Opinion
A149946
02-27-2017
J.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 4535-DEP)
J.S. (father) is the father of G., born in May 2006. He seeks extraordinary writ review of the juvenile court's orders terminating reunification services at the 18-month review, and setting the case for a termination of parental rights hearing. (Welf. & Inst. Code, § 366.26.) Father also requests a stay of the hearing, currently set for March 1, 2017. We issued an order to show cause on January 18, 2017. Father argues the juvenile court's finding the Sonoma County Human Services Department provided him reasonable services is not supported by substantial evidence and constitutes an abuse of discretion. After careful consideration of the record and the parties' contentions, we deny the petition for extraordinary relief on the merits and also deny the request for stay.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
Mother is not a party to these proceedings.
COMBINED STATEMENT OF CASE AND FACTS
1. Background
In 2006, when minor child G. was born, mother was "nearly 18" and father was 32. Father already had two other children, ages 12 and 9. The couple lived together only a few months before breaking up. Mother and G. lived with mother's family of origin until 2010, when mother was arrested for stabbing one of her siblings. At that point, G. went to live with father in Sacramento. That same year, father married stepmother. The family consisted of G., stepmother's daughter from a previous marriage, and stepmother's two sons, who lived with their father but visited frequently. Father and stepmother had three more children, ages three, two, and five months as of 2014.
In the meantime, mother had formed a relationship with J.B. while in residential treatment following her arrest and had two children with him, ages three and two as of July 2014.
In May 2012, father was convicted and sentenced to county jail for a violation of Penal Code section 288, subdivision (c)(1) (lewd and lascivious conduct with a 14- or 15-year-old child, and being at least 10 years older than the child). Stepmother and the children went to live with the paternal grandparents in Sonoma County. However, when father was released from jail in November 2012, he moved into his parents' home and stepmother and the children moved to a homeless shelter because, as a registered sex offender, father could not be in the presence of children without supervision. Between November 2012 and July 2014, stepmother and children had been shuttling between the paternal grandparents' home and the homeless shelter. Also in 2012, both maternal grandmother and stepmother applied for guardianship of G. Ultimately, the court awarded guardianship to stepmother.
Since 2009, numerous reports of child abuse against G. by mother, mother's husband, mother's husband's son, stepmother and father had been investigated by Sonoma and Sacramento County welfare agencies, but the allegations, including of sexual abuse by mother's husband S.B., were found to be unfounded or inconclusive. In April 2012, allegations of general neglect of G. by father and stepmother were substantiated.
In August 2014, mother requested termination of stepmother's guardianship and "all interested parties entered into a Stipulation that would gradually re-introduce Mother into the child's life" via visitation. In November 2014, allegations of sexual abuse by mother's husband, S.B., resurfaced and were being investigated. Father threatened S.B. and probation issued a Tarasoff warning. In December 2014, a juvenile court judge in Sonoma County summarized the situation thusly: "[T]his child is living in total chaos. Volatility. Tarasoff warnings given. Registered Sex Offenders. Failed Polygraph tests. Child being spirited out of County. Changed schools. Bruising observed on the child. Inappropriate touching being investigated." The judge initiated an investigation by the department "to determine where [G.] should be living." The judge ordered G.'s legal guardian/stepmother to deliver G. to the Valley of the Moon Children's Home due to concerns about "emotional and/or physical abuse perpetrated by the Guardian and/or the child's father."
Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 431 (Tarasoff) (psychotherapist may have duty to warn an intended victim or the police that the therapist's patient presents a serious danger of violence to another).
2. Dependency Proceedings Are Initiated
On December 12, 2014, the Sonoma County Human Services Department (Department) filed a petition alleging that G. came within the provisions of section 300, subdivision (c) (serious emotional damage) because she was suffering, or at substantial risk of suffering, serious emotional damage as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others due to the conduct of her parents or guardian. In support, the petition referenced G.'s evaluation by a licensed psychologist on May 21, 2014, which concluded G. had significant emotional and mental health issues.
G. was detained on December 15, 2014. She was temporarily placed at the Valley of the Moon Children's Home. The Department reported G. was a registered member of the Cloverdale Rancheria of Pomo Indians Tribe (Tribe) through her mother and the court determined the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) applied.
