Ernest C. v. Super. Ct.

Filed 8/28/07 Ernest C. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. A. Rex Victor, Judge. Petition denied.

Law Offices of Burcham and Stern and Kathleen D. Jenes, for Petitioner.

No appearance by Respondent.

Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Real Party in Interest.

Petitioner Ernest C. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (formerly rule 38.1(a)), challenging the juvenile courts order terminating reunification services as to his son A.C. (the child) and setting a Welfare and Institutions Code^[1]section 366.26 hearing. Father argues that he was not provided with reasonable reunification services, and that he made substantive progress in his case plan. We deny fathers writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

The child and his mother (mother)^[2]both tested positive for methamphetamines at the time of the childs birth. As a result, the San Bernardino County Department of Childrens Services (the department) immediately placed him in protective custody. On July 13, 2006, the department filed a section 300 petition on behalf of the child. The petition alleged that the child came within section 300, subdivision (b) (failure to protect), and (j) (abuse of sibling). The allegations included that: 1) mother had a chronic substance abuse problem; 2) mother had failed to reunify with six of her other children, resulting in her parental rights being terminated and three of the children being adopted; 3) mother had a history of incarcerations; and 4) father was unable to provide care and support for the child. In a detention report, the social worker reported that father had an extensive criminal background, which included convictions in consecutive years from 1994 to 2003 for assault with a firearm (Pen. Code, 245, subd. (a)(2)), corporal injury to a spouse (Pen. Code, 273.5), exhibiting a deadly weapon (Pen. Code, 417, subd. (a)(1)), battery (Pen. Code, 242), and evading a police officer, causing injury/death. (Veh. Code, 2800.2, subd. (a)).

On July 14, 2006, the court detained the child in foster care and ordered a paternity test for father, who was at that point an alleged father. The court also ordered father to keep the department informed of his mailing address, and ordered supervised weekly visitation for him.

Jurisdiction/Disposition

The social worker filed a jurisdictional/dispositional report on July 31, 2006, recommending that father remain an alleged father and, thus, not be provided with reunification services. The department arranged for paternity testing, but father failed to follow through. The department had not had any contact with father since the July 14, 2006, detention hearing. The social worker reported that she attempted to contact him by telephone and a letter to his last known address to advise him of the visitation scheduled for Wednesdays at 9:00 a.m. Thus far, father had failed to show up for the scheduled visitation.

The court held a jurisdictional/dispositional hearing on August 4, 2006. Father was present. The court ordered paternity testing again, at fathers request, and continued the matter to September 11, 2006.

Father failed to appear at the September 11, 2006, hearing. His counsel requested a contested hearing, and the court continued the matter to October 3, 2006.

The social worker filed an addendum report on September 26, 2006, stating that she had attempted to return fathers phone calls several times over the past several weeks, but she was unable to reach him. Father came to the departments office at 9:28 a.m. on Wednesday, September 20, 2006. Visitation was scheduled for Wednesdays at 9:00 a.m.; however, the child had not been transported to the office that particular day, since he had been transported for five weeks and father never showed up, and since the department had no knowledge that father was coming that day. A visit was scheduled for the next day, but father said he was not sure he had enough money for bus fare. He was offered a bus pass, but left the office before it could be issued to him. Before he left, the social worker talked to him about the difficulties in contacting him. Father replied that he was having financial difficulties and was unable to prepay for minutes on his cell phone. He also said he was unemployed and that he was living at a motel, but did not know the exact street address.

In addition, the social worker noted that, as of September 26, 2006, father had only visited the child once since his birth. On September 27, 2006, the social worker received several frantic phone calls from father, beginning at 9:30 a.m., stating that he was unaware of his visitation schedule. When father was informed that the child was currently at the departments office, he stated that he would get on the bus. Twenty minutes later, he called again and said he was being held up, and that he would be there in 25 minutes.^[3] Father told the social worker that the police were at his residence due to a domestic dispute between him and his girlfriend. The social worker then spoke with father about whether or not he had done the paternity test, and he said he was going today. Father was encouraged to attend the pretrial settlement conference (PSC) the next day.

Father appeared at the PSC, but it was continued to await the paternity test results. The court ordered father to call 24 hours prior to visitation to confirm his attendance. The court then continued the matter for a contested jurisdictional/dispositional hearing on October 23, 2006. Father failed to appear in court on October 23, 2006, and the matter was continued to November 7, 2006.

