Opinion
Christopher D. seeks writ review of a juvenile court order terminating reunification services as to his minor daughter, Sadie D., and setting a hearing under Welfare and Institutions Code section 366.26.
FACTUAL
Christopher D. and Jade H.,
The San Diego County Health and Human Services Agency (Agency) filed a juvenile dependency petition under section 300 alleging Sadie suffered, or there was a substantial risk she would suffer, serious physical harm or illness due to the parents’ illegal substance abuse and that she had been left without any provision for support due to the parents’ incarceration (§ 300, subds. (b), (g)).
In the September 8, 2011 jurisdiction and disposition report, the social worker reported the Agency had detained Sadie with her paternal grandparents, and that Christopher remained incarcerated. The social worker recommended that the court continue Sadie’s placement and order Christopher to participate in reunification services, including individual therapy, parenting education and substance abuse services following an assessment. Christopher’s case plan provided for weekly in-person supervised visits with Sadie, facilitated by the social worker when appropriate, beginning September 8, 2011.
On October 14, 2011, the court held the contested jurisdiction and disposition hearing at which it made true findings on both counts of the petition. The court ordered Sadie’s continued placement with her paternal grandparents. It found Christopher’s case plan appropriate; ordered the Agency to provide Christopher with the case plan services; and ordered Christopher to comply with the plan. The Agency was given the discretion to lift the requirement for supervision of Christopher’s visitation upon his release from custody, to expand visits to overnight, and to begin a 60-day extended trial visit with the concurrence of Sadie’s counsel. All previous orders not in conflict, including those pertaining to visitation, remained in effect.
Christopher was incarcerated from August 17 until December 12, 2011. During this time Christopher had no visitation, in-person or otherwise, with Sadie. The prison telephone account authorized for Christopher was established in mid-October 2011, but the account was not operating efficiently. Christopher informed the social worker of the problems with his telephone account, and she tried to remedy the problem. Ultimately Christopher was able to use the prison telephone account, as evidenced by his collect calls from the prison to the social worker.
Christopher was released from custody on December 12 and immediately entered a residential drug treatment program sponsored by Community
Christopher left Crash on March 9, 2012, two days before he was due to complete the program. After leaving the program, Christopher called Sadie’s caregivers and was able to secure an additional visit with his daughter. Jade reported to the social worker that the first thing Christopher did after leaving the program was to get a hotel room and party for three days. Within approximately a week Christopher was rearrested and held on new drug charges.
On June 11, 2012, Christopher was released from custody. He called the social worker and stated he wanted to fight for his daughter and wanted more services. Christopher was living in a sober living house and participating in criminal drug court. The social worker believed he was motivated and doing well.
On June 14, 2012, the court held a contested six-month review hearing, the focus of which was whether Christopher had received reasonable services, specifically visitation services. Without objection, the court admitted into evidence the social worker’s April 12, 2012 status report and the addendum report prepared for the hearing. In the April report the social worker stated:
“Currently the parents are not visiting the minor. The father is incarcerated and the mother’s whereabouts are unknown. . . .
“The father got a slow start on visits due to the fact that he was in San Diego at Crash. He was able to have a couple of visits when he was at Crash and one after he left Crash. We had agreed that when he was finished with his program and moved to North County, I would arrange for the father to visit at least three times per week. The father was arrested before that was put in place. The father’s visits with Sadie were appropriate and Sadie is always very excited to see her father.” The social worker opined that Christopher, who had a long-term substance abuse problem, was making good progress but became overly concerned for Jade, and he left his program two days early. According to the report, Christopher “has issues with self esteem and
By June, the social worker had changed her recommendation. She now recommended that Christopher’s services be terminated and that a section 366.26 hearing be set. In her addendum report the social worker stated that while she had initially recommended Christopher receive another six months of reunification services, she had assumed Christopher was going to be quickly released from jail, get into another program and get back on track. However, when that did not happen, she had to reevaluate her recommendation. “When the father walked out of his treatment program with only two days left to complete, I felt that I could work with him if he was able to get into another program quickly. Unfortunately father relapsed and this led to new drug charges. It is this impulsive behavior that is of significant concern. He was doing so well and in a matter of a week or two he was back in jail.”
