Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Stephen Marpet, Commissioner., Super. Ct. No. CK65183.
Emma Castro, Ellen L. Bacon and Linda A Simmons, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Navid Nakhjavani, Deputy County Counsel, for Real Party in Interest.
EPSTEIN, P.J.
By petition for writ of mandate, father Jose S. challenges the juvenile court order terminating reunification services and setting a permanency planning hearing for his child, Jose. He claims the court erred in finding reasonable reunification services were provided to him, and that under the circumstances, the court should have exercised its discretion to extend family reunification. He also claims there was no substantial evidence to support the court’s finding that returning the child to him would create a substantial risk of detriment. We conclude there is no error and deny the requested relief.
FACTUAL AND PROCEDURAL SUMMARY
In August 2008, a dependency petition (Welf. & Inst. Code, §300) was filed on behalf of newborn Jose, alleging that in 2006, father had inflicted blunt force trauma on Jose’s then one-year-old half sister, causing serious physical injury, and that mother failed to protect the child. Jose’s two half sisters and his sister were dependents of the juvenile court based on this same incident. Reunification services had been ordered for the parents with respect to the siblings’ dependency case, but in September 2008, the court terminated family reunification services and set a permanency planning hearing pursuant to section 366.26 for them.
All statutory references are to this code.
Jose was adjudicated a dependent in February 2009. Pursuant to a disposition case plan, the court ordered each parent to participate in weekly individual counseling with a licensed therapist or therapist approved by the Department of Children and Family Services (DCFS) to address case issues. Mother’s counseling was to include child abuse, child protection, and codependency. Father’s counseling was to include child abuse; he also was to attend an anger management program.
The court continued the older children’s section 366.26 hearing for an update on the parents’ progress in therapy and visits. With respect to the older children, the court ordered the parents to participate in a program of counseling as directed by DCFS, ordered the parents “referred for low cost or no cost” counseling, and ordered individual parenting counseling at a DCFS approved facility. DCFS was ordered to assist the parents “in enrolling in individual counseling with an appropriate licensed therapist to address what is detailed in the disposition case plan.” DCFS also was to make sure the therapist received copies of the DCFS reports and sustained petitions “for appropriate background information as to the therapy.”
The March 25, 2009 report with respect to the older children indicates the social worker left father a message advising him of three places to call for individual counseling with a licensed therapist. Father later told the social worker that he could not afford to pay for classes and that it was a waste for his money to be spent on counseling.
In August 2009, the social worker reported that the parents’ visits with Jose were consistent and appropriate, but father had recently missed several visits. Father had completed a substance abuse program and received general counseling with respect to substance abuse, although the social worker noted substance abuse was not one of father’s problems. Father had not enrolled in individual counseling to address the case issues, despite the social worker’s referrals to low-cost community services with a licensed Spanish-language therapist who had no wait list. Jose was reported to be doing well in the home of his paternal great aunt. DCFS recommended termination of family reunification services with respect to Jose.
According to the social worker’s October 2009 report, she provided mother and father with two additional referrals for individual counseling with a Spanish-speaking licensed therapist on August 4, 2009. Father began individual counseling and anger management classes that month. The social worker had not yet received a report from the therapist. The parents were scheduled for daily one-hour visits with Jose and his sister, but they missed some visits.
Father’s therapist provided the social worker with a report on January 7, 2010, indicating father was attending weekly sessions regularly. According to the therapist, father continued to vehemently deny the allegations pertaining to his case while externalizing blame to others. Father also “‘has been willing to discuss shortcomings and appears motivated to make all the necessary corrections and adjustments as a means to become a functional parent.’” Father was an active participant in the anger management program.
On January 13, 2010, the social worker discovered that father’s therapist is not a licensed therapist. The social worker sent father a new list of referrals for low-cost Spanish-speaking licensed therapy at which the therapist had availability. Father informed the social worker that none of these referrals would work for him because of scheduling issues or inadequate proficiency in Spanish. The social worker suggested that father make a special arrangement with his employer so that he could complete the court-ordered counseling.
