Keith F. v. Sup. Ct.

Filed 11/30/05 Keith F. v. Sup. Ct. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KEITH F., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

No. B184234 (Super. Ct. No. CK56733)

ORIGINAL PROCEEDINGS in mandate. Lori Schroeder, Referee. Petition denied.

Claire Boudov for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Real Party in Interest.

_____________________________

By petition for writ of mandate, father Keith F. challenges juvenile court orders terminating reunification services as to his daughter, Kaitlyn, denying him reunification services as to his daughter, Kameren, and setting a permanency planning hearing for the children. He claims the Department of Children and Family Services (DCFS) did not provide him with reasonable reunification services, and asks that we vacate these orders. We find the requested relief is not warranted.

FACTUAL AND PROCEDURAL SUMMARY

Kaitlyn was born in November 2003 with a positive toxicology screen for cocaine. Her mother entered into a voluntary family maintenance agreement with DCFS, but failed to comply with its terms. In March 2004, DCFS received a child abuse referral alleging that mother and father were using drugs while caring for Kaitlyn. Mother agreed to voluntarily place Kaitlyn with her maternal grandmother while she completed a drug treatment program.

A Welfare and Institutions Code^[1] section 300 petition was filed on Kaitlyn’s behalf in September 2004, alleging that Kaitlyn had been born with a positive toxicology screen for cocaine, that mother had a history of substance abuse rendering her incapable of caring for the child, that mother had demonstrated signs of a severe mental or emotional disorder which required involuntary hospitalization in a psychiatric facility and rendered her unable to regularly care for the child, and that mother had failed to comply with a voluntary family maintenance agreement. As to father, it was alleged that he had a history of substance abuse and drug-related criminal activity which placed the child at risk.

Father was arrested for drug possession in October 2004, and was in custody at the time originally set for the adjudication hearing. He was released prior to the continued court date, but did not appear for the hearing. In November 2004, the court sustained the petition, and declared Kaitlyn a dependent child. Reunification services were ordered for the parents, including drug rehabilitation with random testing, parenting classes, and monitored visits. Kaitlyn remained placed with her maternal grandmother.

In March 2005, DCFS filed a section 300 petition on behalf of newborn Kameren, based upon the parents’ history of drug abuse and the fact that at the time of her birth, Kameren and mother had positive toxicology screens for cocaine. The petition also alleged abuse of Kameren’s sibling, Kaitlyn. Kameren was detained with Kaitlyn in the home of their maternal grandmother.

The six-month review hearing for Kaitlyn, and the adjudication hearing for Kameren, were scheduled for May 10, 2005. The social worker’s report for that hearing indicated that mother had attempted to comply with the reunification plan and had sought treatment for her drug addiction, but had relapsed on cocaine. Father stated he had completed an in-patient program, was residing in a sober living facility, and was working four days a week. But mother reported to the social worker that father had relapsed. DCFS had planned to recommend continued reunification services based on the parents’ participation in drug treatment. Instead it recommended termination of services as to Kaitlyn, no services as to Kameren and permanency planning for both children because mother had left her program and had not been in contact with DCFS or with the maternal grandmother, and father’s location was unknown and he had not been in contact with DCFS.

At the June 22, 2005 hearing, the parents submitted the issue of dependency jurisdiction for Kameren on the amended petition. After a contested hearing, the court terminated reunification services for Kaitlyn, declared Kameren a dependent child, and ordered no reunification services as to her under section 361.5, subdivision (b)(10) and (13). The court set a section 366.26 hearing for selection of a permanent plan for the children. Father challenges these orders by petition for writ of mandate.

DISCUSSION

I

Father claims there was insufficient evidence to support the court’s finding that reasonable reunification services were provided to him. If, at a review hearing pursuant to section 366.21, subdivision (e), the court concludes that reasonable reunification services have not been provided to a parent, “the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e).) “The adequacy of reunification plans and the reasonableness of the DCFS’s efforts are judged according to the circumstances of each case. [Citation.] The DCFS is required to make a good faith effort to develop and implement a family reunification plan. [Citation.]” (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554.)

