Opinion
A150894
06-02-2017
M.P., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. JD16-3111; JD16-3112)
Petitioner M.P. is the father of E.H. and D.P., who are the subjects of these Welfare and Institutions Code section 300 dependency proceedings. M.P. brings this petition for an extraordinary writ (Cal. Rules of Court, rule 8.452), seeking relief from orders of respondent court terminating his reunification services at the six-month review hearing and setting the matter for a section 366.26 permanency hearing. M.P. asserts the following three errors: (1) the court abused its discretion in terminating his reunification services before the 12-month review; (2) the court's finding that real party in interest San Francisco Human Services Agency (Agency) provided reasonable services was unsupported by substantial evidence; and (3) the court erred in failing to address visitation when it terminated reunification services and set a permanency hearing. We reject M.P.'s contentions, and we deny his petition on the merits.
All statutory references are to the Welfare and Institutions Code.
BACKGROUND
On April 5, 2016, T.J., the mother of E.H. (then five years old) and D.P. (then three years old), was in a car accident while under the influence. E.H. and D.P. were in the backseat of the car but were not properly restrained, resulting in injuries to E.H. T.J., who had an outstanding felony warrant, was arrested and the children taken into protective custody. E.H. later reported that his parents had gotten into an argument because M.P. wanted the children to go with him and he had broken the car window and taken their car seats.
Most details regarding T.J. are irrelevant to the issues raised by M.P.'s petition, and we thus omit them.
As a result of the accident, the Agency filed section 300 petitions as to E.H. and D.P., alleging substantial risk of serious physical harm (subd. (a)), failure to protect (subd. (b)), and no provision for support (subd. (g)). It was also alleged that T.J. had two older children who were removed from her care and with whom she failed to reunify (subd. (j)). D.P.'s petition identified M.P. as her alleged father, while E.H.'s petition identified another man as his alleged father.
The subdivision (g) allegation was as to E.H. only.
At an ensuing detention hearing, E.H. and D.P. were detained and temporarily placed in foster care. The court ordered visitation for T.J.; visitation for M.P. was deferred pending the outcome of paternity testing.
Jurisdiction
In a May 6 combined jurisdiction/disposition report, the Agency recommended bypassing reunification services for T.J., whose whereabouts were unknown. It advised that it would offer M.P. services if he obtained presumed father status.
Regarding M.P.'s background, the Agency reported that after the detention hearing (at which M.P. appeared), he was arrested for "evading a police officer, vandalism, fraud, obstructing a public officer, hit and run by property vehicle, and violation of parole." He was released on bail on April 28. His prior criminal record included a 2013 conviction for auto theft and 2014 conviction for assault with a firearm, for which he was on probation and parole. M.P. also had a history of substance abuse and had completed a residential substance abuse treatment program in May 2015. He had relapsed a few times, having last used crystal meth two months earlier. He had a medical marijuana card and smoked marijuana.
The Agency also reported that, according to M.P., in September 2014 he was in a car accident in which he suffered a brain injury that affected his memory. He was working with a doctor who was helping him with his memory, and he wanted both children placed with him once he was stable.
On June 15, the Agency filed an addendum report in which the social worker detailed her unsuccessful attempts to communicate with M.P. She had attempted to meet with him multiple times, having left many unreturned voicemail and text messages on different numbers he had provided. He failed to show up for a June 7 meeting. Later that day, she went to a scheduled visit between M.P. and the children, but M.P. did not show up for the visit. The paternal grandmother was at the visit but did not know where M.P. was. She told the social worker that since his accident, he was always forgetting things. There were also concerns about his substance use. Despite all this, the Agency recommended M.P. receive reunification services.
At a June 17 jurisdiction/disposition hearing, M.P. and T.J. (who had apparently been in contact with the Agency) submitted on amended petitions, and the court sustained the amended jurisdictional allegations as to both children. The court also found M.P. to be the presumed father of both children in light of DNA tests confirming he was their biological father.
Disposition
At a July 6 contested dispositional hearing, the court declared the children dependents, bypassed services for T.J., and ordered reunification services and visitation for M.P. It adopted the Agency's proposed case plan, which required that M.P. do the following: complete a parenting education program; obtain suitable housing; engage in regular visitation; comply with the terms of his probation and parole; advise the social worker of his whereabouts; undergo a neuropsychological evaluation and follow any recommendations; participate in family therapy with the children; maintain a clean and safe home; and participate in weekly drug testing. The matter was continued to January 2017 for a six-month review and to June 2017 for a 12-month review.
