Filed 6/24/13 In re Matthew G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MATTHEW G., a Person Coming Under the Juvenile Court Law. D063140 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ12739) Plaintiff and Respondent,
v.
JOHN M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Garry G.
Haehnle, Judge. Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent. At the six-month review hearing in the juvenile dependency case of Matthew G.,
the juvenile court granted the modification petition of the San Diego County Health and
Human Services Agency (the Agency) (Welf. & Inst. Code, § 388, subd. (c)(3))1 and
terminated reunification services for Matthew's father, John M. John appeals, contending
he was deprived of procedural due process because the petition did not allege that
continued services would be detrimental to Matthew. John also contends the evidence is
insufficient to support the detriment finding; the finding that he was provided reasonable
services; and the finding that his action or inaction created a substantial likelihood
reunification would not occur. We affirm.
BACKGROUND
John began using marijuana in 1999 or 2000, when he was 15 years old. Matthew
was born in July 2005 to L.G., and although John was aware of the pregnancy, he did not
take an interest in Matthew until 2011.
As of 2009 or 2010, John was on probation or parole2 for a domestic violence
conviction. He was also subject to a criminal protective order obtained by the domestic
violence victim, his former girlfriend. The protective order was set to expire April 21,
2013. After 2009, John had no contact with his two children from that relationship. John
1 Further statutory references are to the Welfare and Institutions Code.
2 Various parts of the record are in conflict on this point. 2 claimed he was wrongfully convicted and he was the victim of the domestic violence. He
completed a 52-week domestic violence course in December 2011.
In 2011, John began smoking marijuana for pain management. In November, he
began living with L.G. and Matthew. In January 2012, John attempted to spank Matthew
with a ruler. A metal strip on the ruler struck Matthew's fingers and caused them to
bleed. Matthew said that John hit him "hard" and "he was afraid that [John] was going to
rip my body off."
On the evening of March 2, 2012, Matthew vomited and fainted. L.G. and John
(together the parents) took Matthew to the emergency room. John left the hospital and
L.G. stayed with Matthew. L.G. reported that John had smoked marijuana in the car that
afternoon, while Matthew was in the car. At the hospital, Matthew was unconscious for
six hours and tested positive for marijuana.
In interviews with social workers, Matthew described John's marijuana use and
violence. Matthew said, "[John] told me that [the social worker] was going to take me
away and I was sad and I cried a lot." John denied exposing Matthew to marijuana and
denied any domestic violence. John said he would not have taken Matthew to the
hospital if he had known that Matthew was under the influence of marijuana.
On March 6, 2012, six-year-old Matthew was detained in Polinsky Children's
Center (Polinsky). On March 9, the Agency filed a dependency petition. The petition, as
later amended, alleged that beginning in March, John used marijuana to excess. Matthew
tested positive for marijuana twice. John admitted he used marijuana and had a medical
marijuana card. The parents denied they used marijuana at home or around Matthew.
3 Matthew described how to use a marijuana pipe and where to put the marijuana. He
knew how to inhale the smoke, hold it in and then exhale.
Beginning in February, Matthew was exposed to the parents' violent
confrontations. In Matthew's presence, the parents had an argument that included
slapping. During the argument, John destroyed some items in the house and threw
Matthew's bird cage on the floor, killing the bird. Matthew and L.G. said that John threw
all of their clothes out of the house and told them to leave. John had a history of
domestic violence, including a 2009 altercation with the mother of Matthew's half
siblings.
At the detention hearing, the court ordered liberal, separate visits for the parents,
with supervisors chosen by the Agency, and ordered the Agency to give the parents
referrals to voluntary services. While Matthew was at Polinsky, John had twice-weekly
visits. On March 16, 2012, Matthew was moved to the home of a relative. John visited
Matthew there.
On March 26, 2012, the Agency sent John referrals to a domestic violence
program, individual therapy, a parenting course and substance abuse treatment. On
March 29, the court made true findings on the dependency petition, ordered Matthew
placed with a relative and ordered reunification services for the parents. John's
reunification plan included the four services listed above and supervised visitation. On
April 3, John was incarcerated on charges of burglary and inflicting corporal injury on a
cohabitant. The court authorized a telephone card for John while he was incarcerated,
and ordered visitation consistent with the policy of the facility.
4 In his relative placement, Matthew was hostile and uncooperative and engaged in
self-destructive behavior. As a result, the relative contemplated ending the placement.
The social worker enlisted the help of a therapist to stabilize the placement and, over
several months, Matthew's behavior improved.
