Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate. D. Zeke Zeidler, Judge, Los Angeles County Super. Ct. No. CK64592
Los Angeles Dependency Lawyers, Inc., Law Office of Barry Allen Herzog, Ellen L. Bacon and Elizabeth Hong for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred W. Klink, Deputy County Counsel, for Real Party in Interest.
MANELLA, J.
Petitioner Rashawn B., father of Sierra B. and Raven B., petitions for writ of mandate to vacate the juvenile court’s order terminating family reunification services at the 12-month review hearing. Counsel for petitioner’s children joins in his petition. Petitioner contends that respondent Department of Family and Children’s Services (DCFS) did not establish by clear and convincing evidence that reasonable services had been provided. We agree and grant the petition.
A. Detention - August 2006
The children, aged three and eight, were detained in early August 2006 when sheriff’s deputies arrested petitioner for possession of significant quantities of rock cocaine, methamphetamines, and marijuana. At the time the children were living with petitioner and their mother, Keisha W. Petitioner was on probation, having previously been convicted of possession of drugs for sale. Shortly after the detention, he informed the case worker he had been sentenced to four years in prison and expected to serve 24 months, but did not know where the sentence would be served.
Keisha is not a party to this appeal.
B. Mediated Agreement - September 2006
In September 2006, petitioner, Keisha, and DCFS entered into a mediated agreement covering jurisdiction and disposition. The parties agreed that the children came under dependency jurisdiction based on the following count: “On or about 8/4/06, [petitioner and Keisha] placed the children in an endangering home environment in that [they] possessed large amounts of illicit drugs including rock cocaine, methamphetamine and marijuana in the children’s home within access of the children. Further [petitioner] was arrested for possession of a controlled substance for sale and probation violation. Further both parents have a criminal history of conviction of drug related charges. The endangering home environment established for the children by [petitioner and Keisha] places the children at risk of physical and emotional harm.”
As part of the mediated agreement, the parties agreed that the children would be placed with the paternal grandparents. Petitioner and Keisha were to complete a parenting program, participate in individual counseling, participate in a drug awareness program, and provide 10 consecutive clean random drug tests. The mediation agreement specifically provided that petitioner’s drug tests were to “commence when he is not in custody.” DCFS agreed to refer petitioner to programs while he was incarcerated. With respect to visitation, the agreement said Keisha was to have unmonitored day visits and petitioner was to have “monitored visits with DCFS discretion to liberalize when [he] is not in custody and when he is involved in programs and is testing clean.”
In the sole face-to-face meeting between petitioner and the case worker in September 2006, petitioner said he did not want the children to see him “in his incarcerated uniform” with an “unshaved face.”
Following the execution of this agreement, the court entered an order dated September 27, 2006, which stated with respect to petitioner: “[Petitioner] is ordered to attend a DCFS[-]approved program of parent education, individual counseling to address case issues and drug awareness program. ¶ Parents to submit to 10 clean random weekly consecutive drug tests.” The order further stated: “[Petitioner] to have monitored visits with discretion when released from custody and in compliance.”
C. Reunification Efforts - September 2006 to August 2007
1. Between Detention and Six-Month Review Hearing
In September 2006, the case worker contacted Pitchess Detention Center, where petitioner was incarcerated, and was informed that Pitchess does not offer any classes or programs for inmates. Petitioner was apparently transferred to Wasco State Prison (Wasco) shortly thereafter as the December 2006 interim review report reflects that on October 12, 2006, the case worker wrote to a counselor “Stoddard” at Wasco, advising him that petitioner had been ordered “to participate in individual counseling . . ., submit to 10 random drugs test[s] and participate in drug awareness programs toward reunifying with his children.” The letter went on to state that the case worker was soliciting the counselor’s assistance in “ensuring that [petitioner] has the opportu[]nity to participate in any of the above programs that might be available in [Wasco]” or, in the alternative, “mak[ing] arrangement[s] to transfer [petitioner] to a facil[i]ty where such programs are offered.” On the same date, the case worker wrote to petitioner stating: “The court has ordered you to participate in individual counseling to address case issues, 10 random drug test[s], and drug awareness programs towards reunifying with your children. I will appreciate if you can forward to me the name and phone numbers of your counselor to discuss the possibility of completing any of the available programs while you are incarcerated.” The letter noted that petitioner could call the case worker collect “to discuss the progress of your children.” By letter dated October 24, 2006, the case worker received a response from the warden at Wasco identifying petitioner’s counselor as A. Armendariz, stating that “[petitioner’s] assigned correctional counselor is aware of the situation and has met with [petitioner] to discuss his program and placement concerns,” and encouraging the case worker to contact petitioner’s counselor with further questions.
