Gene W. v. Superior Court

Filed 9/11/06 Gene W. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Michael Imhoff, Referee. Petition denied.

Gene W. seeks writ review of orders terminating reunification services regarding his children, Felix W. and J.W., and referring the matter to a Welfare and Institutions Code section 366.26^[1] hearing. He contends he was not provided with reasonable reunification services in that the San Diego County Health and Human Services Agency (the Agency) stopped visits with the children during his incarceration and made no effort to make the visits beneficial to the children, and the court made findings regarding the children's fear of visits without the benefit of professional opinion. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 2004, the Agency petitioned on behalf of infant Felix, alleging he tested positive for methamphetamine at birth, his mother, T.T., admitted drug use, and Gene admitted having a history of drug use and had not stopped T.T. from using drugs during her pregnancy. The court ordered Felix detained in foster care and granted the parents liberal, supervised visitation. The social worker reported Gene has an extensive criminal history and was on probation for domestic violence. Both parents were registered narcotics offenders and had active Fourth Amendment waivers. Gene's case plan required him to participate in a domestic violence program, counseling, parenting education, and the Substance Abuse Recovery Management System (SARMS). At the jurisdictional hearing on June 14, Gene submitted to the allegations of the petition and the court found them true.

On July 15, 2004, Gene was arrested for possessing methamphetamine and a 9mm bullet. T.T. was incarcerated at the time. Gene's and T.T.'s one-year-old daughter, J.W., was detained in the same foster home with Felix. The Agency petitioned on her behalf on the basis of Gene's drug abuse. On September 29, Gene submitted to the allegations of the petitions and the court found them true, declared Felix and J.W. dependent children, removed them from their parents' custody and placed them in foster care. It ordered Gene to enter the SARMS program and comply with his case plan.

The social worker reported that on October 8, 2004, Gene was taken into custody. He was housed at the George Bailey Detention Facility (George Bailey). At the six-month review hearing for Felix on December 27, the court found reasonable services had been offered or provided and the parents had made minimal progress. It continued Felix a dependent and ordered Gene would have supervised visitation as long as he qualified for visitation at his facility and Felix expressed no undue fear or anxiety.

In March 2005, the social worker reported Gene had been moved to the Vista Detention Facility (Vista). He was participating in AA, NA, a domestic violence program, parenting education and was an inmate worker. He was having telephone contact with J.W. The social worker reported he was not arranging visits because he was concerned about the effects on the children of visits at the jail. In an addendum report, the social worker reported Gene had lost his visitation privileges because of reports he was threatening other inmates.

At the six-month review hearing for J.W. on March 15, 2005, the court found reasonable services had been offered or provided, the parents had made substantive progress with the provisions of their case plans, but returning J.W. to the parents' custody would be detrimental. It continued J.W. a dependent child in foster care.

In October 2005, the social worker reported Gene had been moved to George Bailey, where it was her understanding visitation was not permitted. She said when Gene was incarcerated at Vista, the children had physically resisted visiting him there, and she believed it was not in their best interests for them to visit.

At the 12-month hearing on June 2, 2006, Gene testified he had been incarcerated for 22 months, had two or three visits with the children at Vista, but had not seen them since mid-2005. He was moved to George Bailey in August 2005. He said the first visit he had was with J.W. He read to her, they played, she sat on his lap and everything went well. Both children came to the second visit. Felix cried a little, so Gene hugged him and walked with him. He said he played with both children and J.W. enjoyed the visit. J.W. came to the third visit and they enjoyed themselves. At the time for another scheduled visit, he heard the children come down the hall and heard Felix crying. There was no visit that day. He said he left messages several times with the Agency asking for visits, but no one returned his calls.

The social worker testified he arranged and supervised three visits at Vista. J.W. came to the first two. Gene read stories and played with her. The social worker said he brought both children to the third visit, but Felix became upset and cried. Gene tried to comfort him and played with J.W. For the fourth visit, as they walked down the hallway, Felix and J.W. stopped, and the case aide asked J.W. if she wanted to visit. She said, "No." Because Felix also appeared distressed, it was determined it would not be in the children's best interests to visit. After that time, Vista authorities changed Gene's classification and cancelled his visitation privileges. The social worker testified Gene was later moved to George Bailey and inmate services there informed him that George Bailey did not allow contact visits. He further testified the social worker attempted to set up telephone communication, but a block had been put on the foster parent's telephone to block calls from inmates other than Gene.

Felix and J.W.'s foster mother testified she had cared for the two children throughout their dependencies. She said calls initially were blocked to her telephone, but subsequently, Gene was able to call her. During his incarceration, she accepted collect calls from him, which he made about twice each month.

The court found reasonable services, including visitation, had been offered or provided, but returning the children would create a substantial risk of detriment. It continued the children dependents in foster care, continued visitation orders, terminated reunification services and set a section 366.26 hearing.

Gene petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Gene contends substantial evidence does not support the court's finding he received reasonable reunification services. He argues the Agency improperly stopped visits and it should have provided services, such as counseling, to aid in making visitation beneficial to the children. He also claims the court erroneously came to conclusions without an expert's opinion about the effect of the visits on the children.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Substantial evidence supports the findings Gene received reasonable reunification services and the Agency made reasonable attempts to provide visits for him. It is under a juvenile court's discretion to determine whether visits will occur. (In re Christian H. (1996) 50 Cal.App.4th 1001, 1008-1009.) Here, the court ruled at the six-month review hearing for Felix, which was held after Gene was arrested, that Gene would have supervised visits as long as he was qualified for such visits at his detention facility and Felix did not express undue fear or anxiety from the visits. At the first facility where Gene was incarcerated, he had no visits with the children because contact visits were not permitted there. After he was moved to Vista, the social worker was able to arrange visits for him and the children. The first two visits with J.W. alone were successful. However, at the third visit, Felix was apprehensive and cried. At the next scheduled visit, the children resisted, and Felix cried and clung to the foster mother. J.W. stopped in the hallway and said she did not want to attend the visit. After that time, Gene was reclassified and lost his visiting privileges because of a report he was threatening other inmates. Then he was moved back to George Bailey, where contact visits were not allowed. On this record, we cannot say the Agency did not make reasonable efforts to provide visits. The social worker reasonably determined it was not in the children's best interests to proceed with visits at Vista because they were too stressful for them and, subsequently, Gene lost his visitation privileges and was then moved to a facility that did not allow contact visits. Substantial evidence supports the court's finding that reasonable services were provided.

As to Gene's argument the Agency should have arranged counseling or some other service in an attempt to make visitation beneficial to the children, we note that Felix was only two years old and J.W. three at the time of the hearing. The children were too young to benefit from therapy to help them better tolerate visiting Gene in jail. Further, visits subsequently were not possible because Gene lost his visiting privileges and then was transferred to a facility where contact visits were not allowed.

Finally, the court did not improperly make findings without expert opinion about the effects of the visits on the children. The court heard evidence about the visits from Gene, the social worker and the foster mother. Gene said he heard Felix crying at the time of the fourth scheduled visit. The social worker reported the children resisted going down the hallway to see Gene and it was determined not to force them. The court was entitled to rely on the social worker's testimony and opinion that it would not be in the children's best interests to force them to visit. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.) The court's finding of reasonable services is supported by substantial evidence.

DISPOSITION

The petition is denied.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McDONALD, J.

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^[1] All statutory references are to the Welfare and Institutions Code.