Robert A. v. Superior Court

Filed 4/30/07 Robert A. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Robert A., father of the minor Skyler A., seeks extraordinary writ relief from an order terminating reunification services and setting a permanent plan hearing under Welfare and Institutions Code section 366.26.^[1] He contends that substantial evidence does not support the juvenile courts finding that Robert was provided or offered reasonable services. We disagree with his contention and deny the petition.

I. FACTS AND PROCEDURAL HISTORY
On May 1, 2006, the Sonoma County Human Services Department (Department) filed a petition alleging that Skyler came within the jurisdiction of the juvenile court under section 300, subdivision (b), because Robert had exposed him to numerous violent assaults. The petition alleged nine separate instances of domestic violence perpetrated by

Robert against Skylers mother, Anna, between November 2002 and April 2006, in which he: slapped Annas face, punched her, and tried to stab her with a knife in Skylers presence; struck Anna in the face with his fists and kicked her head numerous times in the presence of Skylers half-siblings, Darryl and Dustin; repeatedly kicked Anna in the head until she lost consciousness; and, while Anna was pregnant, kicked a door that struck her stomach, grabbed her hair and forced her head into a wall, and broke her arm. The petition further alleged that Robert had assaulted the mother of Darryl and Dustin. An amended petition filed on May 23, 2006, added allegations that Robert had perpetrated additional assaults upon Anna, was incarcerated, and had a history of substance abuse.

A. Jurisdictional Report and Hearing

The Departments jurisdictional report, dated May 22, 2006, described Skyler as a fragile newborn infant whose mother used an excessive amount of alcohol and controlled substances throughout her pregnancy. Both Skyler and his half-siblings, Darryl and Dustin, had been removed from the home. Darryl and Dustin had previously been declared dependents of the juvenile court in January 2002, but they were returned to Roberts care in June 2003 and the case was dismissed in June 2004. The Department observed that Skylers case was similar to this previous matter, in that Robert was again incarcerated for domestic violence and Skylers mother, like Darryl and Dustins mother, was young, had substance abuse problems, and reported daily physical abuse by Robert.

On June 13, 2006, the juvenile court found the allegations of the amended petition to be true and placed Skyler in a foster-adopt home. The court also issued a restraining order that prohibited Robert from, among other things, coming within 100 yards of Anna.

The Department filed an addendum report on June 14, 2006, stating that Robert had assaulted Anna since the date of the Departments previous report of May 22. According to the Department, Robert had been released from jail the week of May 23, assaulted Anna on May 31chipping her teeth and bruising her neck by choking herand stated that he planned to kill himself and Anna. Robert was arrested on June 1 and charged with two felonies.

B. Disposition Report and Hearing

The Departments disposition report, filed on July 12, 2006, advised that Robert had weekly supervised visits with Skyler at the jail and that the Department had sent him literature for incarcerated parents on June 24, 2006, and instructed him to make use of any recovery support and anger management services available to him while incarcerated. The Department recommended that Robert (and Anna) receive reunification services, although with some reluctance due to Roberts failure to demonstrate a change in the behavior targeted by prior services: while Robert had reunified with Darryl and Dustin in 2004, the domestic violence issues in their case remained problematic in Skylers case.

On July 12, 2006, the court issued its dispositional order, finding that Skylers removal from his parents physical custody was appropriate, reasonable services had been provided or offered to prevent or alleviate the need for removal, and Robert had made no progress toward alleviating or mitigating the causes necessitating placement. Robert was offered reunification services and was directed to comply with a case plan, which required him to: complete a 52-week domestic violence program approved by the Department; complete a psychological evaluation in the first 90 days of service provision; participate in individual and family counseling upon release from jail; demonstrate changed behavior related to the completion of the domestic violence program; complete an age-appropriate parenting class or accept a referral for in-home parenting instruction; complete a substance abuse assessment and enroll in services as directed by the social worker; test for substance abuse at the request of the social worker; and attend any recovery support programs while in jail and, when released, attend at least two aa/na meetings per week and provide the social worker with proof of attendance.

C. Six-Month Status Review

The Departments six-month status review report, dated December 8, 2006, was prepared by social worker John Andres. According to the report, Robert remained incarcerated at the North County Detention Facility (NCDF) and was expected to be released in December 2006, when he would begin a residential treatment lasting 6-12 months. During the six-month review period, Robert had supervised visitation with Skyler at NCDF and Andres had met 17 times with Robert and Anna.

