Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J08-02005, J08-02006
Banke, J.
P.S. (Father) currently lives in Sweden under the auspices of a work visa he obtained while living in his native country, Nepal. He challenges an order of the Contra Costa County Superior Court, Juvenile Division, following a hearing at which Father appeared by telephone and through appointed counsel and the court set a hearing under Welfare and Institutions Code section 366.26 to select permanent plans for his minor daughters, J.S.1 (born June 2000) and J.S.2 (born March 2005). Father claims the court erred when it denied a purported request that the minors be placed with him, as a noncustodial and non-offending parent, denied a purported request for reunification services, and conditionally suspended visitation. We find no merit in Father’s claims and deny his petition for extraordinary writ on the merits.
All further statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A), bars review on appeal by an aggrieved party who has not made a timely writ challenge to an order setting a section 366.26 hearing. Appellate courts are encouraged to determine such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
On December 18, 2008, Concord police officers arrested A.S. (Mother) at the house where she and the minors were staying with the maternal grandmother. The officers found Mother intoxicated and unconscious in a vehicle parked in front of the home, with a syringe of heroin in her purse. The minors appeared to be suffering from neglect. The Contra Costa County Bureau of Children and Family Services (Bureau) removed the two girls from the physical custody of Mother and filed dependency petitions under section 300 four days later, on December 22.
Mother reported she had been born on the island of Saipan, in the Commonwealth of the Northern Mariana Islands, and she and the minors had only recently come from there to Contra Costa Country. She was married to Father, but separated due to domestic violence on his part. She thought he lived in Nepal, but had had no recent contact with him. However, the older daughter, J.S.1, said Father had moved to Sweden with an older daughter from another relationship.
On January 6, 2009, the juvenile court sustained jurisdictional allegations under section 300, subdivision (b), that Mother (a) had a chronic substance abuse problem affecting her ability to care for the minors and (b) had placed the minors at risk of harm in that she had been a victim of domestic violence by Father, with some incidents in the children’s presence. The court also raised Father’s status from alleged to presumed father.
In its report for the disposition hearing, the Bureau reported Father had made no contact and his whereabouts were still unknown, although it was attempting through county counsel to provide him with notice pursuant to the Hague Convention. The Bureau did not recommend reunification services for Father, and “ha[d] not considered placement” with him as a noncustodial parent because his whereabouts were unknown and he had not made contact to request either a noncustodial parent placement or reunification services.
At the disposition hearing on March 6, the juvenile court dismissed jurisdictional allegations against Father on motion by county counsel. It then issued dispositional orders, including ordering reunification services for Mother. It ordered reunification services “were not to be provided” to Father, but directed the Bureau to arrange visitation “when [Father was] in the local area.” At the six-month review hearing on September 1, the juvenile court continued Mother’s reunification services.
Later in September (more than nine months after the minors had been detained and the dependency proceedings, filed), Father for the first time left telephone messages with the Bureau that included his e-mail address. The Bureau informed Father about the minors’ foster placement and directed him to write a letter to the court requesting appointment of counsel. Father replied with a message describing his circumstances: When Mother told him she was going to the United States with the minors, he left Saipan without completing the “paperwork” that would have allowed him to stay or return. He now lived in Sweden, and wanted “to have [his] kids.” The next day he sent another message directed to the court, asking for “help to get me attorney... to fight for my 2 girls and bring them to me and give them good life with me.” The Bureau responded with a reminder for him to request counsel, and Father then did so.
The Bureau advised the court of the e-mail correspondence with Father, and the court discussed appointment of counsel at a hearing on October 9. However, the court did not appoint counsel at that time since Father had “not contacted CCCDP” (the Contra Costa County Dependency Program, which administers the assignments for appointed counsel in the county’s dependency proceedings).
In fact, whether Father received information about contacting CCCDP in time to make contact before the October 9 hearing is unclear. A Bureau report submitted in January 2010 noted only that the Bureau had notified Father by e-mail “with information to contact [CCCDP] after the Court referred him to counsel.” (Italics added). In any event, a Bureau memorandum submitted in August 2010 reported the Bureau sent Father CCCDP paperwork by e-mail on December 29, 2009, Father confirmed receipt of that e-mail on January 8, 2010, but did not thereafter contact the CCCDP.
