In re Matthew C.

Filed 3/17/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re Matthew C., A Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Plaintiff and Respondent, A147877 & A149683
v.
(City & County of San Francisco
STEPHANIE M., Super. Ct. No. JD15-3323)
Defendant and Appellant.
STEPHANIE M.,
Petitioner,
v.
SUPERIOR COURT OF THE CITY AND
COUNTY OF SAN FRANCISCO,
Respondent;
SAN FRANCISCO HUMAN SERVICES
AGENCY, et al.,
Real Parties in Interest.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I Background, D, and II Discussion,
B, C, and D.
1
In these consolidated dependency actions, Stephanie M. (mother) contests the
juvenile court’s detention and dispositional orders temporarily denying her visitation with
her young son—Matthew C. (born October 2015). Specifically, she argues that the
juvenile court abused its discretion in suspending visitation between mother and son
because there was no evidence that monitored visitation would have been contrary to the
minor’s safety. In addition, mother challenges by writ petition the juvenile court’s
October 2016 decision to terminate her reunification services with respect to Matthew
and refer the boy for permanency planning pursuant to section 366.26 of the Welfare and
Institutions Code.1 In particular, mother disputes the evidentiary bases for the juvenile
court’s findings that she failed to participate regularly and make substantive progress in
court-ordered treatment, that there was no substantial probability that Matthew could be
returned to her care within statutory timeframes, and that reasonable services were
provided to her. In the published portion of this opinion, we join the Third District in
concluding that parental visitation may be denied during the reunification period if such
visitation would be inconsistent with the physical or emotional well-being of the child.
(See In re T.M. (2016) 4 Cal.App.5th 1214 (T.M.).) Using this standard, we affirm the
juvenile court’s challenged visitation orders. In the unpublished portions of this opinion,
we consider and deny mother’s writ petition.
I. BACKGROUND
A. Initial Dependency Proceedings
On October 23, 2015, the San Francisco Human Services Agency (Agency) filed a
dependency petition pursuant to subdivisions (b) and (j) of section 300, alleging that
Matthew C.—the minor who is the subject of these proceedings— had suffered, or was at
substantial risk of suffering, serious physical harm or illness due to his parents’ substance
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified. All rule references are to the California Rules of Court. On our own motion,
we consolidated these matters for decision on January 6, 2017.
2
abuse and domestic violence.2 In addition, the petition alleged that mother had three
older children, none of whom were in her care. Specifically, mother’s daughter was in a
legal guardianship with the maternal grandmother; her oldest son had an open
dependency case in Santa Clara County where he was residing in a residential program
under a permanent plan of long-term foster care; and the youngest of the three, also a son,
had been privately adopted.
In its detention report filed the same day as the petition, the Agency stated that the
police—responding to a domestic disturbance call on October 20, 2015, at approximately
2:00 a.m.—found mother and father drunk. According to mother, after a few hours of
verbal attacks, father had slapped her three times across the face. She had punched him
on the cheek, leaving a mark. All of this occurred within three feet of newborn Matthew
and despite the fact that mother had an active restraining order against father.
When mother and father were interviewed by Agency social workers the morning
after the domestic dispute, both parents still appeared to be under the influence.
Moreover, as the social workers approached the residence, father was seen outside with a
40-ounce beer, yelling “ ‘take the baby away from her. She doesn’t deserve it.’ ” That
same day, father was arrested for disorderly conduct and public intoxication. Mother
reported that father had had a drinking problem for as long as she had known him
(approximately two years), but claimed that she had been sober for about a year. Prior to
that time, mother had convictions for misdemeanor public intoxication in November 2013
and July 2014. In addition, mother had previously been diagnosed with bipolar disorder.
At the initial detention hearing on October 26, 2015, the juvenile court temporarily
detained Matthew in foster care and continued the matter to the next day for further
hearing. On October 27, the court confirmed the previous detention orders, made
visitation orders, and authorized the Agency to release Matthew to mother at a residential
2
Per mother’s report, Matthew C. (father) is the biological father of Matthew. Father
was declared to be Matthew’s presumed father on October 26, 2015. He is not involved
in these appellate proceedings.
3
treatment program, with the understanding that she would not leave the program with the
child.
In its combined jurisdictional and dispositional report dated November 12, 2015,
the Agency recommended that Matthew be declared a juvenile court dependent and that
he reside with mother in residential treatment under a family maintenance plan. The
Agency also provided some additional background with respect to mother’s drinking and
mental health concerns. On the issue of mental health, mother reported that she was
originally diagnosed with bipolar disorder when she was 15. Although she was
prescribed medication, she did not take it as directed because she did not believe she
needed it. Rather, she ascribed her out-of-control behaviors to teenage rebellion. After
the petition in this matter was filed, mother entered the Jelani House residential treatment
program on October 31, 2015, and discussed her mental health history with the staff
psychiatrist there. According to mother, both she and the psychiatrist felt that a diagnosis
of severe anxiety was more fitting, and thus mother was given a prescription to treat that
condition.
With respect to her drinking, mother had gastric bypass surgery in 2008 and began
drinking excessively in 2009 in the wake of her divorce. She had a history of
homelessness since that time. Mother admitted that she was aware that she was not
supposed to drink alcohol after a gastric bypass because the body absorbs it in an
unhealthy manner. Nevertheless, mother continued to drink, stating that the only times
she made conscious efforts to reduce or discontinue her consistent use were during her
two most recent pregnancies. Mother admitted, however, that, while pregnant with
Matthew, she had relapsed a “couple of times.”
Moreover, mother acknowledged that spending time with father was a catalyst for
her drinking. In the early stages of her pregnancy with Matthew, she reported going to a
five-day detox program, to Safe Harbor for a month, and then to a three-month program
in Santa Clara County, which helped her maintain her sobriety by offering her housing
stability. Mother conceded that, during this time, father was in and out of jail, which
4
added to her ability to remain sober. Nevertheless, mother reunited with father once he
got out of jail, in hopes that they could be a family.
Mother also minimized the domestic violence occurring between the couple,
despite the fact that, at the time of detention, there were four active restraining orders
against father which named mother as the protected person. Further, although father had
been convicted in March and June 2015 for restraining order violations, mother claimed
not to remember the details of the incidents and downplayed their significance. Finally,
father also had a history of domestic violence with other partners, with convictions in
2005 and 2012, as well as a conviction for willful cruelty to a child in 2008.
On the other hand, once Matthew was detained, mother took quick steps to enter a
residential treatment program to address her substance abuse and separate herself from
father. Further, neither mother nor Matthew tested positive for any substances at the time
of the minor’s birth, mother had received consistent prenatal care for Matthew, and
mother cared for the infant in the first days of his life. In addition, mother expressed her
desire to abide by the terms of the restraining order, and, if necessary, to prioritize her
son above her relationship with father. Finally, according to the social worker, mother
acknowledged the seriousness of domestic violence in any relationship, and an “in-depth
conversation” was had with mother “regarding the potential disastrous outcome of
another domestic violence incident in the presence of her young child.” On this basis, the
Agency recommended that Matthew be placed with mother under a family maintenance
plan, on the condition that mother continued to reside in a residential treatment program.
