John G. v. Sup. Ct.

Filed 7/18/07 John G. v. Sup. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This petition for writ of mandate presents the question whether there is substantial evidence to sustain the juvenile courts order that the reunification services of petitioner John G., Sr., be ended and the matter set for a hearing under Welfare and Institutions Code section 366.26.^[1] Substantial evidence supports the courts determination, and therefore, after considering the petition on the merits pursuant to the requirements of rule 8.452(i)(1) of the California Rules of Court, we will deny it.

FACTS

Then approximately one-year-old twins John G. and Marcella G. were put in protective custody on August 14, 2006, when their mother, Kelli C., was arrested on an outstanding warrant. At the time of the twins removal, petitioner was in state prison. He had been incarcerated for all but six weeks of the twins short lives. The twins are the parents fourth and fifth children. Their three older siblings are in guardianship with their maternal grandmother.

Just prior to the twins placement in protective custody, petitioner, an inmate at the California Mens Colony, located at San Luis Obispo, was moved into the prisons administrative segregation unit after being involved in a fight. He remained there until December 19, 2006, when he was moved to the Correctional Training Facility, located at Soledad, for safety reasons. He remained incarcerated until April 6, 2007, i.e., for most or all of the statutory six-month reunification period. (Under  361.5, subd. (a)(2) and (3), 3d par., the court may end reunification services after six months of foster care for a child less than three years old at the time of placement in protective custody. As noted, the twins here were about one year old when taken into protective custody.)

A juvenile dependency petition filed on the twins behalf included allegations that petitioner was unable to care for them because he was a prisoner. The petition alleged petitioners long history of criminal convictions for drug-related and other crimes, including his then-current incarceration on a two-year sentence for grand theft by reason of theft from the person of another (Pen. Code,  487, subd. (c)).

The jurisdiction report recommended that the twins be made dependents of the court and that both parents be given family reunification services. The social workers recommendation that petitioner receive reunification services was based on her understanding that he would be released from custody in February of 2007.

The clerks transcript discloses that a social worker, Huyen-Ha Vu, met with petitioner while he was being held at a local jail for a court appearance in Santa Clara County. He told her he knew about the services available at the California Mens Colony, to which he was scheduled to be returned. He told Vu that when he returned to prison he would enroll in and participate in reunification services, and specifically the Substance Abuse Program (SAP), which included parenting education, Alcoholics Anonymous and/or Narcotics Anonymous (AA/NA) meetings, drug testing, and drug prevention classes. He told Vu that he had not previously enrolled in SAP in the past because he didnt think he needed the services, but that when the twins were taken into protective custody he realized he must accept services to regain custody.

Petitioner advised Vu that since August 9, 2006, he had been held in solitary confinement because of a fight he had been involved in. He expected to be released into the general population in mid-October if returned to prison in the next 30 days, and to be placed on parole in February of 2007.

On October 2, 2006, Vu spoke to one Debbie, a California Mens Colony employee, to inquire about services for petitioner. Debbie advised Vu that that as long as petitioner was in the administrative segregation unit he was disqualified from participating in SAP.

On October 6, 2006, both parents waived their trial rights and submitted their case on the jurisdiction and disposition reports. The juvenile court sustained the petition and ordered that reunification services be provided to the parents. Petitioner was directed to complete a case plan that included a parent orientation class, a basic parenting without violence class, random drug and alcohol testing at least twice weekly, attendance at 12-Step meetings at least twice weekly, and participation in a substance abuse assessment. He was also ordered to participate in any treatment recommended following the assessment.

Following the disposition hearing, Vicki Tran became petitioners social worker. She wrote a letter to him on October 25, 2006, expressing her desire to discuss the case with him so he could participate in services while incarcerated. The letter included a copy of his case plan. It also informed him that Tran would accept collect telephone calls from petitioner.

Petitioner responded to Transs letter on October 31, 2006, informing her he was in the administrative segregation unit and could not make telephone calls. He wished to join SAP once released from segregated status.

Tran replied to petitioner on November 13, 2006. She asked him to notify her as soon as he was enrolled in SAP. She also indicated she would like to maintain monthly contact with him and enclosed a postage-paid envelope. Once again, she reiterated, we accept collect call[s], and she provided her telephone number.

Petitioner replied to Tran on November 15, 2006, informing her that he remained under administrative segregation. He had recently attended a review hearing and was told he would be transferred to another prison once he left the segregation unit. He could be released from custody as early as February 28, 2007.

