K.W. v. Super. Ct. CA1/1 ( 2014 )

Filed 10/9/14 K.W. v. Super. Ct. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION ONE
K.W.,
Petitioner,
v. A142557
THE SUPERIOR COURT OF SAN
FRANCISCO COUNTY, (San Francisco County
Super. Ct. No. JD133063)
Respondent;
SAN FRANCISCO HUMAN SERVICES
AGENCY et al.,
Real Parties in Interest.
INTRODUCTION
Petitioner K.W. (father) seeks extraordinary relief from an order of the San
Francisco City and County Superior Court terminating his reunification services and
setting a hearing under Welfare and Institutions Code1 section 366.26 to select a
permanent plan for his minor son, A.W. Finding substantial evidence to support the
findings challenged by father, we shall deny the petition for extraordinary writ on the
merits.
FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2013, real party in interest San Francisco Human Services Agency
(Agency) filed a dependency petition in the matter of A.W., born in April 1999, alleging
1
All statutory references are to the Welfare and Institutions Code.
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failure to supervise and protect the minor under section 300, subdivision (b). The petition
notes minor was removed from father’s care on March 7, 2013, for general neglect and
caretaker incapacity.
According to the detention report, A.W. was removed from his parents’ care in
1999 when both parents were using methamphetamines and after A.W. was exposed to
drugs in utero. As a consequence, A.W. has special needs and is significantly
developmentally delayed. Father, who has sole legal and physical custody of A.W., also
has developmental delays, but it is unclear how much his limitations are due to his
developmental delays as opposed to his drug use. On the day A.W. was removed from
father’s care, father took methamphetamines and was found on the floor at A.W.’s
school, twitching and convulsing, and obsessively counting money. The week before the
petition was filed, A.W. was found wandering on school grounds in clothes soiled with
fresh and dried feces. The minor explained to staff that he had slept in a car the night
before. The school gave him a change of clothes but he soiled himself again and had to
be sent home. There have been numerous referrals indicating A.W. has urine and feces
on his clothes; on one occasion, school staff sent the minor home with soiled clothes in
his backpack only to find the dirty clothes still there two weeks later. Other referrals
indicate father believed it was appropriate to use corporal punishment on his son, and that
he had done so in front of the minor’s schoolmates. Also, A.W. was consistently truant.
On March 14, 2013, the court issued a detention order placing the minor in the Agency’s
custody until further order of the court.
The Agency filed a Disposition Report on April 15, 2013, recommending the
allegations be sustained, the minor continue in foster care, and that father receive
reunification services. The report states, “[A.W.] is a sweet 13 year old who presents as
much younger developmentally and emotionally. . . . He attends [middle school] and is in
a special day class for severely impaired students. . . . [¶] The minor is also adjusting well
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in the foster home and is growing attached to his foster mother.” He is able to use the
toilet regularly with structure from adults. He is attached to his father but becomes
anxious and aggressive during visits, and has difficulty responding to father’s behavior
and statements to him. Father had been attending two-hour supervised visits with A.W.
every Wednesday at the First Stop Visitation Center. However visits for April 10 and
April 17, 2013, were suspended due to father’s behavior during visits, such as
demonstrating “inappropriate boundaries, sexualized behavior, as well as cruel actions
towards the minor.”
In assessment, the disposition report states father presents “with signs of current
and longstanding previous history of methamphetamine abuse,” causing him “to act in an
aggressive manner alternating with severe mood swings. He presents with cognitive
concerns that were not previous[ly] diagnosed. He has inappropriate interactions with the
minor and this has . . . caused psychological harm to [A.W.] that needs further
assessment.” The Agency disposition report recommended that, prior to reunification,
father complete a drug-treatment program, participate in a mental health assessment,
participate in individual psychotherapy, participate in a father’s group and parenting
education class, and obtain appropriate housing. Following a contested hearing on
jurisdiction and disposition held on May 24, 2013, the court sustained the petition,
ordered reunification services, and set a six-month review hearing for November 14,
2013.
