Opinion
D075729
09-24-2019
In re L.T. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANGEL T., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ15476A-C) APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Angel T. (Father) appeals from orders denying him reunification services with his three youngest children, five-year-old L.T., four-year-old A.T., and three-year-old M.T. (collectively, the children). He argues that the juvenile court erred when it relied on Welfare and Institutions Code section 361.5, subdivision (e)(1) (section 361.5(e)(1)), which applies when a parent is incarcerated and the court finds by clear and convincing evidence that services would be detrimental to the child. He also challenges the court's visitation order, asserting that it unlawfully delegated judicial authority to the children's attorney to determine whether visitation would occur. We conclude that substantial evidence supported the juvenile court's order denying reunification services, and that Father forfeited the alleged error regarding the visitation orders by failing to object below. Accordingly, we affirm the orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Mother are married and have five children together. The two oldest children, a son and daughter, are not part of this appeal. In July 2018, the San Diego County Health and Human Services Agency (Agency) substantiated allegations of general neglect by the parents as to all five children. In November 2018, the Agency substantiated an allegation of sexual abuse by Father of the oldest daughter. In late January 2019, the parents were arrested on drug charges and the Agency took the three children into protective custody. By that time, the two older siblings resided with the maternal grandparents and refused to visit either parent. The parents and the three children lived in a vehicle and motels. Mother admitted that she smoked methamphetamine four times a day and reported that Father smoked heroin twice daily. Father, however, denied drug use.
At the detention hearing the juvenile court found a prima facie showing had been made that the children were persons described by section 300, subdivision (b). The court authorized in custody visitation between the children and the parents on the condition that the children did not express or exhibit undue fear or anxiety. It also permitted $25 per month, per parent, in collect phone calls with the children.
In February 2019, the parents pleaded guilty to their criminal charges. The probation officer expected that Mother would serve a 90-day sentence and then be released into a residential substance abuse recovery program. Father would likely receive a four year sentence, with possible release after two years. At that time, the children resided with the maternal grandparents and their older siblings.
At the contested jurisdiction and disposition hearings in April 2019, the juvenile court sustained the petitions. It declared the children dependents, removed physical custody from the parents, and ordered the children placed with the maternal grandparents. After noting that Mother would be released in approximately six weeks, the court directed the Agency to provide her reunification services. It denied services to Father, finding, "even if the most beneficial interpretation can be placed on [Father's] length of time in custody, it would exceed the statutory [reunification] time frame."
The juvenile court ordered visitation by telephone and mail for Father. It also ordered contact visitation for Father, stating:
"Okay. I'm going to frame it in this way. [¶] I'll order the contact visits on the following conditions: First, the distance of travel for the children to the father must be taken into account with respect to detriment. Again, by way of example, that if the father's housed in Northern California, that would require a one- or two-night overnight trip for what would amount to a one-hour visit and that would be overwhelming for the children unless there's other evidence. Second, the children must not express or exhibit any undue fear or anxiety with respect to visiting the father in that setting.
"The state prison system settings are different from local jails. There's the cacophony of noise. The simple smells are different. The number of checkpoints or doors the children have to go through typically are more in the State penal system than they are here. These are all things as adults we have a reaction to. Children at this age, it can be very upsetting, and finally, it would have to be with concurrence with [the children's attorney] since she's the guardian ad litem." (Italics added.)
DISCUSSION
1. Reunification Services
Father contends that the juvenile court mistakenly found he would be incarcerated past the maximum 24-month reunification period and thus erred when it denied him reunification services under section 361.5(e)(1). He claims that granting services would help provide the assistance he needed to maintain his sobriety, but would not delay permanency for the children.
Reunification services must be provided to incarcerated parents "unless the court determines, by clear and convincing evidence, those services would be detrimental to the child." (§ 361.5(e)(1).) The services provided may include telephone calls, transportation and visitation where appropriate, reasonable services to the child's caretakers, and requiring that the incarcerated parent "attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided." (§ 361.5, subd. (e)(1)(A)-(D).) The Agency, however, has no control over what services a prison makes available to incarcerated parents. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1013.)
"In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration, institutionalization, or detention within the reunification time limitations described in subdivision (a), and any other appropriate factors." (§ 361.5(e)(1).) Services are provided for 12 months after the child enters foster care, for a child three years of age or older. (§ 361.5, subd. (a)(1)(A).) Services can be extended for up to 18 months where there is a substantial probability the minor will be returned within the extended period, and up to 24 months in limited circumstances. (§ 366.21, subd. (g)(1), § 366.22, subd. (b); § 361.5, subds. (a)(3)(A), (a)(4)(A).)
