Opinion
D042826.
11-21-2003
MARK A., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Mark A., the father of Tiffany G., filed this petition for extraordinary writ (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B), challenging the juvenile courts ruling that terminated reunification services after 18 months and set the section 366.26 permanency planning hearing. Mark contends he was not offered reasonable reunification services.
All statutory references are to the Welfare and Institutions Code.
We issued an order to show cause, the San Diego County Health and Human Services Agency (HHSA) responded, and the parties waived oral argument. We review the petition on the merits and deny it.
PROCEDURAL AND FACTUAL BACKGROUND
Tiffany was born in January 2002. Tiffanys mother, Mary G., tested positive for methamphetamine in the hospital; Tiffany did not test positive.
On January 15 HHSA filed a dependency petition under section 300, subdivision (b), alleging Tiffany was at risk because Marys substance abuse rendered her unable to care for the child. The petition further alleged Tiffanys father was unknown.
Mary subsequently told HHSA and Mark that Tiffany resembled Mark, with whom she had been intimate. Mark appeared at the jurisdictional hearing. The court appointed an attorney to represent Mark, ordered a paternity test, and amended the petition to list Mark as an alleged father.
On February 19 Mary submitted to the petition on the basis of the social workers report. The court sustained the petition, declared Tiffany a dependent, removed her from Marys custody and ordered her detained in licensed foster care. The court also ordered Mary to comply with a case plan.
On April 9 the court found Mark to be Tiffanys biological father based on the paternity test results. The court ordered HHSA to provide a case plan for Mark. HHSAs case plan called for Mark to undergo a psychological evaluation and participate in individual therapy, parenting classes and substance abuse treatment. The substance abuse treatment was to be administered through the juvenile courts Substance Abuse Recovery Management System (SARMS).
Initially, Mark, who had a long history of drug abuse and was then on probation for a drug offense, refused to sign the case plan because of the SARMS requirement. Mark was attending drug court and drug testing in connection with his probation; he did not want his case plan to duplicate the criminal court orders stemming from his probation. Eventually, Mark agreed to participate in SARMS as long as he was not required to duplicate his efforts.
Mark waited until his paternity was established to start visiting Tiffany. Mark had three visits with Tiffany before the six-month review hearing. Tiffanys foster mother reported that during a telephone conversation to schedule visits Mark yelled and cursed at her. The social worker changed the visitation location and visitation supervisor. Mark was angry when Tiffany arrived late for a visit. On July 17 when Tiffany was 20 minutes late, Mark left and cancelled subsequent visits.
The social worker noted Mark had been diagnosed with Major Depressive Disorder and was receiving medication for his depression.
Meanwhile, Mary was progressing well with her reunification plan. Mary was having unsupervised visits with Tiffany five to six times a week. The social worker recommended overnight visits. Mark was supportive of Marys efforts to reunify with Tiffany.
At the six-month review hearing on October 7, the court found Mary had made substantial progress in alleviating the causes that led to the removal of Tiffany and had made substantive progress with her case plan. The court gave the social worker discretion to authorize a 60-day trial visit with Mary. The court ordered Mark to participate in SARMS and authorized individual therapy for Mark. Mark requested a referral to Dependency Drug Court. Mark joined Dependency Drug Court on October 29.
Once he resumed visitation with Tiffany, Mark attended 80 percent of the visits during the six-month period starting in August. Mark acted appropriately and the visits went well.
In December Mark left therapy because he was "upset" about discussing his personal life with strangers.
On December 24 HHSA moved Tiffany to Marys home for a 60-day trial visit. On February 11, 2003, Mary tested positive for amphetamines, and HHSA ended Tiffanys trial visit.
Mark missed three visits before the 12-month review date, which required him to contact HHSA to restart visitation. Mark became angry upon learning of this requirement. Mark hung up the telephone before the social worker could provide him with the telephone number of Tiffanys new placement.
For the 12-month review hearing, HHSA recommended continued reunification services for Mary and the termination of services for Mark. Mark was upset when told of the recommendation. By the time of the 12-month review hearing on February 19, Mark had 563 days of sobriety. The social worker acknowledged that Mark was maintaining his sobriety, but opined he was incapable of working with HHSA or the foster parent to develop a relationship and reunify with Tiffany. Mark had not completed a parenting education program. Mark had been scheduled for a psychological evaluation, but he walked out of the evaluators office at the beginning of the evaluation because he did not like the evaluator. At the 12-month review hearing, the court ordered services to both parents be continued for another six months.
Mark has given various reasons for leaving the evaluation: he did not want to be evaluated by a male; and the evaluator was five minutes late.
In March Mary entered the Family Recovery Center, where she stayed for one and one-half months. She reportedly did not comply with the centers rules. After Mary left the center, she did not have further contact with the social worker and did not participate in drug treatment or testing. On May 15 Mary was terminated from SARMS for noncompliance. Mary also stopped visiting Tiffany in April.
Mark resumed visiting Tiffany in the beginning of April. He visited Tiffany once a week for one and one-half hours. After Mary stopped complying with her reunification services, Mark told the social worker that he wanted Tiffany to be placed with his sister, who lived in Phoenix and wanted to adopt the child. The social worker contacted Marks sister, who said she and her husband had not earlier requested Tiffany be placed with them because Mark was supporting Marys initial efforts to reunify with the child.
In July HHSA recommended services be terminated for both parents and a section 366.26 hearing be set. As to Mark, the social worker cited his inconsistent visitation, irritable disposition, and the failure to complete the psychological evaluation. The social worker acknowledged Marks success in maintaining sobriety, but reported his behavior was often inappropriate. When the social worker telephoned to notify Mark of a change in the visitation schedule for one week, he became angry and hung up.
