Filed 12/23/14 Ricardo M. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

RICARDO M., Petitioner,

v. THE SUPERIOR COURT OF KERN COUNTY, Respondent;

KERN COUNTY DEPA RTMENT OF HUMAN SERVICES, Real Party in Interest. F070239
(Super. Ct. Nos. JD131877, JD131878



### OPINION

THE COURT * ORIGINAL PROCEEDINGS; petition for ex traordinary writ review. William D. Palmer, Judge. Margaret H. Smith, for Petitioner. No appearance fo r Respondent. Theresa A. Goldner, Coun ty Counsel, and Thomas G. Morgan, Deputy County Counsel, for Real Party in Interest.
-ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.2 At a contested six-month review hear ing (Welf. & Inst. Code, § 366.21, subd. (e)), 1 in October 2014, the juven ile court terminated Ricardo M.’s reunification services as to his six-year-old son R.M. and three-ye ar-old daughter L.M. and set a section 366.26 hearing to implement a permanent plan. Ricardo challenges the juvenile court’s setting order by extraordinary writ petition. (Cal. Rules of Court, rule 8.450.) He contends there
was insufficient eviden ce to support the juvenile court’s finding that he was provided reasonable services. He also contends the j uvenile court erred in not placing the children with their paternal grandparents. Ricardo as ks this court to issue a writ directing the juvenile court to vacate its orders terminating his reunifi cation services and setting a section 366.26 hearing and to or der an additional six months of reunification services for
him. We find no erro r and deny the petition.
PROCEDURAL AND FACTUAL SUMMARY In December 2013, the department took then five-year-old R.M., two-year-old L.M., and their eight-week-old half brothe r Raymond into protective custody after
Ricardo and the children’s mother were arre sted for being under the influence of a
controlled substance. The children were placed together in foster care. Ricardo told the investigating social work er that he was not Raymond’s biological father but held Raymond out as his own child. He was aware that the mother used drugs and that Raymond was born positive for methamphetamine. Ricardo said methamphetamine was his drug of choice. On December 27, 2013, the juvenile cour t convened the initial hearing. Ricardo appeared and the court appointed him counsel. The court continue d the hearing because the mother was not present to testify as to Ricardo’s paternity status. The court deemed Ricardo the children’s alleged father and granted him visitation pending th e next hearing.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.3 Following the initial hearing, family serv ices social worker Juan Arredondo met with Ricardo to discuss services. Ricardo ag reed to participate in counseling for child neglect, parenting, substance abuse, and an ger management. He signed a copy of his services plan and was given a copy of it. On that same day, Arredondo referred Ricardo to the Kern County Mental Health Gatekeep er and to College Community Services for anger management and parenting. Ricardo completed a substance abuse assessment and was assessed as needing a “level 3” plan of care. His intake appointment was scheduled for January 8, 2014. On January 3, 2014, Ricardo and mother appeared at the continued initial hearing. The juvenile court ordered the children detained and elevated Ricardo to presumed father status. The court ordered weekly superv ised visitation for both parents. On January 17, 2014, Ricardo’s parent s (paternal grandparents) submitted an application for placement of the children. On January 28, 2014, Ricardo and the mother were involved in a physical con frontation and were arrested. On February 10, 2014, the juvenile cour t convened the jurisdictional hearing. Neither Ricardo nor the mother personally ap peared. The juvenile court adjudged the children its dependents under se ction 300, subdivision (b). The paternal grandparents’ placement application was still pe nding because they ha d not begun the live scan process. On February 26, 2014, the juvenile c ourt convened the dispositional hearing. Again neither Ricardo nor the mother appeared . The court ordered the children removed from parental custody and orde red reunification services for Ricardo and the mother. Ricardo’s reunification plan required him to participate in counseling for anger management, parenting, and s ubstance abuse and to submit to random drug testing. Sometime in February or early March 2014 , Ricardo was deported to Mexico. On March 5, 2014, he telephoned Arredondo using a pay phone and said he was then living in Jalisco, Mexico. Arredondo gave Ricardo his attorney’s contact information and
reminded him of his court-ordered services. Ricardo said he had a relative who had4 contact with the local child pr otective services in Jalisco. He said he was not working and would have difficulty paying for his courses. He said he wanted to return and gain custody of the children. He said he woul d keep Arredondo updated on his case plan compliance. Arredondo told Ricardo that he could call the department collect. Arredondo sent Ricardo a monthly form lette r from March to August 2014, listing the
services he needed to complete. The letter advised Ricardo that the department would provide him referrals to specifi c agencies and assist him in completing his services plan requirements. It also listed the department’s telephone number. On August 14, 2014, Ricardo telephoned Arredondo and left a message that he was living in Tijuana, Mexico. The next day, Arredondo tried to reach Ricardo using the telephone number he left but received a me ssage stating the call could not be connected as dialed. On August 18, 2014, Arredondo received a te lephone call from Ricardo. Arredondo reviewed Ricardo’s case plan requir ements with him and verified his phone number and mailing address. Ricardo said he received the letters Arredondo sent. Ricardo said he was working and staying clean and doing his drug counseling. Arredondo told him the department needed proof of his compliance. Arredondo gave
Ricardo the name of his new social worker an d the contact information, including the fax number. During the conversation, Ricardo asked about the status of the paternal grandparents’ application for placement. Ar redondo explained that their application had
been denied because th e paternal grandmother was not honest about her husband’s legal
issues. The department recommended in its report for the six-month review hearing that the juvenile court terminate Ricardo and the mo ther’s reunification services as they had not made any progress with their case plans. The department repor ted that Ricardo had not faxed any documents. The moth er’s whereabouts were unknown. On October 1, 2014, the juvenile court convened the contested six-month review hearing. Ricardo and the mother did not app ear. Arredondo testified that he did not5 investigate whether Ricardo’s court-ordered services, including random drug testing, were available where Ricardo was residing in Mexico. He told Ricardo that Ricardo
could send him letters but did not tell him he could contact the children by telephone. Ricardo’s attorney asked Arredondo if he contacted the Mexican Consulate for
assistance. Arredondo said he had not and did not know if that was the department’s standard procedure in such a case. Ricardo’s attorney argued the department failed to provide Ricardo reasonable
reunification services because Arredondo did not give him a ny direction as to where and how to drug test and did not facilitate visita tion. The juvenile co urt disagreed and found the department provided Ricard o reasonable services. The c ourt also found that Ricardo and the mother failed to regularly participat e in and make substantive progress in their court-ordered treatment plans. Consequen tly, the court terminated their reunification
services and set a sec tion 366.26 hearing. This petition ensued. 2
DISCUSSION Ricardo contends the juvenile court erred in finding the department provided him reasonable services. We disagree. When a child is removed from a parent’s custody, the social services department must make a good faith effort to develop and implement reasonable family reunification services responsive to the needs of that family. ( In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) “The adequacy of a reunificati on plan and of the department’s efforts are judged according to the circumstances of eac h case.... ‘The effort must be made to provide suitable servic es, in spite of the difficulties of doing so or the prospects of success. [Citation.]’ ... ‘[T]he record shoul d show that the [depar tment] identified the problems leading to the loss of custody, offered services designed to remedy those

