In re Cassandra K.







Filed 12/18/08 In re Cassandra K. CA6






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re CASSANDRA K. et al., Persons Coming Under the Juvenile Court Law.	H032595 (Santa Clara County Super.Ct.Nos. JD17471, JD17472)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES, Plaintiff and Respondent, v. Jeffery K., Defendant and Appellant.

Jeffery K. appeals from the juvenile court’s order ending reunification services by which he might reunify with his teenage children Cassandra K. and Judie K. He claims on appeal that the Santa Clara County Department of Family and Children’s Services (hereafter the agency) failed to provide reasonable reunification services, i.e., services tailored to overcome the effects of his psychological and medical problems.
On this record, we cannot agree with Jeffery K. Under the deferential standard we apply on review, we are limited to reviewing the record for substantial evidence that supports the trial court’s ruling. In our view, the evidence to support its ruling was substantial.
FACTS AND PROCEDURAL BACKGROUND
I. Jeffery K.’s Brain Injury, its Antecedents, and its Consequences
In 1996 Jeffery K. was a truck driver. He was seriously injured in an accident that year, and, according to the agency’s 12-month status review report of November 15, 2007, the accident’s consequences included a head injury “that effectively took away a piece of [the] left frontal lobe of his brain.” He lay in a coma for six and a half weeks.
The brain injury resulting from the truck accident was the latest in a string of incidents, dating to early childhood, that involved possible or definite insults to Jeffery K.’s brain. The first occurred at age two, when he sustained skull trauma in a bicycle accident that involved a collision. About age 12, he sustained additional skull trauma from a fall. At age 13, he was struck by a car while on his bicycle and suffered a concussion.
The most recent brain injury had an effect on a number of problems that Jeffery K.’s family was experiencing. An agency jurisdiction report dated November 7, 2006, summarized them: the “brain injury . . . appears to affect his ability to sufficiently care for, and protect, [his] three children.[^[1]] . . . He has since introduced two sets of sexual predators to his family environment, first the children’s mother and her then boyfriend, and his current wife’s twin sister, her husband, and [the twin sister and husband’s 14-year-old] son.”^[2]
The agency’s 12-month status review report stated that before the most recent brain injury Jeffery K. “had serious emotional problems.” “Since the injury affected his frontal lobe, [Jeffery K.] cannot retain what he said about his children’s needs and also has problems with anger control.”
A psychologist’s neuropsychological evaluation of Jeffery K., which we will discuss extensively below, also summarized the family’s problems. In 2006, the evaluation stated, Child Protective Services found that the stepmother’s sister and brother-in-law had sexually abused the daughters. It also stated that Jeffery K.’s “female partners have extensive misdemeanor and felony convictions for a variety of offenses[,] including child endangerment, fraud, and robbery. [Child Protective Services] involvement with this family dates back to 1994[,] with neglect and abuse from the biological mother resulting in [Jeffery K.] assuming the primary care taker role. He was granted sole physical and legal custody in April, 1998.”
Though the stepmother acted to protect Cassandra K. and Judie K. from the sexual molestations once she learned of them, her own behavior toward her husband’s three daughters had been wanting. She had physically abused them and had been convicted of multiple counts, on three separate occasions, of willful infliction of injury or suffering on a child and one count of inflicting physical injury on a child (Pen. Code, §§ 273a, subd. (b), 273d, subd. (a)).
The consequences for Cassandra K. and Judie K. of the sexual abuse were grave. The abuse occurred when Cassandra K. and Judie K. were 12 and 11 years old, respectively. Thereafter both fell into delinquent behavior and suffered major psychological problems. Cassandra K. appeared to be depressed, displayed sexualized behavior unbecoming her age, had trouble eating, and made suicidal comments. Judie K. acted emotionally withdrawn, disassociating herself from events as if they had not occurred.
The psychologist’s evaluation also commented that in 2005, child welfare authorities thought that Jeffery K. had physically abused the daughters. On this point, the record contains an allegation that he once punched Cassandra K. on the back and Judie K. in the head. Jeffery K. was convicted of a misdemeanor in 1997 for fighting or challenging another to fight in public in violation of Penal Code section 415, subdivision (1).
Cassandra K. and Judie K. were removed from the home. The juvenile court ordered that reunification services be provided to Jeffery K. with respect to both daughters.
