Mark N. v. Superior Court (Los Angeles County Dept. of Children and Family Services)

• Decision Date: 13 January 1998
• Docket Number: No. B115912,B115912
• Citation: 60 Cal.App.4th 996,70 Cal.Rptr.2d 603
• Parties: , 98 Cal. Daily Op. Serv. 350, 98 Daily Journal D.A.R. 455 MARK N., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 603

70 Cal.Rptr.2d 603

60 Cal.App.4th 996, 98 Cal. Daily Op. Serv. 350,

98 Daily Journal D.A.R. 455

MARK N., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

No. B115912.

Court of Appeal, Second District, Division 5, California.

Jan. 13, 1998.

Nijole V. Treciokas, Santa Monica, for Petitioner.

De Witt W. Clinton, County Counsel, Auxiliary Legal Services, Sarah M. Friede and Amy N. Carter, Monterey Park, for Real Party in Interest.

No appearance on behalf of Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Mark N., the father of a dependent child, Sabrina N. (Sabrina), has filed a petition for an extraordinary writ of mandate (Cal. Rules of Court, rule 39.1B) after the respondent court terminated reunification services and set a permanent plan hearing under Welfare and Institutions Code section 366.26. ¹ Adoption is the intended permanent plan. The father was incarcerated for all but one month of a 17-month reunification period. The father was not in custody for the first month of the reunification period. We find there was no substantial evidence the Department of Children and Family Services (the department) offered or provided reasonable reunification services to the father during any of the 17-month reunification period as required by law. We further conclude: under section 366.22, subdivision (a), the court was not authorized to extend reunification services beyond the 18-month hearing; moreover, this case falls within the proscription of section 366.26, subdivision (c)(2), which precludes termination of parental rights when, as here, the department has failed to offer or provide reasonable reunification services to a parent throughout the reunification period; however, the respondent court has limited discretion under section 352 to continue the 18-month hearing; and on remand, if the father is incarcerated, the respondent court may in the alternative find that offering reunification services would be detrimental to the interests of the minor (§ 361.5, subd. (e)(1)) and reissue the order terminating reunification services and setting a section 366.26 hearing. Therefore, we order issuance of a peremptory writ of mandate, to be effective forthwith, directing the respondent court to either continue the 18-month hearing pursuant to section 352, or find that offering reunification services to the father, if incarcerated, would be detrimental to Sabrina as permitted by section 361.5, subdivision (e)(1). We do not reach the question whether a finding of detriment under section 361.5, subdivision (e)(1), would avoid the proscription of section 366.26, subdivision (c)(2).

II. PROCEDURAL AND SUBSTANTIVE HISTORY

Sabrina was born on January 7, 1996. She was taken into custody by the department in April 1996, when she was three months old. Since that time, Sabrina has been living with a foster mother who is also: the former foster parent of Sabrina's natural mother; Sabrina's potential adoptive mother; the adoptive parent of Sabrina's older sibling; and Sabrina's younger sibling's foster parent. Sabrina is now two years old.

On March 21, 1996, prior to Sabrina's detention, her parents had signed and agreed to comply with a voluntary family maintenance agreement under the auspices of the department. (§ 301.) The parents and Sabrina were then residing in a sober living program. The father, who had a long history of cocaine use, had enrolled in drug counseling and testing. The father was interviewed by a social worker. In that interview, the father admitted he had used cocaine and had a drug problem, but claimed he had not used any narcotics since Sabrina's birth. However, he told the owner of the sober living program he had used drugs on February 23 or 24, 1996, more than a month after Sabrina was born.

The father had a history of domestic violence. He had repeatedly abused the mother. The mother had been in and out of shelters. The father had assaulted the mother more than 10 times in the one and one-half months the family resided in the sober living program. Sabrina was present during these violent altercations. Each time, the father admitted to a drug abuse worker: he had beaten the mother; he said she "made him mad"; and she "pushed [him] too far." When asked about prior domestic violence related arrests, the father told children's services workers they "were due to a previous relationship and had nothing to do with the mother." The father expressed a willingness to participate in domestic violence counseling.

