Opinion
C044566.
11-25-2003
MICHAEL G., Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Real Party in Interest.
Michael G. (petitioner), the father of M. G. (the minor), seeks an extraordinary writ (Cal. Rules of Court, rule 39.1B) to vacate juvenile court orders terminating petitioners reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 (further section references are to this code). We stayed proceedings in the juvenile court pending the resolution of this writ petition.
Petitioner contends the juvenile court erred by (1) finding that reasonable services were provided to him and (2) failing to return the minor to his custody. We disagree with the second contention but find merit in the first. Accordingly, we shall issue a peremptory writ of mandate directing the juvenile court to vacate its order setting a section 366.26 hearing and to exercise its discretion whether to continue the 18-month review hearing and order additional reunification services for petitioner.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2001, the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition alleging that the four-year-old minor had been sexually abused by a parent or a member of the minors household and that the parents had failed adequately to protect her from such abuse. (§ 300, subd. (d).) The petition also alleged that the minor had suffered, or was at risk of suffering, serious physical harm or illness as a result of her parents inability to supervise or protect her and by their failure to provide her with adequate food, clothing, shelter, or medical treatment. (§ 300, subd. (b).) According to the petition, a medical examination of the minor revealed "abnormal physical findings consistent with sexual abuse," and the home in which the parents were residing did "not meet basic health and safety standards" because it was "`extremely filthy" and infested with bugs. The detention report disclosed two substantiated child welfare referrals in 1996 concerning the daily use of marijuana by the minors mother during her pregnancy and after the minors birth.
The jurisdictional report states the minor was taken into protective custody after sheriff deputies responded to a report that she "was bleeding from her vagina." Petitioner told the social worker that, when he discovered the minor was bleeding, he suggested calling "911" "`to see if she was messed with." Petitioner said he did not know how the minor had been injured, although the minor told him she had poked and scratched herself. The minor also told a police officer, a nurse practitioner, the minors mother, and a half sibling that she had "poked" herself. However, a colposcopic examination revealed that the minors injury was "`unlikely to be self-inflicted as stated, because the wound is extensive."
The social worker reported that petitioner was "on SSI for [s]chizophrenia" and "denie[d] the severity of his illness." Both parents had a history of drug abuse, but claimed they had quit using rock cocaine and marijuana. Case notes from 1997 indicated that petitioner was very attentive to, and was closely bonded with, the minor, who had speech impairments and developmental delays.
At the jurisdictional hearing in November 2001, the juvenile court sustained the petition and ordered the parents to comply with the case plan and to participate in professional counseling, as arranged by the social worker, to address issues relating to sexual abuse of the minor and other matters deemed appropriate by the therapist. Petitioners case plan contained two components: sexual abuse counseling to help him learn to protect the minor in the future; and parenting classes to teach him how to maintain a safe home for the minor. Petitioner and the minors mother began attending a parenting class in July 2001.
At the six-month review hearing, the juvenile court found that reasonable services had not been provided because the parents had not received counseling to address "the issue of child sexual abuse protection." The court ordered an immediate referral for such counseling.
A subsequent report from the therapist who was providing counseling to the parents stated they had attended seven conjoint sessions and, with some difficulty, had accepted the facts that the minor had developmental delays and that "their former housing situation was not adequate for proper child raising." The minors "increased needs for a protective environment" were discussed in therapy. A May 2002 update stated that counseling had also addressed "sexual abuse of the [minor] by an unknown perpetrator." In a later report, the therapist elaborated that they had addressed "[r]ecognizing signs of sexual abuse" and "[p]rotection issues as a non-perpetrator, specifically the protection needs of a child who has special needs." The therapist believed petitioner "was able to grasp an understanding of the need to protect [the minor] from sexual abuse."
The therapist reported that the emotional stability of the minors mother had decreased as therapy progressed and she had missed two sessions, which petitioner attended. Petitioner went to 12 of the 13 sessions that had been authorized, missing only the final session due to a lack of money and transportation. Opining that the parents had met most of their therapeutic goals, the therapist recommended that petitioner continue to work with his mental health assistant at "Visions Unlimited" (Visions), a mental health agency where he had been receiving services for several years.
Meanwhile, the juvenile court granted petitioner unsupervised visits with the minor, but ordered that the minors mother was not to be present during those visits.
A status review report in July 2002 stated that petitioner had cooperated with the case plan, and his doctor reported that petitioner was "extremely stable and [] medication-compliant." There were some concerns regarding the behavior of the minors mother during visits, but petitioner was able to "redirect" her. The social worker reported that the parents had obtained adequate housing and had sufficient income to care for the minor. But she felt that the risk of returning the minor to parental custody was "high," in part because the mental health of the minors mother was declining. The social worker recommended additional conjoint counseling as well as individual counseling.
