Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate, Super. Ct. No. CK64717, Stanley Genser, Juvenile Court Referee.
Law Offices of Alex Iglesias, Steven D. Shenfeld, and Lucia Murillo for Petitioner.
No appearance for Respondent.
MANELLA, J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest.
INTRODUCTION
In a juvenile dependency matter, the court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26. Father, K.D., petitions for extraordinary writ to review the juvenile court’s order, contending that it was not supported by substantial evidence. Father contends that the Department of Children and Family Services (the Department or DCFS) failed to provide reasonable reunification services, that the court erroneously took judicial notice of the entire court file and that the court erroneously considered hearsay statements in the DCFS report filed for the previous review hearing in September 2007. We reject father’s contentions, and deny the petition.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
BACKGROUND
Father’s three children were detained in August 2006, after mother had given birth to their sibling, who was born prematurely and died soon after birth. Mother tested positive for amphetamine and methamphetamine at the time of the birth. The three siblings were placed with their maternal grandparents. At the time, father was incarcerated. He had been convicted in 2004 of spousal injury and making criminal threats against mother and in February 2006, while on probation, he was arrested for possession of a controlled substance. Father was released from prison in May 2007.
Father appeared in custody at the jurisdiction/disposition hearing held in October 2006. The juvenile court sustained the petition to bring the children within the jurisdiction of the court pursuant to section 300, including the allegations that father had a history of substance abuse and domestic violence. The court reviewed and approved the reunification plan, and ordered father to participate in counseling with a DCFS-approved counselor, including programs in parenting, domestic abuse, alcohol and drug abuse, with random alcohol and drug testing. In addition, the court ordered father to demonstrate his ability to care for the children and meet their emotional and physical needs, to maintain stable housing and to visit the children on a consistent and regular basis.
The court ordered mother to participate in an inpatient drug rehabilitation program. She appealed that order, which was affirmed by this court in a published opinion, In re Neil D. (2007) 155 Cal.App.4th 219, filed August 28, 2007.
Following six-month and 12-month review hearings, a contested permanency plan hearing pursuant to section 366.22 (section 366.22 hearing) went forward February 22, 2008. The DCFS report prepared for the hearing was admitted into evidence. The DCFS social worker (CSW) reported that father had complied with the order for drug and alcohol counseling, having completed a 20-day intensive treatment program. However, he had not complied with the requirement that he enroll in domestic violence classes. The CSW reported that father claimed he was unaware that he had been ordered to do so. She also reported that father was in partial compliance with the parenting class requirement, as he had completed 8 of 12 sessions, and he was in partial compliance with the order for random drug and alcohol testing. He had failed to show for 11 of 15 scheduled tests, and on two occasions, the results were diluted, suggesting he had consumed excessive amounts of water prior to the tests. Since the previous review hearing, father had had only one in-person visit with his children, and had not spoken to them by telephone in several months.
Father testified at the February 2008 hearing that he was employed as a pipefitter in the refineries. He claimed that he was currently submitting to drug tests and that he had been visiting his children. Father testified that while he was incarcerated at Corcoran State Prison he completed parenting and domestic violence courses, as well as a drug and alcohol program. He did not enroll in a domestic violence class after his release from prison, however, believing he was not required to take the class because he was no longer living with mother. Father admitted that when he was first released, the CSW told him that he would have to repeat the courses he completed in prison, but “she mainly focused on the parenting and the drug testing.” He claimed that if she had told him to repeat the domestic violence course, he would have done so, as it was only a 12-week course. Father admitted that the first time he was told to retake a domestic violence course was in May 2007, but added that the CSW had told him something different each time he saw her. He admitted that in May 2007, she gave him referrals to a domestic violence program, but claimed that when they spoke later, “she wouldn’t focus on it.” He submitted evidence establishing that as of February 16, 2008, he had completed two sessions of a 12-session domestic violence program.
The court noted that father had been present in court for the 12-month review hearing on September 4, 2007, and that the CSW’s report for that hearing had addressed father’s need to enroll in a domestic violence program, as well as his statement that he would enroll after completing his drug program.
The CSW testified that the programs offered in Corcoran State Prison were not DCFS-approved. Thus, it was the Department’s policy that once released, parents would be required to take DCFS-approved programs. The CSW denied ever telling father that he would not have to complete a domestic violence program because he was not living with mother. In fact, when father complained in an early interview about having to repeat the programs, the CSW explained to him that he was required to do so. She testified that only recently had father suggested he was unaware the court had ordered him to complete a domestic violence program.
