IN RE: MINNIE R. (1995)

OPINION

Danny R., Sr., (father) appeals from a final judgment terminating his parental rights.  (Welf. & Inst.Code, § 366.26.) ¹  Father contends that:  (1) the court erred by finding his daughter Minnie R. to be adoptable under the standard of clear and convincing evidence;  (2) the termination of his parental rights violated due process because it was not based on parental unfitness, and no reunification services were ever ordered or provided;  and (3) he was denied effective assistance of counsel.   Counsel for Minnie joins the position of the San Bernardino County Department of Public Social Services (Department) urging that the judgment be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The Petition.   A petition to declare Minnie, who was born on December 6, 1985, and three of her brothers ² dependents of the court was filed on September 25, 1990.   The petition alleged under section 300, subdivisions (b) and (g) ³ that the mother had left the children in unstable environments where drugs were sold and where the children were not cared for.   The petition noted that the children had been living with a paternal aunt;  father was incarcerated in the state prison at Corcoran, California;  and the mother's whereabouts were unknown.   It also alleged that father could not protect his children because “his drug addiction and criminal activity have put him in prison for twelve years.”

Detention Hearing.   A detention hearing was held on September 26, 1990.   The court entered a minute order transferring the case to family reunification with “services to be provided as soon as possible, if appropriate.”

Jurisdictional/Dispositional Hearing.   A jurisdictional/dispositional hearing was held on October 24, 1990.   The court found that the allegations of the petition were true, removed custody of the children from their parents, declared Minnie and her brothers to be dependents of the court, and granted custody to the San Bernardino County Department of Public Social Services (Department).

The court entered a minute order stating that it found it was detrimental to place Minnie with her parents.   The minute order also stated that the court ordered the Department to provide reunification services.   However, neither the finding of detriment nor the order for reunification services was actually pronounced by the court.

The minute order stated, “Reunification plan approved and ordered as written.”   However, the plan set forth in the Department's report contained no service or reunification plan for father because he was in prison.   The social worker had written, “At this time no service/reunification plan for [father] has been developed, because he will be in jail at least 5 more years.   He should be allowed to write the minors, and when and if visits are allowed, as transportation permits, minors should be allowed to visit.”   The report recommended that the court order “Visitation with [father], if permitted and transport is available[;]  otherwise, [father] and minors may write.”

Six–Month Review Hearing.   A six-month review hearing was held on April 24, 1991.   The Department filed a report stating that reunification services had been ordered at the dispositional hearing, but that “the parents have failed to participate regularly in the court ordered Treatment Plan and Reunification Services as ordered need to be continued in order to resolve the problems that led to the initial removal.”   The report further stated, “[Father is] in prison ․ and, thus [is] ․ unable to participate in Reunification Services at this time.”

The report stated, “At this time no Service/Reunification plan for [father] has been developed, because he will be in jail at least five more years.   He should be allowed to write the minors, and when and if visits are allowed, as transportation permits, minors should be allowed to visit.”   The report indicated that father called the foster parents collect to talk to the children, sometimes several times a week.

Father's counsel did not raise any objection to the adequacy of the reunification plan or the failure to provide services.

The court entered a minute order directing visitation “as arranged through the social worker.”   The minute order contained no finding that reasonable reunification services had been provided;  however, it stated, “Mother and father have not completed court ordered reunification/dismissal plan.”

Twelve–Month Review Hearing.   The 12–month review hearing was held between October 23, 1991, and December 11, 1991.   The court found that the recommendations of the Department were appropriate;  that custody continued to be detrimental, and there was no substantial probability that Minnie would be returned to the physical custody of her parents within six months.   The court made a finding by clear and convincing evidence that reasonable services had been offered and ordered those services terminated.

Again, father's counsel raised no objection to the adequacy of the reunification plan or services.

Section 366.26 Hearing.   Between April 8, 1992, and July 14, 1992, the section 366.26 hearing was held.   The Department filed a report, and two social workers testified.   The court found by clear and convincing evidence it was likely Minnie would be adopted.   The court terminated father's parental rights.   Father's counsel never objected on the basis of the inadequacy of reunification services.

