Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J517694
AARON, J.
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Martin W. Staven, Judge. (Retired Judge of the Tulare County Sup. Ct., assigned by the Chief Justice pursuant to art VI, § 6 of the Cal. Const.) Petition denied.
Miguel R. seeks writ review of juvenile court orders terminating his reunification services regarding his son, Jose R., and setting a hearing under Welfare and Institutions Code section 366.26. He asserts that the court erred by granting the San Diego County Health and Human Services Agency's (the Agency) section 388 petition to terminate his services; and that there is not substantial evidence to support the finding he was provided reasonable services. Jose, through his counsel, joins Miguel's petition. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2009, the Agency petitioned on three-year-old Jose's behalf under section 300, subdivision (b) on the basis of drug abuse by his mother (S.A.) and domestic violence between S.A. and her current boyfriend. The court ordered Jose detained.
S.A. identified Miguel as Jose's father. Miguel was in the United States illegally and was in Immigration and Customs Enforcement custody in New Mexico. S.A. said she had not seen Miguel since they were involved in an incident of domestic violence one and one-half years earlier. A preliminary Department of Justice report showed that Miguel had been convicted of spousal battery in 2004. A restraining order issued in January 2009 protected S.A. from Miguel.
The paternal grandparents provided contact information for Miguel, and the social worker sent him notice of the dependency proceedings. Miguel told the social worker that he had had regular weekly contact with Jose since Jose's birth. The court found that Miguel is Jose's presumed father and appointed counsel for Miguel.
On March 11, 2010, the court found the allegations of the petition to be true, declared Jose a dependent child of the court, ordered him placed in relative care, and ordered S.A and Miguel to participate in reunification services. Miguel's services included a domestic violence prevention program, parenting education, and substance abuse testing.
On August 31, 2010, the Agency petitioned under section 388, requesting that the court terminate services and set a section 366.26 hearing. The Agency argued that reunification was very unlikely because Miguel had been in custody and unable to participate in services, and he was awaiting deportation to Guatemala. Jose's caregiver was willing to provide a permanent home for Jose. At the six-month review hearing on September 1, the social worker reported that Miguel had completed the prison parenting packet she had sent him and had been in contact with her, but that he had not been able to participate in services or have visitation while detained. S.A. had not complied with her service plan. The court found that S.A. and Miguel had not made substantive progress with the provisions of their case plans and set a hearing on the Agency's section 388 petition.
Miguel was deported to Guatemala on September 1, 2010. In September and October, the social worker was unsuccessful in attempting to contact the paternal grandparents to learn Miguel's whereabouts. On November 1, Miguel's attorney furnished a telephone number for Miguel in Guatemala, which the attorney's investigator had obtained from the paternal grandmother. The social worker then spoke with Miguel, who explained that his telephone had just been connected and that he had no access to mail service. Miguel said that it would be several years before he would be able to return to the United States, and stated that he wanted Jose to live with him in Guatemala.
At the hearing on the Agency's section 388 petition, the social worker testified that early in the case, she had contacted the detention facility where Miguel was housed and learned that no reunification services were available to him there. She said that she had not attempted to arrange for Miguel to have visits or telephone calls with Jose. She had suggested to Miguel that he write letters to Jose, and he had sent Jose a drawing and a birthday card. After Miguel's deportation, the social worker submitted a referral to the international liaison social worker, who had contacted the Guatemalan consulate office. The social worker said she also had asked Miguel to contact Guatemalan authorities to learn how to arrange to participate in services in Guatemala. The social worker had researched what services would be available to Miguel in Guatemala, but had not been able to locate any services.
An investigator for Miguel's trial counsel testified that she began her attempts to contact the paternal grandmother on October 25, 2010, and that on November 1, the grandmother provided Miguel's telephone number in Guatemala.
Miguel testified that he had told the social worker he wanted to participate in services and wanted Jose to live with him in Guatemala. He said that when he was first deported, he did not have a telephone, but that the paternal grandmother had been able to reach him through his aunt, who lived near him. He said that it was his understanding that the paternal grandmother had left messages at the Agency, but that the social worker had not returned her calls. He said that he had helped care for Jose before he was taken into custody and that he had spent weekends with Jose.
After considering the evidence and arguments by counsel, the court granted the section 388 petition. The court found that reasonable services had been offered, but that there was not a substantial likelihood of reunification. The court terminated reunification services and set a section 366.26 hearing.
Miguel petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Miguel contends that the juvenile court erred by granting the section 388 petition. He contends that neither section 388, subdivision (c)(1)(A) nor section 388, subdivision (c)(1)(B) apply to his situation, and that the court did not properly consider his incarceration, as is required under section 388, subdivision (c)(2). The Agency agrees that section 388, subdivision (c)(1)(A) does not apply, but asserts that the court properly terminated services and set a section 366.26 hearing under section 388, subdivision (c)(1)(B).