The Department submitted a lengthy combined jurisdiction and disposition report with numerous attachments prior to the jurisdictional hearing held on January 7, 2015. The report noted that both parents were eligible for a bypass of services, father due to his sex offender registration status, and mother due to her prior violent felony conviction. However, the Department believed it was not in G.'s best interest to bypass services due to G.'s age and her relationship with both parents. "[G.] has stated that she loves both of her parents and wants to live with her mother. . . . [G.] enjoys visiting with her father and with her mother and looks forward to their time together. According to all reports, [G.] did well when [father] and [mother] first began co-parenting, and it is the belief of this writer, that with the right services and support, they can once again find a way to co-parent their daughter without the animosity that has marred this family for so long." Both parents were doing well in their postconviction programs and both had a "high likelihood of rehabilitating and being able to reunify with [their] daughter." Although "conflicted, confused, and very troubled," G. reportedly loved her parents and stepparents and wanted to spend time with her whole family, including all of her half and stepsiblings. She also stated that her real mother and her stepmother "do not like to talk to each other and that they both tell her things, saying that one of them is lying and she's not sure what to believe."
On January 7, 2015, father and stepmother/guardian submitted to the court's dependency jurisdiction. Stepmother/guardian contested disposition. At the hearing on March 18, 2015, the parties stipulated that the court could consider a declaration from Lorraine Laiwa, an ICWA expert, in lieu of her testimony. In her declaration Ms. Laiwa averred that the Tribe approved of G.'s current placement with Indian custodian foster parents until such time as G.'s natural mother successfully completed her reunification services, at which time, in the expert's opinion, it would be in G.'s best interest to be placed with her mother.
On March 18, 2015, the court found the allegations of the petition true. The court declared G. a dependent of the juvenile court and ordered her removed from the stepmother/guardian's home. Mother, father, and the stepmother/guardian were offered reunification services. Father's and stepmother's service objectives included the following: (1) Developing parenting tools and communications skills necessary "to ensure custody conflicts with the other parents is not negatively impacting [G.]. This includes not talking negatively about the other parents"; (2) developing parenting tools and coping skills necessary to safely manage G.'s behavioral health needs "without using physical discipline, screaming/yelling, or other unsafe parenting practices"; and (3) obtaining safe and stable housing free from child abuse and neglect in order to create a routine structure for G. Progress on all three fronts was to be monitored monthly in visits or check-ins with the social worker. In addition, father, stepmother, and G. were to participate in at least 12 sessions of family therapy; father and stepmother were to participate in couple's counseling and participate with a parenting educator during supervised visits with G. "to demonstrate safe and effective parenting practices as well as to learn how to co-parent with resistant parents and strategies for not involving [G.] in these conflicts," or "work with a clinician specifically to address how to co-parent with resistant parents and strategies for not involving [G.] in these conflicts." Father and stepmother were to meet face-to-face with the social worker once a month, follow through with all additional service referrals, and work with a resource worker to obtain safe and stable housing. Father did not appeal.
3. Six-month Review
In advance of the six-month review hearing on September 10, 2015, the social worker recommended six more months of reunification services for mother, stepmother, and father. The court followed that recommendation.
G. continued to reside in a tribally approved foster home in Sonoma County.
Father had been provided with TEAM meetings for case planning, referrals to a resource worker, an in-home parenting program, couples therapy with stepmother, mileage, and visitation. He had met with the social worker five times to review the case plan. Father had completed all of a Triple P, level 4 positive parenting skills program and was now in the observation stage of the program. The parenting educator reported to the social worker that father was "doing okay" and was open to new ideas. On the parenting evaluation form, the educator stated father demonstrated safe and effective parenting practices with the child.
Although stepmother reported she had completed Triple P for teenagers and had started Triple P for G.'s age group in August, a child welfare worker in Mendocino County reported that as of September 3, 2015, stepmother had not participated in parent education. Stepmother's Mendocino social worker reported that a daughter had been detained because of safety concerns in that stepmother was not able to meet that daughter's "severe mental and emotional needs." Also, stepmother had not fully disclosed she had an active family reunification case in Sonoma County. This raised concerns for the Sonoma County social worker about stepmother's ability to meet G.'s behavioral needs. Stepmother had obtained suitable housing in Mendocino County, but father "continue[d] to reside in Santa Rosa for service purposes [and] . . . regularly visit[ed] his family" in Mendocino County.
Father completed couples therapy with stepmother. According to the therapist, they did well and were committed to making their relationship work. Father expressed a willingness to work with mother on coparenting G. and was optimistic he and mother would be able to do so in the future. He said he did not talk negatively to G. about her mother.
Stepmother also denied speaking negatively about G.'s mother in front of G., and claimed she had "not shown aggression toward the mother."
