Filed 9/18/17 L.H. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioners L.H. (Mother) and R.T. (Father), parents of six-year-old C.T. and one-year-old L.T., challenge the Contra Costa County Superior Court’s May 25, 2017 order terminating family reunification services and setting a permanency hearing under Welfare and Institutions Code, section 366.26 (366.26 hearing).[1] They contend there was no clear and convincing evidence that either of them had failed to participate in court-ordered treatment. Father also contends the Contra Costa County Children and Family Services Bureau (Bureau) did not provide reasonable services and that the court erred by reducing his visitation when it terminated reunification services. For the reasons given below, we deny their petitions.

Factual and Procedural Background

On July 6, 2016, the Bureau filed a dependency petition alleging that C.T. and L.T. were at risk of harm due to Mother’s use of methamphetamines and amphetamines that resulted in L.T. testing positive for amphetamines at birth, Father’s serious and chronic substance abuse, and “pervasive domestic violence” between the parents in C.T.’s presence. The juvenile court ordered the minors detained.

According to the Bureau’s July 7, 2016 Detention/Jurisdiction Report, there was no food in the home and Father jerry-rigged wires to get electricity from a neighbor. The minors and their half-sibling[2] were “always hungry.” Father was described as “violent and intimidating.” Due to an injury he sustained during one of his violent incidents, he had been on disability since October 2015. Reportedly, he beat Mother while she was pregnant so severely that she was unable to walk, and also beat C.T., leaving marks and bruises on her.

The maternal grandmother reported ongoing domestic abuse. She relayed instances of Father stomping on Mother, use of methamphetamines by both parents, Father hitting Mother in the face and blackening her eye, Father threatening to kill Mother, and of finding loose bullets in L.T.’s diaper bag.

Mother’s sister told the social worker that Mother did not understand the severity of her situation. On one occasion the sister witnessed Father and Mother engaged in a domestic violence incident during which Mother punched Father in the legs as she lay on the floor and Father “socked” Mother in the face. On another occasion, the sister saw Father “torture” his older son by inappropriately tugging the son’s hair and hands.

Mother reported that she voluntarily attended substance abuse programs in 2006 and 2009. She initially said her last voluntary use of methamphetamine was in 2009 and that her positive drug test at L.T.’s birth in 2016 was likely caused by her drinking what she thought was Kool Aid, but was something else. However, Mother then disclosed that she relapsed and smoked methamphetamine the day before she went to the hospital to deliver L.T.

Mother denied there was any domestic violence in her relationship, but when confronted with a picture of herself with black and blue ears and face, she acknowledged there was both physical and verbal abuse. Mother explained that Father, who had been accusing her of infidelity, broke into the maternal grandmother’s home at which Mother was staying and tried to kick Mother as C.T. yelled, “Go mommy, go.” The next day, at his invitation, Mother went to see Father at his home “to work things out.” When she entered his home, he grabbed her hair, pushed her onto the bed, and took his pants off, saying, “Slut, if you’re going to give it up to everyone th[e]n you’re giving it to me.” He then began to punch her on the sides of her face and her ears until she could not see or hear, and ridiculed her as she tried to get up.[3] Mother reported that she had tried to leave Father in the past but always went back to him.

C.T. reported she was afraid Father would cut off Mother’s head. At the time C.T. was detained, a four to five inch serrated kitchen knife was found on a table outside of the home.

The report set forth the parents’ child welfare history, which consisted of seven allegations of neglect or abuse, three of which were substantiated. Mother had multiple arrests between 2000 and 2011. She had two misdemeanor convictions for carrying a loaded firearm and possession of a controlled substance, and entered into a diversion program for being under the influence of a controlled substance. Father also had multiple arrests between 2000 and 2015 and had entered a diversion program for dissuading a witness or victim. The report recommended the minors be detained and placed out of the home.

On August 4, 2016, the parents pleaded no contest to an amended petition that alleged as to both minors that the parents had serious and chronic substance abuse problems, and additionally alleged as to C.T. that the parents engaged in pervasive domestic violence. At disposition, the juvenile court ordered the minors be placed out of the home, with reunification services to both parents. The court ordered the parents to participate in a domestic violence program, counseling, a parenting education program, and a substance abuse program, and ordered Father not to use physical punishment to discipline his children.

Prior to the six-month review hearing, the Bureau submitted a Status Review Report recommending that reunification services be terminated as to both parents. The report noted significant compliance by both parents but stated that Father’s participation in his 12-step program had been “inconsistent since December 2016.” He did not have a sponsor and was not working the 12-steps under a sponsor’s guidance, did not belong to a supportive Home Group, and was not participating in a recovery-based service. He was unable to articulate any understanding of the recovery principles and tested positive for benzodiazepines and THC once, and for THC three times. Mother had failed to provide verification of her participation in 12-step meetings. She missed multiple drug tests and tested positive twice for methamphetamine.