The social worker also noted Sadie’s need for stability:
“The inconsistent contact between the parents and Sadie has been difficult for her. . . . The father has not maintained any regular phone contact with Sadie during his eight months of incarceration. Sadie is excited to see father when he has had visits but her behavior indicates that she feels much safer with the caregivers. Sadie has had problems with fear and anxiety since she came into custody and the caregiver reports that she is finally getting over some of those behaviors but will periodically regress.
“In my opinion, it is crucial that Sadie have a stable permanent home right now. . . . The caregiver has really been the only consistent person in her life and she has grown to depend on her and is very bonded.”
The social worker testified at the hearing and was extensively questioned about Christopher’s visitation with Sadie. She acknowledged it was difficult to schedule visits between Sadie and Christopher while he was in custody and that she did not know whether he qualified for contact visits in prison because she never received a telephone call from the jail counselor. Christopher was able to have in-person visits with Sadie facilitated by the caregivers. However, there was conflict between the caregivers and Christopher. The social worker did not believe it was a good idea to put Sadie in a visitation situation in which Christopher and the caregivers were not even on speaking terms. To comply with the court’s visitation orders while Christopher was in custody,
The social worker believed in-person visitation between Christopher and Sadie could be more meaningful outside of jail, given that Christopher only had a “few days left” to serve. The social worker testified that she had learned from Sadie’s caregivers that Sadie had fears and anxiety to the point where Sadie would “freak out” if she did not physically see her caregiver. The social worker stated she did not believe it would be a “quality experience” for Sadie to visit with Christopher while he was incarcerated. She conveyed that sentiment to Christopher, who did not disagree with her.
When Christopher was in the Crash program, the social worker supervised one of his two visits, and an Agency intern supervised the other. While Christopher frequently asked for more visits with Sadie, the social worker testified, “Wednesdays [were] really the only visitation day I could do it or she [(an Agency intern)] could do it, but not every Wednesday. . . . [I]t was just very difficult with the caseload during that short period of time because of the drive and the transportation from North County down to San Diego.” While in the Crash program Christopher had the ability to make telephone calls to Sadie’s caregivers to inquire as to her well-being, but he was not consistent in doing so. The social worker agreed that calls to Sadie, who was only two years old and not fully verbal, would not have been meaningful. After Christopher left the Crash program, he had one additional visit with Sadie, which was supervised by the relative caregivers.
In total, from August 2011 until the June 2012 review hearing, Christopher had four visits with his daughter. In those visits, Christopher was appropriate toward Sadie. She was excited to see Christopher ánd looked forward to then-visits.
After considering the reports in evidence, the testimony of the social worker and hearing argument of counsel, the court found by clear and convincing evidence that reasonable services had been provided to the parents, but neither parent had made significant progress with the case plan.
The court further stated it had “looked very carefully at the services that have been provided to the father.” According to the court, Christopher would have benefited from counseling, but “[b]eing incarcerated for a great period of time makes it very difficult not only to establish the counseling, but to permit there to be a sufficient continuity that the father has traction in
Commenting on Christopher’s visitation services, the court noted he had been incarcerated for the majority of time since disposition. However, he “maintained frequent contact with the social worker. He expressed concern about Sadie, at least insofar as trying to get phone calls established, so that they could go on a regular basis.” The court found the Agency had set up a telephone account for Christopher, and when Christopher encountered problems using the telephone, the Agency was appropriate in troubleshooting the problem. The court also found Sadie had anxiety and fear issues, and that the social worker believed visitation with Christopher in the prison environment would not be in the best interests of Sadie: “To adults that setting is a fearful environment. It’s loud. The aromas and odors are far different experiences. The setting is rather energized because of the nature of that communal setting.” Christopher was “ever hopeful” that he was going to soon be released and communicated that to the social worker, who “held off in setting up the visits in order to give the father a chance to be free of incarceration and have the visits in a much more tranquil setting.” When Christopher was released from jail, at least one of his visits occurred at a park, and the court presumed the others occurred in a tranquil environment as well. The court then stated, “The father went into the Crash program, and father stayed there for a majority of the time, and it’s unfortunate that father left the program early.”
