M.L. v. Super. Ct. CA6 ( 2013 )

Filed 6/12/13 M.L. v. Super. Ct. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
M.L., H039486
(Santa Clara County
Petitioner, Super. Ct. No. JD18242)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY &
CHILDREN’S SERVICES,
Real Party in Interest.
M.L. (mother) seeks writ relief (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules
of Court, rule 8.452)1 from the juvenile court’s order, made at the 12-month review
hearing (§ 366.21, subd. (f)), terminating family reunification services and setting a
hearing pursuant to section 366.26 to consider selection and implementation of a
permanent plan for her son J.L. (son) (born 1999). She challenges the juvenile court’s
conclusion that she was provided reasonable services and order terminating visitation.
We reject the challenges and deny the petition.
1
Further unspecified statutory references are to the Welfare and Institutions Code.
LEGAL BACKGROUND AND SCOPE OF REVIEW
Once a child has been detained under juvenile court custody, family reunification
efforts are required. (§§ 319, 361.5, subd. (a).) Reunification services are time limited.
The cutoff point for fostering family reunification is the 12-month status-review hearing.
(§ 361.5, subd. (a)(1)(A).) Services may be extended up to 18 months if it can be shown
that a substantial probability exists that the child may safely be returned home within an
extended six-month period, or if reasonable services had not been provided to the parent.
(Id. subd. (a)(3).) At the status-review hearing, the juvenile “court must return children
to their parents and thereby achieve the goal of family preservation or terminate services
and proceed to devising a permanent plan for the children.” (In re Elizabeth R. (1995) 35
Cal.App.4th 1774, 1788.)
“[T]he court shall order the return of the child to the physical custody of his or her
parent or legal guardian unless the court finds, by a preponderance of the evidence, that
the return of the child to his or her parent or legal guardian 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 or legal guardian to participate regularly and make substantive progress in
court-ordered treatment programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review and consider the social
worker’s report and recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to which he or she
availed himself or herself of services provided . . . and shall make appropriate findings
pursuant to subdivision (a) of Section 366.” (§ 366.22, subd. (a).)
The reasonableness of reunification services is judged according to the
circumstances of the particular case and assessed by its two components: content and
implementation. (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1362.) “[T]he record
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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.” (In re Riva M.
(1991) 235 Cal.App.3d 403, 414.) “Among its components, the reunification plan must
include visitation. [Citation.] Visitation must be as frequent as possible, consistent with
the well-being of the minor.” (In re Luke L. (1996) 44 Cal.App.4th 670, 679.)
We review a finding of reasonable reunification services for substantial evidence.
(In re Monica C. (1995) 31 Cal.App.4th 296, 306.) “Substantial evidence” means such
evidence as a reasonable mind might accept as adequate to support a conclusion. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820.) An appellate court must construe all evidence
in the light most favorable to the trier of fact. (In re Michael G. (1993) 19 Cal.App.4th
1674, 1676.) When a finding of fact is attacked on the grounds that it is not supported by
substantial evidence, the power of an appellate court begins and ends with a
determination whether there is any substantial evidence, contradicted or uncontradicted,
which supports the findings. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.) When
two or more inferences can reasonably be deduced from the facts, the reviewing court is
without power to substitute its deductions for those of the trial court. (Ibid.) “If there is
substantial evidence supporting the judgment, our duty ends and the judgment must not
be disturbed.” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The appellate court is
barred from reweighing the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) It
may not substitute its discretion for that of the trial court. In reviewing a finding of
reasonable reunification services, “[t]he 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., supra, at p. 547.) A reviewing
court must recognize that in most cases more services could have been provided, and that
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the services that were provided were not perfect. (Elijah R. v. Superior Court (1998) 66
Cal.App.4th 965, 969.)
FACTUAL BACKGROUND
Real party in interest Santa Clara County Department of Family and Children’s
Services (Department) filed the within amended dependency petition on February 8,
2012, pursuant to section 300, subdivision (b) (failure to protect) and subdivision (c)
(serious emotional harm). Son had been residing with a family friend and displayed
aggression towards the friend. Mother suffered from mental health problems, had
physically abused son, and acknowledged that son lived with the family friend because
her home was not suitable for him. Son told the social worker that he did not want to live
or visit with mother because mother scared him. In March, the juvenile court found
jurisdiction and ordered reunification services to consist of a parent orientation class,
parenting class for parents of children with challenging behavior, and a psychological
evaluation after which mother followed any recommendations. It also ordered one-hour
once-a-week, supervised, therapeutic visitation. In January 2013, after a contested
hearing, it granted the Department’s petition to modify, suspended visitation, and ordered
the Department to consult with son’s therapist “about ways that visitation could be
accomplished.”
