Kevin R. v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: HALLER
• Citation: Kevin R. v. Superior Court, 191 Cal.App.4th 676, 120 Cal.Rptr.3d 549 (Cal. App. 2010)
• Decision Date: 10 December 2010
• Docket Number: No. D058003.,D058003.
• Parties: KEVIN R., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego County Health and Human Services Agency, Real Party in Interest.

120 Cal.Rptr.3d 549

191 Cal.App.4th 676

KEVIN R., Petitioner,

v. The SUPERIOR COURT of San Diego County, Respondent;San Diego County Health and Human Services Agency, Real Party in Interest.

No. D058003.

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

Dec. 10, 2010.

Children's Law Center of Los Angeles, Martha Matthews and Tyson B. Nelson; Dependency Legal Group of San Diego, Robert Gulemi and Kelly James, for Petitioner.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Tahra C. Broderson, Deputy County Counsel, for Real Party in Interest.

Dependency Legal Group of San Diego, Tilisha Martin, for minor.

HALLER, J.

Kevin R. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code ¹ section 366.26. He contends the court erred when it found that reasonable services were offered or provided to him, and terminated reunification services. We deny the petition.

INTRODUCTION

Kevin R. is a registered sexual offender whose parole conditions prohibited him from having any contact with children, including his daughter, A.R., who was born after Kevin was released from prison. Seven months after the San Diego County Health and Human Services Agency (the Agency) initiated dependency proceedings, Kevin obtained a modification of his parole conditions allowing him to have supervised visits with A.R. once a week at Child Welfare Services offices (CWS). Approximately six weeks later, the court expressed concern about Kevin coming into contact with other children at CWS and the social worker interpreted the court's remarks as an order suspending visitation. Visits were suspended for two months until county counsel discovered the error. The contested six-month review hearing, which had been continued for more than three months, was held five weeks after visitation resumed.

Kevin argues the juvenile court unlawfully delegated its authority to order visitation to the parole officer, violating his due process and statutory rights to visit his child. He also argues the court's finding that there was no substantial probability of returning A.R. to his care by the 12-month review date is not supported by substantial evidence. Kevin further contends he did not receive reasonable visitation services because the social worker did not help him obtain a modification of his parole conditions and erroneously suspended his visits for two months. Finally, Kevin asserts his due process rights wereviolated when the court allowed his parole condition to function as an absolute bar to family reunification.

We conclude that, notwithstanding the directive under section 362.1, subdivision (a) to order visitation that is as frequent as possible, consistent with the well-being ofthe child, the juvenile court may not order visitation that contravenes a lawful condition of parole imposed on a parent of a dependent child. Accordingly, a parent seeking a modification of a condition of parole must petition the Board of Prison Terms ² or bring a habeas petition in the appropriate court, if necessary.

We also determine there is substantial evidence to support the findings there was no reasonable probability of returning A.R. to Kevin's care by the 12-month review date, the social worker offered or provided reasonable reunification services to the petitioner, and the social worker did not have the obligation to intercede in the father's parole modification proceedings. Further, we conclude there was substantial evidence, independent of the constraints placed on the petitioner by his parole conditions, to support the court's decision to terminate reunification services and, in any event, the court may properly consider a parent's parole conditions when fashioning orders in the best interests of his or her child.

FACTUAL AND PROCEDURAL BACKGROUND

Kevin R. and Renee M.³ are the parents of A.R., who was born in June 2009. Renee had a history of mental illness, homelessness, substance abuse and prostitution and other criminal activity. Kevin did not have any identified mental health or substance abuse issues; however, he had been convicted of assault with a deadly weapon in 1997 and a sex crime involving a 13-year-old girl in 1999.⁴ Kevin was released from prison in 2008 after serving more than nine years of an 11-year sentence. He is on parole until August 2011. At the time of A.R.'s birth, as a condition of parole, Kevin was not permitted to have contact with any children, including his own child (no-contact provision).

In August 2009, the Agency filed a three-count dependency petition alleging A.R. was exposed to violent confrontations between Renee and a roommate and Renee was using marijuana to excess (§ 300, subd. (b)), and Renee had left A.R. with Kevin, who was a registered sex offender (§ 300, subd. (d)).

