Opinion
B168355.
10-30-2003
In re D. M., A Person Coming Under the Juvenile Court Law. DONALD M., Petitioner, v. SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent, LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Ann B. Cushing for Petitioner. Lloyd W. Pellman, County Counsel, and Pamela S. Landeros, Deputy County Counsel for Real Party in Interest. No appearance on behalf of Respondent.
INTRODUCTION
Donald M., father of one-year old D., brings a petition for extraordinary writ (Cal. Rules of Court, rule 39.1B) to challenge the juvenile courts orders which (1) terminated reunification services, (2) denied his request to place D. with her paternal grandmother, and (3) set the selection and implementation hearing (Welf. & Inst. Code,[] § 366.26, subd. (l)). We deny the writ.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second time father has come before this Court. To summarize the predicate events, the juvenile court took jurisdiction on a petition alleging D.s positive toxicology at birth and that father failed to take action to protect her. The petition also alleged father had an extensive criminal history and a longstanding and unresolved substance abuse problem. The Department of Children and Family Services (the Department) reported also that father suffered from a condition of his pancreas that forced him to live with his parents. The Department investigated possible placement of the child with her paternal grandparents or paternal aunt, but found their homes unsuitable.
D. has some serious medical needs, having been diagnosed as a silent carrier of Thalassemia, a blood disease. She is also being closely observed for cerebral palsy.
Father filed his earlier appeal after the court removed infant D. from his physical custody and declined to place D. in foster care with her paternal relatives. We affirmed the juvenile court orders because substantial evidence supported the rulings and otherwise the court had not abused its discretion. In particular, we noted in our previous opinion that none of the paternal relatives investigated had asked to have D. placed with them, nor had asked after her. Continuing, we stated, "`The grandparents home was cluttered; the grandmother claimed ill health and precluded the social worker from interviewing the grandfather; the grandmother was far more interested in her plans for a vacation cruise than she was about providing a safe and healthy home for an infant. Her plan was to have father function as the primary caretaker, an arrangement that had already been determined to be contrary to [D.s] physical and emotional health and safety. Finally, the grandmother did not want to adopt [D.] should anything happen to father."
Returning to the juvenile court, the ensuing disposition order required the Department to provide father with family reunification services. Father was ordered to complete a parenting course, undergo individual counseling, and submit to random drug tests for three months. If one test was dirty, father was to participate in a drug rehabilitation program. The court also appointed a psychological evaluation of father pursuant to Evidence Code section 730.
The psychological evaluation indicated that father admitted his substance abuse history but claimed to have been clean since September 2000. Father declared he intended to regain custody of D. and care for her, possibly with assistance from family members. The psychologist found father exhibited no signs of mental illness, anger, or delusion. Concluding, the psychologist reported "If what he [father]says is true, he has given up alcohol and drugs, and could reunify with the child." (Italics added.)
The record shows fathers compliance with the reunification orders was incomplete. Father attended only four therapy sessions between February 3, 2003, and April 25, 2003. His hospitalization in March 2003 caused him to miss some sessions. He also cancelled one appointment for "personal business;" and once he inexplicably failed to appear. Father was cooperative yet guarded in therapy. He "expresse[d] a willingness to comply with . . . court orders . . . ."
Father tested positive for marijuana once and missed one drug test. Fathers explanation for the positive result was that he did not personally smoke marijuana, but had been in the presence of others who were smoking. Nonetheless, because of the test result, father was required by the disposition order to enter a rehabilitation program. The Department referred father to several such programs that offered services on a sliding scale or that accepted Medi-Cal. Father chose instead to enroll in a recovery center that required a deposit before rendering services, although he did not have the financial resources to pay.
Father completed a parenting class and visited D. on an inconsistent basis, in part because he was hospitalized for the entire month of December 2002. In between hospitalizations, fathers visits were more regular.
After father received the Departments notice of its plans to recommend termination of reunification services, the social worker received a call from the paternal grandmother who offered to have D. stay with her. On the basis of a home visit, the social worker recommended against placement with the paternal grandmother in part because of ongoing remodeling work in the house.
Two social workers conducted another assessment of the paternal grandmothers house. They noted the house was extremely cluttered; there were safety hazards, i.e., cleaning supplies, on the floor; the babys room was not ready; and the paternal grandmother requested that the Department provide a crib. The paternal grandmother indicated the remodeling would not be complete for another month. The social workers recommended D. not be placed there because "[i]t would be unfair to this child to keep waiting for this home to meet approval standards" and because the grandmother had not regularly visited D., demonstrating a lack of interest in the child.
The Department was also concerned because father had not begun drug rehabilitation and the condition of his pancreas put fathers ability to care for D. into doubt.
At the contested section 366.21 hearing, the paternal grandmother testified that she had retired after working for 40 years. She was still in the process of converting her den into a bedroom for D. and did not expect to be finished for another three weeks. She had not been in a hurry to complete the work because she believed that the baby was going to be placed with her father. The paternal grandmother admitted having the financial ability to purchase a crib. Initially she claimed to have visited D. "a couple of times" but then admitted having visited only once or twice. Asked why she had not visited more frequently, she responded she was busy and, after working for 40 years, she deserved a rest.
The paternal grandfather has never met D. or the social worker because he was asleep each time the social worker visited. The grandmother did not think it was necessary for the social worker and grandfather to meet because the grandfather would not be diapering the baby.
The paternal grandmother was called to testify again after the hearing was continued. She stated she finished painting, cleared out the hazards, and baby proofed the house. She declared herself ready and eager to have D. move in. She clarified she had visited D. twice since the last hearing for a total of three visits in the childs life. Although the grandfather had still not met D. or the social worker, the grandmother was willing to commit to adoption.
