Opinion
B229273
08-15-2011
In re BRIAN P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHARLES B., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK54742)
APPEAL from a judgment of the Superior Court of Los Angeles County. David R. Fields, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
At the six-month review hearing, the juvenile court terminated family reunification services for Charles B. (Father), an incarcerated parent who will not be released from prison until 2014. (Welf. & Inst. Code, § 366.21, subd. (e).) The record supports the court's ruling. The child was declared a dependent of the court twice between the ages of one and six, due to Father's violence in the family home. While Father has partially complied with the case plan by participating in counseling and other programs during his incarceration, providing him with further services would be futile because of the length of his prison term and the unlikelihood that he could ever reunify with his traumatized son, who witnessed Father's violence and fears him.
Undesignated statutory references in this opinion are to the Welfare and Institutions Code.
FACTS
Father and Arlene P. (Mother) are the parents of Brian P., born in October 2003. When he was less than a year old, Brian was declared a dependent of the court because: Father's use of marijuana and alcohol rendered him incapable of providing regular care; and Father and Mother engaged in physical altercations in which Father hit, pushed and pinched Mother. Mother allowed Father to reside in the home and have access to Brian and his siblings, endangering their safety. Mother complied with all court orders and the children were returned to her custody; Father failed to comply with court orders. The juvenile court terminated its jurisdiction in October 2004, giving Mother full legal and physical custody.
In April 2009, the family once again came to the attention of the Department of Children and Family Services (DCFS). Mother was intoxicated in public, talking to herself, and incoherent. Brian was yelling, trying to tell Mother that they were going the wrong way. When the police arrived, they observed that Mother reeked of alcohol, was extremely intoxicated, and seemed traumatized. She explained that she had mixed alcohol and antidepressants, causing a bad effect. DCFS conducted an investigation, but determined that there was no emotional abuse. Mother agreed to participate in a voluntary family maintenance program, and had a restraining order in place against Father. Brian was referred to therapy because he witnessed domestic violence between Father and Mother.
In early October 2009, Brian informed a DCFS social worker that he had seen Father. The social worker warned Mother that Father was not to have contact with her or Brian, and that she was to call the police if Father came to her home; otherwise, Brian was at risk and would be placed in protective custody. On October 29, 2009, Father visited Mother and Brian, became intoxicated, brutally punched Mother with a closed fist and kicked her when she refused to allow him to take Brian. Mother was taken to the hospital, and Father fled with Brian: Brian witnessed Father's attack and was yelling and crying. Father was arrested on October 30, after spending the night at his workplace with Brian. When DCFS arrived, Brian informed the social worker that he saw Father "beating up my mom." Brian was taken into protective custody. Mother sustained serious injuries in the attack, including a fractured eye socket and bruised ribs.
When asked why she allowed Father into her home, Mother explained that she was lonely and Father "was going to cook me dinner and that made me feel special, I just wanted to feel special." Mother did not remember why Father starting hitting her. She was unaware of the risks of mixing alcohol and Valium, but promised to stop using both substances. Mother is overwhelmed because she cares for two adult children with disabilities, and Brian may have mental health issues such as ADHD and autism. He is developmentally delayed. DCFS categorized the family as being at "very high" risk for future abuse.
A petition was filed on Brian's behalf on November 4, 2009. It alleged that Mother and Father have a history of domestic violence, and engage in violent altercations in Brian's presence. Father attacked Mother on October 29, 2009, repeatedly punching her face and body, causing bruises and fractures. Mother failed to protect Brian by allowing Father to frequent her home and have unlimited access to Brian, in violation of a restraining order against Father. Brian was previously a dependent of the juvenile court as a result of Father's domestic violence. The petition also alleged that Mother is a current abuser of alcohol, which periodically renders her incapable of caring for Brian, and Father has a history of drug and alcohol abuse, and is a current abuser of alcohol, which renders him incapable of caring for Brian.
At the detention hearing, Mother denied the allegations in the petition and asked to have Brian released to her custody. She admitted that she violated the restraining order by allowing Father into her home, but maintained that she would safeguard Brian in the future. Brian's attorney objected to giving Mother custody. The trial court found a prima facie case for detaining Brian, and removed him from parental custody. The court ordered reunification services, including referrals for domestic violence counseling, parenting, individual counseling, substance abuse testing and rehabilitation, and counseling services for Brian. Mother was given monitored visitation. Brian indicated that he was very traumatized by Father's attack on Mother, and he did not wish to see Father. As a result, the court ordered no visits between Father and Brian.
On November 25, 2009, Father appeared and stated that his preliminary hearing was to be held in five days. He gave an address on Rosecrans Avenue in Bellflower as his official address for correspondence. The court advised Father that he needed to apprise the court of any address change. Father was declared to be a presumed father. He denied the allegations in the petition. During the course of the proceedings, Father did not let anyone know where he was incarcerated, and he changed facilities several times.
