Opinion
B322357 B323557 B328739
08-10-2023
In re BABY GIRL L., a Person Coming Under the Juvenile Court Law. v. JOSE L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, JOSE L., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Los Angeles Dependency Lawyers, Rachel Ewing, Dominika Campbell and Lincoln Mitchell for Petitioner. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent and for Real Party in Interest. No appearance for Respondent in No. B328739. Children's Law Center of California, Kristin Hallak and Jennifer Ledesma for Minor.
NOT TO BE PUBLISHED
Original proceedings in mandate, consolidated with appeals from orders of the Superior Court of Los Angeles County, No. 21CCJP01560A Jean M. Nelson, Judge. Petition denied; orders affirmed.
Jane B. Winer, under appointment by the Court of Appeal, for Defendant and Appellant. Los Angeles Dependency Lawyers, Rachel Ewing, Dominika Campbell and Lincoln Mitchell for Petitioner.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent and for Real Party in Interest.
No appearance for Respondent in No. B328739.
Children's Law Center of California, Kristin Hallak and Jennifer Ledesma for Minor.
EDMON, P. J.
This consolidated matter consists of Jose L.'s (father) appeals from the juvenile court's orders of June 2022 and September 2022 (B322357) and his petition for extraordinary writ challenging the court's April 2023 order terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing (B328739). Father contends he was not offered reunification services that were reasonably tailored to his cognitive impairment, he was unreasonably denied unmonitored overnight visits with his daughter, and the juvenile court abused its discretion by denying his request for additional reunification services. We find no error, and thus we deny the writ petition and affirm the orders.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention, petition, and disposition.
Father and S.L. (mother) are the parents of Baby Girl L. (B.L.), born in April 2021. Mother also has an older child who was adopted after parental rights were terminated. The current matter came to the attention of DCFS on April 2, 2021, based on a referral alleging that mother, who was unhoused, had given birth in an ambulance, was engaging in erratic behavior at the hospital, and appeared to have mental health issues.
The social worker contacted father, who previously had called the hospital because he was concerned about the baby being discharged with mother. Although he admitted he and mother had an on-and-off sexual relationship, he denied he was the baby's father. He stated, however, that he wanted the child to be placed with him if he was the father, and he requested a paternity test.
DCFS filed a dependency petition on behalf of B.L. under section 300, subdivisions (b) and (j). The petition alleged that mother had mental and emotional problems that placed B.L. at serious risk of harm, and the child's sibling was a former dependent of the court and had received permanent placement services based on mother's mental and emotional problems.
A detention hearing was held on April 9, 2021. Neither mother nor father appeared. The juvenile court detained B.L. and deferred paternity findings pending the parents' appearances. B.L. was placed in foster care.
In late April 2021, father contacted DCFS to inquire about B.L. being released to his care, and a social worker attempted to conduct an assessment of father's home. Mother was present in the home, however, and became agitated. When the social worker tried to ask her some questions, mother threw a cup of water at her.
Father reported that he met mother two to three years earlier when they were both homeless and staying on Skid Row. He acknowledged that they had maintained a relationship since that time. He denied mother lived in his home, and stated that she would show up sporadically. He lived with his daughter, S.C., who was then 14 years old.
It is not entirely clear from the record how long S.C. had lived with father. S.C. said she and father had lived in the home for three or four years; it is unknown whether S.C. lived with father before that time.
DCFS made two more attempts to assess father's home, but could not do so because mother was still present. DCFS expressed concern about father's ability to care for and protect B.L. because he continued to allow mother access to his home.
In May 2021, the court sustained the dependency petition. In September 2021, a paternity test indicated that B.L. was father's biological child.
In October 2021, DCFS reported that it had conducted an assessment of father's home, a one-bedroom apartment with a living room, kitchen, and bathroom. The home was minimally furnished and boxes were stacked up against the wall in the entryway and living room. S.C. slept in the bedroom, and father slept in a foldable bed in the living room. Father said his plan was to place a crib in S.C.'s bedroom if B.L. were released to him. Father also reported that he planned to rent a storage unit for the boxes in the home.
DCFS recommended that father receive family reunification services, but that B.L. not be released to father's care until he removed the clutter from his home and obtained a crib and other essential items for the child.
On October 20, 2021, the juvenile court found that father was B.L.'s biological father, ordered DCFS to assess father for unmonitored visits with B.L., and granted the agency discretion to liberalize visits.
In November 2021, DCFS reported that father had begun attending a mental health support group and a parenting class. He had not yet rented a storage space and continued to have boxes stacked against the walls and on the floor of the living room and bedroom. DCFS was concerned the boxes posed a safety risk to B.L., who would soon begin walking. It thus continued to recommend that B.L remain in her current placement and that father receive reunification services.
At the disposition hearing in December 2021, father's counsel requested that B.L. immediately be released to father, and if not, that father be granted unmonitored visits. Counsel for B.L. and for DCFS opposed release to father, urging that he was only beginning to bond with B.L. and he failed to understand the safety risk that his home posed to her.
The court declared B.L. a juvenile court dependent and removed her from parental custody. It granted father monitored visits with B.L. a minimum of two times per week, to become unmonitored once the home was safe, and ordered father to complete a parenting class and attend a mental health support group.
