Opinion
H047053
10-04-2019
E.M., et al., Petitioners, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17JD000177)
E.M. (father) and H.M. (mother) are the parents of seven-year-old T.M. (born August 2012), as well as three older children. Father and mother each petition for extraordinary writ relief from a Monterey County juvenile court order terminating reunification services with T.M. and setting a permanency planning hearing under Welfare and Institutions Code section 366.26.
Unspecified statutory references are to the Welfare and Institutions Code.
Father contends the juvenile court erred in concluding the Monterey County Department of Social Services provided him with reasonable reunification services, principally because he was never provided visitation with T.M. Mother asserts the juvenile court's findings that she received reasonable services and that she would fail to reunify with T.M. within the next six months lack substantial evidence. We conclude that the juvenile court erred as to father, and we will therefore grant his petition and stay the October 22, 2019 section 366.26 hearing. However, we conclude substantial evidence supports the juvenile court's factual findings as to mother and therefore deny her petition.
I. FACTS AND PROCEDURAL BACKGROUND
Mother and father, who are now divorced, were married for several years and have four children, a son and three daughters. Throughout most of the dependency proceedings, mother and children have lived in Monterey County. At some point before T.M. was born, father left the home in Monterey County and moved to Merced County. Only mother's and father's youngest child, T.M., is at issue here.
The four children were born in 2002, 2004, 2007 and 2012. A report submitted by the Department to the juvenile court states father lived with mother until 2016. However, mother stated that she and father separated in 2007 and they "have not lived together since then."
The older three children, two daughters and a son, were also placed in dependency proceedings but are not addressed in parents' petitions. Mother filed an appeal on July 29, 2019, of an order from the dependency proceedings for her other two daughters. That appeal remains pending.
A. Section 300 Petition and Jurisdictional Proceedings
In October 2017, the Monterey County Department of Social Services (Department) filed a section 300 petition. The petition stated that, since 2004, the Department had received 17 referrals for the family, including allegations that father sexually abused the three oldest children, that the oldest child sexually abused his sister T.M., and that mother left the children without appropriate supervision. The petition asserted that, in one conversation with mother in September 2017, mother "disclosed that all of the children were molested by their father in the past." The petition further noted that the "father's whereabouts, interest in, and ability to care for the children [are] unknown at this time."
Describing the Department's interaction with mother prior to October 2017, the petition stated that in 2016 the Department developed a safety plan with mother, and she agreed not to leave the oldest child unsupervised with the other children. In September 2017, the Department received a referral alleging the oldest child was sexually abusing his younger sisters, and noting that T.M. had told her mother that the oldest child had touched T.M. in her private areas. When the oldest child was interviewed, he denied touching his siblings and stated that his "mother was threatening his siblings 'to say it.' " Mother refused to allow the social workers to complete forensic interviews of the younger children. The Department concluded there was "significant concern regarding the mother's ability to protect the children from [the oldest child]." Pursuant to a court order issued on October 4, 2017, the children were detained and placed into protective custody.
Following the children's detention, the juvenile court granted mother's request for a Dennis H. hearing limited to the detention of the three youngest children and ordered on October 18, 2017, that they be returned to mother's custody.
In re Dennis H. (1971) 19 Cal.App.3d 350, 354 [holding that detention "may not be ordered unless there is clear proof of the 'urgent necessity' which sections 635 and 636 require"].
There is no reporter's transcript of the October 18 hearing in the record, but later statements in the record suggest that the girls were returned to mother's home because she voluntarily placed the oldest child at a group home away from the other children.
After filing the section 300 petition in October 2017, in November the Department submitted a jurisdiction and disposition report to the juvenile court that stated mother has "struggled or has refused to engage with the Department." Regarding father, the Department described his whereabouts as "unknown." The Department stated mother alleged "father has sexually abused the three oldest children," but "father has not been convicted of said crimes, per his criminal history record." The November 2017 report attached a report related to a referral dated May 25, 2016, that alleged T.M. and one of her older sisters were molested by the oldest child and also contained an allegation that "the children" were also molested by father.
Prior to the jurisdictional hearing, mother submitted to a psychological evaluation by Dr. Edward Macias, who diagnosed mother with personality disorder with antisocial and borderline features. Dr. Macias recommended that mother receive both individual and family therapy, complete a series of parenting classes, and be monitored should she be granted custody of her children.
In January 2018, father first appeared in the dependency proceedings. He requested and received a continuance of the jurisdictional hearing but did not seek a contested hearing. Mother requested a contested jurisdictional hearing, which occurred on February 16, 2018.
At the February 2018 jurisdictional hearing, mother, father, and their counsel were present. A social worker for the Department testified that the Department was highly concerned about mother's mental health because of her "changing mood, tones, [and] behaviors." The social worker further noted that mother had difficulty receiving feedback and had been uncooperative "[t]he entire time." She noted that, although mother had initiated the Department's investigation by making a call that the oldest child was sexually abusing the younger children, the Department could not obtain any information from the children because mother "interrupted the forensic interviews."
At the February 2018 hearing, the Department withdrew a section 387 petition it had previously filed.
Mother testified she had moved to Santa Cruz County and was currently living with her three daughters at a shelter. She testified about the girls' schooling, health appointments, and overall care, but she did not testify about father or the sexual abuse allegations related to him. One of the older daughters (who was then in middle school) testified about school. She expressed her desire to continue living with her family at the shelter but did not discuss any abuse. Father did not testify, but his counsel noted that he was submitting on the Department's reports. Father's counsel stated father wanted what was "best for his children," and father requested "contact and visits" with them.
The juvenile court ruled it had jurisdiction over the three girls pursuant to section 300, subdivision (d), based on the older brother's sexual abuse and the parents' inadequate supervision. The juvenile court did not assert jurisdiction based on the alleged sexual abuse by father or assert jurisdiction over the girls pursuant to section 300, subdivision (b). The Monterey County juvenile court did find true the allegations in the petition, which included the statement that mother "disclosed that all of the children were molested by their father in the past."
Section 300, subdivision (d), states there is jurisdiction if "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse."
Section 300, subdivision (b), states in relevant part that there is jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child."
The juvenile court ordered that the three daughters were to remain in mother's custody with continued court supervision.
As to father, the juvenile court found parentage was established. The court ruled "[i]t would not be in the best interests of the children for child welfare services to be provided to the father, at this time, based upon the current information provided to the Court. The Court is aware that that certainly may change, as additional information is provided."
Because father was now present in the proceedings, the juvenile court struck the section 300, subdivision (g), allegation.
Adopting the Department's recommendation as to visitation, the juvenile court also found visitation with father would be detrimental to the children. The juvenile court adopted the social worker's proposed finding that "[t]he father's progress toward alleviating or mitigating the causes necessitating placement of the child in foster care has been none, as set forth in the report of the court social worker." The social worker's report (filed in 2017, prior to the hearing and before father's whereabouts became known) noted that father's whereabouts were unknown and thus the Department had been unable to engage with him. The report also noted allegations by mother that father sexually abused the three oldest children.
Because mother said at the jurisdictional hearing that she had moved to Santa Cruz, the Monterey County juvenile court subsequently transferred the family's case to Santa Cruz County for the dispositional hearing.