The social workers report referred to an updated case plan, but this plan is not contained in the record on appeal.
An addendum report prepared in August 2002 reflected that the minor told the social worker she would like to go home but, if this was not possible, she wanted to remain in the foster home. The minor said she enjoyed visits and wanted them to be four times a week. Opining that the minor did not seem to have any anxiety associated with visits and looked forward to them, the minors therapist "assessed it was appropriate to increase [petitioners] visits."
Meanwhile, petitioners mental health assistant at Visions was no longer with the agency, and petitioners case had not been reassigned. Visions reported petitioner had a pattern of failing to meet with his psychiatrist to evaluate and monitor his psychotropic medication.
On August 20, 2002, the juvenile court ordered further reunification services. The court found that the quality of petitioners visits with the minor was "strong," that petitioner was stable and medication compliant, that the parents were engaged in reunification services, and that they had adequate housing and income.
However, by November 2002, when the next status review hearing was scheduled to occur, the social worker recommended termination of reunification services. Her report chronicled the failure of the minors mother to comply with various aspects of the case plan as reflected by, among other things, the fact that she had tested positive for marijuana and cocaine. Although the parents had been referred for family therapy with their previous therapist, they attended only two sessions in August before failing to appear for further sessions.
On September 4, 2002, petitioner called the social worker because he had been unable to contact his new mental health assistant. Visions told the social worker that it was still in the process of transferring petitioners case and that the reason for the delay was petitioners "documentation had expired" and he had not completed new documentation.
Petitioner was assigned a new therapist at Visions the same day. Petitioner cancelled his first appointment before attending two sessions and having two telephone contacts with the therapist. According to the therapist, petitioner had missed a psychiatric appointment in July 2002, but had attended appointments in June and September.
The social worker listed other concerns about petitioner. The minor had reported her mother was present during unsupervised visits with petitioner, which petitioner denied. Petitioner also denied that the minors mother had a substance abuse problem. The social worker concluded that petitioners "boundaries with the mother appear to be poor" and stated that "[t]he parents have attempted to thwart the childs continuing placement with the current caregivers by formulating accusatory allegations." The social worker also noted that the minor had reported petitioner took clothes from a store without paying for them and had left her unattended while he went to get the car.
The record reflects that the "transition" between visits and her foster home "seem[ed] to [go] smoothly" for the minor and that she did not exhibit any negative responses to increased unsupervised visits with petitioner. "[T]he family interacted well together" during visits, and the minor spoke with "equal enthusiasm" about her parents and her foster parents.
Although the minor had "shown considerable improvement" in "some areas of cognitive functioning," her teacher felt that the minor would need considerable educational support in her home environment. The minors therapist believed it was critical for the minors future development that she remain in a home in which her caregivers were "attuned to her cognitive, emotional and physical needs" and could "provid[e] safety and consistency of care on a daily basis."
The status review hearing was continued several times and, according to an addendum prepared in April 2003, the minors mother had moved out of California, stating she did not intend to return. The therapist at Visions reported meeting with petitioner seven times, but he had missed three sessions since canceling his initial appointment. Petitioner also had been inconsistent in attending appointments to monitor his medications. However, according to his doctor, petitioner was not exhibiting signs of schizophrenia and "was `competent regarding the situation concerning [the minor]."
Petitioners therapist at Visions had not addressed sexual abuse issues with petitioner because she had not received any directive from DHHS that this needed to be covered. Petitioner had attended three sessions with a new therapist, who reported that petitioner "minimized the extent of [the minor]s injuries that . . . led to her removal and further stated that he believed that [the minor] could have inflicted the injuries upon herself." Although petitioner had completed a parenting education program and was a positive and cooperative participant in the program, the social worker continued to recommend that services be terminated.
At the review hearing in June and July 2003, the current social worker expressed concern regarding petitioners lack of understanding about sexual abuse issues because he was "minimizing the extent of the [minors] injuries as a result of the sexual abuse." Petitioner did not deny the minor had been molested but, in the social workers view, petitioner had "not gained insight" into how he would protect the minor from molestation in the future. Petitioner was referred to his current therapist because the therapist at Visions did not address sexual abuse issues with him.
The former social worker testified that when she took over the case in November 2002, petitioner said he and the minors mother were in the process of divorcing. At that time, petitioner was engaged in all services and, based on a discussion with him about sexual abuse issues, the social worker "felt that the issues were being covered or had been covered."
