Opinion
B309188
07-27-2021
In re Mason M., a Person Coming Under the Juvenile Court Law. v. ENRIQUE G., Defendant and Appellant. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18CCJP05640C, Lisa A. Brackelmanns, Commissioner. Reversed with directions.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
EDMON, P. J.
Enrique G. (father) appeals an order denying him presumed father status as to his son Mason M. and finding that the Los Angeles County Department of Children and Family Services (DCFS) provided reasonable reunification services to him. Father contends that the juvenile court improperly delayed determining his status and that when it finally made that determination, it relied on improper evidence. He further contends that the reunification services he received were not reasonable. We agree with father's contentions and therefore reverse the order.
Mother is not a party to this appeal.
BACKGROUND
I. May to September 2018: detention and post-detention proceedings
Mason was born in May 2018. Mother and father had a brief relationship that ended before Mason was born. Father never knew that mother was pregnant with Mason, and mother denied knowing she was pregnant. Mother also had two older children, both of whom had different fathers.
The family came to the attention of DCFS after Mason and mother tested positive for methamphetamine when he was born. Initially, Mason was allowed to go home with mother under a safety plan. After mother again tested positive for methamphetamine, DCFS filed a Welfare and Institutions Code section 300 petition as to Mason and his two siblings in September 2018.
All further undesignated statutory references are to the Welfare and Institutions Code.
According to the detention report, Mother still had not told father about Mason a month after his birth. But, as of July 2018, mother reported that father was bringing diapers for Mason but had told mother he did not want anything to do with the child. Father, however, said he had learned about Mason in June 2018 when he noticed that mother had stitches. He wanted Mason to be his child and asked for a DNA test so that he could fully take care of Mason. Although father wanted Mason, father said he could not take him because his name was not on the birth certificate, and he was working long hours. As soon as he found out if Mason were his child, father would make changes to his living arrangements. He gave mother diapers and money and tried to protect Mason. One night, he confronted mother about leaving Mason with people he did not know. She hit father while he was holding Mason.
At the detention hearing on September 5, 2018, the juvenile court deferred paternity findings, detained Mason from mother and father, and removed Mason from their physical custody. Mason was placed with foster parents, and father was allowed monitored visits.
Father thereafter submitted his parentage statement, saying he believed he was Mason's father and had told everyone (friends and family) so. After learning about Mason's birth, father had visited Mason almost every evening and fed, played with, and talked to him. Father gave mother $40 to $50 a week. In her parentage statement, mother agreed that father held himself out as Mason's father.
At hearings in September and December 2018, the juvenile court deferred a paternity finding but appointed counsel for father.
II. February 2019: Jurisdiction and disposition report and hearing
According to a report prepared for the jurisdiction and disposition hearing, father was born in Guatemala and had been deported twice from the United States but illegally reentered. Father had multiple arrests for driving under the influence (DUI), and although the record is unclear, his last arrest appears to have been in about 2016. As a result, father attended a substance abuse program in 2016.
Father asked for a paternity test. He wanted to do whatever it took to have Mason in his custody. However, he was renting a bedroom in an apartment with strangers who did not want involvement with DCFS. He visited Mason once a week, and foster parents reported that father was appropriate with Mason and fed, held, and put him to sleep. Father always brought gifts for Mason and his siblings, and said he wanted to care for all three children. Father called one to three times a day to check on Mason.
Maternal grandmother said that mother and father always argued, although she never saw any physical altercation between them. Still, she described father as a violent, bad man who drank a lot. She agreed that father brought diapers, milk, and wipes for Mason.
After having been continued, the jurisdiction and disposition hearing was held in February 2019. The juvenile court sustained allegations in the petition that mother abused drugs and had engaged in domestic violence against father and that father had an unresolved history of DUI convictions and alcohol abuse, making him incapable of providing regular care and supervision for Mason. The juvenile court declared Mason a dependent, removed him from mother and father's custody, and ordered family reunification services for mother and father. The juvenile court also ordered father to have weekly drug tests and to attend individual counseling to address substance abuse, parenting classes and a domestic violence support group/victims' program. Father was allowed monitored visits.
