Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County Super.Ct.No. SWJ5089, Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, Steven B.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant, Jessica B.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
King, J.
I. INTRODUCTION
Steven B. (father) and Jessica B. (mother) appeal from an order terminating their parental rights to James B. pursuant to section 366.26 of the Welfare and Institutions Code. Father contends that plaintiff Department of Public Social Services (DPSS) failed to provide him with reasonable reunification services. Mother contends that if we reverse the order terminating father’s rights, then we must also reverse the order terminating her rights as well. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. SUMMARY OF FACTS AND PROCEDURAL HISTORY
Minor and mother tested positive for methamphetamine at the time of minor’s birth in October 2005. DPSS removed minor from mother’s custody two days later.
DPSS filed a juvenile dependency petition concerning minor on October 14, 2005, pursuant to section 300, subdivision (b). The petition alleged that the parents’ criminal history and abuse of controlled substances placed minor at risk of suffering serious physical harm. On October 17, 2005, the court found there was probable cause for the detention. The court ordered that parental visits occur at least twice per week, “and more frequently if possible.” (Capitalization omitted.)
In a jurisdictional/dispositional report filed on November 4, 2005, social workers stated that the parents visited minor twice per week. DPSS developed a case plan for father that called for him to participate in an anger management and parenting classes, counseling, and random drug testing. If father drug tested positive, he was to enroll in and complete a substance abuse program. Under the plan, DPSS was required to provide father with referrals to community services to assist him in completing his case plan, and to provide him with bus passes for performing case plan activities when requested. The social worker was also to arrange weekly visits between the parents and minor.
At a contested jurisdictional hearing held on December 6, 2005, the court found certain allegations in the petition true and declared minor to be a dependent of the court. The court approved the parents’ case plans and ordered DPSS to provide reunification services.
The social worker had an appointment to meet with both parents on January 9, 2006. Mother appeared, but father did not because he was at work. In addition to discussing mother’s case plan, the social worker talked to mother about father’s case plan and gave her a written copy of the plan. The next day, the social worker mailed bus passes and faxed referrals for drug tests to the parents. The social worker referred father to a domestic violence program (including an anger management class) and a parenting program, but father never attended the classes. The social worker submitted a request for individual counseling on father’s behalf. A clinician with the County of Riverside Department of Mental Health determined that individual psychotherapy was not clinically appropriate because father was “likely abusing substances” and unable to benefit from psychotherapy at that time. The clinician opined that a substance abuse program was the “primary treatment of choice.” Father did not appear for any of the five random drug test appointments during January, February, and March 2006, and did not participate in a substance abuse treatment program.
On March 21, 2006, father was incarcerated. According to the social worker, father told her that “as long as the mother got the child, nothing mattered because he was going to prison.” Although the dates that father was incarcerated at different locations is not clear from the record, it appears that he was placed for a time at North Kern Prison in Delano and subsequently transferred to Corcoran State Prison.
In a six-month status review report filed on May 24, 2006, social workers reported that father was incarcerated, and that he had “not made any attempt to participate in his case plan even prior to his incarceration.” The social worker described the referrals the social worker made for father and reported that father did not enroll in or attend the required classes, failed to participate in a substance abuse program, and was a “no-show” for random drug test appointments.
On June 14, 2006, a social worker sent a letter to father at North Kern State Prison, enclosing a copy of his case plan. In the letter, the social worker explained that it was “very important” that father contact her regarding his progress on his case plan. As of July 10, 2006, father had not contacted the social worker.
On June 26, 2006, father signed a form stating that he waived his right to appear at the July 10, 2006, review hearing. This form indicated that father was incarcerated at the state prison in Corcoran. The form was sent directly to the court, and there is no evidence that a social worker or counsel for DPSS ever saw a copy of the form. At the July 10, 2006, hearing, father’s counsel referred to the father’s waiver of his right to appear, but did not mention that father was in Corcoran.
On June 30, 2006, the social worker (apparently unaware that father was in Corcoran) sent a letter to North Kern State Prison requesting information about father’s release date, the name and telephone number of his counselor, the services available to father in prison, and any services father was enrolled in.
On September 9, 2006, the social worker “called prison locator” and learned that father had been transferred to the state prison in Corcoran and that his release date was December 16, 2006. In an addendum report for the six-month review hearing, the social worker reported: Father “expressed to me that he does not want to participate or complete his case plan activities due to him being in prison. He stated his concern was that [mother] receives custody and that would be enough for his son. [Father] will be released on December 16, 2006, from California State Prison, Corcoran, in Corcoran, Ca. On September 11, 2006, I left a message [with] his counselor . . . regarding what classes [father] has participated in and a response is pending.”
