Opinion
F077238
10-18-2018
In re K.N. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. A.N., Defendant and Appellant.
Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 517729, 517730)
OPINION
THE COURT APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Angela N. (mother) appeals from an order of the juvenile court after a Welfare and Institutions Code section 366.21, subdivision (f), 12-month review hearing at which her reunification services were terminated and a permanent plan of long-term foster care was selected for her two children, K.N., now age 15, and I.K., now age 12. Mother contends the juvenile court erred in failing to force K.N. to visit mother against his will and that reasonable services were not offered. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
STATEMENT OF THE CASE AND FACTS
Detention
On October 11, 2016, the Stanislaus County Community Services Agency (agency) filed a petition under section 300, subdivision (b)(1), alleging mother failed to protect K.N. and I.K. from harm due to domestic violence in the home. The children were detained on October 6, 2016.
The petition also included a section 300, subdivision (g) allegation that the children were left without provision for support. That allegation was dismissed once K.N.'s father, C.N., was located in Hawaii. Since mother and C.N. were still married, the juvenile court found C.N. to be the presumed father of I.K. as well, although it was reported that I.K.'s biological father was deceased. C.N.'s reunification services were terminated once he failed to continue contact with the children and failed to cooperate with the Interstate Compact of Placement with Children (ICPC) proceedings in Hawaii. C.N. is not a party to this appeal. --------
The report in anticipation of detention alleged a history of domestic violence in the home between mother and her longtime boyfriend, John A. Police reports, photographs of mother's injuries, John A.'s multiple arrests for corporal injury to a spouse or cohabitant, and the children's statements that they had witnessed domestic violence in the home substantiated these claims. K.N. reported that he and I.K. preferred to live with maternal grandmother "as they did in the past." According to K.N., they lived with grandmother for 10 years before mother moved then into John A.'s house.
Mother minimized the domestic violence and claimed the problems were her fault. When confronted with the children's statement of witnessing John A. abusing mother, mother stated the children lied because they wanted to live with grandmother. When the children were removed from the home, mother yelled at them that this was their fault for lying.
At the October 12, 2016, detention hearing, the juvenile court ordered the children detained and removed them from the home. Mother was referred for a "Substance Abuse Disorder (SUD) Assessment," and Sierra Vista for parenting classes and domestic violence victim and individual counseling. Jurisdiction/disposition was set for November 9, 2016. Jurisdiction/Disposition
The report prepared for jurisdiction/disposition stated both children wanted to live with maternal grandmother (hereafter grandmother). Mother reported that she had experienced abuse and neglect as a child and did not want her children placed with grandmother, as it was not a safe environment for them.
The agency reported mother continued to significantly minimize the domestic violence that occurred between her and John A. and deny the impact of domestic violence on the children. The agency expressed concern for the children's safety and mother's inability to function as a protective parent.
At the scheduled jurisdiction hearing November 9, 2016, the juvenile court, after implying discussions about visitation had taken place off the record, ordered therapeutic visits between mother and the children. The hearing was trailed to December 12, then December 22, 2016, and a contested hearing was set for January 19, 2017.
An addendum report signed December 8, 2016, reported mother consistently visited with I.K., but explained that K.N. refused to visit with mother after walking out of his first visit on October 17, 2016, due to "significant" "trauma and emotional turmoil" that had taken place in the home.
In an addendum report signed January 13, 2017, the agency documented a report from mother's clinician MaryAnne Cose that K.N. refused to participate in the therapeutic visits, even though Cose encouraged him to attend. K.N. insisted mother "lies."
The agency continued to recommend that the children be adjudged dependents and remain in foster care. Mother was to continue reunification services.
At the contested jurisdiction/disposition hearing January 19, 2017, mother, through counsel, made an offer of proof that she was a battered woman and experienced severe trauma. Mother wished the children returned to her and while visits were going well with I.K., mother wanted to know what K.N. was "mad about [and] what he feels she[] lied about." The agency stated it would be willing to add family counseling to the case plan to help in this regard. Mother also requested that visits be held back at the agency, as therapeutic visits had not been beneficial. Visits were ordered to be at the agency and supervised.
