In re Cheyenne B.

Filed 7/11/06 In re Cheyenne B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.

Nicholas B. appeals an order terminating his reunification services at the 18-month review hearing under Welfare and Institutions Code section 366.22.^[1] Nicholas contends the San Diego County Health and Human Services Agency (the Agency) did not provide him reasonable services during the five-month period preceding the 18-month review hearing. He also argues the trial court abused its discretion when it did not offer him family maintenance services after his daughter, Cheyenne B., was returned to her mother's custody under section 364. We affirm the order.

FACTUAL AND PROCEDURAL BACKGOUND

Cheyenne B. was born in September 2000 to Nicholas and Ann B. (together, parents). In January 2004, the Agency detained Cheyenne after Ann hit her with a brush, bruising her lower back and buttocks. The Agency filed a petition under section 300, subdivisions (a) and (b), alleging that Cheyenne had suffered serious physical harm due to mother's inappropriate physical discipline and that the child was at risk of serious physical harm or illness due to parents' continuing domestic violence and one-time use of methamphetamine in August 2003, and their chronic methamphetamine use from "December 2003 to present."

In March 2004, after a settlement conference, the court sustained the allegations of physical abuse under section 300, subdivision (a) and substantial risk to the child from domestic violence and parents' one-time methamphetamine use under section 300, subdivision (b). Nicholas was offered reunification services, including a domestic violence treatment program, general counseling, parenting education, and substance abuse treatment and testing through the Substance Abuse Recovery Management System program (SARMS).

The evaluating psychologist described Nicholas as potentially dangerous due to his extraordinarily poor insight, high propensity for violence and poorly modulated expressions of affect. His condition was diagnosed as methamphetamine abuse, alcohol dependence, psychotic disorder NOS (not otherwise specified), personality disorder NOS with antisocial and borderline features and physical abuse, and emotional abuse and neglect of children. The psychologist recommended the court not offer Nicholas reunification services.

Cheyenne exhibited seriously problematic behaviors. She acted out sexually in front of the other children, disrobing and displaying her genitals; she bit adults and children, and kicked, hit, spit and screamed profanities. In March 2004, during play therapy, three-year-old Cheyenne demonstrated oral copulation on a male doll. She told the therapist she sucked her father's penis and described ejaculation. Later, Cheyenne used a play telephone to repetitively scream at her father, "Don't touch my privates and don't hit my mommy." She identified her mother and father as perpetrators of sexual abuse and domestic violence. At some point in time not clear in the record, the sexual abuse allegation against Nicholas was substantiated.^[2]

At the six-month review hearing in September 2004, the Agency reported that Nicholas denied he molested Cheyenne and refused to participate in counseling for sexual offenders. He did not attend a domestic violence treatment program. He did not complete a parenting class. In May 2004, Nicholas tested positive for methamphetamine and was sent to a 10-day detoxification program. After his discharge, he voluntarily reported methamphetamine use and refused recommended residential treatment. The court found Nicholas did not make progress with his case plan, suspended his visitation with Cheyenne and ordered him to participate in SARMS.

In March 2005, at the start of the contested 12-month review hearing, the Agency reported Nicholas was incarcerated for possession of methamphetamine during the entire reporting period. Reports filed by the Agency state he was noncompliant with services during that period; however, the social worker later testified Nicholas completed a parenting education class while incarcerated. Because of his attitude and lack of treatment, the social worker believed Nicholas was unlikely to regain custody of Cheyenne. Nevertheless, the Agency recommended services continue to enable him to have supervised visits with his daughter.

Upon his release from jail in late March 2005, Nicholas made arrangements to live at a drug and alcohol treatment center. He attended an intake at a domestic violence treatment program but was unable to enroll without an authorization from the county. A few weeks later, he met with the social worker and appeared eager to start services. The social worker referred him to a domestic violence treatment program and individual therapy and said she would locate a treatment program for sexual offenders. At the conclusion of the 12-month hearing in May, approximately six weeks after his release from jail, the court found Nicholas made recent progress with his case plan and continued services.

On June 24, 2005, Nicholas was asked to leave the residential treatment facility because he was not participating in the program. When he informed his SARMS counselor, the counselor asked Nicholas to come in to SARMS for testing and to find a new treatment program. Nicholas did not comply. On July 14, the counselor telephoned the social worker to tell her Nicholas was not in compliance with SARMS and his whereabouts were unknown. Five days later, Nicholas telephoned the social worker. She told him she was recommending the court terminate his reunification services.

In August 2005, Nicholas was scheduled to be terminated from SARMS because of his lack of contact with the program. However, the court allowed Nicholas to stay in the program. Nicholas did not return to SARMS for an intake. The court then terminated his participation.

