Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK58714, Daniel Zeke Zeidler, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, JUDGE
Appellant Francisco V. (father) appeals from a juvenile court order terminating his parental rights to Francisco V., Jr., (minor). Father primarily contends that the juvenile court erred in (1) terminating parental rights after expressly finding that reasonable services had not been offered to father; and (2) failing to follow proper procedure for a 12-month review hearing.
We find no error; accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Welfare and Institutions Code Section 300 Petition and Detention Hearing
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On March 2, 2006, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition on behalf of the minor (born Feb. 2006). The petition alleged that the minor’s mother, Nancy R. (mother), had a history of domestic violence with Pedro R., the father of the minor’s older half-siblings. The petition further alleged that mother had a history of substance abuse. Finally, the petition alleged that mother “was limited in her ability to ensure [the minor’s] sibling[s’] . . . regular attendance in school.”
Mother has five other children, who are not the subject of this appeal. Father is not the father of these children.
In conjunction with the section 300 petition, DCFS filed a nondetained detention report and allowed the minor to remain with his parents. According to the detention report, father was the “alleged father” of the minor. Because he was “undocumented,” he was “unable to provide proper identification in order to livescan.”
At the detention hearing on March 21, 2006, the juvenile court found father to be the “presumed father” of the minor. The juvenile court ordered father “to go to the Mexican consulate office to apply for identification” so that DCFS could “do criminal clearance” on him. The minor was released to his parents on the condition that mother comply with the prior case plan and continue in her programs, father refrain from drinking alcohol, father test for drugs and alcohol, and father enroll in a domestic violence program.
Amended Section 300 Petition, Detention Report, and Detention Hearing
On April 3, 2006, DCFS filed an amended section 300 petition on behalf of the minor. In addition to the prior allegations, the amended petition alleged that mother and father had a history of domestic violence. Specifically, according to the amended petition and the supporting detention report, on March 18, 2006, father scratched mother’s face and pushed her to the floor. Mother refused to cooperate with law enforcement and refused to participate in any criminal proceedings against father. Moreover, mother failed to report the incident to the minor’s social worker or to the juvenile court at the detention hearing on March 21, 2006.
A second incident of domestic violence occurred on March 28, 2006. On that date, DCFS removed the minor from the parents’ home “as a result of mother’s past and current relationship involving domestic violence.” Shortly after the social worker left the home, mother made a domestic violence call to the police. According to mother, father struck her on the face with a closed fist, causing a laceration to her lower lip and significant swelling to her upper lip, pain to her nose, and pressure to her teeth. Father was arrested that day on charges of violating Penal Code section 273.5, subdivision (a) (inflicting corporal injury on a spouse or cohabitant).
At the April 3, 2006, detention hearing, the juvenile court dismissed the original petition in favor of the amended petition. It found a prima facie case for detention and ordered the minor detained in shelter care. DCFS was ordered to provide family reunification services to the parents, including monitored visits at least weekly.
Jurisdiction and Disposition
According to DCFS’s April 20, 2006, jurisdiction/disposition report, mother had “not made herself available for the purposes of [the] report since” March 28, 2006.
Father, again alleged to be the “presumed father” of the minor, was incarcerated in a Kern County jail with criminal cases pending. He had an arrest record with multiple arrests for domestic violence.
DCFS was considering placement of the minor with a maternal uncle and aunt, Hector and Seiby R.
The jurisdiction and disposition hearing was held on May 25, 2006. Although father had been released from jail, he did not attend. The juvenile court sustained the following allegations of the first amended petition: (1) mother had a history of domestic violence with the minor’s siblings’ father in their presence; (2) mother had a history of substance abuse; (3) mother and father had a history of domestic violence and engaged in violent altercations, including the incidents on March 18 and 28, 2006; and (4) the minor’s siblings were dependents of the juvenile court as a result of mother’s general neglect and emotional abuse. It found that a substantial danger existed to the minor’s physical and/or mental health and declared him a dependent of the juvenile court. DCFS was ordered to provide father with family reunification services even though he was “only an alleged father.”
Six-month Status Review
In its November 14, 2006, status review report, DCFS reported that on April 18, 2006, the minor had been placed in Hector R.’s home. He had been reaching appropriate developmental milestones and had no known mental or emotional problems. He was “always happy and always smiling.” The social worker observed that the minor showed great attachment to his maternal uncle and aunt, who were meeting the minor’s needs.
