Opinion
E066532
02-23-2017
In re T.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J261877) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant S.G. appeals the juvenile court's termination of his reunification services with regard to his daughter, T.G., at the six-month review hearing. He contends that his services were not reasonable and that the juvenile court erred in terminating them. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention.
On June 3, 2015, plaintiff and respondent San Bernardino County Children and Family Services (CFS) received two referrals alleging sexual abuse by S.G. (father) of mother's minor sister. Mother's minor sister said she had been digitally penetrated by father, and the maternal grandmother (grandmother) had made him leave the home. At that time, there was an open referral for mother and her children: S., age six; A., age four; D., age three; and T.G. (the child), age one. The social worker was unable to locate mother and the children until on or about August 27, 2015. Grandmother called the social worker to report that mother had come to her home and locked herself and two of the children in the garage. Mother told the social worker that she had been living with father, but they recently got into an argument and he had dislocated her shoulder. Grandmother told the social worker that both mother and father had been diagnosed with bipolar disorder.
Mother is not a party, and her children S., A., and D., who have different fathers, are not subjects of this dependency.
In 2005, when father was a teenager, CFS was informed that father's siblings and "unrelated cousins" began to disclose that he had sexually molested them. Father was removed from the home and placed in juvenile hall. Mother was aware of father's history of molesting family members, but she believed CFS "overreacted." She refused to believe that father had molested her sister.
On August 28, 2015, the social worker interviewed S., who was staying with her biological father, T.L. S. said she liked living with T.L. and that she also liked living with mother "except for [father]." S. said that father had digitally penetrated her and masturbated on her. The children were detained and placed in grandmother's home, except for S., who was placed with T.L. This was not CFS's first contact with father and mother. In 2013, CFS received a referral based on the condition of their home (severe neglect); however, the home was cleaned up and CFS found the referral to be inconclusive. Father had a criminal conviction in 2012 for possession of concentrated cannabis.
On September 1, 2015, CFS filed a Welfare and Institutions Code section 300 petition alleging that the child came within subdivisions (b), (d), and (j), based on mother's and father's mental condition, father's drug history, his prior history of sexual abuse as a juvenile, and his sexual molestation of S. On September 2, 2015, the juvenile court ordered the child detained.
All further statutory references are to the Welfare and Institutions Code.
B. Jurisdiction and Disposition.
In the jurisdiction/disposition report filed on September 21, 2015, CFS recommended that the child, along with D. and A., be removed from parents' care and reunification services be offered. Mother was unsure whether she believed any of the sexual molestation charges against father. She claimed that she "whole heartedly" trusted father around the children. On September 17, 2015, father told the social worker that he had been diagnosed with depression, posttraumatic stress disorder (PTSD), and anxiety. He claimed his PTSD was a result of physical abuse as a child by his alcoholic step-grandfather. Regarding the allegations that he had sexually abused his siblings, he denied the allegations, claiming that he pled to misdemeanor sexual battery charge because he was "a kid" and "didn't know any better." According to father, his siblings "'were put up to say [he sexually abused them] by CPS.'" He also denied molesting his stepdaughter, S., accusing her of being "coached" by her biological father. Regarding his drug conviction, he said that he had been drug free for over a year. The social worker was concerned with father's inability to acknowledge any of his actions given the number of children accusing him of molestation. Thus, the social worker questioned father's ability to benefit from services.
In an addendum report filed on November 13, 2015, CFS provided specific information about father's extensive history of being accused, including by his own siblings, of molesting children.
The contested jurisdiction/disposition hearing was held on January 22, 2016. Counsel for all parties stipulated that S., "at two distinct points in her CAC interview specifically denied being inappropriately touched in her private areas by anybody." However, father's counsel agreed that if S. were to testify, she would say that father took her to his bed, took her clothes off, put whipped cream on his penis, told her to lick it off, and "white stuff" came out of his penis. Nonetheless, father denied the allegations against him, including any statements made or attributed to S. The child's counsel objected to reunification services for father. The juvenile court sustained the allegations in the section 300 petition and ordered reunification services for both parents. The court, however, informed the parents that the services may be limited to six months.
C. Six-month Status Review.
In the six-month status review report filed on July 12, 2016, CFS recommended that reunification services be terminated for father, but continued for mother. According to the report, the social worker "conducted monthly face-to-face contacts with the family and caregivers. [The social worker] reviewed the progress, objectives and responsibilities of the Case Plan with the father . . . on January 8, 2016 . . . whereby [he] agreed to the terms and signed the case plan. [The social worker] assessed the parent's overview of progress subsequent time's [sic] thereafter."
Father engaged in services for a period of time, but he did not appear to benefit from them because he continued to deny the sexual molestation allegations against him. He was dishonest with the social worker. On June 27, 2016, father told the social worker that he changed his services schedule, but CFS had learned that he stopped attending individual counseling and parenting education classes on March 9, 2016. Father was required to drug test 10 times; however, he only performed one random drug test on January 19, 2016. He was told that any missed tests would be considered positive. CFS reminded father that he would have to complete an outpatient program if he continued to miss his random testing. Father was referred to Inland Valley Recovery Services (IVRS), and the social worker repeatedly attempted to contact him, leaving several voicemail messages. On July 5, 2016, the social worker re-referred father to IVRS, and he was awaiting contact by the service coordinator to begin participation.
