Richard v. v. Superior Court CA4/3 ( 2015 )

Filed 10/2/15 Richard V. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RICHARD V.,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE G052193
COUNTY,
(Super. Ct. No. DP024322)
Respondent;
OPINION
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,
Real Parties in Interest.
Original proceeding; petition for a writ of mandate/prohibition to challenge
an order of the Superior Court of Orange County, Craig Arthur, Judge. Request for Stay.
Petition denied. Request denied.
Law Office of Rebecca Caption and Rebecca Caption for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Real Party in Interest Orange County Social Services
Agency.
Law Offices of Harold LaFlamme and JessAnn Hite for Real Party in
Interest Anthony V., a Minor.
* * *
Richard V. (father) seeks writ review (Cal. Rules of Court, rule 8.452) of
the juvenile court’s order setting a hearing under Welfare and Institutions Code section
366.26 (all further statutory references are to this code) after it found his two-year-old
son Anthony V. (child) would be at risk in his care and that reasonable services had been
offered or provided to him. Father contends substantial evidence does not support those
findings. Orange County Social Services Agency (SSA) opposes the petition and the
child joins in its arguments as to why the petition should be denied. We agree and deny
the petition and father’s request for a stay of the section 366.26 hearing, currently
scheduled for October 6, 2015.
FACTS
SSA placed a hospital hold on the child two days after his birth due to
mother’s mental health issues, her difficulty in bonding with the child, and her
subsequent abandonment of him. Five other children belonging to mother and father
were declared dependents in 2011 when mother attacked the eldest child and was
arrested. A son born in 2012 was also taken into protective custody after birth and placed
in foster care.
2
Mother has a history of excessive discipline with the children and was
diagnosed with mental illness, including schizophrenia, bipolar disorder, and depression.
She refused to take her prescribed medication or continue treatment and was hospitalized
extensively.
Father successfully reunified with the five older children and their cases
were closed in June 2013. Soon after, father allowed mother back into the home. He
acknowledged she would likely create serious problems “if he is unable to concretely
enforce the rule that she is not allowed in the home.” He “claim[ed] that he had no
choice” because of the way the exit orders were written. Mother told SSA she lived in
the family home, but father and the five older children stated she lived in the camper in
front of the home and visited with them daily for a few hours. SSA noted father “appears
not to be capable of setting his own boundaries and limits with mother.”
SSA filed a jurisdictional petition alleging failure to protect the child and
abuse of siblings. The court detained the child, granted father’s request for a paternity
test, and ordered reunification and supervised visitation for both parents. The child was
placed in the same foster home as his brother.
At the December 2013 trial on the petition, the court found the allegations
true by a preponderance of the evidence, declared the child a dependent of the court, and
ordered reunification services for both parents. Father was granted standing as the child’s
presumed father and his biological paternity was later established. ``
The court approved father’s case plan in February 2014. A major
component of the case plan required father to “participate in individual, conjoint, family,
and/or group therapy with a therapist . . . to address issues in the petition. Counseling is
to continue until such time as the assigned social worker determines in consultation with
the therapist that the goals of therapy have been accomplished and therapy is no longer
necessary.” When the social worker attempted to meet with father to discuss the case
plan and offer referrals for counseling services, father indicated he was not available to
3
meet that month. The social worker met with father in March but did not have the correct
form for father to sign. Father signed the referral for counseling in late April, but did not
believe he needed it and wanted to discuss the matter with his attorney.
Father denied mother’s claim she lived with him, but admitted she visited
fairly regularly. From late April 2014 to mid-May, photographs of mother in father’s
new car and in the family home appeared almost daily on her Facebook page.
For the six-month review in June, the social worker recommended
continued reunification services for the parents and the scheduling of a 12-month review
hearing. The court adopted SSA’s recommendation. It found reasonable services had
been provided or offered and father had made moderate progress on them. And although
continued supervision and out-of-home placement remained necessary, a substantial
probability existed the child would be returned to his parents in the next six months.
Father reported car and medical issues relating to his knee, including
surgery, which affected his ability to complete his case plan, prompting SSA to provide
him with a monthly bus pass. In August 2014, father was terminated from counseling
following a “third no-show.”
The following month, father signed a referral for individual counseling,
which the social worker submitted for processing. Father completed his “intake #1 on
October 15,” missed the next two sessions, which he claimed were “due to car issues,”
and had his first individual session on November 12.
On November 17, the therapist told the social worker that “an Assessment
and Treatment Plan (ATP) [was] in the process of being completed” and that the topics
that would be addressed in counseling would include “Communication, Boundaries,
Healthy Family Relationships, and Taking Responsibility.” Regarding father’s progress,
the therapist noted that father “has a lot of obstacles to prevent him from (going to his
appointments),” such as transportation, his doctor appointments, limited time, and being a
4
single parent. Nevertheless, she believed “[h]e is motived[,] . . . comes on time[, and h]is
reasons for not coming seem very valid.”
