Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. JD17019, JD17020
RUSHING, P.J.
Introduction
In this appeal, A.S. (mother) challenges an order at a 12-month review hearing that terminated efforts by the Santa Clara County Department of Family and Children’s Services (the agency) to reunify her with her sons F.S. and W.S. (collectively “the children”). She asserts that the juvenile court erred in concluding that the agency had offered her reasonable services. She argues that the agency should have helped her avoid being terminated from a second 52-week batterers’ intervention program and it should have assisted her in obtaining a medication evaluation. After reviewing the evidence relevant to mother’s contentions, we will affirm the order for the reasons stated below.
The Jurisdictional Hearing
On July 6, 2006, a contested jurisdictional hearing commenced based on a second amended petition filed on May 24, 2006. At the end of the hearing that day, the court ordered that the children, F.S., born in December 1998, and W.S., born in May 2001, be placed in protective custody and removed from their parents’ custody. The contested hearing continued on July 7 and concluded on July 19, 2006, with the court assuming jurisdiction over the children.
It is unquestioned that the evidence at the jurisdictional hearing warranted the juvenile court’s assumption of jurisdiction over the children. There was evidence that the relationship between mother and their father, T.S. (father), had been volatile for seven years. They had argued, cursed, and struck each other, leading repeatedly to police intervention. Though mother had obtained a restraining order against father, they were living together with the children in a small hotel room in Sunnyvale.
Father was an alcoholic with a history of criminal convictions for driving under the influence of alcohol and possessing controlled substances and a 2005 conviction of injuring mother. Father told the social worker that mother has been diagnosed as bipolar, but she refused to take any medication except for her thyroid condition. Mother blamed her thyroid condition for her behavior. She reacted defensively to offers of help.
Mother was also verbally and physically abusive to the children. On March 22, 2006, both parents criticized the way F.S. was doing his homework. His father spanked him once. His mother backhanded him across the mouth. He told his class about it the following day. His lower lip was black and blue and puffy. F.S. had previously complained of her calling him names, twisting his foot, hitting the top of his head, and quieting him by suffocating him with her hand. Father believed that mother sometimes punished F.S. because she was angry with father.
In 2004 W.S. was diagnosed as severely autistic. By February 2006, he had progressed in several areas, but remained two years behind in language skills. He was prone to screaming tantrums. Mother responded to these tantrums by covering his mouth, pulling and twisting his arm, and dragging him. When school officials suggested on April 13, 2006, that she pick him up instead of yanking his arm, she became enraged and cursed the staff. They called the police. Father stated that she regularly grabbed W.S. around the neck when he was shrieking, but not hard enough to choke him.
The Case Plan and Mother’s Efforts to Comply
A. The Sixth-Month Review Hearing
On August 3, 2006, the court conducted a disposition hearing and adopted a case plan for both parents. The children were placed in foster care. The plan included the following requirements for mother: attend classes in parenting without violence (16 weeks) and parent orientation; complete a batterers’ intervention program (52 weeks); participate in counseling or psychotherapy focused on specified issues; and have her treating physician provide information about her thyroid condition to the evaluating psychologist. The court scheduled a six-month review hearing for January 2, 2007, and a 12-month review hearing for July 5, 2007.
A status report by social worker Cheryl Burks, dated December 21, 2006, provided the following evidence regarding mother’s compliance with the reunification plan. She had successfully completed the parent orientation classes. She was close to completing the parenting without violence class. She had participated in a family psychological evaluation. She was participating in weekly individual therapy sessions with a licensed clinical social worker. Mother had submitted to thyroid testing. Burks had not been able to speak with her physician.
William Alvarez, the psychologist who evaluated the family, made these observations on December 12, 2006. Mother was emotionally labile and very defensive. She blamed others instead of accepting responsibility for her behavior and characterized herself as a victim. She denied having psychological problems and explained her behavior as the result of being undermedicated for her thyroid condition. Alvarez observed that mother resisted the idea that her mental health needed treatment, but that she might benefit from medication in addition to that for her hypothyroidism. He diagnosed her as having a bipolar disorder. He also noted: “Hypothyroidism is known to be associated with irritability and, more frequently, depression and is likely playing a role in her clinical presentation. Low thyroid function has also been associated with rapid-cycling bipolar disorder.”
Addendum reports provided the following information. Mother was also participating in a batterers’ intervention program. As of January 15, 2007, the program facilitator had the following observations about mother’s participation. Mother was in denial about her controlling behavior. She considered any feedback or suggestions to be a personal attack and reacted defensively. She did not believe she needed to change. She denied being as emotional as she was. She was not using the tools presented by the program, instead denying there was anything wrong with her relationship with father.
