Douglas M. v. Superior Court CA4/1
- Proceeding
- writ
- Trial judge
- Blaine K. Bowman
- Outcome
- writ denied — Petitions denied.
- Area
- dependency
- Panel
- Judith D. McConnell (author), Gilbert Nares, McINTYRE
Analysis
The trial court terminated reunification services for the parents and set a section 366.26 hearing, finding that the Agency had provided reasonable services despite the father's incarceration. The Court of Appeal denied the writ petition, holding that substantial evidence supported the finding of reasonable services and that the father failed to demonstrate prejudice from any alleged delays.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Termination of reunification services and setting of a section 366.26 hearing based on the finding that reasonable services were provided or offered.“In view of the total circumstances of this case, we conclude the record supports the court's finding that Douglas was provided with reasonable reunification services and visitation with Caleb, and the social worker made adequate efforts to assist him.” | substantial evidence | correct | agree with court The appellate court correctly applied the substantial evidence standard, which requires only that the record contain evidence a reasonable mind might accept as adequate to support the finding. The court noted that the father's own criminal conduct led to his incarceration, limiting the services available, and that the Agency made reasonable efforts to provide comparable services and visitation. The father failed to demonstrate prejudice from the delay in receiving the parenting packet, satisfying the burden of proof required to overturn the trial court's finding. |
Authorities
- relied: Angela S. v. Superior Court (1995) 36 Cal.App.4th 758 — The role of the appellate court is to decide whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered.
- relied: In re Misako R (1991) 2 Cal.App.4th 538 — The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances.
- relied: In re Geoffrey G. (1979) 98 Cal.App.3d 412 — The appellant bears the burden to show the evidence is insufficient to support the court's findings.
- relied: Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965 — A parent's own criminal conduct that places them in custody may limit the services the agency can provide, supporting a finding of reasonable services.
The appellate opinion: sound — The opinion is sound because it correctly applies the substantial evidence standard and cites appropriate authorities to support the conclusion that the agency provided reasonable services given the father's incarceration. It addresses the specific arguments regarding the delay in the parenting packet and visitation issues, finding no prejudice.
How this analysis was made · dispute it
unusual dispositionAt the six-month review hearing the juvenile court found the Agency had offered or provided reasonable reunification services to incarcerated father Douglas M. and mother Rachel P., found neither parent had made substantive progress, terminated services and set a section 366.26 hearing for two-year-old Caleb. On writ review the Court of Appeal applied substantial evidence review, held the record supported the reasonable services and visitation findings, attributed the limits on services to Douglas's own incarceration, and denied both petitions.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that the Agency offered or provided reasonable reunification services to Douglas while he was incarcerated at Vista, Chino and Blythe“It was Douglas's own criminal conduct that placed him in custody, where he was unable to take advantage of services the Agency could provide.” | substantial evidence | correct | agree with court The opinion recites evidence that the social worker met with Douglas at Vista, prepared a custody-specific case plan, wrote to him and telephoned Chino, learned no services were available in reception (confirmed by his own investigator), and sent reminder letters; that is enough under the deferential standard. However, the court's statement that it was Douglas's obligation to look for services sits uneasily with the Agency's affirmative duty to incarcerated parents under section 361.5(e)(1) and cases such as Mark N. and In re Monica C., which the court did not cite, and the opinion never mentions the clear-and-convincing standard of proof that governs the reasonable services finding when a section 366.26 hearing is set at the six-month review. |
Rejection of the claim that delayed delivery of the prison parenting packet rendered services unreasonable“Although there was a delay in Douglas receiving the packet, he can point to no prejudice.” | substantial evidence | correct | agree with court The court treated the delay as non-prejudicial because the case plan already directed Douglas to participate in all comparable services available at his facility and the record showed no services were available at Chino during the relevant period; a delayed packet could not have changed what was accessible to him. The opinion does not explain why the delay from October 2012 to January 2013 occurred, so the analysis is thin, but the result follows from the no-services-available finding. |
Finding that the Agency made adequate efforts to facilitate visitation between Douglas and Caleb“The social worker submitted request forms to Chino for Caleb to visit, and the paternal grandfather was willing to transport him, but the request had not been approved by the time Douglas was moved to Blythe.” | substantial evidence | correct | agree with court The record described weekly visits at Vista, visit request forms submitted at both Chino and Blythe, telephone contact beginning at Blythe, and a willing transporter; the delays were attributable to prison approval processes and Douglas's transfers rather than Agency inaction. Under substantial evidence review this supports the finding, though the court did not address whether the Agency should have pursued alternatives such as the taped-reading program it identified in the plan. |
Authorities
- relied: Angela S. v. Superior Court (1995) 36 Cal.App.4th 758 — Appellate review of a reasonable services finding asks whether substantial evidence supports the juvenile court's determination.
