L.B. v. Superior Court CA1/4 ( 2021 )

Filed 4/5/21 L.B. v. Superior Court CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
L.B. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF A161673
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. MSJ18-00482)
CONTRA COSTA COUNTY
CHILDREN & FAMILY SERVICES
BUREAU et al.,
Real Parties in Interest.
L.B. (mother) and A.C. (father; together with mother, “parents”)
petition for extraordinary writ relief challenging certain orders at an
18-month review hearing in the dependency case of their child, M.C.
(minor). Father argues the juvenile court should not have set a hearing
under Welfare and Institutions Code1 section 366.26 because it should
not have found a substantial risk of detriment to the minor’s well-being
if the minor were returned to father’s care. Father and mother both
contend the juvenile court should have extended their reunification
Undesignated statutory references are to the Welfare and
1
Institutions Code.
1
services because the Contra Costa County Children and Family
Services Bureau (Bureau) failed to provide them reasonable services.
Father and mother also contend the juvenile court should not have
reduced their visitation and should have granted their requests for a
bonding study. We agree that the record does not support the decision
to reduce their visitation, but otherwise find no error. We shall
therefore grant the parents’ writ petitions in part, order the juvenile
court to vacate its visitation order, and otherwise deny the petitions.
We shall deny as moot the parents’ request for a stay of the section
366.26 hearing, scheduled for April 7, 2021.
I. BACKGROUND
A. Initial petition
The Bureau filed a petition as to the minor and the minor’s
newborn sibling in April 2018, when the minor was seven years old.
The Bureau had a history of contacts and intervention with regard to
the minor and the minor’s parents. The juvenile court assumed
jurisdiction over the children based on allegations that father was
unable to regulate his aggressive emotional outbursts and to
understand the impact of these outbursts and that mother’s ongoing
medical condition made her unable to care for the minor.
Mother presented with severe mental and/or developmental
disabilities. She suffered from conversion disorder, which manifested
as her being unable to walk and having seizures, even though medical
2
exams showed no reason for the symptoms.2 Mother alleged that father
raped her “all the time” and had punched holes in the walls of the home
where the family lived with the minor’s paternal grandmother. Mother
also claimed, however, that father had never been physically abusive
towards her or the minor. The juvenile court allowed the minor to
remain in the home with father but removed the minor’s sibling.3
B. Disposition hearing on initial petition
When the Bureau filed the petition, mother was in the hospital
for the birth of the minor’s sibling. Adult Protective Services had
assisted mother with obtaining a restraining order against father. By
the disposition hearing in August 2018, mother was again residing with
father and the minor. Mother’s physical health was unpredictable,
sometimes improving and sometimes declining. Mother was
inconsistent in her participation in health services and had refused
physical therapy.
In October 2018, mother and the maternal grandmother told a
domestic violence liaison that mother wanted to leave father’s house.
The liaison recommended that mother receive domestic violence
counseling and become a client of the Regional Center so she could
2 Conversion disorder “is defined as ‘[o]ne or more symptoms of
altered voluntary motor or sensory function’ found to be incompatible
with ‘recognized neurological or medical conditions.’ (American
Psychiatric Assn., Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) pp. 318–319.)” (Norasingh v. Lightbourne
(2014) 229 Cal.App.4th 740, 746, fn. 2, italics omitted.)
3 The juvenile court ultimately terminated mother’s and father’s
parental rights over the minor’s sibling, and the foster family where the
minor was later placed adopted the sibling. None of the juvenile court’s
orders relating to the minor’s sibling are at issue here.
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enroll in a program empowering people with disabilities. The Bureau
stated it would assist mother in assessing her eligibility for Regional
Center services.
The disposition hearing was continued several times, in part
because the juvenile court appointed a guardian ad litem for mother.
At the conclusion of the disposition hearing in January 2019, the
juvenile court placed the minor in the parents’ custody under the
Bureau’s supervision and ordered the Bureau to provide the parents
family maintenance services. The Bureau recommended mother
receive individual counseling to address her mental health, because it
was the sole cause of her medical conditions. The Bureau also
recommended she undergo a domestic violation assessment, participate
in services through a wellness recover action plan, and engage with
health care professionals to improve her health. For father, the Bureau
recommended communication/socialization and parenting classes,
individual counseling, and domestic violence services.
C. Supplemental petition
In May 2019, the Bureau detained the minor and filed a
supplemental petition under section 387. As later amended, the
supplemental petition alleged that father had struck mother many
times in the past, raped her about a month earlier, punched her in the
head, intentionally hit her head on the car when helping her out of the
car, and broke her cell phone in half and threw it at a wall. At the
time, mother was wheelchair-bound and had difficulty talking. The
Bureau also alleged that father had failed to participate in treatment
recommended by the minor’s psychologist and that he had failed to
adequately address the minor’s hygienic needs. The former allegation
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related to alleged autism-related deficits in the minor’s social and
communication abilities.
