Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Ct. No. DP013825, John C. Gastelum, Judge.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Glen S.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant Lisa S.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
RYLAARSDAM, ACTING P. J.
Glen S. and Lisa S., parents of now two-year-old K.S., each appeal from the juvenile court’s order terminating family reunification services. They contend this was error because Orange County Social Services Agency (SSA) did not provide them with reasonable reunification services. We agree and reverse the order.
FACTS AND PROCEDURAL BACKGROUND
Mother and father took their then five-week-old child to the hospital when they could not wake her up. The child had bruises all over her body and was transferred to a children’s hospital for further testing to rule out metabolic and blood disorders. A CT scan revealed multiple bilateral subdural hematomas varying in age consistent with repetitive trauma. She also had bruising on the chest, stomach, and the tops of both ears, as well as multiple retinal hemorrhages of the right eye. Three doctors concluded the injuries were “consistent with non-accidental trauma or child abuse.” They opined the child’s injuries resulted from being shaken violently or thrown and described her as being in a permanent vegetative state.
SSA filed a dependency petition, alleging the child had sustained severe injuries as a result of non-accidental trauma or child abuse and that the parents had failed to provide a reasonable explanation for the injuries, thus placing the child’s safety, health, and welfare at risk. The child was detained and placed ultimately in an out-of-county convalescent hospital. The court found the allegations in the petition true, declared the child a dependent, and ordered reunification services.
The reunification plan required each parent to “[s]how that you accept responsibility for your actions” (bold omitted) and participate in individual therapy “to address the circumstances leading to the child’s dependency.” The parents were also required to complete a parenting class as well as a child abuse program and “show that you have benefited from [it].” The social worker in turn was to “monitor the parents’ cooperation and compliance with the . . . plan by contacting the parents’ service-providing agencies to obtain information regarding their progress” and “review the case plan with the [child’s] parents . . . .”
The parents had monitored visits every weekend and attended some but not all of the child’s therapy appointments due to work schedules. Mother went to all of the child’s medical appointments, with father accompanying her whenever he could.
In accordance with their case plan, the parents attended counseling weekly, completed the parenting class, and continued to attend the child abuse intervention program. Both parents were reported to have complied very well with the program requirements. Mother and father ultimately received ratings of “5” (outstanding”) for “Takes responsibility for own behavior rather than denying, minimizing, or blaming.”
Mother’s progress in the child abuse program was “excellent.” She was on schedule with her required one on one sessions and took “responsibility for injury occurring while in their care although origin unknown.” Her therapist, Dr. Eileen Kramer, reported mother had responded excellently to individual therapy treatment, had “opened up in therapy and explored personal and interpersonal issues,” was mentally and emotionally stable as confirmed by psychological tests, had good insight and sound judgment, demonstrated accurate understanding of parenting skills needed for a special needs child, and had realistic expectations of the child’s limited potential.
Father demonstrated similar progress. He had “excellent understanding and use of skills. Takes responsibility for injury occurring on their watch but cause and origin unknown.” According to Kramer, who was also his therapist, father “is of consistent, like competencies and offers good supportive skill set for parenting tasks of special needs child. He is mature, responsible and dependable, and he demonstrates good insight and sound judg[]ment.”
The parents were eager to have the child placed back in their care, but continued to believe her condition was due to a medical complication and not non-accidental trauma. Although they were her sole caretakers at the time of injury, they maintained they were not at fault.
Because the doctors had determined the child’s injuries were caused by non-accidental trauma and the parents were not able to explain how the injuries occurred, the social worker, Beth Burnell, believed the child would be at risk if placed back with the parents. She believed it was not determinable whether they had met the case plan objective of “Show that you accept responsibility for your actions” (bold omitted) because they “ha[d] not indicated how the child sustained the injury” and believed it “was due to a medical condition.” She recommended termination of reunification services and ordering the child into long-term foster care.
At the contested 6-month/12-month review hearing, both Burnell and Kramer testified. Burnell acknowledged the parents had fully complied with all reunification services that were ordered for them with respect to completing all required classes and individual therapy. But she recommended the court terminate reunification services because they had not taken responsibility for the child’s non-accidental injuries in that they had “not stated how those injuries occurred” and had not admitted that either parent could have caused them. She did not want the parents to admit they harmed their child, but to “[a]dmit to how the injuries occurred.” In her opinion, the risk of abuse was still high because the parents did not acknowledge how the child’s injuries occurred.
Burnell never spoke with Kramer and did not know if anyone else from SSA had done so. A prior social worker provided reports to Kramer some time before February 2007 but no one, including Burnell, has since provided Kramer any materials.
Although normally she would speak to the parents’ therapist, Burnell and Kramer had been playing phone tag. After trying unsuccessfully three times over the past year to contact her, Burnell arranged to have Kramer fax her the reports but made no further attempts to contact her. She stated the faxed information was sufficient and that they were “conversing through the reports.” She did not believe Kramer would share information, but she also did not know whether the parents had signed a release authorizing Kramer to talk to her.
