Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JD07-3076
Jenkins, J.
Petitioner J.A. (father) seeks an extraordinary writ to overturn the juvenile court’s decision to terminate reunification services he was offered pursuant to Welfare and Institutions Code section 361.5, and to set a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. Petitioner also seeks a temporary stay pending our decision to grant or deny his petition for extraordinary writ. We deny both the petition and the request for a stay for the reasons set forth below.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Factual and Procedural Background
On February 23, 2007, real party in interest, San Francisco County Department of Human Services (Department) filed a section 300 petition alleging that father’s daughter K.A. (born May 2001) suffered physical abuse by father and step-mother, as well as sexual abuse by her mother’s boyfriend while in mother’s care. According to the Department’s detention report dated February 23, 2007, K.A. came to school on February 21, 2007, with a red face, finger marks on her neck and jaw, a cut on her left cheek, swollen lips and bruising and cuts on the inside and outside of her lips. K.A. told the social worker that father choked her, scratched her face with his rings and “punched her square in the mouth.”
On February 28, 2007, the court ordered K.A. detained but granted father visitation. The Department’s social worker filed a disposition report on April 3, 2007. The disposition report stated K.A. was born in San Francisco and at some point mother and K.A. relocated to Pennsylvania, where mother had full custody of K.A. and father had occasional visitation. In September 2006, mother sent K.A. to live with father and asked father to assume custody because mother had difficulty coping with K.A.’s behavioral problems.
The disposition report also noted that in an earlier intervention, father reported K.A. was exhibiting sexualized behavior. The Department later discovered that K.A. was the subject of an investigation in Pennsylvania regarding alleged sexual abuse by mother’s boyfriend. The disposition report recommended that father complete a parenting class, learn appropriate discipline techniques, and undergo a substance abuse assessment.
Regarding the petition before the court, the disposition report states K.A. entered foster care with multiple medical problems due to long term neglect by mother, “presents with many behavioral concerns,” and has been referred for Fetal Alcohol assessment. It also notes K.A. had alleged sexual abuse by father. On this point, the report opined that K.A. is “confusing the historic sexual abuse, and attributing it to father here in San Francisco” because what K.A. reported is “word for word” what she previously told a school counselor had happened in Pennsylvania.
On May 16, 2007, at the conclusion of the disposition hearing, the court found by clear and convincing evidence that K.A. could not return home safely and declared her to be a dependent of the court. The court ordered that K.A. continue to reside in foster care and adopted the reunification requirements recommended by the Department.
On October 30, 2007, the Department filed a six-month review status report (6-month review). The 6-month review noted that “father has been cooperating well with [the Department] during his daughter’s out-of-home placement, [] is attending recommended services, has met with [] social workers when asked, and has maintained regular visitation with [K.A.].” Regarding K.A.’s foster placement, the 6-month review noted that K.A.’s foster placement has been “supportive and effective,” that foster mother was “highly attentive” to K.A.’s medical, dental and educational needs, and was also trying to bond appropriately with K.A.
Conversely, the 6-month review noted that father’s visits with K.A. had not gone well. The 6-month review stated that K.A. told the social worker and the foster parent that she does not want visits with her father. The 6-month review reported that K.A. displayed significant behavioral problems after father’s visits, and, as a consequence, father’s visitation was changed to one visit of 75 minutes in length per week at the Foster Family Agency office, supervised by a social worker with an interpreter in attendance as well. Father’s case plan, as set forth in the 6-month review, indicated that father was offered the following reunification services: referral to a substance abuse assessment; individual counseling/therapy to address appropriate parent-child disciplinary guidelines; a 20-hour parenting class; family therapy involving father and child; regular visitation between father and K.A.; and interpreter services for all supervised visits and therapy sessions.
The six-month status review hearing was continued several times in order to assess visitation and to complete mediation. The court issued its 6-month review findings and orders on March 11, 2008. The court ordered that K.A.’s continuing placement was necessary and appropriate. The court found that reasonable services had been provided to father to overcome the problems leading to the child’s initial removal. The court’s order continued reunification services for father and stated the permanent plan was for the minor to return home. Twelve month review was set for May 14, 2008.
Father did not appeal this order. (See Discussion, post.)