The six-month review hearing originally scheduled for January 2, 2007, was continued and held as a contested hearing on January 30, 2007. The court heard testimony from mother, father, and Burks. After the hearing, the juvenile court continued all previous orders in effect. The court also required mother to complete a psychotropic medication evaluation and to follow the evaluator’s recommendation.
The review hearing was reopened on February 6, 2007, so the court could receive and consider an addendum reporting that mother had been terminated from the batterers’ program on February 5, 2007, after attending 15 of 16 sessions for the following reasons. On that date, while attending the program, she was loud, defensive, and reactive. She used abusive language to the facilitator. She said she did not belong in the group and needed victim support instead. Although acting like a perpetrator, she was in complete denial of any abusive behavior. She blamed her illness, her spouse, and the facilitator for her actions. She was too self-absorbed to show empathy for her children.
B. The 12-Month Review Hearing
The 12-month review hearing, initially scheduled for July 5, 2007, was continued and took place as a contested hearing on August 13, 14, and November 13, 2007. Mother did not testify at this hearing, but her attorney examined witnesses and argued for the continuation of reunification services. Social worker Burks was qualified as an expert on case management, risk assessment, and placement of dependent children. The following evidence relevant to mother’s compliance with the reunification plan was adduced during the course of the hearing.
Mother received a favorable assessment from her parenting without violence class that ended on February 5, 2007. It noted that while she initially resented participation in the class, over the course of attending 15 of 16 classes, she became one of the more active participants. She became open to accepting constructive criticism and was working on accepting responsibility for her actions.
Mother entered a second batterers’ intervention program after being terminated from the first one. After seven sessions, on May 3, 2007, the program facilitator had the following written observations. Mother perceived herself as a victim and denied using any controlling, manipulative behavior. She appeared to have no empathy toward father. She had high degrees of rage and narcissism. She minimized her own responsibility for abusive behavior. She blamed her termination from the first program on the facilitator. She appeared to be withholding information regarding her financial and thyroid problems. She did not appear to be working towards change. She faced termination from the program unless she demonstrated “an increase in her level of accountability . . . .”
In this opinion, we have not adopted the programs’ self-descriptions. The second program titled itself a “batterer’s” program, while the first “batterers program” dispensed with any apostrophe. The Legislature, which is not an arbiter of grammar, has spoken of “a batterer’s treatment program” (Fam. Code, § 3044, subd. (b)(2); Pen. Code, §§ 243, subd. (e)(1); 273.65, subd. (g); 1203.097, subd. (c)(5)(A)(ii)), “a batterer’s program,” “the batterer’s program,” and “batterer’s programs” (Fam. Code, § 6343, subd. (a); Pen. Code, §§ 1203.097; § 3053.2), as well as “a batterers’ intervention program” and “batterers’ intervention programs” (Pen. Code, § 1203.098). Because these group programs apparently serve more than one batterer at a time, we refer to them by the plural possessive form of “batterer” used in the last cited statute.
On July 3, 2007, mother was dropped from the second program after attending 12 sessions “because of having accumulated four absences, and for non-compliance with the program in the area of fee payments” of $25 per session. Mother was delinquent for three payments. On May 23, 2007, mother had asked the program director by letter for a fee reduction because she was on medical leave from work for approximately a month. Mother and Burks had talked about mother making such a request. She was warned by letter dated June 5, 2007, that she could not continue if she did not make the payments. On June 18, 2007, the program director again denied mother’s request, noting that $25 was the lowest amount on their sliding scale. She missed three sessions because she was not allowed to attend without paying her fees.
Burks acknowledged that the agency does not pay for programs ordered for parents such as the 52-week program for batterers, individual therapy, or a medication evaluation, although there is funding for some programs for children. Most programs for parents have a sliding fee scale. Mother was employed part-time.
Burks had spoken to mother about obtaining affordable services, and learned that mother’s medical insurance would cover at least some of the services she needed. Burks spoke to the facilitator about mother’s termination from the second program, but did not ask how mother might be able to make her payments. Burks did not receive copies of the correspondence regarding the fee reduction request until mother was terminated.
After mother’s second termination, Burks provided her with a list of batterers’ programs, but she acknowledged that it was difficult to get into a new program after being terminated from another program for nonpayment.
