Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK80535, Stanley Gesner, Commissioner.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Deputy County Counsel for Plaintiff and Respondent.
EPSTEIN, P.J.
S.W. (mother) appeals from two post-dispositional orders of the juvenile court, terminating her reunification services and suspending visitation with her son Y.W. Mother contends that the court improperly terminated her reunification services based on a subsequent petition brought under Welfare and Institutions Code section 342 without following the procedure for early termination in section 388, subdivision (c). But she cannot establish that any procedural impropriety caused her actual prejudice. Nor did the juvenile court abuse its discretion in suspending mother’s visitation. We affirm both orders.
Unless stated otherwise, all subsequent references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
The case came to the attention of the Department of Child and Family Services (DCFS) shortly after Y.W.’s birth in December 2009, when mother gave the newborn fruit juice and threatened to leave the hospital against medical advice. DCFS was called again because mother had no plan for Y.W.’s care upon her readmission to the hospital two days after she was discharged. Y.W. was placed with his paternal grandmother. A week later, while mother was still in the hospital, the grandmother requested that the baby be removed from her care because she could not control the violent outbursts of the baby’s father.
DCFS filed a dependency petition on December 30, 2009. The petition alleged that the baby’s placement with the paternal grandmother was inappropriate, and father had assaulted mother during her pregnancy. At the detention hearing, the court vested temporary custody in DCFS and gave the parents separate monitored visitations at the DCFS office. At the next hearing, on January 21, 2010, mother got a temporary restraining order against father based on another incident of domestic violence. DCFS reported that the parents were confrontational with the foster mother, were difficult to schedule visitation for, and did not handle the baby appropriately for the baby’s age. Mother would forget to support the baby’s head, and she tried to feed him flavored milk. DCFS recommended that the parents attend domestic violence and parenting classes, and provided referrals for these services. This was in January 2010. By February 2010, mother had left the domestic violence shelter her attorney found for her and indicated that enrolling in classes was not a priority. She had received motel vouchers but would not tell the social worker the name of the motel where she was staying. In March 2010, father was arrested for assaulting her yet again. Towards the end of that month, mother left for Texas and told the social worker she would enroll in classes there. DCFS started processing the paperwork needed for placing the baby with the maternal grandmother in Texas. Mother did not visit with the baby again until mid-April, when she created a scene after refusing to follow visitation rules.
At the jurisdiction and disposition hearing on May 4, 2010, mother explained that the recent instances of domestic abuse were due to the stress the parents had been under since the baby’s removal. She claimed to have been unable to enroll in classes because she was getting “the runaround” and had other things to do. The court found mother’s testimony not credible and declared Y.W. a dependent of the court. The court ordered an Evidence Code section 730 evaluation to address the parents’ mental health issues, and continued the matter to June 21, 2010, for setting a treatment plan based on the evaluation. The court ordered “an interim reunification plan, ” including individual counseling for domestic violence and anger management, as well as age-appropriate parenting classes. The parents were to continue receiving monitored separate visitations at the DCFS office. A status review hearing under section 366.21, subdivision (e) was set for September 28, 2010. When the court attempted to explain the reunification process to mother, she said she was not leaving her baby in the system. She claimed she had “documentation of espionage that’s going on, ” that the doctor had given her an infection on purpose, but she was certain there was nothing wrong with her.
On May 5, 2010, mother spent her scheduled visitation putting on make-up. On May 20, 2010, mother abducted Y.W. from the DCFS lobby just before her scheduled visitation. With help from the baby’s maternal grandmother, mother was apprehended 12 hours after the abduction. She was at a bus station, ready to board a bus to Las Vegas, Nevada. The foster mother reported that, upon his return to her, the baby was hungry and was not himself for a couple of days afterward.
On May 21, 2010, the juvenile court suspended all visitation. On June 9, 2010, DCFS filed a subsequent petition under section 342 based on mother’s abduction of Y.W., and a section 388 petition to permanently suspend visitation. Separately, DCFS reported that mother was sentenced to 180 days in jail for child stealing, was in jail in June 2010, and did not appear for scheduled interviews on July 2 and 6, 2010. DCFS advised that, according to the maternal grandmother, mother had been diagnosed with paranoid schizophrenia in 2005. DCFS claimed that the parents had failed to enroll in classes despite having been given referrals on three separate occasions, they had not cooperated with the 730 evaluator or DCFS, and mother was “unwilling or unable to participate in... mental health services.”
On July 13, 2010, the juvenile court found by clear and convincing evidence that mother had abducted Y.W., within the meaning of section 361.5, subdivision (b)(15). The court stated mother had mental issues and no interest in complying with the reunification plan as shown by her failure to cooperate with the Evidence Code section 730 evaluation and the problems she created during visitation at the DCFS office. The court found it was not in the child’s best interest to provide mother with reunification services, terminated those services, and ordered visitation suspended until mother appeared in court. Mother timely appealed.
