Stefanie K. v. Superior Court CA1/4 ( 2014 )

Filed 10/6/14 Stefanie K. v. Superior Court CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
STEFANIE K.,
Petitioner,
v.
THE SUPERIOR COURT OF SONOMA A142305
COUNTY,
(Sonoma County Super. Ct. Nos.
Respondent; DEP-4193 & DEP-4194)
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT et al.,
Real Parties in Interest.
In this juvenile writ proceeding, Stefanie K. (mother) seeks extraordinary relief
from the juvenile court order terminating reunification services with respect to her two
sons—D. K. (born February 2010) and M. K. (born October 2011)—and setting a
permanency planning hearing pursuant to section 366.26 of the Welfare and Institutions
Code.1 Specifically, mother claims that the juvenile court erred in concluding that there
was no substantial probability that the boys could be returned to her care by the 12-month
review date if reunification services were continued. Mother further contends that the
juvenile court should have exercised its discretion to continue services for this “sibling
group” as permitted by section 366.21, subdivision (e). Finally, mother argues that the
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified. All rule references are to the California Rules of Court.
1
juvenile court’s finding that she received reasonable reunification services was not
supported by substantial evidence. Seeing no error requiring reversal of the juvenile
court’s setting order, we deny the petition.
I. BACKGROUND
The Sonoma County Human Services Department (Department) became involved
with D.K. and M.K. in early 2013 due to ongoing incidents of domestic violence between
their parents.2 First, on March 11, 2013, the police intervened after a loud verbal
altercation between mother and father. When father disclosed that he had been diagnosed
as bipolar and borderline schizophrenic and had not been taking his psychotropic
medications, he was placed on an involuntary psychiatric hold pursuant to section 5150
as a danger to himself and others.3 Then, on March 21, 2013, the police responded after
mother and father got into an argument while driving in a car with M.K. Reportedly,
father began to drive recklessly; made verbal threats, indicating that he was going to send
mother through the windshield; prevented mother from calling 911 by throwing her
phone against the car window; and, when mother opened the door in an attempt to
escape, pushed her out of the slow-moving vehicle. Two hours later, the police were
again called after father brandished a knife in mother’s face while holding M.K. and then
dragged mother into their bedroom against her will. As a result of these incidents, father
was arrested on a host of charges, including assault with a deadly weapon not a firearm
(Pen. Code, § 245, subd. (a)(1)), false imprisonment (Pen. Code, § 236), spousal battery
(Pen. Code, § 243, subd. (e)(1)), cruelty to a child with possible injury or death (Pen.
Code, § 273a, subd. (b)), preventing or dissuading a victim from making a police report
2
Mother and Clifford K. (father) have been together for eight years and were married in
March 2011. Clifford was declared the presumed father of the minors at the initial
hearing in these matters on May 20, 2013. He has not contested the juvenile court’s
setting order, however, and is therefore not a party to these proceedings.
3
Pursuant to subdivision (a) of section 5150, “[w]hen a person, as a result of a mental
health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer . . . or professional person designated by the county may, upon probable cause,
take, or cause to be taken, the person into custody for a period of up to 72 hours for
assessment, evaluation, and crisis intervention . . . .”
2
(Pen. Code, § 136.1, subd. (b)(1)), and brandishing a weapon (Pen. Code, § 417, subd.
(a)(1)). He was ultimately convicted on the spousal battery charge.
Upon meeting with the Department, mother indicated that she and father “had
been on and off meth before” and that she thought father might be “shooting up”
methamphetamine given his bizarre behavior. She agreed to a safety plan keeping father
out of the home and away from the children for a period of two weeks. Later, mother
reported that father had stayed away for the required period of time and that things had
been stable since his return. Both parents were agreeable to counseling, but were not
interested in other services or a formal dependency case.
Nevertheless, because the perceived risk to the minors was high according to the
Department’s assessment tool, the Department concluded that an in-home dependency
action was warranted. As a result, on May16, 2013, it filed a petition with respect to
M.K. pursuant to subdivisions (a) and (b) of section 300. A similar petition was filed the
same day with respect to D.K. pursuant to subdivision (b) only, as D.K. had not been
directly in the zone of danger during the March 21 altercations. At the initial appearance
on May 20, 2013, the matters were continued to June 19. During this continued hearing,
the parents contested the Department’s recommendation that family maintenance cases be
established for the minors, and, after a July 24 settlement conference failed to resolve the
dispute, the matters were set for a contested jurisdictional and dispositional hearing on
August 23, 2013.