The current therapist testified that petitioner was referred to him in order to address "sexual abuse as a non[-]offender, . . . child protection, [and] working with . . . a developmentally delayed child." Petitioner had not missed any appointments and had completed approximately eight sessions. Initially, petitioner minimized the effects of sexual abuse and believed the minor had injured herself. However, according to the therapist, petitioner "now believe[d]" the minor was molested, although he was unsure how it happened. The therapist felt petitioner was "very dedicated" to the therapeutic process, seemed to understand the issues and skills they had discussed regarding protection of the minor, and would be able to implement the skills he was learning. They were about half way through completing therapy.
An updated report from the therapist stated that petitioners prognosis was "good" and that he "appear[ed] invested in the reunification process," was responsive to treatment, and seemed willing to focus on issues relevant to the minors protection.
Petitioners therapist from Visions testified that she had spoken to two different social workers while providing therapy to petitioner, but neither worker gave her any directives concerning what needed to be addressed in therapy. Although the therapist requested a copy of the case plan, she never received it. Consequently, she did not discuss sexual abuse issues with petitioner.
Petitioner testified that, prior to his current therapy, the counseling he received on sexual abuse issues was not "as in depth." On his own, he had taken out books from the library concerning child sexual abuse, and he described some of the "red flags of molest." He said he believed the minor had been molested. He denied stealing clothes from a store during a visit with the minor, and explained that he had purchased an outfit for the minor, which she wore home. He also denied that he had left the minor alone to get his car. According to petitioner, he had not known about the history of drug use by the minors mother or that she was using drugs after the minor was born. He had moved out of the apartment he shared with the minors mother in October 2002, although they "separated" approximately two months earlier, and he was planning to file for divorce. He had paid first and last months rent on a two-bedroom apartment.
A visit supervisor testified that she never observed petitioner to be inappropriate during visits.
The juvenile court identified the "most prevalent" issue to be whether the parents had made sufficient progress in reunification services such that "they can protect [the minor] from further sexual abuse." It found that there had not been "substantive progress" in this respect and that petitioner had not met the "counseling component." On this basis, the court denied petitioners request to return the minor to his custody.
As to the reasonableness of reunification services, the juvenile court acknowledged that they had not been ideal and that the family had not been "well served by the assignment of multiple social workers" and the "lapse in the coverage of this case." Nonetheless, focusing on the referrals that were made, the court found the services were reasonable. The court set a section 366.26 hearing to select a permanent plan, but encouraged petitioner to complete his counseling, indicating the court "could revisit the issue" if petitioner received a favorable report from his counselor.
DISCUSSION
I
Petitioner claims the juvenile court erred by finding that he was provided reasonable services. We agree.
The purpose of reunification services is to correct the conditions that led to removal so the dependent child can be returned home. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) "Reunification services implement `the laws strong preference for maintaining the family relationships if at all possible. [Citation.]" (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) The case plan "must be specifically tailored to fit the circumstances of each family [citation] and must be designed to eliminate those conditions which led to the juvenile courts jurisdictional finding. [Citation.]" (In re Dino E . (1992) 6 Cal.App.4th 1768, 1777.) The social worker must make a good faith effort to provide reasonable services responding to the unique needs of each family and "in spite of the difficulties of doing so or the prospects of success." (Ibid.;In re Kristin W. (1990) 222 Cal.App.3d 234, 254.)
In evaluating reunification services, "[t]he 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.) The juvenile courts finding regarding the reasonableness of services will be upheld if it is supported by substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
Here, the juvenile court acknowledged that services had not been ideal and that the family had not been "well served by the assignment of multiple social workers" and by the "lapse in the coverage of this case." Nonetheless, the juvenile court found that the services were reasonable based on the referrals that were made. The record compels a contrary conclusion.
Petitioners case plan contained two components: sexual abuse counseling to help him protect the minor from future sexual abuse, and parenting classes to teach him to maintain a safe home for the minor.
As to the second component, there is substantial evidence that petitioner completed a parenting class and obtained and maintained appropriate housing throughout the proceedings.
The juvenile court noted "[a] lot has been made about the issue of housing," but found this was not "a true issue in this case[.]" We agree. There is no evidence in the record that the housing arrangements made by petitioner were inappropriate.
Thus, the juvenile court did not err in concluding that the dispositive issue is whether petitioner was provided reasonable services to address the need to protect the minor from future sexual abuse. In light of the minors developmental delays, intensive counseling was necessary to assure her parents would be capable of protecting her. Unfortunately, counseling did not start until eight months after the minor was placed in protective custody. Hence, the juvenile court was justified in finding at the six-month review hearing in January 2002, that reasonable services had not been provided.