In late January 2010, the Bureau submitted a report in anticipation of the 12-month permanency hearing that characterized (fairly) the e-mail messages Father sent to the Bureau in September 2009 as a request for placement with a noncustodial parent, but not a request for reunification services. With respect to the request for placement, the report stated the Bureau had “very little information on [Father, ]... was concerned [about Mother’s] reports that [Father had been] domestically violent towards her[, and was] further concerned that [Father] ha[d] been estranged from his children for almost two years.” The report also observed that, as Father was living in Sweden, he had not visited the minors. For these reasons, the Bureau did not believe it would be “safe or appropriate” to the place the minors in his care as a noncustodial parent. At the conclusion of the hearing, on January 29, 2010, the court ordered an additional three months of reunifications services for Mother. It also found “return of the children to the custody of their mother/father would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of each child.”
In its report completed in late April 2010, for the 18-month permanency review hearing, the Bureau reported it had had no contact with Father during that review period. At the conclusion of the hearing, on June 1, the court terminated Mother’s services and set the matter for a hearing under section 366.26.
Mother, but not Father, challenged this order by petition for extraordinary writ. This court denied Mother’s petition on August 25 (A.S. v. Contra Costa County Superior Court (Aug. 25, 2010, A128769) [nonpub. opn.].)
The same month, Father contacted the Bureau, which again e-mailed him the CCCDP paperwork for appointment of counsel, and this time he responded. An attorney was assigned on June 23, and the appointment of counsel was accepted on July 13.
A month later, on August 17, Father’s appointed counsel filed a section 388 petition, seeking modification of both the March 6, 2009, dispositional order, in which the court declined to order reunification services for Father, and the June 1, 2010, order setting a section 366.26 hearing. Father asserted no jurisdictional allegations against him had ever been sustained, and he requested that he “be allowed to participate in a case plan and have a period of time to provide evidence of his ability to care for his children.” Father also sought approval for contact with the minors by “web cam and/or phone.” He asserted the requested modifications would benefit the minors because of his existing bond with his daughters.
In a memorandum dated August 30, the Bureau opposed Father’s section 388 petition. The Bureau reported Father had provided the following additional information: He and Mother were married in October 2000 (four months after the birth of the older minor, J.S.1). He lived with the minors from that time until September 17, 2008 (three months before the initiation of these proceedings). He took the minors to church, the beach, and the playground, and taught them to swim. He had provided for their care while living with them, and “was also sending them money” and “talk[ed] to them regularly” after Mother “took them away from [him]” and went to California. He loved them and thought about them all the time, and he “live[d] a good life” and “ha[d] work[ed].” The minors would “have a good life and [go] to [a] good school” if placed with him. He asked the “Court of California... to help [him] get [his] children back.” The Bureau additionally reported Father was residing in Sweden with his older daughter by another relationship, pursuant to a work visa set to expire in 2011. He planned to renew his visa for another two years and establish permanent residence there. It also appeared, however, Father “would not be able to [enter] the United States in order to establish a relationship with his two daughters” in the local area.
The Bureau further observed Father had not had a relationship with the minors for about two years. After the institution of the dependency proceedings, he did not communicate with the girls until June 2010, when he sent them e-mails and photographs, which the case worker read to the girls on July 20, 2010. J.S.1 was “excited to see the pictures and read the emails, ” but the J.S.2 did not recognize Father in the photographs and “did not display a lot of interest when the emails were being read.” On July 28, the case worker informed Father he could, and should, continue sending e-mails and these would be forwarded to the minors. But Father had not communicated further. The reporting case worker noted J.S.1 had, earlier in the proceedings, said she did not want to talk to Father on the telephone or live with him in Saipan.
In the meantime, on July 9, the case worker had a telephone conversation with Father, with the assistance of a Nepali interpreter. Father related details of his relationship with Mother, stating, among other things, that he had worked hard to support Mother and the minors while they live Saipan, had nursed her when she was ill with kidney problems, but had slapped her once because she had been “cheating on him” and said she would not leave her boyfriend. Ongoing marital discord culminated in his ejection from Mother’s family home, and eventually his departure from Saipan following Mother’s departure for the United States in 2008. Father then returned to his native Nepal for a year, after which he obtained a visa to work in Sweden.
The case worker concluded that, while Father loved his daughters and had provided for their care when they were younger, they had been estranged for two years, such that the younger minor, J.S.2, did not recognize him. Father “ha[d] not shown consistency in trying to maintain regular contact” with them. Further, he had delayed contacting CCCDP to obtain counsel, and it appeared he could not legally enter the country, “making it difficult for [him] to engage and participate in services successfully.” Accordingly, the Bureau recommended denial of his section 388 petition.