II. Prior appeal.
Father appealed from the disposition order, contending the juvenile court abused its discretion by denying his requests that B.L. be placed with him and for unmonitored visits. Father also urged the juvenile court's ICWA finding was in error. We affirmed the order. (In re Baby Girl L. (Jan. 20, 2023, B317417) [nonpub. opn.].)
III. Six-month review (June 2022). A. May 2022 report.
In January 2022, DCFS reported that mother continued to visit father "sporadically." Although father no longer allowed mother to enter his home, he continued to have a sexual relationship with her and allowed her to sleep in his car.
In March 2022, B.L. was placed with her maternal aunt, who wanted to adopt her.
By May 2022, DCFS reported that father had progressed with his case plan as follows:
Parenting classes: Father began weekly parenting classes in January 2022, but by March had missed five classes. The program's facilitator contacted father and conducted one-on-one sessions with him to allow him to complete the program. The facilitator reported that father was respectful and kind to the other group members, but at times had difficulty articulating things, talked slowly, and was often late to class because he had forgotten to log in. As a result, the facilitator suspected father had a mild cognitive impairment and might benefit from an assessment or individual therapy. The facilitator also believed father would benefit from further parenting education and had asked father to participate in additional classes, but father declined. The social worker observed that although father completed the required parenting course, he was unable to verbalize what he had learned.
Mental health support group: Father began participating in a mental health support group in November 2021 and attended intermittently. He frequently forgot to log in to online classes, even when reminded by his social worker.
Visitation: Father had two-hour monitored visits with B.L. twice a week; beginning in February 2022, his two-hour visits were monitored the first hour and unmonitored the second. The social worker reported that the visits went well, noting that father "engages well with Baby Girl and is attentive to her needs. [Social worker] has observed Father giving Baby Girl toys and using the toys to interact with her. Baby Girl appears to be comfortable in the presence of Father." However, father missed four visits in December 2021 because he overslept, and he missed three additional visits in February and March 2022. Because father frequently arrived late to the visits, DCFS required him to confirm his visits 24 hours in advance; however, father often forgot to confirm, and DCFS would instead call him to inquire whether he was coming. The social worker noted that she "has had to continuously remind father about confirming his visits, when his programs are taking place, and how to log into his programs."
DCFS reported that father had not yet progressed to overnight visits, and it continued to have concerns about B.L.'s safety in father's home "due [to] issues with cleanliness and . . . [father] not having a proper sleeping arrangement for" B.L.
B. Hearing.
The six-month review hearing was held in June 2022, at which time DCFS recommended that father be provided additional services. Father's counsel agreed that reunification services should be continued and urged the court to grant father overnight visits or to "liberalize [father's visits] in some fashion today."
Minor's counsel opposed overnight visits, but requested parent-child interactive therapy (PCIT) for father. In light of the parenting facilitator's concerns, counsel said father "may need a little bit more education in terms of taking care of a child....My request today is actually for father to be referred to PCIT .... I do believe that if he's able to begin those services with [B.L.], then overnight visits should be feasible."
PCIT is a parent-child treatment program for parents who have children with behavioral problems, such as aggression, noncompliance, defiance, and temper tantrums. It is offered to eligible parents and children 2-5 years old and is intended to "promot[e] positive parent-child relationships and interactions, and teach[] parents child management skills." (<https://dcfs.lacounty.gov/parents/parent-resources/> [as of August 10, 2023], archived at <https://perma.cc/7T64-WC25>.)
DCFS opposed overnight visits in father's home. It noted that the parenting facilitator suspected father might have development delays and mild cognitive impairment, and the social worker noted that father needed constant reminders about visits and logging into classes. Further, DCFS said, the "lack of cleanliness and clutter is definitely something that poses a safety risk for a very young child" who "is now a toddler who is moving around." DCFS asked the court to order a Regional Center assessment for father to determine if there are "any developmental delays or cognitive difficulties" that may affect his ability to care for B.L.
Father's counsel "object[ed] to that characterization of [father] regarding the delays and his capacity," suggesting that "it may be some type of a cultural difference when it comes to his communication style." Counsel noted that father was nonoffending, had done multiple programs, and was "going above and beyond here." He thus requested that father be granted overnight visits.
The juvenile court found that a Regional Center assessment was "a step too far," but agreed that PCIT would be helpful to "pick up on whether there really is an issue" and "try and see if father is able to be more focused about what he needs to do." The court further found DCFS had provided reasonable services, noting that "the social worker is doing a good job here and is willing to kind of hold father's hand a bit." As to visitation, the court declined to order overnight visits, explaining that it was "[not so] concerned about . . . the clutter of the home, but . . . the need for the social worker to keep prompting father. I don't understand why that's happening. I don't think it's a lack of interest by father or a lack of effort. I don't know what it is, but with such a young child I need somebody to be much more alert and on to things." The court found father was in partial compliance with his case plan and set a 12-month review hearing for September 2022.
Father timely appealed from the June 2, 2022 order.
IV. Initial 12-month review (September 2022).
DCFS reported that in July it had contacted more than a dozen agencies about PCIT services but had been told there were no openings. Finally, the social worker was told that the family would be put on a waitlist for services in Moreno Valley, where B.L. had been placed; however, father said he could not get to Moreno Valley because he relied on public transportation.