- relied: In re Misako R. (1991) 2 Cal.App.4th 538 — The standard is not whether the best possible services were provided but whether reasonable services were provided under the circumstances.
- relied: In re Geoffrey G. (1979) 98 Cal.App.3d 412 — The appellant bears the burden of showing the evidence is insufficient to support the court's findings.
- relied: Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965 — A parent's own criminal conduct leading to incarceration may limit the services the agency can provide without rendering the services unreasonable.
- missed: Mark N. v. Superior Court (1998) 60 Cal.App.4th 996 — The agency has an affirmative duty under section 361.5(e)(1) to make reasonable efforts to provide services to an incarcerated parent, including identifying and arranging services at the institution, rather than leaving the burden on the parent.
- missed: In re Monica C. (2008) 164 Cal.App.4th 1352 — Services to an incarcerated parent are unreasonable where the agency fails to follow up on and facilitate access to institutional programs identified in the case plan.
The appellate opinion: sound with gaps — The court correctly stated and applied the substantial evidence standard and the record it recites—a custody-tailored case plan, contact with the prisons, confirmation that no services were available at Chino, and repeated visitation requests—supports denial of the writ. It did not, however, engage the incarcerated-parent statute (§ 361.5(e)(1)) or the published authorities imposing an affirmative duty on the agency, and its remark that it was Douglas's obligation to seek out services, together with its silence on the clear-and-convincing standard of proof at a six-month hearing resulting in a .26 setting, leaves gaps in an otherwise defensible result.
Opinion
Filed 7/1/13 Douglas M. v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DOUGLAS M. et al, D063633 Petitioners, (San Diego County Super. Ct. No. NJ14663) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Blaine K. Bowman, Judge. Petitions denied.
Amanda J. Gonzales for Petitioner Douglas M.
Elizabeth Klippi for Petitioner Rachel P.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Respondent. Douglas M. and Rachel P. seek writ review of orders terminating their reunification services and setting a Welfare and Institutions Code1 section 366.26 hearing regarding their son, Caleb R. Douglas argues he was not provided with reasonable reunification services. Rachel joins in and adopts Douglas's arguments and asks that her services be continued if Douglas's petition is granted. We deny the petitions.
FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2012, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of two-year-old Caleb under section 300, subdivision (b), alleging he was at substantial risk of serious harm because Douglas, while driving a car in which Caleb was a passenger, displayed a gun to a passenger in another car and drove at excessive speed; the car contained illegal drugs; Caleb tested positive for methamphetamine; and Douglas was arrested on drug-related charges. The petition further alleged Douglas and Rachel admitted using amphetamine and methamphetamine on a regular basis. The court ordered Caleb detained in foster care.
One year earlier, Douglas had been arrested for possessing and selling prescription pills and marijuana, and Rachel had been arrested for child endangerment because marijuana accessible to Caleb was found in the family home. Douglas then served eight months at the Vista Detention Facility (Vista), but, after he was released in January 2012, he and Rachel returned to using methamphetamine together.
1 Statutory references are to the Welfare and Institutions Code. 2 At the jurisdictional and dispositional hearing in July 2012, the court found the allegations of the section 300, subdivision (b) petition to be true, declared Caleb a dependent of the juvenile court, removed him from parental care and ordered reunification services for Douglas and Rachel. Douglas was in custody at Vista at the time of the hearing.
In mid-October 2012, Douglas was transferred to the California Institute for Men in Chino (Chino). He was housed in the reception area, where he was not eligible for services. In February 2013, he was moved to Chuckawalla Valley State Prison in Blythe, California (Blythe). Meanwhile, Rachel had not been following through with the substance abuse treatment she was offered. In February, she was arrested for being under the influence of a controlled substance.
At the six-month review hearing on March 21, 2013, the court heard testimony from the social worker and from Douglas. After considering the testimony, the documentary evidence and argument by counsel, it found the Agency had offered or provided reasonable reunification services, but Douglas and Rachel had not made substantive progress with the provisions of their case plans. The court terminated reunification services and set a section 366.26 hearing.
DISCUSSION
Douglas contends there was not substantial evidence presented to support the finding he received reasonable reunification services. He argues the social worker did not make sufficient efforts to help him obtain services or visitation while he was at 3 Chino, and she did not send him a parenting prison packet until just before the six-month hearing. Rachel joins in and adopts his arguments.