Burks frequently encouraged mother to obtain a medication evaluation. Mother was adamant about being involved in selecting the evaluator. Burks was concerned about the delay. Through mother’s medical insurance, she received a medication evaluation on June 28, 2007, from Dr. Priya Venkatesh, a psychiatrist at Kaiser Permanente. The evaluator recommended a medication and cautioned that it might not take effect for months. Burks did not attempt to discuss the suitability of the medication with the doctor.
Mother had attended three individual therapy sessions since May 2007. She was looking for a new therapist but had not found one to her liking. On August 2, 2007, Kindred Souls, a visitation monitor, terminated mother from visiting the children after two no-shows and two cancellations. Burks authorized resumption of visitation. Mother claimed to have no means of telephone contact after she and father separated on July 21, 2007. She had recently notified Burks she had moved.
At the conclusion of the hearing on November 13, 2007, the court found by clear and convincing evidence that reasonable services had been provided to mother and ordered termination of further services due to mother’s lack of progress. The court orally identified two areas of special concern. “The issue of reasonable services[,] I think[,] is one which takes into account both the actions of the social services agency in terms of providing the services and the actions of the client, in this case [mother], in terms of accepting and taking advantage of those services.” The court characterized mother as “completely uncooperative with the social worker in terms of getting the medication evaluation.” She chose her own evaluator. “There’s only so much that the social worker can do to encourage a person to accept that the evaluation needs to be done by someone that has been approved by the social worker as the representative of the court. And the mother was not willing to accept that.”
The court characterized the unavailability of county funds to pay for court-ordered services as a major systems problem. But the court found that the evidence did not support mother’s claim that it was due only to financial limitations that she was unable to complete a certified batterers’ program. The court recognized that it takes time for people to internalize the concepts taught in these courses. Mother’s evaluation indicated that she was making no progress in the program prior to her termination. “I cannot say that the only reason that the certified batterers[’] program was not successful for the mother was simply because she wasn’t able to pay for it.” She was blaming others for her problems, which was one of the problems that brought this case to court. She withheld information and behaved inappropriately a number of times.
Although the social worker had recommended termination of reunification services to both parents, the court ordered services to be continued six months to father due to his recent progress on his reunification plan. It is this November 13, 2007 order identified in mother’s notice of appeal.
County counsel was to prepare an order after hearing. No such order after hearing appears in the nine volumes of clerk’s transcripts we have received.
Only Reasonable Reunification Services May Be Terminated
The state has a compelling interest in the welfare of children and may remove a child from parental custody under specified circumstances threatening harm to the child’s physical or emotional well-being. (In re Marilyn H. (1993) 5 Cal.4th 295, 306-307; Welf. & Inst. Code, §§ 300, 361, subd. (c).) Unless special circumstances authorize a bypass of reunification (§ 361.5, subd. (b)), when a child is removed from a parent’s custody, the state’s first priority is to preserve the family and reunify the child with his or her parents after overcoming the problems that led to removal. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010; cf. §§ 300.2; 319, subd. (e); 358, subd. (b).) To achieve this goal, the juvenile court must order a county social worker to provide welfare services to the parents and child. (§§ 361.5, subd. (a); 362, subd. (c); 16507, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249; Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843.) The social worker must complete a case plan that describes “the services to be provided to assist in reunification . . . .” (§ 16501.1, subd. (f)(9).)
Unspecified section references are to the Welfare and Institutions Code.
After the initial disposition, the court must review the child’s situation and prospects at least every six months for a year. (§ 366.) At each review hearing, there is a statutory presumption that the child should be returned to parental custody unless the social worker demonstrates that the return “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subds. (e), (f).) “The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Ibid.) The court must make a finding about detriment and shall “determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian.” (Ibid.)
At the 12-month review hearing, the court must order continuation of services 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.” (§ 366.21, subd. (g)(1).) The court cannot terminate reunification services without finding “there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians.” (§366.21, subd. (g)(2).)
If the court finds that reasonable services have been provided and that there is no substantial probability of returning the child to parental custody, the court ordinarily terminates services and schedules a hearing under section 366.26 for the selection and implementation of a permanent plan, which may include a termination of parental rights. (§ 366.21, subd. (g)(2); In re Cynthia D., supra, 5 Cal.4th 242, 249.) However, if, as here, reunification services have been provided to both parents, the court is authorized to terminate services to one parent and continue services to the other parent without scheduling a permanency planning hearing. (In re Alanna A. (2005) 135 Cal.App.4th 555, 565-566; In re Jesse W. (2007) 157 Cal.App.4th 49, 59-60.)
