Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Stanislaus County, No. 515346, Ann Q. Ameral, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doehring, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
John W. (father) appeals an order entered after a six-month review hearing continuing placement of his daughter, Kaylee W., out of his care under Welfare and Institutions Code section 366.21. He challenges the sufficiency of the evidence supporting the findings that (1) his daughter would be at substantial risk of detriment if returned to his care, and (2) he was provided reasonable reunification services. While we affirm the placement order, we reverse the finding that he was provided reasonable reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
In a June 2008 family law proceeding, father and mother, who were married in 2002 and separated in 2005, were awarded joint legal custody and shared physical custody of their daughter, five-year-old Kaylee. Mother was designated as the primary caretaker and father was granted visitation on specified weekends.
In September 2008, the Stanislaus County Community Services Agency (Agency) received a referral from school officials reporting that Kaylee asked a male student to put his hands down her underpants and “tickle” her, and when school officials questioned Kaylee, she disclosed that her mother’s boyfriend, Ryan, had kissed her private parts, had intercourse with her, and when she told mother, mother got upset and angry with her. The school officials also reported that it was not unusual for Kaylee to touch her private area during class. This was not the first referral the Agency had received alleging Kaylee was sexually abused. Six days earlier, school staff reported that Kaylee said both that a second grade boy had asked her to disrobe and touch him, and mother’s boyfriend had held her head against his private parts and it “didn’t taste good.” The Agency also received referrals in August 2008, April 2008, June 2007 and August 2006, alleging Kaylee reported sexual abuse by either Ryan or father, which was determined to be either unfounded or inconclusive for abuse.
Jurisdiction and Disposition
The Agency filed a petition on October 7, 2008, which alleged, among other things, that mother failed to protect Kaylee from sexual abuse. At the Agency’s recommendation, the court ordered Kaylee detained from mother and placed with father. Although the social worker believed that either some type of abuse had occurred or Kaylee had witnessed sexual activity, sexual molestation by either father or Ryan could not be substantiated. Due to claims that Kaylee had been coached by mother’s family as well as father, and the contemptuous relationship between the parents, the social worker concluded is was likely the allegations would continue to be made with little hope of ascertaining their validity.
In January 2009, the Agency filed a first amended petition, which alleged that Kaylee came within the provisions of section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage) based on the following allegations: Kaylee exhibited severe sexual acting out, yet neither parent had taken her to counseling until court intervention; father stated he tried to enroll Kaylee in counseling, but was unable to do so as he did not have primary custody; father reported Kaylee referred to both he and Ryan as “dad”; and Kaylee had accused both father and Ryan, and while the Agency determined the accusations were unfounded, Kaylee continued to act out sexually. The amended petition further alleged that mother failed to protect Kaylee due to her marijuana use, recent history of domestic violence incidents with Ryan, and bipolar disorder.
At a combined jurisdictional and dispositional hearing held on January 22, 2009, the juvenile court found the allegations of the first amended petition true after mother and father submitted based on the social worker’s report. The court adjudicated Kaylee a dependent, removed her from mother’s custody, placed Kaylee in father’s custody, and ordered reunification services for mother and family maintenance services for father. Father was ordered to complete a parenting group at Parents United or other counseling program focused on the issues of sexual molestation, while Kaylee was also to complete Parents United and participate in an emotional and developmental assessment through the Children’s System of Care (CSC) and follow all recommendations.
The Section 387 Petition
Kaylee began therapy with CSC therapist Shanette Williams, who reported in March 2009 that for Kaylee’s age, she was the most sexualized child with regards to her behavior with whom Williams had ever worked. Kaylee was fascinated by naked people and loved to draw them; she also had a very active imagination and it was hard to tell where reality ended and fantasy began.
Kaylee’s behavior at school was deteriorating. She was suspended for stealing other students’ belongings in February and March 2009. The school’s principal noted nine other behavioral incidents between November 2008 and May 2009, which included Kaylee being aggressive toward and threatening other students, using both verbal and written profanity, and taking other children’s belongings without permission. In April 2009, Kaylee’s teacher reported that the school bus driver saw Kaylee expose her vagina to other children on the bus, and the recess aide saw Kaylee rub her vaginal area up and down on a pole in the playground, and later masturbate while sitting on the playground surface.
Since January 2009, social workers had been instructing father to enroll himself and Kaylee in counseling at Parents United. Father also had received information from Kaylee’s teacher about her increasing sexualized behavior at school and had been told of Williams’ concern that Kaylee begin sexual abuse counseling, yet he failed to access services for her through Parents United until April 2009. Kaylee began attending on May 13, 2009. After two group sessions, the clinical coordinator at Parents United, Debra A. Johnson, Ph.D., reported that Kaylee was the most sexualized child in the group; she was very focused on kissing people and adamant that she needed a boyfriend despite being told she did not need one at age six. Dr. Johnson further reported that as of May 21, 2009, father had attended only one session, during which he announced he was only there because “he had to be.” In June 2009, father reported his intent to request that his attendance at Parents United be removed from his case plan, as he could not see how his attendance would assist Kaylee.
