In re G.S.

Filed 8/29/06 In re G.S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

PETITION for Extraordinary Writ. Petition granted.

Carrie Clarke for Petitioner.

No appearance on behalf of Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel for Real Party in Interest.

Patricia Crook for Minors.

INTRODUCTION

Presumed father, J. B. S., petitions for extraordinary writ review (Cal. Rules of Court, rule 38 et seq.) of the order of the juvenile court that terminated reunification services and set the permanency planning hearing (Welf. & Inst. Code, § 366.26).[1] He contends that the Department failed to provide him with reasonable services to reunify with his two-year-old son, G. S. We grant the writ petition.

FACTUAL AND PROCEDRUAL BACKGROUND

1. The detention.

Father was incarcerated at the Twin Towers in Los Angeles when 14-month-old G. was detained from his parents in June 2005. The detention was occasioned by mother who stabbed G.’s grandmother in the back. Father’s criminal history is related to substance abuse and includes burglary, battery, trespass, and vandalism. The Department of Children and Family Services (the Department) learned the name of father’s parole officer and that father was scheduled to be released in December 2005. The juvenile court ordered that G. and his half-sister be detained and granted father monitored visits.[2]

The Department sent father two contact letters by certified mail requesting that he call the investigating social worker for interviews. The social worker also encouraged family members to have father call. By the time of the jurisdiction hearing, father had not contacted the Department. Nor did the Department interview father for the jurisdiction hearing, it explained, “due to time constraints” and father’s failure to respond to its letters. For the jurisdiction hearing, the Department reported it was “unaware of any efforts or programs the . . . [father] may have enrolled in while incarcerated.” (Italics added.)

No arrangements were made for G. to visit with father because father was incarcerated, despite the juvenile court’s order that father have visits. The Department requested, “based on the case concerns addressed in this report,” namely, that father had been incarcerated for most of G.’s life, was involved in a gang, had a criminal history and lifestyle, and a tendency towards violence, that father be given no visits upon release from jail until he met with the Department. The Department initiated concurrent planning and adoption assessments before the jurisdiction hearing, as the family was willing to care for G. for the long term if the parents are unable to reunify. The court ordered the Department to interview father.

The social worker reached father at the North County Correctional Facility in Saugus, California, by telephone in September 2005. Father declared that he wanted to reunify with G. “ ‘I just feel that my son is safe with me. I can’t be there for him, but I am a good father,’ “ he said. While he was willing to participate in parenting classes, he was hesitant to complete a drug program or testing, because, he stated, he was not a drug user. He stated that the jail’s parenting class was full.

In November 2005, the juvenile court sustained the petition, as amended, finding true the allegations that mother has a history of substance abuse, violent and assaultive behavior, and a violent criminal history, including stabbing the maternal grandmother in the back with a knife in front of G. and that mother and father have a history of engaging in physical altercations. The petition also alleged that father has a history of domestic violence and engaging in violent altercations, including striking mother on the face and causing bruising on mother. All of this conduct, the petition alleged, endangered G.’s physical and emotional health and safety and placed him at risk. (§ 300, subds. (a) & (b).)

As for the disposition, the juvenile court removed G. from his parents’ custody. It ordered that father undergo drug rehabilitation with random testing, domestic violence counseling, parent education, and individual counseling to address case issues, including anger management. The minute order reflects that the court awarded father monitored visits. The case plan states that such visits would occur after father met with the Department.

2. The six-month stage.

By the time of the six-month hearing (§ 366.21, subd. (e)) in May 2006, the record shows that the Department had sent two “contact” letters to father, although the Department’s report indicates it sent more. The Department reported that the paternal grandparents “intermittently” brought G. to visit father in jail. When he was released from prison in December 2005, father told the social worker where he was living and he visited G. Told he would have to submit to random drug testing, father responded that he would “ ‘probably’ “ produce a positive result for marijuana. Father was re-arrested in early January 2006. The Department recommended against returning G. to father in light of his failure to make progress in his case plan and because he was incarcerated. The Department recommended terminating reunification services. At the six-month review hearing (§ 366.21, subd. (e)), father stated through his counsel that he did not agree with the Department’s recommendation to terminate family reunification services and asked for further services. The juvenile court found that reasonable services had been provided to father but that father was not in compliance with the case plan and that there was no substantial probability that G. could be returned to his parents within the next six months. The court terminated reunification services for father. Father filed the instant writ petition.

