Opinion
A163502
12-29-2021
D.F. et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. Nos. J19-00562, J19-00563, J19-00564, J19-00565, J19-00566)
BURNS, J.
D.F. (Father) and K.F. (Mother) are the parents of seven children who are dependents of the juvenile court. Father and Mother each seek review by extraordinary writ of the juvenile court's order terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing for five of their youngest children-A.F., E.F., T.F., D.F., and G.F. We deny Father's and Mother's petitions and requests for a stay of the section 366.26 hearing.
Undesignated statutory references are to the Welfare and Institutions Code. Mother's and Father's two oldest children are dependents of the juvenile court but are not subject to the juvenile court's order setting a section 366.26 hearing. Neither is the subject of these writ proceedings.
Background
A.
In June 2019, Mother reported to police that Father slammed her head into the floor, hit her in the head, kicked her in the stomach and ribs, and whipped her with a USB cord. The children were present in the home at the time. Mother suffered two black eyes, bruised ribs, and an arm fracture. When police officers and social workers arrived at the home, drug paraphernalia was accessible to the children, trash was found throughout the home, and a toilet was overflowing with feces.
The Contra Costa County Children and Family Services Bureau (Bureau) filed dependency petitions on behalf of each of the children, pursuant to section 300, subdivision (b). The petition alleged that the children were at substantial risk of harm due to Mother's and Father's substance abuse and domestic violence. It was further alleged that the children were at risk because Mother has untreated mental health issues that impair her ability to maintain a safe and habitable home.
In the combined detention/jurisdiction report, the Bureau noted it had substantiated prior referrals for neglect and physical abuse, the children had been previously removed, but the family reunified. Mother and Father admitted recently relapsing by using methamphetamine in the home. Mother had been using methamphetamine since she was 14 years old. Mother also suffers from severe depression and anxiety but does not take prescription medication. She instead uses marijuana to cope.
Several of the children corroborated Mother's account of the most recent domestic violence. One of the children tried to physically intervene in past instances. However, Father denied responsibility. He claimed that his 12-year old daughter (not involved in the instant writ proceedings) had injured Mother. Although he continued to deny the recent allegations, Father later admitted that he and Mother "fight" at least once a month. He blamed Mother's drinking.
At the detention hearing, held in June of 2019, the children were detained and placed in foster care.
B.
At the jurisdiction hearing, Father signed a waiver of rights, and pled no contest to the allegations described above. More detailed allegations about the June 2019 domestic violence and Mother's injuries were dismissed. The juvenile court also sustained the amended allegations against Mother, who was not present.
Before that hearing, the Bureau filed a memorandum that indicated Father was visiting regularly, testing negative for drugs, and participating in a "[f]amily [w]orkshop." Mother had recently moved and reported being engaged in services outside the county. Although she initially visited the children, Mother had missed her last three visits due to scheduling conflicts. The Bureau rescheduled her visits, so they did not conflict with her services.
C.
By the time it filed its disposition report in January of 2020, the Bureau had referred both Mother and Father for drug testing, substance abuse treatment, domestic violence counseling, parenting classes, and mental health counseling. The Bureau was also providing Mother and Father with transportation assistance and collaborating with the children's schools and therapists.
Father continued to be engaged in services. He was described as attentive to the children during his weekly visits, which he consistently attended. However, concerns continued to be raised about Father whispering to his older children during visits, as well as his open "disdain" for the social workers.
Although weekly supervised visitation had been ordered, Mother had only visited the children five times over the course of six months. She had begun group and individual counseling, as well as a parenting class. She was in the process of being assessed for an appropriate domestic violence program.
At the disposition hearing, Father was declared the children's presumed father. The juvenile court adjudged each to be a dependent child and ordered them removed from parental custody.
The juvenile court also adopted the Bureau's case plan, which required Mother and Father to engage in (1) individual counseling; (2) domestic violence counseling; (3) parenting education; and (4) drug testing and outpatient substance abuse treatment. The case plan informed Father that, to reunify, he needed to, among other things, demonstrate his understanding of the factors contributing to the dependency, that he had successfully addressed them, and that the children were no longer at risk.
D.
The Bureau's six-month status review report indicated the children's two older siblings had been missing from their placements for over two months.
Mother was "intermittently engaged" with her case plan. She completed a parenting class and was reportedly attending a domestic violence program. Mother had failed to drug test or engage in a substance abuse program for six months. She had also stopped attending therapy and psychiatry sessions and was not consistently visiting the children. Mother reported having a hard time attending visits while managing work and her own mental health. Accordingly, the social worker encouraged her and attempted to schedule telephone visitation.