The Agency filed a section 387 petition in June 2009 seeking to remove Kaylee from father’s custody, as the previous disposition of placement with father was not effective in protecting or rehabilitating Kaylee. The petition alleged that father delayed in obtaining counseling for himself and Kaylee despite reports from school staff that Kaylee was engaging in sexualized, disruptive and defiant behavior, as well as reports from Williams and Dr. Johnson that Kaylee was highly sexualized. The petition further alleged that father denied Kaylee engaged in sexualized behavior in his home, which suggested ignorance or indifference to Kaylee’s emotional needs and placed her in the care of a parent who had demonstrated an unwillingness to promptly and appropriately respond to her needs. Finally, the petition alleged that father failed to express any insight or appreciation into how a May 2009 verbal argument between Kaylee’s parents and extended family members, which occurred in Kaylee’s presence and included the use of profanity and derogatory terms, was detrimental to Kaylee’s emotional well-being and that he needed to better protect her from future family conflict.
The social worker handling the case was concerned that father had not provided any information regarding Kaylee’s increasing behavioral issues when Kaylee’s service providers, including her teacher, therapist and Parents United counselor, had all expressed serious concerns regarding her behavior. The social worker was also concerned that when Kaylee’s teachers told father about her behavior, he reported false information about an increase in visits between Kaylee and mother, and despite Kaylee’s inappropriate behaviors elsewhere, father claimed she did not demonstrate sexualized behaviors while in his home. Kaylee attended a day camp during the summer of 2009, where it was reported that she engaged in sexually inappropriate dancing and told stories of how she showed a boy at school her private parts.
In a July 2009 letter, Williams explained that after the court referral, she began offering Kaylee therapeutic services at school, in her office, and at home. Kaylee’s presenting behaviors included engaging in extreme sexualized behaviors, poor boundaries and defiance. Kaylee was preoccupied with the act of sexual intercourse, always had some form of sexualized ideation to process through, and was preoccupied with being naked. Those behaviors decreased during the first five to six months of treatment and Kaylee appeared to be stable at both home and school. Beginning in January 2009, however, Kaylee’s sexualized behaviors began to increase, primarily at school. When Williams visited Kaylee at school, she had to redirect Kaylee due to her discussion of sexual ideations with peers and her poor boundaries, which included lifting up her dress and saying inappropriate things. Williams offered Kaylee’s teachers techniques and interventions, but Kaylee’s defiant and sexualized behaviors continued to increase.
Williams noted that father had always reported Kaylee’s behaviors at home were mainly defiance and he did not see sexualized behaviors there. Father was responsive to the interventions and techniques Williams suggested, and while he was not able to attend sessions due to his work schedule, he ensured that family and friends got Kaylee to her scheduled appointments. Williams further noted that father was cooperative and responsive in scheduling and attending requested sessions to discuss Kaylee’s progress and treatment. The current goal of therapy was to address Kaylee’s behaviors and provide her with guidance to allow her to verbalize her thoughts and feelings without engaging in sexualized behaviors. Kaylee consistently disclosed a single individual as her perpetrator.
While the Agency did not believe Kaylee’s physical safety was at risk while in father’s care, it did believe Kaylee’s mental health needs would not improve if she remained in his care, as placement with him over the past nine months had not been effective in her rehabilitation. The Agency’s primary concern was that father had demonstrated a limited capacity to meet Kaylee’s very serious mental health needs, and he was not effective in supporting Kaylee’s rehabilitation. The social worker believed Kaylee needed a parent who could be active and assertive in her mental health treatment, and father had not shown an ability to do that. Instead, father demonstrated limited insight and extreme passivity. While he had been consistently presented with information about Kaylee’s sexualized behavior, he only recently had made an effort to utilize the resources to address the problem. The social worker questioned father’s report that Kaylee did not exhibit sexual behaviors while at home, since she exhibited such behavior in every other setting and, during one home visit, the social worker handling the case saw Kaylee engage in sexual behavior that father ignored and denied happened.
A contested hearing on the petition began on August 24, 2009. On the third day of the hearing, however, Kaylee was taken into protective custody after testimony revealed that Kaylee had made allegations to her CASA representative and day camp counselor that father was sexually abusing her. The Agency filed an amended section 387 petition on August 28, 2009. In addition to the allegations included in the original petition, the amended petition alleged that Kaylee told her CASA representative on August 21 that father touched her in a bad way the night before, that he got on top of her and moved back and forth, and he told her when his girlfriend left the home they would play their game where father touches her in a bad way, and although Kaylee did not confirm this to social workers, she did say father was nasty and it was a secret. The amended petition further alleged that on August 25, a day camp employee reported that Kaylee had told her earlier in the month that father touched her and would go up and down on her. On August 31, 2009, Kaylee was detained in an out-of-home placement.