But two days after the therapist gave the social worker her assessment,
father missed another session “due to car issues” and was again terminated. Father
requested immediate reinstatement to allow him “to continue with his individual
counseling sessions.” The social worker had father reinstated.
In its report for the 12-month review, SSA changed its recommendation to
terminating reunification services and setting a section 366.26 hearing date. After being
reinstated into counseling, father missed two sessions, leaving one more “no show”
before the therapy sessions were again terminated. Visitation was also spotty, although
some missed visits were due to father’s and the children’s medical appointments.
The 12-month review hearing was continued to January 2015. Visitation
had improved but the social worker found it important to note father had declined an
offer to make up a missed visit. The therapist reported father was participating in weekly
counseling sessions, was fairly motivated to change, was “willing to talk” but was
guarded and did not want to answer certain questions, and although generally positive,
was sometimes irritable. She believed his physical injuries were “legit” obstacles.
Father missed a counseling session in late January and was terminated for a
third time. The termination report indicated there was “‘No change’” on the goal of
exploring and defining “healthy family relationships and . . . boundaries.” Father
“reported having no concerns regarding boundaries with mother, because mother has
rights to visit children.” With respect to the topic of cooperation, the therapist observed
father “minimized responsibility for attending sessions or reason for” SSA’s involvement
and threatened to sue the therapist, SSA, and the County of Orange.
The case was continued to the latter part of February. Regarding visits, the
social worker again noted father had declined his offer of additional visits to make up for
missed visits. Following a visit in early February, the caretaker reported the child was
5
“acting up weird,” unusually crying hysterically upon waking up, and becoming
aggressive with his brother and the caretaker’s daughters. But father had obtained
employment, was moving to another home with an address he wanted to keep
confidential, and was being re-referred to counseling for the fourth time.
The court continued the matter to March. Father attended three individual
counseling sessions with his new therapist. The caretaker expressed concern about the
child’s behavior before and after his visits with father. The child would cry during the
visitation exchange and appeared to be stressed, fearful, and sad on visitation days. The
caretaker also informed the social worker she suspected father may be allowing mother
unauthorized contact with the child based on Facebook photographs mother posted on the
days father had visits. According to the caretaker, the child did not appear happy or
content in the pictures.
The court continued the case to April 6 and then again to April 13. Because
the latter date coincided with the timeline for the 18-month review, the court designated it
as a combined 12- and 18-month review hearing. In the report prepared for the hearing,
the social worker noted father continued to visit the child but there were problems in
coordinating makeup visits for missed visits.
At the combined 12- and 18-month review hearing, the social worker
testified he had changed his recommendation to terminate reunification services due to
the inconsistent visits and attendance in counseling. The recommendation not to return
the child to father’s care resulted from the social worker’s concern about whether father
could enforce boundaries with mother in light of the Facebook photographs the caretaker
saw and the caretaker’s observation of the child’s behavior after visits with father.
Additionally, the social worker believed father’s inconsistent participation in counseling
“possibly” could put the child at risk because that would mean the treatment goals of the
case plan were not being addressed. The social worker had no evidence father could not
enforce boundaries with mother and acknowledged mother was not in the Facebook
6
photographs of the child that were provided to him by the caretaker. The social worker
did not look at mother’s Facebook page and did not ask father about the pictures.
The social worker has observed aggressive and agitated behavior from
father, but did not believe father needed anger management counseling. Rather,
individual counseling remained father’s main case plan responsibility.
The matter was trailed and subsequently continued for two months on the
court’s own motion. The court requested information from father’s therapist and
increased visitation for father. It ordered the social worker to observe the interaction
between father and the child, make unannounced home visits, and investigate mother’s
level of involvement with the children. A few weeks later, the social worker filed an ex
parte report advising of his inability to perform unannounced home visits “due to the
father’s threatening behavior and lack of cooperation.”
In May 2015, father told his therapist he wanted to cancel counseling, as he
did not want it. The therapist terminated father’s counseling. Additionally, father had
not visited the child since the last hearing date.
Father did not attend the review hearing in June and had not communicated
with his attorney during the prior two weeks. Counsel informed the court that although
father at one point had stated he was no longer going to fight for the child’s return, he had
changed his mind and had asked counsel to seek additional time for him to reunify with
the child. The trial court denied counsel’s request for a continuance to allow her time to
contact father. Counsel submitted on the record.
The court found that the child would be placed at a substantial risk of
detriment if returned to father. Despite clear and convincing evidence that reasonable
services had been provided or offered, father’s progress toward alleviating the reasons
requiring placement was “minimal and in the last 60 days has been nonexistent.” The
court terminated reunification services and set the matter for a section 366.26 hearing.
7
DISCUSSION
1. Failure to Return the Child to Father’s Care
Father contends SSA failed to show how the child would be at risk if placed
in his care. According to him, he “participated regularly and made substantive progress
on his service plan” and SSA failed to demonstrate the child would be at risk in his care.
We disagree.