The juvenile court again made no paternity finding.
III. March to December 2019: Father's deportation and reunification efforts
After the jurisdiction and disposition hearing, father partially complied with his case plan. He had moved to an apartment and consistently visited the children weekly. Father arrived on time for visits, came with food and gifts, and appropriately interacted with the children. His drug tests were negative, but DCFS thought he had been arrested for another DUI in March 2019, which father denied, apparently correctly. He had not enrolled in parenting classes, a domestic violence support group, or individual counseling, because he said he had done those classes in 2016 and was not at fault in the domestic violence incident with mother.
It appears that father was not arrested for a new DUI in March 2019. Rather, because of a DUI arrest in December 2016 he had to provide proof he was enrolled in a DUI program by May 2019.
Father had completed group and individual counseling and alcohol programs in March 2016.
Then, in July 2019, father was detained and deported to Guatemala a month later, in August. He immediately informed foster mother that he would not be able to see the children and told the social worker that he still wanted Mason with him. Father was now living in a small town with his parents, who could help care for Mason. Father said he was wrongly deported, and a lawyer was helping him return to the United States. Father communicated with the social worker via email, and an international home study referral was issued. Father did not have access to resources to complete court-ordered programs, as the nearest ones were six hours away. He added that moving to the city would not guarantee him employment.
Foster mother reported that father called almost every other day to check on Mason. But, in November 2019, he became angry with foster mother when she did not answer his call, and although she explained that her cell phone had not been working, father hung up on her. Father emailed the social worker to ask about Mason and to report he was no longer in contact with foster mother. He also reported that there were no available services where he lived and was considering moving to another town. But jobs were limited, and he owned and worked his own land to make money. He continued to email the social worker to check on Mason and his case.
IV. December 2019: Six-month review hearing
In December 2019, at what should have been the six-month review hearing but was a 12-month review hearing due to the passage of time, father's counsel argued that DCFS had stopped providing services when father was deported and despite father's attempts to reach out to the social worker. The juvenile court found that DCFS had not provided reasonable reunification services to father and ordered continued services for him as well as a home study to determine if Mason could be returned to father in Guatemala.
V. January to October 2020: Reunification efforts and the 18-month review hearing
In February 2020, a DCFS international coordinator informed the social worker that the home study request had been forwarded to the Guatemalan Consulate, but it was the social worker's responsibility to contact the consulate to see if they could assist her in identifying programs for father. Father continued to email the social worker about Mason, and the social worker gave father foster mother's cell number. In response to an inquiry from the social worker, father described his job, how he planned to care for Mason, and information about schools for Mason.
The 18-month review hearing was in early March 2020. The juvenile court ordered DCFS to see if a paternity kit could be provided for father in Guatemala but otherwise continued the matter to later in the month for a contested hearing. But, by the time of the continued hearing, the COVID-19 pandemic had encompassed the world, so the hearing was continued multiple times to November 2020. In the meantime, because of a stay-at-home order, father was unable to get the paternity kit. Father remained optimistic, telling the social worker that in life everything is possible, so he was never going to be negative and would remain positive to obtain his “angel.” The home study that had been ordered found that father was “an ideal family resource for the integral protection” of Mason.
In May through July 2020, father and the social worker continued trying to get a paternity kit to father. Father also reported that his town did not have programs. A Guatemalan social worker named Liliana found no criminal record as to father's parents, but the background check remained pending as to father. The social worker advised father of an upcoming hearing and expressed concern that father had not enrolled in a drug or alcohol program. Father explained he had provided proof he completed a program in 2016. When the social worker explained, incorrectly, that was not enough because father had a new DUI arrest in March 2019, father again denied, correctly, that he had been arrested in 2019.
