Arturo B. v. Sup. Ct.

Filed 7/26/07 Arturo B. v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, John C. Gastelum, Judge. Petition denied.

Lawrence A. Aufill for Petitioner.

No Appearance for Respondent.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsels, for Real Party in Interest.

Pursuant to California Rules of Court, rule 8.452, Arturo B., seeks review of the order scheduling a permanency planning hearing for his son, Jermaine B. (Welf. & Inst. Code,  366.26.)[1] Due to his criminal record, Arturo was deported to Mexico before Jermaine was detained. Arturo has remained in Mexico throughout these proceedings, has outstanding arrest warrants in the United States, and has no intention of returning. Although Arturo participated in services in Mexico, including counseling, parenting, and drug testing, he has had no visits with the child and has no parental relationship with him. Child welfare authorities in Mexico eventually found Arturo to be an inappropriate placement for Jermaine. In this proceeding, Arturo contends: (1) there is insufficient evidence to support the juvenile courts detriment finding; and (2) services were not reasonable because the Orange County Social Services Agency (SSA) should have transported Jermaine to Mexico for visits. We find no error and deny the petition.

FACTS

Detention

Two-year-old Jermaine was taken into protective custody on September 29, 2005. He was found wandering alone and crying in an alley behind his residence wearing only a diaper. He was filthy and had scratches on his body. A search of the residence found his guardian asleep. The apartment was filthy, infested with roaches, abounding with spoiled food on the table and countertops, and there was no food or diapers for him.

Jermaines mother, Johanna Q., had an unresolved substance abuse problem and a lengthy history of drug-related arrests.[2] Two of her older children, seven-year-old Ericka Q. and five-year-old Jose Q., had already been subjects of dependency proceedings. Ericka had reunified with Johanna, but lived with the maternal grandparents. Parental rights to Jose were terminated and he was adopted.

At the time of Jermaines detention, Arturos whereabouts were unknown. Johanna advised social workers Arturo was in Mexico, but she did not have an address or telephone number for him, and she had not seen Arturo since Jermaine was born. Johanna and Arturo had another child, three-year-old Arturo B., Jr., who lived with Johannas aunt. A paternal aunt, Margot B., was identified as a possible relative placement for Jermaine.

The petition alleged a b count as to both parents ( 300, subd. (b) [failure to protect]), and a j count as to Johanna ( 300, subd. (j) [abuse of sibling]). At the detention hearing on October 3 and 4, 2005, Jermaine was ordered to remain out of parental custody.

Detention to Jurisdiction Reporting Period

On October 24, 2005, SSA reported Jermaine was at Orangewood Childrens Home. The social worker had contacted the paternal aunt, Margot, about possible placement. Although she was interested at first, she declined placement. Up until that time, Margot had very little contact with Jermaine or his older brother, Arturo, Jr. But, at Margots request, SSA authorized her to have visits with Jermaine.

Margot reported Arturo lived in Mexico, and she had not heard from him for several months. Arturo, who had a criminal history in the United States, had no plan to return because he had outstanding arrest warrants. Arturos criminal record included arrests for possession of a loaded weapon and burglary. Margot told the social worker she would attempt to contact Arturo and advise him of the situation.

On November 15, 2005, SSA reported Jermaine had been placed in a foster home in late October. Although he was adjusting well, he had begun to exhibit some strange behaviors pre-indicative of something else. The something else eventually became allegations of physical and sexual abuse by the maternal grandfather. Jermaine had severe dental decay and had problems with excessive eating, to the point of vomiting.

Arturos whereabouts were still unknown, but in mid-December, Johanna told the social worker he was living in Michoacan, Mexico. Johanna now claimed she had seen Arturo since the time of Jermaines birth, and Arturo had provided some financial support for her and Jermaine. Johanna was seven-months pregnant with Arturos child, conceived when she had gone to visit him in Mexico. Johanna said her and Arturos other son, Arturo, Jr., was also living in Michoacan with the paternal grandmother. Johanna said Arturo was due to arrive soon in the United States and he wanted custody of Jermaine. He wanted Johanna to bring Arturo, Jr., back to the United States from Mexico and they would all live together and work on being a family.

