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In re Christien P.

California Court of Appeals, Second District, Third Division
Mar 24, 2008
No. B202929 (Cal. Ct. App. Mar. 24, 2008)

Opinion


In re CHRISTIEN P., A Person Coming Under the Juvenile Court Law. FABIAN P., Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. B202929 California Court of Appeal, Second District, Third Division March 24, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ORIGINAL PROCEEDINGS in mandate. Los Angeles County Super. Ct. No. CK62645, Marilyn Mackel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Merrill Lee Toole for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo for Real Party in Interest.

CROSKEY, Acting P. J.

In this dependency case (Welf. & Inst. Code, § 300 et seq.), Fabian P., the father of the minor child Christien P. (Father and Christien, respectively,) has filed a petition for extraordinary writ under the provisions of section 366.26, subdivision (l), seeking relief from the setting of section 366.26 hearing. Father asserts error in the dependency court’s failure to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., the ICWA). Real party in interest, the Los Angeles County Department of Children and Family Services (the Department), concedes the error. Father also contends the court abused its discretion when it terminated his reunification services. However we find no abuse of discretion. We will grant the requested writ and remand this case for further proceedings, including proceedings on the ICWA.

Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

BACKGROUND OF THE CASE

Christien, who was born in January 1993, came to the attention of the Department after a call was made to the police from the minor’s middle school regarding possible physical abuse of Christien by Father. Christien was 13 years old at the time. The sustained allegations against Father are that: (1) on numerous occasions he physically abused the minor by repeatedly striking the child on the back and buttocks with a board and Christien sustained swelling to his buttocks and blood in his urine as a result of Father’s physical abuse, and (2) on numerous occasions, he created an endangering and detrimental situation for the minor by leaving him without adult supervision for approximately five hours at a hamburger stand.

Father has a December 1990 conviction for battery. He was sentenced to 24 months probation and 45 days in jail.

The following allegations were sustained against Christien’s mother, Krystal C. (Mother). Mother’s whereabouts were unknown, she failed to provide him with food, clothing, shelter and medical care, and she has a history of substance abuse which renders her incapable of providing him with regular care and supervision, all of which endangers the minor’s physical and emotional health and safety.

1. The Section 300 Petition Detention Hearing

Father’s oppressive means of caring for Christien were revealed at the minor’s school when Christien’s teacher wrote a note for Father, to be delivered by Christien, concerning the minor’s use of profanity at school. Christien told his school counselor he was afraid to go home because Father had previously told him that if Father ever found out the minor was cursing, Father would beat him so bad Christien would need hospital care. The school called the police.

Christien explained to the Department social worker that the paddlings administered by Father on him involve Christien bending over a laundry basket while Father hits him at least ten times with a wood paddle every two minutes, a punishment which Father calls the “two minute drill.” Christien stated the paddle is two to three feet long, three inches wide and approximately one and one-half inches thick. The most recent use of the paddle was on March 2, 2006 and resulted from Christien taking a cookie from a classmate on the playground and the teacher calling Father about the incident. He stated his buttocks were swollen and he urinated blood after the punishment. Christien also revealed that Father makes him wait at a hamburger stand every day after school until approximately nine o’clock at night, at which time Father picks him up and takes him home. Father would not permit the child to have a key to the family home because the minor loses things.

Father denied the allegations and gave a different description of such matters. He told the social worker that to discipline Christien he talks to the minor and does not hit him, he usually picks him up on time after school, and there were only a few times when the minor waited at the hamburger stand until nine or ten o’clock for Father to get off work.

Twice in March 2006 Father admitted that he does strike Christien with a paddle.

The maternal grandmother (MGM) was interviewed because the minor mentioned that he sometimes runs away to her home but he has not told her about the abuse. She confirmed Christien’s statement and added that he also sometimes comes to visit her. On the day the abuse came to the attention of the police and the Department, the minor called her to say that if he had to go back to Father’s home he could kill himself. Based on the MGM’s willingness to have Christien placed in her home, the minor was taken there.

