Opinion
A161964
05-27-2021
C.B., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD-030571-01)
C.B. (Father) petitions under rule 8.452 of the California Rules of Court to vacate the juvenile court's orders terminating his reunification services and setting a hearing under section 366.26 of the Welfare and Institutions Code to select a permanent plan for his daughter, minor A.B. Father contends the court erred in finding the Alameda County Social Services Agency (Agency) provided him reasonable reunification services. He also argues he was denied due process when the court combined the contested 12- and 18-month review hearings, because such a procedure eliminated the Agency's burden to prove it provided reasonable services (1) in separate hearings for each review phase, and (2) under the heightened clear and convincing evidence standard applicable to a 12-month hearing. We deny Father's petition on the merits, as well as his request to stay the section 366.26 hearing set for June 7, 2021.
All further rule references are to the California Rules of Court. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
The petition in this case was filed on January 2, 2019. A.B., three years old at the time, was living with J.G. (Mother) who suffered from mental problems and was unable to care for her. Mother was physically and verbally abusive toward A.B., who would respond by walking back and forth and banging her head against the wall. A.B. was detained and placed with P.G. (caregiver) and her partner, where she was reportedly thriving throughout these proceedings.
Father's whereabouts were unknown at the time of the detention. Little was known about him, other than that he resided in Florida, had been incarcerated, and, according to Mother had been physically and verbally abusive to her in the past. The Agency located Father in August 2019, and after he was elevated to presumed father status, services were ordered for him with the aim of reunifying him with A.B.
According to Father's case plan, these services were to focus on substance use, anger management, domestic violence, mental health, and parenting education as it relates to A.B.'s specific mental health needs, and were to be delivered in Florida by a service provider in that state. Father was given visitation rights with A.B. while she was in the custody of the caregivers, which he exercised primarily by telephone and Zoom visits.
This is Father's second appeal in these proceedings. In the first appeal, we affirmed an order denying Father's section 388 petition seeking custody of A.B. in Florida while services were being provided. (Alameda County Social Services Agency v. C.B. (Dec. 17, 2020, A159641) [non pub. opn.] (C.B.).) Beyond the brief and general sketch of the case background set forth here at the outset, we take judicial notice of, and we incorporate by reference the facts and procedural history recited in, our opinion in C.B., supra, A159641. For more detailed context, we will assume the reader's familiarity with that opinion.
A. The Contested Hearings
The court conducted the contested "12- and 18-month" hearings on August 6, September 23, and October 22 in 2020, as well as January 12 and 13, and February 1, 2, and 4 in 2021. The court admitted into evidence the Agency's reports dated January 28, 2020, August 6, 2020, September 18, 2020, and January 4, 2021. Among other witnesses, Dr. Shaw and social workers Sarah Flashman and Erin Youngblood-Smith testified at the hearings.
We granted Father's first motion to augment the record to include the transcripts of the hearings on September 18, 2020; October 22, 2020; and February 1 and 2, 2021.
Father's original case plan was developed in October 2020 and filed with the court on November 15, 2019. His case plan was updated on August 6, 2020. That case plan was filed under seal in this Court. The Agency's August 6, 2020 report, which has not been filed under seal, appears to provide a description of all material aspects of Father's case plan as of that date, without revealing confidential details.
1. Dr. Shaw
Dr. Shaw was the clinical program director of a recovery center in Orlando, Florida. The State of Florida court system used the services of the recovery center for assisting parents who have had their children removed from them. The recovery center "handle[s] all things like reunification, foster care, substance abuse, and anything to do with parenting and the children." Dr. Shaw was involved in behavioral health treatment, which covers mental health and substance abuse.
Dr. Shaw first met Father on December 18, 2019, after the Agency referred him for an assessment in mental health, substance abuse, and ability to parent a child. Dr. Shaw testified he called social worker Sarah Flashman in early January 2020 and several times afterward to figure out how to proceed with Father's services. Eventually, Dr. Shaw was able to speak with Flashman in early March 2020.
Dr. Shaw testified he learned through the Agency that Father had a history of domestic violence and was previously incarcerated. The Agency also told Dr. Shaw that Father was "seeking to reunite with his daughter," who lived with a caregiver in California. The social worker explained that the "court is not going to release the child to him unless he completed the domestic violence [program] in relationship to reunification, substance abuse education [program], and anger management and mental health [programs] in relation to him as a parent."
Dr. Shaw testified the Agency did not provide him with Father's case plan; the first time he learned Father had a case plan was "[j]ust maybe three weeks ago," after speaking to a new social worker. However, Dr. Shaw testified that, based on his conversations with Flashman, he understood he was supposed to work with Father on substance abuse, anger management, and his depression and anxiety as they relate to parenting, with the goal of reunifying him with his daughter in California.
Dr. Shaw testified he evaluated Father in December 2019. As part of the evaluation, Dr. Shaw reviewed Father's criminal history, living situation, mental health, and psychiatric condition, among other things. Dr. Shaw also performed a drug test on Father, who tested negative for marijuana. After Dr. Shaw completed this evaluation, he formed a diagnosis for Father, followed by a clinical study and development of a treatment plan. Dr. Shaw testified that based on Father's stress and anxiety levels, which seemed to stem from his prior incarceration, it was "in the best interest of the child" for Father to undergo anger management and education on how his stress, anxiety, and anger affect parenting. The goal was to create insight for Father "into what it takes to parent a young child that is four year[s] old" and ensure "that he is ready . . . for the reunification." Dr. Shaw did not perform additional drug tests since Father had a marijuana card as of March 2020.
In December 2019, Dr. Shaw began working with Father to address issues related to anger management. Dr. Shaw did not begin treating Father for substance abuse, domestic violence, and mental health until March 2020. He was waiting to follow up with Flashman and obtain her approval of the treatment plan before moving forward. He also was unsure how to proceed since he had no court order.
The treatment program was scheduled for six months and consisted of one 45- to 60-minute therapy session per week. In each session, Dr. Shaw worked on issues related to substance abuse, mental health, including depression and anger, domestic violence, and anger management all together. Dr. Shaw addressed each of those issues as it relates to parenting a child. Father began telehealth sessions in March 2020; up until then, he would come into the recovery center.
Dr. Shaw testified that Father attended every session and "was very compliant and very punctual." He sent the Agency a progress report in approximately February 2020. Dr. Shaw continued treating Father after he completed the six-month program.
Dr. Shaw was later informed by the Agency of incidents in which Father exhibited "aggressive threatening behavior" toward the caregiver and social workers. Dr. Shaw was "pretty shocked" and concerned about these incidents, since he had not witnessed similar behavior while treating Father.
