Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County. No. 515346, Ann Q. Ameral, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
GOMES, ACTING P.J.
John W. (father) appeals an order entered after a 12-month review hearing continuing placement of his daughter, Kaylee W., out of his care under Welfare and Institutions Code section 366.21. He contends (1) he was denied his constitutional right to legal custody of his daughter because there was insufficient evidence she would be at substantial risk of detriment if returned to his care and her needs would be better served through the educational system, and (2) the evidence was insufficient to support the finding that he was provided reasonable reunification services. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency proceedings were initiated over five-year-old Kaylee in October 2008 after the Stanislaus County Community Services Agency (Agency) received referrals from her school that she was engaging in sexually inappropriate behavior, including asking a male student to put his hands down her underpants and touching her private area during class, and she disclosed that her mother’s boyfriend, Ryan, had kissed her private parts and had intercourse with her. At a January 2009 combined jurisdictional and dispositional hearing, after mother and father submitted on the social worker’s report, the juvenile court found the allegations of a first amended petition true, namely that Kaylee came within the provisions of section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage) because, among other things, she exhibited severe sexual acting out, yet neither parent had taken her to counseling until court intervention, Kaylee accused both father and Ryan of sexually abusing her, and although the Agency determined the accusations were unfounded, Kaylee continued to act out sexually. The court adjudicated Kaylee a dependent, removed her from mother’s custody, placed her in father’s custody and ordered reunification services for mother and family maintenance services for father. Father’s services included completing a counseling program focused on the issue of sexual molestation, while Kaylee was to complete a similar counseling program and participate in an emotional and developmental assessment through the Children’s System of Care (CSC).
The Section 387 Petition
In June 2009, the Agency filed a section 387 petition seeking to remove Kaylee from father’s custody after (1) Kaylee’s CSC therapist, Shanette Williams, reported Kaylee was the most sexualized child with regards to her behavior with whom Williams had ever worked, (2) her behavior at school had deteriorated, (3) father delayed in enrolling himself and Kaylee in counseling despite Kaylee’s teacher informing him sexualized behavior was increasing at school and being told of Williams’ concern that Kaylee begin sexual abuse counseling, and (4) the clinical coordinator of the counseling program reported Kaylee was the most sexualized child in the group. In addition to alleging father’s delay in obtaining counseling, the petition alleged father denied Kaylee engaged in sexualized behavior in his home.
The Agency did not believe Kaylee’s mental health needs would improve if she remained in father’s care, as placement with him over the previous nine months had not been effective in her rehabilitation. The Agency’s primary concern was that father had demonstrated a limited capacity to meet her very serious mental health needs, and he was ineffective in supporting her rehabilitation. The social worker believed Kaylee needed a parent who could be active and assertive in her mental health treatment, and father had not shown an ability to do that, instead demonstrating limited insight and extreme passivity. While he had consistently been presented with information about Kaylee’s sexualized behavior, he only recently had made an effort to utilize resources to address the problem. The social worker questioned father’s report that Kaylee did not exhibit sexual behaviors at home, since she exhibited such behavior in every other setting and, during one home visit, a social worker saw Kaylee engage in sexual behavior that father ignored and denied happened.
During the contested hearing on the petition, Kaylee was taken into protective custody after testimony revealed she had told both her CASA representative and day camp counselor that father was sexually abusing her. The Agency filed an amended section 387 petition which added Kaylee’s allegations. The hearing on the amended petition concluded in October 2009. The juvenile court sustained the amended petition after finding its allegations true, removed Kaylee from the custody of both parents, and ordered reunification services for both mother and father. Father was given supervised visitation and ordered to complete a counseling program focused on the issue of sexual molestation, undergo a psychological evaluation, and participate in individual counseling to address issues related to personal accountability, insight and empathy regarding Kaylee’s behavioral challenges and unique needs.
Six-Month Review Hearing
A contested six-month review hearing was held over four days, beginning on May 24, 2010 and concluding on July 19, 2010. The clinical psychologist who administered father’s psychological evaluation found no evidence of any serious mental disorder or maladaptive characteristics or traits, although he did find father to be rigidly defensive, which he thought could lead to father’s failure to be alert to troublesome information. Father completed a parenting education program in March.
All further dates are to the year 2010, unless otherwise stated.