DCFS filed a disposition/jurisdiction report in December 2009. Father was interviewed in jail. He claimed that he was trying to defend himself from Mother, who was "really drunk" and bit him when he tried to remove a bottle of alcohol from her. Father admitted previous domestic violence, which Brian witnessed. Father admitted to kicking and punching Mother, but insisted that it was self-defense. Father also admitted using alcohol and marijuana for five to 10 years, and has never had rehabilitative treatment. Father "was using a lot of drugs and alcohol before his arrest on 10/30/09." Father stated that he loves Brian and wants custody of him.
DCFS offered a supplemental report in January 2010. In an interview, Mother admitted the allegations and reported that Father repeatedly punched her in front of Brian. She sustained facial bruising and fractures. She admitted that she violated the restraining order when she allowed Father into her home. Mother attended domestic violence classes during the prior dependency proceeding, but stopped attending in 2005. Mother agreed that drugs and alcohol play a part in her domestic violence problems with Father. In his interview, six-year-old Brian stated that Father punched Mother on her face and was yelling. Brian saw blood on Mother and was scared.
The petition was adjudicated on March 29, 2010. Father was present, in the custody of the sheriff's department. No testimony was offered. As to Father, the court sustained two counts: (1) Father and Mother have a history of domestic violence and violent altercations in Brian's presence, and Father punched Mother in the face and body on October 29, 2009, inflicting bruises and fractures. Mother failed to protect Brian when she allowed Father into her home, in violation of a restraining order against Father. This places Brian at risk of physical and emotional harm; (2) Father has a history of illicit drug and alcohol abuse and is a current abuser of alcohol, which renders him incapable of providing regular care for Brian. Father's substance abuse endangers Brian's physical and emotional health and safety and places him at risk of harm.
Moving to disposition, the court declared Brian to be a dependent of the court, and removed him from parental custody. Father was ordered to attend a substance abuse and rehabilitation program with random testing for drugs and alcohol; a parent education program; and individual counseling to address domestic violence and anger management. Father was authorized to begin visits with Brian after his release from prison. DCFS was directed to provide Father with referrals and services in prison.
A six-month status review hearing was conducted in September 2010. In its report, DCFS indicated that it had difficulty locating Father's place of incarceration, but records showed him at a prison in Corcoran, in a substance abuse program. He was previously at a prison in Delano, and no services were available to him there. Father had not contacted DCFS about the dependency case. Brian was residing with his maternal aunt, her husband and their two children since December 2009. He has a strong bond with his aunt and cousins, and interacts positively with them in a nurturing environment. He is doing well in special education, developing age-appropriately, and showing improvement in his behavior. At the hearing, Father's attorney stated that he has not heard from Father, but contested whether Father has received reasonable services from DCFS. The court observed that Father had "absolutely no contact in the last six months with this minor or with the social worker. It doesn't appear he's very motivated to reunify here."
In a subsequent filing, DCFS informed the court that Father was incarcerated in Corcoran. There, he participates in individual therapy once a week, attends a "living with mental illness" group, a grief and loss group, a stretch and tone group, a transitions group, and a "news matters" class. He is not attending anger management or domestic violence classes, but is drug-tested weekly. Father's earliest possible release date is in February 2014.
Father was present at the contested review hearing on November 2, 2010. DCFS sought to terminate Father's reunification services because Father has had no contact with Brian and because Father is going to be incarcerated until 2014, long after the reunification period has lapsed. Father responded that DCFS has not provided him with any services since March 2010, when the petition was adjudicated. Father stated that he is taking anger management classes, and that he completed a parenting class in county jail. He has been participating in programs since he was transferred to Corcoran in August 2010.
The court found that Father was provided with reasonable services during his incarceration. Father is in partial compliance with the case plan, but failed to make substantive progress. He was previously in a facility where he could not receive services, but is able to take court-ordered programs in prison at his present location. However, Father will not be able to reunify with Brian within the statutory period because his earliest release date is in 2014. The court terminated Father's family reunification services. Father appeals from the order terminating his reunification services.
DISCUSSION
Appeal is taken from an order following the dispositional judgment. Orders made after disposition are directly appealable, with exceptions not applicable here. (In re S.B. (2009) 46 Cal.4th 529, 531-532; In re T.G. (2010) 188 Cal.App.4th 687, 692.) Here, the court terminated reunification services for Father, but did not schedule a selection and implementation hearing. An appeal is proper when a parent is aggrieved by a juvenile court ruling—made at the six-month hearing—that reasonable reunification services were provided, if the order is not supported by substantial evidence. (In re T.G., supra, 188 Cal.App.4th at p. 695.) In reviewing the reasonableness of the services provided, we view the evidence in the light most favorable to respondent, indulging in all reasonable inferences to uphold the order. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
If the court had set a date for a selection and implementation hearing, Father would have been required to pursue a writ. (§ 366.26, subd. (l)(1); Cal. Rules of Court, rules 8.450, 8.452.)