DISCUSSION

IDetermination of Adoptability

Father contends the evidence was insufficient to support the juvenile court's finding that Minnie was adoptable.  Section 366.26, subdivision (c)(1) states, “The court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted.”  (See In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065, 280 Cal.Rptr. 503.)

Father contends that because Minnie had many problems, the court erred in finding it was likely Minnie would be adopted.   Father points out that in a one-year period, three foster care placements had failed because of Minnie's behavior problems.   On May 7, 1991, she was removed from the first foster home because she was very aggressive and tried to harm younger children.   On October 31, 1991, she was removed from a second foster home after the foster mother reported she had become uncontrollable and was physically abusive to the foster mother's son.   The foster mother had previously reported she had destroyed personal property, was disruptive at school, and insulted strangers.   Minnie remained in her third foster placement until she was placed with the fos-dopt family on February 27, 1992.   During that placement, her behavior improved.

Father also notes a psychological evaluation showed she had “low average intelligence with deficiencies in motor skill areas.”   She was diagnosed as having attention deficit disorder and hyperactivity.   She had difficulty in school and had to repeat kindergarten.   She was possibly the victim of physical and sexual abuse.   Finally, father points out that Minnie was at the upper age limit for children usually considered adoptable.

 Despite evidence of these problems, other evidence in the record indicates that in fact Minnie was adoptable.   One criterion for finding adoptability is whether there is a family willing to adopt the child.  (Cf. Amelia S., supra, 229 Cal.App.3d at p. 1065, 280 Cal.Rptr. 503 [showing that foster parents were considering adoption was not clear and convincing evidence of the likelihood of adoption].)   Here, the Department had placed Minnie in a fos-dopt home that had indicated its willingness to adopt her.

She had been living with the fos-dopt family for about five months before the section 366.26 hearing.   The social worker reported she had begun to develop attachments to her fos-dopt family and had begun to identify them as her new adoptive parents.   The fos-dopt family had no other children.   The social workers felt Minnie's placement as an only child would be beneficial because of her emotional needs.   Since her earlier unsuccessful foster placements, Minnie had been “diagnosed with attention deficit disorder which gave us a clue as to how to structure her environment to help her.”   The fos-dopt family was “totally knowledgeable” about Minnie's situation, and expressed no reservations about her “propensity for difficulties.”

The social worker described Minnie as “in good physical health” with “an outgoing, inquisitive personality.”   The social worker testified Minnie wanted to be adopted.   We conclude substantial evidence supports a finding by clear and convincing evidence that Minnie is adoptable.  (In re Michelle M. (1992) 4 Cal.App.4th 1024, 1035, 6 Cal.Rptr.2d 172.)

II

Due Process

Father contends he was deprived of due process because the termination of his parental rights was not based on parental unfitness, and no reunification services were ever ordered or provided.

 A.   Parental Unfitness.   Father contends he was deprived of due process because the termination of his parental rights was not based on parental unfitness.   He complains the juvenile court failed to find him unfit as a parent at the section 366.26 hearing.   Such a finding is not required.  (In re Brittany M. (1993) 19 Cal.App.4th 1396, 1402–1403, 24 Cal.Rptr.2d 57.)   Rather, a finding of unfitness is implicit from the findings of detriment at the earlier review hearings.

At the 12–month review hearing, the juvenile court found the minor could not be returned to the custody of father without creating a substantial risk of detriment to her physical and emotional well being.   Father contends this finding was not supported by substantial evidence.

 At that hearing, the court was aware that (1) father had been sentenced to a 12–year prison term for a felony conviction;  (2) he had a history of substance abuse;  (3) no parent/child bond existed between father and Minnie;  (4) father had not written or telephoned Minnie while he had been in prison;  and (5) the record did not show that father had been present at any time in Minnie's early childhood.   Based on these facts, the court could appropriately find by a preponderance of the evidence that return of Minnie to father would create a substantial risk of detriment to her physical and emotional well being.

 B.   Adequacy of Reunification Services  Father contends he was deprived of due process because no reasonable reunification services were ordered or provided.   The trial court found that adequate reunification services were provided, basing this finding on its earlier findings from the review hearings.   We are required to affirm the order if there is any substantial evidence to support the trial court's findings.

