Aaron R. v. Sup. Ct.

Filed 4/12/07 Aaron R. v. Sup. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

The father of the three children in this juvenile dependency proceeding seeks extraordinary relief from an order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] (Cal. Rules of Court, rules 8.450-8.452.) He contends that the order should be reversed because he had made progress on his reunification plan, and because he did not receive reasonable services. In particular, he claims that the social services agency failed to take his medical condition into consideration when implementing the case plan, and that the agency failed to maintain regular contact with him or help him seek services while he was incarcerated. After reviewing the record, we find it supports the courts order. Accordingly, we will deny the petition for extraordinary relief.

BACKGROUND

Petitioner is the presumed father of three children. The youngest of the three was born in August of 2005, at which time both mother and child tested positive for methamphetamines. The two older children were 18 months old and four-and-a-half years old when the youngest child was born. The mother was assessed as a suitable candidate for informal supervision. She signed a voluntary placement agreement for the newborn child, and entered into a voluntary family services agreement with home supervision for the other two children. The newborn child was not returned home in part because the mother and father continued to reside together and there were unresolved domestic violence issues. During the initial contact with the family, the social worker attempted to involve the father in the service plan. However, the mother explained that the fathers participation would be limited because he had a brain tumor and suffered from seizures. The social worker arranged for visitation for both parents with the newborn child. Later, the mother informed the social worker that the father would be out of the picture.

The mother was provided a variety of referrals for services to address her substance abuse and domestic violence issues. During the first few months of voluntary family services, the mother was cooperative. However, after several months, the mother became inconsistent with her compliance with drug testing and failed to cooperate with the agreed-upon services, despite receiving multiple referrals. The father did not participate in services. He attended only one visit with the newborn child, did not comply with a request for voluntary drug testing, and made no attempts to contact the social worker.

The mother informed the social worker that she was leaving the father. However, when the social worker conducted an unannounced home visit on October 13, 2005, the father was present. The social worker referred the family to the Gardner Family Strength-Based Services Program, and attempted to set up an initial meeting with a representative of that program. However, numerous attempts to meet with the family were unsuccessful. After a Team Decision Making meeting in November of 2005, the mother again informed the social worker that she and the father were separating and that she would now be able to focus her attentions entirely on reunifying with her youngest child. The agency decided to provide the mother with two more months of voluntary family reunification services, including drug testing, attendance at 12-step meetings, visitation and parent education. The mother agreed with this service plan.

During December 2005 and January of 2006, the mother continued to reside with the father, who did not participate in services and who was also in noncompliance with his conditions of probation following a 2004 conviction for domestic violence against the mother. His probation conditions included drug testing and domestic violence counseling. The family was evicted from their home at the end of January 2006, just prior to a planned probation search. The mother later contacted the social worker, reporting that she and the two children were living with the maternal grandfather, and that the childrens father had left the county. She did not know his whereabouts. At this time the mother was in noncompliance with the voluntary services, was not drug testing, and had missed scheduled visitations. In a meeting with the social worker on February 3, 2006, she indicated she intended to live with the father. The social worker observed in a report that the father had very little interest in wanting the child returned to the home and that he had failed to address existing domestic violence issues. The probation department informed the social worker of strong suspicions that the parents were engaging in substance abuse with methamphetamines.

On February 10, 2006, an out-of-custody warrant was issued for the youngest child and a section 300 petition was filed alleging that the child was at significant risk and in need of the juvenile courts supervision because of the mothers substance abuse. He was ordered detained on February 16, 2006. On that same date, petitions were filed as to the other two children under section 300, subdivision (b) [failure to protect]. At the initial hearing the court ordered that the two older children remain in the custody of the mother with home supervision. The mother was ordered not to use controlled substances, to submit to random drug testing, and to participate in a drug assessment, 12-step type meetings and parenting classes. The father was ordered not to spend the night in the house, and no visitation was to be ordered for him until he presented himself in court. A jurisdictional and dispositional hearing for all three children was set for March 10, 2006.