At the combined jurisdictional and dispositional hearing on November 17, 2015,
the juvenile court—after making certain alterations to the petition—determined the
allegations in the amended petition to be true and found Matthew to be a child described
by subdivisions (b) and (j) of section 300. Thereafter, the court declared Matthew to be a
juvenile court dependent and placed him with mother under a family maintenance plan.
This in-home placement was expressly contingent on mother remaining at, and in
compliance with, her residential program. Further, mother was ordered to engage in a
service plan that, in addition to requiring completion of a residential drug treatment
5
program, included participation in a domestic violence support group, individual therapy
addressing trauma and domestic violence, and treatment by a qualified mental health
professional. “Supportive services” were recommended for father as the non-custodial
parent. A six-month review was set for May 2016.
B. The Supplemental Petition
Unfortunately, less than a month later, on December 3, 2015, the Agency filed a
supplemental petition seeking detention of Matthew after mother left residential treatment
with the minor in late November and never returned. According to the detention report
filed that same day, mother had remained sober for approximately two weeks—from
October 31 to November 19—in residential treatment at Jelani House, before transferring
to another treatment facility, Women’s Hope. Matthew was returned to mother’s custody
on November 17 under her family maintenance plan and both mother and son moved to
Women’s Hope on November 20, 2015. Shortly thereafter, mother was authorized by
staff to take Matthew on a day pass for Thanksgiving (November 26) and never returned
with the minor. According to staff, other residents at mother’s treatment facility reported
that mother was in a hotel in San Francisco and was drinking and using drugs. Mother
had also reportedly stated that she was “sick of her son” and was not feeding him.
Several days later, on November 29, 2015, six-week-old Matthew was found
abandoned in a Starbucks at the Great Mall in Milpitas. He was left in a stroller which
also contained a half full bottle of vodka, a few baby items, a journal, and a dependency
drug court reminder with mother’s name on it. Matthew’s physical condition was “very
poor.” He was not properly dressed for the weather, his diaper was soiled, and his
clothes were soaking wet. He was also extremely hungry, immediately drinking two
bottles when they were offered. After he was transported for medical evaluation, hospital
staff assessed that Matthew had a diaper rash, a lesion in a fold on his upper leg, scalding
burns on both of his legs which were determined to be non-accidental, and an adult
human bite mark on his lower left leg.
Apparently, mother and Matthew had reunited with father despite the active
restraining orders precluding father from having contact with mother. At a different
6
location on November 29, mother and father were stopped by the police, as they were
intoxicated in public and had been arguing. Once it was determined that they were the
parents of the abandoned baby, mother and father were interviewed separately. Each
gave different stories regarding Matthew’s whereabouts. Mother, for instance, claimed
that, after she and father had argued that morning, she left the baby with him. She stated
that father later told her that he gave the baby to his sister or possibly to his ex-wife.
Mother then met up with father again about 1:00 p.m. and they started drinking until the
police intervened. In contrast, although the police had not told father where Mathew was
found, father averred that mother had called him earlier that day, stating that she had
abandoned the baby at a Starbucks. Father was eventually taken to jail for violating the
restraining order against him.
Mother next appeared at Jelani House late on the evening of December 1, 2015.
Because she was drunk and reported being badly beaten and bitten by father, staff
allowed her to stay the night before she was taken to the hospital for detoxification.
Reportedly, she brought a bottle of vodka with her to the hospital under her jacket. When
the social worker spoke to her in the emergency ward on December 2, however, mother
stated that she was going to go into a program and get her baby back.
At the detention hearing on December 4, 2015, mother was not present as she
remained hospitalized. She had been in contact with her attorney, however, and agreed to
submit to detention. The juvenile court detained Matthew. Thereafter, it refused to
order visitation between mother and son, concluding that, at that point, it would be
detrimental to the best interest of the child to have any contact with mother.
In its dispositional report on the supplemental petition, filed January 25, 2016, the
Agency again related mother’s history of drinking and mental health issues. The Agency
also stressed that mother had been court-ordered to complete a substance abuse program
on at least two occasions as a condition of probation, but had failed to do so. In addition,
most recently, she had been involved in Jelani House, Women’s Hope, and the Avenues
for treatment, but did not complete any of those programs. Indeed, although mother went
to the Avenues, a mental health program, after Matthew was detained for the second time
7
and could have stayed there for two weeks, she chose instead to leave in order to reunite
with father upon his release from jail. Reportedly, mother told staff at the Avenues that
she was going to return to father, despite the restraining orders, because she wanted to be
a family with him. Moreover, while in the program, she showed “no openness nor
willingness to engage in services.” Mother had not been in touch with the social worker
since she left the Avenues. The Agency opined that mother needed to be sober before
she could begin to face her domestic violence and mental health issues.
In the meantime, when the minor came into shelter care after being rescued by the
police, he was so hungry he drank three six-ounce bottles of formula in rapid succession.
When his foster mother had to change the dressings on his burn and bite marks, he
screamed in pain, leading the social worker to comment that the tiny infant had had a
“tremendous amount of physical suffering to endure.” Moreover, when Matthew came
into foster care, he was irritable, fussy, and unhappy. However, since that time, he had
gained weight, grown quickly, and become calm and happy.
Jurisdiction and disposition on the supplemental petition proceeded on January 26,
2016. Although noticed, neither parent was present. Mother’s attorney asked for a
continuance, reporting that she had received a message from mother, the day before,
indicating that she was ill and could not attend. The court denied the request, noting that
“it’s time to proceed because the baby really needs an expeditious resolution to this
matter.” Indeed, the court saw no good cause for a continuance and expressly found that
the nonappearance of both parents was willful. After certain amendments were made to
the petition, the juvenile court found the amended allegations true. The court also made
dispositional findings and orders, which included the provision of reunification services
for both parents. The reunification plan ordered for mother included: completion of a
residential dual diagnosis mental health and drug treatment program; obtaining and
maintaining suitable housing; participation in both a psychiatric and a psychological
evaluation; compliance with a mental health professional’s recommendations for therapy
and medication; and compliance with the restraining order. The court, however, refused
to authorize visitation between mother and Matthew as part of the reunification plan,
8
reasoning that mother needed to show some type of progress on her many issues before it
would be willing to change its detriment finding. A six-month review was set for July
2016.
