Filed 9/15/20 Samuel M. v. Superior Court CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
SAMUEL M., B305280
Petitioner, (Los Angeles County
Super. Ct. No. 18CCJP07432B)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary
writ. Marguerite Downing, Judge. Writ granted.
Los Angeles Dependency Lawyers, Inc., Law Office of
Amy Einstein, Bernadette Reyes and Jaraal Wallace, for
Petitioner.
No appearance for Respondent.
Office of the County Counsel, Mary C. Wickham,
County Counsel, Kristine P. Miles, Assistant County
Counsel and Aileen Wong, Senior Deputy County Counsel
for Real Party in Interest.
_________________________________________
I.
INTRODUCTION
Samuel M. (father) filed this petition for extraordinary
writ after the juvenile court terminated reunification
services and set the matter for a hearing pursuant to
Welfare and Institutions Code section 366.26.1 He contends
there is insufficient evidence the Department of Children
and Family Services (DCFS or the Department) provided
him with reasonable reunification services. We agree and
grant his petition.
1All further statutory references are to the Welfare
and Institutions Code.
2
II.
FACTUAL AND PROCEDURAL BACKGROUND
This petition involves four-year-old M.M. On October
22, 2018, DCFS received a referral alleging physical abuse
and neglect of M.M.’s half brother A.J. The next day, a
social worker met mother and M.M. at a Burger King.
Mother said M.M. had asthma, but she did not have an
inhaler or pump. Mother did have an asthma machine for
M.M., and mother said M.M.’s physician provides M.M. with
medication when needed. M.M. appeared very small for her
age. Mother told the social worker that M.M.’s father was in
jail and not involved in the child’s life.
DCFS sought to remove A.J. and M.M. after
discovering mother had 25 prior child welfare referrals and
had previously lost custody of eight children. On November
19, 2018, DCFS filed a section 300 petition alleging mother
neglected A.J. and the neglect placed M.M. at risk. At a
detention hearing held on November 20, 2018, the juvenile
court found S.M. to be M.M.’s presumed father. It made
detention findings as to both parents and ordered DCFS to
provide reunification services to mother and father.
In anticipation of the December 20, 2018 jurisdiction
hearing, DCFS filed a report detailing allegations previously
sustained against the parents. The only case involving
father was a 2013 case alleging his whereabouts were
unknown and that he had failed to provide his child with the
necessities of life. Nonetheless, based on the prior, sustained
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allegations, DCFS recommended that neither parent receive
reunification services.
At the subsequent jurisdiction and disposition
hearings, the juvenile court sustained the petitions, removed
M.M. from her parents, and ordered reunification services
for both mother and father. Father was granted monitored
visitation and ordered to complete five drug tests, parenting
classes, and individual counseling.
On July 1, 2019, DCFS filed a status report in advance
of the July 16, 2019 six-month review hearing. DCFS
reported father had contacted the Department after his
release from jail and began monitored visits with M.M. on
June 15, 2019. The report made no mention of father’s
participation in programs or any efforts by DCFS to assist
him with his case plan.
At the July 16, 2019 six-month status review hearing,
the juvenile court continued mother’s reunification services
and set the matter for a contested hearing to determine
whether DCFS had provided father with reasonable services.
On August 5, 2019, father called DCFS because mother
wanted him to inform the social worker that she was in jail.
During the call, father also arranged to meet the social
worker on August 9, 2019, but he failed to keep the
appointment. Nonetheless, in a last minute information
report filed on September 3, 2019, DCFS reported a social
worker met with father at a McDonald’s restaurant on
August 16, 2019. Father told the social worker he was
homeless, but provided an address where he could receive
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mail. Father expressed that he wanted to be in M.M.’s life
and asked what he needed to do to regain care of his child.
The social worker provided father with information about
Department resources and a copy of the juvenile court’s
minute order. They agreed to meet the next week so father
could receive identification and transportation funds from
the Department. Father also told the social worker he had
some upcoming job interviews.