As amended, the petitions as to all three children contained allegations stating the above history of voluntary services, and the mothers failure to comply. The petitions further stated that the father has failed to participate in Voluntary Services, that there is a domestic violence history between the mother and father, and that the father has not been incompliance [sic] with his current conditions of probation, in which he was to participate in DV counseling and submit to monthly drug tests. In the report for jurisdiction and disposition, the social worker stated that the mother and two older children were living with the maternal grandfather and his wife. The mother had indicated the father had no mailing address or phone number, but that messages could be relayed through her. The social worker asked her to have the father contact him, but the father never did so. The social worker listed the whereabouts of the father as unknown. The father did not attend the initial hearings for the children. The probation department reported that there was an outstanding warrant for the fathers arrest for violating probation conditions.

On March 10, 2006, the court sustained the petitions, upon the mothers submission, and continued disposition pending the receipt of ICWA[2] notices. The court allowed the two children to remain in the mothers custody, but ordered twice-weekly drug testing. The father was not present at the hearing.

On March 28, 2006, the two older children were removed from the mothers care. Subsequent petitions under section 342 were filed as to them on March 29, 2006, and they were ordered detained on March 30, 2006. The subsequent petitions alleged that the mother had failed to participate in the ordered voluntary home services, had failed to participate in court-ordered drug testing, and did not attend her drug assessment. Furthermore, she continued to have contact with the father and allowed the children to see the father notwithstanding the fathers failure to cooperate in any aspect of the dependency court proceedings. The two children were placed together in an emergency satellite home. At the initial hearing on the subsequent petitions, services were ordered for the mother. No visitation was ordered for the father until such time as he presented himself to the court. Notices were sent to the father at the mothers address, since no other address was provided to the agency. The social worker saw the father at a visit just days before the disposition hearing, and reminded him of the importance of this hearing. He indicated he wanted to attend the proceeding and that he strongly desired to reunify with his children. Although the scheduled hearing was only two days later, the father did not attend.

On April 12, 2006, the court found the allegations in the subsequent petitions to be true and adjudged all three children to be dependents of the court. Pursuant to the agencys recommendations, the court ordered six months of reunification services for the parents. Both parents were to attend substance abuse programs and submit to random drug tests twice a week. Both were to participate in a drug assessment and complete the programs as recommended after the assessments. Both were to attend parenting classes and classes relating to domestic violence. The court ordered visitation with the children twice a week.

The social workers report for this hearing explained that the worker had interviewed the father and that the father understood he would need to participate in services in order to get his children back, and that he would also have to comply with the conditions of his probation. He was currently living with friends and did not have permanent housing. The social worker reported that at a visit which included both parents, the two older children, and also an older half-sibling, it was apparent that both the mother and father possessed parenting strengths, and that the children were attached to their parents and to their older half-sister. The worker noted the parents history of resistance to services and a particular avoidance of substance treatment programs and drug testing. This led to a strong suspicion of substance abuse problems. The social worker explained to the parents that if they did not participate in their reunification plan, services could be terminated in six months, which could result in them permanently losing their children. At disposition on April 12, 2006, the six-month hearing was set for October 4, 2006.

The social worker met with both parents on May 1, 2006, and reviewed their court-ordered services with them. They expressed cooperation with their case plans. In an interim report on June 14, 2006, the social worker reported that both parents had missed numerous drug tests. The mother had one negative test, one positive test for methamphetamine, one diluted test, and failed to appear for 11 tests. The father had not started testing until May 31, 2006. He had one negative test and did not appear for the next three tests. The father had attended three sessions of a parenting program. The mother had been dropped from the class for poor attendance. Both parents continued to have visits with the children at Clover House. The social worker reported that the visits are generally going well. The father had cancelled an appointment with the social worker for a case plan review.

At the next interim report, on July 17, 2006, the social worker reported that the father had been dropped from the parenting program for excessive absences. Both parents were referred to another program. As to drug testing, the mother had two more diluted tests, and did not appear for any further tests. The father did not show up for any other tests. The parents had not submitted their sign-in sheets for attendance at substance abuse meetings. The social worker had no indication that either parent had participated in the ordered drug assessment. The father had been dropped from a batterers intervention program for lack of attendance. The parents had failed to meet with the social worker for a case plan review. The social worker wrote that the parents continued to choose not to comply with their services, and continued to ignore to address and rectify their life issues that led to the removal of their children.

