Filed 4/30/14 In re Alaina C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ALAINA C., a Person Coming Under the Juvenile Court Law. D064846 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3574) Plaintiff and Respondent,
v.
EMILIO C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Carol
Isackson, Judge. Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant Emilio C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Susan Lake, under appointment by the Court of Appeal, for Minor. Emilio C. appeals a juvenile court order terminating his reunification services
regarding his daughter, Alaina C. He contends that the court erred by finding that
reasonable services were provided to him, and the court abused its discretion by
terminating his reunification services while continuing services for Alaina's mother,
Teresa C. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On July 10, 2012, the San Diego County Health and Human Services Agency (the
Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b)1 on
behalf of four-year-old Alaina, alleging that Teresa was mentally ill and that she had been
placed on a psychiatric hold after being stopped by law enforcement for driving with
Alaina on her lap. Teresa told the officer who conducted the traffic stop that she was
teaching Alaina how to drive. The petition further alleged that Emilio was unable to
protect and supervise Alaina.
Teresa had been acting strangely on the day of the incident. When a deputy sheriff
was called to the home, Teresa refused to talk with him or the apartment manager, but
said she was "the queen" and offered him a toy queen. However, the deputy determined
that Alaina appeared well cared for and left the apartment. Deputies later stopped Teresa
as she was driving her car with Alaina sitting unrestrained on her lap. Emilio was
working in Northern California at the time, and had left Alaina in Teresa's care.
1 Statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 Teresa had previously been diagnosed as suffering from chronic paranoid
schizophrenia. Two years before the incident, Emilio had taken her to a hospital because
she was having delusions. At that time, the Agency advised Emilio to seek custody of
Alaina because of concerns about her safety in Teresa's care, but Emilio maintained that
Teresa was stable when she took her medication and said that she was doing better. In
the view of hospital staff, however, Teresa's mental condition was deteriorating. She
spent a month in the hospital before she responded successfully to medication and was
released.
At the jurisdictional hearing on August 16, 2012, the court found the allegations of
the petition to be true. On October 31, 2012,2 the court declared Alaina a dependent
child, removed her from her parents and ordered her placed in foster care. Teresa's case
plan required her to comply with medical and psychological treatment to ensure her
stable mental health. Emilio's case plan goal was for him to protect Alaina by never
leaving her in Teresa's care, and to arrange for childcare during the time that he had to go
to work. In addition, Emilio was required to participate in counseling to learn to better
understand Teresa's mental illness and the harm that it could pose to Alaina. Each parent
was granted visitation, and the social worker was given discretion to expand visits.
For the six-month hearing, the social worker reported that Teresa had participated
in the provisions of her case plan and that in February, Teresa began having unsupervised
visits with Alaina. Emilio had been attending weekly therapy. His therapist said that he
2 The dispositional hearing had been delayed to allow the provision of notice under the Indian Child Welfare Act (25 U.S.C. § 1901). 3 was doing well, but that he denied that Teresa had been diagnosed with schizophrenia.
Although Emilio had been granted unsupervised visitation with Alaina, he did not visit
consistently and frequently cancelled visits, saying that he had another appointment, had
car trouble, or providing some other reason. On May 20, 2013, the Agency reported that
Teresa had recently been hospitalized because her mental health was deteriorating, and
that although Emilio had been aware of her condition, he did not report it to the Agency
and did not use the support system that had been set in place.
At the six-month hearing on June 6, 2013, the court ordered six more months of
services and specified that Emilio would continue to have unsupervised visits.
On July 25, 2013, Emilio was detained by the United States Department of
Immigration. Staff at the Metropolitan Correctional Center (MCC) in San Diego reported
that it was expected that Emilio would be deported to Mexico. The social worker
reported that Emilio had been participating in therapy before his incarceration, but that he
did not consistently visit Alaina. The social worker attempted to contact a counselor at
MCC to inquire about services available to Emilio, but was unsuccessful in reaching a
counselor.
Emilio indicated that he wanted continued services and unsupervised visits if he
were released from custody. He did not want Alaina to visit him while he was
incarcerated, but asked for telephone visits. The court ordered the Agency to provide
Emilio with a telephone calling card so that he could call Alaina from MCC.
