In re M.N. CA5 ( 2022 )

Filed 9/26/22 In re M.N. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re M.N. et al., Persons Coming Under the
Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F084160
SERVICES AGENCY,
(Super. Ct. No. JVDP-21-000159,
Plaintiff and Respondent, JVDP-21-000160, JVDP-21-000161)
v.
OPINION
M.A.,
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Stanislaus County. Annette
Rees, Judge.
Teri Yin, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Peña, J.
Ma.N. (mother) and M.A. (father) are the parents of M.N. (born April 2010), D.N.
(born June 2015), and I.N. (born October 2016) (collectively, the children). Father
appeals the juvenile court’s reasonable services finding made at the Welfare and
Institutions Code section 366.21, subdivision (e)1 six-month review hearing.
He contends the court’s finding that the Stanislaus County Community Services Agency
(agency) offered him reasonable services is not supported by substantial evidence.
Specifically, he argues the agency’s failure to address his language barrier prevented him
from participating in critical aspects of his case plan until near the end of the six-month
review period. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Referral and Detention
On July 28, 2021, the agency received a referral alleging M.N. called law
enforcement to report that mother and father were fighting. Law enforcement called
father and he stated everything was okay, but that mother was intoxicated and breaking
windows. Law enforcement responded to the family’s home, but no one was there. The
front window of the house was shattered and there was blood on the side of the house
leading to the front door. Law enforcement forced entry into the house where it found a
trail of blood inside. A neighbor reported father ran out with the children after the
altercation. The parents denied the altercation occurred in front of the children. M.N.,
mother, and father gave conflicting narratives of the incident. The agency’s investigation
revealed mother and father engaged in severe ongoing domestic violence in front of the
children, mother appeared to suffer from mental health problems, father had anger
management issues, and both parents were suffering from substance abuse. The agency
subsequently filed a section 300 petition on behalf of the children, and they were detained
and placed in foster care.
1 All further statutory references are to the Welfare and Institutions Code.
2.
On August 5, 2021, father appeared at the detention hearing with a Spanish
interpreter. The juvenile court found the children were persons described by section 300
and ordered them detained. The parents were ordered supervised visitation and a weekly
phone call. Father was provided with service referrals and contact information for the
placement specialist and visitation center in Spanish. Father’s service referrals included a
parenting program, individual counseling, a domestic violence offender program, and an
anger management program at Sierra Vista Child & Family Services (Sierra Vista).
Additionally, he was referred to a substance abuse assessment at Behavioral Health and
Recovery Services. The court set a jurisdiction and disposition hearing for the following
month.
B. Jurisdiction and Disposition
The jurisdiction and disposition report outlined father’s efforts to participate in
services. On August 6, 2021, the agency sent father’s referral to Sierra Vista, and resent
it on September 1, 2021, but he had not completed an intake appointment. Regarding
progress in substance abuse services, father completed a substance abuse assessment on
August 31, 2021. He tested positive for alcohol and was referred to a Spanish language
outpatient substance treatment program. The agency noted it made multiple contacts
with father in August regarding his case plan.
The agency reported that father continued to minimize his domestic violence
problems, but he acknowledged he needed domestic violence services. His domestic
violence problems were influenced by his alcohol abuse. He had a substantial substance
abuse related criminal history that included several offenses for driving under the
influence. The agency recommended the juvenile court find that reasonable efforts had
been made to prevent the children’s need for removal and that father had made good
progress toward alleviating or mitigating the causes necessitating placement. It further
recommended the court order the children removed from the parents’ physical custody
and grant father reunification services.
3.
The agency prepared a case plan indicating the agency was responsible for making
appropriate community referrals, conducting a child and family team meeting at least
once every six months, and making one monthly compliance contact with father to ensure
case plan engagement, progress, and compliance. Father’s responsibilities included
attending, actively participating, and successfully completing anger management classes,
individual counseling, a domestic violence perpetrator program, and a parenting program
with a minimum of three parent/child labs at Sierra Vista or another program approved by
the social worker. The parent/child labs were to be initiated after father completed
parenting group sessions and upon the recommendation of the parenting education
clinician. Additionally, he was required to participate in a substance abuse assessment
and random drug testing.
