N.G., Petitioner, v. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY (2010)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's order issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to his daughter N. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In March 2009, the Stanislaus County Community Services Agency (agency) took petitioner's two daughters, then twelve-year-old K. and seven-year-old N., into protective custody after their mother ² left them alone to be with her boyfriend.   The mother was arrested and placed on an Immigration and Naturalization Service (INS) hold.

At the time of mother's arrest, petitioner was serving a two-year prison sentence for drunk driving.   He had numerous arrests and three convictions for driving under the influence.   In addition, he and the mother have a history of domestic violence.   According to her, they had a 13-year relationship before they separated two years before this incident.   During the last five years of their relationship, mother said petitioner drank alcohol regularly and was physically and verbally abusive to her.   His last assault on her was so severe, she claimed, that she passed out from her injuries.   She said, however, petitioner was never abusive to K. or N. and kept in regular contact with them.

The agency filed a dependency petition on behalf of K. and N., alleging petitioner and mother failed to protect and provide for the girls' support. (§ 300, subds.(b) & (g).)  The juvenile court ordered K. and N. detained pursuant to the petition and set the jurisdictional/dispositional hearing for April 2009.   The agency placed the girls together in foster care.

In its jurisdictional/dispositional report, the agency recommended the juvenile court adjudge K. and N. dependents of the court, remove them from parental custody, and provide both parents reunification services.   Petitioner submitted a written statement to the court, stating he expected to be released from custody in May 2009.   He stated he had been living in the United States for 18 years and had always been with his daughters.   He said he worked for a construction company for 14 years before he was incarcerated.   He admitted his alcohol addiction caused his legal problems and said he had been attending Alcoholics Anonymous (AA) meetings voluntarily since his incarceration.

The agency also reported there were limited relative placement options for the girls.   One option was to place the girls with the father of their older half-sister.   The other was a maternal aunt in California.   However, mother indicated the aunt's husband was having second thoughts about taking the girls.

In April 2009, the juvenile court conducted the jurisdictional/dispositional hearing.   Petitioner appeared in custody and, through counsel, waived his right to a trial on the issues raised in the petition.   The juvenile court exercised its dependency jurisdiction, removed K. and N. from parental custody, and ordered both parents to participate in reunification services.   Petitioner's reunification plan required him to complete a domestic violence program, complete a drug and alcohol assessment and follow all recommendations, and submit to random substance abuse testing.   The court set the six-month review hearing for September 2009.

By September 2009, both parents had been deported to Mexico.   Mother did not contact the agency and her whereabouts were and remained unknown.   Petitioner, on the other hand, contacted the Desarollo Integral de la Familia (DIF), Mexico's equivalent of child protective services, and was assigned a case manager who referred petitioner to a psychologist for an initial assessment.

In its report for the six-month review hearing, the agency recommended the juvenile court terminate services for mother but to continue services for petitioner until the 12-month review hearing.   The agency also reported that K. and N. had not had in-person visits with petitioner since his deportation but that they had regular telephone contact with him and corresponded with him.   In addition, the agency reported that both K. and N. were receiving mental health services and that K. was struggling emotionally with parentified behavior, anxiety, and depression.   She had difficulty getting along with her foster father and she was under the care of a psychiatrist and taking psychotropic medication.

In September 2009, at the six-month review hearing, Ms. Castillo, petitioner's agency-assigned social worker, told the juvenile court that petitioner was attending daily AA meetings and weekly domestic violence classes in Mexico.   She also stated the girls had been very clear that they wanted to be with petitioner and she believed it would be in their best interest to be with him in the near future.   At the conclusion of the hearing, the juvenile court found that the agency provided petitioner and mother reasonable services.   The court terminated mother's reunification services but continued petitioner's services to the 12-month review hearing.   The court set an interim review hearing for December 2009 and the 12-month review hearing for February 2010.

During this interim period, several significant events occurred.   In early November 2009, K. ran away from her foster home and was placed in a foster home in a different county.   In mid-November, petitioner attempted to re-enter the United States (U.S.) illegally to visit his daughters and facilitate reunification.   However, he was arrested and incarcerated in Stanislaus County jail under an alias.

In its report for the interim review hearing, the agency recommended the court continue services for petitioner.   The agency also reported that petitioner had been assessed by DIF in August 2009 but, despite numerous efforts to contact the DIF and the Mexican Consulate's office, Ms. Castillo was unable to get an update on petitioner's participation in services.