Licensed psychologist Cheryl K. Carmichael, Ph.D., completed a psychological evaluation of Kaylee in April, which was focused on determining not whether abuse occurred, but whether Kaylee’s symptoms were consistent with a mental disorder. In Dr. Carmichael’s opinion, Kaylee suffers from a psychotic disorder of childhood, which is manifested by her preoccupation and obsession with sexual behaviors. Dr. Carmichael believed it was possible Kaylee’s symptoms arose without any molestation having occurred, and while repeated sexual abuse could not have caused Kaylee’s problem, it could have exacerbated it.
Dr. Carmichael recommended, among other things, that Kaylee stop receiving treatment for sexual abuse and be referred to a psychiatrist for a medication evaluation. She also recommended any outpatient treatment include the assumption she has a thought disorder that interferes with thoughtful behavior and reunification with her parents be predicated on reduction or resolution of her thought disorder. Dr. Carmichael believed Kaylee could stay in a high level of foster care with a possible decrease in intensive counseling if medication impacted Kaylee’s fixation and preoccupation, but it would be dangerous for either parent to take Kaylee into their home, as she inevitably would make another claim of molestation and would be a convenient victim of a molester. According to Dr. Carmichael, moving back into a parent’s home would be the final step in a series of behavioral steps, including measured improvement in flexible and logical thinking, and trial visits could begin when the thought disorder diminished.
Dr. Carmichael opined Kaylee needed the high level of care available in a therapeutic home, which Kaylee’s parents were not capable of providing as Kaylee was too disturbed and the parents uneducated to her multiple needs. Dr. Carmichael was concerned about returning Kaylee to father’s home since he was a target of her molestation claims and her allegations regarding father were more graphic than her allegations concerning Ryan. Moreover, it was possible Kaylee believed the events she related regarding molestation actually happened, including molestation by father, which would make it more difficult to achieve stability through reuniting with him, since he is a huge part of her delusional system.
Kaylee had been in three foster homes since being removed from father. The third home was an intensive therapeutic foster care placement (ITFC), in which the foster parent has completed specialized training through the foster family agency. Although social worker Nancy Griggs had seen Dr. Carmichael’s report and recommendations for further services, and intended to ask the court to order services consistent with her recommendations, she had not made additional service referrals for father. She had supervised father’s visits with Kaylee, and they were very appropriate.
At the conclusion of the review hearing, the court decided not to return Kaylee to father’s custody, finding that (1) Dr. Carmichael had opined it would be very dangerous for Kaylee to be returned to either parent’s home, (2) Kaylee could not be returned home until her thought disorder was thoroughly addressed and evaluated, (3) it would be unsafe to return Kaylee to father, as the court did not know if he had “done something inappropriate” to Kaylee, who was vulnerable to being molested yet not being believed, and (4) while father had complied with his case plan, he was not capable of providing the care Kaylee needed due to her unusual issues and illogical thought processes.
The court ordered a physiological assessment of Kaylee, at the Amen clinic if possible, to rule out any physical or genetic abnormality. The court terminated mother’s services, but the court continued services for father, ordering that his case plan include (1) a support group to help him deal with Kaylee’s needs, (2) the right to notice of all assessments and presence when results are given, with both parents to provide the practitioners with a complete medical and emotional history, (3) twice-monthly visits of two hours each, which could be increased at the Agency’s discretion and (4) referral to a therapist to help him gain understanding about Dr. Carmichael’s diagnosis. Any referrals for training for father would be determined based upon the physiological assessment.
Father appealed from the order at the six-month review hearing continuing out-of-home placement for Kaylee. He challenged the sufficiency of the evidence to support the findings that Kaylee would be at substantial risk of detriment if returned to his care and that he was provided reasonable reunification services. In an unpublished opinion, we affirmed the placement order but reversed the reasonable services finding, concluding the evidence was insufficient to show that the services the Agency provided after it became aware of Dr. Carmichael’s diagnosis of a thought disorder were tailored to meet the family’s needs or the Agency did all it reasonably could to provide appropriate services. (In re Kaylee W. (Mar. 21, 2011, F060771).)