In its dispositional report filed on June 17, 2013, the Department documented the
previous child welfare history of both parents when they were children. Specifically, the
Department had received five referrals between 1997 and 2005 naming mother as a
victim of general neglect, emotional abuse, and physical abuse. Father, for his part, had
been a juvenile court dependent from 1996 through 2002, when he became a juvenile
court ward. By his own report, he had “an extremely troubled and dysfunctional
childhood.” Since mother and father had themselves become parents (and prior to the
referrals which formed the basis for these proceedings), the Department had received four
referrals for suspected substance abuse and general neglect involving one or both of the
3
minors. Each of these previous referrals was either closed as unfounded or evaluated out
without investigation.
When interviewed by the social worker for the dispositional report, mother
downplayed her substance abuse history, indicating that she has never been an “addict”
and that she had been clean and sober for 18 months. Father asserted that his sobriety
was important to him and that—since he had been clean—he hadn’t been fighting with
mother, was able to work, and had energy to play with the minors. Neither parent,
however, showed up for drug testing as requested by the Department on June 12, 2013.
Moreover, although she claimed she would “do anything” for her children, mother also
maintained: “If you people (referring to the Department) expect me to attend
appointments or go to counseling or to classes that’s just not going to happen. I don’t do
appointments. That’s just a set up for me to fail.”
The social worker’s report also detailed concerns about possible speech delays or
autism for three-year-old D.K., who was not expressing himself verbally and who had
been observed banging his head against the floor and on a door. M.K. also was
presenting with some worrisome behavioral issues, such as screaming, extremely loud
and persistent whining, and throwing his head back towards the parent trying to restrain
him. The social worker expressed concern about mother and father’s failure to drug test
as well as their minimization and apparent lack of concern regarding the boys’ behavioral
deficits. Overall, she found the home to be “at the very low end of marginal.”
Then, on August 20, 2013, while proceedings with respect to the initial petitions
were still pending, the police detained both minors after they discovered D.K. running
down the middle of the street—naked, crying, and without supervision—in the early
hours of the morning. Once the residence of the minor was identified, the officers
learned that D.K. had been being supervised by a 15-year old babysitter, who was
sleeping with both boys on a mattress in the living room. Mother, who was also present
in the house, indicated that D.K. might have gotten outside through the doggy door or
through a side door that they leave unlocked for the maternal step-grandmother, who
lives in the home and is cognitively impaired. A maternal aunt—who lives in a converted
4
shed behind the house—indicated that the boys sometimes exit the residence undetected
through the doggy door and that mother does not adequately supervise the minors,
frequently leaving them for days at a time without food or diapers and with adults that are
unknown to them. In fact, the maternal step-grandmother had reportedly been sexually
assaulted by one of the transients invited into the home.
The maternal aunt also disclosed that she believed mother had been using
methamphetamine for a number of years, that mother prostitutes herself, that people
come and go from the residence at all hours, that these individuals often yell and fight
with mother in front of the children, and that she had witnessed a male guest smoking
methamphetamine in the bathroom about four months ago. A neighbor confirmed that
there was frequent yelling at the residence—with numerous people coming and going
throughout the night—and also reported removing D.K. and M.K. (both naked) from the
middle of street about two weeks prior to the current incident. When the neighbor told
mother about the children being in the street, mother reportedly seemed more annoyed
than concerned.
Further, during the investigation, the officers assessed the home as unsafe and
unsanitary, with exposed metal tack strips containing metal spikes; a filthy, stained
hardwood floor in the living room, with animal vomit near and under the mattress;
exposed outlets; garbage on the kitchen and living room floors; and, in the kitchen, filthy
countertops, dirty pots and pans in the sink, food on the stove and countertops, and
spoiled food in the refrigerator. Other than the mattress, there was no furniture in the
living room. Nor were there any toys or other items designed to educate, entertain, or
comfort toddlers. In addition, M.K.’s feet and face were dirty, and there was dried food
on his clothes. D.K. was similarly filthy and looked as if he had not been bathed for
days. Both boys appeared to have rashes on their bottoms.
When D.K. and M.K. were placed in protective custody, mother had no extra
clothing or baby wipes to send with the children, claiming that all of their clothing was in
her car which was missing. Neither child cried upon being removed from their mother.
Further, while being supervised at the Department after their removal, both boys
5
presented with a flat affect and were generally unresponsive to a social worker’s attempts
to engage them.