The Agency's Section 388 Petition to Terminate Reunification Services
On December 9, the Agency filed a section 388 petition seeking termination of M.P.'s reunification services. As to the change in circumstances supporting the request, the Agency stated that M.P. had had limited contact with the social worker, had not engaged in services, and had continued interactions with law enforcement. It also noted that M.P.'s living arrangements were unclear. The petition was set for hearing on January 3, 2017, the same day as the six-month review.
The Agency's Six-Month Status Review Report
On December 19, the Agency filed a six-month status review report in which it recommended termination of M.P.'s reunification services. In the report, social worker Melissa Leiva wrote that M.P. had not obtained suitable housing. In April 2016, he told the prior social worker he was living with his girlfriend in Vallejo but they were going to move in with his mother after his release from custody, but in July 2016, he said that he was living with his girlfriend in Alameda but they were hoping to move to Sacramento. At the time of the status report, M.P. was using his mother's address for receiving mail.
Leiva advised that M.P. had only "limited visitation" during the reporting period. He told her it was difficult to get to visits because he did not have a car. At the beginning of the reporting period, he was consistent with his weekly visitation at the visitation provider's offices in Oakland, but his visits had become inconsistent. He failed to confirm his visit appointments in advance, despite being reminded to do so, and by November, the visitation provider reported that it was no longer willing to provide supervision for the visits because he continued to miss them. The provider was willing to transport the children to visits, but M.P. had not responded to the Agency's attempts to schedule visitation.
Leiva also reported that M.P. failed to engage in other services. The Agency had referred him to a program for assistance in finding a parenting class, but he claimed he was participating in such a class through probation. He also claimed he checked in with his probation officer once a month and drug tested for probation, but he had been arrested on bench warrants during the reporting period. He had been referred to a clinical psychologist for a neuropsychological evaluation and had scheduled an appointment but failed to show up.
Lastly, M.P. was not maintaining contact with his social worker, with Leiva confirming that she had only one meeting with him in the previous five months, as he did not respond to telephone calls, emails, or letters. She specifically detailed the efforts she had made to communicate with him: "An in person visit took place in August, attempted to contact [M.P.] on 9/15 and 9/21, phone was not working; 9/22 sent a letter requesting to meet on 9/28; heard from [M.P.] on 9/23 and he provided a new number and confirmed appointment for 9/28, however, he did not show. Attempted phone call in October, father's number was not working. Sent letters to [M.P.] via email in August and via mail in September and November to the address he requested, written contact outlined case plan requirements."
The Agency's February 22, 2017 Addendum
At the January 3, 2017 combined hearing on the Agency's section 388 petition and the six-month review, the court continued the matter to March 6 for a contested hearing. In an addendum prepared for the March 6 hearing, the Agency reiterated its recommendation that M.P.'s reunification services be terminated. Leiva reported that on January 3, M.P. told her he was submitting to monthly drug tests through probation. On February 10, however, M.P.'s probation officer told her M.P. had not come in since September 9, 2016 and had not drug tested since then. There was an active bench warrant for his arrest for failure to check in with the probation department. M.P. also told her he had connected with the clinical psychologist who was assigned to conduct his neuropsychological evaluation and had rescheduled his appointment. On February 10, however, the clinical psychologist informed Leiva she had not heard from M.P. M.P. had also failed to confirm his attendance at visits with the children as required, and the visits were cancelled.
March 6, 2017 Hearing on the Agency's Section 388 Petition and the Six-Month Review
On March 6, the court held a contested hearing on the Agency's section 388 petition and the six-month review. M.P. did not appear. The only witnesses were Leiva and the paternal grandmother.
Leiva testified that starting in July 2016, M.P. visited with the children once a week, but his phone stopped working and he stopped visiting after two months. When he told her he no longer had a car, she offered to give him a BART card or transportation funds. She also set up a meeting to discuss ideas for future visitation, but he did not show up. Unable to reach him by phone, she sent him four letters but received no response. When she was finally able to speak with him, he acknowledged he had received the letters but claimed he had misplaced some of them. He had not called or visited with the children since "at least November of 2016" and "[p]ossibly before" then.
Leiva explained that at the outset M.P. had consistently not confirmed his visits. However, the first social worker at the visitation provider was flexible and would arrange visits whether or not M.P. called to confirm. When a new social worker took over the case, she would not bring the children to the visits if M.P. did not confirm.
According to Leiva, M.P. occasionally called the foster mother to ask how the children were doing, but he did not ask to speak to the children themselves. She was unaware M.P. had called E.H. in January 2017 to talk to him about an allegation that E.H. had been sexually abused by another student at school.