On March 10, 2006, the dependency court detained Christien in the care of the Department and ordered him placed in the home of the maternal grandmother (MGM). Father’s visits were ordered to be monitored by a monitor approved by the Department and the Department was ordered to provide him with referrals for parenting, individual counseling and anger management. Father was ordered to attend the CII (Children’s Institute, Inc.) parenting group. The court ordered individual and adolescent group counseling for the minor. Based on information from Father regarding possible Native American heritage, the court also ordered an ICWA investigation as to Father. A team decision making conference was ordered, with Christien to attend.

2. The Jurisdiction/Disposition Report

The Department’s jurisdiction/disposition report for the April 11, 2006 pretrial resolution conference states that in an interview with the MGM, she stated Father and Christien are both sneaky, Christian lies a lot, and Father taught the minor how to catch a bus without paying and how to steal things from stores. She stated that when Christien was with her in a store he pulled the tags off of a hat and tried to leave the store with it. When the MGM told him that would be stealing, Christien replied that Father told him something else. The MGM reported Father has financial problems, does not have a steady job, and she believed he and Christian were homeless at one point. Christien reported he and Father receive weekly groceries from a shelter. Father stated he had worked in a library, done construction work, and also odd jobs.

Father’s former counselor at a mental health center reported that in late 2005, Father had auditory hallucinations, depression, scored low on cognitive ability, had bad judgment, was suffering from a psychosis, was intensely self-deprecating, had “odd self-thought,” had “an odd fixed gaze, flat effect and an inability to concentrate,” and did not consistently take the medication prescribed for him. The counselor had concerns about Father’s ability to care for Christien. He stated Father came back to the mental health center in late March 2006 and was told to return later in the day but Father did not return.

The Department social worker reported Father has a distrust of authority figures, perceives racial bias (he and Christian are Black), believes that others are conspiring against him, does not consistently send Christien to school, and takes the minor out of school to retaliate when he believes he has not received an appropriate response from school officials. Father reported that he home schooled the minor for a year. However, Christien told the social worker that Father just took him to work with him every day and Christien spent time reading or working with computers.

Father’s home was found to be inappropriate for the minor. The gas is often turned off because Father does not pay the bill, there is no working refrigerator, and although there are bunk beds, the beds are not used for sleeping because they are used for storage of items, and so Christien sleeps on the floor.

Father had a history of being uncooperative with the Department during the seven prior Department investigations of allegations concerning Christien (from 1999 to 2005). The prior matters involved allegations of physical abuse, emotional abuse and/or general neglect by Father, physical abuse by unknown perpetrators and sexual abuse by an unknown perpetrator. All of the allegations were determined to be unfounded except one, which was found to be inconclusive. During the prior investigations, Father would not permit social workers in the family home and tended to not return phone calls. Also, Christien has a history of recanting allegations he has made against Father.

Christien was seen at a medical facility after being detained. A doctor at the facility telephoned the Department social worker and stated the minor should have a psychiatric exam and should not have any meetings with Father or the Department until he had the exam. The doctor indicated the minor refused to talk about his family and cried hysterically, saying it was a family matter. A mental health examination was completed. Dr. Erica Shumaker, a child psychiatrist, stated Christian is in complete denial of any problems; he stated everything is fine and wanted to be left alone. Dr. Shumaker opined the minor needs long term intensive therapy with a very experienced therapist who can remain the minor’s therapist if the minor has to move. The doctor also indicated that several professionals at the clinic had discussed Christien and they had a strong belief that there was something very serious about his situation that “does not translate in the written reports of behaviors.” Christien told the Department social worker he does not want counseling but rather wanted a meeting of family members only to discuss Mother because he wants to know “ ‘the whole story’.” Christien’s Mother left him when he was three and for many years he believed she was dead.

