Jacklyn S. v. Sup. Ct.

Filed 7/20/06 Jacklyn S. v. Sup. Ct. CA4/1

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Referee. Petitions granted in part, denied in part.

Jaclyn S. and James K. seek writ review of juvenile court orders terminating reunification services regarding their son, Isaiah S., and referring the matter to a Welfare and Institutions Code section 366.26 hearing. (All statutory references are to the Welfare and Institutions Code.) Jaclyn also seeks review of orders terminating her reunification services regarding her daughter, N.S., and referring the matter to a section 366.26 hearing. Both parents contend reasonable reunification services were not provided. We grant James's petition and deny Jaclyn's petition.

FACTUAL AND PROCEDURAL BACKGROUND

On February 23, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b), alleging Jaclyn did not adequately supervise 15-month-old Isaiah in that he had a swollen lip from falling down stairs, a burn on his foot from an iron falling on him and a broken arm from falling off a table. In addition, the petition alleged Isaiah had been exposed to violent confrontations between James and his girlfriend, Lynette E. The Agency also petitioned under section 300, subdivision (j) on behalf of Isaiah's half-sister, two-and-one-half-year-old N., on the basis of Jaclyn's neglect of Isaiah.

Before February 2005, at the time of the petition, Isaiah had been living with Jaclyn, not with James. On February 2, 2005, James took Isaiah to a hospital because Jaclyn had not sought medical attention for him. It was determined that his arm was broken. Jaclyn said her roommate's son might have pushed Isaiah off a table, but she had not noticed any injury. Isaiah also had a three-inch burn scar on his foot. In January, James had taken Isaiah to a doctor because Jaclyn had not obtained medical care and James was concerned the burn wound was infected. Jaclyn explained Isaiah received the burn on his foot when her roommate left an iron on the floor. She admitted she sometimes did not adequately supervise her children, but said she would never intentionally hurt them. Jaclyn and James entered into voluntary services contracts and the Agency placed Isaiah with James. But soon after, James had a domestic violence incident with Lynette and, as a result, he was arrested on a parole violation. The children were taken into protective custody and placed in relatives' homes.

At the jurisdictional and dispositional hearing on May 4, 2005, the court found the allegations of the petitions true and the children dependents of the court. It ordered the parents to comply with their case plans, which included therapy and parenting education. James additionally was required to participate in a domestic violence program.

James was first imprisoned at the Donovan Correctional Facility (Donovan), then in September 2005 moved to Ironwood State Prison (Ironwood) in Blythe. The social worker reported neither counseling nor a domestic violence program were available at the prison. However, James answered all questions appropriately in the prison packet she sent him. He requested visits with Isaiah, but Isaiah's caregivers were reluctant to bring him to the prison or to supervise visits, and in July 2005, Isaiah moved with them to Lake Havasu, Arizona. James's stepmother agreed to supervise visits, but before a court order could be obtained, James was transferred to Ironwood and there was further delay. He was scheduled to be released in February 2006.

The social worker reported Jaclyn was making only minimal progress and not paying full attention to her services. She talked on a cellular telephone during therapy, was inappropriate during visits with the children and missed, or was late to visits. During one visit, she bit Isaiah's finger, leaving teeth marks, and she told N., "I'm glad I don't have to care for you all the time, you're a f . . . ing brat." In addition, she did not notify the Agency when N.'s caregivers left her with inappropriate caregivers and twice cared for N. herself for three days at a time without supervision. She did not apply what she had learned in parenting classes, and the social worker recommended she take another course. Jaclyn's therapist said she was not making progress and was unwilling to take responsibility for what had happened.

The psychologist who conducted a psychological evaluation of Jaclyn in December 2005 suggested it was possible Jaclyn had not benefited from services because she had more serious problems than was first thought and suggested she have a psychiatric evaluation. The psychiatrist who evaluated her in February 2006 opined she did not have a psychiatric condition warranting medication, but had a history of unstable relationships, became easily overwhelmed and her problems were a result of her personality style and immaturity.