The Department filed a twelve month status review report (12-month review) on April 25, 2008. Regarding father’s situation, the 12-month review noted that “after a long period of excellent progress towards reunification, the situation took a dramatic and unfortunate turn.” Father had been “complying well with services” and visitation had been steadily increasing. However, “despite the successful visits, [K.A.] continued to express reluctance to reunify,” so it was decided to delay reunification until K.A. completed the current school year. In the meantime, father was arrested by San Francisco police on March 31, 2008, after allegedly stealing a bicycle. On April 2, the father was taken into the custody of the Immigration and Customs Enforcement office (ICE) on account of his undocumented immigration status. Father remained in ICE custody and was likely to be deported to Honduras.
The 12-month review stated that K.A. remains in the same foster home in which she has lived since March 2007. K.A.’s medical and dental needs had been addressed and her school performance had improved. K.A. “has a close connection with the foster parent,” who has “worked hard to help [K.A.] improve emotionally, behaviorally, medically and educationally.” The 12-month review also opined that in the event of father’s deportation: “Given the history of losses that K.A. has experienced, as well as the severe neglect and abuse that occurred while K.A. [was in mother’s custody], it seems advisable to maintain her in the current foster home until reunification occurs, rather than placing her with relatives as the father recently requested.” It also recommended that K.A. continue visitation “with M., father’s long-time partner, with whom K.A. is quite comfortable. The 12-month review recommended that K.A. remain in the same foster home, that up to six additional months of reunification services be provided to father, and that the matter continue to November 12, 2008, for the 18 month review.
The court held a twelve month review hearing on May 14, 2008. The court found that father’s compliance with the case plan was substantial. The court adopted the Department’s recommendation that six additional months of reunification services be provided to father and set the matter for an 18 month review in November, 2008.
Meanwhile, on May 16, 2008, the foster parents filed a petition for de facto parent status. In their petition, the foster parents stated they love K.A. and want to adopt her if father could not assume custody. Foster parents stated they were concerned about K.A.’s emotional health and reported that she has “a lot of anxiety and fear” associated with visiting father. Foster parents stated that K.A.’s emotional turmoil in association with visitation manifested in nightmares, potty accidents, vomiting, and angry outbursts. On March 6, 2008, foster parents were packing K.A.’s bag for a visit with father and K.A. stated “she did not want to live with her father because she was afraid that he would hurt her again.” Foster parents also declared that “father has made no attempts to contact K.A. by phone or by letter” after he was taken into custody on March 31st.
In May, 2008, a social worker with the foster family agency wrote to the court in support of the foster parents’ application for de facto parent status. The social worker apprised the court that K.A. spent only four months of her life with father and at times those four months were “scary and abusive.” The social worker opined that in K.A.’s time with foster parents she has become a “different child,” feels safe in the foster home and has bonded with her foster parents. On June 18, 2008, the court denied the foster parents’ petition for de facto parent status.
The Department filed an 18-month status review report (18-month review) on October 21, 2008. Regarding father’s progress, the 18-month review stated he was in ICE custody until August 2008, after which he was deported to Honduras. The 18-month review stated that K.A. went to visit her father once during his time in ICE custody, became anxious and threw up on the way to the jail, and asked not to visit him there anymore. Father returned to San Francisco during the week of October 13, 2008. Upon father’s return, K.A. expressed “reluctance regarding visitation,... wants it to take place at her [foster] home,... and [] no longer wants to be taken for unsupervised outings by the father.” Regarding K.A., the 18-month review noted that she was in the same foster placement, “is comfortable in this home, feels well cared-for by [foster mother], and states that this is the home in which she wants to remain.” The 18-month review recommended that due to the “disruption of [K.A.’s] behavior and emotional stability” caused by father’s visitation, it should be limited to once a month on a supervised basis while reunification services are in place.
The 18-month review also reported that in August, 2008, K.A.’s therapist wrote that K.A.’s relationship with her foster family “is very stable and she has developed an attachment with her foster mother [] and the family.” With respect to father’s arrest, the therapist opined K.A. “again feels a parent figure let her down” and that K.A. “needs to have the security of knowing that she will remain in [the foster] home.” Further, the 18-month review stated that a psychological evaluation of K.A. was completed by Dr. Michelle Limon of West Coast Children’s Clinic in November, 2007. This evaluation found that “K.A. experiences ‘stress and overwhelming feelings’ that are ‘more than she is capable of handling.’ ” K.A. told Dr. Limon she felt afraid “all of the time” and worries about being abandoned.