The 12-Month Review Hearing
Kaylee’s CASA worker, Steve Ashman, filed a report for the 12-month review hearing on September 21. He reported that Kaylee was in a private foster family home where she appeared to be doing very well, and she had an excellent relationship with her foster mother, with clear boundaries and expectations. In August, Kaylee was found eligible for special education services under the primary disability of emotionally disturbed (ED), with a secondary disability of speech and language impairment. At the Individualized Educational Program (IEP) team’s recommendation, Kaylee was placed in a local non-public elementary school; the school’s program provides opportunities to learn, practice and strengthen functional and acceptable behaviors through a therapeutic milieu. Kaylee was referred to the school due to her significant behavioral difficulties, which included aggressive and assaultive outbursts, such as hitting and making verbal threats, being disruptive and defiant, and engaging in sexually inappropriate behavior. Since Kaylee began attending the school on August 23, she had displayed difficulty following directions, staying on task, and appropriately interacting with peers; she often had a rude and defiant attitude and had difficulty maintaining appropriate personal boundaries. Despite this, she had been responding positively to the school’s highly structured and therapeutic milieu.
Kaylee had an appointment at the Amen Clinic at the beginning of October 2010, for an assessment to rule out any neurological problems that might account for her inappropriate sexual behavior. Ashman noted Kaylee’s behaviors and mental health needs had not changed substantially since the last court report, but the increased services were having a positive effect on her behaviors in an academic setting. CASA recommended that Kaylee maintain her current out-of-home placement and visitation schedule with her parents, and a hearing be set to review the results from the Amen Clinic and discuss potential next steps. Ashman further remarked that while Kaylee’s behaviors had worsened over the period of his involvement in the case, they recently had seemed to stabilize, though not improve. Ashman thought Kaylee’s current foster mother was doing a “fabulous job” by having clear and concise expectations, noting the foster mother was very good at communicating and maintaining consistent limits in the household. Ashman believed that structure, combined with the structures in place in school, had helped stabilize Kaylee.
The Agency filed a status review report on September 22, which recommended father receive an additional six months of reunification services. The social worker reported that Kaylee was receiving weekly counseling with Williams and being seen by a CSC psychiatrist. With respect to father’s services, the social worker reported father was working with Judy Schardijn on an individualized counseling program designed to address Kaylee’s mental health needs, but as of September 15 he had attended only one session and did not show-up for a second session. According to Schardijn, at the session father attended he presented as frustrated with Kaylee’s diagnosis and the fact she was not living with him. The social worker further noted that father was to participate in a parenting program for parents of mentally ill children entitled “Educate Equip and Support, ” but father said he was unable to attend the class due to his work schedule and the class was canceled due to a lack of staffing. The social worker directed father to an alternative class being offered by the National Alliance for the Mentally Ill. (NAMI) entitled “Family to Family, ” but when father contacted NAMI, the class was full. The next class would not be held until January 2011.
Both parents continued to visit Kaylee regularly, although father was a “no call no show” for a September 17 visit. Kaylee did well during visits and was excited to have them. The social worker noted that since the last court hearing, father had begun to engage his case plan services but with less vigor than in previous months as he attended only one meeting with Shardijn. Kaylee continued to make sexual allegations against father. At the end of July, Kaylee told her camp counselor about her allegations of sexual abuse against father, and during an August 23 visit with mother, she asked if mother was mad at father because he had touched her. On July 26, Kaylee alleged sexual abuse against a foster grandfather while in placement, but after several interviews by Agency personnel the allegation was not substantiated. On September 20, the foster parent told the social worker Kaylee said she had made up the story because she was mad at him.
The social worker opined there was detriment to returning Kaylee to father’s home due to her continued allegations against him as well as her continued emotional instability, although there was a “fair prognosis” she would be returned to his home. The social worker noted the question was whether father was capable or ready to manage Kaylee’s complex needs in his home and whether he could protect her when she continues to state that he engaged in sexually inappropriate behavior with her. Since father stated he wanted to reunify with Kaylee and was willing to do whatever was necessary to that end, the social worker recommended father receive six more months of reunification services.
Kaylee’s paternal grandmother, Susan M., filed a section 388 petition asking the court to change its order prohibiting visitation with extended family to one allowing her and Kaylee’s sister to have regular visits with Kaylee, including overnight visits with father that Susan would supervise. The court ordered a hearing on the section 388 petition be held on October 21 and continued the 12-month review hearing to that date so the results from the Amen Clinic could be received.
