Taylor J. v. Janet W. , 168 Cal. Rptr. 3d 149 ( 2014 )

Filed 2/21/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re TAYLOR J., a Person Coming Under B248839
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK87897)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JANET W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Mark A.
Borenstein, Judge. Reversed.
Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
________________________________________
Janet W. (Mother) appeals from an order terminating reunification services for her
and her 15-year-old daughter, Taylor J. The sole issue is whether substantial evidence
supports the court’s finding that the Department of Children and Family Services (DCFS)
provided adequate reunification services to the family. (Melinda K. v. Superior Court
(2004) 116 Cal.App.4th 1147, 1158.)1 We conclude that the court’s finding is not
supported by substantial evidence.
FACTS AND PROCEEDINGS BELOW
In August 2011, the juvenile court adjudicated 13-year-old Taylor a dependent of
the court after finding that Taylor’s mother and her stepfather, Joseph P. “have a history
of engaging in violent altercations, in [Taylor’s] presence”; that Joseph P. “was
frequently under the influence of alcohol during these altercations; that on one occasion
Joseph struck Taylor in the face inflicting bruises and scratches; and that Mother failed to
protect Taylor from Joseph.” The court placed Taylor in foster care and ordered DCFS to
provide Mother and Taylor with family reunification services. As part of its case plan the
court ordered Mother to participate in DCFS-approved counseling including a “domestic
violence support group” and “conjoint counseling” with Taylor if recommended by
Taylor’s counselor. The court ordered DCFS to make “low cost” or “no cost” referrals
for counseling.
A month prior to the adjudication hearing, DCFS gave Mother two referral lists,
one of the lists identified an agency in Duarte (near Monrovia where Mother lived) that
provided “domestic violence services.” The other list was seven years old and did not list
any counseling agencies near Mother’s home. Neither list included agencies that offered
individual counseling for adults. The record contains no evidence that Mother attempted
to contact any of these agencies except for the Pacific Clinic discussed below.
At the six-month review hearing held in April 2012, the court received a Status
Review Report from DCFS stating that Mother “will explore enrolling in [a] domestic
1
Mother did not forfeit this challenge by failing to raise it below. (Melinda K. v.
Superior Court, supra, 116 Cal.App.4th at p. 1158.)
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violence program at the Chicana Service Action Center.” The record does not reflect the
result of that exploration. The report also stated that the DCFS worker will follow up
with Mother’s therapist at Pacific Clinic regarding his credentials and, if appropriate, his
assessment regarding Mother’s need to attend Al-Anon. Mother’s complaint that she did
not have the money to pay for parenting classes or individual and conjoint therapy was
rejected by the DCFS worker who pointed out in her report that Mother sent Taylor $30
a week and “over $300 for Christmas.” DCFS also submitted a form signed by
Mother acknowledging that she had been provided with referrals for domestic violence
counseling. The record contains one such referral. Its date is illegible. The hearing
was continued to May 2012 for further evidence and argument. After several more
continuances the hearing was held in October 2012.
At the October 2012 hearing, the court admitted in evidence DCFS reports dated
April 5, May 22, and July 20, 2012. Each report stated that Mother was “non-compliant”
with the court’s counseling requirements.
The April 5 report asserted that Mother was not in compliance with the counseling
component of her case plan. Mother reported that she completed counseling at Pacific
Clinic but DCFS had been unable to confirm that claim with the agency. In addition
DCFS reported that it had not received any information from Mother as to her
participation in a domestic violence support group and an Al-Anon program.
In the May 22 report DCFS advised the court that Mother was not in compliance
with her counseling requirements. The Pacific Clinic program she attended was not a
therapeutic program but a two-session program “focusing on removing barriers to
gainful employment and school.” The domestic violence program Mother claimed
to be attending was not acceptable to DCFS because it was an online program and,
in any event, DCFS had been unable to verify Mother’s participation in the program.