B. Subsequent Rulings as to Reunification Services and Visitation
Following the transfer of the case, the Santa Cruz County juvenile court noted that father was the presumed parent and adopted the prior order of the Monterey County juvenile court from February 2018 denying visitation to father.
In March 2018, the Santa Cruz County Human Services Department (Santa Cruz Department) filed a report and request for continuance noting that father has "requested services," and that it was anticipating recommending family reunification services for both father and mother. The social worker noted she had met with father to discuss the sexual abuse allegations that had occurred in Monterey County. Father denied harming any of his children.
Shortly thereafter, on April 5, 2018, the Santa Cruz Department filed a section 342 petition against father. Under the section in the petition asking to detail "supporting facts," the Santa Cruz Department wrote a short paragraph that alleged that the three older children in the family were abused by father "[o]n or about May 5, 2011" and "on numerous other occasions," and that the youngest child, T.M., either was sexually abused or there was substantial risk she would be abused by father.
Section 342 states: "(a) In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations. (b) Unless otherwise provided by law, all procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section."
In a dispositional report filed on April 10, 2018, the Santa Cruz Department recommended that father be provided with reunification services. The Santa Cruz Department noted that father had "presented himself to the Court and expressed being open and willing to participate in Court ordered reunification services," but that "due to newly filed allegations of sexual abuse of [the oldest three children] by [father], the Department believes it is detrimental for [father] to have contact with the children."
Although the report referenced "newly filed" allegations, the only such allegations appear to be a police report from 2014 (that is, four years earlier) from the City of Salinas Police Department. The 2014 police report notes that mother's attorney said that her client (mother) had given her information relating to possible child molestation by father. The occurrence dates were from May 1, 2011 to October 3, 2013. The April 2018 report further indicates that, at least in 2017, father had supervised visits with at least some of the children, pursuant to a custody order.
The April 2018 disposition report further noted that the Santa Cruz Department social worker had met or spoken with the three girls separately. T.M. stated no one had touched her inappropriately, and she did not know whether her siblings had been touched inappropriately. The older two girls did not want to speak with the social worker, with one telling the social worker that "her mother told her not to speak with anyone." The social worker also met with the oldest child, who stated that his father had touched him in sexually inappropriate ways. The oldest child stated he would never feel safe living with his father.
The social worker recommended in the April 2018 disposition report that father should not receive any visitation because any visitation would be "detrimental" to the children. The Santa Cruz Department added that it would "monitor and continue to re-assess the issue of visitation throughout the duration of the dependency to determine if visitation with his children would be in the best interest of the minors or until further orders of the Court." Regarding mother, the report recommended reunification services and that the children continue to be placed in her custody. Both mother and father requested a contested hearing.
On April 20, 2018, the Santa Cruz County juvenile court issued a dispositional order following a hearing and ordered that T.M. stay with mother under the supervision of the Department and that mother receive services. The Santa Cruz County juvenile court also ordered that visitation between father and T.M. (who was then five years old) shall not occur "at this time," as it would be "detrimental" to her. The record on appeal does not contain a reporter's transcript for this hearing, and the record does not contain any information about the basis for this finding. Father did not appeal the Santa Cruz County juvenile court's dispositional order.
Mother did appeal the order. After counsel for mother filed a "No Issue Statement" and mother failed to submit a request to file a supplemental brief on her own behalf, we dismissed the appeal as abandoned pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. (In re L.M., et al. (Nov. 15, 2018, H045749).)
The Santa Cruz County juvenile court also made orders on April 20, 2018, relating to the section 342 petition against father. The minute order states that father advised he wished to "remain silent" and denied the allegations, and mother had testified. The Santa Cruz County juvenile court did not overrule or sustain the petition but instead dismissed it, apparently because the juvenile court found "Monterey County already took jurisdiction." The record before us does not indicate that any section 342 petition involving father was subsequently filed in either Santa Cruz County or Monterey County.
On May 24, 2018, the Santa Cruz Department filed a section 387 petition requesting T.M. and her two sisters be removed from the care of mother. The petition noted that mother had exhibited erratic behavior, made repeated statements to social workers, shelter staff, and law enforcement that she could no longer take care of the children, and had not been receptive to support services. The petition also noted that mother was paranoid and displaying signs of mental health deterioration. Although the focus of the petition was on mother, the Santa Cruz Department also stated that placement of the children with father was not recommended. The petition did not specify the reasons for that placement recommendation.
Section 387 provides, in pertinent part, that a social worker may file a supplemental petition in a dependency matter requesting an order (after a noticed hearing) that changes or modifies a previous order "by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution." (§ 387, subd. (a).) The supplemental petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child." (§ 387, subd. (b).)
The next day, on May 25, 2018, the Santa Cruz County juvenile court detained T.M. and mother's other two daughters and ordered visitation for mother of a minimum of two hours per week. Since that time, T.M. and her two sisters have been in foster care.
The record on appeal does not contain a reporter's transcript for this hearing.
In an adjudication report on the section 387 petition dated June 2018, the Santa Cruz Department continued to recommend reunification services for both parents. The report noted that the social worker had spoken with father at least twice, and that he had expressed concern about how mother's mental instability may be impacting the children. Father stated he was willing to care and provide for the children "or make arrangements for extended family members" to care for them and was willing to move out of his mother's house so that his children could be placed in his mother's care. The report noted that father resided in Merced County and arrangements for "referrals to services are pending."
Regarding father's visitation, the Santa Cruz Department noted that the juvenile court in Monterey County had made findings of detriment regarding visitation between father and the children in February 2018. The Santa Cruz Department also asserted in its report that, on April 17, 2018, the Santa Cruz County juvenile court had "sustained sexual abuse allegations" against father, a statement that is not supported by the record before us. The Santa Cruz Department further noted that father and children "report that they do not have a parent/child relationship and have not been in contact for some years." The report stated "[t]he Department will monitor and continue to re-assess the issue of visitation throughout the duration of the [d]ependency to determine if visitation with his children would be in the best interest of the minors or until further orders of the Court."
The record on appeal does not contain a reporter's transcript for the April 17 hearing. However, the minute order for that appearance does not state that the Santa Cruz County juvenile court sustained sexual abuse allegations against father. The minute order for April 17 indicates that the parents requested a contested dispositional hearing (which occurred on April 20, 2018) and the juvenile court on April 17 also addressed daughters' petitions that their court-appointed special advocates be dismissed.
As to mother, the social worker described mother's behavior on the supervised visits as "negatively" impacting the children. For instance, mother was "very agitated" and, during one visit, "immediately demanded to see the laptop and chrome books" she had requested the older daughters bring and started yelling at one of her daughters because she did not bring the "chrome books" to the visit. The report observed that "the Department continues to have concerns about the safety and wellbeing of [the three girls] while in the care of their mother," given mother's repeated statements in front of the children that she was unable and unwilling to care for them. The social worker further noted that mother had "not been receptive" to the services offered to provide her with the skills to safely care for her children.
