William P. v. Sup. Ct.

Filed 3/15/07 William P. v. Sup. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Petitioner William P., Sr., the father of minors William P., Jr., and Christen P., seeks extraordinary writ review pursuant to California Rules of Court, rule 8.452 to vacate the order of respondent juvenile court setting a hearing to terminate his parental rights in accordance with Welfare and Institutions Code section 366.26.[1] At the hearing when it set the termination hearing, the court declined to order that real party in interest Humboldt County Department of Human Services (Department) continue to provide petitioner with additional reunification services. The sole contention made by petitioner is that this determination amounted to an abuse of discretion because it is not supported by substantial evidence. We find this contention to be without merit, and deny the petition on its merits.

BACKGROUND

This dependency proceeding commenced when the Department filed a petition in March 2005.[2] Petitioner and the minors mother were alleged to have failed to provide suitable care and supervision by reason of their propensity for domestic violence, and because of the mothers substance abuse problems. It was further alleged that the minors had two additional siblings for whom the parents had not provided care, and that one of these siblings had been adopted.[3]

An amended petition filed in July 2005 added the allegation that the minors had in effect been abandoned, i.e., had been dropped off with relatives by the parents, who were now homeless, and whose present whereabouts were unknown. The juvenile court ordered the minors detained in August 2005.

A second amended petition was filed in October 2005; the only material change was that petitioner has not participated in reunification services with his other two children, Rebecca and Nathan . . . . At the unreported jurisdictional hearing held on October 31, petitioner admitted the allegations of the second amended petition.

At the jurisdictional hearing, the court had before it the Departments report on the familys situation. It described both parents as homeless. The case worker summarized the prior child welfare history as follows: There is a series of referrals regarding alleged abuse and/or neglect by [the parents]. On or about 06/18/2004, both parents signed the Family Preservation Case Plan and, thereby, agreed to complete a voluntary program with Child Welfare Services. Their failure to follow through with the Family Preservation Program was the impetus for this report. From 05/07/2004 until the present, there have been six referrals on these parents. The referrals listed below are an indication that, even though [the parents] had been receiving intensive services from the Family Preservation Program from May 2004 until February 2005, mandated reporters and others in the community have been concerned about the parents continued inability to keep the children safe and provide for their needs.

The Departments assessment/evaluation was that [t]his family has been offered Alternative Response Team (ART) and Family Preservation Program (FPP) services and was unable to follow through with either one. The family has already had one child adopted in a Child Welfare case in Glenn County and, according to case notes, this was due to poor follow through by the parents in visiting the child and utilizing services that were a requirement for reunification. The parents inability to complete either ART or FPP is mirrored in their inability to meet their childrens needs for medical care and developmental growth. As a result the children have been offered extensive services but still remain with motor and speech delays and other developmental delays. The delays the children have are significant and could lead to life-long disability. The relationship between the adults in the family is often tumultuous and increases stressors on the family. Both parents should be assessed for learning disabilities, mental health problems, and Alcohol and Other Drug issues. With the information gathered from these assessments, it can be better determined whether or not the family fails to cooperate with services due to neurological or cognitive inability, mental health problems, and/or alcohol and other drug abuse. That information would be crucial in order to provide the proper intervention for the family.

The disposition hearing, also unreported, was held on November 8, 2005. At its conclusion, the court declared the minors to be dependents, placed them in foster care, and ordered the Department to provide reunification services as recommended in its disposition report.

The six-month review hearing, again not reported, was held in March 2006. As recommended by the Department, the court terminated reunification services to the mother, but ordered six additional months of services for petitioner, whom it found has made progress. The court also found that there was a substantial probability that petitioner could be reunited with the minors in six months.

The 12-month review was originally set for August 2006, but it was not actually held until November 16, 2006.[4] The hearing commenced with the court noting a number of reports that were received into the record. The Departments status report, dated August 28, 2006, noted that petitioner has been slow to engage in services to address the concerns that led to the dependency. The case worker explained that petitioner has made no significant progress in his case plan since our last court date. His continued delay in engaging in his case plan activities is of great concern to the Department. Although [petitioner] has completed a Positive Parenting Class on 11/30/2005 . . . he has not completed any other activities outlined in his case plan and has only recently become more consistent in his visitation.