By the time of the jurisdiction and disposition hearing on January 23, 2006, Johanna said Arturo no longer intended to come to the United States. He was going to remain in Mexico to care for his ill mother. Johanna did not have a telephone number for him. Arturo was not present at the hearing. Johanna pled no contest to the allegations of the petition. After declaring Jermaine a dependent child, and ordering he remain out of parental custody, the juvenile court approved a reunification service plan for Johanna. A six-month review hearing was set for May 25, 2006.

Disposition to Six-Month Review Reporting Period

On March 5, 2006, Jermaine was moved to the foster home of Mario and Rosa J. because of the prior foster mothers chronic illness. Johanna had given birth to a baby girl, Kenya, who was immediately taken into protective custody and placed in the same foster home.[3] Jermaine adjusted well to his new placement. The foster parents described Jermaine as well-behaved, sweet, respectful[,] and obedient. If reunification was not successful, they were willing to adopt Jermaine.

On May 18, 2006, Johanna provided the social worker with a telephone number and address for Arturo in Mexico. Johanna said she had not given the social worker information about Arturo earlier because she did not want Arturo to know the children had been removed from her. She said Arturo wanted custody of his children. The social worker sent a letter to Arturo on May 24, 2006. The six-month review hearing was continued.

On May 31, the social worker called Arturo in Michoacan, Mexico. He wanted reunification services and said he would attend the next court hearing. Jermaine was very happy and well-behaved in the foster home, but resisted going to visits with Johanna. Sometimes the visits went well, and sometimes Jermaine threw tantrums during and after visits.

On June 13, 2006, the juvenile court appointed counsel to represent Arturo, and the six-month review hearing was continued to June 24. In July, Arturo contacted the social worker and told him he would not be coming to the United States because of outstanding arrest warrants. He wanted Jermaine placed with his sister, Margot. On August 2, Margot contacted the social worker indicating she was now interested in having Jermaine placed with her.

When the six-month review hearing took place on August 30, 2006, the juvenile court ordered Margot be reassessed for placement and Arturo get a referral to DI[F], the child welfare authorities in Mexico. A case review hearing was set for September 6, and a 12‑month review hearing was set for November 28, 2006.

Six-Month Review to Case Review Reporting Period

In September 2006, SSA reported Margot and her husband had been cleared for possible placement. Arturo informed the social worker he lived in Michoacan, Mexico, in a two-bedroom house with his mother, sister, and nephew. Although he had several arrests in, and was deported from the United States, since returning to Mexico in June 2005, he had no arrests. He would not be returning to the United States. Arturo denied his other son, Arturo, Jr., was living with him. He had sent the child back to Johanna, but did not know if the child was living with her or where exactly he was.

At the September 6 review hearing, Arturos counsel stipulated to approval of a service plan for Arturo. The service plan included Arturos participation in counseling and parent education programs. Visitation was to be arranged [s]hould [Arturo] come to the Orange County area[.] Arturo was to have monitored telephone calls with Jermaine.

Case Review to 12-Month/18-Month Review Reporting Period

In its first report for the November 28, 2006, 12-month review hearing, SSA recommended termination of services as to Johanna, but another six months of services for Arturo. Jermaine and Kenya were thriving in their foster placement. Johanna admitted she had misled social workers about Arturo, Jr.s, whereabouts so he would not be declared a dependent child.

Arturo had contacted the social worker and gave contact information for the DIF in Michoacan so he could commence his services. He had enrolled in parenting classes and begun counseling, and was cooperative with both. Arturo had taken drugs tests; all were negative. The DIF social worker was in the process of conducting a home assessment on Arturo. The SSA social worker believed Arturo had demonstrated he was interested in reunification with Jermaine, by virtue of his participation in services and consistently calling the child once he was given a telephone number for him. In the meantime, Arturo still wanted Jermaine placed with his sister, Margot, but the social worker was reluctant to changing placement because Jermaine was very stable and happy in the foster home and had no prior relationship with Margot. The 12-month review was continued to January 29, 2007, and SSA was again ordered to reassess [Margot] for possible placement.

On January 29, SSA reported it had received communications from Arturos psychologist in Mexico. Arturo was progressing in therapy and parenting classes. A home evaluation was underway. The psychologist believed Arturo needed to continue therapy, but was comfortable with the children being placed with Arturo. He told Arturo to arrange childcare and other details and obtain adequate employment to support the children.