The family’s social worker spoke with mother by telephone the next day. During
this conversation, mother stated that she had been clean and sober for almost a year, but
again refused to drug test. Further, although the maternal aunt reported that mother had
gone to detox the previous evening, mother denied this, stating that she was at work and
that “her sister must be ‘mistaken.’ ” At that time, the Department was also aware of an
additional referral, which it had received on August 14, 2013, alleging general neglect of
the minors. According to the reporting party, the carpet in the family home was urine
soaked, both children were dirty and unclothed, the teenaged babysitter called the minors
“brats,” and the boys were out of control and climbing on unsafe furniture. The maternal
aunt also relayed that the boys lived in a chaotic environment, with no set bedtime, poor
nutrition, and “no fixed, or even remotely fixed,” eating schedules. She additionally
reported that she had seen the boys urinate on the carpet as they rarely wore clothing or
diapers. Finally, the Department had received an evaluation of D.K. which found him to
be behind in fine and gross motor skills, communication, and “all other areas.”
As a result of all of this new information, the Department filed amended petitions
on August 22, 2013, for both D.K. and M.K., adding additional allegations under section
300, subdivision (b), and including a section 300, subdivision (g), claim based on father’s
unavailability due to his incarceration.4 The detention hearing with respect to the
amended petitions was continued to August 26, 2013, on which date the minors were
formally detained in foster care.
In its amended dispositional report filed with the court on September 16, 2013, the
Department reported that mother was now claiming that she had not used drugs for the
last three years. Similarly, father asserted from jail that no one at the residence was using
drugs and that the boys were never left with anyone but family. In contrast, the maternal
aunt informed the social worker that mother had been using methamphetamine “for
4
Reportedly, father was in custody serving a six-month sentence related to his spousal
battery conviction and had an expected release date of October 31, 2013.
6
years” and that “smoking meth has become her life now.” Indeed, the maternal aunt
revealed that she saw mother using a glass pipe packed with a “white, rocky powder” in
her bedroom on the day the minors were detained. In addition, the maternal grandfather
stated that he “ ‘truly’ believes” mother is using drugs, adding that he had heard her brag
that she can “beat” drug tests. The maternal grandfather further related that there is a
“constant procession” of people babysitting the boys and that, when he visited the house
on August 22, 2013, he observed garbage piled in the shower along with wet, mildewed
clothes. He asked mother to leave the family home (which he owns) by October 1,
2013.5 Finally, the paternal grandmother reported that she had been unsuccessful in
helping mother and father get clean and sober.
With respect to the minors, D.K. had been quarantined from other children since
his detention after being diagnosed with untreated impetigo, an infectious skin condition.
He was observed by placement staff to exhibit a number of troubling behaviors, including
head banging, intentionally running into walls and doors, bolting from staff, throwing
objects, aggression, resistance to teeth and hair brushing, difficulty keeping clothes on,
and significant language delays. The social worker was attempting to obtain
developmental services through the school district for D.K. and was also seeking an
assessment and services through North Bay Regional Center. As for M.K., his caregivers
reported seeing more than four puncture wounds on each of his feet and one on his left
forearm when he was placed with them, a situation consistent with the toddler stepping
and/or falling on the nails sticking up from the living room floor.
The Department recommended family reunification services to deal with the
parents’ domestic violence issues, suspected substance abuse, and neglect of the minors.
After a number of continuances, a combined jurisdictional and dispositional hearing was
held on October 23, 2013. At that time, both parents submitted the matter, and the
juvenile court found the minors to be described by section 300, declared them juvenile
5
Interestingly, according to the paternal grandfather on September 6, mother claimed that
the social worker had apologized to her and that the Department would return the minors
to her care if she wasn’t losing her housing.
7
court dependants, and removed them from the custody of their parents. Thereafter, the
court ordered both parents to comply with their proposed reunification case plans. For
mother, this included: (1) maintaining a safe and stable home, including no safety
hazards, 911 calls, or arrests at the home; (2) participation in a drug treatment assessment
and follow-through with treatment recommendations; (3) completion of a psychological
evaluation; (4) compliance with random drug testing; (5) cooperation with the
Department, including consistent contact; and (6) weekly therapy.
The juvenile court held an informal three-month review on January 23, 2104. At
that time, the Department reported being “very concerned” about the lack of participation
in services by both parents. Moreover, although the minors were improving every day,
given their behaviors, the social worker inferred that they had not been taught language
and had not been exposed to many children or age-appropriate toys prior to their
detention. Unfortunately, by the time of the six-month review, the parents’ compliance
with their case plans continued to be substandard. Thus, it was the recommendation of
the Department that reunification services for both parents be terminated.