Father had completed a parenting class and outpatient substance abuse treatment. He was also regularly attending therapy. Although his therapist provided positive progress reports, the social worker was concerned that Father continued to deny violence in his relationship with Mother and that the therapist appeared to be accepting his denials. Father had started a 52-week domestic violence intervention program.
Father initially was drug testing consistently. Between January and March of 2020, he tested negative on nine occasions, tested positive for alcohol twice, and had one "no show." However, he stopped testing in mid-March 2020, when shelter-in-place orders went into effect. Two months later, he provided a note from his physician advising that, due to a preexisting medical condition, he should not risk exposure to COVID-19. Father denied needing ongoing substance abuse support.
During his supervised visits with the children, Father was affectionate and playful. However, he secretly provided A.F. with a phone and encouraged the children to keep secrets.
The social worker reported that the children remained guarded, frequently saying that they were "not supposed to" talk about what occurred in their parents' home. They continued to have behavioral issues, which were improving.
The Bureau recommended continuing reunification services. The social worker cautioned: "[I]f services are continued, the Bureau urges [Father] to demonstrate transparency with the Bureau and his service providers, as there will be no other way to determine safety for reunification."
E.
The six-month review hearing was repeatedly continued. By September 2020, the Bureau changed its recommendation- suggesting termination of both parents' reunification services was appropriate now that the 12-month review date had passed.
Since submission of the last report, Mother had not drug tested or attended therapy. She visited the children only sporadically and failed to verify her participation in a domestic violence program.
Despite his engagement in outpatient drug treatment and testing, as well as a domestic violence program, Father was not making necessary behavioral changes or demonstrating insight. He continued to deny any domestic violence occurred and failed to recognize that his denial was an obstacle to reunification. Father also failed to communicate with the social worker and, accordingly, it was unknown if he remained in therapy.
T.F. and G.F. were doing well in their placement together. T.F. had recently disclosed being fearful of Father. She said both Father and Mother "whoop[ed]" her. She also described Father hitting Mother. D.F. and A.F. made similar disclosures. A.F. said he did not want to return home. The Bureau concluded that "ordering additional services is not in the children's best interests, as they are not likely to result in any significant changes that would enhance their safety and wellbeing in the parents' care."
F.
Mother was not present when the contested review hearing began on November 20, 2020. Father began to testify but was unable to complete his testimony and the matter was continued. A combined six, 12, 18, and 24-month review hearing was ultimately completed in September of 2021.
Before the conclusion of the hearing, the Bureau filed an updated review report and several supplemental memoranda. In its January 2021 report, the social worker noted Mother had recently called to report that she could no longer engage in reunification services because she was working full-time. She admitted that she had recanted (to the prosecutor) her original domestic violence allegations against Father but explained that she did so in exchange for him "let[ting] her go." She had not visited the children in two months.
Father had not been drug testing, purportedly due to his work commitments. During visits, he remained attentive and affectionate. Father continued to engage in a domestic violence program and therapy. He now acknowledged the harm imposed on the children by his addiction and conflicted relationship with Mother. Although he could now verbally state what he had learned about abusive dynamics, he continued to deny causing the injuries Mother sustained at the beginning of the dependency proceedings.
The children were reported to be doing generally well in their respective placements but they all continued to exhibit behavioral issues. T.F. and G.F. remained in a foster home. A.F., E.F., and D.F. had been placed together in a relative's home, along with one of their older siblings.
By March 2021, little had changed. Mother reported she was "not ready" to have the children returned to her custody. The social worker also described a recent supervised visit with Father, during which two of the children attempted to speak with him about his past "whoop[ing]" of them. Father denied their allegations, became visibly agitated, and was unable to disengage or de-escalate the argument without the social worker's assistance.
About a week later, the Bureau filed, and the court approved, an ex parte request to temporarily stop all contact between Father and the children. The Bureau simultaneously requested, and the court issued, a protective custody warrant for A.F. The Bureau explained that A.F. ran away from his placement, a few days earlier, with his older brother. It was believed, based on Father's statements to the police as well as the timing of communications between him and the children, that Father was involved in the disappearance and knew the two brothers' location.