On September 22, 2021, father appeared at the jurisdiction and disposition
hearing. Father’s counsel made an offer of proof that if father were called to testify, he
would state that “he [was] actively engaged in services and look[ed] forward to
reunifying with [the] children.” Father’s counsel submitted on the agency’s report,
noting that father agreed with the recommendations. Additionally, father’s counsel
requested the court set a 90-day review hearing due to father’s language barrier. He said,
“I want to make sure my client is actively engaged in Spanish-speaking services. I am
going to request a 90-day progress review to review visitation and progress.” The court
found the petition true and that continued placement was necessary. It found the agency
had complied with the case plan by making reasonable efforts to return the children home
and that father’s progress had been good. It granted father reunification services and set a
90-day progress review hearing.
C. 90-Day Progress Review
On December 14, 2021, the juvenile court held a progress review hearing. In
preparation for the hearing, the agency filed documents detailing father’s progress in
services. A letter from Sierra Vista indicated father was referred to services on August 4,
4.
2021, but did not apply for services until November 9, 2021. Sierra Vista conducted his
intake on November 23, 2021.2 The agency reported father had not been assigned a
clinician for the anger management, individual counseling, domestic violence, and parent
education programs at Sierra Vista. Regarding substance abuse services, father had been
admitted to an outpatient treatment program and was participating in Spanish-speaking
groups. In October and November 2021, father tested positive for alcohol.
The court found father had made “fairly good” progress in services and ordered
the previous orders to remain in full force and effect.
D. Six-Month Review
The six-month status review report indicated mother and father were still living
together and were in a relationship. Both parents wished to reunify with the children and
stated they would continue to engage in services. The agency reported it had monthly
contact with father to ensure case plan compliance. During those contacts, the social
worker and father reviewed the case plan and discussed client objectives and
responsibilities.
Regarding father’s efforts, the report indicated that on February 17, 2022, he
completed the second half of intake at Sierra Vista. A week prior to that, Sierra Vista had
contacted the agency and reported that father had not been assigned to a clinician earlier
because it did not have a Spanish-speaking clinician available. On February 25, 2022,
father began participating in parenting groups. As for substance abuse services, father
was actively participating in group sessions and engaged when called upon, but tested
positive for alcohol in February 2022. Additionally, father was participating in
supervised visitation with the children.
2 The six-month status review report clarified that November 23, 2021, was the date
father completed the first half of intake. He completed the second half of intake on
February 17, 2022.
5.
The agency summarized that father had not completed his case plan goals;
however, it acknowledged that he had been unable to begin services sooner due to the
unavailability of a Spanish-speaking clinician at Sierra Vista. The agency concluded that
the parents had received six months of reunification services and had not yet addressed or
mitigated the issues that led to the children’s removal. They had not demonstrated their
ability to stay sober, or that they could safely and appropriately care for the children. The
agency recommended both parents continue receiving reunification services. It further
recommended the juvenile court find it had made reasonable efforts to return the children
to their parents, and that father’s progress had been poor.
On March 15, 2022, father appeared at the six-month review hearing with a
Spanish interpreter. Father’s counsel asked the juvenile court to make a lack of
reasonable services finding on behalf of father. He argued the lack of a Spanish-speaking
clinician had delayed father’s progress in services. County counsel argued that services
were reasonable under the circumstances, noting that father was now engaged in services.
The court denied father’s counsel’s request, stating:
“I do find in reviewing the report and the attachments that
reasonable services were offered, and certainly the Agency sought to
address any barriers, such as language barriers, as soon as possible, giving
[father] every opportunity to engage in those services, which he is now
certainly doing.”
The court thus found that the agency complied with the case plan by making
reasonable efforts to return the children. The court further found father had made poor
progress toward alleviating the causes necessitating placement, ordered father to continue
participating in reunification services, and set a 12-month review hearing.
