Filed 5/30/18 Michael S. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MICHAEL S.,

Petitioner,

v.

THE SUPERIOR COURT OF STANISLAUS COUNTY,

Respondent;

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Real Party in Interest.

F076950

(Super. Ct. No. 517936)


OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge.
Jennifer O. Trimble, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner Michael S. (father) is the father of Z.S., now three years old, who was declared a dependent of the Stanislaus County Juvenile Court and is the subject of these original proceedings. At the conclusion of a six-month review hearing, the juvenile court ordered the termination of reunification services provided by real party in interest Stanislaus County Community Services Agency (agency). The court also set a hearing pursuant to Welfare and Institutions Code section 366.26 to consider a permanent plan of adoption. Father filed a petition seeking an extraordinary writ to overturn the court’s order. (Cal. Rules of Court, rule 8.452.) He contends substantial evidence does not support the court’s finding that the agency provided reasonable reunification services. He also contends the court erred in suspending his visits. We deny the petition.
PROCEDURAL AND FACTUAL BACKGROUND
On May 16, 2017, then two-year-old Z.S. was removed from the custody of her mother K.W. (mother) by the agency after law enforcement found Z.S. injured in a motel room where she was living with mother and mother’s boyfriend. Z.S. had significant facial bruising on her eyes, cheeks and forehead. Her bottom front teeth were chipped and there were small cuts on the inside of her lower lip and dried blood on her lips and under her nose. She had additional bruising on her right leg and on her back, which was discovered at the hospital. A head scan revealed fluid or blood in her nasal cavity, which was surgically drained. The agency placed her in foster care.
Police officers found heroin and used hypodermic needles in multiple locations in the motel room as well as trash, rotting food and dirty diapers. Mother’s boyfriend admitted he was high on drugs but denied hurting Z.S., blaming mother for her injuries.
Mother told the investigating social worker her boyfriend took Z.S. out the night before to “make money” but she did not know what he intended. When they returned that night, she observed marks on Z.S.’s face but did not think it was significant and her boyfriend said he did not know what happened. In the morning, her boyfriend took Z.S. out again and returned in the afternoon. She noticed the injuries on Z.S.’s face, became scared and left the motel room to get help. She said she was unaware that her boyfriend was using heroin and methamphetamine and did not know there were drugs and paraphernalia in the room. Mother and her boyfriend were arrested.
Mother also stated father had mental health issues and may be using drugs. She had full custody of Z.S. and a restraining order against him for domestic violence. She did not believe Z.S. would be safe in his custody because he had not raised her and did not know how to care for her.
Father confirmed he had not seen Z.S. in a long time as he did not know where she and mother were staying. He admitted current use of marijuana and prior use of methamphetamine and cocaine and disclosed he suffered from depression and posttraumatic stress disorder. He had some criminal history that concerned the agency, including battery, great bodily injury, force with a deadly weapon and false imprisonment.
On May 19, 2017, the juvenile court ordered Z.S. detained and set the matter for jurisdiction and disposition. That same day, a social worker provided the parents referrals for a domestic violence assessment, parenting and individual counseling, information regarding the agency’s substance use disorders assessment walk-in clinic and contact information for the social worker, placement specialist and the Children’s Crisis Center.
Father took advantage of the services offered as well as visitation. However, his initial visit with Z.S. did not go well. She became very distressed and inconsolable when left alone with him. She cried and screamed for most of the visit and refused to go to father or sit and interact with him. She calmed down after mother joined the visit.
In July 2017, the juvenile court exercised its dependency jurisdiction over Z.S. and ordered the parents to participate in reunification services. Father’s services plan required him to participate in individual mental health counseling, complete domestic violence and substance abuse assessments, and submit to random drug testing. It also included a minimum of one weekly visit and granted the social worker the discretion to increase the length, frequency and location. That same month, the agency placed Z.S. with her maternal grandmother where she remained.
In September 2017, the agency filed a petition under section 388, asking the juvenile court to modify father’s reunification services plan by ordering him directly into a domestic violence offender group without an assessment and limiting his visits to one hour a week until Z.S. became more comfortable with him. The agency also asked the court to order psychological and medication evaluations for father because he told the social worker he had untreated depression and was suicidal. He also appeared emotionally unstable and exhibited disorganized thoughts and risky behavior, including possessing an illegal firearm. The court set a hearing on the petition.
Meanwhile, the agency filed a report, withdrawing its request for a psychological evaluation but reiterating its recommendation that father undergo a medication evaluation. The agency also referenced a conversation in which father told the social worker he threatened to burn the mother with a blow torch so the next time “she was out whoring around, she would think of him.” He explained that she liked “Hello Kitty” and he reasoned that if he tattooed “Hello Kitty” on her arm, it would remind her of how much she loves “Hello Kitty.” Father’s threat to burn mother with a blow torch was mentioned in a police report dated July 3, 2017.
In October 2017, the juvenile court granted the agency’s section 388 petition. Two weeks later, on October 28, 2017, father was arrested for possession of a firearm and ammunition and evading a peace officer. On November 9, 2017, father notified the agency he was in jail. He was released on December 1, 2017. On December 27, he told Pamela Werb, the social worker assigned his case, that he had to surrender himself on February 1, 2018, for 108 days but was told he would only have to serve 56 days.
In its report for the six-month review hearing, scheduled for January 2018, the agency recommended the juvenile court terminate reunification services and set a section 366.26 hearing to implement a permanent plan of adoption. Neither parent had complied with their services plan and visitation had not gone well. Mother visited Z.S. regularly but Z.S. was reluctant and cried, sometimes refusing to visit at all. In addition, mother maintained a relationship with her boyfriend and refused to believe he injured Z.S., choosing instead to believe the family dog was responsible. Father visited Z.S. sporadically and their visits were strained.
