Filed 6/1/18 In re H.H. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re H.H., a Person Coming Under the Juvenile Court Law.
M.H.,
Petitioner,
v.
SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO,
Respondent,
SAN FRANCISCO HUMAN SERVICES AGENCY et al.,
Real Parties in Interest. A153930

(San Francisco City & County
Super. Ct. No. JD17-3148)



I.
INTRODUCTION
Appellant M.H. (Mother) appeals the juvenile court’s order terminating reunification services with her 12-year-old daughter, H.H. Mother contends the juvenile court erred in concluding that the San Francisco Human Services Agency (the Agency) made reasonable efforts to provide Mother services throughout the reunification period and in terminating her services pursuant to Welfare and Institutions Code section 388, subdivision (c)(1)(B) after only six months. Mother contends the juvenile court erred in allowing H.H. to control if visitation occurred. We affirm the order terminating reunification services but reverse and remand the visitation order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Dependency Petition
On June 6, 2017, the Agency filed a juvenile dependency petition under section 300. It alleged Mother used physical force against H.H., H.H. did not feel safe due to domestic violence in the home, and the Agency had filed three previous petitions involving H.H. The most recent incident arose at H.H.’s graduation ceremony at her elementary school. H.H. became upset when Mother arrived with her boyfriend (Boyfriend). In response, Mother grabbed H.H. by the neck and hair and dragged her across the school yard. H.H. reported that she disliked Boyfriend because he hits Mother. Mother denied any domestic violence and stated the bruise on her face was caused by the dog pulling her into a door.
Boyfriend had been recently charged with willful cruelty to his three-year-old son who had burns on his neck. Boyfriend’s son also reported domestic violence by Boyfriend against Mother.
Mother has a history of being a victim of domestic violence and of substance abuse. Mother’s two older children, R.H. and R.M., were removed from her care. From 1997 to 2017, Mother had more than 30 prior child welfare referrals.
The court held a detention hearing, where Mother failed to appear, and removed H.H. from Mother and placed her in the care of her adult older sister, R.H.
B. Jurisdiction and Disposition Report and Hearing
In the jurisdiction and disposition report, the Agency reported H.H. had disclosed multiple instances of violence by the Boyfriend against Mother. H.H. also reported she saw Mother with needles in her body. When Mother was asked about H.H.’s statements, she yelled: “She’s a fucking liar!”
The Agency had difficulty contacting Mother and Mother failed to return phone calls and did not report to meetings. Mother’s current mental health status was unknown but she had previously been evaluated in 2014 and found to have methamphetamine use disorder and was in remission from an anxiety disorder. Mother had an extensive history of substance abuse including methamphetamines and alcohol. Mother refused to drug test for the Agency. Mother was homeless.
Mother denied any history of domestic violence but it was documented with her two older children. As it relates to H.H., Mother appeared at school functions with black eyes and bruises.
H.H. was two to three years behind in school. Mother did not enroll H.H. in school but her older sister, R.H., enrolled her when she was seven years old. Mother had enrolled H.H. in several schools and then repeatedly relocated her. At a school meeting for H.H., Mother appeared two hours late, seemed to be under the influence, and had black eye. The school recommended H.H. repeat fifth grade because she was working at a third-grade level, in response, Mother removed her from the school.
H.H. declined therapeutic visits with Mother and did not want to see or talk to Mother. H.H. is bonded with her older sister, R.H., and wants to live with her. The Agency requested visitation when the therapist and H.H. decide it is safe for H.H. to meet with Mother. The Agency had scheduled weekly visits but each time H.H. refused to go.
Mother refused a drug test referral, refused a homeless prenatal referral, and refused to accept a referral to the Riley Center for Domestic Violence. The Agency recommended she complete a substance abuse assessment, outpatient drug treatment, individual therapy, and maintain stable housing separate from Boyfriend.
