In re J.M. CA4/1 ( 2023 )

Filed 6/6/23 In re J.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.M., a Person Coming Under
the Juvenile Court Law.
D081355
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4679)
Plaintiff and Respondent,
v.
S.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Mark T. Cumba, Judge. Reversed.
Paul A. Swiller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Evangelina Woo, Deputy County Counsel, for Plaintiff
and Respondent.
S.S. (Mother) appeals the juvenile court’s December 8, 2022 order
terminating her reunification services. Mother contends the San Diego
County Health and Human Services Agency (Agency) failed to provide her
with appropriate individual therapy to address her mental health issues. As
a result, she argues the juvenile court erred in concluding that the Agency
had provided her with reasonable services. We agree and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Initial Proceedings
J.M., now age 12, is the child of Mother and nonappealing father, M.M.
(Father). The family first came to the Agency’s attention in 2013 and was the
subject of eight referrals before the incident that resulted in J.M.’s removal.
The referral allegations involved one or both parents drinking excessively,
the parents screaming at each other, and multiple instances of alleged
domestic violence between the parents.1 Several of the referrals involved
concern that Mother suffered from untreated mental health issues. The
parents also called the police on each other in early 2021.
A. Initiation of Dependency Proceedings and Initial Reunification Efforts
In late June 2021, Mother called law enforcement to report a verbal
argument with Father and to request that officers remove him from their
shared apartment. Responding officers observed that both parents were
under the influence of alcohol. After Mother made statements they perceived
as suicidal, officers transported her to the hospital on a Welfare and
1 The Agency did not have contact with the family between 2014 and
2017 when Mother and J.M. resided in Hungary.
2
Institutions Code2 section 5150 hold. The paternal grandmother3 took J.M.
into her care the next day. Two days later, Father arrived at her home
intoxicated. The grandmother called law enforcement because Father had
passed out in his car blocking the driveway.
J.M., who was 10 years old at the time, reported the yelling in her
home was “almost constant” and that her mother was a “little psycho.” She
said both parents used marijuana inside the residence, and she inhaled it as
a result. J.M. said Mother drank at least one bottle of alcohol every day but
hid her alcohol bottles in places where Father never looked. Father admitted
he had been dealing with alcoholism throughout his life and said that Mother
consumed a bottle or two of wine per day. Mother denied having a drinking
problem.
Declining the Agency’s advice, Mother did not seek a restraining order
against Father and instead left J.M. with the grandparents and departed for
Florida sometime in late July. In mid-August 2021, the grandparents
reported that Father drove J.M. home from their house while intoxicated.
When J.M. did not attend school for the next two days, the grandparents, a
social worker, and law enforcement went to the home to check on her, but
Father would not open the door. After a social worker advised Mother of the
incident, she blamed the grandmother for not keeping J.M. safe from Father,
but again declined to seek a restraining order because she did not trust the
police and did not believe it would help.
The Agency removed J.M. from the home at the end of August 2021 and
placed her with the grandparents. The Agency filed a petition under section
2 All statutory references are to the Welfare and Institutions Code.
3 All references to the grandparents are to the paternal grandparents.
3
300, subdivision (b)(1), based on the parents’ alcohol use, Mother’s failure to
protect J.M., the June 2021 incident involving the police, Father’s subsequent
intoxication at the grandparents’ house, and the allegation that Father later
drove J.M. while intoxicated. At the detention hearing, the court found that
a prima facie showing had been made on the petition, detained the child with
the grandparents, and ordered provision of voluntary services and supervised
visitation for the parents.
Mother returned from Florida in early September 2021 and social
workers subsequently interviewed each family member. J.M. expressed that
the fighting and police involvement had caused her to contemplate suicide in
the past. She said sometimes Mother was scary because one minute she
would be nice and the next moment she became angry. Mother explained she
used marijuana for glaucoma and that Father used it to treat migraines. She
denied drinking every day but said that she preferred champagne and would
typically drink the whole bottle because otherwise it would go flat. She said
she had lost jobs and housing because of Father’s drinking and their fighting.
Father reported that he had just moved into a sober living facility in
September 2021, was participating in substance abuse treatment services,
and had completed a therapy intake assessment.