Arturo told the SSA social worker his first preference was for Jermaine to be placed with his sister, Margot, but if that was not possible, he wanted Jermaine sent to him in Mexico, where he intended to have another of his sisters care for him. Jermaine continued to be very happy in the foster home. He behaved badly at visits with his mother. He had started having visits with Margot and her family. The 12-month review hearing was continued to March 1, 2007.

On March 1, SSA reported Jermaine had begun weekend visits with Margots family in January that initially went well. But in late February, Margot said she believed Jermaine was not ready to be placed in her home. Jermaine expressed a desire to be only with his foster parents and did not want to go to Margots. He started behaving badly during visits and wetting his pants when he was with Margot and her family. Jermaine was not particularly interested in talking to Arturo on the telephone. The 12-month review hearing was continued to March 29.

On March 29, SSA reported Jermaine was very attached to the foster parents and responded negatively whenever he was separated from them. He continued to have visits with Margots family, but he resisted going to see them. His behavioral problems, tantrums, and wetting his pants, when he went to visits with Margots family, were escalating. He was terrified of being abandoned by the foster parents. Margots husband indicated he was not particularly supportive of Jermaine maintaining a relationship with his sister, Kenya. The 12-month review hearing was continued to April 10.

In its April 10 report, SSA changed its recommendation to terminating services to both parents. The Mexico DIF social worker reported in late March she had not been able to complete a home assessment on Arturo, because he kept giving her different addresses. Jermaines weekend visits with Margot were still not going well. He only wanted to be with the foster parents and his baby sister, Kenya. The social worker explained her desire to place Jermaine with his relatives had driven her decision to begin the pre-placement visits with Margot, but Jermaines increasing emotional distress at those visits caused the social worker to reconsider. The social worker believed the weekend visits were detrimental to Jermaine.

The social worker was also concerned about attempting to place Jermaine with his father or other relatives in Mexico. Jermaine had no relationship with Arturo. And although Arturo had indicated he wanted Jermaine placed with him, he also had told the social worker he would relinquish his parental rights if Jermaine was going to be placed with a paternal relative making the social worker question how much he want[ed] Jermaine. The social worker was also concerned because Arturo had his other child, Arturo, Jr., with him in Mexico, but shipped him back to the United States to live, where Arturo had no plans to come, and did not really seem to know where the child was. Finally, the social worker was concerned that if Arturo reunified with Jermaine, he might send him back to live with Johanna, who had yet to deal with her drug abuse problems. When Arturo contacted Jermaine by telephone, Jermaine did not want to talk to him, and the foster mother reported Jermaine did not seem to know who Arturo was. Although Arturo had been fully participating in services in Mexico, SSA still had no home assessment from the Mexico DIF and, thus, SSA had no way of knowing if Arturo could implement what he had learned. The foster parents were fully committed to adopting Jermaine and his sister, Kenya.

Subsequently, SSA received the DIF home assessment and the DIF believed Arturo was not an appropriate placement for Jermaine. The DIF social worker was largely concerned about Arturos low income (about $80 per week), and because he was single, there was no one to assist with caretaking. Arturo conceded he lacked the resources (financially and emotionally) to care for Jermaine. He believed a better placement would be with his sister, Martha, who lived in Mexico, as she had both the time and financial resources to raise children. Martha had agreed she would take Jermaine, and Arturo would provide whatever financial assistance he could.

In view of the DIFs report, the SSA social worker believed it was apparent Arturo himself was not willing or able to accept responsibility for Jermaine and what he really wanted was to have them placed with one of his sisters. The hearing was continued to April 26.

On April 26, SSA reported weekend visits with Margots family ceased at the familys request in early April. Although the social worker encouraged Margot and her family to continue to call and visit Jermaine, they ceased communicating with or seeing him.

The Hearing

The contested 12-month review hearing began on April 26, 2007, and concluded on May 2. The social worker testified Arturo had completed the parenting and counseling aspects of his service plan, his drug tests were negative, and he called Jermaine once or twice a week. She testified Arturo had not visited Jermaine because he was in Michoacan, Mexico and the case plan called for visitation only if Arturo was in the United States. Even though Arturo had completed his case plan, the social worker recommended terminating services because he has no relationship with Jermaine. Jermaine has said he doesnt remember [him]. He hasnt visited. On cross-examination by Arturos counsel, the social worker said she personally was willing to take Jermaine to Mexico to visit Arturo. She asked once if she could do so, but her supervisor would not approve such a visit. On redirect, the social worker clarified the case plan did not provide for visits in Mexico and it was not SSAs policy to transport children to Mexico for visits. She also testified had she taken Jermaine to Mexico to monitor a visit there, she would in essence be practicing social work in Mexico, which she was not licensed to do.