In May of 2021, the Bureau reported that Father had been arrested. A.F.'s whereabouts had remained unknown for two weeks, until he and his older brother were discovered, hidden in a closet, at Father's apartment. In the interim, Father denied knowledge of their whereabouts. When police responded to Father's apartment after a neighbor reported screaming, Father was uncooperative and appeared intoxicated. The social worker believed the two children ran away at Father's direction, that he continued to abuse them, and that Father was not benefiting from services.
By the time the review hearing resumed, Father had pled guilty to two counts of child abduction (Pen. Code, § 278) and been released from custody after serving four months in the county jail. The social worker testified that the county jail did not offer services that were not duplicative of those Father had already completed.
Counsel for the children supported the Bureau's recommendation to terminate reunification services and set a section 366.26 hearing. Mother's counsel objected to the recommendation. Father's counsel argued reunification services should be extended due to unspecified "extraordinary" circumstances.
G.
The juvenile court found Mother made "minimal" progress on her case plan, Father made "superficial" or "poor" progress on his, return of the children to either parents' custody would be detrimental, that reasonable reunification services had been provided, and that no exceptional circumstances justified further services. The juvenile court terminated reunification services and set a section 366.26 hearing for January 7, 2022.
Discussion
A.
Both Mother and Father challenge the sufficiency of the evidence supporting the juvenile court's reasonable services finding. Their claims lack merit.
1.
"Ordinarily reunification services are available to parents for a maximum of 18 months from the physical removal of the children from their home." (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1251; accord, § 361.5, subd. (a)(3)(A).) "At each review hearing, if the child is not returned to the custody of his or her parent, the juvenile court is required to determine whether reasonable services . . . designed to aid the parent in overcoming the problems that led to the initial removal and the continued custody of the child have been offered or provided to the parent .... (§ 366.21, subds. (e), (f).)" (In re J.P. (2014) 229 Cal.App.4th 108, 121.)
At the 12-month review, the juvenile court may not set a section 366.26 hearing unless it finds, by clear and convincing evidence, reasonable services were offered. (§ 366.21, subd. (g)(4).) Section 366.22, subdivision (a)(3), provides that if the child cannot be returned to the parents at the 18-month review hearing, the court shall order a section 366.26 hearing. Under certain limited circumstances, reunification services can be extended to the 24-month mark. (§§ 361.5, subd. (a)(4)(A), 366.22, subd. (b).)
"It is the job of [a social worker] to assist parents with inadequate parenting skills in remedying the sources of the problem, not to eradicate the problem itself.... [¶] . . . A proper service plan must be tailored to the specific needs of the dysfunctional family. However, to make the requisite findings, the record should show that the supervising agency 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 service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414 (Riva M.).)
In determining whether services were reasonable, the juvenile court considers not only the appropriateness of the services offered but also the extent to which the agency facilitated utilization of the services and the extent to which the parent availed him or herself of the services provided. (Riva M., supra, 235 Cal.App.3d at p. 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.) "[A parent's] difficulty meeting the case plan's requirements does not excuse the agency from continuing its effort to bring [the parent] into compliance with the court's orders." (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451.)
"Ordinarily, our review would be limited to that period following the last reasonable services finding, which if unchallenged is final and binding." (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 675.) Here, the review hearings were combined, and the reasonableness of reunification services was only determined for the first time approximately 24 months after the children were initially removed. (See §§ 361.5, subd. (a)(1)(A), 361.49.) Accordingly, we consider whether Mother and Father were provided reasonable services "during the entire reunification period." (Serena M., supra, at p. 675.) We review the trial court's finding for substantial evidence, bearing in mind the clear and convincing evidence burden of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996; T.J. v. Superior Court, supra, 21 Cal.App.5th at p. 1238; In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
2.
Mother maintains that her services were inadequately tailored to account for her depression. She argues that the Bureau should have identified support personnel who could "continuously encourage her" and "give her the necessary drive to overcome her depression." On this record, we cannot agree that the Bureau is responsible for Mother's lack of success.
The Bureau recognized Mother's untreated mental health issues, referred her to therapy and psychiatric services, and encouraged her to make her own mental health a top priority. In addition to the Bureau's assigned social worker, Mother was also assigned a "Peer Support Specialist," who provided "intensive behavioral health case management services" in her county of residence. These services were terminated due to Mother's lack of participation. Furthermore, when Mother reported difficulty in attending visits while managing her work and services in another county, the social worker rescheduled visits and, later, attempted to schedule telephone and virtual visitation.
