Opinion
H037583
01-23-2012
E.H. et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. JD20390)
E. H. (father) and K.Y. (mother), parents of the child at issue here, have filed separate writ petitions seeking review of the juvenile court's orders terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) Father contends that the Department of Family and Children's Services (the Department) failed to show by clear and convincing evidence that it provided reasonable reunification services to him, and that the court prejudicially erred in refusing to grant his request to testify telephonically. Mother contends that the Department also failed to show that it provided reasonable services to her, and that the court erred by allowing the Department to modify mother's case plan without filing a section 388 petition. As we find no abuse of discretion and that substantial evidence in the record supports the juvenile court's findings and orders, we will deny the writ petitions.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
Sunnyvale police officers placed the child, then less than one month old, in protective custody on November 15, 2010. Mother had stuck her finger into the child's mouth and throat until the child stopped breathing, but she revived the child by administering CPR. When mother told father, who was not at home at the time of the choking incident, what she had done, father failed to seek medical care for the child. When mother told the maternal grandmother, with whom the parents were living, what she had done, the parents tried to prevent the maternal grandmother from calling 911. Mother was arrested for child endangerment. An examining physician found the child to have a skull fracture as a result of non-accidental trauma. Mother has a history of psychiatric hospitalizations and did not resume taking her prescribed psychotropic medications after the child's birth. In addition, father had perpetrated domestic violence against the mother. The Department filed a petition under section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], and (e) [severe physical abuse] as to the child on November 17, 2010.
The social worker's report for the jurisdiction/disposition hearing recommended that the child be placed with relatives, and that the parents receive family reunification services. The child had been placed with the maternal grandparents. The parents were not married, but father's name is on the child's birth certificate and father had signed a declaration of paternity. Mother has been diagnosed with depression, bi-polar disorder, and post traumatic stress disorder, and she had been hospitalized twice on section 5150 holds. She started taking her psychotropic medications again on November 19, 2010, and she stated that she would continue to do so and continue to see her therapist monthly. She reported that she knows she lacks parenting skills and wanted to learn to be a better parent for the child. Father left for Colorado on November 19, 2010. He was undecided about whether he wanted to live with mother in California or with his family in Colorado, but he stated that he wanted to participate in services.
The jurisdiction/disposition hearing was held on December 15, 2010. Mother and father signed waiver of rights forms and submitted the matter on the social worker's report. The court found the allegations in the petition to be true and adjudged the child to be a dependent child of the court. The court ordered that the child remain placed with the maternal grandparents and that the parents be provided reunification services. Both parents were to participate in and successfully complete a parent orientation class, and a domestic violence assessment, and to comply with the recommendations. They were also to have supervised visitation at least two times each week in Santa Clara County. Mother was to complete a certified 52-week child abuser's treatment program and a program of counseling or psychotherapy, and to take her psychotropic medications as prescribed by her psychiatrist. Father was to complete a 16-week parenting-without-violence program.
The social worker's 45-day interim review report stated that mother began the child abuser's treatment program in early January 2011. She was visiting the child daily outside the grandparents' home. Father was to begin a 16-week parenting-without-violence program in Colorado in December 2010, but he moved back to California on January 22, 2011, to live with mother, so a referral for a program in California was then made. The interim review hearing was held on January 26, 2011, after which the court allowed the parents to have visitation with the child in the maternal grandparents' home.
The social worker's report and addendums for the six-month review hearing recommended that services be terminated for the parents, that the child remain with the maternal grandparents, and that a section 366.26 hearing be set. The child was thriving in the home of the maternal grandparents, and the social worker was concerned that the parents had not demonstrated their ability to parent the child.
The reports and addendums stated that mother was living on her own. She was placed on probation for four years in her criminal case, and began probation in May 2011. She was visiting the child a minimum of five days a week, but the maternal grandparents reported that they continued to have concerns regarding mother's ability to care for the child on her own. Mother completed the parent orientation program, and completed a young parents program which began in March 2011. Although she began the child abuser's treatment program in January 2011, she had made marginal progress in demonstrating empathy for the child and understanding the child's developmental needs and behaviors.