Father’s hearing was continued. The parties’ factual allegations as to father are irrelevant to mother’s appeal.
Post-dispositional orders of the juvenile court are directly appealable. (§ 395, subd. (a)(1); see In re Daniel K. (1998) 61 Cal.App.4th 661, 666-667.)
DISCUSSION
I
Mother argues the court terminated her reunification services under the wrong sections of the Welfare and Institutions Code. “We review applicable legal principles de novo, but apply a deferential standard of review to the court’s exercise of discretion and resolution of disputed facts.” (In re V.F. (2007) 157 Cal.App.4th 962, 968, superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58.)
DCFS acknowledges that section 388, subdivision (c) provides a procedure for the early termination of reunification services, but argues this procedure is not exclusive. We do not agree. Section 361.5, subdivision (a)(2) states that a petition to end court-ordered reunification services before the six-month status review hearing under section 366.21, subdivision (e) “shall be made pursuant to the requirements set forth in subdivision (c) of Section 388.” The word “shall, ” used in this section, is mandatory. (§ 15.) Thus, petitions for early termination of reunification services must proceed under section 388, subdivision (c).
Section 388, subdivision (c)(1) states that any party may petition for early termination of reunification services, but only if one of two conditions exist: “(A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services. [¶] (B) The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent or guardian’s failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.” Section 388, subdivision (c)(3) provides that “[t]he court shall terminate reunification services... only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in subparagraph (A) or (B) of paragraph (1) exists.”
Instead of proceeding under section 388, subdivision (c), DCFS proceeded under section 342, which requires the filing of a subsequent petition for a child who is already a dependent when new facts bring the child within a statutory category other than those under which the original petition was sustained. DCFS alleged that mother’s abduction of Y.W. endangered his health and safety within the meaning of section 300, subdivision (b), and advised that it may seek an order that no reunification services be provided. Section 361.5, subdivision (b) states in pertinent part: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶]... [¶] (15) That the parent or guardian has on one or more occasions willfully abducted the child... from his or her placement and refused to disclose the child’s... whereabouts, refused to return physical custody of the child... to his or her placement, or refused to return physical custody of the child... to the social worker.”
The juvenile court found by clear and convincing evidence that section 361.5, subdivision (b)(15) applied in this case. This finding comports with the requirement in section 388, subdivision (c)(3) that the court find by clear and convincing evidence the existence of a condition for early termination of services as that requirement may be fulfilled by finding the existence of any condition set forth in section 361.5, subdivision (b). Mother argues that section 361.5, subdivision (b)(15) does not apply here because she did not refuse to return the baby when she was found. We disagree. Mother was arrested at a bus station where she was waiting to board a bus with Y.W. that would have taken the baby out of state. Aside from the fact that she had no choice but to give up the baby at the time of her arrest, mother had not communicated with DCFS during the baby’s abduction. Had the maternal grandmother not offered information about mother’s plans, DCFS would not have known where the baby was and may not have been able to recover him. Mother’s actions fit the requirements of section 361.5, subdivision (b)(15), and the court’s finding that the section applied is supported by substantial evidence.
For early termination of services, section 388, subdivision (c)(3) also requires a finding “by a preponderance of evidence that reasonable services have been offered or provided.” In contrast, section 361.5, subdivision (c) provides that “[t]he court shall not order reunification for a parent... described in paragraph... (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” After the court found that section 361.5, subdivision (b)(15) applied, mother’s counsel cited section 361.5, subdivision (c). In response, the court found that providing mother with reunification services was not in the child’s best interest because “[c]learly, mother has mental health issues but she has expressed no interest in complying with the reunification plan; failed to appear or cooperate in the 730 evaluation ordered to fine-tune an appropriate reunification plan for her, has created nothing [but] problems every time she visits at the DCFS office.” The minute order included a finding that DCFS complied with the case plan by making reasonable efforts to enable the child’s safe return home, a finding normally required for periodic status reviews. (See § 366, subd. (a)(1)(B); § 366.21, subd. (e).)
On appeal, mother argues that the court failed to find that reasonable services were offered or provided as required by section 388, subdivision (c)(3). This finding may be inferred from the court’s conclusions that the department made reasonable efforts to comply with the case plan, and it was mother who failed to cooperate. Even were we to conclude that the court failed to make a required statutory finding, any such error is harmless under the circumstances. (See In re Clyde H. (1979) 92 Cal.App.3d 338, 346–347.) At the May 4, 2010 hearing, the court ordered “interim” reunification services before finalizing a reasonable treatment plan. It did so because the case already had been pending for five months, a significant time in the court’s estimation as mother was entitled to six months of reunification services from the time of the dispositional hearing for up to 12 months after the baby entered foster care. (See § 361.5, subd. (a)(1)(B).) The court could have continued the dispositional hearing under section 358 in order to wait for the section 730 evaluation. Had it done so, its conclusion that ordering reunification services would not be in the child’s best interest under section 361.5, subdivision (c) would have fulfilled its statutory obligation in light of mother’s unwillingness to participate in the reunification plan. That the court decided to order some services in advance of setting a treatment plan, while it may have changed the procedural posture of this case, did not preclude the court from evaluating the reasonableness of the offered services in light of mother’s lack of cooperation with DCFS.