The hearing on the petition resumed on September 14, 2009, and continued six additional days over the next few weeks, ending on October 6, 2009. At the conclusion of the hearing, the juvenile court sustained the amended petition after finding its allegations true. The juvenile court removed Kaylee from the custody of both parents and placed her in the Agency’s custody. The juvenile court approved the Agency’s reunification plan and ordered services for both parents. Father was ordered to complete the parenting group at Parents United or another counseling program focused on the issues of sexual molestation, undergo a psychological evaluation and follow any recommended services, and participate in individual counseling to address issues related to personal accountability, insight and empathy regarding Kaylee’s behavioral challenges and unique needs. Father was also given supervised visitation with Kaylee
Six-Month Review Hearing
Father underwent a psychological evaluation with clinical psychologist Philip Trompetter, Ph.D., in November 2009. Dr. Trompetter reported that father was evasive, defensive and not very forthcoming during the clinical interview and psychological testing, and provided a highly defensive profile of questionable clinical validity. Father was reluctant to disclose personal information and tended to minimize all personal faults, which likely resulted in an underestimation of his problems. The psychological evaluation found no evidence of any serious mental disorders or maladaptive characteristics or traits. Dr. Trompetter opined that father’s evasiveness and defensiveness were part of his effort to present himself in the best possible light. Dr. Trompetter noted that father had very little insight into his own thoughts and feelings, which made him less empathetic and possibly explained why he had underwhelming reactions to concerns regarding Kaylee. Other than his rigid defensiveness, however, Dr. Trompetter did not identify any other problematic concerns, although he noted that father’s defensiveness “is to such an extent that it could lead to his failure to be alert to troublesome information because he has a default tendency to discard or overlook negative information, particularly information that makes him look bad.”
Dr. Johnson reported in February 2010 that father had been attending the Parents United parent group on a regular basis, and he showed more animation when he talked and continually stated he wanted to do what was best for his daughter. Dr. Johnson further reported that she and Kaylee’s counselor had been working with Kaylee to extinguish her sexualized behaviors with some success, noting that stress increased them. Dr. Johnson was not sure why Kaylee engaged in sexualized talk. Father completed a parenting education program at Sierra Vista at the end of March 2010. Father had perfect attendance, presented as motivated to complete services, came to sessions with his homework completed and demonstrated an active interest, and was very cooperative and pleasant.
A psychiatrist at CSC placed Kaylee on medication, but she was taken off of it after two weeks because the foster parent reported negative behaviors. Kaylee was repeating kindergarten. She had previously qualified to receive speech and language services. The school completed a psycho-educational evaluation of Kaylee in November 2009, which determined her continued eligibility for such services, and determined that she might qualify for assistance for a specific learning disability due to her poor academic progress and for supportive services under the provision of “other health impaired” due to her inattentiveness, poor concentration and impulsivity. She also qualified for consideration for additional services under the provision of “emotionally disturbed.” Kaylee had received additional academic help after school from a resource specialist. Her academic progress, however, was limited and she continued to perform at the very low end of the normal range in all areas.
In April 2010, licensed psychologist Cheryl K. Carmichael, Ph.D., completed a psychological evaluation of Kaylee The focus of Dr. Carmichael’s evaluation was not to investigate the specifics of any abuse that may have occurred, but instead to determine if Kaylee’s symptoms were consistent with a mental disorder. Dr. Carmichael explained that since being removed from father, Kaylee had been placed in two therapeutic foster homes. In addition to receiving therapy with Williams, Kaylee was attending the Parents United children’s group weekly and had been assigned a high level support counselor because of her high risk behaviors, who spent at least 16 hours per week with her after school and on weekends.
The two support counselors who had worked with Kaylee each reported that while the amount and frequency of sexual talk had decreased due to their direct interventions, neither saw any generalization to other social situations. According to the support counselors, Kaylee adamantly resisted attending the Parents United children’s group, where her behavior included open masturbation in front of other children, behavioral disruptions and persistent talk about sexual behavior. According to the group leader, Kaylee had been asked to leave group on several occasions and when the group was going on a “fun” day, they asked she not be brought at all. Her fixation on sexual talk and disruptive behavior was elevated following every group meeting.
After reviewing the information on Kaylee, observing her at school and meeting with Kaylee at her office, Dr. Carmichael’s clinical impression was that Kaylee was obsessed with sexually stimulating information. Dr. Carmichael explained that while most people who suffer with obsessive thinking find the intrusive thoughts irritating and anxiety provoking, Kaylee is among the subset of those who find their preoccupation stimulating and satisfying, which helps to understand why she has made no progress in treatment despite the intense interventions, and explains her limited progress in school and speech therapy.
Dr. Carmichael reached the following conclusions and treatment recommendations: (1) that professionals stop reacting to Kaylee’s continual reworking of what may or may not have happened in order to reduce the power and stimulation effects of the sexual content, since the presence of preoccupation and fixation can occur with or without a specific event to instigate the process and Kaylee engages in obsessive thinking and manipulative use of sexual language; (2) Kaylee stop attending the Parents United children’s group, as it is an inappropriate treatment setting that merely enhanced her provocative behavior and reinforced her illogical thinking that sexual behavior and content is all consuming and normal; (3) restrict free association with peers due to Kaylee’s tendency to intimidate and overwhelm children with her talk; (4) conduct further study to determine her immediate inclusion in an emotionally disturbed classroom; (5) refer Kaylee to a psychiatrist for a medication evaluation; (6) include in any outpatient treatment the assumption of a thought disorder that interferes with thoughtful behavior, as logic does not work with illogical thought; and (7) predicate reunification with the parents on reduction or resolution of her thought disorder.
In April 2010, the Agency filed a request to remove the case plan requirement that Kaylee attend counseling offered by Parents United based on Dr. Carmichael’s report and recommendation. In May 2010, the juvenile granted the petition on a temporary basis pending a contested hearing.
