Opinion
A153982
06-12-2018
B.H., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-01070)
B.H. (Father) petitions this court for extraordinary review of a juvenile court order setting a hearing to select a permanent plan for his child, J.H. (minor), under Welfare and Institutions Code section 366.26. Father contends the juvenile court erred in (1) concluding the Contra Costa County Children & Family Services Bureau (Bureau) had provided him with reasonable services, and (2) failing to find a substantial probability minor would be returned to him within 18 months. We reject Father's claims and affirm the court's order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
In late November 2016, the Bureau filed a petition pursuant to section 300, subdivision (b)(1) (substantial risk of serious physical harm) to establish dependency jurisdiction over minor based on his mother's (mother) chronic substance abuse problems and untreated mental health issues, including diagnoses of depression and anxiety. The petition alleged mother drank 12 to 18 beers per day while pregnant and twice tested positive for methamphetamines during her pregnancy. The petition further alleged minor displayed severe withdrawal symptoms and was diagnosed with fetal alcohol syndrome. Father reported he was aware of mother's drinking while pregnant and attempted to prevent it by calling the police.
Following the detention hearing, the juvenile court ordered minor removed from mother's custody and allowed to remain in Father's custody. The court also ordered parenting education and counseling services for Father, as well as various reunification services for mother. Father was subsequently provided with parenting class and mental health referrals.
The Bureau report prepared for the disposition hearing noted Father had not participated in services although he expressed a willingness to do so. The case plan instructed Father to "Pay attention to and monitor [minor's] health, safety, and well-being" and to participate in counseling services "to better understand [the] dynamics of being in a relationship with and coparenting with someone who has substance abuse and mental health issues."
At the March 2017 disposition hearing, the court ordered Father to submit to a drug test because of his alleged history of substance abuse. Father refused to be tested and admitted to using marijuana a few days earlier. Due to concerns regarding Father's sobriety, the court instructed him to remain in the building and appear at a detention hearing scheduled for the afternoon. Father instead left the courthouse with minor and did not attend the afternoon hearing. The court ordered minor detained from Father.
The following day, a social worker for the Bureau located Father at his residence but was unable to detain minor because Father was unwilling to relinquish custody. The social worker later returned with police. Father continued to refuse to relinquish custody and claimed minor was not present. The police conducted a welfare check and minor was located in the residence with mother. Minor was removed from the home and placed with his paternal aunt, S.D.
The Bureau filed a subsequent petition, which alleged Father placed minor at substantial risk of physical harm as a result of his failure to adequately supervise and protect minor by (1) failing to abide by a court order to submit to a drug test; (2) fleeing the court with minor; (3) failing to cooperate with the social worker and law enforcement; and (4) allowing mother, from whom minor was detained, into the family home with the intent to leave minor solely in her care. Father pled no contest to the subsequent petition. The court sustained the allegations and ordered reunification services. The Bureau's revised case plan required Father, in part, to "Show that you accept responsibility for your actions," engage in counseling to develop an "understanding of the risks to [minor's] safety and emotional health" and "Demonstrate protective decision-making," and obtain substance abuse services.
In August 2017, the court conducted a six-month review hearing. The status review report filed by the Bureau recommended returning minor to Father and establishing a family maintenance plan. The report noted Father had engaged in mental health services through Kaiser Foundation Hospitals (Kaiser). During the reporting period, Father attended two in-person sessions and three telephone sessions. He also consistently tested negative on his random drug testing after first having three no shows and one positive test. The Bureau noted Father "has been consistent with his case plan, communicating with the social worker and utilizing resources provided to him." Father also informed the Bureau that mother had moved out of the family home. The report concluded "the prognosis for reunification is very good" in light of Father's progress and compliance with the court orders, but he "needs to continue to address his co-dependency issues with his wife's alcohol use and mental health issues." The court did not adopt the Bureau's recommendation as to Father, but instead scheduled a contested hearing for October 2017.