Father asserts that DPSS had evidence that father was in Corcoran prior to this time based upon father’s submission of signed Waiver of Court Appearance forms dated June 26, 2006, July 26, 2006, and September 6, 2006. These forms indicated that father was in Corcoran State Prison at the time they were signed. Although the three forms are in the clerk’s transcript, the record indicates that the June 26 and July 26 forms were sent directly to the court, and there is no evidence that they were sent to, or received by, DPSS. There is no evidence as to whom the September 6, 2006, form was sent. There is no evidence that DPSS ever received this form.
At the six-month review hearing, held on September 14, 2006, DPSS submitted various reports and requested that the court terminate reunification services and set a hearing to be held pursuant to section 366.26. Father did not appear at the hearing. His counsel asserted that father was participating in a “SAPP program” while in custody, which purportedly encompassed classes in controlled substances, parenting, domestic violence, and anger management. He further argued that DPSS failed to provide reasonable services for father following his incarceration. The court brought to counsel’s attention the social worker’s report that father told the social worker he did not want to participate or complete his case plan because he was in prison. Father’s counsel responded by stating, “I have contrary evidence to that or information to that in my correspondence with my client. I have not presented anything to the Court. In his correspondence to me, he has asked to continue to participate in programs. He is in those programs. . . .” Counsel for DPSS then argued: “This child was detained in October of 2005. He did absolutely nothing between October and March. Once he got incarcerated, he said he wasn’t going to do anything. What more can the social worker do?”
The court then ruled that DPSS had complied with the case plan by providing or offering reasonable services to the parents, that the parents failed to make substantive progress in or complete their case plans, and that services therefore be terminated. A hearing to be held pursuant to section 366.26 was set. The court orally informed the parties of their right to file a petition for a writ to preserve their right to appeal. The court ordered that written notice of the right to file such a petition be sent to father at Corcoran State Prison. However, the record of the mailing of the court’s notice indicates that it was sent to father at an address in Lake Elsinore. There is no evidence in the record that the notice was sent to father at his Corcoran address.
On January 11, 2007, at the time for the section 366.26 hearing, counsel for father requested a continuance to allow for time to file a petition pursuant to section 388. The petition was to be based upon father’s participation in a substance abuse program while in prison. The court granted the request.
Father was released from prison on December 16, 2006. Thereafter, he did not visit minor or contact DPSS. He did not file a section 388 petition.
The section 366.26 hearing was held in March 2007. At that time, the court terminated the parents’ parental rights to minor. The parents appealed.
III. DISCUSSION
Preliminarily, we address whether father’s claim is cognizable on appeal. Father’s appeal challenges the court’s finding that DPSS provided or offered reasonable services to the parents. This finding was made at the six-month review hearing when the court set the section 366.26 hearing. Ordinarily, claims of error occurring at the hearing setting the section 366.26 hearing must be asserted, if at all, by a timely petition for an extraordinary writ. (§ 366.26, subd. (l); In re Harmony B. (2005) 125 Cal.App.4th 831, 838.) Failure to seek review by such means generally bars review by appeal. (§ 366.26, subd. (l); In re Cathina W. (1998) 68 Cal.App.4th 716, 719.) There is an exception to this rule: When the trial court fails to advise a parent of the writ petition requirement, that parent has good cause to be relieved of the requirement and can still challenge such orders on appeal after the section 366.26 hearing. (In re Harmony B., supra, at p. 838; In re Cathina W., supra, at pp. 723-724.) Father asserts that this exception applies here. We agree.
DPSS does not address this argument in its brief and responds only to the parents’ arguments on the underlying substantive issue of whether the agency provided reasonable services. The issue is thus submitted on the appellants’ briefs. (See County of Butte v. Bach (1985) 172 Cal.App.3d 848, 867.)
Father was not present at the setting hearing. The court was therefore required to provide him with written notice of his rights to challenge the court’s order by mail at his last known address. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.585(e).) As the court recognized at the hearing, father was then living at the state prison in Corcoran. Written notice of his rights to challenge the court’s order was not sent to father in Corcoran; it was sent to an address in Lake Elsinore. Because father was not properly advised of his right to challenge the orders made at the setting hearing, he has shown good cause to pursue his claim on appeal.
We now turn to the merits of father’s appeal. He challenges the court’s finding that DPSS provided or offered reasonable reunification services to him. We review the challenged finding for substantial evidence. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) “‘In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.’ [Citation.]” (In re Precious J., supra, at p. 1472.)
