Opinion
A153057
03-13-2018
Jessica B., Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Respondent; SONOMA COUNTY HUMAN SERVICES DEPARTMENT, et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 3052-DEP)
Jessica B. (Mother) petitions this court for extraordinary relief from dependency court orders terminating her family reunification services and setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for her 15-year-old daughter H.S. (Minor). Mother contends the Sonoma County Human Services Department (Department) did not provide her reasonable services or reasonable visitation. We deny the petition.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Dependency Case
In 2009, Minor, then six years old, was removed from Mother's care and declared a dependent of the court because Mother was physically abusive and had given Minor a black eye. Mother also had a history of substance abuse. The Department provided Mother family reunification services including referral to an anger management/impulse control group. Mother worked with a therapist on issues specifically related to anger and anxiety management. Minor was eventually returned to Mother, and the dependency proceeding was dismissed after Mother had received over 17 months of services.
Current Dependency Case
In August 2016, the Department filed a new dependency petition alleging Mother physically abused Minor, then 14 years old, over the previous several months. The Department alleged Mother dragged Minor by her hair, hit her and caused bruising all over her body, punched Minor such that she sustained two black eyes, and strangled her. It was further alleged that Mother had a history of substance abuse and mental health problems, and that Mother had recently relapsed by using alcohol and Adderall (which was not prescribed for her). Mother denied that she physically abused Minor but admitted that she recently relapsed with drugs and alcohol and had major depression.
Minor's younger half-sibling was the subject of a dependency petition at the same time, but according to the Department, he reunified with his father in 2017. His case is not included in Mother's petition.
The next month, the dependency court found the petition true and declared Minor a dependent of the court. Mother was given family reunification services, although bypass of services was available under section 361.5, subdivision (b).
By the time of the jurisdictional hearing, a social worker had been in contact with Mother, and services had been coordinated with Mother's therapist and a substance abuse treatment coordinator. Mother was given a referral and payment authorization for in-home parenting classes and for assessment and outpatient treatment at the Drug and Alcohol Addiction Center (DAAC). Mother was given bus passes, and the social worker arranged for her to attend Minor's medical appointments. During weekly visitation, an incident occurred with Minor's half-brother, which required supervised visitation "until a pattern of safe visits" was established, and the Department reported "further incidents may require additional adjustments."
Six-Month Review
In March 2017, the Department recommended continuing reunification services for six months. The Department reported that Mother was working on her recovery and relapse prevention programs at DAAC, she was attending individual therapy and physical therapy for her traumatic brain injury, and Mother and Minor were participating in family therapy. Weekly visits were supervised "due to the continued arguments and conflicts reported." Minor cancelled a number of visits because she felt unsafe and unsupported by Mother. As a result, the social worker arranged visits in a therapeutic setting at family therapy.
It was noted that the Department had referred Mother to neurocognitive physical therapy to address her traumatic brain injury. The onset and nature of the injury were not described. At the contested hearing, Mother's counsel reported that she sustained a skull fracture and brain injury very early in the case.
Mother's case plan required her (1) to stay free from illegal drugs, (2) to show an ability to understand Minor's feelings and give emotional support, and (3) to comply with medical and psychological treatment. For the second objective of her case plan, Mother was to "repair her relationship" with Minor and "provide emotional support, understanding, and acceptance" of Minor's expressions. The Department reported: "This Case Plan objective is closely related to [Mother's] anger management and reactivity. She reacts to the strong emotions she feels when interacting with her children, and does not allow them to express themselves, instead of responding to their needs and allowing them to express themselves safely. . . . [¶] This will continue to be an area of focus for [Mother] to work on in her individual therapy, parent education work . . ., and in family therapy with" Minor. Mother struggled with this objective, and she continued to exhibit negative reactions and comments during visits with Minor. For the third objective of her case plan, Mother was to "address anger management through activities such as Karate, counseling, 12 steps program and religious activities."
The Department concluded Mother "still ha[d] a great deal of work to do to change her concerning behaviors," and she had to learn to accept her own responsibility in her relationship with Minor. Mother continued to place her needs before those of Minor.
At the six-month review hearing in March 2017, the dependency court adopted the Department's recommendations and continued reunification services for Mother. The court found Mother's progress toward alleviating or mitigating the causes necessitating placement was minimal.
Minor Petitions to Terminate Services
In May 2017, Minor requested to terminate Mother's reunification services. Minor alleged that family therapy was not going well because Mother was unable to focus on her issues and denied past abuse. Minor alleged that forced contact with Mother caused her constant distress. A hearing on the matter was scheduled for July 7, 2017, but it appears from the record that the parties resolved the matter and vacated the hearing date.
