In re J.A.

Filed 8/15/07 In re J.A. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

This is the third appeal by K.H. (mother), following the removal of two of her sons, J.A. and D.A., from her custody. This case originated when the Alameda County Social Services Agency (agency) filed a petition pursuant to section 300, subdivision (b) of the Welfare and Institutions Code^[1]on behalf of J.A. and D.A. Following a jurisdiction and disposition hearing, the juvenile court found the allegations in the amended petition true and removed both boys from the custody of mother. Mother appealed that ruling, and we affirmed in our nonpublished decision filed January 18, 2007, In re J.A., A114066 (J.A. I.).

The lower court held two interim status review hearings, where it granted mother a 30-day trial visit between her children and her and, in the second hearing, extended this trial visit. Mother appealed from those orders, and we affirmed the lower courts ruling in our nonpublished decision filed on May 29, 2007, In re J.A., A115433 ( J.A. II.).

Mother now appeals from the six-month status review order on October 11, 2006. Mother maintains that substantial evidence did not support the lower courts finding that agency provided reasonable services because agency, according to mother, did not conduct a reasonable search to find her a Christian therapist. Additionally, she asserts that the failure to provide her with a Christian therapist violated her First Amendment right to freedom of religion. We reject mothers contentions and affirm the lower courts ruling.

BACKGROUND

The procedure and facts underlying this dependency action have already been set forth in J.A. I. and J.A. II. In J.A. I., we stated in pertinent part: On March 24, 2006, agency filed a petition on behalf of D.A. and J.A., two sons of mother, alleging that the boys came within the provisions of section 300, subdivision (b). At the time of the petition, D.A. was 12 years old and J.A. was six years old. The petition asserted that on March 13, 2006, mother contacted agency to report that she had hit J.A. with a belt when he was biting or attempting to bite his younger, four-year-old half brother, I.O. Mother stated that she hit J.A. with a belt and, when he moved, she inadvertently struck him on the lower right cheek, causing a one inch loop-shaped mark.

The petition further alleged that mother had been active in the Informal Family Maintenance Program (IFMP) since September 2005. Mother had entered this program after she had physically disciplined D.A., who has behavioral and mental health problems. While in the IFMP, mother had agreed not to use physical discipline on her children. However, D.A. told the social worker that his mother had been using a belt or a thin black hose on his brothers and him whenever she became angry. He asserted that she was using the belt or hose about once a week for the past few months. D.A. expressed concern that his mother would seriously hurt him or that she would be arrested.

The detention hearing occurred on March 24, 2006. The court detained the two children.

On May 11, 2006, mother appeared with her attorney for the contested jurisdiction and disposition hearing. The court found the allegations of the petition as amended were true. The court determined there was clear and convincing evidence that the children must be removed from the physical custody of mother as leaving them in mothers home would cause a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the children, and there are no reasonable alternative means to protect the children. Reunification services were granted to mother. The court gave agency discretion to allow frequent unsupervised visits between mother and the children.

Mother appealed this order and we affirmed in J.A. I. Subsequently, as we reported in J.A. II.: Agency prepared an interim review report that the social worker filed on August 2, 2006. The report stated that the social worker had provided mother with an individual counseling referral, but mother had missed two scheduled sessions because of a lack of childcare. Mother was referred to Savitri Hari for counseling.

Mother was given a referral to Dr. Warren Taylor for a psychological evaluation of J.A. Mother refused to take J.A. because she had not liked this doctors evaluation of D.A. She was provided another referral, but mother did not attend the appointment and claimed that the office, which was in Dublin, was too far. Mother was given another referral and she scheduled an appointment in July 2006, but again failed to attend the appointment. Mother finally appeared at an appointment on July 25, 2006, but she refused to sign the consent forms and refused to proceed with the evaluation because she feared that her child would be misdiagnosed by an intern. The only people available who were not interns were Taylor and the provider in Dublin.

On August 9, 2006, mother and the children appeared in court for an interim status review hearing. At the end of the hearing, the court authorized a 30-day trial visit between the children and mother in the mothers home with the condition that mother access the services, the therapeutic services that have been recommended by the agency for [D.A. and J.A.].