The court held a contested jurisdiction and disposition hearing on August 29, 2017. Mother filed a written statement but elected not to call any witnesses or cross examine the social worker. The court found by clear and convincing evidence that there was substantial danger to H.H. if she was returned to Mother’s care. The court ordered out of home placement with H.H.’s older sister, R.H. The court ordered the following reunification services for Mother: a substance abuse assessment, outpatient drug treatment, individual therapy, and housing separate from Boyfriend. The court ordered therapeutic visitation for Mother “once the minor is willing to do so/if she desires it.”
C. Six Month Review Report and Hearing
On February 15, 2018, the Agency filed a status review report in advance of the six-month status hearing. The report recommended that reunification services be terminated. Mother failed to keep the one appointment she scheduled with the social worker to discuss her reunification plan. When the social worker attempted to call to reschedule, Mother’s phone was disconnected or would not accept incoming calls. Mother called the social worker to complain that she was being treated unfairly but refused to schedule an appointment to discuss services. “Every time when [Mother] would call me, she will talk non-stop and when I ask her to come to [my] office, she would hang up.” The social worker contacted R.H. who said she had the same difficulties contacting Mother. Mother’s whereabouts were unknown.
The social worker reported Mother had not made herself available for a mental health or substance abuse assessment, and would not allow assessment of her housing situation.
H.H. has been engaged in therapy since July 2017. H.H. refused to visit or talk to Mother on the telephone. The report stated: “the therapist, the caregiver and the Agency continue to encourage her to mend the relationship she had with the mother, but [H.H.] is not ready at this time.” H.H. was happy living with her sister.
The social worker reported that she was never able to meet with Mother to review her progress on her case plan and to identify whether Mother needed additional referrals. During the phone calls Mother made to the social worker, she repeatedly denied the allegations. Mother had not appeared for drug testing, not begun individual therapy or outpatient drug treatment, and had not shown any interest in reunification services.
On March 1, 2018, the Agency filed a section 388 petition requesting termination of Mother’s reunification services. It stated that Mother had not made herself available to the Agency, had not engaged in reunification services, and had ignored repeated attempts at contact by the social worker. H.H. continued to refuse to visit Mother and stated her strong desire to live with her sister. H.H. was thriving in her sister’s care, attending school and engaging in age-appropriate activities.
The Agency filed an addendum report on March 15, 2018. On March 1, 2018, the social worker met with Mother for the first time. Mother was homeless and did not have a phone. Mother stated she had started a substance abuse assessment but had not completed it. She had not reported for drug testing. Mother had been provided with referrals for substance abuse assessment, drug court assessment, and case management services but she had not used them. The social worker scheduled a follow-up appointment with Mother for March 5, 2018 but Mother did not come or call to cancel. The social worker mailed her reunification plan to her current listed mailing address where she received food stamps and to her attorney.
The social worker reported that H.H. “has been consistent with not wanting to visit with her mother. [H.H.] has continually express[ed] to her therapist and me that she does not want contact with her mother at this time. As a result, it is not in the minor’s best interests to insist that [H.H.] visits with the mother at this time, as it solicits lots of negative emotions and past trauma from her.”
On March 19, 2018, the court held a six-month review hearing and addressed the section 388 petition to terminate reunification services. At the start of the hearing, Mother was upset and made repeated outbursts in court. Mother stated that no one had helped her obtain services or reunify with her daughter.
The social worker, Rose Willis, testified about the services that had been offered to Mother including substance abuse testing, outpatient drug counseling, individual therapy, and a substance abuse assessment. Mother never engaged in therapy. She started the substance abuse assessment but did not complete it and did not obtain a referral for drug counseling. Mother failed to keep three appointments with the Agency to discuss her case plan and referrals. Mother would call Willis and talk about her prior cases, but she would not discuss her current reunification. Mother refused to discuss her mental health history or status or pursue a referral.
Willis arranged for visitation but H.H. did not want to visit Mother and she needed more time. H.H. was attending individual therapy. H.H.’s therapist reported that it was not in H.H.’s emotional best interest to see Mother.