Father reportedly had worked on being consistent with visits, but sometimes arrived late because he depended on public transportation. Further, although visits reportedly went well, father often arrived without necessities like diapers and wipes. Father attended a mental health support group in August 2022, but missed the May and June meetings.
In August 2022, DCFS recommended that father's reunification services be discontinued. DCFS reported that it remained concerned about the condition of father's home, noting that there were "issues with cleanliness," items were stacked in the home's entrance, the kitchen "appears unkempt," the living room "still does not have clear walkway," and there was not an appropriate place for B.L. to sleep. DCFS also expressed concern that father "has a difficult time understanding where [B.L.] is developmentally" and had difficulty "maintain[ing] boundaries" with mother.
At the 12-month review hearing on September 7, 2022, father's counsel objected to terminating father's reunification services, urging that reasonable services had not been provided because father had not been allowed overnight visits. Counsel argued: "[Father] has also been very responsive to the Department and also very compliant with his court-ordered case plan, with his visitation schedule, and also with housing expectations. My argument essentially is that . . . [given] father's willingness to comply, which is demonstrated in the report, there is no reason why father has not been liberalized to overnights and why the Department is recommending to terminate his services. Everything in today's report should have been resolved in this case if reasonable services had been provided.... In addition to [father] having stable housing this entire time, he has had a child living with him this entire time, too, which tells me the child is safe with father. The Department, I think, deserves a no reasonable services finding in this case because there is just really no explanation."
Minor's counsel joined in seeking further reunification services for father, noting that although father's progress "has been maybe a bit slower than the Department or the attorneys would prefer," father had completed his parenting class, had been consistent with visits, and had set boundaries with mother by not allowing her inside his home. Counsel thus urged that father should be offered further services, including a Regional Center referral, and should be permitted overnight visits with B.L.
County counsel responded that the 18-month review hearing was scheduled for October, less than a month away, and "there is no substantial probability that [father] is going to reunify with this child in that time." Counsel argued: "The concern for the Department and the reason why the Department was previously asking for a Regional Center referral is . . . that the father doesn't seem to process information. The father may have sat in a parenting class. And even that, the Department had to constantly remind him and he constantly missed classes, and the only way he was actually able to complete the class is because the instructor went out of his way to do one-on-one with the father to explain concepts.
"With regard to the home, this has been an issue that the Department has been sharing with him since the inception of this case, [how] the status of the home. . . poses a risk to the child and . . . that he needs to take care of it. This seems to be a very slow process, which is something that we see sometimes in cases where the parent is, in fact, a Regional Center [client].... [¶] . . . [¶]
". . . It is noted that he does not seem to understand where the child is developmentally, and never comes prepared for visits. So how is he going to take care of a child during an overnight if he can't come to a short visit properly prepared? The Department would object to overnights starting at this time."
The court denied father's request to make a no-reasonable-services finding. Nonetheless, it declined to terminate reunification services until father had been assessed by the Regional Center because "I don't want to terminate his services and move on to possibly terminating his parental rights without knowing does he need assistance that Regional Center can provide. I know this delays the case . . . but I feel I would be terminating services, and some day parental rights, without really knowing if father needs a certain type of help. So I am going to do a [section] 352 continuance because I think this referral to Regional Center needs to reveal: Have we been not really understanding what father needs? I am concerned this is an infant as compared to a young teen in his care, and if he needs Regional Center, then that could unlock some other services and perhaps set him on a path where he learns with the help of Regional Center how to care for such a young child." The court ordered DCFS to continue its efforts to get PCIT services and to assess father for overnight visits, and it continued the 12-month review hearing to November 2022 to be heard concurrently with the 18-month review hearing.
Father timely appealed from the September 7, 2022 order.
On May 15, 2023, this court ordered the appeals in B322357 and B323557 consolidated for all purposes.
V. Combined 12-month and 18-month review hearings. A. November 10, 2022 hearing.
In October 2022, DCFS advised that it had submitted a Regional Center referral immediately after the hearing and had followed up repeatedly, but father had not yet been scheduled for an evaluation. DCFS further advised that PCIT services were not available for children under two years, and thus could not be provided to 18-month-old B.L. However, DCFS had begun one-hour dyadic therapy sessions with father and B.L. every other week. After two sessions, the therapist reported there was a good bond between father and B.L., but father "treat[s] the child as if she is an infant." For example, the therapist noted that although B.L. was able to do some tasks independently, like eating or drinking from a trainer cup, father intervened. Further, father was not receptive to feedback from the therapist and could not verbalize what he had learned in his parenting classes. The therapist believed that father would benefit from more frequent or longer sessions.
Dyadic therapy is a form of treatment in which a young child and parent are treated together. A clinician is present and coaches the parent to encourage positive interactions that can help improve parenting, the parent-child relationship, and the child's behavior. (<https://www.nccp.org/dyadic-treatment/> [as of August 10, 2023] archived at <https://perma.cc/XB3S-WWMJ>.)
