Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Referee, No. JD119595-00
David G. Duket for Petitioner.
No appearance for Respondent.
Theresa A. Goldner, County Counsel, and Judith Denny, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Gomes, Acting P.J., Hill, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter K. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In December 2008, then six-year-old K. was removed along with her two half-sisters, nine-year-old M. and three-year-old B., from the custody of their mother Amy because of Amy’s drug abuse. Amy identified petitioner as K.’s father and said she was in the process of divorcing him. She did not know his whereabouts and said he was not supposed to have contact with her.
Amy did not file a writ petition.
The juvenile court ordered the children detained and the Kern County Department of Human Services (department) placed them with their maternal grandparents. The court set the jurisdictional/dispositional hearing for January 14, 2009.
Meanwhile, the department located petitioner in North Carolina. He acknowledged being K.’s father and admitted having an extensive criminal history, which included domestic violence against Amy and driving under the influence of alcohol. However, he said he had completely changed and had not consumed alcohol since December 2007. He said he attended Alcoholic Anonymous (AA) meetings four times a week. He said his two sons from another relationship were living with him, he coached a youth soccer team, and attended church. He said he wanted to visit K. and establish a relationship with her. He said he had not seen her for three years but wrote to her and sent her gifts.
The department researched the family’s child protective history and discovered that Child Protective Services (CPS) in Florida monitored the family from 2004 to 2008. During that time, the family consisted of petitioner, Amy, K., M., B., and petitioner’s two minor sons. Petitioner exposed the children to his alcohol and cocaine abuse and family violence while Amy exposed them to her drug use and sexual activity with other men. She also left the children alone while she worked. Petitioner reportedly had 24 arrests for a variety of charges including battery, domestic violence, burglary, and attempt to purchase cocaine. In 2006 and 2007, CPS investigated allegations of sexual molestation and physical abuse. In 2008, M. found Amy’s boyfriend, B.’s father, on the bathroom floor dead from a drug overdose. Following that incident, Amy moved with M., K., and B. to California to be near the children’s maternal grandparents.
In late December 2008, at an ex parte hearing, the juvenile court deemed petitioner K.’s biological father and granted him reasonable telephonic contact until the hearing set for January 2009. The court also advised petitioner’s attorney that petitioner could have a one-hour supervised visit if he appeared for the jurisdictional hearing.
On January 14, 2009, the juvenile court conducted the jurisdictional/dispositional hearing. Petitioner traveled to California for the hearing. Prior to the hearing, the social worker arranged to meet with petitioner to schedule a visit. At the appointed time, the social worker heard what sounded like a person stumbling while descending the stairs. It turned out to be petitioner who appeared intoxicated and smelled of alcohol. He denied drinking any alcohol and provided a urine sample for testing. The sample yielded the presence of ethanol.
On January 14, 2009, the juvenile court adjudged M., K., and B. dependents of the court. The court also ordered K. removed from Amy’s custody and ordered Amy to participate in family reunification services. Amy’s attorney, specially appearing for petitioner’s attorney, advised the court that petitioner planned to remain in California for a month and requested supervised visitation. The juvenile court ordered two hours of supervised visitation weekly. Amy’s attorney also informed the court that petitioner was requesting placement and asked the court to continue the dispositional phase of the hearing so that his court-appointed attorney could make the appearance. The court set the six-month review hearing as to Amy for July 14, 2009, and set a jurisdictional/ dispositional hearing as to petitioner for January 26, 2009.
Since M. and B. are not the subjects of this writ petition, they will be referred to hereafter only where relevant to K.’s case.
Following the January 14, 2009, hearing, petitioner left before the social worker was able to schedule a visit. Over the next several days, the social worker arranged for the maternal grandparents to transport K. for a visit on January 17. Petitioner was given the time and location and stated he would be there. However, he failed to show up for the visit. Four days later, petitioner contacted the social worker and stated he had to return unexpectedly to North Carolina because he was having seizures. He said he had to be hospitalized and had just been discharged from the hospital. The social worker told petitioner she was concerned about his behavior on the day of the hearing and asked when he last drank alcohol. He admitted drinking alcohol on the flight to California.
