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San Diego Cnty. Health & Human Servs. v. S.V. (In re A.V.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 16, 2020
No. D076109 (Cal. Ct. App. Jan. 16, 2020)

Opinion

D076109

01-16-2020

In re A.V. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.V., Defendant and Appellant.

Monica Vogelmann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. EJ4301A-C) APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Monica Vogelmann, 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.

S.V. (Father) appeals orders terminating his reunification services provided to him as part of a juvenile dependency proceeding involving his three young children. He contends that the services provided by the San Diego County Health and Human Services Agency (Agency) were not reasonable and that the court erred in terminating those services at the six-month review hearing. We conclude that the juvenile court did not err in making its ruling and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)

In August 2018, the Agency petitioned the juvenile court under Welfare and Institutions code section 300, subdivisions (b) and (g), on behalf of four-year-old A.V, two-year-old R.V., and nine-month-old J.V. The Agency alleged that Father and J.V. (Mother) were unable to provide a suitable home for their children and that the children had been left without any provision for support due to the parents' incarceration. The petition also asserted that "syringes, some of which contained controlled substances, were located in areas of the home which were accessible to the [children] and parents admitted to the regular and on-going use of methamphetamine, including using drugs in the home where the [children] reside."

All further undesignated statutory references are to the Welfare and Institutions Code.

Mother is not a party to this appeal and, therefore, we largely confine our discussion to the facts relevant to Father.

As discussed in the detention report, Father was on parole following an earlier criminal offense and, during a parole compliance check of his residence by the San Diego County Sheriff's Department, a large number of syringes were found scattered around the house in locations accessible to the children. Many of the syringes were uncapped with exposed needles and loaded with what appeared to be heroin. When questioned, Father and Mother admitted to using methamphetamine in the home while the children were present. Both parents were arrested. The children were taken to Polinsky Children's Center while the Agency pursued placement with a relative.

The juvenile court found the Agency had made an adequate showing that the three children were persons described by section 300, subdivisions (b) and (g), and ordered them detained in out-of-home care. It directed that services be provided and allowed for supervised visits, if permitted, at the facilities where the parents were incarcerated.

In its jurisdiction/disposition report, the Agency noted that Father was released from jail on September 7, 2018, and wanted to enter a substance abuse program. A few days later, the entire family had a supervised visit. The Agency provided Father with a bus pass to facilitate additional visits. Father met with a substance abuse specialist, but had not yet entered a treatment program. Shortly after being released, Father tested positive for methamphetamine and thereafter admitted to a social worker that he used drugs shortly before the drug test. On September 20, 2018, Father was rearrested for violating his conditions of parole.

In the initial case plan proposed by the Agency, prepared before Father's reincarceration, Father's services focused on addressing his drug use, requiring him to stay sober, participate in services recommended by a substance abuse specialist, and to also participate in a parent education program. The plan provided for supervised visits between Father and the children.

At the jurisdiction and disposition hearing in October 2018, both parents were present but offered no affirmative evidence. Based on Mother's release from jail, the court accepted the Agency's request to dismiss the allegations under section 300, subdivision (g).

The court then sustained the allegations of the petition under section 300, subdivision (b). It placed the children with a relative, found that the parents were involved in the development of their case plan, the plans were appropriate, and ordered that Father be permitted supervised visitation while in custody. The court also ordered the Agency to provide Father with a calling card to facilitate telephone calls to the children. On the same day as the hearing, Father signed the case plan acknowledging that he participated in its development, agreed to comply, and understood that his failure to cooperate or take advantage of the services provided might result in the termination of his reunification services. The court set a review hearing in six months.

In advance of the six-month review hearing, the Agency reported that it had no contact with Father in the months since the jurisdiction and disposition hearing despite its best efforts to reach him. It learned that in late February, Father was incarcerated at the California Institution for Men, but by mid-March he had been moved to Pleasant Valley State Prison. Mother informed the social worker that Father was not permitted to contact anyone due to prison regulations, but the Agency attempted to contact Father through multiple channels. The social worker gave Mother her business card to send to Father in her regular correspondence. The social worker also independently sent another business card to Father with a parenting workbook and a calling card. Father never contacted the Agency or otherwise responded. Accordingly, the status report concluded that Father had made no progress with his case plan. The Agency recommended that Father's reunification services be terminated at the six-month review hearing.

Before the hearing, Father waived his right to be present and informed the court he did not want to participate via videoconference or telephone. At the hearing, Father's counsel did not call any witnesses or introduce any evidence. The Agency noted that Father was not eligible for parole until May 2021, over a year after the maximum 18-month reunification period, and that he had not contacted the Agency even after being moved to a facility where he was able to make contact. The minors' counsel agreed with the Agency's recommendations and noted that Father was also not contacting the children while incarcerated. Father's counsel stated that she had received a letter from Father, who indicated he wanted his reunification services to be continued.

The court found that reasonable services had been provided to both parents, and while Mother had made progress, Father had not. Accordingly, the court terminated reunification services for Father, continued services for Mother, and set a 12-month review hearing. Father appealed.

The orders are appealable. (See Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395.)

DISCUSSION

"The purpose of the California dependency system is to protect children from harm and to preserve families when safe for the child. (§ 300.2; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The focus during the reunification period is to preserve the family whenever possible. [Citation.] Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody. (§§ 366.21, 366.22; [citation].)" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424 (Tracy J.).) Reasonable reunification services during the reunification period are statutorily required, though there is "no constitutional 'entitlement' to these services." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475.)