In closing argument, Arturos counsel argued there was no evidence of any risk of detriment to Jermaine if he were immediately released to Arturo in Mexico. Counsel also argued reasonable services had not been provided because of the lack of visitation. Counsel argued given that Arturo could not legally come to the United States to visit Jermaine, SSA should have made attempts to arrange for visitation in Mexico.

In ruling, the juvenile court noted that due to the passage of time, the hearing was both a 12-month review and an 18-month review. It found a substantial risk of detriment to Jermaine if returned to either of his parents. The court found reasonable services had been provided. Although Arturo had participated in services, the court concluded services have not aided him in his desire to reunify with [Jermaine]. In effect he really has little or no relationship with [Jermaine]. Arturos situation, being deported, was his own fault, not SSAs, and Arturo had made no attempts to return to the United States legally to see his child. The court rejected the suggestion SSA was required to provide visitation with Arturo in Mexico. SSA had no ability to practice social work in Mexico and no ability to monitor visitation there. The court terminated reunification services for both parents and set a permanency planning hearing.

DISCUSSION

1. Detriment Finding

Arturo contends there is insufficient evidence to support the juvenile courts detriment finding. We disagree.

Due to continuances of the 12‑month review hearing, at the time of the April 26, 2007 hearing, at which the challenged referral order was made, 19 months had elapsed since Jermaine was originally removed from parental custody on September 29, 2005. Thus, the hearing must be viewed as an 18‑month permanency review hearing under section 366.22. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1509 (Denny H.).)

Under section 366.22, subdivision (a), at the 18‑month hearing, the court must return the child to parental custody unless it finds by a preponderance of the evidence return would create a substantial risk of detriment to the safety, protection, or physical or emotional well‑being of the child. . . . The failure of the parent . . . to participate regularly and make substantive progress in court‑ordered treatment programs shall be prima facie evidence that return would be detrimental. . . . If the child is not returned to the parent at the 18‑month permanency review hearing, the court must set a permanency planning hearing under section 366.26. ( 366.22, subd. (a).)

We must affirm the juvenile courts detriment finding if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) We are satisfied it is.

Arturo focuses solely on parental unfitness. He argues the petition contained no allegations he personally had ever harmed Jermaine. Arturo points out he successfully completed all requirements of his service plan and the psychologist in Mexico was comfortable with placing Jermaine with him. The only concerns expressed by child welfare authorities in Mexico pertained to Arturos lack of resources to support Jermaine and secure adequate childcare. Arturo suggests these concerns do not justify the detriment finding.

The detriment to which the statute speaks is not solely related to a childs physical well-being; detriment may be based upon a risk of harm to the emotional well‑being of the child as well ( 366.22, subd. (a)). Here, the juvenile courts detriment finding was primarily based on the complete lack of any relationship between Arturo and Jermainean appropriate consideration. Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 555 (Armando L.), is instructive. In that case, substantial evidence supported a detriment finding where, [t]he juvenile court based its decision upon the fact that [the father] made no attempt during the first 13 months of the minors life to become involved with him, and that as a result, he did not come into contact with his son until he was 15 months of age. This fact, coupled with the evidence indicating that the minor was thriving in a secure and loving home, was sufficient to support a finding that giving physical custody of the minor to his father would create a substantial risk of detriment to the minors emotional well-being.

The record demonstrates Arturo and Jermaine were virtually strangers to one another. Jermaine was only two years old when removed from Johannas custody in September 2005. Arturo had been deported back to Mexico as a result of his criminal activity in June 2005, and there is no evidence about his relationship with Arturo prior to then. Since returning to Mexico, Arturo has never seen his son. To his credit, Arturo did telephone Jermaine once he was given a telephone number, but Jermaine was not interested in talking to Arturo and did not seem to even know who Arturo was.

