In re Matthew G. CA4/1

Filed 6/24/13 In re Matthew G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re MATTHEW G., a Person Coming
Under the Juvenile Court Law.
D063140
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12739)
Plaintiff and Respondent,

v.

JOHN M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for

Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
 At the six-month review hearing in the juvenile dependency case of Matthew G.,

the juvenile court granted the modification petition of the San Diego County Health and

Human Services Agency (the Agency) (Welf. & Inst. Code, § 388, subd. (c)(3))1 and

terminated reunification services for Matthew's father, John M. John appeals, contending

he was deprived of procedural due process because the petition did not allege that

continued services would be detrimental to Matthew. John also contends the evidence is

insufficient to support the detriment finding; the finding that he was provided reasonable

services; and the finding that his action or inaction created a substantial likelihood

reunification would not occur. We affirm.

BACKGROUND

John began using marijuana in 1999 or 2000, when he was 15 years old. Matthew

was born in July 2005 to L.G., and although John was aware of the pregnancy, he did not

take an interest in Matthew until 2011.

As of 2009 or 2010, John was on probation or parole2 for a domestic violence

conviction. He was also subject to a criminal protective order obtained by the domestic

violence victim, his former girlfriend. The protective order was set to expire April 21,

2013. After 2009, John had no contact with his two children from that relationship. John

1 Further statutory references are to the Welfare and Institutions Code.

2 Various parts of the record are in conflict on this point.
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claimed he was wrongfully convicted and he was the victim of the domestic violence. He

completed a 52-week domestic violence course in December 2011.

In 2011, John began smoking marijuana for pain management. In November, he

began living with L.G. and Matthew. In January 2012, John attempted to spank Matthew

with a ruler. A metal strip on the ruler struck Matthew's fingers and caused them to

bleed. Matthew said that John hit him "hard" and "he was afraid that [John] was going to

rip my body off."

On the evening of March 2, 2012, Matthew vomited and fainted. L.G. and John

(together the parents) took Matthew to the emergency room. John left the hospital and

L.G. stayed with Matthew. L.G. reported that John had smoked marijuana in the car that

afternoon, while Matthew was in the car. At the hospital, Matthew was unconscious for

six hours and tested positive for marijuana.

In interviews with social workers, Matthew described John's marijuana use and

violence. Matthew said, "[John] told me that [the social worker] was going to take me

away and I was sad and I cried a lot." John denied exposing Matthew to marijuana and

denied any domestic violence. John said he would not have taken Matthew to the

hospital if he had known that Matthew was under the influence of marijuana.

On March 6, 2012, six-year-old Matthew was detained in Polinsky Children's

Center (Polinsky). On March 9, the Agency filed a dependency petition. The petition, as

later amended, alleged that beginning in March, John used marijuana to excess. Matthew

tested positive for marijuana twice. John admitted he used marijuana and had a medical

marijuana card. The parents denied they used marijuana at home or around Matthew.

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Matthew described how to use a marijuana pipe and where to put the marijuana. He

knew how to inhale the smoke, hold it in and then exhale.

Beginning in February, Matthew was exposed to the parents' violent

confrontations. In Matthew's presence, the parents had an argument that included

slapping. During the argument, John destroyed some items in the house and threw

Matthew's bird cage on the floor, killing the bird. Matthew and L.G. said that John threw

all of their clothes out of the house and told them to leave. John had a history of

domestic violence, including a 2009 altercation with the mother of Matthew's half

siblings.

At the detention hearing, the court ordered liberal, separate visits for the parents,

with supervisors chosen by the Agency, and ordered the Agency to give the parents

referrals to voluntary services. While Matthew was at Polinsky, John had twice-weekly

visits. On March 16, 2012, Matthew was moved to the home of a relative. John visited

Matthew there.

On March 26, 2012, the Agency sent John referrals to a domestic violence

program, individual therapy, a parenting course and substance abuse treatment. On

March 29, the court made true findings on the dependency petition, ordered Matthew

placed with a relative and ordered reunification services for the parents. John's

reunification plan included the four services listed above and supervised visitation. On

April 3, John was incarcerated on charges of burglary and inflicting corporal injury on a

cohabitant. The court authorized a telephone card for John while he was incarcerated,

and ordered visitation consistent with the policy of the facility.

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 In his relative placement, Matthew was hostile and uncooperative and engaged in

self-destructive behavior. As a result, the relative contemplated ending the placement.

The social worker enlisted the help of a therapist to stabilize the placement and, over

several months, Matthew's behavior improved.

Matthew refused to visit John in jail. When asked why, Matthew replied that John

had killed his bird and hurt L.G. Matthew said he was scared when John killed the bird.