Focusing on mother—although her case plan required that she maintain a safe
home and that no arrests take place there—a deputy sheriff attempted to serve an arrest
warrant for father at the residence on December 14, 2013. At that time, mother claimed
to be father’s sister and stated that she did not know where he was, even though father
was in the garage with her. After refusing to allow law enforcement into the garage and
lying about father’s whereabouts, she was arrested for delaying the investigation. In the
meantime, father escaped through the back of the garage and jumped two fences in an
attempt to get away. Ultimately, he was tackled by a deputy sheriff and also arrested. 6
6
Mother had an additional contact with law enforcement on March 5, 2014, after the
vehicle she was driving was identified as containing three suspects who had fled the
scene after brandishing a knife at several people. Mother was present at the arrest of one
of the suspects and admitted that the knife was hers, claiming that she was trying to
remove it from the arrestee’s house so that he would not be in violation of his probation.
Then, on April 3, 2014, mother was again at the scene of an arrest after three bags of
methamphetamine, a glass pipe, and a scale were found under the seat of the vehicle she
8
Further, although mother had completed an initial phone call with the Drug Abuse
Alternative Center (DAAC) regarding the substance abuse assessment required by her
reunification plan, she failed to participate in four subsequent attempts by DAAC to
complete the assessment on October 12, November 12, November 14, and December 19.
She was again referred to DAAC on January 24, 2014, and scheduled for an assessment
on February 3, 2014. However, mother also failed to attend the February 3 assessment.
In fact, it was not until April 9, 2014, that she actually made an appointment, got there,
and began working on her treatment. And, even then—since mother told DAAC that she
just needed a “quick assessment” and that she did not have a substance problem—mother
was not referred to the full scope of available services. Rather, she was in a recovery
group that the social worker believed was “a little bit too many steps ahead” for her as
she wasn’t even drug testing and could not admit to her addiction.
Indeed, mother’s sporadic drug testing record was of significant concern. As of
the contested six-month review on June 24, 2014, mother had missed 16 drug tests, with
only five clean tests. Moreover, at a drug test on May 16, 2014, she failed to produce a
sufficient amount of urine for testing. Thus, although that test came back positive for
amphetamines, the result could not be confirmed due to the small sample size. The
testing laboratory expressed concern that mother was tampering with her test results as
she appeared to be under the influence of substances. And, in fact, on May 28, 2014, the
Department received a report that mother was purchasing urine from a 12-year-old girl.
In addition, although mother had begun her required weekly therapy in October
2013, she was discharged by her therapist after missing three appointments in January. In
particular, the therapist reported that mother failed to show for her January 8 appointment
after the therapist had expressly confirmed with mother on January 7. When the therapist
called mother on January 8, mother claimed not to remember speaking with her the day
before. Moreover, the therapist reported that—when mother did attend therapy—she
was driving. Mother claimed she had borrowed the truck from someone she didn’t know
in order to move. However, it was almost midnight at the time of the arrest, and the
truck’s owner had been with her at the previous incident in March.
9
used the time to complain about the Department and other services providers rather than
working on her therapeutic goals. In sum, mother was not able to take responsibility for
her part in the case or for the minors’ circumstances, placing blame on everyone else.7
Mother was also required to complete a psychological evaluation as part of her
reunification plan, but failed to do so. Although the social worker reviewed this
requirement with her on a monthly basis, mother said she did not want to be “labeled”
and further claimed that “ ‘the judge told me I did not have to do what the case plan
says.’ ”
Mother also ran afoul of the reunification mandate that she demonstrate
cooperative behaviors with the Department and other professionals working with her
family. Reportedly, mother hung up on her social worker on multiple occasions, yelled
and used profanity during monthly meetings, and attempted to record the social worker
without permission. Additionally, mother missed meetings with the social worker on
May 22, June 2, and June 5, 2014. And, although mother was told that an Individualized
Education Plan (IEP) meeting was being held for D.K. on May 15, 2014, and that her
signature was necessary to move forward with services for her son, she failed to attend.
At the beginning of the reunification period, visitation was initially suspended
because it was unclear whether mother had a methicillin-resistant staphylococcus aureus
(MRSA) infection or impetigo (both boys had MSRA and D.K. had impetigo). Once she
was cleared on November 11, 2013, however, mother had reasonably consistent weekly
supervised visitation with D.K. and M.K, missing nine visits out of thirty-one. In
addition, mother did work with a parent educator during the reunification period who
reported that, while mother appeared to try, the children were “difficult to control.” After
22 sessions with mother, the parent educator stated that she felt there was no more she
could do for her, because mother was too angry at the Department and other parts of her
7
The social worker referred mother to a new therapist on March 5, 2014, who she was
seeing at the time of the six-month review. According to this new therapist, mother was
attending consistently and making progress in treatment. However, even she agreed that
it would take mother a “period of years” to work on her issues.