On January 26, 2009, the juvenile court conducted an uncontested jurisdictional/ dispositional hearing as to petitioner who did not personally appear. The juvenile court denied petitioner’s request for placement and ordered reunification services for him. Specifically, the court ordered petitioner to participate in substance abuse counseling and submit to random substance abuse testing. The court also ordered reasonable, monitored weekly telephonic contact, and monthly supervised visitation for four hours. The court set the six-month review hearing for July 14, 2009.
By March 2009, petitioner had completed a course in alcohol education as well as several other courses not ordered by the court. In addition, he attended 20 hours of AA meetings. He also visited K. monthly.
In May 2009, petitioner filed a request for an extended visit with K. in North Carolina before the July 14 hearing and an evaluation of his home for possible placement of K. with him. At an ex parte hearing in June 2009, the juvenile court denied petitioner’s request for an extended visit and authorized the department to initiate a request for the home study through the state of North Carolina.
In its report for the six-month review hearing, the department informed the court that Amy was not complying with her court-ordered services and visited K. only once during the review period. The department reported petitioner had 12 hours of outpatient treatment to complete to meet that objective and that he missed approximately half of his drug tests. The supervising social worker reported that he arranged telephonic visitation between petitioner and K. and that K. was unresponsive to petitioner. K. was similarly unresponsive during their in-person supervised visitation, except on one occasion when petitioner’s sons were also present.
The report also described petitioner’s incapacitated state during his June 27, 2009, visit. Sensing he was inebriated, the social worker asked him to provide a urine sample. Petitioner was so intoxicated he could not locate the toilet in the bathroom. He first walked to the sink and then to the wall, which he tried to open. After the social worker directed petitioner to the toilet, petitioner gave the social worker an empty specimen cup stating he had urinated. He did this four more times and then walked out of the bathroom with his pants unzipped and his genitals exposed. The social worker told petitioner he had not urinated and that he could not exit the bathroom in that condition. Petitioner, unable to stand, leaned against the wall and rocked back and forth talking to himself. Petitioner repeatedly denied drinking alcohol but finally admitted drinking on the flight to California. After another attempt to urinate in the sink, petitioner finally managed to pour some urine into the specimen cup. The social worker cancelled the visit and petitioner walked across the street to a residence and tried to enter the home. He was arrested for public intoxication.
In its report for the six-month review hearing, the department also reported that K. was in first grade and performing at grade level. In addition, K.’s maternal grandmother arranged for K. to participate in individual therapy, which she began in May 2009.
On July 14, 2009, at the six-month review hearing, the juvenile court found the department provided reasonable services and ordered services to continue to the 12-month review hearing, which it set for January 14, 2010. During the hearing, minors’ counsel advised the court that K. no longer wanted to visit petitioner. The court ordered that the existing visitation order remain in effect but ordered individual counseling for K. to address her relationship with petitioner.
At the end of July 2009, the department received a letter from the social services department in the county where petitioner resides in North Carolina stating it did not recommend placing K. with petitioner because of his criminal history, including a arrest in June 2009 for concealing a weapon and resisting an officer, and information received from the department in Kern County.
In October 2009, the juvenile court conducted a hearing on petitioner’s request to visit K. twice a month in California. The hearing was also to address petitioner’s request for the home evaluation from North Carolina. The court declined to issue any orders with respect to the home evaluation. The court also inquired about the individual counseling it previously ordered. Minors’ counsel stated K. had had four sessions with the counselor but did not want to speak to petitioner by telephone or allow visits to take place without her grandparents present. The court also declined to modify the visitation order without further information and asked the department to consult with K.’s counselor about K.’s progress.
