Opinion
A159082
03-09-2020
Y.P., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD18-3033)
Before this court is a petition for extraordinary writ and request for stay seeking relief from a juvenile court order terminating reunification services for petitioner Y.P. (mother) and setting a date for a permanency planning hearing for her minor daughter J.P. pursuant to Welfare and Institutions Code section 366.26 (hereinafter, petition). Mother seeks this relief on the ground that no clear and convincing evidence supports the juvenile court's finding that real party in interest, the San Francisco Human Services Agency (the agency), provided reasonable reunification services before those services were terminated at the conclusion of the 18-month review hearing. Mother reasons that the juvenile court's finding failed to account for a mental health professional's recommendation that she receive a particular form of mental health treatment known as dialectic behavioral therapy (DBT) in a group setting. For reasons that follow, we deny the petition.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Detention.
J.P., born in 2009, was detained in March 2018 along with her two younger half siblings after the juvenile court sustained allegations in an amended dependency petition under section 300, subdivisions (b)(1) (failure to protect), (c) (serious emotional damage), and (j) (sibling harm or neglect) (hereinafter, amended petition). According to this amended petition and the agency's initial reports, J.P. faced a substantial risk of physical and emotional harm due to mother's untreated mental health issues, substance abuse and anger management problems. In addition, mother, who has had an extensive history with Child Protective Services (CPS), was in a relationship with G.C. characterized by domestic violence that included a recent incident in January 2018 that prompted a visit from the police. In March 2018, a safety plan for the family formulated by the agency fell apart when mother and G.C. again engaged in a physical altercation in front of J.P. and her half siblings.
J.P. is the only minor involved in this appeal.
The amended petition, unlike the original section 300 petition filed on February 14, 2018, sought detention.
J.P.'s father lived abroad and was unable to provide shelter, care or supervision. G.C. is the father of J.P.'s half siblings. --------
More specifically, the record reflects the agency received a referral on January 30, 2018, that J.P. was at risk of harm due to domestic violence between mother and G.C. and mother's untreated mental health needs. A social worker visited the family home and spoke to G.C., who explained that he had found mother a few days earlier in the backyard smoking an unknown substance and that she kicked him out of the home when he confronted her. G.C. and the younger half siblings had been staying with the maternal grandparents. G.C. discovered mother had moved a strange man into the home after J.P. complained, and when the maternal grandfather went to the house to confront her about it, mother started screaming and became violent. J.P. stayed in her room during the incident, although one of her younger half siblings watched the confrontation. Although the police were summoned by a neighbor, mother left the house before they arrived. The maternal grandparents later told the social worker that mother had a history of violence and that an emergency protective order was in place protecting G.C. from mother. The maternal grandparents agreed to keep the children with them.
The day after this incident, the agency's social worker interviewed J.P. at school after first talking to the school's social worker. The school's social worker described J.P. as generally resilient but emotionally broken down that morning due to mother's recent behavior. This social worker reported that J.P. was concerned because mother had been getting in fights with strangers (such as store clerks) and had moved a strange man into their home. Other school personnel described incidents of mother's angry outbursts at school. J.P., in turn, told the agency's social worker about two recent incidents of domestic violence between mother and G.C., one involving G.C. dragging mother down the stairs after becoming upset that mother had brought her new boyfriend into the home and had started smoking.
The social worker subsequently spoke with mother, who acknowledged going through difficulties with G.C. that she believed would be resolved. Mother denied mental health or substance abuse problems. Mother worked with the social worker to develop a safety plan to protect her children from future domestic disputes. The maternal grandfather agreed to help mother obtain an emergency protective order against G.C.
However, the following week, mother and G.C. told the social worker they were moving in together once the emergency protective order expired. They agreed the children would reside with the maternal grandparents until a safety plan was implemented (which occurred the following week). Among other things, the couple agreed to peacefully resolve disputes in the children's presence and to employ different conflict management behavior.
The safety plan developed for mother and G.C. fell apart on March 1, 2018, when J.P. witnessed another incident of domestic violence between the couple. In the presence of J.P. and her younger half sibling, mother yelled at G.C. and kicked him in the groin. G.C. subsequently told the social worker he was living in his car because he was tired of the domestic violence. J.P. described her mother as two people—" 'good mother' " and " 'bad mother' "—and was distraught that lately only " 'bad mother,' " who scared her, was showing up.
