Filed 12/23/14 Ricardo M. v. Super. Ct. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT



RICARDO M.,                                                                                F070239
                            Petitioner,
                                                                              (Super. Ct. Nos. JD131877,
v.                                                                                    JD131878

THE SUPERIOR COURT OF KERN COUNTY,
                            Respondent;
                                                                                         OPINION

KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,

                            Real Party in Interest.
                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. William D.
Palmer, Judge.
         Margaret H. Smith, for Petitioner.
         No appearance for Respondent.
         Theresa A. Goldner, County Counsel, and Thomas G. Morgan, Deputy County
Counsel, for Real Party in Interest.
                                                        -ooOoo-



*        Before Levy, Acting P.J., Franson, J. and Peña, J.
       At a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd.
(e)),1 in October 2014, the juvenile court terminated Ricardo M.’s reunification services
as to his six-year-old son R.M. and three-year-old daughter L.M. and set a section 366.26
hearing to implement a permanent plan. Ricardo challenges the juvenile court’s setting
order by extraordinary writ petition. (Cal. Rules of Court, rule 8.450.) He contends there
was insufficient evidence to support the juvenile court’s finding that he was provided
reasonable services. He also contends the juvenile court erred in not placing the children
with their paternal grandparents. Ricardo asks this court to issue a writ directing the
juvenile court to vacate its orders terminating his reunification services and setting a
section 366.26 hearing and to order an additional six months of reunification services for
him. We find no error and deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       In December 2013, the department took then five-year-old R.M., two-year-old
L.M., and their eight-week-old half brother Raymond into protective custody after
Ricardo and the children’s mother were arrested for being under the influence of a
controlled substance. The children were placed together in foster care.
       Ricardo told the investigating social worker that he was not Raymond’s biological
father but held Raymond out as his own child. He was aware that the mother used drugs
and that Raymond was born positive for methamphetamine. Ricardo said
methamphetamine was his drug of choice.
       On December 27, 2013, the juvenile court convened the initial hearing. Ricardo
appeared and the court appointed him counsel. The court continued the hearing because
the mother was not present to testify as to Ricardo’s paternity status. The court deemed
Ricardo the children’s alleged father and granted him visitation pending the next hearing.



1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                              2
       Following the initial hearing, family services social worker Juan Arredondo met
with Ricardo to discuss services. Ricardo agreed to participate in counseling for child
neglect, parenting, substance abuse, and anger management. He signed a copy of his
services plan and was given a copy of it. On that same day, Arredondo referred Ricardo
to the Kern County Mental Health Gatekeeper and to College Community Services for
anger management and parenting. Ricardo completed a substance abuse assessment and
was assessed as needing a “level 3” plan of care. His intake appointment was scheduled
for January 8, 2014.
       On January 3, 2014, Ricardo and mother appeared at the continued initial hearing.
The juvenile court ordered the children detained and elevated Ricardo to presumed father
status. The court ordered weekly supervised visitation for both parents.
       On January 17, 2014, Ricardo’s parents (paternal grandparents) submitted an
application for placement of the children. On January 28, 2014, Ricardo and the mother
were involved in a physical confrontation and were arrested.
       On February 10, 2014, the juvenile court convened the jurisdictional hearing.
Neither Ricardo nor the mother personally appeared. The juvenile court adjudged the
children its dependents under section 300, subdivision (b). The paternal grandparents’
placement application was still pending because they had not begun the live scan process.
       On February 26, 2014, the juvenile court convened the dispositional hearing.
Again neither Ricardo nor the mother appeared. The court ordered the children removed
from parental custody and ordered reunification services for Ricardo and the mother.
Ricardo’s reunification plan required him to participate in counseling for anger
management, parenting, and substance abuse and to submit to random drug testing.
       Sometime in February or early March 2014, Ricardo was deported to Mexico. On
March 5, 2014, he telephoned Arredondo using a pay phone and said he was then living
in Jalisco, Mexico. Arredondo gave Ricardo his attorney’s contact information and
reminded him of his court-ordered services. Ricardo said he had a relative who had


