Opinion
E033749.
10-23-2003
In re K.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. D.S., Defendant and Appellant.
Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. William C. Katzenstein, County Counsel, and Julie A. Koons, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minor.
D.S. (Father) appeals from dispositional orders in this juvenile dependency proceeding involving his daughter, K.S. (Minor). Father challenges the juvenile courts failure to order reunification services for him and its order regarding visitation between him and Minor. We affirm.
Minors appointed counsel has advised she supports affirmance of the orders.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Background Facts
Minor was born in July 1996. Father and Minors mother (Mother) were married in October 1996. Father lived with Mother and Minor from July 1996 to March 1997. Father and Mother subsequently separated, and Mother filed for divorce in 2000 or 2002. After separating from Father, Mother gave birth to two more daughters, in 1998 and 2001, and a son in 1999, each by a different father.
B. Dependency Petition
In October 2002, the Riverside County Department of Public Social Services (DPSS) detained Minor and filed a juvenile dependency petition regarding Minor and her two sisters. At the time the petition was filed, Mother and Father were still legally married but were not living together. Minor was living with Mother. The petition alleged Mother and Father had failed to protect Minor and sought a finding of dependency pursuant to Welfare and Institutions Code section 300, subdivision (b).
All further statutory references are to the Welfare and Institutions Code.
Initially and as later amended in January 2003, DPSSs petition alleged Minor had often been left at school after hours; the home was dirty and littered, and there were no sheets on the childrens beds; the children had chronic, untreated lice; Mother had been provided with family maintenance services from January to May 2001 and had failed to benefit from the services; Mother recently had been offered an extensive voluntary service plan but had refused services; and Mother had an extensive history of child protective services referrals and contacts with local law enforcement.
With regard to Father, the petition alleged: Mother and Father had a history of domestic violence; Father was on parole and had an extensive criminal history including assault, domestic violence, and alcohol-related convictions; and Father was not a member of Minors household and had failed to make himself available to provide Minor with adequate food, clothing, shelter, or medical treatment.
On October 22, 2002, the court found probable cause existed for the detention of Minor and ordered her placed with DPSS pending disposition or further order. Minor was placed in a foster home. The court ordered visitation by Mother and Father to be as directed by DPSS.
C. Jurisdictional/Dispositional Hearing
The court held a combined jurisdictional and dispositional hearing on April 15, 2003. In its March 2003 report for the hearing, DPSS recommended that Minor be declared a dependent of the juvenile court and placed with Mother under a plan of family maintenance.
In its previous reports, DPSS had recommended Father receive reunification services. In its March 2003 report, however, DPSS recommended no services be offered to Father. DPSS reported Father had been "charged and convicted on counts of possession of a controlled substance, paraphernalia, assault with a deadly weapon not a firearm, attempted murder and child cruelty" and had served time in prison. According to the report, Father was currently at the Southwest Detention Center in Murrieta.
The court found all of the allegations of the petition, as amended, to be true. It adjudged Minor a dependent child of the court and ordered that Mother retain custody of her subject to the supervision of DPSS. It ordered family maintenance services to be provided to Mother. The court found that reunification services to Father would not be in Minors best interests and therefore ordered no services be provided to him. Finally, it ordered that the Riverside County Sheriffs Department transport Father back to the state correctional institution and that visitation between Father and Minor be in accordance with institution rules. The court also ordered DPSS to reimburse Mother for collect phone calls from jail for Minor.
There is some uncertainty in the record whether Father was incarcerated in prison or jail when these proceedings occurred. Transfer orders prepared by Fathers counsel in December 2002 and April 2003 indicated he was at the California Institution for Men and North Kern State Prison, respectively. DPSS reports in January and March 2003 listed Fathers address as "Southwest Detention Center." Father states in his briefing that he was in jail, not prison.
Father filed this appeal from the dispositional orders in May 2000.
II
DISCUSSION
A. Denial of Reunification Services
Father contends the juvenile court abused its discretion in denying him reunification services. We first consider DPSSs contention that Father waived this claim.
1. Waiver
At the jurisdictional/dispositional hearing, counsel for Father stated: "[W]e understand the Departments recommendation for no services to my client. We are submitting on that." Counsel said nothing further regarding the provision of reunification services to Father and made no contention that Father should receive services.
DPSS correctly notes that "a parent waives his or her right to challenge a juvenile courts order when the parent submits the matter on the social workers recommendation. [Citation.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) "[A] parents submission on the social workers recommendation amounts to an endorsement of the courts issuance of findings and orders in accord with the recommendation. [Citation.]" (Ibid .) Thus, Fathers submission on DPSSs recommendation that no reunification services be provided to him waived his right to challenge the courts failure to order services for him.
