In re E.D. CA2/5 ( 2015 )

Filed 10/2/15 In re E.D. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re E.D., et al., Persons Coming Under B262141
the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK19295)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ERIK D.,
Defendant and Appellant.
APPEAL from the orders of the Superior Court of Los Angeles County, Teresa
Sullivan, Judge. Affirmed.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and
Respondent.
________________________
Erik D. (father) filed this appeal after a six-month review hearing conducted
pursuant to Welfare and Institutions Code section 366.21, subdivision (e).1 He contends
substantial evidence does not support the court’s finding that the Los Angeles County
Department of Children and Family Services (Department) provided reasonable services
to promote reunification. The Department first contends we should dismiss father’s
appeal because a reasonable services finding is not appealable under section 395.
Alternatively, the Department contends the finding is supported by substantial evidence.
We conclude the court’s reasonable services finding is appealable because it
adversely affects father’s parental interest in reunification. The finding is supported by
substantial evidence, and so we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father has two children with mother, a four-year-old boy and a six-year-old girl
(Children). Mother has three older children with two different men and has been subject
to twelve dependency referrals dating back to 1993, three of which resulted in
dependency cases. A 2010 dependency proceeding commenced after father was arrested
for spousal abuse. The court in that case sustained allegations that father has a history of
violent altercations with mother, as well as a history of illicit drug abuse and violence
with one of mother’s relatives. Father was convicted of felony assault and sentenced to
four years in prison. The court granted father family reunification services, but father
was incarcerated during the entire family reunification period, and in March 2011, the
court determined father had not participated substantially with the programs and
terminated family reunification services.
On May 3, 2014, the Children and their 13-year-old half-sister were taken into
protective custody after the police found them in a motel room with their paternal
1All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
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grandmother, who was incoherent and possibly abusing prescription drugs. When a
social worker with the Department interviewed mother on the day the children were
detained, mother reported that father was “incarcerated for violation of probation” but she
did not know in which jail. Father’s parole officer reported father was not complying
with the conditions of his parole, and there has been a warrant out for his arrest since
February 2014. The Department filed a petition alleging the children were dependents
under subdivision (b) of section 300, based upon caretaker neglect and mother’s history
of drug abuse, and the court ordered the children detained.
On June 10, 2014, an investigating social worker interviewed father at Pitchess
Detention Center. Father reported he was due to be released in a few weeks and was
willing to comply with court orders in order to reunify with his children.
On June 13, 2014, the Department filed both a First Amended Petition and a
Jurisdiction and Disposition Report. The First Amended Petition added an allegation
against father under subdivision (b) of section 300, on the grounds that his earlier violent
acts and drug abuse (which were the subject of the 2010 dependency proceeding) and his
failure to comply with court-ordered programs, including a parenting class, a domestic
violence class, a substance abuse program, and drug testing, placed the Children and their
13-year-old half-sibling at risk of harm. The addendum report that accompanied the First
Amended Petition explained that the Department added the allegation “to address prior
unresolved issues” with father.
On June 23, 2014, father, who remained incarcerated at Pitchess Detention Center,
appeared at the scheduled adjudication hearing. The court appointed counsel to represent
father, found him to be the Children’s presumed father, and admonished him to update
his attorney and the Department social worker of any address changes. The court
continued the adjudication to July 30, 2014, and ordered the Department to interview
father about the paragraph b-3 allegations and submit a supplemental report.
On July 30, 2014, the Department filed a report stating it was unable to interview
father. Father had been released from jail, but neither the Department nor father’s
attorney had contact information for father. At the scheduled hearing on the same day,
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father appeared, waived his rights to contest the allegations, and signed a case plan that
appears to be the result of settlement negotiations between the Department and both
parents. Father’s signed case plan gave father a number of responsibilities, which the
court reviewed with him. He would comply with the terms of his probation or parole as
well as any restraining order or criminal court order. He would attend individual
counseling to address case issues including substance abuse and domestic violence, plus
parenting classes and anger management classes. He would submit proof of attendance at
one meditation meeting or yoga classes. He would submit to drug testing and attend a
drug treatment program if he had any missed or dirty tests. Father’s attorney provided
the court with a phone number belonging to father’s sister as a good contact number, as
father’s phone was recently disconnected and he did not have housing. Father planned to
provide the Department with a mailing address and would obtain his own cell phone as
well.