On July 3, 2018, the parties appeared before the Santa Cruz County juvenile court for a hearing at which father appeared and submitted on the information contained in the social worker's report dated June 2018. The juvenile court ruled that it would not grant father any visitation, finding that visitation would be "detrimental." It further stated that "[f]ather may begin writing letters to the minor and with the assistance of social worker if there is improvement a 388 [petition] can be filed to request visits." Mother requested a contested hearing on the section 387 petition, which the juvenile court heard shortly thereafter.
The record on appeal does not contain a reporter's transcript for the July 3 hearing.
The minute order does not reflect any further findings or explanation of how visitation would be "detrimental" to T.M. The minute order does not indicate whether the juvenile court considered supervised or other forms of visitation at this hearing.
At the contested hearing on July 13, 2018, the Santa Cruz County juvenile court sustained the section 387 petition, adopted the social worker's recommendations, and ordered reasonable reunification services for both father and mother. It found the case plan to be necessary and appropriate.
The record on appeal does not contain a reporter's transcript for the July 13 hearing.
Regarding visitation, the Santa Cruz County juvenile court's written order stated mother should receive supervised visitation to occur at least two times per week and granted the social worker discretion "to adjust the frequency and duration, as well as supervision of visits." As to father, the Santa Cruz County juvenile court denied him visitation because "at this time as it would be detrimental to the minor." The minute order does not include any explanation for the basis of this finding. The minute order for the July 13, 2018 hearing further states "[f]ather can begin writing letters and sending cards to the minor," but stated that no visitation could occur. Father did not appeal the July 2018 order.
Mother did appeal the order sustaining the section 387 petition. After counsel for mother filed a "No Issue Statement" and mother failed to submit a request to file a supplemental brief on her own behalf, we dismissed the appeal as abandoned pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. (In re L.M., et al. (Nov. 16, 2018, H046004).)
C. Contested 6-Month and 12-Month Hearings
In August 2018, the dependency case was transferred back to Monterey County, where the rest of the proceedings occurred, including the 6-month and 12-month reviews.
1. 6-Month Review
As the time approached for the 6-month review, the Monterey Department recommended reunification services be terminated for father. The report stated that father was living in Merced, had provided a mailing address, met with the Department in October 2018 and exchanged contact information, and had spoken with the social worker several times. The social worker noted that, despite her contacts with father, he "has not provided any information as to employment, housing, or attending services." The social worker noted she had referred father to the Merced County Parenting Center, but he did not provide verification of services attended or provide verification of attending "mental health services." The report does not mention any referrals to father of specific mental health centers or services.
At the 6-month review hearing in December 2018, father contested the Department's recommendation and requested a contested hearing, which the juvenile court set for February 20, 2019. Father submitted to the juvenile court documents including proof that he attended 16 out of 16 parenting classes in the Nurturing Parenting classes in Merced, and that he was employed.
The Monterey County juvenile court conducted father's contested 6-month review hearing on February 20, 2019. The Department told the juvenile court that it had changed its prior recommendation as to father and recommended continuing services for him. The Department's counsel noted that "the Department would like to make a statement to the Court on the record," at which point a representative for the Department spoke to the juvenile court and stated that there had been "some challenges" with communicating with father. The Department representative stated that father "has not really returned phone calls. [He] [h]asn't really provided any verification of the services that he was attending in Merced." Father had written "one letter to the children," which father gave to the Department personally.
Following the statement from the Department's representative, the Department's counsel stated, "This is a 12-month case, and we are coming up very rapidly on that 12-month mark, which is May 21st at the next hearing. So there's a lot to do in a very short amount of time. And we're happy to hear that the father's engaged at this point in moving forward, but I think he really needs to understand that time is very limited as to how we can statutorily move forward in this case."
At father's 6-month review hearing, the Monterey County juvenile court found that father was employed, had stable housing, and had been attending parenting classes in Merced. The juvenile court noted that that information had not been conveyed to the social worker at the time the social worker drafted the report. The juvenile court asked father's counsel whether father understood that he needed to engage in "active communication" with the Department.
Father's counsel stated that he had spoken with father, and father was under the belief that he had been ordered to have no visitation with T.M. Father "to his detriment, believed that he was going to be told when he could have—when he was going to be told when he could have visits." Father was never told that "he needed to be proactive." Father's counsel said father understood that he needed to call social services to tell them about his accomplishments. Father wanted his children "to know they have a much larger extended family. Again, to his detriment, he thought he was going to be told when they could contact the children through the social worker. [Father] says he's going to get on that right after we leave today." Father addressed the court and told the court that he got his apartment for his children, "it's exclusively for them."
The juvenile court addressed father and stated that it "saw how much money you're paying for rent. And so I absolutely believe you that the reason that you're getting that apartment is for your children." The juvenile court told father that it had heard his custody case and stated "since I've been involved in your family law days, there have been a lot of challenges for you and you haven't let any of those challenges become barriers. [¶] You've been continuing to work to try to hold down employment, try to move forward with your own life, and to be there for the children as soon as they're ready. [¶] So I want you to know I respect you and I am commending your efforts."
The juvenile court then reviewed the proposed findings and order with the Department. With respect to the finding that visitation with father would be "detrimental" to the child "as set forth in the report of the court social worker," the Department stated, "We found the order no visitation and no contact to the detriment. So until the Department is able to assess [father], which sounds like we will be able to moving forward, we can then 388." The juvenile court responded, "That sounds good. So there's a plan for the modification." The Department responded, "[y]es."
The Monterey County juvenile court adopted the proposed findings, as modified. The juvenile court found that the father's progress was "minimal," "as set forth in the report of the Court social worker and as identified with more particularity in the father's trial brief filed February 15th and the documents filed on father's behalf February 19th." The juvenile court ordered that reunification services for father be continued.
The father submitted a trial brief that noted he had completed parenting classes in Merced, was employed, and lived in an apartment in Merced and had been in stable housing since September 2018. He also submitted a certificate of completion for a parenting class conducted in Spanish, a signed letter from the class facilitator confirming he attended 16 of the 16 weeks of classes, a pay stub receipt and documentation, and a copy of his residential lease. Father's trial brief also emphasized that he had not received visitation, despite repeated requests, with any of his children for several years.
With respect to visitation, the Monterey County juvenile court ruled that there was to be no visitation with father "until the Department determines that visitation would be safe for them, or [by] further court order." Father did not appeal the February 20, 2019 order.
2. 12-Month Review
Approximately three months later, on May 10, 2019, the Department submitted a status review report to the Monterey County juvenile court recommending that reunification services be terminated for both parents. Both mother and father requested a contested hearing.
A contested hearing occurred over two days, on June 19 and June 25, 2019, during which the Monterey County juvenile court heard testimony from multiple witnesses, including the two older daughters, father, and mother. T.M., who was six years old at the time, did not testify.
a. Mother's Testimony
Mother testified that the Department's services were unreasonable because the assigned social worker had "discontinued" contact with her, although she later testified she had been in contact with another social worker "this last week" and other social workers had responded to her. Regarding therapy, mother testified that she had hired or seen various therapists, including one for which she paid out of pocket but then could no longer afford because she lost her employment. Mother consulted with another therapist who diagnosed her with borderline anxiety disorder but stopped treating her after he conveyed to mother he was "confused," and "he didn't feel like he could perform and satisfy the needs of the reunification services." After consulting with another individual who was still "studying to get her license," mother located another therapist, whom she had been seeing since January 2019 and had last seen two weeks ago. Mother testified that her next therapeutic appointment was "pending."
