In re Christian K. ( 2018 )

Filed 3/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re CHRISTIAN K., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent, A151695
v.
(Alameda County
CHRISTIAN K., Super. Ct. No. OJ14022433-02)
Objector and Appellant.
After terminating the parental rights of Julie K. (Mother) and selecting adoption as
the permanent plan for her son, appellant Christian K., the juvenile court ordered a case
plan calling for Christian to undergo weekly therapy. Because of delays and scheduling
issues, Christian attended fewer sessions than were planned. At a post-permanency
review hearing, the court approved an extended overseas trip for Christian to visit with
his planned adoptive family even though the court agreed that Christian would benefit
from additional therapy. We conclude that the court’s order approving the trip was
proper under Welfare and Institutions Code section 366.3, subdivision (g)1 to protect
Christian’s stability and to facilitate and expedite his adoption, and we therefore affirm.
1
All statutory references are to the Welfare and Institutions Code.
1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
We described the factual and procedural background of these proceedings in our
previous opinion in which we reversed the juvenile court’s termination of Mother’s
parental rights, and we need only summarize that background here. (In re Christian K.
(Sept. 7, 2017, A150346 [nonpub. opn.] (Christian K. I).) In February 2014, respondent
Alameda County Social Services Agency (Agency) filed a dependency petition as to then
four-year-old Christian alleging that his parents’ struggles with drug abuse affected their
ability to parent him. Mother made progress in her case plan but failed to reunify with
Christian, and the juvenile court terminated reunification services and scheduled a
selection-and-implementation hearing.
Meanwhile, Christian’s paternal grandmother (Grandmother), who lives in
Denmark, expressed interest in having Christian placed with her and her husband (Step-
Grandfather). Christian visited with Grandmother when she traveled to the United States
to see him, and the Agency ultimately recommended that parental rights be terminated so
that Grandmother could adopt Christian. In a report filed in advance of the selection-and-
implementation hearing, the Agency also recommended a case plan that included weekly
therapy for Christian.
Following a hearing in January 2017,2 the juvenile court terminated Mother’s
parental rights and selected adoption as the permanent plan. Mother appealed in
February. (Christian K. I, supra, No. A150346.)
Also in February, a therapist was assigned to Christian, but Christian’s foster
mother failed at first to follow up when the therapist called to arrange appointments.
Christian ultimately began therapy in March. The Agency reported that it was sometimes
difficult to arrange his transportation to therapy because the foster family apparently was
either unable or willing to provide it. Christian’s therapist reported that it would be
2
All further date references are to 2017.
2
important for Christian’s emotional well-being to increase his contact with Grandmother
during the transition to adoption.
Grandmother came to the United States for a month from mid-March to mid-April,
and Step-Grandfather joined her for part of this time. They spent an entire week with
Christian during his spring break and took him on a trip to San Diego, and Grandmother
continued to visit with Christian on weekends after Step-Grandfather returned to
Denmark for work. A social worker reported that Christian was “very playful” with
Grandmother, and that the grandparents bought Christian a couple of soccer balls and
played soccer with him.
During her visit, Grandmother attended therapy sessions with Christian, and Step-
Grandfather also attended a session during his shorter visit. Reportedly, there was
“mutual hostility” between Grandmother and Christian’s foster mother, including
disputes over telephone contact between Christian and Grandmother, that required court
intervention. Part of the reason for therapy was “to begin to repair the relationship
between Christian and [Grandmother].” Social workers transported Christian to therapy
sessions in late March and early April, and a worker met with the therapist in May at
Christian’s school. A mid-April therapy appointment was canceled, however, so that
Christian could get a passport, and additional appointments were missed because of an
apparent miscommunication about meeting at Christian’s school. Christian was told in
May about moving to Denmark and was “given time to process the information with his
therapist.” Christian was reassigned a new therapist around this time.
Christian’s visitation with Mother ended in May because of the pending adoption.
Christian was upset about this, and his foster mother reported that Christian cried several
times about not being able to see Mother and asked why he could no longer see her. The
foster mother was concerned about the effect that suspending visits had on Christian’s
emotional well-being. Christian’s court-appointed special advocate (CASA) filed a
report stating that Christian still had strong emotional ties with Mother, and that she (the
CASA) would support returning custody of Christian to Mother, if possible.
3
Christian told a social worker that he liked living with his foster mother, that he
wanted to live with Mother or his foster mother, and that he did not want to move to
Denmark. Nonetheless, in June, the Agency recommended that the juvenile court order a
30-day trial visit to Denmark for Christian and stated it might request other extended
visits until Christian I was resolved or the court ordered that the placement be completed.
The Agency also asked that the juvenile court find that reasonable services had been
provided to Christian.
The court held a held a post-permanency review hearing on June 23 under
section 366.3 and California Rules of Court, rule 5.740.3 Christian’s attorney disagreed
with the Agency’s assessment that Christian had received reasonable services. Counsel
argued that Christian needed additional therapy in order to ensure a smooth transition to
moving overseas. Because Christian had attended only a few therapy sessions, counsel
asked that there be no placement change until Christian received therapy for “not
necessary[il]y six months, but a significant period of time. Perhaps eight sessions would
do. I don’t know—whatever would make that therapist comfortable in opining such,
what this move would mean to [Christian], whether it would be to his detriment.”