Petitioner wrote to Tran again in a letter dated both January 1 and 3, 2007, informing her he had been transferred to the Correctional Training Facility and had a new release date of May 26, 2007. He wrote that he could not participate in programs until he appeared before the relevant prison review committee, but that as soon as he became eligible, he would start.

On January 23, 2007, Tran replied to petitioners letter dated January 1 and 3. She reminded him of the possible six-month statutory limit on reunification services (which she described as mandatory) for children less than three years of age and explained that she would have to recommend services be ended if he did not complete his case plan by the next hearing, scheduled for March 28, 2007.

Petitioner replied to Tran on January 30, 2007, stating that he was doing everything he could to enroll in SAP. He had given his case plan and the social workers letter to his counselor. He told Tran he was no longer in administrative segregation and should be able to enroll in SAP. He asked her to contact his counselor to see if he could enroll more quickly.

On February 28, 2007, Tran wrote another letter to petitioner, in which she repeated the advisements she had given in her January 23, 2007 letter.

On March 21, 2007, Tran received a letter from petitioner informing her he expected to be released on April 6, 2007. Petitioner explained that he had tried to get into SAP but had been told by his counselor that he would not be able to sign up for it because it was a six-month-long program and he did not have six months left to serve. On March 29, 2007, Tran confirmed petitioners ineligibility for SAP in a phone call to his prison counselor.

At the six-month review hearing on March 28, 2007, real party in interest recommended that family reunification services for both parents be ended and a section 366.26 hearing scheduled. Petitioner, though still in the legal custody of the state prison system, was present for the hearing. The juvenile court set the matter for trial on April 27, 2007.

Petitioner was released from prison on April 6, 2007, three weeks before the scheduled trial date. He met with Tran on April 9, 2007. Tran gave him referrals to basic parenting and parent orientation classes, to begin on April 20 and 23, 2007, respectively, and the contact information for a drug and alcohol assessment.

Petitioner began to have successful visits with his children. On April 16, 2007, he completed the drug and alcohol assessment and was referred to outpatient treatment, where he was placed on a waiting list. He began drug testing but missed tests on April 13 and 19, 2007.

The juvenile court conducted a contested six-month review hearing on April 27, 2007. Tran testified in accordance with many of the facts outlined above, and also testified she knew that the California Mens Colony offered parenting classes, AA/NA meetings, and a mens support group. But because petitioner was in administrative segregation he was disqualified from participating in those programs.

After petitioner was transferred to the Correctional Training Facility, Tran spoke with his counselor, who confirmed that they had services there as well, but that petitioner did not qualify for them.

At petitioners meeting with Tran on April 9, 2007, Tran provided him with referrals to the relevant remedial classes and a drug and alcohol assessment. She also made a referral for drug testing. Since petitioners release, he had been eager to work on aspects of his case plan, attending a parenting class and a parent orientation class, but had been less diligent on drug testing. The tests he submitted were negative but, as noted, he had missed two tests. Petitioner was staying at a motel where he paid for his lodging by the month. Tran did not consider that living arrangement to constitute stable housing.

Petitioner testified on his own behalf. He told the juvenile court that he had received a two-year prison sentence in April 2006 following his conviction of grand theft from the person of another. He lived with the twins for the first four weeks of their lives [a]nd then I got out for another two weeks. Vu had visited petitioner in jail in October of 2006 and given him information about his case plan.

On cross-examination petitioner confirmed that he had been embroiled in disciplinary issues at the California Mens Colony, one of which involved mutual combat. He was transferred to the Correctional Training Facility on December 19, 2006, because he posed a risk to other inmates at the California Mens Colony. (An official record refers to this displacement as an adverse transfer.) Once at the Correctional Training Facility petitioner was no longer in administrative segregation, but he had to wait about two weeks to appear before a classification committee before he could enroll in SAP-type programs. It appears that he made his appearance before the committee on January 3, 2007. Only on the day before his discharge from the Correctional Training Facility, however, was he informed that because he had less than six months left on his sentence he was not eligible to participate in any programs.

Petitioner missed two drug tests following his release because on both occasions he had tested the day before and believed he didnt need to call in on the following day. It had been years since petitioner had last used illegal substances. In later testimony, however, petitioner acknowledged November 17, 2005, as the date of his most recent conviction under Health and Safety Code section 11377, subdivision (a), for felony possession of a controlled substance.

Petitioner testified that for lack of time he had not yet begun attending 12-Step meetings. He was renting a studio in a hotel by the month and working as a nightclub bouncer. He remained on parole.