At the 12-month hearing on October 10, 2013, the court received the Agency's 12-
month report in evidence. The parties stipulated that if the social worker were to testify,
4 she would say that Emilio remained in custody and that his sentencing hearing was
scheduled for December 2, 2013. After considering the evidence and arguments by
counsel, the court found that Teresa had made substantive progress with the provisions of
her case plan and ordered her services continued to the 18-month date. The court also
found that reasonable services had been offered to Emilio, but that he had not made
substantive progress with his case plan, and that it was not likely that Alaina could be
returned to his care by the 18-month date. For these reasons, the court terminated
Emilio's services.
DISCUSSION
I
Emilio contends that the court erred in finding that he was provided with
reasonable reunification services. He argues that no evidence was presented to show that
he was offered any services while he was incarcerated. He maintains that he had been
progressing with his case plan until his incarceration, and that the Agency had not
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Filed 4/30/14 In re Alaina C. 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 ALAINA C., a Person Coming Under the Juvenile Court Law. D064846 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3574) Plaintiff and Respondent,
v.
EMILIO C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Carol
Isackson, Judge. Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant Emilio C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Susan Lake, under appointment by the Court of Appeal, for Minor. Emilio C. appeals a juvenile court order terminating his reunification services
regarding his daughter, Alaina C. He contends that the court erred by finding that
reasonable services were provided to him, and the court abused its discretion by
terminating his reunification services while continuing services for Alaina's mother,
Teresa C. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On July 10, 2012, the San Diego County Health and Human Services Agency (the
Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b)1 on
behalf of four-year-old Alaina, alleging that Teresa was mentally ill and that she had been
placed on a psychiatric hold after being stopped by law enforcement for driving with
Alaina on her lap. Teresa told the officer who conducted the traffic stop that she was
teaching Alaina how to drive. The petition further alleged that Emilio was unable to
protect and supervise Alaina.
Teresa had been acting strangely on the day of the incident. When a deputy sheriff
was called to the home, Teresa refused to talk with him or the apartment manager, but
said she was "the queen" and offered him a toy queen. However, the deputy determined
that Alaina appeared well cared for and left the apartment. Deputies later stopped Teresa
as she was driving her car with Alaina sitting unrestrained on her lap. Emilio was
working in Northern California at the time, and had left Alaina in Teresa's care.
1 Statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 Teresa had previously been diagnosed as suffering from chronic paranoid
schizophrenia. Two years before the incident, Emilio had taken her to a hospital because
she was having delusions. At that time, the Agency advised Emilio to seek custody of
Alaina because of concerns about her safety in Teresa's care, but Emilio maintained that
Teresa was stable when she took her medication and said that she was doing better. In
the view of hospital staff, however, Teresa's mental condition was deteriorating. She
spent a month in the hospital before she responded successfully to medication and was
released.
At the jurisdictional hearing on August 16, 2012, the court found the allegations of
the petition to be true. On October 31, 2012,2 the court declared Alaina a dependent
child, removed her from her parents and ordered her placed in foster care. Teresa's case
plan required her to comply with medical and psychological treatment to ensure her
stable mental health. Emilio's case plan goal was for him to protect Alaina by never
leaving her in Teresa's care, and to arrange for childcare during the time that he had to go
to work. In addition, Emilio was required to participate in counseling to learn to better
understand Teresa's mental illness and the harm that it could pose to Alaina. Each parent
was granted visitation, and the social worker was given discretion to expand visits.
For the six-month hearing, the social worker reported that Teresa had participated
in the provisions of her case plan and that in February, Teresa began having unsupervised
visits with Alaina. Emilio had been attending weekly therapy. His therapist said that he
2 The dispositional hearing had been delayed to allow the provision of notice under the Indian Child Welfare Act (25 U.S.C. § 1901). 3 was doing well, but that he denied that Teresa had been diagnosed with schizophrenia.
Although Emilio had been granted unsupervised visitation with Alaina, he did not visit
consistently and frequently cancelled visits, saying that he had another appointment, had
car trouble, or providing some other reason. On May 20, 2013, the Agency reported that
Teresa had recently been hospitalized because her mental health was deteriorating, and
that although Emilio had been aware of her condition, he did not report it to the Agency
and did not use the support system that had been set in place.
At the six-month hearing on June 6, 2013, the court ordered six more months of
services and specified that Emilio would continue to have unsupervised visits.
On July 25, 2013, Emilio was detained by the United States Department of
Immigration. Staff at the Metropolitan Correctional Center (MCC) in San Diego reported
that it was expected that Emilio would be deported to Mexico. The social worker
reported that Emilio had been participating in therapy before his incarceration, but that he
did not consistently visit Alaina. The social worker attempted to contact a counselor at
MCC to inquire about services available to Emilio, but was unsuccessful in reaching a
counselor.