The parents were participating in domestic violence couple’s counseling. According to the counselor, the parents blamed one another for their conflict and their conversations escalated quickly and they were unable to disengage. The Bureau social worker was concerned about an incident in which Father engaged in “possible emotional manipulation” by telling Mother he was very sad being alone at Christmas and was feeling suicidal, and another incident in which he made an unannounced and unauthorized visit to Mother’s in-patient residence.

During supervised visits, C.T. sometimes asked Mother whether Father still hurt her or whether she still fought with him. Mother told C.T. that Father had never hurt her, and on one occasion, turned to the visitation supervisor and voiced her concern that “someone keeps telling her [daughter] this.” While playing with finger puppets, C.T. had them quickly move from kissing to fighting.

The Bureau concluded the parents had completed a “myriad of services,” yet each remained unable “to internalize the information provided by these services.” “Both parents continue to demonstrate behaviors consistent with a lack of coping skills, under utilization of support systems, and cyclical patterns of conflict. . . . Due to the parents[’] history of extensive participation in services designed to provide psycho-education, insight, coping skills, and behavioral changes, [it] is doubtful that additional services will successfully mitigate these concerns in a significant and timely way should Family Reunification Services be extended, thus delaying the prospect of permanency for these two very young children.”

At a May 5, 2017 hearing, the Bureau social worker testified that both parents were non-compliant with their case plans. Mother had a “string of no-show testing for her alcohol and substance abuse” starting November 23, 2016 and tested positive for methamphetamine on March 17, 2017. There was no verification that she was attending her 12-step meetings after March 20, 2017. Father continued to not take responsibility for his actions. Despite clear evidence to the contrary, he denied his children had ever witnessed physical violence between him and Mother.

Although both parents had been repeatedly counseled to separate from their relationship and focus on their own therapeutic issues, they had failed to do so. The social worker was concerned that Mother would influence Father to use methamphetamines as she had done in the past, and that there would be further violence between them. Despite receiving “a lot of therapy” addressing their mental health and sobriety, neither parent had demonstrated “a significant behavior change in any way that would lead the [B]ureau to assess that a few more months would change that.”

In issuing its ruling, the juvenile court stated the parents were “in denial. [¶] Father has to been to all the classes. I congratulate him on that, but I don’t think he’s internalized the lessons that he can articulate up here in terms of his life and his involvement with his family and his children.” The court found the Bureau had provided reasonable services, noting that it was the parties’ failure to make sufficient progress that prevented them from receiving family therapy, and that the court’s order for four visits per month was adequate.

The juvenile court further found the parents failed to participate regularly in court-ordered treatment and to make substantive progress, and that there was not a substantial probability of returning either child to the parents’ physical custody by August 4 or September 15, 2017. The court ordered a minimum of one-hour visits twice per month for both parents and gave the Bureau discretion to grant additional visits as appropriate. Finally, the court scheduled a 366.26 hearing for September 20, 2017. On May 30 and May 31, 2017, respectively, Father and Mother each filed notices to file a writ petition in the superior court as to both minors.

Discussion

Section 361.5, subdivision (a)(3)(C), allows for the termination of reunification efforts after six months for a child who is younger than three years old or is a member of a sibling group where one member of the group is younger than three years old. Where, as here, the case involves such a child, the juvenile court may schedule a 366.26 hearing at the six-month review hearing if it finds by clear and convincing evidence that a parent did not participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e)(3).) If, however, the court finds a substantial probability the child(ren) may be returned to the parent(s) within six months or if it finds that reasonable reunification services have not been provided, the court is to continue the case to the 12-month permanency hearing. (Ibid.)

We review the juvenile court’s order terminating reunification services or its order finding reasonable services for substantial evidence. (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1028 [reunification services]; In re A.G. (2017) 12 Cal.App.5th 994, 1001 [reasonable services].) Appellate review of a visitation order is pursuant to the deferential “abuse of discretion” standard. (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299.)

1.Progress in Treatment Plan

The parents contend there was no clear and convincing evidence that either of them had failed to participate in court-ordered treatment. We disagree.

a. Father

In arguing that he made substantive progress in his treatment plan, Father points out that he participated regularly in court-ordered services. He disputes he was “in denial” because he considers himself to be a drug addict and acknowledges his anger management problem, including its effect on his children. He argues the court should have therefore “automatically granted him services to the 12-month date without even considering whether [Father] may reunify with the children by then.”

