In re C.A. CA2/3

Filed 5/15/23 In re C.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
In re C.A., et al., Persons Coming B323951
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 20CCJP06341E,
FAMILY SERVICES, F)
Plaintiff and Respondent,
v.
GABRIEL P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Nancy Ramirez, Judge. Reversed with
directions.
Michael C. Sampson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Principal
Deputy County Counsel for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Gabriel P. (father) appeals from an order terminating his
reunification services as to his two children. Father raises two
contentions on appeal. First, the juvenile court erred in finding
that the Los Angeles County Department of Children and Family
Services (DCFS) provided reasonable reunification services to
him. Second, DCFS conducted an inadequate inquiry into the
children’s Indian ancestry, under the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) and related California law.
Because we find that DCFS failed to provide reasonable
reunification services to father, we reverse the order.
BACKGROUND
I. The petitions and adjudication
The family consists of mother, father, C.A. (born September
2020), and K.P. (born September 2021). Mother and father were
never married. Father is C.A.’s alleged father and K.P.’s
presumed father.
Mother and father’s history of domestic violence brought
the family to DCFS’s attention. That history included an
incident in November 2020 during which father assaulted mother
and brandished a pocketknife at her while she was holding C.A.
Father was arrested as a result of that incident.
2
In December 2020, DCFS filed a petition as to C.A. under
Welfare and Institutions Code1 section 300 alleging that the
parents’ domestic violence placed C.A. at risk of serious physical
harm, damage, and danger (§ 300, subd. (a); count a-1) and
mother failed to protect C.A. from father’s violence (§ 300, subd.
(b); count b-1).2 At the detention hearing, the court noted that
father and mother were living together when C.A. was born and
father was present for C.A.’s birth, but he had not signed the
birth certificate. The court thus said that father would likely
qualify as a presumed father but nonetheless deferred paternity
findings. The court detained C.A. from father and mother,
ordered monitored visits with father, and released C.A. to home
of mother.3
When K.P. was thereafter born in September 2021, DCFS
filed a separate petition as to him and an amended petition as to
C.A. Both petitions were based on mother and father’s history of
domestic violence and alleged a new incident occurring in May
2021 during which father held an ice pick to mother’s stomach
while she was holding C.A. and was pregnant with K.P. The
juvenile court later sustained allegations in those petitions
against father and mother.
The juvenile court held the adjudication hearing on October
15, 2021. The juvenile court found that father was K.P.’s
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2 Mother’s four older children were also subjects of the
petition, but they are not subjects of this appeal.
3 Both children were later removed from mother’s home.
3
presumed father, ordered reunification services for mother and
father, and ordered monitored visits for father. Father was
ordered to submit to weekly drug tests, to take a 52-week
domestic violence program, and to take anger management and
parenting classes. The six-month review hearing was scheduled
for April 19, 2022, but continued to June 2, 2022.
II. History of contact between DCFS and father
Throughout the proceedings, father was generally
unresponsive to social workers. Early in the proceedings and
before reunification services had been ordered, father did not
respond to phone calls. On February 16, 2021, for example, a
social worker left a voicemail for father and emailed him
instructions about DNA testing, but father did not respond to the
voicemail and the email message was “undeliverable.” Father did
not respond to another email sent on February 23, 2021.
However, mother told the social worker that father was
incarcerated. According to an inmate locator search, father was
released on March 5, 2021, and the social worker unsuccessfully
tried to call father at phone numbers paternal grandmother had
provided. Then, on March 23, 2021, paternal grandmother
reported that father was serving a three-month sentence.
On June 16, 2021, father did not answer another call from
the social worker. In August 2021, father called the social worker
from a number different than ones he had previously provided
and asked for information about DNA testing. When the social
worker asked about father’s programs, he said he would let her
know. A social worker visited father at paternal grandmother’s
house on October 5, 2021. Father said he wanted to visit C.A.,
but he did not want to pursue DNA testing to establish that he
was C.A.’s biological father because he did not have
4
identification. Father also agreed to random drug tests, and
although the social worker said she would send instructions to
his cell phone, it is unclear if she did so.
During most of the reunification period, which began on
October 15, 2021, social workers had no contact with father. On
February 18, 2022, mother told a social worker that father was
incarcerated, but she did not know his release date. On March
29, 2022, mother told the social worker that father had been
transferred from federal prison to a jail in downtown Los
Angeles.
On April 13, 2022, just before the six-month reunification
period was to end, the social worker called the jail facility where
father was incarcerated to ask if he had been able to take classes
there, but the social worker was told to call another day. The
social worker called back the next two days but was unable to
speak to anyone at the facility because the phone was
disconnected between call transfers and the person in charge was
unavailable to provide information. The social worker left
messages for father on a number that had been provided in
January and February 2022 but the calls were not returned. The
social worker learned that father had been released from jail on
April 21, 2022. But father did not respond to calls the social
worker made to him on April 29 and May 4, 2022.
