Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK77632, Marilyn Mordetzky, Juvenile Court Referee.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
WOODS, Acting P. J.
Appellant John T. appeals from the juvenile dependency court’s “exit” visitation orders made regarding his children, Alanna T., and Gavin T., pursuant to Welfare and Institutions Code section 362.4. The court ordered monitored visitation for John T. according to a schedule “determined by the parents” and that the minors’ mother Jennifer F. would “approve the monitor.” Before this court appellant asserts: (1) the Department of Children and Family Services (the “Department”) failed to properly notify him of the juvenile dependency court’s intent to enter a visitation order; and (2) the visitation order was improper because it effectively delegated all visitation decisions to Jennifer F. As we shall explain, John T. was provided with appropriate notice of the court’s intended visitation order. In addition, it appears that John T. did not object to the exit order. Nonetheless, because the factual issues are undisputed and this matter concerns only an issue of law, we exercise our discretion to reach the merits and thusly conclude that given the circumstances of the case and parental relationship, the court erred in delegating certain visitation determinations to Jennifer F. Accordingly, we affirm in part and reverse and remand in part.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Jennifer F. is not a party to this appeal.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Detention Proceedings.
In March 2008, Alanna T. (born in 2006), and Gavin T. (born in 2008) came to the attention of the Department when a child protective service agency in Texas notified the Department that Gavin T. had tested positive for cocaine at his birth. At the time it was believed that the family was planning to move to California.
On April 30, 2008, the Department and the family met. Jennifer F. admitted that both she and appellant had abused drugs. The family agreed to a voluntary family maintenance (VFM) case plan, which required the parents to complete parenting education classes, participate in outpatient drug treatment programs, and to drug test on random demand. The plan was not successful: in April of 2009 both parents tested positive for drug use, and John T. became incarcerated during the voluntary family maintenance case. In July 2009, at a Team Decision Making meeting (“TDM”), Jennifer F. and the Department agreed to an “Action Plan, ” pursuant to which the children were to stay in Jennifer F.’s home and a non-detained section 300 petition would be filed with the juvenile dependency court.
John T. was still incarcerated and did not participate in the TDM.
On August 13, 2009, the Department filed a non-detained, section 300 petition. The petition alleged that Jennifer F. had a history of cocaine abuse and was a current abuser of marijuana and that her previous efforts at a drug rehabilitation and participation in programs had failed to resolve her problems. With respect to John T., the petition further alleged that: (1) he had a history of substance abuse, that remedial services failed to resolve the problem, and that he had failed to participate in programs; (2) he had felony convictions for possession of a controlled substance for which he was presently incarcerated, and had a conviction for driving under the influence; and (3) he failed to provide the necessities of life for his children.
At the end of August 2009, the juvenile court found that the Department had made a prima facie case for detaining the children and that they were described by section 300, subdivisions (b) and (g). The court ordered the children to remain released to Jennifer F. The juvenile court ordered family maintenance services for Jennifer F. and monitored visits for appellant once he was released.
Jurisdiction/Disposition Proceedings.
The October 2009 disposition report indicated that appellant remained incarcerated with an expected release date in June 2010. The Department had not yet interviewed appellant, but the disposition report revealed that appellant had an extensive criminal history. Jennifer F. admitted that she used drugs while she was pregnant. She explained that she and appellant had moved to Texas during her pregnancy and it was very stressful. She reported that she almost died while delivering her son. Jennifer F. told the Department that appellant had a history of substance abuse and criminal activity. She stated she had noticed appellant’s weight loss and mood changes and that he “wasn’t there for the kids.” Jennifer F. indicated that she did not plan to reunite with appellant and emphasized she was not trying to portray appellant as a bad person but that she believed that he needed help. She also disclosed that she was in a new relationship with another man and would like to move to a new area with her boyfriend once this case closed. Jennifer F. denied any family history of abuse or neglect. She stated that prior to appellant’s incarceration he visited the children sporadically, but that he still called her on occasion to ask about the children. According to Jennifer F., the children did not remember appellant.
The Department reported appellant had a number of aliases and used different social security numbers. It further disclosed that he had criminal convictions for possession of controlled substances, convictions for being under the influence of a controlled substance, convictions for theft, and several convictions for giving false identification to a peace officer.
