In Re Monica C.
NEWSOM, J.
This appeal from an order terminating parental rights of a prison inmate presents a troubling record of intervention by the Department of Social Services of Humboldt County (hereafter DSS).
The minor, Monica C., is the sixth child of Pamela C. (appellant), who has an extensive criminal record dating from her addiction to heroin in the late 1970‘s and a history of losing custody of previous children. According to a DSS report, her first marriage produced three children who “were passed around to different relatives’ homes.” The two children of a second marriage are now in the guardianship of their paternal grandparents.
The involvement of the DSS in the case appears to date from a petition filed by Betty Martin for guardianship over the child. In a home evaluation, the DSS found that the Martins did not have the physical abilities to be “appropriate long-term guardians for Monica” and recommended denial of the petition. The report stated that the DSS would file a dependency petition should the guardianship be denied. Although the record is incomplete, it appears that the court followed the DSS‘s recommendation to deny the guardianship.
On February 25, 1992, the DSS filed a juvenile dependency petition alleging a failure to protect the child under
Following the hearing, the juvenile court upheld the allegation under
Pursuant to
At the time of the dispositional hearing, appellant was pursuing an application to gain admission to a mother/infant program of the department of corrections that would allow her to care for the child while in prison. The state program, operated in seven small facilities, provided beds for a total of only ninety-four inmates throughout the entire prison system. Accordingly, admission was subject to rigorous screening standards. In a decision dated September 10, 1992, the Department of Corrections definitively denied appellant‘s admission into the program.
At the six-month review hearing on December 29, 1992, the DSS submitted professional evaluations by Bettye S. Elmore, Ph.D., and Carmela Wenger, MFCC, recommending long-term placement in a foster home with a likelihood of adoption. Without interviewing appellant herself, both professionals drew their knowledge of her case entirely from personal history appearing in DSS files. At the conclusion of the hearing the court found, pursuant to
The modified agreement required appellant to send the DSS by January 8, 1993, “a list of available services” at her prison that would allow her caseworker “to focus on the problems that led to [her] incarceration[] and removal of [her] child. These services may include (but [are] not necessarily limited to): Parenting classes, substance abuse counseling (with aftercare
On January 4, 1993, the DSS filed a supplemental petition under
The 12-month review report indicated that the minor suffered from serious behavior problems and delayed development, but a prospective “fost/adopt home” for the child had nevertheless been located out of the county. It recommended termination of reunification services and a hearing for permanent placement of the child pursuant to
At a contested 12-month review hearing on June 16 and 17, 1993, appellant testified to her efforts to comply with the reunification plan. She wrote the child weekly through December 1992, enclosing pictures with her letters. She also made frequent collect calls for a while “but it was real hard to get them to take [her] calls.” She checked out books on parenting from the prison library and attended 10 Alcoholics Anonymous meetings, although the meetings were later cancelled because of “a lot of disruption....” The prison did not offer parenting classes, and it gave substance abuse classes only to prisoners nearing their release date.
Although the reunification plan did not provide for personal visitation, the maternal grandmother, Wanda Faust, brought the child about twice a week to visit appellant through a glass barrier at the county jail during the period she was confined there. In state prison, appellant got a court order compelling the DSS to pay transportation costs for the child to make three “family visits” in August and October 1992, and March 1993. The visits took place in a kind of “bedroom apartment” in the prison and each lasted two days. The prison authorities also permitted “all day visits, Saturdays and Sundays.” As Pamela explained, “they have a big visiting room and they have like a patio outside... and toys and stuff for kids.” The DSS caseworker, Bob Settles, never assisted her in arranging prison visits with the child.
Appellant admitted that she did not send her caseworker the list of prison services by the deadline of January 8, 1993, imposed by the modified reunification plan services agreement. She explained she did not receive “the papers” until sometime in January, and since they were “dated in November
When appellant learned of the court‘s finding that she could not arrange for the child‘s care, she gave the DSS the names of two alternative caretakers: her sister, Juanita Hendricks, and a friend, Donna Craddock. The DSS did not investigate either person. Testifying at the hearing, Craddock said she inquired about the possibility of becoming the child‘s guardian, but the DSS told her that she had “no chance” of being appointed a guardian unless she was willing to adopt the child before appellant got out of prison. She would not take the child on these terms because she “didn‘t want to break off the relationship” between mother and child.