Christien’s school reported he was displaying both academic and behavior problems at school, was failing most of his classes, talking back to teachers, not completing schoolwork, acting aggressively towards other students, and acting out sexually by making sexual comments to other students. He had also exposed his penis to other students in the past.

Father refused to give permission for an IEP (individualized education program) for the minor because he does not want the minor stuck in special education classes. He appeared unable to accept that Christien may have a learning or emotional disability. Father stated he believes that when he paddles Christien, the minor’s behavior and grades improve. However, he denied that he uses a paddle on the minor’s back. He stated he was willing to give up paddling Christien and learn new ways of disciplining the minor. However, the social worker reported Father was inconsistent in his statements concerning whether he should spank Christien with a paddle. The social worker reported Father loves the minor, is concerned about him, and desires to protect him from society’s negative impact on Black males.

Father’s mental health counselor, Father’s sister, and the MGM all opined that Christien should remain living with the MGM until Father obtains the help he needs. The social worker opined that Christien has unresolved feelings and unanswered questions about Mother that cause him emotional distress, and combined with his problems at home, they have a negative effect on his behavior and academic progress. The social worker found ongoing conflict between Father and the MGM and found that Christien plays them against each other.

Father he was attending the “Fatherhood” program at CII. On April 3, 2006, A Dr. Hershel Swinger at CII advised the social worker that the Fatherhood program is not a parenting class, it is a therapy group that addresses negative experiences the fathers may have had growing up so that the experiences will not be imposed on the fathers’ own children.

At the pretrial resolution conference on April 11, 2006, the court appointed Dr. Michael Ward to perform a psychological evaluation of Christien and Father. The psychologist reported that although he was able to evaluate Christien, he was not able to evaluate Father. Father set up an appointment with the psychologist in June 2006, but then never appeared for it, and never called to cancel it or make another appointment. Thereafter, the psychologist called Father four times and left messages for him but Father never responded to the messages. The psychologist reported that Christien does not need special education services for cognitive or learning problems but may need such services “because of his significant emotional/behavioral problems.” The report states the minor did “not clinically present has having a major psychiatric illness or disturbance” but did present with some depression. However, the psychologist stated the minor’s anger and defiance were more pronounced than his depression. He agreed with the prior assessment of Dr. Shumaker that Christien needs long term, intensive therapy with a very experienced therapist. He also opined that if Christien’s behavior did not improve, the minor might need to be placed outside the MGM’s home in a specialized group or residential home.

In May 2006, Father was ordered to participate in Christien’s IEP. In June 2006, the court ordered that the MGM, not Father nor Mother, would be the adult entitled to make educational decisions for Christien. That order followed Father’s request to meet with the Department investigator’s supervisor regarding Christien’s education. After the meeting was arranged, Father failed to attend the meeting, and he did not call to cancel it or reschedule it. Nor had he given his consent for Christien to receive the IEP.

Father failed to appear for hearings on May 18, June 8, June 16, and August 14, 2006. He sent a note for the June 8 hearing saying he had a conflicting court appearance. At a June 3, 2006 hearing, his court appointed attorney declared a conflict, was relieved, and a new attorney was appointed for Father.

On August 14, 2006, the court sustained the allegations in the petition, declared Christien a dependent child, took custody from Father, and placed Christien with the MGM. The court ordered reunification services, and ordered Father to attend individual counseling with a licensed therapist, take all prescribed medications, have a mental health evaluation, and attend parenting classes until permitted by the court to stop the classes. On September 1, 2006, the court ordered that Father’s visits with Christien were to be monitored by a Department-approved monitor in a therapeutic setting. The court ordered the social worker to “contact the Father and set up individual counseling for Father and meet with therapist to set up a separate therapist other than Father’s or the child’s for Father’s monitored visits in a therapeutic setting.”

