Filed 8/9/22 A.J. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Kimberly Nystrom‑Geist, Judge.

Juvenile Law Center and Lusine M. Vardanova for Petitioner.

No appearance for Respondent.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner Ashley J. (mother) seeks review by extraordinary writ, pursuant to California Rules of Court, rule 8.452, of the juvenile court’s orders issued in April 2022 at a contested six- and 12-month review hearing (Welf. & Inst. Code, § 366.21, subds. (e)(1) & (f)(1))[1] terminating reunification services and setting a section 366.26 hearing scheduled for August 24, 2022, as to her now 12-year-old daughter, A.J., six‑year‑old twins, and five-year-old son (the children). Mother contends substantial evidence does not support the juvenile court’s finding that the Fresno County Department of Social Services provided her with reasonable mental health services. We deny the petition.

PROCEDURAL AND FACTUAL SUMMARY

Detention and Removal in San Francisco County

The children were removed from mother’s custody in October 2020 by the San Francisco County Human Services Agency (agency) after mother and J.S., father of the three younger children (father), engaged in domestic violence in the children’s presence. Mother struck father with a candle, a towel rack, and a wooden picture frame, causing injury. The children were crying and visibly upset. Then 10-year-old A.J. contacted the police and mother was arrested. The parents had a significant history of domestic violence. They also had untreated mental health and anger issues and father had an untreated substance abuse (alcohol) problem. The whereabouts of A.J.’s alleged father were initially unknown.

The agency filed a dependency petition alleging the children came within the juvenile court’s jurisdiction under section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). In support of the subdivision (b) counts, the agency alleged that father had a pattern of becoming verbally and physically aggressive while intoxicated. In February 2020, he was intoxicated and declared the children were not his biological children. The children were present when father threw their belongings out of the home, grabbed mother’s cell phone, and punched her in the jaw. The circumstances of mother’s October 2020 arrest were also included to support the subdivision (b) allegation. In addition, the agency alleged mother had mental health issues requiring assessment and treatment stemming from trauma related to being a victim of domestic violence and the death of her oldest child. It was further alleged mother declined to engage in non-court family maintenance services to address the safety issues with father. She then failed to abide by several safety plans to refrain from contacting him after the children were detained. She also refused access to the children and the relatives who were entrusted with supporting the safety plan were not forthcoming with information as to their whereabouts. With regard to the subdivision (c) counts, the agency alleged that father drank daily and became verbally and physically aggressive, citing the February and October 2020 incidents. Mother reported the children were anxious as a result and were having behavioral problems at school. The petition further alleged counts under subdivisions (g) (no provision for support) as to A.J. because the whereabouts of her father were unknown and the agency could not access his ability to care for her, and (j) (abuse of sibling) because her siblings were under the agency’s supervision due to the parents’ ongoing domestic violence. A.J.’s alleged father was subsequently located but denied being A.J.’s father.

In May 2021, the San Francisco County Juvenile Court adjudged the children dependents under section 300, subdivisions (b) and (c), removed them from parental custody and ordered the parents to complete a psychological evaluation, anger management and domestic violence programs, and participate in individual therapy to address how trauma and domestic violence impact a child’s physical and emotional health. Father was further ordered to complete an outpatient drug and alcohol treatment program and a parenting program and submit to random drug testing.

The psychological evaluations were ordered because mother sent threatening text messages to the social worker, had many emotional outbursts, and used “ ‘[s]uicidal verbiage’ ” toward the social worker, necessitating a transfer of the case to another social worker. In addition, the parents continued to violate an active criminal protective order by having ongoing contact. On July 11, 2021, the Fresno Police Department responded to father’s home because of an alleged violation of the protective order, but father refused to cooperate. Shortly afterward, the police were called out again and father allowed them in his home. Mother was in his home and he was intoxicated.

On May 20, 2021, the case was transferred to Fresno County.

Dependency Proceedings in Fresno County

By June 2021, mother had completed domestic violence and anger management programs. She had not been referred for a psychological evaluation, but she and the children were participating in weekly virtual family sessions with Melissa Bond, a predoctoral psychologist from the Child Trauma Research Program in San Francisco. Bond was also providing weekly individual sessions with mother and the children to address trauma, relationship dynamics, coparenting and how domestic violence affects a child’s safety and wellbeing.

Father was not participating in any of his court-ordered services and refused to drug test.

The Fresno County Department of Social Services (department) recommended the juvenile court require mother to complete a psychological evaluation to determine if she would benefit from family reunification services, as well as a parenting program, domestic violence, substance abuse and mental health assessments, and participate in random drug testing and that the parents participate in supervised visits.

