Opinion
B196274
4-23-2007
JESUS P., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Party in Interest.
Law Firm of Timothy Martella and Eliot Lee Grossman for Petitioner. No appearance for Respondent. Raymond G. Fortner, County Counsel, Larry Cory, Assistant Deputy Counsel, Liana Serobian, Senior Associate County Counsel, for Real Parties in Interest. Childrens Law Center of Los Angeles, Jenny Cheung and David Estep for Minor.
NOT TO BE PUBLISHED
Petitioner Jesus P. seeks reversal of the juvenile courts order terminating reunification services and setting the matter for a hearing under Welfare and Institutions Code section 366.26. Real party Department of Children and Family Services (DCFS), joined by the attorney for the minor Angel P., opposes the petition. We conclude that substantial evidence supports the courts order and deny the writ.
All statutory references herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Pre-Petition
Angel first came to the attention of DCFS in December 2004, after her mother abandoned Angel and an older sibling, leaving them with their maternal grandmother. DCFS discovered that Angel, who was 12 years old at the time, had an untreated medical condition, had never been enrolled in school, and could not read, write, or perform basic arithmetic.
Petitioner was not the father of the older sibling. Angels mother is not a party to this writ proceeding.
According to medical reports, Angels right foot was smaller than her left foot and was painful to walk on.
DCFS attempted to resolve the situation informally through family preservation. The mother agreed to have Angels medical condition treated and to enroll her in school. By February 2005, the mother and older sibling had disappeared, again leaving Angel with her maternal grandmother. At approximately the same time, petitioner initiated several calls to the caseworker to report that Angel was still not attending school. He claimed to have been providing financial support for Angel since her birth, but said he was never able to see her.
In May 2005, the caseworker held a safety conference with concerned family members. From this conference, a plan emerged under which petitioner was to have custody of Angel during the week to ensure that she went to school, and the maternal grandmother was to have custody on weekends.
Almost immediately after institution of the plan, problems arose. Petitioner reported that Angel would not obey him or even speak to him, and that her behavior was disrupting his new family, which included several small children. On the positive side, he had succeeded in enrolling her in school. The school offered to provide a counselor to address "low self-esteem [and] issues with mother and father," but petitioner failed to complete and sign the necessary paperwork.
In August 2005, the caseworker learned that, with petitioners acquiescence, Angel had returned to live full time with her maternal grandmother. When the caseworker attempted to contact the maternal grandmother, she learned that Angel had been taken on a vacation to Mexico just when she was scheduled to begin a new school term. At that point, the caseworker decided to file a formal petition.
Detention and Petition
In October 2005, Angel was detained and placed in the custody of a maternal uncle. She articulated a wish to be returned to her maternal grandmothers custody, but expressed no similar desire with respect to petitioner. To the contrary, she affirmatively said she did not want to live with him. Petitioner told the caseworker it was "a relief" to have Angel living with her grandmother because "she was causing fights between [petitioner and his wife]" and "teaching [their children] bad word[s] and talking about sex." He agreed that legal guardianship with the grandmother was "the appropriate plan" for Angel. Just before the jurisdictional and dispositional hearing, petitioner reiterated the problems he and his wife had had with Angel, but said they were "interested" in having her back in their home.
At the November 2005 jurisdictional and dispositional hearing, the court found that Angels mothers whereabouts were unknown and that she had left Angel "without making a plan for [her] ongoing care and supervision" and "failed to provide [her] with the basic necessities of life." The sustained petition also stated that the mother failed to comply with the voluntary family maintenance plan and failed to enroll Angel in school or ensure her regular school attendance. Although there were no findings with respect to petitioner, the court ordered DCFS to provide reunification services. The court granted unmonitored visitation for petitioner. Additionally, petitioner was ordered to participate in conjoint counseling with Angel. The court also appointed a special advocate for Angel.
The court appointed special advocate is sometimes referred to by the acronym "CASA."
Six-Month Review
In June 2006, the special advocate reported that Angel had maintained regular attendance at school since fall and was receiving after-school and weekend tutoring. She was scheduled for reconstructive surgery on her foot. She was beginning to read at the first grade level, but did not want to remain in the special education class where she had been temporarily placed. Angel, who was still in the custody of the maternal uncle, continued to express the desire to return to her maternal grandmother. Other family members, including the grandmother, agreed with that goal.
The special advocate apparently did not interview petitioner.
