JOHN v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

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Court of Appeal, Second District, California.

JOHN B., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

B228571

Decided: January 24, 2011

Petition for extraordinary writ from orders of the Superior Court of Los Angeles County.   Sherri Sobel, Juvenile Court Referee.   Petition denied.   John B., in pro. per., for Petitioner. No appearance for Respondent. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Real Party In Interest.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Petitioner John B. seeks a writ of mandate requiring the juvenile court to set aside its order of October 21, 2010, directing real party in interest Department of Children and Family Services (DCFS) to provide permanent placement services for his daughter A.M.B. (the child), and setting a hearing under Welfare and Institutions Code section 366.26 for the termination of parental rights and the child's permanent placement.

Petitioner, the child's biological father, seeks to preserve some hope of future reunification with her, despite his long-term incarceration and his failure to comply with the juvenile court referee's reasonable conditions for reunification.   He contends that respondent court erred by ending reunification services, because the services provided to him were inadequate;  and that it erred in placing the child with her maternal cousin rather than with her paternal grandmother, petitioner's mother.

We reject petitioner's challenges.   Even if the petition were sufficient to establish that petitioner was deprived of reunification services to which he was entitled (it is not), the challenged orders nevertheless are well supported by facts that petitioner does not dispute;  and petitioner has in any event failed to identify any other viable option consistent with the law and with the child's interests.

Background

In January 2010, DCFS detained the child, then two-and-one-half years old, in foster care.   The petition under Welfare and Institutions Code section 300 alleged that the child was at risk of physical and emotional harm due to her mother's habitual alcohol abuse, and her father's absence and failure to provide her with the necessities of life.   The detention report recounts an incident some six months earlier in which the mother had passed out on the street, drunk, while the child and two of the child's siblings were in her care.

The detention report contains the mother's identification of petitioner as the child's biological father, and reports the father's previous incarceration for domestic violence against her.   It also reports the mother's acknowledgement of her habitual alcohol abuse, her admission that she could not properly care for the child, and her hope that the child could remain in the care of her niece, the child's cousin.

At that time one of the child's four siblings resided with his paternal grandmother;  two lived with their father;  and the fourth, the child's seven-year-old sister, was living with the cousin and her mother, the children's maternal aunt.1  Petitioner's whereabouts were not then known.

The January 21, 2010 initial detention hearing resulted in findings by the referee that a prima facie case for detaining the child is established;  that substantial danger exists to the child's physical or emotional health and there is no reasonable way to protect the child without removal from her mother's custody;  and that remaining in the home is contrary to the child's welfare.   The court ordered family reunification services to be provided to the child and her parents, and that the minor remain with the maternal cousin pending a pretrial conference on February 18, 2010.   It also ordered DCFS to prepare and submit a jail removal order to secure petitioner's appearance at the February 18 hearing, as the child's declared biological father.

DCFS was apparently unable to locate petitioner in time to secure his presence at the February 18, 2010, hearing.   However, an amended dependency petition and a detention report showed that petitioner had a long history of arrests and felony convictions for drug-related and other offenses, and that in September 2009, he had been convicted and sentenced to five years in prison for a felony, transporting and selling a narcotic controlled substance in violation of Health & Safety Code section 11352, subdivision (a).   The referee continued the matter to March 19, 2010.

Petitioner appeared on March 19, 2010, claiming presumed-father status, and requesting that the child be placed in the custody of his mother-the child's paternal

grandmother-in Illinois.2  After hearing testimony from both petitioner and the child's mother, the referee determined that petitioner is the child's biological father, but “does not rise to the level of presumed father status.” 3

Both the mother and petitioner pleaded no contest to two counts of the amended petition, one of which alleged the mother's alcohol abuse and periodic incapacity to care for the child;  the other of which alleged petitioner's history of arrests and convictions for drug related offences, and that his involvement with drugs endangers the child's physical and emotional health, safety and well being and places her at risk of physical and emotional harm.   Based on these charges the referee declared the child a dependent under Welfare and Institutions Code section 300, subdivision (b).  The court ordered reunification services for all family members-including a requirement that petitioner participate in court-approved parent education and drug treatment programs while in custody-and authorized petitioner to contact the child by telephone during his incarceration, for five minutes once each week.

