In re M.F.
- Reporters:
- ,
- Before:
- Huffman
Neale B. Gold, under appointment by the Court of Appeal, for Minor and Appellant.
Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Respondent Stephen C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Minor M.F. appeals from orders at the 12-month review hearing under
We conclude there is substantial evidence to support the juvenile court‘s finding that reasonable services were not provided or offered to the parent. We further conclude the juvenile court is authorized to extend reunification services up to the 24-month review date if the court determines that reasonable services were not provided or offered to the parent. Because the statutory framework prohibits setting a
FACTUAL AND PROCEDURAL BACKGROUND
M.F. is the son of Nicole W. and Stephen C. The Agency detained M.F. in protective custody on December 20, 2016, after he tested positive for methamphetamine and other drugs at birth. Nicole‘s parental rights to M.F.‘s two older half siblings had been terminated after she did not mitigate her substance abuse problems.2
In January 2017, Nicole was arrested for vandalism after she broke Stephen‘s bedroom window during an argument. Nicole and Stephen denied they were in a relationship. Stephen said he was willing to care for M.F. but first needed to find suitable housing and childcare. Stephen had health issues, including heart problems, leg pain, severe asthma, and high blood pressure. At times, he had difficulty walking even short distances. The Agency detained M.F. in the home of the paternal grandmother (caregiver) of one of his half siblings.
At the dispositional hearing, the juvenile court found that Nicole was not entitled to reunification services. The court ordered the Agency to provide services to Stephen. Stephen‘s reunification case plan required him to complete parenting education, attend Al-Anon codependency groups, and participate in services provided by Cultural Brokers. The Agency also asked that Stephen attend M.F.‘s medical and developmental appointments.
Stephen regularly visited M.F., who was a happy, healthy and easygoing baby. In July, Stephen told the social worker he forgot to attend Al-Anon and said he would find a group. In August, the caregiver reported that Stephen told her that Nicole had stabbed him during an argument. Stephen would not discuss the incident with the social worker.
The contested six-month review hearing was held on September 26, 2017. The Agency recommended the juvenile court terminate Stephen‘s reunification services and set a
Cultural Brokers reported that Stephen had completed 10 of 17 parenting classes. He continued to look for appropriate housing for himself and M.F. Although the Agency‘s referral was closed, Cultural Brokers continued to provide Stephen with extra accommodations assistance because he was “comprehension impaired.” The social worker reported that Stephen attended three Al-Anon classes in September.
The juvenile court found that Stephen had made some progress with his case plan but significant protective issues remained. Stephen was reticent to acknowledge the nature of his codependent relationship with Nicole. The court said Stephen needed to
The social worker provided a list of 44 San Diego County TERM3 therapists to Stephen on October 17. The social worker, Cultural Brokers, and Stephen agreed the best practice was to have Stephen engage in therapy with an African American therapist. The social worker gave Stephen the names of four African American therapists (short list).
A new social worker was assigned to the case in late October. He did not discuss therapy services with Stephen.
At some point in time not clear in the record, Stephen began having day-long unsupervised visits with M.F. M.F.‘s court-appointed special advocate (CASA) reported that overnight visits were scheduled to begin in late February 2018, with longer visits to follow. Stephen was always excited to see M.F. and he was very attentive and gentle with his son. M.F. seemed to enjoy spending time with his father. Stephen and Nicole had been living together but she recently moved away. Nicole had visited M.F. only once in eight months. She was arrested in January 2018 on charges of possession of methamphetamine.
In its initial report prepared for the 12-month review hearing, the Agency recommended the juvenile court extend reunification services to Stephen for an additional six months. The Agency planned to expand Stephen‘s unsupervised visits with
At a meeting on March 5 to discuss implementing M.F.‘s overnight and extended visitation with Stephen, the caregiver presented a public assistance application for utility services at Stephen‘s home in Nicole‘s name. The caregiver said she had discovered the application in M.F.‘s diaper bag after his last visit with Stephen on March 2. Stephen appeared confused and said he had no knowledge of the application. He denied Nicole was living with him. On investigation, the social worker determined that Nicole did not appear to be living at Stephen‘s home.
