S.A. v. Superior Court CA2/3 ( 2021 )

Filed 10/14/21 S.A. v. Superior Court CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
S.A. et al., B314095
Petitioners, Los Angeles County
Super. Ct. No.
v. 19CCJP07390A
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary
writ to review order of the Superior Court of Los Angeles County,
Marguerite D. Downing, Judge. Petition granted.
Los Angeles Dependency Lawyers, Inc. (Law Office
of Emily Berger), Dominika Campbell and Xinyi Zhang for
Petitioner.
Children’s Law Center and Michael Ono for Minor.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel, for Real Party in Interest.
_________________________
Father petitions this court for extraordinary relief (Welf.
& Inst. Code, § 366.26, subd. (l);1 Cal. Rules of Court, rule 8.452)
from the juvenile court’s order terminating family reunification
services and setting a permanency planning hearing under
section 366.26 for his son J.A. (now age 16). Father contends
substantial evidence did not support the juvenile court’s finding
that the Los Angeles County Department of Children and
Family Services (Department) provided him with reasonable
reunification services. J.A. joins in father’s petition. We grant
the petition.
BACKGROUND
Father and the Department have set out the complete
history of the juvenile court proceedings in their briefs.
A detailed summary of the factual background and proceedings
through the disposition hearing also appears in our unpublished
opinion affirming the juvenile court’s dispositional order.2
We repeat that history only when necessary to address
the specific claims for extraordinary relief.
1 Statutory references are to the Welfare and Institutions
Code.
2 See In re J.A. (Nov. 10, 2020, B304452) [nonpub. opn.].
2
In September 2019, father allowed mother access to his
and J.A.’s home—in violation of an earlier juvenile court custody
order requiring mother’s visits with J.A. be monitored.3 Mother
threatened to break things with a sledgehammer in front of J.A.
and to burn the house down. After the incident, father obtained
a temporary restraining order against mother to protect J.A.,
but he failed to serve mother with the order.4 On November 15,
2019, the Department filed a section 300 petition on J.A.’s behalf,
and the juvenile court detained him from parents.
In December 2019, the Department began to suspect
father might have an issue with drugs or alcohol. The juvenile
court continued the originally scheduled December 12, 2019
adjudication hearing to January 7, 2020 to allow the Department
to report on father’s drug test results and “compliance.”
On December 27, 2019, a social worker met with father
and gave him a list of referrals for services, including individual
therapy, parenting classes, drug and alcohol counseling, and
domestic violence counseling. Father signed a receipt confirming
3 In 2012, a juvenile court in Riverside County declared
J.A. a dependent child, finding father had a history of engaging
in domestic violence, mother had a history of substance abuse,
and both parents failed to protect J.A. from the risk of harm
posed by this endangering conduct. The case was transferred
to Los Angeles County, and the juvenile court terminated
jurisdiction with a custody order granting father sole custody.
4 In December 2019, father obtained another temporary
restraining order. He personally served it on mother along with
his request for a permanent restraining order to be heard on
December 30, 2019. That hearing was continued to January 21,
2020 when mother did not appear.
3
he received the list of referrals. In early January 2020, father
told the social worker he was scheduled to begin parenting
classes later that month and he was attempting to enroll in
individual counseling.
On January 7, 2020, the juvenile court partially sustained
the petition and adjudicated J.A. a dependent, finding that,
among other things, father violated the juvenile court custody
order and failed to protect J.A. by allowing mother to have
unsupervised access to the child. The court held a separate
disposition hearing as to father on January 29, 2020, to allow him
to drug test. He tested positive for marijuana on January 16 and
23, 2020. The juvenile court ordered J.A. removed from father,
ordered the Department to provide family reunification services
to father—including referrals for services—and ordered father
to enroll in drug testing (and a substance abuse program if any
tests were missed or dirty), parenting classes, and individual
counseling. Father appealed from the disposition order and
we affirmed.
The six-month review hearing was not held until
December 3, 2020, due both to the COVID-19 pandemic state
of emergency and the Department’s failure to provide proper
notice of the continued hearings to parents. The Department’s
six-month status review report and September 17, 2020 last
minute information for the court (LMI) stated father had not
provided proof of enrollment in any court-ordered programs
and had tested positive for methamphetamine, amphetamine,
and marijuana on March 16 and April 2, 2020. The Department’s
December 2, 2020 LMI noted father tested positive for those
same drugs again on November 18, 2020.
