IN RE: JASMINE S. et al.

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Court of Appeal, Second District, Division 1, California.

IN RE: JASMINE S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. AUBREY S., Defendant and Appellant. In re AUBREY S., On Habeas Corpus.

Nos. B110106, B111662.

Decided: September 08, 1997

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. DeWitt W. Clinton, County Counsel, Auxiliary Legal Services, Inc., and Lois Timnick for Plaintiff and Respondent.

Aubrey S., father of two dependent minors, appeals from an order terminating his parental rights and releasing the minors for adoption.  (Welf. & Inst.Code, § 366.26.) 1 Father contends the juvenile court should have granted him a 60-day visit with, and appointed independent counsel for, the minors.

Father also petitions for writ of error coram vobis for alleged incompetence of counsel, which we treat as a petition for writ of habeas corpus.   We grant the petition, direct the juvenile court to vacate its section 366.26 order as to Father only,2 and to provide him with a new period of reunification services.   In light of our disposition of the writ petition, we dismiss the appeal as moot.

FACTUAL BACKGROUND

The minors, Jasmine and Elizabeth S., were born on July 28, 1993, and December 10, 1994, respectively.   At birth, Elizabeth tested positive for cocaine.

On January 24, 1995, Mother was arrested and the minors were taken into protective custody because both their parents were incarcerated.   On January 24 or 25, 1995 (the record contains both dates), the minors were placed with their foster mother, with whom they still reside and who wishes to adopt them.

On January 26, 1995, the Los Angeles County Department of Children and Family Services (department or DCFS) filed a section 300 petition alleging the minors were dependent children because of, among other things, their parents' inability to provide adequate supervision due to substance abuse (§ 300, subd. (b)), and failure to arrange for their care during the parents' incarceration (§ 300, subd. (g)).  The petition further stated the “parents have a history of ingoing [sic] in violent altercations․”

At the detention hearing on January 27, 1995, the court found a prima facie case had been made for detaining the minors.   The court ordered the department to place the minors in shelter care, with discretion to release them to appropriate relatives.   The court gave the paternal grandmother monitored visitation rights.3

The children's social worker's (CSW) judicial review report filed on February 23, 1995, recounted a telephone interview between CSW Flanagan and Father on February 13, 1995, as follows:  “[Father] stated that he is currently incarcerated and is awaiting transfer to state prison.   He states he expects to be released in about one year.   He stated that he has admitted that he has had a problem with marijuana, and that he was smoking every day on his way to work, and that on his way home he would smoke a couple of joints with his friends.   He said that since 1992 he has been arrested for sales of cocaine, but that is not his drug of choice.   He said that he is currently incarcerated because they found cocaine in his car.   He stated that minors' mother had had the car the night before.   He states that he a[ ]nd minors' mother would ‘argue a little,’ and that he thought ‘I hit her a couple of times but not a lot.’ ”

Flanagan recommended in her report “that, if within the next period of supervision minors' parents do not make substantive efforts to resolve their drug use by participation in long-term residential drug-rehabilitation program, minors be immediately referred for adoptive planning.”   Flanagan's report set forth a case plan goal requiring Father, among other things, to attend any available prison drug rehabilitation program, enroll in a residential drug rehabilitation program with random weekly drug testing immediately upon his release from prison, complete a parenting skills program by August 1996, attend narcotics anonymous meetings 3 to 4 times a week, immediately enroll in a domestic violence counseling group, obtain and maintain a permanent residence by August 1996, and cooperate with the department and keep it advised of his whereabouts.

At the disposition hearing on February 23, 1995, at which both parents were present, the court found the minors to be dependent children under section 300, subdivisions (b) and (g), and ordered them removed from their parents' legal custody.   The department was ordered to provide both parents with reunification services, and the parents were ordered to participate in the counseling programs specified in Flanagan's report.

Pursuant to CSW Larry Chen's six-month judicial review hearing report filed on August 14, 1995, the court continued its jurisdiction over the minors and maintained its prior orders at the August 14 hearing.   Regarding Father, Chen's report stated:  “The children[']s father has been transferred from a prison in Delano to the prison in Jamestown.   No contact has been made between the undersigned and the father as the case was recently re-assigned and time was limited before writing this report.”   Chen stated that the department's case plan goal was to return the minors to Mother by February 14, 1996, and terminate services by August 14, 1996.   The report specified that Father, who did not participate in the development of the case plan due to his incarceration, was to participate in a drug testing and counseling program, attend domestic violence counseling, and complete parenting classes before February 14, 1996.   Father was denied face-to-face visitation due to his incarceration.   As for services, the report indicated a CSW would “begin to maintain regular monthly contact with the father.”  (Emphasis supplied.)