On August 19, 2019, the day father was to meet with
the social worker, father told her he had a job interview and
would not be able to keep their appointment. They
rescheduled and met on August 27, 2019. At the September
3, 2019 contested six-month review hearing, the juvenile
court found the Department had not provided father with
reasonable services, continued father’s reunification services,
and ordered him to complete a full drug program with
random testing.
In a January 2, 2020 status review report, DCFS
reported father “no showed” to drug tests on August 20, 2019
and August 29, 2019. In addition, he had not enrolled in any
court-ordered classes and was rearrested on August 30, 2019
and November 8, 2019. Due to his arrests, father’s visits
with M.M. were inconsistent. DCFS noted he was not
participating in visits with M.M. while incarcerated. The
report did not indicate whether DCFS had attempted to
arrange visits between father and M.M. during his
incarceration.
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On January 10, 2020, the juvenile court continued the
matter for a contested 12-month review hearing. On
February 3, 2020, DCFS reported that father remained
incarcerated at Men’s Central Jail in Los Angeles, with a
projected release date of August 16, 2020. The Department
reiterated that father had failed to participate in any of his
case plan and was not receiving visits due to his
incarceration.
DCFS also submitted its “Delivered Service Log,”
which tracks “All Contacts, Services & Visits” regarding the
case between August 1, 2019 and January 23, 2020. The
only contact between DCFS and father occurred in August
2019 and consisted of: (1) a phone call from father to the
social worker on August 5, 2019; (2) a meeting between
father and the social work at McDonald’s on August 16,
2019; (3) a planned, August 19, 2019 meeting that was
rescheduled due to father’s job interview, and (4) an August
27, 2019 meeting between father and the social worker.
On September 13, 2019, mother informed the social
worker that father was in jail, having been rearrested on
August 30, 2019. Some three weeks later, on October 7,
2019, the social worker conducted an inmate search and
confirmed father was in jail and housed at the Theo Lacy
Facility in Orange, California. At the time, the file did not
contain an anticipated release date.
At the February 27, 2020 12-month review hearing,
DCFS asked the court to terminate father’s reunification
services. It argued that services had been reasonable “in
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light of the [father’s] own conduct.” DCFS argued (contrary
to the evidence in the record) that father was “out and free in
the world” from August to November 2019, but made no
effort to enroll in any programs or keep the Department
apprised of how to reach him. Through counsel, father
acknowledged he missed an initial meeting in early August
2019, but argued he subsequently met with the
Department’s social worker twice in August. DCFS’ reports
make no mention of any attempts to contact him after
August 2019.
The juvenile court prefaced its decision by saying, “this
is a really difficult case because to some degree, the
Department did not provide reasonable services. [¶] There
is this whole open period which there is nothing by the
Department to investigate the father.” It believed “[t]he
Department could have done more” and, in fact, “should
have done more” in light of the juvenile court’s finding at the
six-month review hearing that DCFS had failed to provide
reasonable services to father.
“On the other hand,” the juvenile court continued,
father “did nothing. [¶] He didn’t test. [¶] He didn’t enroll.
[¶] And he has had 15 months. [¶] So the court is not going
to find that no reasonable efforts in this case as a shield for
[father] to ignore the case plan because of his failure to do
programs for the Department.” It concluded DCFS had
provided reasonable services, that father was not
substantially in compliance with his case plan, and that it
was not substantially probable that M.M. would return to
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her parents’ care within 18 months of the petition’s filing in
November 2018. The juvenile court terminated father’s
reunification services and set the matter for a hearing
pursuant to section 366.26.
Father filed this petition for extraordinary writ on May
12, 2020, arguing the juvenile court’s finding that the DCFS
provided reasonable service to him is not supported by
substantial evidence. We agree.
III.
DISCUSSION
A. Juvenile Court Findings Regarding the Provision
of Reasonable Services and Appellate Standard of
Review
At the 12-month review hearing, if the child is not
returned to his or her parent’s custody, the juvenile court
must “determine whether reasonable services that were
designed to aid the parent or legal guardian in overcoming
the problems that led to the initial removal and the
continued custody of the child have been provided or offered
to the parent or legal guardian.” (§ 366.21, subd. (f)(1)(A).)
