Dan C. v. Superior Court

Filed 10/16/06 Dan C. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Petitioner Dan C. is the father of Michael H. and Lelia C.,^[1] young children within the dependency system with different mothers. Petitioner has filed a petition in each case challenging the respective orders setting a hearing under Welfare and Institutions Code^[2] section 366.26. We grant relief in Michael H. (A114694) and deny relief in Lelia C. (A114792).

I. MICHAEL H. CASE (A114694)

A. Factual and Procedural Background

Dependency proceedings on behalf of Michael H., born in December 2001, began in June 2004 with the filing of a petition under section 300, subdivision (j). The petition alleged that Michael was at risk because his sister was born positive for methamphetamine and mother had a history of chronic substance abuse and mental illness. Petitioner was identified as the alleged father. Mother told the social worker that Ernesto H., alleged father to the sibling, had held Michael out as his own child. The juvenile court sustained the petition. Petitioner was in prison at the time. Initially, real party in interest Humboldt County Department of Health and Human Services (Department) provided family maintenance services for mother with respect to Michael. The six-month review hearing was set for May 2005.

Petitioner requested that the court establish paternity. On January 25, 2005, the court found that petitioner was Michael’s biological father, but did not meet his burden in establishing presumed father status; nor did he qualify as a father under Adoption of Kelsey S. (1992) 1 Cal.4th 816. Petitioner filed a notice of appeal on February 3, 2005. We affirmed. (In re Michael H. (Dec. 6, 2005, A109196) [nonpub. opn.].)

With respect to mother, in January 2005 the Department filed a subsequent section 342 petition alleging mother was unable to provide basic necessities for her children, was not taking prescribed medication and was self-medicating “ ‘with drugs and alcohol’.” Michael was detained on January 14, 2005, the petition was sustained and Michael was placed in a licensed foster care home. The six-month review was set for August 2005. The Department submitted its six-month report, finding that mother did not comply with the case plan and recommending termination of services as to her.

At the scheduled six-month hearing, mother’s counsel objected to the recommendations and the hearing was continued. Counsel for father specially appeared as he had just filed a section 388 petition to modify the order denying presumed father status. Petitioner alleged that he had held Michael H. out as his own, accepted the minor into his home, and the minor would benefit from a positive relationship with his father.

Father’s petition was heard in October 2005 and although Michael’s case number was called, his six-month review was never addressed. The Department did not file any opposition to father’s petition. The evidence showed that petitioner was released from prison in February 2005, contacted the maternal grandmother and visited with the minor between eight and 12 times. There were five overnight visits. Visits stopped when the social worker informed petitioner he could not visit because he did not have presumed father status. Petitioner continued to request visits. Counsel for mother and the minor joined petitioner’s request to be the presumed father. The court concluded petitioner met his burden of showing changed circumstances and granted the petition in a written decision dated November 23, 2005. The court did not order services or visitation for petitioner; nor did he request the same.

On December 5, 2005, the Department moved for reconsideration on grounds that on November 23, 2005, petitioner was taken into custody after a parole search of the residence he shared with the mother of another of his children. During the search someone appeared to purchase heroin from “Dan.” Petitioner was charged with violating parole and maintaining a place where controlled substances were furnished or sold. The site of the search and arrest was the same residence where petitioner brought Michael for overnight stays. On December 22, 2005, petitioner pled guilty to maintaining a place where controlled substances were furnished or sold. He was sentenced to one year in state prison.

Inexplicably, on January 25, 2006, the Department withdrew its motion for reconsideration and instead indicated it would prepare a new report recommending termination of reunification services for both parents.

On April 5, 2006, the contested six-month review was heard--22 months after the commencement of Michael’s dependency proceeding. Among other documents the court reviewed an addendum report received February 24, 2006. The report related that the visits petitioner had with Michael were not authorized by, or known to, the Department and that they took place in the residence that was subject to the search warrant and arrest of petitioner and others. The report attached information on petitioner’s recent felony plea and sentencing. As well, information was relayed concerning conversations with social workers and others in the dependency proceeding relating to Michael’s half-sister. Petitioner made statements that seemed delusional in nature. The foster parents were afraid of him.