2 The mother did not file a writ petition.6 problems, maintained reasonable contact with the [parent] during the course of the service plan, and made reasonable efforts to assist the [parent when] compliance proved difficult ....’” ( In re Ronell A . (1996) 44 Cal.App. 4th 1352, 1362.) Thus, whether a parent was provided reasonable services is a two-part
determination. The first determination is whether the reunification services selected by the department are reasonably tailored to address the problems that necessitated the juvenile court’s intervention. The second determination is whether the department made reasonable efforts to assist the parent in acces sing the services selected. In other words, the services plan content and the department’s efforts to assist th e parent in complying
must be reasonable.
The reunification services are ordered in to effect at the dispositional hearing and remain the order of the juvenile court unless the parent succeeds in having them modified by direct appeal from the disp ositional orders or by filing a section 388 petition. In contrast, the reasonableness of the department ’s efforts is fluid a nd the juvenile court must determine at each review hearing wh ether the parent was provided reasonable services during the peri od under review. On a challenge to the juvenile court’s reasonable services finding, we view the evidence in a light most favor able to the respondent, indul ging in all legitimate and reasonable inferences to uphold the finding. ( In re Misako R . (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juve nile court’s finding, we will not disturb it. ( Ibid. ) Moreover, under our review, services n eed not be perfect to be reasonable. Rather, the “standard is ... whether they we re reasonable under the circumstances.” ( Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 96 9.) Since Ricardo bears the burden of demonstrating error on appeal ( Winograd v. Americ a Broadcasting Co . (1998) 68 Cal.App.4th 624, 632), he must show that the juvenile court’s reasonable services finding is not supported by su bstantial evidence. We conc lude he failed to meet his
burden.7 In this case, Ricardo participated in th e development of his services plan and assented to its terms by signing it. He di d not challenge the co ntent of the plan by appealing from the dispositional order or seek to have it modified by filing a section 388 petition. Further, Arredondo provided Ricardo service referrals and Ricardo was ready to begin drug treatment when he was deported. In early March 2014, Ricardo contacted Arredondo, told him he was in Mexico and intimated he would contact Mexico’s equivalent of the local child protective se rvices agency. Ricardo did not contact Arredondo again until August. Nevertheless, Arredondo atte mpted to maintain contact with Ricardo by sending him reminder letters , providing him the de partment’s telephone number, and telling Ricardo he could telephone the department collect. In August, Ricardo contacted Arredondo to say that he had relocated, was participating in drug counseling and maintaining sobriety. Arredo ndo asked Ricardo to provide proof of his compliance and gave Ricardo th e department’s fax number. In our view, the department met its duty to provide Ricardo reasonable services.
Arredondo made sure Ricardo knew what wa s required of him and referred him for the services. To the extent possible, he main tained contact with Ricardo in Mexico by correspondence and offered his assistance in arranging servic es for Ricardo in Mexico. Ricardo, however, did not ask for assistance, apparently relying on self-help to obtain drug counseling and random drug testing.
Ricardo nevertheless contends his servi ces plan was unreasonable because it did not contemplate his deportation and identify se rvices available to him in Mexico. As we stated above, Ricardo assented to the content of his services plan and did not challenge it on appeal or attempt to modi fy it. Therefore he is now barred from arguing the reunification plan co ntent is unreasonable. ( In re Julie M . (1999) 69 Cal.App.4th 41, 47.) However, even if the issue were properly before us, we would
conclude it lacked merit.8 To support his contention, Ricardo cites this court to In re Maria S . (2000) 82 Cal.App.4th 1032 ( Maria S .), a case in which the appellate court reversed a juvenile court order terminating a mother’s parental rights. The appellate court concluded that the terms of the reunification plan and the mother’s lik ely deportation deprived her of a reasonable opportunity to comp ly with the plan. Such is not the case he re as we now explain.