Mother completed a domestic violence assessment in January 2011, and the assessor recommended that mother participate in a support group for victims of domestic violence, individual therapy with a licensed domestic violence specialist, and a 15-week conflict and accountability program. In late March 2011, mother began participating in individual therapy with Dr. Donk, the licensed psychotherapist who had evaluated her for her criminal case. The social worker reported that, "[d]ue to the fact that mother was participating in intense services and not to overwhelm the mother with too many services or information, it was the opinion of the undersigned to stagger programs for the mother." Dr. Donk reported that mother's progress in therapy had been slow, and that she has no empathy. Dr. Donk also reported that, in his opinion, mother would not be able to safely parent the child even if additional services and time were provided.
Mother began participating in a support group for victims of domestic violence, and in a conflict and accountability program, in August 2011. She reported that she was taking her prescribed psychotropic medication "on an as needed basis," but she revoked her consent to allow her psychiatrist to release information, so the psychiatrist could not provide information to the social worker on mother's compliance with her medications or appointments. In late August 2011, mother intentionally cut herself on the arm, and reported that it was due to being frustrated with her parents and roommates.
Father reported completing a parent orientation program, and a domestic violence assessment. He was to begin a parenting-without-violence program on March 29, 2011, but he was arrested on March 28, 2011, for spousal battery and spent a few nights in jail. The charges were dropped and father moved to Georgia in April 2011 to live with his father. As of June 2011, both parents reported that they were no longer in a relationship. Father attended mother's visits with the child prior to his move to Georgia, but the maternal grandparents reported that there was not a lot of interaction between father and the child. Father reported both that he wanted to give up his parental rights and that he wanted to participate in programs so that he could get his child back. Father began participating in a 24-week family violence intervention program in the summer of 2011.
The six-month review hearing was set for July 13, 2011, but the matter was continued as the parties agreed to mediation. When mediation was unsuccessful, a contested hearing was set for October 6, 2011. On September 30, 2011, father filed a request to testify at the hearing telephonically. On October 3, 2011, counsel for the child filed a brief agreeing with the Department's recommendation to terminate services for both parents. On October 4, 2011, the Department filed opposition to father's request to testify at the hearing telephonically.
At the October 6, 2011 hearing, father was able to listen to the proceedings on the speaker phone. However, the court stated that it was exercising its discretion to deny father's request to testify telephonically because it believed that "there is disadvantage both to the fact finder in this case, the Court, and to all of the parties, when a person is allowed to give testimony without that person being physically present, without all parties being able to observe the demeanor of that person while testifying, and that it does generally contradict the polices behind live testimony, the right of confrontation, when there is one, and the right of cross-examination, when there is such a right." "[T]he Court does not believe that on balance it is appropriate to allow [father] to provide sworn testimony at these proceedings when he's not present in the room, cannot be present to be specifically under the observation and eyes of the Court, take the oath that is required of witnesses, cannot be assessed with respect to his demeanor while he is testif[ying] by the Court or by the parties, both on direct and cross-examination."
The social worker testified as an expert in the area of risk assessment and placement of dependent children that many of the services provided to mother were designed to help her accept responsibility for her role in the choking incident that brought the child before the court. The most recent progress report from the 52-week child abuser's treatment program stated that mother had begun to demonstrate accountability, but had not yet expressed awareness of the severity of the incident. Mother has benefited from the program, but she had not made substantial progress. She needs to be able to demonstrate accountability so that incidents like the choking incident can never happen again. The reports state that mother is not able to empathize with the child or understand the developmental and growth stages of childhood. The maternal grandparents report that mother's visits with the child generally go well, but some visits lead them to believe that mother cannot have the child safely returned to her care. The social worker agrees with Dr. Donk's assessment that mother would not be able to safely parent the child if additional services and time were provided, because of the minimal progress mother has made in the programs that were identified to help her overcome the issues that brought the child before the court. The facilitator of the 52-week program also told the social worker that she would not recommend returning the child to mother's care.