Furthermore, the social worker eventually concluded what Arturo really wanted was to have Jermaine placed with other relatives. Child welfare authorities in Mexico concluded Jermaine should not be placed with Arturo, due to his lack of financial and emotional resources. Arturo agreed he would relinquish his parental rights if Jermaine was being placed with one of his sisters. The social worker surmised Arturo might not really be that interested in parenting Jermaine himself and given his previous lackadaisical attitude about his children, the social worker might not have been far from the markArturo seemed to have no knowledge about the whereabouts or welfare of his older son, Arturo, Jr.

The juvenile court appropriately considered the lack of any relationship between Arturo and Jermaine as contrasted with the very strong bonds between Jermaine, his foster parents, and his sister, Kenya. (Armando L., supra, 36 Cal.App.4th at p. 555.) Jermaine was well adjusted and thriving in his foster home with his sister. There was abundant evidence of Jermaines fear of being separated from his foster parents when taken to visits with the paternal aunt, Margot, and his behavior regressed dramatically when taken from his foster home. Margot eventually asked that visits halt and gave up pursuing any relationship with Jermaine. The court could rightly conclude there was a very real threat of serious emotional harm to Jermaine if he was to be removed from caretakers to whom he was bonded, sent to live in a foreign country, and placed with complete strangers. Arturo attempts to dismiss the social workers concerns accusing SSA of having had no qualms about placing Jermaine with total strangers in the past. Jermaine was at first placed at Orangewood, and then in a different foster home than his current foster placement. Each time, his new caretakers were complete strangers to him. But, the fact prior temporary placements were changed does not negate that in this placement Jermaine is completely adjusted and happy, nor does it negate that he is bonded to his current caretakers and exhibits serious emotional regression when he is moved. The detriment finding is supported by substantial evidence.

2. Reasonable Services

Arturo contends the finding of reasonable services is not supported by substantial evidence. We disagree.

In determining whether substantial evidence supports the juvenile courts finding reasonable services were provided, we review the evidence in a light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the ruling. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

As already noted, by the time the hearing took place, it was an 18-month review. At the 18-month stage, further services are ordinarily not an option which the court may consider. [Citations.] Mandatory services are limited to no more than 18 months. [Citation.] A court may extend the 18-month maximum for reunification efforts only under very limited circumstances, that is, when: no reunification plan was ever developed for the parent [citation]; the court finds reasonable services were not offered [citation]; or the best interests of the child would be served by a continuance [citation] of an 18-month review hearing [citation]. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167, fn. omitted.)

A service plan for Arturo was not adopted until September 6, 2006, because his whereabouts was unknown until that time. During the eight months of services he received, he completed most aspects of his case plan (e.g., parenting education, counseling, and drug testing). He had telephone contact with Jermaine, but no visits because Arturo was in Michoacan, Mexico, and unwilling to return to this country because he risked arrest.

Arturo argues the visitation component of his service plan was unreasonable because it did not require SSA to bring Jermaine to Mexico for visits. But Arturo stipulated to the service plan, which provided for visits to take place if Arturo returned to the Orange County area. (See In re Precious J. (1996) 42 Cal.App.4th 1463, 1476 [parent who consented to terms of service plan could not complain the plan was inadequate].)

As to taking Jermaine to Arturo for visits, the social worker explained it was not SSAs policy to take children to Mexico for visitation. Were SSA to send Jermaine to Mexico for visits, its social worker would have no authority to monitor visits or exert any control over them so as to be able to safeguard Jermaine. Furthermore, Arturo never requested any such visits be arranged.

We recognize that in most cases more services might have been provided, and the services . . . provided are often imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) However, [t]he standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.) The visitation component of the case plan was reasonable under the circumstances. As the juvenile court noted, the lack of visits was not due to any failing on SSAs part. Arturos deportation and inability to come to the United States legally to develop a relationship with his child was his own doing.

DISPOSITION

The petition is denied.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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

[2] Because Johanna is not a party to this writ proceeding, we will not discuss the facts pertaining to her in detail. Suffice it to say, throughout the reunification period, Johanna had many visits with Jermaine, but she fairly consistently missed drug tests, or tested positive for drugs, and largely failed to participate in services.

[3] At the same hearing at which the challenged order setting a permanency planning hearing for Jermaine was made, the juvenile court also conducted the permanency planning hearing for Kenya. It terminated Arturos and Johannas parental rights to Kenya and freed her for adoption. Neither parent has challenged that ruling. Accordingly, we do not discuss facts as they pertain to Kenya or Arturos reunification efforts with her.