San Diego Cnty. Health & Human Servs. Agency v. A.J. (In re A.G.)

12 Cal.App.5th 994

219 Cal.Rptr.3d 239

IN RE A.G. et al., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.A.J., Defendant and Appellant.

D071620

Court of Appeal, Fourth District, Division 1, California.

Filed June 16, 2017

Neale Bachmann Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff and Respondent.

O'ROURKE, J.

A.J. appeals from a 12–month review hearing at which the juvenile court returned his children to their mother's care. (Welf. & Inst. Code, § 366.21, subd. (f).)¹ He contends the court erred when it found that he had been offered or provided reasonable services. We agree and reverse the reasonable services finding as to A.J. In all other respects, the findings and orders are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

A.J. and R.G. are the parents of three children, who are now ten, nine and seven years old. In November 2011, A.J. was arrested and deported to Mexico after he assaulted R.G. R.G. obtained an order prohibiting A.J. from having contact with her and the children.

After A.J. was deported, the San Diego County Health and Human Services Agency (Agency) investigated 13 child protective services referrals on behalf of the children. The referrals were largely related to R.G.'s alcohol use and failure to supervise the children. In February 2013, October 2013, and February 2014, the Agency substantiated allegations that R.G. was neglecting the children. In October 2015, the Agency detained the children in protective custody and initiated dependency proceedings after an "extremely intoxicated" R.G. was arrested and jailed on charges of grand theft.

R.G. said she did not have contact information for A.J. The Agency conducted a due diligence search for father in California, but did not try to locate him in Mexico. In November 2015, the court sustained the dependency petitions, removed the children from parental custody, and ordered the Agency to offer or provide reunification services to R.G.

On April 14, 2016, A.J. telephoned the social worker to ask about the children's welfare. He said R.G. had contacted him through Facebook and told him about the children's dependency proceedings. On April 18, A.J. told the social worker he wanted custody of the children. He had not seen them in approximately two years. The social worker sent a copy of the petition and other paperwork to A.J., who was living in Tijuana, B.C., Mexico.

On June 9, A.J. told the social worker he wanted the children to be placed with him and was willing to participate in reunification services and "do whatever is needed to have contact with the children." The Agency submitted a request to the International Liaison to arrange a border visit with the children at the Mexican Consulate. The Agency asked the social services agency, Desarrollo Integral para la Familia (DIF), to conduct an evaluation of A.J.'s home and provide parenting education and domestic violence prevention classes to him. At the six-month review hearing on June 13, the court ordered the Agency to offer or provide reasonable services to the parents, and to prepare a case plan for A.J. by July 18.

On July 19, A.J. told the social worker he wanted to have regular contact with the children as often as possible. He had had one visit with the children, with no concerns. The Agency submitted a request for ongoing visitation to the Mexican Consulate. However, A.J. withdrew his requests for a home evaluation and reunification services after speaking to DIF. He decided not to ask for placement because he was unable to pay for the children's education in Mexico. A.J. believed it was in their best interests to stay in the United States to complete their education. The social worker advised A.J. to speak with his attorney before waiving reunification services. A.J. said he had not heard from his attorney and asked the social worker to contact his attorney and give her his telephone number, which the social worker did.

After speaking with his attorney, A.J. asked the court to order the Agency to provide reunification services to him. He wanted to be able to care for the children if they did not reunify with their mother. On July 25, the court² ordered the Agency to provide supervised visitation between A.J. and the children at the international border, and prepare a case plan for A.J. within 30 days.

On August 19, the Agency submitted a case plan for A.J. to the court. The case plan required A.J. to attend individual or group counseling to address domestic violence, and participate in a parenting education program.

On October 24, the Agency reported it had sent a referral to DIF to provide case plan services to A.J. DIF was unable to find a domestic violence group and had not yet referred A.J. to a parenting education program. The Agency was looking for alternate service providers to locate services for A.J. A visit between A.J. and the children was scheduled for November 10.

In the Agency's court report dated October 24, the social worker wrote: "[A.J.] has been in contact with the Agency to ask about the children and for visitation. At this time the father is not asking for reunification as he believes the children are better off here in the U.S. with the mother. The father lives in Tijuana, Mexico and that will make providing services more difficult and will take longer for him to engage and make progress in services. [A.J.] has had contact with the children during this report period but has not contacted the Agency for regular visits which calls into question his commitment to the children." On the next page of the report, the social worker stated, "The father is willing and able to participate in services. However, the Agency via DIF has been unable to provide services in the father's home town of Tijuana Mexico. At this time the father is requesting regular visits with the children at the border. The Agency will continue its efforts to provide the father with services."

The 12–month review hearing was held on January 3, 2017.³ Without submitting an addendum report for November and December 2016, the Agency recommended that the court return the children to their mother's care under a plan of family maintenance services and provide discretionary services to the father.

A.J. did not contest the placement recommendation, but said he did not receive any services and asked the court to find that the Agency did not offer or provide reasonable services to him. A.J. said he wanted custody of the children if they were removed from their mother's care.

The Agency acknowledged it did not provide "gold-plated services" to father but argued the services were reasonable under the circumstances. The Agency was willing to provide discretionary services to A.J. while the case continued under a family maintenance plan.

The court found that A.J. initially wanted to engage in services but then changed his mind and declined reunification services. The court said, "The bigger problem is that he was in Mexico ... and unable to benefit from the services provided by the Agency here. And the reason the father was in Mexico is because he was deported to Mexico for domestic-violence related offenses. So through the father's own actions, he was deported, and then the Agency couldn't provide services to him. But the Agency made reasonable efforts to attempt to get the services provided by the Mexican officials through DIF, and then he showed up at DIF and said he didn't want the services."

The court found by clear and convincing evidence that reasonable services were offered or provided to the parents. The court placed the children with their mother under a plan of family maintenance services and ordered the Agency to continue to provide visitation and discretionary services to A.J.

DISCUSSION

ARelevant Legal Principles and Standard of Review

Family reunification services play a critical role in dependency proceedings under federal and state law. (42 U.S.C. §§ 629, 629a(a)(7) ; Welf. & Inst. Code, § 361.5, subd. (a) ; In re Alanna A . (2005) 135 Cal.App.4th 555, 563, 37 Cal.Rptr.3d 579 (Alanna A . ).) At each review hearing, the court is required to determine the "extent of the agency's compliance with the case plan" in making reasonable efforts to return the child to a safe home. (Welf. & Inst. Code, § 366, subd. (a)(1)(B) ; see also 42 U.S.C. § 671(a)(15)(B).) Services "may include provision of a full array of social and health services to help the child and family and to prevent reabuse of children." (Welf. & Inst. Code, § 300.2 ; 42 U.S.C. § 629a(a)(7).)

To support a finding that reasonable services were offered or provided to the parent, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult...." (In re Riva M. (1991) 235 Cal.App.3d 403, 414, 286 Cal.Rptr. 592.) Reunification services should be tailored to the particular needs of the family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793, 20 Cal.Rptr.3d 336.)

"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." (In re Misako R . (1991) 2 Cal.App.4th 538, 547, 3 Cal.Rptr.2d 217.) The "adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164, 39 Cal.Rptr.2d 743.) If reasonable services are not provided or offered to the parent, the court is required to continue the case for...