The social worker assessed that mother's reunification programs should be staggered so as to not overwhelm her. When parents are overwhelmed, they "shut down," and do not want to participate in or continue the services. Mother had expressed several times that she was overwhelmed and frustrated, and it once resulted in her wanting to and actually harming herself. The social worker consulted with Dr. Donk prior to making the decision to stagger the programs. Dr. Donk agreed that mother needed to make more progress in therapy and in the 52-week program prior to starting additional services because of her comprehension level and her feelings of being overwhelmed.
The social worker provided father forms to obtain funding for his batterers' intervention program and for individual therapy in Georgia, but she never received them back. Nevertheless, father located and participated in a 24-week batterers' program on his own. Father also told the social worker that he had located a therapist, but he did not provide the social worker contact information for the therapist. The social worker was out on unexpected medical leave for most of May 2011, during which time she received two messages from father that he wanted to give up his parental rights. The social worker last heard from father on June 28, 2011, even though she has sent him certified letters on a monthly basis. Father last visited the child when he was here for a June 2011 hearing. Because of all of this, the social worker believes that the child cannot be returned safely to either parent by the end of 12 months.
The six-month review hearing continued on November 7, 2011. Father was not present at the continued hearing, either in person or telephonically, but was represented by counsel. The social worker's report for the continued hearing stated that she met with mother on October 20, 2011. The social worker also received updates on mother's participation in her programs. The facilitator of the 52-week child abuser's treatment program reported that mother continues to show no empathy for her child, that mother continues to see herself as a victim, and that mother continues to discuss how the choking incident affects her relationship with her parents and her inability to see her child. Dr. Donk, the facilitator for the support group for victims of domestic violence, and the facilitator for the 16-week conflict and accountability program all reported that mother continues to participate in those services. Mother has shortened her visits with the child from two hours to one hour, and has missed four or five visits. The facilitator of father's batterers' intervention program reported that father was terminated from the program after missing three classes.
Lisa Slater, a social worker in the office of mother's counsel, testified on behalf of mother as an expert in reunification and risk assessment of dependent children. She testified that she reviewed all the social worker's reports and other discovery in this case. She considered mother's case plan to be appropriate. Staggering services for a parent is an accepted practice under various individual circumstances, even in cases where a parent has to demonstrate substantial progress in six months. Preventing a parent from feeling overwhelmed is an appropriate reason to stagger services. However, in this case, Slater believed that once the social worker received the domestic violence assessment at the end of March 2011, she should have referred mother to all the programs recommended in the assessment.
After hearing argument from the parties, and after a short recess, the court found by a preponderance of the evidence that return of the child to the parents would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. The court found by clear and convincing evidence that the Department offered and provided father reasonable services based on his individual circumstances and the totality of the circumstances. The court further found by clear and convincing evidence that father failed to participate regularly and make substantive progress in his case plan.
As to mother, the court found by clear and convincing evidence that the Department "did make a good faith effort" in providing mother with reasonable services. "It is the Court's opinion that the Department . . . has utilized resources and tools in this case that may not be available to all parents in all cases throughout the State of California. And in their efforts to provide the best services to give the mother the best chance of reunification, they have done so in a reasonable manner and in good faith." "[A]nd while it may not have been perfect in ensuring success it was reasonable." The court further found by clear and convincing evidence that mother had not made substantive progress in her case plan. "The Court does believe that her participation and progress has been moderate up to this point, but not substantial or substantive."
The court further found that there was not a reasonable probability that the child could be returned to either parent by the end of 12 months. Accordingly, the court terminated services and set the matter for a section 366.26 hearing for March 1, 2012.
