Opinion
A152407
01-26-2018
C.M., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. Nos. JD16-3117 & JD16-3325)
This writ arises from dependency proceedings involving siblings Z.M., a girl born in October 2015, and G.V., a girl born in September 2016. Z.M. and G.V. were removed from parental custody at different times, in part because of domestic violence between their presumed father, C.M. (Father), and their mother, T.P. (Mother), which had resulted in the removal of the parents' older children from their custody. Following overlapping reunification periods, the court terminated reunification services to both parents and set a permanency planning hearing under Welfare and Institutions Code section 366.26.
All undesignated statutory references are to the Welfare and Institutions Code.
Father filed a petition for extraordinary writ relief, contending there is no substantial evidence supporting the court's order. We invited the parties to submit supplemental briefs addressing whether the court prejudicially erred by applying an incorrect legal standard when terminating reunification services as to G.V. We also stayed the section 366.26 hearing. We now deny the petition and lift the stay of the section 366.26 hearing.
Mother did not file a writ petition challenging the court's order.
I. BACKGROUND
A. The Initiation of Dependency Proceedings as to Z.M.
In April 2016, the San Francisco Human Services Agency (the Agency) filed a dependency petition (§ 300) on behalf of five-month-old Z.M. The petition and an accompanying detention report alleged in part that the parents' relationship involves extreme domestic violence, which led to the removal of their older children from their custody. A criminal restraining order was entered in 2014 protecting Mother and three of her older children from Father until 2023. The Agency alleged Z.M. was in danger because Mother, who had moved to Chicago in 2015, had now moved back to San Francisco to be with Father. Father's criminal history included 2013 convictions for child cruelty and inflicting corporal injury on a spouse or cohabitant, and a 2014 kidnapping charge involving one of Mother's children. The court ordered that Z.M. be detained and placed in foster care. Also in April 2016, the court declared Father to be the presumed father of Z.M.
At a jurisdiction/disposition hearing in July 2016, Mother and Father submitted to the allegations of the petition. The court declared Z.M. a dependent, ordered that she remain in foster care, and ordered that Mother and Father receive reunification services. The court ordered that, to be considered for reunification, Father would, among other requirements, undergo individual therapy addressing "domestic violence and its negative impact on his family," complete a parenting education program, obtain and maintain suitable housing, and visit Z.M.
B. The Initiation of Dependency Proceedings as to G.V.
On November 1, 2016, the Agency filed a dependency petition on behalf of one-month-old G.V. The petition and an accompanying detention report alleged in part that the parents' relationship involves domestic violence and that the parents had violated the active criminal restraining order. On October 26, 2016, police officers conducted a probation search of Father's hotel room. Mother was in the room in possession of methamphetamines. G.V. was also present. The court ordered G.V. detained and placed in foster care.
At a jurisdiction and disposition hearing in January 2017, Mother and Father submitted to the petition's amended allegations. The court declared Father to be the presumed father of G.V. The court declared G.V. a dependent, ordered that she remain in foster care, and ordered that reunification services be provided to Mother and Father. The court ordered that, to be considered for reunification, Father would engage in therapy to address domestic violence and its impact on his family, participate in a parenting education program, maintain suitable housing, visit G.V., refrain from substance abuse, and participate in drug testing.
C. The March 2017 Review Hearing for Z.M.
In reports submitted in January and February 2017 in Z.M.'s case, the Agency reported that Father was not in therapy. He had violated the restraining order. Father's visitation with Z.M. had been inconsistent. Both Father and Mother had moved to Stockton. At a hearing in March 2017, the court ordered the continuation of reunification services to both parents. The court ordered that, as to Z.M., the next hearing would be a six-month review hearing for Mother (who had not received services during the prior review period) and a 12-month permanency hearing for Father.
D. Father's Requests to Transfer the Dependency Proceedings
In June 2017, Father filed petitions under section 388 to transfer both dependency proceedings to San Joaquin County so he could more easily access services. Father did not ask that the children's placements be changed, and he stated he was willing to travel to San Francisco for visits. Father stated in a declaration in support of the petition that he was living in a studio apartment in Stockton. The court set the section 388 petitions for a hearing.
E. Subsequent Status Review Reports
In July 2017, the Agency filed status review reports recommending that the court terminate reunification services to Mother, but order another six months of services for Father. On September 1, 2017, however, the Agency filed an addendum report recommending termination of services as to both parents.
The Agency reported that Father initially requested services in San Francisco. The Agency referred him to a clinic in San Francisco for individual therapy. He later asked that his services be transferred to Stockton. On March 31, 2017, the Agency gave Father the telephone number to contact ACCESS in Stockton for mental health services. He reported that he had called the number and had completed his intake to be assigned a therapist, but was waiting for the assignment. As to drug testing, the social worker emailed Accurate, the testing organization, to ask if Father could test in Stockton. Accurate stated Father could test in Stockton after doing an initial test in San Francisco. Father tested on June 13, 2017, and had done no testing since then.