In the report filed June 7, 2006, the caseworker stated that petitioner had failed to visit Angel or to call her during the entire six-month period prior to the review hearing. He told the caseworker that this was because he believed Angel would not speak to him. The report indicated that the caseworker had been in contact with petitioner once a month from November 2005 through May 2006. The caseworker urged him to make an attempt to take Angel out on the weekend and call her. Petitioner did not act on this advice, but told the caseworker he was willing to have conjoint counseling with Angel as long as the sessions took place on weekends. The caseworker and other family members "urge[d] Angel to try at least one session," but she refused. The caseworker confirmed that Angel wanted to live with her maternal grandmother, not petitioner. Petitioner told the caseworker he had no objection to placing Angel in the custody of her maternal grandmother.
At the June 7, 2006 six-month review hearing, the court found that continued jurisdiction was necessary, that return to the physical custody of the parents would create a substantial risk of detriment to Angel, that reasonable services had been provided, that DCFS had "complied with the case plan by making reasonable efforts to enable the childs safe return home," and that the likely date by which Angel could either be returned to the home or placed in another permanent plan was December 6, 2006.
Real partys brief states, and petitioner does not dispute, that petitioner was notified of, but did not attend the six-month review hearing.
12-Month Review
In the report filed December 6, 2006, the caseworker stated that Angel had been returned to her maternal grandmothers care. She was doing well and had begun calling her grandmother "Ama," which means mother. Reconstructive surgery had been performed on her foot in July. Other than going to the hospital to sign the necessary forms, petitioner had not visited Angel or had further contact with her. Angel reiterated that she wished to live with her grandmother, not petitioner. Angel also informed the caseworker that she was interested in trying joint therapy with petitioner. However, the caseworker was unable to contact him, and he had not been in contact with Angel since her decision. The report indicated the last contact the caseworker had with petitioner was on July 17, 2006. Subsequently, the caseworker attempted to visit petitioner in his home in October and sent letters and placed calls to him in August, September, and October, and November. She received no response.
Elsewhere in the report, the caseworker stated that these conversations took place "[i]n the last two home visits." The last two home visits with Angel and her grandmother prior to the 12-month review hearing were on October 12 and November 1, 2006. We therefore presume, as petitioner does, that these conversations occurred on those dates.
Petitioner points out that a document entitled "Delivered Service Log" indicates the caseworker spoke with him on November 7, 2006. The Delivered Service Log appears to be a computer-generated document which lists mail, telephone, and in-person contacts between the case worker and persons involved in the case. Some of the entries describe the status of these contacts as "completed" and others describe the status as "attempted." The entry for the November 7 telephone call to petitioner states "completed." This call is not reflected in the written report. In addition, the Delivered Service Log indicates that a letter was sent to petitioner on November 25, 2006. No such letter is mentioned in the written report.
During this period, Angel was attending school consistently, but performing well below grade level. She was also attending weekly individual therapy sessions. The therapist described her as a "reluctant participant." Angel was given a psychological evaluation in July 2006. The psychologist described her as suffering from "Disruptive Disorder NOS, based on her expression of anger and frustration through tantrums, crying, screaming and throwing herself on the floor." The psychologist was unable to ascertain her mental acuity because of her "lack of exposure to normal educational experiences."
At the 12-month review hearing, continued to January 17, 2007 from its original date in December 2006, counsel for petitioner asked the court to continue reunification services until the statutorily mandated time for the 18-month hearing, approximately three months in the future. Having heard that Angel had finally expressed an interest in seeing him, petitioner sought this additional time to reestablish contact with her. Counsel stated that petitioner had been unable to take advantage of reunification services up to that point because Angel did not want to see him and the caseworkers had not explained the plan clearly enough "to where he knew exactly all the things that he had available to him and what he could do." The court indicated awareness of the fact that Angel had refused conjoint counseling, but asked why petitioner had not maintained visitation. Counsel said that Angels grandmother had "ma[de] excuses" on the days petitioner tried to see the child.
In response to petitioners request for additional time, the special advocate expressed concern that Angel would be traumatized if she were led to expect contact with petitioner that failed to occur. DCFS pointed out that only 75 days remained before the statutorily required 18-month hearing and contended "there [was] no way within the 75 days that remain in the statutory period that [petitioner] could develop the sort of relationship that would be necessary for Angel to be placed back into his custody."
After hearing argument, the court terminated reunification services, finding by clear and convincing evidence that reasonable efforts had been made towards reunification and finding by a preponderance of the evidence no substantial likelihood that Angel could be returned to petitioner by the 18-month date. The court found that petitioner had not had any visitation with Angel during the first six-month period of detention and that his visitation had been "inconsistent" since. As a result, "he is basically a stranger to her." The court further specifically found the evidence "clear" that "the [case worker] ha[d] on numerous occasions attempted to contact and speak with [petitioner] both by phone and in person and by letter." The court set a section 366.26 hearing for April 27, 2007. Petitioner filed a notice of intent to file a writ petition and this petition followed.
