Opinion
A124788.
6-24-2009
In re B.Y., a Person Coming Under the Juvenile Court Law. ANTOINE Y., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
Not to be Published in Official Reports
I. INTRODUCTION
Petitioner Antoine Y. (father), the presumed father of B.Y. (the minor), seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) of a juvenile court order terminating family reunification services and setting the matter for a Welfare and Institutions Code section 366.26 hearing on August 19, 2009, to consider termination of parental rights. Father contends he was not provided with adequate reunification services, tailored to the unique circumstances of the case, and that real party in interest San Francisco County Department of Human Services (the Department) did not make reasonable efforts to assist him in complying with the reunification plan, as required by section 361.5. We disagree, and deny the requested relief.
All rule references are to the California Rules of Court. All statutory references are to the Welfare and Institutions Code. The minor has an unusual first name, so in order to protect her privacy, we refer to her by initials only.
II. FACTS AND PROCEDURAL BACKGROUND
The minor was born prematurely in San Francisco in July 2008. She had a low birth weight and tested positive for cocaine. Father and the minors mother (mother) had been in a relationship that involved domestic violence, and were no longer seeing one another. By the time the minor was born, mother had 22 previous referrals to the child welfare system, and none of her seven older children remained in her care.
On July 10, 2008, the Department filed a petition to detain the minor based on section 300, subdivisions (b) and (j). The court detained the minor in foster care. At a contested detention hearing on July 24, 2008, the juvenile court found that father is the minors presumed father, and detained the minor.
At all times during the pendency of the juvenile court proceedings, father lived in Antioch, in Contra Costa County. After the minor was detained, father met with a social worker from the Department who referred him to counseling and drug testing providers, and arranged visitation.
In its disposition report filed August 15, 2008, the Department recommended that reunification services be offered to father for six months, but not to mother. The Department recommended that father be required to live apart from mother and to protect the minor from mother except as to contacts authorized by the Department or by treatment providers. The social worker reported that father had initially refused to submit to drug testing, but had later agreed to undergo substance abuse screening and drug testing. Father had been given a referral to a parenting class, but had not yet enrolled in it. The social worker opined that father had not yet demonstrated that he was capable of caring for a child with the minors special needs, and was concerned that father would not take the necessary steps to restrict contact between the minor and mother.
Mother is not a party to this appeal.
Besides being premature, the minor had fetal alcohol syndrome, and some heart defects that required follow-up medical supervision.
At the jurisdictional hearing on August 21, 2008, the juvenile court found four of the allegations in the petition to be true, declined to order reunification services for the minors mother, and ordered father to comply with the Departments recommended reunification plan. By then, the minor was living with fathers mother, i.e., minors paternal grandmother (grandmother) in Pittsburg, in Contra Costa County, and the court retained this placement. The court ordered that father was to have three hours per week of supervised visitation with the minor at a facility in San Francisco, with the possibility of expanding that to six hours per week.
The Department filed its report for the six-month review hearing on January 30, 2009. The social worker reported that father had made only limited progress in complying with the reunification plan; after a satisfactory beginning, his progress "plateaued." He completed a substance abuse assessment and a parenting class, but did not maintain contact with the case manager at the program where he had received these services. He denied all substance abuse, but never submitted to drug testing. He was unemployed, and did not appear to have a stable source of income. According to his family members, he was still living with mother, or at least involved with her. Father denied this, and said he and mother had argued in late December 2008, and had not seen or spoken to one another since then.
The six-month review report indicated that father interacted appropriately with the minor during his weekly three-hour visits in San Francisco. He visited her "semi-regularly" at first, but starting sometime in November 2008, he missed so many appointments that the visitation site stopped scheduling visits for him. After that, father visited minor about once a week at grandmothers house, where he did not usually feed or change the minor. He had never participated in the minors medical care or regional center planning. He declined an offer for increased visitation time with the minor.
