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ELVIS v. Los Angeles County Department of Children and Family Services, Real Party in Interest.

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Court of Appeal, Second District, Division 4, California.

ELVIS P., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Department of Children and Family Services, Real Party in Interest.

No. B124599.

Decided: November 23, 1998

Paul Metzger, Los Angeles, for Petitioner. No appearance for Respondent. Lloyd W. Pellman, County Counsel, Auxiliary Legal Services, Inc., Arezoo Pichvai and Judith A. German, Monterey, for Real Party in Interest.

By petition for writ of mandate, Elvis P. asks us to vacate the court's order terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 (all statutory references are to this code) to develop a permanent plan for his daughter, Ebony P. Petitioner claims the court should have exercised its discretion to extend reunification services beyond the 18-month period specified in section 366.22, subdivision (a).   Petitioner, who has been incarcerated during the entire period of this dependency case, complied with every part of his reunification plan available to him.   During the reunification period, he was not provided with visitation services, which were ordered by the court, nor were efforts made to assist him in otherwise beginning and maintaining a relationship with his daughter.   Given this lack of services and petitioner's impending release from prison, we conclude the court abused its discretion in refusing to extend the reunification period in order to afford petitioner the opportunity to complete the reunification plan.   We grant the requested relief.

FACTUAL AND PROCEDURAL SUMMARY

Ebony was born on November 30, 1996, addicted to cocaine.   She was detained by the Department of Children and Family Services (DCFS).   In May 1997, a section 300 petition was sustained on the grounds that she was born addicted, that her mother's use of cocaine created a danger to her, and that her father, petitioner, was incarcerated for drug-related offenses and was unable to care for her.

Ebony was placed in foster care, and the court ordered reunification services for both parents.   Father was ordered to attend a DCFS-approved program of parent education and drug rehabilitation with random testing.   He was to have monitored visitation, and DCFS was given discretion to liberalize the visits.

On October 9, 1997, the DCFS social worker wrote to father at the Soledad correctional facility, reporting on Ebony's progress and specifying:  “The following are the activities that you need to be involved in which will facilitate reunification with your child:  FATHER is to be in counseling with DCFS approved counselor, shall include:  DRUG COUNSELING, parenting, and RANDOM DRUG TESTING.”   There was no mention of visitation.

At the six-month hearing on October 31, 1997, DCFS was ordered to provide the parents with family reunification services.   Between December 1997 and February 1998, father was moved from Soledad to the Los Angeles Correctional Training Facility, then back to Soledad.   The social worker, with the assistance of father's counselor at Soledad, sent father copies of the minute order and court report outlining the required reunification activities.   Father's counselor agreed to assist father in obtaining the appropriate services, if they were available.

On March 27, 1998, father telephoned the social worker and told her he had enrolled in parenting classes and was participating in substance abuse counseling.   He explained he would not attend the 12-month hearing on May 1, 1998 because attendance at the counseling sessions was mandatory.   He stated he would be ready for parole on November 27, 1998.   The social worker responded by letter.   She stated, “I am pleased to hear of your participation in drug counseling and parenting education.   Please call to inform me of your participation in random drug testing so that I may monitor your progress.”   The social worker encouraged petitioner to call her, collect if necessary, “[i]f you need assistance with any of the above or would like to discuss the status of your child․”

The DCFS report for the 12-month hearing described Ebony's developmental progress and the foster mother's “excellent on-going care” and her interest in adoption.   The social worker reported that mother was not in compliance with the reunification plan.   As to father, she reported:  “Father has been partially compliant with court orders, including parenting education and drug counseling, however has not yet submitted to random drug testing.   Further, due to father's anticipated 11/27/98 parole date, he will not be able to reunify by the 18 month reunification deadline.”   DCFS recommended that Ebony be referred for adoptive planning.

Notice of the May 1, 1998 review hearing was sent to petitioner at Soledad.   It stated the social worker's recommendation for termination of family reunification and for adoptive planning.   Petitioner waived his presence at that hearing.   He wrote to the social worker, expressing his disagreement with the recommendation.   He explained that he was “currently doing all thats [sic ] in my power to comply․”   He explained that he had been unable to participate in random drug testing, and asked for the social worker's assistance in that regard.