3. The October 26, 2006 Six-Month Review Hearing

The Department’s report for the section 366.21, subdivision (e) six-month review hearing states the MGM was providing Christien with a stable, nurturing home, she stated a willingness to adopt the minor, and he stated he wanted to be adopted and he understood that Father’s parental rights would be terminated. Christien was making very poor grades in school. He also continued to have behavioral problems at school and was suspended several times since the beginning of school in September. He began receiving in-home individual and family therapy in May 2006 and was to begin receiving weekly counseling at school with the school psychologist. His in-home therapist reported he was resistant to therapy, and his participation was minimal, but he had slowly increased his participation and had achieved slow and limited progress. The MGM was reported to be very cooperative with family treatment and willing to implement new strategies and parenting skills, and the minor appeared to be responsive to the MGM and have a loving bond with her. An IEP meeting was held on October 16, 2006. Christian was diagnosed as being emotionally disturbed. It was decided the minor would be placed in a small class to help with his grades and behavior.

Father had been provided with a package of referrals for counseling, parent education, anger management and low income housing on March 21, 2006. However, he was not complying with his case plan. Father had not maintained contact with the social worker despite the messages left on his voice mail by the worker (when the voice mail was not too full to receive messages) and despite the worker’s stopping by Father’s apartment several times in the hope he would be there. The apartment manager told the worker Father was still paying rent on the apartment but the manager had not seen him in several months. The Department’s reports that the worker sent to Father, by certified mail, were returned unclaimed. Father’s contacts with Christien were irregular until June 2006, when he stopped visiting and contacting the minor.

At the six-month review hearing on October 26, 2006, Father’s second court appointed attorney declared a conflict, was relieved, and another new attorney was appointed for Father. Family reunification services were continued for Father, the court found he was not in compliance with the case plan, and the Department was ordered to obtain verification of his participation in the court ordered programs.

4. The May 9, 2007 Twelve-Month Review Permanency Hearing

In its report for the section 366.21, subdivision (f) twelve-month review permanency hearing, the Department included an April 25, 2007 letter from Father’s counselor at FIND (Families in New Directions) which stated Father received individual counseling and attended anger management and parenting skills groups from April to mid-September 2006, “for a total of 16 sessions.” (Italics added.) He resumed therapy on March 28, 2007 and had attended five weekly sessions, and he re-entered an anger management program on April 21, 2007. He had 18 weeks remaining in FIND’s anger management and parenting groups. He “expressed his realization that he must continue regular attendance in therapy in order to demonstrate his commitment to reuniting with his son.” The counselor indicated she would arrange for conjoint therapy for Father and Christian.

Since the last court hearing (October 26, 2006), Father had visited Christien on January 3, 2007, called the minor twice, and the minor had also contacted his father by phone. At the October 2006 hearing, Father said nothing to the minor when the two of them were riding on the same elevator, and the excuse Father gave to the social worker for not speaking to Christien was that the court had ordered him not to talk to Christien. The social worker replied that the order addressed the parameters of Father’s visits, and did not preclude him from talking to the minor. The social worker’s attempts to contact Father since the October 2006 hearing were met with voice mail that was full and not able to accept messages. On the occasions she was able to leave a message, Father did not return the calls except for one day in March when he yelled at the social worker for calling him.

An April 23, 2007 letter from Christien’s in-home therapist states he continued to be resistant to therapy and little progress was being made. The therapist concluded that individual outpatient therapy once a week had not been effective to meet Christian’s mental health needs and she recommended a more intensive team approach, including family and school assistance.

Christian had been suspended from school many times since the last court date in October 2006. Addendums to Christien’s IEP were made. In December 2006 he was put on a shortened school day such that his school day would end at 12:45 because his school behavior problems tended to occur after lunch. In January 2007, the IEP recommended a residential placement. The recommendation was based on a January 9, 2007 mental health assessment. The MGM had reservations about placing Christian in residential treatment/education and indicated she was considering placing him in a school where she lives (Inglewood) instead of having him continue to go to his school in Santa Monica. However, because of Christien’s mental health assessment, the schools she contacted would not take him. Christien was no longer going to school. Instead, his school was providing him with weekly school work. Christian indicated he still wanted to remain in the MGM’s care but he wanted to have visits with Father so that they could go to the park and play basketball and do other things together.