The Department also interviewed the maternal grandmother, who stated she had never seen appellant under the influence of drugs. The maternal grandmother stated that the family had stayed with her a short time after the family returned to California from Texas. The maternal grandmother stated she thought appellant should have supervised visits when he got out of prison because she did not trust him with the children. She described an occasion when appellant got mad at mother and took the baby away with him and he did not have a bottle or any supplies for the baby when he left.
The Department recommended the children remain in the home of Jennifer F. and that she continue to receive family maintenance services. In addition, the Department recommended that if appellant contacted the Department, he should receive family reunification services and monitored visitation.
In mid-September 2009, an “Order for Prisoner’s Appearance at Hearing Affecting Prisoner’s Parental Rights” was filed with the superior court, regarding appellant’s appearance at the October 15, 2009, hearing. Appellant waived his appearance and requested an attorney be appointed to represent him at the hearing. At the subsequent hearing, the juvenile court appointed counsel for appellant and the Department was instructed to send appellant a copy of the disposition report. The Department informed the court that it appeared appellant was still incarcerated at his previous place of incarceration (Sierra Conservation Center). The hearing was continued to November 12, 2009.
On October 21, 2009, the Department confirmed that appellant was incarcerated at “Baseline Conservation Camp.” The Department sent appellant a notice of the November 12, 2009, hearing by certified mail, return receipt requested, along with copies of the Department’s reports. The Department had not yet interviewed him. The November 12, 2009, hearing was continued to December 12, 2009, for contact to be made with appellant and for appellant to be interviewed.
On November 18, 2009, the Department informed the court it had received a letter, dated October 21, 2009, from “Center Point, Inc.” verifying appellant had voluntarily participated in an in-custody substance abuse program at Sierra Conservation Camp. The program coordinator stated appellant had attended the program for one month in the fall of 2009. However, appellant had been unable to complete it because the program was shut down due to a loss of funding.
In its December 2009 Supplemental Report, the Department reported a telephone interview was conducted with appellant. Appellant informed the investigating social worker that he did not want to “lose time” off his sentence by coming to court, so he preferred to be represented by counsel.
Appellant admitted he had a criminal record and a history of substance abuse, but claimed it was not as extensive as the Department had reported. Appellant disclosed that Jennifer F. had sporadically used drugs during her pregnancy and that they were not getting along at the time. Appellant corroborated that mother almost died during Gavin’s birth. Appellant stated that he and mother tried to help each other at the time though they did not seek treatment for their drug use. Appellant admitted that he was not providing financially for his children because he was incarcerated; he claimed that before his incarceration he did provide for the children.
Appellant stated that he would be going back to his former job when he was released. He said that he had never been married and never had any domestic violence in any of his relationships. Appellant thought a substance abuse program would help him and told the social worker he had been participating in a substance abuse program until it was discontinued. Appellant indicated that he would like the children to remain with their mother, because she was a good mother. Appellant stated his expected release date was in February 2010, but indicated he could be out earlier or later than that date. Appellant also expressed he wanted to visit his children. The Department recommended that family reunification services be ordered for appellant.
On December 18, 2009, the juvenile court sustained the section 300 petition. The juvenile court found clear and convincing evidence that substantial danger existed to the children and there were no reasonable means to protect them without removing them from appellant’s custody. The court ordered the children to remain in the home of Jennifer F. The juvenile court ordered family reunification services for appellant to include attending a program of parent education, attending random and on-demand drug testing, and cooperating with his probation terms once released from prison. The court ordered Jennifer F. to participate in parent education and on-demand drug testing. The juvenile court granted appellant monitored visits with the children upon his release from prison. His visits were to be monitored by a Department-approved monitor. The juvenile court set a progress hearing to address termination of jurisdiction for March 19, 2010.
The amended petition read:
Termination of Juvenile Dependency Proceedings and Exit Orders.