II. Evidence Adduced in 12-Month Status Reports and a Contested Hearing
A. Twelve-Month Status Review Report and Addendum
Despite a statutory provision that permits the denial of reunification services in certain cases of mental disability (Welf. & Inst. Code, § 361.5, subd. (b)(2)), the agency did not seek to deny them to Jeffery K. After 12 months of providing these services, however, the agency recommended that they be ended. A contested hearing followed, for which the agency’s 12-month status review report and the addendum thereto, which was dated January 30, 2008, were admitted in evidence.
According to the status review report, both daughters wanted to return to their father. Nevertheless, the agency felt that reuniting the family would be unwise.
Jeffery K. had completed a basic class on raising teenaged children in September 2007. Because his federal Social Security disability benefit had been reduced he had not been able to afford psychological counseling. He visited his daughters regularly. Over time, the visitation supervisors began to detect what they perceived to be Jeffery K.’s impaired judgment. He did not tell his daughters that he was divorcing their stepmother, whom they regarded as their mother. The supervisors’ interventions on these occasions had only transitory beneficial effects.
B. Neuropsychological Evaluation
As noted, the agency arranged for Jeffery K. to be evaluated neuropsychologically. The evaluation was undertaken by a California-licensed psychologist with offices in Victoria, British Columbia. It appears that the psychologist traveled to California in May of 2007 to interview Jeffery K. for two hours and also had him undergo neurological and psychological tests. The psychologist had some neurological training and was chosen for that reason. The agency asked the psychologist to determine the extent of Jeffery K.’s ability to care for his daughters and to evaluate his short- and long-term memory.
The psychologist concluded that before suffering the frontal lobe brain injury in 1996, Jeffery K. was showing impulsive behavior and poor judgment. He continued to do so after the injury. He remained “simply unable to predict consequences of his actions for himself or his children or to plan for anything other than meeting immediate needs.” Other tests revealed a “fragile attention span” and difficulty retaining newly learned material in the short and long terms.
Jeffery K. had a history of significant emotional and psychological difficulties, including two suicide attempts. “[H]is post-injury adjustment has been difficult and has a guarded prognosis.” “The brain injury has likely exacerbated an already impulsive cognitive style, increased his emotional[] fragility, and further compromised his life skill abilities in planning, foresight and organization of daily activities. [¶] . . . [H]e is incapable of demonstrating consistent, responsible and effective parenting.” He did not appear to appreciate the lingering effects of the physical and sexual abuse visited on his daughters.
On the other hand, the psychologist’s report noted that Jeffery K.’s “strongest performance” occurred on one subtest whose results showed “strong abstract verbal reasoning abilities in areas of moral, social and practical problems in life.” On that subtest, Jeffery K. scored in the 95th percentile. On another subtest designed to get the subject “to tell a logical story with a humorous or moral point” Jeffery K. scored above the 99th percentile.
Ultimately, the psychologist recommended that Jeffery K. be limited to supervised contact with Cassandra K. and Judie K. She concluded: “While his emotional attachment to his daughters is no doubt genuine and he may be well intentioned on their behalf, he is”—as noted above—“incapable of demonstrating . . . effective parenting. The ability to provide structure, predictable routines, dependability and emotional stability is essential for children who have been neglected and abused.” The psychologist found that Jeffery K. could not provide this environment, and she concluded that his “history, his current presentation and the results of past and present neurocognitive findings subsequent to sustaining a traumatic brain injury suggest it is not in the best interests of the children to once again restore his parenting responsibilities. Rather, it is the opinion of this evaluator that [he] should have only supervised contact with his daughters and that [it] should occur at their discretion . . . .”