At that October hearing, the court concluded it was not appropriate to return minor to Father's custody and instead extended services to Father until the 12-month review. While the court found Father had made significant progress in resolving problems that led to minor's removal, it concluded his progress was only "partial." The Bureau was ordered to assist Father in obtaining individual counseling more than once a month as he "needs co-dependency counseling."
At the October 2017 hearing, the court terminated services for mother based on various factors including her lack of engagement and ongoing concern for minor's safety if returned to mother's care.
At the end of October, the Bureau provided Father with a new therapy referral. In mid-November, this referral informed the Bureau it was unable to accept Father as a patient. The Bureau then provided Father with two additional referrals, and Father attended his first session with his therapist on December 15, 2017.
In January 2018, the Bureau submitted a status review report in advance of the 12-month review. It recommended the court terminate family reunification services to Father and set a 366.26 hearing. During the review period, Father continued to have negative results on his drug tests and regularly attended Al-Anon or 12-Step meetings. He also was attending individual therapy on a weekly basis. However, the report identified several concerns that had emerged since its prior report. First, Father informed the Bureau he was not speaking with S.D. following her testimony at the October hearing because he believes she "betrayed him." Father also informed S.D., "I am not going to hand over what you said and did because our family would hate you," and indicated he has a copy of "everything" she said. The Bureau noted this "was controlling and intimidating behavior" that "does not show any growth or acceptance of his role regarding the issues that led to this dependency."
Second, during a home visit the Bureau social worker met a family friend who had been residing in the house for the past three months. This friend stated he was there "to support [Father]." The friend disclosed to the social worker that he had a history of DUI and attended Celebrate Recovery classes and Al-Anon and 12-Step classes with Father. The Bureau discovered the friend also had a criminal history that "indicated a recent pattern of concern that supports the need for him to attend Celebrate Recovery Class and twelve step meetings." The Bureau noted Father's decision to select someone with chemical dependency issues as a support person raised concerns regarding his judgment and ability to create a safe environment for minor.
Third, the Bureau received two independent reports Father arranged a hotel room and picked up mother when she was released from her program for a visit. Both parents denied this occurred. While the Bureau was not concerned about the hotel stay, the parents' denial raised red flags due to Father's history of allowing mother access to minor and not being forthcoming with information. In light of these concerns, the Bureau concluded Father had not made sufficient progress in alleviating the circumstances that led to this dependency.
At the 12-month review hearing, the court scheduled a contested hearing for February 2018. In advance of the contested hearing, the Bureau submitted a supplemental memorandum regarding recent developments. The memorandum reported Father misrepresented to S.D. that the Bureau would be removing minor from her care following the initial 12-month review hearing. He also called her a "sociopath" and "liar," alleged she suffers from "Munchausen," and asserted minor was normal. At an optometry appointment for minor, Father played with minor rather than engaging in conversation with the doctor regarding minor's medical issues. Father made this decision despite the social worker asking Father to listen to the doctor. The social worker reported she believed Father missed a lot of valuable information. When the social worker expressed concern to Father regarding his failure to acknowledge minor's health concerns, Father responded by blaming S.D. and denying such problems existed. Finally, the memorandum noted mother had been released from her drug treatment program, but Father refused to disclose her location because she was residing with a baby. The Bureau expressed concern regarding Father's unwillingness to share information, which hindered the social worker's efforts to assess Father's ability to protect minor from mother.
The contested 12-month review hearing was continued to March, and the Bureau filed another supplemental memorandum. That memorandum continued to express concerns regarding Father's behavior. The social worker noted Father refused to discuss minor's medical history with S.D. at a neurology appointment. Father also omitted relevant information when asked about minor's past neglect. The assessment section of the memorandum stated the Bureau "remains concerned that [Father] has made minimal progress in understanding the issues that led to this dependency." Specifically, the Bureau noted Father "does not accept or acknowledge the delays and special needs of his child," and efforts to educate Father at medical appointments have been either minimized or ignored by him. The Bureau explained Father's comments that S.D. has "Munchausen disease" suggest he believes minor's medical conditions are made up by S.D. and not real despite medical reports to the contrary. The Bureau expressed concerns Father would minimize or inaccurately report minor's needs to medical providers.