The social worker filed another addendum report on November 3, 2006, reporting that the paternity test indicated that father was the childs biological father. The social worker thus recommended that father be provided with reunification services. The social worker further recommended that, as part of his case plan, father undergo a psychological assessment, since he had demonstrated bizarre and unpredictable behavior. For example, the visitation schedule was always set for Wednesdays at 9:00 a.m., but each week on Wednesday, father called to request information regarding the time of his visit. When he was advised of the time, which had usually passed, he would become upset, use profane language, and make bizarre noises and breathing patterns on the telephone. One week, he called the office six to eight times regarding his absence from the visitation.

The social worker attached a case plan to the addendum report. The plan required father to: 1) obtain general counseling to address issues of codependency, conflict resolution, his history of incarceration, and co-parenting; 2) complete a psychological evaluation; 3) take psychotropic medication, if recommended by the evaluator; 4) complete a parenting education program; 5) submit to substance abuse testing; and 6) complete a substance abuse treatment program, if he tested positive.

On November 7, 2006, the court held the contested jurisdictional/dispositional hearing. Father was not present in court, but was represented by counsel. The court declared the child a dependent of the court, finding that he came within section 300, subdivisions (b) and (j). The court also found father to be the childs biological father and ordered him to participate in the case plan.

On April 19, 2007, father sent a letter to the court, stating that he was serving a 270-day sentence. Father stated that, since being incarcerated, he was enrolled in a parenting class, and was attending Narcotics Anonymous (NA) and Alcoholics Anonymous (AA).

Sixth-month Status Review

The social worker filed a status review report recommending that the court terminate reunification services. The social worker reported that for much of the previous six months, fathers whereabouts were unknown, and that she had only had sporadic contact with him. He failed to contact her from November 27, 2006, to February 6, 2007, regarding his whereabouts, visitation, or the well-being of the child. When he finally contacted her, he advised her that he would have to return to jail for charges of burglary, and that he had been sentenced to nine months, starting on March 5, 2007. The social worker advised father of his case plan requirements and told him to enroll in services prior to and during his incarceration. Father reported that, as of April 2, 2007, he enrolled in a parenting class in jail.

The social worker opined that father had been non-compliant and non-cooperative with his case plan participation. She provided him with a list of referrals for treatment and services and a copy of his case plan on February 12, 2007. She provided him with another copy of his case plan on March 14, 2007. Despite being provided with services such as case management, transportation assistance, and referrals to therapeutic services and parenting education, father failed to complete any plan objective. In addition, he failed to establish or maintain stability in housing or employment.

The court held the six-month review hearing on May 31, 2007, and June 4, 2007, and both the social worker and father testified. The social worker testified that father was provided with referrals for parenting and counseling on February 12, 2007, but that he was not given a referral for a psychological evaluation. The social worker acknowledged that father completed a parenting class in jail. She further testified that, before being incarcerated, father did not have a stable residence, and that he was only doing odds and ends jobs. Following fathers incarceration, the social worker contacted the Glen Helen Rehabilitation Center (Glen Helen), where father was serving his time, to find out what sort of services it provided. Glen Helen had a parenting class, which father completed, and NA and AA classes. The social worker stated that she did not change fathers reunification plan to reflect the change in his status (of being incarcerated). She said that if she had changed it, she would have recommended that he complete a parenting class and an AA class. The social worker acknowledged that father had pretty much done everything he could to comply with his case plan once he was in jail. However, she observed that he had not demonstrated, out of custody, that he was willing to work on his case plan. The social worker further stated that she did not give father referrals for the general counseling and psychological evaluation because she did not know where he was for several months.

Father testified that he was scheduled to be released on August 18, 2007. He said that he would be staying with his sister-in-law and her three girls upon his release. They lived in a two-bedroom apartment, but he said there was enough room for him and the child. Father also said he had a job waiting for him with an auto detailing business, where he had previously stopped working because he was not getting paid the right amount of money. Father admitted that he received a list of referrals in February and said he tried to get into some classes, but did not have enough time since he was going to have to turn himself in the next month. In addition, father said he only visited the child four or five times over the past six months because he was going through problems. He also said he thought, for no apparent reason, that the child had been adopted. Father further admitted that he did not become interested in participating in his case plan until he was incarcerated.

After reviewing all the evidence, the court found that father failed to participate regularly in his case plan or make substantive progress, that there was not a substantial probability that the child could be returned within the statutory timeframe, and that it was in the childs best interests to consider termination of parental rights. The court ordered fathers reunification services to be terminated and set a section 366.26 hearing for October 4, 2007.

