Vicente A. v. Superior Court
Filed 2/9/07 Vicente A. v. Superior Court CA4/1
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VICENTE A., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D049730 (Super. Ct. No. J516145) |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Julia Kelety, Judge. Petition denied.
Vicente A.[1] seeks writ review of juvenile court orders terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[2] The petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
D.A. was born in Nayarit, Mexico in August 2000 to Vicente and V.L. She had one younger sibling. V.L. became seriously ill and died in January 2005. Approximately seven months after her death, Vicente and his children moved to Tijuana, Mexico, to live with his sister and her family.
Vicente did not have the financial resources to care for D.A. With his family's encouragement, he entrusted custody of D.A. to his nephew, Joel L., and Joel's partner, Elisa S. In a notarized document, Vicente authorized Elisa to make all essential decisions for D.A., including medical care and education, for one year. He also signed a letter consenting to D.A.'s adoption by Joel and Elisa. In August 2005, D.A. moved to San Diego to live with Joel and Elisa.
On January 25, 2006, a neighbor telephoned law enforcement to report she heard a woman and child screaming, and the child was crying and yelling, " no more, no more" in Spanish. On investigation, police officers observed D.A.'s face and head were severely bruised and swollen. Other witnesses reported D.A. previously had other bruises, including two black eyes, but Elisa had explanations for D.A.'s injuries. A comprehensive medical examination revealed bruising and swelling on D.A.'s head, face, neck, torso, vagina, arms, legs and feet, and small lacerations to her lips and gums. She had blood in her urine. An examining physician determined her injuries were nonaccidental.
In a forensic interview, D.A. said Elisa hit her with a belt on all parts of her body and kicked her in the stomach. D.A. also said Vicente hit her and her mother, and he had killed her mother. She did not want to live with Vicente or visit him. Joel reported Vicente treated D.A. badly. He saw Vicente hit D.A. with a belt. In addition to the physical injuries resulting from Elisa's abuse, D.A. had untreated health problems. She required extensive surgery to repair and replace decayed teeth, and physicians had immediate and serious concerns about her health condition, later diagnosed as chronic hepatitis.
On January 27, 2006, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivisions (b) and (g) alleging D.A. had suffered and was at risk of suffering serious physical harm or illness as a result of the unreasonable acts of the child's custodians, and the whereabouts of D.A.'s father were unknown.
After the detention hearing, the Agency located Vicente in Tijuana. He had not seen D.A. since Elisa took her to San Diego eight or nine months earlier. Vicente said he was 62 years old, tired, and in poor health because of heart problems. Initially, he was skeptical of reports his nephew or Elisa had abused D.A. Later, when a social worker visited him in Tijuana and showed him photographs of D.A.'s extensive injuries, Vicente immediately realized D.A. had been abused, and he cried. He told the social worker he wanted to regain custody of D.A.
In April 2006, at the jurisdiction and disposition hearings, the court made a true finding on the petition, removed D.A. from custody of Vicente,[3] and ordered family reunification services. Because of D.A.'s resistance to speaking with or visiting Vicente, the court directed that any contact and visitation occur in a therapeutic setting.
The Agency arranged services for Vicente in Tijuana through the social services agency, Sistema Para El Desarrollo Integral De La Familia (DIF). Vicente did not participate in therapy and stopped attending parenting classes after a few sessions. On several occasions, a social worker made arrangements for Vicente to contact D.A.'s therapist to participate in therapeutic contact with her and to allow visitation when appropriate. Vicente did not contact the therapist. Instead, Vicente telephoned D.A. and told her he was ill and needed her to come home. On another occasion, when Vicente telephoned the foster home, D.A. refused to speak with him. D.A.'s therapist characterized Vicente's remarks as manipulative and inappropriate, and asked Vicente to contact him before any further contact or visitation with D.A. was arranged. Vicente did not comply with the therapist's request.
At the six-month review hearing in October 2005, Vicente acknowledged he had been informed he could contact D.A. through her therapist. He wanted to confront her directly and ask her to come home. Vicente did not want to speak with the therapist because he had a " very bad temper" and he was upset about the court process.
On October 26, 2006, at the contested six-month review hearing, the court found Vicente had only nominal contact with D.A. during the previous six months. The court also determined Vicente did not comply with his case plan and did not make any progress in mitigating the causes necessitating D.A.'s removal from his custody. Based on Vicente's lack of contact with D.A., the court vacated the 12-month review hearing date, terminated reunification services, and set a permanency plan selection and implementation hearing under section 366.26.