In a CASA report prepared for the review hearing, the CASA representative, who had worked with Kaylee since August 2009, had not seen any significant improvement or progress in her behaviors or demeanor, and was not certain what the right placement was for Kaylee, but believed a decision needed to be made regarding ongoing treatment to address the issues Dr. Carmichael raised. The representative had asked the school to assess Kaylee for placement in an emotionally disturbed classroom.
The contested review hearing began on May 24, 2010. Dr. Carmichael testified about her evaluation of Kaylee. In her clinical opinion, Kaylee suffers from a psychotic disorder of childhood, which is manifested by her preoccupation and obsession with sexual behaviors. Kaylee’s current treatment for sexual abuse is not what she needs, as it has worsened her symptoms because it reinforces her obsessive thinking. It is possible Kaylee’s symptoms arose without any molestation having occurred, and that Kaylee learned about sexual behavior through exposure to extraordinary sexual experiences, which became material for her fixation. Repeated sexual abuse could not have caused Kaylee’s problem, but it could have exacerbated it. It is common for someone with a thought disorder to fixate on sexual behavior. In Dr. Carmichael’s opinion, Kaylee did not appear to have a conscience, as a person with a conscience is able to feel anxiety associated with behaving in a particular way, while Kaylee had an absence of anxiety.
Dr. Carmichael did not know exactly what treatment would be most beneficial for Kaylee, but opined that any treatment should start with a psychiatric medication evaluation. If medication impacted Kaylee’s fixation and preoccupation, then Dr. Carmichael believed Kaylee could stay in a high level of foster care with a possible decrease in the amount of intensive counseling she was receiving. Dr. Carmichael also advised that Kaylee be removed from Parents United, as it was highly satisfying for Kaylee to be in a room full of other people who talk about sex.
Dr. Carmichael testified that a parent would learn how to deal with and help a child like Kaylee by first “com[ing] to grips with the thought disturbance, ” realizing it is a life-long problem, and then approaching it from the standpoint of an intensive therapist, who uses rigorous behavior control to reduce the frequency and length of her comments. Support groups for parents of severely mentally ill children could also help. A regular parenting class, however, would not help a parent of a child like Kaylee because such a class approaches behavioral difficulties with logic and natural consequences, while Kaylee “is speaking … from a position of illogic.” While Parents United could help Kaylee’s parents by providing a fairly broad-based parenting style, from the standpoint of understanding Kaylee’s needs, therapeutic help would come from people who understand mental illness. Dr. Carmichael did not believe family sessions would help at this point, and such sessions would be dependent on how Kaylee responds to treatment.
Given her clinical formulation of what is driving Kaylee’s behavior, Dr. Carmichael believed it would be very dangerous for either parent to take Kaylee into their home, for their own safety as well as their families’ safety, as Kaylee inevitably would make another claim of molestation which would have to be reported. Dr. Carmichael did not believe it was fair to the family to have to defend themselves whenever Kaylee made an allegation of molestation. In addition, Kaylee would be a very convenient victim of a molester. Moving back into the parents’ home would be the final step of a series of behavioral steps, including measured improvement in flexible and logical thinking, that are typical of a treatment facility home. When the thought disorder diminishes, trial visits could begin.
Dr. Carmichael believed Kaylee needed to be in a therapeutic home and explained the foster home she was in was “one of the higher-level foster homes” where there is one child and one caregiver, who is trained in dealing with high risk and difficult youth, with the addition of 16 to 20 hours of one-to-one counseling through the high-level support counselor each week. Even with this intense therapy, Kaylee’s condition had worsened. Dr. Carmichael believed that if Kaylee did not improve with medication, a higher level of care would be mandatory, meaning permanent residential care with a residential school and very limited family contact, which is used to reinforce the child into reaching a level of stability. Dr. Carmichael thought that, at a minimum, someone taking care of Kaylee should have the training given to those running a high-level therapeutic foster home.
In Dr. Carmichael’s opinion, Kaylee’s parents were not capable of providing the kind of high level care Kaylee requires because Kaylee is too disturbed and the parents are uneducated to her multiple needs. Dr. Carmichael explained that Kaylee would not be getting better and the challenge increases with every developmental step she takes; she did not see either parent with a mind-set or capability to meet that challenge at that time. Moreover, if Kaylee was to make an allegation of molestation and she needed to be removed from the home pending an investigation, the intense care she was receiving would be disrupted. Dr. Carmichael was concerned about Kaylee being returned to father’s home because he is a target of her molestation claims and her allegations towards father were more graphic than her allegations towards Ryan.
Dr. Carmichael testified that it is possible Kaylee believes the events she relates regarding molestation actually happened, including molestation by father, which would make it more difficult to achieve stability through reuniting with father, as he is a huge part of her delusional system. Dr. Carmichael did not believe increasing father’s visitation would be beneficial until it could be seen if Kaylee began to respond positively to medication. If she did, then additional contact with both parents could be positive for her.
When Dr. Carmichael examined Kaylee in her office, she noted that Kaylee did not appear to remember her even though she had previously met Kaylee in the classroom. Dr. Carmichael did not think Kaylee’s inability to remember people was specific to her; both high level support counselors noted that every day was a new day with Kaylee, and the CASA representative thought that every time she saw Kaylee was the first time she met her, which Dr. Carmichael said was because “you do not exist in her world.” Kaylee does remember her mother and father, though, and is delighted to see them.
