California Cases August 12, 2022: J.T. v. Superior Court

Case Description

1

NOT TO BE PUBLISHED

(Sonoma County Super. Ct. No. DEP6104)

TUCHER, P.J.

J.T. (Father) petitions this court for extraordinary relief after the juvenile court terminated reunification services with his daughter, Leann G., and set a hearing pursuant to Welfare and Institutions Code section 366.26. Father contends that he did not receive adequate reunification services and that Leann should be returned to his care. We deny the petition on the merits.

2

FACTUAL AND PROCEDURAL BACKGROUND

I. First Appeal

We are familiar with the background of this case through this division's review of two prior appeals, In re L.G. (Aug. 30, 2021, A161341) [nonpub. opn.] and In re Leann G. (Dec. 27, 2021, A162023) [nonpub. opn.]. We quote here at length from our opinion in Leann G . : "Leann did not see a dentist until she was five; when she did so in the summer 2019, the dentist determined she had six cavities and three teeth in need of extraction. Father did not arrange for her teeth to be treated, believing the [teeth with] cavities 'would just get infected and fall out on their own.' By January 26, 2020, Leann had a swollen cheek as a result of an abscessed tooth; Father's lack of cooperation caused the cancellation of two appointments to extract the tooth, although the dental surgery center concluded she could develop sepsis if her teeth were not treated.

"Father refused to discuss Leann's dental care with the Department and failed to attend a team decision-making meeting scheduled for February 13, 2020, and a few days later the Department filed a dependency petition (§ 300) alleging Leann had suffered or faced a substantial risk of physical harm or illness due to Father's failure to provide proper dental care.

"The Department reported that the dental surgery center was willing to treat Leann on condition that Father be ordered to stay away, due to the' "eruptive anger"' he had displayed in the office. Father reportedly scheduled an appointment with another dentist for April 2020. On July 13,

3

Leann had an emergency procedure on an infected tooth. Later that month, her dentist discovered she now had cavities in 11 teeth, and an appointment to extract an infected tooth was scheduled.

"The juvenile court sustained the petition on August 14, 2020, citing, among other things, Father's 'long-standing refusal to cooperate with the [D]epartment in any way.'

"In August 2020, the dentist was unable to treat Leann because, despite the use of nitrous oxide, she screamed and blocked her mouth with her hands, and she was referred 'to UCSF and Oakland Children's Hospital.' Father took Leann to a dental appointment in Oakland in early September and advocated for the use of nitrous oxide. An appointment was scheduled for September 25.

"At the September 15, 2020 dispositional hearing, the court noted the worsening condition of Leann's teeth and Father's failure to obtain dental care adequate to address her dental health. Under the dispositional order, Leann remained in Father's custody with family maintenance services and the court gave the Department authority to make decisions regarding Leann's dental care. Father appealed the jurisdictional and dispositional orders, and on August 30, 2021 this court affirmed them.

II. Second Appeal-Supplemental Petition

Procedural Background

"The Department filed a supplemental petition on November 9, 2020 alleging Father continued to fail to provide Leann, then seven years old, with proper dental care, that he failed to bring her to scheduled appointments arranged through UCSF, and that neither the clinic nor the Department had succeeded in contacting Father. The petition alleged that Leann's dentist had told the Department she had several cavities that required crowns and

4

fillings, that at least one tooth needed to be extracted, that the situation was urgent and could lead to facial swelling or an abscess that could cause pain or trouble eating or sleeping, and that the swelling had the potential to block her airways. The Department sought to have Leann removed from Father and placed in foster care.

"The juvenile court detained Leann on November 10, 2020. On December 8, the Department filed an amended supplemental petition alleging in addition that Father had 'demonstrated a pattern of volatile, aggressive, and evasive behavior' that put Leann at risk of serious harm and placed her in fear of him, on multiple occasions he had not allowed the Department or law enforcement to have access to Leann, he deliberately absconded with her to a motel on November 10, 2020 knowing he was to surrender her to the Department, and there had been multiple reports of 'extreme aggression including yelling at Leann and his partner in the home, [and] multiple reports of throwing objects and hitting the walls while in the presence of the child, causing the child to hide in her room and be afraid of her father.'

