D.E., Petitioner, v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

O P I N I O N

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's orders issued at a contested and combined 6-, 12- and 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to his daughter D. He contends it was error to find it would be detrimental to return D. to his custody and to find he was provided reasonable services.   As relief, he seeks D.'s return under family maintenance services.   We find no error and will deny the petition.

STATEMENT OF THE CASE AND FACTS

In May 2008, the Fresno County Department of Children and Family Services (department) removed then nine-year-old D. and her eleven- and three-year-old half sisters, S. and J. respectively, from the custody of their mother (mother) and Chad. Chad is mother's husband and J.'s father.   At the time of the children's removal, petitioner's whereabouts were unknown as were the whereabouts of S.'s alleged father.   The whereabouts of S.'s father remained unknown throughout the dependency proceedings.

The children were removed from mother and Chad because Chad disciplined D. by hitting her with a belt.   Her injuries included several bruises to her left forearm, an abrasion and swelling to her right forearm, an abrasion near her left eye, bruising, welt marks and swelling on both her buttocks and left lower back, an abrasion with bruising on her left upper leg and a slight bruise on her right upper leg.   Chad was arrested and ultimately sentenced to six months in jail.   The children were initially placed together in foster care.

The department filed a dependency petition alleging there was a substantial risk the children would suffer serious physical harm because Chad seriously injured D. and mother failed to protect her.   In its report for the detention hearing, the department detailed the family's extensive child welfare history of neglect and abuse beginning in March 1999.   At that time, petitioner and mother were living together and raising S. and D. However, petitioner and mother had a physically violent relationship and, in 2000, they separated.   S. and D. continued to live with mother who used illicit drugs and physically abused the girls.   In July 2004, mother gave birth to J. In 2006, mother contacted Child Protective Services (CPS) for assistance because S. and D. were having behavioral problems at school.   That same year, D. began individual therapy and reported to her therapist that Chad, then mother's boyfriend, hit her on the forehead.   In January 2007, CPS received a referral that mother spanked D. with a belt on her bottom, legs, neck and forearm, grabbed her by the hair and threw her on the kitchen floor causing D.'s nose to bleed.   No marks or bruises were observed on D.'s person and the referral was deemed unfounded for physical abuse.   In March 2008, CPS received a referral that D. was prescribed medication for Attention Deficit Hyperactivity Disorder (ADHD) but was not taking it.   She was also acting out at school and referring to herself as “crazy.”

In its report for the detention hearing, the department also informed the court that petitioner had felony arrests and convictions for crimes including robbery and spousal abuse and misdemeanor driving under the influence.   The department located petitioner who was living in Sacramento and a social worker spoke to him by telephone.   He acknowledged his criminal history and admitted not having contact with D. for several years but requested custody of her.

On June 23, 2008, the juvenile court conducted the detention hearing, ordered the children detained and set a contested jurisdictional hearing, which was continued and conducted on August 6, 2008.   Meanwhile, petitioner appeared at the hearings on August 4 and 5, 2008, and was appointed counsel.

On August 6, 2008, the juvenile court adjudged the children dependents and ordered the department to offer petitioner parenting and anger management classes, substance abuse, mental health and domestic violence evaluations and any recommended treatment and random drug testing.   The court also granted the department discretion to arrange unsupervised visits between petitioner and D. and set the dispositional hearing for October 2008.

In its dispositional report, the department stated petitioner had not contacted the department to request supervised visits with D. or indicated any desire to participate in reunification services.   In addition, D. was very bonded to her siblings and her mother and had not seen petitioner for over seven years.   Consequently, the department did not recommend placing D. with petitioner.

The dispositional hearing originally scheduled for October 2008 was continued and conducted in June 2009.   Meanwhile, petitioner completed his evaluations and was referred for intensive outpatient substance abuse treatment, a 52-week batterer's treatment program and individual therapy.   In June 2009, he completed a six-month outpatient substance abuse program.   He drug tested as part of the program and tested negative.   He also began a domestic violence program in May 2009.   He visited D. once or twice monthly in Fresno under the supervision of the department.

Also during this interim period, D. was placed in a foster home separate from her sisters.   In addition, she was exhibiting problematic behaviors at school such as pinching, biting and hurting other students without provocation;  expressing paranoid thoughts that others looked down on her;  engaging in verbal outbursts, temper tantrums and loud crying;  being defiant and inattentive;  and injuring herself.