When the Bureau filed the supplemental petition, mother told a
social worker and police officer that she did not feel safe returning to
the home with father and feared for the minor’s safety. Regular
shelters would not accept mother because of her medical conditions, so
mother was taken to the Regional Center in Martinez. Mother had
previously made claims of domestic violence and rape and had always
returned to father’s home despite opportunities to leave. Consistent
with this pattern, shortly after making her allegations of abuse, mother
claimed it was an accident and father did not hurt her. Using
dramatically improved speech, mother also said she wanted to go back
to father’s home. By the end of May 2019, mother was residing with
father.
By the time of the jurisdiction hearing in August 2019, father
was enrolled in a domestic violence program, but he told the counselor
that he did not understand why he was there. According to the
counselor, this was a barrier to engagement. Mother was participating
in group therapy sessions but would soon shift to individual sessions.
Visits between the minor and father showed the two had a deep,
affectionate bond. The court assumed jurisdiction over the minor based
on the amended allegations in the supplemental petition and placed the
minor in a foster home.
D. Disposition hearing on supplemental petition
The Bureau’s report for the disposition hearing on the
supplemental petition in November 2019 stated that it was in the
minor’s best interest to bypass reunification services for the parents.
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Father admitted he had an anger problem but continued to deny the
allegations that led to the minor’s removal. Father’s domestic violence
counselor and mental health counselors said that father attended
sessions but had little interest in learning the material and it was
unclear whether father was benefitting from the programs. Mother
had started individual domestic violence counseling and said she was
ready to leave the home. However, it was difficult to get services to
help mother find alternative housing because of her physical conditions
and because she had refused help from service providers several times
before. The Bureau had referred mother to the Regional Center. To
confirm mother’s eligibility the Regional Center needed medical records
showing mother had been diagnosed with a qualifying disorder before
the age of 18. The Bureau’s social worker had been unable to find
anything in mother’s records that would establish mother’s eligibility.
The minor had been diagnosed with autism spectrum disorder and was
recommended for group therapy. Father continued to be very loving
and appropriate with the minor during visits, and he occasionally
prompted the minor to interact with mother. Despite its belief that
services should be bypassed, at the county counsel’s request, the
Bureau submitted a recommendation for further services.
The court found father had made minimal progress and mother
had made minimal or unknown progress towards alleviating the causes
of the dependency. The court further found reunification was in the
minor’s best interest and ordered the Bureau to provide reunification
services. The court ordered father to have a comprehensive
psychological evaluation. The court reduced visits from weekly to twice
per month.
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E. Combined six- and 12-month review hearing
Leading up to the combined six-month and 12-month review
hearing in August 2020, mother continued to live with father. The
Bureau concluded the fundamental family dynamic had not changed:
father continued to deny domestic violence in the relationship and
mother continued to rely on him as her full-time caregiver. Mother had
recently fallen from her wheelchair, broken her two front teeth and a
veneer tooth, and injured her face and lips, but no medical or dental
treatment was sought because of the cost. Mother initially wanted her
own apartment, but a social worker from Adult Protective Services
recommended a skilled nursing facility with an eventual transition to
assisted living, since mother could not care for her own needs. Mother
then stopped responding to the social worker, and Adult Protective
Services closed their case. The Bureau’s social worker had still been
unable to find any indication in mother’s records that would establish
mother’s eligibility for Regional Center services. Mother eventually
told the Bureau she was willing to accept a skilled nursing facility. The
Bureau’s social worker had directed mother to speak with her doctor
about a referral, but despite the social worker’s offer to help with the
conversation, mother had not spoken with her doctor.
Father continued to deny any domestic violence incidents. While
he participated in domestic violence classes, he did not take
accountability for his actions. Father’s domestic violence classes were
cut off several times, once because of the pandemic and several other
times because of a payment issue. During one visit between the
parents and the minor, father became irate with the paternal
grandmother and referred to mother as “dumb mommy” to the minor.
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The Bureau recommended terminating services and setting a hearing
under section 366.26.
At the combined six- and 12-month review hearing, mother told
the court she wanted to remain in a relationship with father and did
not want to move out of the home. Mother also said that she did not
want to enter a skilled nursing facility because she was afraid of
contracting the coronavirus, although mother’s resistance to this idea
predated the pandemic. The court found reasonable services had not
been provided and ordered the continuation of services to 18 months.
The court specifically ordered the Bureau to explore creative
opportunities for services for mother if she were to continue living in
the home. The court also ordered the Bureau to fix the issues with
father’s domestic violence program and assist him with getting into
therapy immediately.
F. 18-month review hearing
Ten days after the prior hearing, mother denied saying that she
wanted to remain in a relationship with father and told the Bureau she
wanted to be out of father’s house. Mother denied alleging father
physically assaulted and raped her. She also told the social worker she
agreed with the maternal grandmother that women subjected to
domestic violence should not tell anyone about their abuse in order to
avoid having their children removed.
The parents attended five sessions of couples counseling via video
calls but were unable to agree on treatment goals and were volatile
toward one another. The couple’s therapist reported that both parents
were prone to angry outbursts, and father’s outbursts included yelling,
pacing, and hitting furniture. The couple’s therapist had concerns
8
about mother’s and father’s cognitive functions, but found it difficult to
assess because both parents, especially mother, were manipulative
during the sessions by pretending not to know or remember things.