The detention report listed seven CPS referrals involving this family, including the most recent one and another dependency case involving J.P. from 2011.
B. Jurisdiction and Disposition.
On April 16, 2018, the parties reached a settlement regarding jurisdiction and disposition, and the juvenile court sustained the allegations in the amended petition. In addition, the juvenile court adopted the agency's recommendations with respect to reunification services for mother, which included participation in individual therapy to address her individual issues with domestic violence, anger management, parenting skills, mental health symptoms, coping and communication skills. The order also called for mother to undergo a psychological evaluation that would address her diagnosis, barriers to parenting and recommended therapy. Finally, the court ordered family therapy/therapeutic visitation, cooperation with the social worker, participation in a parenting program called Safe Care, and a 52-week domestic violence program.
C. Six-month Review.
The agency's status review report filed September 27, 2018, stated that J.P. was living with her maternal grandparents, where she had been since her removal, and that mother had been referred to Dimas Moncada, Jr., LCSW, for individual therapy. Moncada reported that mother was engaged and punctual, and that their treatment goals included conflict resolution and coping skills to eliminate emotional outbursts and increase safety in the home. Katya Cornejo, Psy.D., had completed a psychological evaluation of mother, diagnosing her with borderline personality disorder and recommending a DBT program with both individual and group therapy, a parenting class, couples therapy, psychiatric evaluation for medication and therapeutic visitation with the children. After receiving this psychological evaluation, the social worker consulted with Foster Care Mental Health with respect to referrals for DBT providers. The agency also gave Moncada a copy of the evaluation.
The report noted concerns about mother's difficulty maintaining productive relationships with the social worker and other care providers. The agency had received reports about mother's aggressiveness and reactiveness when given feedback or constructive criticism. The therapeutic visitation provider similarly reported that mother had reacted poorly to feedback and needed time to deescalate, prompting the provider to pause her visitations until she could meet with mother and the social worker together to discuss mother's conduct and goals.
Mother also had a conflict with the Safe Care parenting program social worker. After a meeting was held with mother, the Safe Care providers, and agency social workers, it was agreed mother would be assigned a new social worker and that she would try to be more open to receiving feedback. At the time of the report, mother had five more parenting sessions to complete and was attending a domestic violence program.
J.P., in turn, had reported her desire to remain with supervised visitation because she was only comfortable being alone with mother for five to 10 minutes due to mother's anger issues. J.P. also reported that she would not be comfortable having visitations in her maternal grandparents' home.
The report concluded mother was not ready for reunification and was still working on her case plan. Of particular concern were mother's difficulties with her care providers and failure to understand the impact of her behavior on her children. Mother still denied J.P.'s accounts of domestic violence in the home.
An addendum report filed January 17, 2019, stated that mother was again having problems with the therapeutic visitations, and recently pulled J.P. out of a session early and appeared to be using her phone to record the therapeutic service provider, prompting the provider to refuse her further services. By November 30, 2018, the agency had located another provider for mother. However, the social worker had also been notified of conflicts arising during mother's supervised visitations at a local YMCA. Among other things, mother had yelled at a staff member who told one of her daughters to be careful running on the sidewalk, and had yelled at the supervisor for writing a negative report.
J.P. reported she was no longer afraid of mother but worried about other people subject to her attacks. Mother received regular treatment from Moncada, who was using DBT therapy with her. Mother had also completed the Safe Care parenting program and the domestic violence workshop, was seeing a support counselor weekly, and was cooperating with the agency social worker.
Following the six-month review hearing, the court adopted the agency's recommendation to provide mother six additional months of reunification services and granted the agency the discretionary right to begin monitored visitation.
D. Twelve-month Review.
On April 3, 2019, the agency filed a status review report stating that mother and G.C. were living together while the children were living with the maternal grandparents. Mother reported on many of her skills learned in the parenting class, including limit setting, creating a safe space for her children, self-care, positive thinking, deep breathing, exercise, and not acting out in the moment. Both Moncada and the therapeutic visitation provider offered positive feedback regarding mother's regular attendance, positive engagement and progress in reaching her goals. Moncada described mother's DBT therapy, which involved recognizing and understanding emotions as they arise. Given mother's progress, it was agreed that mother could begin visitations at her home under the supervision of her cousin and aunt. In February 2019, it was agreed these visitations could be overnight and unsupervised.