Twelve-Month Review
In September 2017, the Department recommended the court terminate reunification services for Mother and set a section 366.26 hearing for Minor. Based on the family therapist's recommendations and social worker analysis, the Department recommended that return of Minor to Mother's care would be detrimental to her safety and well-being.
The Department reported that Mother had struggled during the previous six months with keeping her job and meeting her case plan goals. After an incident in a family therapy session in April 2017, Minor did not feel safe in family therapy. The therapist recommended that visits stop until Mother was "able to manage her anger and listen to [Minor] in a calm manner." Therapy resumed in August 2017. In her self-assessment, Minor felt that she needed to move forward with the adoption process so she could get her life settled down.
The Department further described the incident, "During a family therapy session with [Minor, Mother] became so verbally hostile and physically enraged that the therapist . . . asked her to stop yelling at [Minor], and when she did not stop, he had to end the session and escort [Minor] outside to a safe place." Minor expressed fear of Mother's temper and her emotional instability.
The Department reported that Minor was a resilient survivor of physical and emotional abuse, but it was apparent that Mother's behavior had not changed during the dependency case. She had not made substantial progress in her anger management and parenting skills goals of her case plan.
In an addendum report filed in November 2017, the Department reported that Mother was continuing to cause Minor a great deal of mental and emotional trauma in the form of emotional abuse via negative emails and by verbally attacking her in family therapy sessions.
Contested Hearing
A contested hearing was held over two days in November 2017. Minor testified outside the presence of Mother. She had resumed attending family therapy with Mother in August 2017, and in a recent session, Mother became upset and said very hurtful things to Minor. Minor did not want to continue therapy with Mother and wanted six months or a year with no communication from her at all.
The social worker on the case testified Mother had made great progress on her sobriety and recovery. However, she had not made much progress on the primary goal of meeting her child's needs. Mother had been referred to an anger management class ("Handling Anger, Minding My Child," which Mother completed). But she continued to display a great deal of emotional and verbal abuse toward Minor. In April and then again October, Mother had verbally attacked Minor during therapy to the point that the therapist (a different therapist on each occasion) had to intervene on Minor's behalf. The social worker believed it was in Minor's best interest to have no contact with Mother to allow Mother to work on her emotional regulation and anger management.
Mother had also indicated she wanted to work on anger management on her own through yoga and with her individual therapist. The social worker did not recall Mother asking for any additional referrals for anger management classes or treatment.
The social worker's belief that Mother still had an anger management issue was based on his discussions with the family therapists who had seen Mother's interactions with Minor in family therapy, Mother's emails sent to Minor, and his own experience of Mother's hostility, frustration, and personally derogatory attacks directed at him.
In cross-examination by Mother's counsel, the social worker testified that he believed the anger management class was a four-week course in June, but he was not sure about when it was exactly. He did not refer her to further anger management classes because there were mental health issues as well as anger issues, and he focused on individual therapy for Mother. The social worker was aware that Mother suffered a traumatic brain injury (TBI) "early on in this case," and he "wanted to make sure to give her support[] for the brain injury" as it had impacts on her case plan. Mother reported that the TBI could have an impact on her emotional lability. The social worker referred her to Neuropsychological Associates for individual counseling. He explained that the emotional-regulation issues were the ultimate focus of the welfare case. Mother had started taking psychotropic medication recently, but "at the beginning she did not want to." The social worker gave Mother a separate referral for neurocognitive physical therapy. He testified Mother always had an issue with regulating her emotions, and it was not just a function of the TBI.
The social worker explained that Mother had been working with another individual therapist but she wanted something for the TBI, so he referred her to combined individual therapy with Neuropsychological Associates.
The dependency court then asked whether the social worker was able to discern any difference in Mother's ability to regulate emotions after the brain injury versus before, and he responded, no, the same pattern existed before the brain injury. However, the social worker's assessment was based on reading reports; he was assigned to her case after Mother sustained the injury.
Mother testified that her mental health diagnosis was "PTSD, OCD and Bipolar 2." She had these diagnoses for more than 10 years. With her individual therapist, Mother worked on dealing with anger through meditation, yoga, art, prayer, and taking time outs. She testified that the TBI "basically exacerbated the problems that I have already had." Mother noted that her intensive outpatient DAAC program (of which she attended 55 out of 160 sessions) included anger management and parenting curricula.
Mother testified that being under the influence was a trigger for her anger, and she disagreed with the assessment that she continued to have anger management problems even after she became sober in September 2016, although she said she "struggled." Among her services, Mother received assistance from a parent mentor at the California Parenting Institute (CPI). In redirect, Mother was asked whether she asked for additional services from CPI. Mother responded that she asked for accommodation in visits with her son (Minor's half-brother, who is not a subject of this appeal), but she did not mention asking for help for anger management or TBI.
