Opinion
F080290
05-27-2020
In re N.L., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DERRICK B., Defendant and Appellant.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CEJ300269-1)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. William Terrence, Judge. Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Snauffer, J. and De Santos, J.
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INTRODUCTION
Appellant Derrick B. (father) is the biological father of the minor, N.L. Father appeals from the Welfare and Institutions Code section 366.21 six-month review order, contending the juvenile court's finding that he received reasonable reunification services is not supported by substantial evidence. We affirm.
References to code sections are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
A section 300 petition was filed on behalf of the minor on September 25, 2018. Mother had been booked into the Fresno County jail and father's whereabouts were listed as unknown. Father was listed as the alleged father of the minor. The minor was taken into custody. The detention report showed father was in Pelican Bay State Prison and mother was in jail. On October 15, 2018, father's counsel filed a request that he be allowed to appear telephonically for court hearings if unable to appear in person.
The jurisdiction and disposition report dated October 31, 2018, recommended that father not be provided reunification services pursuant to section 361.5, subdivision (a).
After undergoing DNA testing, father submitted a statement regarding parentage stating the DNA testing showed him to be the minor's biological father.
In an addendum report filed on February 19, 2019, the Fresno County Department of Social Services (department) recommended that Jeffrey R. be elevated to the status of presumed father of the minor. Also, the department noted that father had been incarcerated for most of the minor's life and did not qualify as a presumed father. However, the department recommended father be provided services. Father had a supervised visit with the minor on February 11, 2019, and told the social worker he wanted to be more involved in the minor's life.
The juvenile court ordered reunification services be provided father. Services were to include parenting classes; a mental health assessment and any recommended treatment; a substance abuse assessment and any recommended treatment; domestic violence inventory and recommended treatment; and random drug testing.
In the six-month status review report dated June 26, 2019, the department recommended reunification services to father be terminated. Father had been "inconsistent and non-compliant" in participating in services. Father had participated in the various assessments and had registered for random drug testing. However, father failed to follow through with recommended treatment and did not attend parenting classes.
Father had completed an initial substance abuse assessment on March 29, 2019, and no follow-up was recommended. When father was a no show for random drug testing on several occasions, and tested positive for alcohol and cocaine on April 18, and positive for alcohol on April 29 and May 17, 2019 he was referred to services. Father refused to test after that. Father informed the social worker on May 29, 2019, that he was "undecided about complying with services," and it "was too much." He was employed full time, and had to maintain full time employment, as a condition of his probation.
Father did not participate in a domestic violence inventory and stated he was not interested in services. Father completed a mental health assessment and weekly therapy was recommended. Father refused to participate in any mental health treatment, claiming he had no mental health issues.
Father was unable to participate in some of the scheduled visitation due to the time set for the visitation. Father felt the services "are a lot to handle" and would "try his best" to complete them. He wanted the minor placed in his care. Father had participated in five supervised visits with the minor, after which he notified the social worker the visitation schedule conflicted with his work schedule. He was going to notify the social worker of days and times he could engage in visitation, but never followed through with providing the social worker his work schedule. The social worker attempted to reach father multiple times by telephone but was unsuccessful.
The department opined that the minor could not be placed in father's care. Father had not completed substance abuse, mental health, or domestic violence treatment and had not attended parenting classes. He had refused to continue with random drug testing. Father had not demonstrated a commitment to continuing and completing his services. The department opined that father was minimally compliant with court ordered reunification services. Father had communicated to the social worker that "he is not sure he is ready to complete court ordered services."
At the hearing on October 23, 2019, the social worker testified that father was told to inform agencies of his work schedule so services could be scheduled at a time that accommodated his work schedule. Father had been referred for services but still needed to complete all his services. The social worker was aware father had to maintain employment as a condition of probation, but also knew father was working with family in a family owned business.
Father testified that he had a problem completing required services because there was a "conflict" with his complying with court ordered services and probation. Father testified his work was in custom home building and installing fire sprinklers. He was released from probation and contacted the social worker about two months prior to the hearing and asked to be re-referred for services.
Father had been engaging in voluntary domestic violence classes through probation. He got the time off from his employer to attend the classes, which he had been attending for four weeks. Part of the time he was employed, he was just on "standby" while the company bid for jobs. Father stated that taking more time off from work would place his job at risk and thereby violate his probation.
At the continued hearing on October 30, 2019, the juvenile court disagreed with the department's recommendation and ordered that services continue for father. The juvenile court noted, however, that it would not excuse the positive substance abuse tests and that father needed to address this problem and complete his services. A 12-month review hearing was set.
Father filed a notice of appeal on November 13, 2019.
DISCUSSION
Father contends there is insufficient evidence to support the juvenile court's finding that he received reasonable services. The department contends the reasonable services finding is not appealable and alternatively, the finding is supported by substantial evidence.
