S.A. v. Superior Court

Filed 10/17/06 S.A. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code^[1] section 366.26 hearing. Julia Craig Kelety, Judge. Petition granted.

S.A. seeks review of juvenile court orders terminating family reunification services and setting a hearing under section 366.26. S.A. contends the court's finding she was provided reasonable reunification services is not supported by substantial evidence, and therefore the court erred when it terminated reunification efforts and referred the case for a section 366.26 hearing. We conclude there is no evidence to support the juvenile court's finding that S.A. was provided reasonable reunification services, and we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

S.A. has a history of involvement with child protective services due to her substance abuse and other drug-related criminal activity. In 2001, S.A.'s two older children^[2] were removed from her care after she was arrested for possession of cocaine base for sale. S.A. regained custody of the children in February 2003, one month after she gave birth to a daughter, R.A. At that time, S.A. was participating in a residential drug treatment program, and neither she nor R.A. tested positive for illegal substances when R.A. was born.

On July 6, 2005, S.A. was arrested on charges of possession of narcotics and possession of cocaine base for sale. She was detained in local custody at Las Colinas Detention Facility (Las Colinas). At the time of her arrest, S.A.'s two older children were living with relatives, but she had custody of R.A., then two and one-half years old. S.A. made arrangements to leave R.A. in the care of R.A.'s father, Tyrone C.^[3]

In late August 2005, Tyrone was arrested and incarcerated on charges of grand theft, receipt of stolen property, carrying a concealed weapon and possession of burglary tools. He left R.A. with a girlfriend with whom he had a six year old child. A few days later, the girlfriend left R.A. with Tyrone's mother, who was involved in ongoing dependency proceedings concerning her own minor children.

In September 2005, the San Diego County Health and Human Services Agency (Agency) took R.A. into protective custody and filed a petition under section 300, subdivisions (b) and (g), alleging S.A. and Tyrone left R.A. with inappropriate caretakers, the child was destitute, and neither parent was able to provide for her medical and other needs, due to incarceration. R.A. was detained in the care of a paternal cousin, a licensed foster parent.

The social worker initially assigned to the case met with S.A. at Las Colinas on October 4, 2005. She discussed the proposed case plan with S.A., who was amenable to services, and provided her with referrals to parenting classes, transportation, Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings, individual therapy and crisis intervention services. S.A. participated in a comprehensive parenting education program offered at Las Colinas. The social worker gave S.A. a $25 calling card to allow her to remain in telephone contact with her daughter. The social worker supervised a visit between S.A. and R.A. She noted that their interactions were positive, and R.A cried when the visit ended. Another visit occurred later in the month. Additional visits were scheduled; however, in late October, S.A. lost visitation privileges at Las Colinas for one month due to her "negative behaviors." On November 17, 2005, S.A. submitted to jurisdiction and to the Agency's recommendations for disposition. The Agency did not know how long S.A. would be incarcerated. S.A.'s attorney informed the court that "it looked like" her client would be incarcerated for four to five months. The court ordered S.A. to comply with the case plan and ordered the Agency to provide services consistent with her case plan, including supervised visitation.

On November 22, 2005, the social worker telephoned Las Colinas to schedule visitation between S.A. and R.A. Las Colinas personnel informed the social worker that S.A. was scheduled to be transferred within one or two weeks to either Central California Women's Facility or California Institution for Women (CIW) to serve a three-year prison sentence. The social worker scheduled a visit between S.A. and R.A., but S.A. was temporarily moved to Chowchilla State Prison before visitation could occur.

R.A.'s dependency case was assigned to another social worker on November 23, 2005. On December 6, at a special hearing concerning father's visitation and the applicability of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.), the court noted that S.A. had been transferred to CIW and entered the new address for her in the minute order. In fact, S.A. did not arrive at CIW until mid-January 2006.

At CIW, S.A. was placed on waiting lists for a drug treatment program and educational services. She did not contact the social worker after she was transferred from Las Colinas. S.A. did not have any visits with R.A., nor did she telephone her daughter. In mid-May 2006, S.A. was temporarily transferred to Las Colinas to attend the six-month review hearing.

On May 17, 2006, S.A. requested a contested hearing on whether the Agency had provided her reasonable services. She also asked for visits with her daughter. The court directed that S.A. remain in local custody pending the contested hearing, and ordered "contact visits" between S.A. and R.A.