In November 2005, [petitioner] began applying for . . . housing [but] when a room came available in January 2006 [petitioner] did not take advantage of the opportunity. [Petitioner] has not followed through on his Mental Health assessment. Although [petitioner] did complete his Alcohol and Other Drug assessment, this was not done until May 17, 2006. Completing the AOD assessment at such a late date did not leave time for [petitioner] to complete the recommendations of the assessment. As of 07/19/2006, [petitioner] was discharged from the AOD program due to continued drug use and his inability to attend treatment consistently.

At another point in the status review, the case worker stated that petitioner has been unable to demonstrate his ability to provide a safe and stable home, and has not been able to demonstrate that he has the insight, understanding of the additional challenges facing his children and the willingness and ability to see to their ongoing and reliable care. The concerns that brought his children to the attention of the Department such as substance abuse, general neglect and lack of follow through appear to be chronic and habitual.

Although the case worker stated in the August status review that petitioner had met only one of his case plan objectives, she submitted an addendum dated November 6 in which she modified this conclusion; she now advised the court that petitioner had satisfied none of the objectives.

In her written report to the court, the Court Appointed Special Advocate for the minors agreed with the Departments recommendation that reunification services to petitioner be terminated, and that the court should set a date for a termination hearing.

Petitioner testified briefly in his own behalf. He testified that he was now on the waiting list for housing, although he conceded it was for singles; he had been on the list for a family unit, but he lost it due to some bureaucratic foul-up when the mother was interviewed. He anticipated getting family housing in two months. He is presently employed as a tree trimmer. Petitioner conceded that he was kicked out of the Departments AOD (i.e., Alcohol and Other Drugs) program because he missed a meeting, but he recently enrolled in another program through the County. Petitioner further testified that he visits the minors regularly. On cross-examination, he testified that he is only allowed to have visits by children at his current residence.

Emily Siegel, the current case worker, testified for petitioner that, according to the minors aunt, who is their caretaker, there have been no problems when petitioner visits the minors. According to the aunt, the children appear to be quite bonded with their father. Petitioners latest drug test was negative.

Counsel for petitioner, the minors, and the mother presented brief argument that petitioner should receive more services. Counsel for the Department was opposed, because petitioner was at one time doing very well on his service plan, so its not that he didnt know what he had to do. Its not that he was incapable of doing it. Its simply that he didnt do it. Counsel also pointed out that, at best, petitioner was statutorily ineligible to receive more than three months of additional services, and that there is no substantial likelihood that he would reunify if he was given another three months or less of services. The court took the matter under submission until November 30.

Petitioner was not present when the court ruled on November 30. The court agreed with the Departments recommendation that the court grant no further reunification services and set a parental rights termination hearing, reasoning as follows:

. . . I cant find based on whats happened previously that there is substantial probability of return. I looked at everything that was marked as an exhibit and . . . went back to reviews and . . . other things in this matter. And I am very sympathetic to the father and hope that he does work in this case.

In looking at the timeframe, I just would note that there were services provided to the family when a[n] initial petitionrelated to an initial petition filed in Marchlate March 2005. The children were not then detained. It was an attempt to provide services to the family without detention. That was unsuccessful, and detention occurred in mid‑July of 2005.[5]

It took a substantial amount of time to get to disposition. And that wasnt until early November of 2005. There were findings that services were being provided along the way in that situation. . . . And an eighteen-month date is Mayexcuse me, March 19, 2007.

So I am going to follow the recommended findings and orders. I do so with a certain amount of regret because I think that the father in this case, for lack of better phrasing, has a very good heart and wants to do whats right for these children but that even with the support that has been provided has been unable to do so.

I . . . do find that there are reasonable services. I dont think that whats occurred has been because of the actions of the Department or lack thereof. I think that it is the fathers inability to sort of get to the details that need to happen to be truly successful. . . . [] Having said that, the Court will enter the recommended findings and orders as to both children. . . .