III. Termination of reunification services
The section 322.21, subdivision (e), review hearing was
continued from April 19 to June 1 and 2, 2022. At the hearing,
father asked the court to find that DCFS had not provided
reasonable services, pointing out that, per the title XX’s, the
social worker had contact with father on October 5, 2021, and
5
then provided no further services until April 2022, when the
social worker made a few phone calls.
Over father’s objection, the court terminated father’s
reunification services but continued mother’s services. In
terminating father’s services, the court said it relied on the
history of the case, DCFS’s efforts to reach out to father, and
father’s failure to follow up with DCFS. The court also noted that
father had been in and out of facilities, had not visited the
children, and had made no efforts to communicate with DCFS.
Because mother’s reunification services were not
terminated, a section 366.26 hearing was not scheduled.
IV. ICWA
Throughout the proceedings, mother and father
consistently denied Indian ancestry. The court found C.A. and
K.P. were not Indian children.
DISCUSSION
I. Reunification services
Father’s primary contention is that DCFS did not provide
reasonable reunification services to him, and therefore the
juvenile court erred by terminating services. As we now explain,
we agree.
Subject to exceptions not relevant here, the court is
required to provide reunification services whenever a child is
removed from parental custody. (§ 361.5, subd. (a).) The purpose
of such services is to eliminate the conditions leading to loss of
custody and to facilitate parent-child reunification, thus
furthering the goal of preserving families, whenever possible. (In
re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
6
Where, as here, the case involves children under the age of
three when removed from parental custody, reunification services
are presumptively limited to six months and generally shall not
exceed 12 months. (§ 361.5, subd. (a)(1)(B).) If the child cannot
be safely returned home, the court shall terminate the parent’s
reunification services and set a hearing to terminate parental
rights unless the court finds either that the child is likely to be
returned home by the 18-month hearing, or that “reasonable
services have not been provided to the parent.” (§ 366.21,
subd. (g)(1).) A reasonable services finding shall be made by clear
and convincing evidence. (§ 366.21, subd. (g)(4).)
We review a reasonable services finding for substantial
evidence based on that clear and convincing standard. (In re
M.F. (2019) 32 Cal.App.5th 1, 14, disapproved on another ground
by Michael G. v. Superior Court (2023) 14 Cal.5th 609, 631, fn. 8.)
In determining whether substantial evidence supports the court’s
reasonable services finding, we review the record in the light
most favorable to the finding and draw all reasonable inferences
from the evidence to support it. (M.F. at p. 14.) We do not
reweigh the evidence or exercise independent judgment, and the
burden is on the appellant to show that the evidence is
insufficient to support the court’s findings. (Ibid.)
To support a finding that reasonable services were offered
or provided, the record should show that DCFS identified the
problems leading to the loss of custody, offered services designed
to remedy those problems, maintained reasonable contact with
the parent during the reunification period, and made reasonable
efforts to assist the parent in areas where compliance proved
difficult. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676,
691.) The standard whether services were reasonable considers
7
the circumstances at issue and not those existing in an ideal
world. (Id. at p. 692.)
Moreover, a parent’s incarceration does not disqualify that
parent from receiving services. (Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1011–1012.) Exerting reasonable efforts for
an incarcerated parent includes maintaining reasonable contact
with the parent, assisting the parent with accessing services by
determining the availability of services at the institution,
notifying the institution that the incarcerated parent needs
reunification services, and exploring whether housing changes
are possible to facilitate provision of services. (Id. at pp. 1012–
1013.)
Here, the court ordered father to have reunification
services beginning October 15, 2021, so the six-month
reunification period ran until April 15, 2022, although the review
hearing was not held until June 1 and 2, 2022. From October 15,
2021 until April 15, 2022, the record shows that DCFS made just
three attempts to contact father, on April 13, 14, and 15, 2022.
Those attempts occurred within a week of the originally
scheduled six-month review hearing and therefore were belated
at best. Otherwise, the record does not show that DCFS provided
any services to father or tried to connect him with any programs.
These efforts were untimely and unreasonable. (See, e.g., T.J. v.
Superior Court (2018) 21 Cal.App.5th 1229, 1242–1248 [delay in
providing services was unreasonable], disapproved on another
ground by Michael G. v. Superior Court, supra, 14 Cal.5th at
p. 631, fn. 8.)
DCFS concedes that these efforts were “not ideal” and “late
to start.” Nonetheless, DCFS argues that they were reasonable
when placed in historical context. DCFS thus asserts that the
8
social worker made more than just three attempts in April 2022
to contact father, stating that a social worker also left voice
messages for father in January and February 2022 to which he
never responded. The record does not support that assertion.
Instead, the record shows that the social worker left messages for
father in April 2022 at a number “which was provided to [DCFS]
in late January and mid February of 2022.” Thus, DCFS had
contact information for father in January and February 2022 but
did not use it until months later.
