Filed 12/2/13 Eric S. v. Superior Court CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ERIC S.,                                                         D064463

         Petitioner,                                             (San Diego County
                                                                 Super. Ct. No. SJ12789)
         v.

THE SUPERIOR COURT OF
SAN DIEGO COUNTY,

         Respondent;


SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,

         Real Party in Interest.



         Proceedings for extraordinary relief after reference to a Welfare and Institutions

Code section 366.26 hearing. Garry G. Haehnle, Judge. Petition denied; request for stay

denied.
       Dependency Legal Group of San Diego and John P. McCurley for Petitioner.

       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Paula J. Roach, Deputy County Counsel, for Real Party in Interest

San Diego County Health and Human Services Agency.

       Dependency Legal Group of San Diego and Amanda J. Gonzales for Real Party in

Interest Chloe S., a Minor.



       Eric S. seeks writ review of juvenile court orders granting a writ petition filed by

his daughter, Chloe S., under Welfare and Institutions Code1 section 388, subdivision

(c)(1)B), terminating his reunification services and referring the matter to a section

366.26 hearing. We deny the petition and deny the request for a stay of the proceedings.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On July 30, 2012, the San Diego County Health and Human Services Agency (the

Agency) petitioned under section 300, subdivision (b) on behalf of five-year-old Chloe,

alleging her mother, C.A., was mentally ill and incapable of providing regular care.

       The social worker reported Eric lives in Los Angeles County and had a voluntary

services case there due to domestic violence. Eric admitted domestic violence in his

relationships with his current girlfriend and with C.A., and admitted he had been jailed

and was currently on probation for domestic violence. He had not fully completed his

voluntary services case in Los Angeles regarding two other children. He admitted



1      Statutory references are to the Welfare and Institutions Code.
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smoking marijuana and said he had a marijuana card. He indicated he was interested in

having Chloe placed with him.

       At the jurisdictional/dispositional hearing the court ordered custody removed from

the parents, declared Chloe a dependent child of the court, ordered reunification services

for C.A. and Eric, and ordered Chloe placed in relative care. She was placed with her

maternal grandmother (the grandmother).

       Chloe's therapist reported Chloe showed anxiety, fear, grief and loss, guardedness,

avoidance and over-compliance caused by her exposure to domestic violence and C.A.'s

drug use and neglect. The therapist said Chloe was afraid of being removed from the

grandmother and said she wanted to return to C.A. when it was safe.

       During the first six months of the dependency case, Eric did not travel to

San Diego to see Chloe. Chloe was indifferent to his telephone calls and said she did not

know him and had nothing to say to him. Eric said he wanted to work on developing a

bond with Chloe and would like the Agency to help by facilitating visits.

       At the six-month-review hearing on March 27, 2013, the court ordered continued

reunification services and set a 12-month hearing.

       On June 21, 2013, Chloe's counsel petitioned under section 388, subdivision

(c)(1)B), requesting the court terminate Eric's and C.A.'s reunification services. The

petition stated Chloe needs stability and permanency, C.A. no longer wished to

participate in services, Eric's contact with Chloe was inconsistent and limited, and Chloe

sometimes said she did not want to talk with him.



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       Chloe's therapist reported Chloe's fear and insecurity had lessened through therapy

and she was thriving in the grandmother's care. The social worker said Eric had made

only minimal progress since the time of the six-month review hearing. He had come to

San Diego to visit Chloe only twice, and said he was working on obtaining more stable

transportation so he could visit more often. At first, after the six-month hearing, he had

called her every week, but the frequency of his calls soon decreased. He said he did not

want to disrupt Chloe's placement with the grandmother, but wanted to continue to be

able to visit her.

       The court ordered an evidentiary hearing on Chloe's petition. At the hearing on

the petition on August 9, 2013, the parties stipulated that if Eric were to testify, he would

say he had his first in-person visit with Chloe in March 2013 and a second visit in April.

A third visit did not take place because he lacked transportation. He would say he had

called multiple times after his first visit, but was uncomfortable leaving messages

because of his relationship with the grandmother. He had problems reaching Chloe and

did not believe the grandmother would facilitate contact with her.