The parents requested a contested hearing on the agency’s recommendations, which the juvenile court scheduled for January 30, 2018. The court also issued a temporary restraining order and suspended father’s visits after county counsel informed the court that father told the social worker he was daily stalking and videotaping the caregiver’s activities.
On January 30, 2018, county counsel made an offer of proof that, if called, Werb would testify that she was on bereavement leave the last week of November and the week of December 19, 2017, but that she attempted to contact father at his last known phone number both months without success. She did not, however, document her attempts to call him. Mother made an offer of proof that she was a victim of father’s domestic violence and was afraid of him, which impeded her ability to engage in services. She realized she needed counseling and did not want to lose custody of Z.S. Father made an offer of proof that he was in custody from October 28 to December 1, 2017, and completed his parenting class, parenting groups and a substance abuse assessment. He also visited Z.S. on January 4, 2018, and the visit went well. Counsel accepted the offers of proof.
Father’s attorney argued the agency failed to provide him reasonable reunification services in November and December 2017 because the social worker did not contact him to review his case plan or assist him in resuming services. County counsel pointed to the social worker’s offer of proof that she attempted to contact him during those months and argued the services were available to him had he chosen to participate in them.
The juvenile court found the parents made minimal progress and it would be detrimental to return Z.S. to their custody. The court also found the agency provided them reasonable reunification services, noting father had not rebutted the social worker’s offer of proof that she attempted to contact him. The court also considered the fact that father had not participated in his services overall. The court found father made minimal progress and the mother virtually no progress and there was not a substantial probability Z.S. would be returned to their custody if services were continued. The court terminated reunification services and set the section 366.26 hearing for May 31, 2018. Father’s attorney did not ask for resumption of visitation.
DISCUSSION
Reunification Services Finding
Whenever the juvenile court removes a child from parental custody, it is required to order reunification services for the parents, barring exceptional circumstances not present here. (§ 361.5, subds. (a) & (b).) Reunification services must be reasonable; that is, they must be designed to eliminate the conditions that necessitated the juvenile court’s intervention. (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) They must also be specific and internally consistent, with the overall goal of resumption of a family relationship. The agency must make reasonable efforts to provide suitable services. (In re Luke L. (1996) 44 Cal.App.4th 670, 678.)
“The adequacy of the reunification plan and of the department’s efforts to provide suitable services is judged according to the circumstances of the particular case. [Citations.] … ‘[T]he record should show that the supervising agency identified the 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 .…’ ” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.)
In determining whether reasonable services were provided, the juvenile court considers not only the appropriateness of services offered, but also the extent to which the department facilitated utilization of the services and the extent to which the parent availed himself or herself of the services provided. As a practical matter, one could always argue that the department could have done more or provided better services but that is not the standard. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The standard is whether the services provided were reasonable under the circumstances. (Ibid.)
When the juvenile court terminates reunification services and the parent raises a sufficiency of the evidence claim, the question for this court is not whether the evidence supports an alternative finding or order but whether substantial evidence supports the findings and orders made. In this case, the juvenile court found father was provided reasonable services. We have no difficulty in concluding that finding is supported by substantial evidence.
The agency offered father reunification services, specifically selected to address his unique needs, namely, substance abuse and mental health treatment, domestic violence counseling and parenting instruction. The record makes clear that father knew how to access services because he completed parenting instruction and substance abuse and mental health assessments and attended several domestic violence counseling sessions. Further, according to the agency’s six-month review of services report, Werb met with father in August 2017, attempted to contact him on October 20 and 30, 2017, and sent him a letter with a copy of his case plan.
Father argues the agency’s efforts to maintain contact with him were not reasonable because, despite Werb’s offer of proof, she knew he was incarcerated in November and December 2017 yet made no effort to contact him in jail, opting instead to use another number. Even if father is correct on this point, he fails to show how Werb’s lack of contact for two months rendered the agency’s efforts to assist him unreasonable given the totality of the services it provided to him and his lack of participation, despite knowing what was required of him and how to access services.
Temporary Suspension of Visitation
Visitation is an essential component of a reunification plan. However, visitation may only be as frequent as is consistent with the child’s well-being and may not in any case jeopardize the child’s safety. (§ 362.1, subd. (a)(1).) The juvenile court must focus on the best interests of the child, including the possibility of the adverse psychological consequences from an unwanted visit between a parent and child. (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)
As a general rule, the juvenile court is accorded broad discretion with regard to visitation matters. On appeal, absent a showing of a clear abuse of discretion, the reviewing court will not interfere with the exercise of that discretion. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) An abuse of discretion means the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Father contends the juvenile court’s order suspending visitation was error because there was no evidence that he posed a danger to Z.S.’s emotional or physical safety. We disagree. Father possessed a gun and had a history of violence, which was well documented and which he admitted. He also had untreated mental health problems and appeared to be emotionally unstable at times and disorganized in his thinking. The fact that he was stalking and videotaping Z.S.’s caregiver indicates he was preparing to act, which because Z.S. was in the caregiver’s custody, placed her at risk of emotional or physical harm.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.