C. Mother’s Section 388 Petition
About three weeks later, on February 19, 2016, mother filed a petition pursuant to
section 388, arguing that her situation had improved such that she should now be allowed
supervised visitation with Matthew. Specifically, mother reported that she had been at
healthRIGHT360, a dual diagnosis residential program, since February 3, 2016, and was
compliant with the program. Prior to entering treatment, she had been in a related
detoxification program from January 29 to February 3, 2016.3 She was also in at least
weekly contact with her case managers at the Homeless Prenatal Program (HPP) and
cooperating with her Agency social worker. Moreover, mother asserted that she was
attending weekly therapy through her treatment program and was compliant with her
psychotropic medications. She also claimed to understand the negative impacts of
domestic violence and stated her intention to abide by the restraining order put in place to
protect her. Mother requested supervised visitation with Matthew a minimum of six
hours per week. She argued that such visitation would be in the minor’s best interests
because it would help support a healthy bond and attachment and would help mother
successfully reunify.
On March 17, 2016, the juvenile court granted mother’s section 388 petition and
ordered supervised visitation between mother and Matthew a minimum of three hours per
week, pending the start of therapeutic visitation.4 The court also confirmed the six-month
3
Father later filed a declaration indicating that he had been arrested for a domestic
violence incident involving mother on January 29. Thus, mother’s desire to seek
treatment appears to have again coincided with father’s unavailability through
incarceration.
4
In her appeal, mother filed a request for judicial notice of the juvenile court’s March 17
minute order granting her request for supervised visitation. By order dated August 3,
2016, we indicated that we would consider mother’s unopposed request with the merits of
the appeal. As we have since consolidated the appeal with mother’s subsequent writ
9
review date in July 2016. On March 25, 2016, mother filed a notice of appeal
challenging the juveniles court’s detention orders of December 4, 2015, and jurisdictional
and dispositional orders of January 26, 2016, “including orders denying visitation for
mother.” (A149683).
D. The Sixth-Month Review*
Thereafter, the Agency filed its six-month review report on July 8, 2016. The
Agency reported that videotapes had revealed that it was father who had abandoned
Matthew at the Starbucks. Father first denied he lied to police, but later stated that he had
to leave the baby there because he was “being chased by some guys.” Mother was now
stating that she did not want to have any further involvement with father. However,
father was incarcerated for at least the next two years anyway, and there was an active
restraining order prohibiting him from seeing mother or Matthew for the next three years.
Mother was reported to be residing at Women’s Hope and, according to staff, was
fully participating in the program. Moreover, in addition to the staff therapist that she
was seeing to address her substance abuse issues, mother was given an outside therapist
in hopes that she could deal with her deeper psychological issues with someone with
whom she could continue treatment after her graduation from the program. However,
despite mother’s engagement in treatment, the Agency raised a number of concerns.
For instance, when mother had appeared at Jelani House in December 2015, she
had been badly beaten by father, with a concussion, two black eyes, and bruises and bite
marks all over her body. Nevertheless, after her admission to the Avenues psychiatric
program, staff felt her main focus was on father, not Matthew. And, as soon as father
was released from jail she abruptly left the program to be with him. Further, mother had
reported that, since her divorce in 2008, she had had two relationships characterized by
severe domestic violence. As she had not been involved with anyone after father, she
petition and the consolidated record includes the minute order at issue, we deny mother’s
request as moot.
* Part D of this opinion is not certified for publication. (See fn., ante, p. 1.)
10
could not demonstrate how she would better manage the conflicting needs present in a
relationship.
In addition, when mother’s ongoing social worker was finally able to meet with
mother on February 29, 2016, mother stated that father had beaten and bitten her, but had
not injured the baby. She was unable to explain what had happened to Matthew. Further,
she had a flat affect and did not ask how Matthew was doing, where he was, or anything
about him. Although mother was more expressive and responsive at a meeting on March
17, 2016, she still would not talk about Matthew’s injuries and, indeed, asked the social
worker why she kept mentioning them. At their most recent meeting in June 2016,
mother told the social worker that she did not want to discuss what Matthew had been
through because: “ ‘None of it was my fault other than using bad judgment.’ ” The
social worker was concerned about mother’s failure to take any responsibility for
Matthew’s injuries, noting that it was mother’s sober decision to leave her program with
the baby and meet up with father in defiance of a court order that put Matthew at risk.
Further, after six sessions with her community therapist, mother decided to
discontinue therapy in June 2016, despite requests by the social worker and mother’s
other providers that she continue until a new therapist could be located for her because
her reunification time was short. Mother initially told the social worker she would
continue, but changed her mind three days later. According to the therapist, mother had
been working hard on her issues, and she was confronting mother on those issues before
therapy was stopped.
Mother had also reported a relapse on April 20, 2016. Although mother was
taking medication that would make her violently sick if she drank alcohol, she had
skipped the medication that day because she was scheduled for oral surgery. The social
worker told mother that relapse is a normal part of recovery and that she should forgive
herself and strive to stay clean. Nevertheless, the social worker believed that the incident
made “clear that mother must make the choice to never have any alcohol again in order to
begin to approach her own stable mental health.” Indeed, although mother was in a
supportive environment and had been removed from her abuser (through incarceration)
11
and from alcohol (through daily medication), she relapsed at the first opportunity, only
three months before the scheduled review hearing.
Matthew was generally doing well in foster care. However, he continued to have
night terrors, during which he screamed until he could be woken up, calmed, and put
back to bed. In addition, in March 2016, Matthew sustained a spiral fracture to his arm
after the foster parents reported that he had fallen out of his stroller. The doctor opined
that spiral fractures are highly suspicious for non-accidental trauma. However, while
non-accidental trauma could not be ruled out, the doctor agreed Matthew could have been
injured from getting his arm stuck in the stroller straps while falling. Given concerns
about the injury, Matthew was moved to a new foster home on March 24, 2016.
The therapeutic visit monitor reported that mother’s visits with Matthew went
well, in that mother was open to suggestion, engaged in play, was attuned to Matthew’s
needs, was affectionate, and seemed to have a good bond. When the social worker
supervised visits, however, she noted that mother had to be prompted to ask about
Matthew’s well-being, and had to be instructed how to feed the baby and not to handle
the baby too roughly. Further, mother did not demonstrate much empathy for Matthew.
Although informed about her son’s night terrors, for instance, she never thereafter asked
for an update on this issue. According to Matthew’s foster parents, his night terrors were
more frequent following visits with mother.
In the end, the social worker stressed the “tremendous amount of work” done both
by drug dependency court staff and by residential treatment staff to help mother with her
many problems. Nevertheless, despite having been in seven treatment facilities in the
minor’s eight months of life and having been given “the benefit and commitment of a
team of hardworking and good professionals who have tried hard to engage her,” in the
social worker’s opinion, mother had “not begun to address the issues that brought
Matthew into care.” Rather, when the social worker asked mother about her progress in
treatment, mother “present[ed] a list of things she [had] done, but not any specific new
understandings of her life.” In particular, mother had not “explained any new techniques
to manage her relationships with other people, to manage her cravings for alcohol, her
12
desire to see [father, or] her feelings about being away from her son.” Nor had she begun
to develop any protective capacity towards Matthew. Thus, the social worker worried
that mother was “simply going through the motions,” and was not really willing or able to
change the way she lived her life. Under such circumstances, the social worker
concluded that mother’s many issues were simply too complex to allow for the possibility
of reunification if services were extended for another six months. She recommended that
reunification services be terminated for both parents and that a hearing be set pursuant to
section 366.26 so that a permanent plan could be developed for Matthew.
