From Casetext: Smarter Legal Research

In re Jacob R.

Court of Appeals of California, Fifth Appellate District.
Nov 24, 2003
No. F043238 (Cal. Ct. App. Nov. 24, 2003)

Opinion

F043238.

11-24-2003

In re JACOB R., A Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JASON R., Defendant and Appellant.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

THE COURT

Jason R. is the father of one-year-old Jacob who is a juvenile dependent in foster care. Appellant challenges a juvenile courts finding made at a six-month review hearing that he received reasonable reunification services. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

On November 25, 2002, the Fresno County Superior Court adjudged Jacob, born the preceding August, a dependent child of the court and removed him from parental custody. The court had previously determined Jacob came within its jurisdiction under Welfare and Institutions Code, section 300, subdivision (b) due to the inability of both appellant and the mother to adequately care for him. Jacob had been exposed in utero to methamphetamine. Appellant, who also had a substance abuse problem, was aware of the mothers drug problem and did nothing to help. The court ordered an addiction severity index (ASI) evaluation for appellant which was completed in early September 2002 and led to a recommendation for outpatient treatment.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

At the November dispositional hearing, the court granted each parent reunification services, including, in relevant part, another substance abuse evaluation for appellant and any recommended treatment. As of that hearing, and indeed from the outset of these proceedings, appellant was incarcerated. He had been arrested in Fresno County for assault with a deadly weapon and narcotics possession. There was also one or more outstanding bench warrants issued in Santa Clara County on a variety of charges. Although the Fresno County charges were allegedly "dropped," appellant was transferred to the Santa Clara County Jail in mid-September. Neither respondent Fresno County Department of Children and Family Services (the department) nor appellant apparently knew as of the November dispositional hearing when he would be released.

Nonetheless, just two days later, appellant was released from custody and placed on probation through Santa Clara County. He returned to Fresno the last week of December 2002.

Meanwhile, the court had authorized the department to give the mother an extended visit with Jacob provided she remained in a residential drug treatment program. On January 11, 2003, however, the mother discharged herself from the program, leading the department to place Jacob in a foster home.

The departments social worker, the mother and appellant met with a juvenile dependency mediator on January 13, 2003. The mediator addressed reunification and visitation for both parents. In relevant part, according to a written report submitted to the court on the mediation, appellant was required to contact his Santa Clara County probation officer to obtain approval to live in Fresno County. Once it was determined whether appellant would be living in Santa Clara County or in Fresno County, the department would "re-refer father to court ordered services." The department would also arrange his visitation with Jacob. On the day of the mediation, appellant submitted to a presumptive drug screening, the results of which were positive for marijuana.

In addition to his probationary status from Santa Clara County, appellant and the mother had four older sons living in San Jose with a relative.

At a January 15, 2003 hearing, appellants trial counsel advised the court that appellant would be going to court in Santa Clara County that Friday — the 17th — for sentencing on a forgery charge. Counsel further represented his client would ask the probation department there to move his case to Fresno County.

We hereby take judicial notice of the fact that the Friday after January 15, 2003, was January 17, 2003. (Evid. Code, § 452, subd. (h); § 459.)

There is nothing further in the record about the outcome of the hearing in Santa Clara County. However, on January 24, 2003, the social worker assigned to Jacobs dependency referred appellant to services related to anger management, domestic violence and parenting. The same day the social worker also completed mental health and substance abuse assessment referrals for appellant.

The social worker then met with appellant on February 14, 2003. At that meeting, the social worker confronted appellant about his positive drug test in January. Appellant admitted using marijuana around the first part of the year. He also agreed to submit to drug testing that day and to complete a second ASI evaluation, which the social worker had scheduled for February 19. The ASI evaluation on February 19 resulted in a recommendation that same day for outpatient drug treatment.

The social worker next met with appellant on March 19, 2003. During that meeting, appellant admitted to recently using alcohol and marijuana and agreed to test that day. He was to begin intensive outpatient treatment scheduled to start in a matter of days at the Fresno New Connection. He further agreed to 60 days of residential treatment if he tested dirty or he did not comply with the Fresno New Connection program. During the meeting, the social worker went ahead and referred appellant to the "McKinley Home." The social worker informed appellant he would have to pass a drug test to get into the McKinley Home. Although appellant agreed to "Westcare," another inpatient treatment program, Westcare had no vacant beds.

Appellants March 19 drug test came back positive for marijuana, PCP and amphetamine. This led the social worker to schedule another meeting with appellant on April 3, 2003. Appellant was a "no show." That same day, appellant was dropped from the parenting program to which he was referred because he had not attended any of the classes.

The social worker scheduled another appointment with appellant for April 9; again he did not appear. Finally, on April 10, appellant met with his social worker who had arranged for appellant to enter the Westcare inpatient program on April 15. The social worker also re-referred appellant to parenting, anger management and domestic violence counseling.