Father stated that he takes prescribed psychotropic medication; however, he failed to provide CFS with copies of his prescriptions. He stated that he was employed, but homeless, living in a tent by his worksite. His visitation with the child was irregular; he missed more visits than he attended, despite CFS's attempts to accommodate his schedule. His claim that he requested Saturday visitation was unsubstantiated. When he did visit the child, he was observed to be "very interactive with [her] and demonstrated love and affection to [her.]"
Mother was unemployed and living a transient lifestyle. She had continued a relationship with father for seven months after she learned of his sexual molestation of S., but she ended the relationship after being told by CFS that it could affect her ability to reunify with the children. Mother had been actively participating in services, but then she "abruptly stopped." CFS referred her to further services and requested additional time to reassess her. Although mother's visits with the child were inconsistent, they were improving, and mother was interactive and loving toward her.
The section 366.21, subdivision (e), six-month status review hearing was held on August 2, 2016. Father's counsel argued for a continuation of services, despite father's failure to consistently participate. The child's counsel argued that father had not benefitted from the services, because he stopped going and "did nothing" beginning in March. She pointed out father's "flat out refus[al] to do any sexual abuse counseling" as the "problem with this case." Counsel noted that father failed to consistently visit with the child and failed to provide the social worker with copies of his psychotropic medication. Given father's minimal progress over the course of 11 months, the child's counsel observed that the court would be hard pressed to "find there's a substantial probability that the child may be returned" to father. CFS concurred. After hearing arguments, the juvenile court found that reasonable reunification services were offered to father, but he "failed to participate regularly and make substantive progress in the case plan." The court stated the following: "[Father] stopped his counseling; he failed to test; the visitation has been irregular and he needed re-referrals for several of those things. And for failing to test, he was required to enroll in a program. [¶] It's just too little too late for a child this young. And there is not substantial probability under the facts of this particular case that the child may be returned to him within six months based on the facts in this case, as well as his lack of any real progress in his case plan." Therefore, the court terminated father's reunification services.
II. DISCUSSION
A. Father Was Provided with Reasonable Reunification Services.
Father contends there is insufficient evidence to support the juvenile court's finding that CFS provided him with reasonable reunification services.
When a child is removed from a parent's custody, the responsible agency must make a good faith effort to develop and implement reasonable family reunification services responsive to the needs of that family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) "The adequacy of a reunification plan and of the department's efforts are judged according to the circumstances of each case. [Citation.] With respect to the plan itself, '[e]ach reunification plan must be appropriate to the particular individual and based on the unique facts of that individual. [Citations.]' [Citation.] 'The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success. [Citation.]' [Citation.] '[T]he focus of reunification services is to remedy those problems which led to the removal of the children. . . .' [Citation.] '[T]he record should show that the [Department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [parent] during the course of the service plan, and made reasonable efforts to assist the [parent when] compliance proved difficult . . . .' [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) When there is a challenge to the finding that reunification services were adequate, the applicable standard of review is sufficiency of the evidence. (In re T.G. (2010) 188 Cal.App.4th 687, 697; see In re Ronell A., supra, at pp. 1361-1362 ["'If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings.'"].)
In this case, father does not contend that CFS did not identify the problems that led to his loss of custody of his child, or that it failed to offer services designed to remedy those problems. Indeed, the evidence shows that CFS offered appropriate services, such as individual counseling, parenting education, outpatient substance abuse services and testing, and psychotropic medication monitoring. Instead, father contends that CFS failed to obtain his signature on the case plan indicating his review and acknowledgment of such plan, and failed to assist him in complying with those services. Father asserts there is "no report from the therapist or any other service provider that the services provided to [him] addressed the problems that led to the intervention [and] [e]ven if the services were geared to [his] needs there is no report from the service provider as to what insights [father] achieved or what progress [he] made in those services."
Here, CFS's conduct in providing services was more than adequate. Although father complains that he never signed the case plan, the record demonstrates that he knew what was expected of him, that he was attending individual counseling and parenting education classes, and that he submitted to one random drug test. Moreover, the services provided were reasonable, having been designed to address the circumstances that gave rise to this dependency. The problem was not with father's failure to sign the case plan, but rather with his willingness to follow through.
Regarding father's complaint that CFS failed to assist him in complying with his services, the record shows that father continually lied to CFS, claiming that his services schedule had changed. According to the social worker, she had spoken to father, reminding him that he would have to complete an outpatient program if he continued to miss his random drug tests. She referred him to IVRS on May 11, 2016. In fact, she "attempted to contact [father] multiple times and left voicemail messages, notifying him that he was referred to outpatient treatment." Nonetheless, father failed to communicate with her. It is father's obligation to communicate with CFS and participate in the reunification process in order to address the significant issues that led to his child's removal. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441; In re Christina L. (1992) 3 Cal.App.4th 404, 414 [requirement that reunification services be made available is not requirement that social worker take parent by the hand and escort him through classes and counseling].) Given father's limited participation in his case plan, it is no surprise that there is no report from a therapist or other service provider regarding his progress.