At the time of the October 4, 2006 six-month review hearing, the social worker reported that on July 17, 2006, the father had been arrested on a failure-to-comply warrant. He was in custody at Elmwood, with an expected release date of December 29, 2006. The social worker did not know the mothers whereabouts. Both parents had been dropped from parenting classes for lack of attendance. Neither parent had been consistent with drug testing, and neither one had participated in a drug assessment. Neither had submitted attendance sheets for substance abuse meetings. The social worker met with the father at Elmwood. He informed the social worker that no services were available to him there. The mother had informed the social worker that because the father was now incarcerated, she would have more time to work on her case plan. Due to the parents failure to cooperate with their plans, the social worker recommended that reunification services be terminated and that the case be referred for a section 366.26 hearing. At the October 4, 2006 hearing, the father, who was in custody, appeared in court for the first time in these proceedings. The court appointed an attorney for him and continued the hearing.

The contested six-month review hearing was continued several times and the social worker submitted two further addendum reports. On November 6, 2006, the social worker reported that a concurrent relative placement had been located for the two older siblings in another county, and that the foster home where the youngest child had been placed was a prospective adoptive home for him. On December 12, 2006, the social worker wrote that she had met again with the father at Elmwood and that he had expressed agreement with the childrens concurrent placements. He had not been visiting the children since his incarceration.

The contested six-month review hearing was held on January 19, 2007. The father had been released from Elmwood, and the mother and father were both present in court. The social worker recommended termination of reunification services because the parents had failed to make significant progress on their plans. Based on their poor participation, the social worker did not believe that it was probable they would engage and complete their services if an additional six months were ordered. The social worker informed the court that she had been in contact with the father since he was released from Elmwood on December 29, 2006. She made new referrals for services for both parents and provided bus passes for visits to the two children who had been placed out of county. A visit was scheduled with the father and his youngest child but the father missed the visit. The social worker testified that she met with the parents on January 11, 2007, to review their case plan. She went over the plan with them and pointed out their lack of any meaningful participation. The mother said she was now ready to turn [her life] around. The father explained that he had been dropped from his classes because he was unable to attend due to his medical condition. He said his medications had been changed and he was now functioning better.

At the contested six-month review hearing, the two caseworkers testified, as did the father and mother. After considering the evidence and arguments of counsel, the court terminated reunification services, finding by clear and convincing evidence that reasonable services had been provided to the parents. A section 366.26 hearing was set for May 14, 2007.

ARGUMENT

Statutory Framework

When children are removed from their parents custody, the juvenile court must order the social worker to provide the family services that are designed to facilitate reunification by helping the family address the problems that led to the removal of the children. ( 361.5, subd. (a).) A reunification plan must be specifically tailored to fit the circumstances of each family. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Misako R. (1991) 2 Cal.App.4th 535, 545.) The adequacy of a reunification plan, and of the agencys efforts to provide reasonable services, is judged according to the circumstances of each case. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1454.) [T]he record should show that the [agency] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [parent] during the course of the service plan, and made reasonable efforts to assist the [parent when] compliance proved difficult . . . . ( In re Riva M. (1991) 235 Cal.App.3d 403, 414; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)

Because of the young ages of the children in this case, the relevant period for providing reunification services was six months. ( 361.5, subd. (a)(2) & (3).) Thus, at the six-month review hearing, the court may terminate services and schedule a section 366.26 hearing within 120 days if the court finds, by clear and convincing evidence, that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. ( 366.21, subd. (e).) The court may refer the matter for a section 366.26 hearing only if the court finds by clear and convincing evidence that reasonable services have been provided or offered to the parent. ( 366.21, subd. (g)(1) & (2).) (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594.)

Although the juvenile court must make both of these findings by clear and convincing evidence, on review we apply the substantial evidence standard. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Under a substantial evidence review, we draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court and we review the record in the light most favorable to support the courts determinations. Issues of fact and credibility are within the province of the juvenile court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

With these rules in mind, we review the record to see whether there is substantial evidence that the father failed to make substantive progress on his case plan and whether there is substantial evidence that the agency provided or offered services to the father that were designed to address the problems leading to the removal of the children and that were tailored to meet the particular circumstances of this family.

Evidence of Progress on the Case Plan

As to this issue, the father argues briefly that he participated in his case plan to the best of his ability given his medical problems. However, the summary of the record set forth above shows very little progress with the case plan. Most notable was the failure to comply with drug testing and other referrals regarding substance abuse problems. Regular drug testing was also a condition of the fathers probation. However, he maintained that he did not have a drug problem. In addition, the father failed to complete any of his classes, was inconsistent with visitation, failed to make court appearances and failed to inform the social worker of his whereabouts. We find substantial evidence supports the courts finding that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan . . . . ( 366.21, subd. (e).)

