Manuel M. v. Sup. Ct.

Filed 5/16/06  Manuel M. v. Sup. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 in mandate after reference to a Welfare and Institutions Code section 366.26 hearing.  Peter E. Riddle, Judge.  (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art.  VI, §  6 of the Cal. Const.)  Petition denied.

            Manuel M. seeks writ review of orders terminating his reunification services and setting permanency plan hearing under a Welfare and Institutions Code section 366.26.^[1]  He contends the trial court erred when it found the San Diego County Health and Human Services Agency (the Agency) offered him reasonable services.  We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

            Two days after her birth in January 2005, the Agency removed Marissa M. from parental custody due to methamphetamine exposure.  The Agency filed a petition under section 300, subdivision (b) based on infant Marissa's positive toxicology screen for methamphetamine, mother's drug use and father's history of drug use.  Manuel was deported to Mexico following a drug-related arrest.  He told the social worker he and Marissa's mother married in 1998 and had a relationship for approximately 10 years.  The social worker informed him that he had six months to participate in reunification services and make progress or the court would establish a permanent plan for the child.

            The court appointed counsel for each parent.  Neither parent attended the detention, jurisdiction or disposition hearings.  At the detention hearing, the court ordered the Agency to offer appropriate reunification services to the family.  The social worker notified the Mexican consulate of the dependency proceedings and completed an international/transborder service request for the parents.  She requested monthly updates from the Mexican agency concerning their participation and progress with the case plan. 

            At the jurisdiction hearing, the court made a true finding under section 300, subdivision (b) and found Manuel's paternity status remained that of an alleged father.  The court continued the disposition hearing to allow the Agency to prepare a parole letter to enable Manuel to cross the border and attend the hearing.  However, Manuel apparently was unable to cross the border. 

            On February 22, 2005, at the disposition hearing, the court removed Marissa from the custody of her parents, ordered parents to comply with the case plan and ordered the Agency to " provide services to the [parents] consistent with their case plan(s)."   Manuel's case plan called for him to participate in individual counseling, a parenting class, random drug testing and to attend two 12-step meetings each week.  The Agency's responsibilities included making referrals to community resources on Manuel's behalf and supervising visitation when he was able to visit Marissa. 

            On March 7, 2005, the social worker sent Manuel a letter and a copy of his case plan to his address in Mexico.  She did not provide service referrals on father's behalf.    The six-month review report states under the heading " SERVICES PROVIDED/FAMILY COMPLIANCE," " [t]he Agency has provided the family with case management services and age appropriate care for Marissa.  .  .  ."  

            After Manuel's initial contact with a social worker on January 19, 2005, the Agency had no further communication with him until another social worker located him in Washington State on October 26, 2005.  Manuel told her he did not receive notice of the proceedings and did not know Marissa's whereabouts.  He asked the social worker what was required for reunification.  She informed Manuel that he first needed to establish paternity and advised him to seek drug testing services and parenting classes in his community. 

            The six-month review hearing, originally scheduled for August 23, 2005, was continued for various reasons on behalf of the Agency, mother and father.  The review hearing took place on January 25, 2006.  Neither parent was present.  Manuel had not returned a paternity questionnaire; however, the social worker had a copy of Marissa's birth certificate in which Manuel was listed as her father.  Based upon the birth certificate, the court determined Manuel was Marissa's presumed father.  The court found Manuel was not entitled to services because he remained an alleged father during the earlier proceedings.  The court also found the services provided parents were reasonable under the circumstances.  The court terminated reunification services and set a permanency plan hearing under section 366.26 for May 25, 2006.

            On April 7, 2006, the Agency filed a motion to augment the record with additional evidence.  Manuel opposed the motion on the basis the additional material constitutes post-judgment information not presented to the trial court and outside the scope of review.  As a general rule, we review the judgment upon the record considered by the trial court at the time the judgment was made.  (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th  434, 444, fn. 3; In re Randi D. (1989) 209 Cal.App.3d  624, 627.)  We consider the request concurrently with the petition and deny the motion.

DISCUSSION

A

            Manuel contends the court's finding that he was not entitled to reunification services due to his status as an alleged father contradicts the court's earlier order directing the Agency to provide him reasonable reunification services and mandates reversal of the order setting the section 366.26 hearing.  (See Andrews v. Cunningham (1951) 105 Cal.App.2d  525, 529; Sutter v. Madrin (1969) 269 Cal.App.2d  161, 169.)  He further asserts the court erred when it terminated reunification services and scheduled a section 366.26 hearing because the Agency did not provide him reasonable services.  (§§  361.5, subd. (a), 366.21, subds. (f), (g); see Cynthia D. v. Superior Court (1993) 5 Cal.4th  242, 248.)