On March 30, 2022, father filed a notice of appeal.
6.
DISCUSSION
A. Appealability
As a preliminary matter, father argues that his challenge to the juvenile court’s
reasonable services finding is cognizable on appeal. Alternatively, father requests that
this court exercise its discretion to treat his appeal as a petition for writ of mandate.
Respondent does not object to this court reviewing this matter as either an appeal or a
petition for writ of mandate. For reasons stated below, we find father’s challenge to the
juvenile court’s reasonable services finding cognizable on appeal.
“A judgment in a proceeding under Section 300 may be appealed in the same
manner as any final judgment, and any subsequent order may be appealed as an order
after judgment.” (§ 395, subd. (a)(1); Dwayne P. v. Superior Court (2002) 103
Cal.App.4th 247, 259 [“the court’s dispositional and following orders are directly
appealable, with the exception of an order scheduling a selection and implementation
hearing under section 366.26”].) “Generally, a parent who is aggrieved by an order after
judgment in a juvenile dependency proceeding may take an appeal from that order.
(§ 395.) ‘To be aggrieved, a party must have a legally cognizable immediate and
substantial interest which is injuriously affected by the court’s decision.’ ” (In re Holly
B. (2009) 172 Cal.App.4th 1261, 1265.) “For purposes of appellate standing in
dependency cases, a parent is aggrieved by a juvenile court order that injuriously affects
the parent-child relationship.” (In re Paul W. (2007) 151 Cal.App.4th 37, 62.)
In In re T.G. (2010) 188 Cal.App.4th 687 (T.G.), the court reasoned that “a parent
or child can [be] aggrieved by a reasonable services finding at the time of the six-month
review hearing if it is not supported by substantial evidence. Such a finding can put the
interests of parents and children in reunification at a significant procedural disadvantage.”
(Id. at p. 695.) The court identified three procedural disadvantages.
“First, reunification services are generally limited to 12 months for a child over the
age of three years.” (T.G., supra, 188 Cal.App.4th at p. 695.) “Second, a heightened
7.
showing is required at the time of the 12-month review in order to continue services to
the statutory maximum of 18 months. … ‘The court shall extend the time period only if
it finds that there is a substantial probability that the child will be returned to the physical
custody of his or her parent … within the extended time period or that reasonable
services have not been provided to the parent.’ ” (Ibid.) To find there is a “ ‘substantial
probability’ ” of return to the parents, “the court must find there was consistent and
regular visitation by the parent and ‘significant progress in resolving problems that led to
the child’s removal.’ (§ 366.21, subd. (g)(1)(B).) In addition, the court must find the
parent ‘has demonstrated the capacity and ability both to complete the objectives of his or
her treatment plan and to provide for the child’s safety, protection, physical and
emotional well-being, and special needs.’ ” (Ibid.) “[I]t would be significantly more
difficult for a parent to either reunify with a child or to satisfy the heightened showing
required for a continuation of reunification services if the parent was not provided with
reasonable services during the first six months of the reunification period.” (Ibid.) Third,
“a parent whose services are terminated at the 12-month review period based in part on
an erroneous finding of reasonable services during the first six months of reunification,
would be unable to challenge that finding by way of an appeal from a subsequent adverse
order at the time of the 12-month review hearing.” (Id. at pp. 695–696.)
We find the reasoning in T.G. persuasive and will reach the merits of father’s
appeal.
B. Reasonableness of Reunification Services
Father contends he was not provided with reasonable services during the
six-month review period because the agency failed to address the language barrier at
Sierra Vista. He argues that because Sierra Vista did not have a Spanish-speaking
clinician, he was unable to participate in critical aspects of his case plan until late into the
six-month review period.
8.