In a supplemental memorandum dated September 2, the Bureau reported on the minors’ status, including that the older minor, J.S.1, was showing increasingly aggressive, defiant, and disturbing behaviors, particularly toward the prospective adoptive parent and her younger sister. These behaviors indicated underlying past trauma and anger issues, and seemed to be triggered by contacts with Mother. The prospective adoptive parent was no longer willing to have J.S.1 in her care, although she remained open to having J.S.1 return in the future. The Bureau had therefore decided to move J.S.1 to a separate foster placement, and had referred her for assessment for more intensive therapy.
Originally set for September 7, 2010, the section 366.26 hearing was continued to October 5, the date set for hearing on Father’s section 388 petition. The court denied Father’s section 388 petition (and he has appealed from that order). Proceeding to the section 366.26 hearing, the court continued the hearing to March 2011, as to the older daughter, J.S.1. As to the younger, J.S.2, the court terminated parental rights and directed her placement for adoption. Ten days later, however, the court set a special hearing on its own motion, and on October 19 set aside the its October 5 order to the extent it had terminated parental rights to J.S.2. The court then granted Mother four additional months of reunification services as to both minors, and set a hearing in March 2011, to review this period of additional services.
The appeal is currently pending before this court (Contra Costa County Children & Family Services Bureau v. P.S., A130103).
In February 2011, one month before the scheduled review hearing, Father filed a second section 388 petition. He again sought to modify both the March 6, 2009, dispositional order and the June 1, 2010, order setting the section 366.26 hearing. He also sought to modify the October 5, 2010, order denying his first section 388 petition. He claimed the following changed circumstances: J.S.1 was no longer placed in a concurrent home, and J.S.2 was having problems in her concurrent home placement. Father’s parental rights had been reinstated as to J.S.2. He had “maintained” employment, was set to receive a new work visa in May 2011, and was “now in a position to welcome [the] child[ren] into his home.” Father requested an order placing the children with him as a non-offending, noncustodial parent, or alternately permitting contact with the minors by “web or phone” and participation in reunification services. He asserted these changes would benefit the children because of their bond with him. However, Father did not submit a declaration or any other documentation supporting his second petition. At the hearing on the petition, on March 11, the court concluded it could not entertain it since it had already adjudicated the issues presented, when it had denied Father’s first section 388 petition on October 5, 2010. The court accordingly deemed the second petition barred by res judicata and denied it on that basis (it appears Father has also appealed from this order).
Father’s notice of appeal filed April 5, 2011, does not specify the date of the order appealed, but describes it as one in which he was “[d]enied ability to proceed with 388.”
On March 30, the hearing to review the four months of additional services to Mother commenced. Father appeared by telephone. His counsel cross-examined Mother, eliciting testimony she had had contact with Father after the minors were removed from her physical custody, and Father had emotionally, but not physically, abused her. Father’s counsel later called Father to testify. Father confirmed he had sent his counsel various e-mail attachments: a photocopy of his work visa issued by the Kingdom of Sweden; a photocopy of a letter from his employer in örebro, Sweden; and copies of photographs depicting his workplace, his home, and himself with his 19-year-old daughter. These were then admitted into evidence. Father testified he had never abused his children, and had never been arrested for domestic violence. He said further he had moved to Sweden in 2009 in order to obtain work for “really good money” for “my... future, my kids, ” and he was currently employed and living in a rented house with enough room to accommodate the minors. When Father’s counsel posed further questions, such as whether the minors would be able to get medical care in Sweden and whether Father wanted the minors to be placed with him, the court sustained objections on the ground of relevance. Father’s counsel then called the current case worker, who stated he had not had any contact with Father and that services had not been offered to him. When counsel began to question the case worker concerning Father’s previous requests to have the minors placed in his care, counsel for the Bureau objected, stating that it “sounds like an end-run on the court’s... ruling[s denying]... father’s 388 motions, ” to which the court responded “[t]hat’s correct.” The juvenile court commented that the hearing did not include a “de novo” review of issues raised in Father’s prior section 388 petitions. On a brief cross-examination by the Bureau’s counsel, the case worker said Father had never contacted him directly and had never indicated he could legally enter the United States.