The report recommended that reunification services for Robert and Anna be terminated as to Skyler. Until November 2006, the Department noted, Robert had been housed in a jail unit for unsentenced inmates, which had precluded his participation in services offered at the jail. The Department concluded that there was not a substantial probability that Robert would be able to reunify with Skyler if reunification services were continued, observing that Robert had not been able to be involved with his son due to his incarceration[,] and the likelihood that he would be able to provide for the daily needs of an infant who may require special needs is unrealistic at this point.

By an addendum report filed on February 7, 2007, Andres advised that a social workers assistant, Sandra Reynoza, had observed Robert and Anna on February 3, 2007, holding hands as they walked out of a bank and towards a store. This contact was in violation of the June 13 restraining order.

A contested hearing regarding termination of services began on February 7, 2007. Social worker Andres, who holds a masters degree in clinical psychology, has been employed at the Department for 23 years, and has worked in the area of family reunification since 1999, testified on behalf of the Department.

Andres testified that he began working on Skylers case in August 2006, after meeting with the prior social worker on the case, Erica Crowell. When Andres received the case, Robert was in the unsentenced side of the jail and had limited opportunity to participate in services. He was able to more fully engage in services around Thanksgiving of 2006, when he transferred to the sentenced side of the jail. There he became involved over the next seven or eight weeks in programs known as Freedom from Addiction, Anger Management, Criminal Thinking, Family Matters, Conflict Resolution, Goal Setting, and Starting Point.

Andres did not contact NCDF to determine if services were available to Robert in the unsentenced side of the jail, because he knew from his experience with other clients in the same circumstances that Robert was very limited in what he was able to do. Andres did not ask anyone at NCDF whether Roberts housing could be changed so that he would be able to access services.

Robert was able to visit with Skyler and his other children at the jail on a weekly basis beginning around June 2006. According to the jails rules, visits between inmates and children could occur only once per week for one-half hour. Skylers step-brother Darryl had an angry outburst during a visit on July 7, 2006, and additional problems with Darryls behavior arose in August or September 2006. As a result, the jail required that Robert visit each of his three sons in separate visits, such that he visited with Skyler once every three weeks after September 14, 2006. In addition, the Department had concerns about Skylers safety with Darryl and wanted a high-quality visit between Robert and Skyler when Skyler, an infant, was awake in the morning. Robert asked for additional visits with Skyler but ultimately agreed to seeing the boys separately. Robert thereafter missed visits with Skyler on November 30 and December 26, 2006, which were not made up.

Andres regularly communicated and met with Robert in jail. Andres stated that the materials provided to Robert by Crowell were referrals to services that would be helpful to him and could be accessed even on the unsentenced side of the jail.

Upon his release from jail in January 2007, Robert went to the Harbor House program in San Francisco as a requirement of his criminal sentence.

Andres was unsure whether the Harbor House programwhich is not a residential treatment programwould allow Robert to address his domestic violence and substance abuse issues in order to meet his childrens needs. Although Robert completed a conflict resolution program, Andres did not believe it was a substitute for the 52-week domestic violence program ordered as part of his case plan.

1. Roberts Testimony

Robert believed that he received pamphlets from social worker Crowell on parenting, single fathers, and dealing with children who are subject to domestic violence.

When Robert was transferred to NCDF, he took relapse prevention courses and general education classes and attended weekly AA and NA meetings. He was housed in the unsentenced side of the jail until October 2006, and as a result was unable to access all of the services. He admitted, however, that he was responsible for remaining on the unsentenced side of the jail for so long, because he was under a keep-away order from another inmate: it was his fault that he had a problem with this inmate.

After he was moved to the sentenced side of the jail, Robert enrolled in a Starting Point drug program, which was held for seven-and-a-half hours per day, six days a week. This program included instruction on life skills, medical aspects of substance abuse, process groups, exit planning, relapse prevention, and anger management. He also attended AA/NA meetings twice a week and weekly one-on-one counseling. In addition, he completed a conflict resolution course and participated in a parenting class.

Robert was upset when his visitation schedule with Skyler was changed to just once every three weeks. By his account, he did not agree with this change. Since his release from jail, Robert has had one-and-a-half-hour visits weekly with Skyler at Child Protective Services.

Robert was released from North County jail on January 12, 2007, and began a program at Harbor House, which includes random drug testing and allows residents to continue working while staying there. In the program he is involved in process groups and life skills, and will be involved in a parenting class. He is also attending AA/NA meetings, although he has not provided the social worker with sign-in sheets for any AA/NA meetings since his release from jail. He has been working on the fourth step of the AA/NA program, pertaining to taking a personal inventory and making amends. Although previously in denial about his addiction and anger issues, he is now attending to them. He testified, however, that he no longer has a problem as a batterer, denied most of the domestic violence allegations of the sustained dependency petition, and denied ever assaulting the mother of Darryl and Dustin.