Mother had engaged in several parenting courses. She was currently seeing the children one day a week for one hour (reduced from two days a week for an hour per visit for a total of two hours) with supervision and had not yet had a chance to move to unsupervised visits. She stated the Department had offered her "approximately seven" CFTs, which the record reflects stands for "Child and Family Team" meetings. Mother testified that she had asked for family therapy at every CFT.
The social worker testified that the visits with mother had "started off" at "one hour on two days a week" and then were reduced to "one hour a week on Friday from 4:00 to 5:00," and that this change in visitation occurred approximately "four or five months" before the June 2019 hearing.
b. Father's Testimony
Father testified on June 19 and 25. He stated he was contesting the Department's recommendations for him to not continue services as to T.M. because he "never had the opportunity to get close" to her. He stated that he had not had contact with T.M., who was then six years old. Father had received supervised visits with his children in the custody case, but T.M. was too young and did not participate. Father had not seen any of his four children for "maybe three years." Father had not seen T.M. since the beginning of the dependency case.
Other than writing one letter to T.M. in December, father had not written any other letters to T.M. When asked why not, father said, "I would like to have a small conversation with my daughter . . . simply to tell her I love you, I'm your dad, and you're the youngest one that I have and I've never had the opportunity to maybe be playful with you or give you a gift . . . . [¶] I believe that those words when they come from somebody have more [effect] on them than a piece of paper." Father also noted that he is fluent in Spanish, although he can only read "[v]ery little." Father cannot read or speak English.
Father had written one letter to T.M. about a month or two before the hearing but was told by the social worker that none of his children wanted to receive his letters. Father had also taken six months of parenting classes. Father had understood if he completed those classes he would start getting visits. No one had ever told him the visits with him might hurt his children. When he asked the social worker for the children's therapists' phone numbers, she gave them to him. Father on his own initiative called each of the therapists, but they did not reply. Father told the Department that none of the therapists had returned his calls.
In terms of his own therapy, father testified that the social worker never gave him any names or telephone numbers of potential therapists. Father stated, "ever since the case has been [in Monterey County], I've never received any type of direction or classes or something." Father noted that if the social worker "gives them to me, I would gladly go to receive any type." He further testified he had attended monthly meetings with the Department and had attended every scheduled meeting.
Father stated that he believed that supervised visitation services would help him connect with T.M. He testified "you can be talking about someone, but it is very different to just talk about someone versus having them right in front of you. [¶] And I think little by little, those circumstances would develop. I think that if she sees me, she'll start developing more affection towards me and saying, 'Oh, that's my dad.' [¶] That's my personal opinion. I respect whatever decision the Court makes, whatever decision the judge makes. And I am willing to do whatever I'm ordered to do."
c. Testimony of the Social Worker
Ruby Salazar, the assigned social worker, also testified. She had been working with the family (the children and both parents) since approximately September 2018, and had authored the 12-month permanency report filed on May 10, 2019. She principally testified as to her interactions with mother. Salazar noted an incident involving mother that was not included in her report, which had occurred during mother's visit a few days earlier where mother made "concerning statements" to the children giving them "false hope" and telling them they would be living with her "far away."
Salazar further testified about the "high needs" of mother and how Salazar participated in one-on-one weekly phone calls with mother, as well as in CFTs. The one-on-one calls had been set up because mother, as soon as her case was assigned to the Department, was calling Salazar, Salazar's supervisor, and other people in the Department "multiple times a day." Regarding the CFTs, the Department had conducted CFTs with mom every "four to six" weeks and had conducted approximately seven CFTs in total. The meetings were a "challenge" because mother was difficult to communicate with and often refused to receive feedback. After mother expressed difficulties with transportation to go to her classes and appointments, the Department provided her with bus passes on a monthly basis.
In terms of mother's therapy, Salazar testified that the Department had recommended mother work with Children's Behavioral Health because "they . . . do have an understanding of the court timelines" and need for "treatment updates to provide to the court," which outside therapists do not always do. Salazar recalled mother had used four or five therapists. When Salazar contacted mother's most recent and current therapist, he stated he did not know how to work with the Department and was not comfortable making recommendations. Salazar had tried to e-mail the therapist approximately three to four times for further information about any updates or progress in mother's treatment, but he did not respond. Salazar also encouraged mother to go back to Children's Behavioral Health but mother resisted that plan.
Salazar addressed mother's request for family counseling. Salazar's understanding was Children's Behavioral Health, which was treating the children, would need to provide a referral in order for mother and children to receive family therapy. However, Children's Behavioral Health had not made such a referral because the two older daughters began refusing to attend their individual therapy sessions. Salazar had explained to mother why Children's Behavioral Health would not offer family therapy to the children at that time.
Regarding her interactions with father, Salazar testified that she had met with him prior to court hearings to review the case plan in Spanish and confirmed that she had given him the list of his children's therapists at his request. Regarding his interactions with T.M., she noted it had been "a few years" since he had any contact with her. In terms of how father was encouraged to make contact with T.M., Salazar testified that "based on the reports from Santa Cruz County, there was a recommendation that he write letters to his children. And based off of that recommendation, I did encourage him to write letters to all of his children." Salazar did not know why the Department in Santa Cruz County recommended that father first write a letter to the children before being given visitation.
Father wrote letters to all of his children, including one to T.M. Although T.M. initially did not want to read the letter, Salazar noted that she had "as of last week" shared that "she would be interested in reading the letter." In addition to his own letters, father had also provided Salazar with letters from other members of his family, and T.M. had expressed interest in reading the letter from her paternal grandmother.
When asked by father's counsel about the basis for the recommendation in her report that visitation by father would be detrimental to the children, Salazar stated it was "[b]ased on the fact that I haven't—or you know, the department hasn't been able to assess the father's parenting skills, whether it's through his reports on what he has learned through the services. He hasn't had contact with his children previously. At the time, they were not—neither were interested in having visits with him." Salazar did not know why the children did not wish to visit with their father.
When asked if the children's attitude was based on "some family history" they had with their father, Salazar stated that she knew there had been alleged sexual abuse by father against one of the children, but she did not know which child. None of the girls had disclosed any kind of abuse by father to Salazar, although one girl had told her she had been asked about sexual abuse during a therapy session. Salazar did not think the girls talked much about father during therapy. Salazar testified that "for the older children, as soon as I mentioned dad or anything, it's—you know, they close up and they seem to get really anxious and not know what to say. And I don't want to press that issue either." Salazar did not testify that T.M. exhibited this behavior.
When Salazar told father that the girls did not want to read his letter, he said "something along the lines of 'I don't blame them. You know, they don't know me really.' " Father told Salazar multiple times that he wanted his girls to know his side of the family.
