In Re Albert T.
The juvenile court denied family reunification services to Peggy L., the mother of Albert T., under Welfare and Institutions
FACTUAL AND PROCEDURAL BACKGROUND
1. Alan‘s Removal frоm Peggy; Peggy‘s Partial Compliance with the Case Plan; and Termination of Family Reunification Services
On October 22, 2003 the Los Angeles County Department of Children and Family Services (Department) detained six-year-old Alan, an emotionally disturbed child (Alan had been diagnosed as having both bipolar disorder and attention deficit hyperactivity disorder), because Peggy, who is cognitively delayed (with an IQ of 55), reported to the Department she was no longer able to care for him. Albert, then only 11-months-old, was also detained.
In a petition filed pursuant to section 300 on October 27, 2003, and subsequently amended on November 26, 2003, the Department alleged Peggy “is unwilling and unable tо provide the child [Alan] with ongoing care and supervision due to the child‘s mental and emotional problems. . . . [P]rior DCFS voluntary services and Harbor Regional Center services have been ineffective in resolving the family problems . . . .”2 The lack of a parent to provide care was also alleged to place Albert at risk of physical harm. The amended petition further alleged Alan‘s father, Richard C., had physically abused him; Richard had a history of alcohol abuse that remained unresolved and limited his ability to care for Alan; and Richard had physically assaulted Peggy in Alan‘s presence.
In its jurisdiction/disposition report, filed concurrently with the November 26, 2003 amended petition, the Department stated, “Alan was removed from home because his parents could not cope with his behavior. He has been diagnosed as ADHD.” The Department also explained Peggy had received services from Harbor Regional Center, as well as assistance from a Life Steps worker, who helped her in the home and with daily living skills. According to the Department, “Mother has ample resources but is still unable to care for her child, requesting that he be removed from her care and placed in foster care.”
Following a successful mediation, on February 20, 2004 the court ordered the petition further amended by interlineation:
Alan was declared a dependent child of the court and ordered suitably placed. Peggy and Richard received family reunification services with monitored visitation. The court ordered that Alan be provided individual therapy and conjoint therapy with Peggy and Richard, as well as with his stepfather Albert T., Sr. (Albert‘s father). Peggy and Richard were ordered to participate in a parenting program addressing Alan‘s special needs and any additional education and training programs recommended by Alan‘s therapist, as well as to participate in appropriate individual counseling to meet Alan‘s needs, as directed by the conjoint therapist, including sessions dealing with Alan‘s special needs, the effects of medication and the effects of aggressive behaviоr/family violence on children. Although in its jurisdiction/disposition report the Department had recommended that Peggy and Richard be ordered into domestic violence counseling, the parties’ mediated case plan did not provide for such counseling; and the court‘s disposition order did not include a requirement that Peggy complete domestic violence counseling.
At the six-month review hearing held pursuant to
The Department‘s report for the permanency review hearing held pursuant to
The juvenile court found Peggy only in partial cоmpliance with the case plan, terminated family reunification services and ordered the Department to provide permanency planning services for Alan.
2. The Voluntary Family Maintenance and Voluntary Family Reunification Agreements, and Albert‘s Return to Peggy
As a result of the domestic violence incident in November 2004, on December 8, 2004 Peggy and Albert T., Sr. entered into a voluntary family maintenance (VFM) agreement with the Department to provide a safe environment for Albert. Peggy agreed to move with Albert to a friend‘s house until she could find her own apartment and to complete parenting classes and individual counseling addressing domestic viоlence. Albert T., Sr. agreed to complete the domestic violence program that had been ordered following his arrest.
Shortly after moving from their old apartment, Peggy, who was unable to obtain stable housing, arranged for Albert to stay with a paternal aunt. The Department assessed the aunt‘s home; Albert was formally placed in the home; and on February 16, 2005 the original VFM agreement was converted to a voluntary family reunification (VFR) agreement. Peggy again agreed to participate in individual counseling that addressed domestic violence issues.
Peggy began domestic violence classes on March 16, 2005. Starting in June 2005 Peggy enrolled in prоgrams at Su Casa Family Crisis and Support Center and on August 31, 2005 completed “psycho-educational individual counseling addressing domestic violence issues” and parenting classes. She also secured appropriate housing for herself and Albert. At that point, according to the Department, “[H]aving completed her counseling and secured education in domestic violence from Su Casa the VFR was closed and minor Albert . . . was released to his mother.”
3. Albert‘s Removal and the Department‘s Recommendation That No Reunification Services Be Provided
On October 28, 2005 a referral was initiated for Albert through the child abuse hotline, which included allegations Albert was at risk of physical abuse from Peggy and possible sexual abuse from Peggy‘s current male companion, Ron M. Upon investigation the Department learned Albert had continued to live with his paternal aunt subsequent to his release to Peggy in August 2005. According to the aunt, neither Peggy nor Albert T., Sr. visited Albert or helped her financially with his care.
