Opinion
E041042
12-15-2006
MICHAEL F., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Inez Tinoco-Vaca for Petitioner. No appearance for Respondent. Dennis E. Wagner, Interim County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Real Party in Interest.
By petition seeking a writ of mandate, Michael F. (father) asks us to vacate the juvenile courts order terminating reunification services, and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 for his daughter, Shayna. He asserts that (1) there was insufficient evidence to support the finding of substantial detriment if Shayna were returned and (2) services should have been extended due to extenuating circumstances. We agree that there were extenuating circumstances that warranted continuing services and that it was error to set a hearing under section 366.26. Accordingly, we grant the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2005, the San Bernardino County Department of Childrens Services (department) detained Shayna, age 12, and her sister Chelsea, age four, when their mother died from a drug overdose, apparently having committed suicide. The department filed a dependency petition because the childrens fathers had not been located. The juvenile court found a prima facie case for detention and placed both children in the departments custody and care.
The social worker contacted father on November 29, 2005. He stated his belief that he is Shaynas biological father. He indicated that he had had limited contact with Shayna because her mother would not allow regular contact. Shayna confirmed this. He last saw Shayna approximately three years before. Father stated that he had been ordered to pay child support in the past, but was unable to do so because of illness.
Father told the social worker that he lost his mother and sister within a week of each other in 2004 and understands what Shayna is going through.
In the jurisdictional/dispositional report, the social worker indicated that father had no prior substantiated referrals and that he had two children currently residing in his home. In addition, he was maintaining contact with a 16-year-old daughter who resides with a maternal grandmother and a 20-year-old daughter that he raised. He was not working, but receiving AFDC (Aid to Families with Dependent Children). He stated that he had a job offer and would be starting work soon. He resides on the same property with his father and his sister, living in a small home in the back. He indicated that they recently sold the property and they would be moving in January. Father said that his father owns the home and that the latter assured him that he would assist him in securing housing for himself and his children. Father states that he is able and willing to provide a home for Shayna and her sister, expressing concern that they not be separated.
Shayna confirmed to the social worker that her mother would not allow her to maintain contact with father. She also stated that she remembers him and loves him. She had been having telephone contact with father since the social worker provided her with his telephone number and she wants to begin to have contact with him.
The social worker opined that placing Shayna with father would be detrimental to her because of the limited contact between them. The juvenile court so found. The reunification plan called for father to comply with all court orders, maintain a relationship with Shayna by following a visitation plan, and obtain and maintain stable and suitable housing. Father was also ordered to participate in a parenting program and general counseling to address his own issues of loss and grief in order to assist Shayna in dealing with her grief issues. The visitation schedule was not included on the case plan.
Shayna was initially placed in a foster home along with her sister. On February 10, 2006, the foster mother called the department and requested that Shayna be removed because she was verbalizing threats of suicide and was being uncooperative.
Shayna was placed in another foster home and three days later that caretaker notified the department that Shayna needed to be removed within seven days. On February 17, 2006, the foster mother dropped Shayna off at the departments office, stating she could not wait any longer and did not want to continue to provide care for her.
Meanwhile, Chelsea had been returned to the custody of her biological father.
Later, a maternal relative who lives in New Jersey expressed an interest in caring for Shayna and the court authorized an extended visit with this relative from July 30 until August 22, 2006.
The social worker stated in the status review report of July 10, 2006, that father had not maintained contact with Shayna and it did not appear he was willing or able to provide a stable home for her. The social worker wrote that she had last had contact with father in December 2005, and at that time he had just been released from the hospital and would have to be in an extended care facility because he would not be able to care for himself. Although mothers friends and family members had reported that father had died during surgery, the social worker learned that he had not died and the "Transitional Assistance Department" showed he was living in Rialto. A social worker went to the address given and received no answer. The social worker returned several weeks later and still received no answer, but left a card requesting father contact her as soon as possible. No other attempts were made to locate the father. As of the date of the status review report, the social worker wrote that she had not received a response from father. Based on this lack of contact, the social worker concluded that there was not a substantial probability of the minor being placed in his home by November 2006. It was accordingly recommended that services be terminated and a permanency planning hearing set.