On the scheduled hearing date, July 28, 2016, the matter was continued to
August 25, 2016, because mother was in the hospital after undergoing a medical
procedure. In advance of the continued hearing, however, the Agency filed an
addendum report changing its recommendation for mother. Specifically, the Agency
requested that mother be provided six more months of reunification services. Apparently,
a meeting of all of mother’s providers was held on August 17 at which the providers
spoke encouragingly about mother’s treatment progress, including her attendance and
enthusiasm at groups, her participation in domestic violence support, her participation in
therapy and family treatment court, and her increasing ability to express herself. Based
on this input, the Agency reconsidered its original recommendation to terminate mother’s
services.
Since its last report, the Agency had also received mother’s psychological
evaluation. According to the evaluation, mother met “criteria for Attention Deficit
Disorder [(ADD)], predominantly inattentive presentation; Post Traumatic Stress
Disorder; Major Depressive Disorder, Depressive, in partial remission; Alcohol Use
Disorder, Severe, in early remission; and Other Specified Personality Disorder due to
[mother’s] presentation of mixed personality features of Borderline Personality Disorder,
Dependent Personality Disorder, and Antisocial Personality Disorder.”
Recommendations included psychiatric consultation to treat mother’s depression and
ADD symptoms and individual psychotherapy, including cognitive behavioral therapy
(CBT) and dialectical behavioral therapy (DBT) approaches, to treat her personality
13
disorder and trauma. Domestic violence education was also recommended. The Agency
indicated that it would be requesting a new community therapist for mother that
specialized in CBT and DBT modalities, if available. It was also requesting a psychiatric
assessment with recommendations for medication and treatment.
At the hearing on August 25, 2016, the six-month review was set for contest on
September 28, 2016, as Matthew’s attorney opposed the continuation of services for
either parent. In addition, father’s attorney wanted to challenge the Agency’s
recommendation to terminate his services. Prior to the contested hearing, however, the
Agency filed a second addendum report, changing its recommendation back to
termination of reunification services for mother. Apparently, on September 6, 2016,
mother chose to leave Women’s Hope after she had tested positive for alcohol and had
been found to be in possession of alcohol over the Labor Day weekend. Specifically,
after another resident suggested that mother might be drinking, mother tested positive for
alcohol on September 5 and two bottles of alcohol were found in her room. Mother
admitted usage and was asked to avoid contact with other residents until her case was
discussed. When mother still appeared intoxicated the next day, she was again tested and
found positive for alcohol, and another room search uncovered an additional bottle of
alcohol. At that point, staff told mother that she would be discharged for repeatedly
bringing alcohol into the program, but stated that they would work with her to help her
transition to another program. However, later that day, staff observed mother leaving the
program and walking to the liquor store on the corner. When she attempted to come back
to the program with a bottle under her shirt, mother was told she could not enter with the
alcohol. Mother then left.
Mother’s HPP case manager spoke with mother on September 7. Mother reported
that she had gone to stay in a motel in Oakland with a male friend, but had ended up
spending the night at the hospital after an individual came to the motel and assaulted her
friend. Mother’s service providers were all working to find a new program for mother.
Mother called the social worker on September 8, 2016, explaining that she had left
Women’s Hope because her roommate was using drugs and the program was “ ‘all
14
bad.’ ” Mother admitted to drinking, stating she drinks when depressed, but maintained
that she needed to leave the program because it was “ ‘not good.’ ” She revealed that she
was currently residing in Palo Alto with a friend, but would give no further information.
She admitted that she had continued to drink since leaving Women’s Hope.
Mother did state that she would keep her September 8 appointment with her new
therapist. She also claimed that she was willing to enter another substance abuse
program. However, mother had missed a scheduled visit with her son on September 7.
Further, when the social worker suggested Jelani House and Epiphany House as possible
treatment options, mother stated she would not go to those programs because “ ‘they
don’t let me do anything.’ ” Although she understood that it was important for her to
enter a program as soon as possible and that other programs might not be available,
mother continued to state that she did not want to go to either program.
Citing mother’s pattern of engaging in services but failing to complete them, the
Agency could no longer recommend that mother’s services be continued. The Agency
noted that this was not a simple relapse. Rather, after relapsing and being confronted,
mother continued to drink alcohol and seek alcohol. Moreover, upon leaving her
program, mother immediately placed herself in a situation where there was violence.
Based on mother’s recent actions, the Agency concluded that, even though mother had
been engaged in services and was progressing, she still had not “been able to build the
appropriate skills and network to maintain her sobriety and make positive choices that
will keep herself and her child safe.” The Agency did not believe that mother would be
able to demonstrate in the next six months that she could ameliorate the conditions that
led to the removal of her son.
After another continuance due to the death of the maternal grandmother, the
contested six-month review hearing was finally held on October 14, 2016. Mother failed
to appear, although she had been in touch with her attorney the previous day. After the
Agency submitted its three reports into evidence, counsel for mother submitted two
letters on mother’s behalf. The first was a letter from one of mother’s HPP case
managers, dated before her most recent relapse, which detailed mother’s engagement in
15
her many services and recommended that reunification efforts continue. The second was
a similar letter from a different HPP case manager. Although dated after mother left
treatment, the letter did not discuss her relapse or its impact on mother’s ability to reunify
within statutory timeframes.
Mother’s attorney argued that mother had been positively engaged in services,
including visitation with Matthew, for a significant period of time and, although she had
experienced some recent setbacks, she should be given additional time so that she could
engage in the services recommended by her recent psychological evaluation. Counsel for
the Agency, in contrast, asserted that there was no part of the record which indicated that
there was, in fact, a substantial probability of return if services were extended. The
juvenile court indicated that it had reviewed the entire, extensive file and agreed with the
Agency. Specifically, the court stated that, while it appreciated that mother was making
“valiant efforts,” it was “very concerned” about her. Indeed, the court opined that mother
was “in no position right now to even focus on the baby.” Rather, the court agreed with
the psychological evaluation that mother needed a full 12 months of residential treatment
before there would be less risk of relapse, concluding “I don’t think six more months is
really going to be enough for mom.” As a result, the court followed the Agency’s
recommendation, terminated mother’s reunification services, and referred Matthew for
permanency planning pursuant to section 366.26.5
Mother subsequently filed a timely notice of her intent to file a writ petition, and
the petition itself was filed on November 18, 2016. (Rules 8.450(e), 8.452; A149683.)