Chen's 12-month judicial review hearing report filed on February 22, 1996, stated that according to Mother, Father “was released from prison the second week of January [1996] ․ [and] reportedly resides in a half-way house.”   The report listed Father's whereabouts as “unknown.”   The report failed to indicate whether a CSW had been in regular monthly contact with Father during the preceding six months.   It did state, however, that Father had contacted Chen “in December inquiring if he could obtain custody of the children upon his release from prison.   He thought he had as much right to the children as the mother.   He was asked to call DCFS upon his release but he has not done so.” 4

Based upon Chen's recommendation to provide six additional months of services with the stated aim of returning the minors “to the home of their parents ” (emphasis added) and terminating services by February 22, 1997, the court ordered six more months of services at the February 22, 1996, 12-month review hearing.

Chen's 18-month review report filed on July 26, 1996, indicated Father had been released from prison on June 14, 1996, a little more than a month before the 18-month hearing.   According to Chen's report, Mother's situation had drastically altered.   Mother had disappeared, causing Chen to recommend, for the first time, adoption by the foster mother.   Chen did not consider Father suitable as caregiver, stating:  “Their father was released from prison on June 14, 1996 and he has yet to visit them or display much interest since his release.”   After his release, Chen's report noted, “Father states he has attended one parenting class.”

Father sought visitation with the minors upon his release, but the department required him to first produce three consecutive clean drug tests.   Chen's 18-month report stated:  “The father was released from prison on June 14, 1996.   He requested visits with the children shortly after his release.   He informed the CSW that he had the foster mother's phone number but he has yet to make an appointment to visit the children according to the foster mother on July 25, 1996.   The father was informed on June 28, 1996 of the [18-month review] hearing [set for] July 26, 1996 and that the recommendation would be for adoption.   He was encouraged to comply with the court orders regardless of the recommendation.”

Apart from the CSW's December 1995 conversation in which Father had asked for custody and was told to call back upon his release, the CSW reports contained no hint that any services had been provided by the department to Father during his incarceration.5  By the time Father was informed on June 28, 1996, of the upcoming 18-month review hearing and the department's changed recommendation for adoption, Father had only four weeks within which to comply with the court orders.

At the July 26, 1996, 18-month review hearing, the following exchange occurred between Father's counsel, Joan Daniels, and the juvenile court:

“Ms. Daniels:  Your Honor, I just wanted the court to understand that-to make some corrections.   The father is in a parenting class.   He has not complied with the court orders up to this time.   He was released from incarceration a month ago.   However, he is enrolled and participating in a parenting class, the Avery Canmern Unity Center (phonetic), and he's also testing through his probation.   And he's-I hope that maybe by the time we get to the .26-

“The Court:  Well, the question becomes is that going to be sufficient to meet the requirement of prior orders for the father.

“Ms. Daniels:  No. And for that reason, I'm not going to set it for a contest.

“The Court:  I'm talking about in the future, too.  [¶] You have to make sure that where he is testing is approved.   He's testing through his probation?

“Ms. Daniels:  His social worker told me this.

“The Court:  You better make sure that that is agreed that that place-the question becomes-do you understand what I'm saying, Ms. Daniels?

“Ms. Daniels:  I understand.

“The Court:  I read and considered the report submitted by the Department․

“․

“The Court:  All right.  [¶] Ms. Daniels, submitted?

“Ms. Daniels:  Yes.”

The juvenile court then found adequate reunification services had been provided, ordered services to be terminated, and set a permanency planning hearing for November 14, 1996.  (§ 366.26.)   Father did not petition for extraordinary writ review of the July 26, 1996, order setting the section 366.26 hearing.  (Cal. Rules of Court, rule 39.1B.)

