In re S.A. CA4/1 ( 2021 )

Filed 5/18/21 In re S.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re S.A. et al., Persons Coming
Under the Juvenile Court Law.
D078500
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. Nos. J520221A-C)
Plaintiff and Respondent,
v.
J.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and
Respondent.
In this juvenile dependency proceeding involving his three children,
J.A. (Father) appeals an order made at his six-month review hearing
pursuant to Welfare and Institutions Code section 366.21, subdivision (e).1
At that hearing, the court found, inter alia, that the reunification services
provided to Father were reasonable. He contends that the San Diego County
Health and Human Services Agency (Agency) unreasonably relied on
ineffective referrals for services to an agency in Mexico, where he was
residing, and failed to facilitate in-person visits with his daughters based on
unreasonable concerns about the risks posed by the COVID-19 pandemic. We
conclude that the juvenile court did not err in making its ruling and therefore
affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In December 2019, the Agency petitioned the juvenile court under
section 300, subdivision (b), on behalf of four-year-old S.A., two-year-old D.A.,
and one-month-old G.A. The Agency alleged that when G.A. was born, she
tested positive for amphetamine and methamphetamine. S.R. (Mother) also
tested positive at the time of birth and again weeks thereafter.3 Father
denied knowledge of Mother’s drug use, leading the Agency to allege that his
inability to identify whether Mother was using illegal substances undermined
1 All further statutory references are to the Welfare and Institutions
Code.
2 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal. App. 4th 1444, 1448, fn. 1.)
3 Mother has not appealed and the details of her involvement in the
proceedings post are not relevant to the issues raised on appeal. Accordingly,
this opinion does not discuss Mother unless relevant to the issues raised by
Father on appeal.
2
his ability to protect his children and placed them at substantial risk of
serious physical harm or illness.
In the detention report, the Agency explained that after G.A. was born,
she was placed in the neonatal intensive care unit due to her in utero
exposure to methamphetamine. Years earlier, Mother had tested positive for
methamphetamines while she was pregnant with S.A. The Agency also
learned that law enforcement suspected Father of selling controlled
substances while his daughters were in his care. Mother denied any history
of methamphetamine use, but subsequently tested positive on multiple
occasions.
Father allowed Mother near the children while she was under the
influence apparently due to his stated inability to determine whether Mother
was using methamphetamine. Based on Mother’s drug use, Father’s inability
to protect the children, and the concern that Father, who tested negative for
controlled substances, was selling methamphetamine, the Agency concluded
there was a substantial danger to the children’s health if they remained in
their parent’s care. The Agency recommended that the children be placed in
out-of-home care while their parents addressed their protective issues.
At the detention hearing in December 2019, the juvenile court found
the Agency had made a prima facie showing that the three children were
persons described by section 300, subdivision (b), and ordered them detained
in out-of-home care. The court gave the Agency discretion to place the girls
with Father with the concurrence of minors’ counsel. The court directed that
services be provided and allowed for supervised visits.
In its jurisdiction/disposition report, the Agency noted that Mother and
Father had both been arrested by United States Immigration and Customs
Enforcement due to allegedly being unauthorized immigrants. Father was
3
detained in federal custody. The Agency noted that Father did not have
access to services while in custody and his future status was unknown. In an
addendum report filed in February 2020, the Agency stated that Father was
still detained and all visits were prohibited due to “concerns with the flu.”
Based on the initial court closures associated with the COVID-19
pandemic, the jurisdiction/disposition hearing was continued to July 2020.
Before that hearing, Father was deported to Mexico and was living in
Tijuana. The Agency was able to contact Father, who reported that although
he was not able to reenter the United States, he had been having virtual
visits with S.A. and D.A. In late April 2020, the Agency took the initial steps
to initiate services for Father in Mexico. The Agency’s initial case plan for
Father included individual therapy and parenting education. The Agency
noted that the Mexican agency that assisted in providing services to parents,
known as “DIF,” had been closed since March 2020 due to the pandemic and
did not anticipate resuming services until late July 2020.4 Similarly, the
Mexican Consulate, which typically would arrange visits at the border, was
closed until late July 2020. The Agency reported that the border was closed
at that time to people attempting to cross for family visits.
At the jurisdiction and disposition hearing in July 2020, both parents
attended remotely but offered no affirmative evidence. At the hearing, the
Agency noted the difficulties in obtaining services for Father and
acknowledged he was “doing the best he can to stay engaged.” Noting the
many barriers to obtaining services, the Agency told the court that “to the
extent possible, the Agency will keep all of this on its radar and work with
DIF to ensure father can engage in services as soon as possible.” Father’s
4 “DIF” is an acronym for Desarrollo Integral de la Familia. (In re N.O.
