Opinion
A103365.
10-8-2003
In re DAVID W., a Person Coming Under the Juvenile Court Law. DAVID W., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Real Party in Interest.
David W. has filed a petition for a writ under California Rules of Court,[] rule 39.1B, challenging the juvenile courts decision to set a hearing pursuant to Welfare and Institutions Code section 366.26,[] to consider whether his parental rights as to his son David should be terminated.[] Petitioner contends (1) the court abused its discretion when it declined to continue the six-month review hearing, (2) some of the courts rulings were not supported by substantial evidence, and (3) he was denied reasonable reunification services. We will reject these arguments and deny the petition for a writ.
All rule references will be to the California Rules of Court.
All statutory references will be to the Welfare and Institutions Code.
Since petitioner and his son share the same first name, we will refer to them as petitioner and David, respectively.
I. FACTUAL AND PROCEDURAL BACKGROUND[]
The record that was filed in this case initially was inadequate. Petitioner recognized this fact and his counsel filed an augmentation request in the trial court. The trial court complied with the request, (albeit very late in the appellate process) and filed an augmented record that is adequate to permit review.
However, petitioner attached to his augmentation request, three documents that he contends show he was complying with the components of his reunification plan. Those documents apparently were never provided to the trial court. Indeed, one of them did not even exist at the time of the hearing under review. Therefore, we are precluded from considering them. (See In re Brittany H. (1988) 198 Cal.App.3d 533, 554; see also In re Zeth S. (2003) 31 Cal.4th 396, 405.)
David was born on March 10, 2002. His father, petitioner, and his mother, Cassie, were both teenagers who were well known to the local authorities. Both had extensive criminal histories; petitioners being more serious as it included offenses involving property damage, hit and run, and domestic violence.
David was born with a condition known as torticollis which prevented him from straightening his head. Since petitioner and Cassie were homeless and had no income, there was some question whether they could provide David with the physical therapy he needed to correct the condition. Therefore, child welfare officials were notified. While petitioner and Cassie were cooperative initially and worked with authorities to make sure David received the care he needed, they soon stopped taking David to his appointments.
A public health nurse visited David on May 21, 2002. She found him locked in a car seat. He apparently had been there for many hours because his diaper was soaked with urine up to his nipples.
The nurse went to visit David again on July 30, 2002. The child was suffering from such a serious rash that he needed immediate attention by a doctor. The nurse made the necessary appointment, but Cassie failed to appear, so the problem apparently went untreated.
On August 5, 2002, a social worker went to check on Davids rash. When the social worker contacted Cassie, she started screaming saying, "I hate Social Workers and the only reason that you are here is because I am sixteen."
On August 7, 2002, child welfare services received a call reporting that a baby had been dropped. Social workers responded to the call and found David lying on a bed. He was clothed only in a diaper that was soaked with urine and feces. There were fleas on his body and on the bed. David had wounds on his body that appeared to be flea bites. The house was filthy with clothing and garbage strewn everywhere. There were dead slugs on the kitchen floor. There were no visible baby bottles. Cassie was unwilling to respond to questions from the social workers and she kept repeating, "the only reason you people are here is because I am sixteen, you people need to get the fuck out of my life."
David was taken to a doctor for an evaluation. Although he was nearly five months old, he weighed less than 13 pounds which placed him in the bottom 5 percent on standard growth charts.
The authorities took David into protective custody and filed a petition under section 300, subdivision (b) alleging David came within the jurisdiction of the juvenile court because his parents had failed to protect him. Petitioner was in custody when the petition was filed, having previously been charged with domestic violence against Cassie.
The juvenile court sustained the petition after a contested hearing conducted on October 8, 2002. At disposition, the court adopted a reunification plan for petitioner and for Cassie and set the case for a review hearing.
