Opinion
A150711
05-10-2017
In re N.M., a Person Coming Under the Juvenile Court Law. R.M., Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD16-3088)
I.
INTRODUCTION
Petitioner R.M. (Father) filed a petition for an extraordinary writ seeking review of the court order setting a hearing under Welfare and Institutions Code section 366.26 to consider termination of parental rights and a permanent plan for four-year-old N.M. Father argues the San Francisco Human Services Agency (the Agency) failed to provide reasonable reunification services and the juvenile court erred in terminating reunification services early. We agree and grant Father's writ petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise identified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Our recitation of the facts will largely focus on the issues relating to Father. Mother has an extensive history with child protective services (CPS), and has six additional children who are not in her custody. The Agency has been unable to locate Mother since November 2016, and she does not contest the court's findings.
The Agency filed a dependency petition for N.M. on March 24, 2016, which alleged Mother had failed to protect N.M. from exposure to domestic violence, Mother had failed to provide adequate shelter, food, and medical care, and Mother had a substance abuse/alcohol problem. (§ 300, subds. (a), (b)(1) & (j).) It alleged Father had failed to protect N.M. from abuse and neglect.
Mother contacted CPS because her boyfriend hit her in the face in front of N.M. Police officers found Mother living in a van that smelled of alcohol and had equipment and toxic substances inside. Mother was under the influence of alcohol and/or drugs. Mother stated that Father was a "bad man" and had tried to sell N.M. for $1,000 to a sexual predator.
N.M. was malnourished and in the first percentile for weight and fifth percentile for height. She also had severe dental issues that needed urgent attention.
The court issued a finding and judgment declaring Father the presumed parent of N.M. The Agency's disposition report stated that Father resided in Michigan and was unaware N.M. "was going through so much." Father vehemently denied Mother's allegation that he attempted to sell his daughter. The Agency obtained the police report of the incident, and in it Mother had retracted the allegation.
In a telephone conversation on April 12, 2016, Father agreed to engage in services in Michigan. He was to seek general counseling and a parent education program.
A jurisdiction and disposition hearing was held on June 3, 2016, where N.M. was found to be a dependent of the court and reunification services were granted to Mother and Father. The court ordered Father to have Skype visits with N.M.
The Agency filed a status review report on November 18, 2016. Mother's whereabouts were unknown. Father had informed the Agency that he may be facing jail time. He stated his intention to go to residential drug treatment facility in Michigan if he was not incarcerated. The report stated that Father intended to take an online parenting class. It further stated that Father had not returned the social worker's calls "in recent days," and his ex-fiancée told the social worker he was incarcerated. Father had talked to N.M. by phone, but had not contacted her recently.
The Agency filed an addendum report on November 28, 2016, which stated Father was incarcerated in Michigan for a home invasion. He also faced charges in another city in Michigan. His ex-fiancée had gotten a restraining order against him.
On December 12, 2016, the Agency filed a section 388 petition requesting the court terminate services for both parents because Mother's location was unknown and Father was incarcerated.
The Agency filed a second addendum report in February 2017. Father remained in jail. In addition to his current incarceration, he also faced charges in Lincoln Park, Michigan. He was arrested for receiving a stolen vehicle, and was allegedly intoxicated in the car. Officers found crack cocaine in the car's center console. Father's former fiancée told the police that he had begun using drugs again and his behavior was erratic and violent.
The social worker for N.M.'s case, Ms. Moss, reported the jail did not offer drug treatment or other services. Father failed to participate in any services prior to his incarceration. Ms. Moss contacted the jail to see if she could speak Father by phone and was told she would need to pay $15 for a remote video call. Ms. Moss stated she was coordinating a call.
On February 24, 2017, the court held a held a hearing for the six-month review and the section 388 petition to terminate reunification services. Ms. Moss testified that Father was scheduled to be discharged from jail in Macomb County, Michigan in April 2017, but he was to be released to another jail in Lincoln Park, Michigan on additional charges. Ms. Moss testified that Father went to jail in October 2016 but had failed to engage in services before that date. Father had stated his intention of going to residential drug treatment, but then he was incarcerated.
The hearing was eight months after the jurisdiction and disposition hearing.