At the six-month review hearing on September 17, 2010 (and in a June supplemental report and interim hearing, at which petitioner was represented by counsel), DCFS reported that prison budget cuts had made the parenting and drug rehabilitation services required by petitioner's plan unavailable to him;  and that difficulties in timing and funding (and perhaps also lack of cooperation by the child's cousin) had stymied petitioner's efforts to accomplish his authorized weekly phone contact with the child.   The referee ordered that reunification services to the family (including to petitioner) continue, and ordered the county to pay for petitioner's authorized weekly telephone calls to the child.   It continued the six-month hearing to October 21, 2010.

Petitioner appeared through counsel at the continued hearing on October 21, 2010.   After receiving evidence and taking testimony, the referee found, by a preponderance of evidence, that neither parent was in compliance with the case plan, and that return of the child to the physical custody of her parent or parents would create a substantial risk of physical or emotional harm, and that “that there exists no substantial probability” that the child's custody could be placed with either of her parents within six months.   Specifically, it found that the mother and petitioner had not consistently or regularly contacted and visited with the minor, that they had not made significant progress in resolving the problems that led to the minor's detention, and that they had not demonstrated the capacity and ability to complete the objectives of their treatment plan or “to provide for the minor's safety, protection, physical and emotional well-being, and special needs.”

The court ordered family reunification services to both parents terminated.   Over petitioner's objection, the referee set February 17, 2011 as the date for a hearing under Welfare and Institutions Code section 366.26, for selection of a permanent plan for the child.

Petitioner filed this petition for extraordinary writ, seeking challenge of the order terminating reunification services to him, and setting the hearing for permanent placement under Welfare and Institutions Code section 366.26.  (Cal. Rules of Court, rule 8.450(a)) [providing for writ review of orders setting hearing under Welf. & Inst.Code, § 366.26].) His neatly handwritten petition, filed in pro. per, alleges that he has applied himself to the rehabilitative process (contrary to the referee's findings);  that he has made “significant” (but unspecified) progress in resolving the problems that led to the child being removed from parental custody;  that the child's custody should be placed with his mother, the child's grandmother, who could provide appropriately for the child's custody and other needs;  and it contends that the child should not be “further penalized” for the mother's lack of compliance with the reunification plan.4

Discussion

We view the record in the light most favorable to the judgment.  (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)   If there is substantial evidence supporting it, the challenged orders cannot be disturbed.  (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429;  People v. Reilly (1970) 3 Cal.3d 421, 425.) 5

Viewed in that light, we conclude that the juvenile court did not err ordering the termination of reunification services to petitioner, and in setting February 17, 2011, as the date for a hearing for selection of a permanent plan for the child, including possible termination of father's parental rights, under Welfare and Institutions Code section 366.26.   Although the petition alleges that the referee's findings are “contrary to the facts,” it offers no reference to facts that could justify setting aside the referee's findings, or that would be sufficient to dispel the referee's conclusion that this case “isn't even close.”

The court did not err by declining to restore the child's custody to petitioner.

Welfare and Institutions Code, section 366.21, subdivision (e), governs the procedure applicable at the six-month review hearing if, as here, the child was under three years old when she was initially removed from her parent's custody.6  In that circumstance the court is required to order the child's custody returned to her parent unless it affirmatively finds, by a preponderance of evidence, that the child's return to the parent's custody would create a substantial risk of detriment or harm to the child's safety, protection, or physical or emotional well-being.  (Welf. & Inst.Code, § 366.21, subd. (e), par. 1.) The juvenile court made that finding, which is fully supported by the uncontradicted fact that petitioner's long-term incarceration would render him unable for some years to exercise custody and control regarding the child.  (Ibid.) 7

The court did not err by declining to order continuing reunification services for petitioner.