A genetics evaluation, performed at the University of California San Francisco (UCSF), found that Kaylee did not have clear dysmorphic features suggestive of a specific syndrome. A comparative genomic microarray found she had an interstitial duplication of unclear clinical significance.
The Agency filed a medical summary and brain scans from the Amen Clinic. While Dr. Brian Goldman was to provide a more thorough summary of his findings, the social worker reported his initial findings that Kaylee suffers from post-traumatic stress disorder (PTSD), bipolar disorder and reactive attachment disorder, and his recommendation of additional medications for Kaylee. According to Ashman, Dr. Goldman told him Kaylee’s brain was “very busy” and she would benefit from more intensive therapeutic interventions in her living environment.
At the October 21 hearing, Ashman explained what happened during the nearly three hour meeting he attended with Dr. Goldman, along with mother and social worker Jane Hardy. Dr. Goldman talked about Kaylee’s diagnoses and stated this was the worst case of bipolar condition in a child that he had seen. Dr. Goldman stated Kaylee had the “busiest brain” he had seen in quite some time, and her hypersexuality was directly related to a combination of her bipolar and reactive attachment disorders. Dr. Goldman explained that a child with reactive attachment disorder is totally unable to bond with anyone, but in Kaylee’s case, she bonded too soon and inappropriately. Dr. Goldman thought the top priorities were to assess the cause and determine how to mitigate her behaviors, which would direct them toward treatment.
According to Ashman, Dr. Goldman thought Kaylee’s environment could have caused some of her behaviors. Dr. Goldman stated Kaylee tended to focus on one or two things, and she would get stuck on things she likes, including whatever fantasy she might be having. Kaylee was calmer when she was alone and reported she preferred to be by herself because she was more at ease.
Ashman stated that with respect to the PTSD diagnosis, Dr. Goldman opined that if Kaylee had been exposed to sexual behaviors, she was re-enacting the drama of those events and putting herself in a position of the perpetrator rather than the victim, which creates a very dangerous situation for both her and others. Dr. Goldman thought Kaylee would benefit from a stimulant, which she was on, and also from two additional medications, which would calm down the cingulate, or middle, portion of her brain. Dr. Goldman stated one cannot assume any appropriate boundaries with Kaylee and must be very preemptive to address her behaviors. It was very important to positively reinforce good behaviors. Dr. Goldman thought Kaylee would benefit most by being in an institutional setting, as she required intensive therapy and monitoring, with the hopes that she would benefit before reaching an age where she could become a danger to herself and others. Ashman stated Dr. Goldman was preparing a more extensive report, but he did not know when that would be completed.
Ashman told the court he personally was concerned with Kaylee’s well-being in the custody of either parent. Father had not attended the IEP meeting or participated in the assessment at the Amen Clinic. Ashman was distressed about father’s lack of involvement, and while mother had made every effort to participate, she did not seem to have the capacity or wherewithal to care for Kaylee’s needs at that time or in the future.
The court stated it was inclined to deny the section 388 petition and order institutional placement for Kaylee if that was Dr. Goldman’s recommendation, but wanted to wait until it received a written report from him before making such orders. Accordingly, the court continued the hearing for four weeks, specifically asking that Dr. Goldman address the issue of ongoing contact with mother, father and extended family members in his report. The attorney standing in for father’s regular attorney agreed with the continuance and stated that while the Agency recommended father receive more services, he and his regular attorney needed to discuss the specifics and what he should do in response so he can be the best parent for Kaylee under the circumstances. The court responded that it thought the situation was that “services really need to be provided for Kaylee, and I guess there’s a question of what services can really be provided for the parents under the circumstances.”
The court made findings, without prejudice, that Kaylee’s placement was necessary and appropriate, the Agency had complied with the case plan, and the extent of the progress of both parents had been fair. The court set the continued hearings on the section 388 petition and 12-month review for November 19. Father’s stand-in attorney stated she neglected to mention that father told them he was not able to attend that day’s hearing because he started a new job and was not able to get the time off, but he had read the reports, was interested and wanted to be there.