Dr. Shaw then conducted approximately three therapy sessions with Father addressing these incidents. Father explained to him that "[social worker Flashman] is a trigger" because he believed A.B. would not return to his care even if he completed the program with Dr. Shaw. Dr. Shaw differentiated between anger and frustration and concluded that Father's aggressive behavior "wasn't a question of anger but more frustration." He explained frustration is a result of a trigger or "target" and likened it to a phobia. Nonetheless, Dr. Shaw explained to Father "it doesn't matter what the trigger [is]" and he was still responsible for his behavior. Dr. Shaw and Father went over four different anger management techniques on how to deal with triggers and anxiety.
Dr. Shaw testified that he expected Father to have shown more progress in managing his anxiety by November 2020 after working with Father on de-escalation techniques for several months already. Dr. Shaw, however, did not find it was "necessarily true" that Father's pattern of aggressive behavior toward A.B.'s service providers demonstrated an inability to provide safe and healthy parenting. He explained, "The way I respond to my daughter, even if I'm angry, is totally different than how I would respond to my boss if I'm angry. There are separate dyads and they are clinically proven with empirical facts."
With regard to Father's use of marijuana, Dr. Shaw explained that based on his expertise in substance abuse, he "didn't have any concern about [Father] and substance use." After assessing Father, Dr. Shaw diagnosed his marijuana use as mild. During therapy, he observed Father's physiognomy and tested his orientation and determined "it was always wide range and appropriate and consistent with his moves." However, Dr. Shaw testified that after the pandemic hit, he no longer had in-person meetings with Father. Dr. Shaw also explained that during telehealth sessions, he would not necessarily be able to see or evaluate Father's physical condition or mental clarity.
Dr. Shaw testified that his treatment also included educating Father on the development progression of a child similar to A.B.'s age of five or six years old. Specifically, Dr. Shaw taught Father how to access services in the community and make referrals to family services agencies if his child were to have any deficits.
Lastly, Dr. Shaw testified that inconsistencies in the frequency, severity, and duration of contact between Father and A.B. "can definitely affect" their emotional relationship. Father explained to Dr. Shaw that once he obtained a job in June 2020, he called A.B. less, and after a confrontational incident in January 2020 with Flashman, and another such incident in February 2020 with the caregiver's partner, "the whole visitation process went down."
According to a 12- and 18-month status review report by the Agency on August 6, 2020, the Agency reported that on January 28, 2020, social worker Sarah Flashman met with Father at the court hearing. Father was upset that the Agency did not recommend return of A.B. to him immediately. In the courthouse hallway, Father was heard "raising his voice saying that he was going to stay in California until he got his daughter back." He then told the social worker "he was very frustrated and overwhelmed" and "that he was 'not playin with the state of California anymore.' " Father expressed "this was going to 'make him do something' " but did not specify what he would do. He also said he was angry with Mother and that "he might go find her." Father further stated that his other children have been wanting to kill Mother and "he might let them do it."
A few weeks later, in February 2020, the Agency met with the caregiver, who reported Father had called her and " ' gone ballistic' on her." Before hanging up, he repeated he did not want the caregiver's partner taking A.B. to the bathroom. When the Agency contacted Father about this incident, he stated the caregiver "had cursed him out" but did not specify what she said when asked by the Agency. Father then disclosed that when he was a child, his mother had a boyfriend who forced his sister to kiss him. He recalled his mother "held a 'gun to my head' and chose the boyfriend over me." Father explained these memories caused him "to be triggered by the current situation" regarding [the caregiver's partner].
2. Social Worker Sarah Flashman
Sarah Flashman testified she was assigned as the social worker in this case from May 2019 to May 2020. Flashman made a search request for Father's whereabouts in approximately August 2019. She believes that Father was able to get in touch with the Agency in late August 2019, as a result of a letter sent out by the Agency. Flashman spoke with Father for the first time in September 2019, with the purpose of engaging him in the case and inviting him to appear at the upcoming hearing in October. She also testified that "at the beginning of the case," she explained to Father A.B.'s mental health needs and how A.B. came into the dependency system.
Flashman testified the Agency requested and received Father's records of his criminal history from the state of Florida. The records revealed Father had ten or more arrests related to domestic violence; she did not recall whether Father had convictions for domestic violence. Flashman also testified none of the arrests listed had involved Mother. She did not know whether the arrests were based on incidents during which A.B. was present.
The Agency also conducted investigations with Child Protective Services in Florida into any domestic violence incidents related to Father's other children. Flashman discovered Child Protective Services had become involved in a case involving Father's son, after the son's mother was arrested. Flashman was not asked, and thus did not testify, about this matter, however.
Flashman testified she first communicated with the recovery center's intake coordinator in October 2019. She submitted a referral for Father to complete domestic violence classes, a substance abuse assessment, and parenting education. Flashman also invited staff from the recovery center to attend Father's Child and Family Team (CFT) meeting. Based on her conversations with the intake coordinator, Flashman understood the intake coordinator had been "clear" about the nature of her referral for Father. The intake coordinator did not indicate to Flashman that she needed to speak with Dr. Shaw directly in order for the recovery center to begin treating Father.
Flashman testified she spoke with Dr. Shaw on March 18, 2020, to obtain an update on Father's progress in therapy. She recalled learning that Father was doing well and participating in individual therapy.
Flashman clarified that A.B.'s therapist, not Dr. Shaw, was responsible for supporting and consulting with Father on A.B.'s mental health needs, which was a component of his case plan. She also testified her "primary focus was to connect him with the individual therapist for [A.B.] so that she can provide some more support around the mental health needs." During her time working on the case, Father did not appear to appreciate A.B.'s mental health needs after she had explained them to him. For example, A.B.'s first therapist reported that before hanging up on her during a call, Father "was very angry with the Agency and . . . didn't think that [A.B.] needed anything; she just needed to be with him."
Next, Flashman testified about visitation between Father and A.B. during her assignment in the case. She recalled that the caregiver and Father "stopped getting along following the January 28 hearing in 2020." The caregiver told Flashman that Father thought it was inappropriate for the caregiver's partner to take A.B. to the bathroom. Father was angry at the caregiver and began cursing and yelling. Likewise, Father told Flashman he had concerns about the caregiver taking A.B. to the bathroom.
Flashman testified she attempted to repair Father's and the caregiver's relationship by "listen[ing] to both of them individually and really focus[ing] on making sure that it didn't get in the way of [A.B.'s] relationship with [Father]." In order to accomplish that, Flashman tried to set up regular visits for Father. She also attempted to minimize the amount of contact between Father and the caregiver. Flashman offered Father visitations that would eliminate his need to interact with the caregiver. She also recommended to the caregiver that she put the phone on speaker whenever Father called, and then hand it to A.B., so that the caregiver did not have to speak to Father.
After these incidents, Father declined some of the Agency's offers to help him make travel arrangements to visit A.B. in California. Father stated "he was scared of coming to California because he felt intimidated by the caregiver." When Flashman asked him what made him feel scared, he did not provide a response; instead, he simply asked if he could speak to her supervisor.
