Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Mary Dolas, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21, Super. Ct. No. 03CEJ300251
Judith Sanders, Public Defender, for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
Petitioner (father) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son G.B. IV (G.B.). We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and G.B.’s mother, B., have a history of domestic violence and child neglect. They also have an extensive referral and case history with the Department of Children and Family Services (department). They were unable to successfully reunify with three other children, all of whom are in a current permanent plan of adoption. All three children suffered from failure to thrive.
In July 2007, the family came to the department’s attention again when B. left then 17-day-old G.B. in petitioner’s care while she was hospitalized. The department received a referral that petitioner fed B.G. sugar water for two days because he did not have enough baby formula. In addition, petitioner was on parole and not in compliance. Petitioner agreed to participate in voluntary family maintenance services, which required him to complete parenting classes as well as mental health, substance abuse and domestic violence evaluations and recommended treatment.
In November 2007, petitioner successfully completed an inpatient substance abuse treatment program (program), which included classes in parenting and anger management. Upon completing the inpatient portion of the program, he moved into emergency housing with G.B. However, in January and March 2008, petitioner tested positive for alcohol and cocaine respectively. In the interim, he failed to test. Consequently, he was dropped from the program. Petitioner also failed to follow through with recommendations following his mental health assessment and missed several sessions of the batterer’s treatment program he was required to complete. In addition, G.B.’s low weight placed him at the.02 percentile for children his age and he was developmentally delayed. Like his siblings, he was diagnosed with failure to thrive.
On March 18, 2008, after concluding G.B. was no longer safe in petitioner’s care, the department removed then eight-month-old G.B. from petitioner’s physical custody and placed him with his two sisters. In a dependency petition, the department alleged petitioner’s continuing substance abuse and prior neglect of G.B.’s siblings placed G.B. at risk of harm. (§ 300, subds. (b) & (j).) The petition also alleged B.’s neglect of G.B.’s siblings and failure to reunify with them placed G.B. at a similar risk of harm if placed in her custody. (§ 300, subd. (j).)
In late-March 2008, the juvenile court ordered G.B. detained and ordered the department to offer petitioner and B. parenting classes, domestic violence counseling, substance abuse treatment, and random drug testing. The court also ordered reasonable supervised visitation twice a week for both parents.
In early April 2008, petitioner entered inpatient substance abuse treatment but was discharged from the program on May 12, 2008 for fraternizing with female clients. Meanwhile, at the jurisdictional hearing on May 1, 2008, petitioner waived his right to a trial on the allegations in the petition. Consequently, the juvenile court found the allegations true as to petitioner and set his dispositional hearing for May 27, 2008. B., on the other hand, contested the allegation as to her and requested a contested hearing which the court set for June 25, 2008. On May 14, 2008, B. filed notice with the juvenile court that G.B. may have Indian heritage, thus triggering the provisions of the Indian Child Welfare Act (ICWA).
25 U.S.C. § 1901 et seq.
On May 15, 2008, petitioner was scheduled to complete a new substance abuse evaluation but did not show up. On May 17, petitioner was arrested for a parole violation and sent to state prison. Until his arrest, he was participating in twice weekly supervised visits during which he was reportedly affectionate and appropriate with G.B. After he was incarcerated, petitioner did not receive any further visits.
On May 27, 2008, the juvenile court continued the dispositional hearing to June 25, 2008, to allow the department to file its dispositional report and initiate notice under the ICWA. The hearing was set as a combined dispositional/contested jurisdictional hearing (combined hearing). In its dispositional report, the department recommended denying both parents reunification services.
The combined hearing was continued and the contested jurisdictional portion conducted on July 10, 2008. The court found the allegation in the dependency petition true as to B. and set a combined dispositional hearing (hereafter combined hearing) for both parents for August 27, 2008.
In the meantime, G.B. was evaluated by a geneticist who concluded G.B.’s developmental delay and failure to thrive were caused by a genetic syndrome. Also during this time, B. gave birth to a son, T., and named petitioner as the alleged father.