Judi Schardijn, a marriage and family therapist with Sierra Vista, testified about father’s participation in three parent/child labs he attended with Kaylee Father and Kaylee were affectionate and appropriate with each other. Schardijan had previously reported father was an above-average listener and responded to Kaylee’s questions using a pleasant voice, reflection of feelings and eye contact. He brought dinner for his daughter each week, which they enjoyed together. After eating, they played “kitchen, ” read a book, or watched a video together. Father set consistent boundaries, for example by discouraging Kaylee from talking about boyfriends, allowing her to sit next to him rather than on him, and making firm requests to clean up before leaving the room. Father had completed the positive parenting program at Sierra Vista, which included ten classes and the three parent/child labs, and was attending Parents United. Schardijn, who had not seen Dr. Carmichael's report, stated there was nothing else she would recommend to help father reunify with Kaylee Since father completed his course, she had not received any additional referrals from the Agency for additional programs for him.
Social worker Nancy Griggs testified that Kaylee had been in three foster homes since her removal from father, each of which had a single female foster parent. She was in the first home one month and the second approximately four months. Her current foster home is an intensive therapeutic foster care placement (ITFC), in which the foster parent has completed specialized training through the foster family agency. Griggs had not made additional service referrals for father. Griggs supervised Kaylee’s visits with father and they were very appropriate; father was very loving toward Kaylee, who was excited to see father, and he set boundaries for her. Father had been compliant with his case plan and cooperative with Griggs. He was concerned about what was going on in Kaylee’s life and wanted to attend all school meetings.
Griggs explained that Kaylee’s high-level support counselor, who gives 16 to 20 hours of support per week, qualifies Kaylee for the ITFC placement. The high-level support counselor is not available to a child who is in a parent’s custody. The Agency, however, can provide home-based services through Sierra Vista, which includes sending counselors into the home to work with the parent, providing behavior modification techniques and specific training a parent would need to have the child in the home. Griggs received Dr. Carmichael’s report at the end of April 2009. Griggs did not disagree with Dr. Carmichael’s recommendations for further services and intended to ask the court to order services consistent with Dr. Carmichael’s testimony.
After Griggs’ testimony, the court continued the hearing to June 21, 2010. Father’s attorney asked the Agency to give father any additional referrals for education before the next session. The Agency’s attorney did not think it would be easy to determine what services to provide, but offered to discuss it. The court ordered the Agency to make arrangements for Kaylee to be seen by a psychiatrist for a psychotropic evaluation. The court discontinued visits with Kaylee’s extended family, but continued them for father and mother, giving the social worker discretion to increase them. The court made interim orders pending the continued hearing, including that the Agency had complied with the case plan by making reasonable efforts to make it possible for Kaylee to safely return home and complete steps necessary to finalize the permanent placement.
The hearing continued on June 22. The court stated that the parties had discussions off the record and it appeared Kaylee was deteriorating. Kaylee’s attorney believed she needed physiological testing to make sure her problems were not medically or genetically based. The court continued the hearing to July 19. Father’s attorney asked that father be provided any additional services the Agency might have located for him. The court responded it did not intend to delay the provision of services to Kaylee or father, and if something could be determined by the following week, the service should be provided. The court granted the section 388 petition and eliminated the requirement that father attend Parents United pending further order of the court.
The review hearing concluded on July 19, 2010, with father’s testimony. Father testified about a safety plan he and Dr. Johnson recently had formulated to allow Kaylee to return to his home, where he lives with his wife, Kaylee’s stepmother. The plan’s goal was to ensure that Kaylee was never left alone with only one adult and included putting coded alarms on the bedroom doors, with stepmother being the only one with the code, and having at least two adults supervise Kaylee at all times. Two days a week, on Tuesdays and Thursdays, stepmother would not be available to supervise Kaylee with father; on those days, Kaylee would attend an after-school program, from which either father’s mother or father would pick up Kaylee and then watch her until stepmother returned home later that evening. Father also was willing to have video cameras set up throughout the house if that was what the court requested.
Father believed the plan addressed the court’s concerns for Kaylee’s safety and protected him from additional unwarranted allegations. He requested the court return Kaylee to his care and custody. Father heard Dr. Carmichael’s testimony and agreed to ensure Kaylee attended any counseling that might be recommended. Since the last court date, father had not attended any mental health or counseling appointments for Kaylee, as he had not been made aware of any.
Father believed Kaylee suffered some mental health problems. He received Dr. Carmichael’s report “just prior to the court hearing” and had never been invited to sit down with any professional to review its meaning. Father was willing to go to any type of appointment the court recommended to understand Kaylee’s mental health treatment needs. The social worker had advised him of a mental health support group and he had left message on the group’s answering machine, but had not received a response. This was the only referral he had received since Dr. Carmichael’s report; he had not been referred to any specialized training as Dr. Carmichael discussed. Father felt he could adequately provide for Kaylee’s needs if she were in his home and she would benefit from being around her family, as her condition had deteriorated since being placed in foster care. Father said he was able to communicate any concerns that might arise to the social worker and he would open up his home to inspection.