Father regularly visited G. for two hours on Friday and two hours on Saturday, although he had missed four visits between May and July. The visits went well and G. enjoyed them. Stepmother rarely visited; when she visited she joined father's Friday visits. Although G. appeared to enjoy the visits with stepmother, foster mother reported that G. experienced an increase in episodes of enuresis and anxiety after visiting with stepmother. After two months of only occasional or no episodes of enuresis, the behavior had reappeared. The social worker noted that "since visits have become lightly supervised and moved to CPI for all parents, [G.] has experienced an increase in enuresis, anxiety, and tantrums." (Italics added.) Foster mother attributed the increase in behavioral issues to too many appointments and transitions in G.'s schedule.
The social worker reported that G. had "openly expressed that she wishes to live with her 'real mom' "; however, it was clear G. remained "torn" between her mother and stepmother. Also, the social worker noted that the animosity between the two sets of parents continued to be present, but was more covert. Father and stepmother "state that there is no aggression on their part . . . [y]et, they continue to describe the mother as confrontational. . . . [Mother and father] can identify a time when they were able to get along and co-parent [G.] and they both want to once again recreate that dynamic and put [G.'s] needs over their own; [however,] [t]he co-parenting relationship between [mother and stepmother] has not worked in the past and [mother] believes that [stepmother] should step aside and allow the father a chance to co-parent." Both mother and stepmother characterized the co-parenting relationship as confrontational, with each feeling that she is the victim of the other's action. However, based on earlier success, the social worker remained confidant that "with continued services and an emphasis on co-parenting, they can once again find a way to co-parent their daughter without the animosity that has marred the family for so long."
The six-month review hearing was held as scheduled on September 10, 2015, and the court followed the recommendation to extend services for another six months. The court found by clear and convincing evidence that reasonable services had been provided or offered; that mother's and father's progress had been adequate, but stepmother's had been minimal; the likely date by which the child may be returned home or another permanent plan selected was March 10, 2016; and if the child could not be returned home by the next review hearing, a proceeding to terminate parental rights may be instituted. Parents were also advised that in no case would services be extended beyond June 16, 2016. Father did not appeal.
4. 12-month Review
In advance of the 12-month review hearing on March 10, 2016, the social worker initially recommended six more months of reunification services for mother, and termination of services for father and stepmother. However, the recommendation was changed to continued reunification services to father as well, with trial home visits with each parent.
G. continued to reside in a tribally approved foster home in Sonoma County. Father continued to reside in Santa Rosa in his parents' home, for two reasons: (1) he wanted to remain close to G. in order to visit her frequently; and (2) as a registered sex offender, he was not permitted to live on the same property where his wife and other children resided. Stepmother continued to reside in Willits with her three young children. In addition, she received family reunification services for a 14-year-old daughter who was scheduled to be placed with her father in Solano County, with visitation for stepmother of one visit per month.
Even with substantial support, G. continued to struggle in school. Over the previous three months, G.'s behavioral issues had intensified as she engaged in increasingly risky and antisocial behaviors (burning dolls' heads on light bulbs, intentionally clogging a toilet, aggression towards things and people).
With respect to reunification services, father had been provided with case planning, therapy referrals, visitation with G., and monthly contact with the Department from September to December 2015 and twice in February 2016. The Department had provided similar services to mother and stepmother, as well as ongoing coordination for culturally relevant services with ICWA representatives.
Apparently, mother, stepfather, and G. were participating in family therapy together during part of the reporting period; however, it was discontinued. Mother was becoming extremely emotional and focusing on her conflicts with father and, in the social worker's opinion, the family therapy sessions were contributing to the increase in G.'s negative behaviors. "The intention of discontinuing the therapy was to prevent [G.] from needing to care for [mother] or meet her emotional needs and instead give [mother] the opportunity to achieve that on her own." In short, mother "needed to continue with her own personal therapy before continuing family therapy with [G.]." For his part, father continued to express his commitment to coparenting G. with mother, but he was critical of mother's parenting techniques and had concerns about her husband. These feelings dominated his conversations with the social worker to the point that the social worker felt "co-parenting between [father and mother] where each are sharing mutual family rules and expectations does not seem realistic at this time given . . . their animosity towards each other."
