In re Heidi E. CA1/2

Filed 2/26/21 In re Heidi E. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re HEIDI E., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent,
v. A159813
K.E.,
(Alameda County
Defendant and Appellant. Super. Ct. No. JD03018001)
Mother K.E. appeals from the juvenile court’s orders continuing her
daughter in out-of-home care and setting an 18-month hearing. She contends
the orders must be reversed because the court failed to make a finding that
reasonable reunification services were provided.
BACKGROUND
Mother’s two children, Heidi and D.G., were removed from her custody
on the night of September 5, 2018. Heidi was then 10 years old and D.G. 14
years old. Police officers responding to a call reporting that mother was
beating her children arrested mother on charges of misdemeanor child
endangerment. The officer who contacted the Alameda County Social
Services Agency (Agency) related that mother had been drinking and
1
appeared intoxicated, but not “overly” so. D.G. told the officer mother had
slapped her on the face five to seven times, hit her on the shoulder with a
coat hanger, and hit her all over her body with a phone charger. The officer
observed linear marks on her shoulder. Heidi told the officer mother had
slapped her several times.
Contacted by the Agency, the maternal aunt said Heidi had texted her
saying mother was drunk and was hitting D.G., then around 10:00 p.m. D.G.
texted that the aunt needed to “come over right now.” The aunt and
maternal grandfather went to mother’s home and from outside could hear
mother yelling at the girls. When they went in, the aunt saw marks and
bruising on D.G.’s thigh, shoulder, and arm and on Heidi’s cheek, arm, and
leg.
Both minors told the child welfare worker they did not want to return
home and wanted to stay with their aunt and grandfather. D.G said that on
September 4, mother slapped her a few times after finding a picture on D.G.’s
phone of her 14-year-old boyfriend in his underwear, grabbing his genitals.
The next day mother called the police about the picture and took D.G. to the
boy’s high school to make a report to the principal. When they returned
home, mother got drunk and started hitting D.G. on the back of her shoulder
with a hanger. Later, she called D.G. downstairs and began hitting her
again, this time on the legs, arm, and back with a phone cord. Mother also
slapped D.G.’s face five to seven times. D.G. said mother drank to the point
of being drunk approximately once a week, and had started drinking more
often about a year before, when mother’s uncle and grandfather died. She
said mother had hit her on 10 prior occasions “with whatever she can find.
Usually a cable or a hanger.”
2
Heidi told the child welfare worker that on the night of September 5,
she heard mother yelling and hitting D.G. and was “super scared she was
going to hit us a lot.” As she was crying in her room, mother came in and hit
her on the legs, arms, and back with a phone cord. Heidi said mother had hit
her before and caused bruising on a few other occasions. She said mother got
drunk about once a week, and the girls stayed in their room when she was
drinking because she got “really mad or sad when she’s drunk.”
The Agency filed a Welfare and Institutions Code1 section 300 petition
on September 6, alleging that mother hit the minors with her hands, a phone
cord and a hanger, resulting in marks and bruises on both minors, and had
been arrested for child endangerment (§ 300, subd. (a)); the minors reported
mother drank to intoxication approximately once a week, became extremely
angry or sad, and would yell at or hit them when she was drinking. They
avoided her when she had been drinking because they were afraid of her and
they did not want to live with her (§ 300, subd. (b)). The Agency had been
unable to contact mother to assess her ability to have custody of the children
and the alleged father reportedly lived in Mexico and did not have legal
custody of either minor (§ 300, subd. (g)).
The detention report, in addition to relating the facts underlying the
allegations, stated that the family had been involved with the Department of
Children and Family Services in 2010, after a maternal uncle sexually
abused D.G., and that the children said they had witnessed domestic violence
between the parents when they were very young. The maternal aunt and
step-grandfather expressed interest in having the minors placed with them
1 Further unspecified statutory references are to the Welfare and
Institutions Code.
3
but the Agency was unable to approve their home on an emergency basis and
the children were placed in a resource family home.
The court ordered the minors detained at a hearing on September 10,
2018.
In its September 21, 2018 report, the Agency recommended that the
court find the petition true, declare the minors dependents of the court, and
order out-of-home care for the children and reunification services for mother.
The child welfare worker related that mother admitted she “may have
slapped D.G. a few times” on September 4 after finding the picture on her
phone, but denied it made any mark; she denied hitting Heidi on September
5, or causing any bruises, but said the phone cord hit Heidi accidentally.