In closing argument, counsel for the children argued to the juvenile court that reasonable services had been provided to mother, and she had not made enough progress to justify continuing services for six more months. However, as to father, children's counsel stated, "I do have concerns that he wasn't given just an opportunity or an introduction of some type of visits in a therapeutic, structured manner to see if this is going to work. [¶] What he got were my clients saying, 'I don't want visits.' And it just ended for them. And there's a danger in that where the kids are . . . holding the reins to the services or to reunification opportunities, either for them or for the father. [¶] So I'm a bit concerned that my clients say, 'I don't want visits,' and then nothing was done to see if there was a bridge to get closer."
d. The Juvenile Court's Ruling
After listening to the testimony and considering the Department's report, the juvenile court issued the ruling at issue here. The juvenile court noted at the outset that it was mindful that "this is not a case where the continuing concern by the department is involving substance abuse or physical abuse of the children." However, the juvenile court noted that, given the mother's signs of "mental health deterioration" and paranoid thinking, the issue was the risk of "harm and emotional abuse." The juvenile court acknowledged it was a "difficult" case as "mother loves her children." Father would "like to have a relationship with children, with [T.M.] in particular" and wanted to "simply see" T.M.
Turning more particularly to the services that had been provided, the juvenile court concluded that the services for both parents had been reasonable and should be terminated rather than continued. Relating to mother, the juvenile court noted that family therapy was "not available" because the girls had not reached their individual goals and had begun refusing individual therapy. The juvenile court noted that mother had attended parenting classes and all of her supervised visits. It found that mother had received multiple opportunities—including "the seven CFTs, above and beyond what is the standard statewide"—to express what she has learned but was unable to do so, information which was "critical" for the juvenile court in order to assess whether the children could be returned to her. Nor was mother able to show what she learned during her weekly supervised visits, which, although she had engaged with the children "in games and in other positive ways," also demonstrated she was not accepting of feedback.
With respect to father, the juvenile court noted that he was basically a "new parent" since he had already left home when T.M. was born, and he had no ongoing relationship with her. Although father's letter was written in December, T.M. in "late June" suggested for the first time that she was interested in reading it. The juvenile court noted that the reading of the letter (should it occur) "would be the very, very first step" and "there is no evidence at this time, the time of today's hearing to inform the Court of what will result."
The juvenile court observed it would be left to "speculate" if T.M. would continue to express interest in seeing father. The juvenile court acknowledged that father simply wanted to see T.M. However, it noted "with the father, I don't, after hearing the testimony and reviewing the pleadings, believe that there has been a demonstration that the department has not provided appropriate services." The juvenile court defined the services as "parenting" and "perhaps to reach out through correspondence that may be fruitful." In terms of "conjoint therapy or therapeutic visits between the father and [T.M.], we have not even reached that point of knowing that [T.M.] is ready and that it would be beneficial for her at this stage for those to be set up." The juvenile court concluded the services that had been offered to both father and mother were reasonable.
Turning to the determination of whether there was a substantial likelihood of reunification if services are offered up to the 18-month mark, the juvenile court found there was no such likelihood because neither parent had made significant process in "resolving the problems that led to the children's removal."
The juvenile court therefore ordered a selection and implementation hearing under section 366.26 for October 22, 2019.
D. Petitions for Extraordinary Writ
Father and mother both filed timely notices of intent to file a petition for extraordinary writ to review the juvenile court's June 25, 2019 order terminating services. (Cal. Rules of Court, rule 8.450(e).) Thereafter, father filed his petition for extraordinary writ (petition) with this court on July 18, 2019. (See rule 8.452.) Mother filed her petition on August 15, 2019. Real party in interest, the Monterey County Department of Social Services, filed oppositions to father's and mother's petitions on July 29, 2019, and August 30, 2019, respectively.
Unspecified rule references are to the California Rules of Court.
II. DISCUSSION
Both father and mother contend that reasonable reunification services were not provided to them. Mother asserts that the Department acted unreasonably in not providing family therapy, in failing to communicate effectively with her therapist, and in not setting appropriate "boundaries" in their dealings with her. Mother also seeks more time to reunify, arguing there is ample evidence she has made "significant progress" on the issues that led to T.M.'s removal from her. Father asserts that the failure to provide him with any visitation with T.M. was improper under the circumstances here, and he seeks visitation services and more time to reunify with T.M.
Having reviewed the entire record before us, and for the reasons set out below, we grant father's petition and deny mother's petition.
A. Legal Principles
Section 300 et seq. provides "a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare." (In re Celine R. (2003) 31 Cal.4th 45, 52.) "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one." (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
"When a child is removed from parental custody and made a dependent of the court, reunification services generally must be provided to the child's parents." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 840; § 361.5, subd. (a).) "The importance of reunification services in the dependency system cannot be gainsaid. The law favors reunification whenever possible. [Citation.] To achieve that goal, ordinarily a parent must be granted reasonable reunification services. [Citation.] But reunification services constitute a benefit; there is no constitutional ' "entitlement" ' to those services." (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.) "Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423 (Tracy J.).) "Only if the court permissibly denies reunification services, or such services have failed, may the court conduct permanency planning proceedings that contemplate a final termination of parental rights." (In re Ethan C. (2012) 54 Cal.4th 610, 617.)
Section 361.5, subdivision (a), provides in relevant part that, "whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father." There is no dispute that father is the presumed father.
Prior to the permanency planning hearing, section 366 provides for periodic status reviews as ordered by the court, but not less frequently than every six months. (§ 366, subd. (a)(1).)
"From the perspective of the parent, review hearings are the essential mechanisms by which he or she may be foreclosed from any further relationship with the child. Parents have a liberty interest in their relationship with their children. This interest is fundamental and, therefore, may not be extinguished without due process. [Citation.] Family preservation, of which reunification services constitutes an integral component, is the 'first priority' through the review hearing stage of dependency proceedings. [Citation.] During this time, the parent has the best opportunity he or she ever will have to make the strongest case possible in favor of returning the child to parental custody. Thus, review hearings represent one of the 'significant safeguards . . . built into the current dependency scheme.' " (In re James Q. (2000) 81 Cal.App.4th 255, 263 (James Q.).)
"At every review hearing, the juvenile court is obliged to determine whether the agency offered the parent reasonable reunification services. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) At the 12-month review hearing, if the court does not return the minor to parental custody and finds no substantial probability of return within 18 months, the court must terminate reunification efforts and schedule a permanent plan hearing. (§ 366.21, subd. (g).)" (James Q., supra, 81 Cal.App.4th at p. 262.) Pursuant to section 366.21, subdivision (g), a "court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian."
"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 proved difficult.' [Citation.] The 'adequacy of reunification plans and the reasonableness of the [agency's] efforts are judged according to the circumstances of each case.' [Citation.] Reunification services should be tailored to the particular needs of the family. [Citation.] The social services agency must make a 'good faith effort' to provide reasonable services that are responsive to each family's unique needs. [Citation.] '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 J.E. (2016) 3 Cal.App.5th 557, 566 (J.E.).)
B. Standard of Review
We review a juvenile court's factual findings, including that reasonable services were provided, for substantial evidence. (J.E., supra, 3 Cal.App.5th at p. 566.) "Substantial evidence is that which is reasonable, credible and of solid value." (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238 (T.J.).) " 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.' " (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419-420 (Patricia W.) [quoting Tracy J., supra, 202 Cal.App.4th 1415, 1424].)