4
Father’s counsel presented a November 20, 2020 letter
verifying father had enrolled in an outpatient drug and alcohol
program on November 18, 2020, and the Department’s delivered
service log of “[a]ll [c]ontacts, [s]ervices & [v]isits”—referred to
as Title XXs—from December 1, 2019 to November 4, 2020. The
Title XXs showed the social worker met with father in-person on
December 27, 2019 (before the adjudication hearing) to give him
a packet of DCFS-approved service providers; possibly met with
and then spoke to father on the phone about J.A.’s placement
in early March 2020; and texted father in May about proof of his
participation in court-ordered services, and again in November,
about certificates of completion for those services. The Title XXs
noted that, on October 22, 2020, father sent the social worker
via text a certificate of completion for a four-hour parenting
course. In that same text, father said he had provided
information about his participation in counseling before
the COVID-19 pandemic, and—despite his positive drug tests—
denied taking “any illegal drugs.” He believed either his
“ex-spouse” had drugged him, or his medication had caused
false positives.
At the hearing, the juvenile court found parents’ progress
in their case plans “toward alleviating or mitigating the causes
necessitating placement” had “not been substantial.” But,
the court also found the Department had not provided, offered,
or made reasonable and/or active efforts to provide or offer
reasonable reunification services. It continued parents’
reunification services “for the reasons [it had] stated on the
record” at the hearing. (The reporter’s transcript of that hearing
is not part of the appellate record.)
5
In LMIs submitted before a March 3, 2021 progress
hearing, the Department again reported father had not
provided it with proof of any court-ordered services and had
not drug-tested.5 A social worker had tried to contact father’s
case manager at his drug treatment program in December,
January, and February, without success.
The 12-month review hearing was scheduled for May 27,
2021. The Department detailed the family’s progress in its
May 11, 2021 status review report. Father had not been drug
testing: he was a no show for a February test and his four tests
in March. The report stated father tested positive for marijuana,
methamphetamine, and amphetamine on five occasions—
presumably referring to his earlier-reported tests in 2020.
The report also stated the social worker provided father with
referrals to services on April 1, 2021, but did not attach a signed
confirmation from father.6 And, the Department reported
it had contacted father in March, April, and May to ask him
for certificates of completion of his court-ordered services, but
father had not provided completion certificates for, or proof of
participation in, those services. The court continued the matter
to July 14, 2021 for a contested hearing on the issue of reasonable
5 Since the December 3, 2020 review hearing, father
had missed four scheduled tests in December 2020 and seven
between January 5 and February 16, 2021. The Department
also attached a list of father’s no-show and positive drug tests
from the previous review period (January 2020 through
November 30, 2020).
6 The Title XXs produced after the Department filed
its report do not include an entry showing the social worker
contacted father on April 1, 2021.
6
services and for the Department to provide Title XXs for counsel’s
review.
In its June 29, 2021 LMI, the Department again stated
father had tested positive for drugs on five undated occasions.
The Department also reported father had provided proof of
participation in individual counseling and the completion of
a four-hour parenting class, but noted the class was not court
approved. The Department went on to state father had neither
consistently drug tested nor enrolled in a full substance abuse
program, as the court required.
The Department’s Title XXs from January 1, 2021 to
June 21, 2021, showed the social worker tried to contact father
by phone and/or text several times—on January 4, February 1,
March 4, April 7, and June 10, 2021—about getting certificates
for his court-ordered services, but father did not respond.
On March 2, 2021, the social worker successfully texted father.
He said he had been “battling COVID” and unable to attend
his sessions, so he had no certificates. Father also contacted
the social worker by text on April 20, 2021, to get her email
address so he could send the information she had requested.
Father again texted the social worker on June 2, 2021, to ask her
for the drug testing site’s phone number. The next day, the social
worker texted the phone number to father and asked him if he
had any certificates of completion. Father did not respond to
the social worker’s text and did not answer the phone when
she called.
The July 14, 2021 review hearing was continued to July 27,
due to counsel’s illness. Father was not present. J.A.’s counsel,
joining father’s counsel, asked the court to extend family
reunification services. J.A.’s counsel argued the Title XXs
7
showed the social worker reached out to father only “a handful
of times to ask him where his certificates” were. Counsel noted
the Title XXs showed no efforts to give father new information
or referrals to help him. Counsel also noted the discrepancy
between the Department’s report—that stated father had not
enrolled in a parenting class or participated in counseling—and
its LMI—that stated father had provided proof of participation
in individual counseling and completion of a four-hour parenting
class. Counsel argued the social worker did “not seem to have
the clearest idea of what is happening in this case, which, given
what appears to be fairly minimal involvement with the parents,
is not especially surprising.”