Mother testified that she had not handled her anger well in the April 2017 family therapy session, but she "coped and managed it very well" in the October 2017 session. The court then asked Mother whether from her perspective, she had said anything hurtful to Minor in their family therapy session in October 2017. Mother responded that she had.
Decision
Before announcing its decision, the dependency court observed, "The bottom line is this case is really replete with services that the department has offered, that [Mother] has had the opportunity to participate in . . . [A]nd Sonoma is blessed with having really a plethora of services, and mother's had the opportunity to take advantage of those not once, [but] twice." Specifically, the court found that Mother received services for anger management, which Mother had learned from.
The court concluded it would be detrimental for Minor to have contact with Mother and adopted the recommendations of the Department. The court stated, "[I]n some ways, [Minor's] been through far too much, and I think any judge looking back over what she's been through is going to have to be somewhat horrified by what—by what she's—by what the system in many ways has required she go through." The court was "really . . . sympathetic" to Mother, noting she had "tried and tried again." The court stated that the Department, too, had "tried and tried again, and I can't imagine . . . any court looking over these cases, these two files [referring to the earlier dependency case in 2009 and the current case], and saying that everyone hasn't really done their best here. [¶] There were enormous services provided, [and] mom made really an enormous effort," but the court could not order Minor to have visits with Mother.
A hearing under section 366.26 was scheduled for March 7, 2018. Mother filed a timely petition for writ of mandate, and we stayed the section 366.26 hearing by order dated February 5, 2018.
DISCUSSION
Mother contends the dependency court erred in terminating reunification services because the Department (1) did not provide her reasonable reunification services tailored to her needs and (2) did not provide reasonable visitation. We are not persuaded. A. Reunification Services
"To support a finding that reasonable services were offered or provided to the parent, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult. . . .' [Citation.] Reunification services should be tailored to the particular needs of the family. [Citation.]
" '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.' [Citation.] The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] If reasonable services are not provided or offered to the parent, the court is required to continue the case for the period of time permitted by statute. . . .
"We review a reasonable services finding to determine if it is supported by substantial evidence. [Citation.] We consider the evidence in the light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] The burden is on the petitioner to show that the evidence is insufficient to support the juvenile court's findings." (In re A.G. (2017) 12 Cal.App.5th 994, 1001.)
Mother argues the services she received were unreasonable because the Department did not provide her sufficient anger management services and did not adequately account for her traumatic brain injury. The Department responds that Mother should be precluded from challenging the reasonableness of her services now because she failed to raise any concerns about her services at either the dispositional hearing or the six-month hearing (although she was represented by counsel) when the court could have addressed such concerns. (See In re Christina L. (1992) 3 Cal.App.4th 404, 416 ["If Mother felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan"]; Los Angeles County Dept. of Children and Family Services v. Superior Court (Charles S.) (1997) 60 Cal.App.4th 1088, 1093 ["a parent [may not] wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing"].) We agree with the Department that Mother should not have waited more than 12 months before raising any concerns about the adequacy of her services with the dependency court.
In any event, substantial evidence supports the dependency court's finding that the Department provided Mother reasonable reunification services. The record shows the Department identified the problems leading to the loss of custody—physical abuse of Minor and Mother's substance abuse and mental health issues—and offered Mother services designed to remedy those problems through family therapy for Minor and Mother, individual therapy and neurocognitive physical therapy for mother, frequent face to face meetings with mother to address her concerns, recovery and relapse prevention programs at DAAC, and an assigned parent mentor from CPI. The Department made reasonable efforts to assist Mother in areas where compliance proved difficult by providing family therapy when supervised visits were upsetting to Minor, offering Mother the additional four-week course on anger management, and focusing on the objective of her case plan that Mother struggled with ("show an ability to understand Minor's feelings and give emotional support") through her individual therapy, parent education work, and family therapy.
The DAAC program included courses on anger management and parenting, and Mother was provided a four-week course on anger management.
As the dependency court found, "this case is really replete with services that the department has offered, that [Mother] has had the opportunity to participate in," "not once, [but] twice." The court found the Department had "tried and tried again, and I can't imagine . . . any court looking over these cases, these two files [referring to the earlier dependency case in 2009 and the current case], and saying that everyone hasn't really done their best here. [¶] There were enormous services provided . . . . We agree with the dependency court and therefore conclude substantial evidence supports its finding that the Department provided reasonable reunification services.
