Filed 11/13/18 M.T. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Walter H. Kubelun, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.

Laurie Burns for Petitioner.

No appearance for Respondent.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath D. Shettigar, Deputy County Counsel for Real Party in Interest.

Petitioner M.T. (father) has filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, claiming the juvenile court erred in finding Riverside County Children and Family Services (Department) provided reasonable services. For the reasons set forth below, we deny father’s writ petition.

FACTUAL AND PROCEDURAL HISTORY

On April 4, 2017, the Department filed a petition under Welfare and Institutions Code[1] section 300 for three-year-old twin girls, H.T. and F.T. (the children) because of parents’ substance abuse, and failure to supervise and protect them.[2]

Prior to filing the present action, the Department offered parents services like Safe Care and Differential Response, but parents declined when they found out that the services would take place at their home. They did not want the Department coming to their home. Among other issues, the children were observed to be fighting constantly, had limited speech, and were not receiving any services; they were placed in foster care.

On April 5, 2017, the juvenile court detained the children and ordered twice weekly supervised visitation from their parents.

A medical examination concluded that the children appeared developmentally delayed, but otherwise were “normal.” The Department provided services referrals to parents on April 5, 2017. The father received referrals in both San Bernardino and Riverside.

In May 2017, the Department arranged for parents to receive Parent-Child Interaction Therapy (PCIT) services with their children. The service provider attempted to schedule an appointment with parents.

In June 2017, the Department’s social worker spoke to parents about services and “pointed out several parenting classes and highlighted one that was specifically for parents of children with special needs.” The mother, however, declined the services. Father, upon being asked, stated he had contacted MFI for services for substance abuse and had an appointment for the following week. The social worker attempted to speak to the father again about services. “He became agitated and stated he did not want to argue and terminated the call.” Therefore, the social worker “was unable to inquire about MFI services or his counseling services due to the brief time [the social worker] was on the phone with him.”

On June 16, 2017, father was discharged from counseling services for repeatedly failing to contact the program. In late July, father enrolled in an MFI outpatient program; he stopped attending in August 2017.

On July 24, 2017, the Department held a Child Family Team (CFT) meeting to address and ensure that the children’s developmental needs were being addressed. Parents were contacted and invited to join the meeting. Father confirmed he would attend but neither parent attended the meeting.

Based on the children’s individualized educational plans (IEP), the children were deemed to have an intellectual disability and were eligible to received services through their school district. The children were enrolled in special education and would receive speech therapy. Parents did not attend the IEP meeting. Parents had been informed of both the dates of the testing and date the results would be explained. Parents failed to attend either meeting. Mother complained that the evaluations took too long. In the interim, when the children returned from visitation with parents, they were aggressive with one another, and F.T. would bite herself.

In October 2017, father said that he was ready to begin an inpatient treatment program. He was compliant in the program and the Department arranged for visits to occur at his program. Father was more engaged in the visits than before. He agreed to a visit once a week for two hours so that the children did not miss school.

In January 2018, father filed a progress letter that showed his program completion date as January 29, 2018.

On January 11, 2018, the juvenile court sustained the second amended petition under section 300, subdivision (b)(1). On January 16, the juvenile court removed physical custody from parents and denied reunification services to mother pursuant to section 361.5, subdivision (b)(10), (11), and (13). The juvenile court ordered family reunification services to father. The court set a hearing under section 366.21, subdivisions (e) and (f) as to father on July 16, 2018.

The children were placed with their former foster parents on February 8, 2018. They referred to the foster parents as “mom” and “dad.” The foster parents were granted de facto parent status.

The children were described as “constantly on the go and are very interested in things and like to touch.” The caregivers have to keep a close eye on the girls because they require a high level of supervision. The children received speech therapy services and showed great improvement. They developed normal eating and sleeping patterns, except on the days they visited family. The children had anxiety going to visits. F.T. showed signs of aggression toward H.T. But, overall, in “the past few months it has improved.” They bit each other after visits with mother. Foster care “licensing wants them to have 2 caregivers in the home at all times.”

In the children’s IEP dated March 14, 2018, the children were determined to have a speech or language impairment, but they could follow directions most of the time.

In their June 2018 IEP progress report, the children were described as making progress on their goals. F.T. had made “good gains in her overall communication language skills and understanding of linguistic concepts. H.T. “is a delight to have in speech therapy”; she was “always smiling and giving hugs.”