At the contested six-month review hearing, the social worker testified that he first learned S.A. was at CIW in March 2006, when he sent her notice of the six-month review hearing. Other than this notice, the social worker did not send S.A. any letters. The previous social worker had mailed a prison parenting packet to S.A. in October 2005 at Las Colinas but S.A. did not complete and return the packet. The social worker did not inquire into the reasons why the Agency did not receive a response from S.A.

The social worker spoke with S.A. for the first time in June 2006. He did not contact CIW to find out what services were available to her while she was incarcerated at that facility. The social worker learned S.A. was waitlisted for services at CIW when she told him in June. The Agency did not provide visitation while S.A. was at CIW because it was located approximately 100 miles from San Diego; however, once she returned to local custody, the social worker arranged two visits in June between S.A. and R.A.

When S.A. was initially detained at Las Colinas, she participated in a comprehensive parenting program that included programs on healthcare, substance abuse education, life skills, prevention of domestic violence, and anger management techniques. No services were provided at Chowchilla, a receiving and placement facility. At CIW, S.A. participated in random drug testing and was on a waiting list for a drug treatment program. Her expected release date from CIW was February 11, 2007. As a condition of parole, S.A. was to participate in a community drug treatment program for approximately seven months.

The court found that S.A. was provided reasonable reunification services by the penal institutions in which she was incarcerated because, no matter what the social worker did, reunification services would have been limited to services provided by those institutions. Further, providing visitation at a facility 100 miles away would have been "quite a burden to impose on a caretaker." The court observed that S.A. participated in services "as completely as she could" but did not make substantial progress with her case plan. The court terminated reunification services and set a permanency plan hearing for R.A. under section 366.26. Pending the section 366.26 hearing, the court ordered the Agency to use its "best efforts" to facilitate R.A.'s visitation with S.A. at CIW, and to provide S.A. with $25 per month to allow her to telephone R.A.

S.A. then filed a petition for writ review under California Rules of Court, rule 38.1. We issued an order to show cause, and the parties waived oral argument.

DISCUSSION

A

S.A. contends she was not provided reasonable reunification services because the Agency did not: facilitate visitation with her daughter while S.A. was incarcerated at CIW; determine the availability of court-ordered services at CIW; and maintain contact with her as set forth in the case plan.

The Agency responds the court's finding is supported by substantial evidence in that S.A. was provided such services as offered by the facilities in which she was incarcerated, and the Agency provided her a prison parenting packet, which she did not return. The Agency argues that, considering the distance of CIW from San Diego, S.A.'s limited visitation with R.A. was reasonable under the circumstances. The Agency contends any deficiency in reunification services and visitation resulted from S.A.'s choice of lifestyle and consequent incarceration, and from her failure to maintain contact with the Agency after her transfer to CIW.

When a party challenges the finding that reasonable services were offered or provided, we determine whether there is substantial evidence to support the court's finding by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) In applying the substantial evidence test to a finding of reasonable efforts, we keep in mind that clear and convincing evidence must support the finding. (§ 366.21, subd. (g)(2); In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) The party challenging the finding bears the burden of showing there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B

Family reunification services play a "crucial role" in dependency proceedings. (In re Joshua M. (1998) 66 Cal.App.4th 458, 467; In re Jamie M. (1982) 134 Cal.App.3d 530, 545.) The child's case plan is the "guiding principle in the provision of these services." (§ 16501, subd. (a).) "At the disposition hearing, unless the state proves by clear and convincing evidence that one of the exceptions to reunification under section 361.5, subdivision (b) applies, . . . the juvenile court must provide services designed to reunify the family within a statutory time period. (§ 361.5; see 42 U.S.C. § 629a (a)(7).)" (In re Alanna A. (2005) 135 Cal.App.4th 555, 563-564.)

"The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success." (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) "[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)

If a parent is incarcerated, reunification services must be provided to that parent unless the court determines that those services would be detrimental to the child. (§ 361.5, subd. (e)(1).)^[4] Services to an incarcerated parent may include providing financial assistance for telephone contact between parent and child, requiring the parent to attend counseling, parenting classes, or vocational training programs if those services are available and, where appropriate, providing transportation services and visitation. (Ibid.)