However, a reviewing court has discretion to hear waived issues. (In re N. S. (2002) 97 Cal.App.4th 167, 171, fn. 3.) It is appropriate to do so to avoid a contention that trial counsel was ineffective for failing to argue the issue. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154; see Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 748, fn. 5.) Notwithstanding the failure of counsel for Father to argue for reunification services, the court made a determination that services would not be in Minors best interest , and the record is sufficiently developed for us to review the matter meaningfully. We therefore exercise our discretion to do so.
2. Merits
a. Standard of review
Denial of reunification services is reviewed under the substantial evidence test. Under that test, we must determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.)
b. Failure to seek custody
The provision of reunification services to a parent of a dependent child is governed by section 361.5. Subdivision (a) of that section provides generally that "[e]xcept as provided in subdivision (b) . . . whenever a child is removed from a parents or guardians custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs mother and statutorily presumed father or guardians."
"`[T]he purpose of reunification services is to facilitate the return of a dependent child to parental custody. [Citation.]" (In re Erika W. (1994) 28 Cal.App.4th 470, 476, quoting In re Jodi B. (1991) 227 Cal.App.3d 1322, 1326.) In view of that fact, it has been held that reunification services need not be provided to a parent who does not seek custody of the child.
In In re Terry H. (1994) 27 Cal.App.4th 1847, the court held it was not necessary to offer reunification services to a father who had not had custody of the child prior to the dependency proceeding and did not seek to gain custody as a result of the proceeding. The court explained: "The basis of reunification is protecting dependent children by identifying and ameliorating the factors that placed them at risk in the home. Where the risk arose out of the action or inaction of one parent, it makes sense to provide reunification services to that parent. Where the noncustodial parent does not seek custody, there is no need to address any risks that might arise from placement with him. . . . In light of the juvenile dependency systems limited resources, it is rational to provide reunification services for those who want to reunify, and not to spend time and effort on the off chance a parent might want to assume custody at some indefinite future time." (Id. at pp. 1854-1855.)
In Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, the court applied the principles stated in In re Terry H., supra, 27 Cal.App.4th 1847, in affirming the denial of reunification services to an incarcerated father. The father had only lived with the mother and the children sporadically prior to his separation from the mother 18 months before the childrens detention. At the time of the detention, the father was in jail, and at the time of the six- and twelve-month review hearings, he was in prison. At no point during that period did the fathers counsel advise the court he wanted custody of the children. The court held: "Section 361.5 requires the provision of services to parents `for the purpose of facilitating reunification of the family . . . . The provision of services to a noncustodial parent who does not seek custody of the children does not in any way serve this purpose." (Robert L. at p. 628.)
The court in Robert L. v. Superior Court, supra, expressly rejected the fathers argument that since section 361.5 generally requires the provision of reunification services to all parents unless one of the statutory exceptions applies, and imposes no requirement that a parent request services in order to receive them, he was entitled to services notwithstanding his failure to request custody of the children. The court stated: "As we have already explained, the statutes contemplate that a noncustodial parent is not entitled to reunification services unless he or she requests custody of the children. [Citation.] As the father never sought custody of the children, the juvenile court was not required to provide him with reunification services." (Robert L. v. Superior Court, supra, 45 Cal.App.4th 619, 629.)
In support of its conclusion, the court in Robert L. noted that section 361.2, subdivision (a), specifically provides that a child removed from the custodial parent may be placed with the noncustodial parent "[i]f that parent requests custody . . . ." The court stated: "The fact that section 361.2 permits the juvenile court to place a child with a previously noncustodial parent and deny services to the previously custodial parent demonstrates that reunification services are not required to be provided to a parent who will not be taking custody of the children. This integrated statutory scheme reflects the Legislatures desire to provide services to parents only where those services will facilitate the return of the children to parental custody." (Robert L. v. Superior Court, supra, 45 Cal.App.4th 619, 628.)