 In making this determination, we decide if the evidence is reasonable, credible, and of solid value such that a reasonable trier of fact could find the termination of parental rights was proper based upon clear and convincing evidence.  (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198.)  “At the review hearings the state must ․ present evidence that reasonable reunification services have been provided to the parent.”   (In re Marilyn H. (1993) 5 Cal.4th 295, 308, 19 Cal.Rptr.2d 544, 851 P.2d 826.)

 Before courts can initiate proceedings to terminate parental rights, they must have “considered all the appropriate issues and made the required determinations based upon substantial evidence.”  (In re Cory M. (1992) 2 Cal.App.4th 935, 952, 3 Cal.Rptr.2d 627.)   Among other things, courts are required to find that adequate reunification services were provided to the parents.  (§ 366.26, subd. (c)(2).) ⁴  The Legislature has mandated that reunification services be provided even when the parents are incarcerated.  (§ 361.5; ⁵  In re Brittany S. (1993) 17 Cal.App.4th 1399, 22 Cal.Rptr.2d 50.)  “The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.”  (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777, 8 Cal.Rptr.2d 416.)

 Here, the court could have made a finding under section 361.5, subdivision (e)(1) that no reunification services should be provided based on the age of the child, the length of father's incarceration, and the lack of parent-child bonding.   However, the court did not make such a finding, and in the absence of such a finding, the court was required to order reunification services for father.

Despite minute orders and pro forma findings that the Department had provided reasonable services to father, the record does not show that any reunification plan was ever prepared or ordered, or that the Department provided any reunification services to father.   Without a plan, reunification was never feasible.   The Department concedes that the jurisdictional/dispositional report filed October 24, 1990, indicates no reunification plan had been developed for father because of his incarceration.

 The Department contends it was sufficient for the Department report of October 24, 1990, to recommend that father be allowed to write the minor and to visit the minor if transportation was available and visitation was permitted.   The Department contends that father failed to avail himself of these opportunities by requesting visitation or writing to Minnie.   However, the Department was never ordered to do anything to facilitate reunification.   A parent's compliance with a reunification plan is not an issue until the Department has first shown that reasonable services were offered.

Rather, the social worker must make a reasonable effort to assist the parent.  (In re Riva M. (1991) 235 Cal.App.3d 403, 286 Cal.Rptr. 592.)   “[T]o make the requisite findings, the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed.”  (Id. at p. 414, 286 Cal.Rptr. 592, original emphasis.)

The Department also argues visitation services would have been impractical because father was incarcerated about 170 miles from Minnie's placement.   In Brittany S., supra, the court stated that if the distance between a child and an incarcerated parent is great, limiting contact to letters and telephone calls may be appropriate.  (Brittany S., supra, 17 Cal.App.4th at p. 1407, fn. 8, 22 Cal.Rptr.2d 50.)

In In re Terry E. (1986) 180 Cal.App.3d 932, 225 Cal.Rptr. 803, the social worker concluded that reunification efforts were infeasible because the minor's mother was serving an expected four and one-half years in prison.   The court stated, “[P]rison incarceration does not ipso facto show a parent's unfitness under the statute․  The petitioner must prove by clear and convincing evidence that the parent has not or cannot be rehabilitated during incarceration so that when he or she is released from prison the parent would be unable to properly care for the child.   Again, this requires solid, credible evidence and not mere speculation.”  (Id. at p. 953, 225 Cal.Rptr. 803.)

The court commented, “Respondent's argument that reunification efforts were not feasible because of the mother's long-term incarceration simply does not wash․  [¶] ․  As appellant argues, if she had received any help from the welfare department in maintaining contact which her children, she probably would have a good relationship with her children today.   Even if the children had remained with their foster parents as guardians, a reunification plan might have been entirely workable during the four and one-half years of appellant's incarceration.”  (Terry E., supra, 180 Cal.App.3d at p. 948, 225 Cal.Rptr. 803.)

 The Department also contends that father and Minnie lacked a prior relationship, and this fact justified the denial of reunification services.   However, the statutes do not make a prior relationship a precondition of reunification services.