Burnell admitted it was important to speak with Kramer and “suppose[d]” she would “want[] to know what . . . Kramer . . . discuss[ed] with the parents in counseling,” specifically if they had discussed the child’s injuries and taken responsibility for how they occurred. She did not attempt to contact her even though she did not understand Kramer’s statement that father took responsibility for the child’s injuries but that the cause and origin was unknown and disagreed with her assessment that the risk of further abuse was low.
Burnell talked to the parents only to verify their attendance at the required classes. She did not know who provided the classes or their content. Nor did she know the purpose of the child abuse program the parents attended or why they were ordered to participate in that.
Kramer testified she was the sole provider of services to the parents, teaching the parenting and child abuse classes and meeting with each one individually for counseling. One of the first things she addressed was whether the parents inflicted the injuries. She expected people to “take responsibility for their actions relative to their unique case,” and rated them at each weekly session on their level of responsibility by giving them a chance to change their story or offer other information. During individual counseling sessions, she explored each parent’s thoughts or beliefs about the medical diagnosis of non-accidental trauma. The parents consistently admitted to being responsible as parents and caretakers for anything that happened to the child, but not to causing the injury or knowing the cause of the injury. They believed the medical diagnosis was wrong and that they had never received an explanation of how the child sustained her injuries.
Because the parents were so consistent, Kramer believed their risk of abusing the child in the future was low. She believed the parents had moved in a healthy way beyond figure pointing and blaming and accepting the reality of the child’s situation and did not feel they needed further individual therapy to address other issues. But she acknowledged the parents still had to address the court’s finding they had caused the injuries and that it was important for them to come to terms with what happened to the child in order to prevent it from happening again.
Kramer knew this was a juvenile court case alleging the parents had inflicted the child’s injuries, that the court had found the injuries had occurred while the child was in their care, and that the medical reports indicated non-accidental trauma. Nevertheless she believed there was a possibility the injuries had some other cause because “[s]ometimes mistakes are made.”
At the parents’ invitation, Kramer attended the child’s one-year-old birthday party because she wanted to observe their interactions with the child and meet the grandparents. She attended in both a personal and professional capacity. She did not obtain authorization from the parents, the social worker, her supervisor, or the minor’s counsel to attend and acknowledged, “[p]erhaps it was not appropriate” since she was the parents’ therapist.
The court found it would be detrimental to return the child to her parents’ care and that reasonable services had been provided to the parents. It terminated reunification services, found the child was not adoptable, and placed her in long-term foster care.
In doing so, the court concluded it was “inescapable” “that either one or both of the parents injured this child and if only one did it or is responsible, the other parent knows that they didn’t do it and that the other parent did.” Because they had not accepted responsibility for causing the child’s injuries, the case was “still at square one.” The parents received appropriate services and the problem was “they were not forthcoming . . . about the circumstances of the case, and that lack of honesty . . . prevented them from benefitting from the services that were offered.” By making it a higher priority to protect each other than the child, the parents lacked judgment and failed to benefit from reasonable services.
The court believed Kramer had “crossed some professional lines” in attending the birthday party, was “enmeshed” with the case, and that her opinion regarding risk to the child was “tainted and biased.” It determined she was not a credible witness and gave her opinion no weight.
The court agreed Burnell “could have done a better job in being more proactive and keeping in better contact with the therapist,” but noted she obtained the reports and provided the information. It rejected the argument that SSA was not specific enough in directing the parents as to what it meant by taking responsibility stating, “Any reasonable person would know what was meant here in terms of accepting responsibility[, which] . . . clearly did not mean just acknowledging that this child was injured while in the sole care and custody of the parents.”
DISCUSSION
Mother and father challenge the court’s finding that reasonable reunification services were provided. Such findings require different burdens of proof depending on whether they were made at the 6-month or 12-month review or at an 18-month review. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) At a 6-month or 12-month review, the finding must be made by clear and convincing evidence and by a preponderance of the evidence at an 18-month review. (Ibid.)
The parties disagree on whether the finding was made at the 6-month/12-month hearing or an 18-month hearing. County counsel argues that “[t]hrough a dint of repeated continuances, the hearing ultimately became the 18-month review hearing” because “[o]n the last date, the event description changed from [6]-month/12-month review to [6]-month/18-month review” and “[t]he next day . . . was 18 months from detention.” But according to the parents, they appealed from a combined 6-month and 12-month review hearing. We agree.