CSW LaShawn Kindle's report filed for the November 14, 1996, section 366.26 hearing showed that Father, despite the termination of services, had attempted to comply with the prior court orders at his own expense.   Kindle also pointed out that Father, who had lost contact with Mother while incarcerated, was told by Mother only after his release that she expected him to seek custody of the minors.   The report indicated that upon learning that Mother was no longer seeking custody, Father quickly attempted to comply with the court orders:  “[Father] lives with his unemployed uncle ․ at his current address.   He pays $450 monthly rental as [his uncle] has no income.   He works as a maintenance man at the East Los Angeles Remarkable Citizen Office.   He receives $8.50 hourly wage and renders 40 hours service weekly.  [¶] He will appear in court today to oppose adoption plan for Jasmine and Elizabeth.   He wants these children returned to him after he completes court orders of parenting class, domestic violence class and random testings.   He said he enrolled at a parenting class 1st week of July, 1996.   He has 2 hour session (4:00 pm-6:00 pm) per week at [address omitted].   He paid $100 for the 12 sessions․   He is also enrolled at Stop the Violence Class at [address and teacher's name omitted].   Meanwhile, he said he reports regularly to his parole officer, Henry Marshall [address omitted].   He said Officer Marshall sees him every other week[ ] and arranges for his random drug testing.   Beginning August, 1996 to September, 1996 he had 3 test[s], all negative.  [He] said [h]e will provide parent social worker certification of his enrollment at the parenting and domestic violence classes as well as results of his drug tests.  [¶] [ ]He realizes he needs to comply and complete court orders and while so doing, he wants Jasmine and Elizabeth to be placed in the custody of their paternal grandmother, [Ms. Hall] [address omitted].  [Ms. Hall] works as a nurse.   Parent social worker advised [Father] to inform Ms. Hall to contact CSW La Shawn Kindle to discuss her intentions for Jasmine and Elizabeth.   The DCFS legal file reflects that Ms. Hall visits the children regularly․”

Regarding Father's visitation with the minors, Kindle's report stated:  “[Foster Mother] stated that the birth father has visited 3 or 4 times since he was released from jail.   She stated the visits were scheduled for every week but [Father] was unable to attend due to his excessive work schedule.   The visits are now set to occur whenever [Father] has the available time to visit Jasmine and Elizabeth.   The visits have been occurring once every three weeks due to [Father's] job obligations.  [Foster Mother] states the visits are going well and the children do not seem to be upset or sad when the visits are over.  [Father] usually keeps contact with Jasmine and Elizabeth by telephone on a weekly basis.”

On November 14, 1996, the date on which the section 366.26 hearing was to occur, Father petitioned the juvenile court to modify the custody order to permit him a 60-day visit with the minors or, alternatively, to return the minors to Father's home. (§ 388.)   The section 366.26 hearing was continued to February 26, 1997, when the section 388 petition was scheduled to be heard.   By filing the section 388 petition, Father obtained a continuance of the section 366.26 hearing, giving him a total of seven months from the July 26, 1996, order setting the section 366.26 hearing within which to complete his reunification plan.

On January 24, 1997, CSW J. Piero filed a case plan update that reiterated the department's recommendation to release the minors for adoption, and asked the court to set a hearing for July 25, 1997, to review the permanent plan.   Piero indicated Father had contacted his parent social worker (PSW) Myrna Delacruz on September 11, 1996, to oppose the termination of his parental rights and seek more time to rehabilitate himself.

On February 26, 1997, Piero filed a section 366.26 court report, recommending the minors be adopted by their foster mother.   The report stated Delacruz had spoken with Father on “9/18/96, 10/11/96, 12/27/96, 2/7/97 and 2/9/97[ ]․  Throughout this time, [Father] remained courteous, cooperative, and responsive.   On 2/8/97 parent social worker conducted an announced home call to [Father.]   He currently lives in a two-bedroom, one bathroom, one level medium sized house he rents for $750 a month.   He moved into this home in December 1996 and he bought Elizabeth and Jasmine beds.   He also is gradually furnishing the living room in preparation for the children's arrival.  [Father] appeared very enthusiastic to present a home worthy for Elizabeth and Jasmine.   The house is clean and comfortable to live in with a fenced yard which can serve as play area for the children.”   The report stated that according to Father, he had remained gainfully employed, completed parenting and domestic violence classes, reported to his parole officer twice a month for drug testing (all of which Father said were negative), and had regularly visited with the minors.

The section 366.26 CSW report further indicated Father had again requested that his mother, Ms. Hall, be given temporary custody of the minors until he could establish himself as a fit parent.   That report stated that Ms. Hall, however, had not established herself as a fit caregiver, because she had lost custody of another son, born in 1985, whom she visited only about once a year.   As for Father's own fitness, the report stated:  “The father ․ is well intentioned and has shown indicators that he has found a positive direction in life.   However, it is premature to ascertain whether he can maintain to lead a sober drug free life style permanently.”

At the section 388 hearing on Father's request for a 60-day visit, Henry Marshall testified that as Father's parole officer, he had collected urine samples from Father twice a month for drug testing.   Marshall said he had informed Father's PSW of the test results.   Marshall, who was unaware of the court order requiring Father to complete a DCSF-approved drug counseling program, admitted he was not a DCSF-approved provider.