On August 27, 2008, the juvenile court convened the combined hearing and confirmed it for trial on September 11, 2008. On September 11, 2008, the juvenile court signed a protective custody warrant for T. in open court and continued the combined hearing to allow the department to file a dependency petition for T. The combined hearing was continued again and set as a contested hearing in November 2008. In its dispositional report for the November hearing, the department changed its recommendation to deny services to petitioner, having realized there was no statutory basis to deny services.
In early October 2008, petitioner telephoned his caseworker from the correctional facility (facility). During that conversation, the caseworker encouraged petitioner to participate in any of the services offered there. In early November 2008, the caseworker contacted petitioner’s counselor at the facility to determine what services were available to him. The counselor stated the facility offered classes in parenting, anger management and drug awareness. It was the inmate’s responsibility to sign up for the classes and the counselor did not know if petitioner was participating in any of the classes.
On November 6, 2008, the juvenile court conducted the combined hearing and ordered petitioner to participate in parenting classes, domestic violence, substance abuse and mental health evaluations and recommended treatment and random drug testing. The court also denied B. reunification services as to G.B. and set the six-month review hearing as to G.B. and the dispositional hearing as to T. on December 8, 2008.
In its report prepared for the six-month review hearing, the department recommended the court terminate petitioner’s reunification services because in the month following the dispositional hearing, he had not participated in any of the court-ordered services because he was incarcerated.
The six-month review hearing was continued and conducted as a contested hearing in March 2009. Meanwhile, in January 2009, petitioner was released from custody. He contacted his caseworker who reviewed the components of his case plan with him and asked if she could make appointments for his domestic violence and substance abuse assessments. Petitioner stated it would have to wait for the following week because he needed to meet with his parole officer. The caseworker verified petitioner’s address and sent him a letter outlining his services and providing contact information. The caseworker scheduled the assessments in early February 2009 but petitioner did not attend. The caseworker followed up with another letter to petitioner reiterating the information previously provided. Again, petitioner was scheduled for the assessments. Again, he did not attend. Throughout February, petitioner did not attend any of his appointments or request visitation.
In a statement of contested issues, petitioner’s attorney argued the department did not provide petitioner reasonable services following the dispositional hearing because the caseworker did not arrange visitation, inquire as to what services were available at the facility, notify petitioner of the available services, advise him to participate in services or communicate with him.
On March 5, 2009, the juvenile court conducted the contested six-month review hearing as to petitioner and G.B. and the contested dispositional hearing as to T. During, the six-month review phase of the hearing, petitioner testified he did not receive any correspondence from the caseworker. Therefore, he did not know he needed to complete evaluations, enroll in random drug testing or request visitation. He denied that the caseworker gave him any information about services during their telephone conversation in October. However, he stated he participated in substance abuse and fatherhood classes while incarcerated and received certificates.
On cross-examination, petitioner testified he went to the departmental offices on February 27, 2009, to initiate services. He said parole obligations kept him from going sooner.
The caseworker testified visitation was not arranged for petitioner while he was incarcerated or after he contacted the department in late February 2009. However, she stated the department would be willing to make up any missed visits. She further testified G.B. had been diagnosed with a genetic condition and his doctor indicated it would be detrimental to transport him for visitation. However, she could not explain the basis for the doctor’s opinion and stated she was waiting for a letter from the doctor. As to whether petitioner was informed about the services offered at the facility, the caseworker testified the counselor told her he spoke to petitioner about the services. She acknowledged that information was not in her report and stated it was an oversight on her part. She also testified she did not contact petitioner to make sure he was aware of the services offered. However, on cross examination, she testified she encouraged petitioner during their conversation in October to participate in any available services.
The caseworker also testified petitioner enrolled in random drug testing and completed domestic violence and substance abuse evaluations the day before the hearing. As a result of the substance abuse evaluation, petitioner was referred for intensive outpatient substance abuse treatment. He began such a program on February 27, 2009, through parole.
Following argument, the court found the department provided reasonable services but petitioner made no progress toward resolving the problem necessitating G.B.’s removal. The court stated its reasoning as follows. Petitioner was offered services after G.B. was removed. He became aware of and participated in services while incarcerated. Additionally, as soon as petitioner contacted the department upon his release from custody, the department provided him additional services. Petitioner was aware of how to contact the department and access services as he had done so before. The court acknowledged petitioner did not receive visitation while incarcerated, but he delayed in visiting after his release, and he had the ability to make up those services. Further, the court terminated petitioner’s reunification services, denied services for B., and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
I. Scheduling of the Six-Month Review Hearing
Petitioner argues the juvenile court erred in scheduling the six-month review hearing for December 8, 2008, only one month after the dispositional hearing. We disagree.