For the 12-month review hearing on February 11, 2013, the social worker reported
the following in recommending that reunification services and visitation be terminated:
in April 2012, the initial social worker gave mother a parent orientation referral, but
mother later stated that she was not contacted for details on when and where to start the
class; in August 2012, the social worker gave mother another referral but mother did not
attend the class; in September 2012, the social worker gave mother another referral but
mother did not attend the class; in January 2013, mother asked the social worker for a
new referral for a class to begin in February; mother attended eight of 10 parenting
classes and graduated in June 2012, though she did not complete the homework for many
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topics; until August 2012, mother participated in telephonic wraparound services (reunite
with children having serious disturbances), but she refused to participate in person when
son’s caregiver was present, never arranged to participate in person when son’s caregiver
was absent, and did not wish to discuss any issues with the service providers “except how
her son was stolen from her, and how she desired visits with him”; in August 2012, the
social worker invited mother twice to participate in wraparound services but mother
stated that she was unavailable; in September 2012, mother told the social worker that
she “did not wish to discuss anything else but visits with [son],” son was “only a child
and should be told what to do,” and she did not wish to participate in wraparound
services “until the issue of visitation with [son] was []resolved in Court” and “if her visits
were cancelled by the Court, she did not wish to meet with anyone”; mother refused the
services of a Family Partner from the wraparound program who was prepared to support
mother “with removing barriers to reunification”; the Family Partner told the social
worker that mother was “very focused only on her own personal needs” and “was unable
to focus on the needs of [son] and on efforts established to help [son] reunify with
[mother]”; in January 2013, mother told the wraparound services facilitator that “she
wanted to discuss only the issue of how her son was stolen from her”; on another
occasion in January, mother told the facilitator that she did not want to meet until after
the February 11 court date “because she wanted to see how things go in court first.”
The social worker finally added in her report that she had sent monthly certified
mail to mother encouraging mother to meet and discuss reunification services but mother
had not called to schedule an appointment and (1) during one telephone call from the
social worker, mother stated that “all she needs is visits with her son, ‘that’s it,’ ” and (2)
during a January court conversation for the purpose of discussing reunification services
and the Department’s 12-month-hearing recommendations, mother “continued to work on
a crossword puzzle as [the] social worker attempted to have a talk with her [and]
responded that she did not wish to talk . . . until a visit with her and [son] is arranged.”
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The report also noted the following: the court-ordered psychological evaluation
reported of mother that “if she were able to attend classes and therapy she may make
improvements in her parenting skills but it is not clear she will be able to follow through
on these recommendations and engage in the process of change”; in January 2013, son’s
therapist told the social worker that he would not wish to supervise therapeutic visits
because “he did not believe the visits would be in [son’s] best interest”; son stated to the
social worker “that he is focused on moving to Indiana to reside with his maternal aunt
and her family [and] does not want to be forced to see his mother and he does not want to
be forced to return home.”
Among other points, the social worker finally reported the following. “Perhaps
because she does not believe that [son] suffered mental/emotional and physical harm
while in her care, [mother] has resisted participating in Court ordered services necessary
towards reunification with [son]. It seems that she has wanted support, but only on her
own terms. She failed to participate in a Parent Orientation class which would have
helped her better understand the Juvenile Dependency Court process and [the
Department’s] role and support in the reunification process. Even if she participated in
Parenting Class, she was unable to complete all homework as requested, as per the
facilitators’ assessment. She wants to participate in wraparound only on a one-on-one
basis with the facilitator, and in therapy, only over the phone, on weekends and weekday
evenings. [¶] Additionally, [mother] has been moving into a new residence since August
2012, and has largely given the moving as the reason for her unavailability to participate
in services. The level of energy she put into moving and not into participating in
[wraparound] and other services designed to help her reunify with [son] shows a deeper
underlying mental health concern.”
After a contested 12-month review hearing at which the social worker and mother
testified, the juvenile court explained the following.