The children were using their words more often when they were upset. F.T. was more aggressive than H.T. and “often pinches and bites when she is upset. [H.T.] is more of a screamer.” Since starting visits with the maternal grandmother, F.T. was not focusing on tasks and was having tantrums in her classroom. The children also removed their seat belts on the way to school. The caregiver believed that the children were being traumatized by visits with family members.

In June, their caregiver stated that the children had made improvements in their behavior and were able to tell each other when they were mad. They had less tantrums. The caregiver noted that F.T. was more of the aggressor, but she was “no longer hitting and biting but will hit others with her purse.” The children both cried on their drive home after visiting mother, and needed reassurances that they would be returning to the foster home, before they visited with father. The girls “shut down” before visits with the maternal grandmother.

On July 3, 2018, F.T. bit H.T. and was placed in timeout. On the same date, the social worker observed the children both to be free of marks and bruises. The caregiver stated the children were playing together much better without fighting. On July 23, after a visit with mother, the children became aggressive toward each other.

On January 29, 2018, father completed his 90-day residential drug treatment program. He also completed counseling and parenting at the same program.

Father’s case plan included a requirement that he complete counseling, parenting, substance abuse services and testing. The parenting component required father to “learn developmentally appropriate expectations of his children,” including how to “respond to both verbal and nonverbal signals of his children,” to “put the needs of his children ahead of his own,” to “demonstrate he can understand what his children are feeling and why so that he can help them problem solve effectively,” and show that he could set “appropriate boundaries” during visits. Father’s counsel submitted on the case plan as written.

On February 1, 2018, the Department referred father to an aftercare program to assist him with maintaining his sobriety. Father did not enroll in aftercare; father alleged that the aftercare program conflicted with his work schedule. While father agreed to attend NA/AA meetings, he only provided proof of attending a total of seven meetings in the review period. Father stated that he attended daily but forgot to have his card signed. Father also participated in random drug tests except on four occasions. His July 2018 hair follicle test was negative for all substances.

On February 22, 2018, a criminal court issued a permanent, no contact protective custody order on behalf of mother, against father. Father was dismissive about the order and did not appear to take it seriously. Father resided with mother’s relatives and had telephone contact with mother during several monitored visits. Parents claimed that they were in relationships with other individuals. Father reported being compliant with the terms of his probation. His probation, however, was revoked. The court ordered the arrest of father on August 8, 2018.

On more than one occasion, beginning on February 1, 2018, the Department requested that father continue participating in both individual counseling and parenting classes to address outstanding parenting issues. Father reported that “he does not feel he needs to attend an additional parenting class.” In April, father reported that he does not feel that he needed additional therapy services. Father became confrontational when the social worker talked to him about ways to improving his parenting skills.

On May 8, 2018, the social worker advised father to return to therapy, because “it would be beneficial to him and that he can also discuss some parenting practices in those sessions as well.

On June 18, 2018, father stated that he was willing to work on parenting with his therapist. Father’s therapist, however, was unable to contact father. Father failed to respond to message left for him. On July 23, father stated that “he doesn’t need therapy and that he thinks his therapist needs therapy.” Father was terminated from counseling due to his lack of attendance and communication. Father had attended only two sessions.

Father consistently visited with the children, but was inconsistent in his interaction, parenting, and discipline of the children.

With regard to visits, on February 20, 2018, father raised his voice throughout the entire visit, called the children by the wrong names, and made a phone call during the visit to mother in violation of the no contact order. Father appeared very frustrated with the children.

On February 26, 2018, father continued to call the children by the wrong names and was occupied with his cell phone when the children climbed on a bookcase and attempted to pull it down; father barely prevented the bookcase from falling on the children.

On March 19, 2018, father did not use the diapers the caregiver provided him or take the children to the bathroom during the visit. The caregiver had to change the children’ pants because they were soaked with urine.

On March 26, 2018, father video called mother during the visit. He denied calling her even though the children said, “Hi Mommy.”

On April 2, 2018, father raised his voice at the children and was preoccupied on his cell phone. Father failed to redirect the children or employ tools learned in his parenting class.

On May 8, 2018, father made a video call with the maternal grandfather without permission, yelled at H.T. for having a temper tantrum, and was unable to redirect H.T. After the visit, father insisted that sometimes parents need to raise their voices at their children and then blamed the caregivers for the children’s defiant behaviors. The social worker recommended that father bring coloring books, reading books, and other materials to help father engage with the children.