Agency filed an interim review report on August 31, 2006. The report stated that Hari informed agency that she had completed three individual counseling sessions with J.A. . . . [Hari] stated that mother, J.A., and D.A. completed three family sessions, and that mother did all of the talking. She reported that mother is in complete denial and is in control of the children. Hari also informed agency that mother had completed only one of her individual counseling sessions. The report indicated that D.A. was to begin therapeutic treatment with Oakland Childrens Services, but mother refused to sign the intake forms.

The lower court conducted the interim status review hearing on September 6, 2006. The court noted that it had come to its attention that mother may be spanking J.A., and the court told her to find a different manner of disciplining him. Mother said she understood and her counsel stated that mother once patted J.A.s bottom after he sprayed his brother with a fire extinguisher. Mother agreed to try alternatives to spanking. The court extended the trial visit between mother and the children until the six-month review date.

Mother appealed from the order dated August 9, 2006, which continued the out-of-home placement and granted a 30-day trial visit between mother and her children, and from the order dated September 6, 2006, which extended the trial visit. We affirmed in J.A. II.
Agency filed a status review report on October 10, 2006. Agency recommended that family reunification services be terminated as to mother, and that she receive family maintenance services. Agency reported that mother was not in compliance with her service objective in showing ability to understand her childrens feelings and give emotional support. Erika Luna from the Davis Street Community Center in San Leandro informed the agencys social worker on October 5, 2006, that mother had contacted the office on September 29, 2006, to request that a Christian therapist be assigned to her. Luna explained that their therapists did not categorize themselves by religion and that their office did not have a Christian therapist. Agencys social worker contacted the agencys mental health provider, ACCESS, on October 6, 2006, and spoke to Helen Zung. The social worker told Zung about mothers request for a Christian therapist; Zung reported that such a therapist was not available.

Agency further reported that mothers individual and family therapeutic services stopped after the initial assessment for reasons ranging from cultural/religious conflicts, therapists questionable qualifications, and therapists failure to return calls. The Agency has provided the mother with therapeutic referrals since September 2005 and the mother has yet to engage in therapeutic services.

With regard to J.A., agency noted that he was in second grade and his behavior fluctuated between that of a model student to doing exactly the opposite of what he had been asked to do. He was receiving therapeutic services through the Fred Finch Youth Centers therapist, Karen Tsugawa. Agency referred J.A. to Oakland Childrens Services for individual counseling, but mother never contacted it to schedule an appointment. Agency also referred him to Dr. Abraham for psychological evaluation. He reported that J.A. had missed several appointments; each time mother had called and provided various reasons as to why the appointments had to be cancelled.

At the six-month status review hearing on October 11, 2006, the juvenile court explained that agency had stressed that mother needed to participate in individual counseling and family therapy. The court noted: [T]his will be very important for the mother having her case dismissed. I know you want the case dismissed, and once I see thatthe children are now at home, and once I see that you all are participating in therapy regularly and that things are going well, then that is a step towards having your case dismissed. So it is important that you do that. The court warned that it did not want mothers desire to have a Christian counselor to be an impediment to her participation in therapy. The court advised mother not to let the therapists religion be an impediment if she thought she could work with the therapist. Mother responded, okay.

At the conclusion of the hearing, the juvenile court found reasonable services had been provided to mother. The courts order continued the minors as dependents, set aside the out of home placement order, and granted family maintenance services to mother.

Mother filed a timely notice of appeal.

DISCUSSION

I. Appealable Order

Mother claims that substantial evidence does not support the juvenile courts finding that reasonable reunification services were provided her because agency failed to provide her with a Christian counselor. Agency responds that mothers challenge to reasonable services is not an appealable order under Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147 (Melinda K.).

In Melinda K., the mother appealed the juvenile courts finding that mother had been provided with reasonable reunification services. The court concluded that this finding was not appealable because the mother had not appealed the order incorporating that finding. (Melinda K., supra, 116 Cal.App.4th at p. 1156.) In reaching this conclusion, the court relied on section 395. Section 395 provides that, A judgment in a proceeding under [s]ection 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment . . . . The court reasoned that, because section 395 authorizes an appeal only from an order after judgment, an appeal may not be taken from a finding when the order itself is not challenged. (Melinda K., supra, at p. 1154.) It explained that section 395 does not create a right to appeal a finding that reasonable reunification services were provided to the parent or legal guardian unless the court takes adverse action based on that finding, because, in the absence of such action, there is no appealable order resulting from that finding. (Melinda K., supra, at p. 1154.)