Family reunification services are also subject to strict time limitations. "[T]o prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate. [Citations.] To avoid unnecessary delays in the process the Legislature has directed the juvenile court to 'give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.' (§ 352, subd. (a).)" (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)

Special considerations apply where the child is less than three years old. " '[T]he court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months.' (§ 361.5, subd. (a)(3), italics added.) Whereas services are presumptively provided for 12 months to children over the age of three and their parents (§ 361.5, subd. (a)(1)), the presumptive rule for children under the age of three on the date of initial removal is that 'court-ordered services shall not exceed a period of six months from the date the child entered foster care.' (§ 361.5, subd. (a)(2); see In re Christina A. (2001) 91Cal.App.4th 1153, 1160-1161, 111 Cal.Rptr.2d 310.) The ' "unique developmental needs of infants and toddlers" ' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process ' "in cases with a poor prognosis for family reunification." ' [Citation.]" (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174-175.)

"At each review hearing, if the child is not returned to the custody of his or her parent, the juvenile court is required to determine whether reasonable services that were designed to aid the parent in overcoming the problems that led to the initial removal and the continued custody of the child have been offered or provided to the parent . . . . (§ 366.21, subds. (e), (f).)" (In re J.P. (2014) 229 Cal.App.4th 108, 121.) In its determination, the juvenile court considers the appropriateness of services offered, the extent to which the agency facilitated utilization of those services, and the extent to which the parent availed him or herself of the services provided. (See In re Riva M. (1991) 235 Cal.App.3d 403, 414.) "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 (Misako R.).) Reunification services "should be tailored to the particular needs of the family." (Tracy J., supra, 202 Cal.App.4th at p. 1425.) The adequacy of the plan and the Agency's efforts must be judged according to the circumstances of the particular case. (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451.) The public policy favoring preservation of the family through development of a reunification plan applies even when a parent is incarcerated. (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 69; In re M.R. (2017) 7 Cal.App.5th 886, 896 [" 'There is no "Go to jail, lose your child" rule in California.' "].)

We review a reasonable services finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) "In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (Misako R., supra, 2 Cal.App.4th at p. 545; see also Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)

The reasonableness of the services provided to Father must be considered in the context of his incarceration, which obviously limits his ability to find appropriate services. Although services must generally be provided to incarcerated parents, the court "shall consider the particular barriers to an incarcerated . . . parent's access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the child's case plan." (§ 361.5, subd. (e)(1).) Reunification services for incarcerated parents may include, but are not limited to, telephone calls, transportation services, visitation services, and counseling, parenting classes, or vocational training programs, if access is provided. (Ibid.)

Viewing the evidence in the light most favorable to the trial court's ruling, as we must, we conclude the finding of reasonableness is supported by substantial evidence and that the court did not err in terminating services. Father's initial case plan focused on parenting education and substance abuse treatment. Although the plan was originally prepared before Father was returned to prison, the Agency made attempts to facilitate services aligned with the plan but within the context of Father's incarceration. Following his incarceration, the social worker sent Father a parenting workbook to address his case plan along with a calling card to facilitate phone calls.

The absence of additional services is largely attributable to Father's failure to contact the Agency. But even then the Agency did not stand idly by. The social worker made multiple attempts to locate Father as he moved between institutions to assist him with his case plan. Despite these efforts, Father never sought to communicate with the Agency to seek additional services and never contacted his children despite the efforts of the Agency to facilitate such contact.

Father acknowledged that he participated in the development of his case plan and agreed to follow it, but then failed to do so or otherwise request a modification. Although the record suggests that Father may not have been permitted to contact anyone during parts of his incarceration, the record also reveals that Father contacted both Mother and his attorney during the time between hearings. Thus, although Father was able to contact outside parties, he apparently chose not to respond to the Agency's outreach efforts or otherwise seek assistance.

The Agency also made efforts to facilitate contact between Father and his children by facilitating supervised visits before his incarceration and providing him with calling cards during his incarceration. " 'Visitation is a critical component, probably the most critical component, of a reunification plan.' " (In re T.G. (2010) 188 Cal.App.4th 687, 696-697; In re Dylan T. (1998) 65 Cal.App.4th 765, 770 ["[A]bsent certain circumstances, visitation must be provided to the incarcerated parent."].) However, as minor's counsel noted, Father did not contact his children despite having the apparent means to do so.

Although the Agency bears the statutory burden of providing reasonable services, this duty "is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) Applying the appropriate deferential standard of review, we find substantial evidence to support the trial court's determination that the Agency provided reasonable services to Father in the context of the difficult circumstances and that Father chose to not communicate with the Agency or otherwise pursue services.

Moreover, as the court noted, regardless of the level of services provided there was not a substantial probability that the children could be returned to Father's custody within the statutory reunification period due to his incarceration. Father was not eligible for parole until May 2021, over a year after the maximum 18-month reunification period. Thus, even if the court erred in finding the reunification services were reasonable, any error would not be prejudicial. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365; see also Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1031-1032.)

DISPOSITION

The orders are affirmed.

DATO, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.


Summaries of

San Diego Cnty. Health & Human Servs. v. S.V. (In re A.V.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 16, 2020
No. D076109 (Cal. Ct. App. Jan. 16, 2020)
Case details for

San Diego Cnty. Health & Human Servs. v. S.V. (In re A.V.)

Case Details

Full title:In re A.V. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 16, 2020

Citations

No. D076109 (Cal. Ct. App. Jan. 16, 2020)