B

            A reviewing court must uphold a juvenile court's findings and orders of reasonable services if they are supported by substantial evidence.  (In re Amos L. (1981) 124 Cal.App.3d  1031, 1036-1037.)  We review the evidence in the light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling.  (In re Misako R. (1991) 2 Cal.App.4th  538, 545.)

C

            The juvenile law differentiates between alleged, natural (biological), and presumed fathers.  (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)  An alleged father is a man who may be the child's father but who has not established biological paternity or presumed father status.  (Ibid.)  Presumed father status may be conferred on a man who is or was married to the child's natural mother and the child was born during the marriage (or within 300 days after the marriage is terminated), or if the alleged father meets one of the other specified criteria listed in Family Code section 7611.  (Fam. Code, §  7611; In re Zacharia D., supra, 6 Cal.4th  at p. 449, fn. 15; In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.)

            A father's status is significant in dependency cases because it determines the rights to which he is entitled and the extent to which he may participate in the proceedings.  (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.)  A presumed father is entitled to appointed counsel, custody (absent a finding of detriment) and reunification services.  (§§  317, subd. (b), 361.2, subd. (a), 361.5, subd. (a); In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.)  When the paternity of an alleged father has not yet been established, he does not have a statutory right to counsel and is entitled only to notice and an opportunity to appear, assert a position and attempt to change his paternity status.  (In re Christopher  M., supra, 113 Cal.App.4th  at p. 159; In re O.S. (2002) 102 Cal.App.4th 1402, 1406, 1408.)

            Manuel contends the court implicitly found he was a presumed father at disposition when the court removed Marissa from his custody, ordered the Agency to provide reunification services and ordered him to comply with the case plan.  Manuel argues the Agency's detention report provided the court uncontroverted evidence he was Marissa's presumed father under Family Code section 7611, subdivision  (a). 

            The Agency argues the court made a mistake or overlooked father's status when it ordered the Agency to provide reunification services.  Relying on Glen C. v Superior Court (2000) 78 Cal.App.4th  570, 584-586 (Glen C.), and Clifford S. v. Superior Court (1995) 38 Cal.App.4th  747, 752-754 (Clifford S.), the Agency maintains Manuel was not entitled to services and therefore does not have the right on appeal to raise the issue of reasonable services. 

            Neither case assists the Agency.  In Glen C., the trial court denied reunification services to an alleged father unless he established his status as presumed father.  The Court of Appeal held the trial court did not err in denying reunification services because the record did not support an implied finding the father was a presumed father or could have attained the status of a presumed father before the reunification period expired.  (Glen C., supra, 78 Cal.App.4th  at p. 585-586.)  The Clifford S. court examined the question whether a stepfather who later obtained status as a de facto parent had sufficient rights at stake with respect to reunification services to confer standing to appeal.  (Clifford S., supra, 38 Cal.App.4th  at p. 751.)  In light of the record presented here, that question is of limited relevance.

            We do not presume, as the Agency urges, the juvenile court made a mistake or overlooked father's status when it ordered the Agency to provide reunification services to father.  The record supports an implied finding Manuel was Marissa's presumed father or could have attained the status of a presumed father before the reunification period expired.  (See Glen C., supra, 78 Cal.App.4th  at pp.  585-586.)  Mother told the social worker she and father were married in 1998 and he was Marissa's father.  Manuel also informed the social worker he was Marissa's father, he was married to her mother and they had been in a relationship for 10 years.  Manuel referred to mother as " my wife."   There was no suggestion paternity was in doubt.  The Agency had in its possession a copy of Marissa's birth certificate listing Manuel as her father.  The information on the birth certificate was sufficient for the court to later determine Manuel was Marissa's presumed father. 

            Neither the Agency nor any other party objected to the court's order for reunification services.  The Agency implemented the order.  The social worker testified that she understood father was to be provided reunification services and sent him a letter and a copy of the case plan. 

            Had the Agency believed Manuel was not entitled to reunification services, it was incumbent upon the Agency to ask the court to reconsider, clarify or modify its order in a timely manner, or to file an appeal.  (See §§  388; 395; Code Civ. Proc., §  1008; Cal. Rules of Court, rule 37.)  By not taking any steps to challenge the court's provision of reunification services in its disposition order, the Agency is estopped from raising any complaint it may have regarding the reunification plan as ordered.  (See Law Offices of Ian Herzog v. Law Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th  672, 678-679; see, generally Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; In re Julie M. (1999) 69 Cal.App.4th  41, 47; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)