Mother told the child welfare worker that Heidi had “ ‘stabbed her in the
back’ and ‘betrayed her’ ”; D.G. was a “ ‘narcissist’ ”; the minors were “only
afraid because she ‘yells a lot’ ” and were “ ‘ungrateful’ ”; and having the
minors out of her care would “allow her to focus on applying to law school and
paying off her debts.” Mother later told the child welfare worker she wanted
the minors to come home, denied hurting them or using items to hit them,
and said the minors were “exaggerating things because they do not know
what ‘real abuse is.’ ” She acknowledged drinking heavily after the death of
her uncle, who was a father figure to her, but only for a short time. She said
she would sometimes have “a few beers” at home and the girls do not bother
her because they know when she is drinking she wants to “ ‘be relaxed.’ ”
Mother said she can stop drinking whenever she chooses without issue. D.G.
told the child welfare worker mother drinks every day and said she did not
want to return home until mother got help for her alcohol use. Heidi did not
want to return home but would choose home over staying in the foster home;
her preference would be to live with her aunt. Heidi said the September 5
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incident was not the first time mother left bruises on the girls, but was the
first time she was “ ‘super scared’ ” of mother.
On September 24, 2018, mother waived her right to trial and submitted
on the social worker’s report. The court found the allegations of the amended
petition2 true, removed the children from mother’s custody, and ordered
family reunification services. Mother’s case plan identified service objectives
of not using physical punishment, staying sober and appropriately parenting
the children, and required her to engage in both individual counseling and
family therapy, complete a parenting education class, participate in a drug
and alcohol assessment, and follow the resulting recommendations, including
but not limited to participating in a substance abuse treatment program and
drug and/or alcohol testing.
For the six-month status review in March 2019, the Agency
recommended maintaining the out-of-home placement and reunification
services and granting the Agency discretion to begin a two-week trial visit.
Child Welfare Worker Stephanie McWoods reported that mother had made
partial progress on her case plan and was diligently working to complete it;
her “strength” was her “commitment to her daughters” and her “areas for
growth” included skills and techniques for conflict resolution with the minors.
Mother had completed a parenting class in which she was reported to have
been actively engaged, and had been visiting the minors regularly on
Saturdays at the Gathering Place. Mother and the minors began family
therapy in February 2019. Mother began individual therapy, but stopped
going because of vehicle problems; McWoods had tried to contact the
therapist without success and in January 2019, gave mother another referral
for individual counseling.
2 The petition was amended to include the children’s full names.
5
Mother reportedly did not believe she had a substance abuse problem.
She had been assessed at Terra Firma, which developed a treatment recovery
plan including creating a healthy support system by attending Alcoholics
Anonymous (AA) meetings. According to the program director, Bertha
Cuellar, “[t]he mother is combative and not interested in completing the
program. Based on the assessment she could benefit from the 24-week
program.” Mother had been participating in substance abuse testing, and
had provided 33 negative test results between September 2018 and February
2019, with two missed tests in February. According to Cuellar, mother was
doing 72-hour ethyl glucuronide tests on Tuesdays and Fridays to cover the
entire week; she was not providing random samples due to her full-time work
schedule and commute distance. Four of mother’s samples were “dilute,”
reflecting water consumption. Cuellar stated, “[t]he more dilute the test the
mother provides the more suspicious it appears.” Mother said she had a
medical condition, idiopathic hypersomnia, for which she was prescribed
Ritalin, and had to drink more water with this medication.
Heidi and D.G. were both “incredibly concerned” that if they returned
home they would not be able to see their aunt, with whom mother had a
contentious relationship. Heidi was participating in individual counseling
once a week, focused on developing coping skills, and decreasing anxiety.
At the six-month review hearing on March 11, 2019, the court found
mother had made partial progress on her case plan, return of the children
would create a substantial risk of detriment to their safety protection or
physical or emotional well-being, and reasonable services had been offered or
provided. The court gave the Agency discretion to start overnight visits and a
two-week trial visit.
6
On April 11, 2019, at an interim review hearing, McWoods informed
the court that mother had moved to the lowest level of supervision for visits,
family therapy was going well, and a worker in the Family Preservation
Program (Family Preservation) had been assigned to the case. Mother was
on a wait list for individual therapy and McWoods planned to make another
referral for her. Counsel for the minors suggested, due to the trouble mother
was having participating in all the services given her work schedule, and
based on a recommendation from Terra Firma, that mother address her
substance abuse in individual therapy rather than doing the 24-week alcohol
treatment program. The Agency was open to this suggestion and the court
responded by removing any requirement that mother test a certain number of
times as a condition of overnight visits.