In mid-September 2021, the Agency referred Mother for an assessment
with a substance abuse specialist, individual therapy,4 family support
through Incredible Families, and drug testing. The social worker submitted
4 Her case plan stated, “[i]f recommended by service providers, or at the
mother’s request, [Mother] will participate in individual counseling with a
TERM or Agency-approved therapist.” “The Treatment Evaluation Review
Management program (TERM) are therapists approved by the Agency and
juvenile court to provide services to parents in dependency cases and file
reports directly with the court.” (In re M.F. (2019) 32 Cal.App.5th 1, 9, fn. 3.)
4
referrals for Father to Incredible Families and individual therapy. Mother
promptly completed her assessment with the substance abuse specialist,
began consistently attending sessions with her substance abuse counselor at
Parent Care, and submitted to random alcohol tests. She refused services for
herself or J.M. with Incredible Families.
With regard to individual therapy, the social worker received an email
on September 15, 2021 from OPTUM5 stating: “The client is being referred
for individual therapy to address protective parenting, mental health,
trauma, boundaries, co-parenting, coping, and ability to safety parent.
Considering that [domestic violence] group therapy is provided by a mental
health clinician that addresses these areas, please consult with CWS Staff
Psychologist to determine if [domestic violence] group therapy would be the
most appropriate clinical referral. Please note, the group therapist conducts
assessments and can determine appropriateness for group therapy.” (Italics
omitted.) After consulting with the Agency’s staff psychologist in October
2021, social workers referred Mother to a domestic violence victims’ group
and Father to a domestic violence offenders’ group, with authorization for
individual therapy if the group providers recommended it. After
subsequently learning that Mother had been the aggressor in several
domestic violence incidents and consulting again with the staff psychologist,
5 According to the Agency, “Optum is responsible for contracting
providers to the TERM network who have competence in evaluating and
treating clients referred for child maltreatment or delinquency concerns.
Optum also provides quality oversight of treatment plans and evaluation
reports prepared for these clients.”
(https://www.optumsandiego.com/content/SanDiego/sandiego/en/county-staff--
-providers/term-providers1.html [as of June 5, 2023 - https://perma.cc/3STG-
FWF6].)
5
Agency social workers referred Mother to the domestic violence offender
group.
During this reporting period, the parents had separate in-person and
phone visits with J.M. When asked if she would like unsupervised visits with
Mother, J.M. replied, “No thank you. . . . Not until she has a job and is
checked for alcohol every day, even the weekends.” As to Father, she also
said, “No thanks, I’d rather be supervised.” J.M. expressed that she felt safe
at her grandparents’ house and wished to continue living with them.
At the contested adjudication and disposition hearing in October 2021,
the juvenile court sustained the petition, ordered the Agency to provide
services to the parents, and modified the case plans to require both parents to
“participate in individual therapy, and . . . attend an appropriate [domestic
violence] course if recommended by their individual therapists.” The court
explained this may be a case where the parents only fight when they are
intoxicated. It ordered individual therapy so a therapist could get to know
each of the parents and then decide if a domestic violence course was
appropriate.
B. Six-Month Review Hearing
In January 2022, Mother’s substance abuse counselor from Parent
Care, Terri Talmadge, “recommended [Mother’s] mental health be addressed
as she fe[lt] there m[ight] be a personality disorder which [wa]s causing re-
victimization and impacting her parenting.” Valarie Padra Najera, the
therapist leading Mother’s domestic violence victims’ group, stated in
February 2022 that Mother did not qualify for individual therapy as she did
not disclose any mental health concerns. The provider suggested Mother’s
mood swings were likely due to her substance abuse. However, in early April
the same provider stated that although she had diagnosed Mother with an
6
alcohol abuse disorder, Mother might also have a mood disorder or
personality disorder. Meanwhile, Talmadge recommended in March and
again in April that Mother undergo a psychological evaluation to address her
“emotional pain as her perception is everyone is a threat.”