Mother had a medical appointment at Kaiser and was evaluated for medication; however, she failed to disclose to the doctor her borderline personality disorder diagnosis or other mental health concerns. When the social worker provided this information to mother's doctor, the doctor suggested DBT rather than medication would be the appropriate treatment.
On March 11, 2019, the agency filed a section 388 request to permit unsupervised visitation for mother, which the court granted. However, on March 22, the agency received a CPS hotline referral regarding an incident involving mother at church. Mother became upset when she believed a woman was judging her based on her collection pot contribution and confronted the woman, embarrassing G.C. and prompting him to go to the car. Mother then became angry with G.C. for not defending her and left church, pounded on the car windows, and crawled on the hood before leaving to spend some nights at a hotel. On March 25, 2019, mother told the social worker that she and G.C. were separating. She returned to having supervised visits at her home.
In a June 11, 2019 interim review report, the social worker reported no significant new issues with mother and that mother and G.C. were again having unsupervised overnight visits in their home. Mother had reported attending weekly therapy sessions with Moncada, which she enjoyed and found productive, and was working with him on her reactions to others. She and G.C. had also begun couples therapy and had attended five sessions. Mother had been attending weekly parenting classes since December 2018, along with weekly one-on-one sessions with a teacher, and had received a certificate of completion in May 2019.
At a settlement conference on June 11, 2019, the court ordered six additional months of services for mother, set the matter for a contested 12-month review hearing, and granted the agency discretion to return the children to mother for a 30-day trial visit.
On July 18, 2019, the agency filed an ex parte application for an emergency order changing the visitation plan to supervised visitation by a relative. This application was based on a CPS referral regarding an incident during which mother was observed screaming outside the home in front of the children. In addition, the social worker had learned about another incident on June 28, when the police responded to a report of a fight at the home. Mother disputed this incident, explaining she was not present at her residence.
On July 22, 2019, the juvenile court granted the ex parte application to change visitation to supervised pending a hearing on the agency's section 388 request, which was scheduled for the same date as the contested 12-month review hearing.
In an addendum report filed July 30, 2019, the agency described several incidents from the prior few months reflecting mother's failure to make the behavioral changes necessary to protect her children. For example, on July 3, mother left home during an overnight visit and did not return until the next day. According to the maternal grandfather, J.P. described the man that mother left with as " 'scary' " and cried when her mom missed part of their visit. On July 9, mother's neighbor called the social worker to report mother's " 'ferocious' " anger, describing mother as "[going] 'ballistic' " outside her home in the children's presence.
On July 11, the maternal grandmother called the social worker to report that mother was in the street yelling and that a neighbor wanted to call the police. The neighbor thereafter called the CPS hotline regarding this incident and reported that mother's yelling had been going on for four months. The social worker advised the maternal grandfather to pick up the children. On July 12, 2019, the agency suspended overnight visits.
The addendum report also noted mother had been engaging in services but that her behavior had not improved and had continued to escalate in front of the children.
At the contested 12-month review hearing on August 2, 2019, the juvenile court adopted the agency's recommendation to provide mother six additional months of services and granted the agency's section 388 request to return to supervised visitation with agency discretion to return to unsupervised visits. The matter was then set for an 18-month review hearing.
E. Eighteen-month Review.
On August 28, 2019, the agency filed a status review report recommending termination of mother's services, J.P.'s continued residence with her maternal grandparents, and the return of the younger children to G.C., who had moved in with his mother in San Jose, under a family maintenance plan.
The social worker reported that while mother had continued to engage in services, her behavior had not improved and she continued to display verbal aggression toward others in front of the children. According to the social worker, mother had not made the necessary behavioral changes to safely reunify with her children. Mother had recently been prescribed medication for depression and generalized anxiety disorder after Moncada had given her a secondary diagnosis of depressive disorder. Moncada told the social worker that mother's borderline personality disorder could not be treated with medication but that her depression could.
On July 30, 2019, the social worker received a call from the maternal grandfather, who reported mother was outside yelling at a neighbor in front of the children. The two older children (including J.P.) had run inside while the youngest one asked to be put in the car with the doors closed. When the grandfather brought all three girls into the house, mother began screaming at him and accusing him of telling the neighbor to call CPS. J.P. went to leave, but mother insisted she had time remaining on her visit. The social worker tried to call mother to have her send the children home with the grandfather. Eventually, mother acquiesced to their leaving.
On August 19, 2019, Moncada reported to the social worker that mother was progressing in her understanding of how her behavior affects her children.