In the report prepared for the March 19, 2010, hearing, the Department reported that Jennifer F. completed an outpatient drug program in December 2009, and a parent education program in February 2010. She had also enrolled in approved drug-testing, and tested on a random basis, twice a month, with no positive tests since the petition had been filed. It was further reported that Jennifer met the needs of her children. The Department reported that in January 2010, the social worker had notified appellant of the disposition orders, but had no contact from appellant regarding his progress with the disposition orders. Appellant was still incarcerated and it appeared that his new projected release date was reported to be October 2010. In the report, the Department recommended that dependency jurisdiction be terminated with a family law exit order for monitored visitation for appellant, and taking into account that appellant may be released after jurisdiction was terminated, that mother not monitor appellant’s visits, but have discretion to approve the visitation monitor.
On March 19, 2010, hearing the juvenile court indicated that it planned to terminate jurisdiction and enter a family law order granting sole legal and physical custody to Jennifer F, with visitation for appellant. Appellant was represented by counsel at the hearing and did not specifically object to the proposed order. However, it was unclear whether appellant had been informed of the proposed order. Consequently, the court ordered the Department to provide appellant notice of the terms of the proposed family law order. The court also ordered appellant's attorney to contact appellant. The matter was continued to April 12, 2010-a date suggested by appellant’s counsel to allow for contact with appellant-for the preparation and finalization of the family law order.
In an April 12, 2010, “Last Minute Information for the Court Report, ” the Department informed the court that Jennifer F. had received a letter from appellant indicating that he would soon be transferred to a different prison. Jennifer F. did not know the date of the transfer or the name of the prison but was concerned if notice of the hearing was sent to appellant’s old prison address he may not receive it.
On March 25, 2010, the Department contacted appellant’s place of incarceration and was told that, according to their computer records, appellant was still incarcerated there, and there was no information regarding a transfer. The prison advised the social worker to call back in a week for an update. On April 1, 2010, the Department contacted the prison again and was informed that appellant had been transferred. Contact with the Department of Corrections and Rehabilitation revealed that appellant had been transferred to Corcoran State Prison. Thereafter the Department sent notice of the proceedings to appellant’s former place of incarceration and to Corcoran State Prison. Both notices stated, “The social worker recommends, a change in orders, services, placement, custody, or status: Terminate court jurisdiction with proposed Family Law Order granting sole legal and physical custody of the children Alanna T[.] and Gavin T[.] to mother, [].” Further, both notices advised appellant of his right to be present at the April 12, 2010, hearing, to have an attorney represent him at the hearing, and that the court would proceed with the hearing whether or not appellant was present.
On April 12, 2010, the juvenile court terminated jurisdiction over the case. Though the record before this court does not contain a reporter’s transcript from the hearing, the minute order from the proceedings reflects that Jennifer F. and appellant’s respective counsel attended the hearing. The family law order granted legal and physical custody of the children to Jennifer F. The order also granted John T. monitored visitation according to a schedule “determined by the parents” and stated that Jennifer F. would “approve the monitor.” The order terminated juvenile dependency jurisdiction and indicated that requests for modification of the orders must be brought in the family court case. The family law order disclosed that supervised visitation for appellant was warranted because: appellant had not completed court-ordered programs and had not made substantial progress in the court-ordered programs of drug-abuse treatment with random testing, and parenting classes.
Appellant filed his notice of appeal.
Appellant’s trial counsel also filed a declaration in which he indicated that in addition to the notice of appeal he had also received a letter from appellant in which appellant stated, among other things, that he did not want Jennifer F. to choose the monitor for his visits because “that would not be a good situation for me, ” that his “reunification was still in progress” and he believed he would be released in June of 2010.
DISCUSSION
Before this court, appellant complains that the juvenile court’s family law exit orders concerning visitation must be reversed because: (1) he did not receive proper notice of the proposed visitation orders; and (2) that the court improperly delegated all visitation decisions to Jennifer F., which effectively gave her the authority to decide whether appellant received any visitation at all. The Department responds that the notice was properly given to appellant and that he failed to timely object to the proposed orders and therefore forfeits any complaint as to them. Finally, the Department maintains that the appellant has not shown that the court improperly delegated its duties and responsibilities concerning visitation to Jennifer F. We address these contentions in turn.