The Department‘s investigators received information Peggy had struck her housemate‘s seven-year-old daughter. In addition, Peggy‘s service providers at the Harbor Regional Center and Life Step indicated their concern about Peggy‘s relationship with Ron M., who had a history of domestic violence. As a result, Albert wаs detained on November 1, 2005 and placed with his paternal aunt; a new section 300 petition was filed concerning Albert on November 3, 2005.
In addition to allegations relating to Peggy‘s purported physical abuse of her housemate‘s daughter, which were ultimately
The Department‘s detention report, dated Novеmber 2, 2005, noted Peggy had a history of prior domestic violence in her relationships and observed, “[A]lthough [Peggy] has attended and completed Individual Counseling addressing Domestic Violence mother again has chosen a partner who has a history of arrests for Domestic Violence.” The petition specifically stated the Department may seek an order pursuant to section 361.5 that no reunification services be provided to the family. An addendum report, dated November 3, 2005, recommended no reunification services be provided Peggy without further explanation.
At the November 3, 2005 detention hearing the juvenile court found a prima facie case had been established for detaining Albert and ordered him temporarily placed with his paternal aunt. After a continued detention hearing on November 7, 2005, at which Peggy‘s appointed counsel entered a denial on her behalf, the court set a pretrial resolution conference for December 12, 2005.
On December 12, 2005, counsel for the parties agreed to an amended petition and submitted the jurisdictional determination to the court on the papers that had been filed by the Department. The court sustained the counts of the amended petition under
4. Albert‘s Disposition Hearing
The contested disposition hearing, originally scheduled for January 12, 2006, was continued to February 6, 2006 to allow updated information to be presented to the court regarding Peggy‘s progress in counseling and with her visitation. At the February 6, 2006 hearing, the court received, read and considered the Department‘s jurisdiction/disposition report prepared for the December 12, 2005 pretrial resolution conference; a two-page “last minute” information report, dated January 12, 2006, which contained a short rеport from Albert‘s paternal aunt regarding Peggy and Albert T., Sr.‘s visits with the child; and an interim review report dated February 6, 2006.
With respect to the issue of family reunification services for Peggy, the jurisdiction/disposition report contained a brief summary of Alan‘s dependency proceedings and stated, “Pursuant to WIC 361.5(b)(10) no reunification services need to be provided to mother as the court
The interim review report indicated that neither Albert nor Peggy had begun counseling. As to the issue of reunification services, this report simply stated, “DCFS is recommending that mother not receive reunification services as mother has another child who is receiving permanent placement services. WIC 361.5(b)(10).”
At the February 6, 2006 hearing the court also received two exhibits from Peggy: (1) A psychological evaluation from Dr. Alan J. Glasser confirming Peggy is mildly mentally retarded within a trainable range of intelligence. Dr. Glasser concluded Peggy could achieve social and vocational skills adequate for minimum self-support in the proper training facility. However, he also indicated she would probably need guidance and assistance if subjected to unusual social or economic stress. (2) A report from Harbor Regional Center, also confirming Peggy‘s mild mental retardation and assessing her ability to live independently and function appropriately with Albert.
After proffering her two exhibits, Peggy‘s counsel, who had originally set the matter for a contest, asked to proceed by way of argument only. Counsel then addressed
No evidence (other than as contained in the Department‘s reports received by the court) was offered by any party regarding Peggy‘s effort or lack of effort to treat the problems that led to Alan‘s rеmoval. Without any additional argument on the point, the court ordered, “[P]ursuant to 361.5(b)(10), there will be no family reunification services offered to mother . . . .” The court made no findings as required by section 361.5, subdivision (b)(10), that “this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian.”4
DISCUSSION
1. Standard of Review
When the sufficiency of the evidence to support a juvenile court‘s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393, 32 Cal.Rptr.3d 526; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, 42 Cal.Rptr.3d 504 [“A court reviews
However, substantial evidence is not synonymous with any evidence. (In re Savannah M., supra, 131 Cal.App.4th at p. 1393, 32 Cal.Rptr.3d 526.) “A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermоre, `[w]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.] `The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ [Citation.]” (Id. at pp. 1393-1394, 32 Cal. Rptr.3d 526; accord, In re David M. (2005) 134 Cal.App.4th 822, 828, 36 Cal. Rptr.3d 411.)