In June 2009, at the dispositional hearing, the juvenile court ordered reunification services for petitioner, mother and Chad. Petitioner's services consisted essentially of those already ordered and unsupervised visits with discretion for liberal visits.   The court set the 6-, 12- and 18-month review hearing (combined hearing) for November 2009.   In July 2009, petitioner began unsupervised visitation.

In October 2009, the juvenile court conducted an interim hearing to review visitation, including petitioner's request for liberal visits with D. at his home in Sacramento.   Prior to the hearing, the department filed an interim review report recommending no change in petitioner's visitation order, which was unsupervised and weekly.   The department's recommendation was based on input from D.'s therapist who reported that D.'s behavior had escalated to the point that she was admitted to a psychiatric crisis unit three times in September and October 2009 for being a danger to herself.   Each time, D. ran from her foster home and into the street, sometimes in front of traffic.   She was also suspended from school for leaving the campus and was about to be placed in her seventh foster home placement in 18 months.   Her therapist did not believe that a change in visitation was advisable given the severity of D.'s emotional problems and the other changes present in her life.   The department also reported that, while D. enjoyed visiting petitioner, she wanted to return to her mother.

At the interim hearing in October 2009, the juvenile court ordered no change in visitation between petitioner and D. but ordered the department to evaluate the possibility of liberal visits between petitioner and D. at petitioner's home.

In November 2009, the department filed its report for the combined hearing, informing the court that petitioner was participating in his services plan with the exception of mental health treatment, which he did not believe he needed.   In addition, he and D. enjoyed their visits and petitioner appeared to control her well.   However, the department did not recommend progressing to liberal visitation based on the instability in D.'s life and concerns about petitioner's criminal history and refusal to participate in mental health therapy.   The department recommended the court return S. and J. to mother and Chad's custody, terminate reunification services for mother and petitioner as to D., and order D. into long-term foster care.

On November 17, 2009, the juvenile court convened the combined hearing and set it as a contested hearing in December 2009.   The court also placed S. and J. with mother and Chad under family maintenance and ordered the department to arrange liberal visits for petitioner in the interim.   On December 9, 2009, the juvenile court continued the hearing to January 2010 and ordered the department to assess petitioner's home and set up a liberal visit with D. by December 22, 2009.

On January 15, 2010, the juvenile court convened the contested combined hearing and heard testimony on that day and on February 5, 2010.   Social worker Vickie Klassen testified that petitioner completed all his services except the batterer's treatment program and mental health counseling.   She said the department was prepared to arrange liberal visitation for petitioner in October 2009 and offered to arrange them in Fresno at an emergency housing apartment, but petitioner declined, insisting that the visits occur at his home in Sacramento.   After he declined the department's offer, Ms. Klassen pursued liberal visitation in Sacramento by asking the social services department in Sacramento to assess petitioner's home and by seeking clearance from D.'s therapist.   Petitioner's home was approved in late December 2009 and he had his first visit in that month.   Minor's counsel asked Ms. Klassen why it took from November 2009 when the juvenile court ordered liberal visits to December to arrange one.   She said she had difficulty coordinating a home assessment through the Sacramento office so one of the Fresno social worker's assessed petitioner's home.

Petitioner's attorney asked Ms. Klassen what supportive services were provided to petitioner to prepare him to emotionally handle D. She testified the department provided him a parenting class and referred him for individual therapy.   Conjoint therapy was an additional service that could be made available to petitioner and D. in Sacramento.   She said D. was participating in conjoint therapy in Fresno.   Asked why petitioner was not included in conjoint therapy with D., Ms. Klassen said she asked D.'s therapist two to three times in the previous six months to consider including petitioner in conjoint therapy with D. when appropriate but the therapist had not requested or suggested it.   She testified such services could have been arranged in Fresno during petitioner's visits with D. However, she also testified petitioner's visits were on Sundays when services were not generally available.   In addition, petitioner stated the visits were going well so Ms. Klassen did not perceive an immediate need for conjoint therapy.

Petitioner's attorney also asked Ms. Klassen if petitioner was offered parenting instruction geared toward D.'s special needs.   She said the department provided petitioner a general parenting class and she did not know if it addressed children with special needs.   She said such programs were available in Fresno, but she did not inquire if such a parenting program was available in Sacramento.

