IN RE: CHRISTIAN N. et al.

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Court of Appeal, Second District, California.

IN RE: CHRISTIAN N. et al., Persons Coming Under the Juvenile Court Law. Plaintiff and Respondent, v. FEDERICO N., Defendant and Appellant.

B227326

Decided: March 30, 2011

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James A. Owens, Assistant County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Federico N. (Father) appeals the juvenile court's dispositional order, which denied him reunification services based on the ages of the children, the fact that his incarceration was scheduled to continue 15 to 19 months after the date of detention, and the fact that deportation was to immediately follow his release.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father has two children, Christian N. and Julian N. The children came to the attention of Los Angeles County Department of Children and Family Services (DCFS) in May 2010 while they were staying with their paternal aunt, Isabel L. At the time, Christian was three years old and Julian was two.   Father had left the children with Isabel three months earlier, in February 2010, shortly before he was arrested and incarcerated for possession of drugs for sale.   The whereabouts of the children's mother, Joy R., was unknown.1  In addition, DCFS received reports that Mother was abusing drugs and suffered from untreated bipolar disorder.   DCFS detained the children and formally placed them with Isabel.

After detention, DCFS discovered that the family had a lengthy history with child services agencies around the state.   In 2002, prior to the births of Christian and Julian, the child services agency in Riverside County received a report that Mother was neglecting their older half-sibling, Victoria R., due to methamphetamine binges.2  In 2003, the Riverside County agency substantiated a report that Mother was using methamphetamine, was not feeding Victoria regularly and had been taking her to “crack houses.”   In 2007, shortly after Christian's birth, the child services agency in Santa Clara County received a report that Mother was suffering from post-partum psychosis and hearing voices.   Christian was not immediately released to Father because Father admitted smoking methamphetamine a few days earlier and initially refused to drug test.   In 2008, after Julian's birth, the child services agency in Alameda County learned that Victoria was attending school only sporadically.   Mother reported feeling overwhelmed caring for three young children.3  Later in 2008, there was a report from Alameda County involving neglect of Victoria by her biological father.   In May 2008, DCFS and the Riverside County agency investigated whether Christian and Julian were being appropriately cared for by the relative with whom they had been left—Isabel—while Mother was attempting to regain custody of Victoria.4  Finally, there was an undated report from Alameda County stating that Christian had been admitted to the hospital for treatment of a staph infection, and that child service workers attempting to determine whether he was receiving adequate followup care learned that the addresses and telephone numbers provided by Mother and Father were false or outdated.

DCFS also learned that in 1999, Father had been convicted of possession of a controlled substance.   With respect to Father's February 2010 arrest, the district attorney reported that Father had pled guilty to a charge of possession of a controlled substance for sale and was facing a three-year prison sentence.   In addition, the caseworker learned that Father was likely to be deported following his incarceration.

Prior to the jurisdictional/dispositional hearing, the caseworker interviewed Father, then incarcerated at the Twin Towers facility.   He stated that Mother had abused drugs in the past, but denied that she was still using drugs.5  He was vague and inconsistent about why he had taken the children from Mother and left them with Isabel and why Mother had not picked up the children after his arrest.   He denied the prior arrest and conviction for possession of a controlled substance.   He denied any use of drugs.   He claimed to be very close to the children and to have always been very involved with their care.   He expressed a willingness to participate in court-ordered reunification programs.

The maternal grandmother reported that Mother had been abusing methamphetamine for many years and that Father had “an issue” with drugs.   She confirmed Mother's bipolar diagnosis.   The maternal grandmother expressed the belief that the children would not be safe with Mother and reported that Father had specifically told Isabel not to return the children to Mother after his incarceration.   She described Father as “a good dad” who loved his children and was “definitely very bonded to [them],” and had been “working very hard to provide for [them].”