According to a psychological evaluation that Mark underwent on August 1, Mark had anger management problems. The evaluator opined Mark was not ready to parent Tiffany.
On August 5 Mark graduated from Dependency Drug Court with 731 days of sobriety.
On August 25 after a contested 18-month review hearing, the court found reasonable services had been provided to Mark and Mary and neither parent had made substantive progress with his or her case plan. The court terminated services and set a section 366.26 hearing.
DISCUSSION
The reasonableness of services is judged according to the circumstances of each case. (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554.) An agency is required to make a good faith effort to address the parents problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. (Id . at pp. 554-555.) We recognize that in most cases more services might have been provided, and the services provided are often imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) However, "[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.) We determine whether substantial evidence supports the trial courts finding that reasonable services were provided, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the courts ruling. (Id. at p. 545.)
Our review of the evidence shows that reasonable services were offered to Mark. Tiffany was removed from parental custody because her mother used drugs. Once Tiffanys father (Mark) was located, it turned out that he too had a substance abuse problem. Marks case plan included a drug rehabilitation component, parenting classes, individual therapy and a psychological evaluation. These services were reasonable and addressed issues that were pertinent to Tiffanys dependency.
Mark argues the services were deficient in two areas: he was not provided adequate visitation; and his case plan did not address his psychiatric needs. We consider these purported deficiencies seriatim.
A reunification plan must include visitation between the child and his or her parent. (§ 362.1, subd. (a)(1)(A).) Furthermore, "[v]isitation shall be as frequent as possible, consistent with the well-being of the child." (Ibid.)
The record shows Mark was offered supervised visitation with Tiffany, which he started once tests confirmed he was the childs father. There is nothing in the record to show HHSA thwarted Marks visitation with his daughter. To the contrary, the record shows HHSA made accommodations for Mark. The first visit was supervised by the foster mother. However, when Mark attempted to schedule a second visit, he became upset because of the foster mothers scheduling conflicts and was abusive to her on the telephone. Mark told the social worker he did not want the foster mother to supervise his visits; HHSA arranged different supervision. Mark also objected to the visitation site, which was close to the foster home; HHSA moved the visits to a site more to Marks liking—even though it was located between 20 and 25 miles from the foster home.
Marks complaint that he should have been allowed more visitation with Tiffany rings hollow. More than anything else, it was Marks attitude and actions that resulted in his visitation remaining at the supervised level. Mark decided to stop visiting Tiffany in July 2002 after only three visits because the child was brought to the visitation site of his choosing 20 minutes late. After Mark resumed visitation, he was consistent in visiting Tiffany for about six months but then missed three visits without canceling beforehand. When told he would have to contact HHSA because of the missed visits, Mark became angry and hung up the telephone before the social worker could inform him of the telephone number of Tiffanys new placement.
Although HHSA is obligated to offer reunification services, reunification is fundamentally a parental obligation. The requirement that reunification services be made available "is not a requirement that a social worker take the parent by the hand and escort him or her . . . ." (In re Michael S. (1987) 188 Cal.App .3d 1448, 1463, fn. 5.) A parent who fails to take advantage of existing opportunities is in a poor position to complain about HHSAs efforts. Moreover, the visitation component of reunification services requires cooperation between the parent, HHSA and the foster parent. Throughout these proceedings, Mark has displayed an unwillingness to cooperate with either HHSA or the foster parents regarding visitation.
We conclude that Mark has failed to show HHSA did not provide him with adequate visitation.
Mark s complaint that HHSA did not adequately address his mental health problems is also unavailing. The case plan directed Mark to undergo a psychological evaluation and to undergo individual therapy. The social worker testified that Agency requested a psychological evaluation to better serve Mark and determine if he needed additional services. However, Mark did not undergo a psychological evaluation until August 1, 2003—25 days before the contested 18-month review hearing. This delay in getting a psychological evaluation came after Mark walked away from one scheduled psychological evaluation for what can only be characterized as unfounded reasons. (See fn. 2, ante.) Mark also stopped therapy at one point because he did not want to discuss personal issues with strangers.
HHSA was not required to take Mark by the hand and take him to the psychological evaluation. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) "Petitioners real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Thus, the record belies the claim that Marks mental health problems were not addressed in his case plan.
Mark faults HHSA for not attempting to learn more about his depression and not contacting his psychiatrist for more information. The record shows that HHSA erroneously believed that Mark had not signed a release of information form. However, Mark has failed to show how the failure to contact the psychiatrist affected the reunification services offered to him. The psychiatrist reported Mark was on medication to treat his depression. The psychological evaluation indicated Mark should continue taking his medication as prescribed by the psychiatrist. The evaluation did not recommend Mark needed additional, ongoing psychotherapy or other individual counseling.
Mark urges he be given additional services beyond the 18-month date because he was not afforded reasonable services. We decline to do so.
The Legislature contemplated a maximum reunification period of 18 months. (§ 366.22.) The courts statutory options at the 18-month review hearing are to either restore custody of the minor to the parents or terminate reunification services and refer the matter for a section 366.26 hearing. However, the juvenile court has the discretion to extend reunification services beyond 18 months if (1) no reunification plan was ever developed for the parent; (2) the court finds reasonable services were not offered; or (3) the best interests of the child would be served by a continuance of the 18-month review hearing. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) None of these circumstances applies. Mark was given a case plan; we have found reasonable services were offered; and there is no evidence that continuing reunification services beyond 18 months would be in Tiffanys best interest.
DISPOSITION
The petition is denied.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.