A hearing occurring over 18 months after a child’s initial detention is nevertheless not considered an 18-month review hearing under Welfare and Institutions Code section 366.22 (all statutory references are to this code) where the case has not been continued under section 366.21, subdivision (g)(1) and the court has made no previous finding “at a section 366.21, subdivision (f) hearing, either ‘that there is a substantial probability that the minor will be returned to the physical custody of his or her parent or guardian within six months or that reasonable services have not been provided to the parent or parents.’ [Citation.]” (In re Ricky H. (1992) 10 Cal.App.4th 552, 557, fn. 2.) No such findings or continuance were made in this case and thus there was no section 366.22 hearing. In fact, all parties referred to the hearing as either a 12-month review hearing or a combined 6-month/12-month review hearing and the court itself made its findings under section 366.21, subdivisions (e) and (f), relating to 6-month and 12-month review hearings, and not section 366.22.
Because the appealed order is from a combined 6-month/12-month hearing, the finding reasonable services were provided “must be made upon clear and convincing evidence. [Citation.]” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971 (Alvin R.).) We apply a substantial evidence standard in reviewing the reasonableness of the reunification services provided, viewing the evidence in the light most favorable to the judgment. (Ibid.) If the juvenile court’s finding is supported by substantial evidence, it cannot be disturbed. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
Although “‘[r]eunification services need not be perfect[] . . . they should be tailored to the specific needs of the particular family. [Citation.]’ [Citation.] As this court has previously explained, ‘to make the requisite findings, 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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed).’ [Citation.]” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793-794 (David B.).) In other words, the services must be designed to eliminate the conditions that led to juvenile court jurisdiction, specifically tailored to fit the unique circumstances of the parents, and put the parents on notice as to what must be accomplished to reunite the family. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Precious J. (1996) 42 Cal.App.4th 1463, 1474.)
The parents contend the reunification plan never put them on notice that they had to admit they caused the child’s injuries in order for them to be reunited with their child. The reunification plan did not specifically require that in so many words and Kramer did not focus on addressing that issue but rather treated them with the understanding the injuries were caused by something other than the parents’ physical abuse. They argue this in turn was compounded by Burnell’s failure to have any conversations with Kramer or the parents about what was being addressed in therapy, despite red flags in the report, and Burnell’s lack of knowledge regarding the parenting and child abuse programs. The contention has merit.
In David B., supra, cited by the parents, this court granted a petition for extraordinary relief where the juvenile court had determined the petitioner had received adequate reunification services. The petitioner had received 18 months of reunification services and had done “virtually everything” requested of him (David B., supra, 123 Cal.App.4th at p. 772.) But the juvenile court faulted him for not moving out of a residence he shared with his sister and his family despite the fact he had gone to great lengths to prepare the home for his child at the direction of his social worker. SSA never told him this would be a condition of return of the child and he was not given any assistance in obtaining separate housing. (Id. at pp. 773-774.)
In granting the petition, we noted, “The problem in this case was housing, and it was made short shrift of. [The petitioner] did everything else asked of him to obtain custody of [the child], and there is frankly no reason to presume that if he had been told living with his sister was not an option, he would not have done something about that too.” (David B., supra, 123 Cal.App.4th at p. 795.) Accordingly, we “conclude[d] the services offered to [the petitioner] were inadequate.” (Id. at p. 796.)
Here, as in David B., the parents were lulled in to a false sense they were doing everything necessary to regain custody of their child only to be told the opposite when it was too late to do anything about it. SSA conceded the parents had done essentially everything that had been asked of them in terms of completing all required classes and individual therapy, never missing a class or session. SSA’s own service provider, gave them ratings of “5” (outstanding”) for “Takes responsibility for own behavior rather than denying, minimizing, or blaming” and had high praises for their progress in the programs and individual therapy.
Moreover, the case plan required them to “accept responsibility for [their] actions” (bold omitted) and both parents accepted responsibility for the injuries occurring while the child was in their sole care and custody, although they continued to claim the cause of the injuries was unknown. Neither Kramer nor Burnell ever told them this was not enough. Rather, Kramer believed the parents were progressing healthily beyond finger pointing and blaming and accepting the reality of the child’s situation. Burnell, despite reading and disagreeing with Kramer’s reports, never spoke to Kramer or the parents about the substance of their therapy. As mother argues, if Burnell had, “perhaps the problem could have been corrected before it was too late.”
We decline to presume the parents would not have admitted how the injuries occurred if Burnell had told them that was a condition of the child’s return to their care. We also disagree with the trial court that any reasonable person would have known that accepting responsibility meant more than acknowledging the injuries occurred in their care. Although we must “indulge all inferences in favor of the factual conclusions reached by the trial court . . . those conclusions must be based upon substantial evidence which appears in the record . . . .” (David B., supra, 123 Cal.App.4th at p. 795, fn. omitted.) Here, there was no evidence presented that persons outside the dependency arena would understand that a requirement that one “accept responsibility for your actions” means admitting you caused a child’s injuries.
DISPOSITION
The order terminating reunification services is reversed. The matter is remanded to the trial court with directions to order a minimum of six months of additional reunification services.
WE CONCUR: O’LEARY, J., IKOLA, J.