Before the juvenile court may find that reasonable services
were rendered, “the record should show [the Department]
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
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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.) “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.) “Section 361.5 has been
construed, however, to require ‘[a] good faith effort’ to
provide reasonable services responding to the unique needs
of each family. [Citation.]” (In re Monica C. (1995) 31
Cal.App.4th 296, 306.) The Department’s efforts are judged
according to the circumstances of the particular case. (Robin
V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)
“Moreover section 366.21, subdivision (g)(3) requires ‘clear
and convincing evidence’ that such services have been
offered to the parents.” (In re Monica C., supra, 31
Cal.App.4th at p. 306.) “The court shall not order that a
hearing pursuant to [s]ection 366.26 be held unless there is
clear and convincing evidence that reasonable services have
been provided or offered to the parent or legal guardian.”
(§ 366.21, subd. (g)(1)(C)(ii).) The clear and convincing
evidence standard of proof requires the trier of fact to make
a finding of “high probability.” (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 998–1001.)
“When a finding that reunification services were
adequate is challenged on appeal, we review it for
substantial evidence.” (In re Alvin R. (2003) 108 Cal.App.4th
962, 971.) “An appellate court must account for the clear
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and convincing standard of proof when addressing a claim
that the evidence does not support a finding made under this
standard. When reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before
the appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder
could have found it highly probable that the fact was true.
In conducting its review, the court must view the record in
the light most favorable to the prevailing party below and
give appropriate deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at
pp. 994, 1011.) Applying the substantial evidence test, we
bear in mind the heightened burden of proof. (In re Kristin
H. (1996) 46 Cal.App.4th 1635, 1654.)
B. The Reasonable Services Finding is Not
Supported by Sufficient Evidence
Viewing the evidence in the light most favorable to the
Department, we find insufficient evidence it provided
reasonable reunification services to father in this case. As
an initial matter, the record does not support the
Department’s position that father “did nothing.” For
example, the Department contends father was released from
jail in June 2019 but failed to contact the social worker until
August 5, 2019, and then only because mother asked him to
10
tell the social worker she had been arrested. The record
reveals, however, that father contacted the Department
almost immediately after his release from jail. In a report
filed July 1, 2019, DCFS reported father had been released
from Orange County Jail recently, made contact with the
Department, and began monitored visitation with M.M. on
June 15, 2019. Despite noting that father made contact with
the Department soon after his release, the report contains no
indication the Department made any efforts to discuss his
case plan with him or to provide information about programs
and services.
It was only when father initiated contact with the
social worker again on August 5, 2019 that the Department
arranged to meet with him. Father acknowledges he missed
the first scheduled meeting, but the parties agree he soon
thereafter met with the social worker twice, on August 16,
2019 and again on August 27, 2019. He was re-arrested
three days later, on August 30, 2019.
As a result of the Department’s failure to contact
father about reunification services until August 2019—some
nine months after the case began—the juvenile court found,
on September 3, 2019, that the Department had not provided
father with reasonable services. Yet, in the six months after
that finding, the Department took one action only: After
learning from mother, on September 13, 2019, that father
was in jail, a social worker waited three weeks before
completing an inmate search for father on October 7, 2019.
That search revealed father had been incarcerated since
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August 30, 2019 and was then housed at the Theo Lacy
Facility in Orange, California. Having discovered where
father was incarcerated, the Department nonetheless made
no effort to contact father in jail, to find out whether or how
he might continue to progress in his case plan while
incarcerated, or to arrange visits between father and M.M.
We have long held that “[t]he [D]epartment’s
employees may not simply conclude that reunification efforts
are not feasible on the sole ground the parent is
incarcerated. [Citations.]” (Mark N. v. Superior Court
(1998) 60 Cal.App.4th 996, 1012, superseded by statute on
other grounds as indicated in Earl L. v. Superior Court
(2011) 199 Cal.App.4th 1490, 1504; see also In re Brittany S.