Ms. Klassen also testified petitioner's liberal visitation with D. seemed to have gone smoothly, but she did not believe D. could be immediately placed with petitioner.   Asked whether D. would be able to function normally if permanently returned to petitioner's custody, Ms. Klassen stated it was too early to say and she did not know if she could provide an opinion.   However, she believed it was possible.

Finally, Ms. Klassen testified that D.'s school performance was deteriorating and that her problematic behaviors were increasing.   In addition, D.'s foster mother reported that D.'s behavior at home was very challenging and D. required a lot of patience.

Petitioner testified he had difficulty maintaining contact with D. after he and mother separated either because he could not locate mother or mother's parents prevented him from having contact with D. He also explained why he did not participate in mental health counseling.   He said he called to schedule a mental health assessment but was told by someone at the facility that he first had to admit having a problem to receive services and that a “court referral” was not sufficient.   He said he did not think he had a problem.   He further testified that overnight visits with D. had gone well.   He never felt her behavior was so out of control that he could not handle her.   He said he was employed and if D. were returned to his custody, he would place her in a special needs school while he worked.

Petitioner also testified about his criminal history in response to questions by the juvenile court.   He testified he was convicted of armed robbery and second degree robbery in 1996, infliction of corporal injury on mother in 2000, driving under the influence, and a charge of force with great bodily injury (GBI) in 2007.   Petitioner explained the GBI involved his cousin who got a restraining order against him.   However, petitioner explained his cousin recanted his accusation and he believed the charges would be dropped.

Following testimony, the juvenile court ordered a psychological evaluation to address whether D.'s emotional deterioration was caused by foster home placement or whether it was the natural progression of her original trauma.   The court ordered the evaluation to be completed by May 3, 2010, and continued the hearing until May 14, 2010.

Dr. Robert C. Taylor, Ph.D., conducted D.'s psychological evaluation.   He opined that D.'s acting out behaviors were caused primarily by pre-existing biological, emotional and familial factors, including the physical abuse that necessitated her removal from mother's custody.   He also found D.'s symptoms to be characteristic of bipolar disorder and provisionally assigned her that diagnosis in addition to her other diagnoses.

In an addendum report for the May 2010 hearing, the department reiterated its recommendation that the juvenile court terminate reunification services for mother and petitioner and transfer D. into long-term foster care.   The department stated D. was doing well with her foster mother and making exceptional progress.   By placing D. in foster care, petitioner and mother would continue to have liberal visits and could progress to extended visitation and family maintenance if appropriate.

On May 14, 2010, the juvenile court reconvened the combined hearing and advised the parties it had received Dr. Taylor's psychological evaluation.   Following argument, the juvenile court found that the department provided reasonable services to the parents and found mother's progress significant and petitioner's progress moderate.   The court further found it would be detrimental to return D. to the custody of either parent, terminated reunification services and set a section 366.26 hearing.   This petition ensued.²

DISCUSSION

A. Detrimental Return

Petitioner contends he made significant rather than moderate progress in his court-ordered services.   He further contends there was insufficient evidence he posed a risk of harm to D. Consequently, he argues, the juvenile court erred in finding it would be detrimental to return D. to his custody.   We disagree, concluding substantial evidence supports the juvenile court's finding.

At the 18-month review hearing, the juvenile court must return the child to parental custody unless the court finds, by a preponderance of the evidence, that the child's return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.22, subd. (a).)  The failure of the parent to participate regularly and make substantive progress in court-ordered services constitutes prima facie evidence that return would be detrimental.  (Ibid.)

Petitioner argues he completed all the services that were required of him.   He contends batterer's treatment was never a court-ordered service and, as to mental health treatment, he did not believe it was necessary unless he thought he had a problem.   Therefore, he claims, he was not resistant to mental health treatment and should not be penalized for not participating in it.   However, the appellate record does not support petitioner's claims.   He was court-ordered to complete a batterer's treatment program, a fact the juvenile court confirmed during the review hearing.   He was also ordered to participate in a mental health assessment and treatment recommended as a result of the assessment.   His failure to do so constitutes prima facie evidence of detriment and provided a sufficient basis to support the court's finding of detrimental return.

