In re Adrian G.

Filed 3/20/07 In re Adrian G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Adrian G., Sr. (Adrian, Sr.) appeals the six-month review hearing order terminating his reunification services in the dependency cases of his children, Adrian G., Angel G., and Edgar G. Adrian, Sr., contends there is no substantial evidence that he received reasonable services and that the court should have continued his services because it continued services for the children's mother, T.C. We affirm.

BACKGROUND

In early October 2005, when Adrian was three years old, Angel was two years old, and Edgar was one year old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions alleging that T.C.'s home was unsafe and extremely filthy.^[1] When the petitions were filed, Adrian, Sr., was incarcerated. The children were detained in Polinsky Children's Center and then in a foster home.

By late October 2005, Adrian, Sr., had been released from custody. In November, the court entered true findings on the petitions and ordered the children placed in foster care. On April 27, 2006, while still on probation in the prior case, Adrian, Sr., was taken into custody on robbery charges. He remained in custody in July, when the six-month review hearing took place.^[2] The court found that reasonable services had been provided or offered; T.C. had made substantive progress with the case plan, but Adrian, Sr., had not. It continued T.C.'s services and terminated Adrian, Sr.'s.

DISCUSSION

Adrian, Sr., contends there is no substantial evidence that he received reasonable services between April 27, 2006, when he was incarcerated, and July 6, 2006, the date of the six-month review hearing, a period of slightly more than two months. He argues that the Agency did not attempt to identify services at his place of incarceration or arrange for visits despite court orders to the contrary. He also contends the juvenile court abused its discretion and violated the statutory scheme when it terminated his services because the law favors reunification whenever possible and because the court continued T.C.'s services.

Adrian, Sr., who was almost 21 years old at the outset of this case, is a documented gang member. He had a casual attitude toward the Agency's concern for the children. He blamed T.C. for not following through on service referrals and claimed that when he was home, the house was clean and he cared for the children. He said he did not "know much about the children and their immunizations being behind because [T.C. took] care of that." When the social worker mentioned the children's developmental delays, he vaguely recalled that they had been referred to the Regional Center, but claimed that T.C. took care of that also. He admitted, however, that he used poor judgment in declining to participate in voluntary services offered following substantiated allegations of general neglect of the children.

At the October 2005 detention hearing, the court ordered the Agency to offer the family appropriate reunification services; authorized supervised contact visits for Adrian, Sr., in accordance with the rules of the institution where he was incarcerated, and allowed the Agency to terminate the visits if they appeared detrimental to the children; authorized supervised visits for T.C.; authorized the county treasurer to reimburse the children's caretaker for collect telephone calls from Adrian, Sr.; authorized psychological evaluations for Adrian, Sr., and T.C.; and referred them to the Substance Abuse Recovery Management System (SARMS) for voluntary evaluations.

In late October 2005, apparently after he had been released from jail, Adrian, Sr., told the social worker that he needed help applying for disability payments for a back injury, and believed that his family needed help with parenting classes and money management. The social worker gave him a list of therapists for individual counseling, contact information for parenting classes and SARMS, a brochure on his civil rights, and a parents' guide to children's services. The social worker said that someone would call him with the name of the psychologist who was to conduct his evaluation.

Adrian, Sr., did not attend a hearing in early November 2005, although he had been ordered to do so. He did, however, appear at a hearing 10 days later. The court ordered both parents to comply with the case plan and undergo psychological evaluations. As to both parents, it ordered supervised visitation; gave the social worker discretion to lift the supervision requirement and allow overnight visits with the concurrence of the children's counsel; and gave the social worker discretion to allow a 60-day trial visit with the concurrence of the children's counsel, upon ex parte order and on the condition that the psychological evaluation was completed and there was favorable input from the therapist. The court informed the parents that because two of the children were under the age of three, they had only six months "to participate regularly and make substantive progress in court-ordered treatment programs and to cooperate with or use Agency services" or risk termination of parental rights. (Welf. & Inst. Code,  361.5, subd. (a)(1), (2).)^[3]

On May 24, 2006, after Adrian, Sr., was again taken into custody, the court directed the Agency to use its best efforts to arrange visitation in accordance with the rules of the institution where he was incarcerated, and to "balance these other considerations with the appropriateness of the visit." On June 28, Adrian, Sr.'s counsel asked that Adrian, Sr., receive institutional visits with the children. The court directed the social worker to address the issue and told counsel to speak to the social worker and to raise the matter at the next hearing if necessary.^[4]

T.C. participated in and made progress in services, but Adrian, Sr., did not make progress. He scheduled a psychological evaluation twice but failed to appear for both appointments He said that he was unable to keep the appointments due to job opportunities. He claimed that he attended seven out of 12 required parenting classes with T.C., stopping only when he was arrested in April 2006. The social worker was unable to verify his attendance, however. He claimed that he called many therapists to arrange therapy, but never received return calls. He visited the children regularly with T.C.

