Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD-08-3067
Banke, J.
R.C. (Mother) challenges an order of the San Francisco City and County Superior Court, Juvenile Division, made October 5, 2009, in which the court granted a petition under Welfare and Institutions Code section 388 to terminate a prior visitation order and set a hearing under section 366.26 (.26 hearing) to select a permanent plan for the minor D.C. Mother challenges the juvenile court’s finding that the San Francisco Human Services Agency (Agency) offered or provided her with reasonable services, as well as its ruling terminating further visitation. We conclude the court’s reasonable services finding is supported by substantial evidence, as is its order terminating further visitation, and therefore deny Mother’s petition on the merits.
All further statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
In our Discussion below, we discuss in more detail the facts pertinent to the reasonable services issue presented for our review.
It appears from the record Mother entered the foster care system when she was 13 years old. At age 14 years, she became pregnant with the minor, who was placed in a separate foster care home due to special medical needs. Mother reunified with the minor, and they lived together in foster care for three years, until Mother reached 19 years of age.
The Agency initiated this proceeding on March 14, 2008, when the minor was 10 years old, after he was released from a mental health facility (to which he had been admitted after attempting to harm himself and Mother). The juvenile court ordered the minor’s detention three days later, on March 17. The Agency’s jurisdictional allegations, as ultimately amended and sustained by the court, averred Mother was unable to care for the minor—who had “mental health and behavior issues”—and Mother was afraid the minor would hurt her, his four-year-old brother, and her unborn child. (See § 300, subd. (b).) They further averred the minor did not want to return to Mother’s home because he was afraid of her, and both Mother and the minor were victims of past domestic violence “and may both be experiencing PTSD.”
Testimony elicited at a subsequent review hearing indicated that, in the period leading up to the initiation of the proceeding, Mother had had the minor hospitalized twice for psychological evaluation under section 5150.
The Agency’s dispositional report, completed on May 1, 2008, indicated there had been some supervised visits between Mother and the minor. The minor began “struggling” with the visits, however, and told his foster parents he did not want to visit with Mother anymore. The assigned case worker noted she had requested therapeutic visitation, but had been informed by Agency management there was currently no contract available to provide this service.
On May 8, 2008, Mother made an oral motion asking the juvenile court to find the Agency had not provided reasonable services to date, based on the failure to provide therapeutic visitation. Mother also requested, and obtained, an order directing the Agency to “immediately arrange for and pay all related costs for therapeutic visitation” between Mother and the minor.
The juvenile court’s dispositional orders, made on May 29, continued the minor in foster care and ordered reunification services for Mother. The court also took under submission Mother’s previous oral motion regarding reasonable services.
On June 2, 2008, the court issued a ruling on Mother’s oral motion. It noted the case worker and counsel for both Mother and the minor had all recognized the need for therapeutic visitation, yet the Agency had refused to provide such services until the court ordered them. Consequently, the court found the Agency had not provided reasonable services “at this state of the proceedings.”
Three months later, on September 26, the Agency filed a petition under section 388, in which a new assigned case worker (case worker) averred the minor had stated he did not want to visit with Mother or his siblings, Mother had reported she felt afraid of the minor and did not want to force him to have visitation, and the minor’s therapist had reported the minor had consistently stated he did not want further contact with Mother. She therefore requested modification of the order requiring therapeutic visitation. The Agency withdrew this petition on October 8, to make further efforts towards facilitating therapeutic visitation.
The six-month status review hearing (six-month hearing) was continued numerous times, apparently with no objection by Mother. During this time the minor continued individual therapy, as did Mother. The minor also continued to refuse to have contact with Mother, and no therapeutic family visitation took place. Mother took no steps to ask the court to enforce the visitation order.
On May 22, 2009, the Agency filed a second petition under section 388, requesting that the court modify or vacate its order requiring therapeutic visitation.
A combined hearing on the section 388 petition and the continued six-month hearing commenced on June 22, 2009, with further hearings on July 28, July 31 and October 5, again without objection by Mother. By the conclusion of the hearing, nearly 18 months had passed since the minor’s initial detention.
At the conclusion of the hearing, Mother argued that because the Agency had failed to force the minor to attend therapeutic visitation and thus no visitation had taken place, it had again failed to provide reasonable services. She asked the court to deny the section 388 petition, continue reunification services and enforce its order requiring therapeutic visitation. The minor’s counsel essentially agreed that the Agency had not provided reasonable services.
The juvenile court granted the section 388 petition and vacated its prior order requiring therapeutic visitation. It found the Agency had provided or offered reasonable services to Mother, returning the minor to Mother’s custody and care would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being, and there was not a substantial probability of return of the minor to Mother within the next six months. The court ordered the termination of Mother’s reunification services and set the matter for a.26 hearing. This petition followed. (§ 366.26, subd. (l).)