The Agency filed Dr. Goldman’s child evaluation report on October 25. Kaylee, mother and Jayne Hardy LMFT were present when information concerning Kaylee’s history was taken. Hardy reported that Kaylee’s foster parents had discovered that Kaylee was going into her closet and urinating after masturbating. When Hardy first met Kaylee, Kaylee wanted to show her how she masturbated and undress in front of her, which Hardy thought was Kaylee’s way of testing the boundaries. Hardy also reported that Kaylee acted out sexually when she returned from visits with father and when she returned from visits with mother, she tended to be more oppositional. It was also reported that Kaylee exhibited bizarre or odd thoughts, such as insisting it is raining when the sky is clear, and engaged in odd behaviors such as conversing with an imaginary friend, that seemed more than normal childhood imagination. Kaylee had encopresis and enuresis, although both were occurring less frequently.
Brain SPECT studies performed on Kaylee showed, among other things, a ring of fire pattern of tracer activity, which includes intensely increased, largely confluent activity in the specific areas of the brain, and which may be associated with mood issues, cognitive inflexibility, sensitivity to the environment, difficulty with transitions, anxiety and irritability, and in some people, may be related to bipolar disorder.
Based on the clinical history, checklists, SPECT findings and a performance test, Dr. Goldman determined Kaylee’s medical diagnoses included PTSD, bipolar disorder, reactive attachment disorder, mild head trauma with dysexecutive syndrome with disinhibition and impulsivity, sleep disorder with racing thoughts and too much dreaming, and circadian rhythm sleep disorder NOS. He recommended metabolic testing to rule out autoimmune thyroiditis, Pediatric Autoimmune Neuropsychiatric Disorder Associated with Streptococci, and food allergies. Psychiatric diagnoses on Axis I were attention deficit disorder, PTSD, bipolar disorder, mixed, without psychotic features, and reactive attachment disorder. On Axis II he found clinical indications of some borderline personality disorder/traits.
Dr. Goldman opined that there was hope for Kaylee to improve significantly with a combination of medication, diet, and exercise to properly optimize brain function. He made specific medication recommendations and set out a schedule for adjusting Kaylee’s medications. He also recommended that Kaylee continue with her current team of counselors and therapists. Noting that education was essential to understanding Kaylee’s issues, he listed books on ADD, bipolar disorders and behavior modification that might be helpful. He further recommended support groups, such as Children and Adults with ADD, listed websites on bipolar disorder in children, and suggested dietary strategies that are often helpful for people with learning, emotional or behavioral problems. On November 2, the court granted the Agency’s request to administer to Kaylee two psychotropic medications Kaylee currently was taking for concentration, hyperactivity and encopresis/enuresis, and two new psychotropic medications that Dr. Goldman prescribed for PTSD, rage and “stuck” behavior.
At the November 19 hearing, the Agency submitted on the reports as to the review hearing. As to the section 388 petition, the Agency’s attorney informed the court that there had been discussions with Dr. Goldman on the issue of visitation, and he did not believe visitation with extended family would be in Kaylee’s best interests, as Kaylee was already so emotionally overloaded that visits with extended family would be too emotionally intense. When the court pointed out that was not in the reports, the Agency’s attorney made an offer of proof concerning Dr. Goldman’s testimony, stating the information had been e-mailed to all the attorneys, but for some reason had not been provided to the court.
Ashman explained to the court that he and social worker Griggs spoke with Dr. Goldman about visitation and other issues, and Dr. Goldman said he would provide formal documentation to Griggs regarding his position, but he had not yet done so. Ashman further explained that on the issue of visitation, Dr. Goldman was concerned that Kaylee was not in a position at that time to visit with extended family, especially since she had not started her new medication regimen, and he did not think such visits would be beneficial for her, as they would be quite regressive. Ashman said they also discussed Kaylee’s placement. While Dr. Goldman initially thought Kaylee would require a very restrictive placement, his opinion was based on the belief that Kaylee was already on some of the medications he wanted to prescribe. When he learned she was not taking those medications, he thought it best to see how the medications affected Kaylee and her behavior before putting her in a more restrictive placement or allowing visits with extended family.