In its report for the 12-month review hearing, the department reported that Amy made no progress in her court-ordered services, continued to test positive for drugs, and was incarcerated. It reported petitioner completed 40 hours of outpatient treatment in October 2009. However, he missed eight drug tests between July and November 2009. He tested negative five times in October through mid-November 2009 but tested positive for cocaine in late November 2009 at a level confirmed to be strong. Despite the social worker’s urging, petitioner did not reenter substance abuse counseling. In December 2009, petitioner was convicted for driving under the influence and placed on probation.
The department further reported petitioner visited K. monthly and spoke to her by telephone on September 17, September 28, and November 11. However, the social worker attempted unsuccessfully to arrange telephonic visitation on August 13, August 19, August 25, and September 9. In addition, K.’s maternal grandparents were willing to adopt K., M., and B. and their home had been approved. The department recommended the juvenile court terminate petitioner and Amy’s reunification services.
The 12-month review hearing, originally set for January 14, 2010, was continued to February 25, 2010. On the day before the hearing, the department filed a supplemental report, informing the juvenile court that petitioner missed drug tests in January through February 2010, resulting in presumptively positive test results. The department also provided a detailed description of petitioner and K.’s in-person and telephonic visitation during September through December 2009.
On September 17, 2009, petitioner and K. spoke on the telephone monitored by the social worker. Petitioner told K. he missed and loved her very much. K. said she did not want to talk and hung up the phone. Two days later, petitioner flew to California for their four-hour visit. During that time, the social worker attempted to drug test petitioner three times. Each time, petitioner said he would test and stood in the bathroom only to announce after a few minutes that he could not provide a urine sample. K. and petitioner played card games, kicked a soccer ball, put a puzzle together, and talked on the couch. At one point, she rested her legs on petitioner’s lap.
On September 28, 2009, petitioner and K. spoke by telephone. Petitioner asked K. how she was doing. She said “Good.” He asked about school and she did not answer. He said he had a good visit with her. She did not respond. He asked if she wanted to talk to his sons. She said “No.” K. told petitioner she did not want to talk on the telephone. He told her he loved her and had been thinking of her. She hung up.
On October 24, 2009, petitioner and K. played as they had on prior visits. Petitioner told the social worker that he completed alcohol counseling and gave the social worker his certificate of completion. He also stated he completed a week of inpatient drug classes. Petitioner drug tested for the social worker and at the end of the visit he gave K. a hug and told her he loved her. K. did not say anything but smiled.
On November 11, 2009, K. stated she did not want to talk to petitioner on the telephone. Petitioner told her that was okay and that he loved her and would see her on the weekend. K. did not respond.
On November 21, 2009, petitioner brought board games and snacks for K. After about 15 minutes, she warmed up to petitioner and began laughing and smiling and appeared to be enjoying herself. At the end of the visit, she became very quiet. She did not hug or kiss petitioner good-bye. Sometime during the visit, petitioner provided the urine sample that yielded a positive result for cocaine.
On December 19, 2009, petitioner brought his two sons to visit. K. played and laughed with them. The social worker told petitioner he tested positive for cocaine and encouraged him to enroll in substance abuse counseling.
In a letter dated February 23, 2010, K.’s therapist stated that K. had participated in bi-weekly individual and family therapy with her since April 2009 and had attended 13 sessions. She stated K. was not very talkative at first but had become more responsive. She said treatment focused on assisting K. with increasing the verbalization of thoughts and feelings, learning coping skills, and asserting herself.
On February 25, 2010, the juvenile court convened the 12-month review hearing. Petitioner was not present and his attorney told the court petitioner’s flight was cancelled the day before and he had to book another flight. However, petitioner’s attorney had not heard from petitioner since and asked the court to continue the hearing. The court continued the hearing to the next day but took K.’s testimony before adjourning the hearing.
K. testified she did not enjoy visiting petitioner because she thought of him as a “bad man.” She said she did not want to talk to petitioner on the telephone and wanted to stop visiting. She said she sometimes talked to her therapist about why she did not like petitioner.