At the end of September and beginning of October 2020, the social worker tried to follow up about programs and asked father if he had been able to enroll in programs. Father again responded that he lived in a remote area, so programs were hours away. It would take him eight hours to get into town and another six to get to the City of Guatemala. However, father reported that he had been attending Alcoholics Anonymous (AA) since January 2020, and the social worker encouraged father to inquire about programs at his group and to reach out to Liliana. The social worker said she would try to reach out to Liliana as well, but when the Guatemalan Consulate told the social worker to create a WhatsApp account to contact the Guatemalan Department of Protection, she declined. At the end of October 2020, the social worker tried twice to contact the Guatemalan social worker. Further, father was now married, and his wife was pregnant. He no longer planned to return to the United States, and his attorney had absconded with father's money. Father asked if he could do a Zoom call with the children. The social worker also was still trying to get the paternity testing completed.
VI. November 13, 2020: 18-month contested review hearing
At the review hearing on November 13, 2020, the juvenile court finally addressed father's status and reunification services. Father moved for presumed father status, arguing that he had visited Mason every evening after he was born and provided financial support. Mason's counsel agreed that father should be granted presumed father status and argued that, but for the failure to address the matter sooner, father would have been granted that status earlier. Counsel also pointed out that father had been treated by the court as a presumed father, as he had been given reunification services. DCFS, however, opposed presumed father status and asked the juvenile court to look at the circumstances of the case as of the current point in time instead of in 2019, when the paternity issue should have been resolved. The juvenile court, troubled by father's failure to visit Mason by phone for about a year, his failure to be named on the birth certificate, and that he had not received the child into his home, found father to be an alleged father. Had father consistently visited Mason during the last year, the juvenile court said that might have tipped the scale in favor of finding him to be the presumed father.
Father filed a written motion for presumed father status. Although DCFS opposed the motion, it conceded that father had openly held out Mason to be his natural child.
After finding that father was merely an alleged father, the juvenile court turned to whether reasonable reunification services had been provided. The social worker testified that she knew father was having a hard time getting into programs in Guatemala, so she advised him to enroll in programs and to seek assistance from the Guatemalan social worker, Liliana. However, the social worker did not provide father any referrals because “I'm not from Guatemala”, and her goal was for him to get help from Liliana. She did not direct him to online programs or search the Internet for resources. From the time father was deported in August 2019 to when the pandemic exploded in March 2020, the social worker tried to contact Liliana but otherwise did not help father find resources. When the pandemic hit, services were closed, and father was subject to travel restrictions. And when she contacted the Guatemalan Consulate, they wanted her to use WhatsApp, but she worried about preserving confidentiality. She did not, however, consult her supervisor about the situation.
The social worker also expressed concern that father had not accurately reported his attendance at AA meetings. Although he had provided documentation showing he had been attending AA meetings since January 2020, the program had been suspended from February through June 2020 due to the pandemic. Father maintained he had completed a drug program back in 2016, but the social worker explained that he had a new DUI in December 2016 after he had completed that program, so he needed to complete another one.
The juvenile court found that the social worker tried to reach out to her counterparts but encountered roadblocks, and therefore DCFS's efforts to access substance abuse and domestic violence programs for father were reasonable. Nonetheless, the juvenile court exercised its discretion to grant father six additional months of services.
Father now appeals, contending that he was entitled to presumed father status and to a finding that DCFS did not provide reasonable reunification services.
DISCUSSION
I. Father was entitled to presumed father status.
Father contends that the trial court's finding he was merely an alleged father must be reversed because it was untimely and based on an improper consideration of evidence that he had not visited Mason for a year. Otherwise, father contends that the evidence established as a matter of law that he was a presumed father. We agree with both contentions.