Father’s attorney stated that she wanted “to preserve for the record the prior objections” and that father also wanted to support Susan’s request for visitation. Father’s attorney was concerned that a lot of what was said in court at the previous hearing had not been confirmed in any documentation submitted to the court, and that she did not see anything in Dr. Goldman’s report regarding visitation or institutionalization. Father’s attorney (1) requested that father be allowed visitation with Kaylee in the community, which he had already been allowed, (2) objected to out-of-home placement, stating that father was “willing to accept any and all responsibility for his daughter, ” and (3) requested some documentation from Dr. Goldman regarding his recommendations concerning visitation. Father’s attorney acknowledged receiving an e-mail from Griggs which stated that she had requested a report from Dr. Goldman, but noted a report had not been received. The court denied the section 388 petition, finding that there was no evidence that granting the petition would be in Kaylee’s best interest.
With respect to father’s 12-month review hearing, father’s attorney continued all objections regarding out-of-home placement and limiting his visitation. Father agreed to supervised visitation because it protects him, but he wanted out-in-the-community visits to continue. The court amended father’s case plan, which gave father visits of four hours per month supervised by a social worker and gave the social worker discretion to progress to monitored visits and Agency-supervised in-community visits. The court found, among other things, that returning Kaylee to her parents’ custody would create a substantial detriment to her safety, protection or physical or emotional well-being, father had been provided reasonable services designed to aid him in overcoming the problems which led to the initial removal and continued custody, the extent of father’s progress toward alleviating or mitigating the causes necessitating placement had been fair, and father had consistently and regularly contacted and visited Kaylee. The court further found the Agency had complied with the case plan in making reasonable efforts to return Kaylee to a safe home and finalize her permanent placement if she cannot be returned home.
The court approved the updated case plan as amended, which for father consisted of the amended visitation plan, individual counseling to address issues related to personal accountability, insight and empathy regarding Kaylee’s behavioral challenges and unique mental health needs, and completion of a parenting support program, approved by the social worker, which applies to Kaylee’s unique mental health needs.
DISCUSSION
Detriment if Returned to Father’s Care
Father challenges the sufficiency of the evidence supporting the finding that Kaylee would be at risk of detriment if returned to his care, as well as the continued assertion of dependency jurisdiction over Kaylee.
“We start with the fundamental premise that the underlying purpose of dependency law is to protect the welfare and best interests of the dependent child.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1424-1425 (Luke M.).) “Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Thus, the focus is on the child, not the parent. “That is, once dependency jurisdiction is acquired because of the custodial parent’s conduct, the court’s inquiry shifts to a focus on the child’s best interests, albeit with a preference towards parental reunification.” (Luke M., supra, 107 Cal.App.4th at p. 1425.)
Once a child has been removed from his or her parents’ custody under section 361, the juvenile court is required to review the child’s status every six months. (In re Joseph B. (1996) 42 Cal.App.4th 890, 897 (Joseph B.).) At the 12-month review hearing, the court must return the child to the parent’s physical custody unless it finds, by a preponderance of the evidence, that return “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (f).) We review the court’s finding to see if substantial evidence supports it. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Father asserts there is insufficient evidence to support the detriment finding because there was no evidence that anything about him or his home would put Kaylee at risk. While father admits Kaylee has an emotional disability, he claims the evidence failed to show he or his home caused or contributed to her disability. According to father, “[d]ependency jurisdiction can only continue if it is the parent who is the cause of the child’s problems and the parent is putting the child at risk of harm, ” citing section 366.21, subdivision (f). Father claims he was denied his substantive due process rights under the United States Constitution when the court refused to return Kaylee to him even though “he was not perpetuating any harm or detriment to Kaylee and the only reason she continued to be a dependent was because she was a disabled child in need of significant services.”
While the juvenile court must consider the extent to which the parent has cooperated with the services provided and the efforts he or she has made to correct the problems that gave rise to the dependency, the decision to return the child depends on the effect that action would have on the child’s well-being. (Joseph B., supra, 42 Cal.App.4th at p. 899.) Thus, as explained in Joseph B., where a child who, for example, has been physically abused experiences emotional trauma as a result of the abuse and fears of being returned to parental custody, it would be inconsistent with the child’s well-being to compel his or her return to parental custody even if there were means available to protect the child from further physical abuse by the parent; instead, services should be provided to address the child’s emotional trauma before returning the child to parental custody. (Joseph B., supra, 42 Cal.App.4th at pp. 899-900.)