On October 30, 2013, the Agency filed a six-month status review report
recommending an additional six months of reunification services. The report states
father was homeless, had refused suggestions to stay in a shelter or residential drug
program, and shows “very poor internal coping skills.” He has experienced periods of
distress, is quick to anger, blames the Agency for not doing enough to assist him, and
when he is upset his speech becomes unintelligible. However, father agreed to undergo a
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neuropsychological evaluation to assess his executive functioning, the emotional impact
on his functioning, and what services might benefit him. Father has not drug-tested since
testing positive for methamphetamines on April 5, 2013, and has not participated in a
substance abuse assessment. Father is very affectionate with A.W., is working with A
Better Way on improving parenting skills, and regularly meets with the therapeutic visit
clinician for collateral sessions after his visits with A.W.
In assessment, the Agency’s six-month status report states father clearly loves
A.W. and diligently attends visits. However, he has been resistant to reunification
services and his “lack of emotional regulation” presents a barrier: “He is either calm,
with short spurts of anger, or highly escalated . . . to the point where he becomes
belligerent and threatening. He clearly does not trust . . . this agency. He feels a sense of
entitlement,” demanding housing and resorting to blame and threats when the social
worker does not provide them. At the six-month review hearing held on November 14,
2013, the court adopted the Agency’s recommendations, ordered an additional six months
of services for father, and set a 12-month review hearing for May 15, 2014.
On January 14, 2014, the Agency filed an interim review report stating father
underwent a neuropsychological evaluation with Dr. Katya Cornejo and was attending
group counseling at the Latino Family Center while awaiting an opening at a residential
drug-treatment program. Based on Dr. Cornejo’s recommendations, the Agency
proposed father be required to complete the following reunification services: (1) a
residential drug-treatment program and drug testing, if deemed appropriate, for one year
after completion of the program; (2) individual psychotherapy; (3) medical care for
diabetes and high blood pressure (which was in progress); (4) mental health treatment;
(5) participation in a father’s group (which was in progress); (6) parenting classes (father
was obtaining the equivalent through counselor Dima Dashevsky); (7) demonstrate an
ability during visits to respond to A.W.’s developmental and emotional needs; (8) a year-
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long basic living skills program, including how to find and keep a job, manage money,
and find safe housing; (9) obtain and maintain appropriate housing; and (10) notify the
social worker if mother was residing with him. The court adopted the Agency’s
recommendations on January 16, 2014.
Subsequently, in its 12-month status review report filed on April 25, 2014, the
Agency recommended termination of father’s reunification services. The Agency
recommended termination because father had been in a residential drug program for less
than 90 days in the year following detention, had engaged in services with A Better Way
but actively used drugs during most of that engagement, and had not yet started
individual therapy.
At the contested review hearing held on July 11, 2014, the court admitted the 12-
month status review report into evidence during the testimony of social worker Jennifer
Curley. Curley testified father had not completed a residential drug-treatment program
and she could not confirm that father had begun individual therapy. Father had received
parenting education with A Better Way and was learning basic living skills during his
current residency at Walden House, a residential treatment program. Curley testified
father has consistently and regularly contacted and visited with his son. However, Curley
opined father had not made significant progress in resolving the problems that led to
removal because those problems involved 30 years of methamphetamine use, chronic
homelessness, and temper-management problems requiring “a lot of work and a lot of
commitment over a long period of time.”
Father presented several witnesses at the contested hearing. Consuelo Martinez is
a community mental health worker with A Better Way, where she acts as family partner
helping parents to learn self-advocacy, navigate social service systems, and bridge gaps
in communication with service providers. Martinez described a “significant change” in
father over time; specifically, father has learned to “stay regulated emotionally” by
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utilizing breathing techniques she taught him, so that he can now remain calm in
meetings and speak up for himself.
Eli Parson is a family case manager at the Homeless Prenatal Program. Parson
helped father enter a Dependency Drug Court (DDC) program. Since March 2014, he has
met with father on a weekly basis and interfaces with other service providers to report to
the court on father’s progress in treatment. Parson stated he received information from
Walden House that father is in full compliance with his treatment program and attends all
required groups and classes. Since entering the DDC program in December 2013,
father’s drug tests have all been clean.
