IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
November 30, 2010
FELIX S., PETITIONER,
THE SUPERIOR COURT OF MENDOCINO COUNTY,
MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES ET AL., REAL PARTIES IN INTEREST.
The opinion of the court was delivered by: Jones, P.J.
Felix S. v. Superior Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to California Rules of Court, rule 8.452, petitioner Felix S. (father or Felix) moves to vacate the order issued by the juvenile court terminating reunification services as to his son, Felix Jr., and setting a Welfare and Institutions Code section 366.26 hearing (.26 hearing).*fn1 Father contends: (1) he was entitled to additional reunification services; (2) the court improperly considered hearsay statements contained in the social workers' reports; and (3) the reunification services provided by the Mendocino County Health and Human Services Agency (Agency) were inadequate. Father also requests a stay.
We deny the petition and the request for a stay.
FACTUAL AND PROCEDURAL BACKGROUND
Felix Jr. was born in December 2008. Mother was 22 when Felix Jr. was born; father was 19. In July 2009, the Agency filed a section 300 petition alleging mother and father failed to protect Felix Jr. The petition alleged both parents had placed Felix Jr. at substantial risk of harm by engaging in numerous incidents of domestic violence from November 2008 to July 2009. Specifically, the petition alleged father had struck mother and kicked her in the presence of Felix Jr. and that both parents had placed Felix Jr. at risk of child abuse by staying at the home of Felix's father, Duane S., a registered sex offender. (§ 300, subd. (b).) The court detained Felix Jr. and, in August 2009, determined he came within section 300, subdivision (b).
Following a dispositional hearing, the court ordered mother and father to participate in reunification services. The court adopted the Agency's case plan for father, which required him to, among other things, "[s]tay sober and show [his] ability to live free from alcohol dependency" by: (1) completing a "substance abuse assessment . . . or other drug/alcohol treatment program . . .;" (2) submitting "clean, unadulterated drug/alcohol tests;" (3) maintaining "a clean and sober lifestyle," and (3) refraining from allowing Felix Jr. "to be exposed to anyone abusing drugs or alcohol."
Six-Month Review Reports and Hearing
In a report prepared for the six-month review hearing, the Agency stated father had been "diligent about visiting his son. He is consistently on time for his visits and he interacts with his baby appropriately. He is open to suggestions as to how to interact with his child." The Agency also noted that father would begin a series of parenting classes and showed "strong motivation" to accomplish his parenting goals. The report noted, however, that father attended the Family Empowerment Group class sporadically from October 2009 to February 2010. The report also stated that father had been eligible to begin taking a Basic Education class in late September 2009, but had been "very slow to begin" the class: he did not begin taking the class until January 2010. Despite his slow start, however, the report noted father was "aware of the core issues in his case relating to appropriate housing, a violent relationship between himself and . . . mother and the negative role of alcohol in his life." The Agency described how two social workers met with father to go "over his case plan with him thoroughly to be sure that he understood what he needed to be working on." The social worker gave father "directions for conducting a level four unsupervised visit" and encouraged father to attend his classes regularly.
According to the report, father had "made strides toward providing housing for his family." He had been refurbishing a two-bedroom mobile home and had "applied for Tribal help with obtaining a water and sewer system to be installed. . . ." When a social worker visited the mobile home in early February 2010, she noticed father had been working on the mobile home and that the two bedrooms "were in [a] condition to be used." The social worker noted, however, that the bathroom was "lacking fixtures and need[ed] to be repaired" and that there was animal feces on the floor in the living room. Father said the feces was "recent" and that he was in the process of removing it.
Finally, the report described two areas of concern: (1) father tested positive for THC*fn2 three times in January and February 2010, indicating he was "not living a clean and sober lifestyle"; and (2) father was arrested on January 6, 2010, for criminal threats (Pen. Code, § 422), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), battery (Pen. Code, § 242), injuring a telephone or electric line (Pen. Code, § 591), and vandalism (Pen. Code, § 594). The Agency expressed "great concern" that father was not complying with the part of his case plan requiring "that he not behave in a manner that is verbally, emotionally, physically, or sexually abusive or threatening." In addition, the Agency remarked that father's actions "would indicate that [he] has not made significant progress in dealing with the domestic violence issues that brought him to the attention of the court."