The social worker attempted to contact father by telephone on September 26,
2014, and again on December 10, 2014, but both attempts were unsuccessful. Although
the record does not contain information about what offense led to father’s re-
imprisonment, at some point he was incarcerated at North Kern State Prison. The social
worker attempted to speak with father’s counselor to get information about services
available to father in prison, but as of the six-month review hearing, the Department had
not been able to provide services to father.
At the six-month review hearing on February 4, 2015, the court found clear and
convincing evidence that the Department had provided reasonable reunification services,
over father’s objection. It also found that father had made minimal progress towards
eliminating the conditions leading to the Children’s detention, but ordered six months of
additional reunification services.
Father filed a notice of appeal on February 10, 2015.
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DISCUSSION
Appealability of Reasonable Services Finding
The Department urges us to dismiss father’s appeal, arguing that because father is
only appealing the court’s reasonable services finding, and not any order, the finding is
not appealable. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147 (Melinda
K.).) Father contends an appeal is proper under In re T.G. (2010) 188 Cal.App.4th 687,
691-696, because the court’s finding is intertwined with its review hearing orders and
adversely impacts his legal interest in reunification.
“‘A judgment in a proceeding under Section 300 may be appealed in the same
manner as any final judgment, and any subsequent order may be appealed as an order
after judgment.’ [Citations.] As a result of these broad statutory terms, ‘[j]uvenile
dependency law does not abide by the normal prohibition against interlocutory appeals.’
[Citations.] The dispositional order is the ‘judgment’ referred to in section 395, and all
subsequent orders are appealable. [Citation.] ‘“A consequence of section 395 is that an
unappealed disposition or postdisposition order is final and binding and may not be
attacked on an appeal from a later appealable order.” [Citation.]’ [Citations.]” (In re
S.B. (2009) 46 Cal.4th 529, 531-532.)
“Generally, a parent who is aggrieved by an order after judgment in a juvenile
dependency proceeding may take an appeal from that order.” (In re Holly B. (2009) 172
Cal.App.4th 1261, 1265.) “An aggrieved person . . . is one whose rights or interests are
injuriously affected by the decision in an immediate and substantial way, and not as a
nominal or remote consequence of the decision. [Citations.] . . . [¶] . . . All parents,
unless and until their parental rights are terminated, have an interest in their children’s
‘companionship, care, custody and management . . . .’ [Citation.] This interest is a
‘compelling one, ranked among the most basic of civil rights.’ [Citation.] While the
overarching goal of the dependency law is to safeguard the welfare of dependent children
and to promote their best interests [citations], the law’s first priority when dependency
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proceedings are commenced is to preserve family relationships, if possible. [Citation.]
To this end, the law requires the juvenile court to provide reunification services unless a
statutory exception applies. [Citations.]” (In re K.C. (2011) 52 Cal.4th 231, 236.)
In the case relied upon by the Department, Division Two of this court held that a
parent cannot appeal from a reasonable services finding alone, without also appealing an
adverse order. (Melinda K., supra, 116 Cal.App.4th at p. 1150.) Underpinning the
court’s holding was the language of section 395, which authorizes appeals in dependency
cases from the judgment and “any subsequent order.” Because the mother in Melinda K.
only challenged the court’s finding that she was provided with reasonable reunification
services, without also challenging any related order, she could not proceed on appeal.