(1993) 17 Cal.App.4th 1399, 1402 [“‘go to prison, lose your
child’” is not an appropriate legal maxim].) It is the
Department’s obligation to “preliminarily identify services
available to an incarcerated parent. [Citation.] It cannot
delegate to an incarcerated parent the responsibility for
identifying such services. [Citation.]” (Mark N. v. Superior
Court, supra, 60 Cal.App.4th at p. 1012.)
Having failed to make any efforts to contact father at
all, much less to meet its obligations to identify services
available to father during his incarceration, to maintain
reasonable contact with him during the course of a service
plan, and to make reasonable efforts to assist him in areas
where compliance was difficult, (In re Riva M., supra, 235
Cal.App.3d at p. 414), DCFS cannot turn around and fault
father for his failure to make progress on his case plan. (See
12
Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1014
[Department is not relieved of its obligation to provide
reasonable reunification services to an incarcerated parent
simply because the parent did not request services].)
Nor do we credit the Department’s argument that
father was “out and free in the world” from August to
November 2019 but made no effort to enroll in any programs
or keep the Department apprised of how to reach him. The
Department’s own records indicate that, upon conducting an
inmate search on October 7, 2019, its social worker learned
father had been incarcerated since August 30, 2019.
Although we do not know when father was released from
jail, the record reflects that he was rearrested on November
8, 2019. As such, insofar as the record demonstrates,
father—far from being “out and free in the world” from
August to November 2019—was incarcerated for all or
nearly all of that time.
We do not doubt that father could have done more. He
could have reached out to the Department after his arrest on
August 30, 2019 and he could have inquired about the
programs and services available to him during his
incarceration. However, it is the Department’s obligation to
offer and facilitate reunification services, even if the
incarcerated parent does not request them. (Mark N. v.
Superior Court, supra, 60 Cal.App.4th at p. 1014; see also
T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1251
[“‘The effort must be made to provide suitable services, in
spite of the difficulties of doing so or the prospects of
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success’”) That is doubly true here, where the juvenile court
had already found the Department’s efforts insufficient on
September 3, 2019. It would make a mockery of the juvenile
court’s finding to then say the Department could fulfill its
obligations by locating father in jail and then waiting for him
to contact them.
C. Further Reunification Services are Appropriate
The Department urges us to affirm the juvenile court’s
order even if insufficient evidence supports its finding that
father was provided reasonable services. According to the
Department, father cannot show he was prejudiced by the
error because there is not a “substantial probability” that
M.M. will be returned to his custody if services were
continued for another six months. The Department notes
father was sentenced to two years in prison, and has a
scheduled release date of August 16, 2020, well after the
maximum 18-month reunification period. We are not
persuaded by the Department’s argument.
Here, we conclude the error is prejudicial to father,
who faces the loss of his parental rights without ever having
been afforded his statutory and constitutional rights to
reunification services. (In re M.S. (2019) 41 Cal.App.5th
568, 591–592.) “‘The remedy for the failure to provide court-
ordered reunification services to a parent is to provide an
additional period of reunification services to that parent and
to make a finding on the record that reasonable services
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were not offered or provided to that parent.’” (In re A.G.
(2017) 12 Cal.App.5th 994, 1005; see also In re M.F. (2019)
32 Cal.App.5th 1, 24.) This is true even if continuation of
reunification services would extend the case beyond the 18-
month time frame contemplated by section 361.5,
subdivision (a)(3)(A).2 (See In re M.F., supra, 32 Cal.App.5th
at pp. 23–24; T.J. v. Superior Court, supra, 21 Cal.App.5th
at pp. 1254–1257; see also § 366.21, subd. (g)(1)(C)(ii) [“The
court shall not order that a hearing pursuant to [s]ection
366.26 be held unless there is clear and convincing evidence
that reasonable services have been provided or offered to the
parent or legal guardian”].) Accordingly, father’s August 16,
2020 release date poses no barrier to our decision.
2 We are not swayed by the Department’s citations to
In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365 and Fabian
L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1031–
1032. Unlike the situation before us, both cases involve an
affirmance of the juvenile court’s finding that reasonable
services had been provided.
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IV.
DISPOSITION
The petition for extraordinary writ is granted. The
juvenile court is directed to find that reasonable services
were not offered to father and to provide him an additional
six months of services.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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