On March 19, the Agency changed its recommendation from reunification to termination of services and referral to a
In an addendum report, the social worker informed the court that support services were being provided to the caregiver. The caregiver appeared to be overwhelmed caring for M.F. and his brother, who had behavioral challenges. The house was in disarray and the children were dirty. The social worker informed the caregiver it would consider removing M.F. from her care if the situation did not improve.
The contested 12-month review hearing was heard on May 30 and June 5, 2018. Stephen testified he did not attend M.F.‘s medical appointments because he did not learn about them until after the fact. He completed 16 weeks at Al-Anon. The social worker said he could continue with Al-Anon if he wanted to do so. Stephen attended for another month. With assistance from Cultural Brokers, Stephen tried to obtain services from a TERM therapist. He did not receive individual therapy because he could not find a therapist. When he and M.F. saw Nicole at a taco shop, he reported the contact, which lasted less than five minutes, to the social worker. Nicole never visited him when he had M.F. in his care. Because of Nicole‘s drug use, he would never allow M.F. to be alone with Nicole or allow her to spend the night at his home.
Carol B., a psychiatric nurse, ran the family support program at Cultural Brokers. She said Stephen completed 17 parenting classes and had almost completed a second, voluntary, parenting program. Cultural Brokers did not offer individual therapy. Carol was present when Stephen telephoned therapists from a list provided by the Agency. He
The social worker testified Stephen completed all aspects of his case plan except therapy. He was assigned to the case in late October 2017 and first discussed therapy with Stephen on March 6, 2018. The social worker said he did not provide any therapy referrals to Stephen during their meetings in March and April. He acknowledged it could be difficult to contact a TERM therapist. Stephen did not ask for his help. The social worker did not respond to two e-mails sent by Stephen‘s counsel in November 2017 concerning Stephen‘s difficulty finding a therapist. He acknowledged the court report did not mention Stephen‘s problems finding a therapist. The social worker testified he telephoned the therapists on the short list, without success. He later testified he never made any phone calls to therapists on Stephen‘s behalf because that was the parent‘s responsibility.
The social worker said Stephen‘s case plan required him to attend nine Al-Anon meetings, which he did. He did not inform Stephen of M.F.‘s medical and developmental appointments because it was Stephen‘s responsibility to find out the date and time of the appointments. The social worker acknowledged that IFPP closed the service referral only after he told them Stephen was not able to have M.F. with him on a 60-day trial visit due to the condition of his home.
The social worker testified Stephen had resolved the utility issue and his housing was now appropriate for M.F. Stephen‘s unsupervised visits with M.F. were four to five
The juvenile court found that returning M.F. to the parents’ custody would create a substantial risk of detriment to his physical and emotional well-being. The court had specifically identified Stephen‘s need for individual therapy and domestic violence treatment and had ordered the Agency to provide those services to Stephen. The goal was to give him the tools to understand that under certain circumstances Nicole presented a danger to M.F. Stephen did not appear to understand the pitfalls of coparenting with an addict.
The juvenile court found that reasonable services were not provided or offered to Stephen. The court said, “[A] lot of the social worker‘s testimony was equivocal. It was qualified and sometimes it seemed just downright evasive.” The Agency‘s court report did not mention services for domestic violence or individual therapy − services the court had specifically tailored for Stephen at the six-month review hearing. A lapse of services also occurred when the social worker told Stephen he completed his Al-Anon
The court directed the social worker to identify therapists who would meet Stephen‘s needs and to advise Stephen of all M.F.‘s therapy and medical appointments at least a week in advance. In setting a review hearing in six months, the court said it was aware the 18-month review date in this case was in 16 days. The court realized there was a difference of opinion about extending reunification services past the 18-month review date. Nevertheless, it made no sense to give Stephen only two weeks to complete services when the Agency did not provide important reunification services to him as directed by the juvenile court.