In December 2009, at the interim review hearing, the juvenile court continued reunification services to the 12-month review hearing set for February 2010.

In its report for the 12-month review hearing, the agency reported that petitioner was in the Stanislaus County Men's Honor Farm awaiting sentencing for illegally entering the country and was unable to participate in services.   He told Ms. Castillo that his next court hearing was scheduled approximately two weeks after the 12-month review hearing.   If he pled no contest, he would be sentenced to two years in prison.   If he was deported, it would take three to four months to process him out of the U.S. However, if deported, he planned to continue participating in services in Mexico and stated he would like more time to reunify with his daughters.

The agency also reported that N. was doing well in her foster care placement and her foster parents wanted to adopt her.   K., on the other hand, had made limited progress in her counseling and was emotionally overwhelmed by the family separation.   She and N. visited petitioner at the Men's Honor Farm in December and January.   During the first visit, K. was so distraught, she cried for most of the visit and, at one point, was trembling and breathing so heavily that she appeared to be having a mild anxiety attack.   She told petitioner her life was miserable without him.   Both K. and N. stated they wanted to live with petitioner but did not want to live in Mexico.   They hoped petitioner could return and complete his reunification services in the U.S.

The agency recommended the juvenile court terminate petitioner's reunification services at the 12-month review hearing as it did not believe there was a substantial probability the girls could be returned to petitioner's custody after another six months of services.   Further, the agency recommended the court order that K. remain in long-term foster care but set a section 366.26 hearing as to N. to implement a permanent plan of adoption.

In February 2010, minors' counsel declared a conflict and the court appointed the public defender to represent N. The court set the 12-month review for a contested hearing, which was continued and conducted in March 2010.

Petitioner and his daughters appeared at the contested 12-month review hearing.   A Spanish language interpreter was present to assist petitioner.   Ms. Castillo testified she became aware of petitioner's incarceration sometime between late November and early December 2009.   In early December 2009, she took K. and N. to visit petitioner in custody and asked the sergeant if there were any services in which petitioner could participate.   The sergeant told her petitioner was ineligible to participate in services because he had not been sentenced.   In February 2010, Ms. Castillo asked if petitioner had been sentenced and was told he had not been.   Subsequently, petitioner told her he attended a hearing but she did not know the outcome.

On cross-examination, Ms. Castillo testified she did not inquire about written materials, such as packets or workbooks, that petitioner might complete and credit toward reunification services.   Nor did she contact Friends Outside regarding services that the agency could provide.   She also testified she arranged three visits between December 2009 and February 2010.   She was present for all three visits.   She said K. was emotional during visits and cried most of the time.   N. was excited to see petitioner and talked to him about her life and school.

Ms. Castillo further testified that from September until petitioner's arrest in November 2009, he complied with his case plan in Mexico.   She was informed through the DIF that he was randomly testing for substances and participating in services for parenting and domestic violence.   In addition, petitioner regularly contacted Ms. Castillo by telephone.   During their conversations, Ms. Castillo told petitioner that K. was struggling emotionally and taking medication.   She also told him K. was having difficulty adjusting to her foster home placement.   Ms. Castillo testified petitioner expressed a lot of concern for K. and told her he wanted to re-enter the U.S. Ms. Castillo told him she could not encourage him to do that but, if he succeeded in re-entering the U.S., nothing prevented him from participating in services here.

Ms. Castillo also testified petitioner asked her to assess his mother (grandmother) for placement in Mexico.   However, at the time, that was not an option because petitioner was living with her.   Ms. Castillo still did not consider placing K. with the grandmother after petitioner's arrest because of K.'s fragile emotional state.   Then in December 2009, Ms. Castillo spoke to the grandmother who indicated she could not care for the girls alone.   Ms. Castillo testified she had not spoken to the grandmother since that time or followed up with the Mexican Consulate or DIF concerning an evaluation of the grandmother's home.

At the conclusion of Ms. Castillo's testimony, K.'s attorney read a letter K. wrote to the court.   In her letter, K. expressed concern that N. would lose all contact with petitioner if N. were adopted.   K. stated N. was all she had and she did not want to lose her.   She also expressed her wish that N. would be placed with a family with a Hispanic culture who would allow her “actual family” to visit at least weekly, to have telephone contact at least twice weekly, and to share major holidays.