Emilio indicated that he wanted continued services and unsupervised visits if he
were released from custody. He did not want Alaina to visit him while he was
incarcerated, but asked for telephone visits. The court ordered the Agency to provide
Emilio with a telephone calling card so that he could call Alaina from MCC.
At the 12-month hearing on October 10, 2013, the court received the Agency's 12-
month report in evidence. The parties stipulated that if the social worker were to testify,
4 she would say that Emilio remained in custody and that his sentencing hearing was
scheduled for December 2, 2013. After considering the evidence and arguments by
counsel, the court found that Teresa had made substantive progress with the provisions of
her case plan and ordered her services continued to the 18-month date. The court also
found that reasonable services had been offered to Emilio, but that he had not made
substantive progress with his case plan, and that it was not likely that Alaina could be
returned to his care by the 18-month date. For these reasons, the court terminated
Emilio's services.
DISCUSSION
I
Emilio contends that the court erred in finding that he was provided with
reasonable reunification services. He argues that no evidence was presented to show that
he was offered any services while he was incarcerated. He maintains that he had been
progressing with his case plan until his incarceration, and that the Agency had not
presented information to the court regarding the barriers to him accessing services while
he was in custody.
Emilio has forfeited his argument that his services were inadequate during the time
he was in custody by not bringing the matter to the attention of the juvenile court. "A
party forfeits the right to claim error as grounds for reversal on appeal when he or she
fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th
212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if
an objection could have been but was not made in the trial court. [Citation.] . . . [¶]
5 Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287,
1293, fn. omitted.)
After Emilio was arrested on July 25, 2013, he appeared in juvenile court, with
counsel, on three separate occasions, but never argued that the services he was receiving
while in custody were insufficient. If Emilio believed that his services were lacking, it
was his obligation to bring his claim to the court's attention.3
Moreover, even if we were to consider this issue, Emilio has failed to demonstrate
that the court's finding that he was provided with reasonable reunification services is not
supported by substantial evidence.
A reviewing court must uphold a juvenile court's findings and orders if they are
supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-
1037.) "[W]e must indulge in all reasonable inferences to support the findings of the
juvenile court [citation], and we must also ' . . . view the record in the light most
favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973)
31 Cal.App.3d 112, 114.) In determining the sufficiency of reunification services, the
role of the appellate court is to decide "whether the record discloses substantial evidence
which supports the juvenile court's finding that reasonable services were provided or
offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is
3 Emilio appears to argue in his reply brief that he did not forfeit his argument because the juvenile court did not advise him that he could challenge the adequacy of his reunification services by writ. However, Emilio forfeited his claim regarding the reasonableness of his reunification services because he failed to bring the matter to the attention of the juvenile court, not because he did not seek writ review. 6 not that the best possible services were provided, but that reasonable services were
provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Emilio was required to participate in counseling so that he could learn to better
understand Teresa's mental illness and the risks that her illness posed to Alaina. The
Agency helped him set up individual counseling, and he participated in counseling
sessions from September 21, 2012, through July 24, 2013, until just before his
incarceration. After the social worker was informed that Emilio was in custody, she
contacted MCC on August 13, 2013, and learned that a hearing was scheduled for Emilio,
and that he would be deported after the hearing. The social worker attempted to contact a
counselor at MCC, but was not successful. We conclude that the services offered or
provided were reasonable under the circumstances.
Emilio also was provided with reasonable visitation. He was encouraged to visit
Alaina and for much of the dependency period was allowed unsupervised visits, yet he
did not visit regularly and often cancelled visits. Emilio maintains that he was protecting
Alaina by not visiting because he believed that it would be unsafe to drive her after he
injured his arm. We find this contention unpersuasive. The record shows that Emilio's
visits were inconsistent long before his injury, and that he cancelled visits for reasons
such as that he was having car trouble, that he had to move his car, that he had to attend
to paperwork, that he had another appointment, that he had to work, and for other reasons
as well. After his incarceration, Emilio decided that he did not want Alaina brought to
the jail to see him, and instead, asked for telephone visits. The court ordered the Agency
7 to provide him with a calling card. Emilio was given ample opportunity to visit Alaina,
but failed to maintain consistent visits.