The mental health assessment was through the Los Angeles County Department of Mental Health. The assessment notes that Christian qualified for special education services based on emotional disturbance, but his cognitive ability is in the average to high-average range. The mental health evaluator’s recommendation states in part: “Services should include a residential treatment program wherein he will receive a high level of structure and supervision and comprehensive clinical interventions, including milieu therapy. His case will be reviewed in 6 months.”

At the May 9, 2007 hearing, the court ordered that reunification services would continue for Father, and Father’s monitored visits should be in a public setting. The court also ordered the Department to “set up conjoint counseling for Father [and the] minor to begin no later than 06-01-07. [The Department] is to try and set up conjoint counseling at CII.” CII stands for Children’s Institute, Inc.

5. The September 25, 2007 18-Month Permanency Review Hearing

The Department’s report for the section 366.22 18-month permanency review hearing states Christien had moved from middle school to high school. An IEP and new mental health assessment were prepared. Both recommended Christien’s therapy be on an outpatient basis, to include individual therapy, family therapy, a medication evaluation, and follow up by a psychiatrist if medications are prescribed. During the summer Christien went to summer camp, and to Mississippi with the MGM for a family reunion. He reported he enjoyed himself on both occasions. The social worker opined that the minor’s placement with the MGM remained appropriate. Christian indicated he wished to remain in her care, and the MGM indicated she wished to proceed with the adoption. The social worker had only one contact with Father since the last court hearing, when he came to the Department office on September 7, 2007.

Since the last court hearing, Christien had “monitored visits with his father and telephone contact weekly.” The minor continued to receive individual therapy, including individual therapy from FIND that began on June 27, 2007. Although the court had ordered the Department to set up conjoint counseling for Father and Christien, psychologist Dorothy Tucker from FIND told the Department social worker that conjoint therapy between the minor and Father would be premature at that point in time because Father has many issues that he needs to address.

Father was also enrolled in programs at FIND. An August 29, 2007 letter to the court from that organization states Father had good attendance since March (apparently meaning March 2007 when Father resumed therapy at FIND), but he had not kept most of his appointments “lately,” because “he has been ill.” The letter states Father had attended 12 individual therapy sessions, six anger management group classes, and three parenting group sessions. According to the letter, Father has a strong desire to have a good relationship with the minor and have Christien back with him, however, the letter recommended that Father continue with all three types of programs “to gather and practice the many skills involved in building a stable life and being a competent parent.”

A September 24, 2007 letter from Dorothy Tucker at FIND states Father continued to be seen in individual therapy, was in the process of completing a psychological evaluation, had an appointment to complete a medical examination, and would commence conjoint therapy with Christien in one to three weeks. There is no indication in the letter that Father’s psychological evaluation was being performed by the psychologist he was ordered by the court to see, and Father admits in his writ brief that the evaluation in which he ultimately did participate was “not through the Evidence Code section 730 process ordered by the court.”

A September 24, 2007 letter from CII states Father became a member of its Men in Relationships Group (MIRG) in April 2006 and since that time he has focused on improving his relationship with Christien, gaining a better understanding of child development, and “appropriate discipline and interpersonal relationships,” and was looking forward to spending more time with Christien.

The Department opined there had not been sufficient progress in the case to support a finding that the safety issues in Father’s home have been alleviated, and it recommended termination of Father’s reunification services. An adoption social worker met with the minor and he indicated he wanted to be adopted by the MGM, was receiving good care from her, and was content residing in her home.

Other written information was submitted to the court. There is a letter to the court from Christien that appears to be dated September 10, 2007, and that states: “I don’t believe that my father’s parental rights should be taken away because he is in my life, and he appears to have learned from his mistakes, and is a much better person. If he cares enough to see me again and know what’s going on in my life, I believe he should have a right to.”