M.P.'s mother testified that she accompanied him on seven to 10 visits with the children, the last one being "maybe six months ago." She was present on approximately four occasions when M.P. was at her house and had called the children.
After the close of testimony, counsel for the Agency asked the court to grant the section 388 petition on the grounds that M.P.'s participation in reunification services was minimal and termination of his services was in the children's best interests so they could move towards permanency. Counsel noted that M.P. had not visited with the children since at least November and he had made only a few calls to the foster parent. Counsel for the children concurred with the request.
M.P.'s counsel argued that the court's discretion to terminate M.P.'s services prior to the end of the 12-month review period was very limited, contending it could only terminate services early if there was a meritorious section 388 petition or the requirements of section 361.5, subdivision (a)(2) were satisfied, neither of which existed here. Counsel's position was largely based on a claim that where the parent had any visitation with the child during the review period, the court could not find there was clear and convincing evidence that "the parent has failed to contact and visit the child" as required for early termination under section 361.5, subdivision (a)(2)(B).
Following argument, the court found by clear and convincing evidence that M.P. had failed to participate in reunification services, and there was not a substantial probability that the children could be returned to him by June 6, 2017 (the date of the 12-month review hearing). It also found by clear and convincing evidence that reasonable efforts had been offered or provided to M.P. to assist him in overcoming the problems that gave rise to the dependency but that his progress towards mitigating the problems necessitating placement had been minimal from July to September and nonexistent after that. Accordingly, the court terminated reunification services for M.P. and set the matter for a section 366.26 hearing on June 27, 2017. The court did not find that visitation would be detrimental to the children, nor did it make any orders regarding continued visitation for M.P.
M.P. filed a timely notice of intent to file writ petition.
DISCUSSION
Applicable Welfare and Institutions Code Provisions
The early termination of reunification services in a dependency proceeding is governed by section 361.5, subdivision (a)(2). In M.C. v. Superior Court (2016) 3 Cal.App.5th 838, 842-843, our colleagues in Division One recently summarized the applicable law as follows:
"Section 361.5, subdivision (a)(1), provides that where a detained child is three years of age or older, 12 months of reunification services 'shall be provided' to the parent. (§ 361.5, subd. (a)(1)(A).) Subdivision (a)(2) provides the framework for terminating services prior to the end of the 12-month period. It states in relevant part: 'Any motion to terminate court-ordered reunification services prior to the hearing set pursuant to subdivision (f) of Section 366.21 [the permanency hearing, which is to be held no later than 12 months after the child enters foster care] for a child described by subparagraph (A) of paragraph (1) [a child three years of age or older] . . . shall be made pursuant to the requirements set forth in subdivision (c) of Section 388.' (§ 361.5, subd. (a)(2).) It further states that such a motion 'shall not be required' for the court to terminate services prior to the permanency hearing if, at the six-month review hearing, the court 'finds by clear and convincing evidence one of the following: [¶] (A) That the child was removed initially under subdivision (g) of Section 300 and the whereabouts of the parent are still unknown. [¶] (B) That the parent has failed to contact and visit the child. [¶] (C) That the parent has been convicted of a felony indicating parental unfitness.' (§ 361.5, subd. (a)(2)(A), (B), (C); see generally In re J.P. (2014) 229 Cal.App.4th 108, 121-122 (J.P.).)
"Subdivision (c) of section 388, in turn, provides, in relevant part: 'Any party, including a child who is a dependent of the juvenile court, may petition the court, prior to the [permanency] hearing . . . to terminate court-ordered reunification services provided under subdivision (a) of Section 361.5 only if one of the following conditions exists: [¶] (A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services. [¶] (B) The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent's or guardian's failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.' (§ 388, subd. (c)(1)(A), (B).) The court can terminate services only if it finds, by clear and convincing evidence, that reasonable services have been offered and one of these two conditions exist. (§ 388, subd. (c)(3); see J.P., supra, 229 Cal.App.4th at p. 122.)"
The Juvenile Court Did Not Abuse Its Discretion When It Ordered Early Termination of M.P.'s Family Reunification Services
There was no argument here that M.P.'s whereabouts were unknown (§ 361.5, subd. (a)(2)(A)) or that he had been convicted of a felony indicating parental unfitness (id., subd. (a)(2)(C)). Thus, in order to terminate M.P.'s reunification services prior to the 12-month review, the juvenile court had to find by clear and convincing evidence that he had "failed to contact and visit" his children (§ 361.5, subd. (a)(2)(B)) or that his "action or inaction . . . create[d] a substantial likelihood that reunification will not occur, including, but not limited to, the parent's or guardian's failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan" (§ 388, subd. (c)(1)(B)). M.P. argues that the court here made "no findings whatsoever" with regard to the section 388 petition or the elements of section 361.5, subdivision (a)(2). And, he claims, it could not have made the requisite findings under either provision because he engaged in some visitation during the review period. M.P. is incorrect.