We note that before this court appellant does not contest the court’s custody order which gave Jennifer F. sole legal and physical custody of the children or the aspect of the order which requested that his visits be monitored.
1. Notice of the Proposed Visitation Orders.
Appellant claims that he was not properly served with notice of the court’s intent to issue a family law visitation order. The Department sent notice of the April 12, 2010, hearing to both the Sierra Conservation Camp and at Corcoran State Prison. The notices stated, “[t]he social worker recommends, a change in orders, services, placement, custody, or status: Terminate court jurisdiction with proposed Family Law Order granting sole legal and physical custody of the children Alanna T[.] and Gavin T[.] to mother, [ ].” The notices further advised appellant of his right to be present at the hearing, and to have counsel represent him at the hearing. Appellant complains, however, that the notice sent to him was improper because it failed to expressly address any visitation conditions the court planned to impose at the hearing.
While it is true that the notice sent to appellant did not specify that the court would issue visitation orders at the April 12 hearing, appellant has not convinced us that he did not have actual notice of the court’s intent to do so. The Department’s report prepared for the original hearing scheduled for March 19, 2010, was served on appellant and his counsel. The report included Department’s position regarding termination of jurisdiction and visitation, recommending that appellant receive monitored visits and that Jennifer F. have discretion to approve the monitor. Indeed, this proposal was addressed at the March 19 hearing during which the court and appellant’s counsel discussed the fact that counsel would contact appellant to discuss the terms of the proposed family law order. In addition, the hearing was continued to a date-April 12-chosen by appellant’s counsel for that purpose. Also significant is the fact that before this court appellant does not claim he was unaware of the proposed visitation order. In view of the foregoing, we conclude that appellant has not demonstrated reversible error based on the notice of the court’s family law order concerning visitation.
2. Forfeiture
The proceedings on April 12 were not transcribed. There is no evidence appellant challenged the exit orders concerning visitation at the April 12 hearing. Appellant does not claim in this court that he gave his trial attorney timely instructions to contest the custody and visitation orders, nor is there any evidence in the record to suggest that he attempted to contact the Department, or the juvenile court to state his disagreement with the family law order. Therefore the Department argues that appellant forfeited his right to challenge the visitation order on appeal. Although we agree that appellant forfeited his right to raise the issue by failing to raise it in the juvenile court, we will exercise our discretion to consider the issue. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) However, “application of the forfeiture rule is not automatic.” (Ibid.) An issue may be raised on appeal if “‘it raises only a question of law and can be decided based on undisputed facts.’ [Citations.]” (In re V.F. (2007) 157 Cal.App.4th 962, 968.) Where, as here, “the facts are not disputed, the effect or legal significance of those facts is a question of law, ” which “is not automatically subject to the doctrine of forfeiture.” (Ibid.) We therefore exercise our discretion to address appellant’s contention. (See, e.g., In re M.R. (2005)132 Cal.App.4th 269, 272 [exercising its discretion to address the visitation order despite the mother’s failure to object to the order in the juvenile court].) “We review applicable legal principles de novo, but apply a deferential standard of review to the court’s exercise of discretion and resolution of disputed facts.” (In re V.F., supra, 157 Cal.App.4th at p. 968.)
The minute order from the April 12, 2010, hearing indicates that presence of the court reporter had been waived.
3. Visitation Order
Before this court, appellant complains that the visitation order improperly delegated visitation decisions to Jennifer F., including the authority to approve the visitation monitor. In appellant’s view the order gave Jennifer F. the authority to decide whether appellant received any visitation at all.
When a juvenile dependency court terminates its jurisdiction over a dependent child, it is empowered to make “exit orders” regarding custody and visitation. (§ 364, subd. (c), § 362.4; In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) In considering appropriate exit orders, the juvenile dependency court must make an informed decision for the best interests of the minor. (In re John W. (1996) 41 Cal.App.4th 961, 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 709.) The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of the circumstances in determining the child’s best interests. (In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.) After termination of jurisdiction, the exit orders are transferred to family court and remain in effect until modified or terminated by a subsequent court order. (§ 362.4; In re Roger S., supra, 4 Cal.App.4th at p. 30.)