We include in this calculation the period of time between the minors detention and the dispositional hearing because the juvenile court is required to order reunification efforts to begin as soon as possible when it orders a child detained. (§ 319; In re Elizabeth R., supra, 35 Cal.App.4th at p. 1787.)
Between January and May 2002, petitioner attended 12 counseling sessions. But petitioners testimony that sexual abuse issues were not covered in depth during these sessions was undisputed. And for an entire year thereafter, petitioner did not receive any further counseling to address protection of the minor from sexual abuse, the "most prevalent" issue in the words of the juvenile court. Although petitioner had numerous sessions with a therapist at Visions during this period of time, the therapist did not discuss sexual abuse issues with him because she was not able to obtain any information from the social workers as to what needed to be addressed during therapy. The fact that petitioner was not as consistent in attending appointments with the Visions therapist as he was with his other therapists is immaterial because the issue is whether the services petitioner was offered were reasonable.
Although DHHSs case notes reflect that one of the social workers had a conversation in which the therapist acknowledged receiving directions to discuss sexual abuse with petitioner, the therapist did not recall the conversation. To the contrary, she testified that, despite repeated calls and requests to DHHS for assistance in the areas to be covered in therapy, none was forthcoming.
In this regard, it is noteworthy that petitioners therapy at Visions was not the result of a referral from the social worker; petitioner had been utilizing services at Visions for several years prior to the initiation of dependency proceedings. But even if therapy through Visions was incorporated into the case plan, the social worker had a responsibility to communicate with the therapist to assure that the case plans objectives were being met.
Because close to a year of the reunification period passed before petitioner was offered meaningful services to address issues relating to sexual abuse of the minor, it cannot be said that he received reasonable services. Indeed, DHHSs failure to follow up with petitioners therapist at Visions to assure that essential components of the case plan were being addressed, or to otherwise provide services to comply with the case plan, represents a lack of reasonable services.
We are aware that petitioners compliance with services was not perfect. Most significantly, he was referred for additional conjoint therapy with the minors mother in June 2002 and, for reasons unexplained in the record, sessions did not begin until August 2002, and petitioner ceased attending thereafter — perhaps because he separated from the minors mother. In any event, the social worker assigned to the matter in November 2002 knew that the parents had separated. Thus, at that point, it became incumbent upon her to adjust the case plan to petitioners circumstances by arranging an alternative to conjoint counseling.
Furthermore, when compared with petitioners overall effort and progress in complying with services, we find this lapse in compliance insignificant. Petitioner attended all but the last of his first series of therapy sessions. He attended all sessions with his current therapist. He completed parenting classes. He consistently attended visits with the minor. And all of the service providers reported that he was engaged in, and benefiting from, these services.
Relying on In re Christina L. (1992) 3 Cal.App.4th 404 (hereafter Christina L.), DHHS argues "petitioner had a duty to notify the juvenile court that services were inadequate." (Caps. omitted.) But that case is of no help to DHHS.
In Christina L., a mother with developmental delays was offered a wide array of services, many of which she refused or resisted. In particular, the mother had refused to seek services from the regional center until ordered to do so by the juvenile court after the child already had been removed for a year. The mother waited until a proceeding to free the child from parental custody (pursuant to former Civil Code section 232) to argue that she had not been provided with services specifically tailored to her special needs. Noting that "the reunification period had already long passed, along with the opportunity to timely correct any inadequacies," Christina L. concluded the services provided to the mother were adequate. (Christina L., supra, 3 Cal.App.4th at p. 416.) Christina L. pointed out that the mother could have sought guidance from the juvenile court to formulate a better plan if she felt, during the reunification period, that the services offered her were inadequate. (Ibid.) However, Christina L. held that "the main inquiry remains whether the juvenile court has a sufficient basis to conclude adequate reunification services were offered." (Ibid .)
Here, petitioner objected to the inadequacy of services at the first hearing possible, which was the 18-month review hearing. More important, he "was not required to complain about the lack of reunification services as a prerequisite to [DHHS] fulfilling its statutory obligations." (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1014.) Unlike the mother in Christina L. who was offered extensive services, petitioner was provided a minimum of services to address the problems leading to dependency. And unlike the mother in Christina L., he actively participated in most of the services he was offered.
The record in this case is replete with instances of social workers not making expeditious referrals, not following up with service providers, not obtaining pertinent information concerning the services being provided, and not adjusting services to meet the changing needs of the family. Under these circumstances, the evidence does not support the juvenile courts finding that petitioner was provided reasonable services.