The juvenile court found the allegations of the petition true and found by clear and convincing evidence that return of the children to mother's custody would create a substantial risk of harm. Placement continued to be necessary and appropriate. The juvenile court addressed mother, stating, "I really believe that a big problem with K[.N.] is that he's just tired of it, he just wants to live like a normal child." Because mother continued to minimize the domestic violence, the court stated, "you have a lot of damage to repair with your children, especially K[.N.]" and "Denial is not an easy place to get out of."
Mother's case plan contained a service objective that mother "process and understand the ramifications of the domestic violence that has occurred in her relationship and its negative influence on her children." Mother was to attend and successfully complete individual counseling to focus on domestic violence victim issues, corresponding anger, mother's pattern of unhealthy lifestyle choices and childhood trauma. Mother was also to complete a parenting program at Sierra Vista, have a substance abuse assessment and recommended treatment, and participate in drug testing.
The juvenile court found the agency had complied by making a case plan providing reasonable efforts to make it possible for the children to safely return home. Mother's progress to date was found to be limited; father C.N.'s progress nonexistent. The court ordered mother and the children to also participate in family counseling. The six-month review hearing was scheduled for July 13, 2017. Six-Month Review
The June 27, 2017, report prepared in anticipation of the six-month review hearing recommended mother continue to receive reunification services, but terminate services as to father C.N. It was recommended that the children, who had been in the same placement since they were first detained, remain in foster care.
Mother continued to participate in reunification services, including individual counseling, domestic victim counseling, and domestic violence support. Mother completed parenting classes. She was also referred to a domestic violence offender program because both children reported that they had seen mother attack John A. as well.
Mother's domestic violence assessment chronicled the long history of her own abuse at the hands of grandmother. Counselor Cose recommended mother continue both the support group and the individual counseling to address domestic violence and childhood trauma.
Visits between mother and I.K. continued. However, K.N. would not visit or participate in family counseling. According to K.N., he gave visits with mother a try but, on the first visit, mother "wanted to talk a bunch of crap, that was enough for me, I'm done." K.N. said he still did not want to see mother and wished to reunify with grandmother. I.K. also wanted to be with grandmother.
Mother insisted her problems stemmed from grandmother's treatment of her, as she grew up being abused by grandmother and sexually molested by grandmother's boyfriend. Mother stated grandmother puts things in K.N.'s head and speaks badly about her to the children. According to mother, K.N. wanted to live with grandmother because there were no rules in her home. In contrast, mother claimed that when the children lived with her, she did not have Internet and was strict.
The social worker noted mother was still minimizing the domestic violence and blaming much of her problems on grandmother. Mother continued to maintain contact with John A.'s family. According to mother, John A.'s family paid half the rent and utilities, but that she had removed John A.'s name from the lease.
The agency continued to opine that returning the children to mother would be detrimental, as she had limited insight into her part in the children's circumstances and had not addressed the issue that caused the children to be detained. Mother instead was preoccupied with the trauma from her own childhood and fractured relationship with grandmother.
At the six-month review hearing held July 13, 2017, mother's counsel argued that mother had complied with every service ordered and the agency was still not satisfied with mother's progress. Counsel requested increased visits with I.K. And in response from the assessment received from clinician Cose, mother's counsel also requested "trauma-informed" or "intensive trauma counseling" be incorporated into mother's individual counseling to address her past trauma. The agency, while not wishing to identify the counseling mother had received to date as "simple therapy," did not object.
The juvenile court found that return of the children to a parent would create a substantial risk of detriment to their safety and continued them as dependent children. Reunification services for mother were ordered to continue and the juvenile court found mother's progress toward alleviating or mitigating the causes that necessitated the removal of the children was "limited." A section 388 petition filed by the agency requesting that father C.N.'s reunification services be terminated was granted.
The juvenile court modified visitation between I.K. and mother, allowing the agency discretion to expand visits to overnight. No mention was made of any changes to visitation for K.N., which remained at a minimum of two hours, once a week, with discretion by the social worker to increase visits. After counsel for both children stated that the children were "very trepidatious about engaging in long-term visitation at this point," the juvenile court stated the social worker would consider the wishes of the children when it came to visits. A 12-month review was scheduled for November 27, 2017. 12-Month Review
In anticipation of the 12-month review hearing, the agency report stated mother still resided in the same residence where she lived with John A., and his family continued to help with expenses. Mother claimed she did not have contact with John A., but she was pregnant and due in January 2018. Mother did not give the name of the father, but stated he was a former friend. Mother told the social worker John A.'s family was supportive of the pregnancy and John A. was willing to be supportive of the baby. Mother continued to maintain that she had no contact with John A., but asked if he could be included in counseling as she believed he had changed for the better.
