Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, No. CK69866, Anthony Trendacosta, Judge.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
Croskey, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Hugo R., the father of the minor children in this case (Father), appeals from an order of the dependency court that terminated his reunification services. Father contends the record shows that he had actively participated in the court-ordered reunification services provided to him, had made significant progress in his case plan, and actively visited the minors, and therefore, his reunification services should have continued. However, based on our review of the record we find no abuse of discretion in the decision to terminate services and therefore, the order Father challenges will be affirmed.
All references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
1. Detention of the Minors
Father’s children are U.G. (born October 2000), B.R. (born May 2004) and Damaris R. (born May 2006). Their mother is X.G. (Mother). Mother’s child Brian N. is also a member of the family. The four children were detained together by the Los Angeles County Department of Children and Family Services (the Department).
The detention report prepared by the Department for a September 10, 2007 detention hearing states that at the time of detention there was an active restraining order against Father because of his recent (June 15, 2007) domestic violence towards Mother wherein he pulled her hair and threw a phone at her while she was holding Damaris. Mother told the social worker who visited her home on August 31, 2007, that despite the restraining order she had been permitting Father to come to her home to visit the family. Asked why she let Father be there, Mother stated she did not know what else to do because Father helps her financially. She also stated Father threatened to hurt her if he did not see the minors. The social worker noticed there was a bag of men’s clothing in the home, and minor B.R. told the social worker that he sleeps on the floor with Father, and he saw Father the previous night. The family had been receiving Voluntary Family Maintenance and Family Preservation services for a year because of Father’s previous domestic violence against Mother in July 2006 in which Father choked Mother until she could not breathe and became dizzy. The children were present when this violence occurred.
The social worker was at Mother’s home on August 31, 2007 because a telephone caller tipped the Department that Mother and the children were living with Father despite the restraining order. The caller also stated that Father would secrete himself from the social worker when the social worker made home visits to the family’s prior home. Father would hide under the children’s beds or leave from a window.
On the same day that the social worker visited Mother and the minors, she saw Father at his mother’s home where he lives, and where Mother and the minors had been living temporarily after they were evicted from their prior apartment at the end of June 2007. They moved to their current residence, a single apartment, in July 2007. (Mother told the social worker she and the children were living with a “friend” after they were evicted.) The worker had not spoken with Father since May 4, 2007. The worker asked him why he had not contacted her about the domestic violence incident in June 2007 that resulted in the restraining order. Father replied he did not want to be involved with the Department. He acknowledged there was a restraining order against him. He denied that he was living with Mother and the children at their current home and stated he had been living with his mother since his release from jail (perhaps referring to jail for the recent domestic violence).
There was a Team Decision Meeting (TDM) on September 4, 2007, attended by Mother, the four minors, the Family Preservation worker, and social workers. It was decided that the minors would be detained from the parents for their own safety, and Mother was advised to seek financial aid from the Department of Public Social Services so that she could maintain her current housing. The children were placed in a foster home.
The Department’s report notes that at a prior TDM (held in February 2007), the social worker determined it would be safe to permit Father to live with Mother and the minors because he was in compliance with his Voluntary Family Preservation/Family Maintenance case plan, which included attendance at domestic violence counseling. However after he returned home, he stopped attending the counseling, stopped alcohol testing and AA meetings, and started to drink. Mother also failed to comply with her voluntary case plan in that she did not have the minors attend counseling.
Father has a conviction for driving under the influence.
At the September 10, 2007 detention hearing, the juvenile court ordered the Department to give Mother referrals for domestic violence counseling, parenting classes and individual counseling, and to give Father referrals for alcohol counseling and testing, and individual counseling to address anger management and domestic violence. Monitored visits by a Department approved monitor were ordered.
2. Adjudication of the Section 300 Petition
Father did not return the social worker’s attempts to contact him for an interview for the Department’s report for the October 1, 2007 pretrial resolution conference. The three older children, Brian, U.G., and B.R., talked to the social worker about Father’s domestic violence towards Mother and the parents’ screaming at each other. They were reluctant to say whether Father lived at the new apartment with them. They stated Father drank alcohol after he was permitted to resume living with them in February 2007. Mother stated that besides engaging in domestic violence against her, Father also beats U.G. She stated that when Father returned to the family home after the February 2007 TDM, he would drink on the weekends because there was no alcohol testing then, and he lied when he told the social worker that he was not drinking.