Here, Kaylee was removed from father’s custody in part because he delayed in obtaining counseling for her despite reports she was engaging in sexualized, disruptive and defiant behavior, he was either ignorant or indifferent to her emotional needs, he demonstrated an unwillingness to promptly and appropriately respond to her needs, and she made allegations he had sexually abused her. The court refused to return Kaylee to father at the six-month review hearing because father had not completely addressed the issues that required Kaylee to be placed outside his care and custody, and it would be detrimental to her emotional well-being to return her to him. Father could not yet be trusted to ensure her mental health needs were met or accurately report problems that might arise in the home. Moreover, Dr. Carmichael believed it would be detrimental to return Kaylee to father until Kaylee was stabilized and father equipped to assist in maintaining that stability. Dr. Carmichael recommended a medication evaluation be performed, so it could be determined whether medication could control Kaylee’s condition. Dr. Carmichael believed father needed to be prepared to handle Kaylee’s numerous problems and placing Kaylee with father would make it more difficult for her to achieve stability since he is a major part of her delusional system and she actually might believe he molested her, thereby posing more of a risk to Kaylee than other adults in the system.
By the 12-month review hearing, while Kaylee was reportedly stabilizing, though not improving, in an academic setting after being placed in a special school to address her educational needs, she had not yet stabilized in all settings. Her physiological assessment had been completed, which diagnosed her with, among other things, PTSD, bipolar disorder, and reactive attachment disorder. Consistent with Dr. Carmichael’s opinion, Dr. Goldman recommended she be given medications in an effort to control her behavior, which he prescribed, and Kaylee’s placement was dependent on whether the medications were effective. By the conclusion of the review hearing, those medications had been ordered, but their effectiveness had not yet been determined. While visits with father were reportedly going well, there was also evidence they had a negative effect on Kaylee, as Hardy reported Kaylee acted out sexually after visits with him. Moreover, Kaylee continued to make sexual allegations against father.
Based on this evidence, the juvenile court reasonably could conclude that Kaylee would be at substantial risk of emotional harm if placed with father. Father attempts to minimize Kaylee’s continued reports of sexual abuse by him, pointing out that she has made these claims against others. Father ignores, however, Dr. Carmichael’s opinion that he is part of her delusional system and placement with him would make it more difficult for her to achieve stability. The juvenile court reasonably could conclude that it first needed to be determined whether Kaylee could be stabilized on medication before returning her to father’s custody.
Since there was sufficient evidence that returning Kaylee to father would place her at substantial risk of emotional harm, father’s contention that his due process rights were violated is without merit. Father’s constitutional argument is based on his contention that he presented no risk of harm to Kaylee. He ignores, however, the evidence that his visits with Kaylee caused her emotional turmoil and that he is part of Kaylee’s delusional system that would make it difficult for her to achieve stability if she were placed with him. Moreover, contrary to father’s assertions, the question of whether to return Kaylee to his custody is not governed solely by his conduct; instead, the court must consider the effect such return would have on Kaylee. (Joseph B., supra, 42 Cal.App.4th at pp. 900-901.) The juvenile court reasonably could conclude that returning Kaylee to father’s custody would create a substantial risk of detriment to her emotional well-being. Accordingly, this claim fails.
Father repeats his contention, raised in his prior appeal, that Kaylee’s psychological needs could be met through the special education system instead of the dependency system. As we explained in our prior opinion, dependency jurisdiction was taken due to mother’s and father’s failure to seek help for Kaylee despite her severe sexual behavior and Kaylee subsequently was removed from father due to his unwillingness or inability to recognize the extent of her problems and seek help for them, placing her at risk of harm. (In re Kaylee W., supra, at pp. 23-24.) During the 12 months since removal from father, Kaylee was diagnosed as mentally ill and her behaviors, which professionals working with her had identified as the worst case they had seen, had not been stabilized. At the six-month review hearing, the juvenile court was not convinced father would provide Kaylee with the support she needed while in his home. At the 12-month review hearing, the only evidence regarding father’s ability, or inability, to provide support for Kaylee was the therapist’s notation that he presented as frustrated with her diagnosis and that she was not living with him.