County counsel acknowledged the importance of therapy but attributed Christian’s
anxiety to being “in limbo for so long,” and argued that the placement should proceed as
soon as possible. The attorney stated he did not know whether Christian’s counsel was
“trying to set this matter for contest in which [case] I could arrange for the child welfare
worker to be here so she could explain what happened with the therapy sessions that did
not occur and what the Agency did to remedy that.” Christian’s counsel responded that
he was “not particularly asking to present additional evidence,” but that it was the
Agency’s burden to prove it had provided reasonable services, and the Agency had not
done so in its report filed before the hearing.
The juvenile court sided with county counsel, observing that the longer Christian
was “in limbo, the more difficult it’s been on him.” As for Christian’s attorney’s
3
All rule references are to the California Rules of Court.
4
arguments, the court stated that “I think that your [Christian’s attorney’s] arguments are
accurate and they are profound and I agree with everything that you have said. And I
also agree [with county counsel] that it is time for him to go [to Denmark]. It is at a point
where it needs to happen now. I think the limbo is worse for him than anything else . . . .
So I am not going to order that he stay here more months so that he can go to therapy.”
The parties again argued over whether Christian needed to “set a contest” on
whether the Agency provided reasonable services. County counsel argued that setting
such a “contest” was necessary, while Christian’s attorney reiterated that it was the
Agency’s burden, which it had not met, to prove by clear and convincing evidence that
reasonable services had been provided. County counsel then argued that “as we all know
reasonable services are not perfect services.” Christian’s counsel countered that the
services fell far short of being reasonable.
The juvenile court found that Christian’s case plan was necessary and appropriate,
that the permanent plan of adoption continued to be appropriate, and that the likely date
by which the Agency would finalize the permanent plan was December 23. As for
services, the court stated, “Given the fact that no contest is being set the Court will find
that reasonable services have been provided to Christian.” The minute order entered after
the hearing reiterated that “[r]easonable services have been provided by the Social
Services Agency.” It then ordered the 30-day trial visit to the home of the paternal
grandparents. Christian appealed.
On September 7, we reversed the order terminating parental rights because Mother
had met her burden of establishing the applicability of the beneficial-relationship
exception to adoption under section 366.26, subdivision (c)(1)(B)(i), and we remanded to
the juvenile court for further proceedings. (Christian K. I, supra, No. A150346.) On
September 15 and again on October 20, Christian’s attorney asked for extensions of time
to file an opening brief in this matter until after the juvenile court held a hearing in
response to Christian K. I. Counsel stated in both requests, “Should [Christian] be
returned to the mother or to a placement in Alameda County, it would appear that this
appeal may be moot.” Christian’s attorney later notified the court that the matter was
5
scheduled for a hearing in the juvenile court on December 8 “for appointment of counsel
and scheduling of hearings.” Briefing proceeded in this court with no further requests for
extensions of time, and we do not know what, if anything, happened at the December 8
hearing or at any subsequent hearing.
II.
DISCUSSION
Christian argues that the juvenile court wholly failed to exercise its discretion
when it denied his request to postpone his trip to Denmark until he received additional
therapy because it based its finding of reasonable services solely on the fact that Christian
did not request a contested hearing. Alternatively, Christian argues that insufficient
evidence supports the finding that he received reasonable services. Because we conclude
that these arguments are inconsistent with what is required under section 366.3 after a
juvenile court orders adoption as the permanent plan, we reject them.
When a juvenile court orders a permanent plan of adoption, the court is required to
retain jurisdiction over the child until the child is adopted. (§ 366.3, subd. (a);
rule 5.740(a).) The court is required to hold a hearing at least every six months, where it
is to consider a report from the social-services agency regarding the child’s current
placement and efforts to finalize an adoption. (§ 366.3, subds. (d), (g); rule 5.740(a)(1).)
At these hearings, the court is to make determinations on several issues, including the
adequacy of services provided to the child. (§ 366.3, subd. (e)(6); rule 5.740(a)(1).)
Once it has done so, the court is authorized to “make appropriate orders to protect the
stability of the child and to facilitate and expedite the permanent placement and adoption
of the child.” (§ 366.3, subd. (g).) The court terminates its jurisdiction when an adoption
is granted. (§ 366.3, subd. (a); rule 5.740(a)(3).)
Services are offered to children and families throughout juvenile-dependency
proceedings, but these services are treated differently by statute at different stages. If the
juvenile court finds that reasonable services have not been provided during the earliest
stage, the first 12 months of the reunification period, the court is prohibited from
terminating services and must order that additional services be provided. (§§ 366.21,
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subd. (g)(1), 361.5, subd. (a)(3)(A), 366.21, subd. (g)(1), 366.26, subd. (c)(2)(A); In re
Alvin R. (2003) 108 Cal. App. 4th 962, 973-974 [six-month review hearing]; Amanda H. v.