In July 2019, the Agency recommended returning the minors home
under a family maintenance plan. Mother and D.G. agreed with the
recommendation but Heidi did not. McWoods reported that mother had been
“supportive and patient with the minors despite Heidi not being interested in
returning home.” Heidi was unsure about returning home because “if we live
with our mom she might hit us”; she said she was not ready to return because
she was concerned mother had not changed her “old behaviors of yelling or
using alcohol” and asked if she could be placed with her aunt. Although
Heidi said she enjoyed the girls’ first overnight with mother on April 26 at
the end of May, mother reported that Heidi was not participating in all their
scheduled visits. In June, Heidi stayed with mother for the first week of a
two-week trial visit, then spent the remainder with her aunt. She told
McWoods that mother had not yelled at or hit her or D.G. and she could tell
mother was “trying to hold it together.” McWoods reported that the Agency
was worried the aunt was not supportive of reunification and “her close bond
7
with the minor Heidi is encouraging the minor to refuse to return home.”
The Agency and mother were concerned that the minors were being forced to
choose between a relationship with mother or with the aunt.
McWoods reported that mother was “willing to do outpatient/relapse
prevention classes but does not think she needs them.” Mother had had 10
negative urinalysis tests between March 14 and May 1, 2019, and Cuellar
said she “appears to be abstaining and her delusions do not seem to be an
indication that she is drinking.” McWoods commented that mother had a
busy schedule, working full time in Cupertino and struggling with
transportation as her car was not working. Mother had been referred to a
new individual therapist on April 19, 2019, family therapy was continuing,
and a referral had been made for in-home family therapy. In May, mother
told Yi Cheng, the Family Preservation child welfare worker, that she was
going to start a new job and, because she would have a probationary period,
would not be able to participate in the case plan during working hours, only
on weekends.3
At a hearing on July 15, the court returned D.G. to mother’s care and,
with respect to D.G.’s case, found the agency had provided reasonable
services and complied with the case plan.4 The previously scheduled August
26, 2019, 12-month review hearing date was vacated and a hearing to contest
the Agency’s recommendations as to Heidi was set for October 15.
Mother had been working at Apple in Cupertino; the new job, at
3
Amazon in Sunnyvale, began on May 14, 2019.
4 At the hearing, a new judge had taken over the case.
8
Subsequent delays resulted in the hearing taking place over several dates in
late 2019 and early 2020.5
Heidi’s court appointed special advocate (CASA) reported that Heidi
had hesitations about overnight visits with mother and recommended she
remain in her placement and continue therapy with mother to build trust.
Heidi reportedly felt mother was not genuine with the family therapist and
other service providers, worked at leaving a good impression, and only got
frustrated when she was alone with the minors. Heidi believed mother was
still drinking alcohol and had overheard an argument between mother and
mother’s boyfriend during which she thought she heard mother slap the
boyfriend. She also expressed concern about mother’s strictness with school:
If she or her sister got a C on a test, mother would have them memorize a
chapter from a book word-for-word and get upset if they were unable to do
this.
The Agency continued to recommend that Heidi return to mother’s
home with a family maintenance plan and Heidi continued to oppose this
recommendation. In mid-August, when contacted during a visit at mother’s
home, Heidi said everything was fine. A few weeks later, she said she was
concerned about going home because she was afraid mother would yell at her
or hit her, she was worried about not being able to see her aunt or go out with
friends, and “I just don’t trust my mother.” In November, mother told
McWoods she felt disappointed that Heidi was no longer visiting with her and
instead was visiting with her aunt.
Cheng reported that she had worked with mother, the minors, and the
family therapist to develop a “Prevention Plan” addressing mother’s alcohol
On October 15, 2019, the hearing was continued after counsel for the
5
minors declared a conflict with respect to D.G.
9
abuse and appropriate parenting methods6 and mother was “open-minded”
and “played an active role” in this process. Cheng was working with mother
to develop realistic expectations of the children and not use physical
discipline. Cheng stated the Agency was worried that mother’s expectations
of the minor exceeded the minor’s developmental ability to meet them, and
that mother had “felt discriminated against throughout her dependency case
and had focused on clearing her name instead of acknowledging areas where
she can improve her and her children’s relationship.” Cheng observed that
Heidi’s “view and interpretation of the things occurring around her, her
mother, or sister appears to be with a lot of fear” and suggested this “might
be related to her Conflicted PTSD [Post-Traumatic Stress Disorder]
Diagnosis.”
Mother continued to test negative for alcohol and other substances.
She had asked to stop testing in July, but McWoods advised her to continue
because of the contested case. In December 2019, the frequency of testing
was reduced to twice a month.
At the contested hearing, Heidi testified that she stopped going to visits
with mother because of “things that happened when I went there.” One
example was that mother had tried to hit D.G. a couple of times; D.G.