Evidence at Hearing on Supplemental Petition

"The Department's reports and the testimony at the December 21, 2020 contested hearing showed that Father took Leann to a dental appointment on September 25, 2020, but the clinic could not complete the work because he refused to allow anesthesia. According to her dentist, her need for treatment was 'urgent, but not emergency': if not treated, the swelling could increase, leading to blocked airways and trouble eating or sleeping. Father did not bring Leann to scheduled [dental] appointments [in October and November 2020].... [¶] . . . [¶]

5

"Police officers went to the home on November 4, 2020 after a neighbor called saying Father was yelling at his daughter while throwing objects and hitting walls. When they arrived, Father did not open the door in response to their knocking and announcing themselves as police, and they saw through a window that Leann was lying down and pretending to be asleep. A neighbor reported on November 11 that Father behaved unpredictably and had been heard yelling at Leann, hitting walls, and throwing objects and that Leann often cried while Father yelled obscenities at her. Leann later told the social worker that Father . . .' ". . . always gets mad and he yells a lot,"' and she would hide in her' "tent"' on her bed when Father was yelling or her parents were fighting.

"At a hearing held by video on November 10, the juvenile court ordered Leann detained, and Father left the hearing early, before the next court date was confirmed. That day, the social worker contacted Father and told him when she would pick Leann up. Father asked for an additional hour to allow Leann to say goodbye to neighbors, and the social worker agreed. When she arrived at Father's house with a police officer at the appointed time, no one was there. She made contact with Father, and he asked for more time; the social worker agreed, but he never arrived. The next day, November 11, Father's girlfriend was seen walking out of a store with Leann and told law enforcement that Father had told her the previous day (i.e., November 10, the day of the video hearing at which Leann was ordered detained) that they needed to stay somewhere else and they then got a motel room. Leann later told the social worker Father had 'surprised' her with a trip to a motel when he got off the computer, packed their belongings, and told her they would stay at the motel for a month.

6

".... By early December 2020, Leann's teeth were being treated at two clinics, and the Department and Leann's caregivers were arranging to schedule further treatments, which would include at least one extraction and multiple crowns and fillings. One of the dental clinics was willing to treat her only if Father was not allowed to attend the appointment because he had threatened staff, causing them to fear for their safety. [¶] . . . [¶]

Juvenile Court ' s Ruling

"In a December 21, 2020 order, the juvenile court sustained the allegations of the supplemental petition by clear and convincing evidence .... The court found that placement with Father had been ineffective in protecting Leann, removed her from Father's custody, and ordered reunification services for Father." [We end our quotation from the opinion in Leann G .]

Six-Month Review

Before the six-month review, the Department reported that Leann said she loved being in her current placement in a maternal relative's home, but she missed Father. She was behind in all academic areas, but she had been steadily improving since being placed with her current caregivers.

The Department had made multiple attempts between December 2020 and April 2021 to contact Father to arrange services, but he did not respond until April 19, 2021. After initially refusing to give the social worker permission to send in referrals, Father gave authorization to do so on April 29, 2021. He had had a meeting for parenting education and made an appointment with a counseling center for a psychological evaluation.

On August 5, 2021, the juvenile court continued Leann in out-of-home placement, finding that return to Father would create a substantial detriment, that reasonable services had been provided or offered, and that

7

Father had failed to participate regularly and make substantive progress in his reunification services. Father was advised that if Leann could not be returned home by the next review hearing, a hearing to terminate parental rights pursuant to section 366.26 could be instituted and that in no event would services be extended beyond May 11, 2022.

III. Current Appeal-12-Month Review

December 2021 Report

The 12-month review hearing was originally scheduled for December 16, 2021. The Department recommended that reunification services be terminated and a hearing pursuant to section 366.26 be set.