ANALYSIS

The Court Properly Terminated Fathers Reunification Services

and Set a Section 366.26 Hearing

Father argues that the court abused its discretion in terminating his reunification services and setting a section 366.26 hearing. He specifically claims that the department failed to provide him with adequate reunification services, but that he substantially complied with the reunification plan. We disagree.

A. Father Was Provided With Reasonable Reunification Services

The record should show that the department made a good faith effort to provide the parent with reasonable reunification services in light of the familys unique needs. (In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) 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. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Father was provided with reasonable services. At the detention hearing, the court ordered weekly visitation, and the department set up visitation for every Wednesday at 9:00 a.m. The department provided transportation assistance by transporting the child to its office for the visits and offering father a bus pass when he could not afford to get to the office.

Fathers case plan required him to obtain general counseling, complete a psychological evaluation, complete a parenting education program, and submit to substance abuse testing. The social worker provided father with a copy of his case plan on February 12, 2007, as well as a list of referrals for treatment, therapeutic services, and parenting education. The social worker again provided him with a copy of the case plan on March 14, 2007. Furthermore, once father informed the social worker that he was going to be incarcerated, the social worker contacted the jail facility to find out what sort of services it provided. Thus, the record reflects that father was provided with reasonable reunification services. Unfortunately, he chose not to participate in the referred counseling services or parenting classes. (See post.)

Father asserts that he never received a referral for a psychological evaluation, and was never asked to drug test. However, the social worker testified that she did not give father referrals for the general counseling and psychological evaluation because she did not know where he was for several months. We infer that the social worker did not ask him to drug test for the same reason.

Father claims that if the social worker would have asked him to drug test and would have given him a psychological evaluation referral at the beginning of February 2007, when she gave him the counseling and parenting referrals, he could have complied within that month. However, there was no reason to believe that he would have drug tested or submitted to a psychological evaluation, considering that there was no evidence, aside from his self-serving testimony, that he followed through with the other referrals that were given to him. The record showed that he was non-compliant and non-cooperative with his case plan requirements up until the time he was incarcerated.

Father also complains that he did not have access to a psychological evaluation or drug testing while he was incarcerated, and thus, he had no means of fulfilling these requirements. Any lack of services available at the jail facility was not a reflection of the services provided by the department. Furthermore, it was fathers choice of a criminal lifestyle that landed him in jail, and thereby, limited his access to services.

Viewing the evidence in a light most favorable to the department, as we must, we hold that father was provided with reasonable reunification services.

B. Father Failed to Participate Regularly and Make Substantive Progress in His Case Plan

Section 366.21, subdivision (e), provides, in relevant part that, at the six-month review, [i]f the child was under the age of three years on the date of the initial removal, . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.

Father argues that the court erred in terminating his reunification services at six months. He asserts that he did not fulfill any part of his plan for the first three months of the reunification period because he thought the child had been adopted. However, there was no basis for this belief. When asked why he thought the child was adopted, father testified, I just thought he was adopted, until I happened to call.

Father also contends that if this court counts his efforts from the jurisdictional/dispositional hearing in November 2006 until the time of the six-month review hearing, we could find that he made enough progress to be granted additional services. We disagree. Father failed to contact the social worker at all from November 27, 2006, to February 6, 2007. He essentially made himself unavailable from the time of the jurisdictional/dispositional hearing until one month before he was incarcerated. Services were offered to him if he wished to participate, but he simply chose not to. Father admitted at the six-month review hearing that he did not become interested in participating in his case plan until he was incarcerated. Although he did take parenting classes and attend NA/AA meetings while incarcerated, father never demonstrated a commitment to the reunification plan when he was not in custody. As the court aptly stated, the only thing that has changed in his life . . . is that the County of San Bernardino, by the fortuitous event of a criminal conviction, is providing him food, clothing and shelter, as well as an opportunity to attend classes.

In addition, there was no substantial probability that the child would be returned to fathers custody within six months. Father was scheduled to be released on August 18, 2007. However, his prospects for being able to provide for the child seemed bleak, considering his history of homelessness and instability, as well as his criminal lifestyle. Father claimed that he had his old job waiting for him. However, that was the same job he previously left, or was fired from. He also said he planned to stay with his sister-in-law and her three girls upon his release. However, they lived in a two-bedroom apartment. Moreover, father would be dependent on others to provide for the child.

In sum, the record clearly supported the courts finding that father failed to participate regularly or make substantive progress in his case plan. Therefore, the court properly terminated fathers reunification services and set a section 366.26 hearing.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

J.

We concur:

/s/ RAMIREZ/

P.J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[2] Mother is not a party to this writ petition.

^[3] The record does not reflect if he actually reached the department office for the visit that day.