By the end of April 2022, Mother had completed her substance abuse
program through Parent Care and was engaged in aftercare but was not
attending recovery support group meetings. She said she was working with
an Alcoholics Anonymous and codependency sponsor but did not provide the
Agency with contact information. She continued to drug test clean, except for
marijuana. But the Agency reported that Mother “ha[d] a very difficult time
managing her anger and [would] often begin to spout out hurtful things to
others and become confrontation[al] with them when she d[id] not agree with
their statements.” She also would “become fixated on topics and bring them
up repeatedly.” Mother apparently had stopped attending her domestic
violence group at some point and was directed to resume participating. The
Agency recommended in April 2022 that Mother undergo a psychological
evaluation.
Father also had completed substance abuse treatment and begun
aftercare. He too had a sponsor and tested clean except for marijuana.
Additionally, Father attended biweekly recovery support group meetings and
participated in individual therapy, although the Agency remained concerned
that Father had limited insight into his substance abuse.
Mother, Father, and J.M. had begun attending Incredible Families,
where the parents took parenting courses and engaged in therapeutic
visitation with J.M. In April, an Incredible Families clinician noted that
“progress with the mother is difficult due to her mental health as it affects
7
her ability to connect” and that “the parents are more invested in their
‘custody battle’ then [sic] their daughter.”
The Agency had concerns about Mother’s behavior during visits with
J.M. and the child expressed that she was fearful of Mother. When left
unattended with J.M. for even under a minute, Mother reportedly attempted
to manipulate her. In January 2022, J.M. asked a social worker to supervise
her calls “so my mom doesn’t insult me or my grandparents.” Meanwhile,
Father’s visits were reported to be going well and he progressed in April to
one hour of unsupervised visitation.
The Agency recommended an additional six months of services. It felt
that “once the mother is able to receive the necessary mental health
treatment the child will be less resistant to reunifying with her as her
primary concern is not feeling safe with the mother due to her mental
health.”
At the initial April 26, 2022 six-month review hearing, Mother’s
counsel said Mother did not object to the Agency’s recommendation that she
undergo a psychological evaluation so the court made the order. Mother fully
participated in a psychological assessment with Joseph McCullaugh, Ph.D.,
on May 11. Although the report is dated May 25, an Agency status review
report indicates the Agency did not receive the psychological evaluation
report until July 14. The record provides no explanation for the delay.
During the June 3, 2022 contested six-month review hearing, the court
addressed a section 388 petition presented by J.M.’s counsel seeking to halt
visitation and conjoint therapy with Mother. Thinking about visits with
Mother reportedly made J.M. feel upset and depressed, and led to her having
difficulty sleeping. She requested the court find visitation detrimental to her
and terminate visits until Mother made progress in therapy. The court found
8
a prima facie showing of changed circumstances and temporarily suspended
Mother’s visitation pending a full evidentiary hearing. It also concluded that
reasonable services had been provided or offered to both parents. Mother did
not appeal this reasonable services finding.
After hearing argument at the contested section 388 hearing, the
juvenile court granted J.M.’s petition and left it for J.M. to request to see
Mother again if and when she was ready.6 J.M. expressed openness to
talking to Mother on the phone for Mother’s birthday and on special
occasions. J.M. also said she felt comfortable with Father and was ready to
try an overnight visit.
C. Mental Health Services Offered to Mother
In the psychological assessment, Dr. McCullaugh noted that Mother
adamantly denied the allegations in this case and their negative impact on
J.M. Instead, she attributed sole responsibility for the case to Father. She
saw little she could have done to prevent her current circumstances and did
not acknowledge her contributions to the family’s involvement with child
welfare services. The psychologist indicated “[t]his will remain an important
element to both address and challenge, pragmatically and therapeutically.”
Under the heading “diagnostic considerations” Dr. McCullaugh wrote
“Unspecified Trauma-Related Disorder – RULE OUT,” “Alcohol Use Disorder
6 Mother appealed and we conditionally reversed the order for lack of
compliance with the Indian Child Welfare Act (ICWA). Following additional
proceedings, the court determined the ICWA did not apply, and the order was
reinstated.
9
– Unspecified,” and “Cluster ‘A’ Personality Traits.”7 He recommended six to
12 months of treatment but indicated that “[p]progress in her case is
additionally predicated on [Mother’s] willingness, motivation, and receptivity
to the suggestions, directions, and interventions offered, adjusting her
approach and reconsidering what is a priority for [J.M.’s] safety.”
