Opinion
A103534.
10-10-2003
WILLIAM W., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY BUREAU OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Petitioner is the father of Tianna W., who was declared a dependent of the juvenile court. In our unpublished opinion filed July 22, 2003, we affirmed the dispositional order removing Tianna from parental custody under a reunification plan. (In re Tianna W., A101149.) At the subsequent six-month review hearing, the juvenile court terminated reunification services and set the matter for a hearing under Welfare and Institutions Code section 366.26.[] Petitioner now seeks an extraordinary writ pursuant to rule 39.1B of the California Rules of Court. We will deny relief.
All undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
Tianna, born in November 2000, was less than two years old when she and her half-brother were taken into protective custody in August 2002. The children were removed from the home of their maternal grandmother after they were found to be living in squalid conditions and the maternal grandmother was discovered to be using drugs. The mother had abandoned the children to the maternal grandmother in October 2001.
Tianna was declared a dependent child of the juvenile court based upon findings that the home of the maternal grandmother was unsafe, that the mother had left Tianna with an unsuitable caretaker without provision for the childs support or care, and that both the mother and the father had a history of drug abuse that rendered them unable to support or care for Tianna.
Throughout the proceedings the father was in county jail awaiting trial and sentencing on a burglary charge. The father also had a criminal history involving the possession of weapons and drugs. For the dispositional hearing, the social workers report indicated that the father was interested in assuming a parental role for Tianna, but the social worker concluded that even if he were released from jail he would need to develop some understanding of the effect upon his parenting ability of his criminal behavior, his weapons possessions, and his drug use. Moreover, Tianna apparently did not know her father, and the social worker observed that he would need to develop a relationship with her before taking custody.
The juvenile court ordered a reunification plan for both parents. The father was required to take parenting classes and undergo counseling for drug abuse. His plan also required that he obtain suitable housing, remain drug-free, and develop a parental relationship with Tianna. The father was granted supervised visits upon his release from custody, but his contact with Tianna while he was in jail was limited to letters.
For the six-month review hearing, held over the course of several days in June and July 2003, the social worker reported that the father had failed to comply with his reunification plan. Obviously, because he was in jail, he had failed to obtain suitable housing or to demonstrate his ability to provide a safe, drug-free home for Tianna. He also had not attended parenting classes or drug counseling sessions, because no such services were available at the jail. The social worker testified that the father had begun to attend the "Deuce" program in county jail and had gone to some Narcotics Anonymous sessions, but his participation was too little too late. Six months after the reunification plan was ordered, petitioner had been attending the 60-day Deuce program for only two weeks.[] He had attended a few NA meetings, but not in a long time. The father testified at the hearing that he had not enrolled in the Deuce program earlier because he was in denial about his drug addiction.
Although the father testified that there had been no space available earlier in the Deuce program, the juvenile court found his testimony not credible.
The father had, however, sent letters to Tianna (via the social worker) during his incarceration. The letters were appropriate and supportive. The foster mother was keeping the letters in a file for Tianna.
At the conclusion of the status review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing for November 5, 2003. The court ordered the father to have visits with Tianna quarterly in accordance with the prison rules, with one visit to occur while he was in local custody before his upcoming sentencing hearing on August 22, 2003.
DISCUSSION
I. Probability of Return to Parental Custody
When, as here, a child is under the age of three when removed from parental custody and the court finds at the six-month review hearing that the parents have failed to participate and make substantive progress in their court-ordered treatment programs, the parents are not entitled to further reunification services unless the court finds a substantial probability that the child will be returned to parental care within six months. (§ 366.21, subd. (e).) Here, the juvenile court found by clear and convincing evidence that both parents had failed to participate in any court-ordered treatment program. Further, the court found that the parents had made no progress toward resolving the problems that led to Tiannas removal and that neither parent had demonstrated any ability to complete the objectives of their treatment plans. Accordingly, the court found no substantial probability that Tianna could be returned to parental custody even if reunification services were extended another six months.
Petitioner, the father, disputes the latter finding. He contends that because his sentence on the pending burglary conviction was unknown, a probability existed that he might be released from jail and thereby be able to satisfy his reunification plan. The juvenile court found otherwise, that a prison sentence was highly likely. The seriousness of the crime (residential burglary) coupled with petitioners prior convictions fully support the juvenile courts view.
In any event, the juvenile court further found that petitioner had made no progress toward completion of his reunification plan. By his own admission, petitioner delayed getting into the Deuce program in jail because he was in denial about his drug problem. The social worker reported that even if petitioner were released from jail, placing Tianna with him would be hazardous in light of petitioners history of crime and violence. The evidence before the court of petitioners incarceration, his criminal history, and his limited participation in the drug programs available to him fully supports the juvenile courts determination that petitioner was not entitled to extended reunification services.
