In re Aiden A. CA2/3

Filed 1/26/22 In re Aiden A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re AIDEN A., a Person Coming B313238
Under the Juvenile Court Law.
TYLER A., Los Angeles County
Super. Ct. No.
Petitioner, 19CCJP06085A
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Marguerite D.
Downing, Judge. Petition denied.
Law Offices of Vincent W. Davis & Associates and
Vincent W. Davis for Petitioner.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel, for Real Party in Interest Department of Children and
Family Services.
Michael T. Ono, under appointment by the Court of Appeal,
for Real Party in Interest Aiden A.
_______________________________________
INTRODUCTION
Tyler A. (father) petitions for extraordinary relief from the
juvenile court’s order terminating reunification services and
setting a selection and implementation hearing under Welfare
and Institutions Code section 366.26.1 Father contends the court
erred by finding that the Department of Children and Family
Services (Department) provided him with reasonable
reunification services. Specifically, father argues he should have
been provided with additional services to address sexual and
physical abuse because the abuse was the reason the court found
it would be detrimental to return father’s son to his care. He does
not challenge the detriment finding itself, however. We conclude
substantial evidence supports the court’s order, and father has
failed to establish what additional reunification services should
have been provided to him. The petition is denied.
1 Allundesignated statutory references are to the Welfare and
Institutions Code.
2
BACKGROUND
Aiden A. (born 2016) is the son of father and Mariah N.
(mother).2
1. Assumption of Jurisdiction
The family came to the Department’s attention in May
2019 due to mother’s substance abuse and mental health
problems. At the time, the family was living with maternal
relatives. In August 2019, however, the family was asked to leave
the home because of mother’s heroin use; they moved into a
motel.
On September 13, 2019, during a visit to the family’s motel
room, a social worker noticed a strong marijuana odor and saw
marijuana and a marijuana pipe on a nightstand within Aiden’s
reach. Father tried to hide the pipe and claimed it was the first
time mother had smoked marijuana in the room. Father tested
negative for drugs later that day.
On September 18, 2019, the Department filed a juvenile
dependency petition under section 300, subdivision (b)(1), on
behalf of Aiden, who was then almost three years old. The
petition alleged that mother had mental health problems for
which she failed to take prescribed medication (count b-1) and a
history of substance abuse (count b-2) and that father failed to
protect Aiden from these issues (counts b-1 & b-2). It also alleged
that mother and father created a detrimental, endangering home
environment by leaving marijuana, drug paraphernalia, and
alcohol within Aiden’s reach (count b-3).
2 Because mother is not a party to this proceeding, we focus on the
facts relevant to father.
3
On November 22, 2019, at a combined jurisdiction and
disposition hearing, the court sustained the petition, declared
Aiden a dependent of the court, and removed him from parental
custody. The court granted the parents monitored visits and
ordered reunification services. Father’s case plan included: six
random drug tests with a full drug program in the event of any
missed or positive test, parenting classes, and individual
counseling to address case issues. The court also ordered services
to address Aiden’s speech delays.3
2. Six-Month and 12-Month Reviews
On February 24, 2020, the Department notified the court
that father had moved to his mother’s house in Arizona.
That spring, father completed online parenting classes, was
participating in individual therapy, and had tested negative for
drugs twice but failed to appear for seven tests. Before the Covid-
19 outbreak, father had been driving intermittently from Arizona
to visit Aiden and was appropriate during visits. After the
outbreak, father’s visits were scheduled for twice per week via
video. Father was consistent with the virtual visits.
On May 21, 2020, Aiden underwent a forensic examination
because he was acting out sexually; the examination was
inconclusive.
On September 15, 2020, the court conducted a six-month
review hearing (§ 366.21, subd. (e)). The court found father was
in partial compliance with his case plan and ordered the
Department to continue providing him with reunification
3 Aiden was later found to have a language disorder.
4
services, but found returning Aiden to father’s custody would
create a substantial risk of detriment to the child’s well-being.
On December 21, 2020, the court held the 12-month review
hearing (§ 366.21, subd. (f)(1)). The court again found returning
Aiden to father’s custody would create a substantial risk of
detriment to the child’s well-being. The court found that father
had made substantial progress in his case plan, however, and
authorized him to host Aiden for a two-week visit in Arizona.
3. 18-Month Review Period
Aiden visited father in Arizona from December 30, 2020
through January 17, 2021. Aiden was comfortable with father
and did not want to leave his side at the end of the trip. On the
way back to California, Aiden vomited and cried for father.