The supervising agency must preliminarily identify the services available to an incarcerated parent. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1012 (Mark N.).) The agency cannot simply conclude reunification efforts are not feasible because the parent is incarcerated or delegate the responsibility for identifying services to the parent. (Ibid.) Although a social services agency has no control over the services offered at a penal facility, the agency 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." (Id. at p. 1013.)

In addition to services, "[v]isitation is an essential part of a reunification plan." (In re J.N. (2006) 138 Cal.App.4th 450, 458.) A lack of visitation may "virtually assure[] . . . the erosion (and termination) of any meaningful relationship" between mother and child. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.) For a parent receiving reunification services, "[v]isitation shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) Visitation is no less crucial for an incarcerated parent. (In re J.N., supra, at p. 458.) Therefore, when reunification services are provided to an incarcerated parent, it is error to deny visitation to that parent unless the court has determined visitation would be detrimental to the child. (§ 361.5, subd. (e)(1); In re J.N., supra, at p. 458; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164-1165; In re Brittany S., supra, at p. 1402 ["Go to prison, lose your child" is not an appropriate legal maxim].)

C

Here, at the disposition hearing, the Agency recommended family reunification and presented a case plan to the court delineating the Agency's responsibilities and S.A.'s obligations. The court adopted the proposed case plan, ordered the Agency to provide services to S.A. consistent with the case plan, and ordered S.A. to comply with those services. The court also required the Agency to provide supervised visitation between S.A. and R.A., and authorized the Agency to expand visitation with the concurrence of minor's counsel.

There is no doubt the Agency's efforts to provide S.A. voluntary services and visitation before the jurisdiction and disposition hearings were reasonable, if not exemplary. The social worker then assigned to the case met with S.A. in person, discussed the proposed reunification plan with her, determined the services available at Las Colinas, mailed S.A. a prison parenting packet, and arranged and supervised visitation to the extent permitted by the facility. In addition, the social worker made arrangements to allow S.A. to call collect to the caretaker's home to speak with R.A. When collect calls turned out not to be feasible, the social worker sought and obtained permission to provide S.A. with a $25 telephone calling card to allow her to stay in telephone contact with R.A. After S.A. lost her visitation privileges for a month, the social worker called the facility at the end of that month to check her status and to reschedule visitation.

The Agency contends these efforts were reasonable and any subsequent deficiency in the provision of reunification services and visitation was due to S.A.'s incarceration, which was her fault. Had S.A.'s circumstances not changed, the services and visitation the Agency set up for her at Las Colinas before the jurisdiction and disposition hearings, in all likelihood, would have constituted reasonable efforts. However, the Agency knew at the end of November 2005 that S.A. had been transferred from Las Colinas, and should have realized that the services available at Las Colinas may not be available at other facilities. Thus, the Agency was on notice to contact S.A. and personnel at CIW to determine whether the reunification plan needed to be "specifically tailored" to fit S.A.'s changed circumstances, and to make or attempt to make different arrangements for visitation. (Cf. In re Dino E., supra, 6 Cal.App.4th at p. 1777.) The Agency did not do this.

The record shows that during the six-month reunification period, which began November 17, 2005, and ended in mid-May 2006,^[5] the social worker did not contact S.A. by letter or by telephone.^[6] The social worker did not notify CIW that S.A. was in need of reunification services, contact the facility to determine whether the appropriate services were available, or explore whether any changes could be made to S.A.'s status to facilitate the provision of reunification services. (Mark N., supra, 60 Cal.App.4th 996 at p. 1013.) Unlike its efforts when S.A. was at Las Colinas, the Agency did not provide assistance to allow S.A. to telephone R.A. from CIW. Further, there is nothing in the record to show the social worker made any attempt to provide or facilitate visitation, either by contacting the caretaker to see whether she was willing to take R.A. to visit S.A., by offering the caretaker transportation services or financial assistance, if needed, or by exploring whether a case aide or a volunteer could help with visitation from time to time.

The Agency faults S.A. for not remaining in contact with the social worker and not complaining about the lack of visitation and other services. However, the record does not show that S.A. was on notice to contact the Agency; rather, the court-ordered case plan required the Agency to contact S.A. at least once a month. Further, a parent is not required to ask the Agency to fulfill its statutory obligations as a prerequisite to receiving services and/or visitation. (Mark N., supra, 60 Cal.App.4th at p. 1014.) At a minimum, the Agency was required to make a good faith effort to provide S.A. visitation and reunification services. The Agency arranged visitation in June 2006 at Las Colinas only after S.A. brought the issue before the court and the court ordered the Agency to provide visits.