In a last minute information for the April 23, 2010 review hearing, DCFS reported that father had continued seeing his unlicensed individual therapist while on a waiting list for another agency with a licensed therapist. At the hearing, father called his therapist, Alfredo Lozano, who had seen him for 26 sessions of individual therapy, beginning in August 2009. Mr. Lozano had been employed at Aztlan Family Clinic for 19 years. Although not licensed by the State of California, he has a master’s degree in drug and alcohol counseling, and has been certified by the court probation department as a domestic violence facilitator. He was aware the court had sustained the allegation that father inflicted major abdominal trauma on one of his children, and for purposes of the therapy, he assumed it to be true. He acknowledged that father continued to contest the allegations of child abuse, but noted that a high percentage of individuals who have been found to have committed domestic violence or child abuse initially refuse to accept responsibility for their actions. “As they go through the course of counseling sessions, eventually they learn to take responsibility for the way they think and feel in that, so it becomes a process.” A large percentage of the therapy time was spent discussing the incident, but father insisted he never put his hands on the children. The court confirmed that three and one-half years later, father “still clings to the position [that] he did not do it, faced with testimony by his children, stepchildren, and the sustained petition; is that right?” Mr. Lozano said that was correct.
Asked to assess father’s risk for future behavior of the type that led to the dependency allegations, Mr. Lozano replied: “He has shown a great deal of remorse and reverence to be able to understand the damage that the children experience as a result of being removed from their environment-from the home environment. I will describe to you that it is the chances of [father], if [father] was found guilty, the chances of reenacting, committing another act of violence, will be less than moderate.”
Mr. Lozano explained he was helping father develop coping mechanisms to deal with stress, including relaxation skills. He felt father had improved his self-esteem and appeared to have a greater “sense of respect for the norm of others, including society.” He also explained he had worked with father on appropriate ways to modify his children’s behavior. Mr. Lozano found father did not understand that children are egotistical and do not perceive things, and believed father needed to learn to detach himself, “to remove himself physically or ask somebody else to take over.” If reunification were to take place, Mr. Lozano contemplated it would be in a period of three months.
Father testified that he had seen five or six therapists. All of them were referrals from the social worker. After he began attending therapy with each of these therapists, the social worker would inform him that the therapist was not licensed. Father said he had learned from his individual counseling how to be a better person, how to raise children, and how to treat children. In his anger management class he learned that if he’s upset he should “get out of the problem, withdraw.” He learned that appropriate discipline for young children included timeouts, taking away favorite toys, and not letting them play. He continued to insist that he did not commit “the act” that the court found to be true. He testified that he and mother had separated in hopes that mother might have the children returned to her care.
Mother testified that she would not allow father to visit with the children except with an approved monitor. Asked if she believed father had harmed her daughter, mother said no.
Father’s counsel argued that father had not received adequate reunification services because he was not referred to licensed therapists who could meet his needs. Counsel also asserted father had done what he could to comply. The court agreed that father had participated in services, but concluded he had not made the necessary progress.
The court found mother and father had been given reunification services, and were in partial compliance with the case plan, but also found there was no likelihood they would reunite with Jose, and that there continued to be a substantial risk to Jose if he were returned to his parents’ care. The court terminated reunification services and set a permanency planning hearing. Father seeks review of this order.
DISCUSSION
I
Father argues there was insufficient evidence to support the court’s finding that reasonable services were provided to him. If, at a review hearing pursuant to section 366.21, subdivision (e), the court concludes that reasonable reunification services have not been provided to a parent, “the court shall continue the case to the 12-month permanency hearing.” (§ 366.21, subd. (e).) “The adequacy of reunification plans and the reasonableness of the DCFS’s efforts are judged according to the circumstances of each case. [Citation.] The DCFS is required to make a good faith effort to develop and implement a family reunification plan. [Citation.]” (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554.) The record should show that DCFS identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parent during the reunification period, and made reasonable efforts to assist the parent in areas where compliance was difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
Viewing the record in the light most favorable to the court’s finding (In re Heather A. (1996) 52 Cal.App.4th 183, 193), we find ample evidence that reasonable services were provided.