II. DISCUSSION
A. Denial of Visitation
As mentioned above, mother challenges on appeal the juvenile court’s orders at
both detention and disposition on the supplemental petition which temporarily denied her
visitation with Matthew. At each of the two hearings at issue, the juvenile court refused
5
As the hearing was scheduled for February 9, 2017, we issued a stay of the proceedings
on February 1, 2017, pending resolution of this matter.
16
to order visitation based on its conclusion that such contact would be detrimental to the
minor. Mother argues that there was absolutely no evidence that monitored visitation
would be inconsistent with the infant’s well-being and that the absence of visitation
negatively impacted her ability to forge a loving and close bond with the minor.6
As it turns out, the standards for denying visitation in this context are not as clear-
cut as one might expect. With respect to disposition, subdivision (a)(1) of section 362.1
provides that any order placing a child in foster care and ordering reunification services
must provide for visitation between parent and child, subject to two caveats. First, “[n]o
visitation order shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(B).)
Second, “[v]isitation shall be as frequent as possible, consistent with the well-being of the
child.” (Id., subd. (a)(1)(A).) According to the statute, these visitation requirements exist
“[i]n order to maintain ties between the parent . . . and the child, and to provide
information relevant to deciding if, and when, to return a child to the custody of his or her
parent.” (Id., subd. (a).)
There is currently a split of authority as to whether section 362.1 mandates
visitation absent evidence of a threat to the minor’s physical safety (see, e.g., In re C.C.
(2009) 172 Cal.App.4th 1481, 1491-1492 (C.C.)) or whether courts may also deny
visitation based on potential harm to the minor’s emotional well-being (see, e.g., T.M.,
supra, 4 Cal.App.5th at pp. 1219-1220).7 The Second District in C.C., for example,
6
The Department urges us to dismiss mother’s appeal as moot because the juvenile court
reinstated mother’s visitation approximately three months later, on March 17, 2016, in
response to a petition under section 388. However, we will reach the merits of mother’s
claim because it is arguably relevant to the arguments made in her writ petition that
additional services should have been provided to her.
7
There also appears to be some disagreement as to the appropriate standard of review in
these matters. Specifically, some courts have applied the substantial evidence test, others
have reviewed for abuse of discretion, and still others have applied a blended standard,
finding no abuse of discretion where substantial evidence supports the order. (See T.M.,
supra, 4 Cal.App.5th at pp. 1219-1221 [collecting cases and applying a blended
standard].) Not long ago, we noted that it is unclear “whether the two standards are so
different in this context.” (In re D.B. (2013) 217 Cal.App.4th 1080, 1092, fn. 7.) And
17
reasoned that a “strict legislative limitation on suspending or denying all parental
visitation during the reunification period is no accident: Without visitation of some sort,
it is virtually impossible for a parent to achieve reunification.” (C.C., supra, 172
Cal.App.4th at p. 1491.) It thus construed the language of the statute to mean that “when
reunification services have been ordered and are still being provided . . . some visitation
is mandatory unless the court specifically finds any visitation with the parent would pose
a threat to the child’s safety. The frequency of such visits, in contrast, depends on a
broader assessment by the court of the child’s ‘well-being.’ ” (Ibid., fn. omitted.)
Applying this standard to the facts of the case, the C.C. court concluded that the record
did not support the existence of a threat to C.C.’s safety, where there was only an isolated
reference that the minor might harm himself and there was no evidence that the minor’s
mother presented any threat to his physical safety during monitored visitation in a
therapeutic setting. (Id. at p. 1492.)
More recently, in T.M., supra, 4 Cal.App.5th 1214, the Third District rejected the
approach espoused by C.C. (T.M., supra, 4 Cal.App.5th at p. 1219.) Instead, it reasoned
that, “[i]n addition to requiring a court to deny visitation if the child’s safety is at risk, the
plain language of section 362.1, subdivision (a) only requires visitation as frequently as
the well-being of the child allows. Accordingly, if visitation is not consistent with the
well-being of the child, the juvenile court has the discretion to deny such contact. As
courts have explained, ‘well-being’ includes the minor’s emotional and physical health.”
(Ibid.) In T.M., the child welfare agency recommended against visitation with a father
who had subjected the minor to “ ‘extreme physical abuse,’ ” causing the minor to be
very afraid of him. Applying the standard set forth above—essentially a detriment test—
the T.M. court affirmed the juvenile court’s order suspending visitation which provided:
“ ‘[V]isitation between the child and father is detrimental until said time as the progress
has been made in individual counseling and the child’s safety can be assured during the
indeed, we need not reach this issue, as we would come to the same conclusion under any
of the articulated standards.
18
course of visitation in a therapeutic setting and with conjoint counseling.’ ” (Id. at
pp. 1218-1221.)
There is much to recommend the approach taken by the court in T.M. For
instance, as the T.M. court, itself, acknowledged, its “reading of the statute is consistent
with dependency law’s guiding principle of the well-being of the child: ‘While visitation
is a key element of reunification, the court must focus on the best interests of the children
‘and on the elimination of conditions which led to the juvenile court’s finding that the
child has suffered, or is at risk of suffering, harm specified in section 300.’ ” (T.M.,
supra, 4 Cal.App.5th at p. 1220.) Under the C.C. test, in contrast, the juvenile court lacks
the power to suspend visits harmful to a child’s emotional well-being and thus the court
“ ‘would be required to sit idly by while a child suffered extreme emotional damage
caused by ongoing visits.’ ” (Ibid., quoting In re Brittany C. (2011) 191 Cal.App.4th
1343, 1357.) It seems exceedingly unlikely that such emotionally traumatic visits would
do anything to advance a parent’s reunification prospects, and, indeed, they might very
well derail them.
Moreover, a visitation ban could almost always be re-imagined as an order for
infrequent or conditional visitation. Thus, a juvenile court could easily avoid the more
stringent test imposed by C.C. (and set forth in subdivision (a)(1)(B) of section 362.1) in
favor of the general detriment standard advanced by T.M. (and set forth in subdivision
(a)(1)(A) of section 362.1) simply by reworking its visitation order. For example, the
court in this case could have ordered supervised visitation once per week, to commence
upon proof that mother had stabilized in treatment. Our review of this “frequency” order
would then clearly have been for consistency with the well-being of the minor pursuant to
subdivision (a)(1)(A) of section 362.1. It makes no sense to subject identical situations to
different standards based on word choice. Rather, we believe that the prohibition on
parent-child visitation where there is a safety concern is best understood as marking the
outer boundary of the juvenile court’s discretion in setting the terms for visitation during
the reunification period, where a presumption in favor of frequent visitation exists. So
long as the juvenile court does not jeopardize the minor’s safety, it is free to craft a
19
visitation order consistent with the minor’s well-being and the parents’ presumed desire
for frequent contact. We therefore join T.M. in concluding that a juvenile court may
suspend or deny visitation pursuant to section 361.2, subdivision (a), if such visitation
would be inconsistent with the physical or emotional well-being of the child.