Additionally, the 18-month review included a report on K.A. by Dr. Alicia Lieberman prepared in September 2008. Based upon her review of case materials provided to her by the Department, Dr. Lieberman stated that “the history of maltreatment and neglect [] this child has endured have resulted in worrisome distortions to her personality development” as manifested in aggressive and sexualized behavior. She stated that father “has not been a predictable caregiver,” that K.A. “shows no strong emotional connection with him and no desire to resume their relationship.” Dr. Lieberman further opined that K.A. “has shown substantial improvement in her behavior since she has been living with [foster mother]. She stated further that foster mother is a “supportive, consistent, and knowledgeable caregiver who is committed to providing long-term care for [K.A.].” Dr. Lieberman stated adoption of K.A. by her foster mother was the “least detrimental placement.”
The 18-month review stated that “father has received a full 18 months of reunification services, but has been unavailable to the child for more than six months now, and was unable to continue his court-ordered services during that time. Due to the extended interruption to the reunification process and the impact of that on the child, reunification no longer appears the best plan to meet the child’s needs.” According, the Department recommended that services be terminated and a section 366.26 hearing be set to select and implement a permanent plan for the child.
On November 12, 2008, the court set a contested 18-month review hearing for November 26, 2008. The court also ordered three hours per week supervised visitation between father and K.A.
The Department’s addendum report dated November 26, 2008, described the progress of the resumed visitation. It stated that the visit on November 18 “went fairly well,” although by the final hour of the visit K.A. “was becoming silly and disruptive.” The foster mother reported that in the evening following the visit, K.A. displayed angry and aggressive behavior, and in recent weeks had experienced an increase in nightmares, “including themes of being kidnapped.” On November 26, 2008, the court continued the 18-month review hearing to February 2, 2009 and ordered that supervised visitation be continued.
The Department filed a further addendum report on January 27, 2009. The addendum report stated that ICE officials detained father on December 3, 2008, after the mother called ICE to report father’s undocumented status. Father was again deported back to Honduras and has not been heard from since. The addendum report states that “the ongoing long period of uncertainty for K.A. as her father receives continued reunification services is becoming increasingly difficult for the child to tolerate.” The Department recommended termination of reunification services.
On February 2, 2009, the court conducted the 18-month review hearing. Father, having just returned from Honduras, was present but did not testify. The only witness called at the hearing was Alan Botts, the Department’s caseworker for K.A. since August 2007 and author of the various status and addendum reports discussed above. Botts traced the trajectory of the case, explaining how the Department’s case plan evolved from one involving reunification to its present position of recommending termination of services and development of a permanent plan for K.A.
In this regard, Botts stated that circumstances changed in Spring of 2008. He explained: “We had services in place for reunification. They seemed to be going well, although the child continued to state very clearly and consistently that she did not want to reunify with the father even at that time, but we were trying to work with her to support the reunification happening. Then the father was arrested and taken into immigration custody around the 1st of April of 2008 and he became unavailable to continue the reunification services.” Botts related that father was deported in August 2008 and returned to San Francisco in October 2008. During the time from April through October, K.A. saw father only once at the county jail, and that visit was very traumatic for her. Botts stated that therapeutic visitation between father and K.A. resumed in October and November, but was again interrupted when father was detained by ICE at the beginning of December 2008 and deported for a second time. Botts stated father had just arrived back from Honduras.
These circumstances led Botts to opine that services to father should be terminated and a permanent plan for K.A. developed. Botts noted that K.A. is an “emotionally fragile” child who had been through “enormous trauma and separation and loss of attachment figures,” and father’s absence came “at a very sensitive time and a delicate time for this child in that reunification.” K.A., Bates said, is a survivor of sexual abuse, severe neglect, physical abuse, and had suffered “multiple losses and changes of caretakers and attachment. Botts explained that “from a clinical standpoint she seemed to be desperately in need of strong attachment in her life.”
