Opinion
B300122
04-08-2020
In re D.P., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NICHOLAS P., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. 18CCJP00188A APPEAL from an order of the Superior Court of Los Angeles County. Nichelle L. Blackwell, Juvenile Court Referee. Dismissed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
____________________
INTRODUCTION
Nicholas P., father of 13-year-old D.P., challenges the juvenile court's finding at the six-month review hearing that the Los Angeles County Department of Children and Family Services (DCFS) provided him with reasonable reunification services. The juvenile court acknowledged DCFS did not provide reasonable services with respect to arranging visitation, but found it offered reasonable services to parents when looking at the totality of the circumstances. Father asks us to remand the matter and direct the juvenile court to enter a new order finding reasonable services were not provided. We dismiss the appeal for lack of standing because father cannot show he is aggrieved.
This is father's second appeal in this dependency matter. We dismissed his first appeal, taken from the dispositional order, as abandoned after his appointed counsel filed a brief under In re Phoenix H. (2009) 47 Cal.4th 835.
FACTS AND PROCEDURAL BACKGROUND
D.P.'s mother is not a party to this appeal. We state the facts relevant to father's current appeal.
1. Sections 300 and 342 petitions
When D.P. was born, father was in the military serving overseas. He was diagnosed with PTSD and severe brain injury following his military service. D.P.'s parents separated soon after her birth. D.P. has an older brother N.P. Father also has three children with his current wife, and three others from two former relationships. Father was granted custody of D.P. and N.P. in 2007. They lived with father, their stepmother, and their half-siblings.
San Bernardino child protective services and DCFS received several referrals alleging neglect and abuse of D.P. and N.P. that were deemed unfounded. In January 2018, the juvenile court detained D.P. from father and released her to her mother following allegations father had physically and emotionally abused D.P. In May 2018, the juvenile court sustained a Welfare and Institutions Code section 300 petition DCFS brought on D.P.'s behalf. The sustained petition alleged father physically abused D.P.; father and D.P.'s mother had a history of domestic violence, and father had threatened to kill her; and father had emotionally abused D.P., endangering her health and safety and placing her at risk of serious physical harm and emotional damage.
Statutory references are to the Welfare and Institutions Code.
Among other things, the petition alleged father pushed D.P., causing her to fracture her arm; pushed and struck her, causing marks and bruises; called her demeaning names; and exposed her to verbal and physical altercations with her stepmother. The petition also alleged D.P. was afraid of father and exhibited suicidal ideation.
The court ordered father to participate in a domestic violence program, parenting program, and individual counseling, and to engage in coparenting with mother and conjoint counseling with D.P. if her therapist recommended it. Mother was provided family maintenance services.
D.P. received individual therapy from September 2017 to June 2018. She was diagnosed with anxiety and depression and was "working on the previous abuse she was subjected to by her father." D.P. was terminated from counseling after her mother stopped bringing her consistently.
In August 2018, DCFS learned mother was going out drinking with her friends and leaving D.P. with D.P.'s stepfather for days. DCFS filed a section 342 petition on D.P.'s behalf the next month after mother had been out of the home for over a week. The petition alleged D.P. was at serious risk of harm due to mother's inability to care for her as a result of mother's alcohol abuse and failure to make an appropriate plan for D.P.'s ongoing care and supervision. The juvenile court detained D.P. from both parents and placed her in foster care.
2. Jurisdiction and disposition
In its jurisdiction/disposition report filed November 6, 2018, DCFS reported D.P. was to begin counseling with her new therapist that week. D.P.'s foster mother observed D.P. to be "a very sensitive child" with low self-esteem. She reported D.P. "appear[ed]" to have thoughts of self-harming.
DCFS informed the court the therapeutic visits it had ordered between D.P. and father "never commenced" as D.P.'s therapist "had not deemed them appropriate." The therapist believed D.P. was " 'not ready to have any type of contact with her father' " and contact with him " 'would be contradictory to her treatment.' " D.P. did have a monitored visit with father at his home in late September 2018 after she was placed in foster care. It did not go well. D.P. said father called her a " 'liar' " during the visit. DCFS recommended the court order father have no contact with D.P. except in a therapeutic setting "once deemed appropriate by the child's therapist," with no discretion to liberalize, DCFS "to walk on the matter in order to make a change in the recommendation for visits on behalf of the father."
The juvenile court sustained the section 342 petition and ordered D.P. suitably placed with her foster parents. The court ordered father to complete the same services it had ordered earlier. The court also ordered "monitored visitation for father one time a month in a therapeutic setting." DCFS had no discretion to liberalize those visits without further court order.