Discussion
I. Reasonable Services
Mother challenges the juvenile court’s finding that the Agency offered or provided her with reasonable reunification services during the review period. Specifically, she claims the Agency failed to “compel[ the minor] to attend therapeutic visitation.” In her view, the Agency’s failure to implement the court’s visitation order mandated a finding that it did not offer or provide reasonable services.
In reviewing the challenged finding, we examine the record in the light most favorable to the juvenile court’s order, to determine whether there is substantial evidence from which a reasonable trier of fact could have made the finding under the clear and convincing evidence standard. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) We construe all reasonable inferences in favor of a finding regarding the adequacy of an agency’s reunification plan and the reasonableness of its efforts. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of such a finding and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) If the finding is supported by substantial evidence, we affirm the ruling, even though other evidence might support a contrary conclusion. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) Applying these standards, we have gleaned the following from the reports and testimony admitted at the six-month hearing.
At the time of her testimony in late June 2009, the therapist who provided individual services to the minor had treated him once a week for at least a year. She testified he never indicated any willingness to participate in therapeutic visitation. On the contrary, he was “adamant” in his refusal to engage in therapeutic visitation and regarded her effort to encourage it as an attempt to coerce him to do something he did not want to do. During their most recent therapy session, he asked her to “quit hounding him.” Other testimony indicated the minor actually struck the therapist at a group meeting that took place after her testimony when she raised the issue of services for Mother. As a result their therapeutic relationship ended in July 2009. The therapist expressed the opinion the minor had been “fragile psychologically” when she began treatment with him, and although he was “[l]ess so,” he was still in a “precarious place psychologically.” In her view, it was “not a good idea” to “coerce him into doing anything that he felt caused him harm.”
The case worker’s assessment of the minor was consistent with that of his therapist. She reported that, since her assignment to the case in June 2008, the minor told her consistently he did not want to have contact with Mother. Nevertheless, she encouraged the minor to resume contact, initially by sending Mother letters or pictures, and subsequently by persistently trying to discuss the issue of visitation and family therapy. The minor, for his part, verbalized well when speaking about school or his individual therapy, but became agitated whenever the case worker mentioned Mother. He remained “very consistent” with the case worker throughout, insisting he did not want to have contact with Mother or participate in family therapy. In fact, as time passed, the minor became upset whenever the case worker broached the subject of resuming contact with Mother, and in effect asked her to stop bringing it up. He explained it was too “difficult” for him and he “d[id]n’t want to talk about” Mother.
In other respects the minor appeared to be doing well since his removal from Mother’s custody. An addendum report completed in March 2009 stated he had improved both academically and behaviorally at school and was doing well in his foster placement.
When the case worker discussed with Mother the minor’s refusal to have contact, in September 2008, Mother responded that she respected her son’s wishes and did not wish to “force him” to have the visits. Mother maintained this position as late as April 2009. While the case worker encouraged Mother to begin the process of therapeutic visits by sending the minor letters or pictures, Mother wrote only one letter to the minor, which the case worker delivered to the minor in October 2008.
On October 20, 2008, the case worker attended a meeting with Mother, her counsel, the minor’s counsel, and a case manager from Family Mosaic Project (case manager), a provider of therapeutic services. At this meeting it was agreed the case manager would coordinate family therapy while the case worker would oversee a resumption of visits between Mother and the minor. The following day, however, the case manager reported the minor had requested a meeting with Mother, “because he need[ed] to tell [Mother] that he [did] not want to have any contact with her.”
The meeting requested by the minor took place on November 4, 2008, with Mother and her therapist, the minor and his therapist, the case worker, and the case manager present. The minor told Mother he did not want to have contact with her, but he did wish to have visits with his younger brother. The case worker reported Mother did not show “emotional understanding towards [her] son’s feelings” during this meeting and refused to allow the minor to visit with his brother. The minor’s therapist testified that during this meeting—which was the only time she observed contact between Mother and the minor—the minor appeared to be “very agitated and a lot more unstable than the way he normally” behaved during their therapy sessions. She observed Mother, for her part, “didn’t listen” to the minor during this meeting, but was defensive and argumentative. The therapist further related Mother refused to allow the minor to visit with his brother because the minor refused to participate in family therapy.
In February 2009, the case worker sought advice from a therapeutic consultant on the issue of therapeutic visitation. Given the circumstances, the consultant was initially hesitant to recommend another attempt to begin family therapy, but ultimately recommended a family therapist should first meet with Mother and then gradually include the minor. The case worker obtained a new referral, but the minor’s therapist informed her, in February and again in March 2009, the minor had become “really upset” because he did not want to participate in family therapy and felt the case worker was trying to force him to do so.