The Reasonableness of the Services Offered
Mother asserts that “the agency’s efforts were insufficient in two areas that were the heart of [her] reunification plan,” namely the 52-week batterers’ intervention program and the medication evaluation. (Capitalization omitted.)
As this court has stated, “On appeal, it is our task to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services designed to aid the parent in overcoming the problems which led to loss of custody were provided or offered.” (In re Joanna Y. (1992) 8 Cal.App.4th 433, 439.) In reviewing the evidence, we resolve evidentiary conflicts and draw inferences in support of the ruling. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
As this court has also stated, “A ‘mechanical approach’ to a reunification plan is not what the Legislature intended: ‘[s]uch a plan must be appropriate for each family and be based on the unique facts relating to that family.’ [Citations.] The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777, quoting In re Edward C. (1981) 126 Cal.App.3d 193, 205.) “To effectuate this paramount goal of reunification, the law requires that reasonable reunification services, tailored to the parents’ individual needs be offered before parental rights may be terminated. [Citations.] The agency supervising the children must identify the problems leading to the loss of custody, offer services designed to remedy these problems, and maintain reasonable contact with the parents to assist in areas where compliance proves difficult, such as transportation. (In re Riva M. (1991) 235 Cal.App.3d 403, 414 . . . .)” (In re Joanna Y., supra, 8 Cal.App.4th 433, 438.)
A. The Batterers’ Programs
Mother asserts that the social worker should have done more than she did when mother was having financial trouble paying the $25 fee for her second batterers’ program. Mother suggests that the social worker should have contacted the program director directly regarding her difficulty in making payments and should have investigated the possibility of the agency providing her with limited financial assistance. It was not enough to simply provide a list of other programs knowing that they were not likely to accept mother so long as she had an outstanding balance at a prior program.
Regarding mother’s suggestion that the county had any obligation to finance her reunification services, she has not cited and we are not aware of any authority in case law or statute requiring financial aid as a necessary element of providing a parent with reasonable services. (Los Angeles County Dept. of Children and Family Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093 [finding the court had no authority to order the department to pay father’s round-trip air fare for visitation].) Parents seeking reunification are afforded the guidance of the juvenile courts and county social workers. There are government programs that provide aid to families with dependent children, but a juvenile court cannot simply order AFDC payments unless there has been a determination by the proper administrative agency that the children are eligible for such payments. (§ 362; In re Joshua S. (2007) 41 Cal.4th 261, 273-274.)
As indicated above, several courts have quoted or paraphrased a suggestion in Riva M., supra, 235 Cal.App.3d 403, 414, that reasonable services might involve “helping to provide transportation.” (Joanna Y., supra, 8 Cal.App.4th 433, 438; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 794.) But these statements appear to be mostly dictum, as the failure to provide transportation was not an issue in those cases, nor is it here.
The social worker here seemed well aware from past experience of the unavailability of government funds to assist mother in paying for the court-ordered batterers’ program. A social worker need not undertake an exercise in futility to establish that he or she has made good faith efforts to assist a parent. (In re Edward C., supra, 126 Cal.App.3d 193, 206 [“In the face of the appellants’ massive denial of any wrongdoing and refusal to participate in any plan for counseling, a detailed plan for reunification would have been a futile gesture to mechanically satisfy the provisions of [former California Rules of Court rule 1376”]; cf. Maribel M. v. Superior Court (1998) 61 Cal.App.4th 1469, 1478 [futile to extend the reunification period for a parent who chose not to participate in court-ordered services].)
Mother now suggests that the social worker should have taken the initiative to intervene on her behalf and plead her case for a fee reduction to the director of the second batterers’ program. The record is bereft of evidence that mother asked the social worker for such help when she needed it, although mother and the social worker did discuss mother making a fee reduction request.
Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, on which mother relies, observed at pages 1166-1167: “It has been stated, ‘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 . . . were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ (In re Misako R. (1991) 2 Cal.App.4th 538, 547 . . . .) In finding Robin’s services unreasonable, we do not suggest the SSA had to take him by the hand or lead him step-by-step along the way. (See In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) But neither was it free to hang him out to dry.”
We cannot conclude as a matter of law that it was unreasonable for the social worker to give mother the laboring oar in seeking to maintain her participation in the batterers’ program. (In re Christina L., supra, 3 Cal.App.4th 404, 417-418 [it was reasonable for social worker to encourage mother to apply for services available to the developmentally disabled].) If the program was unwilling to reduce its fee beyond the minimum on its sliding scale, this was a financial reality for mother to handle and overcome.