The reporting social worker found that initiating visitation between Michael and petitioner would be detrimental to the child. First, in connection with the dependency proceeding for his other child, the case worker related that petitioner rarely demonstrated a parental role or knowledge of the child’s needs and rarely responded appropriately to the child’s signals or put the child’s needs ahead of his own. In fact, when visits increased with petitioner and the other child, she regressed and became destructive. Further, petitioner acted with disregard for the safety and well-being of Michael when he arranged the clandestine visits. Visits during incarceration would be detrimental because the visits in the past had not been observed and the Department could not predict how petitioner would act. Additionally, Michael had not expressed any connection with or desire to see petitioner. Further, given petitioner’s recent sentence and the issues raised concerning his other child, petitioner would not be able to provide a safe and stable home for Michael. Finally, due to his behavior and statements he made that seemed delusional, visits would be detrimental. The social worker recommended against visits or other reunification services and recommended scheduling a section 366.26 hearing.

At the hearing the social worker testified that no visitation or other services was arranged for petitioner and Michael after petitioner attained presumed father status.

The juvenile court found that father did not have a case plan and was not provided services, but declined to extend the reunification period for him. It issued a written ruling lamenting the “tortured and convoluted history” of the case but did not specifically address the Department’s findings. Setting the section 366.26 hearing, the juvenile court reasoned: “In a perfect world, when the six month review was initially scheduled in August 2005, the Court would have found the mother had not complied with her case plan and that father was not entitled to reunification services because he was a mere biological parent and proceeded to a hearing pursuant to Welfare and Institution[s] Code §366.26. In hindsight, that order would have been correct at that time. Delays occurred, of course, because the case became so focused on father’s status. . . . Father benefited from this delay. He may not have been receiving mandatory reunification services from Child Welfare Services, but he was under supervision in the criminal justice system. Father was in custody at the time of this contested hearing. . . . Even though father did not receive[] services from the time he was declared presumed father, the Court finds that in the unique facts of this case, the reunification period for the child shall not be extended. Clearly, had the issues before the Court not become so convoluted, services would have been terminated to both parents in August 2005.”

B. Review

Petitioner assails the order terminating reunification services because he was not offered any reasonable services for the five months following his attainment of presumed father status.

Whenever a child is removed from a parent’s custody, the juvenile court must direct the Department to provide child welfare services to the child and his or her parents in order to facilitate reunification of the family, unless the case falls within a statutory exception. (§ 361.5, subd. (a).) Section 361.5, subdivision (b) sets forth the aggravated circumstances permitting a bypass of reunification services. The court is also required to order reasonable services when the parent is incarcerated, unless it determines, “by clear and convincing evidence, those services would be detrimental to the child.” (Id., subd. (e)(1).)^[3] Finally, at the six-month review hearing, if the court does not return custody of the child, it may set a section 366.26 hearing within 120 days if it finds, by clear and convincing evidence, that the parent “has been convicted of a felony indicating parental unfitness . . . .” (Cal. Rules of Court, rule 1460(f)(1)(C).)

Michael was detained on January 14, 2005. At the time of the contested six-month review of April 5, 2006, nearly 15 months had passed since Michael was detained. Services should have been terminated as to mother in August 2005 and that would have been the end of the line because petitioner was just a biological father. However, both the Department and the juvenile court allowed this case to spin out of control. Recognizing the unique facts of the case, the court refused to extend the reunification period but did not make any of the findings required to bypass reunification under section 361.5, subdivision (b) or (e) or California Rules of Court, rule 1460(f)(1)(C).

We remand to the court to immediately determine whether or not the conditions for permitting a bypass of reunification services existed in this case. We note that at the time of the April 2006 hearing, petitioner was incarcerated at the Humboldt County Correctional Facility. In fact, he was detained the very same day the court issued its ruling affording him presumed father status. Certainly the trial court had abundant evidence before it to determine whether to bypass provision of reasonable services because there was clear and convincing evidence that those services would be detrimental to Michael, based on the factors enumerated in section 361.5, subdivision (e)(1).