Testimony in earlier hearings indicated that the DSS did not actively investigate the possibility of providing Betty Martin with assistance that would enable her to better care for the child. Martin testified that her DSS caseworker never discussed such assistance and did not offer any services or direct her to professional counseling or evaluation. However, on the insistence of the court, the DSS did make foster care payments and gave its approval to periodic respite care with the maternal grandmother, Wanda Faust. The child also attended preschool but the record is not clear as to the role, if any, that the DSS played in arranging for this activity.
The DSS caseworker assigned to the case, Bob Settles, testified that he had never spoken face-to-face with appellant or met her except “just to say `hello’ in this courtroom.” He made no effort to contact her while she was in local jail for a period of time in the fall of 1992. As early as April 1992, he told her that he would seek a permanent placement for the child unless she succeeded in getting into the mother/infant program. By July 1992, he had come to believe that reunification services were detrimental to the child. For her part, appellant “attempted several times” to call Settles but only reached him twice. He talked to her as if “his mind was made up.”
When asked what reunification services the DSS provided to appellant, Settles mentioned only two services: under compulsion of a court order, he had arranged for the payment of the child‘s transportation costs for prison visits and he “was trying to establish what services were available” to appellant in prison. In other testimony, he acknowledged that he actually had personal access to this information through communications with her prison caseworker and other prison officials. As early as May 19, 1992 — the date
The 12-month review report of the DSS mentioned an additional reunification service provided to appellant: the DSS paid for collect phone calls to the child from prison. The reunification plan services agreement dated May 5, 1992, also states that the DSS gave appellant the telephone number and address of her great aunt, Betty Martin.
Following the 12-month review hearing, the juvenile court made a series of findings required by
In a report prepared for the section 366.26 hearing, the DSS stated that the minor “is currently placed in a fost-adopt home. She is doing well in this placement.” Despite behavioral problems and delays in intellectual development, she was “assessed by State Adoptions and determined to be an adoptable child.” After receiving the report in evidence and hearing the arguments of counsel, the juvenile court found “[b]y clear and convincing evidence, it is likely the child will be adopted.” On this finding, the court terminated appellant‘s parental rights and ordered that the child be placed for adoption.
In appealing from the order terminating her parental rights, appellant does not challenge the finding that the child was adoptable but rather attacks the order indirectly on the ground that the record does not support the finding at the 12-month review hearing that she was provided reasonable reunification services.
Two subdivisions of section 366.21 are relevant. Subdivision (f), provides that, in determining whether return of custody to the parent “would create a
The broader statutory context establishes certain parameters for our consideration of the reasonableness of reunification services. In particular, we note that the Legislature has set an outer limit of 12 months, or under some circumstances 18 months, “for the court to determine whether the child is to be returned to the parents or permanently placed elsewhere.” (In re Dino E. (1992) 6 Cal. App.4th 1768, 1776 [8 Cal. Rptr.2d 416].) The court must conduct a review hearing six months after the initial dispositional hearing. (
The parallel provisions of section 361.5, subdivision (a), limit reunification services to “`a maximum time period not to exceed 12 months‘, which under certain circumstances may be extended to 18 months.” (In re Zacharia D., (1993) 6 Cal.4th 435, 446 [24 Cal. Rptr.2d 751, 862 P.2d 751], fn. deleted.) Services may be extended for this additional six-month period “if it can be shown that the objectives of the service plan can be achieved within the extended time period.” (
(1) Two statutes dealing with incarcerated parents — section 300, subdivision (g), and section 361.5, subdivision (e) — are engrafted onto this statutory scheme.