The CSW’s case notes were admitted into evidence without objection. The notes reflect that father complained about having to repeat the courses, and that the CSW explained the requirement -- including the domestic violence requirement -- and sent him referrals to programs on June 6, 2007. The notes also reflect that on July 31, 2007, after unsuccessful attempts to meet with father face-to-face, the CSW wrote him, stating, among other things, “As I explained to you on [June 6, 2007], the court has ordered that you complete the following programs in order to have your children returned to your care. I also provided you with referrals for . . . domestic abuse classes . . . .” The August 2, 2007 notes state that the CSW met with father, who admitted having received the referrals and complained about having to repeat the programs. The CSW explained to him that it was a DCFS requirement. The issue was again discussed in a face-to-face meeting November 9, 2007.
When asked at the February 2008 hearing whether she remembered a conversation with father regarding the domestic violence requirement, the CSW testified that she was not sure, that she would need to review her September 2007 report, prepared for the 12-month review. Father’s counsel objected on the ground that the report had not been entered into evidence. Without expressly overruling the objection, the court took judicial notice of the entire court file, and stated that because the September 2007 report had been admitted into evidence at the September review hearing, the court would permit questioning regarding it. After reviewing the report, the CSW testified that she discussed with father his failure to enroll in a domestic violence course following his release from prison the previous May. Father told her that he did not have time to attend the programs, due to his work and drug treatment schedules, but that he would enroll in them as soon as his work slowed down. The report indicated that in August 2007, father told the CSW that he would enroll in a domestic violence course after his drug treatment program, scheduled for completion on August 29, 2007.
Finally, the CSW testified that father had had just one monitored visit with the children in the past two months with a DCFS-approved monitor, the maternal grandmother. Prior to that, his visits had been sporadic.
At the close of testimony, father’s counsel argued that the Department had failed to provide father with reasonable reunification services, and requested a continuance of the 18-month review for an additional six months of services. The court disagreed, finding that the Department had made reasonable efforts to reunify father with his children.
The court also found that father was not in substantial compliance with the reunification plan. The court rejected father’s claim that he did not know that he was required to repeat a domestic violence course upon release from prison. It further found that father had completed only two of 12 sessions, despite representing to the CSW that he would enroll after completing his drug treatment program on August 29, 2007. Finally, the court found that father had had little or no contact with his children, as his visits were inconsistent and he did not telephone them. The court also noted father’s failure to submit to random drug tests in order to demonstrate his sobriety, and rejected his excuse of being too busy.
Based upon these findings, the court terminated reunification services and set the matter for a hearing pursuant to section 366.26 to consider guardianship as the permanent plan. Father timely filed a notice of intent to file a writ petition, and filed his petition April 23, 2008, seeking review of the orders entered at the section 366.22 hearing. We issued an order to show cause and a temporary stay of the section 366.26 hearing.
DISCUSSION
1. Section 366.22
Pursuant to section 366.22, subdivision (a), the juvenile court is required to conduct a permanency review hearing within 18 months after a minor is first removed from his or her parents’ custody. That section provides, in relevant part: “The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker’s report and recommendations and the report and recommendations of any child advocate . . .; shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided. . . . [¶] . . . If the child is not returned to a parent . . ., the court shall specify the factual basis for its conclusion that return would be detrimental. . . .”
2. Contentions
Father contends that the juvenile court’s findings were not supported by substantial evidence. In particular, father contends that the court erred in finding a substantial risk of detriment to the safety, protection or physical or emotional well-being of the children if returned to his custody. He argues that the evidence demonstrated that he had made substantial progress in complying with the case plan. Father also contends the court erred in finding, without taking his incarceration into consideration, that reasonable reunification services had been provided. Father’s final assignment of error is that the court abused its discretion in taking judicial notice of its entire file, including the September 2007 social study prepared by the Department for the 12-month review hearing.
3. Standard of Review
a. Substantial Evidence Review
“When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. [Citations.] Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. [Citation.] We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact. [Citations.]” (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) It is the burden of the party challenging the sufficiency of the evidence to show there is no evidence of a sufficiently substantial nature to support the finding or order of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
“It is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
b. Review of Discretionary Orders
“The practical differences between the [substantial evidence and abuse of discretion] standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’ s action, no judge could reasonably have made the order that [he or she] did.’”’ [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
A juvenile court’s conclusion that evidence was admissible is reviewed for abuse of discretion. (In re Cindy L. (1997) 17 Cal.4th 15, 35.) The reviewing court will not disturb the juvenile court’s ruling regarding the admissibility of evidence unless it was “an ‘“‘“arbitrary, capricious, or patently absurd determination. . . .”’”’ [Citation.]” (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.) If the reviewing court finds an abuse of discretion, the juvenile court’s order will be reversed only if it resulted in a “miscarriage of justice.” (Evid. Code, § 353, subd. (b); In re Rocco M. (1991) 1 Cal.App.4th 814, 819-820.)