“dodged” the attempts. Another was that Heidi was uncomfortable being at
6 The prevention plan, which mother and the child welfare workers
signed in May 2019 and was discussed with both minors, stated that the
parties had agreed mother needed to maintain an alcohol-free lifestyle;
mother would not use physical discipline, the family would work with the
family therapist to develop mutually agreed “rules/disciplines/methods” to
handle disagreements and yelling would not be used; reasonable “House
Rules and expectations (cleaning, laundry, meal preparation, computer and
cell phone use) needed further discussion; and visitation arrangements for
the minors and maternal aunt and grandfather would be discussed.
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mother’s home because she did not have her own space there and had to stay
in the living room. She still had a bed in the room she used to share with
D.G. but she felt D.G. was angry with her for not wanting to return to
mother’s home. Asked if she felt comfortable sleeping in that room, Heidi
replied, “yeah, I guess . . . I mean, I don’t really know.” Heidi was also
uncomfortable with mother asking her about the case and why she did not
want to come home.
Heidi testified that on one visit over the summer, she and mother were
lying on mother’s bed talking about Heidi having gone to Great America and
Heidi turned away because she felt pressured by mother’s questions. Mother
grabbed her arm, turned her around and put her hand on Heidi’s chin to
make Heidi look at her. Heidi felt mother was touching her “aggressively”
and was afraid mother would hit her. On another occasion, she overheard
mother yelling at mother’s boyfriend and thought she heard mother slap him.
She recognized the sound from when mother hit her and it scared her. Heidi
was also worried mother was still drinking alcohol. She testified that during
a visit over the summer she saw mother drink at least two beers at a party,
then mother threw up on the way home, which Heidi had seen happen before
when mother drank a lot.
Heidi did not feel mother was acting like herself in family therapy and
did not think they were making much progress. Mother had not apologized
for what had happened or reassured Heidi that she would not hit her
anymore or had stopped drinking. Heidi was still afraid of mother and
wanted to live with her maternal aunt. She testified she had told McWoods
why she did not want to go home, but McWoods did not seem interested.
Cheng testified that she determined it was safe for Heidi to be returned
to mother’s care based on the facts that mother kept all her appointments
11
with Cheng, continued to submit clean drug tests, and participated
consistently in weekly family therapy; weekend visitation had been without
major incident, and mother maintained a full-time job and housing.
Additionally, D.G. felt comfortable returning home and Cheng had not heard
of any reports of physical abuse while D.G. was in mother’s care. Cheng
testified that the frequency of mother’s substance abuse testing was reduced
to once a week on Saturdays, at mother’s request, to accommodate mother’s
work schedule. In Cheng’s view, mother complied with her case plan, albeit
“[n]ot 100 percent” because she had not completed individual therapy. Cheng
testified that she had to look at the whole situation, which included mother’s
need to keep her job and pay rent, as well as the child’s safety, and mother
had explained her new job did not give her flexibility and the referred
therapist did not have time that fit her schedule.
Cheng testified that when Heidi reported the Great America incident,
she was asked whether mother hit her and replied that mother “almost
slap[ped]” her. Mother denied hitting Heidi and, at Cheng’s request,
provided a written explanation of the incident.7 Cheng was satisfied and she
did not view the incident as “related to physical abuse.” Cheng acknowledged
that Heidi had been diagnosed with PTSD based at least in part on mother’s
physical abuse and alcohol abuse, and that in these circumstances, a parent
acting aggressively could trigger a PTSD reaction in the child. Cheng
7 Mother’s written statement related that when she asked what Heidi
had done over the weekend, Heidi said she had gone to Great America with
her aunt; mother asked how she had gotten in because mother had the season
pass and when Heidi said her aunt had requested a new one, mother told
Heidi it was not okay for the aunt to do this and Heidi needed to ask mother’s
permission. Heidi rolled her eyes, said she was tired, turned around and fell
asleep.
12
investigated Heidi’s report that mother almost hit D.G. and determined it
was unfounded because D.G. said there was no hitting or yelling.8
McWoods testified that mother had complied with her case plan except
for individual therapy, as to which her work schedule created a “significant
barrier.” She did not think individual therapy was a significant portion of
the reunification plan because her understanding was that culturally it was
not the “most appropriate” way to support mother. McWoods testified that
the Agency was looking for behavioral change, not just submission to
services, and she felt mother was addressing what could have been addressed
in individual therapy through family therapy and “other coping skills that
she identified during this dependency case.”
McWoods did not have any concerns about returning Heidi to mother’s
care because of mother’s “demonstrated behavioral changes,” effort to
accommodate Heidi, and “interest in wanting to show Heidi . . . that things
will be different in the household.” McWoods had observed mother become
more receptive to constructive criticism and sensitive to Heidi, allowing Heidi
space when Heidi did not want to visit, and no longer badgering Heidi or
forcing her to do things she did not want to do. McWoods noticed mother
“differentiating” the two girls and their personalities and interests, and
trying to accommodate Heidi—for example, by inviting her on trips planned
with Heidi’s interests in mind.9 Mother remained “passionate,” but was
“more thoughtful,” “less reactive,” and more able to “talk herself down.”
