Brian W. v. Sup. Ct.

Filed 2/28/07 Brian W. v. Sup. Ct. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

Brian W. (petitioner), the father of B.W. (the minor), seeks an extraordinary writ to vacate the orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.^[1] (Cal. Rules of Court, rule 8.452.) Petitioner contends the juvenile court erred by finding he was provided reasonable reunification services. We agree. Accordingly, we shall issue a peremptory writ of mandate directing the juvenile court to vacate its orders and provide petitioner with additional reunification services.

FACTUAL AND PROCEDURAL BACKGROUND

On March 7, 2006, a petition was filed by the Yolo County Department of Employment and Social Services (the Department) regarding the newborn minor based, in part, on allegations that the minors mother used methamphetamine during her pregnancy and petitioner failed to protect the minor from the mothers conduct.^[2] The detention report noted petitioner had a lengthy criminal record, involving car thefts, burglary, felony evading a peace officer and felony hit and run.

According to the jurisdictional report, petitioner was arrested on April 5, 2006, for drug-related offenses and violating parole. The report contained little additional information regarding petitioner, noting only that his perception of his needs is not known at this time, though in previous conversations with the undersigned [he] has been cooperative and presented as motivated to participate in services. The report did not indicate that any services had been offered to petitioner pending the jurisdictional hearing, although various services had been offered to the minors mother.

Petitioner, who remained in custody, was not transported to the jurisdictional hearing, and the matter was continued. Petitioner had been moved by the date of the next hearing and, again, was not transported for the hearing. The matter was continued to a date in August 2006, after petitioners scheduled release from prison. However, petitioners release date was moved back, and the matter was continued to October 2006.

Petitioner was present at the hearing in October 2006, and reunification services were ordered. Petitioners attorney informed the court that petitioner was scheduled to enter a residential treatment program at the end of the month which, according to the social worker, had been arranged through probation. Due to the amount of time that had transpired since the minors initial removal, the six-month review hearing was scheduled for November 2006, less than one month after the dispositional hearing.

Eight days after the dispositional hearing, and prior to entering residential treatment, petitioner was arrested for possession of a controlled substance and violating probation. In the report prepared for the six-month review hearing, under a section addressing the services that had been provided, the social worker outlined the extensive efforts that had been made to engage the minors mother in services. With regard to petitioner, the report stated: [Petitioner] is currently in custody . . . . [He] has been incarcerated much of the reporting period, and when not incarcerated, he has been difficult to contact, and has not participated in available services. The social worker also reported that petitioner ha[d] not been able to participate due to continued incarceration . . . . The report contained no other information regarding the efforts that had been made to contact petitioner when he was out of custody (for eight days) or the available services that had been offered to him. The social worker recommended termination of services.

A contested six-month review hearing occurred in December 2006. The social worker testified she had met with petitioner only once, in November, while petitioner was in custody. The social worker did not refer petitioner for substance abuse treatment because he had informed her that he had been referred to a program through probation. She had not referred petitioner for counseling or parenting programs, explaining we feel it would be a much more beneficial program for them after theyve gotten their substance abuse issues under control. She acknowledged that petitioner visited the minor while he was out of custody and that there had been no visits while he was in custody.

Petitioner provided the court with documentation that, since his incarceration, he had attended 11 group meetings addressing substance abuse, as well as several NA/AA meetings. The documentation contained the following comment from one of the program facilitators regarding petitioners participation: Client has established an excellent meeting attendance record in the Alcohol/Drug classes. Certificates of Completion have been awarded for three [] Doing Life step study books. Client has openly discussed past dysfunctional patterns and appears ready to confront his substance abuse addiction. If treatment planning were an alternative, client would be an excellent choice for consideration.

Petitioners attorney argued that petitioner had not been provided reasonable services. The juvenile court adopted the social workers findings that reasonable efforts had been made to make it possible for the minor to return home and that petitioner had failed to participate regularly and make substantive progress in his treatment plan. The court ordered services terminated and scheduled a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

DISCUSSION

Petitioner argues it was error for the juvenile court to find that reasonable services had been provided to him. We agree.

Reunification services must be ordered for an incarcerated parent unless the court determines by clear and convincing evidence[] those services would be detrimental to the minor. ( 361.5, subd. (e)(1); In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.) When services have been ordered, [t]he department must preliminarily identify services available to an incarcerated parent. [Citation.] It cannot delegate to an incarcerated parent the responsibility for identifying such services. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011-1012.) [T]he 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 Precious J., supra, 42 Cal.App.4th at pp. 1474-1475.)