According to the report, mother told the social worker that she had been living with father since late October 2009. She also said that on January 6, 2010, father was "drunk and disorderly in public[,] and that he had been in the middle of the street downtown screaming and that the police were called and that he was arrested."*fn3 Mother also told the social worker that she thought she had a "skull fracture" because, on a separate occasion when she was two to four months pregnant with father's second child, father had beaten her up "and punched her in the face and head." When mother fell to the ground during the altercation, father kicked her in the head. Medical records confirmed mother sought medical attention; mother's treating physician remarked, "severe domestic violence with a right forehead contusion and a right arm contusion."
The Agency concluded father had "not made significant progress toward completing the objectives of his case plan and [was] not ready to provide for his child's safety and protection and to meet the physical and emotional needs of his child." The Agency recommended terminating reunification services and setting a .26 hearing, in part because father had not addressed his "violent actions and domestic violence issues" and had been "arrested for acts of violence and [was] facing criminal charges."
In various addendum reports, the Agency reported that father tested positive for THC and ethyl sulfate on March 2, 2010, and that mother was admitted to the hospital in mid-March 2010 with a swollen face, bloody eyes, and cuts on her mouth and forehead. Mother had a broken jaw, cheek bone, and nose and told social workers that father had beaten her up.*fn4 The Agency also reported that mother's right eye was swollen and bruised in mid-March, which mother claimed was caused by an altercation with her cousin over cigarettes. Finally, the Agency noted that father had been convicted of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) arising out of the January 6, 2010 incident.
The court held a contested six-month review hearing on June 1, 2010. Following the hearing, the court concluded returning Felix Jr. to father's care would create a substantial risk of detriment to Felix Jr. and that father had "not made significant progress toward alleviating or mitigating the causes necessitating [Felix Jr.'s] placement in foster care[.]" The court, however, continued reunification services for father and set a 12-month review hearing for July 2010.
12-Month Review Report and Hearing
In its 12-month review report filed July 26, 2010, the Agency reported father had negative drug tests in May and June and had received certificates for completing various parenting classes, including Raising Resilient Children, Round Valley Parenting Classes, and Positive Parenting. The report also noted that father had been participating in anger management and domestic violence classes.
The Agency reported that father's weekly visits with Felix Jr. were "going well," that he was affectionate with Felix Jr. and that Felix Jr. was "happy to see [ ] father." According to the report, father "seem[ed] to have earned the support of his Tribe by engaging in services and disengaging with [ ] mother." The Agency did note, however, that father had continued to live with his parents, at a "home . . . not considered to be an appropriate place for [father] to return his child."
The report described an incident in April 2010 where father was 40 minutes late to a Discipline with Confidence class and was informed he was too late to attend the class." In response, he stated, "'Fuck, fuck, you mother fuckers.'" The report also stated that mother and father had been spending time together in violation of the March 25, 2010 restraining order: the social worker noted that she saw mother and father together in father's car after a visit with Felix Jr. in June 2010. Finally, the Agency explained its concern that father had failed to "take any responsibility for any of the domestic violence or physical abuse caused to the mother;" instead, father "minimizes the issues and places blame on [mother] or others for the abuse [mother] has suffered. . . . [Father] has a history of stating he does not know where [mother] is and that he and [mother] are not together."
The Agency recommended terminating reunification services for father. The Agency explained that father had received 12 months of services and had been unable to "disconnect himself from the volatile relationship that he has with [ ] mother. . . . Severe domestic violence in this case is what brought the issues to the attention of the Court. These issues have not been resolved, and [father] has not made substantive progress in regards to the ongoing and serious domestic violence between him and [ ] mother and his anger management issues. The return of the child to [ ] father would create a substantial risk of detriment to the physical or emotional well being of the child."