Mother went to family treatment court on March 2, 2018 but was unable to focus on her current case because she kept discussing her past reunifications. She was supposed to return to family treatment court on March 9, 2018 but did not appear. Mother was also referred for drug testing but did not report.
At the conclusion of Willis’s testimony, the court inquired of Mother’s counsel how she would like to proceed. Counsel went to find Mother who could not be located. Mother’s counsel requested the court not make a detriment finding regarding visits and “leave the door open” for visits in the future. Mother’s counsel requested the court not terminate services for another six months. She argued Mother had not been provided reasonable services. Mother had not been able to visit her daughter and the Agency should do more to address Mother’s mental health issues.
The Agency argued under section 388, subdivision (c)(1)(B), where there is inaction by the parent creating a substantial likelihood that reunification will not occur, the Agency can request termination of services. The Agency provided reasonable services and tried multiple times to engage Mother. Mother has not engaged in court ordered services and had not made any progress in her case plan. The Agency requested the court make a finding of detriment and order no visitation going forward.
H.H.’s attorney joined in the Agency’s 388 petition to terminate services. H.H. wanted and needed stability. She is suffering pain, trauma, and worry over being forced to leave her sister’s home. H.H. was clear that she wanted to stay with her sister and she was not ready to visit Mother. In addition, H.H.’s therapist agreed with the termination of reunification services to Mother because the fear and instability “dysregulates” H.H.
The court stated that Mother’s behavior was “erratic” and “troubling” and her behavior must be frightening to H.H. The court stated it did not know if Mother was suffering from drug addiction or impaired mental health but it was “concerning.” The court found Mother had been given reasonable services; she had been referred to drug treatment and mental health treatment. The court stated that it “personally [did not] like to terminate services after only six months, but I have to do what’s in the best interest of [H.H.]” The court stated that nobody could force Mother to engage in services.
Based on Mother’s behavior and her lack of participation in services, there was no substantial likelihood of reunification by August. Mother “has miles to go.” The court recognized that Mother was not able to participate in H.H.’s education or attend visits so the court was discounting those as negative factors. The court found: “I see no way that [Mother] is going to reunify within the next six months. So I am going to terminate her services based on the record I have and based on the law.” The court found by clear and convincing evidence that reasonable efforts had been made to provide the parent with services to overcome the problems that led to removal of the child. Mother had made no progress towards alleviating or mitigating the causes that necessitated placement. The court granted the section 388 petition.
The court refused to make a finding of detriment because it was not in H.H.’s best interest. H.H. was not ready to see Mother yet and she may never be ready to see Mother, but if H.H. becomes ready, the court ordered a once-a-month supervised visit.
The court set the section 366.26 hearing for July 11, 2018.
III.
DISCUSSION
We recently articulated the distinction between the clear and convincing evidence standard before the juvenile court and the substantial evidence standard of review applied on appeal. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229 (T.J.).) “We believe the correct standard requires us to bear in mind that clear and convincing evidence was required in the trial court. In a closely related context, our Supreme Court has adopted the view that the clear and convincing evidence standard is incorporated into the substantial evidence standard of review. [Citation.]” (Id. at p. 1239.) Hence, “ ‘[w]e review the record 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.’ ” (Id. at pp. 1239–1240, italics omitted, citing In re Isayah C. (2004) 118 Cal.App.4th 684, 694.)
We review the juvenile court’s finding of reasonableness of offered services under the substantial evidence test. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) “[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered. [Citations.]” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762).
Mother argues the juvenile court erred in granting the Agency’s request to terminate reunification services after six months. In addition, she contends the services she was provided were not reasonable because the Agency failed to address her mental health issues and provide visitation.
Section 361.5, subdivision (a)(1), provides that where a detained child is three years of age or older, 12 months of reunification services “shall be provided” to the parent. (§ 361.5, subd. (a)(1)(A).) Any motion to terminate services before the 12-month point, shall be made pursuant to the requirements of section 388, subdivision (c). (§ 361.5, subd. (a)(2).) Under section 388, the Agency may petition the court to terminate reunification services if the “action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent’s or guardian’s failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 388, subd. (c)(1)(B).)