Matthew refused to visit John in jail. When asked why, Matthew replied that John
had killed his bird and hurt L.G. Matthew said he was scared when John killed the bird.
For several months, Matthew remained resolute in his refusal to visit John. Meanwhile,
John was moved, several times, to different facilities. In August 2012, Matthew said he
did not want to visit John "because it was too far." The Agency asked John to write
letters or telephone Matthew as a way to increase Matthew's comfort with visitation.
John did not send any letters, and his incarceration apparently precluded telephone calls.
By September 5, 2012, John had been transferred to a prison in Imperial County.3
He told the Agency the prison would not allow him to have any visitors during his
assessment immediately following his transfer. To receive approval for visits after the
assessment, the prison required John to sign forms and send them to the Agency. John
did so, and immediately upon receiving the forms, the Agency sent them to the relative
caregiver. By September 13, the caregiver had completed the forms and sent them to the
prison, and a 30-day waiting period for the prison's approval had begun. The social
worker called the prison to ask for a visit during the waiting period, but received no
3 The record does not include the date of the transfer and does not show any further transfers. 5 response. Meanwhile, the social worker and Matthew's therapists encouraged Matthew to
visit and, by September, Matthew had reluctantly agreed.
As of September 13, 2012, John's incarceration had prevented him from
participating in any services. On October 10, the Agency filed its modification petition
(§ 388, subd. (c)(1)(A) & (B)). The hearing on the petition took place at the November
14 six-month review hearing. By the time of the hearing, there had been no visits
between John and Matthew in jail or prison.
At the hearing, the court received the following stipulated testimony of the social
worker, presented by John's counsel: "[The social worker] received an e-mail from
[John's] counsel stating that her investigator found that [John's] current facility provides
substance abuse programs through [Alcoholics Anonymous (AA)] and narcotic abuse
programs through [Narcotics Anonymous (NA)], anger management, creative conflict
resolution, parenting classes and several religious based education programs. [¶] [John's]
counsel indicated that she received this information from Ken Phillips who worked at the
facility. [The social worker] tried to follow-up with Mr. Phillips . . . . [¶] . . . [¶] [The
social worker] left messages, but Mr. Phillips has never responded. [The social worker]
was able to reach [Rebecca Lores, the litigation coordinator in the warden's office, and
Lores] stated that there were the following programs available to [John]: AA group and
NA group and anger management class."
The court granted the section 388 petition and terminated John's reunification
services. The court continued L.G.'s reunification services and confirmed the March 26,
2013, 12-month review hearing.
6 DISCUSSION
I
Introduction
"When a dependent child is removed from parental custody, the court generally
orders services for the family to facilitate its reunification. [Citations.] Reunification
services for a parent of a dependent child over the age of three are ordinarily limited to 12
months, but may be extended to the 18-month date. [Citation.] A parent, however, has
no entitlement 'to a prescribed minimum period of services.' [Citation.] Instead, the
court has discretion to determine whether continued services are in the best interests of
the minor, or whether services should be terminated at some point before the applicable
statutory period has expired." (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 876.)
" '[R]eunification services are a benefit, not a constitutional entitlement . . . .' " (Id. at
p. 877, quoting In re Jesse W. (2007) 157 Cal.App.4th 49, 60.)
In the case of "a child who, on the date of initial removal from the physical
custody of his or her parent . . . , was three years of age or older" (§ 361.5, subd.
(a)(1)(A)), the Agency may petition for termination of reunification services before the
12-month review hearing (§ 366.21, subd. (f)). A petition is appropriate if "a change of
circumstance or new evidence exists that satisfies a condition set forth in
subdivision . . . (e) of Section 361.5" (§ 388, subd. (c)(1)(A)), or if "[t]he action or
inaction of the parent . . . creates a substantial likelihood that reunification will not occur,
7 including, but not limited to, the parent's . . . failure to visit the child, or the failure of the
parent . . . to participate regularly and make substantive progress in a court-ordered
treatment plan" (id., subd. (c)(1)(B)). "The court shall terminate reunification
services . . . only upon a finding by a preponderance of evidence that reasonable services
have been offered or provided, and upon a finding of clear and convincing evidence that
one of the conditions in subparagraph (A) or (B) of paragraph (1) exists." (Id., subd.
(c)(3).)