When asked on cross-examination about Dr. Trompetter’s evaluation, father testified he did not “remember the exact meeting, ” although he remembered telling Dr. Trompetter that some of the information Dr. Trompetter asked about seemed irrelevant. Father did not remember if he was evasive or resistant to providing accurate information to Dr. Trompetter, but he did not believe he would give false information. Father did not agree with Dr. Trompetter’s opinion that he minimized his personal faults. While father told Dr. Trompetter about a nearly ten-year-old arrest and conviction for grand theft, he did not tell Dr. Trompetter about his arrest in 2003 for inflicting corporal injury on a spouse, claiming he had completely forgotten about that arrest until questioned about it at the hearing as the charge had been dropped soon after the arrest. Father admitted he initially did not think that he needed to make behavioral changes, but through attending parenting classes and counseling over the last six to eight months, he believed he had changed and “ha[d] become more enlightened to the situation.”
Father disagreed with Dr. Carmichael’s testimony that Kaylee did not remember people from one day to the next. When asked if he remembered Dr. Carmichael’s testimony that Kaylee’s caretaker would need to have rigorous behavioral controls for her, father responded, “Some, I guess.” Father was asked what in his safety plan would address this need; father answered that “we” assumed the court would provide additional classes and support services “to be able to better help Kaylee.” The court asked father if he believed he was able to rigorously control Kaylee’s behavior. At first father said he believed he could do at least as good a job as the foster homes, if not better, but when pressed to give a more direct response, said that while there is always room for improvement, with additional support available, he believed he could, adding that his wife was trained to deal with special needs children. Father admitted he did not have any specialized training in the ability to recognize Kaylee’s behavior problems, but said his wife, who is trained in the field of autism, is better trained than he, although she is not trained on Kaylee’s numerous issues.
When asked if he agreed with Dr. Carmichael’s opinion that Kaylee has a thought disorder, father responded he believed “there are some issues. I’m not a professional. I can’t diagnos[e] her. I know that it would be something I would like to have looked into further.” Father wanted another opinion. Eventually, father testified he agreed Kaylee had a thought disorder. Father had noticed that Kaylee would get “off track” during visits, for example by going to play with some toys in the middle of eating dinner, and claimed he could usually redirect her. He viewed this behavior as a minor problem.
Other than the parent training he received at Sierra Vista, father had not received any training that would enable him to manage a child with a serious thought disorder; neither his parenting class nor his counseling had addressed thought disorders. While father had mentioned Dr. Carmichael’s diagnosis to Dr. Johnson, they had not developed a response to deal with Kaylee’s inappropriate speech and behavior. Father admitted failing to report information to the previous social worker on the case, claiming it was because they did not have as open a relationship as the one he has with the current social worker. Father did report information to Williams, however.
During closing argument, father’s attorney (1) requested Kaylee be returned to father’s custody, as he had completed all of his services, had developed a safety plan and was willing to comply with whatever services were ordered, (2) requested a second psychological evaluation, (3) objected to a reasonable services finding as no additional services had been provided between the receipt of Dr. Carmichael’s report and the July hearing, (4) requested additional services if Kaylee was not returned to father’s custody, as well as increased visitation, and (5) requested father be involved in any physiological assessment of Kaylee
The court decided not to return Kaylee to father’s custody, finding that (1) Dr. Carmichael had provided the most thorough examination of Kaylee to date and based on her testimony, it would be very dangerous for Kaylee to be returned to the home of either parent, (2) Kaylee could not be returned home until her thought disorder was thoroughly addressed and evaluated, as it did not seem that anyone knew exactly what was going on with her, (3) it would be unsafe to return Kaylee to father, as the court did not know if he had “done something inappropriate” to Kaylee, who was vulnerable to being molested yet not being believed, (4) while father had complied with his case plan, he was not capable of providing the care Kaylee needed because Kaylee’s unusual issues could not be addressed through a typical parenting class and Kaylee’s thought processes were illogical, and (5) father’s safety plan was flawed, as father was very evasive, which raised concerns about the court’s ability to rely on reports from father, father was not vigilant in watching Kaylee’s behaviors, he had failed to report information to the social worker in the past and failed to report his domestic violence arrest to Dr. Trompetter, and it would be nearly impossible to have two adults supervising Kaylee at all times. The court did not find father’s testimony that he could easily redirect Kaylee credible because from all of the accounts, she was not easy to redirect.
The court ordered a physiological assessment of Kaylee to rule out any physical or genetic abnormality. The court terminated mother’s services. The court continued services for father, ordering that his case plan include a support group to help him deal with Kaylee’s needs, the right to notice of all assessments and presence when results are given, and twice-monthly visits of two hours each, which could be increased at the Agency’s discretion. Father’s attorney asked if the court was going to specify referrals or training that would be required under father’s case plan. The court responded that part would be determined based upon the assessment. The Agency’s attorney stated the Agency had been struggling with what services to provide father, and until it knew how to approach Kaylee and what her needs were, it could not determine what services to provide. The Agency’s attorney thought that instead of providing general, intensive foster care training, it was best to wait until Kaylee’s needs and treatment were identified, which would then allow the father to get individual counseling to enable him to address those needs. After a long discussion about what services father could be given that would help him understand Dr. Carmichael’s diagnosis, the court referred father to a therapist at Sierra Vista to help him gain understanding. The court set a progress review and 12-month review hearing for father for October 6, 2010, and stated that all prior orders not modified continued in full force and effect.
