KEVIN v. SUPERIOR COURT OF SAN DIEGO COUNTY








Filed 12/10/10; pub. order 1/6/11 (see end of opn.)








COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KEVIN R., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D058003 (San Diego County Super. Ct. No. EJ3133)
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

STORY CONTINUE FROM PART I….


III
TERMINATION OF REUNIFICATION SERVICES
Kevin contends the juvenile court erred in finding there was no substantial probability of returning A.R. to his custody by the 12-month review date. He argues the court's finding was based solely on speculation the parole officer would not modify parole conditions to permit him to have additional visitation or custody of A.R. Kevin also contends the court erred when it found that he received reasonable reunification services. He further argues his due process rights were violated when the court allowed his parole condition to function as an absolute bar to family reunification.
A

Substantial Evidence Supports the Finding There Is No Substantial Probability of Return

If the child is not returned to parental custody at the six-month review hearing and is under three years of age, the court may set a section 366.26 hearing if it finds by clear and convincing evidence the parent failed to participate regularly and make substantial progress in a court-ordered treatment plan. (§ 366.21, subd. (e).) If, however, the court finds there is a substantial probability the child may be returned to his or her parent within six months or that reasonable services have not been provided, the court is required to continue the case to the 12-month permanency hearing. (Ibid.)
We review an order terminating reunification services to determine if it is supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) In making this determination, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Kevin does not challenge the juvenile court's finding he failed to participate regularly and make substantial progress in his court-ordered treatment plan. (§ 366.21, subd. (e).) Instead, he focuses on the court's obligation to continue services if it finds there is a substantial probability the child may be returned to his or her parent within six months or that reasonable services have not been provided. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846.)
Kevin contends the court's finding that there was no substantial probability of returning A.R. to his custody was based on the social worker's unsworn statement that the parole officer would not permit any further modifications of the limited visitation order. He argues the social worker's statement was speculative and does not constitute substantial evidence.
At the pretrial conference hearing in April 2010, the social worker stated, "When I spoke to the parole officer he stated that he only made that modification just because it was going to be held open and supervised by staff only, but that no further modifications are going to be able to be done. The no-contact order was not going to be able to get lifted." The transcript of the pretrial conference was admitted in evidence at the six-month review hearing. The court's remarks indicated that it considered the social worker's statement in determining whether there was a substantial probability of return by the 12-month review date.^[1]
The social worker's hearsay statement was not corroborated. Mere uncorroborated hearsay does not constitute substantial evidence. (In re Lucero L. (2000) 22 Cal.4th 1227, 1243.) However, the record contains substantial evidence other than the social worker's unsworn statement to support the finding there is not a substantial probability of return. By the time of the pretrial conference hearing, Kevin had not completed a parenting class. Moreover, he did not demonstrate an understanding of basic child care, and relied on others to tell him what to do when A.R. cried. Kevin's therapist stated he did not believe that Kevin was reoffending, but did not state he believed Kevin would be able to safely care for a child within two months' time. Kevin lived out of his car during part of the review period. There is no evidence his living circumstances were, or would be, sufficient to offer a safe and stable home to A.R. by the 12-month hearing date.
In addition, the record permits the reasonable inference that even if Kevin were able to obtain a further modification of his parole conditions, the court could not safely return A.R. to his custody by the date of the 12-month review, which was two months after the date of the six-month review hearing. Kevin's contact with A.R. was limited to one and one-half hours of supervised visitation each week. In view of Kevin's status as a convicted sex offender, A.R.'s best interests would require a substantial period of increased supervised visitation, a demonstration of adequate parenting skills and positive reports from sexual offender therapy before unsupervised visitation could be deemed safe for the child. (§ 362.1, subd. (a)(1)(B) [no visitation order shall jeopardize the safety of the child]; see § 300.2 [the purpose of dependency proceedings is to provide maximum safety and protection for abused and neglected children].)
We conclude there is substantial evidence to support the court's finding there was not a substantial probability of return to parental custody by the 12-month review date.
B