Were Reasonable Services Offered Under the Circumstances?

The fathers principal contention is that the agency did not offer services reasonably tailored to address his needs. The petitions that were sustained in this case show that the problems leading to the removal of these children were drug use by the parents, domestic violence issues, and poor parenting skills resulting in the failure to protect the children. The services provided were addressed to these issues and included, for the father, drug testing, a drug assessment, attendance at substance abuse meetings, domestic violence classes, and parent education classes, as well as arranged visitation with the youngest child. The agency also provided a variety of voluntary services prior to jurisdiction, including referring the family to the Gardner Family Strength-Based Services Program for home support services and conducting a Team Decision-Making Meeting to determine how best to support the family. The social worker provided referrals for all of the court-ordered programs, and when the parents were dropped from the programs due to lack of attendance, provided new referrals. In addition, the social worker met with both parents to discuss their plans and met with the father twice during the period of time that he was incarcerated.

A. Fathers Medical Condition

The father argues first that the services provided to him were not adequate because the social workers failed to investigate a medical condition that caused him to have seizures and therefore they failed to tailor his reunification plan accordingly. The father contends that he suffered from seizures that caused him to need to sleep for days at a time and affected his memory. He contends he informed the social worker at the beginning of the case that he had this medical condition, and that it would limit his participating in services. He claims that the agency did not help him with this problem. As he testified at the contested six-month review hearing, when he was released from jail in December of 2006, he was taking new medication that improved his condition and he was able to focus and remember appointments.

The court made the following findings regarding the fathers medical condition and the agencys response to it. There is no evidence at this time that the court can rely on to determine the exact medical condition that the father has. He indicates he has seizures and that they make him sleep for several days and affect his memory. He doesnt remember at this point the exact name of whatever condition he has. [] I heard some reference earlier to a brain tumor but I didnt hear the father say anything about having a brain tumor. And there is no evidence that the father ever was clearly indicating to the social workers that his medical condition was something that he was requesting their help in dealing with. [] And he never provided, as far as I can tell, any specific medical information to the social workers, he never gave them the names of his doctors or gave them anything that would allow them to access information that would be helpful in the process of the reunification services. [] [Fathers] medical information is private. And he has the responsibility to provide that information to the social workers so that they can incorporate that in their services to him. [] The social workers, it would be inappropriate for them to attempt to obtain medical information about [father] that does not come from him and is not a part of what he has provided to them through his doctors. [] So the argument that reasonable services were not provided because the social workers were not diligent enough in exploring with [father] what his medical condition was and tailoring a case plan to fit his medical condition, thats not what reasonable services are. [] . . . [] And if there are specific problems that the parent has, that the parent needs help with in order to follow through on those services that are designed to reunify the parent with the child, then its up to the parent to provide that information to the social worker. [] [Fathers] failure to do that does not create no reasonable services on the part of the department of social services.

Substantial evidence in the record supports these findings. During the entire period of time that this family received voluntary services, from August of 2005 through January of 2006, the father made no attempts to contact the social worker, and aside from one visit with his newborn son, did not participate in any of the offered services. The mother, not the father, initially informed the social worker that father had a brain tumor and suffered from seizures and that this would limit his participation in services. However, no further information was provided to the social worker. The father avoided talking to the social worker during a home visit. The mother repeatedly told the social worker that the father was out of the picture.

When the court took jurisdiction over the children in March of 2006, the fathers whereabouts were unknown and he was in violation of his probation conditions. The mother told the social worker that she would get messages to the father; however the father did not contact the social worker when asked to do so. The social worker reminded the father of the disposition hearing in April of 2006, but he failed to appear. The court ordered services for him and the social worker explained the importance of complying in a timely manner. He indicated an understanding of the plan and a willingness to cooperate. At no time did the father tell the social worker that he could not engage in services because of a medical problem.

The father failed to get regular drug testing as ordered by the court. He did not participate in a drug assessment, as the court had ordered. He did not submit attendance sheets from substance abuse meetings. And he was dropped from his parenting class and his batterers class for lack of attendance. At no time did he contact any of the providers of these services to explain that he could not participate because of a medical condition, or to ask for special assistance. The extent of the record on this was one note from a parenting instructor stating that the father had arrived late with the explanation that the door to the building was locked (it was not locked), and that he laid his head down during most of the class [stating] that he had been having seizures that morning. He was dropped from the class because he missed three out of six sessions.