At the October 1, 2007 hearing, the court found the following allegations in the section 300 petition to be true. Mother and Father have a history of domestic altercations in which Father has hit Mother. Mother was not able to protect the minors in that she continued to allow Father to have unlimited access to the children. Such altercations by Father against Mother, and her inability to protect the children, place the minors at risk of harm. Father has a history of alcohol abuse which periodically renders him unable to provide regular care of the minors. Father’s abuse of alcohol places the children at risk of harm.
The court ordered Father to not contact Mother by phone, at her home, or at any place she visits lest the court issue its own restraining order against him and/or hold a contempt hearing for him.
3. Disposition
The Department’s initial (November 5, 2007), disposition report shows Father enrolled in domestic violence counseling and began alcohol testing. He had three visits with the minors in October. The children reported that they missed being home. They appeared to be adjusting well to their foster home, with no noted emotional problems. The foster mother was reported to be meeting their needs.
The interim report of November 26, 2007 related updated information. Father informed the social worker that he had been paying the rent on Mother’s single apartment and the apartment is in his name. He showed the social worker a receipt for the rent deposit he paid on the apartment. He stated he told his friend to tell Mother that he would secure an apartment for her and the minors. A week later he advised the social worker he had found a one-bedroom apartment for Mother. Letters to the Department from Valley Center for Prevention of Family Violence, dated October 30, 2007, state Father enrolled in parenting classes on October 2, 2007 and had attended four classes out of 12; and he enrolled in the domestic violence program on September 10, 2007, he had attended seven group sessions, and he participated in the domestic violence classes appropriately and gave positive feedback to the issues addressed there.
The foster social worker informed the Department social worker that at Mother’s November 11, 2007 visit with the minors, the foster mother observed that Father drove Mother to the visit. Three days later, Father called the foster social worker to ask if the parents could have visits on the same day.
At the November 26, 2007 disposition hearing, the court declared the minors dependents of the juvenile court, declined to return the minors to the home of either parent, and observed that neither parent understood “the ramifications domestic violence has on the children” and “what it means to have a restraining order.” Mother was ordered to domestic violence counseling, individual counseling to address case issues, and parent education. Father was ordered to individual counseling to include domestic violence and anger management, which could be “done in one program if they can address it,” and an alcohol abuse program with random testing. Individual counseling for the minors Brian and U.G. to address case issues was also ordered. The court ordered reasonable visitation for the parents, with the Department given discretion to liberalize visitation, and ordered that the parents were not to have their visits together.
4. Six-Month Review
By the time of the May 2008 section 366.21, subdivision (e) six-month review hearing, Father had yet to begin individual counseling for anger management and domestic violence. He did enroll in a domestic violence program in September 2007, but that was for his open court case wherein he was ordered to attend 52 sessions, and by March 18, 2008 had attended 21 and missed four, and his participation was reported to be “amply satisfactory.” He had not yet begun an alcohol counseling program. He stated it was too expensive for him to take all of his classes at the same time. He reported attending AA meetings occasionally. He tested negative once in October, once in November and once in December 2007; and tested negative twice in January, once in February, twice in March, twice in April, and once in May 2008. He missed a test in February 2008, and in October 2007 he tested positive for cocaine. One of Mother’s family members reported Father called, was intoxicated, and stated he will get the minors back. Mother reported that Father drinks on the weekends because his substance abuse tests are only during the week. By March 25, 2008 he had completed a 12 week parenting program and his participation was described as “satisfactory” and as having “listened closely and demonstrated interest in the program’s non-violent parenting techniques.”
Father was having two-hour visits with the minors on Sundays. He was reported to have taken unauthorized family members to the visits (as was Mother), even though the Department social worker advised that all adults visiting with the children must first live-scan. Since the disposition hearing in November 2007, Father had 16 visits, with three or four visits a month in November 2007 through January 2008, one in February, two in March, none in April and two in May, 2008. The foster mother reported that Father cancelled many visits and told her he was working on Sundays. Mother reported that was a lie and he actually was missing visits to play soccer.
The children were reported to be doing very well with their foster family, and the three older children stated they enjoyed living with them. The youngest child, Damaris, was observed to be affectionate with the foster mother. Mother had become pregnant with her fifth child in December 2007 when she was seeing Father in violation of the two stay-away orders.