When he returned to his foster placement, however, Aiden
appeared sad and announced to the caregiver and social worker,
“My dad touched my pee-pee again.” Aiden then explained that
father had touched him inappropriately while he was on father’s
bed playing video games. Aiden went on to report the allegation
to several other adults, including his teacher, mother, and
therapist; he repeated the allegations every time he saw the
social worker. Aiden also reported that father hit him on the
shoulder with an open hand. Father denied the allegations and
requested a polygraph test. He said he would never touch his son
or any child inappropriately. The results of the subsequent
investigation were inconclusive, and the Department scheduled a
forensic examination.
On April 2, 2021, Aiden underwent a forensic examination
for possible sexual abuse. According to a Last Minute Information
filed by the Department on May 10, 2021, the assessment
concluded that Aiden had “consistently and clearly disclosed
5
inappropriate touching of his genitalia and being hit, causing
pain to his shoulder and back area by his biological father …
during his extended holiday visit. The report stated that the
disclosures made by Aiden are highly suspicious for sexual and
physical abuse and that there are further concerns that father is
grooming Aiden by continuously buying multiple gifts and toys.”
The Information also noted that during a virtual visit between
father and Aiden on May 4, 2021, father said he missed Aiden,
and Aiden replied, “You don’t miss me because you touched my
pee-pee and hit me.”
At the June 17, 2021, 18-month review hearing (§ 366.22,
subd. (a)(1)), Aiden’s attorney argued that the court should
terminate reunification services, noting that although previous
reports had been unclear because of Aiden’s limited verbal
ability, since the holiday visit, Aiden had consistently and clearly
disclosed inappropriate touching.
Father asked the court to return Aiden to his care or,
alternatively, to continue family reunification services. Counsel
noted that father had “been in constant communication with the
case worker” and had finished his case plan. As to the allegations
of sexual abuse, counsel argued that Aiden appeared to have been
coached and had made no such claims to the Arizona child
welfare agency.
The Department asked the court to terminate reunification
services. The Department argued that “it is extremely concerning
that this child has made consistent statements of sexual abuse to
basically anyone who comes into contact, and the Department
does not, at this time, have any belief or thought that he appears
to be coached. There does not seem to be any ulterior motive by
the caretaker, who was supportive, earlier, of father’s extended
6
visit that he had. So I—I just don’t see that there is anything
other than maybe what is represented by Aiden.”
The court held that returning Aiden to father’s physical
custody would create a substantial risk of detriment to his safety,
protection, and physical and emotional well-being. The court
found that father was in compliance with his case plan, but
explained, “given the last forensic exam, when it appears there
was sexual abuse or—and/or physical abuse, it would be
irresponsible of me to send this child out of the State of California
where the Department does not have eyes on it to ensure Aiden’s
protection.” The court held that the Department had made
reasonable efforts to aid reunification and noted that father had
received 20 months of reunification services, then terminated
services and set a permanency-planning hearing.
On June 23, 2021, father filed a notice of intent to file a
writ petition challenging the June 17, 2021 order. On October 14,
2021, we stayed the section 366.26 hearing scheduled for
October 18, 2021. Father filed the writ petition on November 22,
2021, and later that week, we issued an order to show cause
stating our intent to decide the matter on the merits.
DISCUSSION
Father contends the reunification plan was unreasonable
because although it addressed the original causes of dependency
jurisdiction—his failure to protect Aiden from mother’s drug use
and mental health problems—the Department subsequently
recommended terminating services for reasons that had not
caused Aiden to become a dependent of the court. Although father
did not raise this issue below, we exercise our discretion to reach
the merits of his claim.
7
1. Legal Principles and Standard of Review
“The purpose of the California dependency system is to
protect children from harm and to preserve families when safe for
the child. [Citations.] The focus during the reunification period is
to preserve the family whenever possible. [Citation.] Until
services are terminated, family reunification is the goal and the
parent is entitled to every presumption in favor of returning the
child to parental custody. [Citations.] After reunification services
are terminated, the focus is to provide the child with a safe,
permanent home. [Citation.]
“At a status review hearing, the court must return the child
to the physical custody of his or her parent unless the Agency
proves, by a preponderance of the evidence, that return to the
parent would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.
[Citations.] The court may not set a section 366.26 hearing at a
six-month or 12-month review hearing unless it finds by clear
and convincing evidence reasonable services have been offered or
provided to the family. [Citations.] At the 18-month review
hearing, the court may continue the hearing under section 352 if
it finds that reasonable family reunification services have not
been offered or provided to the parents. [Citation.]” (Tracy J. v.
Superior Court (2012) 202 Cal.App.4th 1415, 1423–1424.)
The Department must make a good faith effort to develop
and implement the family reunification plan. (In re Jasmon O.