Section 361.5 governs the provision of reunification services, including their duration. In November 2008, when the juvenile court conducted the dispositional hearing, the pertinent portion of the statute, section 361.5, subdivision (a)(2) calculated reunification services from the date the child entered foster care. The statute provided: “Child welfare services, when provided, shall be provided as follows: [¶] … [¶] (2) For a child who, on the date of the initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care.” (Ibid.) A child is deemed to have entered foster care on the earlier of the jurisdictional hearing or 60 days after the child was initially removed from parental custody. (§ 361.5, subd. (a)(3).)
Since G.B. was removed from petitioner’s custody on March 18, 2008, 60 days later was May 17, 2008. Further, because the jurisdictional hearing was conducted earlier, on May 1, 2008, it marked the day G.B. entered foster care. According to section 361.5, subdivision (a)(2), court-ordered services could not extend beyond November 1, 2008. By setting the six-month review hearing in December 2008, the juvenile court not only complied with the statute but actually provided in excess of six months from the date G.B. entered foster care.
While section 361.5, subdivision (a) limits the duration of reunification services, section 366 mandates periodic review of dependency proceedings and section 361.21 governs the review proceedings. Section 366, subdivision (a)(1) provides: “The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing, until the hearing described in section 366.26 is completed.” (§ 366, subd. (a)(1).) Section 366.21, subdivision (e) governs the six-month review proceedings, which it describes as “the review hearing held six months after the initial dispositional hearing.” (§ 366.21, subd. (e).)
By utilizing different benchmarks for the duration of services (date the child entered foster care) and the periodicity of review (original dispositional hearing), the Legislature created an apparent discrepancy, which was operative in November 2008 when the instant juvenile court issued its dispositional orders. It is this discrepancy to which petitioner seems to be alluding when he argues one month was “insufficient [for him] to learn, adjust and amend his ways.…” In In re Christina A. (2001) 91 Cal.App.4th 1153 (Christina A.), one court of appeal addressed this apparent discrepancy.
In Christina A., the juvenile court continued the dispositional hearing approximately four months after the jurisdictional hearing in order to obtain psychological evaluations for the mother. (Christina A., supra, 91 Cal.App.4th at pp. 1157-1158.) At the dispositional hearing, the juvenile court ordered reunification services and set the six-month review hearing six months later. (Id. at p. 1158.) The minor appealed, arguing the six-month review hearing should have been set within six months of the jurisdictional hearing. (Ibid.) The Christina A. court agreed, reasoning, in part, that the benchmark of the date the child entered foster care was consistent with the statutory purpose of reducing delay in dependency proceedings. (Id. at pp. 1163-1165.) The court concluded the Legislature’s failure to amend the language in section 366.21, subdivision (e), stating the six-month review hearing is to be “‘held six months after the initial dispositional hearing’” was an apparent oversight. (Id. at p. 1164.)
The case petitioner cites, In re Candace P. (1994) 24 Cal.App.4th 1128 (Candace P.) is unavailing. In Candace P., the appellate court had previously issued a writ of mandate raised from an order terminating a mother’s reunification services at a 12-month review hearing. (Id. at pp. 1130-1131.) On remand, the superior court was ordered to conduct a new hearing, continue services, and set the next review hearing six months from the date of the appellate court’s opinion. (Id. at p. 1131.) Instead, the superior court conducted the review hearing five months from the date of the appellate court’s opinion. (Ibid.) On appeal, the question was whether the superior court’s execution of the appellate ruling was a material deviation. (Id. at pp. 1130-1131.) The Candace P. court concluded that it was not and affirmed the judgment. (Id. at p. 1133.) In so doing, the court considered the periodicity of sections 366 and 366.21 and concluded they set outer limits of time within which the review hearing may be conducted but did not preclude conducting it sooner than six months from the prior hearing. (Id. at pp. 1132-1133.) In dicta, the court stated, “It would be error, we have no doubt, for a trial court to order a review hearing after a period substantially shorter than six months.” (Ibid.) However, because Candace P. does not speak to the discrepancy among the aforementioned statutes, it is not germane.