Counsel further argued the social worker’s texts asking
for certificates and providing father with the drug testing site’s
phone number did not demonstrate the social worker helped
father access his programs. Noting father had consistently
visited J.A., despite battling COVID-19, counsel asserted she
believed J.A. could be returned to father if he “actually receiv[ed]
adequate support from the Department to access the services
he’s been ordered to participate in.” Counsel noted the court’s
earlier admonishment about the Department having not provided
reasonable services “did not really have an [e]ffect. I just don’t
see a significant increase or change in effort to assist this family
with reunification.”
Mother’s counsel also argued the Department did not make
reasonable efforts. Among other things, counsel challenged the
veracity of the social worker’s report. Father’s counsel joined
and adopted J.A.’s and mother’s arguments. He also argued the
social worker’s reporting lacked credibility, noting it reported
father had no visits with J.A. when J.A. had confirmed through
8
his counsel that the visits had taken place. (The court found it
“appear[ed]” father had visited J.A. “consistently and regularly.”)
Father’s counsel asked the court to make a no reasonable services
finding and extend family reunification services.
Counsel for the Department argued parents were not
testifying before the court that they did not receive the social
worker’s messages or did not receive referrals. Counsel argued
the social worker was at least attempting to contact parents,
but they did not “seem to begin to engage, at all, with the
court ordered services.” Counsel asked the court to terminate
reunification services, as the case was past the 18-month
statutory cut-off date.
The court found the Department made reasonable efforts.
The court noted the social worker called parents once a month
with no response. The court remarked that father had tested
dirty, but “never got into a program,” and “[t]hen he did a four[-]
hour [parenting] program, but he was told by the social worker
that it [was] not approved. So he has not done a program. As
to individual counseling, he has not done individual counseling.
So the court finds that the father is not in compliance.”
The court stated, “after so many calls to a parent, they
do not call them back, I don’t really know what is expected
of the social worker.” The court admonished counsel, “If you[ ]
belie[ve] what she is saying in the Title XX’s is untrue, you
needed to bring proof that it’s not, or bring the social worker in.”
The court noted parents had received 20 months of services,
but acknowledged the earlier services had not been reasonable.
The court noted there was not a substantial probability that J.A.
could be returned to parents by the 18-month date, which had
passed. The court concluded parents had “made no progress in
9
resolving the issues that led to the removal of [J.A.] nor [had]
they demonstrated the capacity and the ability to complete
the objectives of treatment and to provide for [J.A.’s] safety,
protection, physical and emotional well being.” The court found
the Department had offered or provided reasonable reunification
services to parents, terminated reunification services, and set
a section 366.26 permanency planning hearing for November 18,
2021.
Father timely filed a notice of intent to file a writ petition,
and then filed this petition for extraordinary writ and a request
for stay.7 On September 2, 2021, we issued an order to show
cause why father’s petition should not be granted, but did not
stay the proceedings. J.A. joined in father’s petition. The parties
waived oral argument.
DISCUSSION
Father contends substantial evidence did not support
the juvenile court’s finding of reasonable services because the
Department did not present evidence it contacted his service
providers to confirm he had completed the parenting program or
had enrolled in individual counseling, or told father the parenting
program he completed was unsatisfactory. J.A. joins in father’s
arguments and also contends the Department did not make
reasonable efforts to help father comply with his case plan when
7 Mother also filed a notice of intent to file a writ petition.
Her appellate counsel subsequently filed a letter brief under
Glen C. v. Superior Court (2000) 78 Cal.App.4th 570. We granted
mother an extension of time to file a writ petition in pro. per.—
she did not.
10
it only gave father referrals and did not help him find programs
that would allow him to participate while he had COVID-19.
1. Applicable law and standard of review
“In a juvenile dependency proceeding, a parent generally
has a statutory right to reunification services when his or her
child is removed from the parent’s custody at a disposition
hearing.” (In re M.S. (2019) 41 Cal.App.5th 568, 590; see § 361.5,
subd. (a).) Reunification services are among the “[s]ignificant
safeguards” that are built into the current dependency scheme.
