Opinion
A159786
06-03-2020
MICHAEL H. & TRINA H., Petitioners, v. THE SUPERIOR COURT OF SOLANO COUNTY, Respondent; SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J44418)
On February 27, 2020, the juvenile court set a hearing to consider termination of parental rights and select a permanent plan for 11-month-old Mia H. (Welf. & Inst. Code § 366.26; all subsequent undesignated statutory references are to this code.) Mia's parents, Michael and Trina, seek review by extraordinary writ, contending they were denied reasonable reunification services. This claim lacks merit but the record shows that the juvenile court failed to make the findings necessary to justify terminating the parents' services at the six-month review hearing in this case. (§ 366.21, subd. (e).) Accordingly, we will grant parents' petitions and remand this case for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
I. The Dependency Petition
In March 2019, the Solano County Health and Social Services Department received a referral that newborn Mia was at risk of harm because her mother Trina is developmentally disabled, and her father Michael has physical limitations and a history of severe mental problems, and was previously incarcerated for abusing his older children. The Department sent a social worker to the hospital to assess the situation. Hospital staff reported that since Mia was born, neither parent had held, fed, or changed her, and that Trina appeared to be disconnected, often referring to the baby as "it." Staff were concerned that these parents could not care for Mia on their own because of their disabilities.
The social worker interviewed the parents separately. Both reported that they had been homeless for five years, lived in motels, and had jobs at Six Flags. Trina reported that she has a learning disability, Mia is her first child, and she has never cared for an infant before. Her plan was for Mia to stay with a friend for a few days, so she and Michael could rest, and then they would take care of the baby on their own. Michael reported he previously went to prison for child endangerment and then completed a 52-week parenting course while he was on probation. Michael believed he could care for Mia because he had completed the parenting course. He also reported that he has cerebral palsy and receives transportation services through the Regional Center. Michael stated that he had not yet had time to hold Mia, but he wanted to take care of her.
The social worker also interviewed Teri L., a family friend who accompanied Michael in the hospital waiting area. Teri adopted Michael's older children after they were removed from Michael and his ex-wife C.H., and she requested that the Department consider placing Mia with her so the siblings could be together. Teri described herself as a support person for Michael and Trina and said she had tried to help them prepare for Mia. She advised that Trina needed education to care for a baby and also reported that Michael's older children wanted to know how he and Trina would care for Mia when they could not take care of themselves.
After Mia was discharged, she was placed in protective custody. The Department did a records search, which disclosed several dependency cases involving Michael's four older sons. The boys were born between 2005 and 2011, while Michael was married to their mother, who has physical and developmental disabilities. The parents gave one boy up for adoption and the others were removed by the Department after they suffered physical injuries while in the care of their parents. In 2010, Michael and his ex-wife pleaded guilty to child endangerment charges involving their third son, who was less than a year old when they allegedly punched him in the head multiple times causing serious damage.
The Department filed a juvenile dependency petition on Mia's behalf under section 300, subdivision (b)(1) and (b)(2), based on allegations that Mia was at substantial risk of serious physical harm or illness for the following reasons: Trina and Michael each have a developmental disability that impacted their ability to care for Mia at the hospital following her birth; Michael had difficulty parenting his older children when they were infants, which led to their removal; and Michael has a criminal history of felony child endangerment due to his physical abuse of his older children. Jurisdiction was also alleged under section 300, subdivision (j) based on allegations that three of Mia's half-siblings have been juvenile court dependents and Michael's parental rights to those children were terminated because he failed to benefit from reunification services.
II. Disposition
On March 13, 2019, Mia was detained, and the Department was ordered to provide both parents with supervised visitation, parenting education, and mental health assessments. Soon after the detention hearing, Mia was placed with Teri and began developing a relationship with her biological siblings, who appeared happy to have Mia in their home. The jurisdiction hearing was continued pending psychological evaluations for the parents, which took several months to complete.