On May 11, May 29, and June 4, 2018, no concerns were reported with father’s visits. On June 11, 2018, father became upset with F.T. and had to be redirected.

On June 18, 2018, father gave the children a “chug of soda” and fed them a large spoonful of peanut butter. He then made a “rude comment” about the social services assistant after the assistant redirected him.

The Department felt that father lacked insight as to adequate parenting because he continued to insist that his parenting choices were appropriate. Although father had made some progress on his case plan, the Department believed that father had not benefited from those services as evidenced by his “inappropriate parent-child interactions in his monitored weekly visits.” The Department recommended that the court terminate father’s services.

Father requested a contested hearing on July 16, 2018. Between hearing dates, the quality of father’s visits improved. He brought healthy snacks, was more open to suggestions regarding parenting practices, and appeared receptive. Father also spoke to the children in a more age-appropriate manner.

On August 21, 2018, the juvenile court found that the Department provided reasonable services designed to aid in overcoming the problems that led to the initial removal. Father received 17 months of services. The court stated that “maybe we should have offered some specialized parenting, but . . . you have to have the basic before you can essentially go to more advanced parenting skills. When he was offered the parenting class by the Department, he refused.” Thereafter the court terminated father’s reunification services and set a section 366.26 hearing.

On August 21, 2018, father filed a notice of intent to file writ petition.

DISCUSSION

A. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S FINDING OF REASONABLE SERVICES

Father contends that the juvenile court’s reasonable services finding is not supported by substantial evidence. For the reasons set forth below, we disagree and deny father’s writ.

B. RELEVANT LAW

As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to “the child and the child’s mother and statutorily presumed father.” (§ 361.5, subd. (a).) A family reunification plan must be designed to eliminate the conditions which led to juvenile court jurisdiction, specifically tailored to fit the unique circumstances of the offending parent and put the family on notice as to what must be accomplished to reunite the family. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

The reasonableness of reunification services is judged according to the circumstances of the particular case and assessed by its two components—content and implementation. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) “[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.” (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) To be reasonable, the services provided need not be perfect. “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 (Misako R.).) The mere fact more services could have been provided does not render the department’s efforts unreasonable. (In re Alvin R. (2003) 108 Cal.App.4th 962, 973.) A parent who consents to the terms of a reunification plan waives any right to complain on appeal about the reasonableness of the plan. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476; In re Cody W. (1994) 31 Cal.App.4th 221, 231.)

“In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all reasonable and legitimate inferences to uphold the judgment. [Citation.] ‘If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings.’ ” (In re Ronell A., supra, 44 Cal.App.4th at pp. 1361-1362.) “In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (Misako R., supra, 2 Cal.App.4th at p. 545.) An appellate review is not a trial de novo, but a review of the record in the light most favorable to the orders of the juvenile court.

“ ‘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 provided difficult.’ ” (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 691.)

Moreover, “[i]n 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.” (Misako R., supra, 2 Cal.App.4th at p. 547.)

C. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING

Father contends that “the Department did not [provide] reasonable services by clear and convincing evidence.” Notwithstanding the settled standard of review on appeal, father argues that, because the Department had the burden to provide reasonable services by clear and convincing evidence, we “should bear in mind the heightened standard of proof required at the trial court level.” The clear and convincing evidence standard is for “the edification and guidance of the juvenile court. It is not a standard for appellate review . . . on appeal from a judgment required to be based upon clear and convincing evidence, ‘the clear and convincing test disappears [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.’ ” (In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1493, quoting In re J.I.(2003) 108 Cal.App.4th 903, 911.)

In this case, the juvenile court’s finding of reasonable services is supported by substantial evidence. Father’s case plan consisted of counseling, parenting and substance abuse services. The Department referred father to these same services on multiple occasions. Father completed a 90-day residential treatment program that included these components on January 29, 2018. The Department also referred father to “Aftercare” drug treatment service on February 1, 2018. Because father struggled with parenting the children, the Department requested that he enroll in additional parenting and counseling services on multiple occasions. Father declined each time and refused the treatment that he needed to parent the children effectively.

Father asserts that the Department “offered no evidence that it offered Father services related to the circumstances of his special needs children and designed to eliminate his alleged lack of parenting abilities towards them.” We disagree.