The power to determine the right and extent to visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to non-judicial officials or private parties. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 (Donnovan J.); see In re Chantal S. (1996) 13 Cal.4th 196, 213-214 [rule of non-delegation applies to exit orders issued when dependency jurisdiction is terminated].) Nonetheless, a visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).) Appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, [rejecting order which delegated authority to legal guardian discretion to decide frequency and duration of parent’s visits with children]; In re Julie M. (1999) 69 Cal.App.4th 41, 51 [delegation to child]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 [same]; In re S.H. (2003) 111 Cal.App.4th 310, 317-320 (S.H.) [same]; Donnovan J., supra, 58 Cal.App.4th at pp. 1476-1478 [delegation to therapist].)
Here, the visitation order provided that supervised visitation would occur according to a schedule “determined by the parents” and that Jennifer F. would “approve the monitor.” The assignment of authority to Jennifer F. to approve the choice of monitor is not particularly troublesome because it relates to the management of the details of the visitation. Furthermore, given that the children have resided with Jennifer F. since the inception of the dependency proceedings, that appellant has been incarcerated during this period, and that he has had little contact with the children, it is not unreasonable to afford Jennifer F. power to approve the choice of visitation monitor. The record reflects that Jennifer F. had complied with the case plan and had shown good judgment in providing care for the children since the petition had been filed. The supervision of the Department and the juvenile court would be an intrusion into their lives, and thus it was not imprudent that Jennifer F. have discretion to approve the monitor of appellant’s supervised visitation. Appellant’s non-specific claim that allowing Jennifer F. to choose the monitor “would be bad” for him is simply insufficient to demonstrate the court abused its discretion with regard to this visitation detail. Under these circumstances, it was reasonable for the court to allow mother to choose a monitor, other than herself, to monitor appellant’s contact with the children once he was released from prison.
This notwithstanding, far more troubling to this court is the matter of frequency and duration of visitation, which the court left to the parents’ agreement. Arguably as the custodial parent of the children, Jennifer F. could conceivably agree to only one visit a year or less without violating the letter of the court’s order. This would be more than simply a delegation of the authority to set the “time, place and manner” of the visitation – it effectively delegates to Jennifer F. the power to determine whether visitation will occur at all. (See Rebecca S., supra, 181 Cal.App.4th at p. 1314 [holding that “[t]he time, place and manner of visitation may be left to the legal guardian, but leaving the frequency and duration of visits within the legal guardian’s discretion allows the guardian to decide whether visitation will actually occur”].) Appellant’s ability to seek a modification or enforcement of the order in the family court does not solve the problem of this unauthorized delegation. (In re T.H. (Nov. 16, 2010, A128428) __ Cal.App.4th __, __ [2010 WL 4621503, p. 2] [holding that father’s ability to seek redress in family court did not resolve the improper delegation of authority to mother to determine frequency and duration of visitation].)
The difficulties created by this arrangement are not merely technical. Although we can imagine a family situation in which the parents can mutually agree to all visitation decisions, there is simply a lack of evidence in the record before this court to conclude that Jennifer F. and appellant enjoy that kind of relationship. On the contrary, appellant and Jennifer F. both told the investigating social worker that during the time period they had lived together they had not been getting along and their relationship was very stressful. The maternal grandmother reported an incident in which appellant became angry with Jennifer F. and took one of the children and left. In addition, Jennifer F. stated that she wanted to move to Reno, Nevada with her boyfriend after the court terminated its jurisdiction-a circumstance that would add additional complication to visitation for appellant. Furthermore, there is no evidence in the record concerning the state of the parental relationship at the time the court issued the visitation order. Thus, even if the court could delegate responsibility to the parents’ mutual agreement to determine the frequency and duration of the visits, there is no assurance that these parents can reach agreement regarding visitation.
Here, the juvenile court determined that appellant was entitled to have supervised visitation. It abused its discretion by framing its order in a way that gave mother an effective veto power over that right. (See In re R.R. (2010) 187 Cal.App.4th 1264, 1284 [order setting visitation reviewed for abuse of discretion].) To hold otherwise would be to transfer this important decision to the possible whims of the custodial parent. Because the trial court already has determined that visitation with appellant is warranted and appropriate, scheduling the frequency and duration of these visits ensures that the court’s goal of maintaining this parental relationship will occur. This portion of the order therefore constituted an abuse of discretion.