At the September 25, 2007 hearing, the court observed that Father had been doing better about complying with his case plan but nevertheless Father had “g[otten] off to a late start and the time has run.” The court found by clear and convincing evidence that returning Christien to Father’s care would pose substantial risk of detriment. Father’s reunification services were terminated and a section 366.26 hearing was set for March 25, 2008. The court indicated that based on the September 24, 2007 representation from Dr. Tucker that conjoint therapy would begin soon, the Department would have discretion to liberalize Father’s visitation in consultation with the conjoint therapist and the individual therapist.

DISCUSSION

1. The Case Will Be Remanded for Further ICWA Proceedings

Father contends, and the Department concedes, that the provisions in the ICWA regarding notice, investigation, and determination of Christien’s ICWA status have not yet been complied with. Therefore, when we remand the case for further proceedings, such proceedings must include compliance with the ICWA.

2. The Court Did Not Abuse Its Discretion When It Declined To Extend Father’s Reunification Services

a. The Department Met Its Duty Regarding Providing Reasonable Services

At the detention hearing held on March 10, 2006, the trial court directed the Department to provide Father with referrals for parenting, individual counseling and anger management. Father was directed to attend a specific parenting group—one held at CII. The record shows the Department provided him with a package of referrals for counseling, parent education, and anger management on March 21, 2006 and Father signed a receipt for the referrals. The record also shows that Father frustrated the Department’s attempts to monitor his progress in the various programs he was ordered to attend, and he ignored the court’s orders.

Regarding the court’s directive that Father attend the parenting group at CII, the record shows that while he did, for some time, attend group sessions at CII, they were not parenting group sessions. They were therapy sessions designed to keep fathers from imposing on their children the negative experiences the fathers had growing up.

Moreover, although the court ordered on April 11, 2006 that Father undergo a psychological evaluation with psychologist Dr. Michael Ward, Father set up the appointment but never kept it, did not call to cancel it, and did not set up another appointment. Father also never responded to the four telephone messages that Dr. Ward left for him.

On August 14, 2006, Father was again ordered to individual counseling, to have a mental health evaluation, and to attend parenting classes. This time the court ordered him to keep attending parenting classes until permitted by the court to stop. That was his case plan. On September 1, 2006, the court ordered the social worker to contact Father regarding the plan. However, the Department’s report for the October 26, 2006 review hearing shows that despite the fact that the social worker left messages for Father on his voice mail, Father never called the worker back. The social worker went to the trouble of stopping by Father’s apartment several times to speak with Father but he was not there. The Department’s dependency court reports that the worker sent to Father came back unclaimed.

Father’s refusal to stay in touch with the social worker continued after the October 26, 2006 six-month review hearing. Although the court had ordered the social worker, at that October 26 review hearing to obtain verification that Father was participating in the court-ordered programs, and although Father was at the October 26 hearing and was thus presumably aware that the social worker intended to make contact with him, the record shows the social worker’s attempts to contact Father resulted in messages saying his voice mail was full, and when she was able to leave messages, Father’s response was to call her and yell at her for calling him.

Thus, the social worker’s inability to stay in touch with Father after the court made its case plan for him on August 14, 2006, led to her inability, for a lengthy period of time, to determine whether he was in compliance with the plan. Except for the April 2006 communication from CII advising the social worker that the program in which Father was enrolled was not the parenting class that the trial court has specifically directed Father to attend, all of the reports to the social worker concerning Father’s compliance with the court-ordered programs were provided to her in mid-2007.

