In re N.C. CA2/2 ( 2021 )

Filed 10/4/21 In re N.C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re N.C., a Person Coming B310951
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP01343B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NICHOLAS C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Tamara E. Hall, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County Counsel, for
Plaintiff and Respondent.
The father in this juvenile dependency appeal, Nicholas C.
(Father), challenges the juvenile court’s order terminating reunification
services with regard to his son N.C. At the six-month review hearing,
the court found that respondent Department of Children and Family
Services (DCFS) offered or provided reasonable reunification services
and that Father failed to engage in any services. Father contends that
DCFS failed to provide reasonable services while he was incarcerated
and that he is entitled to another period of reunification. We conclude
substantial evidence supports the juvenile court’s finding and affirm.
FACTS AND PROCEDURAL HISTORY
I. Facts
Father has two minor children with S.P. (Mother): N.C. (born
2019), the subject of this appeal, and J.C. (born 2018).1 Mother is not a
party to this appeal and sibling J.C. is not a subject of this appeal.
In April 2019, the juvenile court asserted dependency jurisdiction
over sibling J.C. based on Father’s and Mother’s substance abuse,
Mother’s history of violent altercations, and Father’s failure to make an
appropriate plan for the child’s ongoing care and supervision. In June
2019, the juvenile court placed J.C. with Mother, ordered reunification
services for Father with regard to J.C., and ordered Father to
participate in a full drug and alcohol program, weekly drug testing, and
parenting and individual counseling. Father never participated in any
court-ordered services regarding J.C.
In January 2020, Father was arrested and incarcerated on a
murder charge, and remained in jail throughout the period relevant to
this appeal.
In May 2020, Mother was found unresponsive and not breathing
in a vehicle with both eight-month-old N.C. and sibling J.C. present,
apparently due to a drug overdose, and was revived with Narcan.
1Mother was born in 2001 and Father in 2000. Both young
parents had DCFS history themselves as minors, and Mother continued
to have an open case as a “Non-Minor Dependent” during trial court
proceedings.
2
A removal order was authorized and DCFS removed N.C. and J.C. from
Mother on May 29, 2020.
II. Procedural History
A. Detention, arraignment, jurisdiction and dispositional
hearings
On June 2, 2020, DCFS filed a petition under section 300 of the
Welfare and Institutions Code, alleging N.C. was at substantial risk of
harm due to both parents’ ongoing substance abuse, Mother’s history of
violent altercations, and Mother’s mental and emotional problems.2
At the detention hearing on June 5, 2020, the juvenile court
detained N.C. from both parents. Father was not present. The court
ordered that Father was permitted to have telephone contact with N.C.
at least one time a week, upon request, “if consistent with the rules of
the facility he is in,” and that DCFS was to make best efforts to assist
Father with communicating with N.C. The court also ordered DCFS to
submit a request to have Father transported to court for arraignment
and adjudication.
Father was not present at his arraignment hearing on July 1,
2020. The juvenile court found him to be the presumed father of N.C.
and ordered that he be interviewed in custody before the adjudication
hearing. Father’s attorney provided his mailing address on July 1,
2020. DCFS wrote to Father on July 10, 2020, but was unable to
interview him in custody before the next hearing due to COVID-19
restrictions.
On July 16, 2020, the juvenile court sustained N.C.’s dependency
petition and exerted dependency jurisdiction over N.C. under section
300, subdivisions (b)(1) (failure to protect, as to Mother) and (j) (abuse
of sibling, based on Mother’s and Father’s substance abuse and
Mother’s history of engaging in violent altercations). The court found
that N.C. was at substantial risk of harm due in part to Father’s
“failure to engage in services to address the issues, in the case of [J.C.]”
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3
Father was a “missout” for the hearing, which was held by video
conference, and counsel stated that Father had granted permission for
counsel to waive his appearance in the event he was not present.
Proceeding to disposition, the court ordered reunification services
for Father with regard to N.C., and ordered Father to participate in a
full drug and alcohol program, weekly drug testing, and parenting and
individual counseling, mirroring the prior orders with regard to sibling
J.C. The court found that Father “has not participated in the services
which were intended to rehabilitate him and reunify him with [J.C.], up
to this point. There is no evidence that he has any plan for the
children. He is currently incarcerated. He has provided no information
to the social worker about any services that he has participated in thus
far.”