Because petitioner is not a statutorily presumed father, he was not entitled as a matter of right to the reunification services that were terminated by the juvenile court's order.   Because the child was under three years old when she was initially detained, the court, having determined that family reunification services were appropriate, was required to provide those services until the six-month review.  (Welf. & Inst.Code § 361.5, subd. (a)(1)(B).)  But as the child's biological (but not presumed) father, petitioner would be entitled to the continuation of those services beyond the six-month review only if the court had then found that continuing those services would be beneficial to the child.  (Welf. & Inst.Code, § 361.5, subd. (a);  In re Zacharia D., supra, 6 Cal.4th at p. 451 [only a presumed, not a mere biological, father is entitled to reunification services].)   At the October 21, 2010 hearing the court made no such finding.

The impact of petitioner's incarceration on his ability to participate in or benefit from the court-ordered family reunification services therefore cannot entitle him to continuation of those services, for he would not have been entitled to continuation of those services even if he had fully complied with the court-ordered plan.  (In re Zacharia D., supra, 6 Cal.4th at p. 451.)

Moreover, even if petitioner had been a presumed father and initially entitled to court-ordered family reunification services by virtue of his incarceration (see Welf. & Inst.Code, § 361.5, subd. (e)(1)), the court would have had discretion to terminate those services at the October 21, 2010 hearing upon a determination that the probable length of petitioner's incarceration would render the resulting delay in permanent placement detrimental to the child.   (Ibid. [court must consider length of sentence to be served by incarcerated parent in determining whether providing reunification services would be detrimental to child].)   The likelihood that petitioner's incarceration will last well beyond the time the court would have discretion to delay the child's permanent placement-18 months from the child's initial detention-suggests that the court would not (and perhaps could not) have concluded that delaying the child's permanent placement in order to continue family services to petitioner would be anything but detrimental to the child.   That would be so even if the court had believed that petitioner might be eligible to take custody of the child when his incarceration ended-a proposition that finds no support at all in the record.

The court did not err by setting a hearing under Welfare and Institutions Code section 366.26 for the child's permanent placement.

Upon termination of reunification services, the court was required to consider whether a hearing under Welfare and Institutions Code section 366.26 “is the most appropriate plan for the child,” and if so, to set that hearing within 120 days.  (Welf. & Inst.Code, § 361.5, subd. (f).)  At the October 21, 2010 hearing the court determined that “there exists no substantial probability” that the child might be returned to her mother's or petitioner's custody during the following six months, and that the likely date for the child's placement is February 17, 2011.   On that basis, it set the hearing under section 366.5 for that date.

The court's discretion in setting a hearing under Welfare and Institutions Code section 366.26 at the October 21, 2010 hearing is bolstered by recognition that it would have been required to set such a hearing no later than February 2011, unless it had continued the family reunification services, and unless petitioner were able at that time to show his likelihood of being eligible to take custody of the child within the following six months.  (Welf. & Inst.Code, § 366.21, subd. (e), par. 7;  M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 179, fn. 6 [case must be set for section 366.26 hearing unless facts support continuing the case six months or ordering long-term foster care].)   But as we have shown above, petitioner was not entitled to have reunification services continued;  and because of his long-term incarceration, neither the record nor the petition provides the slightest basis for a conclusion-upon any standard of proof-that petitioner would likely be eligible to take custody of the child for some years to come (even if he were otherwise eligible).   Thus further delaying consideration of the child's permanent placement could only have been to the child's detriment under the circumstances.

In light of his long-term incarceration, there are no apparent circumstances under which petitioner could have been found to be in a position to take custody of the child within 18 months of her January 2010, detention-a conclusion that petitioner does not dispute.   Nor does petitioner contend (much less identify any evidence) that the child's custody with her sister in the care of her maternal cousin is in any way harmful or unsatisfactory.

Petitioner contends that custody with his mother in Illinois would be appropriate (and we would like to believe she would be willing and able to provide the child with appropriate care, although there is nothing in the record showing that is so).   But that contention cannot overcome the trial court's fully supported findings that the child is “doing well” in her current placement, and that it is unlikely she can be returned to the custody of either her mother or petitioner by February 17, 2011.

Disposition

The record contains substantial evidence to support (and perhaps even compel) the juvenile court's decision to order a hearing under Welfare and Institutions Code section 366.26 for the termination of parental rights and the child's permanent placement.   The petition for writ of mandate is denied.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Some documents in the record erroneously identify the child's cousin and aunt as the child's paternal relatives.   But the names and other circumstances make clear that they are relatives of the mother, not the father..  FN1. Some documents in the record erroneously identify the child's cousin and aunt as the child's paternal relatives.   But the names and other circumstances make clear that they are relatives of the mother, not the father.