Ultimately, the Agency recommended that the court continue reunification services for six months for T.C. but not for Adrian, Sr. In terminating Adrian, Sr.'s services, the court stated, "essentially all that he had done by the time he went to jail was to visit regularly and attend a few classes, but the other things were not in play at all, and so the court finds that it wasn't the fact he got jailed that interrupted his services, he simply didn't do them in any substantive way."

The juvenile court's finding that reasonable services were provided or offered properly covered the entire reunification period, not just the two months before the six-month review hearing. More was required of Adrian, Sr., than visiting the children and claiming to have attended parenting classes. He had six months before his second incarceration in which to find a therapist, submit to a psychological evaluation and complete a parenting course. (Cf. Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1000, 1002-1003, 1014-1015 [parent was incarcerated for the last 16 months of the 17-month reunification period and was given no services at all].) He accomplished none of those tasks.

When a child is a member of a sibling group or under three years old when initially removed from a parent's physical custody, the maximum period of reunification services is generally six months. ( 361.5, subd. (a)(2); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, fn. 4.) At the six-month review hearing, the juvenile court shall return the child to the parent unless, based on certain criteria, it finds that return would be detrimental to the child. ( 366.21, subd. (e), 1st .) "[W]here relevant, [the court] shall

order any additional services reasonably believed to facilitate the return . . . ." ( 366.21, subd. (e), 2nd .)^[5]

Adrian, Sr., compares his situation to that of T.C., pointing out that she did not start therapy. She did, however, participate in and progress in services, and complete parenting classes and a psychological evaluation. Adrian, Sr., also points out that T.C. was "quickly released" after being incarcerated on April 29, 2006. He asserts that he, too, would have continued working on the reunification plan if he had been quickly released. The responsibility for his incarceration, of course, is his. It was up to him to take "a fundamental first step" in the reunification process, staying out of custody. (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162.) In In re Alanna A., supra, 135 Cal.App.4th 555, this court rejected the argument that at the twelve-month review hearing, the juvenile court is required to extend one parent's services if it continues the other's parent's services and does not set a section 366.26 hearing. (Id. at pp. 558-559, 564-566.) Here, but for T.C.'s reunification efforts, Adrian, Sr., would not have been eligible for continued services, and in any case, allowing him further services would have been fruitless and an unwise use of governmental resources. (Id. at pp. 565-566.)

While the record is not entirely clear, it appears that the Agency may have discovered on May 4, 2006, that Adrian, Sr., had been incarcerated for the second time. On May 24, six weeks before the hearing at issue, the court ordered the Agency to use its best efforts to arrange visits in accordance with the rules of his institution and the appropriateness of visitation. On June 22, two weeks before the hearing, the social worker left a message with the San Diego County Probation Department, saying that she needed to know Adrian, Sr.'s sentencing date and the amount of time he would be incarcerated to make a recommendation concerning services. While the social worker should have made this inquiry earlier, this does not compel the conclusion that there was a failure to offer reasonable services. (Cf. In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402-1403, 1407 [mother, who was in custody during virtually the entire case, did not receive reasonable services where the service plan allowed visits only if she was not incarcerated].) Reunification services need not be "the best that might be provided in an ideal world, but . . . [rather those] reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Substantial evidence supports the juvenile court's finding that Adrian, Sr., received reasonable services. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The court did not err by terminating his services.

DISPOSITION

Judgment affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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^[1] The court later dismissed allegations that T.C. failed to provide the children with the necessities of life, including adequate food.

^[2] The preliminary hearing in the criminal case was set for July 27. The social worker believed that Adrian, Sr., might receive a sentence as long as two years.

^[3] Further statutory references are to the Welfare and Institutions Code.

^[4] The next hearing was the July 6 six-month review hearing.

^[5] Omitting the words "where relevant," Adrian, Sr. asserts that the latter sentence required the court to continue his services because it did not order the children returned to parental custody or set a section 366.26 hearing. A reading of the entire sentence, as well as the entirety of section 366.21, subdivision (e), shows that his assertion is without merit. Moreover, in view of his poor record of taking advantage of the services offered to him, it is unclear how the juvenile court could have reasonably concluded that additional services would have facilitated the children's return to him.

Adrian, Sr. also relies on In re Alanna A. (2005) 135 Cal.App.4th 555. In that case, this court noted, "At the six-month review hearing, if the child remains in foster care and the goal remains family reunification, 'the court shall direct that any reunification services previously ordered shall continue to be offered to the parent.' ( 366.21, subd. (e), italics added; see Cal. Rules of Court, [former] rule 1460(f)(11).) The court has the discretion to modify the terms and conditions of those services. (Ibid.) Thus, at the six-month date, the court's discretion to terminate services remains limited." (In re Alanna A., supra, 135 Cal.App.4th at p. 564.) Here, at the six-month review, the children remained in foster care, but the goal remained reunification with T.C. -- not with Adrian, Sr. Thus, the above language in In re Alanna A., supra, 135 Cal.App.4th 555 is of no aid to him. (See also In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1237, 1242-1243 [the juvenile court may terminate services before six months have elapsed, depending on the circumstances].)