(2019) 31 Cal. App. 5th 899, 903.)
4
counsel asked the court to allow unsupervised visits and to include
attendance at either “NarAnon or NA group” in lieu of individual therapy.
At the conclusion of the hearing, the court sustained the allegations of
the petition under section 300, subdivision (b). The court order supervised
visitation with Father but gave the Agency discretion to allow unsupervised
or overnight visits. The court asked “everybody [to] get creative about
whether or not there might be some online services that he could complete
that would mitigate the safety concern in this case” given the closure of many
service providers and Father’s inability to legally cross the border. The court
set a review hearing in six months.
In advance of the six-month review hearing, the Agency reported that
the children had been placed with their maternal grandmother and were
“happy, healthy and enjoy being surrounded by family.” Father was still in
Mexico but had not started any services. The Agency had provided Father
with a referral to DIF and a person to contact, but DIF had not been able to
provide any services to Father. Father expressed that he would like to
participate in services but was struggling to receive a response from DIF.
Father continued to have daily virtual visits with his daughters, but visits at
the border were still unavailable. Accordingly, the Agency’s status report
asked for more time to continue to provide reunification services. The Agency
recommended that Father’s reunification services continue for another six
months.
In an addendum report filed in January 2021, the Agency
acknowledged it was relying on DIF to provide services, but due to pandemic-
related delays, it had “started considering other options.” The Agency
determined it was possible for Father to attend virtual parenting classes and
requested a referral for Father. The Agency also referred Father to virtual
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“Nar Anon” meetings. By January 2021, Father had begun parenting classes.
The Agency was also attempting to obtain a home evaluation to allow visits,
but DIF informed the Agency that it had cancelled all home evaluations due
to the pandemic until late January. The Agency inquired about family
members who could take the girls to Mexico for a visit, but the available
family members expressed concern about COVID-19 exposure.
At the six-month review hearing, Father’s counsel asked the court to
find that the Agency failed to provide reasonable services. Counsel asserted
that the Agency relied too heavily on DIF to provide services despite the
evidence that DIF was closed due to the pandemic and was unable to provide
any services. She further asserted that the Agency unreasonably declined to
allow the children to travel to Mexico with relatives to visit Father in person.
In response, the Agency acknowledged the difficulties in obtaining services
and the delays caused by the pandemic, but maintained that the Agency had
been diligent and maintained contact with Father. Regarding visits, the
Agency asserted that its concern was centered on the risk to the children and
caregivers from COVID-19 exposure when traveling for visits.
The juvenile court found that reasonable services had been provided
“under the circumstances and facts of this case.” The court concluded that
the Agency does not fail to provide reasonable services when it “declines to
offer San Diego-based services via video to a parent residing outside the
United States.” The court noted that participation in services was not a
“huge priority” for Father because he acknowledged the children would likely
be returned to Mother because he could not return to the United States. The
court considered the “complications of the pandemic” to have interfered with
the Agency’s typical practice of relying on DIF to coordinate services with
parents in Mexico, but found that Agency did make the referrals and could
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not control DIF’s failure to act. Thus, the court concluded that even though
the Agency “dropped the ball” for two months by not finding a “creative
solution” to providing Father with individual therapy, the Agency
nevertheless made reasonable efforts to provide services “under the
circumstances.” Regarding visitation, the court concluded that while it
appreciated Father’s frustration, it did not find the Agency acted
unreasonably by not providing in-person visits given the risks posed by the
pandemic. The court also noted that the Agency indicated it would be
providing 18 months of services in this case given the difficulties in
connecting Father with services.
Accordingly, the court found that the Agency had provided reasonable
services, ordered they continue, and set a 12-month review hearing. Father
appealed. 5
DISCUSSION
I
“The purpose of the California dependency system is to protect children
from harm and to preserve families when safe for the child. (§ 300.2; In re
Dakota H. (2005) 132 Cal. App. 4th 212, 228.) The focus during the
reunification period is to preserve the family whenever possible. [Citation.]
Until services are terminated, family reunification is the goal and the parent
is entitled to every presumption in favor of returning the child to parental
custody. (§§ 366.21, 366.22; [citation].)” (Tracy J. v. Superior Court (2012)
202 Cal. App. 4th 1415, 1424 (Tracy J.).) Reasonable services during the
5 As the Agency concedes, the order is appealable and Father’s challenge
to the juvenile court’s reasonable services finding is cognizable on appeal.