In this case, mother seeks review of the juvenile courts finding that agency provided reasonable services. As in Melinda K., supra, 116 Cal.App.4th 1147, mother does not challenge the order, which was clearly favorable to her. She raises no argument concerning the order, which set aside the order removing her children, returned the children to her home, and granted her family maintenance services.

Mother contends that she may challenge the finding of reasonable services because, unlike the situation in Melinda K., the court in the present case concluded that her progress with her case plan was only partial. In Melinda K., the mother was in compliance with her case plan. (Melinda K., supra, 116 Cal.App.4th at p. 1156.) She therefore concludes that the order did have an adverse impact on her.

We are unpersuaded by mothers attempt to distinguish this case from Melinda K. Melinda K., supra, 116 Cal.App.4th 1147 does not, as mother argues, stand for the proposition that, whenever a nonappealable finding adversely impacts a party in some way, this fact alone makes it appealable. Rather, the Melinda K. court concluded: We do not believe that section 395 permits a party to appeal a finding in the absence of an adverse order resulting from that finding. (Id. at pp. 1153-1154, italics added.) Thus, the adverse consequence to which this rule refers is an adverse judicial action, and the order in this case clearly benefited mother.

Mother maintains that, even if the order is not appealable, we should exercise our discretion to treat mothers appeal as a petition for a writ of mandate. In Melinda K., supra, 116 Cal.App.4th 1147, the court exercised its discretion to treat the mothers appeal as a petition for writ of mandate on the grounds that she would otherwise have no means to challenge the juvenile courts finding. The court concluded that considering the reasonableness of the services would afford the mother meaningful appellate review of a finding which may ultimately have a significant effect on the dependency proceedings. Moreover, sequential appeals and their accompanying delays will be avoided. (Id. at p. 1157.)

We are somewhat reluctant to exercise our discretion to treat this matter as a writ petition, as we agree with agency that doing so essentially renders the holding of Melinda K. meaningless. Nevertheless, in order to afford mother a meaningful review of the reasonable services finding, and recognizing that the court in later proceedings may rely upon the courts finding that reasonable services were provided during this period, we will address mothers claim on the merits. Therefore, we exercise our discretion to treat this appeal as a petition for writ of mandate. (Melinda K., supra, 116 Cal.App.4th at pp. 1156-1157.)

II. Reasonable Reunification Services

A. Standard of Review

We use the deferential test of substantial evidence to review the juvenile courts finding that reasonable services were provided. In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)

However, substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, [w]hile substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]. [Citation.] The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. (Id. at pp. 1393-1394.)

B. The Reasonableness of the Reunification Services

When providing reasonable reunification services to a parent, the agency or department must make a good faith effort to provide reasonable services responsive to the unique needs of each family. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) [T]he plan must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile courts jurisdictional finding. (Ibid.)  [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 . . . .  (Id. at p. 1011.)

Reunification services need not be perfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The standard is whether the services were reasonable under the circumstances. (In re Julie M. (1999) 69 Cal.App.4th 41, 48.)

In the present case, agency identified that mother and her children needed individual and family counseling. Mother does not dispute that identifying this need was reasonable, but she claims that the agency did not work sufficiently hard to locate a Christian counselor for her. She claims that the services were therefore not individually tailored for her as required under In re Michael G. (1998) 63 Cal.App.4th 700, 714. Mother contends that the agency must make an effort to provide suitable services, even if it is difficult. (See ibid.)

The record is replete with evidence that agency made extensive efforts to provide mother with a therapist. Agency referred mother to the Davis Street Community Center in San Leandro on September 19, 2006, to Counselor Savitri Hari in Oakland on August 28, 2006, to Counselor Nannette Hancock in Oakland on June 26, 2006, to Counselor Stacie Harris-Thomas on May 1, 2006, and to Counselor Alice Washington in Oakland on September 16, 2005. Mother offered many reasons for missing the appointments, including a lack of childcare and a claim that the counselor never returned her calls. Other than attending the initial assessments, mother failed to attend any therapeutic sessions.