PSW Delacruz testified Father had completed both the parenting and domestic violence counseling requirements ordered by the court, but not the department-approved drug counseling program requirement.   Delacruz explained that a department-approved drug counseling program lasts three to six months and meets about three times a week.   In her opinion, Father's meetings with his parole officer were inadequate to fulfill the court order.

Father testified he was unaware he had to complete a drug counseling program, and that Delacruz had never discussed that requirement with him even though she knew he was relying upon the results of his parole drug tests to obtain custody of the minors.   Father's attorney Daniels argued Father had substantially complied in good faith with the court's drug counseling requirement:  “Your Honor, I believe that my client substantially complied with the requirement for drug counseling.   That he had in good faith carried out what he believed to be the orders of the court.  [¶] He was incarcerated until June, and the .22 hearing was in July, a month later.   During that period of time that he was incarcerated, there was no-there was no reunification services that were-could have been afforded to him, because the facility he was in, as the testimony during-the evidence was in the .22 report, would indicate there was nothing.  [¶] ․ [¶] ․ Since the time that [Father] has been on parole, he has been testing and he has complied with the orders for domestic violence and for parenting.”

The juvenile court denied Father's section 388 petition, stating:  “․ [T]he court finds that the father has not complied with the court orders, has not participated regularly in court-ordered counseling;  which, specifically speaking, the order of the court was that he do a drug rehabilitation program with random drug testing, D.C.F.S. approved facilities.   And he did not meet those requirements.  [¶] It's clear to me that what he had going with the parole officer is minimal.   It is not even-you didn't come close to what is required of the drug program through these courts․  [¶] And-But as to the other things, he did do it.   It's clear from the testimony that he completed the other requirements.  [¶] Therefore, you have not met your burden, counsel, as to-for this Court to grant your modification as it is requested on that petition․”

Moving on to the section 366.26 hearing, the court heard testimony from CSW Piero, who stated Father had visited the minor five times since his release.   PSW Delacruz, who had not observed any of those visits, testified she had no idea of the degree of bonding between Father and the minors.   She testified in favor of adoption, stating it would be detrimental to the minors to remove them from their foster mother, with whom they had lived for many years.   Delazcruz further stated:  “And although the father is showing indications or leading to a positive life, it is a disappointing time.   It is premature to judge or to anticipate whether this will be a permanent, sober, productive living.   And the children are already getting older, and it's a permanent home.”

Father testified that he had been denied visits by the foster mother on four occasions, and had missed three other visits due to his work schedule.   Father stated he had visited the children six or seven times since his release.

The foster mother testified Father had had five visits since July 1996.   She stated that on the Sunday before the section 366.26 hearing, Father had been 70 minutes late for his visit, and had missed an earlier visit.

The paternal grandmother testified she had had visitation with the minors.

The juvenile court found there was no showing of a meaningful relationship between Father and the minors such that it would be detrimental to them to terminate Father's rights.   The court stated Father's six or seven visits had established only a “minimal contact with these children,” and observed, “[t]his is a non-meaningful relationship.”   The court found it would be detrimental to the physical or emotional well-being of the minors to return them to their parents, and found there was a continuing necessity for placement and juvenile court jurisdiction.   The minors were declared free for adoption, and the department was ordered to provide permanent placement services.

PETITION FOR HABEAS CORPUS

Section 317.5, subdivision (a) provides:  “All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.”   Because dependency proceedings may implicate compelling interests-the parent's fundamental interest in maintaining a parent-child relationship, and the child's fundamental interest in being part of a family unit-section 317.5, subdivision (a) has been found “to include a right to judicial review of claims of incompetence of counsel.”  (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1642, 54 Cal.Rptr.2d 722.)   This claim may be raised by petition of habeas corpus (ibid.), and we treat the petition herein as such.

Father contends his trial counsel was incompetent in two aspects, by failing to request additional reunification services at the 18-month hearing, and by failing to seek timely writ review of the order setting the section 366.26 hearing (with its underlying finding that adequate reunification services had been provided).  (Cal. Rules of Court, rule 39.1B.)   The failure to seek timely writ review precluded Father from appealing the order setting the section 366.26 hearing. (§ 366.26, subd. (l ).)

Attorney Daniels' declaration, attached to Father's habeas corpus petition, explained her reason for not filing a rule 39.1B petition as follows:  “My understanding of juvenile dependency law was that, if a parent was incarcerated where no reunification services were available and none were provided by the social worker, the parent had no recourse through a California Rules of Court, rule 39.1B writ petition.”