DCFS also continued to express concerns about the condition of father's home, noting that it was cluttered and unclean. Father had obtained a "pack-and-play" which was in his older daughter's room, but it did not have a mattress and had been filled with other items. Father said he would have the pack-and-play set up for B.L. when needed. Father further reported that he had been behind with his rent for almost a year and was working with a housing agency to get rental assistance. His kitchen sink had been clogged for several weeks but the building owner had refused to send a plumber because he was not current with his rent.
In late October 2022, Regional Center told DCFS it had not been able to reach father to set up an intake interview. DCFS initiated a three-way call to connect father with the Regional Center in early November, and a telephonic meeting was scheduled for the next day. However, father did not answer his phone at the scheduled meeting time. He later tried to contact the Regional Center while the designated worker was away from her desk, and then did not answer when the worker called father multiple times upon returning. The intake interview was rescheduled several times and ultimately occurred on November 8. Following that intake interview, Regional Center said it would schedule father for a psychological assessment, but did not expect to be able to do so until January 2023 because it was short-staffed with bilingual psychologists. It noted, moreover, that even if father had an intellectual disability, he would not be eligible for Regional Center services unless he had been diagnosed before age 18.
At the November 10, 2022 hearing, DCFS again requested that father's reunification services be terminated. Counsel noted that it appeared father would not qualify for Regional Center services because he had not been diagnosed with a developmental delay before reaching adulthood. Further, father required a great deal of assistance to complete simple tasks like scheduling an intake with Regional Center, and DCFS "has serious concerns that the father can't follow up with the child's needs despite the affection he feels for her [and] does not seem to understand the child's development at this age despite the fact that he attended a parenting class." Counsel noted that although B.L. was now able to do some things independently, "father doesn't seem to understand that and still tries to do everything for the child. When the Department or the monitor tries to redirect the father or give him advice about appropriate developmental stages, the father rejects the advice and is insistent on proceeding with how he does things."
Minor's counsel requested that father continue to receive reunification services. Although counsel noted that father might not be eligible for Regional Center services because he had not been diagnosed before age 18, "there is a possibility that maybe the father does have a disability that can be diagnosed by Regional Center and that information is important for the court to have."
Father's counsel joined minor's counsel in requesting that father continue to receive services, noting that father had only had three dyadic sessions, "so there is not really enough time for the social worker to just render a conclusion that he really can't parent the child at this point. I think he needs more time." Counsel further suggested that the condition of father's home was not a significant issue.
The court continued the hearing to February 9, 2023, noting that "I understand the Department's concerns, but we do have a father who is continuing to try to address the Department's concerns and we still need to know exactly what father's issue is. But if he misses or cancels more appointments with Regional Center, I'm not going to continue again. We have to keep moving forward."
B. February 9, 2023 hearing.
DCFS reported in early February that father had been assessed by the Regional Center in January 2023, but the assessment was not complete and Regional Center was not yet willing to release any information or documents. The dyadic therapist reported that she was seeing father and B.L. once every other week for an hour. Father" 'tries really hard to meet the needs of the child' during the visit," but he held her as if she were an infant, did not allow her to do things independently, and kept her on his lap instead of engaging in activities or playing with her. The therapist also had concerns about 62-year-old father's "energy and lack o[f] physical capacity to take care of" B.L., and noted that father was not receptive to the therapist's suggestions, "[did] not want to be corrected," and "has [difficulty] accepting help." The therapist believed that father "needs 'a lot more services' and reported that it may take a while for [father] to be prepared to take appropriate care of [B.L.]"
B.L.'s caregiver, the maternal aunt, monitored father's visits four hours per week. She reported that visits generally went well, but father spoke to B.L. in "baby talk," brought baby food for her to eat, and became anxious when B.L. cried. Maternal aunt believed father and B.L. had formed a good bond, but she "worrie[d] as to whether [father] would be able to provide [B.L.] with appropriate care in the future."
DCFS reported that it continued to have concerns about father's ability to care for B.L. and to parent her in an age-appropriate way. Father "continues to need assistance in learning new skills that will support his parenting" and had no social supports other than the paternal aunt, who lived a distance away from father. DCFS thus again recommended that father's family reunification services be terminated and that B.L. be permanently placed.
On February 9, 2023, the court continued the hearing pending receipt of the results of Regional Center's evaluation.
C. April 20, 2023 hearing.
In late March 2023, the Regional Center informed father that he was ineligible for services because he was not "substantially disabled" as a result of an "intellectual [d]isability" or "a condition closely related to intellectual disability," and he did not "require treatment similar to that required by individuals with intellectual disability." However, father was diagnosed with "Borderline Intellectual Functioning" and might be suffering from a depressive disorder. Father continued to receive dyadic services and to have fairly regular visits with B.L.
"Intellectual disability" replaced "mental retardation" in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). It is defined by significant cognitive deficits, as established through a standardized measure of intelligence, in particular, with an IQ score of below 70 (two standard deviations below the mean of 100), and by significant deficits in functional and adaptive skills. "Borderline intellectual functioning" is defined by an IQ of 71-84, and is not classified as a disorder in the DSM-5. (<https://www.psychiatry.org/File%20Library/Psychiatrists/Practi ce/DSM/APA_DSM-5-Intellectual-Disability.pdf> [as of August 10, 2023], archived at <https://perma.cc/G5CJ-TWD4>; <https://www.ncbi.nlm.nih.gov/books/NBK332877/> [as of August 10, 2023] arrived at <https://perma.cc/86E9-KQPR>; <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4967780/> [as of August 10, 2023], arrived at <https://perma.cc/H9DW-8VMQ>.)