(See Wanda B. v. Superior Court (1996) 41 Cal. App. 4th 1391, 1395; see also
In re A.G. (2017) 12 Cal. App. 5th 994 (A.G.).)
7
reunification period are statutorily required, though there is “no
constitutional ‘entitlement’ to these services.” (In re Baby Boy H. (1998) 63
Cal. App. 4th 470, 475.)
“At each review hearing, if the child is not returned to the custody of
his or her parent, the juvenile court is required to determine whether
reasonable services that were designed to aid the parent in overcoming the
problems that led to the initial removal and the continued custody of the
child have been offered or provided to the parent . . . . (§ 366.21, subds. (e),
(f).)” (In re J.P. (2014) 229 Cal. App. 4th 108, 121.) In making its
determination, the juvenile court considers the appropriateness of services
offered, the extent to which the agency facilitated utilization of those services,
and the extent to which the parent availed him or herself of the services
provided. (In re Riva M. (1991) 235 Cal. App. 3d 403, 414.)
“The standard is not whether the services provided were the best that
might be provided in an ideal world, but whether the services were
reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal. App. 4th
538, 547 (Misako R.).) Reunification services “should be tailored to the
particular needs of the family.” (Tracy J., supra, 202 Cal.App.4th at p. 1425.)
The adequacy of the plan and the Agency's efforts must be judged according
to the circumstances of the particular case. (In re Taylor J. (2014) 223
Cal. App. 4th 1446, 1451.)
The Legislature has recognized that parents may be deported, but a
parent’s removal from the country does not preclude the provision of
reunification services during a dependency proceeding. (A.G., supra, 12
Cal.App.5th at p. 1003.) If a parent has been deported to the parent’s country
of origin, the court may still provide reunification services and when
determining the content of those services, “the court shall consider the
8
particular barriers to a[ ] . . . deported parent’s access to those court-
mandated services and ability to maintain contact with the child, and shall
document this information in the child’s case plan.” (§ 361.5, subd. (e)(1).)
The Agency must make “[r]easonable efforts to assist parents who have been
deported to contact child welfare authorities in their country of origin, to
identify any available services that would substantially comply with case
plan requirements, to document the parents’ participation in those services,
and to accept reports from local child welfare authorities as to the parents’
living situation, progress, and participation in services.” (Id. at subd.
(e)(1)(E).)
We review a reasonable services finding for substantial evidence.6
(Angela S. v. Superior Court (1995) 36 Cal. App. 4th 758, 762.) “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.” (Misako R., supra, 2 Cal.App.4th at p. 545;
see also Katie V. v. Superior Court (2005) 130 Cal. App. 4th 586, 598.)
Viewing the evidence in the light most favorable to the juvenile court’s
ruling, as we must, we conclude the finding of reasonableness is supported by
substantial evidence and that the court did not err in finding the Agency
6 Father contends that we must adjust our analysis to reflect the higher
burden of proof placed on the juvenile court to find clear and convincing
evidence to support its finding that the services were reasonable. The Agency
disagrees, asserting that although the juvenile court expressed it was
applying the clear and convincing evidence standard, it was only legally
required to apply the preponderance of the evidence burden of proof. Under
either standard, however, our conclusion that the trial court’s reasonable
services finding is supported by substantial evidence would be the same.
9
provided reasonable services. “To support a finding that reasonable services
were offered or provided to the parent, ‘the record should show that the
supervising agency identified the problems leading to the loss of custody,
offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made
reasonable efforts to assist the parents in areas where compliance proved
difficult. . . .’ ” (A.G., supra, 12 Cal.App.5th at p. 1001.)
Father does not contend that the Agency failed to identify the problems
leading to the loss of custody. The Agency determined that Father’s inability
to safeguard the children when Mother was under the influence placed them
at substantial risk. Similarly, Father does not challenge the Agency’s
determination that to remedy this problem, Father should receive parenting
classes and individual therapy.7
At most, Father challenges the adequacy of the Agency’s facilitation of
visitation, which was entirely virtual during the six-month review period.