The Department reported that Father had been maintaining fairly consistent contact, but that he had not completed his case plan goals. He had been referred to NOVA, a domestic violence program, but had not yet made contact with it. Father reported that he called the domestic violence service provider four times and was unable to get through; NOVA reported that it tried unsuccessfully to reach Father. Father's psychological evaluation suggested that although individual therapy was not likely to be effective because of his diagnosis of narcissistic personality disorder, therapy was recommended if he were willing to participate and "take accountability." Father was provided a referral and a list of therapists, but since providers were in short supply he was also encouraged to arrange therapy through his health insurance. He had been attending parenting education and was fully engaged in those sessions.

Father had visited consistently with Leann from June to August 2021. The visits became less consistent because he was frequently away visiting his ill grandmother. Visits switched from lightly supervised to unsupervised.

8

Leann had told her therapist about Father yelling and hitting her, which caused her to feel frightened and hide in her room. She said she wanted to see Father more often, but she did not say she wanted to move back in with him. She told the social worker that, in order for her to feel safe in Father's care, she would like him to stop yelling at her and hitting her, and that she enjoyed visits with him but did not want to live with him.

April 4 , 2022 Hearing

The hearing was continued, and a contested hearing took place on April 4, 2022. The Department reported that Leann again said on March 17, 2022 she would need Father to stop yelling all the time and fighting with his partner to feel safe in his care. Father denied that he had ever hit Leann, although he admitted he yelled and sometimes argued with his partner. He said that he was working on not yelling so much and that he had started an online anger management course because he had not been able to contact NOVA, the domestic violence program to which the Department had referred him. A staff member at the NOVA program told the social worker she had left several messages for Father but did not hear back from him until March 14, when they were unable to speak because of a poor phone connection.

The social worker testified that in approximately June 2021, after the psychological evaluation, she asked Father to sign an additional release of information so she could make a referral for therapy, but he did not return the signed form until August 31. There was a waiting list for therapists, and the first time a therapist had an opening for Father was in late December 2021. The social worker referred Father to the therapist, but as of the date of the hearing more than three months later, Father had not yet contacted the therapist.

9

The NOVA program to which Father had been referred was a 52-week domestic violence program, with weekly sessions of one and a half or two hours, held over Zoom, with the participants interacting with each other. The social worker told Father in mid-November that it was imperative he start the program and that if he did so she would reconsider her recommendation that reunification services be terminated. Father engaged instead in a 16-hour online program that did not include feedback or interaction with other participants. Although the social worker thought the program was helpful, she did not consider it an adequate replacement for NOVA. When the social worker spoke with Father two weeks before the hearing, he did not acknowledge that his problems with anger affected Leann.

The social worker did a "safety house" assessment, to determine whether Leann thought Father would be safe in a house with her, and Leann indicated it would not be safe to have him in the house. She also told the social worker she was afraid that if she returned to Father's care, she would not be able to keep in contact with her maternal half-siblings. Her therapist thought Father was "secondary" to Leann.

Father testified that he began trying to contact NOVA in April or May of 2021, but that the program delayed responding to his voicemails and he was unavailable to answer the phone when it did so. He went to NOVA's office once, but no one was there. He had recently made contact with a NOVA employee and had received documents to enroll in the program. He had asked the social worker for a list of therapists the county would approve. He had attended anger management, domestic violence, and parent education classes on-line at his own expense. He had not attended therapy; the social worker assigned to the case had told him this would not be held

10

against him because no therapist had been provided to him. He testified he was willing to do whatever was necessary to avoid losing Leann.

Father denied that he had ever hit Leann, although he had spanked her and yelled, and he denied having punched a wall in front of her.

By the time of the 12-month hearing, almost 18 months had passed since Leann was removed from Father. At the close of the hearing, the court allowed Father a further five weeks to progress with his case plan before ruling. It admonished Father that it would terminate services unless, at the time of the continued hearing, he was enrolled in and had completed three or four NOVA classes and he had been in therapy at least once a week.

May 4 , 2022 Hearing and Ruling

The Department submitted another report on April 29, 2022. Father had completed his intake to attend his first session with the NOVA program. A representative of NOVA told a social worker that a requirement for beginning treatment was that the participant be open and honest about the reason for the referral to the program. In his intake, Father mentioned only a confrontation with the first dentist, who he believed reported Leann to the Department. He did not reveal any other reasons for the domestic violence referral, such as aggressive behaviors in the home. The NOVA representative said it was "worrisome" that Father did not disclose that information and did not take accountability for his actions.

