Opinion
F052228
5-16-2007
ROBERT G., Petitioner, v. THE SUPERIOR COURT OF KINGS COUNTY, Respondent; KINGS COUNTY HUMAN SERVICES AGENCY, Real Party in Interest
Judith A. Sanders for Petitioner. No appearance for Respondent. Peter D. Moock, County Counsel, and Bryan Walters, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J. and Kane, J.
This case arises from a contested six-month review hearing at which the juvenile court terminated petitioners reunification services as to his infant daughter G. and set a hearing pursuant to Welfare and Institutions Code section 366.26 to consider a permanent plan of adoption. Petitioner seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) to vacate the courts orders. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
G. is the youngest of three children, including two sons, born to petitioner and his wife, Marianne. Petitioner and Marianne are methamphetamine users, and petitioner has a significant history of domestic violence.
In early 2001, petitioner and Mariannes two sons were removed from their custody and adjudged dependents of the juvenile court. Over the next several years, both parents received extensive court-ordered services, and petitioner completed drug treatment, a parenting course and a 52-week domestic violence program. Nevertheless, petitioner and Marianne failed to reunify with their sons, and in September 2005 the boys were adopted by their maternal grandmother.
Meanwhile, petitioners violent propensity continued unabated. In 2003, he was convicted of making a terrorist threat to his mother and was sentenced to five years of probation. In July 2005, petitioner assaulted Marianne while she was holding then eight-month-old G., for which he was charged with misdemeanor battery.
In March 2006, the Kings County Human Services Agency (agency) took G. into protective custody and filed a dependency petition alleging petitioner and Mariannes drug abuse and domestic violence caused them to lose permanent custody of their sons and placed G. at risk of harm. (§ 300, subds. (b) & (j).) At the time, petitioner was awaiting disposition on the July 2005 assault case.
The juvenile court ordered G. detained pursuant to the petition and the agency placed her with paternal relatives. The court also ordered the agency to arrange supervised visitation. Petitioner visited G. weekly for two hours under the supervision of an agency social worker, who reported appropriate parent/child interaction.
The court also ordered the agency to initiate services to reunify the family. The caseworker asked petitioner to drug test and, after conferring with petitioners probation officer, recommended he complete another domestic violence program. However, petitioner did not believe he needed to participate in any further domestic violence counseling.
At the dispositional hearing in June 2006, the juvenile court sustained the petition and ordered reunification services for both parents. As relevant to this case, the case plan objectives required petitioner to refrain from criminal activity and comply with the conditions of his probation. The only service ordered under the plan required petitioner to complete an assessment to determine his need for domestic violence counseling and/or anger management instruction.
Following the dispositional phase of the hearing, the court granted an ex parte application and order filed in June 2006 to allow G. to accompany her relatives on an out-of-state trip from July 18 to October 3, 2006. Petitioners attorney commented that petitioner knew about the trip but was told G. would only be gone for two months rather than the two and a half months requested in the application. Petitioner complained he did not "have enough visits as it [was]" but did not otherwise object or raise the issue on appeal from the dispositional order.
Petitioners caseworker allowed him to satisfy the domestic violence component of his case plan by completing an eight-week parenting class and a 16-week anger management class. By late September, he had completed both classes. He also drug tested weekly for 25 weeks and tested negative each time. In addition, he visited G. weekly in June and in July until G. left on vacation in mid-July. In late September, petitioner was taken into custody on a probation violation for petty theft and drug possession. According to the minute order from the sentencing hearing, he was sentenced to the midterm of two years in state prison.
Subsequent to his incarceration, petitioner did not receive any visits with G. Consequently, petitioners last visit with G. occurred in July before she left on vacation.
In its six-month status report, the agency recommended that the court terminate services for both parents for noncompliance and proceed with adoption planning. The matter was contested at a hearing conducted on February 1, 2007, at which petitioner argued for continued services based on the agencys failure to facilitate in-prison visitation and his substantial compliance with his case plan.
The caseworker testified that petitioner was noncompliant with his service objectives because he was arrested and convicted of a crime during the reunification period. However, the caseworker acknowledged petitioner completed the classes ordered and seemed to have benefited from them. The caseworker further testified that the sentencing minute order reflected, and petitioners probation officer confirmed, that petitioners prison commitment was two years. The caseworker stated neither he nor anyone else knew when petitioner would be released from custody. He was not questioned about visitation.