First, the record belies M.P.'s contention that the court made none of the requisite findings. As noted, section 388, subdivision (c)(1)(B), authorizes early termination where the parent's inaction creates a substantial likelihood that reunification will not occur, including the parent's failure to visit the child or to participate regularly and make substantive progress in the treatment plan. Here, the court found "by clear and convincing evidence that the father has failed to participate regularly in his court-ordered treatment plan, and there is not a substantial probability that . . . the children would be returned to the father" by the 12-month review hearing (then scheduled for June 6, 2017). These are the precise findings required by section 388.
Despite M.P.'s claim that "it is impossible to determine whether the trial court in this case terminated the father's services based on the Section 388 motion, or on the elements of Section 361.5(a)(2)(A)," there can be no doubt that the early termination of services was based on the Agency's section 388 petition. The court responded affirmatively when counsel for the Agency asked, "[C]an I assume from the Court's findings that the Court is granting the 388 petitions?" And the minutes of the hearing noted that the section 388 petition seeking termination of M.P.'s services was granted.
Second, substantial evidence supported the court's findings. As to visitation, the record was unclear as to exactly when M.P. had last visited E.H. and D.P. It was clear, however, it had been many months. Leiva testified that he started visiting the children in July 2016 and visited them for about two months. At the latest, then, the last visitation occurred in October 2016, five months before the hearing on the Agency's request to terminate services. This timeline was consistent with that provided by M.P.'s mother, who testified she visited the children with M.P., and they had not done so for "maybe six months . . . ."
As to the other components of his case plan, M.P. had made no progress since the July 2016 disposition hearing (a period of about eight months). He was required to submit to a neuropsychological evaluation and follow the recommendations of the clinical psychologist. He failed to show for his evaluation appointment, failed to return the messages left by the psychologist, and told Leiva he had contacted the psychologist to reschedule when in fact he had not. He was required to maintain contact with the social worker, but Leiva described in detail her unsuccessful efforts to communicate with him by mail, telephone, and text. He was required to comply with the conditions of his probation and parole, but his probation officer reported to Leiva that he had not been in contact since September 2016 and there was a bench warrant out for his arrest. He was required to submit to drug testing and told Leiva he was testing through the probation department, but he had not in fact drug tested since September 2016. He was required to complete a parenting class, had been referred to one, and had told Leiva he was completing a program through the probation department, but there was no indication he ever participated in such a program. He was required to obey all laws but he continued to have contact with law enforcement during the review period and there was a warrant out for his arrest.
In short, the evidence in the record showed that as of the section 388 and six-month review hearing, it had been five to six months since M.P. had visited E.H. and D.P. And in the eight months preceding the hearing, M.P. had not engaged in services, let alone made any progress in his treatment plan. This was substantial evidence supporting the juvenile court's finding that due to M.P.'s inaction, there was not a substantial likelihood that the children would be returned to M.P. by the June 6, 2017, 12-month review. In light of this, we conclude the juvenile court did not abuse its discretion in granting the Agency's section 388 request to terminate M.P.'s reunification services. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881 [order made pursuant to section 388 petition is reviewed for abuse of discretion].)
In urging a contrary result, M.P. contends that M.C. v. Superior Court, supra, 3 Cal.App.5th 838 is "precisely applicable in this case." In that case, the court terminated the mother's services at the six-month review, she petitioned for extraordinary writ relief challenging the early termination of her services, and the Court of Appeal granted her petition. Relying on In re Aryanna C. (2005) 132 Cal.App.4th 1234 and In re Derrick S. (2007) 156 Cal.App.4th 436, the juvenile court had construed section 361.5, subdivision (c), as affording it discretion to terminate services prior to what it considered to be the statutory maximum of 12 months for a child over three years old. (M.C. v. Superior Court, supra, 3 Cal.App.5th at p. 849.) The Court of Appeal disagreed with that interpretation, explaining that the year after Derrick S., the Legislature amended sections 361.5 and 388 to make clear that the timeframes for reunification services—six months for children under the age of three years and 12 months for children over the age of three—were mandatory minimums that could only be circumvented in narrow instances "set forth in section 388 or at the six-month review hearing if the court finds by clear and convincing evidence one of three circumstances exists. (§ 361.5, subd. (a)(1), (2).)" (M.C. v. Superior Court, at p. 849; accord, pp. 850-851.) Because the child welfare agency in that case had not filed a section 388 petition, nor had the court considered whether one of the three section 361.5, subdivision (a)(2) circumstances existed, the early termination of services was error. (M.C. v. Superior Court, at pp. 840-841, 850-851.) Here, in contrast, the Agency filed a section 388 petition, the court made the findings required by section 388, subdivision (c)(1)(B)), and those findings were supported by substantial evidence.