Around the time she left the case in May 2020, Flashman had begun to assess whether reunification would be viable. Her initial assessment was that it would have been "extremely difficult . . . if not impossible for [A.B.] to return to her father safely." She reached this conclusion primarily because of Father's aggressive behavior, which involved threatening to either commit physical violence toward her or the caregiver or take A.B. in a way that would not be legal. Flashman also factored into her assessment A.B.'s "significant mental health struggles" and her need for a calm environment to flourish.
3. Social Worker Erin Youngblood-Smith
Erin Youngblood-Smith was assigned to the case in May 2020 and then again in August 2020. She went on leave from September 14 to November 13, 2020.
Youngblood-Smith testified about Father's difficulty getting ahold of A.B.'s second therapist. The therapist reported she and Father "were playing some phone tag." Youngblood-Smith offered to help Father get in contact with the therapist if he still had trouble reaching her. Youngblood-Smith also testified that Father yelled at the therapist during phone calls. The therapist found Father's behavior "unsettling." Shortly after her interactions with Father, the therapist stopped working on the case.
Youngblood-Smith also testified that Father had trouble with video visits while she was assigned to the case because his phone did not support Zoom. She asked Father if there were any platforms on his phone he felt comfortable using and offered to assist him in setting up and practicing using those platforms with him. He responded that his phone did not support video visits.
During her assignment to the case, Youngblood-Smith was concerned about Father's inability to demonstrate the tools that he had learned from Dr. Shaw. In conversations she has had with him, Father would begin to yell, curse, and make threats toward her, the Agency, and toward the caregiver. Youngblood-Smith then attempted to explain to Father that it is concerning "that he cannot even complete a conversation with me about what we need to be working on together because, if he can't talk to me, and he can't talk to the therapist, and he can't talk to the caregiver, then how will he be able to manage [A.B.'s] care . . . [.] [I]f he did have her . . . he . . . seems to have an inability to communicate effectively." In response, Father often spoke over her and did not show he was "hearing what [Youngblood-Smith] [was] saying." He would state "that he knows what he's doing, and he has kids, and basically, he doesn't need to listen to what I'm saying." Youngblood-Smith explained that these sorts of reactions often arose when she was trying to brainstorm with Father on ways he can maximize his visitation with A.B.
According to a January 4, 2021 addendum report by the Agency, during a phone call with the Agency, Father began raising his voice and accusing the caregiver and Mother with "working together" against him. When the Agency attempted to redirect the conversation, he began yelling "that if he comes to California he doesn't know what he will do and that he is not afraid to go back to jail and that he will go back to jail 'behind' his daughter." Father said "that the caregiver better have 24/7 security if he doesn't get his daughter back and that [the social worker] better call the FBI to ask about him." Father later again called the Agency, saying that it "is playing games with the phone and he is probably being recorded." He then said that "he better get his daughter back and that nobody is going to take his daughter." The Agency asked him to stop yelling and making threats, but Father continued yelling.
When asked what she was "specifically concerned about in terms of that impact on [A.B.]," Youngblood-Smith testified that based on Father's behavior, "I don't know if he understands what her needs are." She further testified about whether it would be appropriate to reunify Father and A.B. at this time. She stated she has engaged with A.B. and has observed the level of her need. She also has communicated frequently with Father. Based on her interactions with him, Youngblood-Smith testified Father is incapable of controlling his anger and often has made threats of violence. This concerned Youngblood-Smith because A.B. needed a parent who can communicate with her providers "no matter who they might be or what information they might be giving to [Father]. It's really important that he's able to communicate effectively and hear what those providers might have to say so that he can support [A.B.]" According to Youngblood-Smith, Father has not demonstrated an ability to do this. Consequently, Youngblood-Smith testified that reunification would pose a substantial risk of harm to A.B.'s well-being.
The court asked Youngblood-Smith to consider whether the source of Father's frustration was the Agency, the court process, or the child welfare system. The court further asked Youngblood-Smith if she would still have the same concerns about Father's inability to control his anger if "you . . . take away the stressor of being in a child welfare system." Youngblood-Smith responded that she had "thought about that." She continued, "I think it would be one thing if I was the only one that he had these types of encounters with, but he has also had this encounter with [A.B.'s] therapist," as well as her caregiver, with whom Father had been on good terms.
B. The Court Terminates Reunification Services and Sets a Hearing Under Section 366 .26
On February 4, 2021, after hearing testimony and arguments from the parties, the court adopted the Agency's recommendations. It found reasonable services have been offered or provided. The court explained that it did not "think there was anything to alarm the Agency over the year to 16 or 18 months that . . . these services provided by Dr. Shaw weren't reasonable." It also did not find any evidence that Father was unable to travel to visit A.B. because of the pandemic; instead, "[h]e was welcome" to travel and the Agency provided him with travel arrangements. In addition, the court commented that its decision to adopt the Agency's recommendations "are down to one person and one person alone, and that's [Father]." The court explained that Father's "threats of violence . . . are [the] constellation in the star of this case . . . [.] [I]t's alarming, and it's worrisome. . . . And the idea that [A.B.] might be returned to somebody who has demonstrated through the record this constellation of volatile, rageful exchanges, that's not frustration; that is a deep-rooted problem." The court further observed that "Father had a problem with [the caregiver] and just about anyone else who gets in his way or doesn't do what he wants. And I would be very worried about how this child might continue to heal, might continue to grow, might continue to recover from her early traumas . . . ."
In addition, the court found, by a preponderance of the evidence, return of A.B. to Father would create a substantial risk of detriment to A.B.'s safety, protection, or physical or emotional well-being. It determined Father had made partial progress in complying with his case plan and alleviating or mitigating the causes necessitating placement. The court terminated reunification services to Father, ordered the continuation of A.B.'s out-of-home placement, and set a hearing under section 366.26 for June 7, 2021.
II. DISCUSSION
Father contends there is insufficient evidence to support the juvenile court's finding that he was provided reasonable services. He also argues that the court's procedure of combining the 12- and 18-month review hearings deprived him of due process because it eliminated the Agency's burden of proving it provided reasonable services separately for each review phase. In a related argument, Father asserts that even if the hearings were combined, the Agency was required to prove the provision of reasonable services by clear and convincing evidence, the standard of proof applicable at a 12-month hearing. (§ 366.21, subd. (g)(1)(C)(ii).) We first address Father's challenges to the court's procedures.
A. Due Process Challenges
1. Combining the Review Hearings
"Ordinarily reunification services are available to parents for a maximum of 18 months from the physical removal of the children from their home." (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1251 (T.J.); § 361.5, subd. (a)(3)(A).) Here, A.B. was removed from Mother's custody on December 28, 2018. Due largely to the shelter-in-place order and court closures related to the pandemic, the 12-month review hearing was repeatedly continued. As a result, it concluded approximately 25 months after A.B. was removed. This is seven months beyond the 18-month limitation. (§ 361.5, subd. (a)(3)(A).)