Again, DCFS claimed it had received no information that Mother was participating in an
Al-Anon program.
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The July 20 DCFS report stated that Mother was not complying with the
court’s counseling requirements because she reported that she was not participating in
counseling, not participating in a domestic violence support group and not participating
in Al-Anon meetings.
Despite being told by DCFS that Mother was “non-compliant” with all of her
counseling requirements, the court found that: “Mother has . . . made significant progress
in resolving the problems that led to the child’s removal from the home, and that she has
demonstrated the capacity and ability both to complete the objectives of her treatment
plan and to provide for the children’s [sic] safety, protection, physical and emotional
well being. The court finds that there is a substantial probability that the child(ren) [sic]
will be returned to the custody of the parents [sic] within the next period of review and
continues family reunification services.” Taylor remained in foster care.
On December 1, 2012, Mother moved to Victorville in San Bernardino County.
The record shows, and Respondent concedes, that DCFS never gave Mother any
San Bernardino County referrals.
The 18-month review hearing was held in March 2013. The court admitted reports
from DCFS dated January 17 and March 14, 2013. Again, the reports advised the court
that Mother was not in compliance with the court’s counseling requirements.
In the January 17 report DCFS advised the court that it had provided referrals for
the court-ordered counseling programs on four occasions “[y]et, as of the writing of this
report neither mother nor step-father have completed any of the court orders made
16 months ago at the Disposition hearing.” The report went on to state that “[Mother]
has not made any progress in her court orders [sic] and is not in compliance with her case
plan.” DCFS reiterated that Mother’s participation in online programs was not sufficient
to meet her counseling obligations.
The March 14 report stated that DCFS warned Mother in November 2012 that it
did not approve online courses and that it was “imperative that mother engage in the
court ordered programs in person as opposed to online courses.” Because Mother did not
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show participation in any courses that were not online, “DCFS stands by its previous
statements that [Mother] did not comply with any of the orders made by the Court.”
With respect to conjoint counseling with Taylor, the report stated that Mother told the
DCFS worker she and Taylor “have a great relationship” and “do not have a need for
therapy.” Mother also said that she is working four to five days a week, going to school
and lives over 90 miles from Taylor’s foster home so there was no way she could go to
Long Beach for counseling sessions.
Although just five months earlier the court found that Mother was making
“significant progress” and found a “substantial probability” that Taylor would be returned
to Mother’s custody within the next review period, this time the court found that despite
“reasonable efforts” by DCFS to enable Taylor’s safe return home, Mother “is not in
compliance with the case plan” and Taylor’s return to Mother’s physical custody “would
create a substantial risk of detriment to the physical/emotional well-being of the minor.”
The court terminated family reunification services but did not terminate Mother’s
parental rights. The court ordered that Taylor remain in foster care and that Mother have
unmonitored visits.
Mother filed a timely appeal from the termination of family reunification
services.2
2
Stepfather, Joseph P., is not a party to this appeal.
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DISCUSSION
Mother contends that the court erred in terminating reunification services because
substantial evidence does not support the court’s finding DCFS provided reasonable
reunification services. We agree.
Family preservation is the first priority in dependency proceedings unless parental
rights are terminated. Reunification services implement the law’s strong preference for
maintaining the family relationship if at all possible. Consequently DCFS must make a
“‘“good faith effort”’” to provide reasonable services responsive to the unique needs of
each family through a plan that is “‘specifically tailored to fit the circumstances of each
family [citation], and . . . designed to eliminate those conditions which led to the
juvenile court’s jurisdictional finding. [Citation.]’” The effort must be made to provide
reasonable reunification services in spite of difficulties in doing so or the prospects of
success. The adequacy of the reunification plan and of the department’s efforts to
provide suitable services is judged according to the circumstances of the particular case.
(Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011.) In other words,
Mother’s difficulty meeting the case plan’s requirements does not excuse the agency
from continuing its effort to bring Mother into compliance with the court’s orders.