DISCUSSION
Vicente contends the court erred when it terminated reunification services and set a permanency plan hearing at the six-month review hearing. He asserts the evidence was insufficient to support the court's finding he had only nominal contact with D.A. during the six-month statutory period. Vicente argues he could not cross the international border to visit D.A. in San Diego, and instead tried to maintain contact by telephone. He posits his one telephone contact with D.A. and his other unsuccessful attempts to contact her at the foster home were sufficient to preclude the application of section 366.21, subdivision (e) and California Rules of Court, rule 5.710(f)(1)(B),[4] and to require the court to continue reunification services to the 12-month review date.
When the sufficiency of the evidence supporting a trial court's findings is challenged on review, the appellate court must review the evidence most favorably to the trial court's rulings, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The petitioner has the burden of showing there is no substantial evidence in support of the trial court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
At the initial disposition hearing, with certain exceptions not relevant here, the juvenile court must provide services designed to reunify the family within a statutory time period. (§ 361.5.) If a child is three years of age or older when removed from parental custody, the statutory time period for reunification " shall not exceed" 12 months.[5] (§ 361.5, subd. (a)(1).) The court is required to review the status of the child every six months after the initial disposition hearing until the dependency matter is resolved. (§ 366, subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009 (Sara M.).) Here, the six-month review hearing was held on October 26, 2006.
Section 366.21, subdivision (e) governs the initial six-month review hearing. At this hearing, unless the court finds by clear and convincing evidence that an exception applies, the court is required to continue to offer reunification services to the parent. (Ibid.; see In re Alanna A. (2005) 135 Cal.App.4th 555, 564.) This statute states in relevant part:[6]
" If the child was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days." (§ 366.21, subd. (e), italics added.)
This exception recognizes that a parent's failure to contact and visit a child for six months is a form of abandonment whether the whereabouts of the parent are known or unknown. (Sara M., supra, 36 Cal.4th at p. 1016.) When the court finds by clear and convincing evidence the parent has failed to contact and visit the child for six months after reunification services have begun, the court has the discretion to terminate reunification services and proceed to a permanency plan selection and implementation hearing under section 366.26. (Sara M., supra, 36 Cal.4th at p. 1017; In re Monique S. (1993) Cal.App.4th 677, 682 (Monique S.); In re Tameka M. (1995) 33 Cal.App.4th 1747, 1754 (Tameka M.); In re Ronald R. (1995) 37 Cal.App.4th 1186, 1992; rule 5.710(f)(1)(B).)
Here, Vicente did not visit D.A. during the statutory period. He implicitly acknowledges his failure to visit D.A. falls within the statutory exception under section 366.21, subdivision (e),[7] but argues he was prevented from visiting her by extraordinary circumstances. Generally, the juvenile court will not terminate reunification services when a parent has tried to comply with his or her case plan but has been prevented from doing so by extraordinary circumstances. (Sara M., supra, 36 Cal.4th at p. 1016; Monique S., supra, 21 Cal.App.4th at pp. 682-683; cf. Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510.)
We are not persuaded by Vicente's argument he could not visit D.A. because he was unable to enter the United States legally. The record shows the Agency on more than one occasion helped Vicente obtain documents to allow him to enter the United States and the Agency was willing to arrange visitation in an area designed for that purpose at the border. To arrange visitation, Vicente was first required to speak with D.A.'s therapist, an action that did not require him to cross the international border. Extraordinary circumstances did not prevent Vicente from visiting D.A. Visitation did not occur because Vicente did not take the necessary steps to establish contact and visitation with D.A. through the therapeutic process ordered by the court.
Vicente also argues his one telephone conversation with D.A. and his unsuccessful attempts to speak with her constitute more than nominal or chance contact sufficient to preclude the application of section 366.26, subdivision (e) and rule 5.710(f)(1)(B).
In Tameka M., this court held that casual or chance contact by a parent with a child during the statutory six-month reunification period does not preclude the application of section 366.21, subdivision (e), and a parent's nominal contact with his or her child is insufficient to overturn the trial court's finding on review. (Tameka M., supra, 33 Cal.App.4th at p. 1754.) Used in this sense, " nominal" means " insignificant." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 841, col. 1.)
