Opinion
F080122
07-02-2020
In re N.H. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. LESLIE H., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVDP-19-000097, JVDP-19-000098)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Leslie H. (father) appeals from an order made at a disposition hearing pursuant to Welfare and Institutions Code section 361.5 , at which reunification services were ordered for both father and Crystal H. (mother), mother of the minors. Father contends on appeal that the "follow all recommendations" language in the individual therapy component of his case plan is a violation of his due process rights. He also contends that the inclusion of an anger management component in his case plan is not supported by substantial evidence. We reject his contentions and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL HISTORY
Referral
In April of 2019, the Stanislaus County Community Services Agency (agency) received a referral stating a probation search of father's home was conducted and a loaded gun, several pieces of foil, and pipes with heroin and marijuana residue were observed and accessible to the minor children who were present. A male roommate, also present, was observed to be under the influence of an unknown substance. According to the probation officer on site, father, an ex-parolee previously convicted of voluntary manslaughter, was being arrested for possession of a loaded gun and brass knuckles and was likely facing a long prison term.
A social worker arrived at the home and spoke to father, who reported that his fiancée lived in the home but was currently living in a recovery center. Father said he did not know why she was there. He also reported that the minors' mother lost custody of the children due to methamphetamine use and he had full custody. Father denied knowing that there was an open child protective services investigation from a previous referral, even though business cards were left at the home and letters sent to him. Father agreed to drug test and tested negative for all substances.
The roommate who was present said he was a friend and coworker of father's. When asked to drug test, he declined and said he would test positive for THC. He declined to say if he would test positive for anything else.
The social worker found the home infested with bed bugs and dead roaches. The home smelled of urine and there was animal feces on the carpet. Piles of clothing, items, and trash wrappers were on the bedroom floors. The kitchen had dirty dishes covered with moldy food.
N.H., age 10 at the time, was interviewed and told the social worker her father was arrested for having a loaded gun on the floor. She said the male roommate smoked marijuana, but she did not see any other drug use. She reported that father's fiancée checked into recovery that day for alcohol abuse. N.H. had not seen her mother "in a long time," due to mother's drug use. According to N.H., they had had bed bugs for two weeks and father was trying to get rid of them. She said she felt safe with father, but the interview concluded when she began crying and fell asleep.
I.H., age nine at the time, confirmed that father was arrested because probation found a gun in the home, which I.H. had seen and had access to. He also confirmed that father's fiancée was being treated for alcohol abuse and that he had not seen his own mother in a while due to her drug use. I.H. also began crying and fell asleep, ending the interview.
Both children were placed into protective custody. When mother was interviewed the following day, she reported concerns with father's custody of the children, as she believed he was still an active gang member and that he used heroin, phencyclidine (PCP), cocaine and methamphetamine. Mother had seen father two weeks previous. According to mother, who lost custody of the children in 2015, she last saw the children in 2016. Mother stated that she recently filed paperwork to regain custody and was ordered to do a hair follicle test, but could not afford the $100 to do so. She took a voluntary test for the social worker, and tested positive for THC and cocaine. Mother reported that father was not N.H.'s biological father, who had relinquished his parental rights some time ago.
Detention
A section 300 petition was filed April 18, 2019, alleging the children were at risk of harm due to father's and mother's drug use, failure to adequately protect the children (§ 300, subd. (b)(1)-(5)), and inability to provide them with support due to father's potentially lengthy incarceration (§ 300, subd. (g)).
At the detention hearing the following day, the children were ordered detained by the juvenile court. Father filed an ICWA-020 form, reporting Indian heritage with the Cherokee, Blackfeet and Creek Indian Tribes. Mother filed an ICWA-020 form, reporting Indian heritage with the Cherokee and Blackfeet tribes. Jurisdiction and disposition was set for May 30, 2019.
Jurisdiction/Disposition
The report prepared for jurisdiction/disposition, recommended that both parents receive reunification services. Specifically, as to father, that he complete individual counseling and follow all recommendations; that he participate in a substance abuse assessment and follow all recommendations; and that he participate in random drug testing. While the children had been placed in a foster home, it was anticipated that they would be moved to the home of a paternal aunt when they finished school at the end of May.
Mother provided a social history in which she admitted drug use since age 18. She last used methamphetamine on October 12, 2018, but admitted using cocaine on her birthday in April of 2019, explaining the positive drug test.
Father remained incarcerated and was not able to provide an in-person social history. He was sent a written interview by the agency and asked to return it approximately three weeks prior to the report being written, but failed to do so. Father was also sent five lessons from a parenting course, but had not completed or returned them either. Due to jail regulations, it was not possible to have a substance abuse counselor evaluate father at the jail.