[] . . . [] The Court is . . . going to make the finding that father did have some compliance with the case plan and made minimal progress . . . . [] The court is terminating reunification services to the father. Finally, the court set the termination hearing for April 2, 2007.

DISCUSSION

Petitioners only claim of error concerns the refusal of the juvenile court to order the Department to provide him six additional months of reunification services. He contends that It is an abuse of discretion to terminate services on less than substantial evidence, and that, when the juvenile court did so, he was prejudiced because it impaired the likelihood of his gaining permanent custody of his children. Petitioner thus implicitly concedes that, if there is substantial evidence to support the courts decision, we cannot find an abuse of the lower courts discretion.

The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile courts order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Both minors were under the age of three years when they were removed from their parents custody. Their situation was therefore governed by section 361.5 and 366.21. These statutes provide in pertinent part:

(a) . . . [] . . . [] (2) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court‑ordered services shall not exceed a period of six months from the date the child entered foster care. [] (3) [] . . . [] Notwithstanding paragraphs . . . (2) . . . court‑ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from the physical custody of his or her parent or guardian if it can be shown, at the hearing held pursuant to . . . Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian. If the court extends the time period, the court shall specify the factual basis for its conclusion that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period. . . . ( 361.5, subd. (a)(2), (3).)

If the time period in which the court-ordered services were provided has met or exceeded the time period set forth in paragraph . . . (3) of subdivision (a) of Section 361.5 . . . and a child is not returned to the custody of a parent or legal guardian . . . the court shall do one of the following:

(1) Continue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:

(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.

(B) That the parent or legal guardian has made significant progress in resolving problems that led to the childs removal from the home.

(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. . . . ( 366.21, subd. (g).)

These statutes establish that the cut-off period of 18 months following the date on which the child was originally taken from the physical custody of his or her parent or legal guardian is virtually absolute.[6] That date was in August 2005, when the minors were ordered detained. (See note 5, ante.)

The juvenile court found that the reunification services offered to petitioner by the Department were reasonable. Petitioner does not challenge that finding. The only other ground for extending services would the substantial probability, in the time remaining of the 18-month period, that the minors could be returned to petitioners custody and safely maintained in the home he provided. ( 361.5, subd. (a)(3), 366.21, subd. (g)(1)(C).) The juvenile court declined to find such a probability here. We conclude there is more than ample substantial evidence to support the juvenile courts determination.

As noted by the Departments counsel at the review hearing, the amount of additional services that could be provided to petitioner was actually rather modest. As already discussed, reunification services could not be offered beyond the 18-month point at which the minors were detained, i.e., August 2005. By the time of review hearing in November 2006, 15 months had elapsed. Thus, counsel for the Department was correct in pointing out to the court that there were only approximately three months remaining. if the court was inclined to order additional services.

Moreover, as the court noted, petitioner had already received considerable reunification services even before the minors were removed from his custody. In the report it provided for the detention hearing, the Department informed the court that The following Pre-Placement Preventive Services were provided but were not effective in preventing or eliminating the need for removal of the child[ren] from the home. [] Family Reunification Services in Glenn County, Counseling, Case Management, Emergency Shelter Care, Parent Training, Transportation, Alternative Response Team . . . and Family Preservation Program Services. [] . . . [] . . . In Humboldt County, the family was offered Alternative Response Team . . . and Family Preservation Program . . . services. In another report the Department described as intensive the services received by petitioner and the mother from May 2004 until February 2005 (that is, before this dependency was commenced in March 2005).

Thus, it appears certain that petitioner had already received approximately 24-25 months of reunification services, considerably more than the statutory maximum of 18 months, even if some of the services were not court-ordered, but were informally extended by the Department prior to commencement of this dependency.