The report also described a new incident of violence between mother and father. Mother told the social worker that on July 9, 2006, father “[unexpectedly] went to mother’s home. Mother stated that father wanted to have sex with her and when she refused, father began beating her. Father left mother with two black eyes as well as cut mother on her left arm with a small knife. After [f]ather left mother’s home, mother reported the incident to the police. A police report was filed . . . and father was taken into protective custody. Father has been charged with attempted murder.”
While in jail, father was participating in parental classes and in a substance abuse program. He also had participated in a personal relationships program.
Before father was incarcerated, he never had any visits with the minor.
Finally, in the report, DCFS reiterated the juvenile court’s prior finding that father was the “alleged father” of the minor.
At the November 28, 2006, hearing, father testified that he was in jail and charged with a felony. He confirmed that he was participating in classes. He stated that he had had no visits with the minor while in custody. Prior to being incarcerated, he had tried, yet failed, to visit the minor on three occasions.
Both mother’s counsel and the minor’s counsel argued that father had not received reasonable services, namely because visitation had not been granted. The juvenile court agreed, finding that reasonable services (visitation) had not been offered to father. Therefore, it ordered further reunification services for him.
The matter was set for a 12-month review hearing.
12-month Review Hearing
According to DCFS’s May 14, 2007, status review report, the social worker provided at least seven visits between December 2006 and February 2007 for the minor and father, who at that time was at the Twin Towers Correctional Facility. The bonding between father and the minor was limited because of the manner in which the visits took place in jail; father was on one side of a glass divider while the minor was on the other side. Father was only able to attempt to talk to the minor through the glass. The minor became very fussy during the visits and would cry uncontrollably, causing the visits to end. He would stop crying when the visits ended and he was able to see his maternal uncle and aunt. He seemed comforted when held by his maternal uncle and aunt.
In February 2007, father was transferred to Lancaster State Prison, where he was set to serve a six-year eight-month sentence. The social worker had been unable to provide father with visits after his transfer because father had failed to sign and date a visitation questionnaire form, which she would complete so that approval could be obtained for the minor to visit father.
Because of his scheduled lengthy imprisonment, DCFS recommended terminating reunification services for father.
At the May 14, 2007, hearing, the juvenile court noted that it previously had found that DCFS did not offer reasonable services to father. Then, DCFS pointed out that it was recommending termination of reunification services based upon father’s prison sentence. Over father’s objection, the juvenile court deemed DCFS’s status review report a section 388 petition to set aside the juvenile court’s prior order of reunification services and to deny father reunification services pursuant to section 361.5.
The matter was continued for three days to allow for proper notice.
Continued 12-month Hearing and Hearing on DCFS’s Section 388 Petition
Prior to the continued hearing, DCFS filed a supplemental report. In that report, DCFS advised the juvenile court that the social worker had called Lancaster State Prison to inquire about court-ordered programs available to father in prison. The social worker was directed to call father’s counselor, Mr. Stradmin. Although the social worker left two messages for Mr. Stradmin, he did not return her calls.
At the May 17, 2007, hearing, the juvenile court granted DCFS’s section 388 petition and vacated its prior order for reunification services, pursuant to section 361.5, subdivision (e)(1). Alternatively, the juvenile court noted that even if it were incorrect in granting the section 388 petition, it could not have found a likelihood that the minor would be returned to father’s custody by August 31, 2007.
The juvenile court further found that DCFS complied with the case plan by making reasonable efforts to enable the minor’s return and terminated reunification services for father.
The juvenile court then advised father of the requirement of filing a petition for extraordinary writ, and father was served with the notice of intent to file writ petition.
The matter was set for a section 366.26 hearing.
Section 366.26 Report and Hearing
In the August 24, 2007, section 366.26 report, DCFS reported that the minor’s maternal uncle and aunt were attached to the minor and wanted to adopt him.
While the minor had had monthly visits with father where father was incarcerated, the minor would cry during all visits. “At times the child was so upset . . . that the social worker had to terminate the visit.”
Regarding paternity, DCFS reported that although the juvenile court initially found father to be the minor’s presumed father, it later found him to be an alleged father.
At the November 21, 2007, selection and implementation hearing, father objected to the termination of parental rights. Nevertheless, the juvenile court found that the minor was likely to be adopted and terminated the parents’ parental rights. It further found that DCFS had complied with the case plan by making reasonable efforts to enable the minor’s safe return home.
Father’s timely appeal from the order terminating his parental rights ensued.
DISCUSSION
DCFS contends that father lacks standing to challenge the reasonable services finding and to challenge the effectiveness of counsel because he was only an “alleged” father, not a “presumed” father. Alternatively, DCFS asserts that father cannot challenge the juvenile court’s finding that reasonable services were offered because he failed to timely file a petition for extraordinary writ. We need not address these procedural issues. Assuming father has standing and assuming father was not required to file a petition for extraordinary writ, his appeal still lacks merit.
