Opinion
A159922
07-01-2020
R.R., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, et al. Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1800636)
R.R. (father) petitions for extraordinary writ relief challenging the juvenile court's order setting a selection and implementation hearing (Welf. & Inst. Code, § 366.26) for his son, J.S. Father claims that insufficient evidence supports the juvenile court's findings that there was a substantial risk of detriment to J.S. if placed in father's care and that father received reasonable reunification services from the Contra Costa County Children and Family Services Bureau (Bureau) during the most recent review period. For the reasons provided below, we deny father's writ petition and his request for a stay of the section 366.26 hearing, scheduled for July 6, 2020.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted. --------
BACKGROUND
On June 19, 2018, the Bureau filed a petition on behalf of J.S., then three years old, and his nine-month old half-sister. Three days before, the children were placed in protective custody after their mother got into an accident while driving under the influence of methamphetamines. The Bureau alleged the children were at a substantial risk of harm due to the mother's substance abuse problem and her involvement in domestic violence. The mother told the Bureau she did not know who was the father of J.S. At the detention hearing, the court detained the children and signed a parentage inquiry for J.S. The results of this inquiry suggested that a man named R.J. was J.S.'s biological father.
At the contested jurisdictional hearing, the court sustained the petition in part under section 300, subdivision (b), including amended allegations under section 300, subdivision (b)(2). The court set a disposition hearing for September 12, 2018 and held a contested disposition hearing on October 22, 2018. The court found jurisdiction over the children, declared them to be dependents, and removed them from their mother's care. The court set a six-month review hearing for March 2019. At the October 22nd hearing, an adult male, M.S., appeared with the mother and claimed he was J.S.'s father. The court referred M.S. to counsel and set an acceptance of counsel hearing for October 24, 2018. On that date, M.S. did not appear and he did not contact the Contra Costa Juvenile Advocates as the court had instructed. A. March 18 , 2019 to June 13 , 2019: The Six-month Contested Review
At the six-month review hearing on March 18, 2019, father appeared. He completed a Parentage Statement Form. In the form, he stated that he did not know if he was J.S.'s father, he consented to genetic testing to determine paternity, and he did not provide any information as to whether he had ever lived with or given "money or things" to J.S. in the past. Father also completed a JV-140 Notification of Mailing Address with an address of 1495 Bridge Street, Apartment 55, Yuba City, 95993. The court set an acceptance of counsel hearing for April 8, 2019 and a contested six-month review hearing for April 29, 2019. On April 8, 2019, the court ordered genetic testing for father.
On April 29, 2019, the paternity test results were not available, and the mother did not appear. The court continued the matter to June 13, 2019 for receipt of the paternity test results. The paternity test results indicated that father was the biological father of J.S., and his counsel requested father's status be raised to presumed father at the June 13 hearing. The mother's counsel agreed and reported that the mother had stated that father visited J.S. four times before he was a year old and had sent money to her. The court declared father to be the presumed father, granted him reunification services including four visits a month, and continued family reunification services for the mother. The court admonished the parents, "Both parents need to understand that these children are young and I need to see real engagement in services fast and hard to make sure that you are in a position within the statutory limits to be able to actually be parents to these children. That means showing up for every visit. It means showing up for every drug test, every meeting with CFS, fully complying with all the terms of your case plan." All parties waived irregularities, and the court ordered the Bureau to submit a new case plan to the court and counsel within a week. B. August 5 , 2019 to October 2 , 2019: The 12-Month Contested Review
For the 12-month review hearing on August 5, 2019, the Bureau's report recommended terminating the mother's reunification services and continuing father's reunification services. In the paternity section of the report, the social worker assigned to the case reported that father contacted the Bureau in January 2019 requesting visits with J.S. as he strongly believed he was J.S.'s father. Father stated that he and the mother were acquainted through her uncle and she lived in his home in Yuba City for a period of time during which she became pregnant. He said that the mother left the home before J.S. was born, and she did not let father know her whereabouts.
