Opinion
G063492
03-19-2024
J.S., Petitioner; v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Martin Schwarz, Public Defender, Richard Cheung, Assistant Public Defender, and Brian Okamoto, Deputy Public Defender for Petitioner J.S. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel for Real Party in Interest.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County Nos. 22DP0283, 22DP0284, Vibhav Mittal, Judge. Petition denied.
Martin Schwarz, Public Defender, Richard Cheung, Assistant Public Defender, and Brian Okamoto, Deputy Public Defender for Petitioner J.S.
No appearance for Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel for Real Party in Interest.
OPINION
SANCHEZ, J.
In this child welfare proceeding, mother filed a writ petition seeking to reverse the trial court's decision to terminate reunification services after 18 months. She contends the court erred because there was no substantial evidence that the Orange County Social Services Agency (SSA) provided reasonable services. Mother attended various forms of counseling and educational programs, consistent with her case plan. However, her past behavior so traumatized her two oldest children that they refused almost all visitation with her. Mother contends SSA should have done more to overcome the children's "recalcitrance" (her word). But she cites no authority suggesting that SSA had such an obligation, and we conclude SSA's efforts were reasonable under the circumstances. In the absence of visitation, there was simply no way for the court to determine it could safely return the children to her care. At the 18-month mark, the law requires a strong justification for continuing services-it strongly favors a permanent plan for the children. The circumstances here did not warrant an exception to that policy. Accordingly, the court did not err, and we affirm.
FACTS
This is our second opinion in this case. In our prior opinion, we set forth the family background and the underlying facts through the jurisdiction and disposition hearing where the court removed the children from the parents' custody (a ruling we affirmed). (OCSSA v. J.S. (May 17, 2003, G061741) [nonpub. opn.].) We will not repeat those facts and instead will pick up where we left off. One significant difference between the first appeal and this writ petition is that this matter concerns only the two oldest children, N.I. (age 17) and Ma.S (age 14). Additionally, this petition is solely by mother, whereas the previous appeal was by both mother and father. Our recitation of the facts and legal analysis will thus be focused on the relevant parties.
FACTS
Services
Mother's initial six-month period of reunification services began in August 2022. Her case plan included individual counseling, psychiatric treatment, a personal empowerment program, a parenting course, and a child abuse treatment program. Additionally, the court ordered an Evidence Code section 730 psychological evaluation (section 730 evaluation).
Mother completed her section 730 evaluation with Gerardo D. Canul, Ph.D. on October 14, 2022. Dr. Canul opined, "Based on the interview of [mother], psychological testing results, [mother's] social-emotional/psychiatric history and her selfreport, history of involvement with dependency Court, her decision for non-adherence to psychiatric treatment, and review of records, I believe, that [mother's] psychological and psychiatric problems are significant and without her receiving ongoing psychological treatment and ongoing psychiatric treatment and monitoring will likely interfere with her parenting capacity." Dr. Canul opined mother was "likely having suspicious thinking, ruminating, tangential thinking and possibly experiencing persecutory delusions." Dr. Canul recommended ongoing psychological and psychiatric treatment and monitoring to "decrease the current strong propensity for abuse/neglect of the [children]."
As of the six-month review hearing, mother's compliance with her case plan was deemed by the court to be minimal. However, she had begun general counseling, therapy, and monthly visits with a psychiatrist. Mother had enrolled in a child abuse treatment program, but, due to certain medical issues that made it difficult for her to sit through virtual meetings, her participation was inadequate. Mother provided evidence that she had previously completed parenting classes.
As of the 12-month review hearing, mother's progress on her case plan was deemed by SSA to be moderate, though it recommended terminating reunification services. Mother had continued therapy and meeting with a psychiatrist. She completed a 10-week personal empowerment program. She did not complete a child abuse treatment program. However, the court subsequently deemed SSA's efforts to be unreasonable in that SSA did not adequately assist mother with the financial hurdles she faced in enrolling in a child abuse treatment program. This turned out to be of no consequence, however, because, as a result of a series of delays, the 12-month review hearing was combined with an 18-month review hearing, and the court found SSA's efforts were reasonable during the 12- to 18-month period, during which SSA provided other options for mother.
Visitation
As we noted in the prior appeal, Ma.S. did not want visitation with mother. Ma.S. went so far as to profess wanting to never see mother again in his life. In April 2022, mother voluntarily suspended visitations with both children on the ground that she felt she needed a private attorney because "'everything I say is being used against me twisted turned around fabricated or falsified.'"
Throughout the first six months of the reunification period, mother requested visits, but N.I. and Ma.S. frequently refused to visit with her. According to Ma.S.'s caregiver, when Ma.S. was told to sit in front of a computer for a virtual visit, he would start to cry. A monitor of a virtual visit between N.I. and mother observed that "it appears that [N.I.] is waiting for the mother to say something bad so that she can log off." And, indeed, that visit was terminated prematurely as a result of mother becoming argumentative. This pattern continued throughout the first six months, during which "the children missed a majority of their virtual visits with the mother. Both children indicated they did not want to participate."
The six- to 12-month period was largely the same. The children generally refused to show up and mother also began missing scheduled visits. One visit between mother and N.I. was terminated early due to mother discussing the case. Mother requested an in-person visit with N.I., but N.I. refused. When the social worker asked N.I. if there were any accommodations that would make her comfortable with an inperson visit, N.I. replied that there were not and "for her own mental health she did not want to see the mother in-person."