Petitioner testified he kept in contact with G. while she was out of state by calling her one to two times a week. After he was imprisoned, he did not request visitation either by contacting the caseworker or inquiring of prison officials. He said the caseworker corresponded with him but did not mention visitation, and he did not know whom to ask at the prison. Petitioner further testified that he was G.s sole caretaker for the first year and a half of her life and that they shared a close bond. He stated the 2005 assault case was dismissed for insufficient evidence, and he was told by his counselors that he would be released from prison in July 2007. He also received a document, which he did not produce, allegedly affirming that date.
Following testimony, petitioners attorney argued that petitioner significantly complied with his case plan by completing his court-ordered services and demonstrating improved behavior because of them. Counsel also argued that petitioner did not receive reasonable services after his imprisonment because the agency made no effort to arrange visitation.
At the conclusion of the hearing, the court found the agency had complied with the case plan by making reasonable efforts to return G. to a safe home. However, it also found that petitioner and Mariannes failure to regularly participate in and make substantive progress in their court-ordered treatment plans created a substantial risk of detriment to G. if she were returned to their custody. It also found that petitioner had been sentenced to two years in state prison. Consequently, the court terminated services as to both parents and set a section 366.26 hearing to consider a permanent plan of adoption. This petition ensued.
DISCUSSION
Petitioner argues that the court erred in finding he was provided reasonable services and in finding he failed to regularly participate and make substantive progress in his court-ordered treatment plan. Therefore, he claims, the courts orders terminating his reunification services and setting a hearing to consider placing G. for adoption must be vacated.
In reviewing the correctness of a juvenile courts order terminating reunification services, we assess the sufficiency of the evidence to determine whether "`"there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible." [Citation.]" (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
Reunification services are generally limited to six months in cases such as this where the child was under the age of three years when removed from parental custody. (§ 361.5, subd. (a)(2).) Consequently, at the six-month review hearing, the court may terminate services and set a section 366.26 hearing if it finds clear and convincing evidence that the parent failed to participate regularly and make substantive progress in the court-ordered treatment plan. (§ 366.21, subd. (e).) However, the court must continue services to the 12-month review hearing if it finds services were not reasonable or finds a substantial probability that the child may be returned to parental custody within six months. (Ibid.)
In this case, petitioner satisfied the technical requirements of his service plan by completing the parenting and anger management classes. However, he failed to comply with the basic objectives of his case plan by breaking the law and violating his probation. Consequently, the court was correct in finding petitioner failed to make substantive progress in his court-ordered treatment plan. Therefore, in order to obtain relief from the courts order terminating services, petitioner would have to show either substantial evidence does not support the courts finding he was provided reasonable services or does not support the courts finding there was not a substantial probability of return.
Reunification services are offered for the purpose of reuniting parent and child and include visitation, where appropriate. (§ 361.5, subd. (e)(1)(C).) To be reasonable, the services provided need not be perfect. The "standard is not whether [they] ... were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
Petitioner claims he was denied reasonable services because the agency failed to facilitate visitation after July 2006. However, he waived his right to challenge any failure on the agencys part to facilitate visitation from July through early October 2006 by failing to appeal the courts order approving G.s absence from the state during that time. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) Therefore, the question becomes whether petitioner was denied reasonable visitation during the four-month timeframe from G.s return in October 2006 to the six-month review hearing in February 2007, and, if so, whether that warranted a finding visitation was universally unreasonable.
We conclude substantial evidence supports the courts finding that petitioner was provided reasonable visitation even though there is no evidence the agency made any effort to facilitate visitation during the period in question. We do so because, even assuming the agency made no effort to arrange in-prison visitation, four months of unreasonable visitation would not compel us to conclude petitioner was denied reasonable visitation for the entire period under review. On the contrary, he received two-hour weekly in-person visitation for approximately four months from the time of G.s removal in March until G.s departure in mid-July 2006. In addition, petitioner continued to visit with G. by telephone for the two to three months she was on vacation. Considering that petitioner received approximately seven months of reasonable visitation interrupted only by his own unlawful behavior, we find no reason to overturn the juvenile courts reasonable services finding based on four questionable months. Consequently, we affirm the courts finding petitioner was provided reasonable services.
We further conclude substantial evidence supports the courts finding that there was not a substantial probability G. would be returned to petitioners custody after another period of services. In order to find a substantial probability of return, the court must find all three of the following: the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection, and well-being. (§ 366.21, subd. (g)(1).) Though petitioner regularly visited G., his probation violation reflects his lack of progress in resolving the problem prompting G.s removal, and his two-year prison commitment effectively rendered him unable to complete the objectives of his case plan and provide a safe home for G. Consequently, we also affirm the courts finding there was not a substantial probability of return.
Having affirmed the challenged findings, we also affirm the courts orders terminating petitioners reunification services and setting the section 366.26 hearing. Accordingly, we will deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.