The psychologist based this conclusion in part on an observation that “acquired brain injuries often have the effect of dis-inhibiting an individual.” Her evaluation of Jeffery K.’s case included the following findings: “Although current self report measures indicate minimal symptoms of depression and anger, he may be expected to experience significant variation in mood given his history and his brain injury. He has a pattern of reacting to external stress with aggressive and inappropriate reactions, particularly for example, driving a vehicle at high speeds, verbalizing threats in public and striking out physically.” He exhibits and has exhibited “a very limited ability to make safe and healthy decisions with regard to his children’s well-being.” He “has repeatedly demonstrated very poor judgment in selecting maternal or protective figures for his children and has failed to act decisively when they have been exposed to neglect, physical abuse and severe trauma.” He “has the overall cognitive ability, alertness and mental processing to acquire the knowledge necessary to improve his parenting skills. Unfortunately, he lacks the behavioral and cognitive self control to put his daughter’s [sic] concerns and needs before his impulsive decision making style.”
The foregoing findings addressed questions the agency asked the psychologist regarding Jeffery K.’s history and current condition. The agency also asked the psychologist about treatments that could improve Jeffery K.’s ability to safely raise Cassandra K. and Judie K. in the remaining three or four years before they reached adulthood (Cassandra K. will turn 18 in October of 2011 and Judie K. in December of 2012): “What treatment options are recommended to assist the father to become more able to safely provide parenting and to meet the children’s needs‌” The psychologist concluded: “He may benefit from direct instruction on improving communication with children, non coercive discipline strategies and thinking through consequences of parental decisions.”
C. Jeffery K.’s Testimony
At the hearing, Jeffery K. testified that his truck accident required 24 surgeries at San Jose’s Valley Medical Center and had resulted in the loss of brain tissue, but that he had learned to adapt. “I’m able to be as cognitive as I am, being that I’ve lost a total of nine and a half centimeters of brain tissue. I’m still able to function, able to run, able to walk, breathe. I taught myself how to swallow. I’m able to cook my own dinner. I’m able to take care of my animals. I’m able to take care of my household, my cars[;] anything that needs to be done, I can do it.” He could care for his daughters if reunited with them. And he continued to improve cognitively. He further testified that he had learned how to relate positively to his daughters, how his words and deeds affected them, and how the sexual abuse of them had impacted them. On the other hand, he had not raised his daughters on his own, without the help of anyone else, since 1995.
Jeffery K. also testified that while in dependency proceedings he wanted to be evaluated by “my neurologist,” who had treated him before, but the agency’s social worker told him not to arrange for the evaluation and that instead, as Jeffery K. related her statement in court, “the [agency] would set up a neurology appointment for a neuropsychological evaluation.” Apparently this testimony refers to the evaluation later performed by the British Columbia–based psychologist.
D. Social Worker’s Testimony
An agency social worker testified as an expert in risk assessment, assessment of best interests, and supervising and placing dependent children. She said that counseling and psychotherapy were important parts of Jeffery K.’s case plan but that the agency could not pay for them. She had made telephone calls to several providers but none was inexpensive enough for Jeffery K. to be able to afford. She had asked the psychologist who administered Jeffery K.’s neuropsychological evaluation whether psychotherapy could be helpful. The psychologist had replied that “[i]t would not be helpful enough to have an effect that would change who [he] is due to his both psychological and neurological issues.” The psychologist also had told her that Jeffery K.’s “problems prior to the head injury . . . and the multiple head injuries that he had were so severe that although he certainly can learn on the spot, he probably would never be able . . . to use that information to . . . carry out thought processes[] which would be empathetic to his children.” The same impairments would make it impossible for him “to anticipate what his behaviors and his speech would do to the children.”
The social worker further testified that no matter how well Jeffery K. performed “on the spot,” “things begin to deteriorate” later “when . . . he tries to interact with the children.”
E. Additional Testimony, From an Acquaintance
A woman who had gone through the same head injury program at the Valley Medical Center as Jeffery K. and had known him for seven months testified about his positive psychological and emotional traits. He expressed concern to her about the molestation his daughters had experienced. He did not seem to have a problem remembering things or planning ahead.
III. The Reunification Services Provided to Jeffery K.
As can be gleaned from the foregoing description, the agency arranged for a psychologist to perform a neuropsychological evaluation of Jeffery K. and provided him with social workers’ services. Through the social workers, Jeffery K. was afforded a case plan that included child-raising classes and supervised visits with Cassandra K. and Judie K.