Father maintains that he informed the social worker that his medical condition prevented him from participating in the services. The social worker testified that at a case plan review, the father told her that he had a seizure disorder and that he was receiving treatment for it. But the father did not explain to the social worker the nature of his condition and how it would keep him from participating in services such as drug testing and maintaining regular contact with the social worker. And he did not give the social worker any information regarding his medical history, medications, or health providers that could enable the social worker to arrange for assistance for him. He did not ask the social worker for help in dealing with his condition until January of 2007, after he had been released from Elmwood and the reunification period had run, at which time he informed the social worker that he had a bipolar disorder and needed additional medication. At that time the social worker made a referral for him to county mental health services.

This record supports the courts findings that the social worker was never provided reliable information regarding any medical or mental health issue that the father might have, so that services could be tailored to assist him. Rather the agency was informed variously that the father had seizures, had a brain tumor, had memory problems, or had a bipolar disorder. At the contested six-month hearing, the father testified that he had brain damage in my motion center. He claimed that he had been on the wrong medication during the reunification period, which had been ineffective in treating his seizures. However, he did not inform the social worker what medication he was on or who his prescribing doctor was. Nor did he ever seek the agencys assistance with these issues, until the very end of the reunification period. Without information regarding the nature of the fathers difficulties, the agency could not develop and implement a service plan tailored to meet his particular needs. Under the circumstances, the services that were provided were reasonable.

B. Services During Incarceration

The father next argues that the agency did not provide reasonable and adequate services because the social worker did not maintain regular contact with him while he was incarcerated. He contends that when a parent is incarcerated during the reunification period, the agency has a duty to contact the facility, to find out what services are available and to request that the relevant services be provided to the parent. (See Mark N. v. Superior Court (1998) 60 Cal.App.4th 996.) He points out that here the social worker was informed that he had been arrested on July 17, 2006, but did not visit him at Elmwood until September 11, 2006, and only visited him one other time, on October 31, 2006. Furthermore, the agency did not make any inquiry of the facility as to what services were available to him while incarcerated. Father contends that it is unreasonable to delegate to the parent the responsibility for determining what services are available in prison. (See In re Monica C. (1995) 31 Cal.App.4th 296, 308.) Requiring him to do so, he argues, casts doubt on the agencys good faith because the agency has an affirmative obligation to provide services. (Ibid.)

The social worker testified that when she visited the father at Elmwood in September of 2006, she took the case plan with her and went over the services with the father and asked whether any of the services were available. As to each of the services, he responded that they were not available to him. The social worker visited again the following month and his status had not changed. The father testified that he was not able to participate in services at Elmwood because he was in lock down the whole time. Although he informed the social worker upon his release that this was because of his seizure disorder, the social worker contacted Elmwood and was told that the fathers protective custody status there was not due to any medical or mental health issues. Thus, although the social worker visited father only twice in five months, it does not appear that any additional visits or contact by the agency would have made a difference in services being provided to him, since his protective custody status prevented him from receiving services.

Furthermore, this case is distinguishable from Mark N. v. Superior Court, supra, 60 Cal.App.4th 996, where the father was incarcerated before any referrals for services were made. The court in Mark N. concluded that there was no substantial evidence that reunification services were provided to the father at any point during the reunification period. Similarly, in Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, the father was incarcerated when the child was removed from the mothers custody, and the social worker never reviewed his plan with him or gave him any advice about programs. Here, on the other hand, the agency provided an array of services for the father for the first three months of a six-month reunification period prior to his being arrested and incarcerated. The father could have completed the six-week parenting program prior to his incarceration, had he attended the classes. His incarceration thus did not prevent him from completing this program. Furthermore, his incarceration on July 17, 2006, did not prevent him from complying with court-ordered drug tests up to that time. He tested only once after the court ordered twice-weekly drug tests at disposition on April 12, 2006.

Under all of the circumstances, we do not find that the social workers failure to inquire about services available to the father at Elmwood, or to visit the father more than two times in jail, amounted to a failure to provide reasonable reunification services.

DISPOSITION

The fathers petition for an extraordinary writ is denied.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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Mcadams, J.

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duffy, J.

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

[2] The Indian Child Welfare Act (25 U.S.C. 1901, et seq.).