If a child is not returned to his or her parent at the six-month review hearing, the
juvenile court “shall determine whether reasonable services that were designed to aid the
parent … in overcoming the problems that led to the initial removal and continued
custody of the child have been provided or offered to the parent.” (§ 366.21, subd. (e)(8);
§ 366, subd. (a)(1)(B) [at each status review hearing the court shall determine “[t]he
extent of the agency’s compliance with the case plan in making reasonable efforts … to
return the child to a safe home”].) “ ‘A finding that reasonable reunification services
have been provided must be made upon clear and convincing evidence. [Citation.]’ ”
(Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 674.)
“The ‘ “adequacy of reunification plans and the reasonableness of the [Agency’s]
efforts are judged according to the circumstances of each case.” [Citation.] To support a
finding reasonable services were offered or provided, “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.” ’ ” (T.J. v. Superior Court (2018)
21 Cal.App.5th 1229, 1240 (T.J.).) “The standard is not whether the services provided
were the best that might be provided in an ideal world, but whether the services were
reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
The remedy for failing to offer or provide reasonable services is to extend the
reunification period and continue services. (In re Alvin R. (2003) 108 Cal.App.4th 962,
975 (Alvin R.).) We review the juvenile court’s reasonable services finding for
substantial evidence. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397,
419–420.)
According to the record, the agency wasted no time in arranging services for
father. On August 5, 2021, the agency provided father with service referrals at the
detention hearing and gave him the information in Spanish. The agency sent the referrals
9.
to Sierra Vista on August 6, 2021,3 and again on September 1, 2021. Father did not
apply for services at Sierra Vista until November 9, 2021. After receiving his
application, Sierra Vista promptly conducted the first half of intake on November 23,
2021. Thus, the delay from August 6 to November 9, 2021, was attributable to father’s
own actions.4
The following month, on December 14, 2021, the juvenile court conducted a
90-day review hearing as requested by father’s counsel to ensure father was receiving
Spanish-speaking services. At that time, it had only been approximately one month since
father had submitted the application to Sierra Vista and intake was initiated. The agency
filed documents with the court indicating it knew father had not been assigned a clinician
at Sierra Vista for anger management, individual counseling, domestic violence, or
parenting education. Thus, at that point, the agency was only aware of the one-month
delay. There is no indication the agency knew the delay would go on to last until
February 2022 as a result of an unavailable Spanish-speaking clinician.
The record shows the agency next became aware of the continued delay on
February 10, 2022, when Sierra Vista contacted the agency and reported that father had
not been assigned to a clinician earlier because it did not have a Spanish-speaking
clinician available. However, a week later, on February 17, 2022, Sierra Vista completed
father’s second half of intake and he began parenting groups that same month. In its
six-month review report, the agency acknowledged that the language barrier prevented
father from beginning services at Sierra Vista sooner. Notably, father did not fault the
agency for the delay. At the six-month review hearing, father’s counsel stated, “[I]t is
3 The agency reported it faxed father’s referral to Sierra Vista on August 6, 2021,
but a letter from Sierra Vista indicates the referral date was August 4, 2021.
4 We acknowledge that although father was provided with referral information at
the detention hearing, the six-month review period runs from the date of the disposition
hearing. (§ 361.5, subd. (a)(1)(A).)
10.
certainly not [the social worker’s] fault. I don’t blame him one bit, and I know [father] is
doing what he needs to do to reunify.”
While delays in the provision of services have certainly been found to support a
finding of no reasonable services, the cases cited by father—T.J., supra, 21 Cal.App.5th
1229 and Alvin R., supra, 108 Cal.App.4th 962—are distinguishable.
T.J. involved an intellectually disabled mother who experienced significant delays
in accessing services. (T.J., supra, 21 Cal.App.5th at pp. 1232–1233.) The appellate
court summarized that, “the Agency put Mother in a holding pattern that resulted in a
wait of nearly 11 months after her children were removed from her physical custody
before she was provided with an individual therapist; it failed completely to provide her
with help for anger management; it delayed almost eight months from physical removal
in providing services from [the provider] and never delivered ongoing services; it failed
to give her help with practical independent living skills; and it failed to provide her with
housing assistance.” (Id. at p. 1248.) The appellate court concluded the agency did not
provide reasonable services. (Ibid.) Here, in contrast, the agency quickly secured
services to address all of father’s needs. The agency did not merely place his name on a
waiting list and then allow nearly eight months to a year to pass before he had access to
those services. “Clearly, the delay in [father’s services at Sierra Vista] rendered the
services provided imperfect, but rarely will services be perfect.” (Melinda K. v. Superior
Court (2004) 116 Cal.App.4th 1147, 1159.)