More importantly, it is a recurring theme of the Departments reports that petitioner was not taking advantage of the reunification services offered him. In the detention report, the case worker noted that petitioner and the mother were unable to follow through with either [of the service programs offered, i.e., the Alternative Response Team or the Family Preservation Program] and their childrens medical needs and developmental growth has suffered as a consequence. When first told about the Family Preservation Program by a social worker, petitioner appeared not to really listen.  Poor follow through was also noted in the report for the jurisdictional hearing. In the report for the 6-month status review, petitioners lack of follow through was characterized as chronic and habitual. In its last report to the court, the case worker noted petitioners continued delay in engaging in his case plan activities is of great concern. The case worker again called petitioners neglect and lack of follow through . . . chronic and habitual. As previously quoted, the report provided extensive detail substantiating the case workers concern and her characterization of petitioners efforts to satisfy his reunification case plan.

It is ordinarily the rule that, once a dependency is begun, it becomes the obligation of the parent to . . . participate in the reunification process. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) In this case, that obligation fell to petitioner even before this dependency was commenced. However, [r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.)

The parental responsibility to reunify is not delegable, but is inherently personal, drawing specific meaning from what the parent already knows from the dependency: The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency . . . 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. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)

So, petitioner was asking the juvenile court to order, at most, three additional months of reunification services. During that time, petitioner would presumably impose sufficient order on his affairs that he could receive the minors back into his home. But the juvenile court could entertain a very healthy skepticism that petitioner would do so in the 90 or so remaining days of the 18-month reunification period. Petitioner had no proper home for the minors, only the naked hope that he would get appropriate housing within the next two months. He had considerable experience with the ways and means of dependency programs. Petitioner knew what was required to reunify with his children. Nevertheless, his lack of application was noted from the start, and his efforts to comply with his reunification plan were desultory at best. To cite merely one example, petitioner admitted that he had only recently enrolled in a drug treatment program.

The juvenile court knew that petitioners parental rights had already been twice terminated, the second time (i.e., the termination parental rights over daughter Rebecca) occurring at the very same hearing where petitioner was seeking the additional services to reunify with William, Jr. and Christen. (See note 4, ante.) The juvenile court was within its authority as the trier of fact to make a realistic evaluation of the likelihood of petitioners anticipated success in the light of his extensive history of disappointing such hopes. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824‑825.)

The record demonstrates that the juvenile court had before it ample, if not abundant, evidence that there was no substantial probability that the [minors] will be returned to the physical custody of . . . [petitioner] . . . and safely maintained in the home within the extended period of time, i.e., the next 90 or so days, allowed for reunification efforts. ( 366.21, subd. (g)(1).) Put another way, the record has considerable evidence that petitioner had not made significant progress in resolving problems that led to the child[ren]s removal from the home. (Id., subd. (g)(1)(B).) There is consequently no basis for extraordinary intervention by this court.

DISPOSITION

The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(i)(1).) Our decision is final as to this court immediately. (Id., rule 8.264(b)(2)(A).)

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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[1] Statutory references are to the Welfare and Institutions Code unless otherwise mentioned.

[2] The petition itself was not included in the record filed by petitioner. The Department attached a copy of the petition to its opposition, and it requests that the record be augmented to include the petition, as well as the order and findings for the minors subsequent detention. There being no objection from petitioner, the request is granted.

[3] It also appears from the petition and other documents in the record that the initial official concern for William and Christine began when the family was living in Glenn County, the venue for an on-going dependency for another of the siblings, petitioners daughter Rebecca. The Department states in its opposition that this dependency in fact began in Glenn County and was subsequently transferred to Humboldt County, together with the other sibling dependency.

[4] Another subject of this hearing was the termination of parental rights hearing for petitioners daughter Rebecca, who was the unadopted sibling transferred from Glenn County. (See note 3, ante.) Petitioner did not contest termination of his parental rights as to Rebecca, and he does not challenge it with the current petition.

[5] The court was mistaken as to the date of the minors detention, which occurred in August, not July of 2005.

[6] The courts have recognized only a handful of extreme situations that warrant extending the 18-month period, such as a parents extended hospitalization, the absence of a case plan, or when the reunification services offered are patently inadequate. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067-1068 and decisions cited.) Petitioner does not claim that any such exception is shown here.