In determining the sufficiency of reunification services the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Soon after Caleb was taken into protective custody, the social worker met with Douglas at Vista and they discussed his reunification plan. She advised him to focus on recovering from his drug addiction and reliance on a criminal lifestyle and to use the resources that were available to him at Vista. Douglas told her he had signed up for Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, had enrolled in a program at Vista called "Thinking for Change," and he had been given additional privileges because of his good behavior. The social worker provided Douglas and Rachel with referrals to services, including a list of shelters, emergency food assistance, substance abuse treatment centers and a list of AA/NA meetings. She also gave them a booklet guide to services and reviewed the booklet in detail.
Present at a team decision-making meeting on June 10, 2012, were two social workers, Rachel, the maternal grandparents and paternal grandparents, and a hospital 4 staff member. Douglas was able to participate briefly by telephone from Vista. Issues discussed at the meeting included Douglas's drug use and the actions that had led to his incarceration and to Caleb's removal. The paternal grandparents said they would provide transportation for Caleb to visit Douglas in custody.
Douglas was not in custody two days later on June 12, and he attended the detention hearing that day. The court made voluntary services available and told Douglas he needed to start those services immediately and had only six months to make progress.
After Douglas's incarceration, the Agency prepared a revised case plan for him that reflected the fact that he was in custody. This plan was attached to the July 23, 2012 addendum report that the court received into evidence at the dispositional hearing, and the court ordered Douglas to comply with its provisions. The plan stated Douglas needed to participate in individual therapy, a parenting course, random drug testing, a substance abuse recovery program and to follow recommendations by the substance abuse specialist. The objectives of the plan were that he live free from drug dependency, follow the conditions of his probation or parole, meet Caleb's needs and be an appropriate parent, and develop a positive support system. When Douglas was placed in custody, a provision was added to require him to participate in all comparable reunification services available to him at his detention facility and upon release to immediately enroll in all planned client services. Douglas's case plan properly provided for the services that would address the issues that had led to Caleb's dependency. It described the treatment that was required, but also stated that if the specified treatment was not available while he was incarcerated, he was to participate in all comparable services available to him.
5 When Douglas was transferred to Chino in October 2012, the social worker wrote to him and telephoned the prison. She learned no services were available to him there, and the investigator for Douglas's counsel confirmed that he was not able to attend any services during the time he was in reception at Chino.
Douglas objects that the social worker waited to send him a prison parenting packet until January 2013. Although there was a delay in Douglas receiving the packet, he can point to no prejudice. He also notes that the social worker did not contact the authorities at Chino to see if he could send tapes to Caleb, she did not arrange to send materials to him at the prison to read to Caleb on tape, and she did not inquire about what written materials were available or send him written counseling or drug rehabilitation materials or additional parenting booklets and tests. Douglas's services plan stated he should participate in all comparable services available to him at his facility and gave examples, such as parenting, 12-step meetings, and a program called "Read to Your Child by Tape." The social worker sent letters to him reminding him of what he needed to do in order to reunify with Caleb. It was Douglas's obligation to look for the appropriate services available to him.
Douglas also claims the Agency did not adequately assist him with visitation.
While Douglas was at Vista, Caleb came to visit him once each week. At Chino, Douglas was not allowed to telephone Caleb, and the paternal grandfather said that when he went to see Douglas at Chino, their visit had been through a small hole. The social worker submitted request forms to Chino for Caleb to visit, and the paternal grandfather was willing to transport him, but the request had not been approved by the time Douglas 6 was moved to Blythe. After Douglas's transfer to Blythe, the social worker contacted authorities there to request Caleb be allowed to visit and she filed the necessary forms.
Douglas began making telephone calls to Caleb, but by the time of the six-month hearing, the social worker had not yet received a reply to her request for visitation.
In view of the total circumstances of this case, we conclude the record supports the court's finding that Douglas was provided with reasonable reunification services and visitation with Caleb, and the social worker made adequate efforts to assist him. It was Douglas's own criminal conduct that placed him in custody, where he was unable to take advantage of services the Agency could provide. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.) He has not shown error.
DISPOSITION
The petitions are denied.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
Cites, in this corpus
- Elijah R. v. Superior Court of L.A. Cty. B110625 · 1998-08-19
- Angela S. v. Superior Court A069677 · 1995-07-11
- In Re Misako R. D013604 · 1991-12-09
- Mervin v. Gustave G. Civ. 4772 · 1979-11-02