L.W. v. Superior Court CA4/2 ( 2013 )

Filed 8/2/13 L.W. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
L.W.,
Petitioner, E058485
v. (Super.Ct.Nos. J240514 & J240515)
THE SUPERIOR COURT OF OPINION
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cheryl C. Kersey,
Judge. Petition denied.
Au Lang T.N. Le for Petitioner.
No appearance for Respondent.
Jean-Rene Basle, County Counsel, and Regina A. Coleman, Deputy County
Counsel, for Real Party in Interest.
1
Petitioner L.W. (father) filed a petition for extraordinary writ pursuant to
California Rules of Court, rule 8.452, challenging the juvenile court‟s order denying
reunification services as to his children, M.W. and J.W. (the children), and setting a
Welfare and Institutions Code1 section 366.26 hearing.
Father now argues that the San Bernardino County Children and Family Services
(CFS) failed to provide him with reasonable reunification services. We deny the writ
petition.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2011, CFS filed section 300 petitions on behalf of the children.
M.W. was five years old at the time, and J.W. was 10 years old. The petitions alleged
that the children came within the provisions of section 300, subdivision (b) (failure to
protect). Specifically, the petitions alleged that the children‟s mother (mother)2 had a
substance abuse problem and was suffering from serious emotional disturbances, and that
father knew, or reasonably should have known of mother‟s problems, but failed to protect
the children.3
1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
2 Mother is a not a party to this writ.
3The petitions also list another child, L.T., on the allegations concerning mother
only. L.T. is not father‟s child, and is not a subject of this writ petition.
2
Detention
The social worker filed a detention report stating that mother was arrested on
August 29, 2011, for being under the influence of methamphetamine while trying to pick
up her children from school. She also appeared mentally unstable. The police released
the children to the maternal grandmother. Mother stated that father‟s whereabouts were
unknown, that the last time she saw him was six months ago when he visited the children,
and that he had never really been involved in their children‟s lives. The social worker
contacted father and spoke with him on the phone. He said the children did not live with
him because he travelled for his job. He currently did not have room for them to live
with him, but he wanted to take the children if the maternal grandmother was unable to
keep them.
On September 2, 2011, the court detained the children with the maternal
grandmother.
Jurisdiction/ Disposition
The social worker filed a jurisdiction/disposition report on September 20, 2011,
and recommended that the court sustain the petitions and order reunification services for
the parents. The social worker reported that she had a phone interview with father on
September 14, 2011, and he stated that he wanted placement of the children. Father
admitted that he knew mother was abusing drugs. He also said he had no recent criminal
history, but then admitted that he had an open court case for child pornography. The
social worker checked father‟s criminal history and found that he had an extensive
history of drugs and domestic violence. He was arrested in 2002 for a probation violation
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for possession of a controlled substance for sale and was sentenced to two years in state
prison. His most recent conviction was for possession of child pornography. (Pen. Code,
§ 311.1, subd. (a).) Father‟s initial case plan required him to participate in general
counseling, complete a parenting education program, and attend a Narcotics Anonymous
program.
On September 22, 2011, the social worker amended the children‟s petitions to
include an allegation that the children were at risk for abuse or neglect due to father‟s
child pornography conviction and history of substance abuse and domestic violence.
A jurisdiction/disposition hearing was held on September 23, 2011, and father was
present. The court ordered visitation between father and the children to be once A week
for one hour, supervised. The court authorized the social worker to liberalize visitation
when he deemed it appropriate. The matter was continued for mediation. Father was not
present for the mediation. Father then set the matter for contest.
A contested jurisdiction/disposition hearing was held on November 7, 2011.
Father was not present because he was incarcerated in another county, but he was
represented by counsel. The court found that father was the presumed father of the
children, and that the children came within section 300, subdivision (b). The court
declared the children dependents of the court. The court approved the case plan and
ordered father to participate in reunification services.