At an interim review hearing in December 2006, the court received the December 2006 report and ordered the case worker to contact petitioner’s correctional counselor “regarding enrolling [petitioner] in counseling.”
In the report prepared for the six-month review hearing in February 2007, the case worker claimed to have spoken with petitioner’s counselor “Stoddard” on October 12, 2006, and further claimed that the counselor “confirmed that [petitioner] could participate in the court[-]ordered program available at the facility pending his release.” The report also stated that the case worker had received a letter from petitioner on December 5, 2006 “indicating that he had chosen to go to another facility called fire camp so that he could be given seven months off his sentence” and that petitioner “opted for this in lieu of completing his court[-]ordered program at Wasco.” The report stated at one point: “[Petitioner] is currently incarcerated and has not been able to comply with the court[-]ordered programs.” (Italics added.) Elsewhere it stated: “[Petitioner] has not seized the opportunity provided at his previous incarcerated facility to engage in court[-]ordered programs per the letter written by the prison warden. [Petitioner] opted for sentence reduction and moved to another facility where he has no access to resources for enrollment in court[-]ordered programs per his letter written to the [case worker]. [Petitioner] planned to enroll in court[-]ordered programs after his release from prison. [Petitioner] is not scheduled for release until [the] end of next year.” (Italics added.)
We note that in the prior report, the case worker stated that he had only written to Stoddard on that date, that nothing in the case worker’s October 12, 2006 letter to Stoddard indicated that the parties had ever spoken, that in his letter to petitioner of the same date, the case worker asked petitioner to provide the name and telephone number for his counselor, and that petitioner’s counselor was identified by the warden’s October 24 letter as A. Armendariz.
Attached to the February 2007 report were two undated letters from petitioner. One stated: “I am currently involved in my training to go to fire camp. Once I get to fire camp they will take about six months off my sentence. . . . Upon my release I will complete all programs asked of me by the court. . . .” The other stated: “I am more than willing to participate in any counseling an[d] drug program that the court would like me to. I also want you to know that the facility that I am in is a fire camp [and] those programs are not offered here, but in return for fighting fires I get about seven months off my sentence. So if possible I would like to start the programs upon my release so if this is ok I will contact you upon my release to get everything taken care of. I have also tried to call you collect but it does not go thr[ough]. Please allow me to finish up here an[d] I will be in contact with you.” A third letter apparently written around the same time, but not received by the case worker until later, stated: “I don’t want to be present at the hearing on 2-21-07. I am about a week away from leaving here an[d] going to the camp. . . . [U]pon my release from prison I will attend parenting and drug classes. . . .”
At the February 2007 six-month review hearing, the court found that petitioner was in compliance with the case plan and set the matter for an interim review hearing to review Keisha’s progress in April.
2. Between Six-Month and 12-Month Review Hearing
By April 2007, petitioner had written another letter to the case worker. It stated he had been placed in the fire camp “by the State of California after it was recommended by the judge who sentenced me” and that at Wasco he was in “what they call reception” for 45 days, and “there [was] no way possible that [he] could have attended any classes given.” The report prepared by the case worker for the interim review hearing concentrated on Keisha’s efforts, saying nothing about petitioner or his letters. The order issued at the interim review hearing stated that Keisha was in partial compliance with the case plan, but said nothing about petitioner.
The 12-month review hearing was first scheduled for August 2007. The report prepared by the case worker in anticipation of the hearing focused almost entirely on Keisha. The only comments concerning petitioner stated: “[Petitioner] has not complied with court[-]ordered programs”; “[Petitioner] is currently incarcerated and no visitation was reported with [him] due to [his] being relocated in another facility up north. [Petitioner] was reported to have been calling and speaking with the children on a regular basis through the phone”; and “[Petitioner] is currently incarcerated and was reported to be due for release in 2008. [His] current facility do[es] not have programs to enable him [to] participate in court[-]ordered programs. [He] stated that he would be willing to complete the court[-]ordered programs once he is released.” The report recommended termination of reunification services for both parents.
