Antonio People v. Superior Court CA1/2 ( 2014 )

Filed 10/17/14 Antonio P. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ANTONIO P.,
Petitioner,
v.
THE SUPERIOR COURT OF SAN A142604
FRANCISCO COUNTY,
(San Francisco County
Respondent; Super. Ct. No. JD13-3309)
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Real Party in Interest.
Petitioner Antonio P. (father), father of three-year-old Bonnie P., seeks review by
extraordinary writ, pursuant to California Rules of Court, rule 8.452,1 of the juvenile
court’s findings and orders, in which the court terminated reunification services and set
the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code
section 366.26.2 Father contends substantial evidence does not support the juvenile
court’s finding that reasonable services were provided in the form of frequent and regular
visitation. We shall deny the petition for extraordinary writ.
1
All further rule references are to the California Rules of Court.
2
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
1
FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2013, the San Francisco Human Services Agency (Agency)
filed an original petition alleging that Bonnie P. came within the provisions of section
300, subdivisions (b),(g), and (j). Specifically, the petition alleged, inter alia, that father,
who was Bonnie’s presumed father, was incarcerated at San Bruno jail and was unable to
provide for the then two-year-old child; that he had an extensive criminal history and a
history of being involved with illegal drugs, domestic violence, and extended
incarcerations, which placed Bonnie at risk of harm and neglect; that the mother’s current
whereabouts were unknown; and that both parents had failed to reunify with older
siblings who had been removed from their home.
In a detention report filed on November 18, 2013, the Agency reported that
Bonnie had been placed in protective custody on November 14, after father was arrested
on an outstanding narcotics warrant. At the time of father’s arrest, Bonnie was with him
in a hotel room, where paraphernalia related to crack cocaine was found. Father’s
girlfriend was also present in the hotel room and narcotics were found on her person.
Bonnie had been a court dependent from her birth in 2011 until June 2012, during which
time father received family reunification and family maintenance services. Bonnie’s
mother did not engage in any services and, upon dismissal of the dependency, the court
granted father full custody of Bonnie. Father had six other children between the ages of
14 and 24, none of whom he had raised. One of those children had been made a court
dependent and father had failed to successfully reunify with that child.
On November 19, 2013, the juvenile court ordered Bonnie detained, and further
ordered that she be placed in foster care, with father to have supervised visitation.
In a disposition report filed on December 24, 2013, the Agency reported that
father remained incarcerated. The social worker had met with father, who told her that he
was on probation and had been working to have his probation transferred to Georgia,
where his wife—who is not Bonnie’s mother—lived. Father had been making extended
visits to Georgia, where Bonnie had been living with his wife. He recently had to bring
Bonnie back to California, however, because his wife was undergoing chemotherapy
2
treatment and was unable to care for Bonnie in his absence. Father and Bonnie had been
in California since about September, living in his motor home, which he parked around
town. He acknowledged having a long history with illegal drugs, relationships involving
domestic violence, and long periods of incarceration, but did not believe his lifestyle put
Bonnie at risk.
Bonnie was two and a half years old, but “present[ed] as much older.” She was
strong-willed; was very friendly to strangers, without appropriate boundaries; and,
according to her foster mother, she wanted to sleep during the day and was wide awake at
night. Bonnie was being transitioned to the care of her paternal great-aunt, Rachel C.
The Agency recommended that reunification services be provided to father.
At a December 31, 2013 settlement conference on jurisdiction and disposition,
father submitted to the allegations of an amended petition and the juvenile court took
jurisdiction over Bonnie and ordered reunification services for father. The court also
ordered that father, who was still incarcerated, would have supervised visitation at the
jail.
On March 13, 2014, the juvenile court granted the Agency’s request, made
pursuant to section 388, to move Bonnie to the home of Rachel C., with whom weekend
visits had gone well and to whom Bonnie had become attached.
In a status report filed on June 6, 2014, the Agency related that father had been
released from jail in February. The social worker had last heard from him in April, when
he left a message stating that he had been in Georgia for three weeks on business. He had
not called the social worker or responded to her calls since then. Father had not been
visiting regularly with Bonnie, although he did have positive interactions with her during
two supervised visits in January, while he was incarcerated. During those visits, “[h]e
played with her, comforted her and reassured her.” Although he was allowed to see
Bonnie at Rachel C.’s home, he stopped visiting regularly after February, and his contact
had been minimal since then, with visits about once a month and occasional phone calls.