CONTENTIONS

Father does not challenge the services as ordered. He contends that the Department did not provide adequate reunification services.

DISCUSSION

Father contends there is no evidence that the Department provided adequate reunification services. He argues the Department made no effort to contact the prison counselors to enroll father in counseling; no attempt to ascertain what services were available to him in or out of jail; and no attempt to arrange visits for him and G. Leaving the effort to the incarcerated parent, father argues, is not the provision of reasonable services. We agree.

a. The law concerning reunification services.

Reunification services must be provided to the incarcerated parent unless the court determines by clear and convincing evidence that those services would-be detrimental to the child. (§ 361.5, subd. (e)(1)[3]; accord In re Ronell A. (1995) 44 Cal.App.4th 1352, 1362.) The juvenile court here did not find that reunification services would be detrimental to G. and indeed ordered services for father. “ ‘Accordingly, when the court ordered a reunification plan for [this father and son], it was required to be a reasonable one.’ [Citation]” (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.)

Once a reunification plan is ordered, the Department must “ ‘provide suitable services, in spite of the difficulties of doing so or the prospects of success. [Citation.]’ [Citation.]” (In re Ronell A., supra, 44 Cal.App.4th at p. 1362, citing In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) “ ‘Section 361.5 has been construed . . . to require “[a] good faith effort” to provide reasonable services responding to the unique needs of each family. [Citation.] Moreover section 366.21, subdivision (g)(3), requires “clear and convincing evidence” that such services have been offered to the parents. Under this burden of proof, “evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.]’ [Citation.]” (In re Precious J., supra, 42 Cal.App.4th at pp. 1472-1473.)

Our task in reviewing the sufficiency of reunification services “is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered. [Citations.]” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

Here, the record contains no evidence that the Department made the necessary effort to provide services to father. The Department’s reports indicate that, despite knowing where father was housed, it made no attempt whatsoever to make the preliminary step of ascertaining what services were available in prison or from other sources. Father volunteered the information that the prison’s parenting classes were full. Otherwise, the Department actually did nothing to arrange for services. Until specifically ordered by the juvenile court to interview father, the Department’s effort to contact him was lackluster at best. The offered justification was “time constraints.” But, the duty to provide services to the parent falls squarely on the Department. (§ 361.5, subdivision (a).) By failing to perform its duty and thereby leaving the job to father, the Department shirked its statutory duty to offer reunification services at the outset. Its conduct casts doubt on its good faith and virtually assures the termination of father’s parental rights.

County Counsel argues at length that the Department made “efforts to keep in touch” with father but father never responded. It argues that father stated he would not complete a drug counseling program or submit to testing and failed to demonstrate that he attempted to participate in services, or “send his resume out to several employers, and ask to visit with G[.] as soon as he was released from jail.”[4] County Counsel’s entire argument can be summarized thusly: father made no effort.

County Counsel’s argument ignores the fact that the Department made no attempt in the first place to arrange for, or to ascertain what services were available in prison, or elsewhere, so that father could comply. Father cannot be faulted for failing to participate in services that were never offered. Moreover, father’s failure to contact the social worker in response to the Department’s letters does not vitiate the Department’s obligation to make a good faith effort provide services. Among other things, the Department is obligated to “ma[k]e reasonable efforts to assist the [father when] compliance proved difficult . . . .’ [Citation.]” (In re Ronell A., supra, 44 Cal.App.4th at p. 1362, italics added.) We note that the Department was able to interview father when ordered by the juvenile court. County Counsel’s argument also overlooks the fact that the Department, not the parent, bears the burden to make a record at the six-month review hearing establishing that reasonable services were provided. (In re Precious J., supra, 42 Cal.App.4th at p. 1478.) The argument also ignores the fact that the Department’s burden of proof is by clear and convincing evidence. (§ 366.21, subd. (g)(1), par. 6[5].) There is no evidence in this record, let alone evidence that would support a finding by clear and convincing standard, that the Department offered father services.