A father's rights and the extent to which he may participate in dependency proceedings depend on his status as a biological, alleged or presumed father. (In re H.R. (2016) 245 Cal.App.4th 1277, 1283.) A presumed father ranks highest, as he has received the child into his home and openly held out the child as his natural child, thereby demonstrating a full commitment to parental responsibilities, emotional, financial, and otherwise. (Ibid.; In re Jovanni B. (2013) 221 Cal.App.4th 1482, 1488.) In contrast, a biological father has established paternity but has not established presumed father status. (In re H.R., at p. 1283.) An alleged father may be the child's father but has not established biological paternity. (Ibid.) Only presumed fathers are entitled to appointed counsel and, absent a detriment finding, reunification services. (Ibid.)
Family Code section 7611 details rebuttable presumptions under which a man may qualify as a presumed father, the main one being by marrying or attempting to marry the child's mother. Alternatively, presumed father status may be demonstrated if he received the child into his home and openly held out the child as his natural child. (Fam. Code, § 7611, subd. (d).) To determine whether he received the child into his home and held the child out as his own, courts have looked to such factors as whether he helped the mother with prenatal care; promptly took legal action to obtain custody of the child; sought to have his name placed on the birth certificate; cared for the child; acknowledged the child; the number of people to whom he had acknowledged the child; provided for the child after he no longer resided with him; and the nature of his care. (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.) These factors are not exhaustive but illustrate a common thread about what must be shown: a demonstrated commitment to the child and the child's well-being that distinguishes the person as someone who has entered into a familial relationship with the child from someone who has not. (E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1087.) Also, to achieve presumed father status, it is unnecessary to take a child into one's home literally, as such a requirement does not recognize the reality of many parental relationships. (See, e.g., In re A.A. (2003) 114 Cal.App.4th 771, 784 [acknowledging that children often live with one parent and visit the other]; In re M.R. (2017) 7 Cal.App.5th 886, 900 [relationship between child and parent is primary factor to consider, not living arrangements].)
Father argues that courts have improperly grafted these additional factors onto the Family Code when all that Family Code section 7611, subdivision (d), requires is a father receive the child into his home and openly hold the child out as his natural child. We need not address this argument because even considering those allegedly improper factors, we find that father achieved presumed father status.
In the juvenile court, a man who claims entitlement to presumed father status has the burden of establishing by a preponderance of the evidence the facts supporting his entitlement. (In re E.T. (2013) 217 Cal.App.4th 426, 437.) On appeal, while we apply the substantial evidence test to a finding that a man is a presumed father, a different standard applies to a finding that a man is not a presumed father. Where the juvenile court has found that the party with the burden of proof did not carry the burden and that party appeals, the issue is one of failure of proof. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, overruled on another ground by Conservatorship of O.B. (2020) 9 Cal.5th 989.) The question for us therefore is whether the evidence compels a finding in father's favor as a matter of law; specifically, was his evidence uncontradicted and unimpeached and of such character and weight as to leave no room for a judicial determination that it was insufficient to support a finding? (Ibid.)
Conservatorship of O.B., at page 1011, held that when an appellant challenges a finding that must be based on clear and convincing evidence, we must account on appeal for the clear and convincing standard of proof when addressing a claim the evidence does not support the finding made under that standard.
Before answering that question, we must first determine at what point in the proceedings do we ask it? It is undisputed that the juvenile court's alleged-father finding was untimely under section 316.2, subdivision (a)(7). That section provides that a father's status shall be determined at the detention hearing “or as soon thereafter as practicable.” (§ 316.2, subd. (a)(7).) Here, however, it was made about two years after the detention hearing. DCFS does not argue that the delay was due to some practicality as opposed to a mere oversight, and we discern no reason for the lengthy delay.