The social worker reported that fathers explanation for missing his visitation appointments was that he had travel issues, even though he had been given a transit pass and money for BART fare. The social worker tried to arrange for supervised visitation in Contra Costa County, closer to fathers home, but the approval was delayed until January 22, 2009, because fathers sister, who was to supervise the visits, had a record of child welfare referrals. Grandmother, with whom minor was still living, did not get along with father, but she nonetheless initiated visits between father and minor.
Meanwhile, the minor was doing very well in grandmothers care. The six-month review report recommended that services to father should be terminated, with a view to adoption by grandmother as the minors permanent plan.
After several continuances, the six-month review hearing was held on April 22, 2009. By then, father had been offered reunification services for about eight months. The social worker was the only witness at the hearing, although father was present, and was represented by counsel. The court received the six-month review report into evidence without objection.
The social worker clarified that at the jurisdictional hearing, father was only ordered to undergo a substance abuse assessment; he was not required to enter a substance abuse treatment program unless that was recommended after the assessment. After the assessment was done, the case manager at the program that did the assessment did not recommend treatment; instead, she recommended that father undergo drug testing and counseling, and that treatment be required only if it appeared appropriate based on the testing and counseling.
The social worker admitted that he did not amend the case plan to reflect this order accurately. However, the recommendation for termination of fathers parental rights in the six-month review report was not based on fathers failure to participate in substance abuse treatment.
Father was initially referred for drug testing and counseling with a provider in San Francisco. The social worker explained that father was provided with funds to travel to San Francisco for this purpose, in the form of a transit pass and two checks. Although father initially told the social worker that he had trouble cashing the checks and had returned one of them, he later admitted that he had cashed them both. The social worker did not arrange for counseling with a provider other than the one in San Francisco. Father indicated that he "was okay with" that provider, and the social worker did not recall why counseling at another location was never arranged.
The social worker did arrange for father to have drug tests at a facility in Antioch, where he lived, after father did not report for drug testing in San Francisco. Nonetheless, father never underwent any drug testing, despite repeated prompting from the social worker. As a result, at the time of the six-month review hearing, the social worker was "not convinced that [father] doesnt in fact have a substance abuse issue."
With regard to visitation, the social worker recognized that there were travel problems with having the visitations take place in San Francisco. He also acknowledged that other than the issue of missing visits, the San Francisco facility that supervised fathers visits made no negative reports about his interactions with the minor. On the other hand, father declined the facilitys offer to increase his visits from three hours to six hours.
Father did visit with the minor four times after the San Francisco location became unavailable in November 2008, but he did not initiate any of these visits. They were arranged voluntarily by grandmother, at her discretion. The Department did not want grandmother to supervise fathers visitation on a continuing basis, however, because she and father did not get along very well. Thus, this was only a temporary arrangement, until the Department could arrange for fathers sister to be the visitation supervisor. Fathers sister had to be cleared before she could supervise visits, however. The social worker requested this approval even before fathers visits in San Francisco were discontinued, but the process took longer than expected, and approval was not obtained until January 2009.
Once fathers sister was cleared, there was difficulty in arranging further visits, because she did not want to give father her telephone number, and father did not have a telephone number, so the social worker had trouble reaching him. The social worker asked father to call him collect at certain times, but father did not always call or show up when he was expected. As a result, the social worker was only able to set up one visit, which was scheduled for the weekend prior to the six-month review hearing; however, father did not appear. During this time, father did not request that visitation occur at an alternative locations, and did not explain to the social worker that he was unable to communicate with his sister if he was going to be late for a visit.
The social worker acknowledged that father completed a parenting class on October 15, 2008, but reported that father did not keep in touch with his case manager at the service provider after that, and still had not undertaken any counseling. Even though the social worker told father about at least two of minors monthly medical appointments, father did not attend any of them. One of the appointments conflicted with a criminal court date, but father did not explain why he missed the others. Fathers failure to participate in the minors medical care was disturbing, because the minor had special needs and would need specialized care in the future.