As of May 2009, the case worker reported the minor continued to refuse to participate in visits or family therapy with Mother, and Mother continued to refuse to allow the minor to visit his younger brother.
Mother’s therapist testified the minor should have been compelled to participate in family therapy. However, he was unable to articulate any specifics as to how to accomplish that, that is, how the minor would “actually [be] transported and put in the room” for family therapy in the face of his refusal. He also acknowledged he had never contacted the minor’s therapist for information on which to formulate his opinion that the minor should have been compelled to attend, nor had he had any conversations or contact with the minor beyond his supervision of the two visits between the minor and Mother that occurred prior to the dispositional hearing.
When a juvenile court has ordered visitation as a component of reunification services, as here, the social services agency and a mental health professional working with that agency and the minor may determine when visitation should first occur. (In re S.H. (2003) 111 Cal.App.4th 310, 319.) They, in turn, may consider the minor’s wishes, so long as this consideration is not the sole factor in their determination whether any visitation take place. (Ibid.) Here, it is apparent that the implicit determination—not to compel the minor to attend therapeutic visitation—was not based solely on his consistent and “adamant” refusal to do so. In his therapist’s professional judgment, the minor’s psychological status had been “fragile” at the outset of her treatment and remained “precarious” at the time of her testimony in June 2009, and for this reason she regarded coercion or compulsion “not a good idea.” We note, too, Mother expressly told the case worker, on more than one occasion, the minor should not be compelled to attend therapeutic visitation, and Mother never sought any assistance from the court to force the minor to do so.
While Mother could have brought the matter to the attention of the court, as she did in her oral motion prior to the dispositional hearing, we hasten to express concern that the juvenile court repeatedly granted continuances that allowed this proceeding to continue without direct court oversight for more than a year. We appreciate the court’s pressing case load and that the requests for continuances were unopposed. However, the court also has an obligation to conduct a timely case review.
Mother also did not consistently cooperate with efforts of the case worker and therapist to persuade the minor to resume contact with her. While she was willing to engage in family therapy, she wrote only one letter, in October 2008, in response to the case worker’s suggestion that she initially engage the minor through indirect contact. Mother also continuously refused to allow the minor to visit his younger brother, and the court found this refusal to be inappropriately punitive in nature. In any event, her refusal effectively precluded the minor’s contact with a family member, contact that might have facilitated the beginning of therapeutic visitation.
The court found Mother presented no credible evidence to support her claim that the Agency could have safely forced the minor’s attendance at therapeutic visitation. While Mother’s individual therapist opined the Agency should have insisted the minor attend, he had never treated or conversed with the minor, nor consulted with the minor’s therapist before formulating his opinion. When asked on cross-examination how the Agency might have forced the minor’s attendance, Mother’s therapist said only that the case worker, the minor’s therapist, and the foster parents should have “somehow... figure[d it] out.”
The Agency’s duty was to make a “good faith effort” to provide reasonable reunification services. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) From the foregoing, it is apparent the case worker made such an effort in her attempt to implement court ordered visitation. Her decision not to force the minor to participate in visitation was not based solely on the minor’s wishes, but also on his therapist’s assessment of the minor’s emotional or psychological state. There is no evidence to suggest the case worker could have done more to implement the visitation order without risking harm to the minor. Although a unique and difficult case, we conclude there was substantial evidence to permit a reasonable trier of fact to find, under the clear and convincing evidence standard, that the Agency offered or provided reasonable services to Mother notwithstanding that therapeutic visitation did not take place.
The authorities Mother has cited do not compel a contrary conclusion. In In re S.H., supra, 111 Cal.App.4th 310, the Court of Appeal reviewed a visitation order that included a statement to the effect that “if the children refuse a visit, then they shall not be forced to have a visit.” (Id. at p. 316.) The court held that, because the visitation order did not specify a minimum number of visits per month or require that some visits occur, the language invested the minors with a “practical ability to forestall any visits at all.” (Id. at p. 319.) The order was thus improper because it effectively made the minor’s wishes the “sole factor in determining whether any visitation takes place.” (Ibid.) Here, there was no such problem with the court’s visitation order. And, as we have discussed, there was evidence that the Agency’s determination not to compel visitation was not based solely on the minor’s wishes.