10
life to engage in, and benefit from, services. Further, when the parent educator was not
present at visits, mother was unable to demonstrate that she had improved her parenting
skills. It was noticed, for instance, that mother appeared to over-stimulate the minors
during visits and failed to intervene during their negative behaviors. In fact, shortly
before the June 2014 six-month review, mother’s hour long supervised visitation was
split in half so that she could spend 30 minutes alone with each minor, as she was unable
to contain both children safely at the same time.
Finally, although D.K. and M.K. were significantly behind in fine motor, gross
motor, communication, and social/emotional skills when they were initially detained,
they had both made substantial progress while in foster care. According to the social
worker, the “number one reason” the boys were improving was that they were receiving
consistent, “24/7” care and attention from their foster parents, where they had access to a
myriad of community services. There was still, however, much to be done. At the time
of the six-month review, D.K. had recently undergone a serious dental surgery due to
multiple cavities and neglected dental hygiene. Further, given his speech delays, he
could not yet be assessed regarding his mental health needs. M.K. continued to hoard
toys and, although he was three years old, was still testing at 16 months for adaptive
behaviors and 14 months for social/emotional skills. Although he was too young to be
assessed for mental health issues, he displayed behaviors that caused concern to the
Department. In the social worker’s expert opinion, neglect played a “significant role” in
the minors’ developmental issues. D.K.’s speech therapist similarly opined that the boy’s
delays were not organic. Nevertheless, mother continued to maintain that there was
“nothing wrong with the children before [their detention]; that they didn’t have any issues
before; that she addressed everything they needed; that they were always talking.”
At the conclusion of the contested six-month review hearing, the juvenile court
terminated reunification services and scheduled a permanency planning hearing for
October 16, 2014. In reaching its decision to terminate services, the juvenile court
expressly found that both parents had failed to regularly participate and make substantive
progress in their cases plans. With respect to mother, the court specifically stated: “I do
11
concur, first off, with the analysis by the Department that there has been clear and
convincing evidence for this Court to find that mother has met neither of those prongs
based upon the numerous law enforcement contacts, the repeated failures to participate in
the DAAC referrals, the repeated missed therapy, along with being discharged from the
therapy by the original therapist. The missed drug tests I think alone are sufficient.” The
court went on to conclude that there was no substantial probability that, with continued
services, the minors could be returned to their parents by the 12-month permanency
hearing.
Mother subsequently filed a timely notice of her intent to file a writ petition, and
the petition itself was filed on August 29, 2014. (Rules 8.450(e), 8.452.)
II. TERMINATION OF REUNIFICATION SERVICES
In the present case, M.K. was under three years of age when he was removed from
the physical custody of his parents on August 20, 2013. Pursuant to section 361.5,
subdivision (a)(1)(B), reunification services may be limited to six months for these very
young minors. (See M.V. v. Superior Court (2008) 167 Cal. App. 4th 166, 175 [the
developmental needs of infants and toddlers justify establishing permanency earlier in
proceedings when there is a poor prognosis for reunification].) Moreover, because D.K.
is a member of M.K.’s “sibling group,” D.K.’s reunification services may be similarly
circumscribed pursuant to section 361.5, subdivision (a)(1)(C).8 Specifically, at a six-
month review hearing held in accordance with section 366.21, subdivision (e),
reunification services for members of a sibling group may be terminated, and a
permanency planning hearing scheduled, if the juvenile court “finds by clear and
convincing evidence that the parent failed to participate regularly and make substantive
8
Subdivision (a)(1)(C) of section 361.5 provides as follows: “For the purpose of placing
and maintaining a sibling group together in a permanent home should reunification
efforts fail, for a child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling group was under three
years of age on the date of initial removal from the physical custody of his or her parent
or guardian, court-ordered services for some or all of the sibling group may be limited as
set forth in subparagraph (B). For the purposes of this paragraph, ‘a sibling group’ shall
mean two or more children who are related to each other as full or half siblings.”
12
progress in a court-ordered treatment plan.” Here, the juvenile court made the required
finding before terminating mother’s reunification services with respect to both M.K. and
D.K., and mother does not challenge the propriety of this determination in these
proceedings. Rather, mother argues that her reunification services should not have been
terminated because: (1) there was a substantial probability that the boys could have been
returned to her care by the 12-month review date; (2) the juvenile court should have
exercised its discretion to continue services to D.K. and M.K. as a “sibling group”
pursuant to section 366.21, subdivision (e); and (3) reasonable services were not provided
to her. We address each contention in turn.
