Nicole O. v. Super. Ct.

Filed 9/5/07 Nicole O. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition denied.

Nicole O. seeks review of juvenile court orders terminating her reunification services for her child, Nicolas O., and setting the matter for a Welfare and Institutions Code section 366.26 hearing.^[1] She contends she was not provided with reasonable reunification services. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On August 30, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of one-year-old Nicolas under section 300, subdivisions (b) and (g), alleging he was at risk because Nicole used dangerous drugs and alcohol, she was incarcerated and his father's whereabouts were unknown. The social worker reported Nicole was arrested on an outstanding warrant when police found her walking down the street with Nicholas while arguing with a man. She and the man appeared to be intoxicated. Nicole was then on parole, and police learned there was an active warrant for her arrest for cocaine possession. She had been arrested about 25 times between 1991 and 2002. Many of the arrests were for drug and alcohol-related offenses. Nicole's older son was born in 1998 with cocaine in his system. Nicole was offered services, but did not reunify with this child. The court ordered Nicolas detained.

On September 21, 2006, the court found the allegations of the petition true, ordered reunification services for Nicole, and Nicolas to be placed in foster care. Nicole said she wanted to participate in her reunification plan. Earlier, she had completed substance abuse treatment and said she would like go to a treatment program when she was released from incarceration. Her services plan included counseling, parenting education and participation in the Substance Abuse Recovery Management System.

The social worker reported Nicole was transferred from the Las Colinas Women's Detention Center (Las Colinas) to Chowchilla Women's Prison (Chowchilla) in November 2006. Her incarceration severely limited her ability to participate in services. She had difficulty communicating with a prison counselor who could help her access programs. The social worker also was not able to reach a counselor to learn how Nicole could participate in appropriate services.

At the six-month review hearing on May 29, 2007, the social worker testified Nicole had had three visits with Nicolas when she was in local custody at Las Colinas, and she had completed and returned a prison packet. After Nicole was transferred to Chowchilla, additional visits with Nicolas were arranged for days she was scheduled to be transported to San Diego for hearings, but Nicole waived her appearance for one hearing and was not transported for the other. The social worker testified she sent five or six letters to Nicole and included photographs of Nicolas and information about him. Nicole had had several different counselors while she was at Chowchilla. The social worker testified although she telephoned, wrote and sent a fax to prison counselors, she did not reach a counselor who could provide information about services available to Nicole. She said Nicole told her she was on a waiting list for a substance abuse treatment program and was attending AA/NA meetings. The social worker opined it was unlikely Nicole could successfully reunify with Nicolas because her release date was just a short time before the 12-month date, and the case was considered high risk because Nicole had not reunified with her older son, and she had a long and unresolved substance abuse history.

Nicole testified she was not able to participate in programs at Chowchilla because they were not available in the area of the prison where she was housed and because the prison was frequently in "lock-down" mode. She said she changed counselors several times. She registered for two programs, was not able to participate in either one, but she did go to AA/NA meetings. She testified while she was at Chowchilla, she was not offered visits or telephone calls with Nicolas.

After considering the testimony and evidence, the court found the Agency had offered or provided reasonable services, but Nicole had not made substantive progress. It terminated services and set a section 366.26 hearing.

Nicole petitions for review of the court's orders. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Nicole contends the juvenile court erred by terminating reunification services and setting a section 366.26 hearing because she did not receive reasonable services. She argues she did all she could to comply with her services plan while in prison, and she had only minimal visitation. She claims the social worker did not do enough to help her participate in services during her incarceration.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) In determining the sufficiency of reunification services the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Reunification services must be provided to an incarcerated parent unless the court has determined the services would be detrimental to the child. ( 361.5, subd. (e)(1).) In Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, the court explained that in the case of an incarcerated parent, the agency concerned with the child's dependency should, at a minimum, contact the prison to determine whether there is any way to make services available. (Id. at p. 1013.) The agency may notify the prison of the parent's need for reunification services, ascertain whether any appropriate programs are available at the institution and determine whether changes in housing can be made to allow appropriate services consistent with prison and public safety concerns. However, "[t]he prisons are run by the Department of Corrections, not [the social services agency]." (Ibid.) It is the authorities at the institution where the parent is housed who determine what programs will be offered to the parent.

Nicole has not sustained her burden to show there was not substantial evidence to support the court's finding of reasonable services. Nicole was incarcerated throughout the nine months of the dependency period. Her lack of regular visits with Nicolas was not caused by the Agency, but by the fact of her incarceration. While she was at Las Colinas, she had three visits with Nicolas: two in September and one in October. She was transferred to Chowchilla in November. The social worker arranged for visits when it was anticipated Nicole would be in court for two scheduled hearings. But Nicole waived her presence at the March 2007 hearing and the prison did not produce her for the April 2007 hearing. Because of the distance to Chowchilla, Nicole had no visits with Nicolas while she was at the prison. The social worker explained Chowchilla is about 400 miles from San Diego and a six-hour drive. She said Nicole never asked her to bring Nicolas to Chowchilla for a visit. Nicole acknowledged it would be tiring trip for Nicolas and agreed it was reasonable not to transport him. She stated she would have liked to have seen him, but "that's a long way for a two-year-old."

Nicole faults the social worker for not sufficiently communicating with prison authorities about her reunification plan so she could comply with its requirements. After Nicole was transferred to Chowchilla, the social worker received a letter in which Nicole provided information about her counselor at the prison. The social worker responded the next day, assuring Nicole she would find out what prison programs were available to her. However, during the next several months, Nicole had a series of several different counselors, and the social worker was unsuccessful in her attempts to learn what services were available at the prison. The social worker talked with one counselor, but he said he was new to the case and did not have information about available programs. When she next talked with him, he was no longer Nicole's counselor and referred her to another counselor. She reported she telephoned the prison "a couple dozen times," and wrote a letter and sent a fax to a new counselor and to the supervisor, but received no response.

The social worker testified Nicole told her she also was having difficulty getting in touch with her counselor. In a letter received December 15, 2006, Nicole wrote, "I still haven't heard from my counselor." In a later letter, she wrote, ". . . I have finally seen my counselor. My release date is 8-19-07. I will soon be moving from [here] and where I go from [here] I will see another counselor . . . ."

In Nicole's letters, she indicates she was attending AA/NA meetings and knew what programs were available to her and the date she was to be released from prison. She wrote, however, that she was not able to participate in other programs because of the unit where she was housed, the length of her sentence or because the prison was in lock down status. It is certainly regrettable that Nicole could not be involved in the components of her treatment plan and, especially, in drug abuse treatment. Her long years of addiction and the fact that she had relapsed after treatment show participation in a drug treatment program was crucial to her being able to become a safe parent. However, because she was in prison, and prison regulations and policies controlled her access to services, she was not able to make progress in the provisions of her reunification plan.

The social worker was in contact with Nicole while she was imprisoned and attempted to reach her counselors to ascertain the programs she could attend at Chowchilla. These efforts were reasonable under the circumstances of Nicole's incarceration. The court did not err by finding the Agency provided reasonable services.

DISPOSITION

The petition is denied.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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