Six-month Status Review
The social worker filed a six-month status review report dated May 7, 2012, and
recommended that reunification services be continued. The social worker reported that
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father was convicted of possession of child pornography on June 11, 2011 (Pen. Code,
§ 311.1, subd. (a)), and was recently released from prison and put on probation until June
2014. The social worker further reported that father was referred to parenting classes and
counseling, but had not shown evidence of enrollment yet. The social worker updated
father‟s case plan to include sexual abuse counseling, a parenting education program, and
participation in outpatient substance abuse program.
A six-month review hearing was held on May 7, 2012. Father was present.
Counsel informed the court that father wished to attend his children‟s sporting events.
According to father, his probation officer would be amending his probation conditions to
allow him to be around his children and other children. The court specified that father
had to provide proof that his probation officer would allow him to have unsupervised
contact with his children and, if he wanted to attend sporting events, he would need to
show proof that the probation officer would allow him to be around other children. The
court ordered reunification services to continue. The court also increased visitation to up
to two hours, once a week, supervised. The court again authorized the social worker to
liberalize the frequency and duration of the visits, as appropriate.
12-month Status Review Report
The social worker filed a 12-month status review report dated November 1, 2012,
and recommended that reunification services be continued. The social worker included
father‟s probation officer‟s name and information, and reported that father had completed
the Cooperative Parenting Program through the Catholic Charities Counseling Program in
March 2012. The social worker further reported that father was referred to Medtox for
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random drug testing and had tested negative six times. The social worker also reported
that father‟s visits with the children were appropriate. Father was still expressing his
desire to go to his son‟s sporting events, but the social worker had not received approval
from his probation officer.
A 12-month review hearing was held on November 1, 2012. Father‟s counsel
submitted on the social worker‟s report, but urged the court to “start liberalizing visits,”
since he was already at the 12-month hearing. She noted that father had been
participating in services and had tested clean, except for once. Father was now on
chemotherapy and radiation, since he had been diagnosed with cancer. The children‟s
counsel had no objection to the social worker having the authority to liberalize visits, but
noted that father‟s current home was not suitable since he had roommates. The court
stated that it was giving CFS the authority to liberalize visits, but father‟s counsel
stressed that he did not just want the authority, but wanted an order saying, “Father will
get more visits.” When counsel for CFS asked whether father was asking for
unsupervised visits or more visits, father responded that he “want[ed] more time.” The
children‟s counsel responded that she was concerned since father was recently released
from prison for child pornography, and she wanted to hear from father‟s therapist as to
the progress he had made with that issue. She did not object to giving father more time,
but objected to any unsupervised visitation. The matter was continued.
At a hearing on November 27, 2012, counsel for CFS informed the court that the
social worker visited father‟s home and approved it as appropriate for supervised visits.
CFS had no objections to increasing visits up to four hours per week. The children‟s
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counsel interjected that, from the last hearing, the increase in visits was conditional upon
father participating in counseling for sex offenders. Father stated that he was enrolled,
and that he had already attended six sessions. Counsel for CFS confirmed that father was
enrolled in group therapy and in individual counseling. The court then asked if everyone
agreed to continue father‟s reunification services and increase his visitation to four hours
a week. The children‟s counsel agreed. Father‟s counsel asked if visits would be
supervised or unsupervised, and the court said, “supervised as he progresses through
counseling.” Father‟s counsel then requested that the social worker be authorized to
liberalize the visits to being unsupervised. She noted that father was in the process of
obtaining a letter from his therapist saying that he was not at risk. The court ordered
supervised visitation once a week for four hours, with the social worker having the
authority to liberalize visits “as to frequency and duration and supervision.” The
children‟s counsel agreed. The court noted that father‟s progress had been moderate and
ordered reunification services to continue.
18-month Status Review
The social worker filed an 18-month status review report and recommended that
father‟s reunification services be terminated and a section 366.26 hearing be set. The
social worker reported that father was enrolled in the individual and group sessions
through Lutheran Social Services to address sexual abuse issues. The social worker
requested a report from Lutheran Social Services, but had not received it yet.
