Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super.Ct.Nos. J209605 & J209606.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
OPINION
McKinster, Acting P.J.
Andrea W. appeals an order entered after a six-month review hearing in dependency proceedings concerning her daughters, eight-year-old T.G. and five-year-old D.M. She contends that the court erred in finding that reasonable services were provided to her and that the court abused its discretion by failing to return the children to her custody. We will affirm the order.
FACTUAL AND PROCEDURAL HISTORY
In September 2006, D.M. and T.G. were made dependents of the juvenile court based on the court’s findings that Andrea had physically abused T.G., including kicking her and hitting her with her fists, a belt, a stick and a hanger, causing bruising and injury; that Andrea knew that T.G. had been physically abused by friends and relatives of the mother but had done nothing to protect her; that D.M. was at risk of similar abuse; that T.G. had been sexually molested by a male houseguest and that Andrea knew of the incident but failed to believe T.G. and accused her of lying; that D.M. was at risk for similar abuse; that both children had often been left alone without supervision; that Andrea had a substance abuse problem which resulted in her being unable or unwilling to provide care, nurture and support for the children; that Andrea engaged in sales of illegal drugs; that the father of D.M. was currently incarcerated for burglary, robbery and murder and was unable to provide care and support for her; that the father of T.G. was incarcerated for an extended period of time and was unable to provide care and support for her. (Welf. & Inst. Code, § 300, subds. (a), (b), (d), (g), (j).) (All further statutory citations refer to the Welfare and Institutions Code.)
The court ordered no reunification services for either father, finding that reunification would be detrimental to the children. (Neither father is a party to this appeal.) The court ordered services for Andrea, including attending programs in anger management, domestic violence, parenting education, substance abuse counseling and drug testing.
By the six-month review hearing, Andrea had completed her programs. All of her drug tests were negative. However, the social worker disagreed with Andrea’s therapist that Andrea had successfully addressed necessary issues. The social worker and her supervisor both felt that Andrea “talked the talk” about having learned appropriate parenting skills but did not yet “walk the walk,” in that she remained self-centered and had little insight into or empathy with her children’s feelings. The children had repeatedly expressed to the social worker that they were afraid of Andrea. They did not want to return home because they were afraid that Andrea would hurt them. At the review hearing, Andrea acknowledged that she had been told that T.G. was afraid of her, but apparently could not understand how her past actions could have left the children wary of her or why the children might, based on their past experiences, interpret some of Andrea’s recent statements and conduct differently than Andrea did. She did not believe that the children were afraid of her.
The social worker acknowledged that Andrea had made progress, however, and she recommended a further six months of reunification services. She felt that it was imperative that Andrea engage in conjoint therapy with the children, to address the children’s issues, before they could safely be returned to her custody. She also felt that Andrea needed additional individual counseling.
The court found that reasonable reunification services had been offered to Andrea, but that because Andrea had made only “moderate to substantial” progress toward mitigating or alleviating the causes which necessitated placement, the children could not yet safely be returned home. It found a reasonable probability that the children would be returned to Andrea’s custody within six months. It ordered further family reunification services for Andrea and referred Andrea and the children for conjoint counseling.
Andrea filed a timely notice of appeal.
LEGAL ANALYSIS
THE APPEAL IS FROM AN ADVERSE ORDER
Relying on Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147 (Melinda K.), the San Bernardino County Department of Children’s Services (DCS) contends that the appeal should be dismissed because Andrea’s appeal does not challenge an order or judgment within the meaning of section 395. We disagree.
In Melinda K., the mother’s notice of appeal stated that she appealed from the “‘order of the court dated June 23, 2003, finding that Petitioner . . . has provided Mother and Minor with reasonable family reunification services . . . .” (Melinda K., supra, 116 Cal.App.4th at p. 1152.) The court held that because section 395 authorizes an appeal only from a judgment or order after judgment, “there is no right to appeal a finding that reasonable . . . services were provided . . . unless the court takes adverse action based on that finding . . . .” (Melinda K., at p. 1154.) The court acknowledged, however, that a parent can appeal from an order involving negative consequences to the parent on the ground that the order resulted from an erroneous finding that reasonable services were offered. (Id. at pp. 1154-1156, citing, inter alia, In re Julie M. (1999) 69 Cal.App.4th 41, 45-48; In re Kristin W. (1990) 222 Cal.App.3d 234, 248; and In re Alvin R. (2003) 108 Cal.App.4th 962, 970-975.)