If for some reason the court does not conclude that services should have been bypassed under the various authorities cited above, under typical circumstances the remedy for a failure to provide reasonable reunification services would be an order for continued provision of services. (In re Alvin R. (2003) 108 Cal.App.4th 962, 975.) However, such an order cannot be made automatically because time does not stand still for the minor or the parent. Upon any such hearing to determine the issue of continued provision of services, it would be the duty of the Department to bring to the court’s attention any circumstances militating against such an order. In this case, reunification services have been terminated as to Lelia. With this opinion, this court has denied on the merits petitioner’s requests to vacate the order setting a section 366.26 hearing as to Lelia and to order continued reunification services and visitation. Without question an issue at any such hearing would be whether to bypass reunification services because the court makes findings, by clear and convincing evidence, that section 361.5, subdivision (b)(10) applies.^[4]

Let a peremptory writ of mandate issue directing the juvenile court to vacate the July 2006 order terminating the reunification period and setting a section 366.26 hearing for Michael H. The cause is hereby remanded for further proceedings in accordance with the directions set forth in this opinion.

II. LELIA C.’s CASE (A114792)

Lelia C. first came within the dependency system on August 27, 2004. At that time the Department filed a section 300 petition alleging failure to protect and sibling abuse. As to petitioner, the petition alleged that the child was at risk of harm because his “willingness and ability to provide care is unknown.” Petitioner was incarcerated in Susanville at the time. He had pled guilty to possession of a controlled substance for sale, allowing a place for selling and using a controlled substance, and transporting/selling a controlled substance. Lelia was detained in November 2004 and placed in foster care. In December 2004 both parents submitted to jurisdiction on an amended petition.

The report for the disposition hearing indicated that petitioner was not able to identify any services that would be helpful to him. A case plan with objectives and services was prepared for petitioner. Visitation began after his release from custody. Petitioner completed a chemical dependency assessment after initial objections. Some of his answers to questions indicated he was either withholding or minimizing information. Based on the self report and two negative drug screens, he did not meet the criteria for a current diagnosis of substance dependence or abuse, although he did meet the criteria in the past.

His amended case plan included provisions to stay free of illegal drugs and consistently, adequately and appropriately parent his children. He was to obtain parenting classes, take steps to find housing, comply with random drug tests, and attend substance abuse support classes.

Petitioner began visiting Lelia. The foster parents reported that her behavior did not worsen after visits with petitioner. The social worker was concerned, however, that petitioner refused to change her diapers. He said she might be potty trained by the time she is returned to him, or he would hire someone to do the task. The social worker explained that changing diapers is part of parenting. In July 2005 the Department recommended six more months of family reunification for petitioner to allow him time to become involved in Lelia’s medical, developmental and counseling appointments and to learn how to handle day-to-day parenting skills.^[5] The six-month review hearing took place on August 25, 2005. However, the court did not issue its ruling until December 6, 2005. The written order terminated reunification services to mother and ordered more services for father.

Meanwhile, on November 23, 2005, as described in part I., ante, petitioner was arrested and ultimately incarcerated for maintaining a place where controlled substances were furnished or sold. Several days before receiving the court’s December 2005 ruling, the Department moved to modify the case plan to include a parenting assessment as part of a psychological evaluation for petitioner; to discontinue his participation in all appointments related to Lelia’s health and development, and to decrease visits and to have visitation supervised. The proposed modifications were based on petitioner’s delusional statements; expressions of concern for personal safety on the part of social workers involved with petitioner and on the part of foster parents after contact with petitioner; and the fact that Lelia’s destructive and self-injurious behaviors were increasing following visits with petitioner. The Department also moved for reconsideration of the court’s ruling extending reunification another six months. Given petitioner’s recent incarceration, there was no probability of reunification.