Dr. McCullaugh said her ability to recognize the need for support and to seek
help has been compromised, so “reliance on her view of self-assessed needs is
not recommended.” In recommending individual therapy, he noted the need
for a therapist “comfortable challenging [Mother’s] denial and self-favorable
presentation, and sub-diagnostic persecutory/paranoid ideation” given that
her self-view is prone to deflecting and preventing progress.
In response to the psychological evaluation received on July 14, 2022,
the Agency submitted a referral on August 23 for Mother to receive
individual therapy for a personality disorder. On September 9, OPTUM
contacted the Agency to say few providers held the clinical specialties needed
for this client. It stated that Mark Guynn, a therapist, was so qualified and
the Agency assigned Mother to Guynn the same day. Guynn met with
Mother once, but told the Agency on September 30 that he would need to
refer Mother back to OPTUM because she was “not mentally available to do
therapy.” Meanwhile, Najera reported that, despite completing 24 of 26
domestic violence classes, Mother’s progress was minimal. However, she said
Mother could complete the program regardless of whether she took any
7 Later the psychologist clarified that while Mother’s presentation did
not warrant a diagnosis of delusional disorder or paranoid personality
disorder, she exhibited traits consistent with “Cluster ‘A’ (Paranoid)
personality disorders.” He further explained that he lacked the longitudinal
portrait of her functioning necessary to make a personality disorder
diagnosis.
10
accountability of her actions. She reiterated her view that Mother required
individual therapy for a likely personality disorder.
Guynn contacted the Agency again on October 25, 2022, to report that
he discharged Mother on October 3 because she “emphatically denied” having
a mental health issue, she said she did not need treatment, and “they could
not develop treatment objectives they could work on.” Mother also
compulsively texted him after their meeting. The Agency report regarding
Guynn’s response also states: “He indicated feeling as though the mother
needed more experience with someone that works with those with personality
disorder so they can discuss her normal delusionary thing, big themes,
paranoia, and persecution.” Guynn also “indicated feeling that she needed
therapy for someone with a personality disorder.” It is not clear from
Guynn’s statements to the Agency whether he felt Mother needed someone
with more experience with personality disorder or whether he was
acknowledging that he did not have experience treating personality disorder.
The Agency submitted a new referral the same day. OPTUM informed
the Agency on November 1, 2022, that Dr. Matthews was qualified and
willing to treat a personality disorder, but not domestic violence issues. The
Agency therefore kept Mother with Najera in the domestic violence group and
assigned Mother to Dr. Matthews for individual therapy two days later.
Mother was only able to meet with Dr. Matthews twice before the contested
12-month review hearing, when the court terminated her reunification
services. Dr. Matthews reported that while Mother did show up, she was
unsure if Mother would engage in treatment.
11
D. Subsequent Proceedings8
The Agency initially recommended continuing reunification services for
both parents until the 18-month review. However, the social worker reported
that Mother was unable to advocate for her child in a nonphysical,
nonintimidating way; resorting instead to blaming, cursing, and screaming at
social workers and her service providers for long periods of time.
At an October 2022 hearing, the court stated that “if the parties were to
submit, I would not be following the recommendations with regard to Mom
because I can’t make the three-prong finding” necessary to justify allowing
additional time to return J.M. to her parent’s physical custody under section
366.21, subdivision (g)(1).9 Agency counsel then interjected to clarify that it
was requesting a continuance to provide notice that it was changing its
8 We note that the court held four Marsden hearings at Mother’s request
between September 2021 and August 2022. The court did not find cause to
relieve appointed counsel.
9 If court-ordered services have been provided for the required time
period, in this case 12 months, and the child has not been returned to the
parent, the court will continue the case for up to six months “if it finds that
there is a substantial probability that the child will be returned to the
physical custody of their parent or legal guardian and safely maintained in
the home within the extended period of time or that reasonable services have
not been provided to the parent or legal guardian.” (§ 366.21, subd. (g)(1).)