Petitioner testified he contacted the DIF in August 2009.   He attended domestic violence classes and AA meetings.   He submitted to two drug tests, which were not random because he had to pay for them himself.   He said he had been clean and sober for 21 months.   He testified he participated in domestic violence classes in Mexico from August through October 2009 and attended AA meetings from August to November 2009, attending about six times a week.   He testified he stopped attending domestic violence classes at the end of October because a storm flooded the facility where the classes were held.   He explained that the temporary location was too small to accommodate the attendees so the class was temporarily discontinued.

Petitioner further testified that he was arrested in November 2009 in San Diego and transported to Modesto.   He was unable to participate in services because he was not sentenced.   He said he had yet to be sentenced and his next court hearing was scheduled for the following week.   He also said he was under an INS hold and, if deported, he planned to participate in services in Mexico.

On cross-examination, petitioner testified he attended a 12-step program in Mexico and had just started the third step.   He said he attended approximately six domestic violence classes before being arrested.   He agreed that he had a problem with alcohol, a problem he had struggled with for 10 years.   He accepted responsibility for not involving himself more in his daughters' lives and for not protecting them.   He testified he planned to remain in Mexico and try to reunify with his daughters there.

At the conclusion of the hearing, the juvenile court found that petitioner was provided reasonable services but did not participate regularly or make substantive progress in them.   Overall, the court found petitioner's progress to be limited.   The court stated it considered the barriers incarceration posed to petitioner's ability to participate in services.   The court stated:

“What is important to the [c]ourt's analysis is that [petitioner] was incarcerated in the beginning of this matter.   He was deported to Mexico.   He attended very limited services while in Mexico.   Out of 12 months, he's participated in only two to three months of services.   His testimony is that he went to approximately six domestic violence classes.   He also attended AA meetings.”

“All of that would have been a very good start, but it is by [petitioner's] own doing that he is back incarcerated.   The particular barrier for this parent is his own poor choices in deciding to return to the [U.S.], despite the efforts he was making in Mexico with his classes.”

“And in [petitioner's] own words, he decided to take the risk of deportation and return to the [U.S.]. Unfortunately, it is his children who now have the consequences of the risk that he took.”

The court further found there was not a substantial probability that K. and N. could be returned to petitioner's custody after another period of services.   Consequently, the court terminated petitioner's reunification services and selected long-term foster care as K.'s permanent plan.   The court set a section 366.26 hearing as to N., ordered a bonding study between petitioner and N., and ordered an assessment to evaluate the relationship between K. and N. The court commented on K.'s eager attempts to keep her family together and stated the sibling relationship would be a consideration at the section 366.26 hearing.   This petition ensued.

DISCUSSION

I. Reasonableness of Reunification Services

Petitioner contends the juvenile court's order terminating his reunification services was error because he was not provided reasonable services.   Section 366.21, subdivision (f), governs the juvenile court proceedings at the 12-month review hearing.   Where, as here, the juvenile court decides that it cannot safely return the child to parental custody and long-term foster care is not an option, the juvenile court must set a section 366.26 hearing unless it makes one of two findings:  that the parent was not provided reasonable services or that there is a substantial probability the child will be returned to the parent's physical custody by the 18-month review hearing. (§ 366.21, subd. (g)(1).)   If the court makes either of those two findings, it must continue services to the 18-month review hearing.  (Ibid.) Further, in making its determinations, the juvenile court must consider the barriers of an incarcerated parent, such as petitioner, and his ability to access court-mandated services and maintain contact with his child. (§ 366.21, subd. (f).)

Petitioner contends the agency failed to provide reasonable services because Ms. Castillo made little effort to communicate with him or provide him services while he was in Mexico.   In addition, he contends, services were not reasonable because Ms. Castillo did not make sufficient efforts to help him obtain services while he was incarcerated in Stanislaus County jail.

Services are reasonable when the supervising agency identifies the family's problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult.  (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)   To be reasonable, the services provided need not be perfect.   The “standard is not whether [they] were the best that might have been provided, but whether they were reasonable under the circumstances.”  (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)   We review the juvenile court's reasonable services finding for substantial evidence.  (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)   On this evidence, we conclude petitioner was provided reasonable services.

According to the appellate record, Ms. Castillo contacted the DIF in July 2009 and was told petitioner was scheduled for an initial assessment in August.   She was informed that he completed the assessment and was participating in parenting instruction, domestic violence classes, and was randomly testing.   As Ms. Castillo testified, petitioner was compliant with his case plan until he was arrested in November 2009 trying to cross the border.   At the interim review hearing in December 2009, the juvenile court found that petitioner was provided reasonable services and petitioner did not challenge that finding on appeal.   Consequently, he waived his right to challenge the reasonableness of services provided prior to December 2009.