It is helpful to look at this case from its origin, when the initial dependency case was filed with respect to Jose’s older siblings. Father was ordered to obtain individual counseling in the disposition of the case in March 2007. In early April of 2007, father complained of difficulty finding counseling which would fit into his work schedule, and told the social worker that there was a four-month waiting list at the location where mother was obtaining her counseling. The social worker sent father more referrals that month. In June, mother told the social worker she had placed father on several waiting lists of three to five months, but he had difficulty finding a program because of his work schedule. The social worker was told that “[f]ather is able to do counseling on Saturdays and Sundays but there is no counseling available for those days and also he is not able to afford it.”
Father started individual counseling with therapist Shirley Allen at Lawndale Medical & Mental Health Services in late August 2007. Yet as of late February 2008, he had attended only eight sessions. As of May 2008, he had attended a total of 13 sessions. In July 2008, Ms. Allen (who also was counseling mother) wrote that the couple had attended a total of “thirteen sporadic meetings. They were advised that they could attend weekly sessions. [¶] They have denied all allegations. I recommend that this family not be reunified.”
As of August 9, 2008, Ms. Allen reported that the parents had attended only 14 sessions since August 25, 2007. Father told her he has not attended counseling “due to ‘lack of money and Work.’” On September 6, 2008, after Jose’s birth and the filing of the dependency petition on his behalf, Ms. Allen reported that father had attended a total of 17 sessions.
According to mother, father then changed his counseling provider to be closer to his work. On October 1, 2008, he began a twice-weekly outpatient substance abuse and individual counseling program at Pavilion Healthcare Services in Carson. As of October 27, he had attended eight counseling sessions. But pursuant to a request from father’s attorney, he was referred to Roy’s National Health Services for counseling. Father’s counselor at Pavilion reported to the social worker that father did not tell her the children had been detained due to severe physical abuse. The social worker sent her the detention and jurisdiction reports, and the counselor said she would forward this documentation to Roy’s National Health Services. The social worker verified that the parents were receiving individual counseling at Roy’s National Health Services and that their counselor had received the court information about the case.
In January 2009, the social worker learned that the program father was attending at Roy’s National Health Services was “a parent education program that includes individual sessions on parenting, but not individual counseling addressing the case issue of severe physical abuse, but how to learn developmental stages and parenting skills.” He also was in programs for substance abuse and anger management. Asked whether the parents had admitted or disclosed severe physical abuse, the counselor emphasized that the program was for parent education, not physical abuse.
Soon after, in mid-February, the social worker left a telephone message for father with two referrals for individual counseling with a licensed therapist. On February 27, the social worker sent a letter to the parents referencing the referrals to two locations for individual counseling with no waitlist and licensed Spanish-speaking therapists, and including a third referral. A week later, father told the social worker that he had called the three referrals. Two of them were too expensive at $50 a session, and he had not been able to reach the third. He said the court “told him that they will be assisting him as well.” On March 20, 2009, the social worker asked father whether he had obtained counseling. Father told her “that the Court is assisting him in finding something because he cannot afford to pay for classes; it is a waste of money he is not going to pay a lot. Father stated that he does not have money for the classes.” Father told her he had money for his children but not for counseling. The social worker explained that counseling is for his children because that is for him to regain the children back. “Father was persistent that he does not want his money to go into counseling because it is a waste of money.”
In May 2009, father told the social worker he had been looking for inexpensive counseling but concluded he had no choice but to go where the social worker referred him. The social worker called father in June to inquire about the status of his counseling. Father stated he could not find anything. When reminded of the list of counseling referrals he had been given in February, father remained silent. That same day, the social worker sent father a letter with these same referrals and also called the three agencies to confirm that there was no wait list and that Spanish-speaking therapists were still available.
In August 2009, father again told the social worker he had not enrolled in individual counseling “because he needs to pay for the sessions.” According to the social worker, she had explained to father on several occasions that the substance abuse and parenting programs did not meet the individual counseling requirement because it did not address the case issues of physical abuse. The social worker also reported that she had discovered that Roy’s National Health Services was no longer in business, and that it was unknown if it was a licensed provider.
On August 17, 2009, father enrolled in individual counseling at Aztlan Family Clinic, one of the agencies referred to him by the social worker. Father’s therapist provided the social worker with a report on January 7, 2010, indicating father was attending weekly sessions. According to the therapist, father continued to vehemently deny the allegations pertaining to his case while externalizing blame to others. Father also “‘has been willing to discuss shortcomings and appears motivated to make all the necessary corrections and adjustments as a means to become a functional parent.’” Father was an active participant in the anger management program.