A. Substantial Probability of Return
The presumptive rule for children under the age of three on the date of initial
removal (and for members of a “sibling group” which includes such a child) is that
reunification services will be provided for a period of six months from the date of
disposition. (§ 361.5, subd. (a)(1)(B) & (C).) Pursuant to subdivision (e) of section
366.21, however, even when a “sibling group” like D.K. and M.K. is involved, the
juvenile court must still continue reunification services to the 12-month permanency
hearing if it concludes that there is a “substantial probability” that members of that
sibling group may be returned to a parent “within six months.” This statutory language
has been interpreted to mean that additional services are warranted if there is a substantial
probability of return by the 12-month permanency hearing, which must be held within 12
months from the date the dependent minor entered foster care. (Tonya M. v. Superior
Court (2007) 42 Cal. 4th 836, 846; see also § 366.21, subd. (f); rule 5.710(c)(1)(D) [court
must continue the case to the 12-month permanency hearing if court finds “a substantial
probability that the child may be returned within 6 months or within 12 months of the
date the child entered foster care, whichever is sooner”].)
The “date a child enters foster care,” is not, as might intuitively be presumed, the
date that minor was initially detained. Rather, it is a term of art defined by section 361.49
as follows: “[A] child shall be deemed to have entered foster care on the earlier of the
date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days
13
after the date on which the child was initially removed from the physical custody of his or
her parent or guardian.” Here, M.K. and D.K. were removed from their parents on
August 20, 2013, and the jurisdictional hearing was held on October 23, 2013. Thus,
they “entered foster care” for purposes of the statute on October, 19, 2013. Under these
circumstances, at the six-month review held on June 24, 2014, continuation of services
was only appropriate if there was a substantial probability that the minors could be
returned to mother within the next four months—i.e., by October 19, 2014.
A juvenile court making a substantial probability determination with respect to a
sibling group at a six-month review is instructed by court rule to consider a number of
factors, “along with any other relevant evidence.” (Rule 5.710(c)(1)(D)(i).) These
express factors include: (1) “[w]hether the parent or legal guardian has consistently and
regularly contacted and visited the child;” (2) “[w]hether the parent or legal guardian has
made significant progress in resolving the problems that led to the removal of the child”;
and (3) “[w]hether the parent or legal guardian has demonstrated the capacity and ability
to complete the objectives of the treatment plan and to provide for the child’s safety,
protection, physical and emotional health, and special needs.” (Rule 5.710(c)(1)(D)(i)(a)-
(c).)
At the conclusion of the June 24, 2014, six-month hearing in this case, the juvenile
court found that “given the track record of both parents and their level of participation in
this plan,” there was no substantial probability that the minors could be returned to their
parents in the applicable timeframe for extended services. Mother argues that this finding
was erroneous because she had consistently visited with the minors and had made
significant progress, especially recently, with respect to her reunification plan. We
review the juvenile court’s order terminating reunification services for substantial
evidence (Fabian L. v. Superior Court (2013) 214 Cal. App. 4th 1018, 1028), and see no
error under the facts of this case.
It is true that mother partially engaged in services during the reunification period.
She visited with the minors on a fairly regular basis, participated in parenting education,
and attended some individual therapy. Most recently, as the six-month review date
14
approached, mother also completed a substance abuse assessment and began treatment.
And, she engaged consistently with a second therapist to whom she was referred after she
was discharged by her first therapist for lack of attendance. On the other side of
equation, however, mother refused to complete a psychological evaluation, had an
abysmal drug testing record, and continued to associate with individuals involved in
illegal activities. Further, despite her parenting education, visitation with the minors did
not go well, as mother seemed unable to use the tools she had learned to improve her
hands-on parenting skills. Indeed, mother’s visitation remained supervised and,
according to the social worker, “she can only handle a half-hour with each child and
barely.” And, although she appeared to be positively engaged with her new therapist,
even that therapist opined that that it would take mother a “period of years” to work on
her issues. Finally, although she participated in substance abuse treatment, given her
failure to disclose the extent of her substance abuse problem, that treatment was not
optimally designed to meet her needs.