The Agency must attempt to provide visitation with an incarcerated parent if the prison is not excessively distant and adequate visitation facilities are available. (In re Monica C. (1995) 31 Cal.App.4th 296, 307; see In re Brittany S., supra, 17 Cal.App.4th at p. 1407.) At the six-month review hearing, county counsel conceded that visitation at CIW was possible. The Agency did not try to arrange or facilitate visitation during the five months S.A. was incarcerated at CIW; therefore, there is no reasonable basis for the court to have concluded that the Agency's obligation to provide S.A. reasonable visitation was excused by the distance of the facility from the child's home. (In re Monica C., supra, at p. 307; cf. In re Ronnell A. (1996) 44 Cal.App.4th 1352, 1364.)

The Agency is also required to 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 any changes can be made to facilitate the provision of such services. (Mark N., supra, 60 Cal.App.4th at p. 1013.) Here, the social worker did not contact CIW to determine what services were available to S.A. Without an inquiry by the social worker as to the services that were available at CIW and an effort to work with prison officials to provide S.A. appropriate services, there is no reasonable basis for the court to determine that S.A. received the services that may have been reasonably provided at the institution.

Finally, the record shows the social worker's first contact with S.A. was in June 2006, more than six months after he was assigned the case. The record also shows the social worker did not contact personnel at CIW to garner information about S.A.'s compliance with prison rules and programs. Regular contact with an incarcerated parent and the institution in which he or she is incarcerated does more than help the Agency tailor services to a parent's current circumstances and to provide the parent assistance, if needed; it also enables the Agency to fulfill its responsibility to gather information concerning the parent's compliance with the case plan, and to present it to the court, either at a regularly scheduled review hearing or, if circumstances dictate, at a special hearing. (See, e.g. §§ 365, 366.1, 366.21, subd. (c); In re Joshua G. (2005) 129 Cal.App.4th 189, 197.) In the absence of reasonable inquiry and communication, the information presented by the Agency in its status review report of May 17, 2006, concerning S.A.'s circumstances does not constitute credible evidence.

The record in this case does not contain any evidence to show the Agency made reasonable efforts during the six-month reunification period to maintain monthly contact with S.A., provide court-ordered visitation with her daughter, or contact CIW to determine what services were available to assist her to maintain contact and to reunify with R.A. We therefore conclude that S.A. has met her burden to show there is insufficient evidence to support the court's finding she was provided reasonable reunification services. (In re Geoffrey G., supra, 98 Cal.App.3d at p. 420.)

DISPOSITION

Let a writ issue directing the superior court to vacate its order setting a hearing under section 366.26 and enter a new order providing S.A. with six months of reunification services. (§§ 361.5, subd. (a); 16501; 16501.1; see also In re Dino E., supra, 6 Cal.App.4th at pp. 1776-1779.) This decision is final immediately as to this court. (Cal. Rules of Court, rule 24(b)(3).)

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.

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

^[2] S.A.'s two older children are not subjects of this writ proceeding.

^[3] Tyrone's reunification services were also terminated at the six-month review hearing. He filed a notice of intent to file a writ petition. However, he did not file a timely petition for writ relief, thus abandoning his notice of intent, and this court dismissed his petition on August 31, 2006.

^[4] Section 361.5, subdivision (e)(1) states, in part: "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, and any other appropriate factors."

^[5] The six-month reunification period begins after a child is adjudicated a dependent of the juvenile court and is removed from parental custody under section 361.5. (§§ 366, subd. (a)(1), 366.21, subd. (e).)

^[6] The Agency contends that S.A.'s assertion the social worker did not maintain contact with her at CIW is erroneous because the social worker sent notice of the six-month review hearing to her in March 2006. However, the social worker is statutorily required to give notice of the six-month review hearing to the mother and presumed father of the dependent child without regard to whether the parent is receiving reunification services. In contrast, notice to alleged or biological fathers is conditioned on receiving services. (§ 293, subd. (a)(1), (2); 366.21, subd. (b).) The record shows S.A. was not contacted by the social worker while at CIW for purposes of facilitating reunification and gathering information to present to the court. (§§ 280, 366.21, subd. (c).)