(In re Marilyn H. (1993) 5 Cal.4th 295, 307–308; accord, In re
M.F. (2019) 32 Cal.App.5th 1, 13 (M.F.) [“Family reunification
services play a critical role in dependency proceedings.”].) As
a result, the Department must make a “ ‘ “ ‘good faith effort’ ” ’
to provide reasonable services responsive to the unique needs
of each family through a plan that is ‘ “specifically tailored
to fit the circumstances of each family . . ., and . . . designed
to eliminate those conditions which led to the juvenile court’s
jurisdictional finding.” ’ ” (In re Taylor J. (2014) 223 Cal.App.4th
1446, 1451 (Taylor J.).)
Under section 366.21, subdivision (f), at the 12-month
review hearing, the juvenile court must “determine whether
reasonable services that were designed to aid the parent . . .
to overcome 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. (f)(1)(A).) The court may
not set a section 366.26 hearing unless the Department proves
by clear and convincing evidence that it has provided or offered
reasonable services to the parent. (§ 366.21, subd. (g)(1)(C)(ii);
Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345
(Amanda H.).)
11
The adequacy of the plan and the reasonableness of the
Department’s efforts are judged according to the circumstances of
the specific case. (Taylor J., supra, 223 Cal.App.4th at p. 1451.)
In other words, a parent’s “difficulty meeting the case plan’s
requirements does not excuse the [Department] from continuing
its effort[s] to bring [the parent] into compliance with the
court’s orders.” (Ibid.) Accordingly, to support a finding that the
Department provided or offered reasonable services to the parent,
the record should demonstrate the Department “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.)
“In almost all cases it will be true that more services could have
been provided more frequently and that the services provided
were imperfect. 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.)
We review the juvenile court’s finding that the
Department provided reasonable services for substantial
evidence. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th
1147, 1158.) When reviewing findings that must be proved by
clear and convincing evidence, “the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. In conducting its review,
the court must view the record in the light most favorable to the
prevailing party below and give appropriate deference to how the
12
trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1011–1012.)
2. Substantial evidence does not support the reasonable
services finding
The issues that led to J.A.’s removal and the juvenile
court’s jurisdictional findings related to father concerned his
failure to protect J.A. from mother, who had mental health
issues. The Department believed father did “not have the
protective capacities to keep mother . . . out of the home.”
He had allowed mother full access to J.A.— including allowing
mother to pick J.A. up from school—despite the custody order
restricting her visitation. He also had admitted he did not
know how to “deal with” mother’s mental health issues. Nor
had father secured a restraining order against mother to protect
J.A. immediately after the incident.
Thus, the Department had recommended completion of
a parenting education program to help father learn skills for
effective parenting and to set healthy boundaries to protect J.A.;
and participation in individual counseling to enable father
to recognize how parental mental health affected J.A., how to
refrain from engaging with mother, and how to protect himself
and J.A. from unhealthy relationships. Because the Department
suspected father might have an issue with drugs or alcohol,8
8 The Department was concerned about father’s prior drug-
related arrests, his resistance to random drug testing, and his
“disheveled appearance.” And, by the time of the disposition
hearing, father had tested positive for marijuana twice.
13
it also recommended he undergo random drug testing “to
measure his sobriety and willingness to remain alcohol and
drug free to promote the safety of the child.” Father and J.A.
do not contend this plan was unreasonable, but rather that the
Department failed to provide or offer—or to make reasonable
efforts to provide or offer—the ordered reunification services.
The juvenile court here found the Department failed
to provide, offer, or make reasonable efforts to provide or offer
reasonable services to parents during the six-month review
period. Thus, because the six-month review hearing was delayed
until December 3, 2020—at first due to the COVID-19 pandemic,
but then because the Department twice failed to give parents
proper notice—father did not receive reasonable reunification
services for 10 months following the January 29, 2020 disposition
order.
In its June 29, 2020 status review report, the Department
asserted it had contacted father monthly, but the Title XXs
showed the social worker had had minimal contact with father
between the January 29, 2020 disposition hearing and the
December 3, 2020 six-month review hearing. We can infer
the court found this limited contact deficient.
In an apparent response to the court finding its earlier
efforts were unreasonable, during the next six-month period
the Department increased its sporadic contact with father to
monthly contact. This time, the court found the social worker
had made reasonable efforts to provide services, noting the social
worker called parents every month and parents did not call back.
Given parents’ lack of response, the court didn’t “really know
what [else was] expected of the social worker.”
