Filed 5/17/16 L.P. v. Superior Court CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


L.P.,                                                                No. H043347
                                                                    (Monterey County
         Petitioner,                                                 Super. Ct. No. J48572)

         v.

THE SUPERIOR COURT OF
MONTEREY COUNTY,

         Respondent;

DEPARTMENT OF SOCIAL SERVICES,

         Real Party in Interest.



         Petitioner L.P. (father) challenges the juvenile court’s order terminating
reunification services and setting a Welfare and Institutions Code section 366.261 hearing
for July 2016. He claims that the court’s ruling was erroneous because he had not been
provided with reasonable reunification services. We reject his contention and deny his
petition.




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      Subsequent statutory references are to the Welfare and Institutions Code unless
otherwise specified.
                                      I. Background
       Three-year-old A.P. (the child) was taken into protective custody on June 25, 2015
after E.H. (mother), a methamphetamine addict, left the child and the child’s one-year-old
half brother in a home with a mentally ill adult who was not even able to care for herself.
The home in which the children had been left was unsafe and dirty and lacked sufficient
food. The children were dirty, and there were no diapers in the home. The child had
bruises and numerous cigarette burns on his body. He was also suffering from severe
developmental delays.
       After the children were taken into protective custody, mother was arrested on
outstanding warrants for previous child endangerment convictions, and she was also
charged with a new count of child endangerment (Pen. Code, § 273a, subd. (a).) Father,
who had a history of substance abuse, had not been a significant presence in the child’s
life since the child was a few months old. He had visited the child occasionally
thereafter. Father had been convicted of inflicting corporal injury on mother, and there
was a current restraining order protecting mother from father. Father was homeless and
on probation in Santa Clara County for a burglary conviction. He had been incarcerated
as a teenager for sexually abusing his sister.
       The Department filed a section 300 petition asking the court to take jurisdiction
over the child. Although father was notified of the June 30, 2015 detention hearing,
father did not appear at the hearing. The court set a jurisdictional/dispositional hearing
for August 11, 2015. By the time of the August 11 hearing, mother had been released
from custody. Father had been having weekly one-hour visits with the child, and the
visits were appropriate. Father did not appear at the August 11
jurisdictional/dispositional hearing, which the court noted “doesn’t bode well for
reunification, based on what’s going on.” The court took jurisdiction over the child,
removed him from parental custody, and ordered reunification services for both parents.



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       Father’s case plan required him to participate in a family mental health
assessment, to attend and complete parent education classes, to maintain a stable living
situation, to attend and participate in a drug and alcohol assessment, to remain drug free,
to obey the law and all of his probation conditions, and to submit to random drug testing.
He was granted weekly supervised one-hour visits with the child.
       In August 2015, the social worker provided father with referrals for parenting
classes, drug testing, and a family mental health assessment. He did not avail himself of
any of these referrals. Father did not participate in a family mental health assessment
despite multiple attempts to contact him and schedule his participation. He attended no
parenting classes. Father missed two of his August 2015 weekly visits with the child.
His final visit with the child was on September 21, 2015. The social worker met with
father that day. She reminded him of the requirements of his case plan and told him that
he needed to participate in domestic violence counseling. He told her that he had no
domestic violence or substance abuse issues, “had nothing to work on,” and was “not
eager to start services” at that time. The social worker asked him to drug test that day,
but he did not do so and never submitted to any drug testing.
       On September 29, 2015, father was incarcerated in Santa Clara County on
resisting arrest and narcotics charges and for violating his probation. It was unknown
when he might be released from custody. Father made no effort to maintain contact with
the Department. He did not appear at the November 2015 interim review hearing. In
December 2015, the social worker sent father a “parenting workbook” at the jail by
regular mail. This workbook was not refused or returned to sender, but father never
completed the workbook. The social worker did not contact the jail to determine what
programs were offered at the jail. Father did not appear for the scheduled
February 9, 2016 six-month review hearing; the matter was continued to March 7, 2016
for a contested hearing. Father was released from jail on February 25, 2016, but he did
not contact the social worker to seek visits, request services, or inquire about the child’s