In May 2019, the parents were interviewed separately by different social workers. Trina had not read the petition or detention report, but she denied struggling with reading, explaining that she has a learning disability that causes her to forget things. The social worker read the petition allegations out loud and discussed them with Trina. Trina objected to the allegation that she had not been able to care for Mia at the hospital, stating that she could not hold the baby while she was recovering from a C-section. She denied referring to Mia as "it," repeating that she had a C-section. When asked about her disability, Trina said it was hard for her to learn and remember things. She did not receive special services, aside from special education while in school, but she had an appointment at the Regional Center and hoped to gain assistance with transportation and finding a better job.
Trina acknowledged that she did not know how to care for Mia and said she would need a babysitter. When asked about a support network, Trina stated that Mia's current caregiver Teri would continue to help the family. Trina admitted she and Michael did not have provisions for Mia, and she did not know how they would pay for things Mia needed. They often went without food and Trina knew that stores locked up baby formula, which would make it difficult to take. When the social worker suggested using WIC vouchers, Trina said she needed that money for herself and did not seem to understand that she should not have been receiving WIC assistance when Mia was not currently in her care. She also mentioned experiencing problems with her social security because she was penalized for failing to disclose income.
Trina stated that she wanted Mia to live with her and Michael, but she repeatedly expressed doubts about their ability to meet Mia's needs. For example, she did not previously understand that Mia would continue to need items purchased for her at every stage of her development and said that she and Michael would not be able to do that. Also, she said it would be "too hard" to take care of Mia full time after only six months of reunification services. She insisted she could not take a parenting class because it would interfere with work. She also stated that Michael did not need parenting classes since he took them before. When the social worker read the allegations about Michael's abuse of his older children, Trina said that the incident was in the past, Michael served time and had matured since then. Trina also opined that Michael took the blame for his ex-wife. She said Michael told her that he had seen his ex-wife hit their son, but she admitted that Michael never claimed he tried to protect the boy.
Trina told the social worker that her visits with Mia were going well, but she wished Mia was calm. Trina did not see the "point" of the baby crying even after she was fed and changed. Mia's fussiness made Trina nervous and upset but she said she would not hurt the baby. Michael had told her to be more flexible, but Michael was not her boss. Near the end of Trina's interview, another social worker joined the discussion to talk about services. Trina did not want to agree to parenting education. After repeated assurances that the parenting class could occur during visitation, Trina finally agreed. But she stated that she did not think she would be able to take care of the baby in addition to all the work she was currently doing to take care of Michael and herself.
During Michael's interview, he stated that Mia should not have been removed from him because when he made his plea deal in his child abuse case, he was promised that if he had more children in the future, they would not be removed from him. After the social worker explained how the dependency system was different from the criminal system, Michael said he understood, but he still believed the Department should not be involved. When the social worker asked about the petition allegations regarding Trina's inability to care for Mia, Michael responded they were "complete BS," stating that the hospital required Trina to rest after the C-section, and the baby was right next to her if she needed anything. Michael complained that hospital staff did not provide adequate supplies, did not let him stay in the room with the baby, and then lied to the Department about what had happened.
Regarding the prior abuse allegations, Michael reported that he had been through a lot and that he had taken the rap for his ex-wife. He described his son's injuries as a "joint effort," but explained that he did not want his ex-wife to go to jail because she was pregnant. Michael said that the boy's mother would fall asleep while holding the baby and then he would fall and hit his head. Michael also admitted that when the boy was around 10 months old, he kept crying, so Michael hit him on the side of his head. Michael explained that they did not see a need to take the baby to the doctor because they watched him for a few days, and he did not vomit or give them reason for concern. But then Michael's mother came for a visit and immediately saw that the baby's head was swollen, so she and his ex-wife took the baby to the hospital while Michael stayed home. Michael also shared his opinion that the reason for his prior aggression toward his older children was that he had been taking phenobarbital for a seizure condition from the age of three until he went to prison, where he was informed that this medication could "escalate anger." While Michael was incarcerated, he switched to a new medication.