On April 11, the social worker prepared a status review report for the court detailing the foregoing information and recommending, in relevant part, that the court find the department had provided appellant with reasonable services. The court calendared a contested hearing on the matter for the end of April.

In anticipation of the hearing, appellants counsel filed an issue statement, challenging the departments claim that reasonable services had been priovided. According to counsel, there were no reasonable drug treatment services for approximately three months, from early December until late March when appellant started his outpatient treatment. Counsel reminded the court of his clients ASI evaluation in September recommending outpatient drug treatment and claimed appellant notified the department in the second week of December that he had been released from custody. Thus, counsel argued the department was already aware of appellants need for drug treatment but had no explanation for the delay until March 2003 to refer him to a program. Notably, counsel also represented that his client "undertook what drug abuse classes and other classes were available to him while in Santa Clara custody."

At the status review hearing, counsel for appellant pursued his attack on the lack of drug treatment services between appellants release in November and his intake session in late March 2003. In the process, counsel made something of an offer of proof which the court accepted. Namely, appellant recalled making a phone call to the department the second week of December, leaving a telephone answering machine message with his address and telephone number. Thus, from appellants perspective, the department should have contacted him and immediately referred him to a substance abuse program.

The departments counsel reminded the court that it ordered a substance abuse assessment as part of its November 25 dispositional order. County Counsel also made an offer of proof, which the court accepted, that the current social worker took over the case in mid-December and had not received any calls from appellant as to when he was out-of-custody.

Following additional argument, the court found, in relevant part, that the department had provided appellant with reasonable services. Based on the parents lack of compliance, the court continued Jacobs dependency and out-of-home placement but extended another six months of services for each parent.

DISCUSSION

Appellant renews his attack, although in slightly different terms, on the issue of reasonable services. First, he contends the department failed to provide services for, or even communicate with him during, September through November 2002 while he was incarcerated. Appellant has waived this contention by failing to raise it either at the November 2002 dispositional hearing or by way of appeal from the dispositional findings or orders. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.)

Second, he criticizes the courts reasonable services finding, claiming (1) he received no services from his jail release in late November until mid-January; and (2) the department was tardy in referring him for drug treatment. We find neither claim persuasive.

As previously noted, there is no indication in the record that either the department or appellant had any idea when he would be released from custody. Thereafter, even appellant admits in his briefing that he did not make serious efforts to contact the department upon his release. At best, he left one telephone message in the second week of December with the department. Last, the record reveals appellant did not return to Fresno until the last week of December and even then there existed a question as to whether his Santa Clara County probation officer would approve his return to Fresno. We conclude these circumstances do not undermine the courts reasonable services finding but in fact support it.

We also observe there was conflicting evidence—which appellant overlooks—regarding the so-called delay in drug treatment. First, despite the fact that appellant had submitted to an ASI evaluation in September 2002, the court did order another evaluation as part of its November dispositional order. Whether that order was proper is not before us. (In re Elizabeth M., supra, 232 Cal.App.3d at p. 563.) Nevertheless, we cannot say on this record that it was unreasonable for the department to abide by the courts directive and refer appellant for another ASI evaluation in 2003. Indeed, another evaluation was reasonable given appellants claim that he undertook drug abuse classes while he was in custody. Furthermore, the length of time that elapsed between the new evaluation referral and appellants intake session was just under 30 days, given the need to schedule appointments for both. Once again, we conclude these circumstances do not undermine and in fact support the courts reasonable services finding.

Third, appellant argues the court improperly relied on his incarceration and lack of communication with the department to find the departments conduct reasonable. We remind appellant that we do not review the trial courts reasoning but rather its ruling. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329; Mancuso v. Southern Cal. Edison Co. (1991) 232 Cal.App.3d 88, 95.) In any event, the court clearly understood the departments obligation. The issue is whether the court could properly find the department provided appellant reasonable services. Having reviewed the entire record as summarized above, we are satisfied there was substantial evidence to support the courts finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

The court commented in relevant part:
"THE COURT: So a parent whos been essentially unavailable as a result of their own incarceration cant simply make one phone call and expect the entire system to crank up instantaneously. It takes more than that. So far a parent to simply make the phone call, leave a message and then sit by and wait months for the department to take some action is I think irrational and irrational expectation and unreasonable conduct on the part of the parent. The parent is required to be reasonable but its the departments obligation as well to be reasonable and I think they have been reasonable. So the court finds reasonable services have been provided."

DISPOSITION

The courts April 30, 2003, finding that the department provided appellant reasonable services is affirmed.


Summaries of

In re Jacob R.

Court of Appeals of California, Fifth Appellate District.
Nov 24, 2003
No. F043238 (Cal. Ct. App. Nov. 24, 2003)
Case details for

In re Jacob R.

Case Details

Full title:In re JACOB R., A Person Coming Under the Juvenile Court Law. FRESNO…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 24, 2003

Citations

No. F043238 (Cal. Ct. App. Nov. 24, 2003)