The departments employees may not simply conclude that reunification efforts are not feasible on the sole ground the parent is incarcerated. (Mark N. v. Superior Court, supra,

60 Cal.App.4th at pp. 1011-1012.) The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1790.)

At a six-month review hearing, the court must determine whether reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent . . . . ( 366.21, subd. (e).) When the hearing involves a child who was under age three when removed from parental custody, the court may terminate reunification services if the parent has failed to regularly participate and make substantive progress in the case plan. ( 366.21, subd. (e).) However, if reasonable services have not been provided to the parent, the court must continue the matter to the 12-month review hearing. ( 366.21, subd. (e).) Courts may not initiate proceedings to terminate parental rights unless they find adequate reunification services were provided to the parents, even when the parents are incarcerated. (Robin

v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

In reviewing the reasonableness of services, we view the evidence in the light most favorable to the prevailing party. (In re Monica C. (1994) 31 Cal.App.4th 296, 306.)

Petitioner maintains the court erred in finding he had been provided reasonable services. As no services were provided to petitioner, we are compelled to agree.

The minor was detained in March 2006. Although the juvenile court was required to order reunification services to commence as soon as possible when it ordered the minor detained ( 319, subd. (e)), no such order occurred here. Seven months transpired following the minors detention before the dispositional hearing took place, during which time petitioner was not provided any services.

Petitioner fared no better once reunification services were ordered. While focusing considerable efforts on attempting to engage the minors mother in services, the Department invested no time or resources on petitioner. The fact that petitioner was incarcerated for most of this period does not excuse the Departments utter failure to explore available services at petitioners facility and the feasibility of facilitating visitation as well as to maintain contact with petitioner, who had been described as cooperative and present[ing] as motivated to participate in services early in the proceedings. (See Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1013 [no reasonable services when social services agency failed to maintain contact with incarcerated parent and made no effort to determine whether services were available].) Although the social worker testified she had made no referrals for petitioner because the Department felt he needed to complete substance abuse treatment first, once petitioner became incarcerated, it was incumbent on the Department to adjust the reunification plan to meet petitioners changed circumstances. (See id. at p. 1014.) Instead, the Department left it to petitioner to fashion his own case plan while in custody. To petitioners credit, his early efforts in this regard appeared to meet with some success. The Department claims an important part of [petitioners plan] was a residential substance abuse treatment program, and petitioner had been unable to stay out of jail long enough to make any progress. The Department contends that, by becoming incarcerated, petitioner placed himself in a position where it would be very difficult for him to participate in a meaningful plan . . . . Again, the Departments focus is misplaced. A parents conduct while . . . out of custody does not excuse the Department from doing its job, i.e., from providing reasonable reunification services to an incarcerated parent. (In re Precious J., supra, 42 Cal.App.4th at p. 1479.) While petitioners conduct leading to his reincarceration was reprehensible, it was the Departments responsibility to assure petitioner was offered reasonable services whatever his circumstances, until such time as the juvenile court ordered otherwise. (See Ibid.)

Petitioners situation is not unlike the circumstances in Robin v. Superior Court, supra, 33 Cal.App.4th 1158, in which the father was reincarcerated 11 days after the six-month review hearing, after which the social services agency did virtually nothing to facilitate reunification. The appellate court in that case held that the social services agency was not free to hang [the father] out to dry simply because he had committed the cardinal sin of being reincarcerated. (Id. at p. 1167.) The court concluded that, [e]ven assuming he could have done more for himself, the issue is whether the [social services agency] gave him the services to which he was entitled. (Ibid.)

It has often been repeated that, [w]hile use a gun, go to prison may well be an appropriate legal maxim, go to prison, lose your child is not. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.) As petitioner was not provided reasonable services, the juvenile courts orders must be vacated and an additional period of services provided.

DISPOSITION

Let a peremptory writ of mandate issue, directing the juvenile court to vacate its orders terminating petitioners reunification services and scheduling a section 366.26 hearing. The matter is remanded with directions to the juvenile court to order additional reunification services for petitioner.

BLEASE , Acting P. J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] Further section references are to the Welfare and Institutions Code unless otherwise noted.

^[2] Petitioners paternity was established based on a declaration of paternity. (See Fam. Code, 7571, 7611.)