Here, there is nothing in the record to suggest Father intended to seek custody of Minor. As in Robert L., Father had lived with Mother and Minor for only a short time, years before the dependency proceeding, and was incarcerated at the time of the proceeding. When the proceeding was filed, Mother was living with her boyfriend and was engaged to be married to him. Although Father and Mother were still legally married, it was clear Father had no intention of residing with Mother and Minor. Father referred to Mother as "evil" and told the social worker he was afraid that if he went near Mother she would falsely accuse him, and he would go to prison again. Although Father stated he wanted to pursue visitation with Minor, there was no indication he wanted to pursue custody. Under Robert L. v. Superior Court, supra, 45 Cal.App.4th 619 and In re Terry H., supra, 27 Cal.App.4th 1847, the court was justified in not ordering services for Father.
c. Detriment to Minor
Apart from Fathers failure to seek custody of Minor, the court was justified in declining to order reunification services for Father pursuant to section 361.5, subdivision (e)(1). That provision states in part: "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable [reunification] services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the childs attitude toward the implementation of family reunification services, and any other appropriate factors."
Fathers extensive and violent criminal background supported a finding that he would be a danger to Minor if he resided with her and that reunification services therefore would be detrimental to Minor. At the time the dependency proceeding was filed, Father told the social worker he was on parole for assault with a deadly weapon. He said he had served four years in prison for shooting his friend. He also stated he had been arrested within the past year for driving under the influence of alcohol and had spent some time in jail for it.
Father further stated he had gone to prison after violating his probation due to a warrant for domestic violence against Mother. Father told the social worker he had been sentenced to five years in prison for violating his probation.
During an interview about the same time, Mother told the social worker Father had pushed her head against the wall and then thrown her across the room. She said Father had been sent to prison for six months. Previously, she said, Father had been sentenced to four years eight months in prison for shooting her boyfriend in the back for stealing drugs from him.
DPSSs November 2002 case plan for Father required him, among other things, to obey the law, avoid arrests and convictions, and follow all conditions of probation or parole. As of March 2003, however, DPSS reported Father was in custody and had been charged with taking a vehicle without the owners consent, terrorist threats, and violating his parole.
Added to the evidence of Fathers violent character was the lack of any evidence of a significant bond between Father and Minor or of any meaningful effort by Father to develop such a bond. In October 2000, Minor referred to her "daddy" as the father of one of her sisters. Father was scheduled to visit with Minor in October 2002 but failed to show. His mother called the social worker and said Father could not come to the visit due to car problems. She said she would give Father the workers telephone number and later confirmed she had done so. However, a week later Father had not yet called back.
DPSSs recommendation, and the plain intent of the courts orders at the jurisdictional/dispositional hearing, was to try to return Minor to Mothers custody if possible. Of the two parents, Mother had by far the more significant relationship with Minor, having been her caretaker for years after separating from Father. The best chance for Minor to avoid long-term foster care or adoption was to reunite with Mother. The court reasonably could conclude, given the history of violence between Father and Mother and the absence of any indication they would reconcile, that extending reunification services to Father would be detrimental to Minors chances of reuniting with Mother. For that reason, and in view of the lack of any evidence of a significant bond between Father and Minor, substantial evidence supported the courts finding that provision of services to Father would not be in Minors best interests.
3. Specification of factual findings
Father argues the court in denying him reunification services failed to comply with section 361.5, subdivision (i). That provision states: "The court shall read into the record the basis for a finding of severe sexual abuse or the infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child." Father asserts the court did not "specify the factual findings used to determine that the provision of reunification services to [Father] would not benefit [Minor]."
We agree with DPSS that the entire context of section 361.5, subdivision (i) makes it clear that the specification requirement it imposes applies only where services are denied under section 361.5, subdivision (b)(6). The clause of subdivision (i) which immediately precedes the specification requirement refers specifically to "a finding of severe sexual abuse or the infliction of severe physical harm under" subdivision (b)(6). The specification requirement itself refers to "the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child." A determination that reunification services "would not benefit the child" is the basis on which a court is authorized to deny services under section (b)(6). That subdivision states that services need not be provided to a parent or guardian who has inflicted severe sexual abuse or physical harm to the child, where "the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian."
In contrast, section 361.5, subdivision (e)(1), under which the court denied services in this case, applies where the parent is incarcerated and the court determines that reunification services "would be detrimental to the child." Although they are similar, that determination is different from the determination under subdivision (b)(6) that services "would not benefit the child."
It thus is apparent that the specification requirement set forth in section 361.5, subdivision (i) was intended to apply specifically to cases in which the court denies services under subdivision (b)(6) and not to impose a general requirement that the court specify the factual findings on which it relies when it denies services based on other provisions of section 361.5, such as subdivision (e)(1) in this case. That being the case, the specification requirement did not apply, and the court did not violate subdivision (i) in making its order.