In reaching his opinion, Bates said, he consulted other clinicians, including Dr. Nancy Atkinson, K.A.’s therapist since June 2007. Dr. Atkinson confirmed “the emotional fragility of this child, the serious behavior challenges that she can present, [and] her high need for stability and a sense of permanency.” Botts also consulted with Dr. Alisia Lieberman, co-coordinator of the Child Trauma Research Project, and a leading expert in child trauma. Dr. Lieberman opined that because of the “nature of the stressors she has experienced,” there was a high probability K.A. would experience serious problems in the future, such as engaging in “high risk behaviors during adolescence.” In K.A.’s case, Dr. Lieberman did not think reunification was desirable because K.A. presented as a very high risk child across a range of indicators, and because K.A. does not seem to have a strong attachment to her father. In Dr. Lieberman’s view, K.A. is fond of her father but the attachment figure in her life is her foster mother, with whom she is forming a “strong emotional bond and a parent child emotional connection.” Dr. Lieberman feared that if the bond between K.A. and her foster mother was severed at this juncture, “the child would feel seriously unprotected,” would suffer yet another loss of a parent figure and might lose “the ability to trust that adults will take care of her.”
Botts stated that prior to his incarceration in April 2008, father was provided with reunification services, including individual therapy for father, a parenting class for father, family therapy for father and K.A., and visitation between father and K.A. Further, Botts opined that returning K.A. to the custody of her father would involve a substantial risk of detriment to her because K.A. had formed a stronger attachment with her foster mother than her father, was at a “very high risk if her needs are not taken care of,” and is presently in a “loving... caring and capable home.”
At the conclusion of the hearing the court found that “return of the child to her parent would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being.” The court based its finding of detriment on father’s failure “to be available for parenting of his child for significant periods of time, his failure to consistently visit, failure to form a formal attachment, failure to offer her stability and placement and provide consistent parenting.” The court also found no “substantial possibility of return of this child to her parents because 18 months of detention has elapsed. [¶] Reasonable efforts have been provided or offered to the parents which were designed to aid them in overcoming the problems which led to the initial removal and continued custody of this child.” Further, the court ordered that “reunification services be terminated for the father and that the matter be continued... for a selection and implementation hearing on June 3, 2009.” On February 3, 2009, father filed a notice of intent to file a writ petition.
Discussion
A. Adequacy of Reunification Services
Father contends the reunification services provided to him were inadequate. In particular, father asserts the Department failed to institute family therapy upon assuming jurisdiction and failed to provide such therapy between April 2007 until November 2007. Further, father asserts he was referred to a “regular parenting class” rather than one “with a specialization in children who had been sexually abused.” Moreover, father asserts that after he returned from Honduras following his initial deportation, “the therapeutic family therapy [he was provided] seemed to be working. If that therapy had been in place in April 2007, the child would have been able to develop the strong relationship necessary to guarantee the reunification.” On this basis, father contends “[t]here was never an attempt to provide him with the tools to help him reunify with his daughter.”
With regard to the sufficiency of reunification services, “fact-specific arguments which ignore the substantial evidence standard of review are not appropriate. (Citation.)” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) Rather, “our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered. (Citations.)” (Ibid.) “We construe all reasonable inferences in favor of the juvenile court’s findings regarding the adequacy of reunification plans and the reasonableness of the [Department’s] efforts.” (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) Also, we resolve conflicts in favor of the challenged findings and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Moreover, “[s]ervices will be found reasonable if the Department has ‘identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult (such as helping to provide transportation).’ ” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) However, services will rarely be perfect. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1159; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) “ ‘The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ ” (Melinda K., supra, 116 Cal.App.4th at p. 1159, quoting In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Turning to the merits of father’s claim of inadequate services, we first note it is predicated in part upon the Department’s alleged failure to provide family therapy between April 2007 and November 2007. However, in its six-month review orders and findings issued on March 11, 2008, the court found by clear and convincing evidence that the parent had been provided or offered reasonable services designed to aid the parent in overcoming the problems leading to the initial removal and continued detention of the child. Father did not timely appeal the court’s six-month review order and therefore has waived the opportunity to complain that the plan as ordered by the court was unreasonable. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811 [noting that “[a] challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed” and concluding petitioner had waived challenge to the reunification plan]; accord In re Anthony P. (1995) 39 Cal.App.4th 635, 641].)
In any case, Father bases his assertion that he was not provided family therapy from April through November 2007 on a misinterpretation of Botts’ trial testimony At trial, Botts stated “family therapy was not in place” until November 2007, but qualified his statement by adding “there were clinical considerations for that.” Our review of the record shows that, in fact, family therapy was in place around April 2007. The record also shows Botts’ statement referred to the fact that clinical considerations required a change in manner in which those family therapy services were provided, not to the initiation of such services.