“Services will be found reasonable if the Department has ‘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.... [Citation.]” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) “Visitation is an essential component of any reunification plan.” (Id. at p. 972.) Services need not be “the best that might be provided in an ideal world, ” but must be reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) They are voluntary, “and cannot be forced on an unwilling or indifferent parent.” (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) The social worker is not required to “take the parent by the hand and escort him or her to and through classes or counseling sessions.” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) Rather, the parent must communicate with the agency and participate in that process. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.)
At the May 4, 2010, hearing, the court warned mother that, unless she made a good faith effort to comply with the treatment plan, she would not receive services past the September 28, 2010 review. Mother’s immediate response was that she was not leaving her baby in the system. Two weeks later, she made good on her threat by abducting Y.W. DCFS reported that it had given the parents referrals on three separate occasions, but they failed to enroll in classes. At various times, mother admitted that taking classes was not her priority. DCFS reported further that the parents had not cooperated with the 730 evaluator or DCFS, from which we may infer that DCFS performed its obligation to set up a mental health evaluation. DCFS provided monitored visits with Y.W. despite the parents’ belligerence until the court suspended all visits after the abduction.
Mother argues that DCFS did not do enough to interview her and provide her with services in jail, or come up with a safety plan for continued visitation. These arguments pertain to the period after mother was arrested for abducting the baby. While DCFS’s reports do not specifically address the agency’s efforts to contact mother or offer her services while she was in jail, the reasonableness of services needs to be evaluated under the circumstances of this case. Where mother continually refused to cooperate with DCFS and was arrested for abducting her baby, instead of attempting to comply with the court-ordered reunification plan, DCFS cannot be faulted for seeking to terminate reunification services rather than making additional efforts to provide services in jail. Moreover, after the abduction, visitation was suspended by court order because of the risk of another abduction. In light of the court order, DCFS did not unreasonably fail to institute safety procedures for continued visitation.
The court did not err in terminating mother’s reunification services under these circumstances.
II
Mother argues the court abused its discretion by suspending her visitation without finding it would be detrimental to the baby. Visitation orders made in a dependency proceeding are reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Courts have applied a substantial evidence standard of review to a juvenile court’s finding that no visitation with a parent is appropriate. (See, e.g., In re Mark L. (2001) 94 Cal.App.4th 573, 580; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838.) The result in this case is the same regardless of which of these standards applies.
Under section 362.1, whenever a child is placed in foster care and reunification services are provided to the parent, the juvenile court must order visitation between the parent and the child, subject to the exception that “[n]o visitation order shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(A)-(B).) Stated another way, “when reunification services have been ordered and are still being provided, ... some visitation is mandatory unless the court specifically finds any visitation with the parent would pose a threat to the child’s safety.” (In re C. C. (2009) 172 Cal.App.4th 1481, 1491, fn. omitted.) Even after the reunification period, it ordinarily is improper to suspend visits between a parent and child “[a]bsent a showing of detriment caused by visitation....” (In re Luke L. (1996) 44 Cal.App.4th 670, 679.)
Initially, we note that the juvenile court in this case did not suspend visitation indefinitely, but only until mother appeared in court. The court stated on the record: “I don’t think right now there’s any safe way to protect the child even with monitored visits at the DCFS office, in light of [mother’s] brazen abduction right out of the DCFS office.” The purpose of this order was to protect the child. Mother argues Y.W. was not harmed during the 12-hour abduction. But the short duration of the abduction was due to the police’s swift apprehension of mother before she could take Y.W. out of state. Even after only 12 hours with mother, the baby appeared to be hungry and traumatized. Mother’s proposed safety measures—that visits take place in a locked room with two monitors or a security guard—do not protect Y.W. from future abductions occurring before or after a scheduled visitation. Mother does not propose a plan for the baby’s safety on his way to and from the visitation room or the DCFS office. Nor does the record indicate that she appeared in court to provide any assurance that she would not abduct the baby again. The suspension of visitation is thus supported by substantial evidence of detriment to the baby because of the unmitigated risk of another abduction by mother.
DISPOSITION
The orders are affirmed.
We concur: MANELLA, J., SUZUKAWA, J.