Father now had unsupervised visits with G. on Friday after school and for half the day on Saturday. However, on December 27, 2015, father was arrested for drunk driving; as a result, father's probation was violated. His probation officer reported that going forward, father would be prohibited from consuming alcohol or being in the presence of alcohol. Father was incarcerated for six weeks during the reporting period and did not visit G. at all during that time. G. was "devastated" by the news of her father's incarceration and the sudden interruption of visits. Predictably, there was a noted increase in G.'s risky behaviors at home and at school during that time. Stepmother's visits remained minimal. G. reported she did not want to see her stepmother without her father because her stepmother was not nice to her when her father was not around.
The social worker acknowledged that reunification in this case was complicated by G.'s negative reactions to both stepparents in the picture. Although unsubstantiated by investigation, the allegations of sexually inappropriate touching by mother's husband "remains an unresolved issue for G." Plus, G. had suffered substantiated emotional abuse while in the care of her stepmother and expressed continuing discomfort with visits that did not include her father. "In addition, the almost impossible triangular dynamic of continuing to try to reunify [G.] in three different households, in three different counties to three different parents has taken its toll on [G.] as well as the parents." Since visits with stepmother were minimal in any case, and both biological parents were moving forward in their reunification efforts, the social worker recommended terminating services to stepmother. Conceding that reunification with mother and father "does not seem hopeful," the social worker remained committed to it because of the "irreplaceable place that each of these two parents hold in [G.'s] heart." With the 18-month date of June 10, 2016 looming, the social worker recommended a trial home visit and continued services for mother and father. After several continuances, a contested review hearing was scheduled for May 9, 2016.
In an addendum report dated April 22, 2016, the Department again recommended that services to father be terminated. G. reported that during a visit on March 11, 2016, she saw father drinking beer. She knew about the alcohol restrictions placed on father's probation due to his recent drunk driving arrest, and was upset with father's decision to drink because it could result in his return to jail. After drinking, father then drove her to her foster mother's house. Father was awaiting sentencing on his drunk driving charge and had an upcoming court date on April 29, 2016. Father denied drinking.
In addition, the social worker found father's plan for returning G. to his care impractical. The house in Willits his wife lived in was subsidized and came with the restriction that registered sex offenders cannot live in the home. However, father works in Willits and frequently stays in the home overnight anyway. The social worker concluded that "[b]ouncing back and forth between his two homes in Willits, CA and Santa Rosa, CA is not a realistic plan for [G.]." His short-term plan was to continue to live in his parents' home in Santa Rosa.
Father's status as a registered sex offender also prevented him from setting foot on G.'s school campus, "which impacts his ability to participate in [G.'s] educational needs." Although father intended to have his 2012 lewd act conviction expunged, the earliest he would be eligible for expungement was 2022.
Another factor contributing to the changed recommendation was G.'s consistent reporting that she did not feel comfortable being left alone with her stepmother, who was mean to her and treated her differently when her father was not present. When asked how he would deal with this dilemma, father had no realistic plan. His response was that he would make sure G. was never left alone with stepmother, but "if and/or when the time comes that [G.] may have to be left with [stepmother] without him being present that he will simply instruct [stepmother] to be nice to [G.] because as he reports, [he] is [G.'s] father and is the boss of what goes on with her."
In the meantime, G. had found "weed and pipes" in the center console of her mother's car and reported the discovery to her foster parents. Nine-year-old G. expressed frustration with her parents' seeming inability "to comply with laws such as no drinking and driving and not having marijuana in her presence and struggles to understand why it is taking her parents as long as it has to reunify with her as [G.] has now been in foster care for over sixteen months."
The social worker and father testified at the hearing on May 9, 2016. At the conclusion of the hearing the court adopted the social worker's recommendations as to findings and orders made on March 4, 2016. The court found by clear and convincing evidence that reasonable services had been provided or offered and that that there was substantial probability that with extended services the child would be safely returned to the parents' physical custody. With respect to stepmother, the court found she had made inadequate progress and there was no such probability; services to her were terminated. Trial home visits with both parents were authorized. Parents were advised that in no case would services be extended beyond June 10, 2016, 18 months from the date of the original removal.
On July 5, 2016, father filed a notice of appeal from the May 9, 2016 reasonable services finding. That appeal is pending, and briefing was completed on February 23, 2017. (Sonoma County Human Services Department v. J.S. (A148783, app. pending.) Father asks that we consolidate the appeal with this writ. By separate order we deny that request. --------
5. 18-month Review
The June 10, 2016 review hearing was continued to June 30, 2016. For the most part, the status review report dated June 22, 2016, repeated all of the information included in the previous reports. A new social worker assigned to the case recommended that reunification services to both parents be terminated and a permanency planning hearing be held. G. continued to reside in a tribally approved foster home in Sonoma County.