In addition, we further conclude that the standards for denial of visitation at
detention are similar to those we have just articulated for the suspension of visitation
during the reunification period. With respect to detention hearings, subdivision (e) of
section 319 provides that, if the juvenile court orders a minor detained, it shall also “order
services to be provided as soon as possible to reunify the child and his or her family if
appropriate.” And, our rules of court indicate that, at a detention hearing, “[t]he court
must consider the issue of visitation between the child and other persons, determine if
contact pending the jurisdiction hearing would be beneficial or detrimental to the child,
and make appropriate orders.” (Rule 5.670(c)(1).) Thus, it appears that parental
visitation can be denied at detention based on a basic detriment finding. Indeed, the
juvenile court may have even more leeway in this context to protect a minor’s well-being,
as reunification services need only be ordered “if appropriate.” (§ 319, subd. (e).) This
makes some sense, as the situation at detention is often very fluid, all of the facts and
circumstances are generally not known, and any out-of-home placement order is, by
definition, temporary.
Turning to the specific facts relevant here, we note that, at the detention hearing on
December 4, 2015, mother was not present as she remained hospitalized. Mother’s
attorney, however, requested visitation between mother and son. The Agency responded:
“Your Honor, given the facts of this case, I am going to ask at this time that a finding be
made that visitation be detrimental to this child.” The court replied: “I would certainly
enter that finding” (italics added). Although mother’s attorney pressed the issue, arguing
that there was no evidence that supervised visitation would create any issues, the court
reiterated its finding, stating: “I think it would be detrimental to the best interest of the
child to have any contact with mother at this particular point.”
20
We have no difficulty upholding the juvenile court’s order suspending visitation as
of the detention hearing. At that point, mother was still hospitalized after having been
badly beaten by father, and her condition was unknown. Moreover, it was unclear
whether it was mother or father who had intentionally burned and bitten the minor,
thereafter abandoning him at the Starbucks in “very poor” condition. If mother was
responsible for these odious and life-threatening actions, she showed an utter disregard
for the well-being of her six-week-old son and clearly represented a physical and
emotional threat to him, at least until her current situation could be assessed. Moreover,
even if father was responsible for all of the specific abuse, mother’s conduct still showed
a gross lack of concern for Matthew’s safety and well-being. First, she made the sober
decision to leave treatment with Matthew and reunite with father against court orders and
despite the fact that she had previously been counseled “in-depth . . . regarding the
potential disastrous outcome of another domestic violence incident in the presence of her
young child.” Second, she decided to resume drinking while caring for the minor,
reportedly stating during this timeframe that she was sick of her son and was not feeding
him. Subsequently, after learning her child had been found abandoned, mother
nevertheless continued to drink, even attempting to bring a bottle of vodka with her to the
hospital. In short, mother’s behavior was completely out of control and represented a
continued threat both to herself and to her young son, regardless of the setting. (Cf. T.M.,
supra, 4 Cal.App.5th at p. 1218 [in suspending visitation, the juvenile court noted that
the father was “unable ‘to control himself in any setting’ ”].) Finally and importantly,
Matthew was seriously injured, and thus it was reasonable for the court to conclude that
the infant should not be subjected to any additional stress during his healing process.
These circumstances more than amply support the juvenile court’s conclusion as of the
detention hearing that visitation would be detrimental to Matthew.
With respect to the court’s dispositional visitation order, both jurisdiction and
disposition on the supplemental petition proceeded on January 26, 2016. Although
noticed, neither parent was present. At the hearing, there was some discussion that
supervised visitation would now be appropriate since mother was being offered a
21
reunification plan. However, when the court asked for the Agency’s position on
visitation, the social worker opined: “I don’t think she should have visitation until we
take a look at her because—well, from conversations I’ve had, I’m afraid she might be
the person who bit the baby as well as burn[ed] the baby.” The social worker further
stated: “I think I need to talk to her and determine who did the biting of the baby,
because apparently she’s bitten the father too and left a big bite mark on him. I don’t
want the baby to be injured. No matter how much the supervising . . . [¶] . . . [t]hey’re
not going to grab the kid out of her hands.”
The juvenile court denied the request for visitation, reasoning that mother “needs
to really be in a live-in residential treatment program.” The court further elaborated:
“She seems to think that domestic violence isn’t the main issue, and it’s one of the main
issues, not that that—I mean, I think that she needs to understand the danger she puts
herself in and the child in. And substance abuse is another extremely big issue, and
obviously her mental health condition. So until there is some progress, however, we’re
going to define that, I am going to deny that request” (italics added). Although mother’s
attorney argued that, with appropriate supervision, the child could be ensured to be safe
with mother, the juvenile court reiterated that mother needed “to show progress with
herself first” and thus it would not “change the detriment findings for today” (italics
added).
Again, we have little difficulty affirming the juvenile court’s continued suspension
of visitation based on the evidence presented. At the time of the dispositional hearing,
mother was essentially on the lamb. After Matthew was abandoned and detained for the
second time in December, mother was admitted to the Avenues, a mental health program,
where she could have stayed for two weeks. Instead—even after everything that had
happened—she chose to leave in order to reunite with father upon his release from jail.
Moreover, while in the program, she showed “no openness nor willingness to engage in
services.” In addition, she had not been in touch with the social worker since she left the
Avenues. Presumably, based on her history, she was actively drinking and jeopardizing
her safety through continued association with father. And, although she was aware of the
22
dispositional hearing, she failed to appear and the court found this failure to be willful.
Thus, there was absolutely no indication that mother had stabilized in any way. Further,
the social worker was concerned that mother might have been the one who bit Matthew
and felt she continued to be a safety risk, even in a supervised setting.
Finally, additional information regarding Matthew indicated that the minor was so
hungry when he was rescued that he drank three six-ounce bottles of formula in rapid
succession. He also screamed in pain when his foster mother had to change the dressings
on his burns and bite marks, and thus, in the words of the social worker, had endured “a
tremendous amount of physical suffering” as the result of his abuse and abandonment.
Moreover, the infant was irritable, fussy, and unhappy when detained, but had since
stabilized in foster care. Under the circumstances, it was undeniably reasonable for the
court to require some progress from mother on her many issues before considering re-
introducing her into the life of her obviously traumatized son. Thus, the evidence
strongly supports the conclusion that the juvenile court’s visitation order was crafted
consistent with Matthew’s physical and emotional well-being.