The following day, the juvenile court convened the continued 12-month review hearing. Petitioner’s attorney told the court he spoke to petitioner’s father who believed petitioner mistakenly believed the court was going to set a new hearing date. Consequently, petitioner made no further attempt to fly to California. The court continued the hearing to early March 2010 but asked that petitioner provide a copy of his plane ticket to prove he intended to appear for the continued hearing.
By the date set for the continued 12-month review hearing, petitioner had not provided proof that he purchased a plane ticket. His attorney told the court petitioner sent him a text message stating he would appear for the hearing. On the morning of the hearing, petitioner sent his attorney a text message stating his son had to be admitted to the hospital the day before and that petitioner was still at the hospital with him. The juvenile court denied petitioner’s attorney’s request for a continuance and petitioner’s attorney called social worker Mr. Siripane to testify. Petitioner’s attorney sought to establish through Mr. Siripane’s testimony that the department failed to provide reasonable telephonic contact and to ensure that K. received counseling to address her relationship with petitioner.
Mr. Siripane testified that he was aware of the court’s order that K. receive counseling to address her relationship with petitioner but did not specifically arrange such counseling. He said he knew she was already in therapy. He said he spoke to K.’s therapist the week before the hearing and was told K. was just beginning to open up in therapy.
Mr. Siripane further testified that from July 2009 to January 2010 he attempted only seven times to arrange telephonic visitation mainly because petitioner did not answer the telephone. However, petitioner also refused to answer the telephone during dinner time and, on occasion, petitioner hung up. Further, on one occasion, Mr. Siripane succeeded in establishing telephonic contact with petitioner and asked him if he wanted to speak to K. They hung up so that Mr. Siripane could call back with K. on the line but petitioner did not answer the telephone. After mid-November 2009, Mr. Siripane made no further attempts to arrange telephonic visitation.
Under cross-examination by county counsel, Mr. Siripane conceded he did not make weekly attempts to arrange telephonic visitation. When asked if he attempted contact every other week, he stated “Yes, sometimes.” He said he and petitioner did not have an arranged telephone contact schedule. He often waited for petitioner to contact him because petitioner was so hard to reach. However, if he did not hear from petitioner, he would telephone him. Mr. Siripane also testified that he did not know if K.’s therapist knew she was supposed to address K.’s relationship with petitioner during K.’s therapy sessions.
Minors’ counsel called the maternal grandmother to testify. She said she told K.’s therapist that the court wanted her to address K.’s relationship with petitioner and K.’s feelings toward him during their therapy sessions. She said she sat in on the therapy sessions and that K. began to participate in therapy within the prior four sessions. Before that, K. did not talk or interact with the therapist.
The maternal grandmother also denied discouraging K. from visiting with petitioner or saying anything that would make K. believe petitioner is a bad man. However, she had heard M. say things to K. that would make K. think that of him.
Following argument, the juvenile court found the department provided reasonable services but that petitioner minimally availed himself of them and made minimal progress toward reunification with K. The court further found there was not a substantial probability K. would be returned to petitioner’s custody following another six months of services and ordered them terminated. Finally, the court set a section 366.26 hearing to implement a permanent plan and ordered petitioner’s monthly four-hour visits to continue but reduced telephonic visitation to once a month. This petition ensued.
DISCUSSION
Petitioner contends substantial evidence does not support the juvenile court’s finding that he received reasonable reunification services. He argues, as he did before the juvenile court, that the department failed to arrange weekly telephonic visitation and ensure that K.’s counseling addressed her relationship with him. Petitioner couches his arguments in the context of In re Alvin R. (2003) 108 Cal.App.4th 962 (Alvin R.), a case in which the appellate court concluded reasonable services were not provided to the appellant (father) and urges this court to reach the same conclusion under the facts of this case. We decline to do so.