In light of the statutory and case law as it existed in November 2008, we conclude the juvenile court properly set the six-month review hearing six months from the date G.B. entered foster care.
That said, effective January 1, 2009, section 361.5, subdivision (a) was substantively amended such that reunification services for a child like G.B. would be calculated from the dispositional hearing. Subdivision (a)(1)(B) of section 361.5 (formerly subdivision (a)(2)) provides: “Family reunification services, when provided, shall be provided as follows: [¶] … [¶] For a child who, on the date of the initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided during the period of time beginning with the dispositional hearing and ending with the date of the hearing set pursuant to subdivision (e) of section 366.21, unless the child is returned to the home of the parent or guardian.” Subdivision (a) was further amended to require the department to file a section 388 petition to terminate reunification services within six months of the initial dispositional hearing for a child under three years of age when removed. (§ 361.5, subd. (a)(1)(C).)
Petitioner cites, but does not argue, how section 361.5, subdivision (a)(1)(B) renders the juvenile court’s November 2008 order setting the six-month review hearing one month later an error. Had the statute been in effect in November 2008 or were it retroactive, which petitioner does not argue, it would have required the juvenile court to set the six-month review hearing in May 2009. However, such were not the circumstances. Consequently, petitioner’s claim the juvenile court erred in setting the six-month review hearing in December 2008 fails. Further, petitioner does not argue, pursuant to section 361.5, subdivision (a)(1)(B) and (C), that the juvenile court prematurely conducted the six-month review hearing. Consequently, we will not address it.
II. Termination of Reunification Services at the Six-Month Review Hearing
Petitioner argues the department failed to provide reasonable reunification services, including visitation, and the juvenile court failed to consider his incarceration in determining whether he made substantive progress in his court-ordered services. We disagree.
At the six-month review hearing, the juvenile court may schedule a permanency planning hearing where the child, on the date of removal, was under the age of three years, and the court further finds, by clear and convincing evidence, the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).) In assessing the parent’s progress, the court must consider the particular barriers incarcerated parents face in accessing court-ordered services and in maintaining contact with his or her child. (Ibid.) If the court finds the parent was not provided reasonable services, the court must continue services to the 12-month review hearing. (Ibid.)
With respect to his course/counseling-related services, petitioner argues services were not reasonable because the caseworker did not personally tell him what services were available to him in prison. According to the evidence, the caseworker encouraged petitioner to participate in any services offered before she knew what they were, and petitioner’s counselor discussed with him the course offerings. So, petitioner does not argue he did not know what services were available, just that the caseworker did not give him that particular information. That the caseworker did not personally tell him does not render her efforts to assist him unreasonable, especially in light of the fact that he participated in services and, according to his testimony, received several certificates of completion.
What does hint at unreasonable efforts is the fact that the caseworker apparently made no effort to arrange visitation for petitioner during his entire period of incarceration from May 2008 to January 2009. She provided no rationale for not doing so, except a verbal indication, without specificity, from the doctor that it might be detrimental to G.B. What is bothersome about that is petitioner had custody of G.B. before he was removed and regularly visited him until he was incarcerated. However, just as there is no evidence to support the caseworker’s failure to arrange visitation, there is no evidence she was unreasonable in not doing so. Because a juvenile court’s finding is presumed correct, we will uphold it on matters to which the record is silent absent an affirmative showing of error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, we conclude on this record, petitioner was also provided reasonable visitation.
Finally, there is no evidence that the juvenile court did not acknowledge the barriers incarceration posed to petitioner’s ability to access services and visitation nor is there evidence the court held that against petitioner. When the court found petitioner made no progress, it was not because of what he did or did not do while incarcerated, but what he did not do once released. The court specifically commented on the fact that petitioner waited a month after his release to contact the department and request service referrals and visitation.
Given the substantial evidence supporting the juvenile court’s findings petitioner was provided reasonable services but failed to make progress, we affirm the juvenile court’s orders terminating petitioner’s reunification services and setting a section 366.26 hearing to implement a permanent plan for G.B.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.