DISCUSSION
Detriment if Returned to Father’s Care
Father challenges the sufficiency of the evidence supporting the finding that Kaylee would be at risk of detriment if returned to his care. Once a child has been removed from his or her parents’ custody under section 361, the juvenile court is required to review the child’s status every six months. (In re Joseph B. (1996) 42 Cal.App.4th 890, 897 (Joseph B.).) At the first review hearing held six months after the initial dispositional hearing, “the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e).) We review the court’s finding to see if substantial evidence supports it. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
In father’s reply brief, he requests that we strike the Agency’s argument in its brief under the heading “Substantial Evidence Supports the Juvenile Court’s Removal Order.” Father contends that because he is challenging the juvenile court’s failure to return Kaylee to his custody at the six month review hearing, not a removal order, the Agency applied the wrong legal standard. Although the Agency might have mischaracterized the order as a “removal” order, a review of the Agency’s argument shows the Agency was arguing the appropriate standard, i.e. whether substantial evidence supported the juvenile court’s determination that “substantial risk of detriment existed if [Kaylee] were returned to [father’s] custody.” Accordingly, we decline father’s request.
Father asserts there is insufficient evidence to support the detriment finding because he had completed his case plan, he was “completely cooperative, ” and he had come up with a safety plan to “completely protect” himself and Kaylee He reasons that Kaylee’s problems are not due to anything he did or did not do, and he poses no more of a risk to Kaylee than the foster homes in which she had been placed.
While the court must consider the extent to which the parent has cooperated with the services provided and the efforts he or she has made to correct the problems that gave rise to the dependency, the decision to return the child depends on the effect that action would have on the child’s well-being. (Joseph B., supra, 42 Cal.App.4th at p. 899.) Kaylee initially was removed from father’s custody because he delayed in obtaining counseling for her despite reports that she was engaging in sexualized, disruptive and defiant behavior, he was either ignorant or indifferent to Kaylee’s emotional needs as shown by his denial that she engaged in sexualized behavior while at home, he demonstrated an unwillingness to promptly and appropriately respond to her needs, he failed to recognize how family conflict was detrimental to Kaylee’s emotional well-being, and Kaylee had made allegations that he had sexually abused her.
While by the six-month review hearing father had made progress by completing a parenting class, a parent’s group at Parents United, a psychological evaluation, and individual counseling, his evasiveness at the hearing, his lack of credibility regarding his ability to control Kaylee’s behavior, and his failure to report negative information regarding Kaylee and himself, led the juvenile court to conclude that father had not completely addressed the issues that required Kaylee be placed outside his care and custody, and it would be detrimental to Kaylee’s emotional well-being to return her to him. Although father asserts he did everything requested of him, it was because father could not yet be trusted to ensure that Kaylee’s mental health needs were met or to accurately report problems that might arise in the home that the juvenile court found returning Kaylee to father’s custody would be detrimental to her.
Moreover, Dr. Carmichael believed it would be detrimental to return Kaylee to father. She opined that before being returned to father’s home, Kaylee needed to be stabilized and father needed to be equipped to assist in maintaining that stability. While, as father points out, Kaylee had yet to attain stability in foster care, this could be explained, at least in part, by the recent diagnosis of a thought disorder, which none of Kaylee’s therapists had identified previously and therefore had not been addressing. As Dr. Carmichael testified, the ability to keep Kaylee in a foster care placement, or even at home, depended on whether medication could control her condition. A medication evaluation, however, had not been conducted by the time of the review hearing.
Dr. Carmichael thought that father was not yet prepared to handle Kaylee’s numerous problems, and to be prepared, father needed to recognize that Kaylee has a life-long mental illness, be able to use rigorous behavior controls to reduce Kaylee’s comments, recognize that her behavior cannot be dealt with logically, and obtain therapeutic help from those who understand mental illness. According to Dr. Carmichael, the case plan components father had completed did not provide him with the tools necessary to deal effectively with Kaylee. Most importantly, Dr. Carmichael believed placing Kaylee with father would make it more difficult for her to achieve stability because he is a major part of her delusional system and she actually may believe he molested her. For this reason, placement with father would pose more risk than placement with any other adult in the system. Based on Dr. Carmichael’s testimony, the juvenile court reasonably could conclude that Kaylee would be at substantial risk of emotional harm if placed with father, despite his having completed his case plan.
Father contends that his safety plan would have protected Kaylee. As the juvenile court found, however, the plan was flawed, as it would be nearly impossible to have two adults supervising Kaylee at all times. In addition, the plan failed to address the risk he posed to Kaylee from his lack of understanding into Kaylee’s mental health needs and lack of training in how to deal with them.
Relying on David B. v. Superior Court (2004) 123 Cal.App.4th 768, father argues the court refused to return Kaylee simply because he was a “less than ideal” parent. In David B., the court reversed an order terminating services because the father had done everything the social services agency had asked of him and had even requested anger management services on his own. (Id. at p. 772.) The court determined a risk to the child was not shown simply because the father lived with a brother-in-law with a troubled history and the agency had not warned him of its concern. (Id. at pp. 772-774, 793.) Here, the situation is different. Kaylee has a mental illness that father had not been adequately trained to address, he is part of her delusional system, and he has shown evasiveness in his reporting about Kaylee’s behavior and lack of vigilance in monitoring her. As the finding that Kaylee would be at substantial risk is supported by substantial evidence, father’s contention that he has been denied his fundamental rights to the care, custody, companionship and management of Kaylee, and Kaylee has been denied her fundamental rights to a family, stability and to maintain a relationship with father, fails.