Isabel reported that Mother had come by in the month following Father's incarceration to pick up Father's wallet and the money in it.   Mother did not seek to have the children returned to her until Isabel, having learned that Mother was receiving benefits from Riverside County on behalf of the children, reported her to the Riverside County fraud hotline.   Mother arrived at Isabel's house demanding return of the children, but Isabel turned her away.   Isabel said that Father had always been the one to take care of the children and had been “like a mother and father.”   However, she also stated that she had once seen what appeared to be a crack pipe in Father's jacket and that in 2008, he had admitted using drugs.   Isabel had been taking the children monthly to visit Father in jail.   He was described as “appropriate” and “engaging” with them.

At the August 2010 jurisdictional/dispositional hearing, the court found true the allegations of the petition that Mother had a history of substance abuse, was a current user of illicit drugs, demonstrated mental and emotional problems and failed to provide the children with the necessities of life.6  The court also found true that Father had a history of substance abuse, had been convicted of possession of a controlled substance and was currently incarcerated.

With respect to disposition, DCFS recommended that Father not be provided reunification services under Welfare and Institutions Code section 361.5, subdivision (e)(1).7  Father testified that no programs had been available at Twin Towers, but that he had just been transferred to a new facility in Kern County.   He also stated that he expected to be released in July 2011.8  Father further testified that he had not used drugs since the 2007 incident in Alameda County, that Christian had been detained from him for only a week and that he had subsequently taken a parenting class and had drug-tested clean for six months.   He stated that the children had lived with him all of their lives and had been brought for regular visitation during his incarceration.   They called him “Daddy,” and were always excited to see him.

Father requested that reunification services be provided.   Counsel for the children joined in the request.   The court denied the requests, stating:  “I'd be inclined to agree with you [counsel for Father and the children] if it weren't for the fact that [Father] was sentenced to at least a year in custody, and there are children under the age of three.   And he also has an I.N.S. hold on him, which means that, even if he's released from state prison, he's not going to be released from custody and faces deportation, which I suspect will be successful․  [¶] ․ [U]nfortunately, I don't have a basis to find that ․ it's likely the children could be returned to him within the time frame for reunification.  [¶] Even if I extended it for a year, it's very speculative that the children could be placed with him at that time.”   The court subsequently stated:  “I can't find that it's in the best interests of the ․ children to grant reunification services.”   In the minute order, the court stated that the denial was “based on [Father's] length of incarceration.”   Father appealed the dispositional order.

DISCUSSION

Section 361.5 provides that with limited exceptions, whenever a child is removed from the parents' custody, “the juvenile court shall order the social worker to provide child welfare services [generally known as ‘reunification services'] to the child and the child's [parents].”   Generally, reunification services must be provided for a minimum of 12 months from the date of the initial removal or detention for a child who was three years of age or older on the date of the detention, and a minimum of six months from the dispositional hearing for a child who was under three years of age on the date of detention. (§ 361.5, subds.(a)(1)(A) and (B).)  Reunification services are to be terminated at the 12–month review hearing for a child three years of age or older at the time of detention, or at the six-month review hearing for a child under the age of three at the time of detention if the court finds that reasonable services designed to aid the parent to overcome the problems that led to the initial removal have been provided or offered to the parent or legal guardian in the preceding period. (§ 366.21, subds.(e), (f).)  If the children are part of a sibling group in which one member is under three years of age on the date of detention, “court-ordered services for some or all of the sibling group may be limited as set forth in subparagraph (B) [six months from the dispositional hearing, but no longer than 12 months from the date the child entered foster care].” (§ 361.5, subd. (a)(1)(C).)  The reunification period must end 18 months after the child was detained, absent extraordinary circumstances. (§ 361.5, subd. (a)(3);  Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.)