Agency also provided mother with referrals for therapy for her children, but mother often objected to the referral or cancelled the appointments. Mother refused to take J.A. to Dr. Taylor, because she did not like his evaluation of D.A. Mother received a referral for J.A. to Dr. Abraham for psychological evaluation. Dr. Abraham stated that J.A. last attended an appointment on October 3, 2006, and he missed several appointments. Each time mother called with various reasons as to why the appointments had to be cancelled. In another instance, mother refused to proceed with another referral for J.A. because the person evaluating her son was an intern. Mother complained about the referral for J.A. to Hari because Hari had responded to J.A.s interest in Indian culture by explaining the various meditative hand poses. Mother asserted this action conflicted with her Christianity. Additionally, mother refused to sign an intake form when taking D.A. for therapeutic treatment with Oakland Childrens Services, which was a prerequisite to receiving therapy.

Agency first learned that mother now was insisting on a Christian therapist on October 5, 2006. The Davis Street Community Center reported to agencys social worker that mother had requested a Christian counselor. Mother never directly communicated this new requirement to the social worker. Given mothers varied and numerous objections to the referrals and her failure to attend her own appointments or to take her children to all of their appointments, the record supports a finding that this new request was nothing more than another tactic by mother to evade therapy and to avoid complying with her services.

Further, mothers argument that agency had an obligation to provide her with a Christian counselor has no merit. Mother cites a variety of statutes ( 205,^[2]300, subd. (b),^[3]300.5^[4]) that consider the religious preference of the parents to support her contention that agency should have considered her new demand for a Christian therapist. These statutes relate to the placement of children in a home and medical treatment and are irrelevant to the adequacy of the services provided to a parent. Other than simply stating that she wants a Christian therapist, mother offers no reason as to why any qualified therapist cannot assist her in understanding the reasons for her children being removed from the home. Agency is only required to provide referrals to therapists that are competent to meet mothers particular emotional and psychological issues that lead to the removal of the children from their home. The record contains no evidence that the childrens removal had any relationship to mothers religious beliefs.

Finally, other than claim that agency did relatively nothing to find her a Christian therapist, mother has provided no evidence that one is available.^[5] The agency learned just six days prior to the hearing that mothers new prerequisite was that the therapist had to identify as being a Christian therapist. The Davis Street Community Center informed the agency that therapists at the center did not categorize themselves by religion. Agency contacted ACCESS and was informed that such a therapist is not available. Although the agency was under no obligation to try to find a Christian therapist, the record establishes that it did make reasonable attempts.

Accordingly, we reject mothers claim that she did not receive reasonable services.

III. First Amendment Rights

Mother claims that agencys failure to provide her with a Christian therapist unconstitutionally infringed upon her First Amendment right to freedom of religion. This argument borders on the frivolous.

The First Amendment bars government from prohibiting the free exercise of religion. (Walker v. Superior Court (1988) 47 Cal.3d 112, 139.) Although the clause absolutely protects religious belief, religiously motivated conduct remains subject to regulation for the protection of society. (Ibid.) To determine whether governmental regulation of religious conduct is violative of the First Amendment, the gravity of the states interest must be balanced against the severity of the religious imposition. (Ibid.) If the regulation is justified in view of the balanced interests at stake, the free exercise clause requires that the policy additionally represent the least restrictive alternative available to adequately advance the state's objectives. (Ibid.)

Providing mother a referral to a therapist who does not identify as a Christian therapist in no way interferes with her First Amendment right to freedom of religion. Mother has not identified how therapy dealing with her parenting skills interferes with any of her religious beliefs or practices or conflicts with any of the tenets and practices of her religion. Mothers argument is entirely without merit.

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] All further unspecified code sections refer to the Welfare and Institutions Code.

^[2] Section 205 reads: All commitments to institutions or for placement in family homes under this chapter shall be, so far as practicable, either to institutions or for placement in family homes of the same religious belief as that of the person so committed or of his parents or to institutions affording opportunity for instruction in such religious belief.

^[3] Section 300, subdivision (b) states in relevant part: Whenever it is alleged that a child comes within the jurisdiction of the court on the basis of the parents or guardians willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parents or guardians medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless necessary to protect the child from suffering serious physical harm or illness. . . .

^[4] Section 300.5 provides: In any case in which a child is alleged to come within the provisions of Section 300 on the basis that he or she is in need of medical care, the court, in making that finding, shall give consideration to any treatment being provided to the child by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner thereof.

^[5] Mother cites to 42 listings in the yellow pages in the phone book under the heading of Clergy and Pastoral Counseling. Not only is this evidence not in the record, but there is no evidence that any of these people would meet with mother or are qualified to handle the services specified in the case plan.