Father also contends Kaylee’s psychological needs could have been met through the special education system, pointing out that many fit parents have emotionally disturbed children who are not part of the juvenile dependency system and whose needs are met through the education system. But here, dependency jurisdiction was taken due to mother’s and father’s failure to seek help for Kaylee despite her severe sexual behavior, and Kaylee subsequently was removed from father due to his unwillingness or inability to recognize the extent of Kaylee’s problems and seek help for them, placing her at a risk of harm. The risk of detriment remained at the six-month review hearing, as the juvenile court was not convinced that father would provide Kaylee with the support she needed while in his home. Because there is a risk of detriment to Kaylee, father’s reliance on Christopher T. v. San Francisco Unified School District (N.D.Cal. 1982) 553 F.Supp. 1107, 1118-1120, is misplaced, as there the parents of emotionally disturbed children agreed to have the children placed under dependency jurisdiction for the sole purpose of obtaining residential treatment for them.
In sum, substantial evidence supports the juvenile court’s finding that Kaylee was at substantial risk of harm if returned to father’s care.
Reasonable Services
Father contends that once Dr. Carmichael issued her report diagnosing Kaylee with a thought disorder, he was not given reasonable reunification services designed to overcome the problems that resulted in Kaylee’s continued custody and the Agency failed to make reasonable efforts to complete the steps necessary to finalize Kaylee’s permanent placement. We agree.
At the six-month review hearing, the juvenile court must determine if reasonable services have been offered or provided. (§ 366.21, subd. (e).) In making its determination, the juvenile court considers not only the appropriateness of the services offered but also the extent to which the department facilitated utilization of the services and the extent to which the offending parent availed him or herself of the services provided. To be reasonable, the services provided need not be perfect. The “standard is not whether [they] were the best that might have been provided, but whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Services are reasonable when the supervising agency identifies the family’s problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
On a challenge of the juvenile court’s reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging in all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545 (Misako R.).) If substantial evidence supports the juvenile court’s finding, we will not disturb it. (Ibid.)
We agree with father that reunification services were unreasonable both in terms of the nature of the services offered and the Agency’s efforts to provide them after the Agency received Dr. Carmichael’s report in April 2010. The case plan developed in October 2009, when Kaylee was removed from father, was based on the assumption that Kaylee had been sexually abused, and therefore was tailored to address that issue. When Dr. Carmichael diagnosed Kaylee with a thought disorder in April 2010 and determined the case plan components requiring treatment for sexual abuse were not effective in addressing Kaylee’s mental illness, it was the Agency’s duty to reassess its service plan and offer father modified services to take into account what should have been a different approach for dealing with Kaylee’s diagnosis. Instead, the Agency did nothing to amend the plan, despite requests by father’s attorney at the May 24 and June 22, 2010, sessions of the review hearing for additional services, with the Agency noting on May 24 that it would be difficult to determine what services to provide.
When the review hearing concluded on July 19, 2010, the Agency still could not identify the services needed to address Kaylee’s mental health issues and father’s need for training to handle Kaylee’s issues. The Agency’s attorney admitted the Agency was struggling with what services to provide father and thought it best to wait for the completion of the physiological assessment of Kaylee to determine the appropriate services. Although the court agreed to refer father to a therapist who might be able to explain Dr. Carmichael’s diagnosis to him, the court recognized that additional services would be dependent on the outcome of Kaylee’s further assessments. If the court did not know what services should be provided at the conclusion of the six-month review hearing, it cannot be said that reasonable services were provided once Kaylee’s mental illness was diagnosed.
While reunification services are not expected to be perfect, they are expected to be tailored to the unique circumstances of the family. (Misako R., supra, 2 Cal.App.4th at pp. 545 & 547.) Once aware that the cause of Kaylee’s sexual behaviors was not sexual abuse but rather a mental illness, the Agency should have made efforts to develop a service plan that would provide Kaylee with the services necessary to address her mental illness while addressing father’s need for education and training on mental illness. Although the Agency did refer father to a mental health support group, it made no effort to identify other services available to meet his needs. While the juvenile court recognized this case was not typical, presented a far more complex situation than most cases, and the reasonableness of services could become an issue in the future, it did not recognize the Agency’s utter failure to attempt to identify or provide services to father once it was aware of Kaylee’s mental illness.
For all these reasons, we conclude that the juvenile court’s finding in the six-month review order that the Agency provided father with reasonable reunification services was not supported by sufficient evidence, as the evidence was insufficient to show that the services provided after the Agency became aware of Dr. Carmichael’s diagnosis were tailored to the family’s needs or the Agency did all it reasonably could to provide appropriate services.
DISPOSITION
The portion of the six-month review order finding the Agency provided father with reasonable reunification services is reversed and the finding modified to state that the Agency failed to provide father with reasonable reunification services from the date the Agency received Dr. Carmichael’s April 2010 report to the conclusion of the six-month review hearing on July 19, 2010. The case is remanded to the juvenile court with directions to enter the modified order and to consider the provision of reasonable reunification services. In all other respects, the six-month review orders are affirmed.
WE CONCUR: Levy, Acting P.J., Kane, J.