Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD018193
ELIA, J.Petitioner K.E. challenges the orders of the juvenile court terminating his reunification services and setting a hearing under Welfare and Institutions Code section 366.26 for a permanent plan for Natalie E. We deny his petition for an extraordinary writ.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
Natalie was born in May 2007 to Ms. S. and petitioner, K.E. She tested positive for cocaine at birth and experienced problems due to Ms. S.'s drug use during the pregnancy. Because of Natalie's condition, and the admitted drug use of Ms. S. and petitioner, Natalie was placed in foster care. Her five-year-old half-brother Brandon was also placed in foster care. Natalie and Brandon were not placed together because Natalie needed a foster home that was experienced with drug-addicted babies.
Brandon was born during Ms. S.'s marriage to a man now deceased. Petitioner acted as a stepfather to Brandon.
The Santa Clara County Department of Family and Children's Services (Department) filed petitions under section 300 as to both children. On July 16, 2007, the juvenile court found the allegations of the petitions to be true. On August 6, 2007, the juvenile court ordered Natalie removed from her parents' care and ordered reunification services including drug testing and classes for both parents.
The status review report dated February 4, 2008, recommended continued reunification services for petitioner and Ms. S. Ms. S. had not adhered to her case plan. The report said that Ms. S. "is a good mother in many ways, but her substance [ab]use has placed the children in danger." Petitioner had been making "strong progress on his case plan services" but had only been sober for three months. The report noted that petitioner "has not worked due to his substance abuse, incarceration and treatment, but he has an income from his father and employer [D.] E[.]" Petitioner was purchasing a five-bedroom home to have space for Ms. S. and both children. Brandon, who is fluent in English and Farsi, had been placed with his maternal aunt. Natalie was still in a foster home.
D.E., Natalie's paternal grandfather, had asked for Natalie to be placed with him and his wife. In August 2007, the social worker had assessed their home but the grandparents "did not feel they could handle placement and that Brandon was too active causing the grandfather to have chest pains." D. proposed that Natalie be placed with him and that Ms. S. "provide care for the baby under the grandparents' supervision." By November 2007, "the grandparents decided that they could not provide the physical care for the child and were not willing to hire a care provider for her."
In the March 3, 2008, addendum report, the social worker said that she was "highly concerned about the current status of the parents' sobriety and reunification with the children." Petitioner had not been drug-testing and Ms. S. had tested positive for cocaine. Both petitioner and Ms. S. had missed many visits with Natalie. D. told the social worker about a possible relative placement for Natalie. The proposed placement was with a 20-year-old single mother with a one-year-old baby.
The April 14, 2008, updated status review report recommended terminating reunification services to Ms. S. and petitioner as to Natalie and setting a section 366.26 hearing for a permanent plan for Natalie. The report recommended continuing reunification services for Ms. S. as to Brandon. Brandon was living with his maternal aunt but plans were being made to place him with his maternal grandmother in Iran.
Neither petitioner nor Ms. S. had drug-tested, attended drug classes, or visited Natalie since early February. The proposed relative placements for Natalie had all been ruled out. D. had contacted the social worker and wanted to talk about having Natalie placed with him and having him hire a nanny. He was denied caregiver home approval and filed a grievance to challenge this determination. A grievance hearing was held and the decision to deny placement was upheld. D. then told the social worker that he wanted to adopt Natalie but have her placed with another relative. Another woman, who identified herself as D.'s daughter, said she was willing to adopt Natalie. During the approval process, it was discovered that she was not actually D.'s biological daughter and thus, she could not be considered for a relative placement. Natalie was in a foster home that was willing to adopt her. The foster mother was "Iranian/Persian."
On April 14, 2008, the juvenile court held a contested review hearing. The Department submitted the matter on the reports. Counsel for petitioner cross-examined the social worker who had prepared the reports. At the conclusion of the hearing, the juvenile court terminated reunification services for petitioner and Ms. S. as to Natalie. The court continued Brandon's case to a 12-month review hearing.
Ms. S. left the courtroom during this testimony saying, "If I don't have my . . . daughter I am not going to have my son. If you don't give me my kid right now, today, I am not going to have none of them."
Discussion
Supplemental Report
At the April 14, 2008, hearing, the court had before it three reports. One was the February 4 status review report, one was the March 3 addendum, and the third was an April 14 addendum. The Department submitted its case on those reports. Petitioner complains, "The Supplemental Report filed prior to the review hearing was not provided to counsel for petitioner at least ten days prior to the hearing." The Department responds, "The father did not object to submission of the April 14, 2008, report and has waived the issue of its timeliness."