The children's counselor reported that the children were having concerns and anxiety regarding the possibility that they could be separated.
Clinician Cose recommended mother have a psychological evaluation because mother appeared to be stressed, blaming grandmother for much of the situation. According to the counselor, mother "has not seemed to get a grasp on not engaging in toxic relationships." As of the end of October 2017, mother had attended 20 domestic violence program classes and was assessed as a moderate risk for further abuse/violence, which was a standard assessment for clients who had completed less than 26 domestic violence program classes.
The Court Appointed Special Advocate (CASA), noted the children seemed adjusted in foster care, although K.N. had "dips into" depression and I.K. was doing poorly in school. The CASA noted the foster family provided attention, flexibility, and acceptance, but "perhaps not deep affection" towards the children. And the children wanted the juvenile court to know that they wished to live with grandmother, as they did not feel safe at home with mother.
Dr. Cheryl Carmichael did a psychological evaluation of mother, dated October 25, 2017, which detailed the alienation and conflict mother experienced in her own family. According to mother, grandmother and mother's siblings continued to blame her for ruining the family with allegations of sexual abuse. Comments were made to the children conveying that mother was at fault for doing "nasty, bad stuff" on her own volition with her father and step-father. Dr. Carmichael opined that, as a result, mother faced daily antagonism from her family and the children were forced to take sides. As long as K.N. was allowed to refuse visitation, mother could not address the issues. Dr. Carmichael opined mother was very capable of successfully reuniting with the children, but in order to do so, would need to have contact with them. In addition, contact with grandmother would need to be stopped or supervised.
The agency reported that the children consistently identified grandmother as their support person, and their primary parent-child relationship. But while both children wanted to live with grandmother, she was not an appropriate placement, due to past child abuse and domestic violence in her own home. At their request, the children were allowed to have unsupervised visits with grandmother at the foster agency site.
The agency agreed that, in order for mother to successfully reunify with the children, mother had to have contact with both K.N. and I.K, but the agency did not support the idea of forcing K.N. to visit mother. K.N. was adamant grandmother had raised him, he loved her, and that mother had taken him from his home with grandmother.
The agency opined it would be detrimental for K.N. to be reunified with mother, based on K.N.'s consistent expressed anger towards mother and complete lack of desire to visit or live with her. K.N. never wavered in his feelings of mother. K.N. stated mother has had repeated chances to change in the past and has not done so. I.K. was open to participating in family counseling and expressed a desire for community visits with mother, but he did not want to live with her. He also did not want to be separated from K.N.
The agency recommended mother continue to attend the domestic violence support group and individual counseling to address domestic violence victim issues, corresponding anger, a pattern of unhealthy living choices, and childhood trauma. The agency recommended family reunification services be continued for I.K., but terminated to mother for K.N. The agency described mother's progress as fair with I.K., and poor with K.N., and it was not likely additional services would result in reunification. The agency recommended a permanent plan of continuance in foster care for K.N. As for I.K., the agency opined there was a substantial probability he would be returned to mother within 18 months from removal, as mother had consistently contacted and visited him.
Although the agency recommended termination of reunification services to mother for K.N., it stated there existed a compelling reason a section 366.26 hearing was not in his best interests, as he was not adoptable, there was no suitable adult who offered to be a legal guardian, and there was not a fit and willing relative with whom he could be placed.
An addendum report signed November 20, 2017, stated K.N. continued to feel strongly about not visiting or reunifying with mother. I.K. continued to express that he did not want to live with mother, but did want to continue visits. I.K. reported that he believed mother was still in a relationship with John A. and that he was the father of the new baby. According to I.K., mother had stated to him that John A. was family, his children were family, family should stick together, and "what happens in the family stays in the family."
Clinician Cose reported that mother completed her parenting classes and domestic violence victim counseling. She was able to identify red flags in relationships, define a healthy relationship, and was provided information on the impact of domestic violence on children. Mother had engaged in individual counseling dealing with her relationship with grandmother and was reported to have improved in maintaining boundaries and abandonment issues. Mother was now assessed as a low risk for further abuse/violence.