Because the continuances allowed significant time to pass, the court agreed with the Agency that the 12-month hearing had "bled into" the 18-month hearing and thus combined the two hearings into one. Father suggests that the 18-month hearing could only take place after a 12-month hearing has occurred. He thus argues that the court's procedure denied him of due process. We disagree.
The parties' briefs refer to the hearings as the combined "12-, 18-, and 24-month" review hearings. (Italics added.) However, the court and the Agency's review reports refer to the hearings as either the 12-month or combined 12- and 18-month hearing. Also, a "24-month" hearing technically occurs when a case is continued at the 18-month permanency review hearing under section 366.22, subdivision (b) in limited circumstances and for certain parents in court-ordered residential substance abuse programs or recently discharged from incarceration or institutionalization. (See Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1504 (Earl L.); see also § 366.25, subd. (a).) Because section 366.22, subdivision (b) is inapplicable here, it is inapt to label the hearings as a 24-month hearing, even if they concluded more than 24 months after removal.
In some cases, such as here, continuances and delays will cause the 12-month hearing under section 366.21, subdivision (f) to be completed 18 months or more from the date the child was removed from parental custody. In these circumstances, courts have held that the passage of time will cause the two hearings to merge, resulting in the 12-month permanency hearing becoming the 18-month permanency hearing without the necessity for a second or separate hearing. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1508-1509 (Denny H.), superseded by statute on other grounds as stated in Earl L., supra, 199 Cal.App.4th at p. 1504 ["By dint of six continuances allowing significant time to pass, the 12-month hearing became the 18-month permanency review hearing"], citing In re Brian R. (1991) 2 Cal.App.4th 904, 918 [same]; In re Albert B. (1989) 215 Cal.App.3d 361, 374, fn. 2 [with number of continuances, time for reunification services ran out; what started as six-month review was treated as permanency planning hearing]; see Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2021) § 2.153[1] (Seiser).)
The rationale behind allowing the 12- and 18-month hearings to merge is that "the dependency law does not establish a minimum period of reunification. Rather, emphasis is on 'setting outside limits to the length of time a child may be kept in foster care before a permanent plan is established.' " (Denny H., supra, 131 Cal.App.4th at p. 1510, citing In re David H. (1995) 33 Cal.App.4th 368, 388 (David H.).) While "the dependency scheme generally requires that parents be offered reunification services . . . the Legislature has also recognized that children must not spend their lives in the limbo of foster care . . . ." (David H., supra, 33 Cal.App.4th at pp. 387-388.) "Summing up this view, Seiser states: '[T]he statutory mandate for limiting reunification services to a maximum of 18 months from the date of the original removal will control over any conflict in the statutes.' [Citation.] This is because at the 18-month benchmark, the focus of a dependency proceeding shifts to the child's needs for permanency and stability. [Citation.]" (Denny H., at p. 1510.)
David H. is instructive. There, the minor was taken into protective custody because there was a substantial risk he would be abused or neglected by his parents and he had spent nearly two and a half years in out-of-home custody. (David H., supra, 33 Cal.App.4th at pp. 373-374, 389.) The jurisdictional hearing was held more than 19 months after the detention hearing. (Id. at pp. 374, 386-387.) The dispositional hearing was conducted nearly two years after the detention hearing—and reunification services were ordered. (Ibid.) Nearly six months later, the matter was set for a hearing under section 366.26 and reunification services were terminated. (David H., at pp. 373, 376.) At the section 366.26 hearing, parental rights were terminated and the minor was freed for adoption. (David H., at pp. 373, 376.)
The father correctly argued on appeal that the juvenile court failed to comply with the requirement of section 366.21, subdivision (e) that reunification services be continued if the child is removed from parental custody and not returned after the six-month review hearing. (David H., supra, 33 Cal.App.4th at pp. 385-386.) The juvenile court had terminated reunification services and set the matter for a hearing under section 366.26 to comply with section 366.21, subdivision (g)(1), which provides that a hearing to determine whether the child should be referred for adoption must be held within 18 months of the date the child was originally taken from the physical custody of the parents. (David H., at p. 386.) As the appellate court noted, "Section 366.21, subdivisions (e) and (g)(1) seem to impose conflicting requirements in this case." (Ibid.) After construing the two conflicting sections "with reference to [the] whole system of dependency law, so that all parts may be harmonized" (id. at p. 387), and "so as to effect the apparent legislative intent and avoid absurd results" (ibid.), the appellate court determined "the conflict between section 366.2[1], subdivisions (e) and (g)(1) plainly must be resolved in favor of subdivision (g)(1) and the policies which it serves" (ibid.).
The David H. court further found that such a conclusion did not deny the parents due process. (David H., supra, 33 Cal.App.4th at p. 388.) It explained that, while reunification services have been characterized "as one of several 'significant safeguards,' which are built into the dependency scheme to assure that due process is afforded to parents," such "characterization does not imply that a minimum of 12 months of reunification services is an indispensable requirement of due process." (Id. at pp. 388-389, citing In re Marilyn H. (1993) 5 Cal.4th 295, 307-308.) "To the contrary, the Supreme Court has held that, when a child has been in foster care because of parental neglect or incapacity for an extended period of time, it is within the court's discretion to decide that the child's interest in stability has come to outweigh the natural parent's interest in care, custody and companionship of the child. [Citation.]" (David H., at p. 389, citing In re Jasmon O. (1994) 8 Cal.4th 398, 421.)
We adopt the reasoning of the authorities above and conclude due process did not prevent the juvenile court from combining the 12- and 18-month hearings. It was not required, as Father contends, to hold the 12-month hearing before and separately from the 18-month hearing. We thus see no error in the court making its reasonable services finding for the first time at the contested, combined hearings. (Cf. Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 675 [appellate court could review whether trial court provided mother with reasonable visitation during entire reunification period, where the trial court combined 12- and 18-month review hearings and made reasonable services finding for the first time at 18-month review hearing, rather than in separate review hearings at six-month intervals].)
2. Burden of Proof
We turn now to Father's related argument concerning the applicable burden of proof to the finding of reasonable services in the juvenile court. We first note that the juvenile court did not specify the standard of proof it applied to its finding. Nor did the Agency, with respect to its recommendations. According to Father, he was unable "to test the Agency's burden at the 12-month mark which would have required a finding of reasonable services by clear and convincing evidence." Because he "failed to receive the benefit" of testing the Agency under the heightened standard, he asserts he was denied due process.
