Larry S. v. Sup. Ct.

Filed 10/26/06 Larry S. v. Sup. Ct. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; petition for writ of mandate. Albert J. Garcia, Commissioner. Petition denied.

Albert I. Kaufman for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Principal Deputy County Counsel, for Real Party in Interest.

* * * * *

In this petition for extraordinary relief pursuant to California Rules of Court, rule 38.1, Father Larry S. contends that the juvenile court’s order setting a Welfare and Institutions Code section 366.26^[1] permanency planning hearing for his 16-year-old daughter Elana (born April 1990) and the court’s finding that the family had received adequate reunification services were not supported by substantial evidence. He further contends that the court used an erroneous standard of proof.

We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Elana is an only child whose father raised her from birth; her mother died of a drug overdose when she was three years old.

In April 2004, the family came to the attention of the Los Angeles Department of Children and Family Services (DCFS) after Father took Elana to a police station, requesting that she be taken to juvenile hall because she had run away the night before and had been gone all night, she chronically lied, and had very poor grades. A detective took Elana into protective custody when she told him that Father had forcibly cut her hair as punishment, had hit, slapped, and kicked her in the past, had called her abusive names, and had used marijuana and a white-powdered drug.

DCFS held a family group meeting at which it was decided that Elana would spend the weekend with her paternal aunt and uncle, would return home to Father, and she and Father would be provided services through a voluntary family maintenance contract. But at the conclusion of the weekend, Elana refused to go home. DCFS took her into protective custody, placed her with a maternal aunt and uncle, and filed a section 300 petition on her behalf, alleging that Father’s physical discipline and history of substance abuse placed her at risk.

On April 29, 2004, the juvenile court found a prima facie case for detaining Elana, and ordered reunification services. Three weeks later, DCFS provided Father referrals for individual and conjoint counseling, drug testing, and parenting.

Adjudication and Initial Six-Month Review Period

On June 9, 2004, Father, represented by counsel, waived his rights and pled no contest to the petition. The court sustained allegations under section 300, subdivision (b), that he had inappropriately physically disciplined Elana and had a history of past marijuana use. Father stipulated to a case plan that required him to immediately start conjoint counseling; engage in parent education with a particular emphasis on dealing with teenagers; participate in individual counseling that was to address all case issues, particularly anger management and his physical discipline and name-calling; and drug test on demand, with the proviso that he participate in a drug program with random testing and aftercare if any test was positive or missed. The court ordered his visitation to be monitored.

The court ordered individual counseling and immediate conjoint counseling for Elana.

DCFS arranged for Father and Elana to begin conjoint counseling on June 21, 2004. Only a single intake session occurred, because Elana’s aunt and uncle requested that Elana be removed from their home. On July 9, 2004, after numerous relatives declined to offer a home to Elana and no foster home was located near Father, Elana was removed from her aunt and uncle and placed in a foster home some distance away. Father, who was attending parenting education, expressed concern that Elena had received no counseling since her original detention. He asked that she be returned home, with family maintenance services.

On July 14, 2004, the juvenile court ordered that Elana remain in placement and that DCFS arrange conjoint counseling to begin immediately. DCFS made conjoint counseling arrangements at the agency where Father had enrolled in parenting and anger management groups, but sessions were delayed because Father did not commit to a specific time, and when he did, that time slot was already filled. Further delay resulted from Father’s insistence on a PhD therapist, and from his lack of rapport with the therapist he had thought he would like to see. When that therapist did not work out, DCFS arranged for conjoint counseling with a therapist at the agency where Elana had been receiving individual therapy.

On December 9, 2004, the court found that DCFS had provided reasonable services.

Six to 12-Month Review Period

In December 2004, after 11 sessions, Father stopped attending conjoint therapy. He blamed the foster mother’s change of the day and time of the sessions and his lack of benefit from treatment. Father expressed the belief that continuing conjoint treatment was futile, because Elana refused to return home and he believed the court would not order her home over her objection.

By the close of the 12-month status review period in June 2005, Elana appeared to have achieved her individual therapy goals, and was discharged from treatment. Father had completed parenting and anger management classes.

Throughout the review period DCFS encouraged Father to schedule visits with Elana, but visits had not gone well. Father had not visited regularly when visits were monitored because he felt uncomfortable in the presence of an observer; the family’s two unsupervised visits had ended in arguments. Telephone calls between Father and daughter were similarly conflict-ridden. Elana expressed a strong preference for her foster home over her home with Father.

In June 2005, Father began individual therapy and he and Elana began a second round of conjoint counseling with a new therapist. The conjoint counseling ended in October 2005, when Elana refused to continue attending.

On June 8, 2005, the court again found that DCFS had provided reasonable services.

Twelve to 18-Month Review Period

The court continued the section 366.22 hearing several times, and finally held a contested hearing on January 10, 2006. At that hearing, Elana, Father, and one other witness testified, and the court received a DCFS report that recommended that Elana be returned home with family maintenance services.

The court also found that Father was in compliance with the case plan, but that Elana was at substantial risk of detriment if returned to him, and that placement with Elana’s foster family was necessary and appropriate. The court found by clear and convincing evidence that it was unlikely that Elana would be adopted and that no one was willing or able to accept guardianship. It set a review of permanent plan hearing for July 2006 and terminated reunification services. The court again found that DCFS had provided reasonable services.