At the 18-month hearing, the Agency recommended the court terminate Nicholas's reunification services and return Cheyenne to the custody of her mother, who had completed her case plan. The social worker reported that she was unable to locate a sexual offender treatment group for Nicholas that accepted county funding. She stopped looking for a program in July 2005 when she learned Nicholas was not in compliance with SARMS. An authorization for a domestic violence treatment program expired before he enrolled. The social worker did not reauthorize the program until Nicholas was ordered back into SARMS. Nicholas's therapist changed jobs and stopped taking clients. The social worker did not refer Nicholas to another therapist.

Nicholas testified he voluntarily entered a residential drug and alcohol treatment program after his release from jail. He was in the program until approximately June 21, 2005, when he was discharged for no reason. Nicholas saw his therapist three times before she cancelled treatment. He tried to enroll in a domestic violence treatment program but the authorization for registration had expired. He did not learn the Agency had reissued an authorization until it too had expired. Nicholas denied he had been out of contact with SARMS for more than 30 days.

The court found by clear and convincing evidence the Agency offered or provided Nicholas reasonable services and that he did not make substantive progress with his case plan. The court terminated Nicholas's reunification services and placed Cheyenne with her mother on a family maintenance program. The court declined to offer Nicholas family maintenance services, stating his compliance with court-ordered services was poor, and he was working and capable of securing services on his own.

DISCUSSION

I

Introduction

Nicholas contends the court's finding that he was offered or provided reasonable services is not supported by substantial evidence. He argues the Agency did not provide proper support after his release from jail and his ability to participate in services was impeded by circumstances beyond his control.

Minor's appellate counsel responds that Nicholas was offered or provided reasonable services for 18 months and any deficiency in services was Nicholas's fault. The Agency argues that substantial evidence supports the court's finding Nicholas was provided reasonable services and details Nicholas's lack of compliance with court-ordered services during the first 12 months of the dependency proceedings. Nicholas points out that he did not appeal those findings and orders; his focus is on the Agency's efforts after the 12-month review date.

A

Reunification Services Must Be Reasonable Under the Circumstances

When a child is removed from parental custody, the court must order the Agency to offer each parent reunification services unless the case falls within one of the limited circumstances described in section 361.5, subdivision (b). (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) The Agency is required to identify the problems that led to the loss of parental custody and to offer services designed to remedy those problems. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Reunification services are reasonable if the Agency makes a good faith effort to assess and address the parent's problems that resulted in the dependency. (See In re John B. (1984) 159 Cal.App.3d 268, 275.)

"[T]he focus of reunification services is to remedy those problems which led to the removal of the [child]." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) The record should show the 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 when compliance proved difficult. (In re Riva M., supra, 235 Cal.App.3d at p. 414; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) "The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success." (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

We recognize that in most cases, more services could have been provided and the services offered may be imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The adequacy of a reunification plan and the department's efforts are judged according to the circumstances of each case. (In re Ronell A., supra, 44 Cal.App.4th at p. 1362.) The question is not whether the services were ideal but whether they were "reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Here, the Agency identified the primary factors leading to the loss of custody of Cheyenne as Nicholas's drug abuse, mental health condition and history of domestic violence and, later, sexual abuse of Cheyenne and another daughter. The record shows the Agency identified the problems leading to the loss of custody and offered services designed to remedy those problems. (In re Riva M., supra, 235 Cal.App.3d at p. 414; In re Ronell A., supra, 44 Cal.App.4th at p. 1362.) With the exception of a parenting class offered while he was incarcerated, Nicholas did not participate in his case plan during the first 12 months of the dependency proceedings.

After Nicholas was released from jail, he contacted the social worker, met with her and asked to participate in services. The social worker provided referrals for individual therapy and a domestic violence treatment program and promised to locate a treatment program for sexual offenders. At the 12-month review hearing, the court found that Nicholas made recent progress with his case plan. Based primarily on the substantial probability that Cheyenne would be reunified with her mother, the court continued reunification services until the 18-month review date.

B

Although Reunification Services Were Imperfect,

Substantial Evidence Supports The Court's Finding

Services Were Reasonable Under The Circumstances

Our review of the record shows that, after the 12-month review hearing, the Agency's provision of reunification services to Nicholas was imperfect. (See Elijah R. v. Superior Court, supra, 66 Cal.App.4th at p. 969.) The social worker conceded that she was unable to locate a sexual offender treatment program for Nicholas. After Nicholas's therapist was unable to continue treating him, the Agency did not refer him to another therapist, despite his requests to continue therapy. The Agency's initial authorization for a domestic violence treatment program was lost or misplaced. After the program was reauthorized, Nicholas missed the enrollment deadline by one day. Both Nicholas and program personnel immediately telephoned the social worker for assistance. The Agency did not reauthorize the program for more than two months.