Michael told the social worker that Mia would not be at risk of harm in his home because the situation was different than when he lived with his ex-wife. During his former marriage, they wanted to do everything on their own without assistance. Now he and Trina have a support system of a few friends including Teri. Michael said he was not concerned about whether Trina could care for Mia when he was not around, stating that it would be a "learning experience" and that a parenting class would be good for her. Then Michael acknowledged that he would be concerned about leaving Trina alone with the baby, but thought she deserved a chance to try.
On June 28, 2019, the social worker conducted follow-up interviews with each parent. Trina was frustrated that she had to meet separately from Michael when he was her husband. She stated repeatedly that she was tired and had many things to do. She said that after working every day, she had to get up early on her day off to visit Mia. When asked how visits were going, Trina said they were good but then admitted she was frustrated when Mia cried. She asked the social worker why Mia was so fussy when other babies were not. Trina admitted that Mia's constant crying was upsetting and that she wanted Mia to be calm. She said that she was trying, and she knew this was her first baby, but she did not want any more children. She expressed that babies were a lot of work and she was already tired from working. When the social worker pointed out that the goal was for Trina to have Mia full time, she responded that she would need someone else to help because she had so many other things to do. She said that she had taken time off when Mia was born and would not be able to take any more time off to take Mia to appointments, but when the social worker said Mia needed to be a priority, Trina said she understood. Trina expressed frustration about having to take a parenting class but again she responded positively when the social worker reminded her the classes were important. The social worker tried to follow up on their previous conversation about the difficulty of helping Michael with his physical needs and caring for Mia, but Trina stated that having those obligations would be "good."
During his interview, Michael continued to maintain that his current situation was different than the previous dependency matters. He explained that he was "older and wiser," and he and Trina had "big" support from Teri. When asked what happened during the prior dependency cases, Michael stated that he and his ex-wife made a mistake by not having jobs and trying to be parents "twenty-four seven." Michael did not elaborate further, except to say that Trina would probably stay home with the baby because her work shifts were shorter than his.
The social worker asked if Michael had talked to Trina about lifestyle changes that would need to happen if Mia lived with them. Michael said Trina was not able to talk about that because she was fixated on the court proceedings. When asked about Trina's frustration that Mia is fussy, Michael said Trina is set in her ways and alluded to her upbringing by her grandparents but could not elaborate. Michael said that Trina's family was a great support system but when the social worker responded that Trina said she did not have family support, Michael suggested maybe they "withdrew." Michael thought that Trina could benefit from a parenting class even though she had trouble remembering.
Michael felt that anger was not a problem for him any longer because he was older and had come to understand that babies just need to cry. Michael reported that he is calmer than he used to be, and when he gets angry, he knows to take a break and do something separately from Trina. He acknowledged that he could not do that with Mia. The social worker asked Michael about his services through the Regional Center, and when he stated that the only service that he was receiving was transportation, the social worker urged him to use that resource to get services that would assist him with reunification.
When the social worker asked if Michael's physical limitations impacted his parenting, he responded that it was hard to carry Mia; he would need to figure out how to not have to do so much carrying. Michael recalled that when he was reunifying with one of his sons, he learned how to use strollers and public transit to go to the park. The social worker asked why Michael had previously declined offers for physical therapy. He responded that he knew about the exercises that were done in physical therapy and he also shared that he has gained weight, which does not help his mobility. The social worker asked if Michael would be able to care for Mia if Trina does not want to parent her full time. Michael questioned whether that would be permissible given his history.
During the period prior to disposition, the parents consistently participated in supervised visitation, which consisted of one weekly two-hour visit in the community supervised by Teri, and one weekly two-hour visit at the Child Welfare Office. Teri reported that she tried to share techniques about how to address Mia's needs, but the parents were not responsive, and when Mia became fussy, Trina tried to hand her off. The visitation social worker also expressed significant concerns. Trina was the more physically capable parent, but she did not process feedback, she was frustrated by Mia's crying and being unable to soothe her, and the social worker had to intervene when Trina became too forceful with the baby.