The social worker further reported that father went to the CFS office to see about
getting gas cards. He informed the social worker that his throat cancer was improving
7
and that he had 12 more chemotherapy sessions left. Father again said he wanted to go to
his son‟s sporting events, but the social worker still had not received approval from the
probation officer.
The social worker reported that father had not completed all the components of his
case plan; thus, return of the children to his home would create a substantial risk of
detriment. He further reported that father‟s visits had been consistent and appropriate.
Father was present at the 18-month review hearing on February 27, 2013. He
challenged the social worker‟s recommendation and set the matter for contest.
Father did not appear at the contested hearing on March 4, 2013. Father‟s counsel
requested a continuance to allow time to subpoena two witnesses, including father‟s
therapist. Father‟s counsel noted that she had provided the court with a letter from the
therapist, Patricia Dorobiala. The letter was dated March 1, 2013, and stated that father
entered sex offender group treatment on May 22, 2012, and had completed seven
sessions, prior to becoming ill. He missed the next 13 sessions and then returned for
eight more sessions, in between his chemotherapy treatments. Furthermore, father had
asked for individual therapy, as directed by the social worker, and had had four individual
sessions. In the letter, the therapist said she spoke with the social worker at the time of
father‟s first individual session to request a referral, and also contacted him on February
28, 2013, but had not received any paperwork thus far. The therapist stated that without
“the specifics for therapy,” it was not clear what father needed to work on. The therapist
said that, even though no referral had been received, father was working on techniques to
ensure his children‟s welfare when returned to his care. Father‟s counsel informed the
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court that father wanted to contest the matter of reasonable services. The court continued
the matter to April 9, 2013.
Father was present at the contested 18-month review hearing, but chose not to call
the therapist as a witness. Rather, he decided to call the social worker to testify. The
social worker testified that father‟s case plan requirements consisted of individual
counseling, group counseling, drug testing, and a parenting class. The social worker
referred father to drug testing on February 28, 2012. Father had been testing, and his
tests were negative. The social worker further testified that, on December 27, 2011, they
went over father‟s case plan, and father was given a resource list for services. The social
worker told father that he needed to address the issues of child pornography and the
triggers for it when he went to counseling. From the resource list, father chose to go to
Lutheran Social Services for group and individual counseling, and Catholic Charities for
his parenting class. He subsequently completed the parenting class.
With regard to individual counseling, the social worker testified that father started
the counseling with Lutheran Social Services on May 22, 2012, got sick, and then
restarted when he got better, around September 2012.
The social worker testified that he submitted a referral to Lutheran Social Services
one week prior to the current hearing, telling them to address the issues of child
pornography with father, triggers for it, and how to prevent it. The social worker
explained that “the main thing” about providing a referral to a service provider was that it
started the process of being able to pay for the treatment. When the social worker was
asked why he waited until last week to send a referral, the social worker replied:
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“Honestly, this is my reasoning: Normally none of the providers will start services prior
to having the referral. [Father] came in with a list of the times—he had already started
. . . and I had previously submitted that form to the Court . . . .” The social worker later
clarified that he had sent the verification of program attendance sheet to the court. Thus,
it was his understanding that, as of December 2012, father was participating in
counseling at Lutheran Social Services. He said that normally, he followed up with the
provider to make sure the provider was addressing the issues of concern; however that
was not done in this case. After father‟s counsel continued to question the social worker
about the referral, the court sustained a relevance objection and stated that counsel was
“beating it to death.” The court addressed father‟s counsel and said, “What are you really
going after? He made referrals. Your guy is in counseling . . . . [¶] He doesn‟t have to
keep making the same referral.” When counsel stated that the social worker had a
responsibility to ensure that the service provider was addressing certain issues with
father, and she wanted to know if that was done, the court replied: “Doesn‟t your client
have a duty to say, „I need to deal with this issue of child pornography?‟ Why is it the
social worker‟s responsibility to tell them what to counsel him on.” Father‟s counsel
continued to question the social worker. The social worker said that he followed up with
father and asked if he was discussing child pornography and the triggers, and father
“brought evidence that he was working on it.” Father‟s counsel asked the social worker
if he did any “independent investigation” to make sure father addressed those issues, and
the social worker said no. Father‟s counsel asked, “[W]ouldn‟t it have been important for
you to ensure that Father is addressing these things in therapy?” The court stated that it
10
was not relevant, and said to father‟s counsel. “What do you want him to do? Do you
expect him to hold your client‟s hand?” The court intimated that the social worker did
not have time for “babysitting” father in that way. After more questioning, the social
worker said that father told him his treatment in therapy was “coming along pretty well.”