DISCUSSION
I
Standard of Review
Petitioner contends substantial evidence does not support the juvenile courts finding that he was offered reasonable reunification services. "When a finding that reunification services were adequate is challenged on appeal, we review it for substantial evidence." (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We affirm the courts decision if an examination of the record, reviewed as a whole and in a light most favorable to the order, discloses evidence that is "`reasonable, credible and of solid value" which would allow a reasonable trier of fact to make the pertinent finding. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080, quoting In re Angelia P. (1981) 28 Cal.3d 908, 924.) We do not reweigh the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) When applying the substantial evidence test to a trial court finding made under a clear and convincing standard, "we bear in mind the heightened burden of proof." (In re Alvin R., supra, 108 Cal.App.4th at p. 971.)
II
Statutory Reunification Period
The governing statutes require DCFS to provide reunification services to parents whenever a child is removed from their custody. (§ 361.5, subd. (a).) The reunification plan "must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile courts jurisdictional finding. [Citation.]" (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) For a child over the age of three, "court-ordered services shall not exceed a period of 12 months from the date the child entered foster care . . . ." (§ 361.5, subd. (a)(1).) An exception permits the court to extend services up to a maximum of 18 months "if it can be shown, at the [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." (Ibid.) A court may order services for this additional period "only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period or that reasonable services have not been provided to the parent . . . ." (Ibid.)
Section 366.21, governing review hearings, covers some of the same ground. It provides that at the 12-month review hearing, the court is required to order "return of the child to the physical custody of his or her parent. . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f).) The court is also to "determine whether reasonable services that were designed to aid the parent . . . to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent" and "consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided . . . ." (Ibid.)
III
Reasonableness of Reunification Services
"The adequacy of reunification plans and the reasonableness of the DCFSs efforts are judged according to the circumstances of each case. [Citation.] The DCFS is required to make a good faith effort to develop and implement a family reunification plan. [Citation.] `[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . . [Citation.]" (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555, italics omitted.)
Here, petitioner contends that the services offered were inadequate because the caseworker "provided no referrals of counseling, therapy or other resources to [petitioner] to assist him in dealing with Angels refusal to participate in conjoint counseling or even to speak to him" and "did not advise Angels therapist or psychologist that she had been ordered to participate in conjoint counseling with [petitioner], but refused to do so." Petitioner also faults the caseworker for "fail[ing] to maintain reasonable contact with [him] by failing to inform him until two weeks before the 12-month review hearing that Angel had agreed over three months earlier to participate in conjoint counseling and reunite with him, inexplicably failing to convey this information in her last phone call to [petitioner] on November 7 . . . ." and "misrepresent[ing] [the] facts to the court in her last Status Review Report and Case Plan Update, failing to mention her November 7 telephone conversation with [petitioner] and erroneously stating that [petitioner] had failed to respond to her (nonexistent) attempts to contact him thereafter." (Emphasis omitted.)
The bulk of petitioners contentions require that we either engage in independent factfinding or disregard the record entirely. The contention that the caseworker did not attempt to contact petitioner after November 7, 2006 is belied by the caseworkers December 6 report — the final report before the 12-month review hearing — which stated that she sent petitioner a letter on November 27. Petitioners further allegation — that the caseworker spoke to him on November 7, failed to inform him about Angels willingness to try conjoint counseling, and subsequently misrepresented the facts by saying nothing about this call in her December 6 report — is based on his interpretation of the documentary evidence. In the December 6 report, the caseworker represented that her last contact with petitioner was in July 2006, but the Delivered Service Log reflected a completed telephone call on November 7. However, at no time did petitioners counsel raise the issue or suggest the court resolve any discrepancy between the report and the log. More important, the record is uncontradicted that petitioners contacts with Angel had been inconsistent, and that the caseworker had made numerous and repeated attempts to contact him.
The letter was also reflected in the document entitled "Delivered Service Log." Moreover, the Delivered Service Log on which petitioner seeks to rely for support of the November 7 telephone call, referenced another letter sent to petitioner on November 25.
Similarly, petitioners contention that the caseworker "did not advise Angels therapist or psychologist that she had been ordered to participate in conjoint counseling with [petitioner], but refused to do so" asks us to speculate about matters not in the record. It was petitioners responsibility to present evidence in support of this allegation if he wished to rely on it.
The only settled fact on which petitioner relies is that he was not himself referred or ordered to counseling. Petitioner contends that a qualified counselor or psychologist "could have provided [p]etitioner with . . . strategies and skills to open communication with his daughter and overcome her resistance to conjoint therapy," and that such counseling was necessary "to assist him in dealing with Angels refusal to participate in conjoint counseling or even to speak to him."