According to Leann's caregiver, Leann had been increasingly distraught and worried about what would happen to her. She said that she wanted to stay in her current home and that she knew she would be able to see her family and Father while living there. She also expressed fear that Father had not changed.

11

The juvenile court terminated reunification services and set a hearing pursuant to section 366.26 for August 24, 2022. Before doing so, it found there was a substantial risk of detriment in returning Leann to father. The court noted that Leann had been removed from Father on November 6, 2020 after he had made no progress in family maintenance; that Leann was afraid of Father because of his "substantial anger problem," manifested by throwing things, yelling, and domestic violence against his girlfriend; that Father had not met any of the domestic violence programming objectives; that when recently asked the reason for the referral by NOVA's program director, he referred only to a confrontation with Leann's dentist; that he had been aggressive and offensive with the social workers; that he did not communicate with the social worker; that he had not cared for Leann's dental health; that he had shown himself unwilling to take responsibility for his actions; that he had been "evasive" during the dependency, and that he had failed to make progress in his case plan. The court explained that, due to Father's diagnosis of narcissistic personality disorder, it did not think Father had the ability to make the necessary changes unless he engaged in extensive therapy and was willing to make meaningful changes to his behavior. And, the court stated, he had not done so during the time the Department assisted him. In light of Father's unaddressed history of domestic violence and Leann's fear of him, the court concluded, Leann could not be returned to him safely.

Father's counsel then told the court that after the last hearing, Father immediately dropped off his NOVA application. Both Father and counsel had made efforts to get in touch with NOVA, counsel by leaving multiple voice mail messages and emails, and Father by leaving "multiple voicemails . . . every day." NOVA took two weeks to call back, and the first appointment

12

could not be scheduled until April 28, the second being scheduled for the day of the May 4 hearing. Father had had one session with the therapist, and had another scheduled for May 4.

The court replied that this information did not change its ruling, saying, "It's taken far too long and I made the ruling based upon a lot of thought and review of the entire file and the record." It also noted that Father had not been forthcoming with NOVA about the reasons for the domestic violence referral.

DISCUSSION

I. Reunification Services

Father's first contention is that he was not offered reasonable reunification services.

When a child is removed from parental custody, the juvenile court must, with exceptions not at issue here, order reunification services. ( In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) Parents are generally entitled to 12 months of reunification services (§ 361.5, subd. (a)(1)(A)), but that period may be extended to 18 months if the court finds there is a substantial probability the child will be returned and safely maintained in the home within that extended period or that reasonable services have not been provided (§ 361.5, subd. (a)(3)(A)). The reunification period may be extended a further six months, to 24 months, if the court finds that the extension is in the child's best interest and there is a substantial probability of return within that period, or that reasonable services have not been provided. (§ 361.5, subd. (a)(4).)

Consistent with these standards, the supervising agency must make a good faith effort to provide services that respond to a family's needs through a plan that is specifically tailored to fit the family's circumstances and

13

eliminate the conditions leading to the jurisdictional finding. ( In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451.) This standard is met if the 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 Precious J. (1996) 42 Cal.App.4th 1463, 1474-1475.) However, the services need not be perfect, and in most cases more services might have been provided. ( Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 ( Elijah R. ).) "The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." ( Ibid .)

A finding of reasonable services must be made by clear and convincing evidence. ( In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We review a finding that reunification services were adequate for substantial evidence, considering whether there is evidence, contradicted or uncontradicted, supporting the juvenile court's determination, and bearing in mind the heightened standard of proof. ( Ibid .; Elijah R. , supra , 66 Cal.App.4th at p. 969.)