Reunification services for incarcerated parents are specifically governed by section 361.5, subdivision (e)(1), which provides that the court “shall order” reasonable services to the incarcerated parent or guardian of a child subject to dependency jurisdiction, “unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.”   In determining the existence of detriment, the court is to consider “the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered ․, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration or institutionalization within the reunification time limitations described in subdivision (a), and any other appropriate factors.”  (Ibid.) Where they are ordered, DCFS must exercise its best efforts in assisting incarcerated parents to achieve reunification with their children “in spite of difficulties in doing so or the prospects of success.”  (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011;  accord, In re Maria S. (2000) 82 Cal.App.4th 1032, 1039;  Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

Father contends the dispositional order must be reversed because the court applied the wrong standard.   We disagree.   Although the court said that reunification efforts would not be in the “best interests” of the children rather than stating that providing services would be “detrimental” to them, it is clear that the court considered and applied the relevant factors.   As the court noted, the children were young at the time of the detention, one under the age of three and the other barely older.9  As the court further pointed out, Father's minimum period of incarceration put him well beyond the 12–month period (for a child three or over) or six-month period (for a child under three) to which reunification is typically limited, unless the parents are making substantial progress toward rectifying the problems that led to the detention.   The possibility of Father making any progress was remote.   It was undisputed that no services were available at Twin Towers or North Kern and there was no guarantee he would arrive at his permanent placement with sufficient time before his release to participate in any reunification programs offered there.   Moreover, there was no possibility that Father could make up ground within a reasonable period after serving his term.   On his release from incarceration, he faced immediate deportation.  “The law does not require a futile act.”  (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 118.)   Nor does it require the court to prolong proceedings and deny children a stable placement by offering an incarcerated parent reunification services where, due an unfortunate combination of circumstances such as occurred here, there is no reasonable likelihood the parent will be able to demonstrate substantial progress during the relevant statutory periods.

DISPOSITION

The order denying Father reunification services is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The parents had left written letters authorizing Isabel to provide medical care for the children..  FN1. The parents had left written letters authorizing Isabel to provide medical care for the children.

FN2. Victoria has a different father.   She is not involved in this appeal.   Mother is not a party to this appeal..  FN2. Victoria has a different father.   She is not involved in this appeal.   Mother is not a party to this appeal.

FN3. Father's whereabouts were unclear..  FN3. Father's whereabouts were unclear.

FN4. DCFS received a report that Mother's efforts were unsuccessful and that in the end, Victoria was permanently placed with her maternal grandmother..  FN4. DCFS received a report that Mother's efforts were unsuccessful and that in the end, Victoria was permanently placed with her maternal grandmother.

FN5. Father confirmed Mother suffered from a bipolar disorder and was not undergoing treatment for it..  FN5. Father confirmed Mother suffered from a bipolar disorder and was not undergoing treatment for it.

FN6. Because DCFS did not obtain the records in time for the jurisdictional hearing, the court found not true that the children's half-sibling was a dependent of the court..  FN6. Because DCFS did not obtain the records in time for the jurisdictional hearing, the court found not true that the children's half-sibling was a dependent of the court.

FN7. Statutory references are to the Welfare and Institutions Code. The provisions of section 361.5, subdivision (e)(1) are discussed below..  FN7. Statutory references are to the Welfare and Institutions Code. The provisions of section 361.5, subdivision (e)(1) are discussed below.

FN8. The caseworker confirmed that Father had been transferred from Twin Towers to North Kern State Prison, which she described as a transitional facility where Father would be screened before being sent to a permanent facility.   She had spoken with a counselor at the facility, who had reported that Father could be released “ ‘any time’ between July [and] December 2011.”   The counselor also reported that Father would be unable to access any prison-provided programs until he was permanently placed..  FN8. The caseworker confirmed that Father had been transferred from Twin Towers to North Kern State Prison, which she described as a transitional facility where Father would be screened before being sent to a permanent facility.   She had spoken with a counselor at the facility, who had reported that Father could be released “ ‘any time’ between July [and] December 2011.”   The counselor also reported that Father would be unable to access any prison-provided programs until he was permanently placed.

FN9. We note that they had already spent a considerable portion of their young lives in the custody of Isabel.   Father placed the children in Isabel's care in February 2010, several months prior to the detention.   Moreover, there was evidence that the children had been left in her custody for some period in 2008..  FN9. We note that they had already spent a considerable portion of their young lives in the custody of Isabel.   Father placed the children in Isabel's care in February 2010, several months prior to the detention.   Moreover, there was evidence that the children had been left in her custody for some period in 2008.

EPSTEIN, P. J. SUZUKAWA, J.