At the April 20, 2023 hearing, father's counsel argued that father had not been provided reasonable services because none of the services provided addressed his borderline intellectual functioning. Counsel urged that father's diagnosis "merit[s] deeper [analysis] of what the father's real needs are in order to say that services that have been currently provided are appropriate or whether more specific services do need to be provided to meet the father's needs."
Minor's counsel did not object to providing father with additional services "to explore whether there are any services that could benefit father in terms of his reunification in providing more tailored services, given his diagnosis."
County counsel noted that the case was now more than six months beyond the 18-month review date of October 3, 2022. Further, it was not clear that any additional services that could be offered would make it possible for father to care for B.L. Counsel noted: "The reports [state] that the father does not understand the child's development, he does not react quickly, and this is a child who is a toddler and is going to be running around, who has special needs and the father has not demonstrated that he understands. If anything, I believe that the diagnosis just shows why perhaps it takes father some time to understand things, but at this time the case has been going on for well over a year and the father has been given . . . opportunities to try to get up to speed and it doesn't appear that there has been much growth from the father .... [¶] So the Department is asking for termination of reunification services. The child has an interest in permanence at this time and it has been delayed for quite a significant period of time already."
B.L. was referred to the Regional Center because mother's history of methamphetamines use, homelessness, and mental health issues placed B.L. at risk for developmental delays and behavioral problems. The Regional Center determined that B.L. was eligible for services, which she began receiving in August 2021.
The court denied father's request for additional services and set a section 366.26 hearing for August 17, 2023. It explained: "The court has given quite a bit of time to try and pin down exactly what father's weakness is. In the meantime, dyadic services have been provided and he is still really not progressing. The court does have to shift its focus when this much time has gone by as to the best interest of the child.... [¶] . . . [¶]
". . . Some services have been offered to father and he has participated to some degree. In particular, dyadic services are really targeted to help a person, whatever their issues are, to try to care [for] and understand a child, and even that is not working ....I took the extraordinary step to continue the case for a time to see if he has a disability that Regional Center can address. Now we have a kind of vague diagnosis . . . that doesn't even meet the level of Regional Center services . . . and we're sort of back at square one of well, we don't really know what dad's issue is or what exactly he needs to progress, but in the meantime services have been offered and he is participating and has not progressed.
"So I am going to terminate services. And one of the primary reasons is it is now the best interest of the child to move forward with permanency. [¶] . . . [¶]
"I find by clear and convincing evidence that the Department has made reasonable efforts to offer reasonable services because more time has been provided to try and see if Regional Center services could provide support to father, but he doesn't have a disability that merits that. In the meantime, the Department has offered him dyadic services and parenting and he hasn't been able to progress. [¶] I find by clear and convincing evidence that the Department has made reasonable efforts to . . . return the child to a safe home and to finalize permanent placement.... [¶] . . . [¶] I do not find there is substantial probability of return if I were to set a further review hearing. [¶] I further specifically find that the Department has made reasonable efforts to help figure out exactly the nature of father's problem and address that."
Father timely filed a notice of intent to file a writ petition.
FATHER'S APPEAL
Father's appeal is from the juvenile court's order issued at the June 2, 2022 six-month review hearing. As to that order, father contends that (1) substantial evidence did not support the juvenile court's finding that DCFS provided him reasonable services, and (2) the juvenile court abused its discretion by denying him unmonitored visitation in his home.
Father also filed a notice of appeal from the order entered on September 7, 2022. A final order was not entered at this hearing because the hearing was continued, and father does not make any claim of error with regard to the September 7, 2022 order. Any such claim therefore is forfeited.
I. Reasonable services.
Father contends that substantial evidence does not support the reasonable services finding made at the six-month review hearing because DCFS did not accommodate father's special needs.
A. Forfeiture.
We begin with the issue of forfeiture. DCFS contends father forfeited the reasonable services issue by failing to raise it below. We disagree. "Generally, issues not raised in the trial court cannot be raised on appeal. 'The contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule.' [Citation.] In other words, when the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof. [Citations.]" (In re Javier G. (2006) 137 Cal.App.4th 453, 464 [parent did not forfeit issue of whether the department failed to establish reasonable efforts to prevent or eliminate the need for removal of the minors].)
Here, the juvenile court's reasonable services finding is reviewed for substantial evidence. (In re T.G. (2010) 188 Cal.App.4th 687, 697.) Thus, father may raise the reasonable services issue on appeal even though he did not object at the six-month review hearing.
B. Substantial evidence supports the juvenile court's reasonable services finding.
At the six-month review hearing, if the child is not returned to the parent, the court "shall determine by clear and convincing evidence whether reasonable services that were 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 have been provided or offered to the parent .... The court shall order that those services be initiated, continued, or terminated." (§ 366.21, subd. (e)(8).) We review the juvenile court's reasonable services finding for substantial evidence," 'keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence.'" (In re I.R. (2021) 61 Cal.App.5th 510, 520; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
"Although the statute does not define 'reasonable services,' the Courts of Appeal have generally held that, to support a finding that services were reasonable, '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 ....' (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted.)" (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 625, fn. 6 (Michael G.).) Such services "may, depending on the case, include evaluations and assessments, counseling, parent education, substance abuse treatment and testing, and other forms of assistance." (Id. at p. 624.)