Viewing the record in the light most favorable to the court’s finding (In re Heather A. (1996) 52 Cal.App.4th 183, 193), we find substantial evidence to support the court’s conclusion that reasonable reunification services were provided to father. According to the detention report, at the time of the initial child abuse referral based on positive drug toxicology in early December 2003, father was not involved with mother. Mother entered into a voluntary family maintenance agreement on February 3, 2004. On March 2, 2004, a child abuse referral was received alleging that mother and father were using drugs while caring for three-month-old Kaitlyn. Mother tested positive for cocaine and marijuana. Father refused at that time to participate in random drug testing.

Mother entered a 30-day inpatient drug treatment program in March 2004, but left it after one week and moved in with father. The social worker met with both parents on a monthly basis and provided them with bus tokens to attend random drug testing and a drug treatment program. On April 29, 2004, the social worker again provided referrals for treatment programs and parenting education classes.

The social worker scheduled mother for an intake appointment on May 27, 2004, for a drug treatment program. On May 26, 2004, father told the social worker he also would attend the intake and enroll in the program. Neither parent showed up for the intake or enrolled in the program. Father told the social worker that he would not participate in random drug testing at that time because he was afraid he would test positive. From this, we conclude that during the period of voluntary family maintenance, the social worker met with mother and father and provided referrals for drug treatment and testing and bus tokens. Father chose not to utilize these services.

Kaitlyn was detained on September 15, 2004. The social worker’s report for the October 6 hearing indicated that father was arrested on October 1 for drug possession. The report noted father’s refusal to accept voluntary services to resolve his drug problem.

In the report for the November 9, 2004 hearing, the social worker stated she had interviewed father in jail. Father acknowledged that he had a substance abuse history, and stated that he had no problem receiving DCFS services. The social worker informed father of the November 9 court hearing. He told her he would be released on October 18, and gave her an address and telephone number where he could be reached. The social worker called father at that number on October 26, and discovered that the telephone number had been disconnected. Father told the social worker to call the maternal grandmother if she could not reach him. The worker called the grandmother, who had heard father was out of jail, but had no idea where he was.

Father did not appear at the November 9 jurisdictional hearing, at which the court sustained the petition and declared Kaitlyn a dependent child. Father was granted reunification services, and ordered to participate in parenting classes, drug counseling, and random drug testing. He was given monitored visitation. Father’s appointed counsel was ordered to provide father with a copy of the case plan, and to inform him that he had only six months to reunify with his daughter.

Mother gave birth to Kameren on March 20, 2005, with a positive toxicology screen. The detention report, dated March 24, indicated that father was currently homeless, and his whereabouts were unknown. Mother told the social worker that father “is homeless due to being ‘kicked out’ of his sober living facility due to relapsing and using drugs.” Kameren was detained on March 24, and the adjudication hearing was set for May 10, 2005.

The May 10, 2005 reports for Kameren’s adjudication hearing and Kaitlyn’s six-month review hearing indicated that the children’s social worker, Carole Douglas, had spoken with father on March 15, 2005. “Father reported at that time that he had completed a substance abuse treatment program and was residing in a sober living home. Father did not provide DCFS with any verification or means of verifying his completion of said substance abuse program.” He gave the social worker the name and telephone number of his counselor at the facility, Gateway Sober Living Facility. Father told her he had completed an in-patient program and was working Monday through Thursday. Mother, however, had informed the social worker that father had relapsed, and in her efforts to try to find father, mother then relapsed. The social worker had no contact with father after March 15, 2005. Father had not contacted DCFS to make his whereabouts known, nor had he called to inquire about the children’s well being or to request visitation.

Father had complained to the social worker that the maternal grandmother had prevented him from visiting with Kaitlyn. The social worker advised father she would check the court orders and make visitation arrangements. Father did not contact the social worker or the maternal grandmother to arrange visitation. His whereabouts were unknown.