       If the social worker were to testify, she would state Chloe did not appear to be

afraid of Eric, but to enjoy her two visits with him. She would say Chloe told her that at

times she did not want to talk with Eric because she was busy and she did not know him

or know what to say. The social worker suggested topics to talk about and Chloe

discussed these issues with her therapist. The social worker would say Eric did not ask

for assistance with transportation, and every time he requested her help, she followed up

on his request.

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       The parties stipulated that if the grandmother were to testify, she would say Eric

telephoned about once each month, he did not leave messages, and, if she saw he had

called, she would ask Chloe if she would like to call him back. She would say Eric last

called on Fathers' Day and he never sent any letters.

       After considering the evidence and argument by counsel, the court found Eric had

been provided with reasonable services and he had made minimal efforts to contact

Chloe. It found because of his lack of action, it was reasonably likely that reunification

would not occur by the 12-month date. It terminated services and set a section 366.26

hearing.

       Eric petitioned for review of the juvenile court's orders. (§ 366.26, subd. (l); Cal.

Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency

responded and the parties waived oral argument.

                                       DISCUSSION

       Eric contends the court abused its discretion by holding a hearing on Chloe's

petition. He also argues there was insufficient evidence to support the order granting the

petition and insufficient evidence to support finding he had failed to visit Chloe, and the

court erred and violated his right to due process by granting the petition without finding

by clear and convincing evidence that placing Chloe with him would be detrimental. He

further claims he did not receive reasonable reunification services, and the court erred by

not making a finding regarding Chloe's best interests.




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A. Legal Principles

       When a juvenile court removes a child who is three years old or older from

parental custody, the parents are generally entitled to 12 months of reunification services.

(§§ 361.5, subd. (a)(1)(A), 366.21, subd. (f).) However, a party may petition under

section 388, subdivision (c) for the court to terminate services before the 12-month date.

Section 388, subdivisions (c)(1)(B) and (c)(3) provide the court shall terminate

reunification services if it finds the actions or inactions of the parent have created a

substantial likelihood that reunification will not occur and that reasonable services were

offered or provided. In making its determination, the court considers factors such as the

parent's failure to visit the child or participate regularly and make substantive progress in

a court-ordered treatment plan. (§ 388, subd. (c)(1)(B); In re Katelynn Y. (2012) 209

Cal.App.4th 871, 880.)

B. Application

1. Prima Facie Finding on the Section 388 Petition

       Eric first contends the court abused its discretion by holding a hearing on the

section 388 petition because Chloe's counsel did not make a prima facie showing. This

argument is moot because the hearing was held and the court made a determination on

the evidence. It is the court's decision from the evidentiary hearing that affects Eric's

rights, not the decision to hold the hearing. (See In re Richard D. (1972) 23 Cal.App.3d

592, 595.)




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2. Sufficiency of the Evidence to Grant the Petition

       Eric contends insufficient evidence supports the court's decision to grant the

petition. He argues there was not sufficient evidence to support finding he had failed to

visit Chloe in that he called her at least once each month and twice visited her in person.

       Eric's argument lacks merit. The statute does not require, as he suggests, that the

parent completely fail to visit, but that his or her actions or inactions have created a

substantial likelihood that reunification will not occur. Eric had only a minimal

relationship with Chloe and he did very little during the dependency period to remedy

this situation. During the first six months of the case, he had no face-to-face visits with

Chloe and during the second reporting period had only two in-person visits, and,

according to the grandmother, called only a handful of times and did not leave messages.

He last talked with Chloe in June, almost two months before the hearing on the petition.