As we concluded above, the contested hearings must be deemed an 18-month hearing governed by section 366.22, not a 12-month hearing governed by section 366.21, subdivisions (f) and (g). (Denny H., supra, 131 Cal.App.4th at pp. 1508-1509.) Section 366.22 provides that at an 18-month hearing, the court must terminate services and set a selection and implementation hearing under section 366.26 to determine the appropriate plan for the child. (§ 366.22, subd. (a)(3).) The court must also determine whether reasonable services have been offered or provided to the parent. (Ibid.) Whereas section 366.21, subdivision (g)(1)(C)(ii) states that the reasonable services finding must be made by clear and convincing evidence at the 12-month hearing, section 366.22, subdivision (a)(3) does not specify the requisite standard of proof at the 18-month hearing. When a statute is silent on the standard of proof, the preponderance of the evidence standard of proof applies. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594-595; Evid. Code, § 115.) Because we have concluded that the contested hearings are considered an 18-month hearing (Denny H., supra, 131 Cal.App.4th at pp. 1508-1509), it would follow that the standard of proof for the reasonable services finding was preponderance of the evidence (Katie V. v. Superior Court, supra, 130 Cal.App.4th at pp. 594-595).
Father's reliance on California Rules of Court, former rule 5.708(m) is unavailing. That rule provided: "At any 6-month, 12-month, or 18-month hearing, the court may not set a hearing under section 366.26 unless the court finds by clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian." (Former rule 5.708(m).) However, as Father concedes, rule 5.708(m) has been repealed effective January 1, 2017, and, in any event, conflicts with section 366.22. (Earl L., supra, 199 Cal.App.4th at p. 1505; N.M. v. Superior Court (2016) 5 Cal.App.5th 796, 808, fn. 10.)
We recognize, however, that "[w]hile an argument can be made that a preponderance of the evidence standard applies . . . , it is important to remember how critical a finding of reasonable services is in a dependency case. The provision of reasonable services is a substantive and procedural requirement." (Seiser, supra, § 2.152[4][b], citing In re M.F. (2019) 32 Cal.App.5th 1, 19; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1215-1216 [in order to meet due process requirements at the termination stage, the court must be satisfied reasonable services have been offered during the reunification stage].) "Consequently, it can be argued that this finding should be made by clear and convincing evidence . . . ." (Seiser, § 2.152[4][b].)
Father mentions in passing Santosky v. Kramer (1982) 455 U.S. 745, in which the United States Supreme Court held unconstitutional a New York statute permitting the termination of parental rights based on a finding of permanent neglect made by a preponderance of the evidence. At issue in Santosky was the quantum of proof required for the termination of parental rights, which indisputedly are fundamental in nature. Because of the fundamental nature of the rights at stake and the irreparable harm an erroneous decision to terminate them would cause, as compared with the lesser societal costs of an erroneous decision to postpone their termination, the high court determined that the federal Constitution imposes the heightened clear and convincing evidence standard. (Santosky, supra, 455 U.S. at p. 769.) Here, in contrast, Father's parental rights have not been terminated. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 750, superseded by statute on another point as stated in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1457.) Our Supreme Court has cast doubt on the notion that there is a constitutionally protected interest in the provision of reunification services. (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 750.) It noted, "The Courts of Appeal that have addressed this question have held to the contrary." (Ibid., citing In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475 [Reunification "services are a 'benefit.' There is no constitutional 'entitlement' to these services."]; In re Christina A. (1989) 213 Cal.App.3d 1073, 1078-1079.) To that end, Santosky is distinguishable and does not squarely resolve the issue.
In any event, in an abundance of caution, we will assume that the clear and convincing evidence standard applied and that the trial court's finding of reasonable services was based on that standard. As explained in the next section, even if we were to conduct our review of the court's reasonable services finding under the substantial evidence test " 'bearing in mind' " the clear and convincing evidence standard, we would still affirm the court's finding that reasonable services were provided. (T.J., supra, 21 Cal.App.5th at p. 1239; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
B. Reasonable Services
1. Governing Legal Principles and Standard of Review
"To support a finding that reasonable services were offered or provided to the parent, '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.' " (In re A.G. (2017) 12 Cal.App.5th 994, 1001, italics omitted.) "[W]e must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1988) 66 Cal.App.4th 965, 969.)
We review the juvenile court's finding that reasonable services were provided for substantial evidence. (T.J., supra, 21 Cal.App.5th at p. 1238.) " '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.' [Citation.]" (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) If the clear and convincing evidence standard applies in the trial court, then it "is incorporated into the substantial evidence standard of review." (T.J., at p. 1239.)
2. Analysis
Father acknowledges he was offered services in the areas of visitation, substance use, anger management, domestic violence, mental health, and parenting. He also does not refute that the services chosen were specifically tailored to the family's needs. Father contends the services were inadequate, however, because the Agency caused numerous delays throughout the proceedings, including delaying in locating Father's whereabouts and thereby in providing him services. Father also complains about his visitation schedule, as well as the Agency's use of the Zoom video chat application used for virtual visits. Father further faults the Agency for allowing him to "languish" in therapy services with Dr. Shaw for domestic violence, anger management, and substance use. Moreover, he asserts that the Agency frequently changed the assigned social workers in this case, "with no cohesive plan." Having reviewed the record, we conclude the record clearly and convincingly establishes that reasonable services were provided to Father and reject his contentions.
a. Delays
Father contends the Agency delayed in several aspects related to Father's services. First, he faults the Agency for failing to locate him in a timely manner, arguing "[i]t took a year [from the date A.B. was physically removed from parental custody] to get Father involved in the reunification process for his daughter."
Unquestionably, there was a delay in locating Father's whereabouts. However, the record does not support Father's assertion that "the Agency did not ensure [he] was involved in his daughter's dependency proceedings." Prior to the jurisdiction and disposition hearing, the Agency searched for Father. But those searches were unsuccessful. The Agency again searched for Father in approximately August 2019 before the six-month hearing. As a result, Father was finally able to get in touch with the Agency in late August 2019.
Once Father's whereabouts became known, the Agency immediately engaged him in the proceedings. It gave him information about "how he could get his child, what led to her being in foster care, and if she was safe now." The Agency also shared with him details about the upcoming hearing, which Father intended to attend to be raised to presumed father status. Shortly after, the Agency initiated a phone call visitation between Father and A.B. We thus reject Father's contention the Agency failed to ensure his involvement in the initial stages of this case.
Father does not point to any evidence demonstrating otherwise. Instead, he argues that the delay "in and of itself, was a violation of his due process rights," citing In re R.A. (2021) 61 Cal.App.5th 826. But In re R.A. does not stand for such a proposition. Further, it is distinguishable. There, the court, in construing the father's section 388 modification petition "liberally in favor of its sufficiency," found it "sufficiently raised the possibility that the Agency failed to use due diligence to locate him such that he was entitled to an evidentiary hearing on the notice issue in his section 388 motion." (In re R.A., supra, 61 Cal.App.5th at p. 838.) Unlike in this case, the Agency in In re R.A. failed to make reasonable search efforts "from the very start of" the case and conduct a thorough investigation of the father's whereabouts at any point. (Id. at p. 839.) The court also found it unacceptable the Agency "rel[ied] on the best interest of the child to preclude that parent from participating in the dependency case" after it "completely ignore[d] its duty to search for a missing parent." (Ibid.) In re R.A. is thus inapposite.