As the T.M. court noted, “ ‘the parents’ interest in the care, custody and
companionship of their children is not to be maintained at the child’s expense.’ ” (T.M.,
supra, 4 Cal.App.5th at p. 1220; see also In re S.H. (2003) 111 Cal.App.4th 310, 317
[“[i]t is the juvenile court’s responsibility to ensure regular parent-child visitation occurs
while at the same time providing for flexibility in response to the changing needs of the
child and to dynamic family circumstances”].) However, the parents’ interests are
protected under the dependency framework as “there will be subsequent hearings, and
therefore ample opportunity for the juvenile court to revisit the appropriateness of
visitation in light of new circumstances.” (T.M., supra, 4 Cal.App.5th at p. 1220.) This
is exactly what happened here, with the juvenile court reinstating mother’s visitation
approximately three months after it had been suspended upon a showing that she was
progressing in residential treatment. We see no error.
23
B. Participation and Progress in Service*
In her writ petition, mother makes a number of arguments challenging the
termination of her reunification services at the October 2016 six-month review. She first
claims that the juvenile court’s finding that she failed to participate regularly and make
substantive progress in court ordered treatment is not supported by substantial evidence.
(See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763 [reviewing similar
finding for substantial evidence] (Angela S.).) We disagree.
If a child is under the age of three on the date of his initial removal, subdivision (e)
of section 366.21 provides that a juvenile court, at a six-month review hearing, may
terminate reunification services and set a permanency planning hearing pursuant to
section 366.26 if it finds “by clear and convincing evidence that the parent failed to
participate regularly and make substantive progress in a court-ordered treatment plan.”
(§ 366.21, subd. (e)(3).) Mother argues here that—given her engagement in treatment for
seven months during the reunification period and the positive reports regarding her
progress submitted by her many service providers—the court’s finding that she was not
sufficiently engaged in treatment is unsupported by the evidence. To the contrary,
mother asserts, “[t]he evidence in this case showed that [she] made great efforts to satisfy
the Agency requirements, and that she substantially complied with her case plan
services.”
Arguably, the evidence mother sets forth in her briefing could constitute
substantial evidence on appeal to uphold a lower court finding that she participated
regularly and made substantive progress in treatment. However, this fact is irrelevant to
our analysis where substantial evidence also supports the opposite determination. (In re
Misako R. (1991) 2 Cal.App.4th 538, 547, 545 (Misako R.) [“ ‘ “ ‘[w]hen two or more
inferences can reasonably be deduced from the facts,’ either deduction will be supported
by substantial evidence, and ‘a reviewing court is without power to substitute its
deductions for those of the trial court’ ” ’ ”].) We conclude that is does.
*
Section B of this opinion is not certified for publication. (See fn., ante, p. 1.)
24
With respect to regular participation in services, for instance, mother highlights
her seven months in a residential program with all of its attendant services, but ignores
the fact that she also experienced one relapse and two significant interruptions in
treatment during her involvement with the Agency. While we acknowledge, as mother
asserts, that relapse is a part of recovery, her April 2016 relapse was cause for concern
because she had been in a supportive environment for months and had been taking
medication that would make her violently sick if she drank alcohol, yet she relapsed at
her first possible opportunity, on a day she skipped the medication due to oral surgery. In
addition, mother had previously made the sober decision to leave treatment in November
2015—despite having been given the opportunity for the minor to be placed with her
under a family maintenance plan—and this decision and mother’s renewed drinking led
to the significant abuse of both mother and child as discussed at length above. Mother
then briefly entered another treatment facility, but failed to engage and soon left to
reunite with father upon his release from jail. Indeed, mother did not seriously commit to
re-entering treatment until January 2016—two months after she initially relapsed—and
this was only after father was again arrested for domestic violence.
Most importantly, however, mother again began drinking and left treatment in
September 2016, despite the fact that the Agency had recently reversed its decision and
agreed to recommend additional reunification services for her. This was not a simple
relapse. Rather, as the Agency put it “after relapsing and being confronted [mother]
continued to drink alcohol and seek alcohol,” and she immediately placed herself in a
situation where there was violence. And, six weeks later—at the time of the October
2016 review hearing—mother remained out of treatment, despite several residential
options being suggested to her. Under these circumstances, substantial evidence supports
the juvenile court’s conclusion that mother failed to participate regularly in court-ordered
services.
Moreover, for many of the same reasons, the record also supports the juvenile
court’s conclusion that mother’s progress in treatment was not substantive. The social
worker’s initial six-month review report recommending termination of services detailed
25
the Agency’s many concerns with mother’s progress, including mother’s failure to take
responsibility for her part in Matthew’s injuries; the seriousness of her domestic violence
history; mother’s refusal to continue with her outside therapist; her April 2016 relapse;
her failure to show empathy for Matthew or develop any protective capacity for the
minor; and the social worker’s opinion that mother was “simply going through the
motions” without really making any substantive life changes. Although the Agency was
nevertheless briefly convinced by mother’s service providers to change its position and
recommend continued services, mother’s regrettable actions in September 2016 amply
support the conclusion that the Agency had been right in its initial assessment of mother’s
situation. Indeed, despite all of the many services provided to mother and any headway
she may have temporarily made coping with her many entrenched issues, mother was
essentially—almost a year later—back where she had started at the commencement of the
case. Thus, the Agency was “concerned that even though [mother] had been engaged in
services and was progressing,” her recent behavior showed that she “still [had] not been
able to build the appropriate skills and network to maintain her sobriety and make
positive choices that [would] keep herself and her child safe.” Based on all of this
substantial evidence, we see no error in the juvenile court’s conclusion that mother failed
to participate regularly and make substantive progress in court ordered treatment.
C. Extension of Services*
In a related vein, mother also argues that substantial evidence failed to support the
juvenile court’s finding that there was no substantial probability that Matthew could be
returned to her care within six months if additional services were provided. Pursuant to
subdivision (e)(3) of section 366.21—for children like Matthew who are under the age of
three at the time of detention—the juvenile court must continue services to the 12-month
permanency hearing if it finds that there is a substantial probability that the child “may be
returned to his or her parent . . . within six months.” Here, mother argues that she visited
the minor consistently, once her visitation was reinstated, and that she had made
*
Section C of this opinion is not certified for publication. (See fn., ante, p. 1.)
26
significant progress in treatment such that return within statutory timeframes was
possible.
As a preliminary matter, we note that mother had only three months rather than six
within which to demonstrate a substantial probability of return. The 12-month
permanency hearing must be held within 12 months of the date the minor entered foster
care as that term is defined by section 361.49. Pursuant to that section, a child enters
foster care on the earlier of the date of the jurisdictional hearing or the date that is 60 days
after the date the child was initially removed from the physical custody of his or her
parent. Here, Matthew was detained on December 3, 2015, and jurisdiction on the
supplemental petition took place on January 26, 2016.8 Thus, the 12-month hearing was
required to take place by January 26, 2016, only three months after the contested October
14, 2015 six-month review. (§ 361.49.) For purposes of discussing substantial
probability of return, when the 12-month permanency hearing is less than six months
away, a court considers “only what the impact of [that lesser time for additional services]
would be on the parent and child.” (See Tonya M. v. Superior Court (2007) 42 Cal.4th
836, 846.)