Hence, the juvenile court failed to comply with section 316.2, subdivision (a)(7), and to decide father's status at the detention hearing or as soon as practicable thereafter, which certainly should have been at or by the time of the jurisdiction/disposition hearing. Although father's status should have been determined at that point in time (2018 or 2019), the juvenile court made its decision in November 2020 based on the record existing then. But, if a father establishes that he is the child's presumed father at some point in the child's life, the father's subsequent failure to continue to meet those requirements does not rebut the statutory presumption in Family Code section 7611, subdivision (d). (In re L.L. (2017) 13 Cal.App.5th 1302, 1312; In re J.O. (2009) 178 Cal.App.4th 139, 146; but see In re Alexander P. (2016) 4 Cal.App.5th 475, 491 [prior judgment of presumed parenthood is binding on juvenile court if there is no evidence of change in parent-child relationship].)
In In re L.L., supra, 13 Cal.App.5th at page 1307, for example, a finding was made about a year after the child was born that B.S. had established a parental relationship with his daughter and was awarded joint custody and visitation. Years later, B.S. had not visited his child in years or received her into his home. Nonetheless, he was entitled to presumed father status because Family Code section 7611, subdivision (d), does not require a showing of an existing relationship with the child. Similarly, a father who lived with mother when the children were born, held himself out as their father, and openly accepted them into his home was their presumed father, even though he and mother eventually separated, and he thereafter had no contact with them for three years. (In re J.O., supra, 178 Cal.App.4th at p. 145.) In sum, presumed father status once established does not fall away. (Id. at pp. 146, 149.)
Had the juvenile court here addressed the issue of father's status in a timely manner, a proper consideration of the evidence would have led to the inexorable conclusion that father achieved presumed father status. At the time of at least the jurisdiction/disposition hearing in February 2019, the evidence was that when father discovered Mason's existence, father wanted Mason to be his son and asked for a paternity test. Father told everyone, including family and friends, that Mason was his son. (See, e.g., In re L.L., supra, 13 Cal.App.5th at p. 1314 [father told family, friends, and strangers minor was his child, named minor as his child on forms, and filed action to obtain joint legal custody and visitation].) Moreover, father assumed parental duties. While Mason was in mother's care, he saw Mason almost every evening, bringing diapers, wipes, and milk for him. Father fed and played with Mason. He gave money to mother weekly for Mason. Although mother and grandmother disliked father, they conceded he helped care for Mason. When Mason was placed with foster parents, father continued to see Mason once a week to feed, hold, and put him to sleep. Father brought gifts for all the children. He called every day to check on Mason, sometimes more than once.
As for trying to receive Mason into his home, father's living situation was initially inappropriate, so he moved to an apartment. However, father was detained in July 2019 and deported. Even so, he immediately contacted foster mother about his situation. In Guatemala, he continued to ask that Mason live with him and called Mason almost every day until November 2019, when the dispute with foster mother occurred. Thereafter, he asked the social worker for updates on Mason.
This evidence was uncontradicted and unimpeached and of such character and weight that it should have compelled a presumed father finding. Yet, the juvenile court did not address it and instead focused on father's failure to call Mason for about year from November 2019 to October 2020, failure to take Mason into his home, and that father was not on the birth certificate. Father's failure to call Mason was certainly a serious lapse in judgment. However, as we have said, this failure does not change what came before: father's demonstrated commitment to Mason. Even the juvenile court admitted that but for this one failure, it probably would have granted presumed father status. Indeed, the juvenile court granted reunification services to father, thereby implicitly recognizing that father had achieved presumed father status.
Nor was father's failure to take Mason into his home a reason to deny presumed father status. Father could not have taken Mason into his home when he was born because mother did not tell father about his existence. Also, Mason was not immediately detained at birth and instead was released to mother under a safety plan. Father's living situation was then inappropriate, but he moved into a new home where he could have Mason with him. Even when father was deported, he said that Mason could live with him, confirmed that paternal grandparents could help, and investigated schools for Mason.
Although the juvenile court also relied on the absence of father's name on Mason's birth certificate, that fact similarly is not compelling or dispositive. Father could not have been named initially on the birth certificate because mother concealed Mason's existence from father for at least a month after Mason was born. Moreover, father did take steps to be named on the birth certificate, as he sought a paternity test to establish his biological relationship to Mason. As of this appeal, father is still trying to establish that relationship.