We reject mother's contention that the reunification services were inadequate because the Department did not provide a reasonable opportunity to ascertain appropriate services to address anger management in light of Mother's mental health conditions. Mother received individual therapy, her DAAC program included an anger management component, and she received a separate four-week course on anger management. We cannot say the Department's services were unreasonable under the circumstances.
Mother also argues the Department did not adequately account for her traumatic brain injury. But the record shows that the Department referred her to Neuro-psychological Associates for individual counseling and gave her a separate referral for neurocognitive physical therapy. Thus, the Department did take her TBI into account. Moreover, Mother testified that the TBI "basically exacerbated the problems that [she] . . . already had." In such circumstances, further services to address the problems Mother already had—substance abuse, mental health issues, difficulty managing anger—would reasonably account for the TBI. Mother claims her "cognitive delays" from the TBI "could impact her processing of information," but she cites no medical information in the record to support this claim. On this record, we will not disturb the dependency court's implicit finding that the Department adequately considered Mother's TBI in providing her services. B. Visitation
Recall that Mother was eligible for bypass of services because she had physically abused Minor in 2009 and received anger management services then. As counsel for Minor argued, Mother's attempt to attribute her current anger management issues to her recent brain injury appeared disingenuous since "we've been here before for the same reason. She has been angry and abusive all of [Minor's] life." --------
"Visitation is a necessary and integral component of any reunification plan. . . . [¶] It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. [Citations.] . . . [T]he parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation." (In re S.H. (2003) 111 Cal.App.4th 310, 317, fns. omitted.)
Mother contends the court in this case improperly abdicated its discretion to determine whether any visitation occurred at all, citing In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.). There, five-year-old Hunter was removed from his mother. A few months later, the mother was incarcerated on charges unrelated to child-rearing, and she maintained contact with Hunter while she was in prison. After about a year in prison, the mother was released. Around the same time, her reunification services were terminated, and the court ordered the child and family services agency to set up visitation for the mother " 'as can be arranged.' " (Id. at pp. 1500-1501.) The mother tried to visit Hunter, but he refused almost all contact with her and refused to attend joint therapy. At a hearing about 15 months after reunification services ended, the mother asked the court to change its visitation orders to enable her to get joint therapy with Hunter, but the court refused. At another hearing 10 months later, the mother again requested visitation or joint therapy, and the court did not respond to this request. Finally, the mother filed a section 388 petition seeking to reinstate reunification services, which the court denied. (Id. at pp. 1502-1504.)
On appeal following the termination of the mother's parental rights, the reviewing court found it was error for the lower court to allow its visitation order to go unenforced "simply because Hunter continued to refuse any contact with his mother." (Hunter S., supra, 142 Cal.App.4th at p. 1505.) The appellate court noted that the mother "consistently raised the issue of the juvenile court's failure to enforce its visitation order for over two years," but "received no assistance in response." (Ibid.) The court acknowledged that Hunter refused to visit with his mother, but concluded, "Even under such admittedly problematic circumstances, absent a finding of detriment it is incumbent on the juvenile court to discharge its duty to ensure the parent's right of visitation is preserved, under conditions consistent with the child's well-being." (Id. at p. 1508.)
Hunter S. is distinguishable. Here, Mother was not denied visitation simply because Minor refused any contact with her. To the contrary, Mother was immediately provided weekly visits, which then had to be supervised "due to continued arguments and conflicts," and later had to be replaced with family therapy because Minor felt unsafe and unsupported by Mother. The record shows that there was a family therapy session in April 2017 during which Mother became so "physically enraged," the therapist had to intervene. Mother agreed her anger on that occasion would have scared Minor. It was only after this incident and the therapist's recommendation that visits stop until Mother was "able to manage her anger and listen to [Minor] in a calm manner" that family therapy ceased for a brief period. The record further shows that Minor visited Mother in July 2017 and family therapy resumed in August 2017. This is not at all like Hunter S., where the mother consistently requested visitation for two years and received no response from the court.
Hunter S. only requires the dependency court "to ensure the parent's right of visitation is preserved, under conditions consistent with the child's well-being." (Hunter S., supra, 142 Cal.App.4th at p. 1508, italics added.) We cannot fault the Department for allowing Minor not to attend family therapy immediately after the April 2017 incident. Moreover, the dependency court found at the contested hearing in November 2017 that it would be detrimental for Minor to have contact with Mother. Had Mother gone to court earlier and asked for enforcement of visitation (as the mother did in Hunter S.), it appears likely the court would have found such forced visitation was detrimental to Minor. In sum, Mother's reliance on Hunter S. is misplaced. We see no error in the provision of visitation here.
DISPOSITION
The petition for extraordinary writ is denied and the stay of the dependency court's section 366.26 hearing is lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.