The twins mother also testified. She and petitioner used to use methampheta-mines together, the last time being some 18 months to two years before. She said that prior to petitioners going to prison, he was using methamphetamines.

The juvenile court rejected petitioners argument that he had not received reasonable services and disagreed that the law required prison staff to modify the program eligibility rules for his sole benefit. It ordered that both parents reunification services be ended and set the case for a section 366.26 hearing.

In so ordering, the juvenile court found: The Court has read, reviewed and received into evidence the social workers social study and has considered the efforts and progress that the parents/guardians have made and the extent to which they have cooperated with and availed themselves of the services provided and offered. [] Return of the child to his or her parents/guardians would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. By clear and convincing evidence, the parents/guardians have failed to participate regularly and make substantive progress in the court-ordered treatment plan and there is no substantial probability that the child will be returned to the parents within the next six months. [] By clear and convincing evidence, reasonable services have been offered and provided to the parents/guardians which were designed to aid them to overcome the problems which led to the removal of the child. Conditions still exist which justified the initial assumption of jurisdiction under Welfare and Institutions Code Section 300, or such conditions are likely to exist if supervision is withdrawn. The extent of the progress which has been made by the father [petitioner] toward alleviating or mitigating the causes necessitating placement has been poor.

Petitioner challenges the juvenile courts order and findings.

DISCUSSION

I. Adequacy of Efforts to Offer or Provide Reunification Services

Petitioner claims that real party in interests efforts to offer or provide reunification services to him were legally insufficient.

Section 366.21, subdivision (e), permits a juvenile court to end reunification services for a parent whose child who was under the age of three on the date of initial removal, if the court receives clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. (Id., at 3d par.) Before ending reunification services the juvenile court must also determine that reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered. (Id., at 8th par.)

Petitioner does not deny that because of his placement in administrative segregation at the California Mens Colony and the brevity of his confinement at the Correctional Training Facility he did not participate in services during the six-month reunification period, and furthermore that he had barely begun services during the brief period preceding trial that he was out of prison. Rather, his argument is that the state placed him in a position in which he could not obtain such services, and it would be what might be termed a Catch‑22 to deprive him of parental rights for failing to use services he had no access to.

As noted, the court here ruled that petitioner had been offered reasonable services. It stated: By clear and convincing evidence, reasonable services have been offered and provided to the parents/guardians which were designed to aid them to overcome the problems which led to the removal of the child.

We review the juvenile courts finding under a deferential standard. In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the [prevailing party]. 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.)

The statutory scheme requires that reasonable services have been either provided or offered to petitioner. ( 366.21, subd. (e), 8th par.) Though the paragraph speaks in the passive voice, not specifying who must be offering or providing the services, its next sentence following the quoted material provides that those services be initiated, continued, or terminated. (Ibid.) The services to which the paragraph refers are reunification services. (Cynthia D.v. Superior Court (1993) 5 Cal.4th 242, 249 [citing statutory language that, as relevant here, is similar in all material respects to that of current law];  361.5, subd. (a)(3), 5th par. [when child is less than three years old at the time of removal from a parents physical custody or is a member of a sibling group, the juvenile court shall warn the parent that failing to adequately meet a case plans requirements may result in ending reunification efforts in six months].) Plainly, then, it is petitioners social workers and real party in interest (the Santa Clara County Department of Family and Childrens Services) who must be offering or providing the services, not the state as a whole or the prison system as part of the states governmental apparatus.

From the point of view of the twins and real party in interest, petitioners social workers made reasonable efforts to offer[] ( 366.21, subd. (e), 8th par.) reunification services, and that is all that the statute requires or even permits. From petitioners point of view, an offer that he cannot take advantage of is meaningless.

We agree with the twins and real party in interest. It was petitioners pugnacity inside the California Mens Colony that brought into force prison rules barring him from reunification services (see In re Steven A. (1993) 15 Cal.App.4th 754, 764), and real party in interest could not countermand the warden. If, as the father testified, no services were available to him in prison (because of the manner in which he was housed), his inability to participate was not the departments fault. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1013 (Mark N.).) Petitioner argues that, be that as it may, his later confinement at the Correctional Training Facility began in late December of 2006 and was scheduled to last about six months, long enough to make him eligible for reunification services if the prison authorities would be a bit flexible. He notified Vicki Tran, his social worker, of his transfer to the prison by letter dated January 1 and 3, 2007, but Tran did not call the facilitys counselor until March 29, 2007. In sum, The Department did nothing in the way of facilitating the reunification process for father.