14
The record shows father did not return the social worker’s
monthly texts and/or telephone calls, for the most part, and
was not drug testing. We recognize “the reasonableness of
the services provided may depend to some degree upon the
parent’s willingness to cooperate in the completion of his or her
reunification plan.” (In re K.C. (2012) 212 Cal.App.4th 323, 330.)
Nor is the social worker required to “take the parent by the
hand and escort him or her to and through classes or counseling
sessions.” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463,
fn. 5.) We cannot conclude on this record, however, that the
Department “made reasonable efforts to assist [father] in areas
where compliance proved difficult.” (In re Riva M., supra,
235 Cal.App.3d at p. 414.)
As J.A. contends, during this second reunification period,
the social worker does not appear to have done anything more
than to have asked father, albeit more frequently, for proof of
his participation in or completion of his court-ordered services.
Indeed, on December 7, 2020—mere days after the court found
the Department had failed to provide or offer reasonable
reunification services—the social worker asked father for proof
of his participation in services. Yet, as the Department had
not provided reasonable services to father as of December 3,
2020, it would have been highly unlikely that he had completed
his court-ordered programs by December 7, 2020. Moreover,
there is no evidence the social worker offered any assistance
to father in December 2020—as one would have expected in
the wake of the court’s order—such as sending him new referrals
to update those she had provided to him nearly a year earlier
before the pandemic. The Title XXs show the social worker’s next
contacts with father—January 4 and February 1—were the same:
15
an unanswered text and call to father “in [an] attempt to obtain
certificates for court ordered services.” No offers of new referrals
or other assistance are noted.
Significantly, on March 2, 2021, when the social worker
again contacted father to obtain his certificates, father responded
that he had been “battling COVID” and unable to attend any
of his “sessions and therefore [had] no certificates.” Rather than
reply with referrals or offers of other assistance to help father
participate in his services despite his COVID-19 diagnosis, or
to help him restart his programs after he recovered, the social
worker texted and called father two days later to ask him again
for certificates. Father did not answer. Clearly, if father had not
been participating in his services while “battling” a contagious
virus, he would not suddenly have participation certificates to
offer the Department two days after telling the social worker
he had none to give her.
According to the Title XXs, the social worker again
contacted father by text or telephone for the same purpose—
“to obtain certificates for court ordered services”—on April 7 and
June 10, 2021, and father did not respond. Father sent a text to
the social worker on April 20, 2021, however, asking for her email
address so that he could send the information she had requested.
Father also texted the social worker on June 2, 2021, to ask for
the drug testing site’s phone number.
The Department’s May 11, 2021 report generally states
the social worker gave father referrals to services on April 1,
2021. As father notes, the Title XXs—the social worker’s log of
all contacts and provided services—do not show the social worker
contacted father on April 1, much less that she gave him
referrals. Indeed, except for the initial referrals the social worker
16
provided pre-adjudication on December 27, 2019,9 the Title XXs
include no entry for any date indicating the social worker
gave father referrals. Nor does the report attach a signed
confirmation that father received referrals on April 1, 2021,
as the Department’s earlier LMI did when the social worker
gave father referrals in December 2019.
The juvenile court may have found the Department’s report
credible—and we defer to its implied credibility finding—but
we cannot conclude that sole general statement is sufficient
to establish with a high probability that the social worker gave
father different or additional referrals on April 1, 2021, designed
to bring him into compliance with his case plan. In any event,
even if the social worker did give father referrals in April,
the Department presented no evidence as to the nature of
those referrals to allow the juvenile court to determine they
constituted reasonable services under the circumstances.
(See In re Precious J. (1996) 42 Cal.App.4th 1463, 1478 [the
Department, not parent, has “the obligation to make a record
at the six-month and twelve-month review hearings establishing
that reasonable services were provided”].) For example, the same
list of referrals from December 2019 would not necessarily have
been reasonably designed to help father comply with his case
plan in 2021 when father not only had contracted COVID-19,
but pandemic-related restrictions were ever-changing.
The Department argues father never asked the social
worker for additional referrals or for help when he had
9 Similarly, when the social worker sent mother referrals by
email on February 11, 2020, the Title XXs noted it.