The Department arranged for the parents to have two psychological evaluations each and filed the reports with the juvenile court on July 1, 2019. Test results showed that Trina has significant cognitive limitations and learning disabilities that hinder her ability to be a safe parent. Her resistance to participating in parenting education reflects a basic lack of comprehension about the requirements of safe parenting and suggest low motivation to acquire necessary skills. Michael has cognitive limitations but possesses adequate intellectual capabilities to be a custodial parent. Michael's history of severe problems with parenting young children poses a current risk to the safety of an infant. He also has significant physical disabilities that limit his ability to assist in the performance of parental activities and to safely handle an infant. Both evaluators concluded that the likelihood these parents can reunify with Mia is very low, but they also found that the parents could experience some benefit if reunification services were provided.
On July 9, 2019, the court held a combined jurisdiction/disposition hearing. The Department recommended that the court sustain the jurisdictional allegations and adjudge Mia a court dependent. The Department also recommended reunification services for both parents. It acknowledged that Trina suffers from a mental disability or impairment that prevents her from providing adequate care for Mia, but it believed she was nevertheless capable of utilizing services. (§ 361.5, subd. (b)(2).) The Department felt that neither of Trina's psychiatric evaluations contained a sufficiently definitive opinion that Trina was incapable of reunifying if services were provided.
The Department also recommended that Michael receive services, but for different reasons. Michael's reunification services and parental rights were terminated in his sons' dependency cases due to concerns regarding his and his ex-wife's physical and intellectual limitations and their severe abuse of their infant children. Because the present case presented very similar concerns, the court was not required to order services for Michael. (§ 361.5, subds. (b)(10) & (12).) Nevertheless, the Department believed that offering Michael services would maximize Trina's ability to engage in and benefit from her services, pointing out that these parents are married, struggle with similar intellectual disabilities, and are very co-dependent due to their limited support system.
At the jurisdiction/disposition hearing, the parents were represented by counsel and each also had the assistance of a guardian ad litem. Both parents submitted to jurisdiction based on the petition allegations. The court adjudged Mia a dependent and ordered the Department to provide parents with twice weekly supervised visits and reunification services. In making these orders, the court found expressly that reunification services did not need to be provided to Michael because the court had previously terminated Michael's reunification services for Mia's half siblings after he failed to reunify with them, Michael's parental rights to those half siblings had been terminated, and Michael did not subsequently make a reasonable effort to treat the problems that led to the removal of those half siblings. (§ 361.5, subds. (b)(10) & (11).) Despite these findings, the court granted reunification services to Michael because it found that reunification was in Mia's best interests.
III. The Six-Month Review
The six-month review hearing was originally set for January 7, 2020. The report for the review hearing was completed in late December 2019. The Department recommended that the court terminate reunification services to both parents and schedule a section 366.26 hearing.
The report updated the court about the status of the family. Mia was developmentally on target and the only concern was "emotional dysregulation" pertaining to visitation with her parents. Teri reported that the night before a visit, Mia became very fussy, had trouble sleeping and needed consoling. Department staff observed similar behavior during the visits. Consequently, Mia underwent a mental health assessment and qualified for services due to dysregulation concerns.
Trina and Michael had moved to a rented bedroom in a four-bedroom, one-bathroom home in Fairfield. Trina continued to work at Six Flags in Vallejo and the results of her assessment by the Regional Center were still pending. During this reporting period, Michael had been hospitalized for several days because of dehydration and cellulitis. His cellulitis was painful, making it difficult and sometimes impossible to walk. He reported that he was going to apply for in-home support services to provide medically necessary care for his cellulitis, which required daily dressing and bathing. In the meantime, Trina provided that daily support.
The parents were engaged in some services, but not others. The reunification plan required them to participate in couples' counseling and parenting education together. The parents took the position that they did not need counseling because they did not fight and communicated well with each other. However, Department staff observed stressful interactions between the parents when they struggled to communicate their personal and parenting needs during visits with Mia. Trina would become frustrated, Michael would give verbal direction without offering physical assistance, and then Trina would often raise her voice. During a family meeting in October 2019, the social worker strongly encouraged the parents to participate in therapy. Trina had asked the social worker when the counseling would start, and she was given specific direction that she needed to call and make the appointment. The parents were given the contact information again in November and December, but they did not engage in this service.