At the contested six-month review hearing on August 1, 2006, father submitted a copy of a printout showing the dates he had been hospitalized since 2003. In the year 2006, father was hospitalized from January 8-13, January 20 - February 10, and February 20 - March 7. Father testified that he has been unable to visit with Shayna since January because of serious health problems. He stated he has had "a lot of medical issues since 2001. Ive had four surgeries since then. My appendix ruptured, had an ulcer burst and a perforated intestine. They repaired all of that and then a second surgery was a hernia repair and there was [sic] two others." Within the last six months, father estimated he had been hospitalized for about 30 days. Since his release, he has been weak; he describes that the last four months have been extremely shaky, but asserts he is starting to get stronger.
He stated that he tried to contact the social worker in early July and again in the middle of the month.
Father has stated that when he was hospitalized in February 2006, Shayna called him at least 10 times. He has not had telephone contact with her since that time because he lost his cell phone when he got behind on his bills because of his hospitalization. This is the reason why it took him so long to try to contact the social worker. He lost 35 pounds and has been pretty much bedridden with a home nurse. The last six to eight weeks he has been feeling better and ready to have the "porta catheter" taken out of his shoulder. He believes he is in a position to be engaged in services and be a part of Shaynas life.
The juvenile court noted that father had some contact, but that he had failed to avail himself of any of the other programs. It noted that since his release from the hospital in early March, he had failed to enroll in any program to "show us that hes interested in doing this[,] which is a shame for his daughter because [it] seems like she might actually need someone at this point in her life."
DISCUSSION
"Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citations.] Reunification services implement `the laws strong preference for maintaining the family relationships if at all possible. [Citation.]" (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) To achieve this goal, the Legislature requires the county child welfare departments to develop and implement family reunification plans and requires the courts to monitor those plans through periodic review at intervals of no less than six months. The statutory scheme generally provides for up to one year of services designed to reunify the parent and child before a permanency planning hearing is scheduled. (§ 361.5, subd. (a)(1); Cal. Rules of Court, rule 1456(f)(1).) The cutoff date for fostering family reunification services is the 18-month status review. At that stage, the Legislature has determined a childs need for stability and security become paramount. (Ibid.)
Under the circumstances of this case, we believe services should continue for an adolescent minor and a parent who has suffered debilitating health problems. Fathers parenting abilities do not seem to be of primary concern; the record indicates he apparently has been able to raise several daughters successfully without the departments supervision. Rather, the dependency was prompted by the concern that father did not have a well-established relationship with Shayna. The professed aim of the department in the reunification period was to foster such a relationship. The departments efforts were minimal. It provided Shayna with fathers telephone number and it made minimal efforts to locate him after his hospitalization. Even though the department had been apprised of fathers health problems, its position abruptly changed; the department decided that reunification services should be terminated and that Shayna could not be returned to father. Perhaps, as the juvenile court believed, father could have made more of an effort to reunify, but the fact that he was severely handicapped as a result of his health problems is unquestioned. Instead of responding to father as a parent in need of assistance due to severe health problems, both the department and the juvenile court responded with a lack of compassion for him and the minor. (Cf. In re David D. (1994) 28 Cal.App.4th 941, 951-952.)
Although we do not review the jurisdictional findings in this petition, we must observe the irony in the departments position that it would not place Shayna in fathers home due to a lack of an established relationship between them, but chose to place her in the care and custody of complete strangers.
The court scheduled a section 366.26 hearing because there had not been substantial visitation with Shayna. We find that this was error under section 366.21, subdivision (e), because there had been some contacts within the review period. The contact, albeit rather minimal, appears to have been as much as one could expect given fathers condition.
Extenuating circumstances may justify a court in extending services beyond the 18-month cutoff period. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1774.) In this case, we conclude that the juvenile court abused its discretion in terminating services after only six months when such exceptional circumstances occurred that prevented father from participating in the reunification plan.
The department contends that fathers failure to raise the issue of extenuating circumstances during closing argument bars him from doing so for the first time on appeal. This contention is without merit. Father gave undisputed testimony regarding his condition and his attorney argued that these circumstances warranted the court continuing services for an additional six months. It is irrelevant whether or not the label "extenuating circumstances" was employed.
Finally, in reversing the juvenile courts orders, we do not imply that father will inevitably assume care and custody of Shayna. We do intend that the department should make a thorough assessment of fathers living conditions and provide meaningful assistance to him so that he can assume his parental role.
DISPOSITION
The petition is granted. Let a writ issue directing the superior court to vacate its order setting the section 366.26 hearing and to enter an order continuing reunification services to father.
We concur:
RAMIREZ, P. J.
McKINSTER, J.