Petitioner knew, however, that Tran was available to accept collect calls from him. Yet, despite being able to make collect calls once he passed through the Correctional Training Facilitys classification review process on January 3, 2007, he never called Tran, testifying that he thought her attention to his case was sufficient and her response time to his letters satisfactory, even though she did not write back to him until January 23, 2007 (in that letter again reminding petitioner that she would accept his collect calls). Petitioners failure to pursue his case vigorously with Tran, along with his failure on two occasions to call in for drug testing after his release, justify the juvenile courts ruling, which we review on a deferential standard, that The extent of the progress which has been made by [petitioner] toward alleviating or mitigating the causes necessitating placement has been poor.

In sum, the court did not err in finding that services offered to petitioner by real party in interest were reasonable under the circumstances. Because of his own actions, [petitioner] . . . placed himself out of the reach of any meaningful rehabilitative services which the Department could have provided. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.)

Petitioner relies on Mark N., supra, 60 Cal.App.4th 996. In Mark N., the petitioning parent, the childs father, was incarcerated for all but the first month of a 17-month reunification period. (Id. at p. 1000.) The petitioner was not brought to the jurisdiction or disposition hearings or the six-month review hearing. (Id. at pp. 1003-1004.) While incarcerated, he wrote to the social worker five times and received only one reply. (Id. at p. 1005.) During the trial, the social worker could not remember whether she ever wrote to the petitioner about attending services while he was incarcerated. (Id. at pp. 1007, 1013.)

Mark N. found under those circumstances that reasonable services had not been offered or provided to the father. The prisons are run by the Department of Corrections, not by the department. [Citation.] However, the department should, at a minimum, have contacted the relevant institutions to determine whether there was any way to make services available to the father. (Mark N., supra, 60 Cal.App.4th at p. 1013.) [W]hile the department cannot tell prison officials how to run their institutions, it can: notify the prison an incarcerated parent is in need of reunification services; determine whether any appropriate services are available at the particular institution in question; and explore whether changes in the housing of the parent prisoner can be made to facilitate the provision of such services consistent with legitimate prison and public safety concerns. The department does not meet its obligations when, as here, it simply concludes: The father is in prison; he knows what the requirements of his case plan are; he was imprisoned before any referrals were made; he says no services are available to him; and being unaware of any resources to assist the incarcerated parent with reunification, the department need not take any action to facilitate the reunification process. [] The father was not required to complain about the lack of reunification services as a prerequisite to the department fulfilling its statutory obligations. The department must offer or provide reasonable reunification services to an incarcerated parent. (Id. at pp. 1013-1014.)

In this case, petitioners social workers Vu and Tran contacted prison personnel to inquire about his ineligibility. Tran maintained regular communication with petitioner under difficult circumstances and encouraged him to ask for whatever help he needed. There was little more they could do, and we do not perceive that Mark N., supra, 60 Cal.App.4th at page 1013, establishes a minimum level of service a social service agency must meet to satisfy the laws requirements (or that if it does, the help given to petitioner fell below any such threshold). Based on the circumstances of this case, we cannot overrule the juvenile courts finding that reasonable services were offered to petitioner, and that is all that section 366.21, subdivision (e), paragraph eight, required of petitioners social workers.

II. Substantial Evidence of Substantive Progress

Petitioner next claims that there was no substantial evidence to support the juvenile courts finding that he had failed to make substantive progress on his case plan.

Section 366.21, subdivision (e) provides as relevant here: At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall . . . consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself to services provided.

We review for substantial evidence the juvenile courts ruling that, in part because petitioner had failed to make substantive progress in carrying out the mandates of his case plan, returning the twins to him would create a substantial risk of detriment to their well-being. (Sue E. v. Superior Court (1997) 54 Cal.App.4th 399, 404.)

We disagree with petitioner that no such substantial evidence exists. Petitioner showed a lack of diligence in making efforts to reunite with the twins when he was confined at the Correctional Training Facility. After his release from the prison system, he twice failed to comply with the case plans drug-testing requirements. He had found lodging for himself, but it was, in the view of Tran, transient and unstable hotel-style lodging (see In re Steven A., supra, 15 Cal.App.4th at p. 764), and Tran implied in her testimony that it was not suitable for raising infants. Under these circumstances, we cannot say that the juvenile courts determination is not supported by substantial evidence.

CONCLUSION

The petition is denied.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.