Having concluded that the Agency had problems implementing Nicholas's reunification plan after the 12-month review date, we address the question whether substantial evidence nevertheless supports a finding that the reunification services provided were "reasonable under the circumstances." (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

Under the substantial evidence rule, the appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947, citing In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) We review the record in the light most favorable to the respondent and indulge in all reasonable and legitimate inferences to uphold the finding. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

Although the implementation of Nicholas's reunification plan after the 12-month review hearing was flawed, the record supports the inference that the Agency made a good faith effort to allow each parent to address the problems that resulted in Cheyenne's dependency. (See In re John B., supra, 159 Cal.App.3d at p. 275.) The Agency provided reasonable reunification services to Cheyenne's mother throughout the proceedings, resulting in family reunification. The SARMS program was consistently and readily available to Nicholas throughout the dependency case. The social worker made an initial referral on Nicholas's behalf for individual therapy. She resolved a problem caused by a lost authorization for a domestic violence treatment program, affording Nicholas a brief but adequate opportunity in May 2005 to enroll and participate in the program.

The record shows that the court allowed Nicholas to remain in SARMS when compliance proved difficult. (See In re Riva M., supra, 235 Cal.App.3d at p. 414; In re Ronell A., supra, 44 Cal.App.4th at p. 1362.) The clinical psychologist who evaluated Nicholas concluded that he was drug dependent and required continued drug intervention services. The psychologist recommended the court postpone other services "until such time [Nicholas] has attained a significant period of sobriety from alcohol and all illicit drugs." The record supports the inference that the primary focus of Nicholas's reunification services was effective substance abuse treatment.

The court found that Nicholas complied with substance abuse treatment only when he wanted to comply. In light of Nicholas's continued use of methamphetamine and resulting incarceration during the first 12 months of the case and his sporadic compliance with SARMS after the 12-month hearing, the court reasonably concluded Nicholas did not maintain his sobriety and, absent effective treatment, other reunification services would be ineffective in helping Nicholas resolve the problems that led to Cheyenne's dependency.

The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228, citing Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Despite deficiencies in the Agency's provision of some services to Nicholas after the 12-month review hearing, we conclude that under these circumstances, substantial evidence supports the court's finding reasonable services were provided to the parents.

C

Error, If Any, Was Harmless

Even had the court determined reunification services were not reasonable, the remedy Nicholas requests - an additional six-month period of reunification services - is available after the 18-month review date only in exceptional circumstances not demonstrated here. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) Error, if any, in the court's finding that Nicholas was provided reasonable services was therefore harmless.

In determining whether it should exercise its discretion to provide a parent reunification services past the 18-month review date, a court considers the Agency's failure to offer or provide reunification services, the likelihood of family reunification with the provision of further reunification services, whether the child's need for a prompt resolution outweighs any benefit from further reunification services, and any other relevant factors the parties may bring to the court's attention. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1466, citing Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1016-1017.)

From the state's perspective, family reunification is achieved when the child is placed with a parent. (See In re Erika W. (1994) 28 Cal.App.4th 470, 476-477 ["reunification services will be offered only for the purpose of facilitating permanent parental custody of the child by one or the other parent."].) Due to her consistent participation in and completion of her case plan, Ann regained custody of her daughter at the 18-month review hearing. Family reunification was achieved. The state was not required to continue to offer Nicholas reunification services.

In addition, as we discussed, ante, without consistent participation and substantial progress with drug treatment, Nicholas's reunification with Cheyenne was unlikely. The Agency offered Nicholas reunification services for almost 12 months before he decided compliance might be in his daughter's best interests.^[3] Had the court extended services past the 18-month review date, Nicholas could not have completed his case plan. Serious concerns existed with respect to Nicholas's mental health condition and sexual behavior, requiring intensive, long-term treatment. Other programs could not be completed within a brief extension of time. The domestic violence treatment program, for example, was 52 weeks long. Even had Nicholas started the program in June 2005, he could not have completed the program within six months of the 18-month review date, July 28, 2005.^[4]

In short, there was little likelihood Nicholas would reunify with Cheyenne. He refused to participate in reunification services during the first six months of her dependency and continued to use methamphetamine during that time. Nicholas was incarcerated on felony drug charges during the second six months of the reunification period, and did not consistently participate in substance abuse treatment following his release. Nicholas cannot show his reunification with Cheyenne was prejudiced by impeded access to some services in the few months remaining in the reunification period after the 12-month review hearing.^[5]

II

The Court Acted Within Its Discretion When It Declined To Offer Father Services After Cheyenne Returned To Her Mother's Custody On A Family Maintenance Plan

Nicholas argues the court abused its discretion when it did not offer him continued services through a family preservation program. He maintains the court agreed that his continued participation in services was in his daughter's best interests and therefore the court's refusal to offer him family maintenance services was arbitrary and capricious.