The record does not support Father’s assertions. At the six-month review hearing, Father trivialized the domestic violence issues between him and Mother and testified that he only “somewhat” emotionally abused her. He admitted to only one incident of domestic violence and could not discuss it other than in the most general terms. When asked what occurred, he responded, “I was under a lot of stress, physical pain, financial burdens. And I mean, mostly it was just exposure of emotions.” Moreover, he refused to acknowledge that his issues with Mother had any effect on C.T., stating he had “never really seen” domestic violence affecting C.T. He claimed he could not recall any time in which C.T. witnessed domestic violence, other than overhearing arguments.

Substantial compliance with a case plan is not synonymous with making substantial progress towards reunification. (Fabian L. v. Superior Court, supra, 214 Cal.App.4th at p. 1029.) Simply attending required sessions and visiting the children is not determinative of whether the treatment plan’s objectives have been met. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1142.) Thus, in In re Dustin R., despite the parents’ virtual completion of the reunification plan, their inability to recognize the effect of their past behavior on their children precluded returning them to their parents. (Id. at pp. 1137–1138; In re Mary N.B. (2013) 218 Cal.App.4th 1474 [despite sincere participation in therapy and domestic violence classes, the facilitator and therapist’s doubts regarding his credibility supported court’s detriment finding].) Similarly, here, the fact that Father fulfilled many of the individual elements of treatment plan did not qualify as substantial progress where the reports consistently indicated he had not internalized key principles that would prevent continuing domestic violence. There was substantial evidence to support the juvenile court’s determination that Father had not made substantial progress in meeting his treatment goals.

b. Mother

In her petition, Mother lists some of her accomplishments to support her position that she made substantial progress in meeting her treatment goals. She points out, for example, that she had 11 clean drugs tests, successfully completed an inpatient substance abuse program, and had good, regular visits with her children. Mother, however, fails to address the Bureau’s concern that despite undergoing significant therapy, she failed to take the first necessary step to resolve her domestic violence issue—disengaging from Father. As the Bureau social worker testified, Mother was regularly visiting Father and was committed to carrying on a relationship with him despite having been counseled not to do so. Moreover, Mother habitually minimized or denied the abusive aspects of her relationship with Father, thereby exposing C.T. to violence and endangering both of her children. She also failed to show up for numerous drug tests and had multiple positive drug tests. There is no basis for us to reverse the juvenile court’s decision to terminate services to Mother.

2. Reasonable Services

The adequacy of agency reunification services is judged according to the circumstances of the individual case. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.) The agency must have identified the problems leading to the loss of custody, offered services tailored to remedy those problems, maintained reasonable contact with the parent during the service plan, and made reasonable efforts to assist them where compliance was problematic. (Ibid.) The agency is not required to provide the best possible standards in an ideal world. (Ibid., citing In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Here, Father argues he was not provided reasonable services because his social worker’s most recent contact with his individual therapist was in February 2017 even though the six-month review hearing took place in May 2017. Although the Bureau’s failure to receive more recent updates was not ideal, the social worker testified that she received approximately monthly updates from the parents’ domestic violence counselor. She described the updates as providing “detailed” information about the parents’ attendance, participation, and progress. In light of the fact that the Bureau received regular detailed reports from the domestic violence counselor, and the parents’ lack of progress in domestic violence counseling, we will not upset the juvenile court’s finding that, under the circumstances of this case, the services the Bureau offered were reasonable.[4]

3. Visitation

Father contends the juvenile court erred by reducing his visitation when it terminated reunification services. He relies on In re Hunter S. (2006) 142 Cal.App.4th 1497, 1508, but the case is inapposite. There, the minor refused contact with his mother even after she obtained a visitation order, and the mother was deprived of the opportunity to see her son for over two years. (Id. at p. 1506.) The court held, “[The minor] himself was given virtually complete discretion to veto visitation, and indeed all contact, with his mother, a discretion he exercised without any oversight or direction by the court. This was clearly improper.” (Ibid.)

Here, in contrast, Father was not deprived of visitation with his children, and it was the juvenile court—not the minors—that determined the number and length of visits to which Father was entitled. The record shows that the court initially ordered one-hour, monthly visits between Father. In doing so, the court emphasized it was a minimum requirement that could be adjusted upward based on various factors such as input from minors’ counsel and the minors’ therapist. Thereafter, based on objections from parents’ counsel and input from the Bureau, the court ultimately ordered that visits would occur three times per month, and would be reduced to two monthly visits “so the children aren’t shocked with the change.” The court did not abuse its discretion in issuing this visitation order, which did not improperly cede all authority to the minors or any other non-judicial entity, and allowed Father to have continued contact with his children.

Disposition

For the reasons given above, the petitions for an extraordinary writ are denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

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McGuiness, P.J.

We concur:

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Siggins, J.

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Jenkins, J.