The social worker testified that the agency prepared a case plan whose aim was to reunify Jeffery K. with Cassandra K. and Judie K. As alluded to above, Jeffery K. took two parenting classes as part of his case plan. The social worker did not request a written report about Jeffery K.’s performance in the basic teen parenting class, nor did she call the class teacher to find out how he might be progressing. She did call the teacher of the other class, which dealt with raising sexually abused children.
The social worker knew that counseling and psychotherapy were an important part of Jeffery K.’s case plan and that Jeffery K. would have difficulty paying for those services because his federally provided supplemental security income, a form of Social Security, had been reduced. She denied being aware that Jeffery K. needed help completing forms to obtain additional supplemental security income that might make it possible for him to afford such services. Nor could she offer the agency’s help to pay for them directly. “Our department, since 2005, has not had money to pay for counseling for any parents,” she explained.
IV. The Juvenile Court Finds the Services Provided to Have Been Reasonable
The juvenile court ruled that “[b]y clear and convincing evidence, reasonable services have been offered and provided to [Jeffery K.] which were designed to aid [him] to overcome the problems which led to the initial removal of [Cassandra K. and Judie K.].” It found that the reunification services had failed to remedy those problems and that Jeffery K. had made only minimal progress in alleviating them. It directed that Cassandra K. and Judie K. remain in a “community care facility,” in this case one or more group homes, with an eye toward eventual placement in a less restrictive foster-care setting. Jeffery K. would be permitted to continue to have supervised visits with Cassandra K. and Judie K.
At the hearing, the juvenile court explained the reasons for its ruling. The court found the psychologist’s neuropsychological evaluation of Jeffery K. “very informative.” The court continued that the psychologist’s report “also talks very much about what the children would need from a parent and what [Jeffery K.] would be able to offer. The children have deep, deep needs from repeated abuse from various different adults in their lives. And while [Jeffery K.] has been able to achieve this cognitive resiliency, there are times when he can’t even advocate for himself, in terms of he doesn’t know how come his Social Security is being reduced. He doesn’t know about the forms. So that just to me speaks of one example of how will he be able to protect the children and meet their special needs, especially since the children have such deep needs. [¶] So I think this is just a sad situation because clearly [Jeffery K.] loves his children and he’s pretty much done everything he can. He’s hampered by living on $500 a month. He’s on disability. But—and I apologize to you, [Jeffery K.], [because] if I could, I would want you to be with your children, but my job is to make sure your children have the best placement and the best situation. My sole purpose in being here is to ensure the best interest of your children. [¶] So I do not believe that by April 13th [2008] there’s a substantial probability that you would be able to have the children returned to you. And I’m going to adopt the recommendations of the [agency].”
DISCUSSION
I. Appealability
The posture of this juvenile dependency case differs from others of its type in that the juvenile court ruled that no selection and implementation hearing should be set for Cassandra K. or Judie K., but that instead they should remain in long-term foster care. The court so ruled because it determined that they were not suitable for adoption. (See Welf. & Inst. Code, § 366.21, subd. (g)(3), 1st par.) An order ending reunification services not accompanied by an order setting a selection and implementation hearing, i.e., a hearing to devise a permanent plan for adoption or another permanent disposition, is an appealable order and the parent need not seek relief by way of extraordinary writ. (See In re Henry S. (2006) 140 Cal.App.4th 248, 255-256; In re Precious J. (1996) 42 Cal.App.4th 1463, 1473-1474; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1394, 1395; cf. Welf. & Inst. Code, § 366.26, subd. (l)(1); cf. also Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1155-1156.) We may entertain this appeal.
II. Standard of Review
Before ending reunification services, the juvenile court must determine by clear and convincing evidence that reasonable services were provided. (Welf. & Inst. Code, § 366.21, subd. (f); In re Monica C. (1995) 31 Cal.App.4th 296, 306.) On review, this court inquires whether substantial evidence, whether or not contradicted, supports the juvenile court’s decision. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762 (per curiam).) Substantial evidence is evidence that is reasonable, credible and of solid value. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