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“Regarding reasonable services, the next issue is: Does the Court find by clear
and convincing evidence that reasonable services were offered? As you all know, that
was a big issue during the contested hearing. The case law regarding reasonable services
indicates that services offered certainly don’t have to be perfect services. They don’t
have to be the best services. They have to be reasonable under the circumstances. [¶] The
Court is going to find that the Department did provide reasonable services, and I do make
that finding by clear and convincing evidence. I did review the notes from the contested
hearing, as well as the social worker report, and the addendum reports. The reports are
replete with examples of situations where the Department attempted to provide services,
but [mother] was simply unwilling to participate. [¶] Now, I will indicate, for example,
that the parent orientation class was offered to [mother] back when we started. I believe
the first--the evidence in the report is that the first referral was made in April of 2012, and
yet [mother] only recently completed the class in 2013. [¶] Another part of the case plan
was to participate in [wraparound] meetings. Those are child and family team meetings.
The evidence before the Court is that up until August of 2012, [mother] participated by
phone, was not able or willing to be personally present, and then had excuses and reasons
for not continuing participation. Initially, it was the housing search. And there were
other reasons provided that she was unwilling to participate unless visitation was
provided to her. [¶] As part of wrap-around services, [mother] was offered the assistance
of a family partner, who is a team member of the WRAP team. At one point, [mother]
did refuse those services. At one point, [mother] indicated that she would not participate
in the [wraparound] meetings until the visitation issue was resolved. [¶] There was the
issue of the social worker coming to [mother’s] home. From the beginning of the case,
[mother] has been unwilling to allow a social worker into her home. As a part of the 12-
month review, this particular social worker tried to schedule a home visit, and [mother]
was unwilling to allow this social worker into her home. There are examples in the
report of [mother] being unwilling to even talk to the social worker here at court while
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waiting to come into the hearings. [¶] Another part of the case plan was therapy. Having
reviewed my notes, I see that as early as May of 2012, [mother’s] counsel informed the
Court that [mother] was working on setting up therapy with EMQ, Eastfield Ming
Quong. By September of 2012, the Court was made aware that [mother] was not in
counseling. By the time we had the trial in early March, [mother] had participated in
only four in-person sessions. [¶] Now, [mother] did participate in the psychological
evaluation but indicated, even when it was ordered, that she had no intention and didn’t
want to follow the recommendations, which the Court also ordered. [¶] The Department
provided services. The Department offered services, but it appears to the Court that
[mother] was unwilling to participate in those.”
Regarding visitation, the juvenile court added the following.
“I do want to take a moment and address the visitation issue, because, as we all
know, it has been a running theme almost from day one of this matter. It has been a very
challenging issue. When [son] was first taken into protective custody, he was 12 years
old but just shy of his 13th birthday, about three months shy of turning 13. From the
beginning, [son] has fairly adamantly refused to visit. Early on, [son’s] attorney wanted
termination of visitation based on detriment, and the Court refused, because I needed
evidence of detriment. Being too early in the case, there was no evidence. [Son] refusing
to visit meant also that there was no evidence of detriment. [¶] It’s ironic for the Court
that to terminate visitation based on detriment, I have to force the visits and force the
child to be in a situation that is uncomfortable and that has negative outcomes, which is
certainly contrary to the Court’s role of trying to protect children. Be that as it may, there
has to be evidence for detriment. As the Court has indicated time and time again in this
matter, visitation is integral to reunification, which is why the Court took a very hard line
approach to not terminating visitation but, instead, trying to push the matter, to press the
matter. The Court, as you all know, tried various methods of getting [son] to visit. [¶] At
one point, he was here in open court, and the Court spoke with him and asked him to
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please try to visit and told him of some of the consequences, including the fact that it
might be a reasonable services issue. I hope I explained that to him in a way that was
more understandable than that. I asked him personally to visit. He agreed to try. [¶] . . .
[¶] The Court also tried conditioning his visitation with his aunt, his travel to see his aunt
in Indiana, on his visiting. And I will indicate I did so not feeling particularly
comfortable about that, because that is a very heavy-handed way to try to get a kid to
visit. We tried that, and the first visit, I think, was fairly disastrous with [son] wearing
his headphones the entire time and refusing to engage. I tried it a second time for another
visit, ordering two visits before he traveled, and then in the interim received a 388 with
evidence of some potential detriment, so I rescinded that condition. [¶] The Court has
been keenly aware throughout this matter that as we try to reunify and as we push the
issue of visitation that our doing so can be harmful to a child. I have to balance the
parent’s right to visit, the parent’s right to attempt reunification, with the child’s mental
health and his stability. And I will remind everybody that [son] came to this court quite
fragile and in a rather compromised emotional state. It is clearly illegal for this Court to
indicate that a child shall not be forced to visit, and this Court never made such an order.