If a parent or guardian has a mental illness or a developmental disability, that condition "must be the 'starting point' for a family reunification plan which should be tailored to accommodate their unique needs." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420 [where mother's mental illness led to child's detention, the social services agency "was required, first, to identify mother's mental health issues and provide services designed to enable her to obtain appropriate medication and treatment that would allow her to safely parent [her child]"]; In re K.C. (2012) 212 Cal.App.4th 323, 331 [father was not provided with reasonable services where he was never offered psychotropic medication to treat his diagnosed mental illness]; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1320, 1330 [services offered to developmentally disabled mother were not reasonable because they were not tailored to her special needs].)" '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.'" (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 692, quoting In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
In the present case, father contends that substantial evidence does not support the reasonable services finding made at the six-month review hearing because DCFS did not accommodate father's special needs. Specifically, father contends that DCFS and the juvenile court were aware that "father was slow and had difficulties with learning, understanding, planning, strategizing, setting priorities, solving problems, adjusting to change, remembering things, communication, organizing his home, carrying out plans, and complying with directions." Father further contends that DCFS was aware that" 'mild cognitive impairment' was probably the underlying cause" of father's difficulties, and thus it "should have . . . investigated" "[t]he reason for his symptoms" and provided him with "[t]echniques, programs, and strategies . . . that matched his abilities, to assist him in his efforts to remediate the problems that led to the denial of placement."
We conclude that substantial evidence supported the juvenile court's finding at the six-month review hearing that father was provided reasonable services. Father's cognitive deficits had not been diagnosed prior to the start of this case, and they were not so profound as to be immediately apparent to the social worker, the parenting facilitator, or father's attorney. Accordingly, at the disposition hearing father was granted services to address the needs of which DCFS was then aware: He was granted twice weekly visits with B.L., who had never lived with him, to allow her to bond with him; and he was offered a parenting class to help him gain the skills and knowledge necessary to properly care for an infant. Then, when father demonstrated difficulty remembering to attend the parenting classes and visits, he was offered additional services-namely, the social worker provided him with frequent attendance reminders, and the parenting facilitator offered him one-on-one classes to allow him to make up the classes he had missed.
As a result of the one-on-one interactions between father and the parenting facilitator, the facilitator became aware that father might have some cognitive or learning issues. The facilitator advised DCFS of his concerns and offered father additional parenting classes, but father declined them. At the next hearing in June 2022, DCFS requested that the court order a Regional Center assessment to determine whether father had special needs. Father's counsel objected to the request, however, and the juvenile court accommodated counsel by denying it.
On this record, we cannot conclude that the juvenile court erred in finding at the six-month review hearing that father had been offered reasonable services. Father urges that the services offered him were unreasonable because they were not tailored to meet his special needs-namely, his difficulties remembering, problem solving, and adjusting to change-of which "father's program providers were aware." But DCFS was not, and could not have been, aware of those needs when it initially began offering father services. As father's special needs manifested over time, DCFS offered father accommodations to address them, including reminders, one-on-one classes, and additional parenting education.
Father also urges that once DCFS became aware of father's issues, it should have "investigated" "the reason for" them. But it was first suggested that father might have some cognitive limitations in April 2022, and DCFS asked the juvenile court to order an evaluation through the Regional Center in early June, less than two months later. An evaluation did not happen at that time because father's counsel opposed it, attributing it to "some type of a cultural difference when it comes to his communication style." As a result, father's cognitive limitations were not diagnosed for almost a year after the six-month review hearing.
With the benefit of hindsight, it appears that father may have benefited from additional or different reunification services. That is not the standard, however. To the contrary: "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." (In re Misako R., supra, 2 Cal.App.4th at p. 547.) Under the facts of this case, and especially the evolving nature of DCFS's and the juvenile court's understanding of father's special needs, substantial evidence supports the trial court's finding at the six-month hearing that father was provided with reasonable services.
II. Visitation.
"In order to maintain ties between the parent . . . and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent . . ., any order placing a child in foster care, and ordering reunification services, shall provide . . . [¶] . . . for visitation between the parent . . . and the child." (§ 362.1, subd. (a)(1)(A).) Visitation "shall be as frequent as possible, consistent with the well-being of the child," but "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(A)-(B).)
The power to regulate visits between dependent children and their parents rests with the juvenile court. (In re D.P. (2020) 44 Cal.App.5th 1058, 1070.) The juvenile court's orders will not be disturbed on appeal absent an abuse of discretion. (Ibid.)
Father contends that the juvenile court abused its discretion by denying his requests for overnight visits in his home. We do not agree. The evidence at the six-month review was that father's home remained cluttered and unclean, and there was no appropriate sleeping area for B.L. Further, the juvenile court expressed concern that the social worker seemed to need to keep prompting father, noting that because B.L. was so young, it was important for father to "be much more alert." The court thus denied father overnight visits, but set a hearing date three months in the future and ordered that if DCFS had not allowed father overnight visits by the hearing date, its report should "indicate . . . very, very specific reasons why . . . and identify any concerns." In view of the court's reasonable concerns and B.L.'s young age, this order was not an abuse of discretion.