“Family preservation is the first priority when dependency proceedings are commenced. . . . ‘Reunification services implement “the law’s strong preference for maintaining the family relationships if at all possible.” [Citation.]’ [Citations.] Therefore, reasonable reunification services must be offered to a parent. [Citation.] . . . The department must make a ‘“‘good faith effort’”’ to provide reasonable services responsive to the unique needs of each family. [Citation.] . . . The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success. [Citations.] The adequacy of the reunification plan and of the department’s efforts to provide suitable services is judged according to the circumstances of the particular case.” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011.) “‘In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ [Citation.]” (In re Julie M. (1999) 69 Cal.App.4th 41, 48.)
Here, there is no dispute as to the reasonableness of the father’s case plan itself. Under the plan, father was required to participate in anger management and parenting classes, counseling, and random drug testing. The plan further provided for visitation between the parents and minor. DPSS was required to provide father with referrals to community services to assist him in completing his case plan, arrange visitation, and maintain monthly contact to assess case plan compliance and progress.
Prior to father’s incarceration, a social worker referred father to domestic violence, anger management, and parenting programs, which father did not attend. The social worker referred him for drug testing, for which he failed to show up on five different occasions. Nor did he participate in a substance abuse treatment program. Father was incarcerated in March 2006. According to court records, he was at North Kern State Prison in Delano in June 2006. The social worker wrote to father at the address for that prison on June 14, 2006, explaining the importance of contacting her to discuss his case plan. The social worker provided her telephone number and said that she accepts collect calls. There is no evidence that the letter was returned to the social worker undelivered, and we presume that father received it. (See Evid. Code, § 641.) Eventually, father informed the social worker that he did not want to participate in or complete his case plan activities.
These facts provide substantial evidence of DPSS’s reasonable and good faith efforts to offer and provide services to father. By both his actions (failing to attend programs and submit to drug testing) and his words (telling the social worker he did not want to complete his case plan), father made clear that he was not interested in completing his case plan or reunifying with minor. Although DPSS was required to offer and make available reunification services, such services “cannot be forced on an unwilling or indifferent parent.” (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220; see also In re Mario C. (1990) 226 Cal.App.3d 599, 604.) Father’s failure to comply with his case plan was not due to any lack of effort by the social worker.
Father asserts that DPSS failed to arrange for visits between father and minor after father’s incarceration. Indeed, it appears that DPSS did not seek or obtain an order changing or terminating the visitation order put in place prior to his incarceration. The social worker merely noted in her June 2006 report that father “has not visited with [minor] since his incarceration.” However, father did not assert in the trial court the failure to arrange visits as a ground for finding that DPSS failed to provide reasonable services. Rather, his argument was focused entirely upon the alleged failure to provide him with referrals for programs while in prison. He has thus forfeited this argument on appeal. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.)
Visits between an incarcerated parent and a child may be ordered “where appropriate.” (§ 361.5, subd. (e)(1)(C).) The juvenile court has discretion to determine whether visitation should occur. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.)
Even if the argument has been preserved for appeal, we reject it. Visiting minor was part of father’s case plan. While in prison, he informed the social worker that he did not want to participate in or complete his case plan activities. It was enough, he explained, that mother receive custody. The court could reasonably infer from such statements that he was expressing both his lack of interest in visitation, as well as his unwillingness to participate in programs. There is nothing in the record to suggest that father had any desire to visit minor while in prison or would have agreed to visits if they were offered. Indeed, following his release from prison, he did not contact DPSS or visit minor.
Father further contends that he made “unilateral efforts to fulfill the case plan while he was incarcerated.” He argues that such efforts show that he had no contact with DPSS and therefore “had no choice but to create and then implement his own reunification plan.” On appeal, father relies entirely upon the argument made by his counsel in the trial court. That argument was made without any evidence to support it; nor did counsel examine the social worker about her contacts with father. Even if the argument was supported by evidence, it is unavailing in light of our standard of review. In reviewing a juvenile court’s factual determination for substantial evidence, we must resolve all conflicts “in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Because the social worker’s reports regarding her efforts to provide services constitute substantial evidence to support the challenged finding, father’s contrary argument (even if it constituted evidence) is of no consequence.
Mother contends that if father’s parental rights are not terminated, then her rights should not be terminated. Because we affirm the order terminating father’s parental rights, mother’s appeal is rejected.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: Ramirez, P.J., Richli, J.