On January 13, 2010, when verifying the therapist’s credentials, the social worker discovered that father’s therapist is not a licensed therapist, although he initially told the social worker that he was. The therapist told the social worker the only licensed therapist at that location was not bilingual.
On February 17, 2010, the social worker sent father a list of referrals for counseling. The social worker verified these agencies provided low-cost, Spanish-speaking licensed therapy and had availability. The following week, father informed the social worker that he had contacted the resources provided to him but they were not going to work out as they could not accommodate his schedule. One therapist was not adequately proficient in Spanish, and other agencies provided services during the week with the latest session at 5:00 p.m. The social worker informed father it was not likely he would be able to obtain low-cost services at a convenient time, and suggested he make a special arrangement with his employer so that he could fulfill his court-ordered services. Father continued seeing his individual therapist while waiting for a licensed therapist.
This lengthy history establishes that father was provided with appropriate referrals for individual counseling. He was resistant to participating in counseling, and rigid about the cost and scheduling. Despite these obstacles, he had found a counselor in the year prior to Jose’s birth, but had attended sessions only sporadically and had not addressed the case issues as ordered. He had enrolled in programs that did not fulfill the court’s order, and delayed enrolling in the counseling that was appropriate. There is sufficient evidence to support the court’s finding that reasonable services had been provided.
We note that the licensing problem with respect to his final counselor, Alfredo Lozano, was not father’s fault. At the time he started counseling at the Aztlan Family Clinic, Mr. Lozano was working under the supervision of a licensed therapist. Unfortunately, the licensed therapist then left the clinic and thus the counseling no longer satisfied the court order. But the court did not punish father for this problem. It heard Mr. Lozano’s testimony and considered the work that father was doing in his therapy. It was not father’s lack of compliance with the requirement for counseling that drove the court’s decision, but rather his lack of progress in addressing the case issues.
II
Father also claims there was insufficient evidence to support the court’s finding that returning Jose to his care would create a substantial risk of detriment. (§366.22, subd. (a).) He argues that his denial of having inflicted blunt force trauma on Jose’s sibling is not evidence of detriment because “he had complied with and benefitted from every aspect of his case plan.”
The purpose of a reunification plan “is to overcome the problem that led to removal in the first place.” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) Mere participation in a service plan is not necessarily sufficient. “The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good).” (Ibid.)
The court found, and we agree, that father was in partial compliance with the case plan; he attended a variety of programs and individual counseling. But in none of these services did father take responsibility for causing physical harm to Jose’s half sister, M.D., nor did he posit any other explanation for the very serious injuries she suffered. As the court noted, “[I]t is patently obvious to me that both mother and father have, for at least three years now, insisted that they don’t have any idea how their poor child [M.D.] was severely, severely injured. It just happened. They have no idea. They blame it on the social workers getting involved in the case. There is just no way it happened. So we are here at a time where I’m trying to think about returning children to parents who still are in denial, don’t think they did anything wrong. I have made a finding that the parent did do it, he did it. She didn’t do anything about it. She continues to... deny that it happened, and... that is where we are at.”
This case is unlike the “confession dilemma” addressed in Blanca P. v. Superior Court, supra, 45 Cal.App.4th at page 1752. In Blanca P., the juvenile court relied on the parents’ denial of a molestation allegation to find detriment in returning the children to the parents’ custody. But as the court observed in that case, there was substantial new evidence which cast doubt on the initial jurisdictional finding of molestation, and the very circumstances of the initial finding also cast doubt on it. (Id. at p. 1754.) In this case, there is no dispute that M.D. suffered very severe physical abuse, and no claim of procedural or substantive infirmity in the jurisdictional finding that father was the perpetrator of the abuse. Father’s continued denial of the incident and failure to address the issue of physical abuse in counseling support the court’s conclusion that returning Jose to his care would present a substantial risk of detriment.
DISPOSITION
The petition for writ of mandate is denied.
We concur: WILLHITE, J., SUZUKAWA, J.