DISCUSSION
I
Reasonable Services
A
Arguments
M.F. argues the juvenile court abused its discretion in finding that reasonable services were not provided or offered to his father (no reasonable services finding). He argues there is no evidentiary support for the juvenile court‘s finding that reasonable services were not provided or offered to Stephen. He points out the Agency provided or offered many services to Stephen for almost 18 months and gave him an extensive list of
B
Relevant Legal Principles and Standard of Review
Family reunification services play a critical role in dependency proceedings. (
At each review hearing, if the child is not returned to his or her parent, the juvenile court is required to determine whether “reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent . . .” (
At the 12-month and 18-month review hearings, the juvenile court may not set a
We review a reasonable services finding “in the light most favorable to the trial court‘s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard.” (T.J., supra, 21 Cal.App.5th at p. 1229.) In determining whether there is substantial evidence to support the court‘s reasonable services finding, we review the record in the light most favorable to the court‘s finding and draw all reasonable inferences from the evidence to support the findings and orders. We do not reweigh the evidence or exercise independent judgment, but merely determine whether there are
In applying the law to the facts, we keep in mind the juvenile court questioned the social worker‘s credibility and found that the Agency‘s court report was misleading because it omitted information about Stephen‘s case plan.
C
Substantial Evidence Supports the Court‘s Finding Reasonable Services Were Not Provided or Offered to Stephen
We are not persuaded by M.F.‘s argument there is no evidentiary support for the court‘s no reasonable services finding. M.F. recites evidence that, if credited by the juvenile court, would have supported the finding that reasonable services were provided or offered. Although the record undoubtedly shows that significant services were provided to Stephen, the issue on appeal is whether the evidence supports a finding that reasonable services were not provided or offered to Stephen. We do not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re G.L. (2014) 222 Cal.App.4th 1153, 1166.) The record contains substantial evidence to support the juvenile court‘s finding that reasonable services were not provided or offered. (In re J.E. (2016) 3 Cal.App.5th 557, 559 (J.E.).)
The record shows that the Agency did not provide services that were specifically tailored by the juvenile court to mitigate the risk to M.F. caused by his parents’ volatile
In response to the juvenile court‘s order, a social worker gave a list of 44 TERM therapists to Stephen. M.F. acknowledges Stephen‘s difficulties in securing therapy but argues the list provided by the Agency is sufficient to show that Stephen was offered reasonable therapeutic services. Although providing a list of approved therapists to Stephen was a good starting point, it was merely a starting point. Services must not only be appropriately tailored; they must be accessible. (T.J., supra, 21 Cal.App.5th at p. 1242.) Delays in providing services also may be grounds for a finding of no reasonable services. (Id. at p 1244.) Here, appropriate therapeutic services for Stephen were inaccessible and the error was compounded by the social worker‘s delayed response.
After meeting with Stephen and Cultural Brokers, a social worker agreed Stephen would benefit from having an African American therapist and provided a short list of four therapists to Stephen. None of the therapists on that list appeared to be taking new patients from the dependency system. Stephen telephoned each therapist on the short list more than once and did not receive any return telephone calls. The newly assigned social worker did not respond to two e-mails from Stephen‘s attorney in November 2017
The record shows that the social worker was aware of Stephen‘s problems securing therapy but did not assist him in a timely manner. Thus, the social worker did not meet his obligation to make reasonable efforts to assist Stephen in an area where accessibility proved difficult. (T.J., supra, 21 Cal.App.5th at p. 1242; Riva M., supra, 235 Cal.App.3d at p. 414 [social worker must make reasonable efforts to assist the parent where compliance proves difficult].)
In addition to the lack of therapy, the juvenile court found that it was insufficient for the social worker to have checked off Stephen‘s Al-Anon attendance without determining whether he had met the program‘s goals after attending nine meetings. In view of the failure of the Agency to provide therapy to Stephen to address codependency issues, the juvenile court reasonably determined this was a significant lapse by the Agency in providing services to mitigate the protective risk to M.F.
The juvenile court ordered services that were “tailored to the particular needs of the family arising out of the unique circumstances of the situation.” (J.E., supra, 3 Cal.App.5th at p. 559.) Stephen completed all of his case plan requirements other than therapy and maintained regular and consistent visitation with M.F. He tried but was unable to find a therapist. The social worker ignored Stephen‘s requests for assistance, made through counsel. The omission of any discussion of therapy from the report and addendums the Agency provided to the court for the 12-month review hearing support the conclusion the Agency did not make reasonable efforts to provide therapy to Stephen. In addition, the Agency unreasonably cancelled plans for a 60-day home visit, including
II
Extension of Services Past the 18-Month Review Date
A
The Parties’ Contentions and Standard of Review4
M.F. asserts the court should have terminated reunification services and set a
The Agency and Nicole agree
Stephen submits a plain reading of
When the issue on appeal involves the interpretation and proper application of the dependency statutes, review is de novo. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.)