Those reports commenced with an April 25, 2007 letter from Father’s counselor at FIND which stated that Father commenced counseling, parenting classes, and anger management classes there on April 5, 2006, but stopped attending them in mid-September 2006. During that period from April to September 2006, he had only attended a total of 16 sessions. The letter goes on to state Father did not resume counseling until the end of March 2007 and did not resume anger management classes until April 21, 2007. The letter states that FIND could only give him credit for six weeks of credit for its “24-week anger and parenting groups.” Thus, eight months after the case plan was made, Father had only completed 25% of his anger management and parenting classes at FIND and had gone without individual counseling for seven months. Moreover, he had been directed by the court to attend parenting classes at CII, not at FIND, and he had been directed in August 2006 to attend parenting classes until the court permitted him to stop the classes.

Further, although the Department did receive a September 24, 2007 letter from CII stating Father had “been a member of our Men in Relationships Group since April 2006 [and d]uring the course of his time in the group he has focused on improving his relationship with [Christien] and gaining a better understanding of child development, appropriate discipline and interpersonal relationships,” the letter does not state that the Men in Relationships Group is an actual parenting class. Assuming arguendo it is a parenting class, there is no indication in the letter that Father actually attended group sessions regularly since he became a member of the group, and thus there is no indication he followed the court’s directive to attend parenting classes until the court said he could stop.

Two other report letters are in the trial court’s file. An August 29, 2007 letter from FIND states Father had attended 12 individual therapy sessions with Fatima Ichinokuchi, a counselor there, and also attended six anger management classes and three parenting classes. Ms. Ichinokuchi is the same person who wrote the April 25, 2007 letter wherein she stated Father had only a total of 16 sessions. Thus, it appears that in the four months between April 25 and August 29, 2007, he only increased his total attendance at the various FIND programs by five sessions. A September 24, 2007 letter states Father was completing a psychological evaluation. However, he was almost 18 months late for the evaluation, and he admits it was not the Evidence Code section 730 evaluation ordered by the court.

We note that Father’s uncooperative attitude was demonstrated in other ways. He requested a meeting with the Department investigator’s supervisor concerning Christien’s education and then failed to attend the meeting, call to cancel it, or reschedule it. He refused to give his permission for an IEP for the minor. His right to make educational decisions for the minor was reasonably transferred to the MGM. He failed to appear for several court hearings. Two of his court appointed attorneys declared conflicts and were replaced.

Moreover, Father’s visitation and other contacts with Christien was less than adequate. His contacts were irregular until June 2006 and then he totally stopped visiting and contacting the minor. Between October 2006 and April 2007, Father had visited the minor once, called him twice, and Christien had made contacts with Father by telephone. In the four months between May 9 and September 13, 2007, there were “monitored visits . . . and telephone contact weekly.” Even assuming arguendo that both the visits and the telephone calls were weekly, they came at a time when, after 18 months of court oversight, the visits had not yet been liberalized because Father was not making sufficient progress.

Nor do we agree with Father’s assertion that the Department failed to facilitate the September 1, 2006 order that his visits be in a therapeutic setting, and failed to facilitate conjoint therapy. As noted, Father stopped therapy in September 2006 and did not resume it until March 2007. Moreover, during that time he also stopped communicating with the social worker. Also a counselor at FIND, where both Father and Christien were having their therapy, stated as late as September 2007 that it was still too early for conjoint therapy between Father and Christien because Father had many issues he still needed to address. Thus, the blame for a lack of visits in a therapeutic setting cannot be laid at the doorstep of the Department. Moreover, Father’s lapse in his own therapy between mid-September 2006 and late March 2007 put him nearly seven months behind in being ready for conjoint therapy. Further, Father’s contention that Christien should have been permitted to attend a certain program at CII because CII requested that he attend the program is not supported by the record. The record states it was Father himself that wanted the minor to attend the program. Moreover, although a phone call between the social worker and CII revealed that the program did not involve children being in group therapy with their father but rather their being in a recreational program, the fact remains that by court order, Christien was only to be with Father when a monitor approved by the Department was present, and there was no way of ensuring that Father and Christien would not meet at some point during the times they attended the CII programs. We also note that a September 24, 2007 letter from CII to the court states that the counselors there would like for Father to bring Christien to the children’s program “[w]hen the Court liberalizes his visitation.” Thus, CII recognized that Christien’s presence at that facility would have to wait until the restriction on Father’s visits was lifted.