The social worker reported that father expressed eagerness to have J.S. in his home. Father attended three visits with J.S. and had missed two visits. J.S. was very tentative at first with father because he had no prior relationship, but he seemed to warm up over time. The social worker reported that she had difficulty meeting with father to develop a case plan with him because he lived in Yuba City and his accent made him hard to understand on the phone. She attempted to meet with father on July 25, 2019 to discuss the case plan with him in person after visitation, but he was not able to make the visit. Father told the social worker that he worked as a landscaper and was looking for housing that would be appropriate for J.S. in Yuba City. The Bureau recommended further reunification services for father because he deserved the right to engage in reunification services and the Bureau needed more time to assess the appropriateness of placement. The social worker also reported that J.S. was thriving in his placement with his half-sister in a licensed foster home, and father had decided that he was only interested in placement of J.S.
Father and the mother failed to appear at the 12-month review hearing, but both were represented by counsel. At the request of the mother's counsel, the court set a contested 12-month review for October 2, 2019. For the contested hearing, the Bureau submitted an updated memorandum reporting that father had not been heard from since the prior hearing and had not been in contact with the social worker. The social worker reported that she had not had the opportunity to speak with father regarding the case plan requirements of visitation and parenting since their conversation on June 12, 2019 during which she informed father that he needed to complete a parenting class. Father had not attended visits with J.S. after his last July 18, 2019 visit. The social worker mailed a case plan to father at the address he provided, but the mail was returned on August 27, 2019 marked "undeliverable." The Bureau reported that it appeared that father no longer had a working phone as several calls to him were unsuccessful.
Neither parent appeared for the contested 12-month review hearing, but both were represented by counsel. The court terminated family reunification services for the mother, found the Bureau had complied with the case plan by making reasonable efforts to return J.S. to a safe home, continued family reunification services for father, and set an 18-month review hearing for December 9, 2019. C. December 9 , 2019 to March 9 , 2020: The 18-Month Contested Review
The Bureau's 18-month review report stated that, from July 2019 to October 11, 2019, father was not in touch and could not be located. All calls to father were unanswered and unreturned. On October 11, 2019, the social worker received a message from father stating that he was calling from a third-party number and inquiring how J.S. was doing. The social worker returned the call and spoke to a man called "Uncle Steve," who said he would pass along her message. Father did not call back. On the same day in October, the social worker received a message stating that the supervisor overseeing father's visitation had spoken to father, and father said he did not have transportation to get to the office, was broke, did not have a phone anymore, was leaving the area soon for a job, and was not sure when he would return.
On December 3, 2019, father called the social worker from a new phone number and said that he had been working in Seattle but had returned and was ready to engage in the reunification process. Father was only interested in custody of J.S., not J.S.'s half-sister. Because of father's lack of visitation and the Bureau's concern that separating J.S. from his half-sister would not be in his best interests, the Bureau recommended terminating reunification services for father and setting a section 366.26 hearing.
At the December 9, 2019 hearing, father appeared with counsel and filed a new address form stating that his address in Yuba City was Apartment 55 at 1491 Bridge Street, not 1495 Bridge Street. At father's request, the court set a contested 18-month review hearing for January 27, 2020, and it ordered that all of its prior orders would remain in effect.
After father received a continuance for discovery issues, the contested 18-month review hearing occurred on March 9, 2020. The Bureau submitted an updated memorandum for this hearing stating that father had attended 8 of 13 scheduled visits with J.S. and the visits had gone well. Father said he was "working on himself" to prove he would be a good placement for J.S. Father brought gifts and fruits for J.S. during visits, taught J.S. about his history and academics, and the two played outside together. J.S. and his half-sister had been placed with new caregivers on January 10, 2020, and were doing well. The Bureau reported that the children's caregivers were motivated to keep the siblings together and provide them with permanence.
At the contested 18-month review hearing, the court admitted the 12-month and 18-month status review reports and memoranda into evidence. The social worker assigned to the case was on an indefinite leave of absence, so her supervisor for the case, Ms. Phelps, testified. Ms. Phelps testified that father's case plan consisted of a parenting class and visitation. She said that, to her knowledge, she believed the case plan mailed to father had been undeliverable and she believed the social worker had conversations with father wherein she discussed his case plan with him. Father missed visits with J.S. from July 2019 to December 2019, and visitation resumed once father returned in December. Between his reappearance and the contested 18-month review hearing, father visited J.S. eight times but missed five other visits. When visits occurred, they went well, and father had a bond with J.S. Ms. Phelps conceded that she did not see case contact notes reflecting efforts by the social worker in September, October and November 2019 to contact father; however, the Bureau submitted a due diligence search that reflected efforts to find father in the fall of 2019, and the social worker recorded her efforts in her accurate 12-month review report to contact father from July 2019 to October 2019.