In the case of In re C.C. (2009) 172 Cal.App.4th 1481, the appellate court reviewed a dispositional order under section 362.1, subdivision (a)(1)(B), that denied visitation. The court held the court erred because it had not used the proper standard, that is, that visitation would pose a threat to the safety of the minor. (In re C.C., at pp. 1491-1492; see § 362.1, subd. (a)(1)(B).) Here, in contrast, there was no denial of visitation in the dispositional order. Thus, we do not consider whether there was evidence of risk to the minor’s safety. Rather, the issue here is whether substantial evidence supports the court’s status review finding that the Agency offered or provided reasonable services notwithstanding that therapeutic visitation did not occur.
Finally, we come to In re Alvin R. (2003) 108 Cal.App.4th 962, which is more similar to the present case, because it, too, involved review of a finding of reasonable services that focused on the agency’s failure to initiate “conjoint therapy”—therapeutic visitation—between the father and the minor. (Id. at pp. 965-966). In that case, the conjoint therapy was to begin only after the minor attended eight sessions of individual therapy, but the agency failed to ensure that the minor received this therapy during the review period. The Court of Appeal noted an agency must make “[s]ome effort... to overcome obstacles to the provision of reunification services.” (Id. at p. 973.) It concluded there was no substantial evidence to support the reasonable services finding, because the agency had presented no evidence of having made a good faith effort to bring about the therapy the minor needed before conjoint therapy could begin. (Ibid.) Here, in contrast, individual therapy was provided to both the minor and Mother, and there was evidence the case worker did make a good faith effort to bring about the minor’s participation in therapeutic visitation.
In sum, we conclude substantial evidence supports the juvenile court’s finding that the Agency offered or provided reasonable services.
II. Termination of Visitation
When the juvenile court terminated reunification services and set a.26 hearing, it was required to continue to permit visitation between Mother and the minor absent a finding visitation would be detrimental to the child. (§ 361.21, subd. (h).) In this case, the court granted the Agency’s second petition under section 388, vacating its order requiring therapeutic visitation. In doing so, the court effectively terminated further visitation pending the.26 hearing. Mother argues there was insufficient evidence to support a finding that further visitation would be detrimental to the minor. She also urges the court erred in granting the section 388 petition because the Agency failed to show a “change in circumstances or new evidence.” (See § 388, subd. (a); In re B.D. (2008) 159 Cal.App.4th 1218, 1228 [petitioner has burden to show change of circumstances or new evidence, and that the proposed modification is in the minor’s best interests].)
As we affirm the finding that the Agency offered or provided Mother reasonable services, we do not address her additional argument that the court erred in terminating visitation because the Agency failed to offer or provide reasonable services.
Review of the juvenile court’s implied finding—that visitation would be detrimental to the minor under section 366.21, subdivision (h)—is limited to a determination whether it is supported by substantial evidence. (See In re Kristin W. (1990) 222 Cal.App.3d 234, 251.) In making this determination, we resolve conflicts and indulge all reasonable inferences in favor of the challenged finding. (Ibid.) We otherwise review the grant or denial of a section 388 petition for abuse of discretion. (In re B.D., supra, 159 Cal.App.4th at p. 1228.)
The Agency called the minor’s therapist as a witness, evidently for the purpose of addressing the issue of visitation as it related both to the six-month review and the section 388 petition. As we have discussed, the therapist testified that, in her opinion, the minor’s psychological state was initially “fragile” and continued to be “precarious.” Thus, she thought it was “not a good idea” to compel him to participate in something he “felt caused him harm”—referring clearly to contact with Mother. This evidence suffices to support the implied finding that further visitation would be detrimental to the minor. (§ 366.21, subd. (h).)
The authorities cited in support of Mother’s challenge to the implied finding of “detriment” are either factually distinguishable or inapposite, or both. For example, the “substantial risk of detriment” under section 366.22, subdivision (a), is recognized as a “fairly high” standard in comparison with the simple “detriment” set out in section 366.21, subdivision (h). (See In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) Similarly, the showing necessary to deny a parent visitation at the dispositional hearing is comparatively high. (See In re Daniel C. (1990) 220 Cal.App.3d 814, 837-838; see § 362.1, subd. (a)(1)(B).)
Further, the gist of the therapist’s testimony does not appear previously in the record, and thus appears to be “new evidence” sufficient to satisfy the Agency’s burden to show a change of circumstances or new evidence under section 388. (§ 388, subd. (a).) We also note the minor’s behavior had significantly escalated. By the time the court ruled on the section 388 petition, he had become so distraught over the efforts to talk about visitation, he had physically struck his therapist. We therefore conclude the court did not abuse its discretion in its implicit determination that the Agency had shown a change of circumstances or new evidence under section 388, subdivision (a).
We note it additionally supports implied finding that the proposed modification (the termination of therapeutic visitation) was in the minor’s best interests. (§ 388, subd. (c).)
Disposition
The request for stay is denied and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur: Marchiano, P. J., Dondero, J.