B. Visitation Order
After it ruled that no reunification services would be provided to Father, the court inquired of counsel for Father whether she wanted the court to order Father returned to the Department of Corrections. Counsel responded: "Your Honor, actually, yes. He has been sentenced. And also we need a visitation order in accordance with the rules and regulations of his institution." The court then ordered the Riverside County Sheriff "to return [Father] to the custody of the California Department of Corrections for housing." The court further ordered "all visitation between [Father] and his daughter, [Minor], to be in accordance with institutional rules at his facility." It ordered DPSS to reimburse Mother for the cost of Fathers collect telephone calls to Minor.
Father contends the visitation order improperly delegated to Mother the authority to determine whether visitation would occur and the terms of such visitation if it did occur. He points out the court never ordered that any visitation occur, but only that it comply with institutional rules, leaving to Mother the decision whether to transport Minor to the correctional facility or not.
Visitation orders are reviewed for abuse of discretion. (See In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1167.) This court recently considered the extent of a juvenile courts responsibilities in making a visitation order in In re Randalynne G. In that case, we held invalid an order which provided: "`Visitation between the child and mother and father shall be as directed by the legal guardian in this case." (Id. at p. 1163.) We stated: "A court may not delegate its discretion to determine whether any visitation will occur, but it may delegate decisions such as the time, place and manner of visitation." (Id. at p. 1164.) We also distinguished between delegation to a public entity such as DPSS and to a private party such as a guardian: "[D]elegations to private persons to control visitation have not generally been upheld because such persons are not as accountable to the court as a child protective services agency." (Id. at p. 1166.) We noted that in the order involved in Randalynne, "the role of the Department in such visitation was not specified." (Id. at p. 1167.)
The extent to which a court may delegate control over visitation to a guardian is presently under review in the Supreme Court. (In re S.B. (2002) 103 Cal.App.4th 739, review granted Jan. 22, 2003, S112260.)
In contrast, the court in In re Christopher H. (1996) 50 Cal.App.4th 1001 found no error in an order which provided that an incarcerated father have "`reasonable supervised visits" with the child. (Id. at p. 1008.) The court rejected the fathers argument that because the order did not state specifically whether prison visits were acceptable, it constituted an improper delegation to the Department of Social Services (DSS) of the courts power to determine the fathers right to visitation. It noted that, while the order was "bare bones," it constituted a determination that visitation between the child and father should occur and limited DSSs role to managing the details of visitation subject to the juvenile courts supervision and control. (Id. at pp. 1008-1009.)
The extent to which the court in this case intended to delegate the authority to control visitation is not clear. The courts order simply stated that visitation was to be in accordance with the institutional rules at Fathers correctional facility. This could be interpreted, as Father argues, to mean it was left to Mother whether any visitation should occur at all. In that case, the order would be invalid under the principles stated in In re Randalynne G., supra, 97 Cal.App.4th 1156.
However, that is not the only reasonable way to interpret the order. The court also ordered that "[a]ll prior orders and conditions not in conflict with todays orders will remain in full force and effect." Previously, when it ordered Minor detained, the court had ordered that visitation between Father and Minor was "to be as directed by DPSS." Nothing in the subsequent order at the jurisdictional/dispositional hearing conflicted with the previous order. Hence, the court may simply have intended that the previous order, leaving to DPSS the responsibility of directing visitation, remain in effect. That order would not have been invalid as long as it did not give DPSS the authority to control whether visitation occurred at all, but only authority over the conditions under which it would occur.
Although we cannot determine the courts actual intent from the record before us, Father had the ability to clarify the matter if he so desired. In fact, the court made exactly the order counsel for Father had requested: visitation in accordance with the rules and regulations of Fathers correctional institution, and reimbursement to Mother for collect calls from the institution. If Father believed greater specificity was required, it was incumbent on him to make a timely request. "`[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.]" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics omitted; accord, In re Dakota S. (2000) 85 Cal.App.4th 494, 501; In re Josue S. (1999) 72 Cal.App.4th 168, 171; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 537.)
Moreover, we must interpret the courts order "so as to make it valid, and construe it with reference to the law regulating the rights of the parties." (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 767.) What constitutes reasonable visitation where a parent is incarcerated "will vary." (In re Christopher H. , supra, 50 Cal.App.4th 1001, 1010.) It is therefore appropriate to interpret the order to authorize visitation, with the terms and conditions to be determined by DPSS. So interpreted, the order was valid, and we affirm it. If Father believes modification of the order is necessary, he has the ability to seek that remedy pursuant to section 388.
III
DISPOSITION
The orders appealed from are affirmed.
We concur: Ramirez, P.J., and McKinster, J.