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In re Clarissa F.

California Court of Appeals, Fourth District, First Division
Jul 31, 2008
No. D052451 (Cal. Ct. App. Jul. 31, 2008)

Opinion


In re CLARISSA F., a Person Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. RALPH F., Defendant and Appellant. D052451 California Court of Appeal, Fourth District, First Division July 31, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Imperial County No. JJP01121, Juan Ulloa, Judge.

HUFFMAN, Acting P. J.

Presumed father Ralph F. appeals the judgment terminating his parental rights over Clarissa F. He contends the juvenile court violated his due process rights because it did not make findings he was an unfit parent, and he received reasonable reunification services; the Imperial County Department of Social Services (the Department) did not provide him reasonable services; and the court erred by denying his Welfare and Institutions Code section 388 petition seeking services. We affirm.

All statutory references are to the Welfare and Institutions Code.

BACKGROUND

In October 2004 when Clarissa was seven years old, the Department filed a dependency petition alleging Ralph left her without provision for her care and support and her mother, Leticia V., used heroin. Ralph had been in prison since November 1998 and was scheduled to be released in August 2008. In November 2004 the court entered a true finding on the allegation relating to Leticia. In December it entered a true finding on the allegation relating to Ralph.

After being detained in the Betty Jo McNeece Receiving Home (McNeece), Clarissa was then placed with her younger half brother in the Calexico home of his uncle and aunt, Alex and Michelle G. In June 2005 Clarissa was returned to Leticia. At the six-month review hearing in July 2005, the allegation that Ralph left Clarissa without provision for her care and support was dismissed nunc pro tunc to the date of the true finding. In August 2005 Clarissa was removed from Leticia's home, taken back to McNeece, and then returned to the G.'s home.

In December 2007 Ralph filed his section 388 petition. The hearing on that petition and the section 366.26 hearing took place in January 2008.

REASONABLE SERVICES

Ralph contends he received no reunification services other than two visits in three years and this does not constitute reasonable services. Ordinarily, he would be required to raise this contention in a writ petition challenging the order setting the section 366.26 hearing. (§ 366.26, subd. (l)(1), (2); Cal. Rules of Court, rule 5.720(c)(10)-(12).) Because he was not advised of his right to file a petition (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.720(c)(13)-(15)), however, he may raise this contention on appeal (In re Cathina W. (1998) 68 Cal.App.4th 716, 722-724; In re Athena P. (2002) 103 Cal.App.4th 617, 625).

When a "parent . . . is incarcerated . . ., the court shall order reasonable services unless [it] determines, by clear and convincing evidence, those services would be detrimental to the child." (§ 361.5, subd. (e)(1).) Detriment is determined by considering the child's age; the parent-child bond; the nature of the crime and the length of the sentence; the detriment to the child if services are not offered; if the child is at least 10 years old, the child's attitude toward services; and any other appropriate factors. Services may include collect telephone calls and, where appropriate, transportation and visitation services. The parent may be required to participate in counseling, parenting classes or vocational training if those services are available. (§ 361.5, subd. (e)(1).)

Ralph had been in prison since Clarissa was six months old—for nearly all of her 10 and one-half years—and acknowledged he never had the "chance to care for her." Beginning in 2001, Ralph was incarcerated at Salinas Valley State Prison in Soledad. The Department had unconfirmed information that he had been convicted of attempted murder. Ralph believed he had been convicted of robbery.

The juvenile court ordered Ralph to participate in parenting classes and Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings and maintain supervised written and telephone contact with Clarissa. Although the prison did not have a parenting program, AA and NA meetings were available. Ralph was allowed to correspond with Clarissa through the Department, as the foster family wished to maintain its confidentiality. For reasons that are unclear, there were apparently no telephone calls. Visitation at the prison was not feasible due to the distance, but the court authorized supervised visitation when Ralph was in local custody for dependency hearings. Ralph was in local custody eight times before the section 366.26 hearing and there were two jail visits. On another occasion, jail personnel did not allow a visit to take place.

Reunification services need not be "the best that might be provided in an ideal world, but [rather those] reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The services offered to Ralph were reasonable in light of what was offered at the prison, the geographical distance between the prison and Clarissa's placement, the fact he had been imprisoned since her infancy and the lack of a true bond.

The record contains substantial evidence supporting a determination Ralph was provided reasonable reunification services. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

Ralph claims trial counsel was ineffective because she told the court he was not entitled to services and asked the court to dismiss the petition as to him nunc pro tunc, relieving the Department of the duty to provide services. In view of our conclusion, we need not reach this issue.

DUE PROCESS

Ralph contends the court violated his due process rights by terminating his parental rights without finding, by clear and convincing evidence, he received reasonable services and was an unfit parent.

Services were reasonable, as discussed above. Moreover, Ralph forfeited his right to raise the unfitness issue by failing to do so below. (See In re S. B. (2004) 32 Cal.4th 1287.) Although in July 2005 the court dismissed the dependency petition's allegation regarding Ralph, he continued to be represented by counsel and participate in the proceedings. Over the next two and one-half years he never raised the issue of unfitness. We therefore reject his contention.

In September 2007 Ralph's original trial counsel was relieved and he received new counsel.

THE SECTION 388 PETITION

Ralph's section 388 petition sought modification of the order setting the section 366.26 hearing. As changed circumstances, he alleged he had completed NA and AA classes and a gang violence program, the only services offered at his prison; he had requested a transfer to another prison; and he had an earlier release date—February 12, 2008. The petition sought reunification services, which he claimed would be in Clarissa's best interests because she recognized him as her father.

The petition stated the date of the setting hearing was October 15, 2007. The correct date is October 26, 2005.

The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the dependent child's best interests. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We review the court's order for an abuse of discretion. (In re Michael B., at p. 1704; In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

Ten and one-half-year-old Clarissa had been out of Ralph's care for 10 years and in the dependency system for more than three years. At the beginning of this case, she had few memories of him. At the section 388 hearing, the court noted Ralph had "taken advantage of some opportunities and probably done himself a lot of good" but was still incarcerated. Meanwhile, Clarissa's quest for permanency and stability was long overdue. She had lived with the G.'s throughout the dependency and even before that

they had cared for her at times. Clarissa was bonded with the G.'s, happy in their home and received much love and attention. They wished to adopt her and her younger half brother, of whom she was quite protective. While Ralph testified that Clarissa told him, in response to his question, that she wanted to live with him, Clarissa told the social worker several times she wished to remain with the G.'s. The court did not abuse its discretion by concluding Clarissa would benefit more from finally obtaining a stable, permanent home than from prolonging the uncertainty that would accompany a grant of further services for Ralph.

DISPOSITION

Judgment affirmed.

WE CONCUR: HALLER, J., O'ROURKE, J.


Summaries of

In re Clarissa F.

California Court of Appeals, Fourth District, First Division
Jul 31, 2008
No. D052451 (Cal. Ct. App. Jul. 31, 2008)
Case details for

In re Clarissa F.

Case Details

Full title:In re CLARISSA F., a Person Coming Under the Juvenile Court Law. IMPERIAL…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 31, 2008

Citations

No. D052451 (Cal. Ct. App. Jul. 31, 2008)