Father testified that he was present when J.S. was born, and he had purchased a playpen, crib, toys, and clothes for J.S. He said that the mother went back and forth between Yuba City and Richmond for a couple of years and then left and went on her own when J.S. was two or three. Father denied having reported to the social worker that the mother left when pregnant with J.S. and he did not know her whereabouts. He testified that he learned that J.S. had been taken in protective custody when he asked the mother to see the baby approximately two years ago in July. Prior to the Bureau's involvement, father believed he had seen J.S. about six or seven times.
Father testified that he was a farmer and did gardening and traveled for work to other states. He stated that he could not practice his trade living in one location. He testified that he had told the social worker that he needed to leave the state for work and that he told her to contact him through Uncle Steve. Father testified twice that Uncle Steve's address was 1495 Bridge Street, Apartment 55, but then later testified that address was incorrect and the correct address was 1491 Bridge Street. He did not recall whether he discussed visitation with J.S. with the social worker while he was out-of-state.
Father admitted that he left for a job between Portland and Seattle in July 2019 and returned in December 2019. He said that he did so to earn money to get his baby, although he had concerns that being gone for so long may be bad for J.S. He admitted he had no phone in October 2019. Uncle Steve was not able to contact father, but father said he called Uncle Steve to check in every two or three weeks. When pressed by the court for clarification, father said he remembered calling Uncle Steve at most twice in October, but not otherwise in October, November, or December.
At the time of the March 2020 hearing, father was taking a parenting course that he had found, and he had attended six classes with six left to go. He was working in Bear Creek, in Butte County, and going back and forth between Uncle Steve's place and Sacramento, where his girlfriend lived. Father was trying to get an apartment in Sacramento or Yuba City, but he had not signed a lease and was waiting to see which apartment was vacant first. If J.S. was placed with him, he would stay with Uncle Steve until he got situated. When asked what he would do if J.S. was placed with him that day, father answered "take him home and put him inside our room, let him sleep, and feed him." The following day, he would look around for a school program, and he had not done so before because he did not know where he would be moving. His plan for childcare while he was working would be his aunt or sister or somebody, and his aunt and sister lived in Sacramento.
Father conceded that someone at the Bureau had discussed taking the train to J.S.'s visitations with him, and, on rebuttal, Ms. Phelps testified that the visitation supervisor told father to ask the social worker for train tickets if he was willing to take the train after he cancelled a visit because of car trouble.
The court terminated reunification services for father and set a hearing under section 366.26. The court found that extensive services had not been provided, but reasonable services had been provided. The court found that father had been offered visitation, the most important service at issue so that he could create a bond with his son, and father, not the Bureau, dropped the ball with visitation. The court remarked that father gave the Bureau the wrong address, and the court did not find father's testimony that he had told the social worker about his plans to leave the state credible. The Bureau made efforts to find father, and the court was skeptical that father had informed the Bureau to contact Uncle Steve. In any event, the court found that Uncle Steve was not a reliable method of contact because father would only contact Uncle Steve sporadically. The court found that father was not prepared to take J.S. into his custody, and he was a stranger to J.S., albeit a familiar one, with only 15 to 20 visits with J.S. during his five-year life. The court also noted that father had not made all of the visits offered to him after his reappearance in December 2019. For these reasons, the court found that it would not be in J.S.'s best interest to be pulled from a stable placement with his half-sister to be placed with father.
DISCUSSION
A. The Detriment Finding
Father contends that insufficient evidence supports the juvenile court's finding that J.S. would face a substantial risk of detriment if returned to father's care, but the finding was supported by substantial evidence.