On July 14, 2021, the juvenile court ordered the parents to complete psychological evaluations and set a six-month review hearing for October 6, 2021. On July 16, 2021, social worker Stefania Rodriguez submitted a referral for mother’s evaluation to the California Psychological Institute (CPI). CPI accepted the referral on July 26 but because of scheduling unavailability, mother was not evaluated until November 5, 2021. Dr. Janet Toribio conducted the evaluation and finalized her written report on December 27, 2021.

Dr. Toribio’s Findings and Recommendations

Dr. Toribio diagnosed mother with oppositional defiant disorder based on her “pattern of angry/irritable mood and argumentative, defiant behavior” which was associated with distress and negatively impacted her social functioning. Toribio explained,

“[Mother’s] irritable mood has resulted in her losing her temper, becoming easily annoyed, and often feeling angry. Furthermore, she often actively defies or refuses to comply with requests from authority figures (e.g., violating her restraining order, violating terms of unsupervised visitations with her children), often deliberately annoys others (e.g., sending 117 text messages to her social worker, refusing to tell CPS her kids[’] whereabouts over the summer), and often blames others for her mistakes or misbehavior (e.g., kids were removed from her care unfairly because CPS was incompetent, she took kids away from her family members’ care because the safety plan did not explicitly state that the kids could not be in her care, her visitations with her kids were reverted back to supervised from unsupervised because her cousin [video chat with] the kids’ father.)”

Toribio recommended mother continue to participate in individual psychotherapy to develop more effective coping strategies and ways to control and express her anger. “Specifically,” Toribio stated, “she may benefit from cognitive behavioral therapy to assist with changing her thoughts, feelings, and behaviors.” Toribio believed it would benefit mother to continue participating in family therapy. Toribio also recommended mother “consider participating in a psychiatric consultation, since psychotropic medications could help treat her symptoms of impulsivity and irritability.”

As to the risk mother posed to the children, Toribio assessed it as moderate if the children were placed in mother’s custody or allowed to visit her unsupervised.

Toribio stated,

“[Mother’s] difficulty regulating her mood has resulted in an extensive history of domestic violence dating back to 2013, across three different partners. Moreover, insight and current judgment were assessed as poor based on the fact that [mother] has made a series of poor decisions in the past (e.g., violating previous restraining orders, keeping her children’s whereabouts unknown to the CPS department). Her inability to think through the consequences has resulted in detrimental outcomes for her and others. [Mother] has minimized her history of domestic violence and expressed an interest in wanting to work on her romantic relationship with [father], despite the active restraining order protecting [father] against her. It is also concerning that [mother] seems unwilling to accept responsibility for her actions and insists that many of the bad outcomes in her life (e.g., criminal charges, kids[’] removal from her care) are consequences of others’ behaviors and not hers.”

Toribio recommended that visitation remain supervised.

Contested Six- and 12-Month Review Hearing

A contested six- and 12-month review hearing was conducted over several sessions in March and April 2022. Initially, the department recommended the juvenile court continue mother’s reunification services because she was actively participating and regularly visiting the children. However, that was before the department received Toribio’s report and before the children reported in October 2021 that father was in the family home during an unsupervised visit after mother agreed not to allow it. In subsequent addendum reports, the department recommended the juvenile court terminate reunification services and set a section 366.26 hearing to consider a permanent plan of adoption.

At trial, mother’s attorney sought to show mother made sufficient progress to warrant returning the children to her custody. Alternatively, she tried to establish the department was unreasonable in failing to provide cognitive behavioral therapy and an assessment for psychotropic medication.

Dr. Toribio’s Testimony

Dr. Toribio testified that oppositional defiant disorder is treatable. She recommended mother participate in cognitive behavioral therapy so she could change the way she thinks about situations. If she could change the way she appraised situations, Toribio explained, she could better control her feelings. Asked whether cognitive behavioral therapy differed from “regular therapy,” Toribio said that it could. It was up to the treating therapist to decide which modality to use; cognitive behavioral therapy was just one type of treatment. Toribio did not have personal experience using cognitive behavioral therapy to treat patients with oppositional defiant disorder, but research had shown that it was beneficial. Toribio found mother more argumentative than other clients she evaluated for the department. Mother was confrontational, raised her voice and perceived she was unfairly treated. Her facial characteristics were aggressive. Toribio recommended psychotropic medication to assist mother with regulating her mood.

Toribio concluded mother’s risk to the children was moderate based on her difficulty regulating her emotions and interest in maintaining a relationship with father. She had not been forthright with others and had not made the best decisions. She was likely to behave in the same manner in the future.