Even if father had progressed in this area, however, the evidence showed that Kaylee had not yet stabilized and returning her to father presented a risk to her emotional well being as he is part of her delusional system and she continues to make sexual abuse claims against him. Because there is a risk of detriment to Kaylee, father’s reliance on Christopher T. v. San Francisco Unified School District (N.D.Cal. 1982) 553 F.Supp. 1107, 1118-1120, where the parents of emotionally disturbed children agreed to place the children under dependency jurisdiction solely to obtain residential treatment for them, is misplaced.
In sum, substantial evidence supports the juvenile court’s finding Kaylee was at substantial risk of harm if returned to father’s care.
Reasonable Services
Father contends he was not given reasonable reunification services because he was offered nothing to assist him in regaining custody of Kaylee. Pointing to the juvenile court’s statement at the October 21 hearing that there was a question of what services could be provided for the parents under the circumstances, father asserts the court did not know what he could do to regain custody and therefore he was not given any services to assist him in doing so. He also asserts the Agency did not make a good faith effort to develop and implement a reunification plan because (1) it delayed in defining the family’s problem and (2) once the problem was defined, it failed to offer additional services to assist the family.
At the 12-month review hearing, the juvenile court must determine if reasonable services have been offered or provided. (§ 366.21, subd. (f).) In making its determination, the juvenile court considers not only the appropriateness of services offered but also the extent to which the department facilitated utilization of the services and the extent to which the offending parent availed him or herself of the services provided. To be reasonable, the services provided need not be perfect. The “standard is not whether [they] were the best that might have been provided, but whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Services are reasonable when the supervising agency identifies the family’s problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
On a challenge to the juvenile court’s reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545 (Misako R.).) If substantial evidence supports the juvenile court’s finding, we will not disturb it. (Ibid.) As father bears the burden of demonstrating error on appeal (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), he must show that the juvenile court’s finding that the Agency made reasonable efforts to facilitate reunification services is not supported by substantial evidence.
The Agency had a duty to provide reasonable services; that is, services designed to treat the problem that necessitated Kaylee’s removal. Ordinarily, services focus on helping the parent remedy specific conduct that was deemed harmful to the child. This case is unusual in that it is not father’s conduct that requires modification. Instead, it is Kaylee’s mental illness that is preventing reunification. There are several reasons for this. First, Kaylee has a very severe mental illness that was unknown at the inception of dependency proceedings and which took many months to diagnose. Most of the professionals working with Kaylee opine she presents one of the worst cases they have ever seen. Further, and undoubtedly the most significant obstacle to reunification, is the fact that Kaylee suffers from a disorder, whether labeled a thought disorder or bipolar disorder, that manifests itself in a delusion that father is sexually molesting her. There is also evidence that contact with father exacerbates her disordered behavior. Under the circumstances, it is not surprising that the Agency, as well as the juvenile court, would be stumped as to how to proceed.
In our prior opinion, we faulted the Agency for taking no action in the face of Dr. Carmichael’s diagnosis of a thought disorder and an obvious need for services. While at the six-month review hearing the Agency struggled to identify what services it could provide father, it also suggested it would be best to wait to identify appropriate services for father until completion of the physiological assessment. While awaiting the results of that assessment, the Agency provided father with access to a therapist to assist him in understanding Kaylee’s mental illness and referral to a parenting program for parents of mentally ill children, which was not available until the following January. These services were designed to address father’s need for education and training on Kaylee’s mental illness, and therefore were different than the counseling he previously had received on child molestation. The Agency did obtain the physiological assessment, which confirmed that Kaylee is mentally ill and identified medications that could help her obtain stability.
On a challenge to a reasonable services finding, father bears the burden of establishing that the Agency was unreasonable in its efforts to assist him in accessing services. Other than declaring the services unreasonable, he does not identify specific services the Agency could have procured for either him or Kaylee that would have alleviated her delusion. Moreover, the record reflects that Kaylee was in treatment under the Agency’s auspices and though she was progressing, she still maintained father was molesting her.
Father contends the agency did not make a good faith effort to develop and implement a family reunification plan. The record shows, however, that the Agency did attempt to identify and provide services for father. There are cases, and this appears to be one, where there are no services that will correct the problem, despite the best efforts of the Agency and parent. We cannot say on this record that the Agency’s efforts to assist father in reunifying with Kaylee were unreasonable.
DISPOSITION
The twelve-month review orders are affirmed.
WE CONCUR: Kane, J., Franson, J.