The Juvenile Court's Finding That the Agency Provided Reasonable Reunification Services to M.P. is Supported by Substantial Evidence
Prior to the early termination of reunification services under section 388, subdivision (c), the court must find that the Agency provided reasonable services. (In re J.P., supra, 229 Cal.App.4th 108, 122.) The court made this required finding here, which finding M.P. contends was erroneous. We review this claim for substantial evidence, and conclude such evidence exists here. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010; In re Ronell A. (1995) 44 Cal.App.4th 1352, 1362.)
As M.P. correctly notes, the Agency must make a good faith effort to provide reasonable services responsive to each family's unique needs. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1010.) " '[T]he focus of reunification services is to remedy those problems which led to the removal of the children. . . .' [Citation.] '[T]he record should show that the [department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [parent] during the course of the service plan, and made reasonable efforts to assist the [parent when] compliance proved difficult. . . .' [Citation.]" (In re Ronell A., supra, 44 Cal.App.4th at p. 1362.) M.P. contends that was not done here, reasoning as follows: "[T]his was a father with a traumatic brain injury with memory problems that clearly impaired his functioning. There was no evidence that the Agency took significant any steps [sic] to address this obstacle or tailor services to meet his specific needs. The Agency merely made services available. Nothing in the record indicates that any other alternatives where considered to accommodate the father's limitations. Consequently, when the court found that the father had not regularly and consistently visited the children, this was clearly based on the fact that the father's lack of transportation and limited functioning had made it, if not impossible, then difficult for him to attend visits. There is no evidence that the Agency looked into other visitation options for the father." The record does not support this claim.
Early on in the proceeding, the Agency learned from M.P. that in 2014 he was in a car accident in which he suffered a traumatic brain injury that affected his memory. Accordingly, one component of his case plan was that he complete a neuropsychological evaluation and follow the evaluation's recommendations. This evaluation would have informed the Agency about M.P.'s abilities and limitations, allowing the Agency to further tailor reunification services to his specific needs. Despite efforts by Leiva and the clinical psychologist, M.P. never completed the evaluation, even falsely telling Leiva he had rescheduled the missed appointment when he had not in fact responded to the psychologist's messages. His complaint that the Agency never took "significant . . . steps to address this obstacle or tailor services to meet his specific needs" is thus contradicted by the record.
The same is true of M.P.'s claim that the Agency did not do enough to facilitate visitation when his "lack of transportation and limited functioning had made it, if not impossible, then difficult for him to attend visits." While M.P. asserts that those two factors "clearly" impeded his ability to visit, given his total failure to engage in other services, it is just as probable that his failure to visit was driven simply by his lack of desire or motivation to do so. Moreover, the social worker did attempt to assist M.P. in resolving any problems impeding visitation. When informed he no longer had a car, she offered funds for transportation to help him get to visits, and she scheduled a meeting with him to discuss options to facilitate visitation. M.P. neither accepted the funds nor attended the meeting. And, again, had he submitted to the neuropsychological evaluation, the Agency would have had a better sense of the unique problems M.P. faced.
Given this and the many other services the Agency provided M.P., we conclude that substantial evidence supports the court's finding that the Agency provided reasonable services. M.P. simply failed to avail himself of them.
The Juvenile Court Did Not Err in Failing to Address Visitation When It Terminated Reunification Services
Section 366.21, subdivision (h), provides that when the court terminates reunification services and sets a section 366.26 permanency hearing, as it did in this case, the court "shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." The court here made no orders regarding visitation, which M.P. contends requires remand. The Agency responds that absent a court order to the contrary, following termination of services, visitation continues unchanged from the prior order. Thus, since the court did not make a detriment finding and terminate visitation, the order for weekly visitation remained in place. We further note that M.P. does not identify any harm, as he does not suggest that he attempted to arrange a visit with his children but was denied visitation. Remand is thus unwarranted.
DISPOSITION
The petition of father M.P. for extraordinary writ relief is denied on its merits. The decision is final as to this court forthwith. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.