17
COVID-19. Nor did father testify at the contested 12-month
hearing. He therefore did not state he had not received or
needed referrals or that he could not respond to the social
worker’s messages for some reason—for example, because he
had COVID-19. But a parent’s “difficulty meeting the case plan’s
requirements does not excuse the [Department] from continuing
its effort[s] to bring [the parent] into compliance with the court’s
orders.” (Taylor J., supra, 223 Cal.App.4th at p. 1451.) And,
“[a] parent is ‘not required to complain about the lack of
reunification services as a prerequisite to the department
fulfilling its statutory obligations.’ ” (Melinda K. v. Superior
Court, supra, 116 Cal.App.4th at p. 1158.)
Secondly, as both J.A. and father argue, the Department’s
delay—until two weeks before the scheduled,10 contested
12-month review hearing—in mentioning father’s parenting
class did not satisfy his case plan, also shows the Department’s
continuing failure to provide or offer reasonable services to
father.11
Amanda H., supra, 166 Cal.App.4th 1340, is instructive
on this point. There, the juvenile court had ordered reunification
10 The court scheduled the contested hearing for July 14,
2021, but continued it to July 27, 2021 due to counsel’s illness.
11 The Department appears to contend father forfeited
this argument by not raising it below. We disagree. A parent’s
challenge to a mandatory finding—such as the provision of
reasonable reunification services—is not forfeited by a failure
to object below. (See In re Javier G. (2006) 137 Cal.App.4th 453,
464 [“Even if the parent does not contest the state of the
evidence, he or she preserves the right to challenge it as
insufficient to support a particular legal conclusion.”].)
18
services for mother consisting of domestic violence counseling,
parent education, and individual counseling. (Id. at p. 1343.)
At the six-month review hearing, the Department social worker
told the juvenile court mother had enrolled in the required
programs and recommended the court extend reunification
services. (Ibid.) Just before the 12-month review hearing,
the social worker learned mother was not enrolled in a separate
domestic violence program. (Id. at p. 1344.) As a result, the
social worker recommended the court terminate reunification
services. (Ibid.) Mother testified that, based on what her
counselor had told her, she believed her classes would address
both parenting and domestic violence and, thus, had not enrolled
in a separate domestic violence course. (Ibid.) When she learned
she needed a separate course, she enrolled in one. (Ibid.)
The appellate court reversed the juvenile court’s finding
the Department made reasonable efforts to provide reunification
services, concluding the Department failed to show it provided
reasonable services and “also may have thwarted mother’s
ability adequately to address, before the 12-month hearing,
the fundamental problem that led to the children’s detention:
domestic violence.” (Amanda H., supra, 166 Cal.App.4th at
p. 1347.) The court concluded the Department could not “meet
the clear and convincing evidence standard when it [had] told
. . . the court for a year that mother was enrolled in the right
programs and then, at the 11th hour, used that mistake to
ask the court to terminate reunification services.” (Ibid.)
Here, the Title XXs show father sent the social worker
a certificate of completion of a four-hour parenting class in
October 2020—nine months before the 12-month review hearing.
Yet, the Department’s reports before and after the December
19
2020 hearing and its 12-month status review report did not
mention father had provided the certificate. More importantly,
nothing in the Title XXs or those reports shows the Department
told father that program was not acceptable. Certainly, there
is no evidence the social worker gave him another referral to
a different parenting program or contacted him to offer another
suggestion as to how father could satisfy that requirement.
Not until the Department’s June 29, 2021 LMI did it note
father had provided the social worker with the parenting class
certificate or indicate the class was insufficient. At the hearing,
the juvenile court nevertheless stated the social worker had
told father that the parenting program was not court-approved.
Substantial evidence does not support that finding.12
The Department distinguishes Amanda H., asserting the
social worker here never mistakenly told the court or father that
father had satisfied the parenting component of his case plan.
Nor did father testify he believed the parenting course satisfied
his case plan, as the mother had in Amanda H. Father also
never offered the certificate into evidence at the six-month review
hearing—at which the court found he had not substantially
complied with his case plan—or at the 12-month review hearing.
Nevertheless, as it did in Amanda H., the Department here
waited until the 11th hour to inform father that the parenting
course he had completed nine months earlier was insufficient.
12 Similarly, in its June 29, 2021 LMI, the Department
also informed the juvenile court that father had provided the
social worker with proof of participation in individual counseling.
At the hearing, however, the juvenile court stated father had
not participated in individual counseling.
20
And, the only evidence the Department presented showing it had
provided father with referrals for approved parenting classes was
the list the social worker gave father in December 2019. There
is no evidence that—after receiving the juvenile court’s December
2020 ruling of no reasonable efforts—the social worker attempted
to or offered to help father find an approved provider for a
parenting class, such as by sending him an updated list of
parenting course referrals.