In an addendum report, the Agency described an incident in July 2010 where father's probation officer found "three large Samurai swords ranging from about 18 inches to about three feet long . . . in the closet and [ ] readily accessible," a pocket knife, a bullet, and a "large Bowie style knife" in father's room. The addendum report also included an update from father's parent training classes. According to the update, father had made progress: he was learning the importance of creating a safe environment for Felix Jr. From May 2010 to July 2010, father attended 9 out of 11 parenting classes, missing one class because of illness and another class because of incarceration. The addendum report included a letter from Yuki Trails Human Services Program (Yuki Trails), where father attended parenting groups. The letter described father as "an active participant in the groups" who "joins in on the discussions and . . . rarely misse[s] any of the groups[.]" Finally, the addendum report noted father had tested positive for THC in late July. In a second addendum report, the Agency reported that mother and father had been arrested on August 25, 2010, for violating the restraining order preventing them from having contact with each other.
The court held the contested 12-month review hearing on August 31 and September 1, 2010.
The Agency's Case
Yeshelle Sparks is a victim advocate for domestic violence and sexual assault at Inter-Tribal Council of California and Sonoma County Indian Health. Sparks met mother when she was pregnant with Felix Jr. According to Sparks, "there was worry for [mother] at that point, enough that the doctor that was treating her in the medical facility called [Sparks] downstairs to see [mother]." Sparks has met with mother four or five times about "assaults. She had bruises several times and a couple of lacerations at different points, some dents in her skull. She also had to get X-rays at one point."
The most recent time Sparks saw mother was in February or March 2010, when mother "had some bruising on her arms and bruising on her skull -- dents in her skull. . . ."*fn5 Sparks helped mother file a police report because she was concerned about mother's injuries. Sparks believes mother is a battered woman, and it is typical of battered women to return to their abusers and to recant their prior allegations. According to Sparks, mother is capable of telling the truth, but "fear can play a factor in whether one is going to tell the truth or not" and mother "says what she needs to say to stay safe."
Robert Di Stefano, a social worker assistant, drove father to drug testing and to visit Felix Jr. Di Stefano and father talked while Di Stefano drove. Father told Di Stefano about a positive drug test, and discussed his "home life" with Di Stefano, telling Di Stefano that his older brother lived in the family house and used methamphetamine. Father conceded that he and his brother had "come close . . . to engaging in more domestic violence." Father also told Di Stefano that mother is a "drunk" and that when she drinks, she antagonizes him. On one occasion, Di Stefano and father drove three hours to Eureka so father could visit Felix Jr. When Di Stefano and father arrived, however, Felix Jr.'s caretaker did not bring Felix Jr. to the visitation area. As a result, father did not get to visit his son. Father, however, contained his anger and stayed calm.
On June 15, 2010, father visited Felix Jr. Mother visited Felix Jr. after father's visit ended and father stayed after his visit to drive mother home. Father later told Di Stefano that he stayed after the visit to tell mother that she should not try to contact him. On July 20, 2010, Di Stefano saw father driving. Shortly thereafter, he saw mother walking along the side of the road. Her face was "badly bruised. It appeared that she had been attacked, hit, something of that nature." Di Stefano stopped and asked mother whether she was alright, but she ignored him.
Lisa McCulloch, a social worker assistant, observed visits between mother and Felix Jr. When McCulloch began to testify about a conversation she had with mother on July 16, 2010, father objected "as to hearsay. [Mother] is not here, and this obviously is trying to be entered for the truth of the matter asserted." Father informed the court that he had filed a written objection "on due process" grounds and claimed mother's statement was not a party admission because mother was not present in court.*fn6 The court allowed the "statement to come in as a statement of a party." In response, father stated that "any statements alleged to be attributed to [mother], that by voluntarily absenting herself from this hearing, that any information from her should be forfeited as prejudicial without an opportunity to examine her." In response, the court stated, "I understand that. And I may not even receive it for the truth. I'd like to hear what the statement is before I know how to rule on it. I'm not sure. [¶] Go ahead."