The court found that Father is in partial compliance with the case plan, which is supported by the record. No services were available to Father in Delano, through no fault of DCFS. (§ 361.5, subd. (e)(1).) When services became available at his new place of incarceration, Father began participating in a drug testing program and in individual counseling, two elements of the case plan. According to Father, he also participates in an anger management program and completed a parent education program. Thus, regardless of the quality or quantity of DCFS's efforts to help Father find services to complete his case plan, Father himself sought out services while in jail and in prison, with the result that he partially complied with court orders. If the record showed total noncompliance, then perhaps DCFS could be taken to task. Father may be commended for seeking to satisfy elements of the case plan, when imprisoned at a facility that offers treatment.
At the disposition hearing, the court ordered no visitation by Brian while Father is incarcerated. Father did not challenge the disposition order, thereby waiving his opportunity to complain that the case plan is unreasonable. (V.C. v. Superior Court (2010) 188 Cal.App.4th 521, 528.) In any event, Brian expressed fear of Father and does not wish to see him.
Though Father is not entitled to personal visits from Brian—which could be traumatizing for Brian given that Father is in prison for a violent crime committed in Brian's presence—Father could contact his son. Father did not sustain a relationship with Brian by telephoning, or by writing cards or letters, though he was permitted to do so. (See V.C. v. Superior Court, supra, 188 Cal.App.4th at p. 528.) Father makes no claim that he lacks access to a telephone or to a pen and paper. A parent's failure to contact the child for six months is grounds for terminating services. (§ 361.5, subd. (a)(2)(B); S.W. v. Superior Court (2009) 174 Cal.App.4th 277, 282-283.)
Father made no effort to contact Brian for over six months. Father cannot expect to reunify with Brian if he is a stranger to the child, even if Father takes every class and program offered in prison. (See § 366.26, subd. (c)(1)(B)(i) [court may terminate parental rights unless the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship].) The absence of contact virtually ensures the erosion of any meaningful relationship. (In re Monica C., supra, 31 Cal.App.4th at p. 307.)
One of the deciding factors for the dependency court was that Father cannot reunify with Brian within the statutory period. Father is entitled to one year of reunification services. (§ 361.5, subd. (a)(1)(A).) In this case, Father was entitled to reunification services until fall 2010. Services could be extended until fall 2011, if a showing was made that Brian can be safely returned to Father's custody within the extended time period. (§ 361.5, subd. (a)(4).) Brian cannot be returned to Father's custody within the extended time period because Father will still be incarcerated.
Brian was removed from parental custody and placed in foster care on October 30, 2009.
When the court originally ordered reunification services, no one knew that Father would receive a prison term lasting until February 2014. A permanency placement hearing to determine Brian's future must be held long before Father's release from prison. It would be an exercise in futility to order additional reunification services because Father cannot reunify with Brian within the maximum statutory period.
Services may be terminated when the chances are reunifying are extremely low. (In re Derrick S. (2007) 156 Cal.App.4th 436, 448.) In his short life, Brian has been removed from parental custody twice because of Father's domestic violence. Brian was adjudged a dependent of the court when he was less than a year old, due to Father's substance abuse and attacks on Mother. When dependency jurisdiction terminated in 2004, Father had not completed the case plan, and Mother was given full custody. By his own admission, Father has abused various substances for five to 10 years, yet never sought rehabilitative treatment.
Father was under a restraining order to stay away from the family home. Nevertheless, he violated the order and beat Mother so severely in Brian's presence that she was bloodied, sustained serious injuries, and had to be hospitalized. As a result of Father's repeated violence in the family home, Brian fears Father and does not wish to see him. There is no suggestion in the record—and Father makes no suggestion in his brief—that Brian can ever be safely placed in Father's custody. A parent's criminal history and its relation to the child's safety and welfare are relevant factors to consider at the six-month review hearing. (§ 366.21, subd. (e).)
The record shows that Brian is thriving in the home of his aunt and cousins, and is bonding with them. Brian was permanently removed from Father in 2004, when he was an infant. Brian is now almost seven, and has never been in Father's custody: this is a factor militating against granting extended reunification services to an incarcerated parent. (V.C. v. Superior Court, supra, 188 Cal.App.4th at p. 530.) Brian has spent most of his life under the protection of a restraining order that precludes Father from seeing Brian.
Under the circumstances, the court could determine, in its discretion, that Brian's need for prompt resolution of his dependency status outweighs the need to provide further services to Father. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1779.) As the court implicitly found, further reunification services would not be in Brian's best interests. Obliging Brian to wait for stability and permanency in the "mere hope [that] additional services will facilitate reunification" is unfair to the child, given the length of Father's incarceration, his failure to contact Brian in six months, and his long history of domestic violence. (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
ASHMANN-GERST, J.