Miguel C. v. Sup. Ct.

Filed 4/5/07 Miguel C. v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge orders of the Superior Court of Orange County, Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Dennis Nolan and Paul T. DeQuattro, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Law Office of Harold LaFlamme and Yana Kennedy for Real Party in Interest Rodrigo C.

* * *

INTRODUCTION

In February 2006, the juvenile court declared now 15‑year‑old Miguel C. (Miguel) and now 12‑year‑old Rodrigo C. dependents of the juvenile court after finding that their father, Miguel C., Sr. (Father), fatally shot their mother. In May 2006, Rodrigo stated he was open to receiving a letter from Father. In July, the juvenile court granted Fathers request to change the courts no‑contact order to permit Father to send Rodrigo letters. Neither Father nor the Orange County Social Services Agency (SSA) was informed that the court had granted Fathers request.

At the 12‑month review hearing in January 2007, Father argued he was not provided reasonable reunification services because he was unable to write to Rodrigo, notwithstanding the courts July 2006 order permitting him to do so. The juvenile court rejected Fathers argument, finding that reasonable reunification services had been provided to Father. The court terminated reunification services as to Miguel and Rodrigo, and set the matter for a permanency hearing. Father filed a petition for a writ of mandate, challenging the courts orders as to Rodrigo only.

We deny the petition. The record in this case contains substantial evidence supporting the juvenile courts finding Father was provided reasonable reunification services.

BACKGROUND

In November 2005, SSA filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) as to Miguel and Rodrigo. (All further statutory references are to the Welfare and Institutions Code.) The petition, as later amended, alleged that on October 27, 2005, Father shot the mother of Miguel and Rodrigo in the head and that the mother did not survive. Father and the mother had been separated for approximately three years. Miguel and Rodrigo had resided in the care of the mother.

SSAs jurisdiction and disposition report stated that in November 2005, Father was incarcerated at Orange County jail. The juvenile court ordered Father to have no direct or indirect contact of any kind with either Miguel or Rodrigo. Miguel and Rodrigo were placed in the home of Miguels former girlfriend on November 3, 2005. Miguel and Rodrigos maternal grandparents (the grandparents) traveled from Mexico to the United States in order to try to take custody of the children. Miguel and Rodrigo began having monitored visits with the grandparents.

At the jurisdiction and disposition hearing, Miguel and Rodrigo stated that they did not want to have any contact with Father. The juvenile court found the allegations of the amended petition as to both counts true by a preponderance of the evidence, and declared Miguel and Rodrigo dependent children of the court under section 360, subdivision (d). The court vested custody in SSA and stated the children were to remain placed with the caretaker. The court further stated that eventual placement of the children with the grandparents was a good long term plan and ordered increased visitation with the grandparents. The juvenile court found it was detrimental for the children to visit Father at that time, but approved a service plan for Father.

In April 2006, Father appealed from the courts jurisdiction and disposition orders, contending (1) substantial evidence did not support the juvenile courts finding Father shot the mother; (2) the juvenile court abused its discretion by ordering the childrens continued placement with the caretaker; and (3) the juvenile court abused its discretion by denying visitation contacts. This court rejected Fathers arguments and affirmed the orders of the juvenile court. (In re Miguel C. (Nov. 9, 2006, G036920) [nonpub. opn.].)

In the six‑month status review report dated June 13, 2006, the assigned social worker reported he presented Father with the case plan and visited Father once a month. He further reported Father had begun counseling through a mental health program provided at the jail. The social worker stated he had contacted the jail to request that Father be allowed to attend parenting education classes. This request was denied due to Father being housed in a module where movement is not allowed outside of his area. The social worker also provided Father with a book on parenting, which Father had begun to read. Father expressed a willingness to continue complying with his case plan.

The social worker also reported that Miguel did not have any desire to see Father and that he wanted to help SSA terminate Fathers parental rights. Rodrigo stated he did not want any contact with Father at that time, but would be open to receiving letters from Father as long as they are not bad.

At the six‑month review hearing, the court did not change its earlier order prohibiting contact of any kind between Father and the children.

On July 6, 2006, Fathers counsel at the time filed a request that the juvenile court change its no-contact order to permit Father to send Rodrigo letters. The juvenile court signed an order dated July 6 permitting written communication between Father and Rodrigo but also requiring that the letters . . . be screened by SSA or minors therapist. The record is unclear as to who was present at the time the juvenile court signed the order. The record does not show that notice of the courts order was served on any party.

At oral argument on this petition, counsel for Father suggested that there was a proof of service in the record showing that the courts order was served. As we explain, this suggestion is a misreading of the record. The record contains a proof of service dated June 28, 2006. The handwritten order, which was contained within an otherwise typed request form, states the court permitted Father written contact with Rodrigo. However, this proof of service dated June 28, eight days before the court signed the requested order on July 6, does not and cannot show the actual order was served on June 28. We do not know if the handwritten language constituting the order was on the form served on June 28. We do know that the order dated July 6 could not have been served on June 28.

In the 12‑month status review report dated November 29, 2006, the social worker reported Miguel was placed with the grandparents in August due to behavioral problems that occurred at the caretakers home. Rodrigo was placed with the grandparents on October 30. The report stated that the court had ordered no contact between Father and the children; it did not mention the courts July 6, 2006 order permitting written communication between Father and Rodrigo. The report further stated that Rodrigo had asked his therapist for written contact with Father. In an addendum report, the social worker recommended that the court terminate reunification services and schedule a permanency hearing.

On November 29, 2006, Fathers attorney declared a conflict and was relieved of further representation of Father. The court appointed the public defender to represent Father.