Mother argues that the court erred in terminating reunification services despite the fact she participated in or attempted to participate in services and her specific mental health issues were not identified. The record does not support her assertion.
Mother failed to keep three appointments with the Agency to discuss her case plan and referrals. After refusing meetings and services for six months, Mother attended one meeting but then failed to appear for the next schedule appointment. Mother’s only contact with the social worker involved phone calls where Mother would talk about her prior cases, but she would not discuss her current reunification. Mother refused to discuss her mental health history, current mental health status, or pursue any referrals.
Mother contends that the Agency had insufficient information about Mother’s substance abuse assessment. To the extent this is true, it is Mother’s fault the Agency lacked information because Mother did not attend her scheduled visits with the social worker, failed to provide information in phone calls, and failed to provide contact information where she could be reached.
Mother admitted to the social worker that she had started a substance abuse assessment but had not completed it. Mother never reported for drug testing. Mother had been provided with referrals for a drug court assessment and case management services but she had not used them.
Mother argues that her behavior indicated she had mental health issues. Mother argues the Agency failed to provide reasonable services because it should have ordered a psychological evaluation.
The “ ‘adequacy of reunification plans and the reasonableness of the [Agency’s] efforts are judged according to the circumstances of each case.’ [Citation.] To support a finding reasonable services were offered or provided, ‘the 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 . . . . [Citation.]’ ” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426 (Tracy J.).) “In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547; see also In re Alvin R. (2003) 108 Cal.App.4th 962, 972 [“[r]eunification services need not be perfect”].)
In the prior dependency in 2014, Mother received a psychological evaluation finding an anxiety disorder and methamphetamine use disorder. The Agency argues no new evaluation was required and the Agency provided both substance abuse and individual therapy referrals. If Mother or her counsel felt a psychological evaluation was necessary, she should have made that request to the court or the Agency at the time the reunification plan was ordered. (See Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1506.) Additionally, if Mother had engaged in individual therapy as ordered, the therapist could have assessed her mental health and recommended a psychological evaluation.
The Agency argues that Mother conflates her substance abuse issues with mental health issues. The social worker concluded that Mother’s difficult and erratic behavior occurred when she was using drugs.
Mother cites to T.J., supra, 21 Cal.App.5th 1229 to argue that it was not enough for the Agency to simply make referrals without making services accessible to Mother. T.J. is distinguishable because it involved a developmentally disabled mother who was referred to services but there were substantial delays in providing those services. (T.J., at p. 1242.)
Here, Mother refused the domestic violence referral, refused to participate in drug testing, and never attempted to obtain individual therapy or substance abuse treatment. The T.J. court noted that the mother did not suffer from substance abuse or domestic violence, as Mother does here. (T.J., supra, 12 Cal.App.5th at p. 1250.) The mother in T.J. was difficult to work with but she cooperated with services in several ways, unlike Mother here. (Ibid.) The T.J. court stressed that it was a neglect case with a struggling mother. (Ibid.) The present case involves a great deal more: Mother has more than 30 referrals for her three children, she has lengthy history of drug abuse and domestic violence, and her daughter had suffered great emotional trauma. Based on Mother’s refusal to meet with the social worker, engage in services, and attempt to control her behavior in any way, the juvenile court found that there was clear and convincing evidence to support the termination of services. The court found Mother had made no progress towards alleviating or mitigating the causes that necessitated placement. The court found mother had “miles to go” before she would be ready to parent H.H. Substantial evidence supports this finding.
Mother also contends the juvenile court illegally delegated the discretion to determine visitation to the Agency and H.H. As a preliminary matter, the Agency argues that Mother has forfeited this argument by failing to raise it before the juvenile court. At the six-month hearing, Mother objected to the court making a finding of detriment but did not object to the court’s visitation order. Mother’s counsel asked that the court “leave the door open” to future visitation when H.H. was ready to see Mother. The court ordered supervised monthly visits when H.H. was ready for them.