The fact that Mother failed to fully engage in services does not mean that the services offered were unreasonable. (See In re Christina L. (1992) 3 Cal.App.4th 404, 414-415 [" 'requirement that reunification services be made available . . . is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions' "].) Mother ultimately admitted that she disengaged from visitation and services because she was not ready to safely care for the children. Reunification services are voluntary and cannot be forced on an unwilling parent. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.)
Even then, however, the Bureau did not give up. As late as September of 2021, the social worker encouraged Mother to reengage with services targeted at the issues underlying the dependency. Given this evidence, a reasonable fact finder could find it highly probable that the Bureau provided Mother reasonable services.
3.
Father contends the Bureau failed to provide reasonable services because it did not refer him to joint therapy with the children or require him to see a new therapist. We disagree.
Family therapy was not part of Father's case plan. There is no indication Father raised any objection to the case plan, which required him to engage in substance abuse treatment, drug testing, individual counseling, parenting education, and domestic violence treatment. Nor did Father appeal from the dispositional order. As a result of his failure to object or appeal from the dispositional order, Father forfeited any argument that his case plan was inadequate. (In re T.G. (2015) 242 Cal.App.4th 976, 984-985.)
In any event, Father does not persuade us that family therapy would remedy any problem that led to the children's removal. (See Riva M., supra, 235 Cal.App.3d at p. 414; In re Alvin R., supra, 108 Cal.App.4th at p. 972 [family therapy critical to reunification when child is otherwise reluctant to visit parent].) Here, the children were engaged in their own individual therapy. And the problem preventing safe reunification was not that the children were reluctant to visit Father. The issue preventing reunification was Father's denial of the underlying issues and his inability or unwillingness to truthfully communicate and assure his children's safety. (See In re V.L. (2020) 54 Cal.App.5th 147, 156 ["parent's denial of domestic violence increases the risk of it recurring"].)
Father also insists the Bureau had a duty to "require" him to transition to a new individual therapist who might better challenge him. But Father cannot fault the Bureau for his own failure to honestly engage in therapy. The Bureau communicated with both Father and his therapist about the reasons for the referral and expressed concern regarding Father's continuing denial-pointing out that the children corroborated Mother's domestic violence allegations. In response, the therapist indicated she would more directly challenge Father's assertions. But neither the Bureau nor his therapist could force Father to acknowledge and accept the problems underlying this dependency.
Nor does the record suggest a different therapist was likely to have made any difference. In addition to a therapist, the Bureau referred Father to a 52-week domestic violence treatment program. His engagement in that program did not alter his unwillingness to accept responsibility for his actions.
The Bureau identified Father's domestic violence and substance abuse issues at the outset and provided resources, including therapy and treatment programs in two different counties, designed to address these concerns. The social worker also provided transportation assistance and maintained reasonable contact with Father and his service providers. The Bureau did not mislead Father about what was required to safely reunify. In fact, it repeatedly warned Father that honesty and truthful communication were essential to demonstrate he had successfully addressed the underlying challenges. (See Riva M., supra, 235 Cal.App.3d at p. 414.) On this record, a reasonable fact finder could find it highly probable that the Bureau provided Father reasonable services.
B.
Mother also argues the court erred by failing to order additional services on "extraordinary circumstances" grounds. We agree with the juvenile court that no such circumstances exist.
Even if we assume the juvenile court had authority to extend services beyond 24 months in extraordinary circumstances, there are none in this case. (See In re D.N. (2020) 56 Cal.App.5th 741, 762 ["a juvenile court may invoke section 352 to extend family reunification services beyond [even the outer 24-month limit] . . . when 'inadequate services' are offered by the child welfare agency or 'an external force over which [the parent has] no control' prevented the parent from completing a case plan"].)
We have already concluded that the juvenile court's reasonable services finding is supported by substantial evidence. And Mother points to no external factor outside of her control - such as an absence of affordable housing or hospitalization-that prevents reunification. (Cf. D.N., supra, 56 Cal.App.5th 741 [father substantially complied with case plan but was unable to reunify with son only because poverty prevented him from timely finding adequate housing]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774 [mother substantially complied with case plan despite being hospitalized for all but five months of reunification period].)
Substantial evidence supports the juvenile court's finding.
Disposition
Father's and Mother's writ petitions are denied on the merits. The requests for a stay are also denied. Because the section 366.26 hearing is set for January 7, 2022, our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
We concur: JACKSON, P.J., NEEDHAM, J.