Prior to the removal of the children, father was offered services like Safe Care and Differential Response, but parents declined the services because they did not want the Department coming to their home. The social worker reported, “[t]he parents were asked if they were willing to do services to address some of the concerns. . . . [The Department] mentioned Safe Care and Differential Response due to the in-home component. At first, the family agreed to participate in services but declined when they found out it would be in home.” Following the removal of the children, on June 1, 2017, parents were offered a parenting class specifically for parents of children with special needs. The social worker noted, “I spoke to [parents] at their home regarding services. I pointed out several parenting classes and highlighted one that was specifically for parents of children with special needs.” Mother declined the offer saying “she had already that class.” It appeared that father also declined the offer because he never attended such a parenting class. Moreover, the Department arranged for PCIT services for parents and the children, but parents were not communicative with the program. The Department made multiple attempts to engage father in both specialized and basic parenting instructional services, but encountered resistance from father.

Moreover, in the writ, father asserts that there is “little to no evidence that Father was included in the girls’ IEP meetings, regional center appointments, or medical appointments, where services and strategies regarding the children’s needs would have been discussed.” Father’s assessment of the record is incorrect.

On July 24, 2017, the Department held a CFT meeting to discuss the children’s developmental needs. Father was invited but he failed to attend. In addition, father was informed of the date of the children’s IEP testing and the date the results would be explained. Father failed to attend either meeting. Therefore, although the Department made efforts to include father in meetings where the children’s needs were discussed, he chose to absent himself from the meetings.

Even though father received services and was offered additional services, he failed to show that he could consistently parent the children through his 17 months of reunification services. Father was resistant to both treatment and helpful suggestions from the social worker. After father completed his 90-day inpatient treatment program, he did not want to participate in any more services, even though the quality of his visitation was poor. Father often raised his voice or yelled at the children out of frustration, and insisted that parents sometimes need to raise their voices at their children. Father consistently failed to put the needs of the children before his own. For example, on more than one occasion, he video called mother during supervised visitations in violation of the no-contact order. Instead of spending the limited time given to him each week to bond with the children, father spent that time with mother on his cell phone during the visits. Father became confrontational when the social worker talked to him about ways to improve his parenting.

Father’s reliance on T.J. v. Superior Court (2018) 21 Cal.App.5th 1229 (T.J.) to support his writ petition is misplaced. In T.J., the appellate court held that, because the mother was “waitlisted for a significant time on critical components of her case plan—individual therapy, in-home counseling, and parenting education—and was provided no assistance with in-home support services, anger management, or housing,” the department failed to provide or offer reasonable services to address mother’s special needs. (Id. at pp. 1232-1233.) Moreover, mother was on target with her visitation and engaging well with the children. Furthermore, the mother was intellectually disabled, but her children were not. (Id. at pp. 1233, 1236.)

The court found that the mother was responsible for “only 10 weeks of a much longer delay” for refusing some services. However, anger management and individual counseling were delayed for nearly nine months. (T.J., supra, 12 Cal.App.5th at pp. 1243-1244.) “By placing her on a six- to 12-month waiting list for individual therapy, and then waiting four more months before making an alternate appropriate referral, the Agency failed to address with timely services the root of the problem.” (Id. at p. 1244.) Moreover, the Agency “sat on its hands” waiting to refer the mother to anger management services. (Id. at p. 1245.) In making its ruling, the court emphasized that the case did not involve allegations that mother suffered from drug dependence, engaged in criminality, was a victim of domestic violence, or abused the children emotionally. (Id. at p. 1250.) “Rather, what we have here is a neglect case involving an intellectually disabled parent with some accompanying mental illness, struggling to raise her children in conditions of abject poverty.” (Ibid.)

The facts in this case are different. Here, the juvenile court found that father had refused services. Father refused services for much longer than 10 weeks—he refused services from April 2017 to October 2017, a six-month period. Moreover, he also refused or resisted services from February 1, 2018, to at least June 18, 2018, a period of over four months. Moreover, in T.J., the mother had a disability. Here, father had no intellectual disability. The children, however, have an intellectual disability based on speech or language impairment, which has improved due to services they received. As noted above, the Department offered father both specialized and general parenting services and attempted to engage him to attend meetings that addressed the children’s developmental needs. Additionally, unlike the mother in T.J., father did engage in criminality, was the perpetrator of domestic violence, repeatedly violated a court’s no-contact order, and had a history of drug dependency. Furthermore, the overall quality and engagement of father’s visits with the children were poor. Therefore, T.J., supra, is not applicable to this case.

Based on the above, we find that substantial evidence supports the juvenile court’s finding that the Department provided reasonable services to father. Father’s “real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered.” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Therefore, father’s writ petition is denied.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.