Numerous cases have recognized a juvenile courts discretion, pursuant to section 352, to continue the 18-month review hearing if reunification services have not been provided or were inadequate. (See, e.g., Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017; In re Daniel G. (1994) 25 Cal.App.4th 1205;In re Dino E., supra, 6 Cal.App.4th 1768.) In such cases, section 352 allows the court to balance a childs interest in the prompt resolution of custody status and a parents interest in being given the chance to reunify with his or her child. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017.) And this court has recognized that a juvenile court may continue an 18-month review hearing on its own motion upon a showing of good cause, such as when a parent has not received adequate reunification services. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1798, citing In re Dino E., supra, 6 Cal.App.4th at p. 1768; see also Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017.)
In considering whether to continue an 18-month review hearing, the juvenile courts discretion is guided by the requirements that the continuance must be in the best interests of the child and that "substantial weight" must be given to the childs need for the expeditious resolution of his or her custody status. (§ 352, subd. (a); In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799.)
During the more than two years since dependency proceedings were initiated, petitioner was provided less than five months of meaningful services addressing the primary issue leading to dependency jurisdiction. Consequently, the juvenile court had discretion to consider continuing the 18-month review hearing to afford petitioner the opportunity to complete services and establish that he is able to care for the minor. We will remand this matter to the juvenile court so it may exercise its discretion in this regard.
We note that, in exercising such discretion, the juvenile court should consider the services already provided, the likelihood of success if further services are ordered, whether the minors need for a prompt resolution of the matter outweighs the benefit from further services, any information that has developed during the pendency of this review proceeding, and any other relevant information. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017; In re Daniel G., supra, 25 Cal.App.4th at pp. 1216-1217; In re Dino E., supra, 6 Cal.App.4th at p. 1779.)
II
Petitioner also claims the juvenile court erred by failing to return the minor to his custody. We disagree.
At an 18-month review hearing, the juvenile court must order a child returned to parental custody "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a).) The juvenile court is required to "consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided . . . ." (§ 366.22, subd. (a).) The social worker has the burden of proof to establish detriment. (§ 366.22, subd. (a).)
Compliance with the reunification plan is "an indicium of progress toward family preservation," but it is not the only consideration in determining whether a child should be returned to parental custody. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140.) "[T]he court must also consider progress the parent has made towards eliminating the conditions leading to the childrens placement out of home." (Id. at pp. 1141-1142.) Ultimately, "the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
Petitioners claim is subject to review for substantial evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) We must resolve all evidentiary conflicts in favor of the prevailing party, recognizing that issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16; In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
The juvenile court denied petitioners request to return the minor to his custody because it found petitioner had not made sufficient progress in services to ensure that he could protect the minor from sexual abuse. Substantial evidence supports the juvenile courts determination. Although petitioner acknowledged at the 18-month review hearing that he believed the minor had been molested, a short time earlier he was still maintaining that the minor may have inflicted the injuries on herself, despite medical reports indicating this was highly unlikely. And at the review hearing, petitioner continued to insist that he "kn[e]w nothing" about the history of drug use by the minors mother and that he still did not believe she was using drugs when the minor "was there." This testimony is undercut by reports that DHHS became involved informally with the family after the minors birth as a result of her mothers daily marijuana use. Petitioners testimony exhibited an inability to fully appreciate the risk that the mother posed to the minor. The mother had not fully engaged in services. She was using controlled substances, and her mental health had deteriorated. Further concern was raised by the minors report that petitioner allowed the mother to be present at unsupervised visits. Consequently, the evidence before the court supported the conclusion that petitioner continued to display a level of denial regarding the minors sexual abuse, as well as the risk posed by the mother.
While it is undeniable that petitioner had made progress in addressing issues regarding the protection of the minor, he was only halfway toward completing counseling with his current therapist. The therapist testified they still needed to address "establishing healthy boundaries," the "appropriate role of a parent," how to keep the minor safe "over the long term," and how to respond if sexual abuse issues come up in the future. Petitioner testified that this was the first therapist to address child sexual abuse issues with him in depth.
All of this evidence supports the juvenile courts finding that returning the minor to petitioners custody would create a substantial risk of detriment to the minor, particularly in light of the fact that she requires a heightened level of protection due to her developmental delays.
DISPOSITION
Let a peremptory writ of mandate issue, directing respondent juvenile court to vacate its orders terminating petitioners reunification services and scheduling a section 366.26 hearing. The matter is remanded to respondent juvenile court to exercise its discretion whether to continue the 18-month review hearing and order additional services for petitioner. The stay issued by this court is vacated upon the finality of this opinion.
We concur: SIMS, J., BUTZ, J.