8Cheng had not met with Heidi in person since August 15, 2019, when
D.G. returned home. She testified that Family Preservation provides three to
four months of services, and her role had terminated at that point.
9One such trip would have been to an animal preserve, as Heidi is an
animal rights activist. Another was a family trip to Mexico that Heidi
declined to attend.
13
McWoods testified that Terra Firma initially recommended a formal
alcohol treatment plan for mother but over time changed its assessment,
notifying the Agency in June 2019, that mother did not need substance abuse
treatment other than testing. McWoods acknowledged that mother did not
believe she had an alcohol problem, was resistant to a treatment program
from the beginning of the case, and did not participate in individual therapy
after being offered the alternative of addressing addiction and relapse
prevention in that context. Asked about Heidi’s report that mother drank
and became ill, McWoods testified that Heidi believed mother had some
drinks at a restaurant because mother threw up in the car afterward, but
mother adamantly denied drinking and said she just became ill.
McWoods testified that the Great America incident did not meet the
standard for abuse. According to McWoods’s notes, in discussing Heidi’s role
in the incident, McWoods advised Heidi that “she must also keep herself safe”
and “being disrespectful to her mother is not an appropriate way to keep
herself safe.” McWoods was not concerned about Heidi’s physical safety in
this incident but rather her emotional safety. She “[a]bsolutely” felt Heidi
could be returned home with services that would eliminate the risk to her
emotional well-being including maintaining Heidi’s CASA, continuing
individual and family therapy, and referring the case to a program that
would provide a parent advocate for mother and a mentor for Heidi.
Heidi’s CASA, who had been meeting with the minor approximately
once a week for about 10 months, testified that Heidi was “not quite
comfortable” going home and felt “a lot of things” had not changed. In
addition to the issues mentioned in the CASA’s written report, Heidi felt
mother had not attempted to address Heidi’s concerns and was uncomfortable
14
with mother trying to talk to her about the case outside the context of family
therapy.
Mother testified that after her substance abuse assessment in
September 2018, she was told she had a mild alcoholic problem and was
instructed to call daily to find out when she needed to test; she knew she
would have to test twice a week but did not know which days she would have
to go. She was told that she had two tests in which the samples were too
diluted, and explained that she used to drink a great deal of water because of
a medication she was taking. The random testing continued until June 2019,
when mother asked to test once a week because D.G. wanted to spend more
time with her, and the Agency agreed. In January 2020, the testing
requirement was reduced to once a month. Mother testified that her case
plan included attending AA meetings and she did three online sessions
through a website given to her by D.G.’s social worker.
Mother did not feel she needed individual therapy, but believed family
therapy was beneficial to her and the children and agreed to continue if Heidi
was returned to her care. Mother explained that after attending several
sessions of individual therapy, she had been unable to continue because her
car broke down and with her job in Cupertino, it was hard to manage
parenting classes, drug testing, therapy, and visitation.10 Efforts to find a
therapist who could see her on weekends were unsuccessful. She told
McWoods she did not believe she needed individual therapy because she was
participating in family therapy, and McWoods did not require her to continue
looking for an individual therapist. Mother believed she was in compliance
with everything she needed to do for her case plan.
Her car was not repaired until January 2020. She borrowed a car in
10
May 2019 for two months.
15
Mother denied having grabbed Heidi and turned her around when they
were discussing Great America. She denied drinking at the party as Heidi
reported, testifying that she got sick on the way home due to eating food she
had ordered to be delivered because there was no vegetarian food at the
party. Mother believed Heidi misunderstood the situation because mother
was sitting at a table with people who were drinking. The party was on a
Saturday night and she had tested at Terra Firma that afternoon. Mother
testified she had not had any alcohol or used physical punishment on Heidi
since September 2018.
Asked whether she had done anything to reassure Heidi she would not
drink alcohol in the future, mother testified she had tried talking to her, but
Heidi did not want to talk about it. Mother testified, “I kind of tell her that I
love her, and if I did make any mistakes in the past, that that’s not going to
happen again. And that she can see that things have changed a lot, but how
am I going to prove that to her like completely if she’s not even around, and
she’s not even talking about it?” Mother testified that she had learned from
her parenting class to show and tell her children she loves them, not be too
strict and “not be physical” in a way that might make them feel unsafe, and
on visits, she tried to communicate with Heidi and have a better
understanding of what Heidi wants and needs.