At the May 28, 2008 review hearing, the Department was given discretion to begin unmonitored day visits for Father if his therapist were to recommend such visits. The court found that Father was in partial compliance with his case plan (and Mother was in compliance with hers), and reunification services for the parents were continued. A three month progress report on the parents’ compliance with their case plans was set for September 3, 2008, and a section 366.21, subdivision (f) 12-month review hearing was set for November 25, 2008.
At the September 3, 2008 progress hearing, the court ordered the Department to increase Father’s visitation hours, and gave the Department discretion to liberalize the visits up to and including unmonitored visits.
5. Twelve-Month Review Hearing
a. November 25, 2008 Hearing
The Department’s report for the November 25, 2008 section 366.21, subdivision (f) twelve-month review hearing states Father was having unmonitored visits with the children for four hours on Saturdays. Since the May 28, 2008 six month review hearing, Father kept seven visits and cancelled eleven. He complained that he had lost three jobs because the children are in foster care.
The children were replaced to a new foster home because Mother had made unfounded accusations against the original foster mother. The new foster parents reported that the minor U.G. did not feel comfortable going to visit Father and did not want to get out of the foster parents’ car for the visits. The minors stated they enjoy living in their new foster home. The social worker found they were doing very well there.
Mother told the social worker that she had no contact with Father for the prior six months, but once in October and once in November 2008, she saw Father in his car at the agency where she attends her domestic violence class and counseling. On one of those occasions, Father drove his car by the agency and honked at Mother to speak with her. On the second occasion, it appeared to Mother that Father was waiting for her. Mother’s fifth child, Sharon R., was born in September 2008. A section 300 petition was ultimately filed on the child’s behalf, and the court ordered she be detained in shelter care.
Father was randomly testing for alcohol and tested negative nine times in June through mid-November 2008. He enrolled in an alcohol and drug treatment program on August 11. 2008. He told the social worker he was attending weekly AA meetings. He enrolled in anger management classes on June 12, 2008, and as of November 12, 2008 he had attended 13 group sessions out of 52. A report from the facilitator of the class regarding Father’s participation is positive. He had no completion letter for the domestic violence classes he took for his criminal court case because he owed more than $200 for the classes. He had not attended individual counseling. The Department found him to be in partial compliance with the alcohol counseling and anger management portions of his case plan, full compliance with alcohol testing, and no compliance with individual counseling.
At the November 25, 2008 review hearing, the children’s attorney indicated they told him they enjoy their visits with the parents, and even if the parents cancel visits they maintain regular contacts by telephone. Father’s attorney indicated that Father did not agree with the accuracy of some of the statements in the Department’s report. The court continued Mother’s reunification services to the section 366.22 hearing on the condition she continue to comply with her case plan, and set a contest for Father for December 23, 2008, on the issue whether his services would be continued. The court indicated it would take up two questions at the hearing—the regularity of Father’s visits and whether he was violating the restraining order.
b. December 23, 2008 Hearing
Regarding Father’s visits with the minors, a report for the December 23 hearing states Father telephoned the foster family home every day since the November 25, 2008 hearing to check on the minors and he attended all three of his scheduled visits during that time and had a Thanksgiving visit.
Regarding whether Father had attempted to contact Mother, the report states that the social worker spoke with an MFT intern at the agency where Mother attends counseling and domestic violence classes and the intern told the social worker that Mother had reported to the agency seeing Father outside its premises. Additionally, Mother reported to the social worker that she was told by the agency that a man came to the agency on November 26, 2008, asking to see Mother’s therapist and asking about Mother’s schedule there. Mother stated the agency told her that the man told Mother’s MFT intern therapist that he had been referred to the agency by Mother for domestic violence classes, and the MFT intern told the man she could not release information about the agency’s clients. Mother told the social worker that she had only referred one person to the agency and that person is a female family friend. The MFT intern with whom the social worker spoke confirmed that this incident occurred, and stated the man did not use Father’s name but she could not release the name he did use because of confidentiality considerations. The intern stated she could not say it was Father because she had never met Father.