At the 18-month review hearing, "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 to his or her parent . . . 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." (§ 366.22, subd. (a)(1).) " '[Detriment] cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' [Citation.] Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child's physical or emotional well-being." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400, italics omitted.) Detriment can be shown in various ways, such as: "instability in terms of management of a home [citation]; . . . limited awareness by a parent of the emotional and physical needs of a child [citation]; failure of a minor to have lived with the natural parent for long periods of time [citation]; and the manner in which the parent has conducted himself or herself in relation to a minor in the past." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
We review a finding of detriment to determine whether there is any substantial evidence to support the finding. (In re Yvonne W., supra, 165 Cal.App.4th at pp. 1400-1401.) In doing so, " 'we have no power to . . . the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' " (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
The record provides substantial evidence that the placement of J.S. with father would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a)(1).) Even viewing the evidence favorably to father, he had only seen J.S. 15 to 20 times in J.S.'s five-year life. Father testified that he was aware of J.S.'s detention in July 2018, yet he did not contact the Bureau or appear in court until January 2019 and March 2019, respectively. A key service that father needed to engage in was visitation, yet father made only 8 of 13 visits after December 2019. Father was, as the juvenile court observed, "for all intents and purposes a stranger," albeit a familiar one. Father had no particularized plan for how he would care for J.S., and J.S. had been placed with his half-sister since their initial detainment. While their recent concurrent placement was relatively new, the siblings were placed together, and the placement was going well. The juvenile court could reasonably find, based on this evidence, that the disruption of J.S.'s current positive placement with his half-sister to place him with a familiar stranger, particularly one who disappeared from J.S.'s life for about five months shortly after beginning visitation, would create a substantial risk of detriment to J.S. (See Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 555 [evidence that father first came in contact with his son when he was 15 months old and his son was thriving in a secure and loving home was sufficient to support a finding of a substantial risk of detriment to the son's emotional well-being].) B. Reasonable Reunification Services
Father argues that the juvenile court should have continued reunification services for him because the Bureau failed to prepare a case plan and did not offer him reasonable reunification services.
Turning to father's first argument, sufficient evidence establishes that the Bureau prepared a case plan for father. After the court recognized father as the presumed father, it ordered the Bureau to prepare a new case plan within a week. The Bureau's 12-month review memorandum states that the social worker mailed father his case plan, but it was returned as undeliverable on August 27, 2019. The 12-month review report does not include father's case plan and instead, perhaps inadvertently, attaches two copies of the case plan with respect to the mother. However, at the contested 12-month review hearing, father did not challenge the existence of a case plan. The Bureau's 18-month review report, authored by the social worker who mailed the case plan, reiterated that she had mailed the case plan to father, but it was returned, and the report also recounts the components of the plan (visitation, resources to meet J.S.'s needs, and a parenting course) and father's compliance status. Ms. Phelps testified without objection that father had a case plan that included visitation and a parenting course, the Bureau tried to mail a case plan to father but it was returned, and the assigned social worker had conversations with father about the case plan. This evidence thus demonstrates that this is not a case where the agency failed to create a case plan. Rather, the question is whether the Bureau offered reasonable services pursuant to the plan.
At the 18-month review hearing, the juvenile court is required to determine whether reasonable services were offered or provided to the parent. (§ 366.22, subd. (a)(3).) In this regard, "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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The reasonableness of the agency's efforts is judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "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.) The juvenile court found by clear and convincing evidence that reasonable services had been provided. Section 366.22, subdivision (a)(3) does not expressly require clear and convincing evidence of reasonable services, so it has been held that the standard of proof is preponderance of the evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 595.) Under either standard of proof, the juvenile court's order is supported by substantial evidence. (Id. at p. 598 [reviewing the juvenile court's reasonable services finding for substantial evidence].)
Father argues that reasonable services were not offered because the Bureau made little effort to contact him while he was out of state, the Bureau did not facilitate visits or arrange transportation to Contra Costa County, and the Bureau did not refer father to the parenting course father attended. Father's first two contentions have no merit. Father gave an incorrect address, left California sometime in July 2019, and did not return until December 2019. During this period, his phone became inoperable, hence the Bureau's calls from August to October were unsuccessful. The sole time that father called the social worker from a third party number in October, she called back and asked the third party to have father call her. He did not. The Bureau did a due diligence search for father in October and November 2019. Father conceded that he did not have a working phone at that time, and the court found his testimony that he informed the social worker about his plans to leave the state was not credible. With his whereabouts unknown, the Bureau had no way of providing father with services and made reasonable efforts to find him. Once father returned, he was consistently offered visitation. The Bureau's visitation record shows that when father missed visits, he did so most often because he did not confirm the visit. There was no evidence that he sought a change in the visitation location, and the visitation supervisor told father to request Amtrak tickets from the social worker for visitation to alleviate any transportation issues he might have if he was willing to take the train. The record supports the juvenile court's reasonable services finding in these respects.