       At the six-month hearing the court commented that the case was not progressing

as it should. Eric's counsel said Eric was aware of the problem and that she had

discussed with him and his relatives the urgent need for Eric to take a more proactive

role. She reported Eric understood and said he would take more initiative to visit and call

Chloe. In the July 2013 addendum report, the social worker said that at first after the six-

month review hearing, Eric followed through with his promise to make a greater effort to

come to San Diego to visit and be more consistent with telephone calls, but

"unfortunately, this pattern did not last too long, and it became difficult for [Eric] to

continue the initial forward progress." Moreover, Eric did not bring his transportation

difficulties to the Agency's attention until about one month before the hearing. His

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argument he did not leave messages because of his poor relationship with the

grandmother is not persuasive. If he wanted a relationship with Chloe it was his

responsibility to take the initiative to help it happen. Substantial evidence supports

finding that Eric did not have regular, consistent visitation with Chloe and made only

minimal efforts to contact her, and there was not a substantial likelihood of her returning

to parental custody by the 12-month date.

3. Termination of Reunification Services without a Finding of Detriment

       Eric asserts because he was the non-offending, non-custodial parent in this case,

the court violated his due process rights by terminating his reunification services and

setting a section 366.26 hearing without finding by clear and convincing evidence that

placing Chloe with him would be detrimental to her safety and well being.

       The court complied with the substantive and procedural requirements by finding at

the six-month review hearing by a preponderance of the evidence that returning Chloe to

parental custody would create a substantial risk of detriment to her physical and

emotional well being. This finding was supported by substantial evidence. In addition

the court found by clear and convincing evidence that Eric's inaction created a substantial

likelihood that reunification would not occur. Eric had little relationship with Chloe and,

although he first indicated he wanted placement, he never asked for her to be placed with

him, but said his main concern was that Chloe be with family and agreed she should be

placed with the grandmother as long as he could visit her. No further finding of

detriment at the hearing on the section 388 petition was required. (§ 361.2, subd. (a), see

Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628.)

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       Eric's reliance on In re Manolito L. (2001) 90 Cal.App.4th 753 is misplaced. In

In re Manolito L., the reviewing court held that when a social services agency petitions

under section 388, subdivision (a) to suspend a parent's visitation pending a section

366.26 hearing, the court must make a finding of detriment. (In re Manolito L., supra, 90

Cal.App.4th at pp. 759-760.) Section 366.21, subdivision (h) requires "[t]he court shall

continue to permit the parent . . . to visit the child pending the [section 366.26] hearing

unless it finds that visitation would be detrimental to the child." This holding is

inapplicable here because this case does not involve a termination of visitation. The

requirement of a finding of detriment also is not required as Eric suggests by the

California Rules of Court. Eric has not shown a denial of due process.

4. Reasonable Reunification Services

       Eric's argument that he did not receive reasonable reunification services is

unpersuasive. Substantial evidence supports the court's finding that reasonable

reunification services were provided.

       Eric argues that although conjoint therapy was part of his services plan, this

component of the plan was not employed. However, conjoint therapy could not be

implemented until the social worker and Chloe's therapist determined it was appropriate.

Chloe was emotionally fragile and was in therapy because of the trauma she had

experienced in C.A.'s care. She feared she would be removed from the grandmother, and

Eric had had little contact or communication with her before the time of the hearing.

Conjoint therapy would not have been appropriate. Further, Eric had great difficulty

travelling to San Diego to visit and there was no showing that he would have had more

                                              9
success in attending conjoint therapy sessions. Substantial evidence supports the finding

that Eric received or was offered reasonable reunification services.

5. Lack of a Finding as to Chloe's Best Interests

       We also reject Eric's argument that the court erred by not making a finding as to

Chloe's best interests. It can be implied that the court considered Chloe's best interests in

making its decision. The court commented on the absence of a bond between Chloe and

Eric and on Eric's failure to stay in contact with her and develop a relationship. Chloe

needed stability and a permanent home and was making progress in therapy to overcome

the trauma she had endured in the C.A.'s care. Eric had not shown he was interested in

being her full-time parent. The court's comments showed it took into account Chloe's

best interests in making its decision.

       Substantial evidence supports the court's findings. Eric has not shown error by the

court granting Chloe's petition under section 388, subdivision (c)(1)(B), terminating

reunification services and setting a section 366.26 hearing.




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                                     DISPOSITION

      The petition is denied. The request for stay is denied.




                                                            NARES, J.

WE CONCUR:


BENKE, Acting P.J.


AARON, J.




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