The day after A.R. was detained in protective custody, Kevin informed a social worker that his parole officer had advised him to go to court to modify the parole condition prohibiting contact with children. The next day, Kevin told another social worker that he was initiating the process to modify the no-contact provision.

At the detention hearing, the court ordered "Father to have liberal supervised visitation, with concurrence of his parole officer."

The parents submitted to jurisdiction under section 300, subdivision (b), and the court ordered a plan of family reunificationservices. Kevin's case plan required him to complete a parenting program and participate in therapy focused on sexual abuse issues. The court modified the previous visitation order to permit the social worker to lift supervision of visits and allow Kevin to have overnight visits with A.R., with the concurrence of minor's counsel.

On March 4, 2010, Kevin obtained a modification of his parole conditions, which allowed him to visit A.R. weekly for one and one-half hours under supervision at CWS. Kevin consistently visited A.R. He enjoyed spending time with her and asked for guidance when she cried.

On April 29, 2010, at a pretrial status conference for the six-month review hearing, the social worker informed the court (Judge Yvonne E. Campos) that the parole officer had modified the no-contact provision to allow Kevin to visit A.R. at CWS.

The court, concerned that the visits were taking place at CWS, stated "that makes no sense [whatsoever] because you have lots of children coming and going from there. And if he's ordered by parole to not be near any other children whatsoever due to his registration, then that's not an appropriate place to have those supervised visits."

The social worker interpreted the court's remarks as an order not to allow Kevin to visit A.R. and suspended visitation. After approximately two months, the Agency noticed the error. Kevin's visits with A.R. were reinstated on July 9, 2010.

After several continuances, the contested six-month review hearing was held on August 16, 2010. Kevin was not present. The court (Judge Laura J.Birkmeyer) admitted the Agency's reports and addendums, and the transcript of the April 12, 2010 pretrial settlement conference, in evidence. Kevin, Renee and A.R. waived their rights to cross-examine the social worker and did not present any affirmative evidence.

The Agency reported that Kevin was attending sex offender group therapy, which was required by parole. His therapist stated that Kevin was doing well in the program and had not disclosed anything that would cause concern. The social worker referred Kevin to a parenting program on November 9, 2009; however, Kevin did not attend classes at that time because he was working a second job. He began a parenting program in late spring 2010, and attended three classes before summer break. He intended to continue the classes when they resumed. During the first six-month review period, Kevin lived out of his car for a short time before renting an apartment in June.

The court found that Kevin had made a concerted effort to modify his parole conditions to permit him to visit A.R. There was nothing problematic with Kevin's interactions with A.R. and the Agency made an unfortunate mistake when it suspended visitation in May and June. The court determined Kevin made good, but not substantive, progress with his case plan. Kevin regularly participated in group treatment for sexual offenders without any negative reports. Although no one faulted Kevin for wanting to work, he did not make successful progress with his parenting program. The court found that although services were not perfect, under all the circumstances, including Kevin's status as a registered sex offender, the Agency offered or provided reasonable services to Kevin.

The court also found that there was not a substantial probability A.R. would be returned to parental custody by October 19, 2010, the date of the 12-month status review, which was two months after the six-month review hearing. The court stated it could not place A.R. with Kevin whilehe was on parole, and Kevin's parole officer had indicated he would not grant any further modifications of the parole conditions to permit additional visitation. The court terminated reunification services and set a section 366.26 hearing.

Kevin petitions for review of the court's order under California Rules of Court, rule 8.452.⁵ He requests this court reverse the order setting a section 366.26 hearing. On September 3, 2010, this court issued an order to show cause and the Agency responded. This court heard oral argument on December 7, 2010.

DISCUSSION

Kevin argues he did not receive reasonable visitation services because the court improperly delegated its authority to order visitation to the parole officer, and the social worker did not assist him to obtain a modification of the parole condition limiting his visitation with his daughter. Kevin asserts substantial evidence does not support the finding there was not a substantial probability of returning A.R. to his care by the 12-month review date. He also contends the...