The Agency responds that family maintenance services are designed to prevent the future separation of children from their families and are limited to the custodial parent or parents. (§ 16501, subd. (g).) The Agency argues Nicholas's services were time-limited because he received 18 months of family reunification services. In addition, the Agency contends further services would have been futile in light of Nicholas's history of minimal participation.

Nicholas counters that he is not arguing he is entitled to family maintenance services, only that it is in his daughter's best interests for him to receive such services. He contests the Agency's assertion that section 364 limits family maintenance services to only the custodial parent. Nicholas contends family maintenance services are not time-limited and can be provided to a child and his or her family until the child is 18 years old. (§ 364; In re Joel T. (1999) 70 Cal.App.4th 263, 268.) Citing our recent decision in In re Alanna A. (2005) 135 Cal.App.4th 555, 565, Nicholas points out that the Legislature granted the juvenile court the authority to direct its orders as the court deems necessary and proper for the best interests of the child. (See § 245.5.)

The Agency is technically correct when it states that family maintenance services are provided to the child and the custodial parent to maintain the child "in his or her own home." (§ 16506; see § 16501, subd. (g) ["maintenance services are activities designed to provide in-home protective services . . . ."].) However, this does not mean the noncustodial parent cannot access services. On the contrary, when placing a child in the custody of one parent, the juvenile court has the authority to order both parents to participate in the "child welfare services^[6] or services provided by an appropriate agency" the court deems necessary. (§§ 362, subd. (b), 245.5; see generally, In re Alanna A., supra, 135 Cal.App.4th at p. 565.) "The individual child's case plan is the guiding principle in the provision of these services." (§ 16501, subd. (a).)

Here, the court recognized it would be in Cheyenne's best interests were her father drug-free, mentally and emotionally stable, and generally "in a good position." The court believed Nicholas did well when he was sober and wanted to do well, but when "he doesn't want to he doesn't want to." The court believed any services would be ineffective until Nicholas was able to stay clean and sober. It was not an effective use of the Agency's time and resources to provide services to Nicholas at his convenience. If Nicholas wanted to participate in a domestic violence treatment program or therapy, he was able to obtain services on his own. The court was willing to consider evidence of Nicholas's self-directed participation at a later date.

We will not disturb on appeal a decision of the trial court unless it has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Here, based on Nicholas's lengthy history of minimal and sporadic compliance with reunification services, the court reasonably determined Nicholas might choose to participate more consistently were he responsible to secure and pay for services. The court also considered the impact on Agency resources and determined providing Nicholas taxpayer-funded child welfare services would be an unwise use of government resources. (See In re Alanna A., supra, 135 Cal.App.4th at p. 566; In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.) The court reasonably left open the possibility of funding future services for Nicholas depending on his progress in programs of his own choosing. In light of its sound reasoning, the court did not abuse its discretion when it declined to offer Nicholas further services.

DISPOSITION

The order is affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Real Estate Attorney.

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

^[2] An older daughter also alleged sexual abuse. Nicholas admitted performing a sexual act in her presence.

^[3] Reunification services were also previously offered Nicholas in the dependency case of two teenaged children. His compliance with those services was reported to be minimal.

^[4] Nicholas was first offered the opportunity to participate in a 52-week domestic violence treatment program in 2003.

^[5] Nicholas also claims his visitation with Cheyenne was adversely affected by the lack of available services. However, the record shows the child's therapist did not recommend visitation because Cheyenne was overwhelmed by the process of transitioning to her mother's care. Cheyenne continued to bite others and to display sexualized behaviors. The therapist believed contact with Nicholas could exacerbate Cheyenne 's problems. The record supports the inference that the child's therapist would take this position regardless of Nicholas's involvement with services. Visitation with Nicholas depended upon Cheyenne's overall stability and emotional readiness.

^[6] Under section 16501, family maintenance services are a subset of child welfare services. Child welfare services include but are not limited to a range of service-funded activities, including counseling, parenting training and substance abuse testing. "These service-funded activities shall be available to children and their families in all phases of the child welfare program in accordance with the child's case plan and departmental regulations. Funding for the services is limited . . . ." (§ 16501, subd. (a)(1).)