At the May 1 review hearing, the case was continued to June 24, 1998.   The social worker wrote to petitioner on May 8:  “I am writing in response to your letter dated 4/14/98 regarding DCFS recommendations of long-term foster care/permanent placement services as to minor, Ebony [P.], for the 5/1/98 Judicial Review court hearing.   During this hearing, I spoke with your attorney, Mr. Robert Ragland, and we both agreed that you are making every effort possible to reunite with your daughter, i.e. you are currently participating in drug counseling and parenting education as per court ordered activities and have demonstrated your commitment to these activities over time.   I am very proud of you in terms of the accomplishments you have made thus far.  [¶] In light of the above, I will recommend that you be given an additional six months to reunify with your daughter for the next court hearing on calendar for June 24, 1998․”   The social worker stated she would contact petitioner's counselor to obtain more information about the availability of random drug testing for petitioner, “after which I will give you further instruction as to how we will handle this issue.”   The social worker reported that Ebony was doing well in placement and in therapy, and enclosed pictures of her.

Petitioner responded by letter on May 17.   He thanked the social worker for the photographs, and expressed concern that he would be three to four weeks short of completing his substance abuse class at the time of the next hearing.

On June 24, the case was continued to August 3 for a contested hearing.   On July 7, petitioner wrote to the social worker.   While still expressing hope that he might be unified with his daughter, he also explained that “I don't want to fight those who has my daughter's best interest at heart.   So if its not to late to try to come an agreement that guardianship would be more appropriate to keep the family together in my case bring them together.”

The social worker's report for the August 3, 1998 hearing reported that father “continues to remain partially compliant with court orders.   Father has received a certificate for the completion of parenting education and drug counseling.   However, father has not commenced drug testing at his current facility for reasons which remain unknown to CSW. CSW made contact with father's counselor, Ms. Gibbs who stated father would need a court order to obtain a urinalysis as well as approval from the captain.   CSW mailed a copy of the minute order and court report outlining father's ordered activities on 2/24/98, and has since then attempted contact with counselor Gibbs leaving numerous messages in order to ensure that father received drug testing.   CSW has received no information regarding the status of this activity.”   The social worker reported that father informed her that to date he had received no cooperation from counselor Gibbs.

The report continued:  “Father has expressed to CSW his desire to obtain custody of the minor following his release.   However, father's anticipated parole date of 11/27/98 falls short of the 18 month reunification deadline.  [¶] Not to mention, father had a window of opportunity to intervene during mother's pregnancy and her consistent use of crack cocaine and failed to make a plan or provide support for the child.   Furthermore, father has established no concrete plan to support the minor or to promote the establishment of a household, and in short DCFS feels that father's proposal is too late.”   According to the report, permanency planning was in an advanced stage, with a request by the foster mother to adopt the child.

The contested section 366.22 hearing was held on August 3, 1998.   The social worker testified that the only portion of the reunification plan that petitioner had not completed was random drug testing.   After further testimony about the petitioner's inability to obtain that service in prison, the court stated that for purposes of the hearing, he would assume that if petitioner had drug tested, he would have tested clean.   Petitioner elicited testimony from the social worker that she had not attempted to facilitate visitation with petitioner, nor had she informed petitioner that he could telephone the foster mother.   He argued that he had not received reasonable reunification services in the form of reasonable visitation.   The court rejected petitioner's argument, pointing out that petitioner was incarcerated a great distance from the child's placement, making visitation costly and difficult.   In addition, the court felt the child was so young that sporadic brief visits would not have made a difference.

The court found no exceptional circumstances to justify extending reunification services beyond the 18-month period and terminated services.   The court set the matter for a section 366.26 hearing on November 30, 1998, three days after petitioner's scheduled parole date.   Petitioner seeks relief from this order.

DISCUSSION

Petitioner argues that he was not provided with reasonable reunification services, and that the court therefore should have exercised its discretion to continue the 18-month hearing to permit him to participate in the reunification services which were to be provided.   We find merit in this argument.

Section 361.5, subdivision (e)(1) describes the types of reunification services which may be appropriate for a parent who is incarcerated or institutionalized.   The services include, but are not limited to maintaining contact between the parent and child through collect telephone calls;  transportation services or visitation services, if appropriate;  and reasonable services to extended family members or foster parents.   In addition, an incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs.  (§ 361.5, subd. (e).)  “This statute reflects a public policy favoring the development of a family reunification plan even when a parent is incarcerated.”  (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011-1012, 70 Cal.Rptr.2d 603.)