DCFS also argues that it made additional efforts to provide
services to father after April 15, 2022, and before the continued
review hearing in June 2022. Those efforts consisted of two
phone calls, one on April 29 and the second on May 4, 2022.
Those phone calls also were untimely and, even assuming that
the social worker had been able to contact father, he could not
have been provided services in a timely fashion.
DCFS also points out that father was in and out of custody
during the reunification period and failed to keep it advised of his
address. However, incarcerated parents are entitled to
reunification services in the absence of a finding of detriment to
the children. (See generally § 361.5, subd. (e)(1).) DCFS cannot
simply conclude that “father is in prison; he knows what the
requirements of his case plan are; he was imprisoned before any
referrals were made; he says no services are available to him; and
being unaware of any resources to assist the incarcerated parent
with reunification, [DCFS] need not take any action to facilitate
the reunification process.” (Mark N. v. Superior Court, supra, 60
Cal.App.4th at p. 1013.)
Also, the record shows that DCFS knew where father was
incarcerated. On February 18, 2022, mother told DCFS that
9
father was in federal prison. She then told DCFS, on March 29,
2022, that father had been transferred from federal prison to a
downtown jail. Therefore, DCFS was aware of father’s
whereabouts but apparently did nothing with that information.
In any event, DCFS has resources to locate incarcerated parents;
yet, the record does not show that it availed itself of them in a
timely manner.
To be sure, the entirety of the record, including events
preceding the reunification period, suggests that father did not
respond to DCFS’s minimal efforts to contact him. Even so, we
cannot agree with DCFS’s characterization of father’s behavior as
deliberately evasive. Rather, it is unclear whether father had a
reliable phone number. And while father can certainly be faulted
for failing to remain out of custody, his incarceration can hardly
be characterized as a deliberate attempt to avoid DCFS. Indeed,
father told a social worker in October 2021 that he wanted to see
C.A. and would drug test. The record therefore does not show he
was unamenable to receiving services or refused services
outright. (See, e.g., In re K.C. (2012) 212 Cal.App.4th 323, 330
[father never placed in position where refusal possible because
services were never offered]; see In re T.J. v. Superior Court,
supra, 21 Cal.App.5th at pp. 1240–1241 [social worker’s doubt
about outcome of services does not excuse failure to provide
them].) Indeed, DCFS did not try to help father obtain services,
much less maintain reasonable contact with him during the
service plan. (See generally Kevin R. v. Superior Court, supra,
191 Cal.App.4th at p. 691.)
II. Alleged father status
DCFS next argues that any failure on its part to provide
father with reasonable reunification services is of no moment
10
because he was only C.A.’s alleged father and, as such, not
entitled to reunification services. Therefore, DCFS asserts that
the order should be affirmed as to C.A.
A father’s rights and the extent to which he may
participate in dependency proceedings depend on his status as a
biological, alleged or presumed father. (In re H.R. (2016) 245
Cal.App.4th 1277, 1283.) A presumed father ranks highest, as he
has received the child into his home and openly held out the child
as his natural child, thereby demonstrating a full commitment to
parental responsibilities, emotional, financial, and otherwise.
(Ibid.; In re Jovanni B. (2013) 221 Cal.App.4th 1482, 1488.) In
contrast, a biological father has established paternity but has not
established presumed father status. (In re H.R., at p. 1283.) An
alleged father may be the child’s father but has not established
biological paternity. (Ibid.) Only presumed fathers are entitled
to appointed counsel and, absent a detriment finding,
reunification services. (Ibid.)
Although Gabriel P. was only C.A.’s alleged father, the
court treated him as a biological or presumed father by ordering
reunification services be provided to him. The court also said at
the detention hearing that because father lived with mother
when C.A. was born and was at her birth, father likely would
qualify as a presumed father. Under these circumstances, and
because we are reversing termination of reunification services as
to K.P., we reverse the order as to C.A. as well.
III. ICWA
Father also contends that DCFS did not comply with its
duty of initial inquiry under ICWA and related state law because
it did not ask extended family members about the children’s
possible Indian ancestry. However, after this appeal was filed,
11
the juvenile court, on February 14, 2023, ordered DCFS to
interview or attempt to interview extended family members
about whether the children may be Indian children, to document
those efforts, and to submit a report about the results to the
juvenile court.4 This order accordingly renders father’s appeal as
to the ICWA findings moot.5 (See generally In re D.P. (2023) 14
Cal.5th 266.)
4 We grant DCFS’s request for judicial notice of the February
14, 2023 minute order. (Evid. Code, § 452.)
5 Because the appeal as to this issue is moot, we deny
DCFS’s partial motion to dismiss the appeal.
12
DISPOSITION
The order terminating Gabriel P.’s reunification services is
reversed with directions to reinstate services.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
13