For several months, Matthew remained resolute in his refusal to visit John. Meanwhile,

John was moved, several times, to different facilities. In August 2012, Matthew said he

did not want to visit John "because it was too far." The Agency asked John to write

letters or telephone Matthew as a way to increase Matthew's comfort with visitation.

John did not send any letters, and his incarceration apparently precluded telephone calls.

By September 5, 2012, John had been transferred to a prison in Imperial County.3

He told the Agency the prison would not allow him to have any visitors during his

assessment immediately following his transfer. To receive approval for visits after the

assessment, the prison required John to sign forms and send them to the Agency. John

did so, and immediately upon receiving the forms, the Agency sent them to the relative

caregiver. By September 13, the caregiver had completed the forms and sent them to the

prison, and a 30-day waiting period for the prison's approval had begun. The social

worker called the prison to ask for a visit during the waiting period, but received no

3 The record does not include the date of the transfer and does not show any further
transfers.
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response. Meanwhile, the social worker and Matthew's therapists encouraged Matthew to

visit and, by September, Matthew had reluctantly agreed.

As of September 13, 2012, John's incarceration had prevented him from

participating in any services. On October 10, the Agency filed its modification petition

(§ 388, subd. (c)(1)(A) & (B)). The hearing on the petition took place at the November

14 six-month review hearing. By the time of the hearing, there had been no visits

between John and Matthew in jail or prison.

At the hearing, the court received the following stipulated testimony of the social

worker, presented by John's counsel: "[The social worker] received an e-mail from

[John's] counsel stating that her investigator found that [John's] current facility provides

substance abuse programs through [Alcoholics Anonymous (AA)] and narcotic abuse

programs through [Narcotics Anonymous (NA)], anger management, creative conflict

resolution, parenting classes and several religious based education programs. [¶] [John's]

counsel indicated that she received this information from Ken Phillips who worked at the

facility. [The social worker] tried to follow-up with Mr. Phillips . . . . [¶] . . . [¶] [The

social worker] left messages, but Mr. Phillips has never responded. [The social worker]

was able to reach [Rebecca Lores, the litigation coordinator in the warden's office, and

Lores] stated that there were the following programs available to [John]: AA group and

NA group and anger management class."

The court granted the section 388 petition and terminated John's reunification

services. The court continued L.G.'s reunification services and confirmed the March 26,

2013, 12-month review hearing.

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 DISCUSSION

I

Introduction

"When a dependent child is removed from parental custody, the court generally

orders services for the family to facilitate its reunification. [Citations.] Reunification

services for a parent of a dependent child over the age of three are ordinarily limited to 12

months, but may be extended to the 18-month date. [Citation.] A parent, however, has

no entitlement 'to a prescribed minimum period of services.' [Citation.] Instead, the

court has discretion to determine whether continued services are in the best interests of

the minor, or whether services should be terminated at some point before the applicable

statutory period has expired." (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 876.)

" '[R]eunification services are a benefit, not a constitutional entitlement . . . .' " (Id. at

p. 877, quoting In re Jesse W. (2007) 157 Cal.App.4th 49, 60.)

In the case of "a child who, on the date of initial removal from the physical

custody of his or her parent . . . , was three years of age or older" (§ 361.5, subd.

(a)(1)(A)), the Agency may petition for termination of reunification services before the

12-month review hearing (§ 366.21, subd. (f)). A petition is appropriate if "a change of

circumstance or new evidence exists that satisfies a condition set forth in

subdivision . . . (e) of Section 361.5" (§ 388, subd. (c)(1)(A)), or if "[t]he action or

inaction of the parent . . . creates a substantial likelihood that reunification will not occur,

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including, but not limited to, the parent's . . . failure to visit the child, or the failure of the

parent . . . to participate regularly and make substantive progress in a court-ordered

treatment plan" (id., subd. (c)(1)(B)). "The court shall terminate reunification

services . . . only upon a finding by a preponderance of evidence that reasonable services

have been offered or provided, and upon a finding of clear and convincing evidence that

one of the conditions in subparagraph (A) or (B) of paragraph (1) exists." (Id., subd.

(c)(3).)

Section 361.5, subdivision (e)(1), referred to in section 388, subdivision (c)(1)(A),

states "the court shall order reasonable services [for an incarcerated parent] unless the

court determines . . . those services would be detrimental to the child. In determining

detriment, the court shall consider the age of the child, the degree of parent-child

bonding, the length of the sentence, . . . the nature of the crime . . . , the degree of

detriment to the child if services are not offered . . . , the likelihood of the parent's

discharge from incarceration . . . within the reunification time limitations described in

subdivision (a), and any other appropriate factors." (§ 361.5, subd. (e)(1).) As to section

388, subdivision (c)(1)(B), "[i]n determining whether the parent . . . has failed to visit the

child or participate regularly or make progress in the treatment plan, the court shall

consider factors that include, but are not limited to, the parent's . . . incarceration . . . ."

