Opinion
D059435 Super. Ct. No. SJ11679A
08-29-2011
In re GISELLE G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GERARDO G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from findings of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Reversed.
Gerardo G. appeals the finding that he was offered or provided reasonable reunification services. We reverse and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Giselle G. is the five-year-old daughter of Gerardo G. and Elena M. Giselle tested positive for methamphetamine at birth. She was a dependent of the juvenile court from August 2006 to September 2008, when she was returned to her mother's care. Gerardo participated in services until he was incarcerated on drug charges in October 2007.
On August 15, 2009, Gerardo was arrested and incarcerated for felony domestic abuse for inflicting great bodily injury to Elena, and other related charges. Elena sought and obtained a civil restraining order prohibiting Gerardo from contacting her, and from contacting Giselle and Giselle's three older half siblings (siblings) until further order of the court.
In March 2010 Giselle and her siblings were detained after the siblings' father assaulted Elena and physically injured a sibling. The San Diego County Health and Human Services Agency (Agency) detained Giselle with the paternal aunt (caregiver) who had cared for her during the earlier dependency case.
Gerardo told the social worker he wanted to participate in services, visit with Giselle and the siblings, and reunify with Giselle.
At the jurisdiction and disposition hearing, Gerardo presented evidence showing he was participating in 12-step programs, drug education, parenting classes and AIDS education while in custody. The juvenile court authorized a $25 per month calling card to allow Gerardo to check on Giselle's welfare and have supervised telephone contact with her, and ordered the Agency to provide services to each parent consistent with the case plan, which included visitation services.
In this context, a "calling card" is a monetary deposit into a prisoner's account to allow them to telephone the social worker, caregiver or child without making a collect call.
On May 6 the criminal court sentenced Gerardo to three years' probation and entered a criminal protective order prohibiting Gerardo from having any contact with Elena. On May 10 the juvenile court modified the civil restraining order to permit Gerardo to visit Giselle, and directed him to set up any and all visitation with Giselle through the social worker. The juvenile court also ordered supervised visitation with the siblings, who wanted to visit Gerardo.
The social worker telephoned Gerardo on May 21 and June 2 to set up visitation. Gerardo did not return her calls. He later testified he did not contact the social worker because his mother was in a coma for a month and died in mid-June. Gerardo saw Giselle at his mother's funeral but did not make contact with her because he did not know whether it was permitted.
Gerardo was arrested in early July and again on August 3. On August 22 he wrote a letter to a social worker stating he tried to call her collect many times but the telephone system would not allow him to leave a message. Gerardo stated he loved his daughter very much and was very interested in her welfare.
Another social worker was assigned to the case on September 15. The caregiver told the social worker she was able to facilitate visitation between Giselle and Gerardo. The social worker knew that the juvenile court had ordered visitation services, and that Gerardo had contacted the Agency in August to request visitation with Giselle.
At a hearing on November 3, Gerardo's attorney informed the juvenile court that Gerardo had not yet received a calling card. Gerardo's attorney, who did not represent him at the May 10 hearing, informed the juvenile court that multiple restraining orders had been issued and there was some confusion about what they did and did not allow with respect to visitation. The court ordered $25 per month for a calling card, authorized the social worker to provide supervised visitation and phone contact between Gerardo and Giselle, and set another hearing to address the restraining orders.
At a hearing on November 15, Gerardo said he had not received a calling card. He submitted two restraining orders to the juvenile court and noted that the orders permitted him to have contact and visitation with Giselle and her siblings. Gerardo asked the social worker to facilitate visitation at least once a month. The juvenile court asked whether the calling card had fallen into a black hole and ordered a $25 per month calling card "one more time," and authorized supervised visits subject to the rules and regulations of the facility to occur once a month.
Gerardo was moved to Richard J. Donovan Correctional Facility (Donovan) on November 30. A social worker who was responsible for setting up visitation for parents and children said Donovan required a background check on all individuals bringing children to visit a prisoner, and allowed visitation only on Saturdays. The background check took six to eight weeks to complete and required the applicant to provide his or her personal information to the facility.
On January 12, 2011, an Agency supervisor met with the caregiver and said he would help her obtain a background check to allow her to bring Giselle to visit Gerardo at Donovan.
At a hearing on January 18, Gerardo asked the juvenile court to order a $25 calling card. The juvenile court issued an order authorizing a $25 per month calling card.
On January 19 the Agency supervisor telephoned the caregiver's home to arrange a visit between Gerardo and Giselle while Gerardo was temporarily in local custody. The supervisor was not able to reach the caregiver.
On January 20 an Agency employee submitted a request to set up a calling card account for Gerardo at Donovan.
On February 2 the Agency supervisor sent the visitation questionnaire to the caregiver. The caregiver completed the forms and sent them to Gerardo.
On March 17 Gerardo telephoned a relative and said he had not received a calling card or the caregiver's paperwork. The social worker said they would look into the matter and assist the caregiver so Gerardo could visit with Giselle "in the near future."
The often delayed six-month review hearing was held on March 18. Gerardo asserted he was not offered or provided reasonable services because he did not receive visitation services. County counsel acknowledged there was a delay setting up visitation between Gerardo and Giselle at Donovan.
The social worker testified she was aware of the visitation orders issued on May 10 and November 15, 2010. Gerardo contacted the Agency in August to request visits with Giselle. The social worker indicated it was out of the scope of her duties to submit the personal information required to personally facilitate visitation at Donovan.
Gerardo testified he believed there had been a restraining order in place during summer 2010 prohibiting him from contacting Elena, Giselle or the siblings. He acknowledged he appeared telephonically at the May 10 hearing at which time the juvenile court modified the restraining order to permit him to visit Giselle and the siblings.
