N.L. v. Superior Court

Filed 8/20/07 N.L. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

N. L. (Father) seeks an extraordinary writ to set aside an order of the San Francisco County Superior Court, Juvenile Division, which terminated his reunification services and set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for his daughter, P. L. (born March 2005). Father contends the court erred in that: it set the six-month status review hearing (six-month hearing) prematurely; it failed to give him the oral advisement required under section 361.5, subdivision (a) at the conclusion of the dispositional hearing; it improperly denied his request for a continuance made at the outset of the six-month hearing; and it made a finding not supported by substantial evidence at the conclusion of the six-month hearing, to the effect that the countys Department of Human Services (Department) offered or provided him reasonable reunification services. As discussed below, we find no merit in these claims and deny Fathers petition on the merits.[2]

Background

The Department initially detained P. L. on July 20, 2006. We need not repeat here either the facts or the procedural history, which we have summarized in a related appeal from the dispositional order. (See In re P. L. (Aug. 6, 2007, A116330 [nonpub. opn.].) In this order, entered December 21, 2006, the juvenile court set the six-month hearing for March 21, 2007. It also adopted the Departments proposed reunification requirements as to Father. These called for Father to complete a parenting education program, obtain suitable housing, complete a drug and alcohol assessment and follow its recommendations, participate in drug testing, provide adequate supervision for P. L., and sign all necessary releases to enable the Department to monitor his reunification efforts.

Father was in custody at San Francisco county jail from the time of the Departments first contact with him, on August 9, 2006, until the date of the dispositional order. It appears that soon after this date Father was sentenced to a term in state prison for possession of cocaine and transferred to the reception center at San Quentin prison. By the time the case worker completed her report for the six-month hearing, on February 28, 2007, Father had been housed for some time in that prisons reception center.

During the period between August 2006 through February 2007, a Department representative met with Father on a monthly basis. At these meetings Father stated that he wanted to cooperate with the Department and participate in services in order to reunify with P. L. In her report prepared for the six-month hearing, the case worker stated Father had, in fact, been cooperative in meeting with the Department representative to develop an appropriate case plan to address his reunification requirements. However, because he remained housed in the reception center, he had not been able to participate in any reunification services provided at San Quentin. Further, because he was not allowed to have contact visits at the reception center, Father had informed the Department representative that he want[ed] to wait until he is transferred to another unit before arranging visits with P. L. Because P. L. was under three years of age, and because Father had been unable to make significant progress with his reunification requirements during the review period, the case worker recommended that the juvenile court terminate his reunification services and set the matter for a hearing to select a permanent plan under section 366.26.

On March 21, 2007, the juvenile court continued the six-month hearing to May 14. It appears that Father was still housed in the reception center at San Quentin on March 21, and stayed there until shortly before the hearing on May 14. On the latter date, Fathers counsel indicated at the outset of the hearing that the Department of Corrections had transferred Father a short time earlier from the reception center at San Quentin to High Desert State Prison (HDSP) in Susanville, Lassen County.

Although Fathers counsel had obtained an order for Fathers transportation to the six-month hearing, she had been unable to secure Fathers presence at the hearing on May 14, 2007, because of his recent transfer from San Quentin to HDSP.[3] She thus made an oral motion for continuance, arguing that she had prepared for the hearing on the assumption that Father would be present to testify. After counsel for P. L. expressed concern over any further delay, the commissioner conducting the hearing denied the motion. Fathers counsel objected for the record, and during closing argument renewed her objection, this time providing an offer of proof that Father would have testified as to his relationship with P. L. prior to the initiation of the dependency proceeding, and also as to his efforts to access services during the time he was housed in the reception center.

At the conclusion of the six-month hearing, the commissioner adopted the Departments recommendations, and entered an order terminating Fathers reunification services and setting a hearing pursuant to section 366.26. Father sought rehearing of the commissioners order, and the juvenile court denied his application on June 13, 2007. This petition followed. ( 366.26, subd. (l); rule 8.450.)

Discussion

A. The Timing of the Six-Month Hearing

Father contends the juvenile court erred in its dispositional order of December 21, 2006, because it initially set the six-month hearing for March 21, 2007, only three months later. In the related appeal from the dispositional order, we considered and rejected this same contention. (See In re P. L., supra,A116330.) We reject it here for the same reasons expressed in that opinion. (See rule 8.1115(b)(1).)

B. The Failure to Advise Under Section 361.5

Section 361.5, subdivision (a)(3) provides that [i]n cases where the child was under the age of three years on the date of the initial removal from the physical custody of his or her parent . . . , the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail himself . . . of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months.

Father contends, as he did in the related appeal, that the juvenile court erred when it failed to give him this advisement at the conclusion of the dispositional hearing. As stated in our previous opinion, an error of this type requires reversal only when there is resulting prejudice. (See Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 571-573.) Here, as noted above, the case worker reported Father was cooperative and desired to participate in services. Clearly, he failed to engage in services prior to the six-month hearing not because the court failed to give him the statutory advisement, but rather because he was housed for most of the review period at the San Quentin reception center, where services were not available. We conclude, as we did in the related appeal, that the failure to advise Father pursuant to section 361.5, subdivision (a), was harmless error.

C. The Request for a Continuance

Father suggests it was error for the juvenile court to deny his trial counsels oral request for a continuance, made at the outset of the six-month hearing. He reasons that, because the court had previously exercised its discretion to sign an order directing Fathers transportation and appearance at the hearing, it should have honored that order by granting a continuance when Father failed to appear though no fault of his own.