B. Reunification period and six-month status review hearing
On September 8, 2020, DCFS called North County Facility,
where Father was incarcerated, to assess his compliance with court
orders. Officer Rivera Blue informed DCFS that Father had been
placed in a disciplinary housing unit since July 2020, which prevented
him from participating in groups. Although the facility was hosting
groups for a limit of eight inmates per housing block, Father was
unable to participate because of his disciplinary restrictions.
The DCFS social worker asked if she could visit Father, but
Officer Blue informed her that Father was prohibited from having any
visitation or phone calls with anyone but his attorney due to his
disciplinary sanction. Prior to the COVID-19 pandemic, Father had not
enrolled in any court-ordered services at his facility, nor had he
participated in any other programs at the facility except for taking six
independent study classes toward his high school diploma on January
29 through March 3, 2020.
On September 18, 2020, the juvenile court terminated
reunification services for both parents with regard to sibling J.C.
During the reunification period for N.C., DCFS wrote to Father
on or about September 3, September 8, October 9, and November 5,
2020. At least three of these mailings consisted of letters to Father
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enclosing the court plan, providing referrals for programs, and
requesting that Father report whether he had enrolled in any programs
requested by the court. In November 2020, DCFS also enclosed a letter
requesting for Father to have the ability to enroll in his programs
because they were court ordered.
Although the court had ordered transportation services for
Father for the six-month review hearing in January 2021, Father was
not present and the court continued the hearing to February 23, 2021
so that proper notice and transportation could be provided. On
February 5, 2021, DCFS called Father’s facility and was informed that
Father could not complete classes because inmates were not currently
allowed to attend programs due to COVID-19 restrictions.
On the date of the hearing on February 23, 2021, Father again
was not present and Father’s attorney waived his appearance. The
juvenile court found that DCFS “has complied with the case plan by
providing or offering or making reasonable and/or active efforts to
provide or offer reasonable services to enable the child’s safe return
home and to complete and finalize the permanent placement of the
child.” The juvenile court concluded that there was clear and
convincing evidence that DCFS had made reasonable efforts but that
Father’s progress with his reunification case plan was “none,” noting
that this also had been the case with regard to sibling J.C. before the
COVID-19 pandemic. Moving to disposition, the court terminated
reunification services for Father, continued services for Mother (finding
she made “partial” progress), and set a 12-month permanency hearing
under section 366.21, subdivision (f).
This appeal followed.
DISCUSSION
Father contends that the juvenile court erred by terminating
reunification services at the six-month review hearing because no
substantial evidence supports the court’s finding that DCFS offered or
provided reasonable services. We review the reasonableness of DCFS’s
services for sufficiency of the evidence and uphold the judgment if there
is substantial evidence supporting the juvenile court’s finding that
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DCFS provided reasonable services. (Amanda H. v. Superior Court
(2008) 166 Cal.App.4th 1340, 1345.) Because a finding of reasonable
services must be made by clear and convincing evidence in the trial
court, “ ‘[w]e review the record in the light most favorable to the trial
court’s order to determine whether there is substantial evidence from
which a reasonable trier of fact could make the necessary findings
based on the clear and convincing evidence standard.’ ” (T.J. v.
Superior Court (2018) 21 Cal.App.5th 1229, 1238–1240.)
When a child under the age of three is removed from a parent,
family reunification services are initially provided for six months.
(§ 361.5.) At the six-month review hearing, if the court finds that the
parent failed to participate regularly and make substantive progress in
a court-ordered treatment plan, the court may end services and
schedule a hearing for termination of parental rights under section
366.26 (§ 366.21, subd. (e)(3) & (8)), taking into account any particular
barriers to the parent’s ability to maintain contact with his or her child
due to the parent’s incarceration (§ 366.215).3
The court may not terminate reunification services without clear
and convincing evidence that reasonable services have been provided or
offered to the parent or legal guardian. (§ 366.21, subd. (g)(1)(C)(ii);
Amanda H., supra, 166 Cal.App.4th at p. 1345.) Reunification services
shall be extended if reasonable services have not been provided or there
3 An order both terminating reunification services and setting a
section 366.26 hearing must be challenged in the first instance by a
petition for extraordinary writ review, given the interest in speedily
resolving challenges to setting orders before a hearing for termination
of parental rights occurs. (§ 366.26, subd. (l )(1); In re X.Z. (2013) 221
Cal.App.4th 1243, 1248–1249.) Here, however, the court did not order
a section 366.26 hearing in conjunction with termination of Father’s
reunification services, thus his challenge to the underlying order is
appropriate for us to consider on appeal. (In re Michael H. (2014) 229
Cal.App.4th 1366, 1373 [“ ‘[T]he general rule in juvenile dependency
cases is that all orders (except for an order setting a section 366.26
hearing), starting chronologically with the dispositional order, are
appealable without limitation’ ”].)