When the court asked Ms. Moss if Father was offered services in Michigan, she responded that his services "were to take place in Michigan." Ms. Moss contacted the jail and was informed it did not provide any substance abuse or parenting services. In February 2017, Ms. Moss sent Father one letter to inform him of her recommendation to end reunification services, but had no additional contact with him while he was in custody. She did not attempt to contact him by phone until February 2017, at which time he was under "restricted visit[ation]." She stated she was planning to contact him after getting approval for a phone call. She had not reached out to the jail to see if Father could have phone or video contact with N.M. She had not sent Father any materials regarding parenting or recovery while he was in jail.
Ms. Moss stated she contacted Father four or five times prior to his incarceration during the period of June to September 2016. Her usual practice was to list all contacts in her case notes, but there were no listings here. There was no documented record Ms. Moss had any contact with Father between September 2016 and February 2017.
Ms. Moss did not know the name of the residential treatment program Father wanted to attend and she had not contacted them. She never provided Father with any referrals for substance abuse treatment, parenting education, individual therapy, or a psychological evaluation. She provided no referrals for any part of Father's case plan. She thought he would obtain therapy through his future wife's insurance and take an online parenting course. She did not contact any social services agencies in Michigan to see what programs were available for Father. She did ask "friends" involved in social work in Michigan about a psychological evaluation. The court inquired whether, when Father informed her that he planned to take an online parenting course, she told him this form of parenting instruction was not the preferred method. Ms. Moss responded that she did not so advise Father.
Ms. Moss testified that she believed Father had seen N.M. once since leaving California when N.M. was an infant.
Father testified that his release date from prison was July or early August 2017. He stated he attempted to enroll in a residential treatment program, but he was turned away. He testified that the social worker had not provided him any referrals for drug treatment programs, individual therapy, parenting courses, or a psychological evaluation. He enrolled in an online parenting course and completed about three weeks of it. Father stated he had been involved in a substance abuse program while in jail called Fast Track and he was also attending AA meetings. Before he was incarcerated, he did not take steps to get a mental health assessment. He had bipolar disorder but had not taken medication since 2013 or 2014.
Father testified that he talked to N.M. three or four times while she was in her aunt's care, but due to the conflict between him and the aunt there were "problems." He stated Ms. Moss failed to help him connect with N.M. either via Skype or in person. He had no contact from Ms. Moss while in jail other than the February letter.
N.M.'s attorney argued that the court should terminate services because Father failed to engage any services during the four months prior to his incarceration and, even if an additional six-months of services are granted, Father will remain incarcerated with limited access to services during that time period. N.M. had had three foster placements and the focus needs to be her permanency and stability.
Father's attorney argued that the court should continue services for 12 months. The Agency failed to provide Father with reasonable services. Ms. Moss provided no referrals to services in Michigan and did not assist Father with visitation. From the case notes, Ms. Moss did not have any documented contact with father from June to September 2016.
The Agency argued that even if the case continues to a 12-month review hearing, there is no likelihood of reunification. Father has a long history of substance abuse, criminal conduct, and limited contact with his daughter.
The court found that based on the testimony, Ms. Moss had instructed Father to engage in treatment and parenting classes. The court focused on the fact that Father could have done substantially more prior to his incarceration to obtain services and treatment. Father now has limited access to programs while in jail. His history of being in and out of custody does not allow him to provide permanency for his daughter. N.M. should not have to wait while her father goes from one jail placement to another. There is no substantial likelihood reunification will occur in the next six months, or that Father can complete the objectives in his case plan. The court found that "certainly more referrals could have been made and weren't made."
The court found by clear and convincing evidence that reasonable efforts were made to provide or offer services to Father. The court granted the section 388 petition.
During the court's ruling, Father, who appeared by phone, was angry and disputed the court's findings in a raised voice, repeatedly interrupting the court. --------
The juvenile court terminated reunification services and set a section 366.26 hearing for June 22, 2017.
III
DISCUSSION
A. Standard of Review
We review a juvenile court's ruling on a section 388 petition for an abuse of discretion. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.)