Contrary to the Agency’s view, Mother did not forfeit this argument because her argument is that visitation is a reunification service and allowing H.H. to refuse visits with Mother means the Agency failed to provide Mother with reasonable services. She raised this argument at the six-month hearing before the juvenile court.
Mother relies on In re Ethan J. (2015) 236 Cal.App.4th 654 (Ethan J.) where the court held: “If the juvenile court orders visitation, ‘it must also ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur.’ (In re S.H. (2003) 111 Cal.App.4th 310, 313.) When the court abdicates its discretion and permits a third party, including the dependent child, to determine whether any visitation will occur, the court impermissibly delegates its authority over visitation and abuses its discretion. [Citation.]” (Id. at p. 669.) In Ethan J., the court ordered therapeutic visitation with the understanding it would not be forced upon the child, but then the court dismissed dependency jurisdiction precluding any means of ensuring the order was carried out. (Ibid.) The court concluded that the juvenile court erred in terminating dependency jurisdiction which effectively delegated authority over visitation to the child. (Id. at p. 662.)
While our case is distinguishable from Ethan J. in several respects: the juvenile court here has retained jurisdiction over this case and has ordered therapeutic visitation when H.H. is ready to see her Mother, the fundamental issue of delegating to the child whether visitation occurs is the same. “[O]nce the court determines that visitation is in the child’s best interests, the court must, as part of its duty to protect and serve those interests, ensure that such visitation occurs under terms set by the court. Otherwise, by placing sole discretion whether visitation will occur in the hands of the child, the court will have ceded to the child the determination whether visitation is in the child’s best interests.” (In re Korbin Z. (2016) 3 Cal.App.5th 511, 514.) In Korbin Z., 12-year-old Korbin did not want visitation with his father. “The court expressed the desire to allow monitored visits in the future in case Korbin changed his mind but explained that the decision to have any visits would be Korbin’s. The court thus ordered [the Department of Children and Family Services] to facilitate monitored visits with Korbin and [his father] in a therapeutic setting at Korbin’s discretion.” (Id. at p. 516.) The court found this was an improper delegation. “Although the court was not required to order visits for Father, once it did so, it could not delegate the decision whether visitation would occur to Korbin.” (Ibid.; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505, 1508 [juvenile court erred in failing to enforce visitation order where child refused any contact with his mother because in “no case may a child be allowed to control whether visitation occurs.”].)
We are sympathetic to the juvenile court’s desire to allow H.H. to progress in her therapy to the point she is ready to face her Mother, but unfortunately, the sole discretion of whether visitation occurred could not be left to the child. The juvenile court either had to order visitation to occur or make a finding that visitation would be detrimental to H.H. Given both the social worker and H.H.’s therapist’s stated view that it was not in H.H.’s best interest to see Mother, the court had evidence to make a detriment finding. Throughout the reunification period, H.H. has strongly expressed her view that she did not want any contact with Mother. The social worker reported: “[H.H.] has continually expressed to her therapist and me that she does not want contact with her mother at this time. As a result, it is not in the minor’s best interests to insist that [H.H.] visits with the mother at this time, as it solicits lots of negative emotions and past trauma from her.” H.H.’s therapist also stated it was not in H.H.’s emotional best interest to see Mother.
We therefore reverse the juvenile court’s visitation order and remand for the court to order visitation or to make a detriment finding that visitation is not in H.H.’s best interest.
IV.
DISPOSITION
The juvenile court’s order terminating reunification services is affirmed. The court’s visitation order is reversed and remanded to the juvenile court to reconsider whether to order visitation and the terms of any visitation.









_________________________
SMITH, J.*



We concur:


_________________________
STREETER, Acting P. J.


_________________________
REARDON, J.




















* Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.