In Alvin R. the father challenged the juvenile court’s finding that reasonable
reunification services had been provided in advance of the six-month review hearing.
(Alvin R., supra, 108 Cal.App.4th at p. 965.) The juvenile court had assumed jurisdiction
over the child upon a sustained finding that the father physically disciplined him. (Id. at
p. 966.) The father was ordered to complete a parenting class and individual counseling,
and the child was ordered to complete eight individual counseling sessions before they
could commence conjoint counseling. (Id. at pp. 966–967.) The juvenile court
11.
conducted an interim review hearing prior to the six-month review hearing, where it
learned the father had completed the parenting class and was engaged in individual
counseling, but that the child had only attended one individual counseling session for
reasons outside the father’s control and refused to visit father. (Id. at pp. 967–968.) The
juvenile court acknowledged that conjoint counseling was critical in preparing the child
to agree to visitation. (Ibid.) As a result, the juvenile court eliminated the requirement
that the child participate in eight individual counseling sessions before conjoint
counseling could occur and suggested to the department that it include an explanation of
its reasonable efforts with regard to the child’s individual counseling sessions in its next
report. (Id. at p. 968.) The department was well aware of the issues preventing the child
from participating in individual counseling and did very little to address the issues. (Id.
at p. 973.) Nonetheless, at the six-month review hearing, the juvenile court found the
department had provided reasonable reunification efforts. (Id. at p. 970.)
The appellate court ruled that the department’s failure to ensure the child attended
individual counseling, and the apparent effect the lack of counseling had on the child’s
willingness to visit with father, conclusively undermined the juvenile court’s reasonable
services finding. (Alvin R., supra, 108 Cal.App.4th at pp. 971–972.) The appellate court
noted, “Father had done all that was required of him under the plan. Thus, one service,
getting [the child] into eight sessions of individual therapy, stood in the way of all
measures remaining under the reunification plan, and the [d]epartment submitted no
evidence of having made a good faith effort to bring those sessions about.” (Id. at
p. 973.) Moreover, the department ignored the juvenile court’s order eliminating the
eight-session requirement in an effort to speed things along. (Ibid.) “[T]he
[d]epartment’s first interim review report, filed nearly five months after reunification
efforts should have begun, … did not even address its efforts to get [the child] into
counseling. (Id. at p. 972.) The appellate court, therefore, reversed the reasonable
services finding. (Id. at p. 975.) Here, the agency addressed its reasonable efforts in its
12.
various reports leading up to the six-month review hearing, which indicated that father’s
lack of progress in services at Sierra Vista were partially due to his own actions because
he submitted his application three months after the initial referral was made. In Alvin R.,
the delay was not attributable to the father in any sense and the department had ignored
the juvenile court’s attempts to speed things along. Additionally, in the present case,
father had not done all that was required of him under his case plan. Father had tested
positive for alcohol several times. His ability to stay sober was a critical component of
his plan because the domestic violence between him and mother was exacerbated by his
substance abuse. Thus, the services he was waiting to complete at Sierra Vista did not
“[stand] in the way of all measures remaining under the reunification plan” as in Alvin R.
(Id. at p. 973.) For these reasons we find Alvin R. inapposite.
As noted above, the remedy for providing services that are not reasonable is to
continue them. Here, the juvenile court ordered the department to continue providing
services to father to the 12-month review hearing. Therefore, even assuming the court
erred in finding father was provided reasonable services, father was already granted an
additional six months of services.
We conclude substantial evidence supports the juvenile court’s reasonable services
finding at the six-month review hearing.
DISPOSITION
The juvenile court’s order is affirmed.
13.