2. Other Testimony

Social worker assistant Reynoza testified in accordance with her declaration that she saw Robert and Anna holding hands as they left the bank. Ryan Agrella, a convicted felon who had met Robert in jail and was working for him, testified that he was with Robert at the bank and saw Anna follow him out, but he did not see them touch each other. Robert testified that Anna was at the bank but he had no contact with her. Anna testified that she merely went to the bank to use the bathroom.

3. Juvenile Courts Decision

On February 9, 2007, the juvenile court agreed with the Department that reunification services should be terminated as to Skyler. The court found that: the Department had provided or offered reasonable services to Robert;^[2]Robert had made only minimal progress toward mitigation or alleviation of the causes necessitating placement; return of Skyler to his parents physical custody would create a substantial risk of detriment to his safety, protection, or well-being; and there was no substantial probability that, with the continuation of services, Skyler would be safely returned to their physical custody during the extended reunification period. The court scheduled a section 366.26 hearing for June 6, 2007.

Robert filed his petition for extraordinary writ relief and requested a stay of the section 366.26 hearing. We issued an order to show cause why the petition should not be granted. The Department has filed a brief in opposition to the petition.

II. DISCUSSION

When a child is removed from parental custody, the juvenile court must ensure that services, including reunification services, are provided to the family absent a statutory exception listed in section 361.5, subdivision (b). ( 361.5, subd. (a); In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)

When reunification services are ordered, the plan must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile courts jurisdictional finding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) When the parent is incarcerated, the Department must still provide or offer reasonable services absent a finding of detriment, and the case plan should reflect the fact that the parent is incarcerated. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1013-1014 (Mark N.); see  361.5, subd. (e)(1).)^[3]

For a child who, like Skyler, was under the age of three at the time of removal, services must be provided for six months from the date the child entered foster care. ( 361.5, subd. (a)(2).) Services cannot be continued beyond that time unless the court finds that there is a substantial probability the child will be returned to his parents physical custody within the extended time period or the parent has not been provided or offered reasonable services. ( 361.5, subd. (a).) In determining whether reasonable services were provided, the standard is not whether the services were the best that might be provided in an ideal world, but whether they were reasonable under the circumstances. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.)

Robert contends that the juvenile court erred in finding that the Department had provided or offered reasonable services. We review this finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762-763.) Under this standard, we resolve all evidentiary conflicts in favor of the finding and draw all legitimate inferences to uphold it. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 (Elijah R.).)

Substantial evidence supports the juvenile courts finding that the Department provided or offered reasonable services to Robert. As early as June 2006, the Department had offered services to Robert consistent with the case plan attached to the disposition report, which was specifically tailored to address Roberts predominant issues of severe domestic violence and substance abuse. For example, the social worker provided Robert with written materials on parenting and domestic violence, met with him to discuss those matters, and advised him to participate in any recovery program offered in the jail. Robert was also granted weekly visits with Skyler and his other children. While on the unsentenced side of the jail, he was able to attend AA/NA meetings and participate in relapse prevention. Although he did not transfer to the sentenced side of the jail, where additional services were available, until around October 2006, this was due to a conflict Robert had with another inmate, which Robert acknowledged to be his own fault. Once in the sentenced part of the jail, Robert received extensive services including a conflict resolution program, additional AA/NA meetings, and substance abuse recovery programs for several weeks until his release in January 2007. From his release until the review hearing, Robert was enrolled in a program addressing issues of parenting and recovery. Ample evidence supports the conclusion that these services were reasonable under the circumstances. (See In re Ronell A. (1995) 44 Cal.App.4th 1352, 1363 [department made reasonable efforts to ensure mothers meaningful participation in reunification plan, where mothers inability to participate in the programs until the end of her sentence was not the fault of the department and the department was not in a position to rectify the problem]; Elijah R., supra, 66 Cal.App.4th at p. 971 [substantial evidence of reasonable services where father put himself out of reach of meaningful services by criminal activities resulting in incarceration in a distant prison].)