D. 12-Month Review Hearing
The 12-month review hearing was continued to October 11, 2007 for contest. At the hearing, the case worker was called by petitioner. The case worker testified that petitioner had been required to take parenting classes, submit to drug testing, and enroll in individual counseling in order to comply with the court’s order and the parties’ mediated agreement. To assist petitioner with compliance, the case worker “wrote a letter to the counselor and informed the counselor of the programs that were ordered by the court and . . . asked the counselor to provide [petitioner] an opportunity to do those programs, if they [were] available in that placement.”
Petitioner waived personal appearance at the hearing and was represented by counsel.
The case worker was asked about his delivered service log and why it indicated no contact with petitioner between January 2007 and August 2007. He replied he had had no personal contact with petitioner because petitioner was incarcerated 500 miles away and petitioner had been told in a letter to call the case worker collect. The case worker conceded he had not contacted the fire camp to determine whether any programs pertinent to reunification were available, explaining that this was because he had believed petitioner when he said that no such services were available. The case worker admitted he did not try to find out if it was possible for petitioner to accomplish the goals of reunification through alternative means, such as through self-study, correspondence or online courses. The case worker further testified he did not respond to any of petitioner’s letters, stating that this was because “[h]e was not asking me questions, he was telling me that is what he wanted to do.” The case worker explained: “I’m thinking that if I go ahead and push further . . . when he’s not ready, he’s not going to do it . . . [I]f I decided to . . . put pressure on [petitioner] to get these things done when he has told me, [he] would be . . . ready to do it when he is released, that would be like asking him to do something he was not willing to do at that point . . . .”
The case worker referred to a “March” letter containing this information. The only correspondence from the case worker to petitioner in the appellate record is dated October 2006.
After hearing the evidence, petitioner’s counsel asked the court to rule that reasonable services had not been provided to petitioner and to extend reunification for six months. The minors’ counsel joined in that request. The court ruled that clear and convincing evidence established that reasonable services had been provided. The court also found that “[e]ven if [petitioner] did online stuff, the individual counseling would be a definite sticking point at the 18-month date and the drug testing would not have happened yet.” The court terminated reunification services and set the matter for a section 366.26 hearing. Petitioner noticed his intention to seek a writ.
DISCUSSION
A. Adequacy of Reunification Efforts
Reunification services for incarcerated parents are governed by section 361.5, subdivision (e)(1), which provides that the court “shall order” reasonable services to the incarcerated parent or guardian of a child subject to dependency jurisdiction, “unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.” Subdivision (e)(1) further provides that “[r]eunification services are subject to the applicable time limitations imposed in subdivision (a).” Section 361.5, subdivision (a) limits services where the dependent child is three years of age or older to a maximum period of 18 months. The reunification period may be terminated earlier, at the 12-month review hearing, and a section 366.26 hearing set, but only if the court finds by clear and convincing evidence that reasonable services were provided or offered to the parent. (§ 366.21, subd. (g)(1); In re Alanna A. (2005) 135 Cal.App.4th 555, 564.) “Courts may not initiate proceedings to terminate parental rights unless they find adequate reunification services were provided to the parents, even when the parents are incarcerated.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)
Statutory references herein are to the Welfare and Institutions Code.
The governing statute provides that reasonable services “may include” the following: “(A) Maintaining contact between the parent and child through collect telephone calls. (B) Transportation services, where appropriate. (C) Visitation services, where appropriate. (D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.” (§ 361.5, subd. (e)(1).) In addition, “[a]n incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.” (Ibid.) The adequacy of any specific reunification plan and of DCFS’s efforts with respect to a particular incarcerated parent are “judged according to the circumstances of the particular case.” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011 (Mark N.)
Courts have made clear that DCFS must exercise its best efforts in assisting incarcerated parents to achieve reunification with their children “in spite of the difficulties in doing so or the prospects of success.” (Mark N., supra, 60 Cal.App.4th at p. 1011); accord, In re Maria S. (2000) 82 Cal.App.4th 1032, 1039; Robin V. v. Superior Court, supra, 33 Cal.App.4th 1158, 1164.) Accordingly, DCFS cannot take a “mechanical approach” in formulating a reunification plan for an incarcerated parent. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406.) When a parent is likely to be imprisoned for much of the reunification period, the case plan must be adjusted to reflect that fact and DCFS may need to consider alternatives to help the parent meet the requirements of the case plan that are not available in the prison. (Mark N., supra, at p. 1014; see Robin V. v. Superior Court, supra, 33 Cal.App.4th at pp. 1163, 1165 [DCFS unreasonably ignored incarcerated father’s request for books or other materials on parenting].) In order for this process to succeed, the case worker must contact the relevant institutions to determine what specific services are available to the incarcerated parent and whether there is any way to make additional services available. (Mark N., supra, 60 Cal.App.4th at pp. 1012-1013.) The case worker must also maintain contact with the incarcerated parent throughout the reunification period. (Ibid.) DCFS does not meet its obligations when “being unaware of any resources to assist the incarcerated parent with reunification, [it takes no] action to facilitate the reunification process.” (Ibid.) Courts have specifically held that DCFS “act[s] unreasonably” if it “delegate[s] to [the incarcerated parent] the responsibility of sending [the] case worker a list of available services in prison” (In re Monica C. (1995) 31 Cal.App.4th 296, 307) or takes the word of the incarcerated parent that no services are available (Mark N., supra, 60 Cal.App.4th at p. 1013).