Mother’s professed financial difficulties need to be put in context. They arose with only six weeks left before the initially scheduled 12-month review hearing. She was terminated from the second program on the same day for which the 12-month review hearing was scheduled, although the hearing was ultimately continued several times and it did not conclude until three months after it started. As the trial court observed, mother was not making progress in the program before she stopped paying for it. Over the course of 15 sessions in the first program and 12 in the second, the facilitators echoed the observations of the psychologist that mother denied having psychological problems and did not accept responsibility for her abusive and controlling behavior, instead defensively blaming others for victimizing her. Mother’s termination from her first program was unrelated to her financial situation. Her failure to make substantive progress was prima facie evidence that it would be detrimental to the children to return them to her custody. Whatever progress was recognized in the violence in parenting program was not duplicated in the batterers’ programs. On the same date that she successfully graduated from the parenting program, she was terminated from the first batterers’ program after an outburst against the program facilitator that underlined her lack of progress.
The situation is reminiscent of In re John V. (1992) 5 Cal.App.4th 1201, where this court noted, “Of more consequence, however, is the evidence that appellant’s personality disorder, and not her problems with income or housing, was the true cause of the problems which prevented appellant from adequately caring for her children.” (Id. at pp. 1214-1215.)
Mother suggests that the social worker should have done more to get her into a third batterers’ program, or back into the second program, but it does not appear that anything except for financial assistance with her overdue balance would have returned her to a program. As discussed above, financial aid is not required to make reunification services reasonable.
In short, mother identifies no reason for us to disagree with the trial court’s finding that mother was offered reasonable services with respect to the batterers’ programs.
B. The Medication Evaluation
Mother asserts that the social worker should have established a dialogue with Dr. Venkatesh, the medication evaluator, in which she provided information regarding why her children were removed, what mother’s behavioral problems were, and what her case plan required, and she obtained information about what medication had been prescribed.
In Katie V. v. Superior Court (2005) 130 Cal.App.4th 586 (Katie V.), on which mother relies, the social worker was found to have adequately addressed the mother’s mental health problems. When the mother told the social worker that her medications were making her feel strange, the social worker contacted her therapist and her counselor at an inpatient substance abuse facility and attempted to contact her physician. (Id. at p. 599.) The court observed that the mother’s “ ‘real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered.’ ” (Ibid.)
In our case, there is no indication that mother made any complaint to the social worker about her medication. There was no evidence as to whether it was working or not. The psychiatrist indicated that it could take months to take effect. Unlike Katie V., the social worker had no reason to question the doctor’s evaluation.
More importantly, mother overlooks the time line of this requirement. Obtaining a medication evaluation was added to mother’s case plan on January 30, 2007. The social worker regularly encouraged mother to follow up on this requirement. Yet the evaluation took place on June 28, 2007, less than a week before the original date of the 12-month review hearing. Mother again complains that the social worker failed to engage in a last-minute flurry of activity that would not have compensated for mother’s earlier lack of substantive progress.
The objective of the medication evaluation was not simply to have mother see a doctor but to ascertain if mother’s behavior could be improved by a change in medication, as Dr. Alvarez had suggested. Overnight results could not reasonably be expected. Mother does not suggest what the social worker could have done to motivate her to obtain a medication evaluation sooner. As this court stated long ago, “Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent.” (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.)
We have no reason to disagree with the trial court’s finding that mother was offered reasonable services regarding the medication evaluation.
Disposition
The order denying mother reunification services is affirmed.
WE CONCUR: PREMO, J., Bamattre-Manoukian, J.
We do note that In re Alvin R. (2003) 108 Cal.App.4th 962 found the services inadequate when the department referred a child needing therapy to a therapist who had no time for him. The court observed that “[t]here was no evidence that the Department made an effort to find other therapists in the area, or that the Department attempted to find transportation for Alvin to see an available therapist further away.” (Id. at p. 973.) There is a significant difference between finding transportation and paying for it.
Also, section 361.5, subdivision (e)(1)(B) states that “Transportation services, where appropriate” may be part of a reunification plan for an incarcerated or institutionalized parent, but the government is already responsible for transporting prisoners. In In re Monica C. (1995) 31 Cal.App.4th 296, 306-307, the court found the services inadequate although the county had paid to transport a child to visit an incarcerated parent and had paid for some collect telephone calls. The county had also put the burden on the mother to identify what services were available in prison and it did not investigate placement alternatives suggested by the mother.