McCulloch then testified that mother admitted that she and father "are together now and then. And then she kind of went into the history of how long they had been together." On cross-examination, McCulloch conceded that when mother told her she had been with father, mother "had been drinking" and had "smoked pot that day." At the conclusion of McCulloch's testimony, the court issued its final ruling. The court ruled, "as to the objection with respect to the hearsay, I'm going to allow it to the extent that it talked about the fact that [mother and father] were together."
Brian Lowery, a social worker supervisor, first spoke with father in September 2009; during that conversation, father told Lowery he was attending anger management sessions at Yuki Trails. Lowery spoke to father again in January 2010 about father's arrest. During that conversation, father "became pretty agitated and rude" with Lowery and "the call ended. [Father] hung up and . . . that was it." The next day, father called Lowery and they talked about the incident leading to the arrest.
Lowery opined services should be terminated. He explained that he was concerned about the conditions at father's home, and about father's violation of the restraining order. Lowery conceded father had complied with his visitation plan and had regular, consistent visitation with Felix Jr. Lowery also admitted that Felix Jr. was happy to see father, but explained that the Agency became concerned father might have "his child with [mother] and a domestic violence situation occur" after a social worker saw mother in father's car. Lowery testified that the "services that [the Agency] had in place were reasonable and effective." On cross-examination, however, Lowry conceded the Agency canceled visits several times in June and July 2010.
William Vansant, the social worker assigned to the case when Felix Jr. was removed from parental custody, drafted the case plan, which required father to abstain from alcohol, but not from any other substances.
Duane S., Felix's father, took mother to visit her grandmother in the hospital in April or May 2008. Duane S. and mother stopped at a gas station and mother went to the bathroom alone. When mother emerged from the bathroom about 30 to 45 minutes later, one side of her face was "be[e]t red," like she had slipped and fallen on asphalt. Duane S. asked mother what had happened and she said, "'I don't know.'"
Allen Doenges, the director of Yuki Trails, testified that father had been attending domestic violence and anger management groups at Yuki Trails. When Doenges met father, father was a "very angry, closed, shy, reserved individual" but what Doenges had "seen from [father] is a[n] openness, sharing, an understanding of his issues, not justifying and not belittling his involvement in the domestic violence issues that he's had." Father admitted to Doenges that he had pushed, slapped, and hit mother and that there was a restraining order prohibiting mother and father from contacting each other.
Father was on time or early to his group sessions, listened intently and "always participate[d]." Father never lost his temper. Doenges noted that father had made progress and described his mind as a "parachute" that had been opened. Doenges also testified that he believed father could make "very good progress" in the next four months, particularly if Yuki Trails provided him with one-on-one counseling sessions. Doenges also testified he thought it was "strange" and somewhat counterproductive to "restrain a mother and a father of a child from each other[.]" Doenges conceded, however, that mother's behavior could "trigger" father's anger issues and that it would be appropriate for a victim of domestic violence to request a restraining order against an alleged abuser.
Yvonne Duran is father's substance abuse, domestic violence, and anger management facilitator at Yuki Trails. Father attended sessions once a week; his attendance was "good" and he arrived on time. Duran observed "big progress" in father since he began attending classes at Yuki Trails: he is more open, and has indicated he would like to work on controlling his anger. Father tested positive for THC in February, March, and July 2010 but he did not receive one-on-one sessions specifically for substance abuse.
Father began receiving services from Yuki Trails in November 2009, but no one from the Agency contacted Duran; instead, father came to Yuki Trails and told Duran "what he was supposed to do." Duran's first contact with the Agency was after the six-month review hearing when the social worker contacted Duran twice, once to obtain drug test results and another time to find out how many times father had participated in the anger management and domestic violence group. The social worker did not provide Duran with father's case plan, nor did she provide Duran with any court reports or police reports.