We therefore conclude that father is a presumed father as a matter of law. Our conclusion may be of little moment, given that father has been treated as a presumed father and given an attorney and reunification services. Even so, father is entitled to be recognized as Mason's presumed father.
II. Reunification services
The juvenile court found that DCFS provided reasonable reunification services but nonetheless extended services to father for another six months. Given that father has already been afforded any remedy we could provide, we first address whether the issue is properly before us and, after concluding it is, we next address the merits.
A. The issue is not moot.
Father acknowledges that even if we agreed he was not offered reasonable reunification services, he has already obtained the relief we could give him-further unification services. In general, we do not decide abstract or academic questions of law when we cannot render relief that would have a practical, tangible impact on a parent's position in dependency proceedings. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) Father, however, points out that the reasonable services finding could impact him negatively in the future. He cites section 366.26, subdivision (c)(2)(A), which provides that parental rights shall not be terminated if the juvenile court has found that reasonable efforts were not made or reasonable services were not offered or provided. Stated otherwise, the juvenile court must find that reasonable services were provided before terminating parental rights. That being the case, we agree that the substantive issue of the reasonableness of DCFS's efforts to reunify father with Mason is properly before us. (See In re A.G. (2017) 12 Cal.App.5th 994, 1004 [remedy for failing to provide court-ordered reunification services is additional period of services and a finding reasonable services were not provided]; In re T.G. (2010) 188 Cal.App.4th 687, 695 [parent can be aggrieved by reasonable services finding at six-month review hearing if unsupported by substantial evidence].)
B. Reasonable reunification services were not provided.
Turning to the substantive issue, father contends that the social worker essentially directed him to no services. We agree.
A reasonable services finding shall be made by clear and convincing evidence. (§ 366.21, subd. (g)(4).) We review a reasonable services finding for substantial evidence based on that clear and convincing standard. (In re M.F. (2019) 32 Cal.App.5th 1, 14.) In determining whether substantial evidence supports the juvenile court's reasonable services finding, we review the record in the light most favorable to the finding and draw all reasonable inferences from the evidence to support it. (Ibid.) We do not reweigh the evidence or exercise independent judgment, and the burden is on the petitioner to show that the evidence is insufficient to support the juvenile court's findings. (Ibid.)
To support a finding reasonable services were offered or provided, the record should show that DCFS identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parent during the service plan, and made reasonable efforts to assist the parent in areas where compliance proved difficult. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 691.) The standard whether the services were reasonable considers the circumstances at issue and not those existing in an ideal world. (Id. at p. 692.) Services for a deported parent include reasonable efforts to assist parents “to contact child welfare authorities in their country of origin, to identify any available services that would substantially comply with case plan requirements, to document the parents' participation in those services, and to accept reports from local child welfare authorities as to the parents' living situation, progress and participation in services.” (§ 361.5, subd. (e)(1)(E).)
The court in In re A.G., supra, 12 Cal.App.5th 994, considered the reasonableness of DCFS's reunification efforts under that section. In that case, the father had been deported to Mexico and reunification services were ordered. Because there was no evidence that DCFS had helped the father contact the relevant agency in Mexico for service referrals or identified available services, the court concluded that there was insufficient evidence to support the juvenile court's reasonable services finding. (Id. at p. 1003.) In so concluding, the court noted that barriers to providing services to a person deported to his country of origin do not relieve DCFS of its obligation to provide reunification services but may constitute a reason to extend those services. (Ibid.)
There are circumstances in which services may be unavailable and therefore a juvenile court will not be prohibited from terminating parental rights. (§ 366.26, subd. (c)(2)(A).) There is no contention here that services were unavailable in Guatemala.