Section 366.21, subdivision (c) provides that status review reports "shall" be filed 10 days before the hearing. Here, it is undisputed that the April 14 addendum was served on the parties on the day of the hearing. Natalie's mother, Ms. S., was present as was petitioner's father, Natalie's grandfather. Petitioner was not present. Had counsel asked for a continuance, the court could have, within its discretion, granted one. However, at the hearing, counsel for petitioner announced that he was ready for trial. He stated that he wished to cross-examine the social worker who had prepared the reports and said, "I have just been given the report for today and I haven't reviewed it thoroughly but we will have to proceed that way." In this court, counsel states, "Counsel went forward because the mother was present and counsel could not in good faith guarantee that [petitioner] would appear at a continued hearing." Counsel not only "went forward," he cross-examined the social worker, called D. to testify, and argued his case to the court. He frankly admitted to the court, "With [K.], the father, it's clear that he was on track previously and was making progress previously but he has admittedly, I cannot deny, fallen down." This is essentially what the April 14 addendum said as well. Counsel did not ask for a continuance upon receipt to the April 14 addendum, did not register surprise at the information contained in it, did not attempt to rebut or contest that information, and does not argue here that the late service of the addendum affected the outcome of the hearing by, for example, preventing him from introducing new or additional evidence to contradict the assertions in the report. Thus, even had a continuance been requested and granted, there is no probability of a different result.
Petitioner cites section 366.05, which provides in part, "Notwithstanding subdivision (c) of Section 366.21, in a county of the first class, any supplemental report filed in connection with a status review hearing held pursuant to subdivision (a) of Section 366 shall be provided to the parent or legal guardian and to counsel for the child at least 10 calendar days prior to the hearing. . . . The court shall grant a reasonable continuance, not to exceed 10 calendar days, upon request by any party or his or her counsel on the ground that the report was not provided at least 10 calendar days prior to the hearing as required by this section, unless the party or his or her counsel has expressly waived the requirement that the report be provided within the 10-day period or the court finds that the party's ability to proceed at the hearing is not prejudiced by the lack of timely service of the report. In making this determination, the court shall presume that a party is prejudiced by the lack of timely service of the report, and may find that the party is not prejudiced only by clear and convincing evidence to the contrary." Under Government Code sections 28020 and 28022, section 366.05 is not applicable to Santa Clara County.
Limits on Grandfather's Testimony
Petitioner contends, "The Trial Court limited . . . the testimony of the paternal grandfather, [D.]E., when objections were made by the County Counsel and the Deputy District Attorney."
Section 361.3 provides in part, "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." It appears that Natalie's grandparents were given preferential consideration and that other relatives suggested by D. were considered as well. At the outset of the hearing, the juvenile court questioned the social worker about the "361.3 assessment, where the social worker is supposed to lay out items A through H as to why the relative placement is not approved." The social worker pointed out to the court the portion of the April 14 report that dealt with relative placement and said, "I actually went to [D.]'s home at one point. He requested placement and then he decided not to have the child placed. It was a total of four times in between there I did go out to the home."
Counsel for petitioner asked the social worker, Regina Faridnia, whether she had explored with D. and his wife "the possibility of their taking custody of Natalie early in this case." Faridnia answered "yes" and counsel asked whether they felt "that they had some physical limitations that would prevent them taking custody?" Counsel for the Department objected that placement considerations were not relevant to the issue of termination of reunification services. Counsel for petitioner argued that he was "trying to show" that "today's hearing should not be set for a .26 hearing because of the efforts to have a guardianship appointed." The court said, "I will allow limited questioning."
Faridnia testified that D. had explained to her that although he would not be Natalie's caregiver, "he would like to have her brought to him on a daily basis but that she would not be living with him." She described D. and his wife as "very loving people" but said that they had expressed that they were not able to care for Natalie. Faridnia testified that D. had expressed frustration and sadness that "the parents aren't doing well right now."
The court took a recess and had a discussion in chambers. The court resumed the hearing saying "I was concerned about the time line regarding the placement disruption and notification to the family. . . And there seems to be agreement on what has occurred in the last few months with regard to this placement issue."