Given the statutory mandate that a reasonable services finding must be made by clear and convincing evidence in the juvenile court (§ 366.21, subd. (g)(1)(C)(ii)), " '[w]e review the record in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard.' " (T.J., supra, 21 Cal.App.5th at p. 1239.) Given the factual findings made by the juvenile court, we review the juvenile court's ultimate conclusion for abuse of discretion. (San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 223.)
C. Analysis
1. Mother
Mother asks that we stay the section 366.26 hearing and direct the juvenile court to vacate its orders of June 25, 2019, in order for mother to receive additional reunification services. She contends the services extended to her were unreasonable for a number of reasons. She argues that the Department failed to "provide any boundaries" and "set her up for failure" by yielding to her "frequent phone calling," which encouraged "non-productive behavior." She also argues the Department failed to provide family therapy and effectively follow up with her own individual therapist. She also states T.M. could be effectively returned to her if services were extended because she had made "significant progress," the evidence showed "the visits went well," and she had stable housing.
We disagree. As described further below, ample evidence supports the juvenile court's findings that the Department's services to mother were reasonable and that there was no substantial probability that T.M. would be returned to mother within six months if services were extended.
a. Services and Progress
To address mother's argument, we first summarize the services provided to her and her progress in the dependency matter, detailing in particular her progress in the last review period prior to the 12-month review hearing. There is no dispute that, early in the dependency proceedings, mother was diagnosed with a personality disorder. The case plan as to mother required, among other things, that she participate consistently in therapy and that the therapy provider would determine the appropriate form of therapy, such as individual or family sessions.
Approximately five months later, in December 2018, the Department submitted a status report outlining the various private therapists that mother had engaged and disengaged with and expressing its concern that mother had "frequently changed therapists in this review period as the mother's mental health has impacted her ability to think and act rationally."
In the status report filed prior to the 12-month review hearing, which the juvenile court later received into evidence, social worker Salazar noted she had attempted to contact mother's newest therapist several times but was unable to do so. Salazar also attempted unsuccessfully to refer mother to another therapist. Salazar attached to her report a document from a psychologist with Children's Behavioral Health that shows the psychologist unsuccessfully attempted to engage mother in mental health services there in April 2019.
Salazar further noted in the status report that she had received over 64 e-mails from mother in the review period that contained "accusatory statements and inaccuracies." Salazar attached to her report an e-mail marked urgent and dated March 20, 2019, which she had sent to mother to explain why she was no longer responding to mother's e-mails unless "absolutely necessary." Salazar explained that she would no longer participate in the weekly phone calls with mother because the calls had been "unproductive" and listed other concerns about the calls, including that mother was defensive and disruptive and would not accept feedback. Salazar noted in her e-mail that the monthly meetings and CFTs would continue, and that she would also respond to mother in the event of an emergency.
Salazar noted that there was evidence mother had been evicted from her most recent residence and that, after she provided another address, another social worker visited that housing and found it was vacant with a "Stop Work Order Notice" on the door. On the other hand, mother had been attending her supervised visits.
Salazar testified that mother's behavior upset T.M. During a CFT in March 2019, mother was informed about a comment made by T.M. about death, which mother appeared to downplay and, in another episode, mother had upset T.M. by calling the police to report alleged abuse of T.M. by T.M.'s caregivers. T.M.'s therapist, who had worked with T.M. for approximately seven months, told Salazar that T.M. had recently been exhibiting emotional difficulties as well as "dysregulation" after phone calls and visits with mother. In the therapist's report, dated at the end of April 2019, the therapist further noted that T.M. had stated that mother had whispered in her ear during visits to "hit" the baby living in T.M.'s foster home, and that T.M. feared her mother.
Following this disclosure in therapy, T.M.'s foster mother told the therapist that T.M. has been "calmer, appears happier, and has been interacting appropriately with the adopted baby." Salazar noted that T.M. was not "engaged" with mother in a supervised phone call with mother on April 25, 2019, and T.M. ended the call early "stating she did not want to talk anymore." In a similar vein, T.M.'s CASA advocate filed a report on May 15, 2019, which noted that T.M.'s ability to "self-sooth" could deteriorate when she had contact with her mother and older sisters, and that T.M. had recently refused to participate in phone visits with mother.
In an addendum to her report dated May 20, 2019, Salazar described various problematic encounters between mother and the Department, including that, at a May 10, 2019 CFT, mother had made threats and accusations to the Department's staff. She further noted that T.M. had declined to participate in a supervised call with mother on May 16, 2019.
In addition to this information, which was contained in her report, Salazar also testified at the contested 12-month review hearing in June 2019. She reiterated that she had e-mailed mother's current therapist approximately three to four times for further information about any updates or progress in mother's treatment, but he did not respond. Salazar stated she had encouraged mother to go back to Children's Behavioral Health for therapy, since they had more experience dealing with the dependency scheme and its timeframes, but mother resisted that plan.
Salazar addressed mother's request for family counseling and noted that Salazar's understanding was that a referral was needed from the department of Children's Behavioral Health for family therapy. However, no referral had been made because the two older daughters began to refuse to attend their individual therapy sessions.
Regarding mother's contact with Department, Salazar confirmed that she had set up weekly one-on-one calls with mother to manage the deluge of calls she and others were receiving. The Department conducted CFTs with mother every "four to six" weeks, totaling approximately seven CFTs. The meetings were a "challenge" because mother was difficult to communicate with and often refused to receive feedback.
b. Analysis
On this record, we cannot agree with mother that either the reunification services plan or the services provided pursuant to that plan were inadequate. Ample evidence supports the juvenile court's conclusion that the Department provided mother with adequate reunification services. " '[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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed).' " (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165.)
The record supports such a showing. The Department continuously maintained contact with mother and attempted to respond to her needs in an appropriate fashion. The record does not confirm mother's argument that the Department over-indulged her by yielding to her frequent calling. The record makes clear that the Department attempted to place boundaries on mother's contacts in order to better focus their encounters with mother on addressing her parenting issues, including by transitioning from responding to her multiple, daily calls, to setting a weekly phone call, and then (after those calls were not productive) proceeding to stop those calls in order to focus on the monthly meetings and CFTs.
While mother believes she should have received family therapy, there is substantial evidence that such therapy was unavailable because two of the children had discontinued individual therapy, and Children's Behavioral Health had not yet made a referral for family therapy. Mother does not meaningfully contest those findings. Moreover, even assuming family services would have optimized the services and that they were an option here, "[t]he adequacy of the reunification plan and the department's efforts to provide suitable services is judged according to the circumstances of the particular case." (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) " '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.' " (J.E., supra, 3 Cal.App.5th at p. 566.) We conclude that the services provided here were reasonable.
Substantial evidence also supports the juvenile court's finding that mother would not likely reunify with T.M. even if an additional six months of services were provided. As noted above, the record reflects that mother suffers from a personality disorder for which she has not sought consistent therapeutic treatment, and there is nothing in the record to support a finding she has progressed in treatment or has ameliorated. Rather, the record supports a finding that her mental health is deteriorating. While mother argues she testified "credibly that she was able to now effectively parent her child," other evidence does not support that assertion. Although mother did appear for the supervised visitations, these visits had been diminished from twice to once per week given the negative impact they were having on the children, including T.M. As recently as April 2019, T.M. was manifesting distress following visits with mother, and T.M had refused certain phone calls with mother in May 2019.