Instead, a parent who seeks to challenge a finding made at a review hearing must file a
petition for writ of mandate. (Melinda K., supra, at p. 1153.) In reaching this
conclusion, the Melinda K. court emphasized that “mother was not aggrieved by the
finding . . . given that services were continued for at least another six months and no
negative consequence flowed from the reasonable services finding.” (Ibid.) The Melinda
K. court did reach the substance of mother’s arguments, because it opted to treat mother’s
appeal as a petition for writ of mandate. (Id. at p. 1157.) In doing so, the court
acknowledged that limiting a party’s ability to appeal a particular finding without also
appealing the order posed perils later in the case: “a finding which is not appealable now
may later become part of the factual basis for a subsequent appealable order. But it is
impermissible to challenge an earlier finding by way of an appeal from a subsequent
order . . . . [¶] Thus, mother cannot appeal the reasonable services finding now, nor can
she raise the issue by way of an appeal from any subsequent adverse order . . . . We
therefore hold that a petition for writ of mandate is the appropriate method by which to
challenge a finding made by a juvenile court at a review hearing which does not result in
an appealable order. In this way, a parent or legal guardian will be afforded meaningful
appellate review of a finding which may ultimately have a significant effect on the
dependency proceedings.” (Id. at pp. 1156-1157.)
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The appellate court in In re T.G. distinguished Melinda K. and held that the father
could appeal based solely on an adverse finding that he was provided with reasonable
reunification services. (In re T.G., supra, 188 Cal.App.4th at p. 696.) In Melinda K., the
dependency court “found [mother] in compliance with the case plan, complimented her
progress, continued services, and found a substantial probability the child would be
returned to her within six months.” (In re T.G., supra, 188 Cal.App.4th at pp. 692-693.)
In contrast, in In re T.G., the father was incarcerated for a parole violation about one
month after the disposition hearing. Despite father’s request for findings that he had not
been provided with visitation or reasonable services during his time in custody, the court
found his progress towards alleviating or mitigating the causes necessitating placement
were inadequate, and he failed to make substantial progress on the case plan. (Id. at p.
691.) In re T.G. noted that the court in Melinda K. acknowledged “its conclusion would
be different if mother was arguing ‘some adverse action against her’ based on the
reasonable services finding. [Citation.] For example, the [Melinda K.] court said its
determination on the propriety of mother’s appeal would be different ‘[w]here the two
findings of reasonable services and detriment are intertwined’ and this ‘resulted in some
negative consequence to the parent.’ [Citation.]” (In re T.G., supra, at p. 693.)
In re T.G. also questioned whether the holding in Melinda K. would still be good
law in light of In re S.B. (2009) 46 Cal.4th 529, where the California Supreme Court
reversed a Court of Appeal decision dismissing a mother’s appeal on the grounds that
mother was appealing the court’s adoptability findings, rather the an order to find an
appropriate adoptive family for her children. The Supreme Court disagreed, noting that
“review of findings is normally obtained by appeal from the ensuing judgment or order.”
(Id. at p. 534.) “‘[W]e have repeatedly held that if the Legislature intends to abrogate the
statutory right to appeal, that intent must be clearly stated. “The right of appeal is
remedial and in doubtful cases the doubt should be resolved in favor of the right
whenever the substantial interests of a party are affected by a judgment . . . .”
[Citations.]’ [Citation.]” (Id. at p. 537.)
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The court in In re T.G. reasoned that “a parent or child can b[e] aggrieved by a
reasonable services finding at the time of the six-month review hearing if it is not
supported by substantial evidence. Such a finding can put the interests of parents and
children in reunification at a significant procedural disadvantage.” (In re T.G., supra,
188 Cal.App.4th at p. 695.) Because reunification services are generally limited to
twelve months for children older than three, and a heightened showing is required to
extend services to the statutory maximum of eighteen months, “it would be significantly
more difficult for a parent to either reunify with a child or to satisfy the heightened
showing required for a continuation of reunification services if the parent was not
provided with reasonable services during the first six months of the reunification period.”