The purpose of reunification services is to eliminate the conditions that led to removal of the minor from parental custody in order to permit the return of the minor to the parent. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) The supervising agency must offer the parent reasonable services, and the parent must make reasonable efforts to comply with the requirements of the reunification plan. (Cf. Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1014-1015 (Mark N.).) In evaluating reunification services, “[t]he 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. (1991) 2 Cal.App.4th 538, 547.) The juvenile court’s finding regarding the reasonableness of services will be upheld if it is supported by substantial evidence. (Mark N., supra, at p. 1010.)
In Alvin R., the juvenile court ordered 11-year-old Alvin to undergo weekly individual counseling with a licensed therapist and conjoint counseling with his father when Alvin’s therapist deemed it appropriate or upon court order, to be addressed after eight individual sessions. (Alvin R., supra, 108 Cal.App.4th, at pp. 966-967.) In the meantime, Alvin was to remain in the custody of his maternal grandmother and visits would be monitored with Alvin’s consent taken into consideration. (Id. at p. 967.) The court ordered the department to assist the grandmother in enrolling Alvin in therapy. (Ibid.) However, by the progress hearing three months later, Alvin had only participated in one counseling session and had not visited his father. (Ibid.) The department explained that the delay in starting counseling was attributable to the grandmother who wanted a therapist close to her home and that Alvin had not visited his father because Alvin did not feel ready. (Id. at pp. 967-968.) Alvin had been removed from his father’s custody in part because his father disciplined him by striking him with a belt. (Id. at p. 966.) The juvenile court ordered that conjoint counseling begin as soon as the therapist deemed it appropriate regardless of the number of individual sessions completed. (Id. at p. 968.) The social worker, apparently unaware of the court’s order, continued to believe Alvin had to complete eight individual therapy sessions before conjoint counseling could begin. (Ibid.) As a result, a year after Alvin’s detention, he and his father had only had a few visits and conjoint counseling had only just begun. (Id. at p. 969.) The juvenile court found the department provided reasonable services and ordered an additional six months of services. (Id. at p. 970.)
On review of the juvenile court’s reasonable services finding, the court in Alvin R. concluded that the juvenile court erred because conjoint therapy was key to reunification and the delay in initiating it was not reasonable. (Alvin R., supra, 108 Cal.App.4th, at pp. 972-973.) The court stated,
“We recognize that the mere fact that more services could have been provided does not render the Department’s efforts unreasonable. [Citation.] Here, however, reunification was not going to be accomplished without visitation, and the social worker knew that Alvin would be unlikely ever to consent to visitation without conjoint therapy. And conjoint therapy was not going to be accomplished unless some effort were made to get Alvin into individual therapy.” (Id. at p. 973.)
The Alvin R. court further stated there was no evidence the department made a good faith effort to bring the conjoint sessions about or assist the maternal grandmother in arranging them. (Ibid.)
Petitioner’s case is distinguishable from Alvin R. in a very significant way: visitation was not conditioned upon K. addressing her relationship with petitioner in counseling. Rather, visitation, both telephonic and in-person, and counseling were independent of each other and occurred simultaneously.
Petitioner’s case is further distinguishable from Alvin R. because, though the department could have done more, we cannot say on this record its efforts were unreasonable. First, petitioner had regular contact with K. through monthly visitation. Further, he had some telephonic visitation albeit not weekly as envisioned. However, petitioner is largely to blame. He often failed to answer the telephone and even hung up after contact was made. Granted, the social worker could have provided petitioner instruction on who would initiate telephone calls and when they would occur. However, there is no reason to believe petitioner would have abided by such instruction given other evidence of his irresponsible behavior.
Further, K.’s therapist knew the juvenile court wanted therapy to focus on K.’s relationship with petitioner and, according to K.’s testimony, they discussed petitioner in therapy and her feelings about him. Therefore, while the social worker cannot be credited for personally informing the therapist, therapy was nevertheless being provided in compliance with the court’s order.
We conclude, based on the foregoing, the department’s efforts to provide telephonic visitation and parent/child focused therapy were reasonable under the circumstances of this case. Accordingly, we affirm the juvenile court’s reasonable services finding and its orders terminating petitioner’s reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.