The report supporting the section 388 petition documented petitioner’s parenting deficits; his inability to attend to Lelia’s needs without prompting; his troubling behavior and statements, including a threatening style of communication; and his inability to participate positively in Lelia’s speech therapy or occupational therapy. Letters from Lelia’s special education teacher, occupational therapist, speech therapist and the quarterly assessment report from Environmental Alternatives (EA)^[6] and the foster parents revealed the extent of his disruptive and detrimental behavior in these various settings. For example, the EA assessment reported that for several months petitioner appeared hostile, angry, sarcastic and defensive. It was unclear if he understood any advice offered. He could not provide age appropriate play activities, even with suggestions. He was hostile and aggressive with the foster parent. Finally, in connection with investigation of Michael’s case, the social worker learned that petitioner was receiving “SSI” (Supplemental Security Income) for “brain damage.”

“Arraignment” on the section 388 petition was called on December 22, 2005. The minor’s counsel addressed the issue of visitation. Thereafter, the court suspended visitation pending a hearing. The 12-month uncontested review hearing was called on January 12, 2006. Attorneys for the minor and petitioner spoke to the issue of visitation. The court would not modify the visitation suspension. The 12-month review was continued to trail the section 388 petition.

The Department filed a second amended section 388 petition on January 30, 2006, reflecting the fact that petitioner had pled guilty and was sentenced to prison for one year, with credits.

The hearing on the Department’s section 388 petition and motion for reconsideration was held March 8, 2006. Counsel for the Department stated the issues were moot and dropped both matters due to the fact that Lelia had been out of the home for 16 of the 22 months and the matter should be set for a 12-month review. Petitioner’s counsel raised the issue of suspended visitation. Counsel for minor and the Department argued that visitation would be harmful. The court maintained the status quo.

The 12-month review included much of the substance and documentation included in the section 388 report. Additionally, a letter from the social worker who provided parent-child interaction therapy to Lelia’s foster parents was appended. She attempted to include petitioner in the training, but petitioner did not show or call for the scheduled or rescheduled appointments. As well, the log maintained for supervised visits indicated that petitioner was unsuccessful at interacting or playing with Lelia; gave her unhealthy snacks; talked about his issues; did not want to change diapers; demonstrated no ability to spend inside time with Lelia; was unable to gain control of her; and made derogatory comments about foster parent situation causing social worker to question his emotional judgment.

The report also reviewed petitioner’s noncompliance with his case plan and recommended that services be terminated. The report further recommended that the court find clear and convincing evidence that petitioner had been convicted of a felony indicating parental unfitness.

The contested 12-month review took place on May 9, 2006. Lelia, who was under three when first detained, had been in foster care for 18 months. The court issued its written ruling on July 26, 2006. The court concluded that the Department made reasonable efforts to make it possible for Lelia to return home; father complied with the case plan and made minimal progress toward alleviating or mitigating the causes necessitating placement out of home; and visitation was detrimental to the child and thus was suspended. The court ordered termination of reunification services and set the section 366.26 hearing.

B. Review

Petitioner is adamant that reasonable services were not provided to him. We disagree.

First, he complains that no reunification services were provided or offered between the six-month and 12-month reviews, even though services were ordered after the six-month review. As the Department points out, the six-month review was held on August 25, 2006, but the court did not issue its ruling ordering another six months’ services until December 9, 2005. During the intervening months petitioner received services.

Petitioner seems to think as well that provision of services by definition are unreasonable if they are terminated before the six-month period expires. But a parent is not entitled to a prescribed minimum period of reunification services. It is within the juvenile court’s discretion to determine whether continued services are in the best interests of the minor, or whether they should end before the six months have elapsed. (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242-1243.)

Second, petitioner contends he was impermissibly offered no services after his incarceration in November 2005, and visitation was improperly suspended without providing a psychological evaluation. He points out that the mere fact that a parent is incarcerated is not enough to deny reunification services. (In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1237-1238.)

Visitation was suspended on December 22, 2005, due to appellant’s arrest and the behaviors and concerns cited above. His hope was to reunify with Lelia. But he was to remain drug free and achieve other objectives in order to earn that privilege. His arrest and subsequent conviction was for maintaining a place where drugs were sold, the very place he hoped would be a home for Lelia! As Court Appointed Special Advocates (CASA) pointed out in support of the Department’s motion for reconsideration and section 388 petitions, petitioner’s November 2005 incarceration “illustrates that, not only is he out of compliance with the terms of his reunification plan, but his home is not an appropriate environment for Lelia.” It was the opinion of CASA that visits while petitioner was incarcerated would be detrimental to Lelia. As well, his interaction with Lelia in her various sessions with service providers was counterproductive, he was not appropriately parenting and seemed unable to put her needs above his own. He presented in a threatening and hostile manner to foster parents and made delusional statements.