At an 18-month status hearing, “the court shall order the return of the child
to the physical custody of his . . . parent . . . unless the court finds, by a preponderance of
the evidence, that the return of the child to his . . . parent . . . would create a substantial
risk of detriment to the safety, protection, or physical or emotional well-being of the
child. The social worker shall have the burden of establishing that detriment. . . . The
failure of the parent . . . to participate regularly and make substantive progress in court-
ordered treatment programs shall be prima facie evidence that return would be
detrimental.” (§ 366.22, subd. (a).)
We review a juvenile court’s finding of detriment for substantial evidence,
viewing “the evidence most favorably to the prevailing party and indulge in all legitimate
and reasonable inferences to uphold the court’s ruling.” (In re Mary B. (2013) 218
Cal. App. 4th 1474, 1483.) “‘“Substantial evidence” is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid value.’” (Tracy J. v.
Superior Court (2012) 202 Cal. App. 4th 1415, 1424.) Such evidence supports the court’s
finding of a substantial risk of detriment here.
Father contends he participated regularly and made substantive progress on
his case plan requiring him to participate in individual counseling. Although he
acknowledges being terminated from counseling when he missed three sessions, he
asserts he started attending weekly sessions again after he was reinstated. He cites the
therapist’s report that he arrived on time, had valid reasons for missing sessions, was
8
actively participating, and was “fair[ly]” motivated to change. After being terminated
from counseling a second time in January 2015, he signed a third referral and began
counseling again.
The record shows father was terminated from counseling three times for
nonattendance and voluntarily quit all participation after a fourth referral. Such
termination and cancelation demonstrates he was not participating regularly in his case
plan. Additionally, upon his third termination from counseling, the therapist’s
termination report identified “‘No change’” in his progress with respect the case
management goal to “Explore and define healthy family relationships and healthy
boundaries.” “‘No change’” does not equate to “substantive progress.” (§ 366.22, subd.
(a). And, while father signed a referral to be re-referred to individual therapy again in
February 2015, he attended three sessions and told his therapist he no longer wanted
counseling just three months later. Moreover, with respect to “client’s cooperation,” the
therapist reported father “had inconsistent attendance” and “minimized responsibility for
attending sessions or reason for involvement of Child Protective Services” by threatening
to sue SSA, the therapist, and the County of Orange. Father does not explain how this
shows “substantive progress” on his court-ordered counseling. (§ 366.22, subd. (a).)
Substantial evidence demonstrates father failed to participate regularly in or
make substantive progress on his court-ordered counseling. This constitute prima facie
evidence that returning the child to father would create a substantial risk of detriment to
the child, negating father’s argument to the contrary.
2. Reasonable Reunification Services
Court-ordered reunification services may not be extended beyond 18
months from the date the child was removed from the parent’s physical custody unless
the juvenile court finds “there is a substantial probability that the child will be returned to
9
the physical custody of his or her parent . . . within the extended time period or that
reasonable services have not been provided to the parent . . . . ” (§ 361.5, subd. (a)(3).)
Father argues he was not offered reasonable reunification services because
“[a]t the time of the six-month review, [he] had not even heard from his therapist yet to
begin services” and then “was terminated from services sometime around the twelve-
month review.” He neglects to note he caused the initial delay when he stated he was
unavailable to meet with the social worker in February 2014, when the case plan was
approved. Although the social worker brought the wrong form to the next meeting, father
remained reluctant to sign it even as of April because he believed he did not need
counseling.
The six-month status hearing took place in June 2014 and father’s first
termination from counseling occurred on August 7. Father thus had four months of
counseling before he was terminated for missing too many sessions. On September 23,
the social worker submitted another referral for counseling. Father complains he was not
reinstated until “a month and a half after” the social worker learned of the termination
and claims “[t]he majority of the time father was without therapy services was the social
worker’s unreasonable length of time in processing referrals.” We reject this argument
because it was father’s conduct in failing to attend his sessions that led to his terminations
from counseling, and his resulting claimed lack of services.
Father faults the social worker for not referring him to additional services.
But there was no need to do so because the main goal of his case plan centered on father
participating in counseling.
As to father’s claim that little information was provided to the court about
his counseling, we conclude SSA’s status reports offered sufficient detail for the court to
conclude father had been offered reasonable services. Instead of following through on
his counseling, he continued his pattern of nonattendance and then simply quit during his
fourth referral.
10
Moreover, as this court has recognized, the “setting a section 366.26
hearing is [not] ‘conditioned on a reasonable services finding’ at the section 366.22
hearing covering the most recent reporting period. Subdivision (b) provides a limited
right to a continuance where additional reunification services would serve the child’s best
interests, and the parent is making ‘significant and consistent progress’ in treatment
programs or in establishing a safe home after release from custody. In these cases, the
juvenile court may not set a section 366.26 hearing if the court finds reasonable
reunification services have not been offered or provided.” (Earl L. v. Superior Court
(2011) 199 Cal. App. 4th 1490, 1504.) Here, father did not make “significant and
consistent” progress on his case plan.
DISPOSITION
The petition challenging the juvenile court’s order setting the section
366.26 hearing is denied, as is the request to stay the hearing.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
11