After being removed from father's custody, N.H. reported that father used to beat her and I.H. with a belt. Since detention, the children had been visiting mother, which was going well, except that the social worker noted that N.H. was parentified and tended to try to discuss adult topics. The children had not visited father in jail, but expressed their desire to write him letters and draw pictures. On May 22, 2019, I.H. stated that he wanted to visit father via webcam; N.H. was not so certain, as she was afraid he would be angry that she wanted to live with mother.
Case notes attached to the report indicated that during a Child Family Team (CFT) meeting, which father was unable to attend as he was incarcerated, N.H. reported that father used to beat them with a belt. While crying, she said that she was afraid father would be mad because "we wanted to go with mom" and she was concerned he would "hit us again." The children told mother and the foster parents that father's girlfriend was an alcoholic and a previous girlfriend locked them in a room and beat them when father was at work.
The May 30, 2019 scheduled jurisdiction hearing was trailed for six weeks to allow for ICWA (Indian Child Welfare Act) notice to perfect. The July 12, 2019 scheduled hearing was again trailed to allow for ICWA notice to perfect. A new hearing was scheduled for July 23, 2019, but that hearing was also trailed, this time to allow for the filing of a supplemental report with a possible change in recommendation to bypass services for father. The hearing was set for August 15, 2019.
The addendum report filed for the August 15, 2019 hearing now recommended that services for father be denied, pursuant to section 361.5, subdivision (e)(1). Father, who was still incarcerated, continued to be nonresponsive to the social worker's inquiries and failed to return the social history and parenting education packet. A relative was taking the children to weekly visits with father at the jail. Father's criminal case had not yet been decided, but he had a scheduled hearing on August 14, 2019.
The juvenile court is to order reunification services to, inter alia, an incarcerated parent, unless it would be detrimental to the child based on the totality of the circumstances.
Case notes attached to the report stated that, after the hearing on May 30, 2019, N.H. was crying in the lobby with her foster parents and mother. She privately told the social worker that she was scared of seeing father in the orange jail jumpsuit.
When the jurisdiction hearing was finally held August 22, 2019, father was no longer in custody and the agency indicated it would return to its recommendation that father be offered services as originally recommended. A contested jurisdiction/disposition hearing was set for September 12, 2019.
At the September 12, 2019 hearing, it was agreed that the section 300, subdivisions (b)(6) and (g) allegations be stricken as father was no longer in custody. At issue were several components of the case plan recommendation and the section 300, subdivision (b)(3) allegation that father had a substance abuse history and possible current use, as alleged by mother.
The social worker, who the parties stipulated was an expert in preparing reunification plans, testified that a case plan is tailored to a family and is based on investigation, including through emergency responses in the court process and, based on that investigation, focus topics for counseling were recommended. The language "follow all recommendations" in the individual elements of the plan is included because certain issues might come to light that are originally not known. This also provides the parent with immediate service once an evaluation is done. The social worker added a recommendation of anger management services for father to address the issue of inappropriate discipline, as reported by the children, as well as father's "response to whatever led to it at the time."
At the continued hearing on September 17, 2019, the social worker testified that, although both N.H. and I.H. had said they felt safe with father, the recommendation for anger management in the case plan was based on N.H.'s statement that father beat her and her brother with a belt.
Counsel for the agency noted that father had already completed a substance abuse assessment and that no further treatment was recommended.
Father's counsel objected to the subdivision (b)(3)(a) drug use allegation in the petition. Counsel also objected to the inclusion of anger management in father's reunification plan, contending there was insufficient evidence to warrant it. Counsel also objected to the "follow all recommendations" language in the case plan, claiming it violated father's due process rights by allowing the agency to add anything it wanted to a plan without court review.
In ruling on jurisdiction, the juvenile court amended subdivision (b)(3)(a) of the petition to state that father "has exposed the children to substance abuse as evidenced by illegal substances being found in the home where the children were located and prior [child welfare] referrals." The juvenile court also added a subdivision (b)(9) allegation that N.H. "disclosed at a [CFT meeting] that her father physically disciplined her and her father allowed his [significant other] to physically disciple her and [N.H.] stated she is afraid it will happen again." The juvenile court found the petition, as amended, true.