Emilio relies on Mark N. v. Superior Court (1998) 60 Cal.App.4th 996 and In re
Maria S. (2000) 82 Cal.App.4th 1032 as support for his argument that there is not
substantial evidence to support a finding that he was provided reasonable services. These
cases are readily distinguishable from Alaina's case. In Mark N. the reviewing court held
that an incarcerated father had not received reasonable reunification services because,
even though he had written to the social worker four or five times during his
incarceration, the social worker had made little effort to maintain contact with him and
did not explore alternatives to help him meet the requirements of his case plan while he
was in prison. (Id. at pp. 1012-1013.) In Mark N., the father was incarcerated for all but
one month of the dependency period. (Id. at p. 1003.) Emilio, by contrast, was not in
custody during most of Alaina's dependency, he and the social worker had frequent
communication, and he participated in individual therapy for several months. After
Emilio was arrested, the social worker contacted MCC to speak with a counselor to
inquire about what services were available to him, but was unsuccessful in making
contact with the counselor. In addition, Emilio was offered visitation throughout the case
even while he was in custody.
In re Maria S, supra, 82 Cal.App.4th 1032 is also distinguishable from the
situation in the present case. In Maria S., the reviewing court held that the evidence did
not support the finding that a mother had received reasonable reunification services. She
had given birth to her daughter while she was incarcerated, and it was expected that she
8 would be deported when she was released from custody. Her case plan anticipated that
her services would begin while she was in prison, and that she would begin the
reunification process after her release. However, there was no evidence that the mother
was offered services while in prison, and she was deported before she could participate in
any services. (Id. at pp 1034, 1040.) Emilio, on the other hand, was not in custody for
most of the dependency period and he participated in services from October 2012 until he
was taken into custody in July 2013. Neither Mark N. nor Maria S. supports Emilio's
position. Emilio has not shown that he was not offered or provided reasonable
reunification services.
II
Emilio asserts that the court abused its discretion by terminating his services while
continuing services for Teresa. He argues that the progress that he and Teresa had made
in their case plans was similar, and notes that the social worker had initially
recommended extending services for six more months for both parents, but changed her
mind once he was incarcerated. He claims that there was no showing that continuing
services for him would be detrimental to Alaina.
Under section 366.21, subdivision (g)(1), a court may continue a case to the 18-
month date only if there is a substantial probability that the child will be returned to the
parent's physical custody and safely maintained in the home by that time. In considering
whether to extend the case to the18-month date, the court must make all of the following
three findings:
"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. 9 "(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.
"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs."
The court's decision whether to terminate services for one parent while extending
services for the other parent is reviewed under the abuse of discretion standard. (In re
Katelynn Y. (2012) 209 Cal.App.4th 871, 881.)
Teresa was released from the hospital on July 7, 2013. At the time of the 12-
month hearing on October 10 she was in biweekly therapy, compliant with her
medication regime, meeting regularly with her psychiatrist and participating in in-home
parenting classes. Her visits with Alaina were going well. Under these circumstances,
the court was justified in extending services for Teresa for an additional six months under
the requirements of section 366.21, subdivision (g)(1).
Emilio's situation was different. The requirements of section 366.21, subdivision
(g), that would allow the court to extend services for him to the 18-month date were not
present. Emilio did not show under section 366.21, subdivision (g)(1)(A), that he had
consistently and regularly contacted and visited with Alaina. Rather, he frequently
cancelled visits for various reasons, and he had not seen Alaina for one and one-half
months prior to his incarceration. After he was in custody, he decided not to have Alaina
visit him in jail, although visitation was offered.
Emilio also did not show under section 366.21, subdivision (g)(1)(C), that he had
the capacity and ability to complete the objectives of his treatment plan and to provide for 10 Alaina's safety, protection, and physical and emotional well-being. The goal of Emilio's
case plan was for him to be able to identify safety risks, including gaining a better
understanding of Teresa's mental illness and the harm that it could pose to Alaina. In
addition, Emilio was required to arrange adequate childcare for the times when he was
working. Although Emilio had been participating in therapy sessions, he still had
difficulty showing how he would keep Alaina safe. Further, he was still unable to
recognize the serious risks that Teresa's mental illness posed for Alaina, and he did not
report to the Agency when Teresa's condition deteriorated in May 2013, nor did he use
the safety plan that had been put in place. At the time of the 12-month hearing, Emilio
was in custody awaiting sentencing and deportation. The requirements of section 366.21,
subdivision (g)(1), clearly were not met.
Although under these circumstances some courts might have ordered Emilio's
services extended to the 18-month date, Emilio has not shown that the court abused its
discretion by terminating his reunification services while continuing Teresa's services.
DISPOSITION
The order is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J. 11