Father told the social worker he was not trying to contact Mother, and he stated that the place he goes to look for work is close to the agency where Mother receives her case plan services and he must drive past the agency to get to the community job center. Father provided a letter from the job center which states that Father has been participating in the job center since December 2004, and he goes to the job center daily seeking work. The social worker called the person who wrote the letter, Mr. Olvera. Olvera stated he would check the job center’s logs to see if Father came there on the three dates he was reported to have been at the agency where Mother takes her therapy and classes but Olvera had not gotten back with the social worker with that information.
At the December 23 hearing, Father’s attorney presented documentary evidence. A letter from an agency indicates he enrolled in anger management classes there on June 12, 2008, and as of December 18, 2008 he had attended 18 group sessions out of 26. This is the same agency that submitted an abovementioned letter for the November 25, 2008 hearing, and that letter stated that as of November 12, 2008, he had attended 13 group sessions out of 52. Also presented to the court was a December 22, 2008 letter from the agency where Father was admitted to its alcohol and drug treatment program on August 11. 2008. The letter states positive things about his participation, states his attendance is good, and states he had nine urinalysis tests and all were negative. Additionally, the court was presented with attendance sheets of the alcohol/drug treatment agency’s AA/NA Outside Meeting Attendance” sheets which indicate Father attended meetings once in July, four times in August, three times in September, four times in October, eight times in November and once in December, 2008.
Father testified at the hearing on December 23, 2008. He stated that his anger management class taught him to take time outs by letting “the other person know when I’m bothered and then just leave.” In domestic violence class he learned “[n]ot to be abusive to my partner” and learned “[m]any things that I should change in my life so that the other person who lives with me should not or may not feel abused.” He stated he became a member of AA, has a sponsor, and is on Step One of the AA program, which is to accept that he has a problem with alcohol. He had been on Step One for six months. Asked about Mother’s reports that she had seen him at the agency where she attends classes, Father stated he was not following her but rather had gone “to look for her at the place where she attends classes.” He stated he was aware that it was a violation of the restraining order to do that but he was “looking for her so that I could speak to her because I want to reunify my whole family.” He stated he did not intend to harass Mother or cause her harm. Asked if he would be willing to accept Mother telling him that she does not want to reunify with him, he stated: “Yes. I would move to another state.” He stated he was willing to follow court orders.
After hearing arguments from the attorneys regarding whether Father should retain reunification services, the court reviewed Father’s involvement with the Department going back to 2006 and determined that although Father had come to be in compliance with his current case plan, he had not made substantive progress in his treatment, and had violated court orders, and therefore his reunification services would be terminated. Visitation orders remained in effect.
CONTENTION ON APPEAL
Father contends he actively participated in his reunification services, made substantial progress, and would continue his visits with the minors, and therefore his reunification services should not have been discontinued.
DISCUSSION
1. Standard of Review
The standard of review in this appeal is abuse of discretion. Juvenile courts have discretion to terminate reunification services for one parent and continue services for the other. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651.
2. Terminating Father’s Reunification Services Was Not An Abuse of Discretion
Section 361.5, subdivision (a) provides for 12 months of reunification services but also provides that services may be extended past the 12 months if it can be demonstrated at the section 366.21, subdivision (f) 12-month review hearing that “the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period.” Section 366.21, subdivision (g) (1) states that an extension of up to six months is permitted, but “in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following.” First, “the parent or legal guardian has consistently and regularly contacted and visited with the child”; second, he or she “has made significant progress in resolving problems that led to the child’s removal from the home”; and third, he or she “has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.”
Father’s visitation record is not favorable. He was reported to have taken unauthorized family members to the visits even though the Department social worker advised him that all adults visiting with the children must first live-scan. In the nearly 6 months between the disposition hearing in late November 2007 and the preparation of the Department’s six-month review report, Father had only 16 visits with the children. The foster mother reported that Father cancelled many visits, some at the last minute, and Father told her he had to work. Mother reported that was a lie and he was missing visits to play soccer. During the period between the six-month and twelve-month review periods, he only visited the minors seven times, and he cancelled 11 visits. It was only when the prospect of losing his reunification services loomed near that he buckled down, and in a burst of attention during the one-month period prior to the hearing at which his services were terminated, he kept all four of his scheduled visits and he called every day to check on the minors. We cannot fault the trial court for not finding that Father had “consistently and regularly contacted and visited with the child[ren].” (§ 366.21, subd. (g) (1) (A).) Moreover, it is to be noted that minor U.G., the child whom Mother reported was beaten by Father, did not want to visit him.