To find a substantial probability that the child will be returned to their
parent’s physical custody, the court must find all of the following: “(A) That
the parent or legal guardian has consistently and regularly contacted and
visited with the child. [¶] (B) That the parent or legal guardian has made
significant progress in resolving problems that led to the child’s removal from
the home. [¶] (C) The parent or legal guardian has demonstrated the
capacity and ability both to complete the objectives of their treatment plan
and to provide for the child’s safety, protection, physical and emotional well-
being, and special needs.” (Ibid.)
12
recommendation to termination of Mother’s services. The court granted the
request. During a subsequent hearing, J.M.’s attorney stated that J.M.
wished for Mother to continue getting as much help as possible but did not
want to reunify.
In its November 2022 report, the Agency recommended terminating
Mother’s services, citing the suspension of her visitation, her lack of insight
into the protective issues of domestic violence and substance abuse despite
significant treatment, her denial of any mental health concerns, and her use
of violence and hostility “against the Agency, caregivers, the father, and
service providers she does not agree with.” In the Agency’s view, “Mother has
not demonstrated the capacity and ability to complete the objectives of her
treatment plan and provide for the child’s safety, protection, and physical and
emotional well-being.”
The court held a contested 12-month review hearing on December 8,
2022. Mother’s counsel admitted into evidence a letter and a “Response to
Addendum” from Mother. He argued that the Agency and caregivers created
a rift between Mother and J.M., which interfered with visitation. As to her
case plan, counsel submitted that Mother had made substantial progress
because she completed a substance abuse treatment program, a parenting
education course, and domestic violences services, in addition to testing
negative for controlled substances. He relayed Mother’s view that the only
reason she had not made as much progress in individual therapy was because
she had “been ping-ponged around with different providers who have been
unable to work with her.” The Agency contended that despite completing all
of these services, Mother had not made significant progress in resolving the
problems that led to removal because she still had not taken responsibility or
learned the things she needed to learn to safely parent J.M. J.M.’s counsel
13
joined the Agency’s request to terminate services, citing Mother’s lack of
insight and continued volatility. She also argued the court should maintain
its detriment finding as to Mother’s visitation and said that J.M. did not want
to live with Mother.
The juvenile court found by clear and convincing evidence that
reasonable services had been offered to both parents but did not elaborate on
that finding. It then found there was a substantial probability J.M. would be
returned to Father by the 18-month review but concluded Mother had not
met the standard. In particular, the court noted that Mother’s visitation had
not been consistent and regular and that, although Mother had completed
some programs, “[c]ompletion of programs does not equate to significant
progress.” The court said, “the evidence that has been submitted in the
reports indicates, still, a lack of acknowledgment in the mother’s role in the
incident, the limited or lack of insight on the cycle of violence, [and] the lack
of acknowledgment of understanding the impact of those incidents on the
minor.” As to the third prong of the test, the court noted that Mother’s mood
was still “unstable” and “volatile,” and though her “violence and hostility”
was now being directed at others instead of Father or J.M., the totality of the
evidence indicated that Mother “ha[d] not, at this point, demonstrated the
capacity and ability to complete the objectives of the treatment plan.” The
court concluded there was no substantial probability that J.M. would be
returned to Mother by the 18-month date and terminated her reunification
services.
14
DISCUSSION
I.
Mother Did Not Waive Her Claim of Error
The Agency argues Mother waived her claim that the trial court erred
as to its finding of reasonable services because she did not raise the issue at
the time she requested a contested 12-month review hearing. We disagree.
Courts and parties frequently use the terms “forfeiture” and “waiver”
interchangeably, but they are distinct legal concepts. Where, as here, the
claim is that a party gave up the right to challenge an issue on appeal
because the party could have timely objected or otherwise raised the issue in
the trial court but did not, the proper term is forfeiture. (In re S.B. (2004) 32
Cal.4th 1287, 1293.) The purpose of the forfeiture rule is “to encourage
parties to bring errors to the attention of the trial court, so that they may be
corrected.” (Id. at p. 1293.) This forfeiture principle applies equally to
dependency matters and precludes a party from “standing by silently until
the conclusion of the proceedings.” (In re Dakota H. (2005) 132 Cal.App.4th
212, 222.)