See § 366.21, subd. (g)(1) [case can be continued up to 18 months where there is "substantial probability" child will be returned during period (or reasonable services were not provided), with probability based on regular contact, "significant progress" in resolving problems leading to removal; and parent's capacity to complete objectives of treatment plan]; § 366.22, subd. (b) [continuation up to 24 months when child's best interest is met by providing more services to parent in court-ordered residential substance abuse treatment program; who was a minor or dependent; or recently discharged from incarceration, where there is substantial probability of return or lack of reasonable services]; § 361.5, subds. (a)(3)(A), (a)(4)(A) [extension of services during continuation periods, consistent with §§ 366.21 & 366.22]. --------
We review an order denying reunification services for substantial evidence. (In re James C. (2002) 104 Cal.App.4th 470, 484.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In February 2019, Father informed the Agency that he would be sentenced the following month, his plea bargain provided a four-year sentence, and he would receive two years of credit. Based on this information, Father argued that he would be released from custody in approximately 12 to 18 months. In contrast, in April 2019, the district attorney's office informed the social worker that Father received a four-year sentence on March 14, 2019, Father had 96 days of credit and must serve a minimum of 80 percent of his sentence before being considered for release. This incarceration period is 35.25 months, well beyond the 24-month outer limit on reunification services.
The juvenile court denied reunification services after addressing the section 361.5(e)(1) factors, considering Father's sentence to be the "primary factor." The court impliedly considered the conflicting evidence and essentially discounted Father's evidence when it concluded that Father's period of incarceration would "exceed the statutory time frame." Father's anticipated release, well after the end of the reunification period, amply justified the juvenile court's decision to deny reunification services. Because substantial evidence supported the juvenile court's order and there is no indication that the children would suffer any detriment from Father not receiving reunification services, we must affirm. Nevertheless, even assuming Father correctly stated that he is entitled to two years credit and would be released in 12 to 18 months, on confirmation of his release date Father may petition the court for modification of any order upon grounds of a change of circumstances or new evidence. (§ 388.)
2. Visitation Order
Father argues the juvenile court erred in ordering visitation with his children, but only with minors' counsel's concurrence. The Agency responds that Father's failure to object to the orders precludes us from considering the issue. Father concedes that he did not object to the visitation component of the court's order, but contends we should exercise our discretion to address the merits of his argument because it presents a question of law, the Agency addressed the merits, and other courts have reviewed dependency orders delegating a visitation decision despite a failure to object in the trial court.
We generally "will not consider a challenge to a ruling if an objection could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.).) The purpose behind this rule is "to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (Ibid.) "[T]he appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court's discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. 'Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.' [Citation.] Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance." (Ibid.)
When the Supreme Court decided S.B., it concluded that the appellate court did not abuse its discretion by excusing a forfeiture because "[t]he appeal presented an important issue of law: whether a juvenile court in a dependency case may delegate to the child's legal guardian the authority to decide whether a parent may visit the child, a question that has divided the Courts of Appeal." (S.B., supra, 32 Cal.4th at pp. 1293-1294.) Here, Father made no attempt to demonstrate that the case presents an important legal issue such that we should exercise our discretion to excuse his forfeiture.
We reject Father's argument that judicial economy favors reaching this issue to avoid a future writ petition alleging ineffective assistance based on counsel's failure to object to the visitation order. To prevail on a claim of ineffective assistance of counsel on direct appeal Father must demonstrate "(1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice." (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540.) We must affirm the judgment unless the record "affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission." (Id. at p. 1541.)
Existing authority suggests that Father's counsel had a rational tactical reason for not objecting to the visitation order in the juvenile court. Subdivision (f) of section 361.5 provides that where reunification services have been denied, "[t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." The permissive statutory language reflects the reality that "visitation is not integral to the overall plan when the parent is not participating in the reunification efforts." (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Accordingly, a juvenile "court may deny visitation to an incarcerated parent who has been denied reunification services, even in the absence of any showing that continued visitation would be detrimental to the child." (Id. at p. 460.) Given this authority, the juvenile court's order giving Father visitation with the concurrence of minors' counsel amounts to a discretionary benefit to Father, as the court could have simply denied Father any visits with the children. (In re Chantal S. (1996) 13 Cal.4th 196, 214 [juvenile court acted within its discretion denying visitation, thus, order allowing visitation as determined by therapist "amount[ed] to a windfall to father, not a violation of his rights"].)
Because Father's failure to object to the visitation order in the juvenile court forfeits his claim on appeal, we need not reach the merits of his attack on the order. Nonetheless, if in the future the Agency abuses its responsibility in managing the allowed visitation, Father has a remedy under section 388. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377 ["[I]f the agency is abusing its responsibility in managing the details of visitation, the parent . . . may bring that matter to the attention of juvenile court by way of a section 388 petition to modify the visitation order"].)
DISPOSITION
The orders are affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.