Section 388, subdivision (c)(1)(B) provides that a party may petition the court to terminate court-ordered reunification services before a section 366.21 hearing if
"[t]he action or inaction of the parent... creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent['s]... failure to visit the child, or the failure of the parent... to participate regularly and make substantive progress in a court-ordered treatment plan."
Section 388, subdivision (c)(2) provides:
"In determining whether the parent... has failed to visit the child or participate regularly or make progress in the treatment plan, the court shall consider factors including, but not limited to, the parent['s]... incarceration, institutionalization, or participation in a court-ordered residential substance abuse treatment program."
Section 388, subdivision (c)(3) provides:
"The court shall terminate reunification services during the above-described time periods only upon a finding by a preponderance of the evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in subparagraph (A) or (B) of paragraph (1) exists."
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The decision whether to grant a section 388 petition is addressed to the sound discretion of the juvenile court and the court's decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A proper exercise of discretion is " 'neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' [Citation.]" (People v. Superior Court (Alvarez) (1977) 14 Cal.4th 968, 977.)
There is substantial evidence to support the court's finding under section 388, subdivision (c)(1)(B) that Miguel's actions and/or inactions created a substantial likelihood that reunification would not occur. Miguel was in the United States illegally, during which time he engaged in domestic violence. These actions resulted in his arrest for a violent crime, his placement in federal custody in New Mexico, and ultimately, his deportation to Guatemala. While he was incarcerated in New Mexico, he was not able to participate in his court-ordered service plan of domestic violence prevention treatment, parenting education and drug abuse testing. When the social worker inquired, she was told that, except for the parenting packet she sent to Miguel, no reunification services were available to him in the detention facility. Miguel appears to fault the social worker for not investigating further after she made her initial inquiry as to whether services could have been provided. But Miguel admitted that he was not able to participate in services while in immigration custody and he does not contend in his petition that any services in fact became available. Also, the social worker had not found any services that would be accessible to him in Guatemala. The social worker had referred the matter to the international liaison and had done independent research herself, but had not located any services there. Miguel also indicated that he did not believe he could obtain services in Guatemala, noting that he lived in a small town, four hours from the city.
Miguel's custody status and his deportation also prevented visitation and contact. It would have been unreasonable for three-year-old Jose to travel from San Diego to visit Miguel in the detention facility in New Mexico; the distance from San Diego to Guatemala also precluded face-to-face visitation. Miguel's actions created a situation in which it was likely that reunification would not occur. The record indicates that the court properly took Miguel's custody status into account, as section 388, subdivision (c)(2) requires, in finding that Miguel had failed to visit and to participate in treatment.
Miguel relies on In re Maria S. (2000) 82 Cal.App.4th 1032, in which the appellate court reversed termination of parental rights. In Maria S.,the mother gave birth to her daughter while she was in prison. Her service plan stated that she would begin the reunification process after her release from custody, and noted because of her incarceration, many of the services contemplated would have to await her release. (Id. at pp. 1038-1040.) After she was released, she was deported, but she continued to maintain regular contact with the social worker and attempted to obtain a visa so that she could attend the permanency planning hearing. (Id. at p. 1038.) Here, in contrast, the service plan did not state that services would continue after Miguel's release, and Miguel failed to maintain contact with the social worker after he was deported or provide the Agency with a way to contact him in Guatemala, even though there was evidence that he had access to both the internet and to a telephone. In re Maria S. is not helpful to his position.
Assuming that Miguel has preserved his argument that he did not receive reasonable services, there is substantial evidence to support the finding that the services that were provided to Miguel were reasonable. In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) A service plan must take into account the specific needs of the family. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Before the jurisdictional hearing, the social worker learned that other than the parenting packet she sent to Miguel, no reunification services were available to him at the detention facility. There is no indication that this circumstance changed during the months that Miguel was in custody. Face-to-face visits were not practical given the distance between San Diego and the New Mexico facility. Miguel did not request telephone contact with Jose, and the record does not indicate whether this would have been available. Moreover, Jose was very young and he appeared not to remember Miguel. The social worker suggested to Miguel that he write to Jose and forwarded to Jose a birthday card and a drawing from Miguel. The social worker also provided Jose's caregiver's telephone number to Miguel's attorney. After Miguel was deported, the social worker made a referral to the international liaison and attempted to locate Miguel, but the paternal grandmother did not respond to the social worker's requests for his contact information. Under these circumstances, there is substantial evidence to support the court's finding by a preponderance of the evidence that reasonable services were offered or provided.
Because of Miguel's actions that resulted in his incarceration and deportation, he was unable to visit Jose, participate in services or make progress with his court-ordered service plan. Considering the Agency's limited ability to provide services in this case, the services that it provided were reasonable under the circumstances. Miguel has not shown that the court abused its discretion by granting the petition to terminate services and setting a section 366.26 hearing.
DISPOSITION
The petition is denied.
WE CONCUR: BENKE, Acting P. J., NARES, J.