No one from the Agency contacted Duran from November 2009 to February 2010. From February 2010 to June 2010, the Agency did not contact Duran to determine whether father had been submitting to drug tests or attending anger management classes and substance abuse treatment. In June 2010, a new social worker, Lowery, came to Duran's office. Lowery did not tell Duran that father had been arrested in January 2010 or that he had tested positive for THC in March 2010. Duran would have liked to have known that information; it would have helped her design an appropriate treatment program for father.
Because Duran did not receive a referral, or any information from the social worker, she based her assessment of father's needs on the information father gave her.*fn7 Father disclosed that he needed assistance with alcohol. Duran testified that father "could make substantially more progress" if his reunification period were to be extended for another four months.
The Court's Ruling
At the end of the hearing, father renewed his objection to the admission of mother's hearsay statements in the social workers' reports. Father argued the admission of mother's statements violated his due process rights and urged the court to "exclude anything that's attributed to her." After hearing argument from the parties, the court overruled father's objection. The court explained that information in social workers' reports was relevant and that section 366.21 allowed the reports to contain hearsay.
The court continued, "Also, there's the issue of party admissions and the other exceptions stated by counsel that I think allow[ ] me to consider [mother's] statements as they appear in any reports in the file or any exhibits attached. . . . And that's to protect the children in these cases partly, but it's also a fact of life that there are -- oftentimes in these sorts of cases, one or the other parent is going to be difficult to get into court and to absent themselves. And I think from the child's perspective, any statements of that parent cannot be excluded just because they're not available for cross-examination as long as they comply with the Welfare [and] Institutions Code for statements in the reports." The court explained that it "did not allow witnesses to testify to things that they had heard directly from the mother . . . to honor the fact that she wasn't here." The court noted, however, that it would consider "anything in the reports[.]"
In lengthy comments on the record, the court terminated reunification services and set a .26 hearing. The court noted that father had made progress but that several issues -- including his failure to make progress in finding a safe home and incidents involving domestic violence -- were problematic. The main issue, according to the court, was father's "inability to disconnect from . . . the mother. [T]here's plenty of evidence that they've continued to see each other. . . ." The court explained it was unable to make a finding that there was a substantial probability that Felix Jr. would be returned to father at the 18-month review hearing. The court explained that father had not made "significant progress" in resolving the problems that led to Felix Jr.'s removal from custody because "he's still with the mother off and on and he was just arrested with the mother, and that's really the problem that led to the child's removal." In addition, the court concluded by clear and convincing evidence the Agency provided reasonable services to father and that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that these efforts have proved unsuccessful." The court set a .26 hearing for January 5, 2011.
Father raises three claims on appeal. First, he claims the court should have extended reunification services to the 18-month review hearing because he made "substantial progress in his reunification services[.]" Second, he argues the court should have excluded mother's hearsay statements contained in the social workers' reports. Finally, father contends the Agency did not provide reasonable reunification services.
Substantial Evidence Supports the Court's Finding that Father Had Not Made "Significant Progress" in Resolving the Problems Leading to Felix Jr.'s Removal from the Home.
Father's first contention is the court should have continued reunification services until the 18-month review hearing because he made "substantial progress in his reunification services[.]" While we note that father made some positive changes, we conclude the juvenile court properly determined father was not entitled to an additional four months of reunification services because there was not a "substantial probability" that Felix Jr. would be returned to father's custody by the 18-month review hearing. (§ 366.21, subd. (g)(1).)
"When a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 (Tonya M.); § 361.5, subd. (a).) "For a child under three years of age at the time of removal, . . . reunification services are presumptively limited to six months." (Tonya M., at p. 843; § 361.5, subd. (a)(1)(B).) At the six-month review hearing, the court may extend reunification services until 18 months from the date the child was removed from the parent's physical custody only if the court determines: (1) there is a substantial probability the child will be returned to the physical custody of his parent and safely maintained in the home within the extended period of time; or (2) reasonable services have not been provided to the parent or legal guardian. (§ 366.21, subd. (g)(1).)
