Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County Super. Ct. No. SJ11733B-C, Hideo Chino, Juvenile Court Referee.
HALLER, J.
Francisco A., father of dependent minors K.A. and Maximo A. (together the minors), appeals juvenile court orders terminating his reunification services and granting a Welfare and Institutions Code section 388 petition for modification filed by the San Diego County Health and Human Services Agency (Agency) seeking to suspend visits between Francisco and the minors. Francisco contends: (1) the court's failure to make adequate findings in granting the section 388 petition precludes meaningful appellate review; (2) Agency did not meet its burden of showing circumstances had changed or that suspending his visits was in the minors' best interests; (3) Agency's delay in filing its section 388 petition violated his due process rights; and (4) Agency did not provide him with adequate reunification services. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2007 six-year-old K.A. and seven-month-old Maximo became dependents of the juvenile court under section 300, subdivision (b) based on findings Francisco and their mother, Claudia A., engaged in domestic violence in the minors' presence, Claudia failed to obtain a restraining order to protect the minors, and Francisco was mentally unstable. Francisco had a drug abuse history and had been incarcerated on various criminal charges, including sexually molesting the minors' 14-year-old sister Melinda R. The court placed the minors with Claudia, ordered supervised visits between Francisco and the minors, and ordered Francisco to participate in services.
During the next six months, Francisco tested positive for drugs, physically confronted Claudia and was terminated from his domestic violence treatment program due to excessive absences. Francisco slashed Claudia's tires on nine occasions, threatened Claudia and the social worker, continually violated a restraining order and showed no regard for the law or any restrictions placed on him. He was arrested for evading a police officer and driving under the influence of alcohol or drugs. During a supervised visit with the minors, Francisco asked K.A. for confidential information about where he lived and went to school. He made a digital versatile disc (DVD) of photographs for K.A. that contained a message about committing suicide. Consequently, the social worker told Francisco that due to concerns for the minors' safety, his visits with the minors were being suspended until he had a psychological evaluation and could show he was sober and mentally stable.
Three months later, Agency filed a section 388 petition requesting an order for no contact between Francisco and the minors. Agency alleged circumstances had changed because Francisco was currently incarcerated for violating the restraining order Claudia had against him, he was stalking and threatening Claudia and was not participating in services. As to best interests, Agency alleged Francisco's dangerous and erratic behavior made it unsafe for the minors to visit him.
At a combined six-month review and section 388 hearing, social worker Ana Martinez testified Francisco's case plan required him to participate in sexual abuse therapy, domestic violence counseling, the Substance Abuse Recovery Management System (SARMS) program, a psychological evaluation and a parenting class. Francisco twice tested positive for methamphetamine and was terminated from two domestic violence programs for nonattendance. He did not cooperate with Martinez's attempts to have him attend a more structured drug abuse program. He was given referrals for parenting classes but failed to attend and never completed a psychological evaluation because he could not document 90 days of sobriety. Francisco refused to participate in sexual abuse therapy and denied molesting Melinda. While incarcerated, Francisco received a prison packet but did not return it.
When Francisco talked to Martinez about Claudia, his demeanor was agitated, angry, frustrated and forceful. His body language was posturing and intimidating, causing Martinez to feel threatened. The contents of the DVD prepared by Francisco were distressing and intimidating because they showed a man, holding a gun, apologizing and saying goodbye. Martinez believed this showed Francisco was mentally unstable, and had suicidal or homicidal ideations. Because Francisco continued to threaten and stalk Claudia in violation of the restraining order, Martinez concluded the minors, as well as any visitation monitor, were at risk.
Francisco's visits with the minors had been inconsistent. Martinez observed four or five visits, noting Francisco treated the minors like "pawns" during the first visit, but during other visits, he was affectionate toward the minors and tried to interact with them. The minors did not seem fearful of Francisco, but K.A. had a physical reaction to Francisco's expression of anger toward Martinez. Martinez requested Francisco participate in a psychological evaluation before she could recommend ongoing contact with the minors.
Claudia testified Francisco discovered where she lived. He violated the restraining order by going to her house and the minors' school. Francisco had used the minors to force Claudia to get in the car with him, frightening K.A. and causing him to cry and shake. Francisco endangered the minors by driving erratically with them in the car. Claudia felt threatened by Francisco and believed he was not stable enough to have visits with the minors. Although Francisco never physically harmed the minors, Claudia feared for their safety because he hurt Melinda by molesting her.
After considering the evidence and hearing argument of counsel, the court admonished Agency for its delay in filing the section 388 petition to suspend visits between Francisco and the minors. Nevertheless, the court granted Agency's section 388 petition and ordered Francisco have no contact with the minors, other than through letters screened by the social worker, until further court order. The court terminated Francisco's reunification services, finding he failed to participate or make substantive progress with his case plan.
The court stated it was willing to revisit the issue of visitation after Francisco completed a psychological evaluation.