Here, the juvenile court found that DCFS had not provided reasonable services to father as of December 2019. We therefore focus on the period from then to November 2020, when the juvenile court found that reasonable services had been provided to father. DCFS service logs show the following occurred during that relevant time:
• December 2019 and January 2020: The social worker provided no services to father, and contact was limited to father reaching out to the social worker to ask about Mason.
• February 2020: The social worker initiated the home study.
• March and April 2020: DCFS contacted the Guatemalan Consulate to verify father's status and identity. Father gave the Guatemalan social worker's name and contact information to the DCFS social worker.
• May 2020: The social worker introduced herself via email to her Guatemalan counterpart, who had completed the home study.
• June and July 2020: No services were provided other than discussions about the paternity kit.
• August 2020: The social worker told father he had an upcoming hearing and advised him to enroll in a drug or alcohol program.
• September 2020: The social worker asked the DCFS international coordinator for a contact at the Guatemalan Consulate to check into services for father and reminded father to enroll in programs.
• October 2020: The social worker tried to contact the Guatemalan Consulate and again asked father if he was able to enroll in programs. Father reported difficulty in finding programs in his remote town, although he was in AA. The social worker encouraged father to reach out to the Guatemalan social worker, seek out programs through AA, and to call the children. The social worker emailed the Guatemalan social worker and was told to use WhatsApp. The social worker declined to do so. On October 30, the social worker unsuccessfully tried to contact her counterpart and another person about services.
• November 4, 2020: The social worker tried three times unsuccessfully to contact a counterpart in Guatemala about services and programs.
• November 13, 2020: The juvenile court found that DCFS provided reasonable reunification services.
Distilling this timeline into its essentials shows that the social worker did not investigate or discuss services and programs with father or others for about nine months, from December 2019 through August 2020. During that time, the social worker did follow-up regarding the paternity test, which, while helpful to determining father's paternity, was not helpful or relevant to finding services. Not until September 2020 did the social worker inquire about services. And it was not until October 2020-just one month before the 18-month review hearing-that we could characterize her efforts as beginning in earnest. And even then, we cannot find an instance of the social worker finding a program for father, directing him to one, or indicating she researched programs beyond belatedly reaching out to her Guatemalan counterpart.
It is also not clear what programs the social worker was telling father he needed to complete. Although she encouraged him to enroll in drug programs, the case plan ordered him to have individual counseling to address substance abuse.
Even considering that for the bulk of this time the world was in the throes of a pandemic that, among many things, made communication difficult, prohibited travel, and impacted services father needed to access, we cannot find that the pandemic wholly excuses DCFS's inattention to father. Despite the pandemic's impact on the availability of services, we cannot assume they were completely unavailable. Indeed, the Guatemalan social worker was able to complete the home study as of May 2020, during the pandemic. Otherwise, while many programs were presumably unavailable in-person, were they available via, for example, Zoom? Given that much of the world moved online, could father have participated in online United States-based programs? The record does not answer these questions.
And it does not appear that the social worker gave sufficient effort to answering them. Rather, she conceded she did not research programs but instead relied on father and her Guatemalan counterparts to find programs. As to that, it was certainly appropriate for the social worker to reach out to her Guatemalan counterparts for help. (See, e.g., § 361.5, subd. (e)(1)(E).) However, although the social worker obtained Liliana's contact information in May 2020, the social worker did not try to contact her until October 2020, just one month before the review hearing. By then, even if services were found, it is unlikely father could have completed them in time for the upcoming hearing.
Thus, even considering the unique circumstances of the pandemic, we cannot find there was substantial evidence that DCFS provided reasonable reunification services under the clear and convincing standard.
DISPOSITION
The November 13, 2020 order finding father to be an alleged father and finding that DCFS provided reasonable reunification services is reversed. The juvenile court is directed to enter a new order finding father to be a presumed father and that DCFS did not provide reasonable reunification services.
We concur: EGERTON, J. THOMAS, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.