            Manuel argues he is entitled to a reversal of the court's order setting the section 366.26 hearing because the February 22, 2005 order for reunification services directly contradicts the court's finding on January 25, 2006, that he was not entitled to reunification services.  (See Andrews v. Cunningham, supra, 105 Cal.App.2d  at p.  529; Sutter v. Madrin, supra, 269 Cal.App.2d  at p.  169.)  However, in its January 26, 2006 order, the court also found the Agency's services to the parents were reasonable under the circumstances.  This finding is clear and unambiguous and therefore reversal is not required.  (Brewer v. Simpson (1960) 53 Cal.2d 567, 584 ["   '.  .  . however inconclusive .  .  . any number of the findings may be, if in any case there be one clear, sustained and sufficient finding upon which the judgment may rest, every presumption being in favor of the judgment, it will be here concluded that the court did rest its judgment upon that finding, or those findings, and the others may and will be disregarded.'  [Citation.]" ]; see also In re Carmelata B. (1978) 21 Cal.3d  482, 496.)  Therefore, we determine whether the court's finding the Agency provided reasonable services was supported by substantial evidence.  (In re Amos L., supra, 124 Cal.App.3d  at pp.  1036-1037.)

D

            When a child is removed from parental custody, the court must order the Agency to offer family reunification services unless the case falls within one of the limited circumstances described in section 361.5, subdivision (b).  (Cynthia D. v. Superior Court, supra, 5 Cal.4th  at p.  248.)  A reunification plan must be tailored to the particular individual and family and address the unique facts of that family.  (In re Misako R., supra, 2 Cal.App.4th at p.  545.)  " [T]he focus of reunification services is to remedy those problems which led to the removal of the [child]."   (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.)  Reunification services are reasonable if the Agency makes a good faith effort to assess and address the parent's problems that resulted in the dependency.  (See In re John B. (1984) 159 Cal.App.3d 268, 275.)

            In reviewing the reasonableness of the services provided, we review the services in the light most favorable to Agency.  We must indulge in all reasonable and legitimate inferences to uphold the finding.  (In re Misako R., supra, 2 Cal.App.4th at p. 545.)  We also recognize in most cases more services could have been provided, and the services offered may be imperfect.  (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)  The question is not whether the services were ideal, but whether they were " reasonable under the circumstances."   (Ibid.; In re Misako R., supra, 2 Cal.App.4th at p. 547.)

            The record shows without dispute the Agency did not provide Manuel referrals for reunification services after the disposition hearing.  However, Manuel's argument ignores the service referrals the Agency made on his behalf before the hearing.  On February 7, 2005, the social worker completed an international/transborder request to provide parents reunification services.  In that request, the social worker asked the Mexican agency to supervise Manuel's progress with his case plan, including a parenting class, individual therapy, random drug testing and a substance abuse treatment program and provide monthly updates concerning his participation and progress. 

            On March 7, 2005, a social worker sent Manuel a copy of his case plan and a letter detailing the services he was to complete.  She previously discussed the case with Manuel and informed him that he had six months to participate in reunification services and make progress or the court would establish a permanent plan for the child.  Despite this information, Manuel did not make any further attempt to establish contact with Marissa or the social worker during the time he was in Mexico or after he returned to the United States in August 2005.

            When a social worker contacted him in Washington State in late October 2005, Manuel initially indicated he was interested in regaining custody; however, he did not follow through with her request or that of his attorney to promptly return a paternity questionnaire.  The social worker also advised Manuel to locate and participate in community services.  The record does not reflect he did so.  Although the belated requests for the paternity questionnaire were unnecessary in light of the disposition order, father's lack of follow through in providing basic information and locating community-based services indicates he was disinterested in reunification.  Manuel did not contact the social worker again after their conversation in October 2005.  Reunification services cannot be forced on an unwilling or indifferent parent.  (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.)  The record supports an inference Manuel would not have availed himself of services had the social worker provided additional referrals in Washington State. 

            " The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency of his or her minor children is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions.  A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention."   (In re Michael S., supra, 188 Cal.App.3d at p.  1463, fn. 5; see In re Christina L., supra, 3 Cal.App.4th at pp. 413-414.)

            Manuel never met Marissa.  He knew Marissa was detained in the custody of the Agency but did not attempt to visit her or contact the social worker during the dependency proceedings.  When he returned to the United States, he made no effort to locate her or inquire as to her well-being.  The Agency made initial service referrals on Manuel's behalf to which he did not respond.  Through no fault of the Agency, Manuel's whereabouts were unknown to the social workers for approximately five months.  When contacted, Manuel expressed an interest in reunification but did not take any steps toward that goal before the six-month review hearing.  Therefore, we conclude substantial evidence supports the court's finding the Agency's efforts to provide father reunification services were reasonable under the circumstances.

DISPOSITION

            The petition is denied.

BENKE, Acting P. J.

WE CONCUR:

  HUFFMAN, J.

O'ROURKE, J.

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