Dima Dashevsky, a mental health clinician at A Better Way, testified that since
April 2013 she has provided therapeutic visitation, a form of family therapy, between
father and son twice a week in two-hour sessions. Dashevsky also has weekly collateral
sessions with father prior to the therapeutic visits. In her therapy sessions, Dashevsky
noticed a strong bond between father and son with “a lot of love in the room.” The initial
challenge in the therapeutic visits was to create more open communication and help
father be more supportive in dealing with the minor’s anxieties around transitions and
changes. Dashevsky has seen a lot of progress by father “in the area of emotional
attunement and in him staying more regulated, being able to contain his own feelings
more, to be able to show up more fully for [the minor].” She has also noticed progress by
father in other areas; he has been more consistent in setting limits for A.W. and also in
respecting boundaries set by the minor.
On cross-examination, Dashevsky testified father becomes “disregulated” at times,
meaning he is visibly upset and agitated, and A.W. isolates himself at those times. Also,
whereas instances of rough play between father and son have diminished, they still occur
once or twice a month during therapeutic visitations. The minor has consistently asked
father not to engage in rough play, and part of Dashevsky’s work with A.W. is to help
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him be more assertive on that point. Dashevsky admitted father has a difficult time
focusing on the minor’s needs and keeps trying to engage him in rough play. She stated,
in discussing past family traumas, father uses a “very stern and accusing voice” with the
minor, which only increases the minor’s anxieties. An “ongoing theme” in treatment is to
help father “stay regulated and calm to be able to present and create more space for [the
minor]’s feelings.”
After receiving evidence and hearing the arguments of counsel, the court
announced its findings and rulings as follows: “[T]here is no doubt that father has made
progress and is demonstrating a desire to improve himself, his life skills, and that he is
devoted to his son. [¶] But at this point I have to find that there is a substantial probability
that he will reunite with his son within the next six-month review to authorize [further]
services, and I can’t find that.” The court found father had failed to demonstrate an
ability to respond to the minor’s developmental and emotional needs in therapeutic
visitation, noting that if father “can’t do it in a therapeutic visitation, will he be able to do
it in the outside world under all the pressures that affect people on a daily basis[?]” The
court also expressed concern father had not undertaken individual psychotherapy because
“underneath all the addiction issues we often find mental health issues that need to be
addressed, and that hasn’t been addressed at all. I know he is in some counseling, some
family therapy with his son, but that doesn’t really amount to individual therapy.” The
court found father was “not capable of taking care of” his son and stated “it’s unlikely
that in two months you would be capable of taking care of him.”2 Thereafter, the court
terminated father’s services but continued his visitation with the minor. The court found
return of the minor to the parent’s custody would create a substantial risk of detriment to
2
Upon making the findings required by statute, the court could have extended services
until the 18-month review hearing, which was due by September 7, 2014, 18 months
from “the date the child was originally taken from the physical custody of his or her
parent . . . .” (§ 366.21, subd. (g)(1).)
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the safety, protection, or emotional or physical well-being of the child. Also, the court
found by clear and convincing evidence that the Agency offered or provided reasonable
services designed to help father overcome the problems leading to the initial removal and
continued custody of the minor. The court scheduled a hearing pursuant to section
366.26 for November 12, 2014. Father timely filed a notice of intent to file a writ
petition.
DISCUSSION
A. Reasonable Services Were Provided
Father challenges the juvenile court’s finding that he received reasonable services.
In reviewing that finding, we examine the record in the light most favorable to the
juvenile court’s order to determine whether there is substantial evidence from which a
reasonable trier of fact could have made the finding under the clear and convincing
evidence standard. (In re Isayah C. (2004) 118 Cal. App. 4th 684, 694-695.) We construe
all reasonable inferences in favor of the finding of adequacy of an agency’s reunification
plan and the reasonableness of its efforts. (In re Julie M. (1999) 69 Cal. App. 4th 41, 46.)
We likewise resolve conflicts in favor of such a finding and do not reweigh the evidence.
(In re Jasmine C. (1999) 70 Cal. App. 4th 71, 75.) If the finding is supported by
substantial evidence, we affirm the ruling, even though other evidence might support a
contrary conclusion. (In re Christopher L. (2006) 143 Cal. App. 4th 1326, 1333.)
Moreover, the Agency’s duty is to make a “ ‘good faith effort’ ” to provide
reasonable reunification services. (In re Monica C. (1994) 31 Cal. App. 4th 296, 306.)