Following the contested 12-month review hearing, the court terminated services and set a section 366.26 hearing. Father subsequently filed the pending writ petition.
II. DISCUSSION
A. Reasonableness of Services
At a 12-month permanency hearing the juvenile court must determine "whether reasonable services . . . designed to aid the parent . . . to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent . . . ." (§ 366.21, subd. (f)(1)(A).) The court must find by "clear and convincing evidence that [such] reasonable services [were] provided or offered to the parent," before it may set a hearing under section 366.26. (§ 366.21, subd. (g)(1)(c)(ii).) The court in this case adopted the Bureau's recommended finding that, by clear and convincing evidence, it had provided or offered reasonable services to Father.
Father challenges this finding. He argues the Bureau delayed referring him to therapy for a lengthy period of time, and then had therapy discontinued for a month while payment issues were being resolved. Father also takes issue with the Bureau's failure to submit a report from his therapist. Father contends the court cannot conclude he failed to make progress on his issues without such a report.
In reviewing this finding, our sole task is to determine whether substantial evidence shows the Bureau made a good faith effort to provide reasonable services. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) This review standard applies even though the trial court was required to utilize the higher standard of clear and convincing evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In applying it, we view the evidence in the light most favorable to the juvenile court's ruling, resolving conflicts and indulging all reasonable inferences in favor of the finding. (See In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We do not reweigh the evidence. (Jasmine C., at p. 75.)
Reunification services may be deemed reasonable when the case plan has identified the problems leading to the loss of custody, the Bureau has offered services designed to remedy those problems, has maintained reasonable contact with the parent, and has made reasonable efforts to assist the parent in areas in which compliance has proven to be difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
Here, the juvenile court properly found the Bureau offered or provided reasonable services to Father. While Father complains about the October-December delay in obtaining a new therapist, he does not contend the Bureau was at fault for the delay. Neither the record nor Father suggests the Bureau created any delay apart from that normally caused by the required administrative steps for obtaining referrals. The social worker testified she obtained preauthorization from the county, sought a referral from the county's mental health provider, and then provided that referral to Father by the end of October. When that initial provider was unavailable, the social worker obtained two additional referrals, which she provided to Father. Father had a session with his new therapist shortly thereafter and then proceeded to attend weekly appointments. Moreover, Father offers no explanation for why he did not continue with his Kaiser therapist during this period. His excuse—that the court ordered him to attend therapy more regularly—does not justify his decision to not attend therapy at all.
Likewise, Father complains about a two- or three-week disruption in his therapy due to a payment issue. The record suggests the Bureau resolved the subsequent payment-related disruption as quickly as possible, and Father was able to return to therapy as soon that issue was resolved. Considering this disruption lasted only two or three weeks, we are disinclined to find the entire plan of reunification services unreasonable in light of such a short disruption.
We find Father's complaints regarding these brief disruptions disingenuous considering his role in obtaining services. Father was provided with parenting class and mental health referrals in December 2016. He did not take advantage of these resources. Father began attending therapy sessions at Kaiser only after minor was removed from his custody. Even then, Father attended a mere five therapy sessions, only two of which were in person, between the March 2017 hearing and the six-month status review hearing in August 2017. And none of these sessions were in July or August. By the time of the hearing, over two months had passed without Father attending a single therapy session. It is unclear whether any other therapy session occurred prior to the contested six-month status review hearing in October 2017. And, most notably, Father unilaterally stopped attending therapy at Kaiser in mid-October despite not having another therapist. Father made this decision while knowing the court wished him to obtain more counseling. These failures lie solely with Father. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233 [social worker not required to " 'take the parent by the hand and escort him or her to and through classes or counseling sessions' "].)