With respect to his case plan, father had not started individual therapy, had not
shown that he had obtained suitable housing for himself and Bonnie, had not kept in
3
contact with the social worker, and had not begun any services other than complying with
the terms of his probation.
Bonnie was three years old, was healthy, and seemed to be developmentally on
track for her age. She was living with Rachel C., with whom she was doing well. Her
behavior had improved and her anxiety had decreased. Rachel C. was taking excellent
care of her and was committed to adopting her. Bonnie’s extended paternal family,
including her paternal grandmother, aunts, uncles, and cousins, all visited frequently.
The Agency recommended that father’s reunification services be terminated and
the matter set for a section 366.26 hearing, with adoption by her aunt, Rachel C., as the
permanent plan.
At the July 22, 2014 six-month review hearing, social worker Christine Harris
testified that father still had not started individual therapy or found suitable housing.
Harris had called and spoken with father twice in the past month, and he had said that he
was unable to schedule appointments with his preferred therapist because he was busy
with other classes and a domestic violence program. He told her that he had completed
his substance abuse assessment at the Homeless Prenatal Program. He was also in
compliance with his probation requirements.
Since the status review report was filed on June 6, father had visited Bonnie once,
in late June. He had told Harris that he was unable to contact Rachel C. to arrange visits
with Bonnie. Harris’s understanding, however, was that father had arranged to visit
many times over the prior four months, but had not shown up for the visits, which was
very disappointing for Bonnie. Bonnie and Rachel C. had also run into father on the bus
prior to his most recent visit, and “probably in April and maybe May he had some visits,
but it’s been maybe once a month and not consistent.” When Harris met with father, she
had encouraged him and told him it was important for him to see Bonnie “regularly and
often.” Father “said he was able to see her at the aunt’s and then also at his mother’s
house I believe, because his aunt brings Bonnie there every day. And so he would be
able to visit her daily. But in fact he didn’t do that.” Harris acknowledged that father had
recently told her, when she called him to talk about his case plan, that he had attempted to
4
visit Bonnie more frequently over the past month, but had not been able to reach Rachel
C. to make the arrangements. However, during the months when his visits were sporadic,
father had not contacted Harris to tell her he had problems seeing Bonnie.
While father was incarcerated, Bonnie had visited him twice, and the visitation
reports reflected that he was attentive to her. Bonnie and father were also very
affectionate with each other during the visits and Bonnie resisted being separated from
father when the visits ended. There were not more visits during father’s incarceration
due to issues with the jail scheduling visits. Harris believed there was a positive
attachment between father and Bonnie because “she looks forward to seeing him and is
very disappointed when she can’t.”
Harris continued to recommend termination of father’s reunification services.
When asked whether she also believed his visitation should be terminated, Harris
responded, “It’s a difficult question because I feel like supervised visits and contact for
Bonnie and her dad could be helpful. But because they have been so inconsistent I think
it’s really, it’s traumatic for her. And so I think that that would have to be assessed” with
Bonnie’s therapist.
Father also testified at the hearing. For his required individual therapy, he had
attempted to schedule an appointment with a therapist who had been his child
psychologist and was a family friend. However, he was unable to actually meet with the
therapist because he could not make it to the appointments on Friday morning, the only
time the therapist had available.
With respect to visitation, father testified that he had been visiting Bonnie almost
every day at his mother’s home because Rachel C. was his mother’s in-home care worker
and she brought Bonnie with her to his mother’s house. These visits started after he was
released from jail in February 2014 until his mother went to Laguna Honda hospital,
between three weeks and two months earlier. Since then, visits had become infrequent
because Rachel C. would neither answer the phone when he called nor respond to his
texts. He had seen Bonnie about four times in the last two months. Father loved Bonnie,
and Rachel C.’s claims that he had not visited her regularly were not true. He had proof
5
that he had visited Bonnie often in the form of photographs on his cell phone. However,
the phone had fallen into the toilet and he had lost all the photos.
Father had not spoken to Harris about problems with scheduling visitation with
Bonnie until three weeks ago because he did not trust social workers and thought it would
be a waste of time to talk to her. When he had recently spoken with Harris and she asked
him why he had not called her, he told her he had called her “a bunch of times” and left
messages, but she never responded. He also had called his attorney “dozens of times”
and had “never gotten an answer.”
Finally, father testified that his probation was being transferred to Georgia “next
month.”