With respect to the original allegations, mother acknowledged she was
under the influence of alcohol and hit D.G., but denied hitting her with a cord
or hitting Heidi. She felt Heidi was sometimes “a little too sensitive to
things,” did not think Heidi was afraid of her, just “afraid of when I raise my
voice,” and did not believe Heidi did not trust her. She testified that Heidi
did not want to come home for “other reasons”—she wanted to live with her
aunt and felt she had more freedom not living with mother.
16
After hearing arguments from counsel and reviewing the transcripts,
the juvenile court ruled that returning Heidi to mother’s care would create a
substantial risk of detriment to her safety, protection, or physical or
emotional well-being. The court stated as the factual basis for this finding
that mother had “not participated regularly and made substantive progress
in court-ordered treatment programs, nor made substantial progress in
complying with the case plan, nor alleviated or mitigated the causes
necessitating out-of-home placement. The court found mother’s compliance
with the case plan as it related to Heidi had been “minimal” and, in a
detailed explanation of its ruling, found mother was not a credible witness
while Heidi was highly credible; was critical of both mother’s failure to
participate in aspects of the case plan and the Agency’s acceptance of these
failures; and expressed concern that family therapy was focused on D.G. and
the case workers minimized Heidi’s expressed fears. In sum, the court found
mother “is not aware, is not reflective, has not made the substantial level of
growth and progress and amelioration that is required for the youth to safely
return home.”
This appeal followed.
DISCUSSION
Mother contends the Agency failed to provide reasonable reunification
services. Specifically, she argues the juvenile court made no finding as to
whether reasonable services were required, and the court’s criticisms of the
services preclude finding they were reasonable. Consequently, mother
maintains she should be provided additional services and time to address the
remaining protective issues identified by the juvenile court.
“Under the statutory scheme, review hearings are held every six
months, at which time the juvenile court determines, among other things,
17
whether the child welfare agency has offered the parent reasonable
reunification services. (§§ 366.21, subds. (e), (f), 366.22, subd. (a); Cynthia D.
v. Superior Court (1992) 5 Cal.4th 242, 249.) At the six- and 12-month review
hearings, the standard of proof for the reasonable services finding is
expressly clear and convincing evidence. (§ 366.21, subd. (g)(1) & (2).)”
(Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594.) If reasonable
services were not offered or provided, the parent must be offered additional
services and time for reunification. (In re K.C. (2012) 212 Cal.App.4th 323,
334 [error to terminate services where evidence did not support finding
reasonable services were offered or provided]; T.J. v. Superior Court (2018) 21
Cal.App.5th 1229, 1256 [extension of services beyond 18 months where
reasonable services not provided].)
Respondent agrees that the trial court did not make the requisite
finding as to whether reasonable services were provided, but argues that
mother forfeited any challenge on this basis by failing to raise the issue in the
juvenile court. Dependency matters are subject to the rule that “a reviewing
court ordinarily will not consider a challenge to a ruling if an objection could
have been but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th
1287, 1293) “The purpose of this rule is to encourage parties to bring errors
to the attention of the trial court, so that they may be corrected.” (Ibid.)
While application of the forfeiture rule is not automatic, “the appellate court’s
discretion to excuse forfeiture should be exercised rarely and only in cases
presenting an important legal issue.” (Ibid.) “Although an appellate court’s
discretion to consider forfeited claims extends to dependency cases [citations],
the discretion must be exercised with special care in such matters.
‘Dependency proceedings in the juvenile court are special proceedings with
their own set of rules, governed, in general, by the Welfare and Institutions
18
Code.’ (In re Chantal S. (1996) 13 Cal.4th 196, 200.) Because these
proceedings involve the well-being of children, considerations such as
permanency and stability are of paramount importance. (§ 366.26.)” (Ibid.)
Here, the juvenile court’s failure to make a finding as to whether
reasonable services were offered or provided could easily have been rectified
if the issue had been brought to the court’s attention. We recognize, however,
the practical reality that mother’s attorney was unlikely to have had this
issue in mind at the hearing since mother and the Agency were aligned in
arguing for Heidi’s return.
In any event, if we overlook the forfeiture, it remains mother’s burden
to affirmatively demonstrate prejudicial error.11 She has not done so, as
there is ample evidence the Agency did offer reasonable services. Because
the standard of proof for the juvenile court was clear and convincing
evidence, the question for us is “whether the record as a whole contains
substantial evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in making this
11 Respondent argues that any error by the juvenile court in failing to
make a reasonable services finding was harmless because the remedy mother
seeks is additional time and the juvenile court effectively provided that
remedy by continuing the matter to the 18-month hearing. This argument is
misplaced. Due to continuances and delays, the contested hearing did not
conclude until shortly before the February 24, 2020 date previously set for
the 18-month hearing. After issuing its ruling on February 14, 2020, the
court discussed this timing issue with counsel and then continued the matter
to February 24, 2020, at which time it was continued to March 11, 2020.