Appealability
Father's notice of appeal states he is appealing from findings and orders of "10/23/19 & 10/30/19 Finding that reasonable services have been provided and ordering continued family reunification services." The department contends the finding that reasonable services have been provided is not an appealable order.
In Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, the appellate court held section 395 does not permit an appeal from a reasonable services finding "unless the court takes adverse action based on that finding, because, in the absence of such action, there is no appealable order resulting from that finding." (Id. at p. 1154.) Subsequently, our Supreme Court clarified that section 395 permits review of a juvenile court's finding by an appeal from the related order. (In re S.B. (2009) 46 Cal.4th 529, 534.) In the case of In re T.G. (2010) 188 Cal.App.4th 687, 696, the appellate court held that a reasonable services finding contained within a six-month review order that was "adverse to [father's] parental interest in reunification" was appealable.
Here, father's notice of appeal focuses on an appeal from the finding that reasonable services were offered. However, we apply the principle that notices of appeal are to be liberally construed and construe the notice as appealing from the order following the six-month review hearing under section 366.21. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.) Therefore, we address the merits of father's appeal.
Substantial Evidence Supports Reasonable Services Finding
"Family reunification services play a critical role in dependency proceedings. [Citations.] At the dispositional hearing, the court is required to order the agency to provide child welfare services to the child and his or her parents. (§ 361.5, subd. (a).) Services 'may include provision of a full array of social and health services to help the child and family and to prevent reabuse of children.' (§ 300.2.) Reunification services should be tailored to the particular needs of the family." (In re M.F. (2019) 32 Cal.App.5th 1, 13.)
"At each review hearing, if the child is not returned to his or her parent, the juvenile court is required to determine whether 'reasonable services that were designed to aid the parent ... in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent ...' (§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a).) The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding that reasonable services were offered or provided to the parent, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult ....' " (In re M.F., supra, 32 Cal.App.5th at pp. 13-14.)
On a challenge to the sufficiency of the evidence to support the juvenile court's finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) If the finding or order is supported by substantial evidence, it will be upheld. (Ibid.)
In determining whether there is substantial evidence to support the juvenile court's reasonable services finding, we review the record in the light most favorable to the findings and draw all reasonable inferences from the evidence to support the findings and orders. We do not reweigh the evidence or exercise independent judgment, but merely determine whether there are sufficient facts to support the findings of the trial court. (In re M.F., supra, 32 Cal.App.5th at p. 14.)
Here, father claimed his employment conflicted with his ability to participate in services. However, he participated in voluntary classes through probation, and his employer gave him time off to attend those classes. Father was told he had to notify the agencies providing services of his work schedule in order for his work schedule to be considered in scheduling reunification services. It is not clear that father did so, because the record reflects he did not provide his work schedule to the department so visitation could be adjusted. There were times when father was on "standby" at his job, and it was unclear why he could not participate in services during those times.
Father participated in random drug testing, until he had multiple positive tests and refused to further test and refused to engage in services for substance abuse. Father refused to participate in mental health treatment, claiming he did not need it. He told the social worker he was undecided about whether to complete the reunification services.
Father contends reasonable services were not provided because the services did not accommodate his work schedule. The record, however, reflects that father did not always cooperate in scheduling services. For example, he failed to contact the department with his work schedule so visitation times could accommodate that schedule; the social worker made multiple unsuccessful attempts to try to contact father by telephone to arrange a convenient visitation schedule. He was allowed time off to participate in voluntary classes through probation and it is not clear why father could not instead use that time off to participate in mandatory reunification services. Furthermore, there is no explanation for why he could not participate in services while on standby and not actively at work.
Father also claims the department failed to consider his learning disability in providing services. First, there is no evidence in the record that father had a learning disability. Second, there is no evidence of how any purported learning disability affected his ability to participate in services, for example visitation, substance abuse treatment, or any other services being offered.
Father was not in a position to have the minor placed with him, thus the only option before the juvenile court was to terminate services as the department recommended or order further services. Father had not completed any of his services and told the social worker he was "undecided" about completing services, and the reunification services were "too much," clearly indicating ambivalence about fulfilling his obligation to participate in and complete reunification services. He also had tested positive for substances and had not addressed his substance abuse. Despite the lack of progress by father and the department's recommendation, the juvenile court ordered further reunification services be provided.
The department did not place the burden on father to locate services; they only required him to communicate his work schedule to service providers and the department, which father apparently failed to do. The department made reasonable efforts to provide the services father needed to reunify. (In re M.F., supra, 32 Cal.App.5th at pp. 13-14.) As the juvenile court noted, father failed to do all he could do to reunify with his now seven-year-old child, with whom he had never established a parental relationship because of his incarceration. Father's lack of progress toward reunification was not from scheduling conflicts that could not be addressed; rather, the lack of progress was largely father's lack of effort to reunify and ambivalence in participating in services.
DISPOSITION
The order is affirmed.