Services may be deemed reasonable when the case plan has identified the problems
leading to the loss of custody, the agency has offered services designed to remedy those
problems, has maintained reasonable contact with the parent, and has made reasonable
efforts to assist the parent in areas in which compliance has proven to be difficult. (In re
Riva M. (1991) 235 Cal. App. 3d 403, 414.) The standard is not whether the agency could
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have provided better services in an ideal world, but whether the services were reasonable
under the circumstances. (In re Misako R. (1991) 2 Cal. App. 4th 538, 547.)
Here, father does not identify the nature of the services the Agency allegedly
failed to provide. Rather, father asserts his case plan was modified in January 2014
following Dr. Cornejo’s neuropsychological evaluation. He further asserts that because
Dr. Cornejo suggested “some of these services would require a year to complete” and the
Agency “included these time estimates in the proposed plan that the court ordered,” the
court therefore was obliged to extend services for “the anticipated twelve months to
complete the new requirements.”
Father’s characterization of the record on this point is not persuasive. First, even
if father’s case plan was modified in January 2014, that did not “restart” the reunification
period, which is strictly governed by statute. (See §§ 361.5, subd. (a)(1)(A), 366.21,
subd. (g) [reunification services shall be provided for 12 months and may be extended
until 18 months from date of minor’s detention only if the court finds (1) services
provided were unreasonable or (2) there is a substantial probability of the child being
returned to parents’ custody by the 18-month date].) Second, the “modified” case plan
did not differ greatly from the original case plan developed by the Agency in its
disposition report of April 2013. Indeed, most of the elements of the original plan are
identical to those specified in the “modified” plan; for example, “[t]hat the father
participate in individual psychotherapy that addresses issues that impact his parenting
including communication patterns with the minor,” and “[t]hat the father demonstrate an
ability to respond to the minor’s developmental and emotional needs in therapeutic
visitation.” In other respects, the “modified” plan merely fine-tunes elements already
included in the original plan; e.g., the original plan specifies that “father participate in a
father’s group that addresses socialization and parenting issues,” whereas the “modified”
plan states, “[t]hat the father complete a parenting education class” and notes Dr. Cornejo
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recommended a group for “single fathers in order to decrease [father’s] feelings that he is
alone and unsupported in his job as a parent.” Also, the original plan specified “[t]hat the
father complete a drug treatment program which includes counseling and testing;” the
“modified” plan specified the drug treatment be in a residential program. In fact, the only
services that Dr. Cornejo recommended on a year-long basis were life-skills counseling
and drug testing upon completion of a residential drug program. In sum, father’s
contention that the minor modifications to his case plan in January 2014 mandated an
automatic extension of services, and thus rendered the services provided unreasonable, is
without merit.
However, father recasts the above argument in evidentiary terms, contending the
trial court’s “failure to admit evidence of the modification of the prior six-month
reunification plan in determining whether father received reasonable services was
prejudicial error.” The evidence in question was a January 22, 2014 transfer summary
report3 proffered by father’s counsel at the contested hearing in July 2014 to support the
claim that the court ordered new reunification requirements in January 2014 that should
have lasted one year.
This evidentiary contention is also without merit. First, father offers no authority
for the proposition that when a case plan is modified, the court is obliged to extend the
period of reunification services beyond the time limits provided by statute. Moreover, on
the record before us, any evidentiary error was harmless. As noted above, the only
services that Dr. Cornejo recommended on a year-long basis were life-skills counseling
and drug testing upon completion of a residential drug program. But it was not father’s
lack of participation in life-skills training or drug testing that led the trial court to
3
A transfer summary is a summary of the case prepared by an outgoing social worker
and made part of the case file for the benefit of the incoming social worker newly
assigned to the case. The transfer summary showed services recommended for father
were modified in January 2014.
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terminate reunification services.4 Rather, the court terminated services based on father’s
limited improvement in therapeutic visitation and his failure to begin individual therapy
and mental health treatment—services which were ordered in the original reunification
plan in April 2013. In short, extraordinary relief based on the trial court’s evidentiary
ruling is entirely unwarranted.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal. Const.,
art. VI, § 14; Kowis v. Howard (1992) 3 Cal. 4th 888, 894.) The decision is final in this
court immediately. (See Cal. Rules of Court, rule 8.490(b)(2)(A).)
4
However, we note that at the six-month review stage in October 2013, father had not
yet started drug treatment or drug testing and had not started attending a father’s group.
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_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
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