Next, Father asserts that the Agency delayed in offering him services once he appeared in this case on October 7, 2019. He suggests the Agency did not formulate his case plan in a timely manner, relying on social worker Flashman's testimony that "we weren't able to develop a case plan in that short amount of time." This contention lacks merit. Flashman's testimony referred to her meeting with Father in the hallway of the courtroom after the October 7, 2019 hearing. She explained, "We do case plans and a CFT with all parties present," which is why she did not develop Father's case plan during her meeting with him in the courthouse. Father cannot reasonably fault the Agency for not creating Father's case plan in that informal setting.
Father also points out that the Agency did not refer Father for individual therapy with Dr. Shaw until December 2019. The record elsewhere, however, indicates that the Agency submitted the referral earlier, on November 15, 2019. To the extent this created a conflict in the evidence, we decline to reweigh it. (See People v. Harris (2013) 57 Cal.4th 804, 849.) The record supports the court's decision to credit the Agency's reports that it referred Father to Dr. Shaw as early as November 15, 2019. Further, it was reasonable for the Agency to first create Father's case plan before referring him to therapy services that were designed to address the objectives in his case plan.
Father next complains that, once the Agency referred him to Dr. Shaw, it failed to communicate with Dr. Shaw between December 2019 and March 2020. Dr. Shaw testified he tried to reach the Agency several times beginning in early January 2020 to follow up on the referral, but was unsuccessful. It was not until March 2020 that the Agency and Dr. Shaw directly spoke with each other. Dr. Shaw began treating Father for anger management in December 2019. Dr. Shaw, however, waited until March 2020 to start treatment for substance use, domestic violence, and mental health because he wanted further clarity on the referral or the Agency's approval of his treatment plan. Father thus blames the Agency's lack of initial communication with Dr. Shaw for the delay of some of his therapy services.
Father correctly notes that the Agency and Dr. Shaw did not speak to each other between some time in December 2019 and March 2020. However, in a status review report, the Agency indicated it called Dr. Shaw on January 17, 2020, and left him a voicemail message when he did not answer. Contrary to Father's suggestions, the Agency attempted to reach Dr. Shaw during this time frame but was unable to do so.
We also do not find that Father's delay in therapy for substance use, domestic violence, and mental health is evidence of the Agency's failure to provide reasonable services. Although Dr. Shaw testified he was unclear about the referral, the record does not show the Agency was aware of this or that the recovery center could not proceed with treating Father. The Agency provided Dr. Shaw with information about Father's case plan. Also, the Agency had multiple conversations with staff at Dr. Shaw's recovery center regarding the nature of Father's referral. Based on her conversations with the intake coordinator at the recovery center, Flashman understood the intake coordinator "was clear" about the nature of her referral for Father. Moreover, when Flashman spoke to the intake coordinator of the recovery center, she did not indicate to Flashman that she needed to speak with Dr. Shaw directly in order for the recovery center to begin treating Father. Also, although Dr. Shaw testified he called the Agency several times, the record does not show he or his office left the Agency any messages. Viewing the evidence in the light most favorable to the order, the Agency provided adequate information to both Dr. Shaw and his office about Father's services and was unaware that Dr. Shaw needed further clarification or approval. We thus disagree with the notion that the Agency did not meet its obligation to make reasonable efforts in ensuring Father received timely therapy services.
While the Agency could have reached out to Dr. Shaw more frequently between January and March 2020 and the delay in some of Father's therapy services was not ideal, "[t]he standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court, supra, 66 Cal.App.4th at p. 969.) The circumstances that existed during this timeframe perhaps can explain the initial lack of communication with Dr. Shaw. In January and February 2020, Father was involved in incidents in which he was aggressive and made threats to the Agency's staff, the caregiver, or Mother. Specifically, after the January 28, 2020 hearing, Father was visibly frustrated and stated in front of the social worker that he was " 'not playin with the state of California anymore' " and "that this was going to 'make him do something' . . . ." He also stated that his other children wanted "to go kill the mother and he might let them do it." Later, in February 2020, the caregiver reported that Father had " 'gone ballistic' " on her during a phone call, expressing frustration he did not want the caregiver's partner taking A.B. to the bathroom.
As a result of these incidents, the Agency engaged in numerous phone calls with Father and the caregiver in February and early March 2020 to help repair their relationship. Flashman testified she "listened to both of them individually and really focused on making sure that it didn't get in the way of [A.B.'s] relationship with [Father]." Flashman tried to redirect Father's concerns by focusing on setting him up with regular visits with A.B. She also attempted to minimize the amount of contact between Father and the caregiver. Flashman also advised the caregiver on how to reduce the conflict by suggesting that she give the phone directly to A.B. whenever Father called. While it is true the Agency did not maintain consistent contact with Dr. Shaw prior to March 2020, the Agency was apparently preoccupied with addressing Father's alarming behavior and trying to repair his relationship with the caregiver and A.B. Viewed in this context, that some of Father's therapy services with Dr. Shaw were delayed does not necessarily mean that the Agency had not provided reasonable services.
As another example of delay on the part of the Agency, Father contends that Dr. Shaw did not receive Father's case plan until July 2020. Dr. Shaw testified that the Agency did not provide him with Father's case plan. It is true the Agency did not send Dr. Shaw or his office a copy of Father's written case plan. However, the Agency explained to a staff member at Dr. Shaw's office that the Agency was not authorized to release the case plan to it. Further, the Agency invited staff in Dr. Shaw's office to participate in the October 2019 CFT meeting with Father to learn about Father's case plan. It also informed the intake coordinator that it had given Father's case plan to him, and the intake coordinator stated she would ask Father to bring a copy of his case plan to Dr. Shaw's office.
More importantly, although Dr. Shaw did not receive a physical copy of Father's case plan, it is undisputed that the Agency verbally communicated the substance of the case plan to him. Dr. Shaw testified that, as he understood it, "the case plan was supposed to be about reunification . . . and to work on parenting, and hope there are no substance abuse of the parenting, or domestic abuse of the parenting, and how his mental health, his depression and anxiety, affect parenting. That's what I thought the case plan was because that's what I learned from Sarah Flashman." Father does not dispute that Dr. Shaw's understanding of the services he was asked to provide was consistent with his case plan.