The couples therapist reported to the social worker that mother and G.C. had attended eight sessions, but that mother had left early during the July 18 session after her behavior escalated. As of August 12, 2019, the couple had not returned for therapy.
J.P. had also spoken to the social worker and reported that she preferred to continue living with her maternal grandparents, with whom she felt safe.
In an addendum report filed November 7, 2019, the social worker reported an incident on September 14, when mother appeared at J.P.'s soccer game and attempted to take the younger half siblings home early. The maternal grandfather did not let her but brought all three children to mother's home afterward. Ninety minutes into the visit, mother left to take a nap, after which a strange man entered the house and stated that he was renting a room for the week. The maternal grandfather told the man he could not rent a room, which enraged mother to such a degree that, finally, the maternal grandfather decided to end the visit. Mother then hit him on the head with a rubber toy, and the maternal grandfather left with the children and filed a police report. Mother was charged with battery.
The social worker spoke with Moncada, who reported mother had not visited him since September 13, 2019. Mother then told the social worker that she had begun receiving mental health services through Kaiser and had met with a psychiatrist and attended a DBT group. The maternal grandparents reported that they had organized family members in order to support mother with her mental health needs.
The 18-month review hearing occurred on November 20, 2019, at which the social worker testified that he did not believe the children could safely be returned to mother. He also testified on cross-examination regarding mother's psychological evaluation and its recommendation for DBT treatment. The social worker explained that both he and his predecessor had encouraged mother to request DBT treatment from Kaiser, but that she failed to disclose her diagnosis to her physician. Her therapist, Moncada, had advised the agency that he uses DBT with mother. Mother then testified that her sessions with Moncada had not been productive.
At the close of the hearing, the juvenile court adopted the agency's recommendation to terminate mother's services but allowed her to continue visitation at the maternal grandparents' house, and set the matter for a permanency planning hearing. In doing so, the court found by clear and convincing evidence that reasonable services had been provided to mother but had proven unsuccessful. The section 366.26 hearing was set for March 11, 2020. This petition for extraordinary writ and request for stay followed.
DISCUSSION
Mother seeks reversal of the juvenile court's order to terminate reunification services and a stay of the order setting the case for a permanency planning hearing. Mother contends the juvenile court erred in finding that the agency provided her with reasonable reunification services, reasoning that she was diagnosed with borderline personality disorder, a condition that could be effectively treated with DBT group therapy. Mother contends the agency failed to refer her to DBT group therapy, and thereby failed to provide services " ' " 'specifically tailored to fit the circumstances of each family' " ' " and " ' " 'designed to eliminate those conditions which led to the juvenile court's jurisdictional finding,' " ' " quoting Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420.
We review for substantial evidence a juvenile court's finding that reasonable reunification services have been provided to a dependent's parent or legal guardian. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) Further, the juvenile court's finding must be based on clear and convincing evidence. (Ibid.) Accordingly, in reviewing the juvenile court's finding, we must bear in mind the heightened burden of proof and determine whether any substantial evidence—that is, evidence which is reasonable, credible, and of solid value—supports it. (Ibid.; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) In doing so, we draw all legitimate inferences in support of the juvenile court's finding. (In re Alvin R., supra, 108 Cal.App.4th at p. 971.)
Mother correctly points out that California courts have long held that a proper plan for reunification services must be tailored to the specific needs of the family. "[T]o make the requisite findings, 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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414; accord, In re Alvin R., supra, 108 Cal.App.4th at p. 971.)
Here, the juvenile court found by clear and convincing evidence that mother had been offered reasonable reunification services by the agency from the time of detention until the 18-month review hearing. The record supports this finding.
First, the agency identified the following issues leading to J.P.'s removal: (1) domestic violence between mother and G.C. in the children's presence; (2) mother's untreated mental health issues; and (3) mother's serious anger management issues, often exhibited in front of the children and directed at people in the community, including neighbors, personnel from J.P.'s school, and mother's service providers. To identify just some of the many examples in the record of these issues coming to light, J.P. was detained after police responded to a complaint of domestic violence involving mother and G.C., during which G.C. called the CPS mobile hotline after the maternal grandfather unsuccessfully tried to calm mother down. Then, after several months of mother's engagement in services (some successful and some marred by mother's anger and difficulty receiving feedback), the social worker received at least four calls regarding mother's behavior between June 28 and July 11, 2019. One such call from mother's neighbor described her as going " 'ballistic' " outside her home as the children watched, and another call, also from a neighbor, described mother yelling outside like a " 'lunatic,' " a daily occurrence for about four months. Lastly, on July 30, 2019, shortly before the 18-month review hearing, the social worker received a call from the maternal grandfather reporting mother was outside with her children yelling at a neighbor. The two older children (including J.P.) had run inside while the youngest one asked to be put in the car with the doors closed. When the grandfather brought all three girls into the house, mother began screaming at him and accusing him of telling the neighbor to call CPS. J.P. went to leave, but mother insisted she had time remaining on her visit. The social worker tried to call mother to have her send the children home with the grandfather. Eventually, mother acquiesced to their leaving.