At the 12‑month review hearing in January 2007, Fathers public defender informed the court that he had found the July 6, 2006 order when he reviewed the court file the day before, and then learned for the first time that the court had permitted written communication between Father and Rodrigo. Neither county counsel nor the childrens counsel had notice of the July 6 order in their files.

Father testified that he had just learned that the court in July 2006 had granted his request for written contact with Rodrigo. Father stated he would have written to Rodrigo had he known about the courts order because he misses and loves Rodrigo. The last time Father heard from his former attorney was June 17, 2006.

Rodrigo testified he told the social worker in May 2006 that he was okay with receiving letters from Father, but he had not received any letters from Father. When asked if he wished to write to Father, Rodrigo stated, I would wait until he wrote to me so I could write back; he said he had not thought of writing to Father first.

Rodrigo stated that receiving letters from Father was the only contact he wanted with Father at that point in time. When asked whether being able to receive letters from Father would make his life any easier, Rodrigo said it would not make his life any easier. He stated, I wouldnt see a difference. I would just see communication between us, which is something Rodrigo said he would like to have. Rodrigo stated he would look at any letter written by Father and then make a decision about writing back to Father.

The social worker testified that each time he met with Father, Father would ask whether he was permitted to contact Miguel and Rodrigo. Unaware of the July 6, 2006 order, the social worker stated he told Father, as recently as October 2006, that the court was still not permitting contact between Father and the children. The social worker also testified that Father has had therapy sessions twice a month while in custody. The social worker stated he has followed up with Fathers therapist a couple of times, and has also reviewed written records that he had requested related to that therapy. The social worker reiterated that his attempt to obtain parenting education classes for Father was unsuccessful because he was housed in a module where movement for that type of service is not permitted. He stated Father completed the parenting workbook that the social worker had given to him.

The juvenile court terminated reunification services, and set the matter for a permanency hearing, stating, [b]etween now and the [permanency hearing] Im terminating services. [] I am setting a [permanency hearing]. I find services were reasonable by clear and convincing evidence, and there is no possibility of return. [] But for both boys, I will authorize, first of all, [F]ather may write letters and they will be given to the social worker. They are to be cleaned, as I previously apparently ordered, and then, if either Rodrigo or Miguel want to receive letters, they can receive those letters. [] If Miguel refuses, as I suspect he will, then thats the end of it, although every time [F]ather writes a letter I would like at least Miguel to know about it, as long as hes not writing every single day. [] If Rodrigo wishes to respond, or Miguel, for that matter, in letter or in kind, then they are allowed to do so. [] I also will authorize contact by telephone and by way of a visit between Rodrigo and Miguel and . . . [F]ather, assuming that its something the boys consent to. [] So all Im saying is that if this thing develops to one or both boys wanting more and more contact between now and the [permanency hearing] Ill allow it. [] That will take care of the issue as to whether or not there is a relationship. Lets just say, for example, with Rodrigo, that can be rekindled. [] . . . [] Fathers not been deprived of any service that would prevent that if this whole corridor of opportunity for the next four months is taken advantage of, so a lot of it depends on how Rodrigo responds. In any case, well see what happens.

Father filed a petition for a writ of mandate challenging the courts orders terminating reunification services and setting the matter for a permanency hearing as to Rodrigo only.

DISCUSSION

Father contends the juvenile court erred when it found that services were reasonable, and thereby further erred by setting a hearing under section 366.26. We review the juvenile courts finding that reasonable reunification services were offered or provided, for substantial evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) When we review a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial courts determination. We must resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the courts order. Additionally, we may not substitute our deductions for those of the trier of fact. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

The record shows the social worker met with Father each month, facilitated Father receiving therapy sessions while in jail, provided Father with a parenting workbook, and contacted the jail to request parenting education classes for Father. Father was incarcerated while awaiting trial for the mothers murder; therefore, such parenting education classes and other possible services were not available to him. Until July 6, 2006, the court denied Father any contact with Miguel and Rodrigo.

Father contends he was denied reasonable reunification services because he was not permitted to write letters to Rodrigo after the juvenile court modified its no‑contact order in July 2006 to permit such correspondence. The record does not show Father, county counsel, the assigned social worker, or the childrens counsel received notice of the courts July 6 order. Consequently, during a visit as recently as October 2006, the social worker told Father what he believed to be truethat the no‑contact order was still in effect.

Did the uncommunicated opportunity for Father to send Rodrigo letters since July 6, 2006 render the reunification services offered, or provided to Father, unreasonable within the meaning of section 366.21, subdivision (g)(1) under the standard of review of substantial evidence? No. A social services agency is required to make a good faith effort to address the parents problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. [Citation.] (Katie V. v. Superior Court, supra, 130 Cal.App.4th 586, 598‑599; see Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1159 [Clearly, the delay in the minors individual counseling rendered the services provided imperfect, but rarely will services be perfect].)

The record further shows Rodrigo stated that he would like to receive a letter from Father and that, depending on what the letter said, Rodrigo might write back to Father. It is regrettable that SSA and Father were not aware of the July 6, 2006 order permitting such communication, until January 2007. The record thus shows the services provided Father were not perfect. But this imperfection does not render those services, as a whole, unreasonable. While it might have been better if Father had had the opportunity to write to Rodrigo, Rodrigo testified that receiving letters from Father would not make his life any easier and just wouldnt make a difference.

We conclude substantial evidence supported the juvenile courts finding that Father received reasonable reunification services, thereby justifying the termination of reunification services and the setting of a permanency hearing in this case.

DISPOSITION

The petition is denied.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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