In November 2005, the social worker reported Isaiah's placement with relatives in Arizona had been approved through the Interstate Compact for the Placement of Children and she recommended N. be placed there also. In addition, the social worker reported that in November 2005, the caregivers brought Isaiah from Arizona to visit with Jaclyn, but she did not appear.

The six-month review hearing began on November 15, 2005, and concluded on February 27, 2006. The social worker testified she began working on the case in July 2005 and had had contact with Jaclyn, but not with James. She said James had had no visits with Isaiah because Isaiah had moved to Arizona with his caregivers, who refused to take him to the prison because they were worried about his safety. Then, after they agreed to take him, there was delay in obtaining a court order for the step-grandmother to supervise the visitation, and then further delay for the prison to approve her as supervisor. The social worker said James completed parenting and anger and stress management courses in prison, but the prison did not offer therapy or a domestic violence program. She said his February 2006 release date would not allow him enough time to complete therapy or a domestic violence program by the 12-month review hearing. She said she would arrange visitation when James was released from custody.

The social worker said Jaclyn attended therapy for a time, but her therapist said she was not making progress and terminated the sessions.

James testified he had had no visits with Isaiah even though he sent letters and forms to the social worker. He had lived with Isaiah in April and May of 2004, but then did not see him regularly until February 2005, when Isaiah was temporarily placed with him. He said he lost all his contact information when he was moved to Ironwood in September 2005, and the social worker never attempted to reach him there. He said he took advantage of all programs available at the prison and completed parenting and anger and stress management courses.

At the February 2006 hearing, Jaclyn testified she had been participating in therapy during the last month or two, had completed five classes of a parenting program, and had weekly telephone contact with the children.

The court found reasonable services had been provided and the parents had not made substantive progress with their case plans. At the November 2005 hearing, when ordering a psychological evaluation for Jaclyn, it had commented James was unable to complete services because he had placed himself in prison and, if he were dissatisfied with the lack of visitation, he should have notified his counsel. The court terminated services, continued the children in out-of-home placement, and set a section 366.26 hearing.

Jaclyn and James petition for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties participated in oral argument.

DISCUSSION

James and Jaclyn contend they were not provided reasonable services. The Agency claims the parents forfeited their rights to make these arguments. It acknowledges that at the hearing on November 15, 2005, both James and Jaclyn initially argued their services were inadequate, but it maintains that after the hearing was continued to February 27, 2006, to allow for psychological and psychiatric evaluations of Jaclyn, neither parent restated these claims, but asked only for further services in order to reunify.

During argument in November 2005, Jaclyn's counsel stated services were not reasonable primarily because a psychological evaluation of Jaclyn had not been conducted as recommended by Jaclyn's therapist. James's counsel said James participated in as many services as he could in prison, but maintained services were unreasonable because he had not had any visits with Isaiah. The court continued the hearing to allow for evaluations of Jaclyn. After further testimony in February 2006, Jaclyn's counsel indicated the psychological and psychiatric evaluations had shown no extraordinary measures were required for Jaclyn's reunification plan. James's counsel stated James completed as much of his case plan as was available in prison, he had been released, was beginning therapy, and would be starting a domestic violence program that week and the social worker had assured them he would have visitation.

We conclude since James argued during the initial argument that because of the lack of visitation reasonable services were not provided, he has sufficiently preserved the issue for appeal. We are less persuaded that Jaclyn has preserved her claim, but whether or not she has forfeited her argument, she has not shown she was not provided with reasonable services.

In determining the sufficiency of reunification services, the role of the appellate court is to decide, "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Jaclyn contends her services were not tailored to deal with her low intellectual functioning, possible need for medication or problems processing information. After a few weeks of therapy, Jaclyn's therapist suggested she have a psychological evaluation because she seemed "slow." The court ordered psychological testing. Subsequently, a psychiatric evaluation was conducted to determine whether she should be treated with medication. The psychiatrist determined medication was not warranted, but noted Jaclyn had a history of unstable relationships, became easily overwhelmed and her problems were caused mainly by her personality style and immaturity.