We review the juvenile court's finding that reasonable services were offered under the substantial evidence test. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346 (Amanda H.).) "[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered. [Citations.]" (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762). " 'When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact. [Citations.]' [Citation.]" (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
The " 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, "the 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 . . . .' [Citation.]" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426, original italics (Tracy J.).) "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
B. Termination of Reunification Services
Father argues the court lacked substantial evidence to terminate reunification services at the six-month review hearing. He argues the Agency failed to provide reasonable services, so the juvenile court should not have terminated reunification.
When a child is removed from a parent, the child and parent are entitled to 12 months of child welfare services to facilitate family reunification. (Amanda H., supra, 166 Cal.App.4th at p. 1345.) However, under section 366.21, subdivision (e), the juvenile court may schedule a section 366.26 hearing if it 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)(3).)
Similarly, section 388 provides that any party can seek a modification of a court order and request termination of reunification services where the action or inaction of the parent creates a substantial likelihood reunification will not occur, including the failure to visit the child or make substantive progress in a court-ordered treatment plan. (§ 388, subd. (c)(1)(B).) One of the factors for the court to consider is the parent's incarceration. (§ 388, subd. (c)(1)(B), (2).) "The court shall terminate reunification services . . . only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions [listed] exists." (§ 388, subd. (c)(1)(B), (3).)
In determining whether the court properly terminated services, we must first look to whether reasonable services were offered to Father. We are guided by the recent decision from Division Five of this court, In re T.W.-1 (2017) 9 Cal.App.5th 339 (T.W.-1). In T.W.-1, the father was in custody in Florida. (Id. at p. 342.) The social worker advised the father to attend Narcotics Anonymous (NA) meetings and parenting classes and to determine what resources were available to him in Florida upon his release. (Ibid.) There was no case plan for the father. (Ibid.) By the time of the jurisdiction hearing, the father had been released from custody, but the disposition report stated it was not in the minors' best interest to offer family reunification. (Ibid.) The father had a lengthy history of substance abuse, multiple criminal convictions, had not seen his daughters in five years, and had not spoken to them in at least two years. (Ibid.)
The court continued the disposition hearing for the agency to create a case plan. It specified the father attend NA meetings, complete a series of parenting classes, and participate in weekly supervised telephone calls with his daughters. (T.W.-1, supra, 9 Cal.App.5th at p. 343.) After objections by the father's counsel that the case plan provided no specifics, the case plan was updated to provide a referral to a family preservation program and "Hubbard House." (Id. at pp. 343-345.) The father failed to participate in these services. (Id. at p. 345.)
The juvenile court concluded that reasonable services had been provided and Division Five reversed finding no substantial evidence. (T.W.-1, supra, 9 Cal.App.5th at p. 345.) "We agree with Father that the Department failed to provide reasonable services. The initial case plan filed prior to disposition failed to identify any service providers and instead placed the burden on Father to locate services. The November case plan identified one program but provided no contact information or instructions about how Father could enroll in services. Only in late January—more than three months after the disposition hearing—was Father provided with contact information for two specific service providers." (Id. at p. 346.) The case plan failed to provide for any assessment of the necessary services, substance abuse testing, and housing services. (Id. at p. 347.) The father was not provided with weekly telephone calls with his daughters, a key component of reunification. (Ibid.) "It is 'the social worker's job to maintain adequate contact with the service providers and accurately to inform the juvenile court and [the parent] of the sufficiency of the enrolled programs to meet the case plan's requirements.' [Citation.] The Department did not do so." (Ibid.)
Division Five acknowledged that the father's residence out of state made the Department's ability to provide services more difficult, however the father's "out-of-state location does not excuse the Department's failure to identify substance abuse and housing as service objectives, failure—after three months of delay—to provide information about the two identified programs, and failure to set up more than one telephone visitation with Minors." (T.W.-1, supra, 9 Cal.App.5th at p. 348.)
The fact that the father took limited steps to actually engage in services does not excuse the Department from providing necessary referrals and establishing visitation. The father's "lack of involvement, while discouraging, does not excuse the Department from complying with its obligation to provide reasonable services." (T.W.-1, supra, 9 Cal.App.5th at p. 348, fn. omitted.) "We acknowledge that the likelihood of reunification with Father may be low. But Father was nonetheless entitled to reasonable services." (Ibid.)