4. Substantial Evidence of Risk of Detriment
Father challenges the court’s finding that he was not in substantial compliance with the reunification plan. Father contends: “Save for the consistent drug testing and finishing a second domestic violence program, [he] had done what was required of him.” He claims that his failure to present himself for scheduled drug tests was due to his work schedule, and that the CSW knew of that impediment. He suggests that he should not have been required to take a second domestic violence course because he was no longer living with mother, and because the CSW never emphasized the “absolute requirement” that he do so.
Father’s arguments would require us to view the evidence in the light most favorable to his contentions, and to disagree with the juvenile court’s deductions and resolution of credibility issues. We may not do so. (See In re Albert T., supra, 144 Cal.App.4th at p. 216; In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) The substantial evidence test is not concerned with whether substantial testimony supports father’s position, or “whether there is substantial conflict, ‘but rather whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.’ [Citation.]” (In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.)
There was no evidence in the record, as father suggests, that the CSW excused his absences, or even that he had requested testing times to fit within his work schedule. Further, neither father’s work schedule nor the test times were in evidence.
Father admits that he failed to complete a domestic violence course, despite knowing he was required to do so, and that he failed to submit consistently for random drug tests, as ordered. Father erroneously contends that his failure to complete a domestic violence course was the sole reason for the court’s termination of reunification services. He argues that the order should be reversed because the court failed to consider his compliance with other court-ordered programs.
Father’s arguments are built upon a faulty foundation. The court did, in fact, rely on more than father’s failure to complete a domestic violence course. The CSW testified and reported that he had failed to submit to random drug tests to demonstrate his sobriety, and that he had visited the children only once in the two months prior to the hearing, with only sporadic visits before that. The court expressly relied on both such failures to obey the court’s orders.
Father’s argument suggests that the court should have disregarded his failure to obey the court’s order to submit to random drug testing and to visit the children on a consistent and regular basis. In fact, the court was required to consider father’s efforts and progress, and the extent to which he availed himself of reunification services. (§ 366.22, subd. (a).)
In recommending that custody not be returned to father, the children’s attorney emphasized the importance of the missed drug and alcohol tests: “I cannot in good faith recommend that the children go home with their father. He is definitely not in compliance with the number one thing that I would have wanted . . .[,] which was the drug testing . . . . [H]is addiction was . . . pretty severe and significant and . . . his testing has been abysmal to date.”
Father has failed to meet his burden to demonstrate the absence of substantial evidence. (See In re Dakota H., supra, 132 Cal.App.4th at p. 228.) Indeed, he has admitted that he did not substantially comply with the reunification plan. We conclude that the juvenile court could reasonably infer from the evidence that returning custody to an uninvolved parent with a history of substance abuse and an inability to demonstrate sobriety would create a substantial risk of detriment to the children’s physical or emotional well-being.
5. Reasonable Reunification Services
Father contends that the juvenile court erred in finding that reasonable reunification services had been provided. Reasonable services must be provided to parents, even while they are incarcerated, unless such services would be detrimental to the minor. (§ 361.5, subd. (e)(1); Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011, 1014.) “If a parent cannot avail himself or herself of reunification services because of incarceration, it is a fait accompli that the parent will fail to comply with the service plan.” (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.) Thus, the Department may not withhold services until release when this would cause the parent to have insufficient time after release to make progress in complying with the plan. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1166.)
However, as respondent notes, the power of the juvenile court to set a section 366.26 hearing at the 18-month review is not conditioned on a finding that reasonable services were provided. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511.) When the reunification plan is deficient, services may be extended in the discretion of the court beyond the 18-month period pursuant to section 352, but only “under extraordinary circumstances ‘involv[ing] some external factor which prevented the parent from participating in the case plan.’ [Citation.]” (Id. at p. 1510.)
Thus, we do not review father’s contention -- that reunification services were inadequate -- in a vacuum. Rather, we review the contention in relation to his request for a six-month continuance for further reunification services. However, father does not contend the juvenile court erred in denying a continuance; he simply contends that the court erred in finding the services reasonable. Treating the assignment of error as relating to the denial of father’s request for a continuance, we review the denial for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 179.)
Father does not expressly claim that extraordinary circumstances justified an additional six months of reunification services. He argues that he was denied reasonable services due to the DCFS policy of requiring parents to repeat programs taken while incarcerated, and the CSW’s failure to explore other services.