In an additional addendum report signed January 18, 2018, the agency changed its recommendation from terminating reunification services for K.N. to terminating reunification services for both children. Mother delivered a baby girl in November 2017, which the agency removed due to evidence that she was still in a relationship with John A. Mother still had not expressed an understanding of why her children were removed from her in the first place. Mother had still not admitted actual physical violence occurred in her relationship with John A., save for one incident, which she described as "'a little physical.'" Clinician Cose also reported that mother only admitted one incident of past physical violence. Mother's counselor for the domestic violence offender group stated mother did not report that John A. was physically violent with her, only verbally and emotionally.
The social worker believed mother was still in a relationship with John A. Mother had asked the hospital social worker if Child Protective Services (CPS) would be mad if she gave the baby John A.'s last name. Mother eventually gave the baby both her and John A.'s last names, because mother said John A. had been supportive. Although his name was not on the birth certificate, John A. had visited mother in postpartum after delivery. Mother told the social worker John A. was not the baby's father, but he would like to be. But mother also again claimed she and John A. had not been together since the children were removed. According to mother, John A.'s sister provided a channel for her to communicate with John A. and his sister helped with rent and utilities. During a visit to mother's residence by the social worker, mother explained that the baseball caps in the bedroom and male toiletry items in the bedroom and bathroom were John A.'s, which she had never removed after he left.
The agency report noted that, while dependency proceedings began in September of 2016, mother had only recently admitted there had been a physical altercation between herself and John A., and that occurred only after her newborn was removed from her care. This was in stark contrast to the police report on why the children were removed. The social worker concluded that mother had not adequately addressed the causes for why her children were removed and she continued to have contact with John A. The agency opined that it was unlikely further services would result in reunification. It recommended the juvenile court establish a permanent plan of continuance in foster care for both K.N. and I.K.
At the contested 12-month review hearing held January 29, 2018, the juvenile court found the children had been exposed to a significant history of domestic violence and that K.N. had been adversely impacted by it. The juvenile court found most significant that mother still remained in denial about the abuse and, if she was in denial, she could not make the necessary changes to ensure the children's safety if returned home.
The juvenile court found that return of the children to mother's care would create a substantial risk of detriment and that the children's placement was necessary and appropriate. The juvenile court found mother's progress towards alleviating or mitigating the causes necessitating removal of the children was limited. It also found clear and convincing evidence reasonable services were offered or provided to mother. Reunification services were terminated.
The juvenile court ordered the children to be continued as dependents of the court and that they remain in a suitable placement. The court found clear and convincing evidence that there was a compelling reason not to set a section 366.26 hearing, as it would not be in the best interests of the children as they were not proper subjects for adoption and no one was willing to accept guardianship.
DISCUSSION
I. VISITATION
Mother contends the juvenile court erred by failing to enforce its visitation order granting weekly visits between mother and K.N. Mother argues that allowing K.N. to refuse to attend the visits in essence delegated him the right to control visits with mother. We find no error.
Section 362.1, subdivision (a), provides, "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 as follows: [¶] (1)(A) Subject to subparagraph (B), for visitation between the parent ... and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child." Subdivision (a)(1)(B), in turn, provides in relevant part, "No visitation order shall jeopardize the safety of the child."
There is no dispute that the juvenile court's visitation order here, which provided for a minimum of one two-hour visit per week, complied with this statute. Mother's contention is that the court failed to enforce its order, a contention based on In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.).
In Hunter S., an appeal from an order terminating parental rights and denying a section 388 petition, the five-year-old minor was detained and placed with a grandmother while the mother was incarcerated. (Hunter S., supra, 142 Cal.App.4th at pp. 1500-1501.) The mother kept contact with the minor via monthly letters. (Id. at p. 1501.) When the mother was released over a year and a half later, she entered a rehabilitation center where she attempted to maintain contact with the minor via phone. The minor spoke with her a few times, but began refusing to accept her calls and stopped writing letters back to her. (Ibid.) The minor told his therapist he did not miss his parents, he felt safe and comfortable with his grandmother, he was tired of his mother lying to him and he was afraid he would be exposed to more neglect if returned to her. (Ibid.) The juvenile court ordered visitation "'as can be arranged'" through mother's rehabilitation center program. The minor, however, continued to refuse visits, despite efforts by the social worker, his relatives, and his therapist to get him to do so. (Ibid.)