The Department also implies there was nothing more the
social worker could do, as father did not answer his phone or
return the social worker’s calls or texts. While it is the parent’s
responsibility to attend court-ordered programs and address case
issues, it is “the social worker’s job to maintain adequate contact
with the service providers and accurately to inform the juvenile
court and [parent] of the sufficiency of the enrolled programs
to meet the case plan’s requirements.” (Amanda H., supra,
166 Cal.App.4th at p. 1347.) The Department may not have
affirmatively misled the court into believing father’s parenting
class sufficient, as in Amanda H., but it certainly did not timely
inform father or the juvenile court that it failed to meet father’s
case plan requirements.13
13 Father also contends the Department failed to follow-up
with his parenting and counseling service providers. As the
Department argues, because the parenting class was not
approved, it would not have contacted that provider. But, as
we discussed, the Department had a duty to keep father and
the juvenile court informed about the sufficiency of that program.
There is no evidence father provided the Department with the
name of his counseling provider, however, so that the social
worker could contact it—at least until she received father’s
21
Father’s drug use and failure to test concern us. But, they
were not a basis for the court’s jurisdictional finding and do not
appear to have been the primary reason behind J.A.’s removal.
Again, the main issues leading to J.A.’s removal from father
were his failure to protect J.A. by allowing mother unlimited
access to him in violation of the juvenile custody order and his
inability to “deal with” mother’s mental health issues to keep
her away from J.A.—issues the parenting course and counseling
sessions were designed to address. To be sure, drug use also
would have affected father’s ability to address the Department’s
concerns, and drug testing and a drug program would
demonstrate his commitment to sobriety, and in turn, to
protecting J.A. Nevertheless, father’s failure in one part of his
plan was not a reason for the Department not to make reasonable
efforts to provide, or at least to offer, reasonable reunification
services to him. (Taylor J., supra, 223 Cal.App.4th at p. 1451.)
Nor do we intend to imply the social worker was required
to follow up constantly with father when he did not return her
texts or calls—that would not have been reasonable. But, even
as here, where a parent responds in a limited fashion, the social
worker should assess what the Department reasonably can offer
or provide to the parent based on the specific circumstances.
Here, father said he had been unable to attend his programs
because he had COVID-19. Given that revelation, it would have
been reasonable for the Department to contact father to ask if
he needed different referrals, or to offer new ones or some other
assistance, rather than simply to call back and ask for proof of
counseling certificate, which apparently occurred sometime
before the Department filed its June 2021 LMI.
22
his participation. True, father still may not have complied with
his case plan. But, the Department at least had to make some
effort to assist or offer to assist father in his difficulties complying
with his case plan. (In re K.C., supra, 212 Cal.App.4th at p. 329
[Department’s effort to provide reasonable reunification services
must be made “ ‘in spite of difficulties in doing so or the prospects
of success’ ”].)
The Department already had failed to provide father
reasonable reunification services for at least ten months.
It made no effort to give or offer father additional assistance
in the following months; it only asked father for proof of his
participation. And, akin to the social worker in Amanda H.,
the social worker here acknowledged she received father’s proof
that he had completed a parenting class, but there is no evidence
she told him the class was unsatisfactory. Under these
circumstances—particularly given father told the Department
he could not participate in his services because he was “battling”
COVID-19—and keeping in mind the Department’s heightened
burden of proof, we cannot conclude substantial evidence
supports the juvenile court’s finding that the Department
offered father reasonable reunification services.
3. Reunification services must be continued
The Department contends the juvenile court properly
terminated reunification services because the case was past the
18-month date, and it found there was no substantial probability
that J.A. could be returned to his parents. Our review is strictly
on the reasonable services issue, however. (M.F., supra, 32
Cal.App.5th at p. 18 [“reviewing court addresses the issue of
reasonable services independently of the issue whether there
23
is a substantial probability the child will be returned to the
physical custody of the parent within the extended time period”].)
“Ordinarily reunification services are available to parents
for a maximum of 18 months from the physical removal of the
children from their home. (§ 361.5, subd. (a)(3)(A).)” (T.J. v.