Earlier in the reunification period, the Agency cited the closure of the
Mexican Consulate, border restrictions, and the children’s lack of passports
as the reasons why Father did not have in-person visits. By the time of the
six-month review hearing, the Agency focused solely on the risk to the
children of COVID-19 exposure associated with a trip in a car with relatives
7 As the Agency concedes, despite a social worker’s mistaken belief that
Father was subject to drug testing, his case plan did not involve any drug
testing. Early in the proceeding, Father tested negative for controlled
substances and, despite a suggestion he may have sold methamphetamine,
there was no indication that the Agency was concerned about Father’s
possible drug use.
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across the border.8 The court acknowledged that it appreciated Father’s
frustration with the lack of in-person visits, but noted “it’s a frustration
shared by many, many people who have not seen their children, or seen their
parents or their grandparents for a year.”
Father suggests that the Agency did not provide reasonable services
“because it failed to provide any visitation.” However, the record
demonstrates that Father has daily virtual video visits with his children.
Although virtual visits are certainly less than ideal, Father offers no
authority to support the position that visitation must be in person or that
video or voice visits are, as a matter of law, inadequate.9 Especially in light
of the risk to the children posed by the COVID-19 pandemic, we cannot
conclude that the Agency acted unreasonably in restricting cross-border
travel to facilitate in-person visits. While visitation is a critical element of
the reunification process, “[n]o visitation order shall jeopardize the safety of
the children.” (§ 362.1, subd. (a)(1)(B).) In the absence of evidence to the
contrary, we conclude that, in the limited circumstances presented in this
8 Despite Father’s suggestions to the contrary on appeal , neither the
Agency nor the juvenile court were focused only on the risk posed by exposure
to Father. Instead, the court primarily expressed concern with the exposure
that would arise during the cross-border journey to Father.
9 At most, Father relies on Emergency Rules of Court, rule 6(c)(7), which
prohibits a suspension of visitation solely because of the COVID-19 pandemic,
but rather requires the Agency and the court to “balance the public health
directives and best interest of the child, and take into consideration whether
in-person visitation may continue to be held safely.” Here, the court
considered the unique circumstances of this case, which would have required
the children to travel in an automobile with relatives they did not normally
reside with to cross the border to visit Father at an unknown location.
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case, the Agency acted reasonably when it was only able to provide virtual
visits rather than cross-border in-person visits with Father.10
For the remainder of his case plan, consisting of parenting classes and
individual therapy, Father’s focus on appeal is not the adequacy of the case
plan, but rather whether the Agency “ ‘maintained reasonable contact with
the parents during the course of the service plan, and made reasonable
efforts to assist the parents in areas where compliance proved difficult. . . .’ ”
(A.G., supra, 12 Cal.App.5th at p. 1001.) Our review of the record supports
the conclusion that the juvenile court’s finding of reasonableness is supported
by substantial evidence.11
As Father notes, “[t]ime is always of the essence in dependency
proceedings, especially when children younger than three are involved.” (T.J.
v. Superior Court (2018) 21 Cal. App. 5th 1229, 1242.) At least one court has
concluded that significant delays caused by placing parents on waitlists of six
months to a year without seeking alternatives is a sufficient ground for
finding that reasonable services were not provided. (Id. at pp. 1242-1244.)
Delays in locating service providers and providing contact information to the
parents for those provides may similarly preclude a finding that reasonable
services were provided. (In re T.W.-1 (2017) 9 Cal. App. 5th 339, 346.)
However, when a parent is located out of California, the ability to provide
services often becomes more difficult and any delays caused by the parent’s
10 On appeal, Father cites an online article regarding family visitation
during the COVID-19 pandemic. The record does not reflect that the juvenile
court considered the article and Father makes an inadequate showing that it
is a matter appropriate for judicial notice. We therefore decline to consider
the article on appeal.
11 The Agency asserts, based on a cursory argument, that Father forfeited
his challenge of the reasonableness of the case plan. We disagree.
12
location should be considered within the context of the unique circumstances
of each case when considering the reasonableness of the Agency’s actions.
(See, e.g., id. at p. 348.)
Here, although the Agency’s attempts to connect Father with services
were beset with delays caused by his location in Mexico and the COVID-19
pandemic, the Agency continued to maintain contact and worked to find
services providers. With regard to parenting classes, the Agency immediately
began looking for services in Mexico following Father’s deportation in April
2020. At that time, Father did not have a computer, making it difficult for
him to attend any virtual classes. The Agency intended to follow its typical
procedure of coordinating services with DIF, the Mexican agency. At that
time, DIF was closed and did not plan to resume services until July 22, 2020.