When counsel called D. as a witness, counsel said that D. would testify that he would not want to see the termination of reunification services and about his efforts to secure a placement for Natalie with a family member. Counsel for the Department objected on relevance grounds and the court said that D. could testify on the "limited issues" of whether "the parents had made progress in their case plan." D. then testified as to his efforts to help Ms. S. and petitioner complete their case plans, including buying them a house, supporting them, and giving them employment. He talked about his efforts to assist Ms. S. and to encourage her and petitioner to stop drug use. He acknowledged that neither petitioner nor Ms. S. were presently able to care for Natalie.
After his testimony, D. was permitted by the court to make further statements about his plans for Natalie. He said, "I love Natalie and I want her to be in the family. I will find her a caregiver." He expressed his frustration with the Department's position that the young woman he had suggested as a caregiver did not qualify for relative placement because she was not, in fact, related.
At the conclusion of the hearing, counsel for petitioner acknowledged that petitioner had not met the goals of his reunification services. Counsel asked the court to continue reunification services "to keep this door open" so that the grandparents could petition for guardianship of Natalie and "try to keep this child in this family." Although the juvenile court terminated reunification services for petitioner and Ms. S. as to Natalie, the court observed that D. "is an amazing, loving, concerned and responsible grandparent" who had been "very helpful and supportive."
Petitioner argues, "The efforts of the paternal grandfather to keep Natalie close to the family are relevant to both the issue of reunification and placement. When the social worker admitted that a placement decision had already been made, the door was open for the court to consider testimony on this issue. It is a legal fiction to pretend that the hearing on terminating reunification services was only a hearing on that issue. The objections of the County Counsel and the District Attorney, to limit the testimony of a relative at such a hearing is questionable. It is too partisan." Petitioner cites to cases discussing the importance of a grandparent's role in a child's life, such as Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, in which the court held that a grandparent had standing to seek appellate review of the denial of her request to place the children with her under section 361.3.
We are mindful of the importance of grandparents in a child's life, as the trial court appears to have been in permitting D. to make various lengthy statements to the court during the proceedings and permitting counsel for petitioner to outline for the court the plan to have Natalie's grandparents declared her guardians. Although limitations were placed on the scope of D.'s testimony to the court, in his statements to the court he fully explained his complaints about the Department's denial of his relative placement suggestions. The reports contained information concerning the grandparents' attempts to arrange for placement of Natalie within the family. The juvenile court, despite terminating reunification services, told D. that the court remained "hopeful that your family will be able to pull it together." However, the issue at this hearing was whether petitioner and Ms. S. had made progress in their reunification services. It was within the trial court's discretion to limit the scope of D.'s testimony to that issue.
Sibling Issue
Petitioner contends, "The Court should have continued the reunification services to coincide with the brother's." Petitioner argues, "The court should also have kept reunification open for Natalie for as long as for Brandon."
Section 361.5, subdivision (a)(1) provides for 12 months of reunification services as to Brandon because he was over the age of three at the time this dependency was initiated. In Natalie's case, however, subdivision (a)(2) provides, "For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care."
"Prior to setting a section 366.26 hearing, a court must determine, inter alia, that the dependent [child] will suffer detriment if returned to the physical custody of the parent. (§ 366.21.) Our review of this determination is . . . a review of the record for substantial evidence in support of the finding." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Section 366.21, subdivision (e) provides in part, "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." Petitioner does not contend here, nor did he in the trial court, that he participated in or made substantive progress in the treatment programs the court ordered as part of his reunification services. The record below provides substantial evidence supporting the juvenile court's findings.
Guardianship Petition in Probate Court
Petitioner "also requests a stay of any hearing or rehearing to allow the paternal grandparents to become guardians of Natalie." Attached to the writ petition is a "Declaration of Court Investigator" which states that D. and N.E., paternal grandparents of Natalie, have filed a petition for appointment of guardian with a hearing date of July 8, 2008. The court investigator declares, "Given the current status of the minor as a dependent, the Juvenile Court clearly has jurisdiction and there is no basis for involvement by the Probate Court. It is respectfully recommended, therefore, that the matter at hand be moved off calendar. The child's caseworker and the petitioners' attorney of record have been advised of my recommendation." Under these circumstances, we deny petitioner's request for a stay of the juvenile court proceedings.
Disposition
The petition for an extraordinary writ is denied.
WE CONCUR: RUSHING, P. J., PREMO, J.