home and A. in another.
Father submitted to an on-demand drug test at the end of October 2009, and told the social worker that it would likely be positive as he had recently used marijuana. Nonetheless, he did not submit to regular drug testing until December 28, 2009, and did not enroll in a drug treatment program until June 3, 2010. While father completed a 10-session parenting program by the end of April 2010, he missed two of nine drug tests, and tested positive for marijuana on a third test in February 2010.
On February 19, 2010, A. reported to the social worker that she had not seen her father in a long time. Father did not appear for his first monitored visit until April 27, 2010, eight months after commencement of the case. During the visit, A. and father sat together on a sofa, but she sat as far away from him as she could. A. was receiving individual counseling, but Andre and Andrew had yet to begin counseling because they had been relocated to Riverside County. By April 2010, Andre and Andrew were relocated back to Los Angeles County.
At the six-month review hearing on June 4, 2010, the juvenile court found reasonable services were provided and that they continue. The court also ordered DCFS to find out from A.’s therapist whether conjoint counseling with father was appropriate, and to facilitate visitation for the parents.
By the time of the 12-month review hearing on October 25, 2010, father was in partial compliance with the case plan. He tested positive for marijuana in July 2010, and failed to appear for four drug tests. While A.’s therapist indicated she would benefit from conjoint counseling with the parents, the social worker had been unable to arrange conjoint counseling between the children and father because he lived in Riverside County. The social worker discussed with the children the possibility of placement with the father. But they wanted to remain in the Los Angeles area and be returned to their mother.
The juvenile court found the father’s progress was partial (while mother’s was minimal) and continued reunification services for both parents. The court ordered unmonitored day visits for Andre and Andrew with father and directed DCFS to “make [its] best efforts to set up conjoint counseling for father... that does not unduly inconvenience anybody.”
For the 18-month review hearing, the social worker reported that father had completed random drug testing and drug counseling. But conjoint counseling had not begun because Andre and Andrew were residing in different foster homes and continued to have changes in their placement – Andre had seven different homes while Andrew had six.
Father expressed an interest in having custody of the children. But each of them said they did not want to live with him. Andre and Andrew (15 and 13 years old, respectively) said they did not have much of a relationship with father and did not want to leave their relatives, school, or friends in Los Angeles. They wrote letters to the social worker stating they did not want to be placed with father. A. (10 years old) said she didn’t have a relationship with her father at all and wanted to remain with her foster mother in a plan of legal guardianship. The social worker indicated A. had a very good relationship with her foster mother, had bonded well with her, and was making positive progress developmentally, academically, and emotionally.
On February 14, 2011, the juvenile court terminated reunification services for mother, but continued the hearing with respect to father. At the continued hearing on March 21, 2011, DCFS recommended that father’s reunification services be terminated. While father had completed counseling and drug testing, the children did not want to be placed with father. Counsel for DCFS further argued the children’s relationship with their father was strained due to his lengthy criminal history and extended absences from them while incarcerated.
The attorneys for all three children joined with DCFS and also asked that father’s reunification services be terminated. Counsel for A. explained that A. did not have a relationship with father, did not want to be returned to him, was doing well in her current school, and was thriving with her foster mother, with whom she has a very close relationship. Therefore, removing A. from her foster mother and placing her with father would create a substantial risk of detriment to her emotional well-being.
Father’s counsel argued DCFS had failed to provide him with reasonable services because it did not comply with the juvenile court’s directive concerning conjoint counseling. Counsel further asserted DCFS had failed to show returning the children to his custody created any risk of detriment, and therefore the court should either put the children in his care or extend reunification services.
The juvenile court found the children were not ready to be returned to father and that doing so at that point in time would be detrimental to them. The court terminated father’s reunification services and ordered Andre and Andrew into a permanent plan living arrangement. The court set a permanency planning hearing for A. pursuant to section 366.26. The court indicated that its decision was without prejudice to father because “things will continue to develop.” The court ordered visitation to continue and directed DCFS to assist father to participate in conjoint counseling with the children. This timely writ petition followed.
DISCUSSION
Father contends the juvenile court erred in terminating reunification services because (1) there is no substantial evidence to support the finding of detriment to the children, (2) the court never made a finding DCFS provided reasonable services or recognized it had the authority to extend services beyond 18 months based upon exceptional circumstances, and (3) there is no substantial evidence DCFS provided reasonable services. We disagree.