WRIT PETITION
Father's petition for extraordinary writ is from the juvenile court's April 20, 2023 order terminating reunification services and setting a permanency planning hearing pursuant to section 366.26. Father's petition contends that substantial evidence does not support the juvenile court's finding that DCFS provided father with reasonable services, and the juvenile court abused its discretion by denying father additional services pursuant to section 352. For the reasons that follow, we disagree and will deny the petition.
Minor's counsel joins father's request that the writ petition be granted and that father be offered additional reunification services.
I. Legal standards.
"The purpose of California's dependency law is 'to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.' (§ 300.2, subd. (a).) In its effort to achieve this overarching goal, the law balances a number of vital interests: children's interests in safe and stable homes; parents' interests in raising their children; families' shared interests in each other's companionship; and the state's interest in protecting society's most vulnerable members." (Michael G., supra, 14 Cal.5th at pp. 623-624.)
"Dependency proceedings span up to four stages: jurisdiction, disposition, reunification, and permanency." (Michael G., supra, 14 Cal.5th at p. 624.) During the reunification stage, qualifying parents are offered services to address the causes that led to the loss of custody. (§ 361.5, subd. (a).) If a child cannot be safely returned to the parent within a statutorily specified timeframe, the juvenile court proceeds to the permanency stage, where it either terminates parental rights and places the child up for adoption or it selects another permanent plan, such as placement with a guardian or in long-term foster care. (§ 366.26.) Throughout the proceedings, "the juvenile court is instructed to pay careful attention to the well-being of the child, the efforts of the parent, and the services provided by the state to ensure that cases proceed to this final stage only when necessary." (Michael G., at p. 624.)
"To balance the interest in family preservation with the child's interest in the prompt resolution of her custody status and long-term placement, the dependency law establishes a detailed timeline for reunification." (Michael G., supra, 14 Cal.5th at p. 625.) For parents entitled to reunification services, the minimum length of reunification services depends on the age of the child at the time of removal. (§ 361.5, subd. (a)(1).) Parents of children under three years are presumptively eligible for a minimum of six months of reunification services (§ 361.5, subds. (a)(1)(B)), and such services are ordinarily provided for a maximum of 18 months after a child has been removed from parental custody (id., subd. (a)(3)(A) ["court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of the child's parent"]).
During the reunification stage, the juvenile court must hold periodic review hearings to evaluate the status of reunification efforts and appropriate next steps. (§ 366.21.) These review hearings ordinarily take place at six-month intervals. At each review hearing, a court evaluates, among other things, the adequacy of the reunification services offered or provided and the extent of the parent's progress. If, at the six- or 12-month status review hearing, the court finds that reasonable services were not provided to the parent, the court must extend reunification services for an additional six months. (§§ 361.5, 366.21, subds. (e)(3); Michael G., supra, 14 Cal.5th at p. 625 [describing timeline for reunification services and review hearings].) In other words, "at the six- and 12-month status hearings, the court must find that the parent has been provided or offered reasonable reunification services before the court can proceed to set a hearing to decide whether to terminate parental rights and select a permanent plan for the child." (Michael G., at p. 625.)
Our Supreme Court has recently explained that a different standard applies at the 18-month review hearing, however. The court noted that the provision governing the 18-month review hearing once expressly conditioned setting the permanency planning hearing on a determination that reasonable services had been offered or provided, but the statute was amended in 1991 to prohibit termination of parental rights only if," 'at each and every hearing at which the court was required to consider reasonable efforts or services [e.g., the six-month and 12-month review hearings], the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.' (Stats. 1991, ch. 820, § 5, p. 3649; see Stats. 2005, ch. 634, § 2, p. 4842 [shortening 'each and every hearing' in this provision to 'each hearing'; currently codified as § 366.26, subd. (c)(2)(A)].)" (Michael G., supra, 14 Cal.5th at p. 626.) Thus, "[t]hough a court at the 18-month review hearing must determine whether reasonable services have been offered or provided to the parent, an affirmative answer is not a statutory prerequisite to setting the permanency planning hearing. (Id. at pp. 629-630, italics added.)
The court further explained that unless the parent comes within the narrow statutory exceptions set forth in section 366.22 for parents who have faced specified barriers to reunification, additional services after the 18-month review period are governed by section 352. That section provides that courts may "continue any hearing" under the dependency law "beyond the time limit within which the hearing is otherwise required to be held" (§ 352, subd. (a)(1)), provided there is "good cause" (id., subd. (a)(2)) and a continuance would not be "contrary to the interest of the minor" (id., subd. (a)(1)). In evaluating the minor's interest, the court "shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (Ibid.) Thus, the Supreme Court has explained, "while an extension of services is not required under the statute, the juvenile court does have the discretion under section 352 to continue a section 366.26 permanency planning hearing-and in the meantime, to extend reunification services past the 18-month mark-in extraordinary cases. Before granting the extension, however, the court must determine that the extension, and the resulting delay to the child's permanent placement, is not contrary to the child's interests." (Michael G., supra, 14 Cal.5th at p. 634.)