Here, we conclude Mother sufficiently brought her contention that the
Agency failed to provide reasonable reunification services to the juvenile
court’s attention and preserved the issue for appeal. At the November 2022
12-month review hearing, Mother requested a contested hearing on the issue
of “continued services.” During the contested 12-month review hearing on
December 8, 2022, Mother’s counsel addressed the factors set forth in section
366.21, subdivision (g)(1), in arguing that services should be continued to the
18-month date because there was a substantial probability J.M. would be
returned. Counsel highlighted that Mother had not made much progress in
individual therapy “because she has been ping-ponged around with different
15
providers who have been unable to work with her.” Counsel also admitted
into evidence Mother’s letter in which she explained that she had been
“waiting for a Term Therapist since the last referral was unable to accept
[her] case.” In her “Response to Addendum,” Mother further stated: “My
only goal is to reunite with my only child, and despite individual therapy
being requested by the court, and my child, I have been ping ponged around
for over a year and a half through no fault of my own, and [am] finally on
session three as of this week. For this reason of extreme delay that was out
of my control, among other reasons I am requesting an exten[s]ion of time to
allow progress with visitation while pursuing the individual therapy as
originally ordered a year and a half ago.” Collectively, this evidence and
argument made clear Mother’s view that she had not been provided
reasonable individual therapy, as ordered, during the reunification period.
We do not believe it can reasonably be said that Mother stood by silently and
forfeited this claim on appeal.
II.
Substantial Evidence Does Not Support the Juvenile Court’s Finding That
Reasonable Services Were Offered
Mother contends the Agency did not offer her reasonable services
because she was not provided with an individual therapist qualified and
willing to deal with her diagnosed mental health needs until one month
before the contested 12-month review hearing. And so she argues the trial
court erred in finding the Agency offered her reasonable services. On this
record, we agree.
The law typically requires the juvenile court to order family
reunification services for the mother and father of a child who has been
removed from parental custody and placed under the court’s jurisdiction.
(§ 361.5, subd. (a).) These services are subject to statutory time limitations.
16
If, as in this case, the child was older than three years of age upon removal,
“court-ordered services shall be provided beginning with the dispositional
hearing and ending 12 months after the date the child entered foster care as
provided in [s]ection 361.49, unless the child is returned to the home of the
parent or guardian.” (§ 361.5, subd. (a)(1)(A).)
During the reunification stage, the juvenile court ordinarily holds
review hearings at six-month intervals to evaluate the status of reunification
efforts and appropriate next steps. (Michael G. v. Superior Court of Orange
County (2023) 14 Cal.5th 609, 625 (Michael G.); § 366.21.) “If, at the six- or
12-month status review hearing, the court finds that there is a substantial
probability the child may be returned to her parent within six months, or
that reasonable services were not provided to the parent, the court extends
reunification services for an additional six months rather than proceed to the
final stage of dependency proceedings, permanency planning.” (Michael G.,
at p. 625.) The court may not set a section 366.26 hearing “unless there is
clear and convincing evidence that reasonable services have been provided or
offered to the parent or legal guardian.” (§ 366.21, subd. (g)(1)(ii).)