                                            3
contact with the local child protective services in Jalisco. He said he was not working
and would have difficulty paying for his courses. He said he wanted to return and gain
custody of the children. He said he would keep Arredondo updated on his case plan
compliance. Arredondo told Ricardo that he could call the department collect.
Arredondo sent Ricardo a monthly form letter from March to August 2014, listing the
services he needed to complete. The letter advised Ricardo that the department would
provide him referrals to specific agencies and assist him in completing his services plan
requirements. It also listed the department’s telephone number.
          On August 14, 2014, Ricardo telephoned Arredondo and left a message that he
was living in Tijuana, Mexico. The next day, Arredondo tried to reach Ricardo using the
telephone number he left but received a message stating the call could not be connected
as dialed. On August 18, 2014, Arredondo received a telephone call from Ricardo.
Arredondo reviewed Ricardo’s case plan requirements with him and verified his phone
number and mailing address. Ricardo said he received the letters Arredondo sent.
Ricardo said he was working and staying clean and doing his drug counseling.
Arredondo told him the department needed proof of his compliance. Arredondo gave
Ricardo the name of his new social worker and the contact information, including the fax
number. During the conversation, Ricardo asked about the status of the paternal
grandparents’ application for placement. Arredondo explained that their application had
been denied because the paternal grandmother was not honest about her husband’s legal
issues.
          The department recommended in its report for the six-month review hearing that
the juvenile court terminate Ricardo and the mother’s reunification services as they had
not made any progress with their case plans. The department reported that Ricardo had
not faxed any documents. The mother’s whereabouts were unknown.
          On October 1, 2014, the juvenile court convened the contested six-month review
hearing. Ricardo and the mother did not appear. Arredondo testified that he did not


                                              4
investigate whether Ricardo’s court-ordered services, including random drug testing,
were available where Ricardo was residing in Mexico. He told Ricardo that Ricardo
could send him letters but did not tell him he could contact the children by telephone.
Ricardo’s attorney asked Arredondo if he contacted the Mexican Consulate for
assistance. Arredondo said he had not and did not know if that was the department’s
standard procedure in such a case.
       Ricardo’s attorney argued the department failed to provide Ricardo reasonable
reunification services because Arredondo did not give him any direction as to where and
how to drug test and did not facilitate visitation. The juvenile court disagreed and found
the department provided Ricardo reasonable services. The court also found that Ricardo
and the mother failed to regularly participate in and make substantive progress in their
court-ordered treatment plans. Consequently, the court terminated their reunification
services and set a section 366.26 hearing.
       This petition ensued.2
                                       DISCUSSION
       Ricardo contends the juvenile court erred in finding the department provided him
reasonable services. We disagree.
       When a child is removed from a parent’s custody, the social services department
must make a good faith effort to develop and implement reasonable family reunification
services responsive to the needs of that family. (In re Kristin W. (1990) 222 Cal.App.3d
234, 254.) “The adequacy of a reunification plan and of the department’s efforts are
judged according to the circumstances of each case.… ‘The effort must be made to
provide suitable services, in spite of the difficulties of doing so or the prospects of
success. [Citation.]’ ... ‘[T]he record should show that the [department] identified the
problems leading to the loss of custody, offered services designed to remedy those


2      The mother did not file a writ petition.


                                               5
problems, maintained reasonable contact with the [parent] during the course of the
service plan, and made reasonable efforts to assist the [parent when] compliance proved
difficult ....’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)
       Thus, whether a parent was provided reasonable services is a two-part
determination. The first determination is whether the reunification services selected by
the department are reasonably tailored to address the problems that necessitated the
juvenile court’s intervention. The second determination is whether the department made
reasonable efforts to assist the parent in accessing the services selected. In other words,
the services plan content and the department’s efforts to assist the parent in complying
must be reasonable.
       The reunification services are ordered into effect at the dispositional hearing and
remain the order of the juvenile court unless the parent succeeds in having them modified
by direct appeal from the dispositional orders or by filing a section 388 petition. In
contrast, the reasonableness of the department’s efforts is fluid and the juvenile court
must determine at each review hearing whether the parent was provided reasonable
services during the period under review.
       On a challenge to the juvenile court’s reasonable services finding, we view the
evidence in a light most favorable to the respondent, indulging in all legitimate and
reasonable inferences to uphold the finding. (In re Misako R. (1991) 2 Cal.App.4th 538,
545.) If substantial evidence supports the juvenile court’s finding, we will not disturb it.
(Ibid.) Moreover, under our review, services need not be perfect to be reasonable.
Rather, the “standard is ... whether they were reasonable under the circumstances.”
(Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Since Ricardo bears the
burden of demonstrating error on appeal (Winograd v. America Broadcasting Co. (1998)
68 Cal.App.4th 624, 632), he must show that the juvenile court’s reasonable services
finding is not supported by substantial evidence. We conclude he failed to meet his
burden.