Once a child has been detained under juvenile court custody, family reunification efforts are required. (§§ 319, 361.5, subd. (a).) Reunification services are time limited. For a child who is three years old or younger on the date of initial removal from the custody of a parent, court-ordered services are not to exceed six months. (§ 361.5, subd. (a)(2).) Services may be extended up to a maximum of 18 months if it can be shown that a substantial probability exists that the child may safely be returned home within an extended six-month period, or if reasonable services had not been provided to the parent. (§ 361.5, subd. (a)(3).)
At the permanency review (§ 366.22), the juvenile court must consider whether reasonable services have been provided or offered to the parent. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) “[O]ne of the ‘precise and demanding’ substantive requirements [DCFS] must meet to satisfy due process is affording reasonable reunification services. Where reasonable services are not afforded there is a substantial risk the court’s finding the child cannot be returned to the parent will be erroneous. [Citation.] To put it another way: in order to meet due process requirements at the termination stage, the court must be satisfied reasonable services have been offered during the reunification stage.” (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1215–1216.)
“The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The adequacy of reunification plans and the reasonableness of the supervising agency’s efforts are judged according to the circumstances of each case. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361–1362.)
“Courts may not initiate proceedings to terminate parental rights unless they find adequate reunification services were provided to the parents, even when the parents are incarcerated.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)
We review the reasonableness of the reunification services for substantial evidence. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) “Therefore, ‘[a]ll reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]’ [Citation.]” (In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) In reviewing the reasonableness of reunification services, “[t]he standard is not whether the services . . . were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) “But [the juvenile court’s] conclusions must be based upon substantial evidence which appears in the record, not upon the court’s own unarticulated assumptions.” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 795.)
Here, despite father’s claim to the contrary, the juvenile court did find that DCFS had provided reasonable reunification services to father. That finding is supported by substantial evidence. Specifically, father had been provided with visits with the minor prior to father’s transfer to Lancaster State Prison. After his transfer, father was not provided with visits because he failed to sign and date the visitation questionnaire form for the social worker. Moreover, the social worker left two telephone messages for father’s counselor, who never returned her calls.
In urging us to reverse the juvenile court’s order, father argues that the juvenile court “short-circuited the mandatory dependency procedure by substituting a hearing on a supposed section 388 petition for the scheduled twelve-month review hearing.” The record on appeal indicates otherwise. At the May 17, 2007, hearing, the juvenile court indicated that the matter on calendar was “for a further [section 366.21, subd. (f)] hearing,” in other words, a 12-month review hearing. After a discussion off the record, the juvenile court clarified that the matter was “on calendar for [a] further [section 366.21, subd. (f) hearing] and [a] hearing regarding the [section] 388.”
Later, the juvenile court granted DCFS’s section 388 petition and vacated its prior order for reunification services. Then, importantly, the juvenile court stated: “[F]ather is denied reunification services under [section] 361.5(e)(1), even if I was wrong in doing this, for the [section 366.21, subd. (f)], there’s no way I could have found a likelihood or probability of return by the August 31st date.”
This language indicates the juvenile court’s intent to act pursuant to section 366.21, subdivision (f). And, its actions confirm that it held a 12-month review hearing. The juvenile court determined the permanent plan for the minor, and set a permanent plan hearing. It found that returning the minor to father would create a substantial risk of detriment to the minor’s physical/emotional well-being. Furthermore, as set forth above, it found that “DCFS [had] complied with the case plan by making reasonable efforts to enable the child’s safe return home.” Finally, the juvenile court set forth the factual basis for its decision. In addition to the foregoing evidence, the juvenile court noted that there was no likelihood or probability of returning the minor to father by the 18-month date. Under these circumstances, we conclude that the juvenile court acted properly and did not “short circuit” the dependency procedural scheme.
Father also claims that the juvenile court violated his due process rights by holding a hearing on DCFS’s section 388 petition in lieu of a 12-month review hearing. We disagree. As set forth above, the juvenile court held both a hearing on the section 388 petition and a 12-month review hearing.
Finally, we note that if any error occurred, that error was harmless as a matter of law. Regarding reasonable services, despite his claim to the contrary, father was not “participating in services to the full extent of his ability.” After his transfer to Lancaster State Prison, father did not have visits with the minor because he failed to sign and date the visitation questionnaire form for the social worker. And, because father was going to be in prison for at least the next six years, the juvenile court could not have found that the minor would have been returned to father’s custody by the 18-month date.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.