Section 361.5, subdivision (e)(1), referred to in section 388, subdivision (c)(1)(A),
states "the court shall order reasonable services [for an incarcerated parent] unless the
court determines . . . those services would be detrimental to the child. In determining
detriment, the court shall consider the age of the child, the degree of parent-child
bonding, the length of the sentence, . . . the nature of the crime . . . , the degree of
detriment to the child if services are not offered . . . , the likelihood of the parent's
discharge from incarceration . . . within the reunification time limitations described in
subdivision (a), and any other appropriate factors." (§ 361.5, subd. (e)(1).) As to section
388, subdivision (c)(1)(B), "[i]n determining whether the parent . . . has failed to visit the
child or participate regularly or make progress in the treatment plan, the court shall
consider factors that include, but are not limited to, the parent's . . . incarceration . . . ."
(§ 388, subd. (c)(2).)
On appeal, we first determine whether the required factual findings are supported
by substantial evidence. (In re M.V. (2006) 146 Cal.App.4th 1048, 1059-1060.) If
substantial evidence supports those findings, we decide whether the juvenile court abused
8 its discretion by terminating reunification services based on the findings. (In re Jasmon
O. (1994) 8 Cal.4th 398, 415.) " ' "The sufficiency of evidence to establish a given fact,
where the law requires proof of the fact to be clear and convincing, is primarily a
question for the trial court to determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal." [Citations.]' [Citation.]
Thus, on appeal from a judgment required to be based upon clear and convincing
evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting
evidence is applied, giving full effect to the respondent's evidence, however slight, and
disregarding the appellant's evidence, however strong.' " (Sheila S. v. Superior Court
(2000) 84 Cal.App.4th 872, 880-881.)
Here, the Agency's petition cited section 388, subdivision (c)(1)(A) and (B) and
alleged the following facts: John was incarcerated with a release date of April 5, 2013.
Because his detention facility did not provide services, he would be unable to complete
domestic violence and drug abuse programs by the 12-month review date. John was a
part of Matthew's life for a short period before the inception of this case, and Matthew
was not emotionally attached to him. John was the primary aggressor in the domestic
violence. Matthew was upset with John's conduct toward L.G. and did not wish to visit
or reunify with him. L.G. was doing well in her services and was likely to reunify with
Matthew by the 12-month date.
The court found reasonable services were offered or provided. The court also
found continued services would be detrimental to Matthew, and John's actions created a
substantial likelihood that reunification would not occur by the 12-month date or the 18-
9 month date. We conclude substantial evidence supports the findings, and the court did
not abuse its discretion by granting the Agency's section 388 petition and terminating
John's reunification services.
II
Reasonable Services
John contends that after he was sent to prison, the social worker did not consult
with him or revise the reunification plan. In the seven months between the time John was
incarcerated and the date of the six-month review hearing, neither he nor his trial counsel
sought adjustment of the plan or complained that services were unavailable.4 (In re
Christina L., supra, Cal.App.4th at p. 416.) On October 11, 2012, John's counsel said,
"nothing in [the Agency's petition] says there aren't services available to [John] at his
current facility . . . . Perhaps he is able to engage in services right now." The stipulated
testimony shows that after John was sent to prison, the social worker attempted to contact
prison personnel and eventually reached a prison employee, who listed the available
services. No consultation with John could have expanded the list to encompass all of the
4 John suggests that the social worker should have sent him a parenting packet and personally provided therapy. We need not discuss these suggestions, made for the first time on appeal. We also decline to discuss John's belated assertions that the case plan did not address "[t]he underlying cause of his problems" and may have included services not provided by the prison. "If [John] felt during the reunification period that the services offered . . . were inadequate, [he] had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan: ' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' " (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) 10 services in his plan. Eliminating unavailable services, such as domestic violence
treatment, would have prevented the plan from addressing the problems that led to the
dependency. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
John asserts the court erroneously believed services were available to him in
prison during the six months preceding the hearing. The record does not support this
assertion. The court stated: "Had [John] been in substance abuse through NA or AA,
taking some anger management class, something to show he made a good faith effort to
take advantage of those services that were available to him, if indeed, they were available
to him, he has not done so." The court also found that John "was able to send letters to
[Matthew] and did not do so." " 'It is . . . well established that "[r]eunification services
are voluntary, and cannot be forced on an unwilling or indifferent parent." ' " (In re
Nolan W. (2009) 45 Cal.4th 1217, 1233, quoting In re Jonathan R. (1989) 211
Cal.App.3d 1214, 1220.) There is no " 'requirement that a social worker take the parent
by the hand and escort him or her to and through [services].' " (In re Nolan W., at
p. 1233, quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
John argues the court incorrectly considered his incarceration as a reason to
terminate services, rather than as a barrier to services.5 The court stated:
5 John cites section 361.5, subdivision (e)(1), which governs the court's order of services for an incarcerated parent. That subdivision states: "In determining the content of reasonable services, the court shall consider the particular barriers to an incarcerated . . . parent's access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the child's case plan." (Id., subd. (e)(1).) The only barriers here were the unavailability of services in the facilities in which John was first incarcerated, and the limited offering of services in the 11 "[I]ncarceration cannot be made . . . an excuse for not being in services. It's [John] who
got himself incarcerated, violated his parole and was sent back to prison for a significant
period of time[, causing] this situation that he's in." This is an accurate statement of the
law. It was John's responsibility to stay out of custody as "a fundamental first step" in the
reunification process. (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162; see also
Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.)