The purpose of reunification services is “ ‘to facilitate the return of a
dependent child to parental custody.’ ” (In re Jaden E. (2014) 229
Cal.App.4th 1277, 1281.) “The agency must make a good faith effort to
develop and implement reasonable services responsive to the unique needs of
each family. [Citation.] The effort must be made, in spite of difficulties in
doing so or the prospects of success. [Citations.] The adequacy of the
reunification plan and of the agency’s efforts to provide suitable services is
judged according to the circumstances of the particular case.” (Christopher
D. v. Superior Court (2012) 210 Cal.App.4th 60, 69 (Christopher D.).)
17
We review a juvenile court’s finding that reasonable services were
provided for substantial evidence. (T.J. v. Superior Court (2018) 21
Cal.App.5th 1229, 1238 (T.J.).) “Consistent with well-established principles
governing review for sufficiency of the evidence, in making this assessment
the appellate court must view the record in the light most favorable to the
prevailing party below and give due deference to how the 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, 996.)10
Turning to the facts of this case, we note the Agency had notice at the
inception of the case, based on prior referrals, that Mother likely had mental
health issues. But this came from nonprofessionals and largely
10 Effective January 1, 2023, section 366.21 requires the juvenile court’s
finding that reasonable services were offered to be supported by clear and
convincing evidence. The prior version of section 366.21, which was in effect
at the December 8, 2022 contested 12-month review hearing in this case, did
not specify the standard of proof required at the 12-month review hearing
unless the court simultaneously set a section 366.26 hearing (which it did not
in this case). Thus, the default burden of proof would have been the
preponderance of the evidence standard. (In re Misako R. (1991) 2
Cal.App.4th 538, 547–548 citing Evid. Code, § 115.)
The court here applied the clear and convincing evidence standard.
But because this higher burden of proof was not required at the time of the
decision, we do not apply the heightened standard of review applicable to
decisions made by clear and convincing evidence in assessing whether the
juvenile court based its determination on sufficient evidence. (See
Conservatorship of O.B., supra, 9 Cal.5th at pp. 995–996 [“when reviewing a
finding that a fact has been 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”].) Nonetheless, for reasons we shall
explain, substantial evidence did not support the finding under either
standard of proof.
18
unsubstantiated allegations. However, in January 2022, Mother’s substance
abuse counselor (Talmadge) notified the Agency of a possible personality
disorder. In March 2022, she recommended a psychological evaluation. In
April 2022, Talmadge again recommended a psychological evaluation;
Mother’s domestic violence group therapist (Najera) noted the possibility of a
mood or personality disorder; and the Incredible Families clinician stated
that Mother’s mental health was impeding her progress.
Although the Agency arguably knew from the beginning of the case
that a mental health problem was a, if not the, primary issue underlying
Mother’s inability to safely parent J.M., by April 2022, it was abundantly
clear that Mother's psychological issue—which most likely was a personality
disorder—was hampering her ability to make progress on her case plan. By
mid-July, the Agency had professional confirmation via the psychological
evaluation that Mother: (a) had traits consistent with paranoid personality
disorder; (b) was unable to accurately assess her own needs; and (c) had a
“compromised” ability to seek help. Therefore, the Agency was required to
make a good faith effort to develop and implement reasonable services
responsive to these mental health needs, even if it was difficult to do so. (See
Christopher D., supra, 210 Cal.App.4th at p. 69.)
Unfortunately, the Agency was not able to implement appropriate
services responsive to Mother’s mental health needs. For unexplained
reasons, the Agency did not receive the psychological evaluation until a
month and a half after it seemingly was completed. Then there was another
one-month delay before the Agency submitted a referral for individual
therapy. Mother did not actually receive therapeutic treatment at this time
because the assigned therapist, Guynn, relied on her denial of need as
grounds for discharging her from therapy, even though she had been
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diagnosed as unable to assess her own needs. His statements also suggest he
did not have sufficient experience with personality disorders to treat her.
There was then another delay of over a month between when the Agency
learned Guynn was not going to treat Mother and when she was assigned to
Dr. Matthews in November 2022. Though Dr. McCullaugh may have been
responsible for part of the delay, and OPTUM may have misled the Agency
regarding Guynn’s qualifications, the end result was that Mother was not
“provided or offered” reasonable services during this time frame. (§ 366.21
subd. (f)(1)(A); see also T.J., supra, 21 Cal.App.5th at p. 1244 [vacating
reasonable services finding, even though the mother was responsible for part
of the delay, where the mother was only able to engage in two individual
therapy sessions before the Agency recommended termination of services].)
Ultimately, the delays resulted in Mother not having access to individual
therapy targeted to her diagnosed needs for virtually the entire period
between the contested six-month review hearing in June 2022 and the
contested 12-month review hearing in December 2022.
The juvenile court relied on, as the Agency urged, the Agency’s
provision of domestic violence, substance abuse, and family therapy services
to find that the Agency provided reasonable services. But Mother’s providers
universally agreed that her mental illness impaired her ability to make
progress in these other services. Thus, the effective lack of treatment for her
mental health issues inhibited Mother’s ability to benefit from any of the
other programs.