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well-being. The social worker left a voicemail message for father on March 1, 2016, but
he did not return the call.
       In her trial brief, father’s attorney argued that father lacked the ability to
participate in services due to his incarceration and the Department’s failure to provide
him with “workbooks” during his incarceration. She asserted that father had not been
provided with reasonable services and should be granted another six months of services.
       Father did not appear at the scheduled March 7, 2016 contested six-month review
hearing. The hearing was continued to the next morning. Father did not appear at the
morning or afternoon hearings the following day. His attorney did not seek a
continuance. At the hearing, the social worker testified that the reports that she had sent
to father at the jail by certified mail in January and February 2016 had been “refused” and
returned to sender. Father’s attorney argued that he had not been provided with
reasonable services because the social worker had not provided him with any services
while he was incarcerated.
       The court expressly found that father had been provided with reasonable services,
“and he failed to take advantage of them.” It found that he did not “work on the
workbooks” that were given to him while he was incarcerated. He also made no effort to
keep in contact with the social worker. The court terminated reunification services to
both parents and set a section 366.26 hearing for July 5, 2016. Father timely filed a
notice of intent to file a writ petition challenging the court’s order.


                                         II. Analysis
       Father claims that he was not provided with reasonable services because the social
worker did not inquire as to what services were available to father at the jail, and she did
not follow “the jail’s mail guidelines” in sending father mail while he was incarcerated.
       “If the child was under three years of age on the date of the initial removal, or is a
member of a sibling group described in subparagraph (C) of paragraph (1) of subdivision

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(a) of Section 361.5[ ], and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress in a court-ordered
treatment plan, [at the six-month review hearing] the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court finds there is a
substantial probability that the child, who was under three years of age on the date of
initial removal or is a member of a sibling group described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, may be returned to his or her parent or
legal guardian within six months or that reasonable services have not been provided, the
court shall continue the case to the 12-month permanency hearing.” (§ 366.21,
subd. (e)(3), italics added.)
       Father does not challenge the court’s finding that the child was a member of a
sibling group or its finding that there was not a substantial probability that the child could
be returned to parental custody within six months after the six-month review hearing.
Nor does he assert that the case plan was inadequate. He claims only that the Department
failed to provide reasonable reunification services.
       Father’s case plan required participation in a mental health assessment. Multiple
attempts were made in August and September 2015, before father was incarcerated, to
obtain father’s participation in this assessment. He refused to cooperate. Father’s case
plan required him to attend and complete parent education classes. The original social
worker referred him to parenting classes more than a month before he was incarcerated,
but he did not attend any parenting classes. The second social worker sent him a
“parenting workbook” while he was incarcerated, months before the six-month review
hearing. Father did not complete the workbook or return it to the social worker. His case
plan required him to attend and participate in a drug and alcohol assessment and to


2
        If one member of a sibling group is under the age of three, the six-month
limitation may be applied to all members of the group. (§ 361.5, subd. (a)(1)(C).)

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submit to random drug testing. The social workers gave him referrals for drug testing
and asked him to drug test prior to his incarceration, but he did not.
       Father insists that the services provided to him were inadequate because the social
worker did not inquire as to what services were available to him at the jail. Father
refused to participate in a mental health assessment or to drug test when he was not
incarcerated. Any inquiry about the availability of drug testing at the jail would have
served little purpose since father’s ability to remain drug-free while incarcerated was of
little relevance. As multiple attempts to encourage father to participate in a family
mental health assessment before father was incarcerated had failed due to father’s lack of
cooperation, there did not appear to be any purpose to be served by an inquiry as to
whether such an assessment could be obtained at the jail. The social worker might have
been able to discover whether parenting classes were available at the jail by making an
inquiry. However, her provision of a parenting workbook to father during his
incarceration coupled with his failure to utilize it and his adamant refusal to engage in
services prior to his incarceration established that such an inquiry would have been futile
and was not reasonably required. Father was not deprived of reasonable services. He
refused to engage in services and exhibited such little interest in the child that he attended
none of the hearings and made no attempt to keep in contact with the social worker.
       Father’s contention regarding the jail’s “mail guidelines” is meritless. The only
items that the social worker sent to father by certified mail at the jail were reports, not
materials that could have helped him satisfy his case plan. The parenting workbook was
not sent by certified mail, so it plainly complied with the jail’s “mail guidelines,” which
father claims prohibited jail inmates from receiving certified mail. The social worker’s
failure to inquire about the jail’s “mail guidelines” did not have any impact on the
provision of reasonable services to father.




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                          III. Disposition
The petition is denied.




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                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




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