1. Dismissal of Father’s Petition As to Andre and Andrew
Father’s arguments in his writ petition relate to all three of his children. As a result, DCFS has moved to dismiss the petition as it relates to Andre and Andrew because the juvenile court did not set a section 366.26 hearing for them. We believe the motion is well taken.
A petition for extraordinary writ such as this is authorized for the specific purpose of challenging findings and orders made at a hearing at which the court sets a hearing under section 366.26. (See Rule 8.450(b); § 366.26, subd. (l)(1).) Orders concerning reunification services that are not accompanied by an order setting a section 366.26 hearing are immediately appealable. (See Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395-1396 [rule 8.452 writ petition dismissed where court denied reunification services but did not set a § 366.26 hearing].) And the availability of an appeal constitutes an adequate remedy precluding writ relief. (Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 27.)
The juvenile court never set a section 366.26 hearing as to Andre and Andrew, but instead simply ordered them into a planned permanent living arrangement such as guardianship or foster care. Accordingly, because the court’s order regarding Andre and Andrew does not come within the purview of rule 8.452, father’s writ petition is dismissed as it relates to these children. The balance of our opinion relates exclusively to A.
2. The Juvenile Court’s Finding of Detriment
Typically, when a child is removed from a parent, the child and parent are entitled to 12 months of child welfare services in order to facilitate family reunification, which may be extended to a maximum of 18 months. (§ 361.5, subd. (a).)
Section 366.22 provides that within 18 months after a dependent child was originally removed from the physical custody of his parent, a permanency review hearing must occur to review the child’s status. At the hearing, “[t]he 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 juvenile court’s determination is reviewed for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) “Substantial evidence” means such evidence as a reasonable mind might accept as adequate to support a conclusion. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) In reviewing the evidence, we must construe it in the light most favorable to the juvenile court’s determination, resolve all conflicts in support of the court’s determination, and indulge all inferences to uphold the court’s order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021; In re Michael G. (1993) 19 Cal.App.4th 1674, 1676; In re Rocco M., supra, at p. 820.) The trial court’s exercise of discretion will not be disturbed unless it is exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The mere completion of the technical requirements of the reunification plan is not the sole consideration when deciding whether to return the child to the parent. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704; In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140.) “At the section 366.22 hearing, a trial judge can consider, among other things: whether changing custody will be detrimental because severing a positive loving relationship with the foster family will cause serious, long-term emotional harm...; whether the natural parent maintains relationships with persons whose presence will be detrimental to the [child]...; limited awareness by a parent of the emotional and physical needs of a child...; failure of a minor to have lived with the natural parent for long periods of time...; and the manner in which the parent has conducted himself or herself in relation to a minor in the past.” (Constance K., at pp. 704-705, citations omitted.) Also, the detriment justifying continued removal need not be the same as the initial detriment. (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) The focus of the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child at the time of the review hearing. (Ibid.)
We reject father’s assertion that there is no substantial evidence to support the juvenile court’s finding of detriment to A. Mother and father separated in 1999 when A. had not been born. Other than a two-to-three month period in 2009 when father apparently lived with the family after being released from prison, his contact with the children over the 10-year period prior to the commencement of this case is unknown. When the case began, father’s whereabouts were unknown. When he learned the children had been removed from mother, he did not come forward seeking custody. Rather, he told DCFS he was focusing on his new family and that having the children in his custody would cause him problems with the mother of his new child.
Father chose to have his visits monitored rather than submit to a drug test and enter a drug program. He did not begin drug testing until December 2009 and his first monitored visit occurred in April 2010, eight months after the case began. Father visited the children a maximum of 11 times, only three of which appear to have been unmonitored. We find only one documented occurrence that father had A. at his home in Riverside County to meet his new family.
In addition to the extremely limited relationship with father, the record before the juvenile court showed that A. was thriving with her foster mother, with whom she was bonded and had a very good relationship. A. was stable, making good progress emotionally, and doing well academically in her local school. Given the lack of a relationship with father and the strong relationship A. had with her foster mother, there can be little doubt that severing that relationship would have been detrimental to A.
Accordingly, while we agree there was no evidence placing A. with father would subject her to a risk of physical harm, we agree with DCFS that there was ample evidence to support the juvenile court’s decision that placing her with father at the time of the review hearing would create a substantial risk of detriment to her emotional well-being.