Section 395 provides: “A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment. . . .” (§ 395, subd. (a)(1).)
In this case, Andrea’s notice of appeal states that she appeals from the findings and order of the court on May 9, 2007, when “the court found that 1) DCS provided reasonable service, and 2) it was not safe to return the minors to mother.” We are required to construe a notice of appeal liberally. (Cal. Rules of Court, rule 8.100(a)(2).) Liberally construed, Andrea’s notice of appeal states that she challenges the order maintaining the children out of her custody because the court erroneously found that reasonable services were provided. Accordingly, the appeal is taken from an appealable order.
To some extent, the notice of appeal form itself is to blame for any ambiguity. The printed text on the form states, “I appeal from the findings and orders of the court . . . .” (Italics added.) It then provides a space for the appellant to “specify date of order or describe order.” Rather than describing the order, i.e., “order following six-month review hearing” or “order following section 366.21(e) hearing,” Andrea gave the date of the hearing and described the findings which she challenges. This is not an unreasonable interpretation of the verbiage on the form.
THE JUVENILE COURT DID NOT ERR IN FINDING THAT REASONABLE SERVICES WERE PROVIDED
Andrea contends that the court’s finding that reasonable services were provided to her was not supported by substantial evidence and that the court therefore erred in not returning the children to her. Her argument is as follows: The social worker referred Andrea to an agency, Caritas, for individual counseling. The social worker was aware that Caritas normally assigns supervised interns to provide counseling, unless DCS determines that a more experienced, licensed therapist is necessary to meet the individual’s needs. She was aware that Andrea’s therapist, Mynda Ohs, was an intern. Ms. Ohs contacted DCS in January, after only about two months of therapy, and wanted to discharge Andrea because she felt that Andrea had accomplished the goals of therapy. Because her view of Andrea’s attitudes and her progress in counseling differed from that expressed by Ms. Ohs, the social worker had doubts that Andrea was addressing all of the issues she needed to address. She was aware of that about five months before the six-month review hearing. Nevertheless, she allowed Andrea to continue in counseling with Ms. Ohs rather than have her change therapists. At the review hearing, the social worker testified that in her opinion, Andrea needed further counseling with a different, more experienced therapist. In addition, the children did not begin counseling until two months before the review hearing. The social worker testified that it was imperative that Andrea have conjoint counseling with the children for some time before they were returned home. However, the children’s therapist reported that the children were not quite ready for conjoint therapy. The therapist felt that they would be ready in about a month, or after two more sessions. Andrea contends that if the social worker had changed Andrea’s therapist earlier in the process and had started the children’s therapy sooner, she would have been in a position to have her children returned to her at the six-month review hearing. For that reason, she contends that the services provided to her were not reasonable.
As Andrea acknowledges, we must affirm the juvenile court’s finding that reasonable services were offered or provided if there is substantial evidence to support that finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) She contends, however, that because the juvenile court is required to make that finding by clear and convincing evidence (§ 366.21, subd. (g)(1)(C)), we must review the sufficiency of the evidence “through the prism of the clear and convincing evidence standard.” We disagree. The clear and convincing standard applies in the trial court and is not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) “‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’ [Citations.]” (Ibid.) Thus, on appeal, “‘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.’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)” (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881; accord, In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
We are aware that a number of cases, including In re Basilio T. (1992) 4 Cal.App.4th 155, relied on by Andrea, have held that juvenile court findings which must be supported by clear and convincing evidence are reviewed on appeal “‘to determine the existence of the clear and convincing standard of proof . . . .’ [Citation.]” (Id. at p. 170.) However, we are bound by the ruling of the California Supreme Court in Crail v. Blakely, supra, 8 Cal.3d at page 750. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the juvenile court found by clear and convincing evidence that reasonable services were offered, primarily because Andrea was “doing so well with the services that have been provided.” The court then stated that in or about January, the social worker recognized that Andrea was not addressing certain issues in therapy and attempted to modify Andrea’s therapy to meet Andrea’s needs and those of her children. The social worker’s testimony is less than crystal clear, but it appears to support the court’s conclusion. The social worker testified first that although she and her supervisor felt that Andrea’s therapist was not addressing certain issues with her, they felt it was best to allow her to continue with the same therapist rather than disrupt the established therapeutic relationship. She did not expressly state that she asked the therapist to address different issues, or to address them differently. On rebuttal, however, after Ms. Ohs testified that she never had a conversation with the social worker about modifying her approach, the social worker explained that she spoke to Ms. Ohs in January and learned that Ms. Ohs wanted to discharge Andrea. She then sent a memo to Caritas setting forth her concerns. She felt that because Andrea and the therapist appeared to be working well together, she thought it would be best to allow her to continue with Ms. Ohs, but to “refine the goals.” She testified that she was surprised by Ms. Ohs’s testimony that she was never told that she needed to deal with certain issues.