The service plan at the six-month review stated that father had been ordered to participate in family therapy and had attended “several therapeutic visits/family sessions with Dr. Nancy Atkinson, K.A.’s individual therapist.” This is corroborated by Dr. Atkinson’s letter of October 8, 2007, in which she states that she had seen K.A. since April 2007 “for approximately 25 sessions. I also have seen [K.A.] with her father in family therapy for approximately five sessions. Sessions are 45 minutes in length.” Significantly, the six-month review stated that K.A.’s “sensitivity to increased contact with her father has required that contact be limited to the child’s pace.” Therefore, the six-month review stated that “Dr. Atkinson’s work would [in future] be limited to individual therapy for the child,” and “a referral for an additional therapist to work with the family” had been lodged. This referral is subsequently referenced in the service plan included in the 12-month review dated May 14, 2008. The 12-month review noted that father, his partner, and K.A. were referred to family therapy with Rosemary Martinez of the Southeast Child/Family Therapy Center on November 30, 2007, and that father “participated well in the family therapy for several sessions in February and March 2008” until he was taken into custody on March 31, 2008.
In sum, as we noted above, the record demonstrates that family therapy sessions were provided to father early in the Department’s intervention. Moreover, the record establishes that the referral in November 2007 was not the beginning of family therapy but reflected a change in direction of that therapy, based on clinical considerations that K.A.’s individual counseling should be separate and apart from her family counseling and different counselors should be involved in each.
Lastly, we note that the problem here is not that services were inadequate: The record firmly establishes that adequate services were provided to father during the reunification period to address the principal problem that led to K.A.’s removal from the home—father’s physical abuse of K.A. However, due to father’s extended absences, he was not able to fully participate in and benefit from the services offered to him. We conclude the record contains substantial evidence supporting the trial court’s finding that services were adequate. (See In re Alvin R, supra, 108 Cal.App.4th 962, 972-973 [“Services will be found reasonable if the Department has ‘identified the problems leading to the loss of custody, offered services designed to remedy those problems [and] maintained reasonable contact with the parents during the course of the service plan....”].)
B. Additional Services
Father also contends that instead of terminating services the court should have granted him an additional six months of services pursuant to section 366.22, subdivision (b) because father’s incarceration was due to his undocumented status.
As recently amended (Stats.2008, c. 482 (A.B.2070), § 3.), section 366.22 provides in part that “[i]f the child is not returned to a parent... at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent... recently discharged from incarceration... and making significant and consistent progress in establishing a safe home for the child’s return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian.” (§ 366.22, subd. (b) [italics added].)
We review a trial court’s order regarding reunification services for abuse of discretion. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.) For a court to abuse its discretion in this context, its determination must be arbitrary, capricious, or patently absurd. (In re Mark V. (1986) 177 Cal.App.3d 754, 759.) We should reverse the lower court’s order only if after reviewing all the evidence in the light most favorable to the trial court’s decision, we conclude that no judge reasonably could have arrived at that decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)
Here, the record does not support a finding by clear and convincing evidence that “the best interests of the child would be met by the provision of additional reunification services to a parent.” (§366.22, subd. (b).) In fact, the evidence was to the contrary. The testimony and opinions of caseworker Botts, K.A.’s therapist Dr. Nancy Atkinson, and Dr. Alisia Lieberman, a leading expert in child trauma, all urged that it was time to terminate reunification and plan for permanency. Botts stated K.A. had experienced sexual abuse, severe neglect, and physical abuse, as well as “separation and loss of attachment figures.” From a clinical standpoint, according to Botts, K.A. desperately needed strong attachment in her life. Dr. Atkinson confirmed K.A.’s emotional fragility and her deep need for stability and a sense of permanency. Dr. Lieberman was against continued efforts at reunification because the attachment figure in K.A.’s life is her foster mother, with whom she is forming a “strong emotional bond and a parent child emotional connection.” Dr. Lieberman feared that if the bond between K.A. and her foster mother was severed at this juncture, “the child would feel seriously unprotected,” would suffer yet another loss of a parent figure and might lose “the ability to trust that adults will take care of her.” In sum, based on this record we cannot say the trial court abused its discretion when it declined to order additional reunification services.
Disposition
The request for stay is denied, and the petition for extraordinary writ is denied on the merits. The decision is final in this court immediately. (California Rules of Court, rule 8.264(b)(3).)
We concur: Pollak, Acting P. J., Siggins, J.