DISCUSSION
Father contends that the Department failed to show by clear and convincing evidence that it provided reasonable services to him. He argues that, because the record shows that the social worker did not provide him with referrals for services after he moved to Georgia and did not contact him during May 2011 (when she was out on unexpected medical leave), there is clear and convincing evidence that reasonable services were not provided to him. He also contends, without citation of authority, that it was "harmful error for the court to find that [he] was 'not present to testify' with no evidence to support such a finding."
Mother contends the Department failed to show by clear and convincing evidence that reasonable services were provided to her. She argues that "it is undisputed that the [social worker] did not act on the recommendations contained in the Domestic Violence Assessment, with the possible exception of conveying to Mother's therapist, Dr. Donk, that Mother should address issues of trauma and relationships in therapy. The evidence is clear that [the social worker] did not submit any referrals for the two recommended programs until well after she recommended terminating Mother's reunification services." Mother further contends that the court erred by allowing the Department to modify her case plan without filing a section 388 petition. She argues that the court's finding that the social worker's decision to stagger services was appropriate "effectively approv[ed] a retroactive modification to Mother's case plan, based on new information made known to the social worker during the reunification period but not brought before the court until the change was already implemented." She further argues that the staggering of her services amounted to a denial of reasonable services.
The Department contends that substantial evidence supports the juvenile court's finding that reasonable services were offered to the parents. The Department argues that mother's expert testified that staggering services was an acceptable practice when circumstances warranted it, so the staggering of services in this case was not unreasonable. In addition, the staggering of referrals helped mother by allowing her to concentrate on mastering the skills she needed to provide a safe home for the child. The Department further argues that the social worker's absence on emergency leave in May 2011 made no difference in the provision of reasonable services to father, and that the court did not abuse its discretion in disallowing his request to provide telephonic testimony.
Section 361.5, subdivision (a), generally mandates that reunification services are to be provided whenever a child is removed from the parents' custody. (In re Luke L. (1996) 44 Cal.App.4th 670, 678 (Luke L.); Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.) At the review hearing held six months after the initial disposition hearing, "[i]f the child was under three years of age on the date of the initial removal, . . . and 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 may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e).) "Only where there is clear and convincing evidence the [Department] has provided or offered reasonable services may the court order a section 366.26 hearing." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165 (Robin V.); § 366.21, subd. (g)(2).)
"Reunification services must be 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.' (§ 362, subd. (c).) Accordingly, a reunification plan must be appropriately based on the particular family's 'unique facts.' [Citation.]" (In re T.G. (2010) 188 Cal.App.4th 687, 696; Luke L, supra, 44 Cal.App.4th at p. 678.) " ' "[T]he record should show that the [Department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." [Citation.]' [Citation.]" (In re T.G, supra, 188 Cal.App.4th at p. 697; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793-794.)
"The adequacy of reunification plans and the reasonableness of the [Department's] efforts are judged according to the circumstances of each case." (Robin V., supra, 33 Cal.App.4th at p. 1164; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) That additional services might have been possible, or that the services provided were not the services the parent thought were best for the family, does not render the services offered or provided inadequate. " '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.' " (In re T.G, supra, 188 Cal.App.4th at p. 697; In re Misako R. (1991) 2 Cal.App.4th 538, 547 (Misako R.).)
On appeal, the applicable standard of review is sufficiency of the evidence. (In re T.G., supra, 188 Cal.App.4th at p. 697; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626.) "In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the [Department]. We must indulge in all legitimate and reasonable inferences to uphold the [juvenile court's findings]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (Misako R., supra, 2 Cal.App.4th at p. 545; In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
"We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) "The 'clear and convincing' standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review." (In re J.I. (2003) 108 Cal.App.4th 903, 911.) "Thus, on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' [Citation.]" (Shiela S. v. Superior Court (2000) 84 Cal.App.4th 872, 881; In re J.I, supra, 108 Cal.App.4th at p. 911.)