To find a substantial probability the child will be returned to the physical custody of his parent and safely maintained in the home within the extended period of time, the court must find all of the following: (1) "the parent or legal guardian has consistently and regularly contacted and visited with the child;" (2) "the parent . . . has made significant progress in resolving problems that led to the child's removal from the home;" and (3) "[t]he parent . . . has demonstrated the capacity and ability both to complete the objectives of his . . . treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(A)-(C), italics added.) "[M]ere completion of the technical requirements of the reunification plan" such as attending counseling sessions and visiting one's child does not necessarily demonstrate "significant progress" within the meaning of section 366.21, subdivision (g). (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141.)
Felix Jr. was under three years of age when the Agency removed him from his parents' physical custody. As a result, father was entitled to six months of reunification services. (Tonya M., supra, 42 Cal.4th at p. 843; § 361.5, subd. (a)(1)(B).) The court declined to extend the services beyond the 12-month review hearing because it determined there was not a substantial probability that Felix Jr. would be returned to father's physical custody at the 18-month review hearing. The court explained that father had not made "significant progress" in resolving the problems that led to Felix Jr.'s removal from the parents' custody because father was "still with the mother off and on and he was just arrested with the mother, and that's really the problem that led to the child's removal." (§ 366.21, subd. (g)(1)(B).) The court also noted that father's failure to make progress in finding a safe home and incidents involving domestic violence were problematic.
Substantial evidence supports the trial court's finding. (In re Heather B. (1992) 9 Cal.App.4th 535, 562-563.) The Agency detained Felix Jr. because mother and father had engaged in numerous incidents of domestic violence and because both parents had placed Felix Jr. at risk of child abuse by staying at the home of Felix's father, a registered sex offender. (§ 300, subd. (b).) To that end, father's case plan required him to refrain from "behav[ing] in a manner that [was] verbally, emotionally, physically, or sexually abusive or threatening" and to find and maintain suitable housing. In addition, a restraining order prohibited mother and father from contacting each other.
At the six-month review hearing in June 2010, the court determined father had "not made significant progress toward alleviating or mitigating the causes necessitating [Felix Jr.'s] placement . . . in foster care." At the 12-month review hearing three months later, father had still not made "significant progress" toward "resolving problems that led to the child's removal from the home." (§ 366.21, subd. (g)(1)(B).)
Father continued to interact with mother, a violation of the restraining order. Mother admitted she and father were "together now and then" and she and father were seen together in June and July 2010. In addition, both parents were arrested in August 2010 for violating the restraining order. At the 12-month review hearing, Doenges testified mother's behavior, specifically her drinking, could "trigger" father's anger issues. And Di Stefano testified father admitted he sometimes wanted to "hit" mother, who was an "unpredictable drunk," because of her "actions and behaviors." Father's unhealthy relationship with mother was the principal reason the Agency detained Felix Jr. The Agency was understandably concerned that a "domestic violence situation [would] occur" when mother and father were together. Moreover, mother and father's volatile relationship placed Felix Jr. at risk of witnessing further domestic violence. Father's inability -- however difficult -- to extricate himself from his relationship with mother demonstrates father had not made "significant progress in resolving problems that led to [Felix Jr.'s] removal from the home." (§ 366.21, subd. (g)(1)(B).)
Father's contention that he had made "significant progress" because there were "no reported incidents of aggression after March of 2010" is inaccurate and misses the point. In July 2010, Di Stefano saw father driving; shortly thereafter, he saw mother walking along the side of the road. Her face was badly bruised and it appeared she had been attacked. This evidence creates an inference that father was the one who attacked mother, particularly where father offered no evidence to the contrary. In addition, father screamed "'Fuck, fuck, you mother fuckers'" in April 2010 when he was informed he was too late to attend a parenting class. Moreover -- and perhaps most importantly -- father's argument overlooks the fact that he had severely beaten mother numerous times before March 2010.