II. Adequacy of Reunification Services
Another exception to the termination of reunification services at the six-month review hearing exists when the juvenile court finds that reasonable reunification services were not provided to the parent. (§ 366.21, subd. (e).) Petitioner next argues that the reunification services provided to him were inadequate because of the limitations of his incarceration. The juvenile court agreed that the services provided were "far from perfect." Nevertheless, the court found that "reasonable" services had been offered to petitioner, and that the Department of Social Services could not readily be expected to provide outside counseling or parenting classes while petitioner was in jail.
We begin our analysis with the observation that "[i]n almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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.) We must uphold the juvenile courts decision on the adequacy of reunification services as long as it is supported by substantial evidence. (Id. at p. 545; see also Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
The record shows that the social worker regularly communicated with petitioner in jail. Soon after the disposition hearing, the social worker wrote to petitioner, enclosing his reunification plan and urging him to participate in the services available to him, including Narcotics Anonymous. A month later, she wrote again asking petitioner to telephone her at an appointed time, but petitioner never called. In March 2003, the social worker sent another letter to petitioner advising him that the Deuce program in jail, standing alone, would not satisfy the reunification plan. The social worker received no response, objections, or inquiry from petitioner. Petitioner acknowledged in his testimony that he had received the correspondence and was aware of his obligations under the reunification plan. He conceded that he was in denial about his drug problem and took no action until just before the review hearing.
The social worker also monitored petitioners progress while in jail. In April 2003, she contacted the jail authorities to verify petitioners participation in the Deuce program and was then advised that he had not participated, though he had attended some NA sessions. In June 2003, the social worker first learned that no parenting classes or drug counseling services were available in jail. At that same time the social worker was informed that petitioner had been participating in the Deuce program about two weeks.
While an incarcerated parent is entitled to reasonable services (& sect; 361.5, subd. (e)(1)), the social services agency has no control over the services available within a custodial facility. (See Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1013.) This is not a case in which the parents failure to fulfill the reunification plan was due to the unavailability of services in jail.[] "Petitioners real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Nor is this a case in which reunification services were denied altogether. Accordingly, we do not reach petitioners argument that there was no evidence of detriment to the child to justify denial of reunification services.
We do acknowledge that petitioner was not provided with visitation services with Tianna during the reunification period. The juvenile court had concluded at the disposition hearing that petitioner should be given supervised visits with Tianna only upon his release from custody and that his contact should be limited to letters to her while he was incarcerated. Insofar as petitioner challenges the reunification plan ordered at the disposition hearing, petitioner is barred from raising the argument in this rule 39.1B proceeding. The argument was raised and considered in the appeal from the dispositional order, and we concluded the issue was waived by the fathers failure to object to the reunification plan in the juvenile court.
We left open in our opinion, however, the possibility that the father could raise the adequacy of the reunification services, including visitation, actually provided to him. The record shows that petitioner remained in custody throughout the reunification period. He did write letters to Tianna, and the social worker facilitated the communication by forwarding the letters to Tiannas foster mother, who is keeping them for Tianna. The record also indicates that Tianna had no existing relationship with petitioner. She never lived with him, and even according to petitioners testimony, her contact with him was limited and short-lived. Tianna was born in November 2000, and petitioner was incarcerated for 10 months of that year. Petitioner testified that he was not present at her birth, and he did not see Tianna that year because she was with her mother in Texas. In 2001, petitioner was jailed again for 40 days. He testified that during the period from October 2001 to March 2002 he saw Tianna once or twice a week for a couple of hours at a time. In April 2002, petitioner was jailed again on the burglary charge, and he remained in custody thereafter. He had not seen Tianna since she was a year old. Under the circumstances, the juvenile court did not err in finding the services provided to petitioner were adequate.
III. Post-Reunification Visitation
Even after the reunification period ends, visitation should continue unless the court finds visitation would be detrimental to the child. (§ 366.21, subd. (h); see In re Luke L. (1996) 44 Cal.App.4th 670, 679.) Here, the juvenile court granted petitioner one face-to-face visit with Tianna in jail before his upcoming sentencing hearing and then subsequent visits quarterly in prison as long as the correctional facility was within an hours drive. The social worker was concerned that visits between Tianna and petitioner could be "negative" for Tianna because she has no memory of petitioner. The limitations imposed by the court on petitioners visits pending the section 366.26 hearing were reasonable under the circumstances.
DISPOSITION
The order to show cause is discharged, and the petition is denied on its merits. (Cal. Const., art. VI, § 14; Cal. Rules of Court, rule 39.1B(o); Kowis v. Howard (1992) 3 Cal.4th 888, 894.) The request for stay is also denied. Petitioner is barred in any subsequent appeal from making further challenges to the orders terminating reunification services and setting a hearing under section 366.26. (§ 366.26, subd. (l).) Because the section 366.26 hearing is set for November 5, 2003, our decision is final as to this court immediately. (Rule 24(b)(3).)
We concur: STEVENS, Acting P.J., GEMELLO, J.