Father visited G. faithfully, but also continued to include stepmother in some visits, and did not seem to recognize that G. had unresolved issues with her. He had made more of an effort to not speak negatively about G.'s mother, and a referral had been made for coparenting therapy sessions with mother starting June 16, 2016.
The new social worker reiterated that father's status as a registered sex offender prevented him from residing with stepmother and their children and that "[b]ouncing back and forth between his two homes in Willits, CA and Santa Rosa, CA is not a realistic plan for [G.]." G.'s current tribally affiliated home was being explored for possible adoption or guardianship upon the termination of family reunification services. Given that the case had reached the 18-month time limit without resolution of the outstanding issues between the parents and stepparents, the Department recommended termination of family reunification services and the setting of a section 366.26 hearing to determine a permanent plan, most likely guardianship, for G.
On August 8, 2016, the matter was continued for trial to November 7, 2016 "in order to get wrap services and co-parenting counseling in place." On November 7, 2016, both parents submitted on the Department's recommendation with the understanding that guardianship with the current caretakers is the likely permanent plan. G.'s attorney and the Tribe's representative agreed with that plan. At that time, the court adopted the findings and orders of June 21, 2016. Specifically, the court found there was not a substantial probability of the child's safe return to the physical custody of the parents during the extended service period, and terminated reunification services. The court set the matter for a hearing to select a permanent plan, most likely guardianship, on March 1, 2017.
DISCUSSION
Father contends the reunification services offered to him were inadequate because coparenting therapy was not offered to him in a timely fashion. We disagree.
We review a finding that reunification services were reasonable for substantial evidence. "We must view the evidence in the light most favorable to the department and indulge all legitimate and reasonable inferences to uphold the order." (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) "The adequacy of the reunification plan and of the department's efforts to provide suitable services is judged according to the circumstances of the particular case." (Id. at p. 1011.) "[I]n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided 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.)
The Department was required to formulate a reunification plan and provide father (and mother) with reasonable services "designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child . . . ." (§ 366.21, subd. (e)(8).) 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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed).' " (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 794.) Reunification services must be tailored to the unique needs of the particular family. (Id. at p. 793.)
In this case, father and mother were not together, mother was incarcerated for a violent offense, father was incarcerated for a registrable sex offense, and G.'s custody was entrusted to father's wife, G.'s stepmother, who became her guardian. G. was removed from stepmother's custody and placed in foster care because stepmother inflicted emotional abuse on her. Services to both biological parents could have been bypassed; instead, reunification services were offered to them (as well as to stepmother). Reunification was pursued because of G.'s irreplaceable bond with each parent. Numerous on-point services were offered to both parents (and stepmother), including, at an early stage, family therapy with mother, stepfather, and G., which had to be discontinued because it was exacerbating G.'s behavioral issues. As the social worker observed at the time, "co-parenting between [father and mother] where each are sharing mutual family rules and expectations does not seem realistic at this time given . . . their animosity towards each other." "In addition, the almost impossible triangular dynamic of continuing to try to reunify [G.] in three different households, in three different counties to three different parents [was taking] its toll on [G.] as well as the parents."
However, contrary to father's assertion, lack of coparenting cooperation between mother and father was hardly the "primary problem standing in the way of reunification." The most difficult impediment to father's reunification with G. was his status as a registered sex offender, which prohibited him from creating a home for her with him and even prevented him from setting foot at her school.
In any event, father and mother were referred for coparenting therapy starting June 16, 2016. The review hearing was continued to November 7, 2016, almost five full months after the referral was made. From the fact that both parents submitted on the Department's recommendation on November 7, 2016, we may infer that coparenting therapy did not have its hoped-for effect.
In our view, substantial evidence supports the conclusion that reasonable services were offered to father, and the court did not abuse its discretion by terminating services after 23 months. In any event, reunification services generally may be extended up to a maximum time period of 18 months. (§ 361.5, subd. (a)(3)(A).) The juvenile court has discretion to extend services beyond the 18-month limit if "the agency responsible for providing these services has, in the court's opinion, failed to make a reasonable effort to provide those services." (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1214.) "The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period or that reasonable services have not been provided . . . ." (§ 361.5, subd. (a)(3)(A).) Here, the court extended the time period to 23 months. On this record, it is clear that even if the court had extended the time period for one more month, reunification would not have been possible, with or without coparenting. Under these circumstances, any error in failing to offer coparenting therapy earlier, or more often, is utterly harmless.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
The request for stay of the section 366.26 hearing is denied.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.