Dr. Bond’s Testimony

Dr. Bond testified she had been conducting child/parent psychotherapy with mother and the children since July of 2020. She worked with mother and the children to heal from various traumas the children experienced. The family had an open child welfare case and the children were emotionally abused in a prior foster home. The three younger children were also physically abused in the same foster home. They were pinched on the inside of their arms, which left significant bruising and “scarring.” Bond was working with the children to process the trauma and strengthen sibling relationships because they were placed in two separate foster homes, and more recently in three. She observed that the children’s behavior was worse since they were removed from mother.

Mother told Bond she participated in a psychological evaluation and was diagnosed with oppositional defiant disorder but no one from the department told Bond what recommendations were made. She and mother did not address any needs specific to her diagnosis in their therapy sessions. She believed mother had made significant progress in her individual and family therapy. The children made progress in their ability to communicate with mother and each other. Asked whether mother had taken responsibility for the children’s removal, Bond responded mother stated very clearly to her and the children that she recognized that fighting with father impacted them and she was working on that so that they could be better parents to the children. Mother blamed the department for the trauma of the children’s removal. Asked whether she believed it was the department’s fault that the children were removed, Bond responded, “I’m not sure.”

The child/parent psychotherapy that Bond used with mother was different from cognitive behavioral therapy in that child/parent psychotherapy focused on improving symptoms of trauma, primarily in the children. Cognitive behavioral therapy focused on changing thoughts and behaviors. Bond did not see a need for mother to have cognitive behavioral therapy and had not observed any behavior consistent with oppositional defiant disorder. If she perceived mother had that need, she would have recommended it. She believed her therapy was still appropriate to mother’s diagnosis, although it did not make sense for an individual with oppositional defiant disorder to have individual therapy within the child/parent psychotherapy model. However, the model was suited to work with parents with all sorts of diagnoses.

The children fluctuated in their desire to return home, sometimes expressing a desire to do so and other times stating they wanted to remain in foster care.

Stefania Rodriguez’s Testimony

Social worker Stefania Rodriguez testified mother completed all of the services that were ordered and continued to participate in family therapy with Bond. The delay in scheduling mother for a psychological evaluation was not caused by mother but by CPI’s inability to schedule an appointment sooner. Rodriguez attempted to schedule an appointment through the department’s Child Welfare Mental Health team, who attempted to procure another vendor, but they were not able to make an appointment either.

Rodriguez received Toribio’s report in January 2022 and immediately sent it to the parties. She did not take any action to follow through with Toribio’s recommendations because mother was already receiving mental health services with Bond.

Rodriguez’s concerns about returning the children to mother’s custody were mother’s inability to accept responsibility for the domestic violence incidents and her denial that the children were ever present during the incidents. She was also concerned about mother allowing father to be in the home during an unsupervised visit. She had no reason to believe father was living in mother’s home. The parents did not engage in domestic violence during that visit and the department had not received any reports of domestic violence from law enforcement since July 2021.

All four children stated at some point that they did not want to return to mother’s custody. Only the two girls sometimes stated that they wanted to go home.

Mother’s Testimony

Mother testified the only unsupervised visit she had occurred on October 2, 2021. It was a family celebration of her birthday. Father was on a video chat on her cousin’s cellphone. She did not ask him to be present or support his presence. She did not acknowledge him and did not initiate the call.

Mother benefitted from services in that she learned to think before she acted. She believed she had that situation under control. She was also participating in a domestic violence class as a perpetrator as a result of her criminal case. She planned to continue working on her relationship with the children and did not plan to pursue any romantic relationships. She also planned to involve her family as a support system. She believed she benefitted from all of the services and was able to safely resume custody of the children. She had no intention of resuming her relationship with father.

The Juvenile Court’s Rulings

The juvenile court declined to return the children to mother’s custody, finding that doing so would subject them to a substantial risk of detriment. The court further found the department provided reasonable reunification services, that mother’s progress was minimal to moderate and there was not a substantial probability the children could be returned to parental custody if services were continued. The court found father’s progress in completing his court-ordered services was minimal. The court terminated family reunification services and set a section 366.26 hearing.

In ruling, the juvenile court addressed the conflict in Toribio and Bond’s opinions about whether mother needed cognitive behavioral theory. The court found Toribio’s opinion more credible because she evaluated mother, had extensive experience with the evaluations and she took a more neutral, fact-based approach to her recommendation. By contrast, the juvenile court felt Bond was more of an advocate. She appeared to be very engaged with mother and saw only the most positive aspects of mother’s personality. She concluded mother did not need cognitive behavioral therapy without formally assessing her, which impacted the court’s view of her credibility. As the court noted, “[S]he could have simply indicated, ‘I did not test her for that’ or ‘That was not my role,’ instead she said that the mother had no signs of oppositional defiant behavior.”