Robert argues that the services were not reasonable, based on Mark N., supra, 60 Cal.App.4th 996. In Mark N., the father was incarcerated for all but the first month of a 17-month reunification period. The social worker failed to determine whether any programs were available to him while he was incarcerated and did not recall advising him to look into the availability of programs in prison. (Id. at pp. 1007, 1009, 1012.) The social worker also failed to maintain monthly or reasonable contact with the father, and in fact did not contact him at all for 13 months of the 17-month reunification period, including the first seven months of that period. (Id. at pp. 1009, 1012.) The father could not even participate in AA/NA meetings due to the area of the prison in which he was placed, and the social worker offered no alternative when he mentioned it. (Id. at p. 1008.) Noting that the social worker should have at least contacted the relevant institutions to determine whether there was any way to make services available to the father (id. at p. 1013), the court ruled that there was no substantial evidence that he had been provided or offered reasonable services. (Id. at p. 1009.)

Here, Robert argues, there was no adjustment to his case plan even though he was unable to fulfill some of its requirements due to his incarceration. Although he was required to attend a 52-week domestic violence program, no such program was available to him at the jail. He was also unable to undergo a psychological evaluation or participate in other services that had been set forth in the initial case plan. Andres did not contact the jail to determine whether services could be made available to Robert.

Roberts reliance on Mark N. is misplaced, as the circumstances in that case are clearly distinguishable from the matter at hand. While the social worker in Mark N. did not contact the father for 13 of the 17 months of reunification, in this case the social worker met with Robert at least once a month. The social worker in Mark N. did not recall advising the father to take advantage of any programs in prison, while the social worker in this case so advised Robert. In Mark N., the social worker made no effort to determine whether services could be provided to the father, while here the social worker knew that Robert was receiving some services and, based on his experience, knew that any further inquiry of the jail would be fruitless. In Mark N., the fathers case plan was prepared before his incarceration and was not adjusted thereafter to reflect his change in status. (Mark N., supra, 60 Cal.App.4th at p. 1014.) Here, Roberts case plan was prepared after his incarceration and contemplated services in jail; for example, item 7 of the case plan reads: while in jail, client will attend any available recovery support programs. In addition, the father in Mark N. was unable to participate in AA/NA meetings, while Robert was able to participate in those meetings and read parenting materialseven on the unsentenced side of the jailand attend additional classes for several weeks after he was transferred to the sentenced side. In short, there was no substantial evidence of reasonable services in Mark N., but there is here.

Robert also relies on Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, which is distinguishable as well. In Robin V., a parent asked to visit his child and requested parenting pamphlets, and the social worker never responded to his requests. (Id. at pp. 1165-1166.) In the matter before us, however, Robert was allowed visitation and was provided with parenting materials from the outset.

Lastly, Robert argues that reunification services were inadequate because the Department did not fulfill its obligation to facilitate visitation. Although weekly visits were provided to Robert from around July 2006 until mid-September 2006, they were decreased to a visit every three weeks. Acknowledging that this decrease was purportedly due to acting out by Skylers half-sibling, Robert argues that this acting out had occurred in early July and had not led to any changes in visitation then, and that visits of every three weeks are unreasonable and did not fit the initial case plan.

Substantial evidence supports the conclusion that the visitation provided to Robert was reasonable. There is no dispute that the weekly visits he initially enjoyed were reasonable. The change in the visitation schedule was due to the acting out of another of Roberts sons and the decision of the jail, not the Department. In addition, this change protected Skyler from Darryl and promoted a meaningful visit between Skyler and Robert. (See  362.1, subd. (a)(2) [visitation order shall not jeopardize safety of child].) Moreover, although disputed, there was evidence that Robert agreed to this modification.

Roberts reliance on In re Precious J. (1996) 42 Cal.App.4th 1463, in this regard is unavailing. The mother in Precious J. was not allowed any visits with her child while incarcerated, and the Department failed to establish a visitation schedule despite court orders directing it do so. (Id. at pp. 1476-1479.) Here, by contrast, Robert was able to visit with Skyler and the Department had established a visitation schedule.

Robert has failed to establish that the juvenile courts finding of reasonable services was not supported by substantial evidence.

III. DISPOSITION

The petition for an extraordinary writ and the request for a stay are denied.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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

^[2] The juvenile court stated: So the Court at this time is prepared to make the findings that -- and with regards to Father, the only claim that the Court can recognize as being raised at validity is that Father did not get weekly visitation. [] As pointed out, a lot of that had to be with the decision he made and the fact that the jail had its rules. And the other aspect of this situation is its important for Father to be able to bond with the child. There was also a jail sentence and a probationary period and a residential treatment program that were ahead. [] And the Court cannot say in total given the situation that once every three weeks was totally unreasonable.

^[3] Section 361.5, subdivision (e)(1), provides that an incarcerated parent shall receive reunification services unless the court determines, by clear and convincing evidence, that those services would be detrimental to the child. [A]n incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available. (Italics added.)