But there is also awareness that when you have a fragile 13-year-old, that we cannot and
we will not physically drag him to a visitation kicking and screaming. We have to use
other methods. And the Court believes that both the Court and the Department attempted
to use those other methods. [¶] This is certainly not the first case I’ve had where the child
has refused to visit and the Court has ordered the Department to continue checking in
with the child about visitation, even when the child responds to the social worker,
‘You’re stressing me out, stop asking me,’ which is what happened here. The very act,
actually, of the social worker asking [son] about visits and trying to talk to him about
visits was stressful for him and caused him anxiety. That’s why I say this issue is a very
challenging issue for the Court. [¶] I believe that the Court and the Department did what
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it could to try to get [son] to visit. He is simply unwilling, and he has been for some
time.”
The juvenile court was also constrained “to comment on the credibility of the two
witnesses” and offered that the social worker was “a credible witness” but mother’s
“perspective of reality and the truth is a little different than the Court perceives it.”
DISCUSSION
Mother contends that the juvenile court “ERRED IN ITS FINDING THAT THE
DEPARTMENT HAD PROVIDED REASONABLE SERVICES.”
Mother claims that the social worker “failed to maintain reasonable contact with
[her]” (“had only five contacts”). She complains that the social worker failed to address
her specific needs (“failed to ensure the EMQ coordinator and therapist were aware of the
[psychologist’s] recommendation that Mother received insight oriented therapy rather
than behavioral”). She adds that the social worker did not use the judge’s reasoning “to
attempt additional visits” and “abdicated its duty to make the visits happen by allowing
[son] and his therapist to dictate the entire process.”
Mother’s analysis is erroneous. It is no more than a reargument that, at best,
demonstrates that the juvenile court could have decided in her favor. It is not the goals of
the reunification services, but only the execution of the details that draws mother’s ire. In
short, mother identifies faults which might establish that the services offered were not
ideal, but that is not the test. Most critical for appellate review purposes, however,
mother’s analysis overlooks the juvenile court’s conclusion--from the extensive facts in
support of the judgment recounted above--that the Department attempted to provide
services to mother but mother “was simply unwilling to participate.”
“Reunification services are voluntary, and cannot be forced on an unwilling or
indifferent parent.” (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) “The
requirement that reunification services be made available to help a parent overcome those
problems which led to the dependency . . . is not a requirement that a social worker take
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the parent by the hand and escort him or her to and through classes or counseling
sessions. A parent whose children have been adjudged dependents of the juvenile court
is on notice of the conduct requiring such state intervention. If such a parent . . . waits
until the impetus of an impending court hearing to attempt to [correct his or her own
behavior], the legislative purpose of providing safe and stable environments for children
is not served by forcing the juvenile court to go ‘on hold’ while the parent makes another
stab at compliance.” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) If
mother felt the social worker was not helping her complete her case plan requirements,
she “had the assistance of counsel to seek guidance from the juvenile court in formulating
a better plan.” (In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
In summary, the juvenile court could have reasonably concluded that it was
mother’s failure to participate in the provided services that justified a finding that it was
detrimental to return son to her care rather than a deficiency in the type of services. We
therefore conclude that there is substantial evidence to support the juvenile court’s
finding that the reunification services offered to mother by the Department were
reasonable.
Mother also contends that the juvenile court “ERRED IN FINDING
DETRIMENT AND TERMINATING VISITS BEFORE THE . . . 366.26 HEARING.”
According to mother, there was not “sufficient evidence of emotional damage caused by
the visits that occurred.” She concedes that son “was calm, albeit uncomfortable, during
the visits.” But she concludes that this emotional state did not rise to a level justifying
the termination of visitation.
There is no merit to the point. Son was 13 years old. From the beginning he did
not want and resisted the visitation arrangements whether made by the Department or
suggested by the juvenile court. The juvenile court concluded from the evidence that the
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visits had been “stressful for him and caused him anxiety.”2 Mother herself concedes that
son “was somewhat anxious before the visits, or when contemplating having to attend
visits.” From this, the juvenile court could have rationally concluded that “continuing
[the visits] would be harmful to [son’s] emotional well-being.” (In re Brittany C. (2011)
191 Cal.App.4th 1343, 1357.) Mother’s conclusion from the evidence is simply one at
odds with the juvenile court’s contrary conclusion from the evidence.
2
Mother’s solution to son’s resistance was to punish son for not visiting,
“punishing him by not allowing him to visit his aunt” or “tak[ing] away his electronics as
a consequence.”
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DISPOSITION
The petition for writ of mandate is denied on the merits. (Cal. Rules of Court, rule
8.452(h)(1).) This opinion is final as to this court immediately upon filing. (Id. rule
8.490(b)(1).)
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
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