Opinion
C043399.
10-30-2003
In re DOMINIQUE H., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. EMSEE I., Defendant and Appellant.
FACTUAL AND PROCEDURAL BACKGROUND
Emsee I. (appellant), the father of Dominique H. (the minor), appeals from orders of the juvenile court entered after the six-month review hearing continuing the minor as a dependent child and terminating reunification services for appellant. (Welf. & Inst. Code, §§ 366.21, subd. (e), 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court committed reversible error in terminating his reunification services. Disagreeing with that contention, we affirm.
On April 2, 2002, the Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the two-year-old minor. That petition, which alleged the identity of the father of the minor was unknown, averred the mother of the minor was unable to provide for the minors special needs. According to the petition, those needs included the use of a feeding tube.
The juvenile court determined appellant was the presumed father of the minor, sustained the dependency petition as amended, and adjudged the minor a dependent child of the court. The court also ordered DHHS to provide reunification services for appellant. Those services included parenting education, counseling, and visitation arranged by DHHS.
In her December 2002 report, the social worker stated that appellant had had limited contact with the social worker and "minimal participation in services during the last six months." Noting appellants employment as a truck driver, the social worker reported appellant had told her that he had a difficult time participating in services due to his work schedule. Appellants visitation with the minor was sporadic, he failed to consistently attend parenting classes, and he had difficulty participating in counseling. Moreover, appellant attended only one of three scheduled training sessions regarding use of the minors feeding pump.
In a February 2003 report, the social worker noted appellant had visited the minor only one time since late October 2002. Moreover, according to the social worker, appellant had failed to participate in services since late November 2002. Appellant continued to miss scheduled counseling sessions, apparently due to his work schedule. Finally, appellant had been unable to attend any additional training sessions relating to use of the minors feeding pump.
The social worker recommended termination of appellants reunification services. According to the social worker, "[i]t appears that [appellants] work schedule is not flexible enough to allow [appellant] time off in order to complete . . . services much less, attend the [minors] . . . appointments . . . ."
At the February 11, 2003, six-month review hearing, appellant objected to the recommendation by DHHS to terminate his reunification services. Counsel for appellant told the juvenile court: "Its kind of a catch-22 situation for this father in that he needs to work to provide for himself and for his family and for his obligations in life, and unfortunately, his work is as a truck driver, and he is basically able to do services about one time a month, I believe, and the problem is that in dependency on a child under the age of three were looking at six months to show regular participation. [¶] But I am asking that your Honor find that if given more time there would be a substantial probability that he could reunify with this child. He has — he loves this child and does wish to reunify and does wish to participate in services, but your Honor has read the reports. He just simply cant at this point in time, and so he does object to that recommendation and would request that if your Honor does terminate services that he be allowed to continue to visit with [the minor] as often as he can."
The juvenile court ordered appellants reunification services terminated, the minors mothers services to continue, and the minor to remain a dependent child of the court. The court stated in part as follows: "It is my intention to follow the recommendations and terminate reunification services simply because, sir, you dont have the time to be able to benefit from them and so it doesnt make any sense for me to order [DHHS] to continue making referrals that youre not able to keep. [¶] So this is not a finding that youre a bad person. Its just that your work schedule apparently makes it impossible for you to be able to participate in the services that need to be participated in, in order to have this child reunify with you. So Im not going to require that [DHHS] continue to offer things that youre not able to benefit from, that youre not able to take advantage of."
The juvenile court adopted the recommendations of DHHS, including proposed findings that returning the minor to parental custody would create a substantial risk of detriment to the minor and that appellant had "sporadic visitation and sporadic participation" in his case plan.
DISCUSSION
Appellant contends the juvenile court committed reversible error in terminating his reunification services. According to appellant, the record reflects he participated regularly in services and had made substantial progress. Moreover, appellant argues, he had expressed the desire to continue engaging in services, and there was no reason to deny him services when the minors mother was continuing to receive services.
At the six-month review hearing, the juvenile court must order a child returned to parental custody, "unless [it] finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e).)