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is a substantial probability that the child will be returned to the
physical custody of the parent within six months. (§§ 361.5, subd.
(a)(3)(A); 366.21, subd. (e)(3).) “The adequacy of reunification plans
and the reasonableness of DCFS's efforts are judged according to the
circumstances of each case,” and DCFS must make good faith efforts to
develop and implement a family reunification plan, including offering
services designed to remedy the problems leading to lack of custody,
“maintain[ing] reasonable contact with the parents during the service
plan,” and making “reasonable efforts to assist the parents in areas
where compliance prove[s] difficult.” (Amanda H., supra, 166
Cal.App.4th at p. 1345; accord, In re M.F. (2019) 32 Cal.App.5th 1, 14.)
“Reunification services need not be perfect.” (In re Alvin R.
(2003) 108 Cal.App.4th 962, 972.) “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.” (Melinda K. v. Superior Court (2004) 116 Cal.App.4th
1147, 1159.) “[T]he mere fact that more services could have been
provided does not render the Department’s efforts unreasonable.” (In
re Alvin R., at p. 973.) Reunification services should be tailored to each
family’s specific needs and circumstances and, to the extent there are
obstacles to the provision of reunification services, at least some effort
must be made to overcome those obstacles. (Id. at pp. 972–973.)
Father contends that DCFS never offered or provided him
services during the six-month period between July 2020 and February
2021. However, the evidence shows that DCFS made repeated efforts
to contact Father by mail and by phone, and sent him the case plan,
service referrals, and requests for updates, with no response. And,
although the COVID-19 pandemic limited the availability of some
services and in-person visitation, the primary obstacle to Father’s
participation in services and to DCFS’s ability to visit or communicate
with him during the reunification period appears to be his own
behavior while incarcerated. Specifically, the same month that services
were ordered, July 2020, Father was placed into disciplinary housing
that prevented him from participating in any groups, even though his
facility thereafter was permitting small groups of eight inmates to
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meet, as Officer Blue explained to DCFS in September 2020. “By his
own actions, [Father] thus placed himself out of the reach of any
meaningful rehabilitative services which the Department could have
provided.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971;
In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1111.)
Father also complains that DCFS provided him no
communication with N.C. However, the juvenile court’s order
permitted Father weekly phone calls only “if consistent with the rules
of the facility he is in.” Officer Blue confirmed that inmates were
ordinarily permitted to have in-person visits and make collect
telephone calls, but that due to Father’s disciplinary sanction he was
unable to use his privileges. Again, Father’s own actions precluded him
from phone contact with N.C., not any failure by DCFS to provide such
opportunity.
In addition to pursuing communication with Father by phone and
mail, DCFS made some efforts to overcome the obstacles posed by
Father’s incarceration and behavioral restrictions. The DCFS worker
asked Father’s facility in September 2020 if she could visit him, but
was informed that Father was prohibited from having visits from
anyone but his attorney due to his disciplinary sanction. DCFS also
sent a letter in November 2020 requesting that Father be allowed to
participate in services because they were court ordered. There is
substantial evidence to support the juvenile court’s finding that these
were reasonable, albeit minimal, efforts under the circumstances, given
that Father never responded to any DCFS communication during the
reunification period, expressed little discernable interest in pursuing
services for himself or in the ongoing dependency proceedings of either
of his children, and DCFS was aware that Father’s privileges were
restricted for disciplinary reasons.
We conclude the evidence, viewed in the light most favorable to
the juvenile court's ruling, provides substantial support for the court’s
finding that DCFS offered or provided reasonable services to Father
under the circumstances, and that the court did not err in terminating
services. Given his behavioral restrictions during the reunification
8
period and complete lack of engagement with any court-ordered
services either before or during his incarceration and the COVID-19
pandemic, Father’s complaints that DCFS should have done more do
not persuade us otherwise. DCFS is not obligated to provide the best
services possible in an ideal world, but only those that are reasonable
under all the circumstances. (In re Julie M. (1999) 69 Cal.App.4th 41,
48.) Substantial evidence supports the juvenile court’s finding that
DCFS proved by clear and convincing evidence that it made reasonable
efforts to offer services to Father with regard to N.C., and that he failed
to participate in his reunification case plan.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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