Michael and Trina did participate in parenting education, which was offered during visitation. They continued to have twice weekly two-hour visits with Mia, one in the community and the other at the Department. During the Department visits, one hour was used to provide hands-on parenting education. After Michael and Trina had completed a basic three-class course they were referred for an additional intensive 10-class program due to concerns about retention and ability to implement taught skills.
The Department reported that throughout the reporting period, there was ongoing concern about the parents' "physical and cognitive abilities to retain and implement parenting skills to ensure the physical and social emotional needs of Mia are met on a continuous basis." Michael and Trina "consistently demonstrate[d] an inability to meet Mia's needs regularly without intervention from an outside individual," and they continued to need "full supervision with educational support and coaching." To illustrate the nature of these problems, the social worker provided multiple examples that occurred throughout the reunification period. The examples indicated that Trina was unable to understand why Mia was crying or what she needed, and that Michael failed or was unable to physically engage with Mia.
The Department also reported that these parents made minimal progress toward alleviating or mitigating the problems that led to this dependency. A formal risk assessment conducted in November 2019 indicated that Mia would be at "Very High" risk of harm if she was returned to Michael and Trina. The social worker also completed a safety assessment in November, which showed that Mia would be "unsafe" if returned to her parents. Specific factors posing the greatest concern were the parents' failure to demonstrate behavior changes necessary to keep Mia safe and the previous maltreatment of Michael's older children.
The parents objected to the Department's recommendations and a contested six-month review hearing was held over two court days in February 2020. County Counsel presented testimony from Mr. Langford, who supervised Mia's visitation, and Ms. Bryant, the social worker who was responsible for Mia's case during the reunification period.
Langford testified that he supervised weekly visits at the Department while Teri supervised the parents' other weekly visits. Langford is a trained parent-child coach, but he requested additional assistance for these parents to address their special needs. Therefore, the Department arranged for Child Haven to provide 13 or 14 one-hour parenting classes during the visits that Langford supervised. Teri participated in the sessions, acting as an "anchor" for Mia, who often became distressed during visits. Teri also provided supplemental training based on her experiences caring for Mia. After the hour-long sessions, Langford was alone with the parents for the second hour of the visits, using that time to help them practice the skills that had been modeled during the previous hour. Langford attempted to maximize the parents' opportunity to bond with Mia by trying not to interfere physically unless Mia became distressed or there was a safety issue. However, he had to step in approximately "98 percent of the time." Before intervening, Langford would first encourage the parents to use the skills they had been taught and then offer several suggestions. Eventually, parents were able to figure out diaper changing and feeding, but they were unable to use the other taught skills to soothe Mia or address her needs without a lot of coaching and reminding.
In Langford's experience, Trina would say that she was receptive to coaching and suggestions, but she was not able to understand or implement the things she was taught. She did not understand Mia's emotional cues to such an extent that she would mistake happy sounds for distress. Nor was she able to demonstrate patience. For example, during a visit in December, Mia soiled her diaper an hour after she had been changed and Trina became very upset and agitated, which made the baby very upset. When these types of events occurred, Langford would try to calm the baby and ask Michael to calm Trina or suggest she go for a walk and calm down herself. Michael appeared responsive to parenting instruction but had not demonstrated an ability to put those skills into practice. Also, while Michael could verbalize the information that had been provided, he was not the parent who would typically meet Mia's physical needs. For the well-being of the child, Trina needed to be capable of handling 90 to 95 percent of the physical caretaking.
Ms. Bryant testified that she was assigned to this case because she has experience working with disabled individuals, including parents who have reunified with their children. County counsel asked Bryant about the counseling requirement of the parents' case plan. She recalled that when the subject was first raised the parents became agitated because they did not think counseling was necessary and did not want to participate. When the subject was raised at subsequent Child and Family Team Meetings (CFTs) the parents responded that they had not made an appointment yet and that they did not need counseling. Bryant provided parents with contact information to arrange counseling on three separate occasions. She did not sit down and make the appointment for them because they had already demonstrated the ability to make their own appointments in the context of visitation.