The juvenile courts order must be upheld if it is supported by substantial evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) In making this determination, we resolve all evidentiary conflicts in favor of the prevailing party, recognizing that issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16; In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Ample evidence supports the juvenile courts determination that returning the minor to appellant would have created a substantial risk of detriment to the minor. Indeed, appellant does not even challenge the courts finding in this regard. As the record makes clear, appellant had failed to complete any of the requirements contained in his reunification plan. The consequence of that failure was that appellant had failed to demonstrate he could satisfy the medical and developmental needs of the minor. Moreover, by failing to visit the minor on a regular basis, appellant had not established a parent-child relationship with the minor.
Section 366.21, subdivision (e) governs the juvenile courts options at the six-month review hearing. It provides in part: "If the child was under the age of three years on the date of the initial removal . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, 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 or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing."
Appellant argues the juvenile court failed to make a finding that he failed to participate regularly in reunification services or make substantial progress. Appellant errs. The court adopted a finding proposed by DHHS that states as follows: "[Appellant] has had sporadic visitation and sporadic participation with his Family Reunification Case Plan." This finding is sufficient under the statute.
Substantial evidence supports the determination by the juvenile court that appellant failed to avail himself of reunification services. Appellant appears to believe that some participation in services is sufficient. But the statute contemplates regular participation. (§ 366.21, subd. (e).) Here, the record reflects appellants level of participation was far from regular. At one point, appellant missed three consecutively scheduled parenting classes and each of the three scheduled makeup dates. His attendance was characterized as "`inadequate to meet minimum requirements . . . ."
Appellant missed two consecutively scheduled counseling sessions after completing two initial assessments. Moreover, appellant attended only one of three required training sessions regarding use of the minors feeding pump. Finally, according to DHHS, appellant did not visit the minor "on a regular basis." According to a February 2003 report, appellant only saw the minor once in the preceding three months.
Appellant asserts that, "even if [he] had failed to participate regularly and make substantial progress in his reunification plan, there was no rational basis for terminating services to him." According to appellant, "he wanted to continue to participate . . . ." Moreover, appellant argues, when the juvenile court told him that "he did not have time to benefit, there was little basis for this comment."
The record provides no support for appellants assertions. Instead, it contains statements by counsel for appellant expressing appellants interest in receiving reunification services, but also noting the burden of appellants employment and acknowledging that appellant could not participate in services at the time of the review hearing. "Reunification services are voluntary, . . . and an unwilling or indifferent parent cannot be forced to comply with them. [Citations.]" (In re Mario C. (1990) 226 Cal.App.3d 599, 604.) On the record before it, the juvenile court had little choice but to end services for appellant, who had made it clear he had limited or no time to participate in them.
It is true that, as appellant argues, the juvenile court retained the discretion to order an additional six months of services if it found a substantial probability of return of the minor to parental custody. (§ 366.21, subd. (e).) But nothing contained in this record suggested the existence of any reasonable likelihood appellant would obtain the skills and training required to ensure the safe return of the minor to his custody. This is especially true here, where the minor had a specialized medical need. She is developmentally delayed, was born with a cleft palate, and also has a genetic disorder.
Appellant lacked a significant relationship with the minor, failed to visit her regularly, and failed to attend weekend visits, despite his earlier assertion that weekend visits would be best for him and efforts by DHHS to arrange those visits. In general, it did not appear that, based on his past performance, appellant could even begin to approach the level of participation required to complete his reunification plan. At the review hearing, appellant proffered no information suggesting any modification of his work schedule, or any other change, from which one could believe appellant might be successful.
Appellant claims the juvenile court erred by assuming he had only a three-month period following the February 2003 review hearing within which to reunify with the minor, rather than the six months required by statute.
The record does not support appellants claim. It shows only that the juvenile court scheduled the next review hearing for May 2003, for the mother of the minor. That date does not apply to appellants circumstances. The court nowhere suggested that, in considering whether a substantial probability of return of the minor existed, the court was not considering a full six-month period. There was no error.
This is an unfortunate case. Undoubtedly, appellant was sincere in his efforts to establish a significant relationship with the minor. Moreover, we recognize the burdens imposed by his employment, and commend appellant for his diligence in maintaining that employment. But appellants child also has needs, important needs that cannot wait, even if her mother was continuing to receive services. Here, in light of appellants sporadic participation in the life of the minor in the past and his admitted inability or unwillingness to do more in the future, it would have been an idle act and a waste of precious
public resources to extend the reunification period any further. There was no error.
DISPOSITION
The orders are affirmed.
We concur: BLEASE, Acting P.J., and DAVIS, J.