Moreover, mother's claim that she had stable housing throughout the review period is also not supported by substantial evidence. The record shows she has lived in various shelters and apartments, moved between counties during the dependency proceedings, and, when the Department tried to visit her most recently disclosed address, it found the residence vacant. In her own petition, mother raises the prospect of further disruption in housing, as she notes she "was now planning on moving out of [the] county into an apartment in Imperial County, California."
These facts highlight the substantial evidence supporting the juvenile court's finding that there was not a substantial probability that T.M. would be returned to mother's custody within 18 months. For these reasons, the juvenile court did not abuse its discretion in setting the matter for a permanency planning hearing under section 366.26. We therefore deny mother's petition and request for a stay, although we note that the section 366.26 hearing currently scheduled for October 22, 2019, will be vacated in light of our decision—explained further below—to grant father's petition.
Pursuant to the California Rules of Court, and subject to some exceptions which do not apply here, the juvenile court may not set a permanency planning hearing for only one parent. (Rules 5.705, 5.708, subd. (h), 5.725.)
2. Father
We now turn to father's petition. Father also asks that we vacate the order for hearing under section 366.26, order that reunification services be continued, and direct the juvenile court to order visitation between him and T.M.
As described above, throughout the dependency proceedings father was not offered any type of contact with T.M. other than through letter writing. Father argues that the denial of visitation to him was not supported by any evidence that visits, whether "therapeutic, supervised, monitored or otherwise," would have been inconsistent with T.M.'s wellbeing.
a. Visitation and Reunification Principles
" 'Visitation is a critical component, probably the most critical component, of a reunification plan.' " (In re T.G. (2010) 188 Cal.App.4th at pp. 696-697 (In re T.G.).) Given the "essential" nature of visitation, "[t]o promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child." (Tracy J., supra, 202 Cal.App.4th at p. 1426 [expressing concern that two developmentally disabled parents "never received more than four hours a week of supervised visitation services"].) Even in cases where visitation is limited, instead of denied altogether as it was here, courts scrutinize such limitations because "[w]hen the Agency limits visitation in the absence of evidence showing the parents' behavior has jeopardized or will jeopardize the child's safety, it unreasonably forecloses family reunification on the basis of the parents' labeled diagnoses, and does not constitute reasonable services." (Ibid.)
However, "the standards for denying visitation in this context are not as clear-cut as one might expect. With respect to disposition, subdivision (a)(1) of section 362.1 provides that any order placing a child in foster care and ordering reunification services must provide for visitation between parent and child, subject to two caveats. First, '[n]o visitation order shall jeopardize the safety of the child.' (§ 362.1, subd. (a)(1)(B).) Second, '[v]isitation shall be as frequent as possible, consistent with the well-being of the child.' (Id. subd. (a)(1)(A).) According to the statute, these visitation requirements exist '[i]n order to maintain ties between the parent . . . and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent.' " (In re Matthew C. (2017) 9 Cal.App.5th 1090, 1100-1101.)
b. Visitation
With these principles in mind, we turn to the facts here. As summarized above, the immediate problem that led to the dependency proceedings was the sexual abuse allegedly perpetrated by the oldest child, not sexual abuse by father. Later, daughters, including T.M., were removed due to mother's deteriorating mental condition. The initial petition also alleged father had sexually abused the children in the past, and the record includes a 2014 police report that reported abuse allegations made by mother relating to the period from 2011 to 2013 in the context of family court custody proceedings. The agencies and the courts involved in the dependency case in both Santa Cruz and Monterey Counties found that any visitation with father would involve "detriment" to the children. However, the basis of those findings is absent from the record before us on appeal, which does not include any of the transcripts from the proceedings in Santa Cruz County.
As "several courts have acknowledged, the notion of detriment is at best a nebulous standard that depends on the context of the inquiry," but " '[i]t cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child's physical or emotional well-being." (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.)
As an initial matter, we note that father did not challenge the findings of detriment or visitation in the juvenile court's prior dispositional orders, and the time to challenge those earlier orders has long since passed. (§395; subd. (a)(1); In re S.B. (2009) 46 Cal.4th 529, 532; rule 8.406(a)(1).) We thus do not revisit the findings of detriment made in the earlier stages of the dependency proceedings and instead focus on the evidence from the last review period, that is, between the 6-month and 12-month review hearings.
At the 6-month review hearing conducted in February 2019, the juvenile court addressed father's reunification services, including visitation. The juvenile court found father had a job and stable housing, which he secured apparently in anticipation of having visitation with his children. The juvenile court urged father to take all of the parenting classes and to stay in contact with the Department, including leaving a message with the social worker if necessary.
At the 6-month contested review hearing, the juvenile court noted it was keeping its finding of "detriment" and ordered there was to be "no visitation and no contact." The Department's counsel noted that there was a plan for the modification of visitation if an assessment of father was made: "So until the Department is able to assess [father], which sounds like we will be able to moving forward, we can then 388."
Section 388 provides in relevant part: "[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made."
The juvenile court ruled that "[a]t this time there will be no visitation between the father and the children until the Department determines that visitation would be safe for them, or for further court order. And that process was just described in court. That would be through the filing of a new petition to modify today's orders." The juvenile court clearly indicated during the 6-month review hearing that it wanted a "plan for the modification" of the restriction on visitation between father and T.M.
Following this order, the record indicates there was an "oral review" to the juvenile court by the social worker on March 12, 2019, at which father was present, but the record contains no transcript of that proceeding.
The Department's May 10, 2019 status report, prepared in anticipation of the 12-month review hearing originally scheduled for May 21, 2019, was predominately focused on mother. As to father, the social worker Salazar noted that father was living in Merced, was employed, and that she had contacted him "monthly via telephone." Salazar noted that father had attended and fully participated in parenting classes, which she had confirmed with the parenting program's facilitator.
Salazar wrote that she asked father to explain in detail what he learned in the course and "at the time he could not recall what he had learned." After Salazar encouraged father to call her to discuss what he had learned in the parenting course, father met with her and "shared he learned how to show respect to children, show empathy, how to express himself and be authentic, how to teach family values and self-love/confidence, as well as how to implement consequences." Salazar further observed that "although he took the classes, he felt most of what he has learned about parenting has been from his parents and his own life experiences." She noted that father had not provided verification of "attending mental health services" but did not mention any referrals to providers or what mental health services he should seek. She also stated that father had left her a voicemail on February 25, 2019, requesting the children's therapists' contact information and noted that he later expressed frustration on March 19, 2019, regarding his dealings with the social worker and Department.
In the section of the report devoted to visitation, the social worker stated "[t]he Department does not recommend visits between the children and the father" but did not explain the basis for that conclusion. Salazar did not refer to any wellbeing issue as to T.M. in the context of visitation with father. Elsewhere in her report she noted that "father only recently became in contact [with] the Department and expressed limited understanding of the skills taught to him in the parenting class he took in Merced County," and that he "wrote a letter to his children in December 2018[;] however, his children expressed no interest in reading or replying to his contact."