In any event, services were offered. Petitioner’s case plan called for him to attend parenting classes and substance abuse prevention classes while incarcerated. Those services were available to him in county jail but he did not participate. The Department is limited in the services it can offer to incarcerated parents because prisons are run by the Department of Corrections, not county child welfare services. (See In re Ronell A. (1995) 44 Cal.App.4th 1352, 1363.)

Prior to his November 2005 incarceration, visitation had increased from a minimum of two hours a week to two hours four times a week. As well, he was included in Lelia’s therapy sessions. Nonetheless, it was after the increase in visitation and the participation in therapy sessions that Lelia’s speech decreased and her self-injurious and acting-out behaviors increased. To a professional, those involved in offering services to Lelia expressed concern to the social worker about petitioner’s participation in those services. Additionally, the foster parents reported that Lelia’s negative behaviors began increasing with increased visitation. After visitation stopped, Lelia’s destructive and self-injurious behaviors decreased or disappeared all together.

Although petitioner’s counsel objected to the suspended visitation several times in court, petitioner presented no evidence to counter the Department’s evidence that visitation was detrimental. Certainly there was substantial evidence to support the juvenile court’s order suspending visitation, because there was substantial evidence that continued visitation would be detrimental to Lelia. This is not a case where reunification services were denied in the first instance, and thus section 361.5, subdivisions (b) (exceptions) and (e) (incarcerated parent) do not apply. Services were offered, including limited services during incarceration, but visitation was eliminated from the case plan, for good reason.

Petitioner also contends that the trial court failed to address the issue of potential future contact between him and Lelia. But of course the court did by concluding that future visitation would be detrimental to Lelia.

Additionally, petitioner faults the court for not ordering a psychological evaluation. In July 2004, during an investigation concerning Michael H., Lelia’s half-brother, the social worker learned that petitioner was receiving SSI for “brain damage.” Petitioner gave various explanations over a three-month period, saying he received the benefits for a reading disability, a learning disability, a back injury, a foot injury and a motorcycle accident. Concern about petitioner’s behavior and mental health arose after the six-month review, when visiting increased and petitioner began attending Lelia’s therapy sessions. After receiving an accumulation of complaints, the Department filed a section 388 petition requesting, among other things, a psychological evaluation. The petition was prepared on November 16, 2005, but filed December 2, 2005. Meanwhile, petitioner had been arrested and incarcerated for a drug-related felony. By then Lelia had been in foster care for a year, and because she was under three years old when first detained, services could be terminated at six months. (§ 361.5, subd. (a)(2).) There was no substantial probability that Lelia would be returned and safely maintained in petitioner’s home with another six months of services. (Id., subd. (a).) Hence the Department withdrew the request for a psychological evaluation because the reunification period was over.

We deny petition A114792 on the merits.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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^[1] Michael H. is case JV040076, petition A114694. Lelia H. is case JV040163, petition A114792.

^[2] Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

^[3] In determining whether services would be detrimental, the court must “consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime . . . , the degree of detriment to the child if services are not offered . . . .” (Ibid.)

^[4] Section 361.5, subdivision (b)(10) states that reunification services need not be provided to a parent when the court finds, by clear and convincing evidence that “the court ordered termination of reunification services for any . . . half-siblings of the child because the parent . . . failed to reunify with the . . . half-sibling after the . . . half-sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the . . . half-sibling of that child from that parent . . . .”

^[5] Lelia was evaluated by a psychologist in April 2005. She exhibited a high degree of acting-out and emotional problems, including sexual behaviors, which were likely to have resulted from neglect, abuse, exposure to adult sexual behavior and attachment deficits. The most important intervention to foster healthy attachments would be to provide a stable, secure, consistent and nurturing relationship with a primary caretaker.

^[6] EA is the agency that monitors visits.