(§ 388, subd. (c)(2).)

On appeal, we first determine whether the required factual findings are supported

by substantial evidence. (In re M.V. (2006) 146 Cal.App.4th 1048, 1059-1060.) If

substantial evidence supports those findings, we decide whether the juvenile court abused

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its discretion by terminating reunification services based on the findings. (In re Jasmon

O. (1994) 8 Cal.4th 398, 415.) " ' "The sufficiency of evidence to establish a given fact,

where the law requires proof of the fact to be clear and convincing, is primarily a

question for the trial court to determine, and if there is substantial evidence to support its

conclusion, the determination is not open to review on appeal." [Citations.]' [Citation.]

Thus, on appeal from a judgment required to be based upon clear and convincing

evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting

evidence is applied, giving full effect to the respondent's evidence, however slight, and

disregarding the appellant's evidence, however strong.' " (Sheila S. v. Superior Court

(2000) 84 Cal.App.4th 872, 880-881.)

Here, the Agency's petition cited section 388, subdivision (c)(1)(A) and (B) and

alleged the following facts: John was incarcerated with a release date of April 5, 2013.

Because his detention facility did not provide services, he would be unable to complete

domestic violence and drug abuse programs by the 12-month review date. John was a

part of Matthew's life for a short period before the inception of this case, and Matthew

was not emotionally attached to him. John was the primary aggressor in the domestic

violence. Matthew was upset with John's conduct toward L.G. and did not wish to visit

or reunify with him. L.G. was doing well in her services and was likely to reunify with

Matthew by the 12-month date.

The court found reasonable services were offered or provided. The court also

found continued services would be detrimental to Matthew, and John's actions created a

substantial likelihood that reunification would not occur by the 12-month date or the 18-

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month date. We conclude substantial evidence supports the findings, and the court did

not abuse its discretion by granting the Agency's section 388 petition and terminating

John's reunification services.

II

Reasonable Services

John contends that after he was sent to prison, the social worker did not consult

with him or revise the reunification plan. In the seven months between the time John was

incarcerated and the date of the six-month review hearing, neither he nor his trial counsel

sought adjustment of the plan or complained that services were unavailable.4 (In re

Christina L., supra, Cal.App.4th at p. 416.) On October 11, 2012, John's counsel said,

"nothing in [the Agency's petition] says there aren't services available to [John] at his

current facility . . . . Perhaps he is able to engage in services right now." The stipulated

testimony shows that after John was sent to prison, the social worker attempted to contact

prison personnel and eventually reached a prison employee, who listed the available

services. No consultation with John could have expanded the list to encompass all of the

4 John suggests that the social worker should have sent him a parenting packet and
personally provided therapy. We need not discuss these suggestions, made for the first
time on appeal. We also decline to discuss John's belated assertions that the case plan did
not address "[t]he underlying cause of his problems" and may have included services not
provided by the prison. "If [John] felt during the reunification period that the services
offered . . . were inadequate, [he] had the assistance of counsel to seek guidance from the
juvenile court in formulating a better plan: ' "The law casts upon the party the duty of
looking after his legal rights and of calling the judge's attention to any infringement of
them. If any other rule were to obtain, the party would in most cases be careful to be
silent as to his objections until it would be too late to obviate them, and the result would
be that few judgments would stand the test of an appeal." ' " (In re Christina L. (1992) 3
Cal.App.4th 404, 416.)
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services in his plan. Eliminating unavailable services, such as domestic violence

treatment, would have prevented the plan from addressing the problems that led to the

dependency. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

John asserts the court erroneously believed services were available to him in

prison during the six months preceding the hearing. The record does not support this

assertion. The court stated: "Had [John] been in substance abuse through NA or AA,

taking some anger management class, something to show he made a good faith effort to

take advantage of those services that were available to him, if indeed, they were available

to him, he has not done so." The court also found that John "was able to send letters to

[Matthew] and did not do so." " 'It is . . . well established that "[r]eunification services

are voluntary, and cannot be forced on an unwilling or indifferent parent." ' " (In re

Nolan W. (2009) 45 Cal.4th 1217, 1233, quoting In re Jonathan R. (1989) 211

Cal.App.3d 1214, 1220.) There is no " 'requirement that a social worker take the parent

by the hand and escort him or her to and through [services].' " (In re Nolan W., at

p. 1233, quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)