A closer question is presented with respect to the parenting course. Due to father's absence, the Bureau had not provided father with parenting course referrals in Yuba City as of the initial 18-month review in mid-December 2019, and there is no direct evidence the Bureau provided father with referrals thereafter. However, the social worker informed father that he needed to complete a parenting course in June 2019, and Ms. Phelps testified that she understood the social worker spoke to father about his case plan. When asked about father's compliance with his case plan in March 2020, Ms. Phelps was aware that father was taking a parenting course. It is reasonable to infer from this evidence that the Bureau spoke to father about the parenting course requirement, leading father to enroll in a course, and kept in touch with him about it thereafter. Father testified that he had taken six classes and had six left, and the record shows his course was 12 weeks long. Thus, it appears that father began courses near the last week of January 2020, and referrals to specific providers thereafter would have served no purpose. Certainly, best efforts by the Bureau would have consisted of providing a parenting course referral when father reappeared in December 2019 and the court set a contested 18-month review hearing. Nonetheless, where the juvenile court stated that a critical concern for reunification was that father was effectively a stranger to J.S. who inconsistently visited and had disappeared for months almost as soon as he appeared in J.S.'s life, and where the Bureau made significant efforts to facilitate the key plan element of visitation, the lack of direct evidence of parenting course referrals from mid-December 2019 to January 2020 does not defeat the reasonable services finding. C. Extension of Reunification Services Under Section 352
Father also argues reunification services should have been extended because the court could have continued the 18-month review hearing under section 352, subdivision (a). While we agree that a juvenile court can extend services up to 24 months under section 352 upon motion and good cause showing, this does not mean the court must extend services when, as here, it concludes the Bureau provided reasonable reunification services and no motion under section 352 was made.
Under section 352, upon the request of counsel for the parent, guardian, minor, or petitioner and with a showing of good cause, the court may continue a dependency hearing beyond the time limit within which the hearing is otherwise required to be held, provided that a continuance shall not be granted that is contrary to the interest of the minor. (§ 352, subd. (a)(1), (2).) "In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a)(1).) It is within the juvenile court's discretion under section 352 to continue the 18-month review hearing and extend reunification services up to 24 months upon a showing of good cause. (In re J.E. (2016) 3 Cal.App.5th 557, 564-565 [the court has discretion to extend reunification services up to 24 months under section 352 where it finds that reasonable reunification services were not provided at the 18-month hearing]; T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1254 [agreeing with In re J.E.].)
There was no error in failing to extend reunification services. While the juvenile court has discretion to extend these services up to 24 months where reasonable services have not been provided (In re J.E., supra, 3 Cal.App.5th at pp. 564-565), section 352 does not require a court to extend services when it concludes that reasonable services were provided. In the inapposite authorities cited by father, appellate courts reversed juvenile courts' rulings that they lacked discretion to extend reunification services beyond 18 months even where reasonable reunification services had not been provided or the parent was prevented from participating in services through extraordinary circumstances, such as hospitalization. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1216 [juvenile court had discretion to extend reunification services where it concluded the services provided were not reasonable]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1779 (Dino E.) [juvenile court found reasonable services had not been provided and agency failed to provide a reunification plan]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777, 1799 [mother was hospitalized during most of the reunification period but substantially complied with the reunification plan].) Those circumstances are not present here. Father knew J.S. had been removed from the mother's custody approximately eight months before he first appeared in court, and he elected to leave California for almost five months shortly after the court granted him reunification services and admonished him that he would need to engage quickly and "show[ ] up for every visit."
Further, father did not make a proper motion under section 352. Section 352 contemplates that written notice of a motion to continue "shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance." (§ 352, subd. (a)(3).) While father's counsel requested a six-month extension of reunification services in her closing remarks at the hearing without referring to section 352, no written motion was made and counsel did not make a showing of good cause for an oral motion where the 18-month review hearing had already been continued three months for father's contest and discovery continuance request. Dino E., cited by father, did not hold that juvenile courts are required to continue reunification services under section 352 sua sponte. Rather, Dino E. found that the juvenile court could entertain a section 352 motion on remand after reversing the juvenile court's ruling that it had no discretion to continue reunification services beyond 18 months even though the juvenile court found that the reunification services provided were insufficient. (Dino E, supra, 6 Cal.App.4th at pp. 1775, 1779-1780.) No such finding is at issue here.
DISPOSITION
Father's writ petition is denied on the merits. The request for a stay is also denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.