(Ibid.) In addition, “a parent whose services are terminated at the 12–month review
period based in part on an erroneous finding of reasonable services during the first six
months of reunification, would be unable to challenge that finding by way of an appeal
from a subsequent adverse order at the time of the 12–month review hearing.” (Id. at pp.
695-696, citing Melinda K., supra, 116 Cal.App.4th at pp. 1156-1157; see also Dwayne
P. v. Superior Court (2002) 103 Cal.App.4th 247, 259 [“a parent may not attack the
validity of a prior appealable order for which the statutory time for filing an appeal has
passed”].)
We are persuaded by the reasoning and holding in In re T.G. that a parent may
appeal a reasonable services finding made as part of the court’s orders at the six-month
review hearing if the finding is adverse to the parent’s interest in reunification. Here,
because the court’s finding meant that father would not have additional time to comply
with the case plan, beyond the remaining six months until the twelve-month hearing
under section 366.21, subdivision (f), the court’s finding has a negative impact on his
prospects for reunification. Therefore, we consider the merits of the reasonable services
finding on appeal.
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Reasonableness of Reunification Services
The Department must show by clear and convincing evidence that reasonable
reunification services have been provided. (In re Monica C. (1995) 31 Cal.App.4th 296,
306.) On appeal, we review the court’s finding of adequate services under the substantial
evidence standard of review. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) In
applying that standard, “we draw all reasonable inferences from the evidence to support
the findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The
pertinent inquiry is whether substantial evidence supports the finding, not whether a
contrary finding might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212,
228.)
At the six-month review hearing, the court must determine whether the
Department has made reasonable efforts to provide reunification services to father and
the extent of his progress toward alleviating or mitigating the causes that led to the
Children’s detention. (§§ 366, subd. (a)(1)(B), (E); 366.21, subd. (e) [six-month review].)
“In almost all cases it will be true that more services could have been provided more
frequently and that the services provided were imperfect. 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.) The Department must make a good faith effort to provide
reasonable services “responding to the unique needs of each family.” (In re Monica C.,
supra, 31 Cal.App.4th at p. 306.) The Department has a responsibility to maintain
reasonable contact with the parent, although the evaluation of what constitutes
“reasonable contact” can take into account whether the parent was cooperative with such
efforts to maintain contact, and whether the parent kept the Department apprised of his or
her whereabouts. (In re T.G., supra, 188 Cal.App.4th at p. 698.)
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The law requires the court to consider the particular obstacles faced by an
incarcerated parent, including access to court-mandated services. (§ 361.5, subd. (e)(1);
see §§ 366.21, subds. (e), (f); 366.22, subd. (a); Mark N. v. Superior Court (1998) 60
Cal.App.4th 996, 1013 [“the department should, at a minimum, have contacted the
relevant institutions to determine whether there was any way to make services available
to the father”]; In re Monica C., supra, 31 Cal.App.4th at p. 307 [child welfare agency’s
obligation to provide reasonable services “obviously entails the preliminary task of
identifying services available to the (incarcerated) parent”].)
There is substantial evidence that the Department’s efforts, while ultimately
unsuccessful, were reasonable given the circumstances. The court had informed father of
the importance of updating his contact information with the Department. A social worker
called father once about two months after the adjudication hearing, and again two and a
half months after that. We can infer from the record that father did not update his contact
information or return the social worker’s phone calls. Although the record is silent on
when or how the Department learned of father’s imprisonment at North Kern State
Prison, its status review report documents the social worker’s attempts to identify what
services father had available to him in prison. Father claims the Department’s efforts to
provide reunification services were “mechanical” and it could have done other things,
like writing to father or sending him written program materials. However, given father’s
history of failing to comply with reunification services and his own lack of
communication with the Department, we decline to find the dependency court erred in
making its reasonable services finding.
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DISPOSITION
The court’s orders are affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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