The facts before this court are strikingly similar to T.W.-1. The Agency's case plan for Father recommended general counseling, parent education, and unsupervised Skype visits between Father and N.M. The social worker testified that she never provided Father with referrals for substance abuse treatment, parenting education, individual therapy, or a psychological evaluation in Michigan. The court specifically asked the social worker if services were offered in Michigan, and she equivocated and stated his services "were to take place in Michigan." The social worker testified that Father told her he planned to seek residential treatment, but she did not contact the facility or know the name of program, demonstrating she had no ability to assess the sufficiency of the program for the court. As noted above, the social worker did not advise Father that an online parenting class was not the Agency's preferred method when Father told her that he intended to engage in one.
The social worker did not know if or when Father had seen N.M. since moving to Michigan. She had not arranged for any visitation via phone calls or Skype between Father and N.M. while Father was in custody. She, in fact, had not contacted Father while he was in custody from October 2016 to February 2017, except to send him one letter. The social worker testified that she contacted Father four or five times prior to his incarceration in the period of June to September 2016, but had failed to document these calls in her case notes, against her usual practice.
The Agency failed to provide reasonable services because Father was not given the names of any service providers and the burden was placed on him to locate services. He was not even provided with a list of potential service providers. In In re Taylor J. (2014) 223 Cal.App.4th 1446, the appellate court concluded that "reunification services are not 'reasonable' if they consist of nothing more than handing the parent a list of counseling agencies when the list contained the name of only one domestic violence victim counseling agency in proximity to Mother's home." (Id. at p. 1452.) Here, Father was not even given a list of providers.
The social worker also failed to make even a minimal investigation into possible available service providers, and thus was unable to inform the court as to the adequacy of the programs. (T.W.-1, supra, 9 Cal.App.5th at p. 347.) "While it was [parent's] responsibility to attend the programs and address [his] problems, it was the social worker's job to maintain adequate contact with the service providers and accurately to inform the juvenile court and [the parent] of the sufficiency of the enrolled programs to meet the case plan's requirements. [Citations.]" (Amanda H., supra, 166 Cal.App.4th at p. 1347.) Ms. Moss had no information about Father's online parenting course, his proposed residential treatment program, or the Fast Track treatment program he was attending in jail.
In addition, the social worker has an obligation to assist an incarcerated parent with visitation. " '[I]ncarcerated parents . . . suffer obvious obstacles to visitation. Nevertheless, the law is clear that reasonable services, most particularly visitation, must be provided.' [Citation.]" (In re Precious J. (1996) 42 Cal.App.4th 1463, 1478.) Here, the social worker failed to provide any assistance in telephone or video visitation between Father and N.M. while Father was incarcerated.
We recognize that, like T.W.-1, Father has taken minimal steps to engage in services and the likelihood of reunification is low, but Father was still entitled to reasonable services. (T.W.-1, supra, 9 Cal.App.5th at p. 348.) The Agency maintains its obligation to provide reasonable reunification services even if the prospects of successful reunification are "dim." (Mark N. v Superior Court (1998) 60 Cal.App.4th 996, 1014 [department had a duty to provide reunification services to an incarcerated parent even where reunification was unlikely due to father's criminal history, his drug abuse, his domestic violence, his threats to kill others, and his failure to provide necessary medical care for his daughter].) "A forecast of failure could not provide an excuse for refusing to try." (In re K.C. (2012) 212 Cal.App.4th 323, 332.) "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. [Citation.]" (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)
Under section 366.21 Father was entitled to 12 months of reasonable reunification services. (In re Monica C. (1995) 31 Cal.App.4th 296, 310.) It was error not to provide them, and in terminating reunification in the absence of those services. (§ 388, subd. (c)(1)(B), (3); In re K.C., supra, 212 Cal.App.4th at p. 325.)
IV.
DISPOSITION
The petition for writ of mandate is granted on the merits. (§ 366.26, subd. (l)(1)(c); Cal. Rules of Court, rule 8.452.) The juvenile court is directed to vacate its order for a section 366.26 hearing, and to resume the 12-month status of the case, providing Father with reunification services. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.