Father contends the services offered him were not tailored to the circumstances of the case because his psychological evaluation stated he would not be amenable to therapeutic services, but the Department required such services nonetheless. We are unpersuaded by this contention. First, Father did not object to the therapy requirement in the juvenile court or ask to have it removed from his case plan, thus forfeiting his objection. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) And on the merits, although the evaluation indicated Father's unwillingness to change meant that he would

14

likely not be a good candidate for therapy, this does not show therapy was an inappropriate component of Father's services or that he could not benefit from it if he became willing to acknowledge and address his problems. Indeed, the need for Father to take responsibility for his own behavior to be able to reunify with Leann applied not only to participation in therapy but also to domestic violence services. The problem in this case was not that Father participated in therapy and found it ineffective, it was that he did not engage in therapy at all.

The juvenile court's comments at the hearings are not to the contrary. At the end of the April 4, 2022 hearing, after telling Father it would allow five additional weeks for him to engage in services, the court continued, "I don't know if you are capable of doing what is suggested because of your personality disorder. That is not going to concern me in terminating . . . your parental rights, if you don't get off the dime and do something now." In terminating services, the court stated, "Due to his diagnosis of narcissistic personality disorder, the Court believes that [Father] does not have the ability to make these changes unless he is able to engage in extensive therapy and unless he has a willingness to work on his issues to make meaningful changes in his behavior. That has not happened in the year he's been assisted by the Department." Father faults the juvenile court for these comments, suggesting it misunderstood the standard for reasonable services. We see nothing improper in the court indicating that Father needed to show himself willing to address the problems underlying the dependency in order to reunify with Leann.

The record supports the juvenile court's finding that the Department provided reasonable services. Father points to delays gaining access to a therapist, but most of those delays were caused by Father's own inaction.

15

Father ignored the Department's multiple efforts to contact him from December 2020 until April 19, 2021 to arrange services. He was out of contact with the social worker between June 8, 2021 and August 30, 2021 and did not return the authorization for a referral to therapy until August 31. The delay between then and December 2021 was the result of a shortage of therapists, for which Father was not responsible. But the social worker referred Father to a therapist on December 21, 2021; by the morning of the April 4 hearing, almost three and a half months later, Father had still not contacted the therapist. Despite the temporary delay in finding an available therapist once Father returned the authorization form, the record of the entire course of the dependency supports the juvenile court's finding Father was provided with reasonable services.

Father also argues the inadequacy of his services is shown by the difficulty of contacting NOVA for domestic violence services, but again, the record shows Father himself was responsible for much of the delay in making contact. After failing to respond to the social worker's efforts to contact him from December 14, 2020 onward, Father finally spoke to her on April 19, 2021, and he did not authorize referrals until April 29, 2021. The social worker sent a referral to NOVA less than a week later and provided a contact number on May 17, 2021. Father's subsequent efforts to contact NOVA can at best be described as desultory. It appears he tried to call the NOVA director once or twice on April 22, 2021 and twice on May 27, 2021, and he did not make any further efforts to contact NOVA. NOVA's director told the social worker on June 30, 2021 that Father had not been in contact but she would reach out to him again. When she called, Father's number was disconnected. On November 18, 2021, the social worker strongly encouraged Father to make contact with NOVA so he would remain eligible for receiving

16

services, but almost two weeks later, on November 30, 2021, NOVA told the social worker Father had not been in touch. On March 15, 2022, NOVA's representative told the social worker that Father had reached out to the program just a few days earlier, on March 10, and that she left several messages for him but did not hear back from him until March 14. The NOVA representative tried to speak with Father on the phone on March 14, but the connection was poor, and when she tried to call back she got his voicemail. She tried to reach Father again on March 15 and left a message. Father points to his testimony that he left multiple messages with NOVA to try to enroll but their responses were delayed, and to the evidence of the program's limited office hours. But in light of the evidence of Father's delays in contacting NOVA and his unresponsiveness to the program's efforts to reach him, the juvenile court could reasonably conclude he had an adequate opportunity to enroll in the NOVA program and failed to make use of it.

Father's counsel's comments at the conclusion of the May 4, 2022 hearing do not persuade us otherwise. Counsel told the court he and Father had made multiple attempts to contact NOVA after the April 4, 2022 hearing but Father did not receive a phone call back for two weeks, and that Father attended an appointment as soon as one was available. While this delay was unfortunate, it occurred only after Father had been offered, and had failed to avail himself of, almost a year and a half of services. And the court emphasized that, even at that late date, Father told NOVA that he needed domestic violence treatment because of an incident with a dentist, omitting any mention the anger and domestic violence in his home that were the basis of Leann's fear of returning to his care. Even in light of this new information, the juvenile court could reasonably conclude both that Father was offered

17

reasonable reunification services and that Leann could not safely be returned to him.