When applying the substantial evidence test a reviewing court must bear in mind the stringent clear and convincing evidence standard that applied to the juvenile court’s determination. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) “ ‘Under this burden of proof, “evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.” [Citation.]’ ” (Alvin R., at p. 971.)
III. Application of the Law to the Facts
Jeffery K. identifies In re Alvin R., supra, 108 Cal.App.4th 962, In re Daniel G. (1994) 25 Cal.App.4th 1205, and In re Victoria M. (1989) 207 Cal.App.3d 1317, as bearing on the question whether the juvenile court properly found that the agency provided him with reasonable reunification services. The agency in turn argues that each case is factually distinguishable. We agree with the agency that none of the cases is meaningfully relevant, in a factual sense, to our inquiry. To the extent juvenile dependency cases are fact-dependent, as this one is, legal precedent will be of limited value unless the facts in a cited case are markedly similar to the case before us. We will not discuss the foregoing three cases in detail; suffice it to say that none contains facts close enough to those of this case to make it particularly useful.
The legal standards are, by contrast, well-settled and fully applicable to this case. “Reunification services need not be perfect.” (In re Alvin R., supra, 108 Cal.App.4th at p. 972.) “[T]he mere fact that more services could have been provided does not render the [agency’s] efforts unreasonable.” (Id. at p. 973.) “But they should be tailored to the specific needs of the particular family. [Citation.] Services will be found reasonable if the [agency] has ‘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 . . . .’ ” (Id. at pp. 972-973.)
The record before us shows substantial evidence to support the juvenile court’s ruling under the clear and convincing evidence standard that the agency provided reasonable reunification services. The agency arranged to have a psychologist evaluate Jeffery K. The psychologist was aware of Jeffery K.’s history of physical insults to the head and brain and his psychological difficulties. In a thorough report, which contained psychological and some neurological observations, she reached unequivocal conclusions that little could be done to reunite Jeffery K. with his daughters, given not only his own impairments but the traumatic effects on the children of the sexual abuse they had suffered. Although the psychologist was not a medical doctor, the report convinces us that she was aware of the medical, and specifically neurological, implications of Jeffery K.’s history and that, if she had felt that medical evaluation could lead to treatment that in turn could improve the chances of reunification, she would have recommended that course of action. It may be recalled that the psychologist told the agency’s social worker that Jeffery K.’s “problems prior to the head injury . . . and the multiple head injuries that he had were so severe that although he certainly can learn on the spot, he probably would never be able . . . to use that information to . . . carry out thought processes[] which would be empathetic to his children.” Under these circumstances, we find substantial evidence that the contents of the report, coupled with the psychologist’s conversation with the social worker, constituted clear and convincing evidence to support the juvenile court’s ruling.
IV. Conclusion
The juvenile court and the agency “are required to tailor the reunification plan to accommodate [a parent’s] special problems and limitations.” (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) There is sufficient evidence that this was done in Jeffery K.’s case. To be sure, in exercising its discretion, the court must bear in mind that the agency is required to try to provide reunification services tailored to Jeffery K.’s situation “in spite of the difficulties of doing so or the prospects of success.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) But the rule set forth in Dino E. has its limits. The law does not require trying to do the impossible (Civ. Code, § 3531) or engaging in idle acts (id., § 3532). It might not be impossible for additional reunification services to achieve the goal of reunification, but the statutory maxim applies to the exceedingly difficult as well as the impossible. Impossibility under Civil Code section 3531 “means not only strict impossibility but also impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.” (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 300.) In sum, there is no requirement of carrying out an exercise that is highly likely to be fruitless, and we sustain the juvenile court’s finding, in essence, that it was highly unlikely that continued efforts would bring about reunification.

DISPOSITION
The juvenile court’s orders dated January 31, 2008, are affirmed.





Duffy, J.




WE CONCUR:





Mihara, Acting P. J.










McAdams, J.


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