In deciding to terminate services and set the section 366.26 hearing, the court stated that as to Christopher “it is a really difficult balancing. On the one hand, the positive is he has a relationship with his daughter Sadie. The other factor that must be balanced is the father’s unresolved relationship dynamic issues with the mother[, which] need[] to be addressed in therapy. The father does need to address his own personal issues, not only to support his recovery but to put him in a position to better recognize the red flags with respect to relapsing.” The court decided that while the balancing was difficult, Christopher would need far more than the remaining four months until the next review hearing to address those issues. Consequently, it ordered that reunification services be terminated and that a selection and implementation hearing be held under section 366.26. However, while terminating reunification services, the court continued its current visitation orders.
DISCUSSION
Christopher challenges the juvenile court’s findings and orders made at the six-month review hearing. He contends the court erred in finding the
A.
“Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement ‘the law’s strong preference for maintaining the family relationships if at all possible.’ ” (In re Elizabeth R. (1995)
With respect to incarcerated parents, section 361.5, subdivision (e)(1) provides reunification services must be provided unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor. That section reflects a public policy favoring the development of a family reunification plan even where a parent is incarcerated. (In re Terry E. (1986)
Where a child is removed from a parent’s custody in a dependency proceeding and reunification services are ordered, the general rule, stated in California Rules of Court, rule 5.695(h)(5), is that “the court must order visitation between the child and the parent or guardian for whom services are ordered. Visits are to be as frequent as possible, consistent with the well-being of the child.”
B.
“In reviewing the reasonableness of the services provided,” including visitation, “this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (In re Misako R. (1991)
C.
In this case the juvenile court did not find that the provision of reunification services would be detrimental to Sadie, and it ordered the Agency to provide Christopher with such services. (§361.5, subd. (e)(1).) As relevant here, the court ordered that the Agency provide liberal supervised visitation between Christopher and Sadie upon Christopher’s release from custody and gave the Agency the discretion to lift the supervision requirement and increase postcustody visits, with notice to Sadie’s counsel. The court order provided that “father may have contact visits with the child while incarcerated,” but that such visitation was authorized “only in accordance with rules of the facilities and only as long as not detrimental to minor.” (Capitalization omitted.)
We agree that the social worker demonstrated lackluster effort in implementing the court-ordered visits with Christopher while he was in custody: the social worker said arranging visits in jail was difficult (Elizabeth R., supra,
Nevertheless, we must affirm the juvenile court’s finding that reasonable visitation services were provided to Christopher while he was incarcerated. The court’s visitation order authorized visits between Christopher and Sadie while he was in custody, but only if such visitation was not detrimental to Sadie. The court implicitly found that visitation with Christopher while he was in custody was detrimental to Sadie and that visitation was not authorized under such circumstances. When Christopher was first incarcerated, Sadie was not only of tender years but also was not fully verbal. From the outset of her dependency, Sadie exhibited substantial fears and anxieties.
Christopher’s reliance on Brittany S., supra,
We also reject Christopher’s corollary argument that by allowing the Agency to eliminate visits with Sadie while he was incarcerated, the court improperly delegated its decision as to whether to allow visits. It is the juvenile court’s responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. (In re Moriah T. (1994)
Given the above, we reject Christopher’s contention that he was not provided reasonable visitation services while incarcerated. However, as we discuss hereafter, we agree with Christopher’s second contention: the Agency did not make a good faith effort to provide Christopher with reasonable visitation during his confinement in the Crash residential drug treatment program.
D.