Meanwhile, the mother was sober and employed and continued to attempt to visit the minor, to no avail. (Hunter S., supra, 142 Cal.App.4th at p. 1502.) The minor received extensive therapy, but he mostly refused to talk about his mother, and grew uncharacteristically angry when the therapist pressed the issue. (Ibid.)
In the postpermanency planning stage, the minor continued refusing visits. Mother asked the court to permit visits in a therapeutic setting. (Hunter S., supra, 142 Cal.App.4th at p. 1502.) The juvenile court ordered the social worker to "discuss the matter with [the minor's] therapist in an attempt to move the issue forward at an appropriate pace, so joint counseling could take place." (Ibid.) At a subsequent 366.26 hearing, after both the minor and caregiver agreed to adoption, the court refused the mother's renewed request to change the court's order to enable her to get joint therapy with her son. (Hunter, supra, at p. 1503.) Subsequently, one visit occurred, with mixed results. Afterwards, the mother filed a section 388 petition, seeking changes to the visitation order, but the court denied the petition and terminated parental rights. (Hunter S., supra, at pp. 1503-1504.)
The Court of Appeal found the trial court erred in ordering visitation "'as can be arranged.'" (Hunter S., supra, 142 Cal.App.4th at p. 1505.)
"While the court granted visitation in theory, none was permitted in reality. This situation was, to some extent, the consequence of decisions made by [the minor's] therapists to give the child time to come to terms with his negative feelings about [the mother]. In the end, however, [the minor]
himself was given virtually complete discretion to veto visitation, and indeed all contact, with his mother, a discretion he exercised without any oversight or direction by the court. This was clearly improper. The juvenile court cannot impermissibly delegate to the child's therapist, [social services] or any third person, unlimited discretion to determine whether visitation is to occur." (Ibid.)Other courts have held similarly. (See In re S.H. (2003) 111 Cal.App.4th 310, 318 [error to order visitation subject to the condition, "'if the children refuse a visit, then they shall not be forced to have a visit'"]; In re Julie M. (1999) 69 Cal.App.4th 41, 48-49 [abuse of discretion to order visitation subject to obtaining children's consent prior to each visit]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1477-1478 [error to order father to have no visitation rights with children without permission of minors' therapists].)
We agree with Hunter S. to this point, but find it distinguishable. The juvenile court here did not order visitation "as can be arranged," or in any other manner that created uncertainty about whether mother was, in fact, entitled to visitation. Instead, at detention, the juvenile court ordered visitation, "at least weekly," but cautioned that, at no time, was John A. allowed to attend the visits.
In Hunter S., the court went on to discuss the juvenile court's errors in terms of a failure to enforce the order: "The visitation order was never enforced simply because [the minor] continued to refuse any contact with his mother. This failure to enforce the order was error." (Hunter S., supra, 142 Cal.App.4th at p. 1505.) Recently, in In re Sofia M. (2018) 24 Cal.App.5th 1038 (Sofia M.), decided after briefing in this case was complete, the court found this language in Hunter S. "risks conflating two distinct issues: the propriety of the order, and its enforcement. Further, it suggests that the court errs when the child refuses a proper visitation order. To the extent Hunter [S.] stands for those propositions, we disagree. The court does not err by failing to do that which it is not requested to do." (Sofia M., supra, at p. 1046.)
In Sofia M., after the mother left 14-year-old Sofia and her six siblings and half siblings with grandmother and took off yet again, the grandmother contacted law enforcement and told a social worker that the mother had been leaving the children with her and other relatives for three-four days each week, without adequate supplies or authorization for medical care. Sofia, her grandmother, as well as other relatives, told the social worker that the mother had a substance abuse problem. (Sofia M., supra, 24 Cal.App.5th at p. 1040.) When the social worker interviewed Sofia, the teen reported that her mother failed to take care of her and her siblings, failed to provide food, and was "'a mess.'" Sofia said she felt safe with her grandmother, but not with her mother, who accused her of stealing, threw things at her, and acted "'different.'" (Id. at pp 1040-1041.)