Superior Court (2008) 166 Cal. App. 4th 1340, 1345 [12-month review hearing].) The
court may in its discretion extend reunification services beyond 18, and up to 24, months,
but only if certain findings are made. (§§ 361.5, subd. (a)(4)(A), 366.22, subd. (b);
Earl L. v. Superior Court (2011) 199 Cal. App. 4th 1490, 1500-1501, 1504 [although
social-services agency did not provide reasonable services during reporting period,
juvenile court not obligated to provide reunification services beyond 18 months except in
limited circumstances].)
After a permanent plan of adoption has been selected, however, services are
treated differently. Section 366.3, which governs this stage, does not mandate a
particular consequence if adequate services are not provided. (§ 366.3, subds. (a), (d),
(e), (g).) As we have mentioned, the statute directs the juvenile court to “determine” the
“adequacy of services provided to the child” (§ 366.3, subd. (e)(6)) and to “make
appropriate orders to protect the stability of the child and to facilitate and expedite the
permanent placement and adoption of the child.” (§ 366.3, subd. (g).) Because no
consequence is mandated for the failure to provide reasonable services, the statute
confers discretion upon the court to issue any appropriate order to protect a child’s
stability and to expedite the child’s permanent placement—which may or may not
include further services—regardless of whether services are found to have been wanting.
There is no dispute here that the juvenile court was required to consider and
determine the adequacy of services that Christian received after the court selected his
permanent plan. (§ 366.3, subd. (e)(6).) Christian contends that the court failed to do so
because it stated at the review hearing that it found reasonable services were provided
“[g]iven the fact that no contest is being set.” We agree that a determination on the
adequacy of services is not established simply as a consequence of the parties failing to
request a contested hearing regarding services. (§ 366.3, subds. (e)(6) [juvenile court
“shall determine” adequacy of services], (g) [social-services agency “shall prepare and
present to the court a report describing” various factors], italics added.) But we disagree
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that the court failed to consider and determine the adequacy of services. A review of the
record shows that the court considered the services Christian received, agreed that more
therapy would be helpful, but nonetheless ordered the trip to Denmark to promote
Christian’s stability and to facilitate and expedite the adoption.4 Nothing about this
contravened what is required under section 366.3.
The parties argue over whether substantial evidence supports a finding that
reasonable services were provided to Christian. This argument is based on the false
premise—one that seemingly was also assumed below—that the juvenile court was
required to find that Christian’s services were reasonable before it could order the trip to
Denmark. In response to the argument by Christian’s attorney that Christian had been
denied reasonable services, the court remarked that the “arguments are accurate and they
are profound and I agree with everything that you have said.” In contrast, the minute
order entered after the hearing stated that reasonable services were provided. But so long
as the court considered and made a determination about Christian’s services, which it did,
it was authorized to order the trip to Denmark “to protect the stability of [Christian] and
to facilitate and expedite the permanent placement and adoption of [Christian]” (§ 366.3,
4
A review of the record also suggest that the juvenile court understood the need to
determine the adequacy of services notwithstanding the fact Christian did not request live
testimony on the issue. After lengthy argument on whether Christian was required to
request a “contest,” the following exchange took place:
“[Christian’s attorney]: Again, I don’t know how much more I can—I think the
Court understands.
“THE COURT: I do.
“[Christian’s attorney]: That it’s the Agency’s burden to bear, to present evidence
of services provided and how they were reasonable. I agree with the premise that
reasonable services may not be perfect, but we are a long, long way from perfect—a long
way from below being imperfect but acceptable. Submit it.
“THE COURT: I understand.” (Italics added.)
It is unclear why the juvenile court then tied its finding on the reasonableness of
services to the fact that “no contest is being set.” The minute order following the hearing
correctly omitted any connection between these unrelated issues.
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subd. (g)) even if the services were imperfect, unreasonable, or inadequate.5 We cannot
conclude that this ruling was an abuse of discretion.
As we have mentioned, we do not know whether the juvenile court has issued
subsequent orders or the content of any such orders. The trip to Denmark was for only a
four-week trial visit in June and July. We do not know if the trip took place or if
Christian has received additional services, including more therapy. But no party has
argued mootness, and we conclude only that the court did not abuse its discretion in
denying Christian’s request to postpone the trip for Christian to receive additional
therapy.
III.
DISPOSITION
The juvenile court’s June 23, 2017 order is affirmed.
5
Even during the reunification stage, when a juvenile court is prohibited from
terminating services without a finding that they were reasonable, it is settled that services
need not be perfect but only reasonable under the circumstances. (In re Misako R. (1991)
2 Cal. App. 4th 538, 547.)
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_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Banke, J.
In re Christian K. A151695
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Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. Kimberly M. Briggs
Counsel for Defendant and Appellant:
Amy Z. Tobin, First District Appellate Project
Counsel for Plaintiff and Respondent:
Donna R. Ziegler, County Counsel, County of Alameda
In re Christian K. A151695
11