Here, the juvenile court specifically found that the reunification services provided to petitioner prior to the 12-month review hearing were reasonable. The applicable standard of review requires that “‘[a]ll reasonable inferences must be drawn in support of the [juvenile court’s] findings” and that “‘the record . . . be viewed in the light most favorable to the juvenile court’s order.” (In re Maria S., supra, 82 Cal.App.4th at p. 1039.) Even when viewed under that standard, the record does not support the court’s finding of reasonable reunification services. The record is clear that inadequate effort was made to determine whether any suitable programs or any alternatives were available to petitioner, and that the case worker failed in his obligation to maintain reasonable contact with petitioner.
Petitioner was required to participate in a parenting program, individual counseling, and a drug awareness program, and to provide 10 consecutive clean drug tests after his release. The statute specifically states that an incarcerated parent can be required to attend such programs only “if these programs are available.” (§ 361.5, subd. (e)(1).) The responsibility for ascertaining the availability of such programs rests squarely on DCFS. (In re Monica C., supra; Mark N., supra.) When petitioner was transferred to Wasco, the case worker’s efforts to determine the specific programs available and ensure that petitioner had an opportunity to avail himself of them consisted of a single letter to a counselor at Wasco asking the counselor to “ensur[e] that [petitioner] has the opportunity to participate in any of the [required] programs that might be available in your facility.” The letter itself contained incorrect information regarding petitioner’s required programs. It said nothing about the required parenting class and stated that petitioner was to be drug-tested in prison, although the mediated agreement specified that drug testing was to take place after his release. When the warden responded vaguely that “[petitioner’s] assigned correctional counselor is aware of the situation and has met with him to discuss his program and placement concerns,” the case worker concluded his mission was accomplished and made no further effort to contact prison personnel or otherwise assist petitioner, even after he was transferred to a new facility, the fire camp.
Because petitioner agreed to the disposition, he waived any objection he might have made to the particulars of the reunification plan. We note, however, that at the time the plan was formulated, he was housed at Pitchess where, the case worker later discovered, no services were available, and neither he nor DCFS knew where he would be transferred or what services would be available to petitioner following the transfer. It is difficult to see how a plan formulated in ignorance can be considered reasonable in view of the statutory provision that an incarcerated parent can be required to attend programs only “if these programs are available.” (§ 361.5, subd. (e)(1).)
Respondent contends that there was a conflict in the evidence concerning whether petitioner could have availed himself of relevant services at Wasco and that the court was free to disbelieve petitioner. To support this contention, respondent relies on the statement in the February 2007 report in which the case worker claimed to have spoken with petitioner’s counselor at Wasco on October 12, 2006 and claimed to have been told “[petitioner] could participate in the court[-]ordered program available at the facility pending his release.” As discussed, it is unlikely that any such conversation took place. Moreover, the counselor’s reported statement does not clarify whether specific, relevant programs or services were available to petitioner. It merely says that to the extent programs were available, petitioner could participate in them.
Moreover, apart from a single letter sent in October 2006, the case worker made no attempt to keep in contact with petitioner. Petitioner’s numerous letters received no response. Although DCFS contends no response was necessary, the letters clearly called for assistance and advice. The letters informed the case worker that programs were not available at the fire camp and asked whether DCFS was agreeable to petitioner’s participating in the necessary programs and undergoing the necessary counseling when he earned early release from prison. The case worker’s silence allowed petitioner to believe that his suggestion of waiting until his February 2008 release date to begin parenting classes, drug awareness, and counseling would satisfy DCFS. A single contact during a 12-month reunification period is not sufficient contact, particularly where the parent is making considerable effort to apprise DCFS of his situation and his significant problems in completing the plan.