Superior Court (2018) 21 Cal.App.5th 1229, 1251 (T.J.).) Here,
J.A. was detained on November 15, 2019—20 months before
the July 27, 2021, 12-month review hearing. Courts have held
that where “a timely challenge to the adequacy of services for
the statutorily required minimum period—here, 12 months—
is sustained, that failure to provide services will justify the
extension of services beyond 18 months, even without a showing
of best interests of the child or substantial probability of return,
and even if the permanent plan is not to return the child to
the parent.” (Id. at pp. 1256–1258 [finding reasonable services
were not provided and directing juvenile court to order additional
period of reunification services for parent, “so long as the period
of extended services does not run beyond 24 months from
removal”]; see also M.F., supra, 32 Cal.App.5th at pp. 20–24
[describing split in authority and following T.J. to conclude
“juvenile court has little discretion but to offer an additional
period of services to the parent where the agency has not met
its burden of proof with respect to services”]; Taylor J., supra,
223 Cal.App.4th at p. 1453 [“ ‘The remedy for a failure to provide
reasonable reunification services is an order for the continued
provision of services, even beyond the 18-month review
hearing.’ ”].) We agree and shall direct the juvenile court
to reinstate father’s reunification services until a combined
18-month/24-month review hearing.
24
We note that—due to delays in this case—as of
November 15, 2021, J.A. will have been detained from father
for 24 months—the maximum statutory period allowed for
court-ordered services. (§ 361.5, subd. (a)(4)(A).) That date is
fast approaching. Realistically, reasonable reunification services
cannot be provided by then. Courts have ordered reunification
services to be provided beyond the 24-month statutory limit in
cases where reunification services were denied, or reasonable
services were not provided, and the statutory period has expired
or will expire before those reunification services can be delivered.
(See In re M.S., supra, 41 Cal.App.5th at pp. 595–597 [holding
mother was entitled to six-month period of reasonable
reunification services, despite expiration of 24-month statutory
period, where juvenile court erroneously had denied mother
reunification services at jurisdiction and disposition hearing
and later terminated her parental rights]; see also Tracy J. v.
Superior Court (2012) 202 Cal.App.4th 1415, 1419–1420, 1428
[concluding parents were not provided reasonable reunification
services and directing court to continue 18-month review hearing
for six months and for agency to provide six additional months
of reunification services, which would exceed 24-month statutory
limit where child was removed January 2010 and opinion issued
January 2012].)14
14 We recognize the appellate court in T.J. directed the
juvenile court to order an additional period of reunification
services not to extend beyond 24 months from the child’s removal.
(T.J., supra, 21 Cal.App.5th at pp. 1257–1258.) There, however,
the 24-month period would not expire for almost another five
months from the filing of the court’s opinion. (Id. at p. 1251
25
Courts also have found reunification services can be
extended beyond the statutory time limit through a continuance
of the permanency review hearing under section 352. (§ 352,
subd. (a) [court may continue hearing beyond required time limit
on showing of good cause unless contrary to minor’s interest];
see, e.g., In re D.N. (2020) 56 Cal.App.5th 741, 744, 762
[reversing denial of request for continuance of permanency
review hearing, explaining, “[n]otwithstanding . . . statutory
limits on reunification services, a juvenile court may invoke
section 352 to extend family reunification services beyond these
limits if there are ‘extraordinary circumstances which militate[ ]
in favor of’ such an extension”].) “Extraordinary circumstances
exist when ‘inadequate services’ are offered by the child
welfare agency or ‘an external force over which [the parent has]
no control’ prevented the parent from completing a case plan.”
(D.N., at p. 762.) Here, the Department twice failed to provide
or offer reasonable services to father. And, setting a combined
18-month/24-month review hearing beyond 24 months from J.A.’s
removal is not contrary to his interests—J.A. is 16 years old,
wants to reunify with father, and is living with his brother.
We leave to the juvenile court’s discretion to determine,
based on the current circumstances, the timing of the combined
18-month/24-month review hearing.
[18-month mark fell on February 22, 2018; opinion filed March
29, 2018].)
26
DISPOSITION
The petition is granted. The juvenile court is ordered
immediately to (1) vacate its order of July 27, 2021 finding
reasonable services were provided or offered to father,
terminating father’s reunification services, and setting a
section 366.26 hearing; (2) enter a new order finding reasonable
reunification services were not provided or offered to father;
(3) order the Department to provide father with reunification
services until a combined 18-month/24-month review hearing
is convened; and (4) set an 18-month/24-month combined
hearing date. This decision is final as to this court immediately.
(Cal. Rules of Court, rule 8.490(b)(2)(A).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON P. J.
LAVIN, J.
27