(1994) 8 Cal.4th 398, 424.) Reunification services should be
tailored to the particular needs of the family. (David B. v.
Superior Court (2004) 123 Cal.App.4th 768, 788.) The
Department’s efforts must, therefore, be judged according to the
circumstances of each particular case. (In re Taylor J. (2014) 223
8
Cal.App.4th 1446, 1451.) “However, to make the requisite
findings, 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 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 court’s reasonable-services finding for
substantial evidence from which the court could conclude there
was clear and convincing evidence that the Department provided
reasonable services. (In re Alvin R. (2003) 108 Cal.App.4th 962,
971.) In determining whether substantial evidence exists, we
review the evidence in the light most favorable to the prevailing
party and indulge all legitimate and reasonable inferences to
uphold the ruling. (In re Misako R. (1991) 2 Cal.App.4th 538,
545.) The standard is not whether the services provided were the
best that might have been provided, but rather whether they
were reasonable under the circumstances. (Id. at p. 547.)
2. Substantial evidence supports the court’s reasonable-
services finding.
Father argues that the court should have granted him
additional reunification services because the Department “did not
correctly identify the new problem leading to loss of custody,” did
not provide reasonable services “as it relates to the alleged
physical and/or sexual abuse,” and “did not make any simple
effort to remedy the problem of potential physical and/or sexual
abuse.”
9
First, the allegations of sexual abuse were not a “new
problem leading to the loss of custody.” Aiden was removed from
father’s care based on his failure to protect his son from mother’s
drug and mental health problems. The abuse allegations made it
unsafe to return Aiden to father’s custody. Likewise, the
Department did not seek to terminate services because of the
abuse allegations. It did so because, after 20 months of
reunification services, it was unsafe to return Aiden to father’s
care. (See § 366.22, subd. (a)(1) [at the 18-month review hearing,
the juvenile court must return the child to the parent’s custody
unless it would be detrimental to do so]; id., subd. (a)(3) [if the
child is not returned to the parent’s custody, the court must
terminate reunification services and set a permanency-planning
hearing].)
To be sure, the court’s reason for not returning Aiden home
(risk of sexual and physical abuse) differed from the court’s
reasons for assuming jurisdiction (mother’s drug use and father’s
failure to protect), and there is some question about the propriety
of that approach. (See In re Joseph B. (1996) 42 Cal.App.4th 890,
899–901 [if return of child to parental custody would be
detrimental, out-of-home placement must continue
notwithstanding parent’s completion of reunification plan and
correction of problems that necessitated jurisdiction]; but see In
re Dustin R. (1997) 54 Cal.App.4th 1131, 1140 [construing
Joseph B. narrowly as applying “only when the risk of detriment
at the 18-month hearing was caused by the parent’s actions
leading to the out-of-home placement”].) But father does not
challenge the court’s detriment finding.
Second, father has not established what specific services
would be reasonable under these circumstances. Instead, he
10
suggests that the Department “could have provided individual
therapy and/or family therapy and/or other referrals to address
the concern the [D]epartment may have.” He fails to
acknowledge, however, that he received individual therapy;
apparently, it did not help. Moreover, father’s only response to
the allegation of sexual abuse was to deny it. It is unclear how
additional therapy would be able to address an issue father
doesn’t acknowledge exists. Nor does father suggest what “other
referrals” would be pertinent to a parent who denies sexually
abusing his child. (See In re Gabriel K. (2012) 203 Cal.App.4th
188, 197 [“One cannot correct a problem one fails to
acknowledge.”].)
Certainly, father had the right to contest the allegations
against him—but he chose not to. As noted above, father does not
challenge the court’s detriment finding. And although the finding
was based primarily on a few sentences in a Last Minute
Information, father has never raised any due process concerns
concerning this procedure. At the hearing below, father did not
seek to testify, ask to examine the social worker who prepared
the Last Minute Information, object to the admission of that
document, or seek admission of the full forensic examination
report.4 Nor did he attempt to examine any of the other
individuals to whom Aidan had reported the abuse. (See In re
J.P. (2017) 15 Cal.App.5th 789, 800 [due process requires that
parents be given the right to cross-examine adversarial
4The report of the forensic examination is not part of the record in this
case, and the record does not reveal whether father’s counsel was
provided with a copy of the full report before the June 17, 2021
hearing.
11
witnesses, such as the caseworker and persons whose hearsay
statements are contained in the reports].)
DISPOSITION
The petition for extraordinary relief is denied. This opinion
is final immediately upon filing. (Cal. Rules of Court,
rule 8.490(b)(2)(A).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
12