Father‟s counsel also asked about visitation, and the social worker confirmed that
father was having supervised visits that were appropriate. When asked why father was
still receiving supervised visits, the social worker said he did not feel he could allow the
children to be unsupervised, and father could not be around unrelated children. The
social worker acknowledged that father wanted unsupervised visits, and that he had
visited father‟s home and found it acceptable.
Father‟s counsel concluded that CFS had provided father with unreasonable
services. She acknowledged that father had participated in services, gone to counseling,
and “done what he need[ed] to,” but asserted that father “[was] the one that has sought
out services.” She contended that the social worker did not tell father what to do, that he
(the social worker) never talked to anybody about child pornography, and that he never
independently verified if father was addressing that issue.
The court stated that it thought father‟s counsel‟s argument was “ridiculous,”
noting that father was an adult, that he had been engaged in counseling, and that he knew
he was supposed to address the obvious—child pornography, sexual abuse, and triggers
for child pornography. The court found that reasonable services had been provided, that
father‟s progress had been minimal, and that return of the children created a substantial
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risk of detriment to them. The court terminated reunification services and set a section
366.26 hearing.
ANALYSIS
There Was Substantial Evidence to Support the Court‟s Finding
That Father Was Provided With Reasonable Services
Father complains that CFS did not provide him with reasonable services. He
claims that the social worker “tried to thwart [his] reunification by failing to ensure [he]
received counseling to address child pornography and the triggers.” He asserts that the
social worker sent the list of what father‟s case plan was supposed to address the week
before the contested 18-month hearing, and that the social worker failed to tell father to
talk about child pornography and the triggers. Father additionally argues that CFS did
not make a good faith effort to facilitate visitation, and asserts that his visits remained
supervised because the social worker “failed to do anything to independently verify the
father‟s participation in his case plan.” Father‟s claims are meritless.
A. Relevant Law
“A reunification plan must be tailored to the particular individual and family,
addressing the unique facts of that family. [Citation.] A social services agency is
required to make a good faith effort to address the parent‟s problems through services, to
maintain reasonable contact with the parent during the course of the plan, and to make
reasonable efforts to assist the parent in areas where compliance proves difficult.
[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
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circumstances.‟ [Citation.]” (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586,
598-599 (Katie V.).)
“[W]ith regard to the sufficiency of reunification services, our sole task on review
is to determine whether the record discloses substantial evidence which supports the
juvenile court‟s finding that reasonable services were provided or offered. [Citations.]”
(Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “We determine whether
substantial evidence supports the trial court‟s finding, reviewing the evidence in a light
most favorable to the prevailing party and indulging in all legitimate and reasonable
inferences to uphold the court‟s ruling. [Citation.]” (Katie V., supra, 130 Cal.App.4th at
p. 598.)