The law is otherwise.   Where the juvenile court orders reunification services for an incarcerated parent, the department must do more than what was done here, which was barely next to nothing.   The department utterly failed to meet its own commitment of maintaining regular monthly contact with Father.   The sole communication which occurred during Father's incarceration was the December 1995 phone call made by Father.   At that time, Father had inquired about obtaining custody of the minors upon his release, and Chen had simply told him to call back when he got out of prison.   There is nothing in Chen's report (or any other CSW's report) to suggest anyone had discussed with Father the programs he should be completing to obtain custody and whether they were offered in prison.6

This case is similar to Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 39 Cal.Rptr.2d 743, where the father, Robin, petitioned for writ of mandate to challenge the order terminating his parental rights to his child, Destiny.   The juvenile court, after finding Robin had been provided adequate services but had failed to complete any component of the plan, terminated services at the 12-month hearing and ordered a section 366.26 hearing.   The appellate court granted Robin's petition and vacated the order for a section 366.26 hearing, finding adequate reunification services had not been provided Robin during his incarceration.

The services provided to Robin far exceeded those in this case.   Robin's first social worker kept in monthly contact with him, discussed whether treatment programs were available in prison, gave referrals to treatment programs to be entered upon release, and helped Robin send letters to Destiny.   Robin's second social worker, D., had one in-person meeting with Robin and sent him two letters.   D. failed, however, to respond to Robin's inquiries about his right to visitation in prison, to send him books or pamphlets on parenting, or to review his service plan and advise him on programs he should be completing to secure his parental rights.   This record, the Robin V. court found, constituted insufficient evidence of adequate reunification services.   The court stated:  “Indeed, there is virtually no showing the [Orange County Social Services Agency] ‘offered services designed to remedy [the problems leading to Destiny's dependency], maintained reasonable contact with [Robin] during the course of the service plan, and made reasonable efforts to assist [him] in areas where compliance proved difficult.’  [Citation.]   The court's referral order [setting the matter for a section 366.26 hearing] constitutes a manifest abuse of discretion.”   (Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1166, 39 Cal.Rptr.2d 743.)

In this case, had Father's attorney filed a rule 39.1B petition, we would have granted it because Father had not received any services while incarcerated.   During the first six months, he had no social worker.   During the second six months, he was told to call the department back when he got out of prison.   At the end of the third six months, he was told to comply with the court orders but that the department was recommending adoption.   On this dismal record of departmental neglect, we would have vacated the order setting the section 366.26 hearing, set the case back to its status as of the February 23, 1995, disposition hearing, and provided Father with a new period of reunification services.   Accordingly, counsel's failure to file the petition may not be deemed harmless.

This is not a case where ordering additional services would appear, from the outset, to be a futile act.   During the seven months between the 18-month and the section 366.26 hearings, Father managed to complete all but one requirement, substance abuse counseling, of his plan.   He has held down a job, established a suitable home, completed parenting and domestic violence programs, and visited with the minors.   Had his PSW informed him the parole drug testing program was insufficient to comply with the plan, there is no reason to believe, on this record, he would not have enrolled in a suitable program.   Father's failure to complete the substance abuse counseling requirement was significant in that it formed the basis of the court's denial of Father's section 388 petition for a 60-day visit.

DISPOSITION

We dismiss the appeal as moot.   We grant the petition for habeas corpus.   We direct the juvenile court to vacate its order terminating Father's parental rights, vacate its order setting the section 366.26 hearing as to Father, and enter a new and different order, resuming the one-month status of the case as to Father and providing him with a new period of reunification services.

FOOTNOTES

1.   All further statutory references are to the Welfare and Institutions Code.

2.   Mother has not appealed from the judgment terminating her parental rights.

3.   According to the department's application, Mother had named the paternal grandmother as a possible placement resource.   The application stated, however, that the paternal grandmother was herself the parent of a dependent minor, a nine-year-old son.   The application stated that further investigation was necessary before the department could consider her as a placement resource.

4.   Father, on the other hand, disputes that he was released from prison before the 12-month review hearing.   Father claims he was incarcerated from February 1995 through June 14, 1996.

5.   We denied the department's request to take judicial notice of documents (not before the juvenile court) which listed the programs allegedly available to prisoners at the Sierra Conservation Center in Jamestown, California.

6.   The department's indifference towards Father may have resulted from an assumption that Mother would complete the reunification plan and the minors would be returned to her custody.   When Mother suddenly disappeared and advised Father he should seek custody, the 18-month review hearing was looming only a month away.   At that late date, the department abandoned its plan to reunify the minors with Mother and settled upon adoption as the next best choice, having failed to assist Father in preparing himself to assume custody.

ORTEGA, Associate Justice.

SPENCER, P.J., and DUNN, J.**, concur.