A dependency petition was filed, Sofia was detained, and reunification services and visitation were ordered for her mother. The mother failed to make consistent contact with Sofia, tested positive for methamphetamine twice, missed the rest of her drug tests, and made no progress in her reunification plan. When the mother was late to her first monitored visitation with Sofia, the teen was reduced to tears. After that, the mother failed to visit regularly and was eager to leave her visits. Sofia finally told the social worker that she did not want to visit with her mother anymore. (Sofia M., supra, 24 Cal.App.5th at pp. 1041-1042.)
The social worker spoke with Sofia's therapist, who relayed that Sofia had been very sad, felt that her parents had let her down, and was adversely affected by her mother's visit. When it finally sank in that she could lose her parental rights to Sofia, the mother made belated efforts to comply with her reunification plan. She completed some services and tested negative for drugs most of the time, but Sofia continued to refuse to see her. (Sofia M., supra, 24 Cal.App.5th at p. 1042.) The social worker reported making efforts to get Sofia to visit with her mother, but Sofia said she was not ready. (Id. at pp. 1042-1043.) Despite the social worker's efforts to facilitate visitation, Sofia adamantly refused. The juvenile court scheduled visitation at a time convenient for the mother and granted her request for visitation inside a therapeutic setting, but nothing could sway Sofia. (Id. at p. 1043.)
At the section 366.26 hearing, the mother moved for modification, claiming the juvenile court had failed to enforce its visitation orders. However, Sofia's attorney argued that the mother-child relationship had broken down long before the juvenile court became involved and that at her current age of 15, Sofia could not be forced to visit her mother. (Sofia M., supra, 24 Cal.App.5th at pp. 1043-1044.) After denying the modification request, the juvenile court heard testimony from Sofia, who stated that her mother had "'never been there for me,'" while her aunts had been, and that she wanted to be adopted by her aunts. The juvenile court then found Sofia was adoptable and terminated the mother's parental rights. (Ibid.)
On appeal, the court noted that the juvenile court's order complied with the statutory requirements for visitation to be "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1) & (2).) The mother, however, relied on Hunter S. to contend that the juvenile court impermissibly failed to enforce its orders. The Sofia M. court found Hunter S. was factually distinguishable in that the juvenile court order in that case authorized visitation "'as can be arranged,'" unlike the order in Sofia M. which specifically ordered visitation twice a week for four hours and was not ambiguous as to whether the mother had visitation rights. The court outright disagreed with the part of Hunter S. in which that court suggested that a child's refusal to comply with a visitation order constitutes a juvenile court error. (Sofia M., supra, 24 Cal.App.5th at p. 1046.)
The court in Sofia M. explained that where a child refuses to comply with a visitation order, the parent has the burden of requesting either a specific type of enforcement or a specific change in the visitation order. In Sofia M., the mother failed to make such a request; the lower court did not have the burden of coming up with a solution sua sponte "to the intractable problem of a child's steadfast refusal to visit a parent." (Sofia M., supra, 24 Cal.App.5th at p. 1046.) The court pointed out that the only request the mother made was for visitation in a therapeutic setting, a request that the juvenile court granted. Summing up, the court held that a child's continued refusal to visit is not a basis for reversal where, as here, the juvenile court has made reasonable efforts to authorize and facilitate visitation. (Id. at pp. 1046-1047.)
We find the facts in Sofia M. similar to those here and find its reasoning persuasive. K.N. attended an early visit with mother along with I.K. During that visit, mother began by inappropriately placing the blame for her situation on the children. This resulted in K.N. leaving the visit and sitting for the remainder of the visit in the visitation office. K.N. was tearful and did not want to visit with mother because she was blaming him for "everything that happened," referring to the involvement of CPS. K.N. discussed incidents of domestic violence between mother and John A. "as his eyes filled up with tears."
At the next court hearing, this incident was discussed and the juvenile court ordered therapeutic visits. The agency complied by setting up therapeutic visits at Sierra Vista with clinician Cose to conduct weekly visits. Cose reported that K.N. was brought to therapeutic visits twice, but he refused to participate even though she encouraged him to do so. In visits with I.K., mother had to be reminded to focus on the child rather than the court proceedings. Mother reported that, in the therapeutic visits, I.K. had limited communication and it was mother, not K.N. or the agency, who requested the weekly visits be returned to the agency instead.
As the result of mother's request, the visits were once again held at the agency. The agency then suggested adding family counseling to the reunification plan to aid in healing the damaged relationship between mother and the children. Family counseling was added to the plan.