John argues that his incarceration was a barrier to visitation because "Matthew's
concerns about visiting [John] appeared to be intimately tied to [John]'s incarceration."
John notes that before he was incarcerated, the Agency described his visits with Matthew
as "typical" and "normal." That period of visitation was extremely short, as John was
incarcerated only four weeks after Matthew was detained. It was not John's incarceration
that was a barrier to further visits, but rather the trauma he had inflicted upon Matthew.
The social worker suggested that John send letters to increase Matthew's comfort, but
John ignored the suggestion.
" '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.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599,
quoting In re Misako R., supra, 2 Cal.App.4th at p. 547.) Substantial evidence supports
the finding that John was offered or provided reasonable services.
prison where he was housed at the time of the six-month review hearing. There were no barriers at the time of the dispositional hearing, when the court ordered the case plan. 12 III
Detriment
John contends he was deprived of procedural due process because the Agency's
petition did not allege continued services would be detrimental to Matthew. Although the
petition does not contain the word "detriment," it does cite section 388, subdivision
(c)(1)(A), which refers to detriment. The petition also alleges elements of detriment
listed in section 388, subdivision (c)(1)(A), including John's presence in Matthew's life
for a short time; Matthew's lack of an emotional attachment to John; and Matthew's
negative emotional reaction to John's violence. Moreover, in closing argument, John's
counsel cited the detriment provision in 388, subdivision (c)(1)(A). John was not
deprived of procedural due process.
John also contends there were no changed circumstances or new evidence to prove
detriment. John's incarceration and consequent inability to participate in critically
important services, including domestic violence treatment, was a circumstance that had
changed since the dispositional hearing. Matthew's refusal to visit John was another
changed circumstance.
In determining detriment, the focus is on the child. (In re Kevin N. (2007) 148
Cal.App.4th 1339, 1345.) Substantial evidence supports the finding continued services
would have been detrimental to seven-year-old Matthew. John took little interest in
Matthew until he was five or six years old, and did not begin living with Matthew until he
13 was six years old. John hit Matthew with a ruler, causing bleeding; exposed him to
domestic violence; killed a pet bird while Matthew watched; and exposed him to
marijuana smoke, requiring him to be hospitalized. John's brutality traumatized
Matthew. John was incarcerated after living with Matthew for just four or five months,
and was to be released after the 12-month review hearing. L.G. had completed parenting
and drug treatment programs and individual therapy, and was making progress in
domestic violence treatment. She had demonstrated an ability to handle Matthew's
behavior and they were "very close." John speculates that he will interact with Matthew
and L.G. after his release. This will be detrimental to Matthew unless John has been
rehabilitated. There was no evidence the services available to John in prison would
become unavailable if the court terminated his reunification plan.
IV
Likelihood of Reunification
In finding there was not a substantial likelihood of reunification by the 12-month
date, or even the 18-month date, the court cited John's pattern of violence: his "original"
act of domestic violence, his killing of the bird in Matthew's presence, and the continued
violent behavior that led to John's incarceration. The court believed John needed a year-
long domestic violence program and, considering his past conduct in this case, he was not
likely to succeed in the program. The court also noted that John had not written to
Matthew.
The above facts support the finding. John completed a one-year domestic violence
course before he committed the acts of violence that led to this case. He denied
14 responsibility for his violence in his earlier relationship, and denied being violent with
L.G. and Matthew. John ignored the social worker's advice to send letters to Matthew as
a way to decrease Matthew's emotional trauma and make visits possible.
John speculates that he might be released from prison early; he might be moved to
another facility with more services; and Matthew's feelings might change. This
speculation does not undermine the court's conclusion. Substantial evidence supports the
finding that John's actions or inactions created a substantial likelihood that reunification
would not occur.
DISPOSITION
The order is affirmed.
MCDONALD, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.