Bryant testified that she attended nine of the parents' supervised visits, most recently on the Friday before her hearing testimony, when she supervised the second half of a visit at a play center in Fairfield. Bryant observed that the parents required constant supervision, as intervention was often necessary. Trina would get nervous, repeatedly state that she did not know what was wrong and essentially shut down. Michael was usually "physically hands off." He could articulate basic things, like the need to feed or change Mia but did not express other insights about Mia's needs.
Bryant testified that Michael made a request to move all visits to the play center in Fairfield because he believed that the Department's visitation center was the source of Mia's agitation. However, Bryant assessed the situation and concluded that Mia's escalation happened when her current caregiver Teri was not present, regardless where the visits were held. During the visit she supervised the previous week, Bryant tried repeatedly to model ways for the parents to soothe Mia's fussiness, but Trina would simply hand the child over to Bryant.
Bryant also testified that her assessment of these parents had not changed in the two months since she completed the six-month review report in December 2019. She believed that Michael and Trina would not be able to independently parent Mia in their home because they had not made the behavior changes necessary to perform that function. Moreover, Bryant testified, there was not a substantial probability that Mia could be returned if services were extended until the 12-month hearing date. She based this conclusion on the record of visitation, which demonstrated that the same issues and problems arose consistently and that there had been no progress resolving them.
During the review hearing, Michael's counsel called Michael as a witness. Michael testified that he and Trina were currently renting a bedroom in a home with seven other bedrooms, but they were going to move in a month or two, when they had more money. Michael testified that his cerebral palsy is exacerbated by him being overweight, but he did not believe this physical limitation would prevent him from caring for Mia. Mia was about to turn one and becoming more active, but Michael could keep up with her by thinking "ahead of the game," watching her habits, and redirecting her. He testified that he would be able to bring Mia to her appointments by using the bus or the transportation service that was available to him through the Regional Center. His plan going forward was to lose weight and to rely on Trina who has no physical disabilities. He also planned to try to find childcare through his employer at Six Flags or through the county.
Michael testified that he knows how to change a diaper because he has older children, so he has "been through it already." He first learned how to change a diaper at Kaiser when his son was born. He learned again when he received reunification services and successfully reunified with one of his sons. Michael acknowledged that he subsequently lost custody of his children because of the criminal case. But Michael testified that before that happened, he was able to reunify with one of his sons who was approximately three years old at the time, and he did that despite having the same mobility issues that he currently has. When Michael was asked if he has concerns about Trina's ability to care for Mia, he responded: "[S]he hasn't been given enough time for her speed." Michael believed that Trina was still learning and would continue to learn and grow with Mia. He thought she had come a long way, especially in the past several weeks. Michael shared his opinion that he was currently ready to have Mia returned to him and that Trina was "about 80 percent there."
Under cross-examination, Michael acknowledged that two of his sons suffered skull fractures while in his care. He also acknowledged that after reunifying with one son, that child was subsequently removed by the Department. Michael testified that he would keep Mia safe from getting injured the way his boys had because he was older, wiser and had taken classes, including a 52-week parenting class after he was released from prison. Michael acknowledged that Trina lacked childcare experience and got stressed out around Mia, but he felt she was improving.
After completing the six-month review, the court found that returning Mia to her parents' custody would be detrimental and not in her best interest. The court also found that reasonable services had been provided to the parents and that they had made substantive progress in their case plans. However, they had made minimal progress toward alleviating the problems that led to the dependency, and they would not be able to reunify with Mia if the dependency was continued until the 12-month review hearing. Therefore, the court terminated reunification services to both parents and set the matter for a section 366.26 hearing.
DISCUSSION
Michael contends the order setting this case for a section 366.26 hearing must be reversed because he was denied reasonable reunification services. Trina has also filed a writ petition, but she does not present any independent argument. Instead, her petition contains a cursory claim that her services were unreasonable for the same reasons that Michael's services were unreasonable.