Further, technical compliance with a services plan, though important, does not guarantee the child will be returned to parental custody.  (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)   Ultimately, “the question whether to return a child to parental custody is dictated by the well-being of the child at the time of the review hearing;  if returning the child will create a substantial risk of detriment to his or her physical or emotional well-being [citations], placement must continue․”  (In re Joseph B. (1996) 42 Cal.App.4th 890, 900.)

In this case, the risk to D. stemmed from her severe emotional disturbance and instability.   As Dr. Taylor stated:  “She appears to be [a] volatile emotional time bomb in desperate need of consistent external structure.”   Further, her condition was deteriorating, she was self-injurious and she was showing signs of bipolar disorder, a very serious psychiatric condition.   Consequently, D. required, at a minimum, a stable and consistent environment and there is little evidence petitioner could provide such an environment.   Rather, the evidence reflects he absented himself from D.'s life when she was very young and he maintained virtually no involvement afterward.   As a result, D. enjoyed visiting petitioner but was not strongly bonded to him.   In addition, petitioner's criminal history of assaultive behavior and his unwillingness to participate in mental health treatment raised questions about his temperament and emotional stability.   Under the circumstances, we find no error in the juvenile court's finding of detriment and affirm it.

B. Reasonableness of Services

Petitioner contends the department's efforts to provide him conjoint therapy and parenting classes to address D.'s special needs were inadequate as were its efforts to increase his visitation.   Therefore, he argues, the department failed to provide him reasonable services and the juvenile court erred in finding that it did.   We disagree, concluding substantial evidence establishes otherwise.

The reasonableness of reunification services is judged according to the circumstances of the particular case and assessed by its two components-content and implementation.  (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1362.)  “[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult․”  (In re Riva M. (1991) 235 Cal.App.3d 403, 414;  italics original.)

In this case, petitioner's services plan did not include parenting classes designed for special needs children and conjoint therapy.   Further, petitioner did not challenge the adequacy of the content of his services plan.   By failing to challenge the plan content by direct appeal, petitioner cannot now claim that the plan as ordered was inadequate or unreasonable because it did not include those services.  (In re Julie M. (1999) 69 Cal.App.4th 41, 47.)

That said, we recognize that circumstances change over the course of dependency proceedings, occasionally requiring the department to modify the services plan in order to facilitate reunification.   However, petitioner bears the burden on appeal to show that the department was unreasonable in not modifying his services plan to incorporate specialized parenting classes and conjoint therapy.   We conclude petitioner failed to meet his burden.   He does not, for example, show that the parenting class he took did not address parenting special needs children.   Further, he does not show how completing such a course would have furthered his ability to reunify with D. As to conjoint therapy, the decision to include petitioner in conjoint therapy rested with D.'s therapist who, despite several inquiries by Ms. Klassen, declined to do so.   Clearly, petitioner's access to conjoint therapy was beyond Ms. Klassen's immediate control and petitioner fails to show how her efforts to facilitate therapy were inadequate.

Finally, with respect to visitation, we conclude petitioner acquiesced to the visitation as ordered and, in any case, fails to show how the department was unreasonable in arranging visitation as it did.   According to the appellate record, petitioner's visitation order was for supervised visitation until June 2009 when the court ordered unsupervised visitation with departmental discretion to arrange liberal visitation.   In July 2009, petitioner had his first unsupervised visit with D. In October 2009, the juvenile court ordered no change in petitioner's visitation.   In essence, the juvenile court denied his request for liberal visitation, at least at that time.   At no time, did petitioner file a section 388 petition asking the court to modify visitation or directly appeal any of the juvenile court's visitation orders.   Consequently, he waived the right to challenge the court's orders for supervised and unsupervised visitation.  (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.)   Further, Ms. Klassen explained that it took until December 2009 to arrange petitioner's first liberal visit because the Sacramento social services office was unable to assess petitioner's home and petitioner failed to show that any delay was unreasonable.   In our view, the visitation provided by the department was not unreasonable but appropriate to petitioner's progress and D.'s emotional state.

In summary, we conclude petitioner failed to meet his burden on appeal of showing that the department was unreasonable for not offering him specialized parenting classes and conjoint therapy and for not advancing him sooner to liberal visitation.   Consequently, we find no error in the juvenile court's reasonable services finding and will deny the petition.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Mother did not file a writ petition..  FN2. Mother did not file a writ petition.