What the Department did in this case was to send some letters[6] to father and speak to him once when specifically ordered to by the court, and then sit back and blame father for his failure to comply. That is not enough to show good faith. Such conduct in this case exposes the attitude that, because father was incarcerated, the Department need not make the slightest effort to look into available services or offer services to him. Yet, the statutory obligation is to provide services despite the difficulties of doing so or the prospects of success. (In re Ronell A., supra, 44 Cal.App.4th at p. 1462.) As Justice Sills famously observed, “If a parent cannot avail himself or herself of reunification services because of incarceration, it is a fait accompli that the parent will fail to comply with the service plan. That is what occurred here. While ‘use a gun, go to prison’ may well be an appropriate legal maxim, ‘go to prison, lose your child’ is not.” (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402, italics added.) The juvenile court erred in finding that reasonable reunification services were provided because the record contains no evidence that the Department provided any services, let alone reasonable ones.[7]

b. Visitation.

Even if the Department had provided services, it utterly failed to provide for visitation. “Failure to provide for visitation for an incarcerated parent has been found unreasonable where the prison was not excessively distant.” (In re Ronell A., supra, 44 Cal.App.4th at p. 1464, citing In re Monica C. (1995) 31 Cal.App.4th 296, 307.) Father was never jailed outside of Los Angeles County, and hence was never excessively distant.

Nonetheless, this record contains absolutely no evidence that the Department arranged for, facilitated, or monitored a single visit for father and G. To the degree that father was able to visit his son, it was thanks to the effort of his family, not the Department. The record simply does not support the County Counsel’s assertion “that the visitation arrangement was for the paternal grandparents to take G[.] to visit [father] in jail.” (Italics added.) The report Counsel cites indicates that the “arrangement” was for mother’s other child and family not for G. and father. Although it is clear from the record that father desired visitation and services, the Department’s justification for failing to facilitate or monitor visits for him appears to be that he was in jail. But, although “ ‘incarcerated parents . . . suffer obvious obstacles to visitation[,] . . . the law is clear that reasonable services, most particularly visitation, must be provided.’ [Citation.]” (In re Precious J., supra, 42 Cal.App.4th at p. 1478, quoting In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1791.) As the Precious J. court explained, “It was [the parent’s] incarceration which necessitated [his] reliance on the Department to facilitate the visitation to which [he] was unquestionably entitled . . . .” (In re Precious J., supra, at p. 1478.)

Not only did the Department fail to facilitate visits for father while he was in jail, it made no effort to arrange visits when he was released. While father was required to meet with the Department before he could have visits, the meeting requirement was relevant only upon his release from jail. Father did speak with the social worker upon his release and informed the Department where he was living. Still, the Department did not provide for visits or monitor them. By failing to facilitate or monitor visitation, the Department “virtually assured the erosion (and termination) of any meaningful relationship” between father and G. (In re Brittany S., supra, 17 Cal.App.4th at p. 1407) and guaranteed the termination of father’s parental rights. The juvenile court erred in finding that there had been reasonable reunification services.

DISPOSITION

The petition for extraordinary writ review is granted. The juvenile court is ordered to extend the reunification period an additional six months.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

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

[2] Neither mother nor her other child, G.’s half-sister, is a party to this proceeding.

[3] Section 361.5, subdivision (e)(1) reads: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. . . . Services may include, but shall not be limited to, all of the following:

(A) Maintaining contact between the parent and child through collect telephone calls.

(B) Transportation services, where appropriate.

(C) Visitation services, where appropriate.

(D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.

An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.”

[4] In an effort to shift responsibility for the services onto father, County Counsel cites the fact that although father informed the social worker that prison parenting classes were full, he “did not explain that he would enroll as soon as a class became available or that he would involve himself of [sic] any of the other programs offered at his place of incarceration.” Yet, this discussion was had in September 2005, and father knew he would be released in two months. The record contains no evidence that the social worker learned that the class would have an opening before December, and no evidence that the social worker inquired about any other courses or services available. Again, the responsibility is on the Department to make a “good faith effort” to provide services, and on the Department to make a clear and convincing record that reasonable services have been offered. (In re Precious J., supra, 42 Cal.App.4th at pp. 1472-1473, citing § 366.21, subd. (g).)

[5] Section 366.21, subdivision (g)(1), paragraph 6, reads in relevant part, “The court may not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.”

[6] Among the examples of effort on the part of the social worker to maintain contact with father, County Counsel cites the notices of hearing. The Department is constitutionally obligated to send those notices. Doing so is manifestly not “offering reunification services” or maintaining contact.

[7] The Department recites the rule that to determine whether the Department has provided sufficient reunification services, “[t]he standard is not whether the services . . . 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.) However, no services were provided to father in this case and hence they were not reasonable.