                                              6
       In this case, Ricardo participated in the development of his services plan and
assented to its terms by signing it. He did not challenge the content of the plan by
appealing from the dispositional order or seek to have it modified by filing a section 388
petition. Further, Arredondo provided Ricardo service referrals and Ricardo was ready to
begin drug treatment when he was deported. In early March 2014, Ricardo contacted
Arredondo, told him he was in Mexico and intimated he would contact Mexico’s
equivalent of the local child protective services agency. Ricardo did not contact
Arredondo again until August. Nevertheless, Arredondo attempted to maintain contact
with Ricardo by sending him reminder letters, providing him the department’s telephone
number, and telling Ricardo he could telephone the department collect. In August,
Ricardo contacted Arredondo to say that he had relocated, was participating in drug
counseling and maintaining sobriety. Arredondo asked Ricardo to provide proof of his
compliance and gave Ricardo the department’s fax number.
       In our view, the department met its duty to provide Ricardo reasonable services.
Arredondo made sure Ricardo knew what was required of him and referred him for the
services. To the extent possible, he maintained contact with Ricardo in Mexico by
correspondence and offered his assistance in arranging services for Ricardo in Mexico.
Ricardo, however, did not ask for assistance, apparently relying on self-help to obtain
drug counseling and random drug testing.
       Ricardo nevertheless contends his services plan was unreasonable because it did
not contemplate his deportation and identify services available to him in Mexico.
       As we stated above, Ricardo assented to the content of his services plan and did
not challenge it on appeal or attempt to modify it. Therefore he is now barred from
arguing the reunification plan content is unreasonable. (In re Julie M. (1999) 69
Cal.App.4th 41, 47.) However, even if the issue were properly before us, we would
conclude it lacked merit.




                                             7
       To support his contention, Ricardo cites this court to In re Maria S. (2000) 82
Cal.App.4th 1032 (Maria S.), a case in which the appellate court reversed a juvenile court
order terminating a mother’s parental rights. The appellate court concluded that the terms
of the reunification plan and the mother’s likely deportation deprived her of a reasonable
opportunity to comply with the plan. Such is not the case here as we now explain.
       In Maria S., the appellant gave birth to a child while incarcerated on a drug
possession charge. The department developed a reunification services plan for the
appellant designed to begin upon her release from prison. The department was aware,
however, that the appellant was subject to deportation upon her release. Upon release,
the appellant was deported but maintained weekly contact with a social worker and made
many unsuccessful efforts to reenter the country. Over the appellant’s objection, the
juvenile court terminated her parental rights. (Maria S., supra, 82 Cal.App.4th at
pp. 1034-1038.) In reversing, the appellate court concluded there was no evidence the
“appellant was afforded any reasonable opportunity to complete the contemplated case
plan and reunify with Maria.” (Id. at p. 1040.)
       Here, there is no evidence anyone had foreknowledge of Ricardo’s deportation.
Further, unlike the appellant in Maria S., Ricardo had a reasonable opportunity to
complete his services plan. His services were immediately available to him upon referral.
He was participating in them at the time of his deportation and continued to do so while
in Mexico. Had Ricardo not been able to access any of his services, he could have
informed Arredondo or his attorney and sought a modification of his case plan.
       Ricardo further contends, citing Mark N. v. Superior Court (1998) 60 Cal.App.4th
996 (Mark N.), the department’s efforts to assist him were not reasonable because
Arredondo did not inquire as to what services were available to him in Mexico. Mark N.
is distinguishable on several key points.
       Mark N. arose on an extraordinary writ of mandate from the juvenile court’s order
terminating an incarcerated father’s reunification services at an 18-month review hearing.


                                             8
The father was incarcerated during the last 17 of the 18 month reunification period.
(Mark N., supra, 60 Cal.App.4th at p. 1000.) The appellate court concluded the evidence
was insufficient to support a finding the department provided the father reasonable
services and granted the petition. (Id. at pp. 1012, 1018-1019.) The court stated: “The
department failed to contact the father during 13 of the 17 months of his incarceration,
made “no effort to determine whether any services were available or could be provided,”
and instead concluded there was no need to “take any action to facilitate the reunification
process.” (Id. at p. 1013, original italics.)
       Here, Arredondo maintained contact with Ricardo by correspondence and
attempted telephone contact when Ricardo provided him a telephone number. He also
informed Ricardo in the letters that he was available to help him with services and
provided him a contact number. Arredondo did not inquire about the availability of
services in Jalisco and Tijuana but then Ricardo did not appear to need help accessing
services. Arredondo’s regular communication with Ricardo and Ricardo’s ability to
access services distinguishes this case from Mark N.
       That said, we are mindful that Mexico has a social services agency comparable to
our child protective services. Had Arredondo contacted that agency, it is reasonable to
assume that it would have acted as an arm of the department to provide Ricardo local
assistance in accessing his services and reporting his compliance. However, Ricardo
does not show how he would have had better access to services or made more progress
had Arredondo contacted the agency. Further, it is possible that Ricardo was receiving
the agency’s assistance since he said he was going to contact the agency and he was
receiving drug counseling and presumably drug testing as well. In any event, Ricardo
failed to meet his burden of showing that the juvenile court erred in finding he was
provided reasonable services. Consequently, we conclude substantial evidence supports
the juvenile court’s reasonable services finding.




                                                9
       Finally, Ricardo contends the children should have been placed with their paternal
grandparents. However, he did not raise the issue before the juvenile court.
Consequently, he forfeited any argument he may have with respect to relative placement
and is precluded from raising it on this petition. (In re Sabrina H. (2007) 149
Cal.App.4th 1403, 1419.)
       We find no error on this record.
                                     DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




                                             10