At the June 2019 hearings, when questioned about her finding that visits with father would be "detrimental to the children" and what it was based on, Salazar stated that she had not been able to assess father's parenting skills, and the children indicated that they were not interested in having visitation with him. But Salazar did not know why the children said that. Salazar knew there had been an allegation of abuse made but did not know which child it involved. None of the girls had disclosed any abuse by father to her, and they did not discuss father much during therapy. Although the older girls seemed uncomfortable about visits with father, T.M. did not exhibit this behavior. T.M. had recently expressed interest in reading father's letter and had expressed interest in meeting her paternal grandmother.
c. Analysis
Having reviewed the record and in particular the June 2019 hearings and submissions made prior to them, including the May 10 report, we cannot conclude that substantial evidence supports the finding that reasonable services were provided to father specifically with respect to visitation between father and T.M.
The juvenile court's order at the 6-month hearing allowed the Department to determine that visitation could occur when the Department determined it was "safe." Yet the record does not show that the Department made any effort to determine whether visitation with father during the review period would harm T.M.'s physical or emotional wellbeing. The Department inquired only from father about the insights he gained from his parenting classes. There is no finding that father's general insights (or lack thereof) presented a threat to T.M.'s safety or emotional wellbeing. Moreover, there is no evidence in the record to support a finding that father's visits would harm T.M. For example, no therapist, clinician, mental health professional, or other witness reported in connection with the 6-month or 12-month review hearings that visitation by father with T.M. would cause emotional or physical harm to her. There is no evidence in the record that T.M. remained under stress due to seeing or potentially seeing her father. (Cf. In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838-939 [child molested by father remained under great stress and never again wanted to see his father, and this court concluded that, although the juvenile court could have ordered visitation under closely supervised conditions, there was sufficient evidence for the juvenile court to prohibit visitation altogether].) To the contrary, T.M.'s therapist noted T.M.'s emotional disturbances were largely attributable to mother. Salazar did not inquire about father with the children's therapists.
Father argues that the juvenile court impermissibly delegated authority for the agency to determine the question of visitation. (See, e.g., In re Korbin Z. (2016) 3 Cal.App.5th 511, 516-517 [holding that juvenile court may not delegate the decision of whether visitation will occur to any third party, including to the child or a social services agency].) However, father did not timely appeal the February 2019 visitation order, and he has therefore forfeited any challenge to it.
Nor is there any evidence the Department considered whether any type of visitation might address safety concerns about father, including supervised visits, which had been provided to mother. (See Patricia W., supra, 244 Cal.App.4th at p. 425 [holding mother suffering from schizophrenia did not receive adequate services in part because the agency did not demonstrate that "it consulted medical experts about the degree to which mother would pose a risk to her son, if any, if she remained medication compliant, and whether given mother's diagnosis she could be expected to remain on her medication"].) Based on the record before us, it appears the juvenile court considered the parameters of possible visitation for the first time during the same hearing at which it simultaneously determined that the services provided had been reasonable and elected to terminate them. Although the juvenile court did permit father to write a letter, the reasonableness of this form of visitation is questionable given T.M.'s young age and in light of father's testimony that he cannot read or write English and can read Spanish only "a little."
In particular, the juvenile court stated on June 25, 2019, in terms of "conjoint therapy or therapeutic visits between the father and [T.M.], we have not even reached that point of knowing that [T.M.] is ready and that it would be beneficial for her at this stage for those to be set up."
We acknowledge, as the Department points out, that seven year old T.M. has not had contact with father for several years and did not express interest in contacting him. Although significant, those circumstances do not provide substantial evidence of a basis for denying visitation, because T.M.'s lack of contact with father was pursuant to court order, with which father complied. We also acknowledge the timing and procedural posture of this case, given that nearly 18 months have elapsed since T.M.'s removal from parental custody in May 2018. However unlikely it is that T.M. will successfully reunify with father within the critical 18-month window from the date of removal (§ 366.22, subd. (a)(1)), father is "nonetheless entitled to reasonable services" (In re T.W.-1 (2017) 9 Cal.App.5th 339, 348) and the " 'effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success.' " (Id. at pp. 348- 349.) It remains for the juvenile court to determine whether a substantial probability of reunification exists within the operative timeframe. (§ 366.22, subd. (a).) But, in the context of a 12-month hearing such as that we review here, that question is not ripe for determination until clear and convincing evidence supports the conclusion that the reunification services offered to father have been reasonable. (See T.J., supra, 21 Cal.App.5th at p. 1249.)
To the extent there was doubt as to T.M.'s interest in meeting with father whom she did not yet know (although the more recent remarks by the social worker indicate T.M. was interested), that fact should not have been dispositive. "If it is an abuse of discretion to give either therapists or social services departments 'complete and total discretion to determine whether or not visitation occurs' [citation], how much more so to delegate such discretion to impressionable and psychologically scarred children." (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Based on the record before us, the Department did not meaningfully explore the possibility of visitation for father with respect to T.M., including whether visits could be appropriately introduced and structured or therapeutically supervised in the months before reunification services were terminated.
Finally, we note that, at the June 25, 2019 hearing, the juvenile court appeared to improperly place the burden on father to demonstrate the services were unreasonable, rather than requiring the Department to show by clear and convincing evidence the services provided were reasonable. In its ruling, the juvenile court noted "with the father, I don't, after hearing the testimony and reviewing the pleadings, believe that there has been a demonstration that the department has not provided appropriate services." However, the law is clear that it was not father's burden to prove a negative; rather, "[i]f a court is to terminate reunification services and set a section 366.26 hearing after six or 12 months of services, the child welfare agency should be required to show by clear and convincing evidence that it has offered or provided reasonable services to the parent; this higher evidentiary standard favors the parent in his or her efforts to reunify with the child." (Katie V., supra, 130 Cal.App.4th at p. 596; see also § 366.21, subd. (g)(4).)
For these reasons, we conclude no substantial evidence supports the juvenile court's finding that the Department provided father reasonable reunification services. We therefore grant the petition with directions for the juvenile court to vacate its prior finding that reasonable services were provided to father and vacate its associated orders. Importantly, we express no view of what type of visitation, if any, would be reasonable under the circumstances presented here. We leave that decision to the sound discretion of the juvenile court, after it conducts a hearing to receive evidence on that issue. We order that the juvenile court conduct this hearing within 30 days.
III. DISPOSITION
Father's petition for extraordinary writ is granted. Let a preemptory writ of mandate issue, directing respondent court to (1) vacate its finding that reasonable services were provided to father; (2) vacate its June 25, 2019 order terminating reunification services as to father and setting a permanency planning hearing under Welfare and Institutions Code section 366.26; (3) conduct a hearing within 30 days to determine what services for father, including visitation if consistent with the well-being and safety of the child, are reasonable under the circumstances; and (4) based on the findings from that hearing, order the Department to provide to father reasonable reunification services, including visitation if the juvenile court deems it appropriate under the applicable legal standards. Mother's petition for extraordinary writ is denied. This court's stay order shall remain in effect until this decision is final. Our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.490, subd. (b)(2)(A).)
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.