Even with the continuance to March 11, 2020, the time afforded by the
juvenile court’s continuance of this matter was only a month. Moreover, had
mother prevailed on her claim that reasonable services were not provided,
she would have been entitled to not only additional time but additional
services.
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assessment the appellate court must view the record in the light most
favorable to the prevailing party below and give due deference to how the
trier of fact may have evaluated the credibility of witnesses, resolved conflicts
in the evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996.)
Mother argues that finding the Agency provided reasonable services
would conflict with the juvenile court’s stated views regarding the Agency’s
case plan. In particular, the court found the substance abuse plan
“insignificant” because mother’s substance abuse testing was not random and
she did not participate in a treatment program. Since the Agency accepted
the testing regime established at Terra Firma and the program’s
communication in June 2019, that mother did not need the treatment
program, and considered mother in compliance with the substance abuse
aspect of her case plan, mother views any deficiency in the plan as the fault
of the Agency, not mother.
The juvenile court, however, clearly viewed mother as having
manipulated the system to avoid random testing. The court stated: “It was
soon somehow acquiesced, manipulated or decided, in large part by the
mother, that the testing schedule didn’t work for her work schedule, and at
some point, her testing dates became known to her. . . . [¶] There was
evidence that Mother had allegedly been clean and not tested positive for
alcohol since about March of 2019. But the court’s determination and
conclusion is that a large part of her testing was on dates and times that she
would know were set to occur.”
These remarks indicate the deficiency the juvenile court found was less
in the services offered than in what mother did with them. This view is
supported by the evidence. In addition to testing, the case plan called for
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mother to follow the recommendations of the substance abuse assessment,
including “participating in a substance abuse treatment program and drug
and/or alcohol testing,” but mother reportedly was “combative and not
interested in completing the program” recommended by Terra Firma as a
result of mother’s assessment. It was only in June 2019, some nine months
into the reunification period, that Terra Firma informed the Agency mother
did not need the program; prior to that, the evidence indicates, mother had
resisted the recommendation. Similarly, the court noted that the treatment
plan called for mother to attend AA meetings and found mother’s attendance
of at most three online sessions “not sufficient compliance with the case plan
or coming close to treating what seems to be an alcohol problem.”
The court expressly found mother lacked credibility as a witness—in
general and with respect to substance abuse12—and found Heidi “the most
credible of all witnesses,” specifically referring to Heidi’s detailed description
of mother drinking at a party and becoming ill on the way home. In the
court’s view, mother “progressively sought fewer and fewer tests and very few
random tests,” leaving the court without confidence that mother was “alcohol-
free” or had “turned the corner on an alcohol problem.”
Other problems the court identified were clearly with mother’s
compliance, not the services offered. The court found mother “did not comply
12 The court found that mother’s diluted samples were “in fact, dirty
tests,” stating “mother’s explanation at trial as to drinking a lot of water was
not credible.” The court continued, “In fact, Mother, as a witness, the court
finds to be not credible, as I observed her throughout the trial. [¶] Her
explanations to the court just don’t make sense. Her demeanor, her physical
emotions to witnesses of shaking her head yes or no, giving counsel who are
cross-examining her what I would describe as the side eye, her lateness to
court at the last court date, and in the totality, just her explanations for an
attempt to contradict the testimony of the child, Heidi, was just not
believable.”
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with her case plan of individual therapy,” attending only a few sessions and
making clear she did not believe she needed individual therapy. Again, the
court viewed the Agency as having “acquiesce[ed].” The court stated, “I think
the workers just sort of gave up. I’ve never had a case where the workers
seemed to, in large part, ignore the needs of the child and bend over
backwards because the parents have a job. Many of our parents work. That
doesn’t excuse them from compliance with the case plan. It doesn’t excuse
them from having to make changes to ameliorate the reasons the child or the
children were removed.”
The evidence shows that mother found it difficult to attend individual
therapy, as well as participate in her other services because of her work
schedule and long commute. The agency tried to assist in finding a therapist
who could see mother on weekends but was unable to find one available. The
court’s view that this did not excuse mother from engaging in this aspect of
the case plan was reasonable, especially in light of mother’s expressed belief
she did not need individual therapy. As the court pointed out, mother’s
history of physical abuse of the children and alcohol use, and the “anger in
the parenting styles that were evidenced in the testimony in court,” indicated
there was “something wrong that could be benefitted by individual therapy”
for mother. More than a year into the dependency, Heidi was consistently
expressing her fear and lack of trust in mother, to the point that she refused
to participate not only in visits with mother but in a family trip to Mexico and
another trip planned specifically to appeal to her interest in animals.13 Yet
despite all the months of family therapy, mother did not believe Heidi was
afraid of her or did not trust her, and thought Heidi was “a little too sensitive
to things.” The Agency appropriately included individual therapy in the case
13 See footnote 9, ante.
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plan and did what it could to accommodate mother’s schedule; mother’s
inability or unwillingness to find a way to fit individual therapy into her
schedule does not mean the Agency failed to provide reasonable services.