From December 2009 until the 12-month review hearing in March 2010, petitioner was incarcerated in Stanislaus County and ineligible for services through the California Department of Corrections (CDC) because he had not been sentenced.   Ms. Castillo inquired about petitioner's eligibility for services in December 2009 and again in February 2010 and was told both times that he was ineligible for services.   Since the agency had no control over the provision of services to inmates, there was nothing more that Ms. Castillo could have done through the CDC.

Petitioner contends, however, Ms. Castillo could have provided him packets of written material to complete or contacted other entities such as Friends Outside who provide services for inmates.   Granted, Ms. Castillo could have done as petitioner suggests but the question is whether her failure to do so renders the services offered by the agency unreasonable.   We conclude it does not.   According to the record, Ms. Castillo diligently maintained regular contact with petitioner to help him locate services and kept him informed about and in contact with his daughters.   However, ultimately, his failure to reunify with them had much more to do with his choice to break the law than Ms. Castillo's failure to scout out every conceivable service available to petitioner.   Indeed, petitioner had 21 months of sobriety and was participating in domestic violence classes.   Had he remained out-of-custody, it is possible, given the juvenile court's statement, that there may have been a different outcome in this case.   Under the circumstances, Ms. Castillo's failure to provide petitioner written materials or contact other entities was not unreasonable.   We conclude, therefore, substantial evidence supports the juvenile court's finding that petitioner was provided reasonable services.

II. Substantial Probability of Return

Having properly found petitioner was provided reasonable services, the juvenile court had to terminate reunification services and set a section 366.26 hearing unless it found there was a substantial probability that N. would be returned to petitioner's custody and safely maintained in his home by the 18-month review hearing. (§ 366.21, subd. (g)(1).)   In assessing whether there is a substantial probability of return, the juvenile court must find the parent made significant progress in resolving the problems that led to the child's removal from the home and that the parent demonstrated the capacity and ability to complete the objectives of his treatment plan and provide for the child's safety and protection and physical and emotional needs. (§ 366.21, subd. (g)(1)(C).) ³

Petitioner contends the juvenile court erred in finding he made limited progress.   Rather, he contends that while services were available to him, he made significant progress.   He cites Ms. Castillo's testimony that he was in compliance with his case plan while in Mexico, his 21 months of sobriety, and his abstinence from domestic violence.   Once incarcerated, he asserts, he was ineligible for services, an obstacle over which he had no control and, he contends, a consideration the juvenile court had to consider in assessing his progress.

In deciding that petitioner's progress was limited, the juvenile court considered his participation in services in Mexico.   However, the court also considered that petitioner was incarcerated for most of the reunification period, participated in limited services while in Mexico, and most importantly, made the unwise choice of re-entering the U.S. illegally.   The court considered the latter event was the most significant barrier to petitioner's progress in resolving the problems necessitating N.'s removal from his custody and we agree.

However, even if for the sake of argument, petitioner's progress was significant, he still did not demonstrate the ability to complete the objectives of his case plan and take care of N.'s needs.   Petitioner's future was very uncertain.   He was either going to be sentenced to prison or deported back to Mexico after three to four months of processing.   Given the uncertainty of his future and his history of breaking the law, there was little chance even under the best of circumstances that N. could be returned to his custody after another six months of reunification efforts.   Consequently, substantial evidence also supports the juvenile court's finding there was not a substantial probability N. could be returned to petitioner's custody by the 18-month review hearing.

That said, nothing precludes petitioner from petitioning the juvenile court pursuant to section 388 ⁴ to modify its order terminating his reunification services should circumstances change such that it would be in N.'s best interest to do so.   However, on this evidence, we affirm the juvenile court's findings with respect to reasonableness of services and probability of return and its orders terminating petitioner's reunification services and setting a section 366.26 hearing and will deny the petition.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Mother did not file a writ petition..  FN2. Mother did not file a writ petition.

FN3. The juvenile court must also find that the parent consistently and regularly contacted and visited the child.   However, that finding is not at issue in this case..  FN3. The juvenile court must also find that the parent consistently and regularly contacted and visited the child.   However, that finding is not at issue in this case.

FN4. Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence..  FN4. Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.