At bottom, however, the biggest barrier to reunification faced by mother—and the
reason that no “substantial probability” finding could credibly be made in this case—is
her persistent denial of the problems which led to the removal of her children. As the
social worker testified, given that mother remains in “major denial” about her substance
abuse, “what change can she really make when we have two special needs children that
need a full-time mom that can make multiple appointments per week when mom has
demonstrated that she cannot do that and is in denial of why we are here in the first
place.” Moreover, both parents have refused to admit to domestic violence being an issue
in their relationship. And, mother continues to refuse to accept any responsibility for the
severe neglect suffered by the minors, maintaining that they were fine and that she met all
of their needs prior to their removal by the Department. Thus, while some services were
completed by mother in this case, no meaningful progress has been made. Rather,
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mother has shown herself patently unable to provide for the boys’ safety, protection,
physical and emotional health, or special needs.9
B. Continuation of Services for Sibling Group
Pursuant to subdivision (e) of section 366.21, the juvenile court, at a six-month
review involving a “sibling group,” has the discretion to continue reunification services
for some or all of the minors. When making this determination, the court—“[f]or the
purpose of placing and maintaining a sibling group together in a permanent home”—is
directed to consider factors, including but not limited to “whether the sibling group was
removed from parental care as a group, the closeness and strength of the sibling bond, the
ages of the siblings, the appropriateness of maintaining the sibling group together, the
detriment to the child if sibling ties are not maintained, the likelihood of finding a
permanent home for the sibling group, whether the sibling group is currently placed
together in a preadoptive home or has a concurrent plan goal of legal permanency in the
same home, the wishes of each child whose age and physical and emotional condition
permits a meaningful response, and the best interests of each child in the sibling group.”
(366.21, subd. (e); see also rule 5.710(d).) In the present case, the juvenile court
expressly found that it was in the best interests of both minors to terminate reunification
services and schedule a permanency planning hearing pursuant to section 366.26.
Mother argues, in contrast, that— given the minors’ special needs and her recent
attempts at compliance with her reunification plan—the juvenile court should have
9
Although neither party raises the issue, we note that the court and the parties below
appear to have been under a misapprehension as to the applicable time limits for
additional reunification services in this case. Presumably measuring from the date of
detention rather than from the date the minors entered foster care pursuant to section
361.49, the parties and the court talked in terms of mother having two months of
additional reunification services available to her rather than four. However, given the
strength of the evidence in this case that mother was in no way ready to resume custody
of the minors and that her situation was unlikely to change materially in the foreseeable
future, we find any such error harmless. (See In re A.M. (2008) 164 Cal. App. 4th 914,
928 [error harmless if not reasonably probable a more favorable result would have been
obtained absent the error]; see also In re Janee W. (2006) 140 Cal. App. 4th 1444, 1452-
1453.)
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exercised its discretion to extend reunification services for the “sibling group” pursuant to
subdivision (e) of section 366.21. Our review of such a discretionary decision, however,
is limited. Specifically, “[w]e will not disturb the order unless the trial court made an
arbitrary, capricious, or patently absurd determination.” (In re Brittany C. (2011) 191
Cal. App. 4th 1343, 1356.) Under this standard and on these facts, we see no abuse of
discretion.
First, with respect to the specific factors referenced above, D.K. and M.K. lived
together for their whole lives and were removed from their parents at the same time.
Further, both boys are quite young and close together in age. Indeed, although D.K. was
not a minor under three years of age at the time of his detention so as to qualify on his
own for expedited permanency planning under subdivision (a)(1)(B) of section 361.5, he
was only six months beyond the three-year limit when he was removed from parental
care. In addition, although a concurrent home for both minors had not been identified in
March 2014 when the Department filed its initial report in connection with the six-month
review, by the time the Department filed its addendum report on June 9, 2014, D.K. and
M.K. were placed together in a concurrent home. There, the two young boys share the
bond forged by growing up together in an environment of severe neglect, and they both
continue to struggle with similar issues. However, both minors have been making
significant and consistent progress on these issues while placed together out of their
parents’ home.
Equally important, the boys show no bond with their mother. To the contrary, as
the social worker testified at the six-month review: “The children have consistently
been—I have seen the children myself both before and after visits. The children are
consistently upset, disoriented, they have trouble sleeping the nights of visits, they have
trouble eating. [The visits] are extremely disruptive. They don’t want to go to visits in
the first place. They say ‘No go.’ ‘No go.’ ” Indeed, D.K. and M.K. expressed their
strong desire not to attend visitation with mother as recently as the week before the six-
month review. Further, when they do attend visitation, the minors do not approach
mother, do not reciprocate her affection, do not follow her directions, and constantly try
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to bolt from the room. And, while they call father “ ‘Papa,’ ” they will not call mother
“ ‘mother,’ ” even when prompted by her to do so. Rather, they call their caregiver
“ ‘mom’ ” and run to her after visits.