The referrals the juvenile court ordered be given to father in May 2018, after it sustained the initial petition, include conjoint counseling with D.P. "if recommended by her therapist." The court-ordered case plan dated November 13, 2018, orders conjoint counseling with D.P. without that qualification.
3. Six-month review period
In its status review report filed April 30, 2019, DCFS reported D.P. was in therapy and continued to experience anxiety. D.P.'s teacher reported her anxiety as " 'off the charts.' "
DCFS reported father was participating in his domestic violence counseling, coparenting classes, and individual counseling. He had completed his 26-week parenting classes. DCFS noted father had made efforts to comply with his case plan.
DCFS informed the court "there ha[d] been some delay in initiating the visits" between father and D.P. D.P. "vacillated" about having contact with father. A child and family team (CFT) meeting between DCFS staff, the therapist, and father had been scheduled for April, but was canceled due to the social worker's illness. DCFS noted father and his wife called the social worker at least weekly to ask about D.P.'s well-being and to ask the social worker to express to D.P. their love and concern for her.
At the May 14, 2019 six-month review hearing, father's counsel asked the court to set a contested hearing on the issue of reasonable services for father's visitation. She informed the court father had not had any visits with D.P. in six months, and a CFT meeting had not been held. The juvenile court set a contested hearing on the issue of visitation. When asked if father could have telephonic visits with D.P., the court responded, "No. I ordered visits in therapy . . . . I said [DCFS] has no discretion to liberalize visits so that's the only place visits shall occur. Based on statements of [D.P.], I believe it would be detrimental to order visits outside of therapy. She's still having a lot of trauma and a lot of nightmares and a lot of confliction, I'm not going to force her to have those visits, except for the therapeutic visits I ordered."
DCFS provided its delivered service logs in advance of the contested six-month hearing. The logs provided more detail about D.P.'s visit with father on September 25, 2018. D.P. was looking forward to her visit with her father, stepmother, brother N.P., and half-siblings. She said she missed her father but was "a little scared of him." D.P. was pleased father had kept her room the way she liked.
The logs show father called the DCFS social worker in October 2018 to ask about setting up another visit with D.P. He asked the social worker to tell D.P. they loved and missed her and couldn't wait to see her again. D.P. told the social worker she would like to have a second visit with father at his home. In late November 2018, after D.P. told the social worker she missed her brother, "misses them all," DCFS made a note to check the court's visitation order to see if father could contact D.P. by phone. On February 6, 2019, after reviewing the visitation order, the social worker left a voice message for D.P.'s therapist to schedule a date for father to visit with D.P. DCFS reported D.P. was "showing some hesitancy" about visiting father. The social worker told D.P. father was making efforts to complete his court-ordered services. She also told D.P. "visits with her father will only start when [D.P.] and her therapist agree it is time." D.P. was "fearful of possible physical and emotional abuse from her father."
On February 20, 2019, the social worker left a second message for D.P.'s therapist about the need to schedule father's monthly visits. Father called the social worker in early March to ask about his visits with D.P. Around the same time, D.P.'s foster mother told the social worker D.P. seemed depressed that no relatives called her. The social worker explained father and his wife call "almost daily," but father's calls would need to be closely monitored. The social worker called the therapist again about initiating visits between father and D.P. The therapist reported D.P. was "making conflicting statements . . . about wanting to see Dad/not wanting to see Dad."
Father again called in mid-March to ask if there was "any news" as to his visits with D.P. He said he had been "trying for months" and missed D.P. He asked for an update on D.P. and again expressed his love for her and that the family missed her. He also updated the social worker on his progress with his court-ordered services. The social worker then spoke with the therapist's supervisor and asked for an update on when the court-ordered visits in a therapeutic setting would occur. She asked the supervisor to "attach some urgency to providing" the visits.
D.P.'s teacher called DCFS in early April 2019. She was "very, very concerned" about D.P. She explained D.P. was lying daily, in tears every day, picking at herself, having anxiety, and wanting to see the school psychologist every day. The teacher described D.P. as having had "a complete melt down" over fears about seeing her father. At the same time, D.P. told a social worker, " 'I worry that I am never going to see my family because my social worker said she was going to make arrangements for meet [sic] with them and I never did.' "
In its status review report filed July 9, 2019, DCFS informed the court D.P. had no visits from relatives during the past six months. It acknowledged father wanted to visit D.P. but stated D.P.'s therapist was not in agreement. The therapist " 'was concerned that it was not appropriate to have visits with dad since [D.P.] had no visits with him prior.' " D.P. was depressed about having no contact with her family.