When a parent is incarcerated, the Department must, at a minimum, contact the prison to determine whether any appropriate programs are available there, and to request any accommodation necessary for the parent to enroll in them. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1013.) Father admits that the CSW did just that, although he claims that her efforts were insufficient. The CSW’s notes reflect that she spoke by telephone to father’s counselor, Ms. Warren, at Corcoran State Prison on February 9, 2007. Warren told her that father had enrolled in programs with Walden House at the prison, but as she did not have specific information about the programs, Warren referred the CSW to Stacey, the program director. A few days later, the CSW spoke to Stacey, who declined to provide information about the programs, telling the CSW that the information would have to come from the counselor. On February 13, 2007, the CSW left a voicemail message for Warren asking her to obtain specific information from Warden House about the programs in which father was enrolled. The CSW was ultimately unable to obtain information about the programs.
Father contends that the CSW’s unsuccessful efforts to obtain information from the prison are proof of the Department’s failure to provide reasonable reunification services. However, the question is not whether the CSW’s efforts were reasonable, but whether the circumstances were sufficiently extraordinary to justify a continuance of reunification services beyond 18 months. (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1510.)
Father suggests that the CSW’s failure to advise him before his release that he would be required to repeat the programs, coupled with the time constraints caused by his employment, prevented him from completing the requirements for reunification. We disagree. Circumstances will not justify a continuance unless they prevented the parent from complying with the case plan. (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1510.) Father was released from prison in May 2007, leaving eight months to complete the court-ordered services. Within one month after father’s release, the CSW provided father with referrals to programs and arranged for visitation and random drug testing. Thus, it was not father’s incarceration that prevented him from substantially complying with the court’s orders, and no evidence supports father’s contention that his work schedule prevented him from visiting or even telephoning his children regularly, from appearing for scheduled drug and alcohol tests or from attempting to have the tests scheduled during his time off.
We conclude that because the evidence showed no external factor preventing father from participating in the case plan, the court did not abuse its discretion in denying additional reunification services. (See Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1510.)
6. Admissibility of Court File and Social Study
Father contends the court erred in taking judicial notice of the entire dependency file. The juvenile court may take judicial notice of facts asserted in findings and orders in a prior juvenile court proceeding, but cannot take judicial notice of hearsay allegations and other matters in its file, other than the report prepared for the hearing. (In re Amber D. (1991) 235 Cal.App.3d 718, 724.) Although the court in this case stated that it took judicial notice of its entire file, the court made its ruling immediately following oral argument, leaving no time to review it. Further, father has pointed to no specific facts he claims the court improperly considered. Thus, we presume, in the unlikely event the court did review the entire file, it considered only those facts it was entitled to consider. (Ibid.)
Father also contends the court erred in overruling his objection to the DCFS report which had been admitted into evidence at the 12-month review hearing in September 2007. Social services reports are admissible as an exception to the hearsay rule. (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1571-1573.) If a party contends that particular statements within a report are inadmissible, a specific objection is required to preserve the issue for review. (In re Rocco M., supra, 1 Cal.App.4th at p. 819.) Thus, it was incumbent upon father to object to any particular facts in the September 2007 report he claimed were inadmissible. However, at the hearing, father’s only objection was that the report had not been entered into evidence. Now, he objects to any hearsay the court might have considered, arguing that because he was not notified before the hearing that the report would be judicially noticed, he could not know which statements would be considered, and thus could not make a specific objection. We observe, however, that father’s counsel made no specific objection or motion to strike after the Department’s counsel pointed to particular facts in the report. Nor, in this proceeding, does father point to any facts he contends the court improperly considered.
Father does not, as respondent contends, challenge the use of the September 2007 report to refresh the CSW’s recollection.
Moreover, had there been any error in considering facts in the September 2007 report, it would be harmless absent a “miscarriage of justice.” (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); In re Rocco M., supra, 1 Cal.App.4th at pp. 819-820.) A miscarriage of justice occurs only when “the reviewing court finds it reasonably probable the result would have been more favorable to [father] but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Father contends that without the report, the court might have believed his assertion that he was led to believe repeating a domestic violence course was not essential. However, father fails to show such belief would have resulted in the court’s ordering a continuation of reunification services beyond the 18-month review, in light of father’s failure to submit to drug and alcohol tests or to stay in contact with his children.
We conclude that the court did not err in taking judicial notice of its entire file. Further, we conclude that father failed to preserve for review the admissibility of any facts contained in the September 2007 report, or to show that he was prejudiced by the ruling.
DISPOSITION
The order to show cause is discharged and the petition denied. The order staying the section 366.26 hearing is vacated.
We concur: EPSTEIN, P. J., WILLHITE, J.