Finally, as detailed at length above, even if services were extended with respect
to one or both of the boys, there is little likelihood that—at any time in the foreseeable
future—mother would be in a position to parent these two special needs minors. Indeed,
mother has not even been able to face the reality of their significant delays or admit to the
part her neglect played in the creation of those delays. Under these circumstances, the
juvenile court’s decision to treat these minors as a unit and expedite their permanency can
hardly be deemed arbitrary or absurd.
C. Reasonable Services
As a final matter, mother asserts that reunification services should have been
continued at the six-month review hearing, because reasonable services had not been
provided to her. (See § 366.21, subd. (e) [the court “shall continue” a case to a 12-month
permanency hearing if the court finds at the six-month hearing that reasonable services
have not been provided].) The adequacy of a reunification plan and the reasonableness of
the reunification efforts made by a child welfare agency must be judged according to the
circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal. App. 4th 1158,
1164.) Further, “[i]n almost all cases it will be true that more services could have been
provided more frequently and that the services provided were imperfect.” (In re Misako
R. (1991) 2 Cal. App. 4th 538, 547 (Misako R.); see also Elijah R. v. Superior Court
(1998) 66 Cal. App. 4th 965, 969.) Thus, when considering the adequacy of 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.” (Misako R., supra, 2 Cal.App.4th at p. 547; see also Tracy J. v. Superior
Court (2012) 202 Cal. App. 4th 1415, 1425-1426.)
In particular, to support a finding that 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,
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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
(such as helping to provide transportation and offering more intensive rehabilitation
services where others have failed).” (In re Riva M. (1991) 235 Cal. App. 3d 403, 414.)
We review a reasonable services finding for substantial evidence. (Angela S. v. Superior
Court (1995) 36 Cal. App. 4th 758, 762.) And, under the present facts, we have no
difficulty concluding that substantial evidence supports the juvenile court’s finding that
the services offered or provided to mother were reasonable.
In its dispositional report, the Department identified the problems which led to the
loss of custody in this case as the parents’ domestic violence issues, mother’s substance
abuse, father’s mental health concerns, and significant parenting deficits. The
reunification plan adopted for mother contained a myriad of services designed to remedy
these problems. Further, the social worker met consistently with mother and supplied
appropriate referrals for service providers on multiple occasions, including new referrals
when mother failed to act on a referral or was discharged by an existing provider. In
addition, the social worker tried a number of different approaches to promote effective
visitation for mother, including therapeutic sessions and arranging for mother to visit
with each child separately when it became clear that she had difficulty handling both
boys at once. These efforts appear to have been a reasonable response to the situation
facing this family.
Mother, however, argues that a single comment made by the social worker at the
beginning of the reunification period indicates that the services provided in this case were
unreasonable. Specifically, according to mother, the social worker advised her that “the
children would not be returned to her over the next few months, that she would have to
demonstrate over the long term her stability in order to convince the Department.” In
truth, pursuant to the testimony at the six-month hearing, what the social worker actually
told mother is that “if she can demonstrate she has made behavior changes and can be
safe, the children would be returned to her, but that the Department needs to see long-
term change, not a few months” (italics added). In our view, this was an entirely
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appropriate comment which properly delineated the task ahead for this parent, especially
given the significant evidence of pervasive neglect, unacknowledged substance abuse,
multi-generational trauma, and domestic violence which ultimately led to the removal of
her children.
Mother, in contrast, speculates that if this was the “informed, professional
opinion” of mother’s social worker, “what more could have and should have this social
worker done to meet goals and preference of our law in preserving family relationships?”
We find this argument specious. Reunification services are not inadequate merely
because they are incapable of effecting immediate change. Indeed, it is manifestly
unreasonable to expect such services to wipe away years of established dysfunction in a
matter of weeks. Once offered, reunification services are simply and only an opportunity,
a chance for a struggling parent to choose a different path—one filled with difficult
truths, sustained effort, and the forging of new habits over time. Clearly, in the present
case, this was not a road that mother was willing to travel.
III. DISPOSITION
The petition is denied on the merits. (See § 366.26, subd. (l)(1)(C), (4)(B).)
Because the permanency planning hearing in these matters is set for October 16, 2014,
this opinion is final as to this court immediately. (Rules 8.452(i), 8.490(b)(2)(A).)
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_________________________
REARDON, ACTING P. J.
We concur:
_________________________
RIVERA, J.
_________________________
BOLANOS, J.*
* Judge of the San Francisco City and County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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