In the addendum report recommending termination of services as to both parents, the social worker wrote that neither parent had engaged in the services designed to address the issues of domestic violence and substance abuse. The social worker was unable to ascertain whether Mother continued to be the victim of Father's domestic violence. The social worker stated that Father had visited "fairly consistently," had completed a parenting class, and had been appropriate with his children at the visits, but also explained that Father had yet to engage in treatment to address his violence toward his partner and his minor children.
F. The September 2017 Review Hearing
At a combined contested review hearing on September 12, 2017, the social worker and Father testified. The court also admitted into evidence the July 2017 status review reports and the September 1, 2017 addendum report. After hearing argument and after finding Father's testimony was not credible, the court denied Father's section 388 petitions, terminated reunification services and set both matters for a section 366.26 permanency planning hearing. Father filed a writ petition challenging the court's order.
II. DISCUSSION
A. Legal Standards
As to Father, the September 12, 2017 hearing was the six-month review hearing for G.V. and the 12-month permanency hearing for Z.M. Different legal standards apply at these hearings: If a child is not returned to parental custody at the six-month hearing and was under three years of age on the date of the initial removal, the court may set a section 366.26 hearing if it "finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e)(3).) If, however, the court finds there is a substantial probability the child "may be returned" to his or her parent within six months or that reasonable services have not been provided, the court is required to continue the case to the 12-month permanency hearing. (Ibid., italics added.)
If a child is not returned to parental custody at the 12-month hearing, the court generally must either (1) continue the case for six more months, but only if the court "finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian," (2) order a section 366.26 hearing, upon a showing reasonable services were provided, or (3) order the child remain in long-term foster care, but only after making specified factual findings by clear and convincing evidence. (§ 366.21, subd. (g), italics added; see M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 179, fn. 6.) If the court sets a section 366.26 hearing, it must terminate reunification services. (§ 366.21, subd. (h).)
Here, the court found, as to both Z.M. and G.V., that a return to parental custody would create a substantial risk of detriment (see § 366.21, subds. (e)(1), (f)(1)), and Father does not challenge this finding. The court also found, as to both girls, that (1) the Agency provided reasonable services, and (2) there was not a "substantial probability of return" to parental custody within the next six months. In part II.B below, we address Father's contention that these findings are not supported by substantial evidence (the sole argument he raised in his petition). As a threshold matter, however, we consider whether, as to G.V., the juvenile court erred by applying the legal standards applicable to a 12-month hearing rather than those applicable to a six-month hearing, and if so, whether such error was prejudicial. After our initial review of the record, we solicited, and the parties filed, supplemental briefs addressing these questions. We now conclude no prejudicial error occurred.
The court erred by setting a section 366.26 hearing for G.V. without making an express finding that Father "failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e)(3); see In re J.S. (2011) 196 Cal.App.4th 1069, 1071, 1077-1078 [failure to make a required finding under § 361.2 was error].) But we conclude the error was harmless because "we can see no reasonable probability that had the trial court complied with the statutory requirement, it would have answered differently the question whether to" set a section 366.26 hearing for G.V. (In re J.S., supra, 196 Cal.App.4th at p. 1079.)
The court expressly considered whether Father had complied with his court-ordered treatment plan, and stated in strong terms its conclusion that he had not. Focusing on the critical requirement in the reunification plan that Father participate in counseling to address his domestic violence and its impact on his family, the court stated "he has not—I'm trying to be nice here, so I'll just say he hasn't satisfied that requirement at all." At a different point in the hearing, the court noted, "[Father] has done nothing, nothing about addressing domestic violence and how it negatively impacts his children or any spouse or partner. He really has done nothing about that."
The record supports the court's finding that Father did not participate in this crucial component of his reunification plan: The counseling requirement was imposed in July 2016 in Z.M.'s case and in January 2017 in G.V.'s case, but at the time of the September 2017 review hearing, Father still was not in therapy. And to the extent Father proffered testimony supporting a theory that a lack of assistance from the Agency or other obstacles prevented him from participating in services, the court expressly found his testimony was not credible. The court stated: "This is the presumed father sitting here, [Father], who basically I didn't find credible on the witness stand. So to the extent that what he said on the witness stand is to be believed for him to get a shot at more reasonable services, I don't believe him." There is no reason to believe the court would have reached a different conclusion if it had performed its statutory obligation to make an express finding by clear and convincing evidence that Father failed to participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e)(3); see In re J.S., supra, 196 Cal.App.4th at p. 1079.)