3. The Failure to Make a Reasonable Services Finding and to Extension of Services
Father argues the juvenile court erred because it never made a specific finding that DCFS had provided reasonable reunification services. This argument is without merit because such an express finding is not a prerequisite to setting a section 366.26 hearing at the time of the 18-month review hearing. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511.)
Father further contends the trial court erred because it did not recognize it had the discretion to extend reunification services beyond the 18-month statutory period. The cases father cites acknowledge that the juvenile court may order a limited extension under extraordinary circumstances. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1795-1796 (Elizabeth R.); In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 (Dino E.) [juvenile court found DCFS failed to develop a reunification plan for father but erroneously concluded the law did not permit extension of services beyond 18-month period]; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1016-1017 [no reasonable services were ever offered or provided to the parent during the reunification period].)
For example, the mother in Elizabeth R. was mentally disabled, under a conservatorship, and hospitalized for treatment of her mental illness during much of her dependency case. Despite this fact, her record of visitation was “exemplary, ” she had substantially complied with her case plan even though her enormous efforts were rebuffed by her social workers, and she had consistently maintained contact with her social workers. The appellate court concluded the juvenile court erred by failing to recognize that under such “unusual circumstances” it had discretion to extend reunification services beyond the statutory 18-month deadline. (Elizabeth R., supra, 35 Cal.App.4th at pp. 1777, 1795-1796.)
Father has not demonstrated these cases are applicable here. Father’s only complaint is that DCFS was never ever able to implement the court’s directive that there be conjoint counseling with the children, an issue we discuss below. We conclude there were no exceptional circumstances in this case requiring extension of services beyond the 19 months already provided.
4. Whether Reasonable Reunification Services Were Provided
We review the juvenile court’s reasonable services finding for substantial evidence (In re Alvin R. (2003) 108 Cal.App.4th 962, 971), bearing in mind that in “almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect” (In re Misako R. (1991) 2 Cal.App.4th 538, 547). “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.” (Ibid.; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164 [the reasonableness of DCFS’s efforts are judged according to the circumstances of each case].)
The case plan ordered by the juvenile court was for father to attend a parenting program, undergo drug testing, complete a drug program, visitation, and undergo conjoint counseling with the children once their therapist recommended it. A.’s therapist made such a recommendation on June 28, 2010. On October 25, 2010, the court apparently recognized it was difficult to arrange conjoint counseling based upon father’s remote location in Riverside County and directed DCFS to make its “best efforts” to set up such counseling in a location that did not unduly inconvenience anyone. Nonetheless, while DCFS provided all of the other services, conjoint counseling never materialized. While it is likely that father’s location in Riverside County continued to pose a problem in arranging such counseling, there is no clear indication in the record as to the reason the counseling with A. never occurred.
Despite the fact there was no conjoint counseling by the time of the 18-month review hearing, father has not persuaded us that he is entitled to writ relief. First, father never raised the issue of the adequacy of reunification services with the juvenile court until the 18-month review hearing. By that time, it had been nine months since A.’s therapist had approved conjoint counseling for her and the juvenile court had found at the 12-month review hearing that DCFS had indeed provided reasonable services. It does not appear father objected to such a finding. If father felt DCFS was not making sufficient strides toward arranging such counseling, he was required to immediately raise such concerns so the juvenile court could address the situation and create another plan, if necessary. Father’s objection at the last review hearing came too late. (See Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093 [a parent may not “wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing”]; In re Christina L. (1992) 3 Cal.App.4th 404, 415-416 [“The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them”];Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175, 1182 [it is unfair to the trial court and the adverse party to give appellate consideration to an alleged procedural defect which could have been presented to, and may well have been cured by, the trial court].)
Second, we are not convinced father was prejudiced by the lack of conjoint counseling. (See In re Celine R. (2003) 31 Cal.4th 45, 60; Cal. Const., art. VI, § 13.) The permanent plan for A. is legal guardianship. The juvenile court also ordered DCFS to continue it efforts to arrange conjoint counseling. Therefore, the court’s final orders maintain the status quo and do not foreclose the possibility of father regaining custody of his children in the future after conjoint counseling and more unmonitored visitation (including at father’s home). (See § 388.).
Disposition
The petition is denied. This opinion is final forthwith as to this court pursuant to rule 8.490(b)(3) of the California Rules of Court.
WE CONCUR: RUBIN, Acting P.J., GRIMES, J.