When DIF did not reopen as planned, the Agency contacted Father in early
August and again in September, when Father appears to have expressed a
willingness to attend online classes. The Agency continued to contact both
Father and DIF throughout 2020 in an attempt to coordinate services. By
December 2020, the Agency had shifted its focus and, instead of relying on
DIF, the social worker arranged virtual classes for Father with a San Diego
provider. By the time of the six-month review hearing, Father had begun
participating in those classes. Although the arduous path to locate a service
provider was less than ideal, the evidence establishes that the Agency’s
actions were reasonable under the circumstances.
Similarly, the evidence demonstrates that the Agency remained in
contact with Father regarding individual therapy services. By July 2020, the
Agency again noted the delays caused by the closure of DIF, but assured the
court it would continue to work with DIF “to ensure the father can engage in
services as soon as possible.” Father’s counsel acknowledged the difficulty in
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scheduling services with DIF and suggested the court allow Father to
participate in “NarAnon or NA” in lieu of therapy. Over the next several
months, the Agency maintained contact with Father and continued to
attempt to arrange therapy services, either through DIF or a provider in the
United States. After these attempts were unsuccessful, the court ordered the
Agency to assist Father “in connecting . . . with Al-Anon or Nar-Anon that
can be done virtually, that’s free.” Following that order, the Agency sent
Father information about Nar-Anon, which provides a program for family
and friends of an addicted person. Father, however, did not enroll in Nar-
Anon by the time of the six-month review hearing. While the Agency may
have “dropped the ball” at some point, as the juvenile court found, it
ultimately was able to provide Father with contact information for Nar-Anon
meetings, which the court suggested would be helpful in demonstrating
Father was addressing the issues identified in his case plan. The record
reflects that the Agency maintained contact and continued assisting Father
in obtaining therapy services. Given the circumstances, the juvenile court
correctly concluded that the Agency acted reasonably despite the delays.
Father compares this case to A.G., supra, 12 Cal. App. 5th 994, which
similarly involved a challenge on appeal to the juvenile court’s finding that
reasonable services were provided to a father deported to Mexico. (Id. at
pp. 997-998.) In A.G., after the Agency arranged for services through DIF,
the father initially indicated he was no longer interested in reunification
services, but then changed his mind again to request services. (Id. at pp. 998-
999.) After several delays in obtaining services, the Agency recommended
returning the children to the mother’s care at the 12-month review hearing
and suggested it would provide discretionary services to father. (Id. at
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pp. 999-1000.) The juvenile court found the Agency had offered reasonable
services, despite father’s inability to begin services, and placed the blame on
father for being deported and then refusing services. (Id. at p. 1000.) On
appeal, this court reversed, holding that the juvenile court’s finding that
father declined services was not supported by substantial evidence and the
conclusion that father was responsible for the Agency’s failure to provide
services because he was deported was “legally indefensible.” (Id. at p. 1002.)
A.G. is inapposite. Here, the juvenile court did not blame Father for
his deportation and recognized that Father had steadfastly expressed an
interest in receiving reunification services, even if Father had suggested that
Mother would be primarily responsible for engaging in services. Unlike the
Agency’s actions in A.G., the Agency here continued to engage with Father to
find service providers despite the difficulties presented by Father being in
Mexico. Our conclusion that the juvenile court correctly found the Agency
provided reasonable services is predicated on the Agency’s response to these
difficulties, which demonstrate that the Agency was committed to providing
Father with services during the reunification period. Unlike the juvenile
court in A.G., the court below did not attempt to rely upon a “Go to Mexico,
lose your child” rule. (A.G., supra, 12 Cal.App.5th at p. 1003.) Instead, the
court recognized the barriers to providing services and asked the Agency to
be “get creative” in finding alternatives. Given these differences, the decision
in A.G. provides little guidance beyond reflecting that the provision of family
reunification services in Mexico by DIF can often involve delays. The Agency
appears to be well aware of these issues and committed to connecting Father
with services.
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When considering the reasonableness of the services provided by the
Agency, we must consider the Agency’s actions in the context of the specific
circumstances presented in each case. (Misako R., supra, 2 Cal.App.4th at
p. 547.) Here, those unique circumstances involved a parent in Mexico who
could not legally cross the border combined with the COVID-19 pandemic,
which forced the closure of service providers and precluded cross-border
visitation due to the concomitant health risk to the children. Applying the
appropriate deferential standard of review, we conclude substantial evidence
supports the juvenile court’s determination that the Agency provided
reasonable services to Father in the context of the difficult circumstances
present in this proceeding.
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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