Father also points to the juvenile court's indication that it was unsure whether he would be able to make the necessary changes in light of his narcissistic personality disorder. These comments, he argues, violate the principle that a parent's mental illness per se does not necessarily cause detriment to a child. (See In re Joaquin C. (2017) 15 Cal.App.5th 537, 563564.) But the court's comments as a whole show it based its ruling, not on Father's diagnosis, but on the detriment his behavior caused to Leann and on his failure to participate in the case plan.

Recognizing that the 18-month mark from removal from his custody had nearly passed at the time of the court's ruling, Father argues the reunification period should be extended because his failure to progress in his case plan was caused by "an external force over which [he] had no control" ( Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1389) justifying an aberration from the normal statutory timeline for the provision of services. The facts we have recited above belie this contention, and we reject it.

Father also argues further reunification services beyond 18 months would be in Leann's best interest. If reasonable services have been provided, the services may be continued up to 24 months only if the court finds that the extension is in the child's best interest and there is a substantial probability the child will be returned to parental custody within that time period. (§ 361.5, subd. (a)(4).) The court could reasonably find neither of these requirements were met, that is, that delaying a decision that would bring permanency for Leann in order to allow Father to continue receiving services was not in her best interest because she would not likely be returned to his custody during those next months. We recognize that Leann misses Father

18

and wishes to continue her relationship with him. But the record also shows she does not want to live with him, that she feels she would not be safe in his care, that she was feeling "increasingly distraught" and worried about where she would live, and that in 18 months Father failed to make substantial progress in the case plan designed to assist him with the problems of anger and domestic violence. This record does not compel a conclusion either that further delay in permanency would be in Leann's best interest or that there is a substantial probability she could safely be returned to Father in the extended period.

II. Immediate Return to Father's Care

Father argues that he has substantially complied with his case plan and ameliorated the conditions leading to Leann's removal, that he is amenable to any services the Department suggests, and that Leann should be returned to his care. His compliance with his case plan, he contends, is shown by his communications with the social worker; his participation in the psychological evaluation; his completion of a parenting class; his efforts to reach NOVA and his completion of an on-line anger management course; his last-minute enrollment with a therapist; and his expressed willingness to participate in further services. Based on this, he argues, the evidence is insufficient to support a finding Leann could not safely be returned to his home.

We are, of course, bound by the rule that it is the job of the trial court, not the appellate court, to assess the credibility of witnesses, weigh the evidence, and draw reasonable inferences. ( In re Maya L. (2014) 232 Cal.App.4th 81, 104, fn. 6.) Notwithstanding the portions of the case plan Father did complete, the evidence provided by the Department of Father's minimal efforts to engage in the NOVA program and in therapy supports a

19

finding that he failed adequately to progress in the elements of his case plan designed to address domestic violence. There was sufficient evidence to support a conclusion that Father had not adequately addressed the problems underlying the dependency and that Leann could not yet safely be returned to his care.

Nor are we moved by Father's argument that the conditions initially leading to the dependency-Leann's dental health problems-have been eliminated. As early as November 2020, the dependency expanded to include allegations that Father demonstrated a pattern of volatile and aggressive behavior in the home, causing Leann to hide in fear. We decline Father's invitation to ignore this later basis for jurisdiction in considering whether he ameliorated the problems underlying the dependency.

We recognize that Father loves Leann. But the statutory scheme the Legislature has drawn provides only a limited period for a parent to address the problems that cause a child to be removed. As our high court has explained, "[c]hildhood does not wait for the parent to become adequate." ( In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The record supports the juvenile court's findings, and we cannot disturb them.

DISPOSITION

The petition for an extraordinary writ is denied on the merits. The request for a stay of the August 24, 2022 hearing is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

WE CONCUR: FUJISAKI, J., PETROU, J.