I. Pertinent Statutory Requirements
"When a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family. (§ 361.5, subd. (a).) For a child under three years of age at the time of removal, . . . reunification services are presumptively limited to six months." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) This is because the " ' "unique developmental needs of infants and toddlers" ' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175.)
If a child to whom this presumption applies cannot be returned to the home at the six-month review hearing because of a risk of detriment to her health or safety, the juvenile court must conduct a "specialized inquiry" pursuant to section 366.21, subdivision (e)(3). (M.V. v. Superior Court, supra, 167 Cal.App.4th at p. 175.) If the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court has the authority to set a section 366.26 hearing to consider termination of parental rights. Even then, the court may not schedule a section 366.26 hearing if (1) there is a substantial probability the child may be returned home by the 12-month statutory deadline, or (2) reasonable services were not provided. (§ 366.21, subd. (e)(3).) "In other words, the court must continue the case to the 12-month review if it makes either of these findings. However, the court is not required to set a .26 hearing even if it finds against the parent on both of these findings. The parent is also entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent." (M.V., at p. 176; Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027 (Fabian L.).)
II. The Court Failed To Make Necessary Findings
The juvenile court purported to make findings required by section 366.21, subdivision (e)(3). After finding that Mia was under the age of three and that she could not be safely returned home, the court concluded that reasonable services had been provided. The juvenile court also expressly found that the parents had made substantive progress in their case plan because they participated in most of the services that were offered. Despite this express finding, the court then concluded that it had to terminate services and set a section 366.26 hearing because there was no substantial probability that Mia could be returned home by the 12-month deadline. This was a misapplication of the law; if the parents participated regularly and made substantive progress on their case plan, they would have been entitled to additional services.
In the present writ proceeding, neither the parents nor County Counsel acknowledge the court's inconsistent findings in their written briefs. The parents claim only that they were denied reasonable services. County Counsel contends that "[s]ubstantial evidence supports the court's findings that the Department provided reasonable services, [the parents] failed to make substantive progress in their case plans, and there was no probability of return." As discussed, the court did not find that the parents failed to make substantive progress in their case plans.
Prior to issuing this opinion, we requested letter briefs addressing the finding that these parents made substantive progress on their case plans. (See Govt. Code § 68081.) Inexplicably, neither party addresses what the court actually found. Instead, Michael argues that he did make "substantial progress" with respect to services that were offered. County Counsel argues that the oral ruling at the review hearing was unclear, but even if the court made a preliminary finding that the parents made substantive progress, it subsequently changed its mind because the written minute orders do not contain a finding regarding the parents' progress. County Counsel is mistaken on both counts. At the hearing, the court found unequivocally that these parents made substantive progress. It also physically changed the wording of the minute order form to state that it was terminating services despite the fact that the parents made substantive progress on the case plan.
We agree with the county, however, that the substantive progress finding appears to contradict other findings the court made. The court's explanation for its rulings suggests strongly that it misconstrued the meaning of substantive progress. A parent's "substantial compliance with his case plan must not be confused with the requirement a parent make substantial progress towards reunification" with a child under the age of three within the six-month statutory period. (Fabian L., supra, 214 Cal.App.4th at p. 1029, italics omitted.) "The one finding does not automatically compel the other." (Ibid.) Here, the juvenile court expressly found that each of these parents made "[m]inimal" progress in addressing the problems that led to this dependency and that there was no evidence of a likelihood of reunification. And yet it also insisted on finding that the parents made substantive progress on the case plans and that they were not entitled to additional services. Indeed, the court suggested that the judicial counsel form that it used to record its orders needed to be modified because the court believed that the form indicated erroneously that the substantive progress finding entitled the parents to additional reunification services at the six-month juncture.
For these reasons, we find it necessary to reverse the six-month review order and remand this case for the court to reconsider its findings. However, to facilitate a prompt and proper resolution of this case, we address the merits of the parents' claim that Michael was not afforded reasonable reunification services.