Father testified he was aware of his reunification obligations, had completed a parenting class, and had enrolled in drug rehabilitation. He had not actually attended the program because of limited finances and poor health. He acknowledged the Department referred him to low- and no-cost rehabilitation programs he could attend with the bus passes the social worker provided. He stated, however, he could not ride the bus because of the jolting. Father has produced two more clean drug tests since the last time, but with respect to the missed test, he declared he did not believe he needed to test again after he tested dirty. With respect to his health, he characterized his present condition as fair. Since October 2002, he had been hospitalized four times and required one more surgery. He asserted he had the strength to care for D.
At the close of the hearing, the court declined to place the child with the paternal grandmother stating, "she just hasnt shown . . . much interest." The court found the Department had made reasonable efforts to reunify the family, but that father had not made substantive progress in his programs, and there was no substantial probability that the child could be returned in the next six months. The court terminated reunification services and scheduled the selection and implementation hearing. (& sect; 366.26.) The instant writ petition followed.
CONTENTION
Father contends the court erred in terminating reunification services. Father also contends the court erred in failing to place D. with her paternal grandparents.
DISCUSSION
1. The court did not err in terminating reunification services.
Father contends the Department failed to provide him with reasonable services in that it failed to "make any allowance for father to visit [D.] while hospitalized or to assist him in any way with in home services, family preservation or other available social or medical services."
"Each reunification plan must be appropriate to the particular individual and based on the unique facts of that individual." (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The focus of reunification services is to "eliminate those conditions which led to the juvenile courts jurisdictional finding. [Citation.]" (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) Hence, "`the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . . [Citation.]" (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555, italics omitted.)
Viewing the evidence in a light most favorable to the respondent, as we are directed to do (In re Misako R., supra, 2 Cal.App.4th at p. 545), it supports the courts conclusion that the Department provided reasonable services. Each element of the plan addressed the reasons for juvenile-court jurisdiction: lack of parenting, drug abuse, and possible mental illness. From the beginning of this case, the Department provided father with referrals, monitored fathers compliance, arranged visits with D., offered bus passes, gave father additional referrals for rehabilitation programs when the one he selected was inappropriate. Moreover, at his request, the Department had conducted at least three assessments of the paternal grandmother as a possible placement for D.
The record also supports the courts finding that father failed to comply with the case plan, quite apart from the vicissitudes of his health and the adequate services provided. That is, father tested positive for recreational drug abuse, failed to appear for a test and declined the Departments referrals for drug rehabilitation courses, and instead enrolled in a program he could not afford to attend. This conduct cannot be excused by fathers illness. Additionally, fathers failure to attend counseling is only partially due to his hospitalization. He inexplicably ceased all therapy in April 2003 and canceled or failed to appear at two earlier sessions for reasons unrelated to health. Father was certainly capable of making substantive progress in his case plan as evidenced by his completion of one aspect of it, namely, the parenting classes. Yet, for the most part, by his own choice he made little or no progress in his plan, notwithstanding his health. Stated otherwise, fathers failure to comply with the case plan was not caused by any failure on the Departments part to take into account fathers illness.
In any event, father has the responsibility of looking out for his legal rights. (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Had father felt during the reunification period that the Department was providing inadequate services, he "had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan[.]" (Ibid.) There is no evidence father complained about the lack of attention to his medical needs, or requested that D. visit him in the hospital. Father cannot sit idly by and wait until the close of the reunification period to challenge the adequacy of services provided. Otherwise, a parent could "`"be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." [Citations.]" (Ibid.)
Given our conclusion the services provided were adequate, we reject fathers further contention the Departments failure to make allowances for his medical condition warrants another six months of reunification. The juvenile court may extend reunification period only upon a finding that there is a substantial probability that the child will be returned within the extended time period. (§ 361.5, subd. (a).) The record here amply supports the courts finding it was not substantially probable that D. would be returned to father in the next six months. Reunification services for a child like D., who is less than three years old at the time she is removed from custody shall not exceed six months. (§ 361.5, subd. (a)(2).) Already, father has had the benefit of eight months of reunification and has not come close to substantially complying with the drug rehabilitation and therapeutic portions of the case plan. "`[A] measure of a parents future potential is undoubtedly revealed in the parents past behavior . . . . [Citation.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 424.) Furthermore, fathers illness puts into question his ability to care for an active toddler with her own set of health issues, and there is no evidence father will become healthier in the next six months. Fathers lackluster stabs at compliance support the courts finding it is not substantially probable that D. would be returned to father in the next six months. (§ 361.5, subd. (a)(3).)
2. The court again exercised its discretion in declining to place D. with grandparents.
Whenever a child is removed from the physical custody of his or her parents, preferential consideration must be given to placement of the child with a relative. The court must consider the best interest of the child, the parents and childs wishes, the home atmosphere, the nature of the relationship between the child and relative, and the relatives ability to facilitate reunification with the parents. (§ 361.3, subd. (a).) We review the placement decision for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 317-318.)
As noted, this issue was addressed in fathers earlier appeal, where we concluded the court did not abuse its discretion in ruling D. should not be placed with the grandparents. Since then, little has changed. Although she did make renovations to the house for D., the grandmother has shown ambivalence at best about receiving D. in her home. She remains more interested in enjoying her retirement than in caring for D. She only visited D. three times in the childs life, and two of those visits occurred during the permanency planning hearing. Grandfather could not be less enthusiastic about D. He lives in the same house as grandmother but has yet to even meet the child or participate in any Departmental assessment. This family has demonstrated a stunning lack of interest in this child. There was no abuse of discretion here.
DISPOSITION
The petition for writ is denied.
We concur: KLEIN, P.J. CROSKEY, J. --------------- Notes: All statutory references shall be to the Welfare and Institutions Code.