The social worker was also concerned that despite the mothers substance abuse problems, and the history of domestic violence between father and mother, father was apparently still in a relationship with mother, which the social worker believed was not healthy either for the minor or for her parents. Even though father was supposed to protect the minor from mother, father had brought mother with him to a juvenile court hearing in early April, and to a visit with the minor shortly before the hearing on April 22, 2009.
In sum, the social workers opinion was that while father "started out very strong," his participation in the reunification process, and his visits with the minor, dropped off after his visits at the San Francisco facility were terminated in November 2008. Fathers lack of diligence about visitation and his rejection of the offer to increase it, coupled with his refusal to submit to drug testing, caused the social worker to "question his commitment to this child," particularly in light of her need for "specialized care" due to her medical issues. The social worker did not feel that father had made adequate progress during the time he had been receiving reunification services. For these reasons, the social worker still recommended that fathers reunification services be terminated, and that the case be set for a section 366.26 hearing, with the goal of having the minor adopted by grandmother, albeit with father retaining a right to supervised visitation. The minors counsel and the Departments counsel concurred with this recommendation.
Father did not testify at the hearing. His counsel argued that reasonable reunification services had not been offered to him because the visitation and counseling that he was offered were located in San Francisco rather than closer to fathers home in Antioch. The juvenile court rejected this argument, noting that other than the "sheer distance" between San Francisco and Antioch, father had not given any reason (such as physical disability or work obligations) that he was unable to avail himself of visitation and services in San Francisco. The court found by clear and convincing evidence that reasonable efforts at reunification had been provided or offered to father. It adopted the Departments recommendation, terminated reunification services (though retaining fathers right to supervised visitation), and set a section 366.26 hearing for August 19, 2009.
Father filed a timely notice of intent to file a writ petition on April 23, 2009, as well as a timely petition. On May 20, 2009, this court issued an order to show cause. The Departments opposition was duly filed, and neither party requested oral argument.
III. DISCUSSION
Father contends that the trial court abused its discretion in setting a section 366.26 hearing, because father had not been offered adequate reunification services. The trial court found that adequate reunification services had been offered to father. " `[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered. " (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) "[I]n reviewing the reasonableness of the reunification services provided by the Department, we must . . . recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. . . ." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969; accord, Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.)
Father specifically contends that visitation should have been arranged closer to Antioch, starting at an earlier date. The record does not reflect, however, that father objected to the order for visitation in San Francisco at the time it was issued, or that he later moved to modify it to require that he be offered visitation at a different location. Indeed, even when the social worker and grandmother made efforts to enable father to visit the minor at locations closer to fathers residence, father failed to take full advantage of those opportunities. Thus, we are not convinced that father would have taken advantage of earlier visitation opportunities at a more convenient location, even if they had been offered to him.
Father also never sought to have the dependency proceeding transferred to Contra Costa County, after the minor was placed with grandmother, in order to facilitate the provision of reunification services closer to his and the minors homes. Such a transfer would have been proper if it was in the minors best interests. (See rule 5.610(c)(1)(B) [juvenile court may transfer case to juvenile court of childs residence if such residence was changed to another county after petition was filed]; In re J.C. (2002) 104 Cal.App.4th 984, 992-993; In re Christopher T. (1998) 60 Cal.App.4th 1282, 1288-1289, 1292). Under the circumstances of this case, an argument could have been made that a transfer would have been in the minors best interests, but father did not pursue that remedy.
Father also failed to comply with several elements of his reunification plan. He never submitted to drug testing, despite the social workers repeated reminders, and even after the social worker referred him to a drug testing location in Antioch. In addition, he showed a lack of understanding of the minors needs by failing to attend her medical appointments and by bringing her into contact with mother, from whom he was supposed to protect the minor.
In short, there is substantial evidence that the reunification services offered to father were reasonable. On the record as a whole, we are not persuaded that the trial court erred in terminating reunification services and setting the section 366.26 hearing.
IV. DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l); rule 8.452(i)(l).) The request for stay of the section 366.26 hearing, which is set for August 19, 2009, is denied, and our decision is final as to this court immediately. (Rule 8.264(b)(3).)
We concur:
Reardon, J.
Sepulveda, J.