DCFS attempts to shift the blame for failure to complete the reunification plan to petitioner alone. Its brief states: “[G]iven the nature and size of the [fire] camp, the availability of programs would be something petitioner could reasonably be expected to know. If, on the other hand, suitable programs were available and petitioner falsely claimed they were not, that would simply be a case of him electing not to become involved in the programs during his stay at he camp. In either event, under the circumstances, the social worker acted reasonably in taking petitioner’s word that no programs were offered.” These are not the only possibilities. A third alternative is that petitioner was not fully aware of what services were or might have been made available had DCFS contacted the facility. At a minimum, the case worker should have investigated whether the information concerning the lack of suitable programs was accurate and, if so, made an attempt either to adjust the reunification plan or to consider suitable alternatives. Clearly, doing nothing at all for a substantial portion of the reunification period did not satisfy DCFS’s obligations to petitioner, and the court’s finding that reasonable reunification services had been provided by DCFS was unsupported.
B. 18-Month Deadline
The record indicates that one basis for the court’s ruling was the concern that petitioner would be unable to reunify with his children within the 18-month deadline for provision of services because it appeared likely that completion of all the specific elements of his program would not take place until after his release in February 2008 -- almost precisely 18-months after the detention. We cannot deny the legitimacy of the court’s concern, but an order terminating reunification services at the 12-month review hearing must be based on evidence that reasonable services were provided in the past, not on concerns about the future. (In re Alanna A. supra, 135 Cal.App.4th at p. 564; Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1164.) Had a serious attempt been made to investigate and analyze petitioner’s situation, substantial compliance with the plan might have been accomplished by the 18-month deadline and permitted him to reunite with his children on or shortly after his release.
The court specifically stated that even if alternatives to parenting and drug awareness programs could have been found, “the individual counseling would be a definite sticking point at the 18-month date and the drug testing would not have happened yet.” We note that DCFS had agreed that drug-testing could take place after petitioner’s release.
Moreover, courts have held that in exceptional circumstances reunification services can be extended beyond the 18-month deadline set forth in section 361.5. (See, e.g., In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1780 [where no reunification plan was ever developed for incarcerated father, court had discretion to continue 18-month review hearing]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213 [same conclusion where reunification plan was developed but not implemented]; In re David D. (1994) 28 Cal.App.4th 941, 955-956 [same conclusion where court’s orders improperly impeded reunification]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799 [same conclusion where mother was institutionalized for all but five months of the reunification phase and was released just prior to the 18-month review hearing]; In Monica C., supra, 31 Cal.App.4th at pp. 308-311 [where it appeared the incarcerated parent would remain in prison past the 18-month deadline, juvenile court must at least consider long-term guardianship rather than termination of parental rights and adoption].)
Here, the worst that can be said about petitioner is that he opted for a substantial reduction in his sentence and an opportunity to learn skills that could serve him as a law-abiding member of society in lieu of a longer sentence and completion of some of the required programs. If there were in fact no possibility that petitioner could complete parenting or drug awareness programs or undergo counseling while housed at the fire camp and completion of the plan had to await his release in February 2008, the court would have been free to consider whether exceptional circumstances -- petitioner’s willingness to fight fires in order to obtain early release -- justified extending the 18-month period beyond that date.
This leads to the question what should be done now, as petitioner has been provided no services and both the 18-month deadline and his release date are approaching. As it will undoubtedly be too late once this opinion is issued to obtain any services for petitioner during his incarceration, the only alternative is to extend reunification for at least six months after petitioner’s release date. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 975 [“The remedy for a failure to provide reasonable reunification services is an order for the continued provision of services, even beyond the 18-month review hearing.”]; In re Monica C., supra, 31 Cal.App.4th at p. 311 [where parent was released during pendency of appeal, after remand “reunification services can . . . be offered under normal conditions applying to a non-incarcerated parent”].) DCFS and the court must ensure that services are made available to petitioner during that period.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the juvenile court to vacate its order terminating reunification services for petitioner and setting a section 366.26 hearing. The court is directed to enter a new and different order resuming reunification services for petitioner consistent with the views expressed in this opinion.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
The date of petitioner’s transfer from Wasco to the fire camp is unclear. The case worker’s December 2006 report continued to list petitioner’s address as Wasco. The February 2007 report contained a new address for petitioner in Northern California. The fire camp where petitioner was serving his term is apparently located in Northern California, near Redding.