Section 361.5 has been construed “ ‘to require “[a] good faith effort” to provide reasonable services responding to the unique needs of each family.’ ”  (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472, 50 Cal.Rptr.2d 385.)   The record in this case shows a great deal of “good faith” in the provision of reunification services.   The social worker wrote to petitioner, informing him of his obligations to participate in counseling and drug testing under the reunification plan, and shared news of his daughter's health and well-being.   She gave petitioner encouragement when he advised her of his compliance with the counseling requirements, and made efforts to help him comply with the drug testing requirement while incarcerated.   We will assume, as did the trial court, that had petitioner been drug tested, he would have tested clean.   With that assumption, we conclude that petitioner was in full compliance with all the reunification services offered to him.

 The reunification plan also included an order for monitored visitation between petitioner and his daughter.   A court is not required to include visitation as part of the reunification plan for an incarcerated parent.   Section 361.5 expressly provides that services for an incarcerated parent “may” include “Visitation services, where appropriate.”  (§ 361.5, subd. (e)(1)(C).)   But where the court does order visitation services for an incarcerated parent, DCFS is obligated to make a good faith effort to assist the parent in fulfilling that order.

 We recognize the practical difficulties in arranging visits between a very young child and a parent incarcerated a long distance away.  (See In re Ronell A. (1996) 44 Cal.App.4th 1352, 1363, 52 Cal.Rptr.2d 474.)  “[T]he department is not excused from offering or providing court-ordered reasonable reunification services because of difficulties in doing so or the prospects of success.”  (Mark N. v. Superior Court, supra, 60 Cal.App.4th at pp. 1014-1015, 70 Cal.Rptr.2d 603.)

In this case, the social worker did not mention the visitation portion of the order to petitioner in her letters to him, nor were any efforts made to facilitate such visitation.   No visits were arranged, and no alternatives were offered, such as arranging for telephone calls or letters between petitioner and his daughter, or even between petitioner and the foster mother.   During the early months of the case, when Ebony was just an infant, such contacts may not have been feasible.   But Ebony was 21 months old at the time of the 18-month hearing.   At that point in her life, visitation or communication with her father may have presented a meaningful opportunity for family reunification, yet no efforts were made toward that end.   The absence of any visitation between an incarcerated parent and child has been held to “represent [ ] a grave shortcoming” in the reunification services offered to the parent.  (See In re Monica C. (1995) 31 Cal.App.4th 296, 306, 36 Cal.Rptr.2d 910.)

There is another factor in this case which makes the inadequacy of the reunification services for petitioner particularly compelling.   Although petitioner was incarcerated during the entire period of the case, he is scheduled to be released on November 27, 1998-three days before the scheduled permanency planning hearing.   The logistical difficulties in facilitating visitation will be dramatically reduced once he is released from prison.   He and his daughter will then have a very real opportunity to establish a relationship.   Petitioner will also have the opportunity to establish a household and develop a concrete plan to support his daughter.   This is a case where successful reunification is a tangible possibility, given petitioner's conscientious compliance with his case plan during his incarceration, and his sustained interest in his daughter's progress and well-being.

 These are indeed exceptional circumstances which justify a court in exercising its discretion to extend the reunification period beyond the 18-month period pursuant to section 352.  (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1797-1799, 42 Cal.Rptr.2d 200.)  “In exercising its discretion [to extend the reunification period], the juvenile court should consider:  the failure to offer or provide reasonable reunification services;  the likelihood of success of further reunification services;  whether [the child's] need for a prompt resolution of her dependency status outweighs any benefit from further reunification services;  and any other relevant factors the parties may bring to the court's attention.”  (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017, 70 Cal.Rptr.2d 603.)

 In this case, these factors all resolve in favor of continuing the 18-month hearing in order to provide petitioner with the visitation which was ordered as part of his reunification plan.   The trial court erred in terminating reunification services and setting the case for a permanency planning hearing.

DISPOSITION

The writ is granted and the trial court is directed to vacate its order terminating reunification services and setting the matter for a section 366.26 hearing, and to enter a new order continuing the section 366.22 hearing for a reasonable period during which petitioner is to receive additional reunification services.   This decision is final as to this court immediately upon filing, pursuant to California Rules of Court, rule 24(d).   The clerk of this court is directed to notify the clerk of the trial court forthwith of this decision, in accordance with California Rules of Court, rule 39.1B(r).

EPSTEIN, J.

CHARLES S. VOGEL, P.J., and CURRY, J., concur.

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