In addition, father's decision to continue living with his father, a registered sex offender, and with his brother, a drug user with whom father had a violent relationship, also demonstrates he had not made "significant progress in resolving problems that led to the child's removal from the home." (§ 366.21, subd. (g)(1)(B).) The Agency detained Felix Jr. in July 2009 because mother and father were living with a registered sex offender. Over a year later, father was still living with that registered sex offender. This does not demonstrate "progress" and it certainly does not indicate father had complied with the aspect of his case plan requiring him to locate and maintain suitable housing.
Father claims he made "substantial progress" notwithstanding his numerous positive tests for THC because refraining from marijuana was not part of his case plan and because the Agency "never connected marijuana with the domestic violence." This argument ignores the evidence in the record. Father's case plan required him to (1) submit "clean, unadulterated drug/alcohol tests;" (2) "[m]aintain a clean and sober lifestyle," and (3) refrain from allowing Felix Jr. "to be exposed to anyone abusing drugs or alcohol." Although the case plan did not specifically mention marijuana, it did require father to "live a clean and sober lifestyle." Father was not complying with the court's mandate to "live a clean and sober lifestyle" when he smoked marijuana.
While we applaud father for making some positive changes in his life, we uphold the juvenile court's conclusion, supported by substantial evidence, that father did not make "significant progress in resolving [the] problems that led to [Felix Jr.'s] removal from the home." (§ 366.21, subd. (g)(1)(B).)
The Court Properly Considered Mother's Hearsay Statements Contained in the Agency's Reports
Next, father claims the court should have excluded "statements allegedly made by the mother that were contained in the social worker's reports and attachments" because mother "voluntarily absented herself" from the 12-month review hearing. According to father, the court's admission of mother's statements deprived him of his "due process right to examine her regarding those hearsay statements."*fn8
Father relies on In re Malinda S. (1990) 51 Cal.3d 368, 382 (Malinda S.), where the California Supreme Court set forth "special evidentiary rules for dependency hearings[.]" (In re Cindy L. (1997) 17 Cal.4th 15, 21 (Cindy L.).)*fn9 In Malinda S., our high court held that a social worker's report is admissible at a jurisdictional hearing "despite the fact that [it] is itself hearsay and may contain multiple levels of hearsay." (Cindy L., at p. 21, Malinda S., supra, 51 Cal.3d at p. 375.) The court also held that "due process requires that 'each party (a) receive a copy of the report, (b) be given an opportunity to cross-examine the investigative officer and to subpoena and examine persons whose hearsay statements are contained in the report, and (c) be permitted to introduce evidence by way of rebuttal.'" (Malinda S., at p. 382, original italics, quoting Long v. Long (1967) 251 Cal.App.2d 732, 736.)
Father's reliance on Malinda S. is misplaced. Social worker reports are admissible at the 12-month review hearing without the restrictions set forth in Malinda S. (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1571; AOC, Dependency Quick Guide, a Dogbook for Attorneys Representing Children and Parents, 2007, F-27 (Dogbook).) "Social workers' reports are admissible as evidence not only at the jurisdiction hearing. They are also required and admissible evidence at virtually all dependency hearings, including detention, disposition [and] review hearings." (Seiser & Kumli, Cal. Juvenile Courts (2010) § 2.110, p. 2-230.) "Following jurisdiction, the social study is not only admissible but any hearsay within it is considered evidence competent to solely support the court's determinations." (Dogbook, supra, F-28.)
"Although the [L]egislature has placed numerous statutory restrictions on the receipt of the social study at the jurisdiction hearing, particularly regarding the hearsay evidence contained in the report [citation], those restrictions do not apply to the admissibility of social workers' reports at other hearings. Rather, at hearings other than the jurisdiction hearing, social workers' reports are admissible subject to the basic fundamental fairness principles of due process regarding notice and opportunity to be heard. Indeed, even the requirement that the agency have the social worker available for cross-examination does not apply at other hearings, although the parent must have the ability to obtain the presence of the worker if desired [citations]." (Seiser & Kumli, supra, at § 2.110, p. 2-230.) Here, the social workers' reports were admissible notwithstanding the fact that the reports contained mother's hearsay statements. That father could not cross-examine mother regarding her statements is immaterial. The preparer of the report -- the social worker -- was available to testify. Moreover, father had notice and an opportunity to be heard.