Resolving the conflict between Ms. Ohs’s testimony and that of the social worker in favor of the court’s determination and viewing the evidence in the light most favorable to the judgment, as we must (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969), we conclude that this evidence is sufficient to support the juvenile court’s conclusion that the services were tailored to Andrea’s needs and were therefore reasonable. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011.) Andrea might indeed have made greater progress in ameliorating the cause of her children’s removal by the end of the first six months if she had been placed with a different therapist, but we cannot say as a matter of law that it was unreasonable for the social worker to conclude that Andrea would be best served by allowing her to continue working with the therapist she apparently trusted and with whom she had established a rapport. To be reasonable, reunification services need not be perfect; they need only be reasonable under the circumstances. (Elijah R. v. Superior Court, supra, at p. 969.)
Even if the court had erred in concluding that reasonable services were provided to Andrea, moreover, we could not reverse the order continuing the children in out-of-home care: When it appears at the six-month review hearing that a parent has not been afforded reasonable services, the remedy is to extend the reunification period and order continued services. (In re Alvin R., supra, 108 Cal.App.4th at pp. 973-974.) To do otherwise, when the evidence supports the juvenile court’s determination that returning the child would cause a substantial risk of detriment to the child, would contravene the purpose of the dependency laws, which is to attempt to facilitate reunification of the family, if possible, while protecting the emotional and physical well-being of the child. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307-310.) The primary focus is on the well-being of the child. (In re Josiah Z. (2005) 36 Cal.4th 664, 673.)
Here, substantial evidence supports the court’s conclusion that the children could not yet be safely returned home. The social worker testified that the children were afraid to return home because they feared that Andrea would hurt them. The children, especially T.G., had repeatedly told her that they were afraid, and they had even called her on the day of the hearing to tell her that they were afraid to go home. Andrea agreed that if the children were afraid of her, it would not be good for them to force them to return home. The social worker also testified that it was essential for Andrea and the children to have conjoint therapy so that Andrea could address the children’s needs. She acknowledged that Andrea had partially addressed her own issues, but testified that in her interactions with Andrea, Andrea continued not to take responsibility for the children’s removal and refused to acknowledge the physical abuse and her substance abuse and sales of illegal drugs. She testified that during visits with the children, Andrea remained self-centered and failed to meet the children’s emotional needs. She opined that if Andrea did not accept responsibility, the pattern of behavior would repeat itself when the children returned home. In her testimony, Andrea acknowledged that she had hit the children, but she also admitted that she had not told her therapist the extent of the abuse she inflicted on T.G. She also would not acknowledge—or could not recognize—that the children might be afraid of her, based on their past experiences.
This evidence supports the court’s conclusion that Andrea had not yet sufficiently dealt with the issues and that it was not yet safe to return the children to her custody. Thus, regardless of the reason that Andrea had not yet achieved the goals of her reunification program, the court had no alternative but to continue the children in out-of-home placement while extending reunification services. (In re Alvin R., supra, 108 Cal.App.4th at pp. 973-974.)
Andrea has not cited any cases in which an appellate court has ordered a child returned to the parent’s physical custody based on the conclusion that reasonable services were not provided, and we have found none. In re Lukas B. (2000) 79 Cal.App.4th 1145, on which Andrea appears to rely for this proposition, does not address the consequences of an appellate determination that reasonable services were not provided. In re Mark L., supra, 94 Cal.App.4th 573, which Andrea cites for the proposition that “when the omissions of a social services agency thwart reunification, a ‘reasonable services’ finding cannot stand,” goes on to hold that the remedy is to extend the time for reunification services. (Id. at pp. 584-585.)
Andrea also contends that the juvenile court abused its discretion because it deferred to the opinion of the social worker “who had effectively thwarted completions of [Andrea’s] case plan.” We see no evidence in the record that the juvenile court failed to exercise independent judgment, and, as noted above, substantial evidence supports the court’s determination that reasonable services were provided and that returning the children to Andrea’s physical custody would create a substantial risk of detriment to the children’s well-being.
DISPOSITION
The judgment is affirmed.
We concur: Gaut, J., King, J.