DISCUSSION

Section 366.21, subdivision (g)(4) permits the juvenile court at a 12-month review hearing to schedule a section 366.26 hearing if the court does not continue the case to the 18-month review hearing and there is clear and convincing evidence that reasonable services were offered or provided to the parents. (§ 366.21, subd. (g) & (g)(4).)[2]

Mother contends substantial evidence does not support the juvenile court’s finding the department provided her with reasonable services because Rodriguez failed to follow up on Toribio’s recommendations and arrange cognitive behavioral therapy and a psychiatric evaluation for psychotropic medication.

Real party in interest counters that mother did not require cognitive behavioral therapy according to Bond and the existence of other possible services does not undermine the adequacy of services provided.

Reunification Services Generally

“ ‘ “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 .…” ’ ” (In re K.C. (2012) 212 Cal.App.4th 323, 329–330.) “The 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.” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)

Standard of Review

“When a finding that reunification services were adequate is challenged on appeal, we review it for substantial evidence.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) In so doing, “we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The juvenile court’s finding that reasonable reunification services were provided must be made upon clear and convincing evidence. (§ 366.21, subd. (g)(1)(C)(ii).) When the juvenile court is required to apply the clear and convincing standard of proof, “the question before the appellate court 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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)

Substantial Evidence Supports the Juvenile Court’s Finding Mother Was Provided Reasonable Reunification Services

In light of the allegations in the petition, the San Francisco agency devised a services plan for mother with two objectives: refrain from verbal, emotional, physical, or sexual abuse or threatening; and complete a psychological evaluation and follow through with any recommended treatment. To that end, she was court ordered to complete a psychological evaluation and programs in anger management and domestic violence and participate in dyadic and/or family therapy. By the transfer hearing in June 2021, mother had satisfied the domestic violence and anger management components of her case plan and was participating in individual therapy with Bond. Consequently, the Fresno department incorporated into its case plan for mother the requirement she complete a psychological evaluation to determine whether she could benefit from reunification services.

By the contested review hearing, mother had completed a psychological evaluation and received more than a year of individual counseling with Bond to address her domestic violence issues. She also completed a domestic violence program for victims and was participating in a domestic violence program for perpetrators. The juvenile court credited Toribio’s opinion that mother had oppositional defiant disorder and could benefit from cognitive behavioral therapy and an assessment for psychotropic mediation. Nevertheless, the court still found that mother was provided reasonable reunification services even though no attempt was made to provide the therapy and assessment recommended. The question for us is whether substantial evidence supports the court’s reasonable services finding under those circumstances. We conclude that it does.

The fact that additional services might benefit mother does not mean that the services provided were inadequate. Although Toribio opined cognitive behavioral therapy and psychotropic medication could benefit mother based on the literature, she did not testify that failure to receive such treatment would prevent mother from reunifying with the children. Further, according to the testimony, mother had already substantially benefitted from the services she did receive. Bond testified mother had made significant progress. According to mother, she had learned to think before she acted and was able to control herself. She believed herself capable of resuming custody of the children.

In arguing her reunification services were deficient, mother directs us to In re K.C., supra, 212 Cal.App.4th 323. In that case, following a psychological evaluation, it was recommended that the father undergo a pharmacological evaluation to determine whether his psychological conditions could be alleviated with psychotropic medication. (Id. at p. 329.) The social services department’s “only attempt to secure such a pharmacological evaluation was to send Father to a public mental health clinic[,]” which declined to perform the evaluation because the father did not meet its criteria for treatment. (Ibid.) Instead of trying to secure the evaluation elsewhere or demonstrate there were no other avenues “reasonably available for securing the recommended evaluation,” the department merely sent the father back to the same clinic several times, where he was rejected for the evaluation. (Ibid.)

Under the circumstances, the court found no substantial evidence that reasonable services had been provided. (In re K.C., supra, 212 Cal.App.4th at p. 325.) The court reasoned, “[t]he ‘ “problems leading to [his] loss of custody” ’ [citation] all appeared to stem from his mental health issues. The [d]epartment quite properly undertook to identify those issues. But when it came to addressing them, the [d]epartment appeared to delegate the burden of finding and obtaining suitable services to [f]ather himself—despite the high likelihood that the very issues necessitating treatment would interfere with his ability to obtain it.” (Id. at p. 330.)

Here, in contrast, the department did not delegate to mother the burden of finding and obtaining services. Rather, the department failed to follow through on services which may have further benefitted mother, but which we have concluded were not vital to her ability to reunify. The record makes clear the primary impediment to reunification in this case was mother’s insistence on maintaining a relationship with father, not receiving different or additional services. We consequently find no error in the court’s ruling.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).

* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] Though the juvenile court conducted a combined six- and 12-month review hearing, the statute governing the 12-month review hearing applies and the parties do not argue otherwise.