Father contends the court failed to exercise its discretion as to G.V. As noted, at the six-month review hearing, if the child is not returned to parental custody and if the court finds the parent has failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may, but is not required to, set a section 366.26 hearing. (§ 366.21, subd. (e)(3); M.V. v. Superior Court, supra, 167 Cal.App.4th at pp. 175-176.) Even assuming the court believed it did not have discretion to continue services as to G.V., any such error was harmless here because "it is not reasonably probable that [Father] would have obtained a more favorable result had the court exercised its discretion." (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016.) We note that the court, in orally explaining its ruling, emphasized Z.M.'s and G.V.'s need for permanency. In light of Father's failure, over an extended period of time, to participate in counseling to address his domestic violence, as well as the evidence (discussed below) supporting the court's express findings that the Agency provided reasonable reunification services and that there was no substantial probability of return to parental custody by the time of the next review hearing, it is not reasonably probable the court would have exercised discretion to extend services.
B. Sufficiency of the Evidence
Father contends no substantial evidence supports the court's findings that he received reasonable services and that there was not a substantial probability Z.M. and G.V. would be returned to his custody by the time of the next review hearing. We conclude both findings are supported by substantial evidence.
1. Reasonable Services
"When a finding that reunification services were adequate is challenged on appeal, we review it for substantial evidence." (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1158.) " 'In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.' " (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.) "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." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Father does not contend that the reunification plan requirements recommended by the Agency and approved by the court were unreasonable, nor does he dispute in his writ petition that the Agency provided referrals (initially in San Francisco, the location he requested) for the services he needed. He was able to participate in visitation and completed a parenting class. He argues, however, that after he moved to Stockton, the Agency made insufficient efforts to assist him in obtaining certain services (i.e., therapy and drug testing) there. Substantial evidence supports the court's finding the Agency's efforts were reasonable under the circumstances.
The Agency reported, and the social worker testified, that after Father asked to receive services in Stockton instead of San Francisco, the Agency gave him (in March 2017) the San Joaquin County Access telephone number so he could request a therapist there. The social worker also communicated (in June 2017) with the drug testing agency, which stated Father could test in Stockton after doing an initial test in San Francisco.
Father argues that, after making these efforts to assist him in transferring his services, the Agency should have followed up to ensure the transfers occurred. While the Agency perhaps could have done more, the juvenile court reasonably concluded the Agency's efforts were reasonable under the circumstances. Those circumstances included Father's failure to participate in critical services (including therapy to address domestic violence, the problem that led to the initiation of dependency proceedings) for an extended period of time, as well as his failure to keep the social worker informed of his whereabouts and his needs.
As to Father's failure to avail himself of services, the juvenile court acknowledged Father may have encountered a "bureaucratic runaround in trying to access the services," but the court also noted "these services should have been addressed long ago . . . ." The record supports this conclusion. As noted, the court adopted a reunification plan in Z.M.'s case in July 2016 that required Father to participate in therapy to address domestic violence, and the social worker submitted a referral for therapy at that time. Father states he moved to Stockton in November 2016, although it appears he did not inform the social worker of that fact until January 2017. Father still was not participating in therapy, and the Agency made another referral (apparently to a San Francisco clinic) on February 1, 2017. Father at some point asked to transfer his services to Stockton, and as noted, the Agency then provided him the contact information to obtain a therapist there. Similarly, as to drug testing, the court ordered Father to participate in testing in January 2017, at disposition in G.V.'s case, but Father apparently did not begin testing until June 2017. The record supports a conclusion the Agency made reasonable efforts to make therapy and drug testing services available to Father, and he delayed for many months any efforts to participate in those services. And as noted, the court did not find Father's own account of his efforts to be credible.
Father also did not keep the Agency apprised of his whereabouts. At the September 12, 2017 hearing, the social worker testified Father had told her he was no longer living in the Stockton apartment that he had given as his address. In its September 2017 addendum report, the Agency stated it did not have a current address for either parent, making it impossible to verify whether domestic violence between them continued. The court reasonably could conclude the parents' moves and lack of prompt communication with the social worker made it difficult for the Agency to facilitate their participation in services. The court stated: "They haven't really—they're both like—like fish you're holding in wet palms that you're trying to grasp and give the service to, but they keep slipping out of your hands." The record supports the court's conclusion the Agency's efforts were reasonable in light of these changing and difficult circumstances.
2. Substantial Probability of Return
We review for substantial evidence the juvenile court's determination whether there is a substantial probability of return to parental custody by the next review hearing. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-690.) Father contends his record of successful visitation and completion of a parenting class supported a finding there was a substantial probability of return. But other evidence in the record (which we have discussed above) supports the court's contrary conclusion. Most significantly, as the court noted, Father had not made progress in addressing the problems that led to the dependency proceeding, including his domestic violence. He also did not have stable housing. For both Z.M. and G.V. (and taking into account the differing standards governing the six-month and 12-month reviews (see § 366.21, subds. (e)(3), (g)(1))), the court reasonably could conclude there was no substantial probability of return by the next review hearing.
III. DISPOSITION
The petition is denied on the merits. (See § 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h).) Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The stay previously imposed is hereby lifted.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.