Thus, because section 366.21, subdivision (g) (1) requires that a court make a positive finding on all three of the abovementioned requirements for extending reunification services past the 12-month review hearing, the court’s reluctance in this case to make a positive finding regarding Father’s visitation was sufficient reason by itself to deny him additional services. Father’s argument that the court did not make any finding with respect to visitation misses the mark. In order to continue Father’s reunification services, the court would have had to find that he consistently and regularly contacted and visited with the children. Not making a finding with respect to visitation is reasonably seen as the court not finding substantial positive evidence on the issue of visitation.
Nor could the trial court have made positive findings for the other two requirements. Father’s case plan was set by the court in November 2007. It included individual counseling to address domestic violence and anger management, and an alcohol abuse program with random testing. By the time of the six-month review hearing in May 2008, Father had not yet enrolled in individual counseling for anger management and domestic violence, nor had he enrolled in an alcohol abuse program, and Mother reported he was drinking on the weekends. He did enroll in a domestic violence program in September 2007, but that was for his open court case wherein he was ordered to attend 52 sessions and by March 18, 2008 had attended 21 and missed four. Although he reported attending AA meetings, he only attended them occasionally. The report for the November 2008 12-month review shows Father was randomly testing for alcohol and attending weekly AA meetings, however after six months of meetings he was still on Step One, which was to acknowledge he has a problem with alcohol. Further, it was not until August 11, 2008 that he enrolled in an alcohol and drug treatment program, and not until June 12, 2008 that he enrolled in anger management classes. He had never enrolled in individual counseling. His excuse given to the social worker for her six-month review report that he could not afford to take all of his programs at once does not explain why he took so long to enroll in the classes he did eventually begin.
Further, despite the restraining order against him, Father permitted Mother and the children to move in with him and his mother, and when Mother and the children moved to another residence, he repeatedly came to that residence and even slept there and kept clothes there. Despite that restraining order and the dependency court’s own order, made October 1, 2007, that Father not have contact with Mother, his contacts with her were apparent when she gave birth to his child in September 2008. There is also evidence that Father transported Mother to visits with the minors. As time went by, he repeatedly came to the agency where she was attending classes. Mother reported that twice she saw him there in his car. To her credit, she did not permit him to speak with her. The agency reported that a man came there asking questions about Mother’s schedule and her therapist. Father’s explanation for being at the agency (that he just wanted to talk with Mother about reunifying) shows his little regard for court orders. There was no exception in the stay-away orders for situations when Father would want to speak with Mother about reunification.
Additionally, when he was asked at the December 2008 hearing whether he could accept Mother telling him she did not wish to reunify with him, his answer was that he could accept it and he would move to another state. Moving to another state is not the act of someone who wishes to reunify with his children. We also observe that by complaining to the social worker that he had lost three jobs because the children are in foster care, Father ignored the fact that they are in foster care because of his own domestic violence. These matters are further evidence that he had not made significant progress in resolving problems that led to the removal of the children from their home, and was not demonstrating a capacity and ability to complete his treatment plan and provide for the children’s safety and emotional well-being. Like the trial court, we observe that Father had failed to advance sufficiently even though he had several months of Voluntary Family Maintenance services before this case was instituted in court in September 2007.
Based on the day that the minors were detained by the court, the court determined that there could only be three more months of additional reunification services for the family and then the section 366.22 permanency review hearing would have to be held. (§ 366.21, subd. (g) (1).) In terminating Father’s reunification services, the trial court determined that with only three months to go, there was no substantial probability that the minors could be returned to Father’s care and safely maintained there prior to the section 366.22 hearing. Given the record in this case, we find no abuse of the court’s discretion when it terminated Father’s services. Although Father argues that the reports given to the social worker from his anger management and alcohol treatment programs were positive, the reports only reflect his ability to “talk the talk.” The record reflects his inability to “walk the walk.” Nor are we impressed by his argument that terminating his reunification services may have placed the children in harm’s way because he will continue his unmonitored visits with them but he will not be able to continue his programs without the financial help of the Department. That is not a consideration that the Legislature provided for in section 366.21, subdivision (g). Moreover, resumption of monitored visits for Father remains an option.
DISPOSITION
The order from which Father has appealed is affirmed.
We Concur: Klein, P. J. Aldrich, J.