During closing argument, Father’s counsel argued Father was “clearly a 361.2 parent”—that is, a noncustodial parent—who had “continually” asked for placement of the minors with him. Counsel urged further that Father’s first section 388 petition had indicated Father’s willingness “to work on a plan to slowly transition the children to Sweden, ” at which the juvenile court interjected that “[w]e’re not going to reargue the 388 motion.”
At the conclusion of the hearing, on April 5, the court found, among other things, that a return of the minors to either Mother or Father’s custody would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the minors. The court again terminated services for Mother and reset the matter for a section 366.26 hearing. The court additionally directed that visitation was “suspended” unless one of minor’s therapists recommended a visit, in which case the court would reconsider the issue. Father’s writ petition followed. (§ 366.26, subd. (l).)
Discussion
A. Placement with Noncustodial Parent
Father asserts that at the hearing resulting in the challenged April 5, 2011, order, his counsel “sought a court order placing the two minor children in [Father’s] physical custody in Sweden.” While he submitted evidence of employment and residence in Sweden, he contends the Bureau presented no evidence such a placement posed a risk of detriment to the children’s well being. Thus, Father maintains the evidence did not support the juvenile court’s asserted denial of his request for physical custody of the minors, and did not support the court’s finding that a return of the minors to Father’s custody would create a substantial risk of detriment to their safety, protection or physical or emotional well being.
The procedural posture of this case is unique, evidently the result of the juvenile court’s decision to give Mother “every possible chance” at reunification. The court’s October 19, 2010, order granting her an additional four months to achieve reunification, essentially contravened its June 1, 2010, order, terminating services and setting a section 366.26 hearing. None of the parties challenged that action. Accordingly, in our view, the hearing resulting in the challenged April 5, 2011, order is most analogous to a permanency review hearing held pursuant to section 366.22.
At that stage of the proceeding, the court must return the minor to the physical custody of his or her parent, unless it finds by a preponderance of evidence that return of the child “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) As noted above, the court did making a finding that a return of the minors to either parent would create such a risk.
Our review of this finding, as it pertains to Father, is limited to determining whether it is supported by any substantial evidence. In doing so, we resolve any conflicts and indulge all reasonable inferences in favor of the court’s finding. (See In re Kristin W. (1990) 222 Cal.App.3d 234, 251.)
In articulating the factual basis for its finding as to Father (see § 366.22, subd. (a)), the juvenile court emphasized facts showing Father’s lack of consistent commitment to the minors’ welfare. For example, while the court had authorized him to continue sending e-mails to the minors, after the e-mails he had sent in June 2010, Father never sent any additional e-mails to the children. In addition, Father had not once contacted the current case worker, who took over the case in December 2010, about the status of the minors. During closing argument, counsel for the Bureau also remarked it was not safe to return the children to Father’s custody for several reasons. Father’s delay in making initial contact with the Bureau—which occurred after the six-month status review hearing and some nine months after initiation of the proceeding—showed Father simply “lost track of his children” for a significant period of time after his separation from Mother. And, while the Bureau had referred Father for appointment of counsel, he had failed to follow through for many months, until the order following the 18-month permanency review hearing on June 1, 2010, raised the specter of termination of his parental rights. We may deem these facts included with the others articulated by the juvenile court. When Father’s counsel objected to these statements by the Bureau’s counsel, the court replied it had “read every report in th[e] file, ” and those reports “verified” the remarks by counsel. We agree the statements are supported by the record summarized above. We note, too, that by the time of the April 5, 2011, hearing, the record showed the minors had been detained in the dependency system for over two years and three months, and they had not seen Father during this entire period and had heard from him only once.
Viewing the foregoing evidence in the light most favorable to the juvenile court’s ruling (see, e.g., In re Monica C. (1994) 31 Cal.App.4th 296, 306), we conclude it provides substantial evidence to support the challenged “risk of detriment” finding.
As for Father’s claim that the juvenile court erred when it denied his request for placement as noncustodial parent, we see no such denial in the challenged April 5, 2011, order. As the juvenile court indicated, Father’s request for placement was fairly encompassed within Father’s section 388 petitions, which the court had denied. The court simply noted that the purpose of the hearing—to consider Mother’s reunification efforts for the additional four-month period—did not include “a de novo hearing” on Father’s section 388 petitions, and it declined to consider the argument of Father’s counsel as a renewed request for placement as a noncustodial parent. We see no error in this determination. It also is not our task in this writ proceeding to review the earlier, appealable orders denying Father’s section 388 petitions. Accordingly, we conclude there was no erroneous denial of a request for placement with a noncustodial parent.