In Maria S ., the appellant gave birth to a child while incarcerated on a drug possession charge. The department develope d a reunification services plan for the appellant designed to begin up on her release from prison. The department was aware, however, that the appellant was subject to de portation upon her releas e. Upon release, the appellant was deported but maintained weekly contact with a social worker and made many unsuccessful efforts to reenter the coun try. Over the appellant’s objection, the juvenile court terminated her parental rights. ( Maria S., supra, 82 Cal.App.4th at pp. 1034-1038.) In reversing, the appella te court concluded there was no evidence the “appellant was afforded any reasonable opport unity to complete th e contemplated case plan and reunify with Maria.” ( Id . at p. 1040.) Here, there is no evidence anyone had fo reknowledge of Ricardo’s deportation. Further, unlike the appellant in Maria S ., Ricardo had a reasonable opportunity to complete his services plan. His services were immediately available to him upon referral. He was participating in them at the time of his deportation and continued to do so while
in Mexico. Had Ricardo not b een able to access any of his services, he could have
informed Arredondo or his attorney and sought a modification of his case plan. Ricardo further contends, citing Mark N. v. Superior Court (1998) 60 Cal.App.4th 996 ( Mark N .), the department’s efforts to assist him were not reasonable because Arredondo did not inquire as to what serv ices were available to him in Mexico. Mark N. is distinguishable on several key points.
Mark N . arose on an extraordinary writ of ma ndate from the juvenile court’s order terminating an incarcerated father’s reunificati on services at an 18-month review hearing.9 The father was incarcerated during the last 17 of the 18 month re unification period. ( Mark N ., supra , 60 Cal.App.4th at p. 1000.) The ap pellate court concluded the evidence was insufficient to support a finding the de partment provided the father reasonable services and granted the petition. ( Id . at pp. 1012, 1018-1019.) The court stated: “The department failed to contact the father during 13 of the 17 months of his incarceration,
made “ no effort to determine whether any services were available or could be provided,”
and instead concluded there was no need to “t ake any action to facilitate the reunification process.” ( Id . at p. 1013, original italics.) Here, Arredondo maintained contact with Ricardo by correspondence and attempted telephone contact when Ricardo pr ovided him a telephone number. He also
informed Ricardo in the letters that he was available to help him with services and provided him a contact numbe r. Arredondo did not inquir e about the availability of services in Jalisco and Tijuan a but then Ricardo did not a ppear to need help accessing services. Arredondo’s regular communicati on with Ricardo and Ricardo’s ability to access services distinguishes this case from Mark N

. That said, we are mindful that Mexico ha s a social services ag ency comparable to our child protective services. Had Arredondo contacted that agency, it is reasonable to
assume that it would have acted as an arm of the department to provide Ricardo local assistance in accessing his services and re porting his compliance. However, Ricardo
does not show how he would ha ve had better access to servic es or made more progress had Arredondo contacted the agency. Furthe r, it is possible that Ricardo was receiving the agency’s assist ance since he said he was going to contact the agency and he was receiving drug counseling and pr esumably drug testing as we ll. In any event, Ricardo failed to meet his burden of showing that th e juvenile court erred in finding he was provided reasonable services. Consequently, we conclude substantial evidence supports the juvenile court’s reasonable services finding.10 Finally, Ricardo contends the children shou ld have been placed with their paternal grandparents. However, he did not raise the issue before the juvenile court. Consequently, he forfeited any argument he ma y have with respect to relative placement and is precluded from raisi ng it on this petition. ( In re Sabrina H . (2007) 149 Cal.App.4th 1403, 1419.)
We find no error on this record.
DISPOSITION The petition for extraordinary writ is denied. This opini on is final forthwith as to
this court.