There Is Substantial Evidence to Support the Reasonable Services Finding

Kevin contends the court erred when it found that the Agency offered or provided reasonable reunification services to him. He argues the social worker failed to assist him to overcome the fundamental barrier to reunification—the parole condition restricting contact with A.R.—and compounded the error when she erroneously suspended visitation for two months. Kevin contends if he had had a lengthy period of consistent, appropriate visitation, the court may not have terminated reunification services at the six-month review hearing.
Family reunification services play a critical role in dependency proceedings. (§ 361.5; In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Joshua M. (1998) 66 Cal.App.4th 458; see 42 U.S.C. § 629a(a)(7).) Visitation between a dependent child and his or her parent is an essential component of a family reunification plan, even if actual physical custody is not the outcome of the proceedings. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.)
"The adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) To support a finding reasonable services were offered or provided, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
Under A.R.'s case plan, the social worker had the specific responsibility to refer Kevin to counseling and educational programs consistent with his individual needs for sexual abuse counseling and parenting education. The case plan also stated the social worker would make visitation arrangements only if the parole officer lifted the no-contact order. Beyond these case specific responsibilities, the Agency has the burden to maintain reasonable contact with the parent and assist the parent if compliance with his or her case plan proves difficult. (In re Riva M., supra, 235 Cal.App.3d at p. 404; Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1165; see also §§ 361.5, subd. (a), 366.21, subd. (g)(1) & (g)(3); 42 U.S.C. § 629a(a)(7).)
Kevin argues that to facilitate visitation, the social worker had the obligation to assist him to obtain a modification of his parole conditions. He does not support his argument with specific citation to authority, nor does he clearly state in his briefing what he expected the social worker to do with respect to his parole conditions. As we discussed in Part I, ante, a parolee may request a modification of a parole condition by petitioning the Board for reconsideration and/or by filing a habeas petition in the appropriate court. (Pen. Code, §§ 1473, 5077; People v. Villa, supra, 45 Cal.4th at pp. 1069-1070.) The procedures for modifying conditions of parole are well established. A social worker is not a parent's criminal defense attorney and does not have the obligation to intercede in the process of modifying parole conditions on the parent's behalf. At the same time, a social worker may not interfere with a parent's right to seek a modification of a parole condition.
Here, the record shows that Kevin was aware of his responsibility to request a modification of his parole conditions before the detention hearing. An Agency social worker contacted Kevin's parole officer on August 11, 2009, the same day the Agency detained A.R. in protective custody. On August 12, Kevin informed the investigative social worker he had talked with his parole officer and the parole officer had told him he had to go to court to modify the probation condition. On August 13, Kevin told another social worker he was going to petition the court for permission to visit his daughter. In November, the social worker referred Kevin to parenting classes after he inquired about getting his parole condition modified.
The record shows that an Agency social worker was in contact with Kevin's parole officer from the beginning of the case, knew that Kevin was aware of his obligation to obtain a modification of the parole condition if he wished to visit A.R., was informed by Kevin that he was proceeding with a modification and referred Kevin to appropriate services when he called for assistance. Beyond that, the record is silent about the parole modification process and any reason for the six-month delay in securing the modification. Kevin's assertion he would have promptly obtained visitation with A.R. had the social worker helped him to obtain a modification from his parole officer is purely speculative.
Kevin also contends he did not receive reasonable reunification services because the social worker suspended his visitation with A.R. in May and June 2010. The Agency concedes this error but argues the court's reasonable services finding is supported by substantial evidence.
"The 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.)
Kevin was a convicted sexual offender whose contact with his daughter was limited by his conditions of parole. Although the social worker erred when she suspended visitation, because of the delay in holding the contested six-month review hearing, Kevin had five more weeks of visitation with A.R. He received services commensurate with his case plan for approximately 10 months. On this record, Kevin cannot show the court erred when it determined that services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)
C
The Court Did Not Terminate Kevin's Reunification Services
Solely on the Basis of His Parole Condition

Kevin contends the court violated his due process rights when it terminated reunification services solely on the basis of a "boilerplate" parole condition unrelated to his offense. Kevin insists the parole condition prohibiting contact with children and limiting visitation with A.R. is not remotely related to the nature of his sexual offense at age 19 with a 13-year-old girl.
As we explained in Part III.A, ante, the record permits the reasonable inference the court did not terminate Kevin's reunification services solely on the basis of the parole condition restricting his contact with A.R. Therefore, his argument fails in the premise. Further, we see no reason why the juvenile court cannot take into consideration a parolee parent's status and parole conditions when fashioning orders in the best interests of his or her child. (See § 300.2 [the purpose of dependency proceedings is to provide maximum safety and protection for abused and neglected children]; § 362.1, subd. (a)(1)(A) [visitation must be consistent with the well-being of the child]; § 362.1, subd. (a)(1)(B) [no visitation order may jeopardize the safety of the child].)
With respect to Kevin's argument that the termination of reunification services violated his due process rights because the parole condition restricting his contact with A.R. was unrelated to his offense, the record shows that Kevin was convicted of a sexual offense under Penal Code section 288, subdivision (a), and the Board determined the condition prohibiting contact with children, including his own child, was related to the offense. (Pen. Code, § 3052, [the state may impose any condition reasonably related to parole supervision]; In re E.J., supra, 47 Cal.4th at p. 1283, fn. 10 [state has expansive authority to impose any parole conditions deemed proper, including limitations on the right to travel, to privacy, or to associate with persons of one's choosing].)
We do not have jurisdiction to consider such a challenge, which necessarily would involve factual findings outside the juvenile court record. Moreover, as noted, if a parolee wishes to challenge the lawfulness of a parole condition, including one which restricts contact with one's own daughter, the parolee must do so by seeking a modification through the Board and, if necessary, by filing a habeas petition in a court with original jurisdiction to consider the matter. (Pen. Code, §§ 1473, 5077.) A
rule 8.452 proceeding is not an appropriate proceeding in which to challenge conditions of parole. (See rule 8.452(b) [petition is limited to matters in the record].)
DISPOSITION
The petition is denied. The request for a stay is denied.


HALLER, J.

WE CONCUR:



McCONNELL, P. J.


McDONALD, J.

Filed 1/6/11
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KEVIN R., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D058003 (San Diego County Super. Ct. No. EJ3133) ORDER CERTIFYING OPINION FOR PUBLICATION
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

THE COURT:

The opinion filed December 10, 2010, is ordered certified for publication.

The attorneys of record are:

Children's Law Center of Los Angeles, Martha Matthews and Tyson B. Nelson;

Dependency Legal Group of San Diego, Robert Gulemi and Kelley James, for Petitioner.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Tahra C. Broderson, Deputy County Counsel, for Real Party in Interest.
Dependency Legal Group of San Diego, Tilisha Martin, for minor.

__________________________________
McCONNELL, P.J.


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