In addition, Father faults the Agency for his difficulty in contacting A.B.'s therapist in July 2020. We are unpersuaded. Once the Agency became aware of Father's concerns, it volunteered to assist him in contacting the therapist. When the Agency contacted the therapist, she reported there was a delay in accepting Father's phone calls because she did not have a release of information of A.B.'s mental health records. In response, the Agency arranged with minor's counsel to ensure that the release was signed and authorized by the court. The Agency also apprised Father of these developments in a timely manner. We do not find the Agency failed to make reasonable efforts concerning Father's communications with A.B.'s therapist.
b. Anger Management and Domestic Violence
Father next challenges the Agency's provision of services related to domestic violence and anger management. As an initial matter, Father questions the Agency's determination that "Father had a problem with violence, anger, and domestic violence" because it had not confirmed if he was convicted of any offenses related to domestic violence or if any such incidents occurred in A.B.'s presence. Father, however, concedes that he was the one who disclosed to the Agency that he had been arrested multiple times due to domestic violence incidents. He also does not dispute allegations that "he had been physically and verbally abusive towards [Mother]" in the past. Moreover, the Agency requested and received records reflecting Father's criminal history, though the Agency could not recall if he was ever convicted for domestic violence. But, while it would have been helpful for the Agency to confirm such information, its failure to do so did not undermine its assessment that Father needed help in addressing domestic violence.
Father principally argues that the Agency "allowed Father to continue with [Dr.] Shaw for many months despite finding the service provision to be unsatisfactory and Father not to be making progress." Father does not point to any evidence showing the Agency's dissatisfaction with Dr. Shaw's services. Nor does he establish that the services with regard to anger management or domestic violence were in fact unreasonable. Presumably, Father bases his contentions on statements from the Agency's counsel during closing presentation. Counsel stated that Dr. Shaw "appeared to minimize [Father's] behavior as mere frustration as opposed to the gravity of what it was." Dr. Shaw described Father's aggressive behavior as "frustration," rather than "anger." He also did not find it was "necessarily true" that Father's pattern of aggressive behavior toward A.B.'s service providers demonstrated an inability to provide safe and healthy parenting.
The statements from closing argument seem to reflect a difference in opinion between the Agency and Dr. Shaw on how to characterize Father's aggressive behavior, rather than the Agency's belief that Dr. Shaw rendered incompetent therapy services. In any event, the court apparently rejected any suggestion that Dr. Shaw's services were unreasonable, even if he had testified about "unique theories of treatment" that were "not what we hear about all the time from a treatment provider."
Substantial evidence supports the court's finding that reasonable therapy services for domestic violence and anger management from Dr. Shaw were provided. As noted earlier, Dr. Shaw had provided Father with therapy to address anger management and domestic violence. Father continued to receive anger management and domestic violence therapy after completing the six-month program with Dr. Shaw. Since March 2020, the Agency frequently communicated with Dr. Shaw, and Dr. Shaw in turn continued to update the Agency on Father's progress. Also, the Agency often discussed with Father what he was learning in therapy, including anger management techniques Dr. Shaw had taught him. In addition, the Agency timely reported to Dr. Shaw the specific incidents related to Father's aggressive behavior that occurred throughout the case. Dr. Shaw acknowledged the Agency's concerns about those incidents and explained he would work with Father to address his behavior. Dr. Shaw conducted approximately three therapy sessions with Father to address these incidents.
The record thus demonstrates that the Agency, Dr. Shaw, and Father frequently communicated with each other about their specific concerns and goals in the areas of anger management or domestic violence, the manner in which Dr. Shaw would address the concerns, and Father's progress throughout therapy. Given this evidence, we reject Father's contention that he was not provided reasonable anger management and domestic violence services.
Father also mentions in passing that the Agency "made no significant alterations to his case plan or suggested other services to address the problems they perceived," even after witnessing Father's bouts of violent behavior. Father, however, does not explain what changes the Agency should have made to his case plan and that the failure to make such changes prevented him from receiving adequate services.
Father also states the Agency "knew in July that [Dr.] Shaw believed Father may need an evaluation to consider whether he had trauma to his amygdala that could be contributing to mental health problems." The record is inconclusive on this point, however. The Agency reported "Dr. Shaw believes a psychological evaluation to consider the impact of trauma to his amygdala could be helpful and assist in ruling out any other mental health problems that he may encounter down the road." Dr. Shaw testified, however, he was not recommending a further psychological evaluation for Father at the time; rather, he was merely suggesting to the Agency it could refer Father to undergo one if it was witnessing Father's aggressive behavior. He also stated it was not his testimony that domestic violence is due to amygdala damage. Youngblood-Smith testified that she later followed up with Dr. Shaw to confirm whether the evaluation was necessary and Dr. Shaw replied it was not.
c. Substance Use
Father also challenges the provision of services designed to address his marijuana use. Similar to his contentions regarding anger management and domestic violence services, Father asserts "[t]he Agency was unhappy with [Dr.] Shaw's services related to addressing substance abuse with Father. Yet the Agency did virtually nothing to offer or provide a different service that might meet its expectation." According to Father, Flashman "was disturbed that [Dr.] Shaw took Father's word that he did not have substance abuse issues" and "Father never got a formal substance abuse assessment . . . ."
The Agency seemed skeptical of Dr. Shaw's assessment that Father did not look impaired or show signs of substance abuse during their in-person sessions. However, it did not appear to question Dr. Shaw's methods to address Father's use of marijuana as it relates to parenting, an issue the Agency was mainly concerned about. Specifically, the Agency questioned whether Father's marijuana use could potentially compromise his ability to be mentally present to make decisions and safely care for A.B. Indeed, Dr. Shaw testified he, too, shared these concerns. He addressed the marijuana use in weekly therapy sessions with Father for over 26 weeks by educating him on the cognitive effects of marijuana and other drugs as it relates to parenting and other aspects of life. He also applied specific tools set forth by national substance abuse and mental health medical societies. According to Dr. Shaw, Father was learning to understand his depression and the way marijuana and other substances contribute and impair his ability to parent and be present. Father does not argue that these services from Dr. Shaw were deficient in any way.
d. Visitation
Father also complains he was not provided reasonable visitation because the Agency did not offer alternative modes of communication for virtual visits and implemented a phone call schedule that was "only convenient for the caregiver."
Visitation is " 'an essential component of a reunification plan' " (In re T.M. (2016) 4 Cal.App.5th 1214, 1218), and the record clearly and convincingly establishes that Father was provided reasonable visitation. Father had the opportunity for in-person visits from November 2019 through March 2020 and then again in July, September, and October 2020. The Agency also offered to provide, and did provide, Father with plane tickets and lodging for his visits to California.
When the Agency implemented virtual visits due to the shelter-in-place order, Father often reported he had trouble using the Zoom video chat application or that his phone had died. Thus, he argues that the Agency's failure to offer alternative forms of communication rendered visitation unreasonable. The record refutes Father's contention that he "was not sufficiently assisted with technology." Father does not dispute the Agency repeatedly offered to assist Father in setting up Zoom, which he had declined. Father concedes the Agency also offered to help Father locate and set his phone up with other video chat applications. He simply responded that his phone did not support video visits. On one occasion when the Agency offered technological assistance, Father had become agitated, raised his voice, and used profanity in response.