In June 2023, toward the end of the 12-month period, the court authorized N.I. to move out of state with her caretaker.
The dynamic did not change during the 12- to 18-month period. Ma.S. never resumed visits, stating he did not want to speak with mother. N.I. "sporadically" participated in visitation. "The child indicated for the last two virtual visits, the mother did not stay on for long and the mother appeared to be doing other things. The child gave examples of shopping or not paying attention. The child appeared to be frustrated with the need of continued visitation." By August 2023, N.I. had likewise decided to no longer communicate with mother. She reported getting "stressed and upset when she had visits with the mother. The youth indicated that in the past, the mother would start yelling at her without a reason and twist things around and blamed her for starting an argument." By November 2023, N.I. expressed that she was not interested in "having any type of contact with the mother." Visitation never resumed with either child.
The Hearing
At the combined 12- and 18-month review hearing, which concluded in December 2023, the court found that the children's emotional well-being would be harmed if they were returned to mother. The court noted that mother had engaged in services; however, as a result of a lack of visitation, the court could not find any evidence of mother implementing the lessons she learned in her counseling and classes. The court found there were no exceptional circumstances that would have warranted extending the reunification period through 24 months. Accordingly, the court terminated reunification services and set a permanency hearing pursuant to Welfare and Institutions Code section 366.26.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother filed a petition for a writ of mandate directing the court to vacate its order and issue a new order continuing reunification services.
DISCUSSION
Mother contends there was no substantial evidence that SSA provided reasonable services and thus the court abused its discretion in refusing to continue the 18-month review hearing to provide additional reunification services. We disagree.
"[W]henever a child is removed from a parent's . . . custody, the juvenile court shall order the social worker to provide child welfare services" to any parents deemed eligible for reunification services. (§ 361.5, subd. (a).) At an 18-month review hearing, the juvenile court is charged with determining "by clear and convincing evidence whether reasonable services have been offered or provided to the parent or legal guardian." (§ 366.22, subd. (a)(3).) We review a court's finding of reasonable services for substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
As mother recognizes in her petition, "The most obvious impediment to reunification throughout the case was the children's refusal to see their mother, let alone be returned to her care." Mother acknowledges that "the children were appropriately encouraged to see their Mother ...." And there is no dispute that visitation was ordered by the court and scheduled throughout the duration of the underlying proceeding. The fault, according to mother, was that "no effort [was] made to actually address their recalcitrance."
However, mother cites no authority that, to constitute reasonable services, SSA must attempt to overcome a child's resistance to visitations. To the contrary, as the court explained in In re Sofia M. (2018) 24 Cal.App.5th 1038, 1047, "it was not the court's duty to ensure those particular efforts[, to encourage visitation,] were ultimately effective in overcoming [the child's] opposition to visitation. The reality in many of these cases is that the parent has irreparably damaged the relationship beyond salvage. This cannot be presumed, of course, and thus courts must, consistent with the child's well-being, order visitation and enforce that order appropriately. But if it turns out, after reasonable efforts have been exhausted, the child simply cannot be persuaded to visit, that, in and of itself, is not a basis for reversal."
Here, visitation was ordered; the children were encouraged to visit; social workers had discussions with the children about their refusal to visit; social workers offered conjoint counseling sessions with mother, which the children refused; a social worker asked N.I. if there were any accommodations that would change her mind, there were not. And SSA did nothing to discourage the children from visiting mother. However, it was not SSA's duty to try to persuade the children to visit with mother. This is a clear case where mother traumatized the children so badly that the relationship was simply beyond repair. Indeed, any attempt to force the children to visit their mother may have simply further traumatized the children. Accordingly, the court's finding that SSA provided reasonable visitation services was supported by substantial evidence.
Mother also disputes whether SSA made adequate attempts to facilitate a child abuse treatment program in the 12- to 18-month period. However, there is nothing in the record to suggest that one additional class would have made any difference in the outcome of this case. Mother's problem was not lack of classes-she did well on that front. It was the children's refusal to engage in visitation. The lack of a child abuse treatment program did not undermine the overall reasonableness of the services SSA offered. (See Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164 ["The adequacy of reunification plans and the reasonableness of the SSA's efforts are judged according to the circumstances of each case"]; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 ["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"].)
In light of our conclusion that substantial evidence supports the court's finding that mother was offered reasonable services, there can be no doubt the court's refusal to continue reunification services was well within its discretion. "[T]o promote the prompt resolution of the child's custody status and her permanent and stable placement, the law sets a presumptive 18-month limit on reunification services. As we have elsewhere explained, the time limit reflects a considered legislative choice: '[I]n order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate.'" (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 627.) Here, after 18 months, there was nothing in the record to suggest that either N.I. or Ma.S. would change their stance regarding visitation. Neither had visited mother for months at the time of the hearing and neither had indicated any inclination to change their minds. There is simply nothing to indicate that an extra six months would have made any difference for purposes of reunification. Accordingly, the court was correct to terminate reunification services at the 18-month mark.
Effective January 1, 2024, section 366.22 was amended to provide that if, at the 18-month hearing, the court finds reasonable services were not provided, the court shall extend services another six months. (§ 366.22, subd. (b)(2)(A); Stats. 2023, ch. 714, § 2.5.) That section was not in effect at the time of the underlying proceeding, and even if it had been, it would make no difference since reasonable services were provided.
DISPOSITION
The petition is denied.
WE CONCUR: O'LEARY, P. J. MOORE, J.