“To support a finding reasonable services were offered or provided, ‘the
record should show that the supervising agency identified the problems
leading to the loss of custody, offered services designed to remedy those
problems, maintained reasonable contact with the parents during the course
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of the service plan, and made reasonable efforts to assist the parents in areas
where compliance proved difficult. . . .’ [Citation.] ‘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.’ ” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415,
1426.) In this case, the Agency identified traits consistent with a paranoid
personality disorder as interfering with Mother’s ability to parent J.M. and to
benefit from the other services. It also acknowledged at the six-month review
hearing that mental health treatment would lessen J.M.’s resistance to
reunifying with her. Given that showing consistent and positive visitation
was vital to Mother’s efforts to reunify with J.M., prompt provision of
individual therapy services was also key to her efforts to regain visitation.
Yet Mother was not given the opportunity to even begin individual therapy
geared toward treating her specific mental health concern until after she
completed all of the other services and until after her second six-month
window for proving visitation would no longer be detrimental had closed.
As a result, it cannot be said that the Agency offered services designed
to give Mother a realistic chance to remedy the problems that resulted in her
loss of custody. And, by extension, it was not reasonable for the juvenile
court to conclude that Mother had not “demonstrated the capacity and ability
to complete the objectives of the treatment plan” when she had not been
provided with the one service—individual therapy—directed to actually
improving her ability to complete the treatment plan objectives. Under these
circumstances, we believe Mother has met her burden of demonstrating “that
there is no evidence of a sufficiently substantial character to support the
juvenile court’s order.” (Christopher D., supra, 210 Cal.App.4th at p. 70.)
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We are cognizant of the fact that neither the Agency nor the juvenile
court could provide Mother the six months to a year Dr. McCullaugh opined it
would take for Mother to “develop and sharpen skills to cope with the issues
she is currently facing” before even beginning the other necessary services.
But she did not have the opportunity to even show progress. As previously
noted, reasonable services must be offered regardless of the prospects of
success. (Christopher D., supra, 210 Cal.App.4th at p. 69.) The record
demonstrates that Mother is difficult to work with, but she showed
willingness to attend therapy with Dr. Matthews and deserved a reasonable
amount of time to demonstrate progress.
We offer no opinion as to whether Mother will be able to overcome the
roadblocks to reunification with appropriate services. But for the reasons we
have discussed, we conclude substantial evidence did not support the juvenile
court’s finding at the contested 12-month review hearing that the Agency
offered reasonable services.11
11 The Agency requests that we take judicial notice of a minute order from
the 18-month review hearing held after the filing of the instant appeal. “It
has long been the general rule and understanding that ‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of
matters which were before the trial court for its consideration.’ ” (In re Zeth
S. (2003) 31 Cal.4th 396, 405.) Although we may, under limited
circumstances, consider additional evidence, we decline to do so here. There
is no evidence the juvenile court has terminated jurisdiction so regardless of
the current procedural posture of the case, our conclusion remains relevant to
the underlying proceedings. If J.M. is out of her custody, Mother would be
entitled to an additional period of reunification services. (In re A.G. (2017) 12
Cal.App.5th 994, 1005 [[t]he remedy for the failure to provide court-ordered
reunification services to a parent is to provide an additional period of
reunification services to that parent”].) And even if J.M. has been returned to
Father’s custody, “[a]n erroneous reasonable services finding may have
consequences for the parent if the child is removed again from the other
parent’s custody during the dependency proceedings (§ 361.5, subd (a)(1)
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DISPOSITION
The December 8, 2022 order finding that the Agency offered reasonable
services is vacated and the order terminating Mother’s reunification services
is reversed.
DO, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
[time limitations on services]), or if the parent is involved in a future
dependency proceeding (see, e.g., § 361.5, subd. (b)(10) [permitting court to
bypass services where parent has not made reasonable efforts to remedy
problems]).” (Ibid.) Additionally, “at the six- and 12-month status hearings,
the court must find that the parent has been provided or offered reasonable
reunification services before the court can proceed to set a hearing to decide
whether to terminate parental rights and select a permanent plan for the
child.” (Michael G., supra, 14 Cal.5th at p. 625.)
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