At the same time, the record reflects that for 18 months during this dependency, mother received a full spectrum of services to assist her in reunifying with J.P. In particular, the agency offered mother: (1) referrals for a psychological evaluation by mental health professional Katya Cornejo, Psy.D., who diagnosed mother with borderline personality disorder and recommended DBT therapy; (2) referrals for mental health treatment with Dimas Moncada, Jr., LCSW, who provided DBT therapy that focused on mother's coping skills and her awareness, understanding and control of her emotional reactions; (3) referrals to healthcare providers (including physicians) at Kaiser, where she was prescribed medication for her depression and generalized anxiety and received more DBT therapy; (4) referrals to programs for domestic violence, parenting (Safe Care) and couples therapy; (5) therapeutic visitation in addition to both supervised and, later, unsupervised weekly visitation with J.P.; and (6) regular contact between mother and the agency, including regular meetings with a social worker to help her successfully complete the case plan.
This evidence, we conclude, is sufficient to support the juvenile court's finding by clear and convincing evidence that reasonable reunification services were provided to mother. Specifically, the evidence set forth above establishes that the agency "identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with [mother] during the course of the service plan, and made reasonable efforts to assist [mother] in areas where compliance proved difficult . . . ." (In re Riva M., supra, 235 Cal.App.3d at p. 414.) That is all the law requires. (See In re Alvin R., supra, 108 Cal.App.4th at pp. 972-973 [reunification services need not be perfect, and are not unreasonable merely because more could have been provided].)
In reaching this conclusion, we acknowledge mother's complaint that the agency failed to provide her with DBT group therapy, which had been recommended by Katya Cornejo, Psy.D. Specifically, mother contends: "[T]he missing piece of reunification was the DBT group therapy. Each event where [her] behavior escalated was not caused by the children but by other adults. All of the visits between [mother] and her children had no issues. [Citation.] The purpose of the DBT group therapy was to help [her] control her impulses around other people. The department failed to provide the necessary component of therapy, DBT group therapy."
We reject mother's argument. There is substantial evidence in the record that the agency made considerable efforts to ensure mother received DBT. As the agency social worker testified at the 18-month review hearing, both he and his predecessor encouraged mother to request DBT from Kaiser. However, when mother met with a Kaiser doctor, she failed to disclose that she had been diagnosed with borderline personality disorder, a condition best treated with DBT. Nonetheless, the social worker remained in regular contact with mother's therapist, Moncada, who explained his particular use of DBT with mother. Moncada's DBT treatment included helping mother to develop conflict resolution and coping skills, and to understand her emotions and how her behavior impacts her children. Moncada believed mother had progressed in these areas before she stopped visiting him on September 13, 2019. And while mother later reported that she did not find her sessions with Moncada helpful, she acknowledged that she had begun "DBT one-on-one and other group therapy sessions" at Kaiser after ending her treatment with Moncada.
Under these circumstances, we cannot conclude the agency's failure to refer mother to a particular DBT group therapist rendered its provision of services unreasonable. (See In re Alvin R., supra, 108 Cal.App.4th at p. 971 [all legitimate inferences must be drawn in support of the juvenile court's finding of reasonable services].) Accordingly, there is no basis for reversing the juvenile court's order. That mother could have received more services or assistance to facilitate reunification with her child does not render the agency's efforts unreasonable. As the agency noted, perfection is not the relevant standard. (In re Alvin R., supra, 108 Cal.App.4th at pp. 972-973.) Mother's petition and stay request must therefore be denied.
DISPOSTION
The petition for extraordinary writ and request for stay are denied.
/s/_________
Jackson, J. WE CONCUR: /s/_________
Fujisaki, Acting P. J. /s/_________
Petrou, J.