Setting of the 366.26 Hearing

At the August 8, 2006 section 366.22 permanent plan hearing, DCFS reported that Elana was doing well emotionally, socially and academically and that her foster parents were interested in guardianship, a plan that she supported and DCFS recommended. Elana and Father had had no face-to-face contact since the last hearing, in July 2006.

The court found by a preponderance of the evidence that DCFS had provided reasonable services to Elana, guardianship was the appropriate permanent plan, and the likely date by which guardianship would be finalized would be November 7, 2006. The court set a section 366.26 selection and implementation hearing for that date.

Father filed a timely petition for review under California Rules of Court, rule 38.1, contending that reunification efforts were inadequate, that Elana’s placement with a family of a different religion had hindered reunification, and that the court had failed to apply the clear and convincing evidence standard required to set a section 366.26 hearing.

DISCUSSION

Adequacy of Reunification Services

Father argues that reunification services were inadequate because his unresolved grief at his wife’s death and Elana’s grief at the loss of her mother were never addressed. He contends that individual grief-focused reunification services should be offered, and opines that conjoint treatment exacerbated their estrangement. We disagree.

First, Father waived the issue of the adequacy of reunification services by failing to assert error at the juvenile court level. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.) “As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware. [Citation.]” (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Moreover, the time for appealing the juvenile court’s findings of December 9, 2004, June 6, 2005, and January 10, 2006 that reasonable services had been provided was within 60 days of each order. An order adjudicating a minor a dependent child under section 300 is appealable as a final judgment, and any subsequent order may be appealed as an order after judgment. (In re Timothy N. (1975) 48 Cal.App.3d 862, 867.) An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.)

Finally, apart from the procedural hurdles precluding review of this issue, substantial evidence supports the juvenile court’s finding that the services were reasonable. Services are reasonable if “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.) The services must be designed to eliminate the conditions that led to juvenile court jurisdiction, must be specifically tailored to fit the unique circumstances of the parents, and must put the parents on notice as to what must be accomplished to reunite the family. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Precious J. (1996) 42 Cal.App.4th 1463, 1474.)

A court’s finding that reasonable reunification services have been provided requires clear and convincing evidence at six-month and 12-month review hearings (In re Maria S. (2000) 82 Cal.App.4th 1032, 1039) and a preponderance of the evidence at a section 366.22 hearing. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594.)

On appeal, findings requiring clear and convincing evidence are reviewed for substantial evidence (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881), as are those requiring a preponderance of the evidence. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion. (Ibid.)

In this case, over a 20-month reunification period, the court and DCFS provided Elana and Father with a comprehensive reunification treatment plan. DCFS maintained constant communication with Father, provided him with referrals and made appointments for treatment, encouraged him to visit and facilitated monitored visitation, attempted to find a placement for Elana among extended family members, and assisted in arranging family visits. It is difficult to conceive what else DCFS could have done to assist reunification.

With respect to the role of unresolved grief in Father and Elana’s counseling, the record shows that DCFS specifically identified Elana’s unresolved grief as a treatment issue. The department provided Elana and Father individual and conjoint therapy in which this issue could be addressed. This constitutes reasonable services. (In re Riva M., supra, 235 Cal.App.3d at p. 414.)

Elana’s Placement with a Family of a Different Religion

Father’s contention that Elana’s placement with a family of a different religion contributed to the family’s failure to reunify is waived for not having been addressed in the juvenile court. (In re Richard K., supra, 25 Cal.App.4th at p. 590.)

The record reflects that in mid-July 2005 Father requested a hearing to address Elana’s participation in religious services, informing the court that Elana had been brought up in one faith, and her foster parents, who were of another, insisted that she attend weekly religious services and other religious activities with them. On August 19, 2005, Father sought a hearing related to the issue. But when a hearing was convened to address his concerns, he requested that the court order the matter off calendar. Because he failed to secure a ruling on the issue in the juvenile court, he cannot raise it here.

The Proper Standard of Proof

Lastly, Father, citing sections 366.26 and 366.3, contends that the juvenile court erred by applying the clear and convincing evidence standard rather than the less onerous preponderance of the evidence standard. But the section 366.26 hearing has not yet occurred, and section 366.3, which pertains to an order for a permanent plan of adoption or legal guardianship made at a section 366.26 hearing, is similarly premature.

Moreover, at an 18-month review hearing under section 366.22, if the court determines that a child is not to be returned to a parent or guardian, clear and convincing evidence is necessary in order for the court not to set a section 366.26 hearing. (§ 366.22, subd. (a).) Section 366.22, subdivision (a) provides that the court shall order that a hearing be held pursuant to section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child unless it finds, by clear and convincing evidence that a hearing held under section 366.26 is not in the child’s best interest, because the child is not a proper subject for adoption and has no one willing to accept legal guardianship. (§ 366.22, subd. (a).) In short, the juvenile court applied the proper standard.

DISPOSITION

The petition is denied, and the order to show cause is discharged.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, Acting P. J.

DOI TODD

We concur:

________________________, J. ________________________, J.

ASHMANN-GERST CHAVEZ

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.