A six-month review hearing was conducted on June 4, 2003. Petitioner was still incarcerated at the time, then housed at the state prison in Corcoran, California. According to the report prepared prior to the hearing, petitioner had made no progress on his reunification plan. The report also noted it was unlikely that petitioner would be able to reunify with David any time soon because in November 2002, he was sentenced to a three-year term.
The juvenile court considering this evidence ruled petitioner had been provided with reasonable reunification services and that it was unlikely that he would be able to reunite with David within the statutorily mandated time period. Accordingly, the court terminated reunification services and set the matter for a hearing to determine whether petitioners parental rights should be terminated.
This petition followed.
II. DISCUSSION
A. Request for a Continuance
At the beginning of the six-month review hearing, counsel for Cassie asked the court to continue the hearing. Petitioners counsel joined in the request stating, "I attempted to contact my client whos incarcerated . . . because of the delays, because hes incarcerated, I havent been able to contact him." The trial court denied the request. Petitioner now contends the trial court erred when it denied his request to continue the hearing.
A continuance shall be granted only on a showing of good cause. (& sect; 352.) In considering a request for a continuance, a court must give "substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352.) A courts ruling on a request for a continuance will be reversed on appeal only if the court abused its discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
The court in In re J.I. (2003) 108 Cal.App.4th 903, applied these principles when faced with very similar facts. There, counsel for a mother asked the trial court for a continuance because she had not been able to contact her client who was being held involuntarily in a mental health facility. The trial court denied the request, and the appellate court affirmed, ruling that counsels explanation was inadequate to overcome the childrens need for finality and stability. (Id. at p. 912.)
We reach the same conclusion here. While counsel said she had not been able to contact petitioner, she did not state what efforts she had made nor did she describe what problems she had encountered. At that point, at a minimum, counsel had represented petitioner for nearly a month. We conclude the trial court did not abuse its discretion when it impliedly ruled that a continuance was unwarranted because Davids need for finality and stability overcame whatever problems counsel may have encountered trying to contact petitioner.
B. Sufficiency of the Evidence
The juvenile court ruled petitioner had made no progress in completing his court ordered reunification plan. Accordingly, the court terminated reunification services and set a hearing to determine whether petitioners parental rights should be terminated. (See § 366.21, subd. (e).)
Section 366.21, subdivision (e) states, however, that the court "shall continue the case to the 12-month permanency hearing" if "the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal . . . may be returned to his . . . parent . . . within six months or that reasonable services have not been provided . . . ." The juvenile court considered both of these possibilities. It ruled it was not likely that David would be returned to petitioners custody within the statutorily mandated six-month time frame, and that reasonable services had been provided.
Petitioner now challenges two of these findings contending the evidence does not support the conclusion that he failed to make any progress completing his reunification plan or that it was unlikely he would reunify with David within the statutorily mandated time frame.
Our task is to determine whether the juvenile courts rulings are supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) Turning first to whether petitioner made progress, the plan formulated by the court had five components. Petitioner was obligated to complete a domestic violence program, to submit to a mental health assessment and to follow all recommendations, to complete a parenting education program, to work to ensure that his family had suitable housing, and to complete a substance abuse assessment and follow all recommendations. According to the report submitted prior to the six-month review hearing, the only positive step petitioner had taken was that he had enrolled in a substance abuse program. The juvenile court could reasonably interpret petitioners meager effort as meaning that he had made no progress in completing his reunification plan.
Turning to whether it was unlikely petitioner could reunite with David, the hearing was conducted in June 2003 so the statutorily mandated six-month period for reunification would expire in December 2003. According to the record, in November 2002, petitioner had been sentenced to a three-year term for domestic violence. Given this sentence, the juvenile court could reasonably conclude it was unlikely petitioner could be reunited with David prior to the statutorily mandated date.
C. Adequacy of Reunification Services
The juvenile court ruled petitioner had been provided with adequate reunification services. Petitioner now challenges that finding, contending the trial court erred. Once again, our task is to determine whether the trial courts ruling is supported by substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) In making that determination, we view the record in the light most favorable to the judgment. (Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 953.)