In this case, we find that substantial evidence supports the juvenile court's findings that the services offered or provided to the parents were reasonable under the circumstances, but that neither parent had made substantive progress in their court-ordered plans.
Mother began her 52-week child abuser's program in January 2011, had regular visitation with the child, and had completed a young parents' program by the time of the October 2011 review hearing, but she was still unable to demonstrate empathy for the child or understand the child's developmental needs and behaviors, and the child's caregivers still felt concern about mother's ability to safely care for the child on her own. Although the social worker did not offer mother additional services until July 2011, mother's treating therapist, Dr. Donk, had earlier agreed with the social worker that mother needed to make more progress in therapy and in the 52-week program prior to starting additional services because of her comprehension level and her feelings of being overwhelmed. Contrary to mother's contention on appeal that staggering services is improper without the filing of a section 388 petition, mother's expert testified that staggering services for a parent is an accepted practice, even in cases where a parent has to make substantial progress in six months, and that preventing a parent from feeling overwhelmed is an appropriate reason to stagger services. And, Dr. Donk reported that, in his opinion, mother would not be able to safely parent the child even if additional services and time were provided. This evidence supports the juvenile court's findings that the services provided mother were reasonable under the circumstances, but she failed to make substantive progress in her court-ordered plan. (§ 366.21, subds. (e), (g)(2).)
Father completed his parent orientation program and a domestic violence assessment. He did not begin a batterers' program or individual therapy until he moved to Georgia in April 2011. Prior to moving to Georgia, he moved from California to Colorado and then back to California. He visited the child regularly while in California, the last time during a mid-June 2011 visit, but the child's caregivers reported that he had little interaction with the child during the visits. In May 2011, father twice reported to the social worker that he wanted to relinquish his parental rights and, by the end of the review hearing in October 2011, father had been terminated from his batterers' program for missing too many meetings. The social worker had not heard from father since the end of June 2011, even though she sent him certified letters on a monthly basis. This evidence supports the juvenile court's findings that reasonable services were provided father but he failed to participate regularly or make substantive progress in his court-ordered plan. (§ 366.21, subds. (e), (g)(2).)
Father contends that the court prejudicially erred in denying his request to testify telephonically at the hearing. The court's refusal to allow father to testify telephonically is reviewed for an abuse of discretion, and will not be overturned absent an arbitrary, capricious or patently absurd determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.) "[I]n dependency proceedings, a parent's right to due process is limited by the need to balance the 'interest in regaining custody of the minors against the state's desire to conclude dependency matters expeditiously and . . . exercise broad control over the proceedings.' " (Ibid.; see also Fam. Code, § 3411 [the court may prescribe the manner in which testimony is given by a party or witness in another state, including by audiovisual means].)
In his written request to testify telephonically, father stated that he did not have the ability to access any video services via the internet that would enable him to testify on Skype or by other audio-visual means. The Department objected to father's written request. At the hearing, father's counsel informed the court that father wanted to testify and be available for cross-examination telephonically on a matter that reflected upon his credibility: specifically, he wanted to contest the Department's contention that he failed to participate regularly or make substantive progress in his court-ordered plan. Father was represented by counsel throughout the dependency proceedings regarding the child. While father had also regularly communicated with the social worker at the start of the dependency proceedings, he had not communicated with the social worker since the end of June 2011. Under the circumstances, the juvenile court could reasonably feel that it could not reliably assess father's credibility as a witness unless father's face, body language and overall demeanor were observable. There was no request for a continuance or for any other remedy which would have provided father an opportunity to present his case by live testimony or by audio-visual means. Under the circumstances, we cannot say that the trial court acted outside the bounds of reason by denying father the opportunity to testify telephonically. (In re Nada R., supra, 89 Cal.App.4th at p. 1176.)
DISPOSITION
The writ petitions are denied.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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RUSHING, P.J.
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PREMO, J.