In addition to that related above, the father had a long criminal record dating from 1985. He had been detained and released on multiple occasions. He had been convicted of several felonies: transportation or sale of a controlled substance; receipt of stolen property; and theft of an automobile. His performance on probation and parole had been poor. His probation on the narcotics conviction was revoked when he committed a robbery. His probation on the stolen property conviction was revoked when he committed a burglary. The father's parole in connection with his automobile theft conviction was revoked when he committed a burglary. He had also been the subject of a domestic violence restraining order. Later, he had been convicted of a misdemeanor violation of the restraining order.

On April 5, 1996, the department was contacted by personnel at the sober living program and advised that a day earlier the father had beaten the mother in Sabrina's presence. A drug abuse worker described the assault as follows: "[The father] kicked [the mother] in the mouth, on the stomach. She was on the kitchen floor balled up, he kept kicking her and kicking her." The mother said the father had punched and kicked her. The father denied he had punched the mother, but admitting pushing and shoving her. ² The father was told children's services workers were on their way to the sober living program residence. A children's services worker instructed the father not to leave the facility with Sabrina. The father said they "were not going to take his baby and he was not going to stay...." The father fled with Sabrina, taking her to Mexico.

On Thursday, April 11, 1996, the father and Sabrina were located. Sabrina was very ill with an untreated viral infection. The parents agreed Nancy S. should care for Sabrina "until they were on their feet." Nancy S. had been the mother's foster parent. She was also the adoptive parent of Sabrina's older sibling, Nola S. Nancy S. was willing to care for Sabrina. At the department's request, Nancy S. brought Sabrina to its offices. Sabrina was taken into custody.

The maternal grandmother, the mother's adoptive parent, contacted the department and expressed an interest in taking care of Sabrina. However, the maternal grandmother also reported the father had threatened to kill her if she did so. The father later denied making that threat. On April 12, 1996, the father advised children's services workers he would enter an inpatient drug treatment program. He wanted Nancy S. to care for Sabrina until he was stabilized. The father expressed a desire to obtain custody of Sabrina.

A section 300 petition was filed on Monday, April 15, 1996. The minor was then three months old. The petition alleged: the father had a history of substance abuse and was a frequent user of cocaine; Sabrina had been exposed to violent altercations between the parents; the parents failed to obtain necessary medical treatment for Sabrina's viral infection; the parents failed to comply with the voluntary family maintenance agreement; and the father was in a drug rehabilitation center and could not care for Sabrina. The detention report, dated April 15, 1996, noted that despite the circumstances leading to the detention, the parents had obtained shelter for Sabrina (following one or two days of homelessness) and showed good judgment in allowing Nancy S. to care for Sabrina. Further, both parents had ensured Sabrina received immunizations and check-ups at a shelter and both had sought parenting classes. In addition, the father had obtained drug counseling as part of the voluntary family maintenance agreement. As of the date of the report, the father was in an inpatient drug treatment program. On April 16, 1996, Sabrina was detained and placed with Nancy S. The department was ordered to provide family reunification services. Further, the mother's, maternal grandmother's, and caretaker's addresses were to remain confidential from the father.

The father was arrested for the transportation or sale of a controlled substance, a violation of his probation or parole. As of April 29, 1996, he was in custody in the Los Angeles County Jail. The father telephoned children's services worker Sheila Allen on May 3, 1996, stating he had recently been released from jail and had no residence. Reports filed with the court on May 14, 1996, listed the father's whereabouts as unknown. The father was incarcerated on May 22, 1996, and remained in custody at the time reunification services were terminated, on September 26, 1997. He was initially incarcerated at "Wayside", and later at San Quentin prison.

Pursuant to a disposition report filed on May 14, 1996, the department's case plan for the father included: drug and alcohol abuse treatment; random drug testing; domestic violence counseling; parenting classes; alcoholics anonymous; maintaining stable housing; and reasonable monitored visitation with Sabrina. The department identified its responsibilities as: providing referrals for substance abuse testing, counseling, and parent education classes; having regular contact with agencies providing services to the family; monitoring the parents' compliance with the case plan; and having face-to-face contact with the parents at least once a month.

The jurisdictional and dispositional hearings were held on May 14, 1996....