In T.H., supra, ___ Cal.App.4th at page ___, Division Five of the First District Court of Appeal reversed a similar order that delegated the visitation decision to the mother. There, the juvenile court judgment included an exit order that allowed supervised visitation by father to be determined by agreement of the parents. (Id. at p. ___.) The appellate panel concluded that this was an improper delegation of the authority over visits by the mother. The appellate court concluded that although the juvenile court had recognized the father’s right to visitation, the juvenile court had nonetheless abused its discretion by effectively giving the mother “veto power” over the visits when the court failed to establish the amount of visitation to which the father was entitled. (Id. at p. ___ 3.) Similarly, while the exit orders in this case recognized appellant’s right to supervised visitation, that right was illusory when left solely to the “agreement” of a parent; on the record before this court, it is not clear that she would agree to reasonable visitation for appellant.
Finally, in reaching this conclusion we reject the Department’s argument that this case is comparable to Alexis W. (1999) 71 Cal.App.4th 28 (“Alexis W.”). In Alexis W. the juvenile dependency court terminated its jurisdiction and ordered the parents to “have joint legal custody, with physical custody to father and reasonable visitation for mother.” (Id. at pp. 35-36.) The court left it up to the parties to work out a mutually agreeable visitation schedule. (Id. at p. 36.) The court of appeal affirmed the lower court’s decision, but in so doing did not expressly consider the propriety of the visitation order. Indeed, it appears the mother in Alexis W. did not specifically challenge the visitation order on the basis that it improperly delegated responsibility for visitation decisions to the father. Consequently, Alexis W. does not lend support to the Department’s argument. In addition, the juvenile court in Alexis W. ordered “reasonable visitation” for the mother. The use of the term “reasonable” in this context, while not dictating the precise frequency and duration of the visits, does provide some constraint on the scope of discretion afforded the custodial parent. The “reasonable” visitation connotes that visits occur with some degree of regularity, and for some reasonable duration. In contrast here, Jennifer F.’s discretion is unfettered-giving rise to the possibility that she could limit appellant to only a few brief visits with his children.
In view of the foregoing, the case must be remanded so that the juvenile dependency court can exercise its discretion in formulating an order that establishes, at the very least, the amount of visitation to which appellant is entitled. Nonetheless, because the family’s circumstances may well have changed since the status review hearing at which the dependency was terminated, the court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order. (See Roger S., supra, 4 Cal.App.4th at p. 30; In re Michael W. (1997) 54 Cal.App.4th 190, 194-196 [at status review hearing where court terminates dependency jurisdiction, court should hear evidence relevant to exit orders].)
DISPOSITION
The portion of the April 12, 2010, order providing that appellant would receive monitored visitation according to a schedule “determined by the parents” is reversed and the matter is remanded to the juvenile dependency court for further proceedings consistent with this opinion. The order terminating dependency jurisdiction under section 362.4 is affirmed in all other respects.
We concur: ZELON, J., JACKSON, J.
“[Count] b-1: [¶] [Mother] has a history of cocaine use and is a recent user of marijuana which periodically renders mother incapable of providing regular care for the children. Further past remedial services have failed to resolve the problem and the mother failed to participate in the programs. Further, the children’s mother’s use of drugs places the children at risk of harm.
“[Count] b-2: [¶] [Appellant] has a history of illicit substance abuse, which renders [appellant] incapable of providing regular care for the children. Further, [appellant] has felony convictions for possession of controlled substance for which he is presently incarcerated in state prison. Further, [appellant] abuses alcohol and has a conviction for a DUI in 2006. Further, [appellant’s] abuse of drugs and alcohol endangers the children’s physical and emotional health and safety, creates a detrimental home environment and places the children at risk of harm and damage.
“[Count] g-1: [S]ince 2008, [appellant] was unable to provide the necessities of life for the child, including food, clothing, shelter, and medical care due to his incarceration in state prison. [Appellant’s] inability to provide for the child endangers, placing the child at risk of physical and emotional harm and damage.”