Finally, we note therapy was not the only service offered to Father. The Bureau also referred Father to Al-Anon and parenting classes, and Father's Kaiser therapist offered him a referral to a chemical dependency program. While Father regularly attended Al-Anon and found value in that program, he did not utilize his parenting class referral or the Kaiser referral.
In our view, the foregoing evidence—viewed in the light most favorable to the juvenile court's ruling—provides substantial support for the finding that the Bureau offered or provided reasonable services. "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in the ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We conclude substantial evidence supports the juvenile court's finding that reasonable reunification services were provided. B. Substantial Probability of Return After 18 Months
Father next claims the juvenile court erred in declining to extend services past the 12-month review hearing. Specifically, Father contends there was a substantial probability he could reunify with his child if he were given an additional six months and provided with further reunification services.
Section 366.21, subdivision (g)(1) provides the court may continue a 12-month review hearing for up to six months, "only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." To set another review hearing, the court also must find Father (1) "consistently and regularly contacted and visited with the child"; (2) "made significant progress in resolving problems that led to the child's removal"; and (3) "has demonstrated the capacity and ability both to complete the objectives of his . . . treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Ibid.) The Legislature has set a very high hurdle for continuing the case beyond 12 months. (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1059-1060.) We review the juvenile court's finding on this issue for substantial evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.)
Here, the objectives and responsibilities identified in Father's case plan include "maintain[ing] a stable and suitable residence," "[s]how[ing] that you accept responsibility for your actions," and engaging in counseling to develop an "understanding of the risks to [minor's] safety and emotional health" and "protective decision-making." Father has not demonstrated he has made substantial progress toward these goals. Rather, in the months prior to the 12-month review hearing, Father verbally attacked minor's caregiver, S.D., minimized minor's medical needs, demonstrated poor judgment in maintaining a safe home environment, and continued to display a reluctance to provide accurate information.
With regard to minor's medical needs, for example, the record describes various developmental concerns, such as seizures, tremors, feeding issues, and early signs of autism, including banging his head, biting his fingers, lining up his toys, and hand flapping. An EEG (electroencephalogram), designed to evaluate the electrical activity in minor's brain, revealed an anatomic abnormality. MRI results also were abnormal and showed a lack of oxygen to the brain and scarring. Despite these well-documented medical issues, Father called S.D. a "liar," asserted she has "Munchausen," claimed minor was normal, and alleged any problems were caused by S.D. "dropp[ing] [minor] on his head." Father made these comments in January—shortly before the 12-month review hearing and despite receiving approximately eight months of therapy. The record also indicates Father has not engaged with minor's care providers or made any effort to educate himself regarding minor's medical needs. Even at the 12-month review hearing, Father demonstrated a lack of awareness regarding minor's medical care. He testified he would have minor assessed at Kaiser "if Northern Regional doesn't accept him." But Far Northern Regional Center found minor eligible for early intervention services back in August 2017.
In addition, Father has demonstrated ongoing codependency issues. Mother had not received treatment and was residing in the family home until shortly before the six-month review hearing. Shortly after she left to enter treatment, Father allowed a friend with substance abuse issues and a criminal record to move into the house. Evidence suggests Father lied about both his friend residing at the house and Father's ongoing contacts with mother. Father also refused to divulge information to the Bureau about mother on multiple occasions. For example, he would not disclose the location of where she was residing after she allegedly left the family home but before she entered treatment. Father also would not divulge how to contact mother or where she was residing posttreatment, despite the fact that contact between the Bureau and mother would be in minor's best interests. And, finally, Father indicated he intended to reunite with mother despite her lack of engagement in her case plan and the termination of her parental rights.
While Father appears to be attending therapy and Al-Anon regularly, his conduct still raises significant concerns. Construing the record in favor of the judgment, substantial evidence supports the juvenile court's finding that minor was unlikely to be returned to Father before expiration of the 18-month period.
III. DISPOSITION
The petition for extraordinary writ is denied on the merits, and the request for stay is denied. (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.) This opinion is final immediately as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.