In any event, we disagree with father's contention that "there would be no evidence that any violent incidents might have occurred between the parents since the case commenced" if the court had excluded mother's hearsay statements. Father admitted to Doenges he had pushed, slapped, and hit mother and that there was a restraining order prohibiting mother and father from contacting each other. Father also told Di Stefano about problems in his "home life," specifically that his brother used methamphetamine and that he had "come close . . . to engaging in more domestic violence" with his brother. Moreover, medical records confirmed mother sought medical attention in early 2010 as a result of domestic violence: her treating physician remarked, "severe domestic violence with a right forehead contusion and a right arm contusion."
Additionally, Sparks testified she met with mother several times about "assaults. [Mother] had bruises several times and a couple of lacerations at different points, some dents in her skull. She also had to get X-rays at one point." Sparks also testified that in February 2010, mother "had some bruising on her arms and bruising on her skull -- dents in her skull. . . ." Sparks helped mother file a police report because she was concerned about mother's injuries. While Sparks did not identify father as the perpetrator of the domestic violence, her testimony certainly created an inference that father was the perpetrator. Finally, father was arrested in January 2010 for assaulting his sister and several members of his family, vandalizing the family residence, and threatening to kill his own mother. Duane S. told the arresting officer that he feared for his life and believed Felix was capable of killing him. None of this information came from mother. Based on the foregoing, the court's admission of mother's hearsay statements contained within the social workers' reports -- even if erroneous -- was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The Agency Provided Adequate Reunification Services
Finally, father contends the Agency "did not provide reasonable reunification services[.]" Specifically, father claims the Agency did not communicate with "the service provider regarding [ ] father's needs," did not adjust the case plan, and cancelled several visits between father and Felix Jr. Father does not challenge the court's finding that the "active efforts [were] made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that these efforts have proved unsuccessful." (See In re A.A. (2008) 167 Cal.App.4th 1292, 1317.)
When the juvenile court sets a .26 hearing, there must be clear and convincing evidence that reasonable services have been provided or offered to the parents. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) The court must order a reunification plan that is tailored to fit the specific circumstances of each family and that is designed to eliminate the problems that led to the juvenile court's jurisdictional findings. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) "The standard is not whether the services were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1159.) We determine whether substantial evidence supports the court's finding, "reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598 (Katie V.); In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
The court determined by clear and convincing evidence the Agency provided adequate reunification services. Social workers met with father to go "over his case plan with him thoroughly to be sure that he understood what he needed to be working on." Social workers also gave father "directions for conducting a level four unsupervised visit" and encouraged father to attend his classes regularly. Father attended domestic violence and anger management classes and received some substance abuse counseling. Father also participated in parenting classes and attended a Family Empowerment Group each week. Father's tribe also provided him with assistance. In addition, the Agency facilitated visits with Felix Jr. and transported father to these visits. The purported lack of communication between the Agency and Yuki Trails does not render the services inadequate.*fn10
Based on the record before us, we cannot conclude the Agency failed to provide adequate reunification services to father. Whether the Agency could have done more to help father is not the appropriate inquiry. "'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., supra, 130 Cal.App.4th at pp. 598-599, quoting In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Here, the services may not have been perfect, but they were "'reasonable under the circumstances.'" (Katie V., at pp. 598-599.) Accordingly, we conclude substantial evidence supports the juvenile court's finding that the Agency offered reasonable reunification services to father.
The writ petition is denied on the merits. The request for a stay is also denied. Because the .26 hearing is set for January 5, 2011, this opinion is final as to this court immediately. (Cal. Rules of Court, rule 8.4590(b)(3).)
We concur: Simons, J. Needham, J.