Father also asserts it was unreasonable for the caregiver to allow him to call A.B. from 9:00 a.m. to 12:00 p.m. Pacific Standard Time because he should have been able to speak with A.B. whenever he wanted. He contends the schedule was "only convenient for the caregiver." Nothing in the record indicates that the Agency allowed the caregiver's mere wishes to control when visits occurred.
Instead, it appears the phone schedule was created to accommodate A.B.'s needs. Specifically, the Agency explained to Father that the schedule was in place because A.B. had school in the afternoon and calling her before 9:00 a.m. disturbed her routine. The record reveals that establishing and maintaining a routine was important for A.B.'s development. As the caregiver explained to the Agency, "having a consistent routine is key for [A.B.]; they have a daily schedule that helps [A.B.] focus and remain calm." "[V]isitation must be as frequent as possible, consistent with the well-being of the child." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426, italics added; § 362.1, subd. (a)(1)(A).) The Agency complied with this rule by adhering to a phone schedule that prioritized A.B.'s needs. Further, with the exception of a conflict in his work schedule in October 2020, Father did not communicate reasons to the Agency to show the phone visitation schedule was not feasible for him, other than simply stating his belief he should be able to call A.B. "whenever he wanted."
e. Other Contentions
Father also asserts a broader criticism of the Agency's provision of services throughout the dependency case. According to Father, the Agency kept changing the assigned social worker in this case, resulting in "a revolving door of social workers with no cohesive plan." There were four social workers assigned at different times throughout the case. The social workers had supervisors who were also involved in the case and communicated with Father.
Although Father understandably was frustrated by the changes of social workers, he does not establish that the changes caused a disruption in his services. Instead, he complains mainly about the social workers' practice of auto-populating reports, which he claims contained "previous, old, or no longer relevant information." For example, he states Flashman provided notes for the August 2020 report even though Youngblood-Smith was the assigned social worker at the time. It is certainly appropriate for a social worker to exchange notes with another social worker for purposes of preparing a report. Further, Father does not claim that the information reflected in the report was inaccurate.
Father also asserts that Youngblood-Smith was listed as the author of the August 6, 2020 report, even though she was not in fact the author. Youngblood-Smith testified that although she did not author a portion of the August 6, 2020 report, she "had written a significant portion of the reunification efforts . . . section." Given that she contributed to a large part of the report, we do not find it unreasonable that the Agency listed her as the author.
Father further notes that Youngblood-Smith auto-populated information about Father's aggressiveness in the Agency's September 18, 2020 report without actually observing this behavior. It appears that the repeated information in that report was a recitation of historical information reported in the case. Again, Father does not claim that the information was inaccurate.
3. Conclusion
Ultimately, we conclude "the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable" that the Agency provided Father reasonable services. (Conservatorship of O.B., supra, 9 Cal.5th at p. 1011.) Father's reliance on In re T.W.-1 (2017) 9 Cal.App.5th 339; T.J., supra, 21 Cal.App.5th 1229; and In re J.E. (2016) 3 Cal.App.5th 557 does not compel a different conclusion.
In In re T.W.-1, the court found the social services department failed to provide the father, who was located out of state, reasonable services for numerous reasons. (In re T.W.-1, supra, 9 Cal.App.5th at pp. 342, 346-349.) The initial case plan "failed to identify any service providers and instead placed the burden on Father to locate services." (Id. at p. 346.) The modified case plan identified one program but provided no contact information or instructions for enrollment. Father eventually received information for specific service providers three months after disposition. (Ibid.) Furthermore, the case plan took more than half of the review period to develop and failed to address all of the problems leading to the minors' removal from the father's custody. (Ibid.) For the services that were included in the case plan, the department did not provide adequate information to determine whether they were responsive to the objectives of learning parenting skills and avoiding criminal activity. (Id. at p. 347.) Finally, the father was given only one telephone visit with the minors despite his requests for more and the case plan's provision for weekly calls. (Ibid.)
Here, unlike in In re T.W.-1, the Agency was diligent in formulating Father's case plan as soon as he appeared in this case. The case plan also was specifically tailored to Father's needs and contained adequate information to show that services were responsive to the objectives of addressing substance use, parenting A.B., and domestic violence and conflict resolution. Further, the Agency did not leave Father to locate service providers on his own. Lastly, Father was allowed phone calls with A.B. daily, video chats twice per week during the shelter-in-place order, and in-person visits, with assistance for travel and lodging from the Agency, before and during the shelter-in-place order.
T.J. was a neglect case involving an intellectually disabled single mother. (T.J., supra, 21 Cal.App.5th at pp. 1232, 1250.) This court observed that "the Agency put Mother in a holding pattern that resulted in a wait of nearly 11 months after her children were removed from her physical custody before she was provided with an individual therapist." (Id. at p. 1248.) The Agency also delayed almost eight months from removal in providing her services with in-home counseling and parenting support. (Ibid.) Further, the Agency failed completely to provide the mother with help for anger management, practical independent living skills, and housing assistance. (Ibid.) As a result of such significant delays and the Agency's failure to give her assistance when she had special challenges due to being developmentally disabled, we observed, "Mother was penalized heavily for failing to provide secure, clean and well-kept housing for her family." (Id. at p. 1250.) As such, we concluded, "A halfhearted effort on the Agency's part—which leaves the parent without services for months on end—does not amount to the provision of reasonable services." (Id. at p. 1251.)
This case is markedly different. Father was not "wait-listed for a significant time on critical components of [his] case plan." (T.J., supra, 21 Cal.App.5th at p. 1233.) Additionally, the Agency did not merely refer Father to a program and leave him to fend for himself. Contrary to Father's assertions, the Agency maintained frequent communication with both Dr. Shaw and Father regarding his progress.
Finally, in In re J.E., the dependency "petition was sustained based on allegations that minor was contemplating suicide and engaging in behaviors that posed a substantial danger to herself." (J.E., supra, 3 Cal.App.5th at p. 566.) The case plan required a psychological evaluation, which the Agency never conducted, despite reporting that it did. (Ibid.) Another " 'core issue' " of the case that was "the primary barrier to reunification" was the younger sister's molestation. (Id. at pp. 566-567.) Nonetheless, "minor was offered only general individual and family therapy." (Id. at p. 567.) Accordingly, "[t]he trial court reasonably concluded that the provision of generalized therapy, without a further assessment, was not tailored to meet the family's specific needs." (Ibid.) This case does not involve the Agency inaccurately reporting it had provided certain services when in fact it had not. Further, Father does not dispute that he was provided individual therapy tailored to address his specific needs.
In sum, the juvenile court properly concluded that the Agency provided Father adequate services. As a result, his related contention that the court erred by failing to offer him additional reunification services also fails.
III. DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.) The decision is final in this court immediately. (Rules 8.452(i) & 8.490(b)(2)(A).)
STREETER, J. WE CONCUR: POLLAK, P. J.
TUCHER, J.