DCFS reported father had made progress in his case plan and provided documentation showing his participation in and completion of court-ordered programs. 4. July 17 , 2019 contested six-month review hearing
DCFS submitted a last minute information for the court on the day of the contested six-month review hearing. It reported D.P. recently told a social worker she wanted to talk to her brother N.P. D.P. said she did not want to live with father or be involved with him "because he doesn't love me, he just wants to clear his name." She said she had to talk to father or she would not be able to see her brother. D.P. said she had "bad dreams thinking about being with" father. She did not think he and her stepmother would take care of her "like they should."
DCFS also reported a recent call it had with father. Father sent family photographs to the social worker to share with D.P. He told the social worker he had not seen D.P. since 2017 and "[n]o proper investigation was done."
At the hearing, father's counsel argued there was at least a period of three months during which DCFS "did absolutely nothing" to facilitate visits between D.P. and father. She asserted the social worker either misunderstood the court's visitation order or did not follow it, noting the social worker told D.P. visits with her father would begin only when D.P. and her therapist agreed to start them. Counsel noted the social worker did not start contacting D.P.'s therapist until after receiving almost daily calls from father and told the court the CFT meeting scheduled for April 2019 never took place. Father's counsel argued the therapist's assertion D.P. had not had visits with father was not true—they had visited before the last review period and those visits "were going well." Counsel argued DCFS had alienated D.P. from her family, leading D.P. to believe no one loved or cared about her and no one was reaching out to her.
D.P.'s counsel agreed DCFS may have misinterpreted the court's visitation order, thinking visitation was to be at the therapist's discretion, which was not the order. Also, D.P. learned only that week that her father had been reaching out and asking about her over the past six months. D.P.'s counsel believed D.P. still had fear and anxiety about having visits with her father. She told the court D.P. was willing to visit with father. D.P. wanted the court to know she "desperately" wants to see her brother and believes having therapeutic visits with father "is a way to get close to her siblings again." D.P.'s counsel recommended therapeutic visits begin with a new, neutral therapist and suggested D.P. and father begin writing each other letters before the visit. She submitted the matter of reasonable services to the court.
The juvenile court noted visitation "is a critical component of reunification services" and its previous order was for father to have once-a-month visits with D.P. in a therapeutic setting. It acknowledged its order gave no discretion to liberalize, meaning "it was incumbent upon someone" to bring the issue to the court's attention so the court could adjust its order. The juvenile court agreed DCFS "did not make a significant enough effort to comply" with its order and leaving visitation to the therapist's discretion was "highly inappropriate." It said, "I do believe that in some respects [DCFS] failed this family with respect to the visitation order."
The court acknowledged services concerning visitation were not reasonable, but in looking at the "full totality of the circumstances," it concluded the overall services DCFS provided to D.P. and her parents were reasonable. The court found father "basically fully complied with everything the court has ordered." The court noted the only thing left for father to do was engage in conjoint counseling with D.P. "to begin this whole process of healing the family."
The court found D.P. remained at risk of substantial detriment to her well-being if returned to one or both of her parents at that point, but father had substantially complied with his case plan and shown his ability to reunify with D.P. The court concluded DCFS provided reasonable services and extended those services for both parents, setting a 12-month review hearing date in November 2019. It ordered DCFS "to immediately initiate a therapeutic visit referral for [D.P.] and her father with a new neutral therapist," up to two times a month. The court also gave DCFS discretion to liberalize the visits.
Father appealed from the juvenile court's "7/17/18 [sic] finding of reasonable services."
DISCUSSION
DCFS contends the juvenile court's July 17, 2019 finding that DCFS provided reasonable reunification services is not an order and, thus, not appealable. DCFS relies on Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147. There, the court held section 395 does not permit an appeal from a reasonable services finding "unless the court takes adverse action based on that finding, because, in the absence of such action, there is no appealable order resulting from that finding." (Id. at p. 1154.) Our Supreme Court has since clarified section 395 permits review of a juvenile court's finding by an appeal from the related order. (In re S.B. (2009) 46 Cal.4th 529, 534 [holding order to search for adoptive family under § 366.26, subd. (c)(3) and associated findings reviewable on appeal]; see also In re T.G. (2010) 188 Cal.App.4th 687, 696 (T.G.) [holding reasonable services finding contained within order made at six-month review hearing that was "adverse to [father's] parental interest in reunification" appealable].)
Section 395, subdivision (a)(1) states: "A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment."
Here, father's notice of appeal identifies the order being appealed as the "7/17/1[9] finding of reasonable services to the father." Even though the notice of appeal states father is appealing from the reasonable services finding, rather than the juvenile court's order, we apply the principal of liberal construction and construe the notice as appealing from the July 17, 2019 order following the six-month review hearing under section 366.21, subdivision (e). (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450 [notice of appeal to be liberally construed].)