We review a juvenile courts ruling on a motion for continuance under the abuse of discretion standard. (In re Robert L. (1993) 21 Cal.App.4th 1057, superseded on other grounds by statute, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Under this standard, we will not disturb the ruling unless it   exceeded the bounds of reason   or constitutes a determination that is arbitrary, capricious, or patently absurd. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Here Father concedes that his presence at the six-month hearing was not mandated, but rather was within the juvenile courts discretion. (See Pen. Code, 2625, subds. (d), (e).) Thus, even if the court initially exercised its discretion to order Fathers transportation and appearance, it nevertheless retained discretion to grant or deny a continuance when that order proved ineffective to secure his presence. It is evident the court weighed the concern over further delayas expressed by counsel for P. L.against the offer of proof concerning Fathers testimonyas provided by Fathers counseland concluded the policy of resolving dependency proceedings expeditiously outweighed the probative value of Fathers proposed testimony. The record indicates that almost 10 months had elapsed between the date of P. L.s initial detention and the date of the six-month hearing. On the other hand, it was not unreasonable for the court to doubt the probative value of Fathers proposed testimony, given that evidence already before it established that Father had had no contact with P. L. since her early infancy, and, whatever efforts Father may have made to access services, he could not do so while he remained housed in the San Quentin reception center. (See In re P. L., supra, A116330.) We conclude the court did not abuse its discretion in denying the request for a continuance.

D. Reasonable Reunification Services

If a child is not returned to his or her parents custody at the six-month hearing, and that child was under three years of age at the time of his or her initial removal, the juvenile court may schedule a hearing pursuant to Section 366.21 if it determines the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. ( 366.21, subd. (e).) On the other hand, it must continue the matter to the 12-month permanency hearing if it finds eitherthat there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months, or that reasonable services have not been provided. (Ibid.)

At the six-month hearing, the juvenile court found that the Department had offered or provided reasonable reunification services to Father. Father contends the Department did not offer or provide reasonable services, in effect challenging this finding. He claims the case worker failed to make reasonable efforts to determine what services were available at San Quentin, and failed to contact prison officials in a timely manner and apprise them of the urgency of moving Father quickly out of the reception center so that he could access any available services. He also asserts the case worker failed to facilitate his visitation with P. L.

[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) We construe all reasonable inferences in favor of the juvenile courts findings regarding the adequacy of reunification plans and the reasonableness of the [Departments] efforts. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of the challenged findings and do not reweigh the evidence. (In re Jasmine C. (2000) 70 Cal.App.4th 71, 75.)

Reunification services provided or offered to a parent may be deemed reasonable when the evidence shows the case plan identified the problems leading to the loss of custody, the offered services were designed to remedy those problems, and the agency maintained reasonable contact with the parent and made reasonable efforts to assist that parent in areas in which compliance proved difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)

In this case, we note initially that there was no evidence Father ever had any parenting experience. He was incarcerated throughout the proceeding, and, as noted in the related appeal, had a history of drug-related criminal activity. (See In re P. L., supra,A116330.) Thus, we find reasonable the primary components of the reunification plan proposed by the Department and adopted by the court in its dispositional order. Regardless of the likelihood that Father might be able to meet the requirements of his plan while in prison, the requirements of parenting education, drug assessment and testing, and suitable housing appear not only reasonable, but essential objectives designed to enable Father to assume, for the first time, the care of P. L. without seriously endangering her safety and well being.

It is true that the reunification plan did not provide for visitation. We see no error on this point, however, because Father himself told the Department that he did not want visitation until he was transferred from the San Quentin reception center, and he remained in the reception center almost the entire review period. We further deem it reasonable that the Department did not offer or provide contact through collect telephone calls. (See 361.5, subd. (e)(1)(A).) Because P. L. was only two years old as of March 2007, she was too young during the review period for any such contact to be meaningful.

Otherwise, the case worker testified that she maintained regular contact with Father during the review period, through an agency called Friends Outside, and that the representative of that agency who visited Father in prison was familiar with the services available at San Quentin. She stated, however, that services were not available to Father until he was transferred from the reception center to a main line housing unit. Her testimony indicated that she did inquire into the services available at HDSP, as soon as Father was finally transferred from the reception center to that prison.

The case worker stated that, approximately one month before the six-month hearing, she spoke with Fathers counselor at San Quentin, explained his need to access services, and requested information about when Father would be transferred from the reception center. Although she did not make such a request earlier in the review period, she stated that Father had made such a request several times. Nevertheless, prison officials did not arrange his transfer from the San Quentin reception center until shortly before the six-month hearing on May 14, 2007, and even then transferred him to HDSP in Susanville rather than to a prison unit closer to the home of P. L.s caregiver. There is nothing to indicate that prison officials would have acted more promptly if the case worker had sooner added her request to Fathers.

The standard is not whether the Department could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We conclude there was substantial evidence to support the juvenile courts finding that the Department offered or provided Father with reasonable services under the particular circumstances of Fathers incarceration.

Disposition

The request for stay is denied, and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Rule 8.264(b)(3).)

_________________________

STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

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[1] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] The order directing Fathers transportation to the hearing on May 14, 2007, does not appear in the record, although it does include several such orders issued earlier in the proceedings. As the order was issued and submitted prior to Fathers transfer from San Quentin, it was evidently directed to the warden of that prison rather than to the warden of HDSP.