B. There Was Substantial Evidence to Support the Court’s Finding That
Reasonable Services Were Provided
We have reviewed the record and find father‟s argument unavailing. He was
given an initial case plan in September 2011, but it was revised to address his conviction
for child pornography. The revised plan included the requirements that he participate in
sexual abuse counseling, complete a parenting education program, and participate in an
outpatient substance abuse program. The record reveals that CFS adequately provided
father with reunification services. In December 2011, the social worker went over the
case plan with father and gave him a resource list for services. From the resource list,
father chose to go to Lutheran Social Services for group and individual counseling, and
Catholic Charities for his parenting class. Father completed the parenting class in March
2012. Father enrolled in individual and group counseling sessions to address his sexual
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abuse issues. He attended classes on a weekly basis. Father completed seven group
sessions, prior to becoming ill. After missing the next 13 sessions, he returned for eight
more sessions. Father also completed four individual sessions. The record indicates that
the social worker had monthly meetings with father regarding his progress, and father
said his treatment was going well. The social worker also referred father to Medtox for
random drug testing. In addition, during the course of the dependency, father had
supervised visitation with the children, in accordance with the court‟s order, that was
consistent and appropriate.
Father‟s main complaint is the same one he made at the contested 18-month
hearing. He claims that the social worker did not contact the therapist to discuss father‟s
counseling objectives, and that the social worker did not tell father to talk about child
pornography and the triggers. Contrary to these claims, the evidence shows that the
social worker told father he needed to address the issues of child pornography and the
triggers for it when he went to counseling. Father points out that the social worker
received the letter from the therapist, dated March 1, 2013, which indicated that the
therapist requested a referral from the social worker twice. Father complains that, as of
the contested hearing on April 9, 2013, the social worker still had not called the therapist
to address father‟s objectives. However, at the contested hearing, the social worker
testified that he sent the referral instead of calling the therapist. The social worker also
testified that he had communicated with Lutheran Social Services about father before he
received that letter.
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Furthermore, as the juvenile court pointed out, father was perfectly capable of
telling the therapist that he needed to deal with the issue of child pornography. The
social worker was not required “to take the parent by the hand and escort him or her to
and through classes or counseling sessions. A parent whose children have been adjudged
dependents of the juvenile court is on notice of the conduct requiring such state
intervention.” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn 5.) Moreover,
there was no apparent need to “ensure” with the therapist that father was receiving
counseling, since father confirmed that he was participating in sexual abuse counseling,
and he apparently gave the social worker a program attendance sheet. In addition, the
social worker followed up and asked father if he was discussing child pornography and
its triggers, and father “brought evidence that he was working on it.”
As to father‟s claim that the social worker did not make a good faith effort to
facilitate visitation, the record shows otherwise. At the detention and initial
jurisdiction/disposition hearings, the court ordered visitation to be one time a week for
one hour, supervised. The court authorized CFS to liberalize visitation as to frequency
and duration when deemed appropriate. At the six-month hearing, the court increased
visitation to one time a week for up to two hours, supervised. Father wanted more time,
especially to attend his children‟s sporting events, and the court informed him that he
needed to show that his probation officer would allow him to have unsupervised visits,
and would allow him to be around other children. By the time of the 12-month review
hearing, the social worker had not received approval from father‟s probation officer. The
social worker did visit his home to assess it for unsupervised visitation and deemed it
15
appropriate. The court then increased visitation to one time a week for four hours, and
authorized CFS to liberalize visits as to frequency, duration, and supervision.
Father claims that his visits remained supervised because the social worker “failed
to do anything to independently verify [his] participation in his case plan.” From that
assertion, he concludes that “the social worker‟s failure constitutes unreasonable services
as it relates to visitation.” However, there was no evidence that father provided proof
that his probation officer would allow unsupervised visits with the children or contact
with other children. There was also no evidence that father ever submitted a letter from
his therapist, as he said he would, stating that he was not at risk. At the 18-month review
hearing, when the social worker was asked why father was still having supervised visits,
the social worker said he did not feel he could allow father to be with the children
unsupervised, and father “[could not] be around unrelated children.”
Therefore, contrary to father‟s claim that his services with regard to visitation
were unreasonable, the record shows that his visitation was consistent and was regularly
increased as to duration. The visits remained supervised in order to protect the children,
in light of father‟s child pornography conviction.
We conclude that there was sufficient evidence to support the court‟s finding that
the services provided to father were reasonable.
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
16
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.
17