Jaclyn was thus provided with the evaluations she sought, and the evaluators concluded she did not have special needs that had not been considered in her reunification plan. Jaclyn has not shown insufficient reunification services. Substantial evidence supports the court's finding reasonable services were provided to her.

James, however, has shown he did not receive reasonable reunification services. Section 361.5, subdivision (e) requires the court to order reasonable services to an incarcerated or institutionalized parent unless the court determines such services would be detrimental to the child. Services are to include, but are not limited to, maintaining contact through collect telephone calls, transportation services where appropriate, and visitation services where appropriate. The statute reflects a public policy favoring development of a family reunification plan even when a parent is incarcerated. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011-1012.) Visitation is an important component of reunification services. A parent's right to the care and custody of his children and his interest in visitation is a serious major concern in dependency proceedings. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) "The absence of visitation will not only prejudice a parent's interests at a section 366.26 hearing, but may 'virtually assure [] the erosion (and termination) of any meaningful relationship' between [parent] and child." (In re Monica C. (1994) 31 Cal.App.4th 296, 307.)

The court ordered James to have reasonable, supervised visitation consistent with Isaiah's age and the "rules of [the] institution." The case plan states visitation between the parents and the children "will be as ordered by the court." However, the Agency did not sufficiently work toward complying with the court's order.

James was in custody in jail and then at Donovan from the time Isaiah was detained in February 2005. He was later moved to Ironwood. No visits were scheduled from February until September 2005, seven months after Isaiah had been detained, and the September visit never took place, the social worker reporting Isaiah's caregivers had moved to Arizona in July, were unwilling to supervise the visitation, and were concerned about Isaiah's wellbeing at the prison. Although the paternal step-grandmother said she would supervise visitation, officials at Donavan did not allow this. The court ordered the step-grandmother be allowed to supervise visits, but there were further delays and no visitation ever took place at Donovan or Ironwood.

In our view, the Agency's attempts to facilitate visitation were insufficient. Although there were understandable difficulties because James was incarcerated, a full year passed without any visitation between James and his son. At the time of the hearing on February 26, 2006, James had been released and James's counsel indicated he still had not had a visit. The court stated the visitation order should be followed and counsel reported the social worker had assured them there would be visitation.

James consistently requested visitation with Isaiah. He was not required to further complain about the lack of visits to require the Agency to fulfill its obligation to provide them. (See Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1014.) In In re Mark N., the father of a dependent child was imprisoned and ordered to participate in drug abuse counseling, a domestic violence course and visitation. (Id. at p. 1003.) He was unable to complete any of his case plan because its components were not available during his incarceration, and the court terminated services. (Id. pp. 1007-1008.) The reviewing court held he had not received reasonable services because the social worker had made little effort to maintain contact with him and did not explore alternatives to help him meet the requirements of his case plan. (Id. at pp. 1012-1013.)

Here, the situation was not as egregious as the circumstances in In re Mark N. The social worker sent James a prison packet, which he completed, James attended an anger and stress management course and, even though no visits ever occurred, some attempts were made to provide visitation. However, because James's first visit was not scheduled until seven months after Isaiah was detained, that visit never took place, and no visits were provided after James was transferred to another prison, resulting in him having no visits at all, we conclude he did not receive reasonable reunification services. His petition must be granted.

DISPOSITION

Let a writ of mandate issue directing to juvenile court to vacate the orders of February 27, 2006, terminating James's reunification services and setting a section 366.26 hearing as to Isaiah. The court is directed to order six more months of reunification services for James. In all other respects the petitions are denied. This opinion is final as to this court 10 days after the filing date. (Cal. Rules of Court, rule 24(b), (c).) The stay issued by this court on June 15, 2006, is vacated.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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