Father and mother appeared at the May 10, 2005 hearing. They both were referred for drug testing. The June 21, 2005 report included positive test results for mother. There were no results for father. Apparently there had been a problem with father’s referral on May 10 for on-demand testing. Father did not notify DCFS about his inability to test that day, and he failed to test on May 13 and May 24. The social worker attempted to contact mother and father at the address they provided on May 10, but it appeared to be vacant. She left a business card with a message to call. The social worker also attempted to contact the parents at the telephone number they provided. She reached the children’s paternal aunt, who reported that father was residing in a sober living home. The social worker attempted to make contact with father at that location, but he was not present at the time. She left a business card with instructions that father contact DCFS as soon as possible.

Consistent with these reports, social worker Douglas testified at the June 22, 2005 adjudication and review hearing that on March 15, 2005, when she arrived at the grandmother’s house for a meeting with mother, father was present. He indicated he was in a drug treatment program, and that he had completed a program. Father provided her with a telephone number and told her that he worked from Monday through Thursday. Ms. Douglas gave father her business card, and they planned to meet in her office on Friday to discuss his completion of reunification services and make arrangements for visitation. Father did not come to her office. Ms. Douglas attempted to call him. She reached a message service, but received no return call. Father’s telephone number had been disconnected.

This evidence demonstrates that DCFS provided father with the opportunity to participate in reunification services, beginning during the period of voluntary family maintenance and continuing after the court asserted jurisdiction over Kaitlyn. Father initially refused to participate in drug treatment and testing programs. He later stated he would enroll, but failed to do so. He repeatedly failed to remain in contact with DCFS, rendering it impossible for DCFS to assist him in obtaining services, despite the willingness of the social workers to do so. The lack of contact was not the fault of DCFS, and father’s failure to comply with the reunification plan was not the fault of DCFS either. Apparently he was able to obtain services, since he claims to have enrolled in drug programs and in sober living programs. Unfortunately, he did not succeed in the programs. That fact does not show inadequacy of reunification services, it shows repeated lack of compliance with the reunification plan. This record supports the court’s conclusion that reasonable reunification services were provided.

II

Father makes the related claim that the court erred in denying him reunification services with Kameren. The denial of services was based on section 361.5, subdivision (b)(10). Under that section, reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, that the court ordered termination of reunification services for any of the child’s siblings because the parent failed to reunify with the sibling and the parent has not subsequently made a reasonably effort to treat the problems that led to the removal of that sibling.

We have concluded that the court properly found sufficient reasonable reunification services were provided to father as to Kaitlyn, and that the services were properly terminated. Given the fact that the termination of services as to Kaitlyn was followed immediately by consideration of whether services should be provided as to Kameren, father could not demonstrate that he “subsequently made a reasonable effort to treat the problems” which led to Kaitlyn’s removal. (§ 361.5, subd. (b)(10); see In re Harmony B. (2005) 125 Cal.App.4th 831, 842-843 [when the two proceedings occur in immediate proximity, the required finding under the “‘no-reasonable efforts’” clause is a formality because the parent’s circumstances necessarily will not have changed].) That brings the case squarely within section 361.5, subdivision (10).

The court also relied on section 361.5, subdivision (b)(13), which allows denial of reunification services to a parent who “has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”

Although father claimed to have completed one drug program, he presented no evidence to support that claim. He told DCFS that he was residing in a sober living facility, but the social worker was informed that he relapsed and was forced to leave the facility. He refused to submit to random drug testing on all but one occasion. On that one occasion, there was an error in the referral and he could not be tested. He did not report the problem, nor did he test on subsequent dates. This is sufficient evidence to support denial of services under section 361.5, subdivision (b)(13).

We find no abuse of discretion in the court’s denial of reunification services as to Kameren.

DISPOSITION

The writ is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P.J.

We concur:

HASTINGS, J.

CURRY, J.

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^[1] All statutory references are to this code.