After setting forth the factual basis for its findings, the juvenile court moved to disposition. It adjudged the children dependents and removed them from parental care based on clear and convincing evidence of substantial risk of detriment. Reunification services were granted to both mother and father, with modifications to the proposed plan. As to father's plan, the juvenile court noted that substance abuse treatment had been removed from the plan by stipulation. To the wording of "follow all recommendations," which was attached to the individual counseling component, the juvenile court added "'which further the objectives of the case plan which include but are not limited to [the] addition of -- additional focus topics, addition or recommendation of additional sessions, and includes a recommendation for a clinical assessment but excludes a recommendation for a psychological evaluation.'" The juvenile court also added a component that father "shall participate and complete an anger management assessment, and if the recommendation is to receive anger management services, he will successfully complete an anger management program offered at Sierra Vista or another program approved by the social worker."
DISCUSSION
Father challenges the "follow all recommendations" language attached to the individual counseling component of his case plan, as well as the anger management component of the plan. As argued by father, the added "follow all recommendations" language makes the case plan vague and vests too much authority in the service providers to determine the scope of his plan requirements. He also argues there is no evidence in the record to support a finding that he had an anger management issue. We disagree.
Applicable Legal Principles
"The overarching goal of dependency proceedings is to safeguard the welfare of California's children." (In re Nolan W. (2009) 45 Cal.4th 1217, 1228 (Nolan W.).) Preservation of the family, with reunification services offered to the parents, is a priority when a dependency case commences. (Ibid.) "With some limited exceptions not relevant here, section 361.5 requires the juvenile court to order child welfare services for both parent and child when a minor is removed from parental custody." (Ibid.)
"The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 (Christopher H.); § 362.) "The juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section." (§ 362, subd. (d).) "The reunification plan '"must be appropriate for each family and be based on the unique facts relating to that family."'" (Christopher H., supra, at p. 1006.) "We review the propriety of court-ordered reunification services at this stage for abuse of discretion." (In re D.C. (2015) 243 Cal.App.4th 41, 56.)
"Follow All Recommendations" Language
The case plan, as ordered, provided, as to the individual counseling component:
"[Father] will attend, actively participate and successfully complete individual counseling services at Sierra Vista Child Family Services or another program approved of by the social worker and follow all recommendations which further the objectives of the case plan which include, but are not limited to, addition of additional focus topics, addition or recommendation of additional sessions, and includes a recommendation for a clinical assessment, but excludes a recommendation for a psychological evaluation. Individual counseling will focus on issues pertaining to learning appropriate parenting practices including appropriate discipline, learning how to provide a safe and nurturing home for the children, learning how to assist [N.H.] in becoming less parentified, and any other issues [father], the clinician, or the social worker deem appropriate." (Italics added for emphasis.)
Father contends that the "follow all recommendations" language in this component of his case plan is "not narrowly tailored to address the protective issues in this case," and this "catch-all language" leaves his plan "open to unknown additional requirements." We find no error in the order.
We look to In re Daniel B. (2014) 231 Cal.App.4th 663 (Daniel B.) for guidance. In Daniel B., the mother did not dispute that an order requiring her to attend some type of domestic violence program was appropriate, but the question was whether the juvenile court abused its discretion in failing to set a time limit on the mother's participation in the domestic violence support group, or to articulate criteria for determining how long she would be required to attend. The mother argued that it was unreasonable for the juvenile court to order her to participate in an open-ended program of support group sessions that, in the court's own words, might last four weeks or 100 weeks. The services agency countered that the juvenile court's refusal to specify the number of support group sessions that the mother was required to attend was appropriate because the court could reasonably condition the length of the mother's participation in the group on the progress that she achieved during the sessions. (Id. at p. 675.)
The court in Daniel B. found that the juvenile court did not abuse its discretion by leaving the term of the mother's enrollment in a domestic violence support group open-ended. Section 362 does not require a juvenile court to place a time limit on a parent's participation in a counseling or education program. It simply requires that the order be "reasonable" in nature and "designed to eliminate [the] conditions" that led to the child being declared a dependent of the court. (§ 362, subd. (d); Nolan W., supra, 45 Cal.4th at p. 1229; Daniel B., supra, 231 Cal.App.4th at p. 673.)
The California Supreme Court accordingly held that an order requiring a parent to attend a counseling program for an open-ended period as a condition of visitation is not beyond the authority of the juvenile court, nor does it deprive the parent of due process of law. (In re Chantal S. (1996) 13 Cal.4th 196, 208-212.) As the Supreme Court observed, "the dependency scheme includes 'carefully crafted due process protections ... that insure that parental rights are protected along with the physical and mental health of children.'" (Id. at p. 212.)
We find here that the juvenile court could reasonably leave flexible father's participation in individual counseling as needed, as long as the juvenile court retained its discretion to terminate its order once father made sufficient progress in addressing case issues.