In light of the record in this case, we conclude that substantial evidence supports the juvenile court's finding that father was provided reasonable reunification services.
B. The Juvenile Court Did Not Err in Interpreting Section 366.21, Subdivision (e).
Father contends that when the juvenile court does not return a child to parental custody or set a section 366.26 hearing, it must continue reunification services for any parent who was previously receiving reunification services, regardless of that parent's compliance with those services. Citing section 366.21, subdivision (e) and California Rules of Court, rule 5.710, subdivision (b)(4), father asserts that once the juvenile court orders services for a parent, it has no authority to terminate those services unless a section 366.26 hearing is set. We disagree.
All of the appellate courts that have considered this issue have concluded that a court may treat one parent differently than the other in deciding whether to extend or terminate reunification services. (See, e.g., In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881 (Katelynn L.); In re Gabriel L. (2009) 172 Cal.App.4th 644, 651; In re Jesse W. (2007) 157 Cal.App.4th 49, 55-56, 58 (Jesse W); In re Alanna A. (2005) 135 Cal.App.4th 555, 565-566 (Alanna A.).) Father, however, asserts that the proper interpretation, and application, of section 366.21, subdivision (e), are explained by the dissenting opinion in Jesse W., wherein Justice McDonald opined that the court may not terminate reunification services to a parent when the court has exercised its discretion to continue the case to the 12-month review hearing. (Jesse W., supra, at p. 66 (dis. opn. of McDonald, J.).) Thus, he argues that the juvenile court erred in applying section 366.21, subdivision (e), and further compounded that error when it "misunderst[ood] that a continuation of reunification services to [him] could be granted only upon a finding that there was a substantial probability that [the child] would be returned to [his] custody within the next six months."
We, like the majority in Jesse W., reject father's interpretation of section 366.21, subdivision (e). Accordingly, we conclude that the juvenile court properly interpreted section 366.21, subdivision (e), and terminated father's services.
C. The Juvenile Court Did Not Abuse Its Discretion in Terminating Father's Services.
Finally, father contends the juvenile court abused its discretion in terminating his services, given the state of the facts. We disagree.
"Where, as here, the court continues one parent's services and does not set a section 366.26 hearing, it retains discretion to terminate the other (nonreunifying) parent's services. [Citations.] The parent seeking additional services has the burden of showing such an order would serve the child's best interests." (Katelynn Y., supra, 209 Cal.App.4th at p. 881.) In exercising its discretion, the court evaluates whether the parent will utilize additional services and whether services "would ultimately inure to the benefit of the minor." (Jesse W., supra, 157 Cal.App.4th at p. 66.) We review that decision for abuse of discretion. (Katelynn Y., supra, at p. 881.)
Father failed to meet his burden of proving it was in the child's best interests to continue his services. In the juvenile court, his counsel presented no evidence on that issue other than to state that "there's a relationship between [him] and his child" and the "visits are fine." Father's counsel argued that father participated in his services, but there is a lack of information regarding his progress because he declined to admit that he had sexually molested another child. On appeal, father argues that his performance was better than that of the father in Alanna A., and substantially the same as mother's performance, which CFS and the court deemed sufficient to support an award of further services for her. As explained in Alanna A., the rationale for denying services to one parent is that "[t]he Legislature has recognized that in some circumstances, it may be fruitless to provide reunification services. [Citations.] In such a case, the general rule favoring reunification services is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citations.]" (Alanna A., supra, 135 Cal.App.4th at p. 566.) In Alanna A., the father's efforts to reunify with his child were described as "marginal" the first few months, and then later was "nonexistent." (Ibid.) He did not visit his child most of the preceding year, nor did he maintain contact with the social worker. (Id. at p. 560.)
Father's attempt to distinguish himself from the father in Alanna A. falls short of the mark. Father participated in reunification services for approximately two months and performed only one random drug test. He abruptly stopped participating in services without informing CFS. When questioned about his performance, father was dishonest, telling the social worker that he changed his services schedule when, in reality, he had stopped attending individual counseling and parenting education services on March 9, 2016. Nonetheless, father asserts that his reunification performance was similar to mother's performance. Not so. The child's dependency was initiated because of father's sexual molestation of S. While mother acknowledged her role in denying father's inappropriate behavior, along with the need to eliminate the risk of future harm he may present via participation in services, father did not. Rather, father excused his decision to stop participating in all services on the ground that he should not have to acknowledge the allegations presented against him. Father's refusal to acknowledge the conditions that led to this dependency thwarts reunification with his child, deeming services to be "fruitless" and an "unwise use of governmental resources." (Alanna A., supra, 135 Cal.App.4th at p. 566.) Therefore, the juvenile court did not abuse its discretion by terminating father's services.
III. DISPOSITION
The order terminating father's reunification services is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: MILLER
J. CODRINGTON
J.