2. Section 361.5, Subdivision (b)(10), and the Denial of Reunification Services
“It is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system.” (In re Luke L. (1996) 44 Cal.App.4th 670, 678, 52 Cal. Rptr.2d 53.) The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent or guardian unless the court finds by clear and convincing evidence that one of the 15 exceptions set forth in
To apply
3. The Juvenile Court Erred in Denying Reunification Services to Peggy
Peggy does not dispute that the first prong of section 361.5, subdivision (b)(10), has been satisfied: The court terminated reunification services for Albert‘s older sibling, Alan, in April 2005 after she failed to reunify with him. However, Peggy emphasizes that, notwithstanding an express statutory requirement for findings before application of the subdivision (b)(10) exception, the juvenile court failed to make any finding that she had not made a reasonable effort to treat the problem that led to Alan‘s removal and argues the Department failed to present sufficient evidence that would justify such a finding in this case. The Department in response argues the record supports the implied finding Peggy had not made a reasonable effort to treat her issue with domestic violence, which it contends was a “concern” at the time of Alan‘s removal.
Given the importance of reunification services in the dependency system, we have considerable doubt as to the propriety
a. Was domestic violence the problem that led to Alan‘s removal?
The
The Department, of course, is correct in its assertion on appeal that domestic violence was a “concern” at the time of Alan‘s removal. Indeed, as originally filed the November 2003 amended petition, which identified both Alan and Albert as needing protection, alleged Alan‘s father had physically assaulted Peggy in Alan‘s presence. But that count was dismissed from the petition; and Albert was returned to Peggy‘s care, belying any contention that domestic violence made Peggy‘s home unsafe at that time or that Alan‘s removal was predicated, even in part, on concerns about domestic violence. (Indeed, the jurisdiction/disposition report filed in Alan‘s case expressly stated, “Alan was removed from home because his parents could not cope with his behavior.“) Moreover, there is no indication the original section 300 petition with its allegation of domestic violence was before the juvenile court at Albert‘s disposition hearing when it ordered no reunification services for Peggy. Even if the juvenile court was aware of this “concern,” however, the reasonable-efforts-to-treat
b. Did Peggy make a reasonable effort to treat the domestic abuse issue?
The most serious problem with the juvenile court‘s denial of reunification services under section 361.5, subdivision (b)(10), is the implied finding Peggy failed to make a reasonable effort to treat the issue of domestic violence in her life (even assuming that was at least part of the problem that led to Alan‘s removal). In fact, Peggy completed several court-ordered and Department-supervised programs specifically directed to domestic violence. First, as part of the reunification services ordered when Alan was removed, Peggy participated in individual counseling that addressed, among other issues, the effects of aggressive behavior/family violence on children. (The Department‘s original recommendation that Peggy complete domestic violence counseling was not part of the mediated case plan and was not ordered by the court.) Peggy was found in full compliance with her case plan at both the six-month and 12-month review hearings and partial compliance when reunification services were terminated, as required by statute, at the 18-month hearing after the court concluded Alan could not be returned to Peggy at that time. (See
Second, in connection with the VFM and VFR agreements between Peggy and the Department, which continued past the date of termination of reunification services for Alan, Peggy enrolled in and completed both parenting classing and individual counseling addressing domestic violence issues. In closing the VFR and authorizing Albert‘s return to Peggy in late August 2005, the Department itself reported Peggy had “completed her counseling and secured education in domestic violence.”
What then is the evidence to support an implied finding Peggy has not made a reasonable effort to treat her problem of entering into relationships that involve domestic violence? Apparently the fact that Peggy has not resolved the problem: In its appellate brief the Department reports, “Mother‘s relationship with Alan‘s father was violent; there were domestic violence incidents between mother and Albert T., Sr.; and mother‘s current boyfriend has a history of domestic violence. Her actions regarding the men she welcomes into her home and the lives of her children have not changed even though she received years of services—both voluntary and through the juvenile court—аddressing the specific issue.” Although the Department‘s account of Peggy‘s failure to avoid relationships with violent men may be true, it misconstrues the requirements of section 361.5, subdivision (b)(10), which is directed to the parent‘s reasonable efforts to treat the problem, not the success or failure of those efforts. “[T]he `reasonable effort to treat’ standard found in former subdivision (b)(10) (now subd. (b)(10) and (11)) is not synonymous with `cure.’ The mere fact that [the parent] has not entirely abolished her drug problem would not preclude the court from determining that she had made
In sum, if it applied any standard at all in denying reunification services to Peggy, the juvenile court applied the wrong stаndard. The Department failed to present any meaningful evidence to satisfy its burden of proving Peggy has not made reasonable efforts to treat her problem of maintaining relationships with men who engage in domestic violence. To the contrary, the evidence in the record at Albert‘s disposition hearing demonstrates she participated in and completed court-ordered and voluntary programs addressing that issue. Although further reunification services may ultimately be unsuccessful in allowing Albert to return home, Peggy has earned the right to try.
DISPOSITION
The portion of the juvenile court‘s February 6, 2006 disposition order denying reunification services to Peggy is revеrsed. The matter is remanded to the juvenile court to conduct a new hearing to determine the appropriate family reunification services to be provided to Peggy and Albert and to conduct further proceedings not inconsistent with this opinion.
We concur: WOODS, and ZELON, JJ.