In Daniel B., supra, 231 Cal.App.4th 663, the court reversed and remanded on the concern that the juvenile court appeared to delegate to the program's counselors the sole discretion to decide the length of the mother's participation, stating it was "'their call.'" (Id. at pp. 675-676.) Such is not the case here.
In supplemental briefing, father contends the reasoning of Daniel B. is not helpful as the facts of the case are distinguishable - as he is not challenging the length of participation but the uncertainty in the contents of the case plan, noting that dispositional orders of the juvenile court must be limited to those that are designed to eliminate the conditions that brought the minor to the attention of the court. (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180 (Jasmin C.).) But despite father's claim to the contrary, the language crafted by the juvenile court here puts father on notice of the range of issues that he is expected to address in counseling and allows both father and the counselor to identify and add other topics or recommend other services in order to aid in reunification with his children. As testified to at the disposition hearing by the social worker, in any case a parent or social worker may not initially recognize the connection between an issue and the parent's behavior leading to the dependency. Much of this may only be discovered through therapy.
Here, father was incarcerated for the first four months of the case and due to jail regulations and his failure to respond to written correspondence from the social worker, the social worker had little information upon which to draft a reunification plan. The therapy component of his case plan could assist father in addressing issues that lead to the removal of his children. The "follow all recommendations" language in the component is a benefit for father. In dependency reunification, time is of the essence and father had a slow start. It is therefore even more important for the social worker to be able to add services or sessions, without having to return to court each time, in order to give father the best chance at reunification.
The "follow all recommendations" language is appropriately limited by the language that it must further the adopted case objectives. It does not expand the statutorily given power to the case worker, or render the case plan vague and open-ended. Instead, it follows the mandate of statutory and case law that it must be tailored to the family's needs and be flexible enough to assist the parent in meeting the case plan goals when a particular barrier to reunification is discovered.
We acknowledge the very recent case of In re M.R. (2020) 48 Cal.App.5th 412, from this court which found the "follow all recommendations" language in the case plan as drafted there failed to "identify specific goals and the appropriateness of the planned services in meeting those goals." (§ 16501.1, subd. (g)(2).) In In re M.R., the case plan included individual counseling, parenting, and substance abuse assessment components, all with the additional wording that the parent "follow all recommendations." (Id. at pp. 418, 419.) The social worker testified that the "follow all recommendations" language could include almost anything - "'anger management, additional sessions with the clinician, additional parent/child labs, group sessions, individual sessions, family sessions, coparenting, codependency, psych eval, clinical assessment.'" (Id. at p. 421.) Our case is distinguishable. Here, the individual counseling component was very narrowly tailored and the "follow all recommendations" language was limited to additional counseling sessions and a clinical assessment, if called for, to "further the objectives of the case plan." --------
We also reject father's claim that, in approving the "follow all recommendations" contested case plan language, the juvenile court "deprived father of a proper opportunity to be heard at [the disposition hearing]," leaving him only with the option of filing a section 388 petition in the future, placing the burden on him and therefore depriving him of his due process rights.
We reject father's claim for several reasons. First and foremost, the disposition hearing was a contested hearing, he was represented by counsel, and counsel was allowed and did argue against the "follow all recommendations" language.
And we reject father's claim that the vehicle of a section 388 petition, should he wish to request a change in the reunification plan, is inadequate because it places the burden on him.
Section 388 applies when "'any parent or other person having an interest'" in a dependent child, or the child, seeks a modification of a previous order based on a change of circumstances or new evidence and the pertinent statutes do not otherwise provide for modification. (See In re Lance V. (2001) 90 Cal.App.4th 668, 675; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 879.) It is the appropriate procedural mechanism to use when a party seeks modification of a previous order. (See In re Marilyn H. (1993) 5 Cal.4th 295, 305.)
Dependency proceedings are proceedings of an ongoing nature. While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. One section of the dependency law may not be considered in a vacuum. It must be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. (Dyna-Med., Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) The dependency scheme, when viewed as a whole, provides the parent due process and fundamental fairness while also accommodating the child's right to stability and permanency.
In between the normal review hearings the parent has the assistance of both a social worker and an attorney. In addition, throughout the reunification period and thereafter, the parent has the continuing right to petition the court for a modification of any of its orders based upon changed circumstances or new evidence pursuant to section 388.
Under section 388, the party petitioning for a modification of a prior court order has the burden of showing, by a preponderance of the evidence, that there is a change of circumstance or new evidence such that a change in the court's previous order would service the child's best interests. (§ 388, subds. (a), (d).) This procedure provides notice to the parties and an opportunity for hearing if the statutory requirements are met. Shifting the burden to the parent to file a petition based on a showing of change in circumstance is not unduly burdensome. Such petitions are to be liberally construed in favor of granting a hearing to consider the parent's request. (Cal. Rules of Court, rule 5.570(a); In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414; In re Heather P. (1989) 209 Cal.App.3d 886, 891.) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1416.)