The juvenile court found that Gerardo made some attempts to participate in services but did not make substantive progress with his case plan. The juvenile court noted Gerardo did not contact the social worker when he was out of custody, found that he was offered or provided reasonable services, and continued family reunification services to the 12-month review date.
DISCUSSION
Family reunification services play a critical role in dependency proceedings. (Welf. & Inst. Code, § 361.5; In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Joshua M. (1998) 66 Cal.App.4th 458, 467; see 42 U.S.C. § 629a(a)(7).) The provision of reunification services reflects the strong legal preference for maintaining family relationships if at all possible. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011 (Mark N.).) "With respect to an incarcerated parent, there is a statutory requirement that reunification services be provided 'unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor.' (§ 361.5, subd. (e)(1).)" (Ibid.)
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
"Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings." (In re Mark L. (2001) 94 Cal.App.4th 573, 580; In re J.N. (2006) 138 Cal.App.4th 450, 458.) Without reasonable visitation, the erosion of any meaningful relationship between a parent and his or her child is "virtually assured." (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.) To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A); In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
To support a finding reasonable services were offered or provided, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The "adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Reunification services should be tailored to the particular needs of the family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793.) The social services agency must make a " ' " 'good faith effort' " ' " to provide reasonable services that are responsive to each family's unique needs. (Mark N., supra, 60 Cal.App.4th at p. 1010.) If reasonable services are not provided or offered to the parent, the court is required to continue the case for the period of time permitted by statute. (See § 366.21, subds. (e), (g)(1).)
We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
The Agency contends it made reasonable efforts to contact Gerardo to set up visitation after the restraining order was modified in May 2010, and the Agency was not required to set up visits for Gerardo after he was incarcerated in August 2010 because he did not contact the social worker to request visits. The Agency acknowledges services were not perfect but argues they were reasonable under the totality of the circumstances.
Although the record shows the Agency made reasonable efforts to implement the court-ordered case plan from April through July 2010, we are concerned by the Agency's lack of compliance with juvenile court orders from August 2010 to January 2011.
The social worker testified Gerardo asked the Agency for visitation in August 2010 and she was aware of prior court orders for visitation. There is nothing in the record to indicate the Agency attempted to provide visitation to, or coordinate other services for, Gerardo while he was in local custody in August, September, October and November 2010. After Gerardo was transferred to Donovan, the Agency acknowledges and the record shows, there was a two-month delay before the Agency took the necessary steps to facilitate visitation.
Further, the record indicates the Agency did not promptly comply with the juvenile court's directives to provide a monthly $25 calling card to Gerardo while he was incarcerated. At the April 2010 jurisdictional/dispositional hearing, the juvenile court stated: "I am providing you with the $25 a month in collect calls so you may check on the welfare of your child." The juvenile court ordered the Agency to provide a $25 monthly calling card to Gerardo. There is nothing in the record to indicate the Agency attempted to comply with those orders. After being advised by counsel that Gerardo did not receive a calling card, the juvenile court ordered a calling card for Gerardo on November 3 and November 15, 2010, and January 18, 2011. On January 20 the Agency took steps to implement the juvenile court's order. The record does not indicate why Gerardo had not received the calling card by March 17.
In reaching the conclusion there is not substantial evidence to support the juvenile court's finding of reasonable services as to Gerardo, we consider the Agency's delay in complying with juvenile court visitation orders, the unnecessary burden on the parent and counsel to have to ask the Agency to comply with existing juvenile court orders, and the adverse impact on judicial economy when the juvenile court is required to reiterate its orders. (See, e.g., Burchard v. Garay (1986) 42 Cal.3d 531, 535 [noting the importance of judicial economy in child custody matters].)
Here, the juvenile court ordered the Agency to provide visitation services, including provisions for telephone contact, as part of the initial case plan in April 2010. It modified a restraining order to permit contact between Gerardo and Giselle in May. In November Gerardo asked the juvenile court to clarify the terms of the restraining order and direct the Agency to provide visitation services to him. The juvenile court ordered the Agency to facilitate visitation and contact between Gerardo and Giselle in November 2010 and again in January 2011. The record shows that the Agency did not take steps to implement those orders until mid-January and February, and visitation and telephone contact were not in place by mid-March 2011.
Notwithstanding repeated requests by counsel and repeated orders by the juvenile court to the Agency to provide visitation services and the means for telephone contact with Giselle to Gerardo, Gerardo did not have any contact or visitation with Giselle while he was incarcerated. (See In re S.D. (2002) 99 Cal.App.4th 1068, 1077 ["There is no 'Go to jail, lose your child' rule in California"].) " '[I]ncarcerated parents . . . suffer obvious obstacles to visitation. Nevertheless the law is clear that reasonable services, most particularly visitation, must be provided.' (Citation.)" (In re Precious J. (1996) 42 Cal.App.4th 1463, 1478.) Gerardo's conduct while he was out of custody does not excuse the Agency from providing reasonable services to him while he was incarcerated. (Id. at p. 1479.) Thus, the matter must be remanded for compliance with the juvenile court's order for family reunification services, including reasonable visitation services. (In re Calvin P. (2009) 178 Cal.App.4th 958, 962 [because the social services agency disregarded the juvenile court's order for reunification services, the order must now be implemented and services provided to the parent].)
DISPOSITION
The finding that reasonable services were offered or provided to Gerardo is reversed. The matter is remanded to the juvenile court with directions to offer or provide six months of family reunification services to Gerardo.
O'ROURKE, J. WE CONCUR:
MCDONALD, Acting P. J.
IRION, J.