It is evident from the juvenile court’s remarks that the court disagreed
with the Agency’s handling of this case with regard to Heidi. The court was
concerned that the family therapy was “in large part . . . focused on the older
sibling,” noting that records attached to the Agency’s reports identified D.G.
as the person receiving treatment and Heidi was “barely, if at all,
referenced.” Noting Heidi’s testimony about being afraid when her mother
drinks and the many times the record showed Heidi having told an Agency
worker she was afraid of her mother, the court commented, “yet nobody from
the Agency seems to be taking heed of that. Instead they seem to minimize
what Heidi is afraid of.”14 The court noted Heidi saying her mother was
“acting for the adults” and “things really aren’t what they seem to be” and
agreed: “I have to say that is the court’s conclusion as well.” The court also
expressed concern about McWoods’s note regarding the Great America
incident, which said she advised Heidi that she “needs to maintain her safety
by being respectful.” The court found this an indication that Heidi’s needs
were not being heard and addressed, stating, “Part of the safety plan should
not be Heidi is subject to physical abuse or being grabbed or yanked around
on the bed when she turns away from her mother during an argument.”
The court’s concern that the Agency was not sufficiently attending to
Heidi’s distinct issues is troubling, of course. But this bears more on the
Agency’s assessment of the family situation than the services it offered
14The court illustrated the degree to which Heidi felt unsafe with
mother by reference to the evidence that she declined to go on a family
vacation to Mexico or on a proposed trip to an animal preserve that mother
planned specifically for Heidi.
23
mother. The components of the case plan were designed to address the
physical abuse of both minors and mother’s alcohol use. The family therapy
notes which led the juvenile court to conclude therapy focused largely on D.G.
were for February through May 2019. Family therapy was on-going,
including after D.G. returned to mother’s care in July 2019, and, according to
the October 15, 2019 report of Heidi’s CASA, in August 2019, Heidi and
mother began once a week counseling together in addition to the family
therapy with D.G. This evidence supports a conclusion that services were
directed at issues relating to Heidi, even if the case workers were
insufficiently attuned to her needs. The issue on this appeal is provision of
reasonable services, not the Agency’s evaluation of the case.
“ ‘ “Reunification services implement ‘the law’s strong preference for
maintaining the family relationships if at all possible.’. . .” The department
must make a “ ‘ “good faith effort” ’ ” to provide reasonable services
responsive to the unique needs of each family. . . . “[T]he plan must be
specifically tailored to fit the circumstances of each family . . . , and must be
designed to eliminate those conditions which led to the juvenile court’s
jurisdictional finding. . . .” . . .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. . . . “[T]he 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. . . .” ’
[Citations.]” (In re K.C., supra, 212 Cal.App.4th at pp. 329–330.) “ ‘The
24
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.’ ” (In re J.E. (2016) 3 Cal.App.5th 557, 566, quoting In re
Misako R. (1991) 2 Cal.App.4th 538, 547.)
These standards were met here. The juvenile court was critical of the
Agency’s acceptance of mother doing scheduled rather than random
substance abuse testing, not participating in a substance abuse treatment
program and not engaging in individual therapy, all of which the court
viewed as alterations of the case plan at mother’s request due to the demands
of her schedule. More significantly, the court disagreed with the Agency’s
assessment that it was safe to return Heidi to mother’s care. But, as we have
explained, none of this means mother was not offered reasonable services
aimed at remedying the identified problems presented in this case.15
DISPOSITION
The order is affirmed.
15 As was acknowledged in the juvenile court proceedings, this case is
unusual in having the Agency recommend return of a child who adamantly
opposes returning to parental care. It is not surprising that mother portrays
herself as blindsided by the juvenile court’s rejection of the Agency’s
recommendation to return Heidi to her care when the Agency reported
mother was complying with her case plan and making positive behavioral
changes. But the juvenile court viewed mother as having manipulated the
situation so as to give the appearance of progress the court did not believe to
be established. The court found Heidi to be “the most credible of all
witnesses” and believed her fears and lack of trust were genuine; the court
expressly rejected mother’s contrary explanations as lacking credibility.
These are determinations to which we must defer.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
In re Heidi E. (A159813)
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