John argues the court incorrectly considered his incarceration as a reason to

terminate services, rather than as a barrier to services.5 The court stated:

5 John cites section 361.5, subdivision (e)(1), which governs the court's order of
services for an incarcerated parent. That subdivision states: "In determining the content
of reasonable services, the court shall consider the particular barriers to an
incarcerated . . . parent's access to those court-mandated services and ability to maintain
contact with his or her child, and shall document this information in the child's case
plan." (Id., subd. (e)(1).) The only barriers here were the unavailability of services in the
facilities in which John was first incarcerated, and the limited offering of services in the
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"[I]ncarceration cannot be made . . . an excuse for not being in services. It's [John] who

got himself incarcerated, violated his parole and was sent back to prison for a significant

period of time[, causing] this situation that he's in." This is an accurate statement of the

law. It was John's responsibility to stay out of custody as "a fundamental first step" in the

reunification process. (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162; see also

Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.)

John argues that his incarceration was a barrier to visitation because "Matthew's

concerns about visiting [John] appeared to be intimately tied to [John]'s incarceration."

John notes that before he was incarcerated, the Agency described his visits with Matthew

as "typical" and "normal." That period of visitation was extremely short, as John was

incarcerated only four weeks after Matthew was detained. It was not John's incarceration

that was a barrier to further visits, but rather the trauma he had inflicted upon Matthew.

The social worker suggested that John send letters to increase Matthew's comfort, but

John ignored the suggestion.

" '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.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599,

quoting In re Misako R., supra, 2 Cal.App.4th at p. 547.) Substantial evidence supports

the finding that John was offered or provided reasonable services.

prison where he was housed at the time of the six-month review hearing. There were no
barriers at the time of the dispositional hearing, when the court ordered the case plan.
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 III

Detriment

John contends he was deprived of procedural due process because the Agency's

petition did not allege continued services would be detrimental to Matthew. Although the

petition does not contain the word "detriment," it does cite section 388, subdivision

(c)(1)(A), which refers to detriment. The petition also alleges elements of detriment

listed in section 388, subdivision (c)(1)(A), including John's presence in Matthew's life

for a short time; Matthew's lack of an emotional attachment to John; and Matthew's

negative emotional reaction to John's violence. Moreover, in closing argument, John's

counsel cited the detriment provision in 388, subdivision (c)(1)(A). John was not

deprived of procedural due process.

John also contends there were no changed circumstances or new evidence to prove

detriment. John's incarceration and consequent inability to participate in critically

important services, including domestic violence treatment, was a circumstance that had

changed since the dispositional hearing. Matthew's refusal to visit John was another

changed circumstance.

In determining detriment, the focus is on the child. (In re Kevin N. (2007) 148

Cal.App.4th 1339, 1345.) Substantial evidence supports the finding continued services

would have been detrimental to seven-year-old Matthew. John took little interest in

Matthew until he was five or six years old, and did not begin living with Matthew until he

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was six years old. John hit Matthew with a ruler, causing bleeding; exposed him to

domestic violence; killed a pet bird while Matthew watched; and exposed him to

marijuana smoke, requiring him to be hospitalized. John's brutality traumatized

Matthew. John was incarcerated after living with Matthew for just four or five months,

and was to be released after the 12-month review hearing. L.G. had completed parenting

and drug treatment programs and individual therapy, and was making progress in

domestic violence treatment. She had demonstrated an ability to handle Matthew's

behavior and they were "very close." John speculates that he will interact with Matthew

and L.G. after his release. This will be detrimental to Matthew unless John has been

rehabilitated. There was no evidence the services available to John in prison would

become unavailable if the court terminated his reunification plan.

IV

Likelihood of Reunification

In finding there was not a substantial likelihood of reunification by the 12-month

date, or even the 18-month date, the court cited John's pattern of violence: his "original"

act of domestic violence, his killing of the bird in Matthew's presence, and the continued

violent behavior that led to John's incarceration. The court believed John needed a year-

long domestic violence program and, considering his past conduct in this case, he was not

likely to succeed in the program. The court also noted that John had not written to

Matthew.

The above facts support the finding. John completed a one-year domestic violence

course before he committed the acts of violence that led to this case. He denied

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responsibility for his violence in his earlier relationship, and denied being violent with

L.G. and Matthew. John ignored the social worker's advice to send letters to Matthew as

a way to decrease Matthew's emotional trauma and make visits possible.

John speculates that he might be released from prison early; he might be moved to

another facility with more services; and Matthew's feelings might change. This

speculation does not undermine the court's conclusion. Substantial evidence supports the

finding that John's actions or inactions created a substantial likelihood that reunification

would not occur.

DISPOSITION

The order is affirmed.

MCDONALD, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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