In In re Aaron S., supra, 228 Cal. App.3d 202, the court removed the minor from the custody of his mother, who was charged with abuse under
As construed in In re Aaron S., supra, 228 Cal. App.3d 202,
Where the juvenile court orders reunification services for an incarcerated parent,
(2a) We turn now to the issue on appeal: the reasonableness of the reunification services. “In reviewing the reasonableness of the services provided, 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) 2 Cal. App.4th 538, 545 [3 Cal. Rptr.2d 217].) The DSS argues that, despite the lack of personal contact with appellant, it complied with
The failure of the reunification plan to provide for visitation between the child and appellant represents a grave shortcoming that was only partially remedied by appellant‘s own efforts and the court order for payment of transportation costs. Where a child is removed from a parent‘s custody in a dependency proceedings, the general rule, stated in
The absence of visitation will not only prejudice a parent‘s interests at a
Alluding to the minimal reunification services, the DSS suggests that the reunification plan was intended merely to allow appellant to apply for the mother/infant program of the Department of Corrections. The court has no statutory authority, however, to approve a reunification plan for the limited purpose of awaiting the outcome of an application to this very selective program. As stated in In re Brittany S., supra, 17 Cal. App.4th at page 1406, when the minor “was declared a dependent under
The DSS, moreover, acted unreasonably in delegating to appellant the responsibility of sending her case worker a list of available services in prison.
(3) The DSS objects that visitation could serve no good purpose. Since appellant was sentenced to a term of more than 18 months, the child could not be returned to her. The objection raises an issue requiring some extended consideration.
In In re Brittany S., supra, 17 Cal. App.4th at page 1402, the court commented, “[w]hile `use a gun, go to prison’ may well be an appropriate legal maxim, `go to prison, lose your child’ is not.” By this reasoning, it might seem to follow that the mother of a dependent child should not lose the child because she is sentenced to a term of more than 18 months and fails to qualify for a selective mother/infant program. But sections 366.21 and 366.26 in fact allow only limited avenues for avoiding this result.
Appellant sought to pursue one of these avenues by nominating her friend Donna Craddock as the child‘s guardian. (See
Another potential avenue for an incarcerated mother to preserve ties with a dependent child consists of placement with a relative, such as appellant‘s great-aunt, Betty Martin. The practical importance of this option is recognized by
Relative placements, however, are ordinarily temporary arrangements, leading to appointment of the relative as a guardian or other permanent disposition. (See
The practical importance of guardianship and relative placement leads to the question whether the duty of the DSS to provide reunification services entailed an obligation to consider the merits of these alternatives. In its briefs, the DSS views the goal of reunification as being restricted to actual physical custody. We consider, however, that it encompasses the larger purpose of exploring ways of protecting the “parents’ interest in the companionship, care, custody and management of his children....” (In re Marilyn H., supra, 5 Cal.4th 295, 306; In re Zacharia D., supra, 6 Cal.4th at p. 446.)
The purpose of dependency proceedings, and in particular of reunification services, is to “safeguard parent‘s rights to raise their own children whenever this can be done without prejudice to the welfare of the child.” (In re Aaron S., supra, 228 Cal. App.3d at p. 211; see also Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253.) It would undermine this purpose to make reunification services an all or nothing proposition, calling for return to physical custody or adoption by an unrelated party. These extreme solutions, it is true, may well represent the best options for a small child needing a secure attachment to a parent figure. But if reunification services are to serve the statutory purpose of safeguarding parental interests, they should also consider the possible merit of intermediate solutions which preserve some contact between parent and child.
(2b) In the case at bar, we think the DSS acted inconsistently with respect to its obligations to provide reunification services by refusing to give consideration to a prospective guardian, Donna Craddock, nominated by appellant. Although the record reveals nothing about Craddock‘s actual qualifications, it discloses that the DSS recognized no obligation to investigate or evaluate objectively her offer to serve as a guardian. She was instead rebuffed with inaccurate information regarding the necessity of adoption.
But in view of the earlier denial of Betty Martin‘s petition for guardianship, we do not find that the DSS was obliged to consider transforming this relative placement into a guardianship.2 We have no disagreement in principle with appellant‘s argument on this point. Reunification services ordinarily should consider ways of assisting a relative caring for the dependent child of an incarcerated parent so that the placement can be continued for the longer term. Acting contrary to this established pattern, the agency in fact gave little consideration to the possibility of improving the quality of care in Martin‘s home. Nevertheless, we think the DSS‘s actions were justified by the judicial order denying Betty Martin‘s petition for guardianship. The agency was not obliged to consider ways of establishing the arrangement as a long-term placement that would presumably call for filing a petition similar to that which had recently been denied.
We hold that the trial court erred in finding, pursuant to
The judgment terminating parental rights is reversed. The trial court is ordered to direct DSS to develop a reunification plan consistent with the views expressed in this opinion.
Strankman, P.J., and Dossee, J., concurred.