Over the next six months, mother continued to deny any domestic violence or any culpability in the events leading to the removal of the children. Instead, she blamed the fractured relationship with K.N. on grandmother. K.N. continued to refuse to visit or participate in counseling involving mother, although he attended individual counseling. When asked about going to visits with mother, K.N. stated he "gave it a [shot] on the first visit, but then my mom wanted to talk a bunch of crap, that was enough for me, I'm done." K.N. did not want to see or reunify with mother only with grandmother. K.N. said he would rather live in foster care than with mother.
At the July 13, 2017, six-month review hearing, counsel for mother acknowledged K.N. did not want to spend time with mother, but "based on all this, I believe that I[.K.] should be considered for—to increase time at this time, and that the social worker shall have discretion to substantially increase time, up to and including overnights and a trial visit." Counsel did not ask for assistance in enforcing visitation with K.N.
The following six months, K.N. continued to refuse to visit. The social worker continued to attempt to encourage visitation or any sort of contact between K.N. and mother. She suggested mother write a letter to K.N., but K.N. refused to read it. The social worker read the letter and stated it was written from mother's perspective and did not take K.N.'s concerns or needs into consideration. Rather, the letter included "[g]uilting," and was indicative of mother's inability to move past her own pain and trauma.
At no time did mother or her attorney ask the agency to force K.N. to visit. Nor did mother or her attorney ask the juvenile court for assistance in enforcing the visitation order. Instead, mother was focused on her own needs and acquiesced in K.N.'s refusal to visit. The social worker, on the other hand, continued to encourage visitation, writing in a note in August 2017 that she again visited the children and encouraged them to participate in family counseling and visitation, stating, "I feel like a broken record, asking things every month on behalf of their mother."
At the 12-month review hearing, mother submitted a written offer of proof, stating she would "have loved" to have had as much visitation with K.N. as with I.K., and "[e]ven though K[.N.] has decided not to engage in services and visitations," she was ready to start working on their relationship "whenever he feels ready to do so."
We find the reasoning of Sofia M. applicable.
"When a child refuses visitation, it is the parent's burden to request a specific type of enforcement, or a specific change to the visitation order. Absent a request, it is not the court's burden to sua sponte come up with a solution to the intractable problem of a child's steadfast refusal to visit a parent. Trial judges are not mental health experts, nor child behavior experts. As one court noted, '[D]ependency courts "simply do not have the time and resources to constantly fine tune an order in response to the progress or lack thereof in the visitation arrangement, or in reaction to physical or psychological conduct which may threaten the child's well-being."' (In re Julie M., supra, 69 Cal.App.4th 41, 51.) Those sorts of changes are better handled, in the first instance, through communication with [the agency], and, as needed, through motions to modify the visitation order. It is the parent's burden to initiate those procedures, not the court's. (Sofia M., supra, 24 Cal.App.4th at p. 1046.)
In the present case, the only enforcement mechanism mother requested was a visit in a therapeutic setting, which the juvenile court expressly permitted. It was mother who then requested that the therapeutic visits be terminated and the visits returned to the agency. This was a reasonable effort on the part of the juvenile court.
"[I]t was not the court's duty to ensure those particular efforts 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." (Sofia M., supra, 24 Cal.App.5th at p. 1047.)Such was the case here and we reject mother's claim to the contrary.
II. REASONABLE SERVICES
Mother also contends the juvenile court erred when it terminated reunification services at the 12-month review hearing after finding the agency provided reasonable services. Specifically, mother contends the agency failed to properly inquire with mother's counselor on what progress mother had made in therapy until just days before the 12-month review hearing, foreclosing any possibility of adequately addressing relevant issues. She also contends, somewhat in passing, that reasonable services were hampered because the agency allowed grandmother visitation with K.N. and I.K., knowing she was not a proper placement for the children due to her history and knowing contact with her further alienated mother's children from her. We find no error.
Whenever the juvenile court removes a child from parental custody, it is required to order reunification services for the parents, barring exceptional circumstances not present here, for 12 months. These services may be extended to a maximum of 18 months. (§ 361.5, subd. (a).) Reunification services must be reasonable; they must be designed to eliminate the conditions that necessitated the juvenile court's intervention. (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) The agency must make reasonable efforts to provide suitable services, which are specific and internally consistent with the overall goal of resumption of a family relationship. (In re Luke L. (1996) 44 Cal.App.4th 670, 678.)