"In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services 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.) Petitioner acknowledges that services are reasonable as long as DCFS identifies the problems leading to the loss of custody, offers services designed to remedy those problems, maintains reasonable contact with the parents, and makes reasonable efforts to assist the parents to comply. (See Armando L. v. Superior Court, supra, 36 Cal.App.4th at pp. 554-555; In re Dino E., supra, 6 Cal.App.4th at p. 1777.) To support his contention that services were unreasonable, petitioner misidentifies the problems behind the detention, claiming that "the problems leading to [petitioners] losing custody were that [Angel] refused to speak to him or obey him, disrespected him, and engaged in other negative behavior during the three months that she was . . . in his household after her mother abandoned her." This is incorrect. At the time of DCFSs initial intervention in December 2004, Angel was not in petitioners custody and had apparently never lived with him. DCFS intervened because Angel was abandoned by the custodial parent — her mother — had never been enrolled in school, and suffered from an untreated medical condition. Angel was placed with petitioner in order to avoid formal intervention. During that period, the school offered to provide counseling to address, among other things, Angels relationship with her parents, but petitioner failed to complete and sign the paperwork. Within three months, petitioner voluntarily relinquished custody to the maternal grandmother, with whom Angel was residing at the time of the detention. The primary basis for the detention was the failure of the maternal grandmother to ensure that Angel was attending school. Although petitioner expressed an early interest in obtaining custody of his daughter and interested parents must always be considered for placement, as early as June 2006, the expressed goal of every member of Angels family — including petitioner — was to see Angel safely in the custody of her maternal grandmother.
Even assuming that placement of Angel in petitioners custody at the end of the reunification period was an alternate goal of the plan, the services offered were adequate. The disposition gave petitioner the right to unlimited, unmonitored visitation. Had he taken advantage of this right, he might have built a relationship with his daughter and gained her trust. Instead, he failed to visit Angel at all during the first six months of detention. During the second six months, the only confirmed visitation took place on the first day of Angels hospitalization for reconstructive surgery on her foot. Although Angel ultimately expressed an interest in seeing him and participating in conjoint counseling, petitioner had done nothing during the entire year after detention to foster even a minimal parent/child relationship. As the court commented at the 12-month review hearing, "[petitioner] was present [at the jurisdictional and dispositional hearing] and actually signed the case dispo[sition] plan[,] [s]o he was aware on that date what he was supposed to do. ¶ It wasnt too much. It was to visit and have conjoint counseling." After focusing on petitioners failure to visit Angel during the first six months, the court further stated: "Perhaps if [he] had made a better effort and been consistent in visiting his daughter at an earlier date, she may have perhaps been more open to conjoint counseling. But he is basically a stranger to her."
See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1017 (court may terminate reunification services at the six-month hearing where parent fails to visit or contact the child during the period).
At the 12-month hearing, counsel represented that petitioner "attempted — he saw her on Christmas." There is no indication that petitioner reported this visit to DCFS.
Petitioners brief lists a number of practical steps the caseworker might have taken to force the issue of conjoint counseling — e.g., "setting an appointment for Angel at the [caseworkers] office and inviting [petitioner] to meet them there . . . ; helping [p]etitioner to understand why Angel is hostile to him and suggesting strategies to open positive communication with her;" or "hav[ing] the judge emphasize that she had been ordered to participate in conjoint counseling . . . and is in contempt of that order." Petitioner overlooks that he ignored the very practical advice the caseworker did give — to visit and call Angel regularly. Clearly, the problem was not the caseworkers failure to advise, but petitioners failure to act.
Before a parent can be heard to complain about the adequacy of reunification services offered to repair the damaged parent/child relationship, there must be evidence that the parent took advantage of the services offered. (See In re Alvin R., supra, 108 Cal.App.4th 962 [after abusive father completed parenting course and underwent individual counseling, juvenile court and caseworker erred in permitting child to refuse visitation and allowing guardian to place obstacles in the way of conjoint counseling].) "Reunification services are voluntary, . . . and an unwilling or indifferent parent cannot be forced to comply with them." (In re Mario C. (1990) 226 Cal.App.3d 599, 604.) DCFS is under no obligation to "take [the parent] by the hand or lead him step-by-step along the way." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1166-1167.) Moreover, a guiding principle behind the dependency statutes is "a dependent childs `need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (In re Christina A. (2001) 91 Cal.App.4th 1153, 1162, quoting § 352, subd. (a); see In re Marilyn H. (1993) 5 Cal.4th 295, 308 [noting that the Legislature in enacting the dependency statutes "recognized that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate"].) Petitioner, having failed to develop a relationship with his daughter in the first 12 years of her life or take advantage of the additional year provided by DCFS, was in no position to contend that an additional 75 days would have made a decisive difference. The courts decision to spare Angel additional instability and emotional turmoil was fully supported by the record.
DISPOSITION
The writ petition is denied.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.