DISCUSSION
I
Francisco contends the court erred by granting Agency's section 388 petition. He asserts: (1) no substantial evidence supports the court's finding circumstances had changed and suspending visits was in the minors' best interests; (2) the court did not make adequate findings, precluding meaningful appellate review; and (3) Agency's delay in filing the section 388 petition violated his due process rights.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
B
The record shows changes occurred when, despite the existence of a restraining order, Francisco began stalking Claudia in an effort to discover where she lived and he appeared several times at Claudia's home and the minors' school. On one occasion, Francisco forced Claudia's car off the road. He tried to manipulate K.A. into giving him confidential information and he made a DVD for the minors with highly inappropriate content. Francisco told the social worker he did not care if he was arrested, stating, "[Y]ou have no idea what I could do to you." Further, Francisco had not complied with his drug program, was terminated from domestic violence counseling for nonattendance, refused to participate in sexual abuse treatment and had not been sober long enough to have a psychological evaluation. Thus, ample evidence supported a finding of changed circumstances.
The evidence also showed suspending visits was in the minors' best interests. Francisco's dangerous and erratic behavior placed the minors at risk. Francisco repeatedly used the minors to manipulate Claudia. K.A. became frightened when Francisco confronted the social worker and when he forced Claudia into his car. Francisco appeared mentally unstable and had suicidal or homicidal ideations. Even the social worker felt threatened by Francisco's demeanor and body language. Because Francisco showed no regard for the law or any restrictions placed on him, the social worker believed the minors would be at risk if visits continued.
In making its ruling, the court found Francisco's actions and behavior had deteriorated because he was using drugs and violating the restraining order, and the minors were no longer safe with him. Although the court did not use the words "changed circumstances" or "best interests," those findings are implied based on ample and substantial evidence obvious from the record. (In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84.) The court properly granted Agency's section 388 petition.
C
Francisco contends Agency's delay in filing its section 388 petition violated his due process rights. He asserts he was deprived of contact with the minors for 10 weeks before Agency took any action to justify the social worker's unilateral decision to revoke his visitation privileges.
The record shows the social worker told Francisco in April 2007 that his visits with the minors were being suspended due to his erratic and threatening behavior, his positive drug tests and violation of the restraining order. The social worker explained Francisco needed to have a 90-day period of sobriety followed by a psychological evaluation to ensure visits were safe for the minors. A section 388 petition for modification of the court's original visitation order was not filed until July. Agency concedes, and we agree, the petition should have been filed sooner. However, the delay in filing a section 388 petition does not, as Francisco suggests, amount to a violation of due process or require reversal.
Due process requires notice and an opportunity to be heard. (In re Joshua M. (1998) 66 Cal.App.4th 458, 471; In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) When the social worker notified Francisco that visits were being suspended and explained the reasons for doing so, he had the assistance of counsel to bring his objection to the court's attention. Instead, he waited until Agency filed its section 388 petition to argue his visits were improperly curtailed. (See In re Christina L. (1992) 3 Cal.App.4th 404, 416 [party may not be silent as to objections until it is too late to obviate them].) Although Agency should have filed its section 388 petition sooner, the court granted a hearing on the petition at which Francisco had the opportunity to argue why visitation with the minors should not be suspended. Even had the petition been filed sooner, the result would have been the same given the substantial evidence of changed circumstances and the minors' best interests. There was no due process violation requiring reversal of the court's order granting the section 388 petition.
II
Francisco contends Agency did not provide him with adequate reunification services. He reiterates his argument that he was deprived of his right to visit the minors before Agency filed its section 388 petition and also asserts the social worker did not timely send him a prison packet after he was incarcerated.
A
The purpose of reunification services is to remedy the problems that led to the minor's removal. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) Each reunification plan must be appropriate to the particular individual and based on the unique facts of the case. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Services are considered reasonable if the child welfare agency has " '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 re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
The reasonableness of Agency's efforts is judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "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." (In re Misako R., supra, 2 Cal.App.4th at p. 547.) We review the court's findings as to the adequacy of a reunification plan and the reasonableness of Agency's efforts for substantial evidence. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.)
B
Here, Agency offered Francisco programs for domestic violence and sexual abuse treatment, a parenting class, a psychological evaluation and drug treatment through SARMS. Although these services were reasonably tailored to remedy the problems that led to the minors' dependency, Francisco chose not to participate. He tested positive for methamphetamine, was terminated from several domestic violence programs, did not enroll in parenting classes or sexual abuse treatment and did not complete a psychological evaluation because he could not maintain his sobriety. Francisco's "real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Francisco's lack of compliance with services is neither directly nor solely attributable to Agency's delay in filing its section 388 petition or providing him with a prison packet. Rather, by his own volition or lack of motivation, Francisco did not access services for more than four months before his incarceration. (See In re Julie M., supra, 69 Cal.App.4th at p. 48 [delay in making referral for individual counseling did not make services unreasonable].) His erratic and threatening behavior, not the inaction of the social worker, caused suspension of his visits with the minors. If a parent of a dependent child "in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go 'on hold' while the parent makes another stab at compliance." (In re Michael S. (1987)188 Cal.App.3d 1448, 1463, fn. 5.) Substantial evidence supports the court's finding Francisco was offered or received reasonable services.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.