Here, the trial court found by clear and convincing evidence that Vicente had only " nominal contact" with D.A. The court reasoned:
" Even though the court was very concerned about [D.A.]'s reluctance for father to have contact, the court was mindful that a parent generally speaking has a right to contact, to have contact with the child. So the court set up a plan for the father to have contact in a protected way with [D.A.] and that is through the therapist. [¶] And yet, even though father admits he had the phone number. Even though he told the caregivers at one point that he would call, he never, never reached out to her in the way provided by the court. . . .
" The bottom line is that, I conclude that father had only nominal contact that does not rise to the level of contact that would justify continuing services to the 12-month date."
The court's reasoning is factually and legally sound. D.A. was physically and emotionally fragile. Vicente's relationship with D.A. was not parental or beneficial in nature. After the dependency process began, Vicente had only one conversation with D.A. in almost eight months. This conversation occurred outside the therapeutic process in violation of court orders. Vicente attempted to manipulate D.A. into meeting his needs and she refused to speak with him again. D.A.'s therapist recommended against further contact or visitation until Vicente discussed the matter with the therapist. Vicente was informed on several occasions of this requirement. He chose not to comply.
This court's observation in Monique S. is applicable here: " There is no purpose served in continuing to offer services where a parent, absent extenuating circumstances, makes no effort to reach out to his or her child for six months in the dependency process." (Monique S., supra, 21 Cal.App.4th at pp. 682-683; Sara M., supra, 36 Cal.4th at p. 1016.) At a minimum, Vicente was required to reach out to D.A. in a manner beneficial to her to facilitate the reunification process. He declined to do so.
In addition, the record shows Vicente ceded custody of D.A. and consented to her adoption by Joel and Elisa. Even were he compelled to transfer custody of D.A. because of his circumstances, as he argues, Vicente did not visit D.A. after August 2005 or adequately monitor her well-being while she was in Joel and Elisa's care. Five-year-old D.A. said, " he gave me away." Considering this history, which allows the court to reasonably infer Vicente intended to abandon D.A., and Vicente's subsequent refusal to comply with the court-ordered visitation plan or to participate in reunification services, we conclude there is sufficient evidence to support the court's finding that Vicente had only nominal contact with D.A. during the statutory period and therefore the continuation of reunification services was not justified. (Monique S., supra, 21 Cal.App.4th at pp. 682-693.)
Substantial evidence supports the finding Vicente did not contact or visit D.A. during the six-month statutory period within the meaning of section 366.21, subdivision (e). (Tameka M., supra, 33 Cal.App.4th at p. 1754.) The court did not err when it terminated reunification services and set a hearing under section 366.26 to select and implement a permanency plan.
DISPOSITION
The petition is denied. The request for a stay is denied.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.
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[1] Although sometimes the record refers to petitioner as Vincente A., his correct name is Vicente A.
[2] Statutory references are to the Welfare and Institutions Code.
[3] In its oral findings, the court removed D.A. from her father's custody. The April 6, 2006 court order erroneously states the " child's custody is removed from MOTHER."
[4] All rule references are to the California Rules of Court.
[5] When the child is under the age of three years, the maximum reunification period is generally six months. (§ 361.5, subd. (a)(2).)
[6] In his brief, Vicente recites section 366.21, subdivision (e) in its entirety. Generally, we find it helpful when an appellate practitioner cites relevant portions of a statute in his or her brief. However, it is not necessary to include lengthy reproductions of easily accessible statutory material in appellate briefs. (See, e.g., rule 8.204.)
[7] We are aware that rule 5.710(f)(1)(B) refers only to contact by a parent with a child. In reaffirming the construction of section 366.21, subdivision (e) to permit the court to terminate reunification services and set the matter for a permanency plan hearing when it finds that a parent has failed to contact and visit the child for the statutory period, the California Supreme Court based its decision in part on the long-standing application of former rule 1460(f)(1)(B). (Sara M., supra, 36 Cal.4th at p. 1017.) Although a long-standing formal rule adopted by the Judicial Council is entitled to a measure of judicial deference, it is not binding on the courts and is invalid if contrary to statute. (Id. at p. 1014.) We believe the use of the word " contact" in rule 5.710(f)(1)(B) is used broadly to include the " contact and visit[ation]" required by section 366.26, subdivision (e).