We review the juvenile court's finding of reasonableness of offered services under the substantial evidence test. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) "[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered. [Citations.]" (Angela v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
We have reviewed the record and conclude the agency offered reasonable services. K.N. and I.K. were removed from mother's custody due to continued and extensive domestic violence in the home, which mother minimized and made excuses for. Mother's case plan was designed to help her "process and understand the ramifications of the domestic violence that has occurred in her relationship and its negative influence on her children." To this end, domestic violence counseling was ordered for mother, which she originally received from the Haven. However, when it was determined at the jurisdiction/disposition hearing in January of 2017, that, even with a release of information, Haven would only report attendance and not progress, the agency added a referral for a domestic violence assessment and counseling at Sierra Vista to the reunification plan. In this way, the agency would receive progress reports. At disposition, the juvenile court told mother it was concerned that she continued to minimize the domestic violence, stating, "you have a lot of damage to repair with your children, especially K[.N.]."
On May 2, 2017, the agency added a referral for mother to attend a domestic violence offender program, after it received new information that the children had witnessed their mother as aggressor, reporting that she frequently attacked, hit, kicked, punched and yelled at John A., as well as used physical discipline on them.
In her domestic violence assessment in February 2017, mother admitted only one incident of physical domestic violence. The assessment also noted mother was fixated on her own childhood trauma and relationship with grandmother. At the review hearing in July 2017, when mother's counsel asked for "trauma-informed counseling" to address her past trauma, the agency agreed. Within a few days, clinician Cose reported that she had discussed trauma counseling with mother and mother stated "she has dealt with it."
A month later, when Cose determined that mother needed help on the issue of understanding and avoiding "toxic relationships," she asked the social worker for a psychological evaluation to assist in providing services to mother, which was immediately ordered. The subsequent psychological report by Dr. Carmichael focused on mother's complaints regarding grandmother and mother's assertion that her issue with the children was caused by grandmother's interference.
Throughout dependency, the social worker had regular meetings with mother and checked in with providers for updates on mother's progress. Although mother attended services regularly, she was not able to acknowledge the domestic violence that had occurred. Instead, she told three different service providers three different single events of physical violence, and told her batterer's class instructor only that she once threw a hairbrush at John A. Throughout all of this, mother maintained a relationship with John A.'s family and it appears a relationship with John A. as well.
Mother attended three different counseling formats to address domestic violence: the Haven, individual domestic violence victims counseling, and a domestic violence batterer's class. She had a psychological evaluation in order to assist her. Ancillary counseling was provided to assist mother with past trauma. Mother contends the agency did not inquire with mother's service providers whether mother had admitted physical violence with John A. until December 2017, which mother claims was far too late in the proceedings. However, the fact that the social worker inquired just prior to the 12-month review hearing whether mother made a last-minute breakthrough that might justify extending services did not mean that services to that point were inadequate.
Mother also contends visitation between grandmother and the children was also indicative of unreasonable services. However, grandmother was a consistent maternal figure in the children's lives, and while the agency acknowledged she was not a proper placement for the children, she provided them with some continuity. Although Dr. Carmichael opined in her October 25, 2017, evaluation of mother that "[c]ontact with the alienating grandmother must cease or be supervised in order to facilitate the renewal of a positive relationship between the boys and their mother," this opinion was recent and just one to be considered in light of the entire record of mother's behavior and failure to acknowledge her part in the removal of the children from her care. We cannot say reunification services were unreasonable because the agency allowed the children to have visitation with grandmother.
The "'adequacy of reunification plans and the reasonableness of the [agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, '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 .... [Citation.]'" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426, original italics.) "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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. (1991) 2 Cal.App.4th 538, 547; see also In re Alvin R. (2003) 108 Cal.App.4th 962, 972 ["[r]eunification services need not be perfect"].)
The record does not support mother's assertion that she was denied reasonable services. While mother was provided with a host of services, mother failed the basic first step in overcoming the problem which led to the removal of her children: acknowledging domestic violence. Instead, she continued to blame grandmother and her own children for the juvenile court's intervention into her life. Substantial evidence supports the finding that reasonable services were offered mother to overcome the problems leading to court intervention. We reject mother's claim to the contrary.
DISPOSITION
The orders of the juvenile court are affirmed.