In short, the appellate record does not support Father’s assertion that the Department failed to implement the court’s orders for visitation in a therapeutic setting and conjoint counseling and therefore he was “never given a chance to comply with this essential element of the case plan” and he is “entitled to further reasonable efforts towards reunification.” Nor does the record support Father’s contention that the absence of conjoint counseling and visits in a therapeutic setting was something beyond his control.

b. There Is Sufficient Evidence to Support the Trial Court’s Denial of Continued Reunification Services

Section 366.22, subdivision (a) provides that at the 18-month permanency review hearing, the court must return a child to the physical custody of his parent unless the court finds that return of the minor would create a substantial risk of detriment to the safety, physical or emotion well-being of the minor. A failure of the parent to participate regularly and make substantive progress in treatment programs ordered by the court is prima facie evidence that return would be detrimental. If the minor is not returned, the court sets a section 366.26 hearing and terminates reunification services.

The provisions in section 366.22 do not give the trial court an option of continuing a parent’s reunification services, nor do they prohibit the court from setting a section 366.26 hearing, even if the court finds reasonable reunification services were not provided to a parent. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015.) However, section 352 gives dependency courts limited discretion to “continue any hearing . . . beyond the time limit within which the hearing is otherwise required to be held.” (§ 352.) In determining whether to grant a continuance, the court considers the best interest of the minor, including the child’s need for a prompt resolution of his custody status and a stable environment, and the damage of a prolonged temporary placement; further, a continuance is properly granted only upon showing of good cause. (§ 352.) Section 352 may in some instances be used to continue an 18-month review hearing. In In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799, the court stated that “section 352 provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing.” In Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017, the court stated section 352 may be used to continue the 18-month hearing when no reasonable reunification services were offered or provided, but the court must consider other factors also, which would include the impact on the minor of continuing the reunification period and the likelihood that further reunification services would be successful.

As noted above, the trial court in Christien’s case terminated the reunification period because “we have run out of time.” Father contends that “in the absence of reasonable services, [the court’s determination that Father’s reunification period had run] was not an adequate reason for terminating services,” and it was an abuse of discretion to not apply section 352 and continue the 18-month review hearing and reunification services. However, because we have already determined there was a failure of Father to take advantage of reunification services, not a failure on the part of the Department to provide them, we cannot agree that there was an abuse of discretion when the court did not continue the reunification period and services. Christien is entitled to a prompt resolution of this case and a stable environment. As for the matter of his letter to the court wherein he stated his belief that Father’s parental rights should not be terminated, that is a factor to be considered at the section 366.26 hearing.

DISPOSITION

Petition for an extraordinary writ is granted. Let a writ of mandate issue directing the trial court to vacate its order setting the section 366.26 hearing to conduct further proceedings, including compliance with the ICWA. If, after proper notice, a Tribe asserts its right under the ICWA to intervene in this matter in state court, or to obtain jurisdiction over the proceedings by transfer to the tribal court, the cause shall proceed in accordance with the Tribe’s election. If there is no intervention or assertion of jurisdiction by any Tribe after proper notice, then the juvenile court’s order shall be reinstated. The Department is to notify this court forthwith if a Tribe asserts its right to intervene or obtain jurisdiction over the proceedings or the juvenile court reinstates its order.

We Concur: KITCHING, J. ALDRICH, J.

She is not a petitioner in this writ matter.


Summaries of

In re Christien P.

California Court of Appeals, Second District, Third Division
Mar 24, 2008
No. B202929 (Cal. Ct. App. Mar. 24, 2008)
Case details for

In re Christien P.

Case Details

Full title:FABIAN P., Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR…

Court:California Court of Appeals, Second District, Third Division

Date published: Mar 24, 2008

Citations

No. B202929 (Cal. Ct. App. Mar. 24, 2008)