Here, the record indicates that petitioner was offered a wide array of services throughout the dependency proceedings. After David was taken into custody and before the jurisdictional hearing, the authorities offered petitioner referrals to alcohol and drug treatment programs, weekly monitoring by a social worker and supervisor to ensure that he was making progress and to help him with problems that arose, contact with petitioners attorney regarding the case plan, arrangement of supervision during parent/child visits, visits by a social worker to petitioner while he was incarcerated to review the case and to discuss any problems he might have satisfying the plan requirements, being available to receive calls from petitioner while he was incarcerated, and referring petitioner to violence prevention and housing procurement programs.
After the court assumed jurisdiction, petitioners reunification plan included participation in a domestic violence prevention program, a psychological evaluation, participation in a parenting program, participation in a substance abuse program, and help in securing adequate housing for his family. The Department of Health and Human Services specifically assumed the obligation to assist petitioner in meeting the objectives of his reunification plan through visits, calls, referrals to community services, and consultation with service providers. We conclude the record supports the conclusion that petitioner was offered reasonable reunification services.
Petitioner disputes this conclusion on three grounds. First he contends the services offered were inadequate because there was "delay" in those services. Petitioner bases this argument on a minor discrepancy that is contained in a dispositional report that was submitted to the juvenile court. A first report, filed on October 4, 2002, described petitioner as an "alleged father" and recommended that he not receive any reunification services. Child welfare authorities quickly caught their error. Eleven days later on October 15, 2002, they filed an addendum report. The addendum correctly identified petitioner as Davids father, and recommended that he be provided a full array of reunification services. Petitioner now contends the "delay" caused by the initial erroneous recommendation prevented him from reunifying with his child. We are unpersuaded. First, the delay was very short; less than two weeks. This was not a significant period of time in the overall context of this case. Furthermore and more importantly, petitioner is complaining about a recommendation that was made in the original dispositional report. Petitioner has failed to provide any evidence that shows the juvenile court accepted that recommendation or that it adopted a reunification plan based on the flawed original report. The minor error petitioner has identified was harmless.
Second, petitioner objects to a passage contained in the October 15, 2002 dispositional report that states his whereabouts were "unknown." Petitioner contends this was erroneous because the authorities knew he was in custody at the time. However, as respondent has pointed out, petitioners whereabouts were unknown. According to the clerks minutes, petitioner absconded from a work crew some time prior to October 8, 2002 and he was characterized as an escapee. Thus it appears the authorities did not know where petitioner was located.
Third, petitioner contends the reunification plan was inadequate because "[t]here is no indication in the record that visitation was ever offered, considered, or provided to petitioner . . . ." We are unpersuaded. The dispositional report said petitioner would be offered "visits while incarcerated at Humboldt County Correctional facility according to their rules and regulations. When he is not incarcerated he will be offered a minimum of five hours per week visitation with his son." Thus it appears petitioner was offered visitation while he was in local custody. While it is true the reunification plan did not contemplate David would personally visit petitioner while he was incarcerated in the state correctional facility at Corcoran, an incarcerated parent is only entitled to "[v]isitation services, where appropriate." (& sect; 361.5, subd. (e)(1)(C).) Corcoran is approximately 500 miles from Humboldt County. Davids medical condition required that he receive physical therapy a minimum of six times per day. We conclude the authorities were not obligated to subject a medically fragile one-year infant to a multi-day, 1,000 mile journey so that he could visit his father in prison.
III. DISPOSITION
The order to show cause is discharged, and the petition for extraordinary relief and request for a stay are denied on their merits. (Cal. Const., art. VI, § 14; rule 39.1B(o); Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Petitioner is barred in any subsequent appeal from making further challenges to the orders terminating reunification services and setting a hearing under section 366.26. (§ 366.26, subd. (l).) In order to avoid delaying these proceedings any further, our decision is final as to this court immediately.
We concur: Simons, J. and Gemello, J.