Unfortunately, in this case we agree with Agency counsel below that there was no
part of the record which indicated that there was, in fact, a substantial probability of
return if services were extended for three more months. As discussed above, mother had
relapsed and had not been in treatment for six weeks as of the six-month review hearing.
She had deeply engrained substance abuse and mental health problems, as well as a
8
Contrary to the Agency’s calculation, because disposition on Matthew’s original
petition did not result in removal—as Matthew was placed with mother under a family
maintenance plan—the reunification clock did not start running based on this earlier
intervention. (See In re A.C. (2008) 169 Cal.App.4th 636, 649 [reunification clock
begins to run only when minor formally removed from parental custody at disposition;
family maintenance services ordered at disposition do not trigger timelines].) Rather, it
was detention on the supplemental petition in December 2015, and the related January
2016 jurisdictional and dispositional hearing which resulted in an order for out-of-home
care, that are relevant for purposes of setting the 12-month permanency hearing in
accordance with section 361.49.
27
history of entering but failing to complete treatment. And, there were legitimate bases for
concluding that mother’s progress on her many issues during the reunification period was
not substantive, despite her seven months in treatment. In the opinion of the Agency,
even six more months of services would not be enough to allow for the safe return of the
minor. The juvenile court agreed, endorsing the psychological evaluation’s conclusion
that mother needed a full 12 months of residential treatment, and stating: “I don’t think
six more months is really going to be enough for mom.” Under the circumstances, the
juvenile court’s determination that the continuation of services for mother was unlikely to
result in the return of the minor during statutory timeframes was amply supported by the
record.
D. Reasonable Services*
As a final matter, mother argues that the juvenile court erred in terminating her
reunification services because reasonable services were not provided to her by the
Agency. (See, e.g., § 366.21, subd. (e)(3) [the court “shall continue” a case to a 12-
month permanency hearing if the court finds at the six-month hearing that reasonable
services have not been provided]; id., subds. (f) & (g)(1) [continuance of case from 12-
month to 18-month hearing where reasonable services have not been provided].)
Specifically, mother claims that her reunification services were unreasonable because the
Agency failed to arrange sufficient visitation between her and the minor. In addition,
mother challenges the reasonableness of the services provided to her because she was
never offered the specific services recommended in her July 2016 psychological
evaluation.
The adequacy of a reunification plan and the reasonableness of the reunification
efforts made by a child welfare agency must be judged according to the circumstances of
each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) Further,
“[i]n almost all cases it will be true that more services could have been provided more
frequently and that the services provided were imperfect.” (Misako R., supra, 2
*
Section D of this opinion is not certified for publication. (See fn., ante, p. 1.)
28
Cal.App.4th at p. 547; see also Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965,
969.) Thus, when considering the adequacy of reunification services, “[t]he standard is
not whether the services provided were the best that might be provided in an ideal world,
but whether the services were reasonable under the circumstances.” (Misako R., supra, 2
Cal.App.4th at p. 547; see also Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415,
1425-1426.)
In particular, to support a finding that reasonable services were offered or
provided, “the record should show that the supervising agency identified the problems
leading to the loss of custody, offered services designed to remedy those problems,
maintained reasonable contact with the parents during the course of the service plan, and
made reasonable efforts to assist the parents in areas where compliance proved difficult
(such as helping to provide transportation and offering more intensive rehabilitation
services where others have failed).” (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
We review a reasonable services finding for substantial evidence. (Angela S., supra, 36
Cal.App.4th at p. 762.) And, under the present facts, we easily conclude that substantial
evidence supports the juvenile court’s finding that the services offered or provided to
mother were reasonable.
With respect to visitation, we have already determined that the juvenile court’s
temporary suspension of visitation in this case was not erroneous. Thus, mother’s only
potentially viable complaint is that her visitation was not increased during the
reunification period, despite the recommendation of the therapeutic visitation supervisor
that she receive more time. Mother’s visitation, however, was not reinstated until March
17, 2016. The social worker filed her initial six-month review report a little over three
months later, on July 8, 2016, recommending that mother’s services be terminated. This
recommendation was based on a number of concerns as set forth above. Although the
Agency changed its recommendation at the end of August 2016, suggesting that
additional services be provided, this new recommendation was contested by minor’s
counsel. Then, mother left her residential program and resumed drinking a mere two
weeks later. Given mother’s history, the red flags identified by the social worker in her
29
July 2016 report, her initial recommendation that services be terminated, and the
relatively short timeframes involved, we see nothing unreasonable in the Agency’s
decision not to increase visitation during this period.
Mother’s other contention—that her services were inadequate because she was not
given the opportunity to engage in several specific interventions recommended by her
July 2016 psychological evaluation—is equally unpersuasive. Specifically, mother
claims that she should have received the recommended psychiatric evaluation as well as a
therapist specializing in CBT and DBT modalities before her services were terminated.
The record reveals, however, that the Agency had found a new therapist for mother and
that her first appointment was scheduled for September 8, 2016, two days after she
voluntarily left treatment. Moreover, the Agency was recommending that a psychiatric
evaluation be ordered if mother’s services were extended. Thus, mother’s failure to
receive the benefits of these additional services had more to do with her extended relapse
than with any failure by the Agency to provide reasonable services. More fundamentally,
however, mother’s argument ignores the vast number of appropriate services, including
therapeutic and psychiatric resources, which were provided and/or offered to her
throughout her involvement with the Agency. As the social worker correctly noted, there
was a “tremendous amount of work” done both by drug dependency court staff and by
residential treatment staff in this case to help mother with her many problems.
Unfortunately, despite “the benefit and commitment of a team of hardworking and good
professionals who . . . tried hard to engage her,” mother’s substance abuse, mental health,
and domestic violence issues simply proved to be too long-standing and deep-seated to
allow for any meaningful recovery within the statutory timeframes.
III. DISPOSITION
The juvenile court’s detention and dispositional orders temporarily denying
mother visitation with Matthew are affirmed. Mother’s writ petition is denied on the
merits. (See § 366.26, subd. (l)(1)(C), (4)(B).) The finality of this opinion shall be
governed by rule 8.264(b). (See also rules 8.452(i), 8.470, 8.490(b)(2)(A).) The
previously imposed stay issued by this court is hereby dissolved.
30
_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
STREETER, J.
31
In re Matthew C. A147877
32
Trial Court: San Francisco City & County Superior Court
Trial Judges: Hon. Susan Breall
Hon. Robert M. Foley
Counsel for Appellant: Nicole Williams
Mariko Nakanishi
Counsel for Respondents: City Attorney
Dennis J. Hererra
Lead Attorney
Kimiko Burton
Gordon-Creed, Kelley Holl and Sugarman
Jeremy Sugarman
Ada Lau
33
In re Matthew C. A147877, A149683
34