III. The Parents Were Afforded Reasonable Services
" 'The adequacy of the reunification plan and of the department's efforts to provide suitable services is judged according to the circumstances of the particular case.' " (In re K.C. (2012) 212 Cal.App.4th 323, 329.) Because the " 'focus of reunification services is to remedy those problems which led to the removal' " of a child, a reunification plan "must be tailored to the particular individual and family." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) "However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] 'The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.' " (Id. at pp. 598-599.)
We review a reasonable services finding for substantial evidence. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.) "To support a finding reasonable services were offered or provided, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426, italics omitted.)
Here, Mia was removed due to safety concerns relating to both parents' special needs and Michael's history of physically abusing his older children. Despite expert evidence that the likelihood of reunification was extremely low, the Department developed a plan and offered services that were tailored to address Mia's safety. The most important component was intensive parenting education, as the undisputed evidence established that Trina had never cared for a baby before and Michael had not been a safe parent in the past. The second crucial component of the plan was counseling; the parents were required to participate in joint counseling and encouraged to participate in individual therapy. Counseling was essential because these special needs parents depended on each other to navigate life's challenges and thus needed to work together if there was any chance that they could be safe parents for Mia. The third essential service was visitation. Throughout this case, the parents were afforded twice weekly visits with Mia, which were supervised by people who were uniquely qualified to assist Michael and Trina in developing a safe parental bond with Mia.
We conclude these services were reasonable despite the fact that reunification efforts were not successful. After more than six months of intensive hands-on parenting education neither parent was able to make any material behavior change, as evidenced by the fact that the visitation supervisor found it necessary to intervene 98 percent of the time. (See Fabian L., supra, 214 Cal.App.4th at pp. 1031-1032 [substantial compliance with a service requirement does not mean risk of harm has been eliminated or entitle parent to additional services].) Moreover, these parents chose not to participate in counseling even though the social worker repeatedly encouraged them to do so. While the social services agency is required to assist parents with their case plans, it cannot force them to participate in services that are offered to them. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.)
Michael contends that the "main" reason he posed a safety concern to Mia was because of his physical limitation and yet the Department offered him no services to "address" his cerebral palsy. However, Michael's cerebral palsy is not the reason Mia was removed from his care. Rather, the court sustained allegations that Michael posed a substantial risk of serious physical harm because: he was unwilling or unable to hold, feed or change Mia at the hospital where she was born; he has a history of difficulty parenting his older children when they were infants; he caused serious physical injury to his older children; and he went to prison for felony child abuse. While Michael's physical disability impacts his experiences, the risk of danger to Mia derives from Michael's conduct rather than his condition. Importantly, the physical limitation of having cerebral palsy did not preclude Michael from engaging in or benefiting from the reunification services that were provided in this case. To the contrary, the reunification plan took account of Michael's physical mobility issues by offering him services that could potentially teach him safe and effective co-parenting strategies that accommodated both his special needs and the special needs of Trina.
By separate argument, Michael disputes the reasonableness of the counseling component of his case plan. He argues that the social worker failed to explain why conjoint therapy was important, and that merely providing him with a phone number for a counselor was unreasonable. This argument misconstrues the record, which establishes that the parents were told repeatedly that counseling was an important component of their reunification plan, that parents knew how to make an appointment for counseling, and that they chose not to participate in this service requirement because they believed they did not need counseling.
Finally, Michael argues his services were a "charade" because the Department believed he was not "[w]orthy" of reunification. Michael acknowledges that the court could have bypassed services to him pursuant to section 361.5, subdivisions (b)(10) and (11). But he argues that once services were ordered, the Department had an obligation to ensure they were reasonable, and it did not satisfy this obligation because the only reason it recommended providing services to him was because he was married to Trina and she was so dependent on him. Assuming that the Department's motivation was to fashion a plan that maximized Trina's opportunity to reunify with Mia, that would not mean that Michael's reunification services were unreasonable. The Department addressed the special needs of this family by designing a case plan that afforded Michael and Trina the opportunity to work together to acquire the skills necessary to maintain a safe home for Mia.
DISPOSITION
Let a writ of mandate issue directing the court to vacate its order of February 20, 2020, and to make new findings under section 366.21, subdivision (e), in conformity with this opinion.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.