It is undisputed that Mother did not complete the domestic violence victim
counseling and individual therapy ordered by the court. DCFS, and to some extent, the
court, however, share the blame in the failure.
Mother could have made more of an effort to find DCFS-approved, accessible
counseling services. For example, there is no evidence that she followed up on
counseling at the Chicana Service Action Center or that she investigated other agencies
on the DCFS referral list even though the list was out of date. Furthermore, Mother
should have known that Pacific Clinic’s two-hour session on eliminating barriers to
employment and school was not what the court had in mind when it ordered individual
counseling.
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The juvenile court injected uncertainty into the counseling requirement when it
found that Mother was making “significant progress” in resolving the problems that led
to Taylor’s dependency at the same time DCFS was reporting Mother was not in
compliance with her counseling requirements.
The foremost blame, however, lies with DCFS because it, not the parent or
the court, is charged by the Legislature with providing reasonable family reunification
services. (Welf. & Inst. Code, § 361.5, subd. (a).) Family reunification services are not
“reasonable” if they consist of nothing more than handing the parent a list of counseling
agencies when the list contained the name of only one domestic violence victim
counseling agency in proximity to Mother’s home. Furthermore, although Mother was
ordered to participate in individual counseling, the list did not contain the names of
individual counseling agencies.
The record contains other examples of DCFS failing to provide reasonable
services to Mother. Although the court ordered DCFS to provide Mother with referrals to
“low cost” or “no cost” counseling, when Mother told the DCFS worker that she needed
money for counseling the worker’s response was only to note that Mother “was sending
Taylor $30 each week and over $300 for Christmas.”
DCFS knew in July 2011 that Mother was enrolled in counseling at Pacific Clinic
but did not investigate the appropriateness of that counseling until nearly a year later, in
May 2012. It was the DCFS worker’s duty “to maintain adequate contact with the
service providers and accurately to inform [Mother] of the sufficiency of the enrolled
programs to meet the case plan’s requirements.” (Amanda H. v. Superior Court (2008)
166 Cal.App.4th 1340, 1347.) The record does not show that after DCFS determined the
Pacific Clinic program was inadequate it gave Mother any advice or assistance in
locating an approved program.
There is no evidence that at the time the court ordered Mother to participate in
counseling, DCFS advised her that online programs were unacceptable. It was not until
five months before the 12-month review hearing that the DCFS worker found out that
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Mother was participating in an online domestic violence program and told Mother online
programs were not acceptable to DCFS. The record does not show that the worker made
any effort to assist Mother to find an alternative person-to-person program in the vicinity
of her home and one that she could afford.
Despite the court’s order at the 12-month review that DCFS continue providing
family reunification services to Mother and Taylor, it is undisputed that DCFS provided
no reunification services to Mother between the 12- and 18-month reviews. DCFS argues
it was excused from providing further reunification services because at the 12-month
review Mother claimed that she had completed the required counseling programs. Thus,
DCFS claims, any error it committed in not providing Mother further counseling
referrals after being told to do so at the 12-month review was “induced” by Mother
and cannot be raised on appeal because of the “doctrine of invited error.” We do not
agree. As discussed above, DCFS did not accept Mother’s claims that she had completed
her programs. It told her the online programs were not acceptable. It cannot now claim
that it was “induced” into not providing services because Mother claimed she no longer
needed them.
On the record before us, DCFS failed to demonstrate that it provided Mother and
Taylor with reasonable reunification services. “The remedy for a failure to provide
reasonable reunification services is an order for the continued provision of services, even
beyond the 18-month review hearing.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 975.)
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DISPOSITION
The court’s order terminating family reunification services is reversed and its
finding that appellant received reasonable reunification services is vacated. The cause is
remanded to the court to enter a new order finding that reasonable reunification services
were not provided and to order the Department of Children and Family Services to
provide such services for a period of time the court deems reasonable.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, Acting P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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