B. Reunification Services
Father also asserts he was improperly denied reunification services. He points out he has had presumed father status since January 2009, and he cites section 361.5, subdivision (a), for the proposition that, as a presumed father, the juvenile court was required to order reunification services for him. He urges that, since the Bureau never sought to bypass reunification services for him under section 361.5, subdivision (b), and there was no other legal basis for denying services for him, the court erred when it denied his request for reunification services.
This provision, in pertinent part, states that “whenever a child is removed from a parent’s... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father....” (§ 361.5, subd. (a).)
Father is not only a presumed father, but also a noncustodial parent. As such, his entitlement to services is determined not by the mandatory provisions of section 361.5, subdivision (a), but by the discretionary provisions of section 361.2, subdivision (a). (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270-1271; see also In re Karla C. (2010) 186 Cal.App.4th 1236, 1261-1270 [regarding considerations of available services and ability to enforce jurisdiction when a minor is placed with a noncustodial parent in a foreign state].)
More importantly, the April 5, 2011, order does not address, let alone deny, reunification services. As noted, Father’s counsel argued that Father, in his first section 388 petition, had expressed willingness “to work on a plan, ” at which point the juvenile court interrupted, stating “[w]e’re not going to reargue the 388 motion.” Again, in this writ proceeding, we are examining the April 5, 2011, order, not the prior, appealable orders denying Father’s section 388 petitions.
We therefore conclude there was no erroneous order denying reunification services.
C. Visitation
Father additionally asserts the court erred in terminating his visitation rights. When a juvenile court sets a section 366.26 hearing, it must continue to permit the parent to visit the child pending the hearing, unless it finds visitation would be detrimental to the child. (§ 366.21, subd. (h).) Here, the court concluded Mother’s visits and other contacts had “tortured” the minors, in that they had been “mentally anguished” by them. Thus, the court suspended visits as to her, with directions to return to court in the event a minor’s therapist believed visits would be helpful. As to Father, the court did not find such “emotional[] detriment[], ” but also suspended contact, again with a proviso to return to court if one of the minor’s therapists thought contact with Father would be beneficial. The court explained, Father “ha[d]n’t had contact with the children for so long.”
Father contends that, as to him, the evidence does not support a finding of detriment supporting the suspension of visitation, and asserts the suspension virtually destroys his ability to avoid termination of parental rights under section 366.26, subdivision (c)(1)(B)(i).
This provision permits a juvenile court to find a compelling reason not to terminate parental rights if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The record shows that, as of April 5, 2011, Father had not visited the minors in over two years and three months, and during that time had only contacted them only in mid-June 2010, by e-mail—nine months after his initial contact with the Bureau in September 2009 and about a year and six months after initiation of the dependency proceeding. Moreover, he failed to send any additional e-mails despite the court’s authorization to maintain regular e-mail contact and despite the case worker’s recommendation that he continue to communicate with the children. While J.S.1 was excited when the June 2010 e-mails were read, she had, earlier in the proceeding, said she did not want to talk to Father on the telephone and did not want to live with him. J.S.2 did not even recognize Father in the attached photographs. The foster mother told the minors she would read the e-mails and show them the attached photographs anytime they wished, but neither asked to see the messages again.
This evidence shows Father’s effort to maintain contact with his daughters over the long period they have been in the dependency system has been almost nonexistent. It also indicates that, as a result, J.S.1 has confused feelings about him, whereas J.S.2 no longer remembers him. It is also apparent the proceedings have taken a serious emotional toll on the girls and damaged their ability to build relationships within foster families. Viewing this evidence in the light most favorable to the juvenile court’s ruling (see, e.g., In re Monica C., supra, 31 Cal.App.4th at p. 306), we cannot say it fails to provide support for a finding of detriment underlying an order that does not preclude contact entirely, but suspends contact unless a minor’s therapist concludes contact may be helpful.
The authorities cited by Father are factually distinguishable and do not persuade us to the contrary. The evidence, moreover, suggests Father is in no position to complain. Having made virtually no effort to contact the minors during the course of this proceeding, it seems, in his case, the order did not actually “suspend” anything. We therefore conclude the court did not err in ordering the suspension of contact as to Father.
Disposition
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court., rules 8.454(a), 8.490(b)(3).)
We concur: Marchiano, P. J.Margulies, J.