Those narrow exceptions, not relevant here, provide that parents who have faced certain barriers to reunification, such as minor parents or parents recently discharged from incarceration or institutionalization, may receive an extension of services if doing so would be in the child's best interest and the permanency review hearing will occur within 24 months of the date the child was removed from the parent's physical custody. (§ 366.22, subd. (b); see Michael G., supra, 14 Cal.5th at p. 626.)
In reaching this conclusion, the court considered whether its reading of the dependency statutes raised constitutional concerns. It found no such concerns, explaining: "In enacting the dependency statutes, the Legislature sought to achieve a careful balance between family reunification on the one hand and permanency for the child on the other. [Citations.] Under this scheme, the balance tips towards permanency as the time since removal increases. [Citations.] Consistent with that general approach, the Legislature has chosen to mandate an extension of the reunification period if reasonable services have not been provided during earlier periods, but decided not to include a comparable mandatory extension provision after the child has been out of her parent's custody for a prolonged period of time. Instead, by establishing a presumptive maximum reunification period of 18 months and giving courts the discretion to extend services beyond that point in extraordinary circumstances, the statutory scheme allows courts to make case-specific determinations about how best to promote the interests of the child while protecting against the erroneous deprivation of parental rights." (Michael G., supra, 14 Cal.5th at pp. 635-636.)
The court concluded: "In sum, a parent who is denied reasonable services between the 12- and 18-month hearings is not statutorily entitled to an automatic extension of services at the 18-month review. This means the juvenile court may set the section 366.26 permanency planning hearing-and terminate services and perhaps also parental rights-even if it determines that the parent did not receive reasonable reunification services in the immediately preceding 12- to 18-month review period.... Parents who do not fall under [the narrow statutory exceptions in] section 366.22, subdivision (b) may seek a discretionary continuance of the section 366.26 hearing and an extension of reunification services under section 352. In determining whether to grant relief, the juvenile court must consider whether there are exceptional circumstances constituting good cause for the continuance and whether the continuance would be contrary to the child's interests." (Michael G., supra, 14 Cal.5th at pp. 634635, italics added.)
II. The juvenile court did not abuse its discretion by denying father additional reunification services, including overnight visits, at the April 2023 hearing.
We turn now to the present case. Father contends that he should have been granted additional reunification services because the services provided were not tailored to his special needs-that is, that father "fell through the gap in services that exists between conventional services for parents who do not have a disability and Regional Center-provided full impairment-type disability services." He further contends that he should have been permitted overnight visits with B.L. because there was not substantial evidence that such visits would have posed a safety risk to her. Accordingly, he urges, "given the exceptional circumstances Father faced," the juvenile court abused its discretion by terminating his reunification services.
Under Michael G., even if we were to agree with father that he had not been offered reasonable services and had unreasonably been denied overnight visits during the review period that preceded the 18-month hearing, we still could not reverse the juvenile court's order unless we also concluded that the court erred in finding that a continuance was not in B.L.'s best interests. That is, under section 352, a juvenile court may continue the 18-month review hearing only if there is both "good cause" and a continuance would not be" 'contrary to the interest of the minor.'" (Michael G., supra, 14 Cal.5 at p. 632.) Here, while father contends there was exceptional cause to continue the hearing, he does not contend such a continuance was in B.L.'s best interests.
In any event, based on our review of the record, we conclude that the juvenile court did not abuse its discretion by finding that offering father additional services was not in B.L.'s best interests. When father's reunification services were terminated in April 2023, B.L. had been in foster care for more than 24 months. B.L. was in a stable placement with her maternal aunt, who wished to adopt her. Father had been receiving services for approximately 18 months, but he still had not progressed to the point where either DCFS or minor's counsel recommended return of B.L. to his custody. And, while father urges that he should have been offered additional services because those provided prior to April 2023 were not tailored to his special needs, he concedes both that he was not eligible for Regional Center services, and that DCFS advised that no supportive services were available outside of Regional Center that would have met his needs. As a result, it is highly speculative that B.L. could have been placed in father's custody within the next review period even had father been offered additional services.
This is a difficult case. As father points out, B.L. was removed from father's custody through no fault of his own, and he appears to have worked to the best of his ability to create a safe home for B.L., whom he unquestionably loves and wishes to care for. Further, as this case illustrates, the dependency system is not optimally equipped to assist a parent like father, who is not disabled but has some significant special needs. Nonetheless, we are mindful that any possible remedy for the alleged deficiencies in the services offered father would affect more than just his interest; it would also affect B.L.'s interest "in a timely, safe, and stable placement." (Michael G., supra, 14 Cal.5th at p. 637.) And, as our Supreme Court has noted, the Legislature "struck a balance between these vital interests by setting a presumptive 18-month limit on reunification efforts, subject to extension in certain exceptional cases only if, among other statutory requirements, a court determines that the extension, and resulting delay, is not contrary to the child's interests." (Id. at pp. 638-638.) On this record, therefore, we find that the juvenile court did not abuse its discretion by terminating father's reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for writ of mandate is denied, and the juvenile court's orders of June 2, 2022, September 7, 2022, and April 20, 2023 are affirmed.
We concur: LAVIN, J. EGERTON, J.