 Finally, the Department relies on reunification services provided to the paternal aunt and Minnie's brothers.   Such services are irrelevant.   The statute mandates reunification services to the parent.   Such services were never provided.

We conclude the court erred in finding that reasonable reunification services were provided.   The record contains no evidence to support such a finding.

 However, the error was harmless under any standard of review.   On the date of the referral hearing, father had about four more years to serve in prison.   There was no way he could be reunified with Minnie within the time frame allowed by the statutes.   He could not regain custody because he himself was in custody.   Even if he had received a panoply of reunification services, he would not have been able to regain custody of Minnie within the 18–month time frame established by section 361.5, subdivision (a).   Section 361.5, subdivision (e)(1) specifically states reunification services for an incarcerated parent are subject to an 18–month time limitation.   When a child cannot be returned within the 18–month statutory time frame, the court is required to establish a permanent plan for the child and refer the case for a selection and implementation hearing under section 366.26.   As the Supreme Court has recently stated, “Children, too, have fundamental rights—including the fundamental right to be protected from neglect and to have ‘a placement that is stable [and] permanent.’  [Citations.]  Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.  [Citation.]”  (In re Jasmon O. (1994) 8 Cal.4th 398, 419, 33 Cal.Rptr.2d 85, 878 P.2d 1297.)

 The purpose of reunification services is to help the parent overcome the deficiencies that justified the court's assumption of jurisdiction and the removal of the child from parental custody.   Under the facts of this case, no amount of services would have enabled father to regain custody within 18 months.   At the end of that time, the court would have had to order a hearing under section 366.26 at which the court would have to implement a plan of foster care, guardianship, or adoption.   Thus, the error in failing to order reunification services was harmless under any standard of review.

III

Ineffective Assistance of Counsel

Father contends he received ineffective assistance of counsel.   He argues trial counsel was negligent for failing to object to the court's failure to provide reasonable services and by failing to object to the termination of services.   Moreover, father claims his trial counsel failed to attend the 6–month hearing.

 To establish this claim, he must show that (1) trial counsel failed to act in a manner expected of a reasonably competent attorney acting as a diligent advocate and (2) if counsel had rendered effective assistance, the outcome of the hearing was reasonably likely to have been more favorable to father.  (In re Arturo A. (1992) 8 Cal.App.4th 229, 237, 10 Cal.Rptr.2d 131.)   Father must also show that counsel's action or failure to act did not stem from reasonable tactical considerations.

 Here, father cannot meet the prejudice prong of the ineffective assistance of counsel claim.   Anything his counsel did or failed to do could not have changed the facts that father was serving a 12–year sentence for dealing drugs, that he had a history of drug abuse, and that he had never created any type of bond with Minnie.   As the court stated in Arturo A., “[W]e surely cannot derail the permanent plan of this child upon pure speculation that appellant would prevail in a renewed review hearing.”   (Arturo A., supra, 8 Cal.App.4th at p. 246, 10 Cal.Rptr.2d 131.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

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

2.   Father was the biological father of only one of the other children.

3.   The original petition contained allegations only under section 300, subdivision (b).   The social worker's report later noted that some of the allegations should properly have been made under section 300, subdivision (g).

4.   “The court shall not terminate parental rights if at each and every hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.”  (§ 366.26, subd. (c)(2).)

5.   Section 361.5, subdivision (e)(1) describes reunification services to be provided to an incarcerated parent.   Section 361.5, subdivision (e)(1) states, “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor.   In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of crime or illness, the degree of detriment to the child if services are not offered and ․ any other appropriate factors.   Reunification services are subject to the 18–month limitation imposed in subdivision (a).   Services may include, but shall not be limited to, all of the following:“(A) Maintaining contact between parent and child through collect phone calls.“(B) Transportation services, where appropriate.“(C) Visitation services, where appropriate.“(D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.“An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.”(Emphasis added.)The word “shall” in subdivision (e)(1) means that reunification services are mandatory.  (§ 15.)

DABNEY, Acting Presiding Justice.

HOLLENHORST and McKINSTER, JJ., concur.