Nevertheless, the fact the order is appealable is not sufficient to allow us to reach the merits of the juvenile court's reasonable services finding. "Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal." (In re K.C. (2011) 52 Cal.4th 231, 236, italics added.) An aggrieved person, for purposes of standing, "is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence." (Ibid.)
The question then is whether father's interests were "injuriously affected" by the reasonable services finding. We conclude they were not.
At the six-month review hearing, the juvenile court must order the child returned to her parent(s) unless the court determines return would be detrimental. (§ 366.21, subd. (e)(1).) If the child is not returned, "the court shall determine whether reasonable services that were designed to aid the parent . . . 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." (Id., subd. (e)(8); § 366, subd. (a)(1)(B) [at each status review hearing the court shall determine "[t]he extent of the agency's compliance with the case plan in making reasonable efforts . . . to return the child to a safe home"].) If reasonable reunification services have not been provided, "the remedy is to extend the reunification period, and order continued services." (In re Alvin R. (2003) 108 Cal.App.4th 962, 973-974.)
Here, the juvenile court continued the case to the 12-month review hearing and ordered DCFS to provide father an additional six months of reunification services—the remedy father would have received had the court made the no-reasonable-services finding father seeks by this appeal. Indeed, the court not only continued reunification services, but also expanded its visitation order to allow DCFS to liberalize visits. And, it ordered DCFS immediately to initiate a therapeutic visit referral with a new, neutral therapist, not D.P.'s current one who failed to arrange visits.
Thus, father has not shown he was aggrieved by the court's order. The juvenile court made no findings adverse to father when it found DCFS offered him reasonable services. To the contrary, the court was complimentary toward father, finding it "clear" he was "in very significant compliance, virtually substantial compliance" with his case plan. The court found father had been "actively engaged in the services and programs," and he had shown the court "his ability, capability and desire to reunify."
The juvenile court's findings here are in direct contrast to those in T.G., relied on by father. The juvenile court there also found reasonable services had been offered at the six-month review hearing and ordered services be continued. But it found the father's progress in alleviating the causes necessitating the dependency "inadequate," and that he had failed to make substantive progress in completing the case plan. (T.G., supra, 188 Cal.App.4th at p. 691.) Because the trial court found father's progress inadequate, the Court of Appeal could not "say for certain that no negative consequences flowed from the court's finding that reasonable services were provided up until the six-month review hearing." (Id. at pp. 693-694.) As a result, the Court of Appeal concluded the father could seek review of the order finding reasonable services. (Id. at p. 696.) Father here, however, has presented no evidence he was injuriously affected by the juvenile court's order.
Finally, we are not persuaded by father's argument he has been substantively affected by the order finding he was offered reasonable services because he will be "place[d] at a procedural disadvantage with respect to the subsequent review hearing." Again relying on T.G., father argues he will face the presumptive maximum time limit for reunification at the 12-month review hearing and must meet heightened standards—i.e., the " 'substantial probability' of return" standard—to receive additional services, without having received reasonable services during the first six-month review period. (T.G., supra, 188 Cal.App.4th at p. 695; §§ 366.21, subd. (g)(1), 361.5, subd. (a)(3) [court shall extend case and services only if "there is a substantial probability that the child will be returned" to parent's custody].) But father suggests no reason why the reasonable services finding at the six-month hearing will prejudice his ability to demonstrate a substantial probability of return at the 12-month hearing.
Father also argues the erroneous finding places a parent at a procedural disadvantage because section 366.26, subdivision (c)(2)(A) requires a finding that reasonable services were provided before parental rights may be terminated. We are not convinced a parent who may suffer a potential adverse consequence in the future has had his "rights or interests . . . injuriously affected by the decision in an immediate and substantial way." (In re K.C., supra, 52 Cal.4th at p. 236, italics added.)
Nothing we have said should be understood to imply DCFS appropriately handled visitation in this case or that a failure to implement visitation between parents and children as ordered by the juvenile court is without consequences. We are troubled by DCFS's misreading of the juvenile court's order to leave visitation in the child's therapist's control. Nevertheless, even if we were to conclude father did not receive reasonable reunification services, we could do nothing more than order the additional six months of services the juvenile court already has ordered. We therefore decline to reach the reasonable services question on the merits. (See In re N.S. (2016) 245 Cal.App.4th 53, 58 ["[I]t is a court's duty to decide ' " 'actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' "].)
DISPOSITION
Father's appeal from the reasonable services finding contained in the juvenile court's July 17, 2019 order is dismissed due to father's lack of standing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.