FN2. The record contains no confirmation of that request from petitioner's mother, and no other information about her..  FN2. The record contains no confirmation of that request from petitioner's mother, and no other information about her.

FN3. Petitioner does not challenge this determination..  FN3. Petitioner does not challenge this determination.

FN4. This proceeding involves only petitioner;  there is no contention of error with regard to findings or orders involving the child's mother..  FN4. This proceeding involves only petitioner;  there is no contention of error with regard to findings or orders involving the child's mother.

FN5. Petitions for extraordinary writs are to be “liberally construed” in favor of their sufficiency.  (Cal. Rules of Court, rule 8.452(a)(1).)   Our decision to hear the petition on its merits, despite its technical shortcomings, should not be taken as a determination that the petition satisfies the requirement of the rules, which require a petition for extraordinary writ to summarize the grounds for the petition, the facts on which it is based, and the relief sought, with reference to supporting matters in the record and an explanation of their significance to the issues raised by the petition.  (Cal. Rules of Court, rule 842(a), (b);  see Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956.).  FN5. Petitions for extraordinary writs are to be “liberally construed” in favor of their sufficiency.  (Cal. Rules of Court, rule 8.452(a)(1).)   Our decision to hear the petition on its merits, despite its technical shortcomings, should not be taken as a determination that the petition satisfies the requirement of the rules, which require a petition for extraordinary writ to summarize the grounds for the petition, the facts on which it is based, and the relief sought, with reference to supporting matters in the record and an explanation of their significance to the issues raised by the petition.  (Cal. Rules of Court, rule 842(a), (b);  see Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956.)

FN6. Although we speak in terms of “restoring” the child to petitioner's custody, we need not determine whether petitioner in fact ever had custody.   Petitioner's attempt to establish his status as a presumed father stated that the child resided with him (presumably with the child's mother) for about a year, from the child's birth in May 2007, until June 2008.   The court may well have rejected that showing after hearing the testimony of both parents, however, for it concluded that petitioner was not the child's presumed father.  (See In re Zacharia D. (1993) 6 Cal.4th 435, 449-450.).  FN6. Although we speak in terms of “restoring” the child to petitioner's custody, we need not determine whether petitioner in fact ever had custody.   Petitioner's attempt to establish his status as a presumed father stated that the child resided with him (presumably with the child's mother) for about a year, from the child's birth in May 2007, until June 2008.   The court may well have rejected that showing after hearing the testimony of both parents, however, for it concluded that petitioner was not the child's presumed father.  (See In re Zacharia D. (1993) 6 Cal.4th 435, 449-450.)

FN7. A parent's failure to participate regularly and to make progress in court-ordered treatment programs also constitutes prima facie evidence that the return of custody to the parent would be detrimental;  however in making that determination the court must consider the barriers to participation in such programs that face an incarcerated parent.   (Welf. & Inst.Code, § 366.21, subd. (e), par. 1.) Because petitioner's long-term incarceration supports the trial court's determination, we need not determine the impact on the court's discretion when its determination rests instead on the parent's failure to participate in a treatment plan due to his long-term incarceration.  (See S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1018 [parent's failure to participate in treatment plan due to short-term incarceration does not require juvenile court to end reunification services].).  FN7. A parent's failure to participate regularly and to make progress in court-ordered treatment programs also constitutes prima facie evidence that the return of custody to the parent would be detrimental;  however in making that determination the court must consider the barriers to participation in such programs that face an incarcerated parent.   (Welf. & Inst.Code, § 366.21, subd. (e), par. 1.) Because petitioner's long-term incarceration supports the trial court's determination, we need not determine the impact on the court's discretion when its determination rests instead on the parent's failure to participate in a treatment plan due to his long-term incarceration.  (See S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1018 [parent's failure to participate in treatment plan due to short-term incarceration does not require juvenile court to end reunification services].)

MALLANO, P. J. JOHNSON, J.