Anger Management
Father also appeals the anger management component of the case plan, which provides that father "participate and complete an anger management assessment, and if the recommendation is to receive anger management services, he will successfully complete an anger management program offered at Sierra Vista or another program approved by the social worker." In adding this component, the juvenile court explained, "This way there can be an assessment if anger management is an issue for him, and if it is, then it needs to be addressed but it's not automatically adding that to the case plan. But the court feels that it is appropriate and it does meet the service objectives of the case plan for the father."
Father argues there is no substantial evidence to support this component of the case plan and it has no rational connection to his reunification with his children. Father contends there is no evidence in the record that he had an anger management issue at the time of the dispositional hearing, noting that there is no such allegation in the original language of the petition. He describes the language added to the petition at the conclusion of the contested hearing as "merely" stating that he physically disciplined N.H. and allowed his significant other to do so, and that N.H. was afraid it would happen again. Father also argues that, at the disposition hearing, the social worker conceded that there were no concerns about physical abuse of the children when they were taken into custody. And he argues that the social worker was not able to provide any information as to when the physical discipline occurred or how often it happened.
We reject father's claim that an anger management assessment is not called for as there is no allegation of anger issues in the sustained petition. Again, as set forth above, the juvenile court may make "all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a); Jasmin C., supra, 106 Cal.App.4th at p. 180.) However, the problems that the juvenile court seeks to address need not be described in the sustained section 300 petition. (See Christopher H., supra, 50 Cal.App.4th at pp. 1006-1008.) Instead, when the juvenile court is aware of other deficiencies that impede the parent's ability to reunify with his child, the court may address them in the reunification plan.
For instance, in In re Briana V. (2015) 236 Cal.App.4th 297, the father alleged there was no evidence that the children had been sexually abused and he challenged the order that he participate in sexual abuse counseling. The court in In re Briana V. found no abuse of discretion on the part of the juvenile court in making the order. The father was a registered sex offender and in violation of probation, visiting schools, having children's clothing in his possession, having a computer, and caring for his children, all of which led to the dependency case. (Id. at p. 312.)
Here, contrary to father's assertion, the juvenile court did not abuse its discretion in ordering that he participate in an anger management assessment. The evidence before the juvenile court was that father had an old conviction for voluntary manslaughter; at the time the children were removed he had a loaded gun in the home; when out of father's custody, N.H. reported that father beat her and her brother with a belt and that a previous girlfriend had beat them and locked them in a room when father was not home; and N.H. was presently afraid to anger father as she was concerned that he would beat them again.
The authorities relied upon by father do not support his position. In Jasmin C., supra, 106 Cal.App.4th 177, the principal case relied on by father, the mother challenged the juvenile court's order requiring her to complete a parenting education class. The appellate court struck the order, acknowledging that "[t]he juvenile court has wide latitude in making orders necessary for the well-being of a minor." (Id. at p. 180.) It reasoned that the mother was the nonoffending parent in the proceedings, and there were no allegations that she had abused her children, failed to protect them, or had engaged in any other improper conduct. (Id. at p. 181.) The court rejected the department's purported justification that it felt "'[the mother] can benefit from a parenting class'" (ibid.), particularly in light of the trauma the family had endured as a result of the father having punched his adult stepdaughter, breaking her nose, and then having repeatedly struck his 15-year-old daughter when she tried to intervene (id. at p. 179). In Jasmin C. the juvenile court issued an order as part of the reunification plan that was not justified by the particular circumstances involving the parent. Such is not the case here.
"'The reunification plan "'must be appropriate for each family and be based on the unique facts relating to that family.'"'" (Nolan W., supra, 45 Cal.4th at p. 1229.) Because father was in custody and unavailable prior to disposition to be properly assessed for anger issues, the juvenile court reasonably ordered that father have an anger management assessment. The court did not order immediate anger management treatment, but instead directed that the issue be first addressed by an assessment, and if it was found that he had an anger management problem, he would be required to participate in treatment. The juvenile court reasonably concluded father's possible anger management issue was an obstacle to reunification that had to be addressed in the reunification plan. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254 [plan should serve to put parent on notice as to what must be accomplished to reunite the family].)
This order was well within reason and necessary to ensure that father be able to provide a safe home for the children to return to. We find no abuse of discretion on the part of the juvenile court.
DISPOSITION
The order is affirmed.
SMITH, J. WE CONCUR: FRANSON, Acting P.J. SNAUFFER, J.