At the conclusion of the hearing, the juvenile court stated, with respect to
visitation, “clearly this child loves it when she sees her dad. But the sorry thing is, she
crashes when he doesn’t show up. And he makes representations and she has
expectations that he is going to come and he doesn’t show.” The court further stated, “As
we noted, visits have been inconsistent. The testimony, let’s just say that I didn’t find it
particularly compelling that everything in support of his regular visits was destroyed by
the frying, if you will, of his cell phone.”
The court then found by clear and convincing evidence that reasonable services
had been provided to father, that he had failed to participate regularly in his plan, and that
there was not a substantial likelihood that Bonnie could be returned to his care within the
next six months. The court therefore terminated father’s reunification services and set the
matter for a section 366.26 hearing.
On July 28, 2014, father filed a notice of intent to file a writ petition seeking
review of the juvenile court’s order.
DISCUSSION
Substantial Evidence Supports the Juvenile Court’s
Finding that Reasonable Services Were Provided
Father contends substantial evidence does not support the juvenile court’s finding
that reasonable services were provided in the form of frequent and regular visitation.
6
Section 362.1, subdivision (a)(1)(A), provides in relevant part: “[A]ny order
placing a child in foster care, and ordering reunification services, shall provide . . . for
visitation between the parent or guardian and the child. Visitation shall be as frequent as
possible, consistent with the well-being of the child.”
“Services will be found reasonable if the [Agency] has ‘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
. . . .’ [Citation.]” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) “The adequacy
of reunification plans and the reasonableness of the [Agency’s] efforts are judged
according to the circumstances of each case. [Citation.]” (Robin V. v. Superior Court
(1995) 33 Cal.App.4th 1158, 1164.)
We review the juvenile court’s determination of whether the Agency provided
reasonable services for substantial evidence. (In re Alvin R. supra, 108 Cal.App.4th at
p. 971.)
In the present case, father’s claim regarding lack of reasonable services focuses
solely on the reasonableness of the services provided related to visitation. According to
father, the Agency improperly delegated its responsibility to arrange regular visitation
between him and Bonnie to Bonnie’s aunt, Rachel C. He argues that even though he
agreed to schedule visitation directly with Rachel C., that did not relieve the Agency of
the responsibility of ensuring that reasonably frequent visitation took place, pursuant to
the juvenile court’s order.
We conclude there is substantial evidence that the Agency provided reasonable
reunification services in this case. (See In re Alvin R., supra, 108 Cal.App.4th at pp. 972-
973.) That the Agency permitted father and Rachel C. to arrange for Rachel C. to
supervise visitation in her home, instead of requiring him to attend supervised visits at the
Agency or in another institutional setting, did not amount to an improper delegation of
responsibility. Rather, the Agency implemented the court’s order of regular visitation in
7
a way that the people involved, including father, believed would be best for Bonnie. (See
Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1164.)
As to father’s claim that Rachel C.’s non-responsiveness kept him from regularly
visiting with Bonnie, the juvenile court found that father was not credible in his
testimony regarding visitation. Moreover, if father did in fact believe that Rachel C. was
obstructing his visitation with Bonnie, he should have informed the social worker of the
problem, so that a different visitation plan could be made. Instead, he did not maintain
contact with the social worker, who attempted to reach out to him, and never expressed
any concerns about visitation until shortly before the six-month review hearing. At the
hearing, father’s explanation for the delay in telling Harris about any scheduling
problems was contradictory: he testified both that he did not trust social workers and
thought it would be a waste of time to call and that he had called her and left messages
numerous times, but she never returned his calls.
In sum, the evidence shows that any issues with visitation were due to father’s
failure to visit consistently and his failure to maintain contact with the social worker.
Substantial evidence supports the juvenile court’s finding that reasonable services were
provided to father.3 (In re Alvin R. supra, 108 Cal.App.4th at p. 971.)
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as
to this court immediately (rule 8.490(b)(2)(A)).
3
Father apparently believes the circumstances of this case are analogous to those
in In re Monica C. (1995) 31 Cal.App.4th 296, which involved an incarcerated parent’s
appeal following termination of parental rights. In In re Monica C., at pages 306-307, the
appellate court reversed the juvenile court’s order terminating parental rights because,
inter alia, the reunification plan failed to provide for visitation between the mother and
child while the mother was in prison and the Social Services Department believed “that
visitation could serve no good purpose” since the mother was sentenced to a term of more
than 18 months in prison. (Id. at p. 308.) The facts and issues addressed in that case,
however, are plainly dissimilar to those raised here.
8
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
9