Christopher contends substantial evidence does not support the juvenile court’s finding that he was provided with reasonable visitation during the three-month period that he was confined in residential drug treatment, and that the Agency failed to make a good faith effort to implement his court-ordered visitation. Specifically, he submits that even when he was out of custody, arranging visitation pursuant to the court’s order “proved too difficult for the social worker.” He asserts that his confinement in the residential treatment program was from December 12, 2011, until March 9, 2012—a period of about three months. Despite the fact he was ordered to have weekly supervised visits with Sadie, and repeatedly and frequently asked the social worker for additional visitation, he only had two visits with Sadie. The social worker explained the reason for this limited visitation:
“Wednesdays [were] really the only visitation day I could do it or [the Agency intern] could do it, but not every Wednesday. ... I had another one scheduled. I think that I had to reschedule for conflicting schedules.
“So I think it just got—you know, it was just very difficult with the caseload during that short period of time because of the drive and the transportation from North County down to San Diego.” The social worker promised Christopher that when he was finished with the Crash program andmoved to North County, she would arrange for him to visit with Sadie at least three times per week.
The Agency’s efforts to provide Christopher with reasonable visitation while he was in the Crash program were totally inadequate. (Ronell A., supra,
What is even more egregious is that the social worker discounted the visitation deficiency, saying it was only for a “short period of time.” It was neither a short nor insignificant period in this young child’s life or in her dependency. Sadie was under age three, and the reunification period was short. (§ 361.5, subd. (a)(2).) Because reunification efforts could be terminated after six months, the lack of a substantial opportunity for visitation during Christopher’s three-month confinement in residential drug treatment was extremely adverse. In fact, the social worker had advised Christopher when he entered the Crash program that it was “crucial that he engage in services fully” in order to make enough progress to warrant additional services at the six-month hearing. (Italics added.) Yet, she substantially failed to provide visitation services, or therapy, during this critical period. On this record there is no clear and convincing evidence Christopher was provided with reasonable services (§ 361.5), and the court’s referral order constitutes a manifest abuse of discretion.
The Agency contends that if the juvenile court committed error, it was harmless because Christopher has already received the remedy he seeks—
First, before the court may order a section 366.26 selection and implementation hearing, the Agency must prove that it provided or offered reasonable reunification services. If it fails to carry that burden, the court may not set a section 366.26 hearing and the focus of the dependency remains family reunification. However, if we conclude the Agency’s failure to provide reasonable visitation services is harmless because the court ordered continued visitation after termination of reunification services, the focus of the dependency will remain on permanency planning. Services will no longer be provided to Christopher. Additionally, Christopher will bear the significant burden of proving that the posttermination visitation has either (1) caused a change of circumstances warranting modification of the court’s order setting a selection and implementation hearing (§ 388; In re Michael B. (1992)
Second, a grant of writ relief will reinstate all of Christopher’s reunification services; deeming the error harmless because the court ordered continued visitation after termination of reunification services will not. In this case, reinstatement of reunification services is important because Christopher will receive visitation with Sadie and have an opportunity to repair the erosion of his relationship with her. Also, importantly, he will receive the therapy which the social worker said he needed, but had not yet been provided, to address his issues of self-esteem and codependency that are triggers for relapse.
We thus fail to see how the court’s order for continued visitation after termination of reunification services renders the error harmless. Accordingly, we grant the petition.
Let a peremptory writ of mandate issue directing the juvenile court to vacate its order for a section 366.26 hearing. On remand, the juvenile court shall enter a new and different order, resuming the six-month status of the case and providing Christopher reunification services comporting with his reunification plan and this decision. The requested stay is denied.
McConnell, P. J., and Nares, J., concurred.
Notes
All statutory references are to the Welfare and Institutions Code.
As Christopher’s sole complaint relates to the reasonableness of visitation services, we limit our discussion to the facts relevant to the provision of that service.
Jade is not a party to this writ.
Crash, Inc., is a 24-hour residential therapeutic community for the treatment of drug/alcohol abuse.