B
Where Reasonable Services Have Not Been Provided or Offered to the Parent, The Juvenile Court Is Not Required to Assess the Likelihood of Reunification Before It Extends Services
We first address M.F.‘s argument there is no evidence in the record to show that an extended reunification period would mitigate the ongoing risk factors to M.F. and
The reviewing court addresses the issue of reasonable services independently of the issue whether there is a substantial probability the child will be returned to the physical custody of the parent within the extended time period. (T.J., supra, 21 Cal.App.5th at p. 1249.) The focus on review is strictly on the reasonable services issue. (Ibid.) To incorporate an assessment of the likelihood of reunification in reviewing a reasonable services finding would be unfair to a parent who did not receive court-ordered services tailored to mitigate risk to the child and allow the child‘s safe return to the care of his parent. When appropriate services designed to mitigate risk to the child have not been provided to a parent, it is likely risk to the child will not have been mitigated. Thus, where reasonable services have not been provided or offered to a parent, there is a substantial likelihood the juvenile court‘s finding the parent is not likely capable of safely resuming custody of his or her child may be erroneous. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1215-1216.) Providing reasonable services is one of “the precise and demanding substantive and procedural requirements . . . carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) Therefore, “to meet due process requirements at the termination stage, the court must be satisfied reasonable services have been offered during the reunification stage.” (In re Daniel G., supra, at pp. 1215-1216; T.J., supra, at p. 1256.)
C
The Juvenile Court May Continue Services to the 24-Month Review Date on a No Reasonable Services Finding
We reject M.F.‘s argument the juvenile court is authorized to provide services to a parent of a child under three only to the 12-month review date.
Justice Goodwin Liu describes the ambiguous statutory framework and conflicting case law on the issue of whether the juvenile court has the authority to continue services beyond the 18-month review date. (J.C. v. Superior Court (Aug. 23, 2017, S243357) Statement Respecting Denial of Review by Liu, J. [2017 Cal. Lexis 6576, at p. *11] [Statement, J. Liu].) He notes that
There is a split of authority in case law whether the juvenile court must observe the 18-month deadline for setting a
In T.J., supra, 21 Cal.App.5th at p. 1257, the First District Court of Appeal explicitly addressed the issues raised by Justice Liu. In concluding that the juvenile court has the authority to extend reunification services to the 24-month review date on a finding that reasonable services were not provided or offered to a parent, the T.J. court relied on statutes governing the 18-month review hearing, prior case law supporting an extended reunification period, and principles of due process. (T.J., supra, at pp. 1251-1257.) The court also held the failure to provide reasonable services justifies an extension of services beyond the 18-month review date without a showing of the child‘s best interests or substantial probability of return, and even if the permanent plan is not to return the child to the parent. (Id., at p. 1256.)
In discussing the statutory basis for its holding, the T.J. court stated, “we think the statutory scheme governing the timeline for reunification services specifically authorizes extended services beyond 18 months in the circumstances we have here. That scheme begins with a presumptive minimum services period of either six months for children under age three or 12 months for children age three and older;5 it then permits continuances beyond the permanency hearing with extended periods of services in narrowly defined circumstances, first, up to an additional six months6 where the
We agree with T.J. that the statutory framework governing the 12-month and 18-month review hearings allow the juvenile court to extend services on a finding that reasonable services were not offered or provided to a parent, even if it means that services will be offered beyond the 18-month review date. In addition, as we have discussed,
C
The Juvenile Court Is Not Required to Proceed Under Section 352 to Extend Services on a No Reasonable Services Finding
The Agency argues the juvenile court may only extend services to the next review date or must continue any review hearing under
In T.J., the reviewing court concluded that in addition to the general authority to continue dependency hearings under
Similarly, we are not persuaded by the Agency‘s argument the juvenile court only has discretion to continue services to the next review hearing date, no matter how soon
The juvenile court found “it made no sense” to continue services only to the 18-month review date, which was in two weeks time. We agree with the juvenile court. When the agency has been ordered to provide reasonable services to a parent and has failed to do so, the parent is entitled to services during an “extended time period.” (
DISPOSITION
The findings and orders are affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
HUFFMAN, Acting P. J.
Copies to: All parties