Father reported that he completed a group behavioral therapy
program aimed at helping him deal with stress. Father participated in
five sessions of individual therapy aimed at working on impulse control
and anxiety. However, he was unable to explain to a social worker how
impulse control related to his behavior or provide examples of how his
impulse control had improved. Father had only a few sessions left to
complete his domestic violence program, which was teaching him about
his anger. But aside from reading descriptions of concepts from his
notes, the only example he could cite of what he had learned was that if
he became angry with mother, such as if she were unfaithful, he would
watch wrestling because that normally calms him down.
At the hearing, mother testified that she had never said that
father had raped her. She planned on moving in with her cousin but
had not spoken to her. A few months earlier she had tried calling to
find a new place to live. She stopped thinking about it after the
programs she called said they were full because she was happy.
Father testified about his sessions with his individual therapist.
One tool he had learned was that when he was feeling stressed, he
should remove himself from the situation, such as by leaving the room
and watching videos or playing a game. Father testified that his
relationship with mother had ended a month earlier. Mother was still
living in the home, but the two had been sleeping in separate rooms for
about a week. Father reported that he and mother had learned
through counseling that they did not work as a couple because mother
9
did not want to be in a relationship, while father was willing to work on
things. Because they were no longer in a relationship, he did not
foresee having any problems with mother, even though they were still
living together. Father still expected that he and the paternal
grandmother would continue to be mother’s caregivers.
Father admitted he had broken things in anger in the past but
denied hitting furniture during his online therapy sessions. Father
also admitted he had gotten in mother’s face, yelled, screamed, and
thrown things across the room, but he denied ever engaging in physical
violence except for pushing her on a bed once. He also denied head-
butting mother in the minor’s presence, even though that had led to the
removal of the minor in a prior dependency case.
Mother then testified again in response to father’s testimony.
She said besides headbutting and pushing her, father had struck her in
the face. After her counsel interrupted the questioning to consult with
mother, mother returned to the stand and claimed the violence
occurred long ago, though she added that father had also broken her
phone.
The juvenile court reviewed the factual development of the case
and described in some detail the results of father’s psychological
evaluation from July 2020. The psychologist said father denied he was
violent, viewed his domestic violence classes as stupid, and had no
evidence of a cognitive impairment or developmental delay. In the
psychologist’s view, the core issue was father’s tendency towards denial
and his inability to recognize the impact of his behavior on mother.
The psychologist determined father had a lack of insight.
10
The court found the circumstances that gave rise to the case had
not been ameliorated, with mother living in the same home, alternating
between allegations of domestic violence and recantations, and father
still having angry outbursts without any insight and denying his abuse.
The juvenile court found father had lied about the abuse. The court
credited mother’s testimony at the hearing about the abuse and did not
credit mother’s attempt to partially retract her testimony by claiming
the abuse had occurred in the distant past. The court found that the
Bureau offered reasonable services in the 18-month review period and
that the return of the minor to the parents’ custody would create a
substantial risk of detriment to the minor’s safety or physical or
emotional well-being. The court found no exceptional circumstances to
warrant extending services past the 18-month mark and ordered the
termination of reunification services. The court reduced visitation to
one hour per month and set a date for a hearing under section 366.26.
II. DISCUSSION
A. Return of the minor to father
At an 18-month review hearing, “the court shall order the return
of the child to the physical custody of his or her parent . . . unless the
court finds, by a preponderance of the evidence, that the return of the
child to his or her parent or legal guardian would create a substantial
risk of detriment to the safety, protection, or physical or emotional well-
being of the child.” (§ 366.22, subd. (a)(1).) “The failure of the parent
or legal guardian to participate regularly and make substantive
progress in court-ordered treatment programs shall be prima facie
evidence that return would be detrimental.” (Ibid.) The court “shall
consider the efforts or progress, or both, demonstrated by the
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parent . . . and the extent to which he or she availed himself or herself
of services provided . . . . ” (Ibid.)
We review the juvenile court’s findings for substantial evidence.
(In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400–1401.) Under this
standard, “[w]e do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts. Rather, we draw all
reasonable inferences in support of the findings, consider the record
most favorably to the juvenile court’s order, and affirm the order if
supported by substantial evidence even if other evidence supports a
contrary conclusion. [Citation.] The appellant has the burden of
showing the finding or order is not supported by substantial evidence.”
(In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Substantial evidence supports the juvenile court’s finding of
detriment based on father’s failure to make substantive progress in his
treatment plan. Father participated regularly in the domestic violence
and counseling sessions the Bureau selected in the sense that he
attended the sessions. But the various therapists’ descriptions of
father’s attitude and behavior changed little over the course of the case.
In October 2019 (prior to the completion of the disposition hearing on
the supplemental petition), father’s domestic violence counselor said
father attended the program but did not know why he was there and
spent his time rolling his eyes and scoffing rather than engaging with
the curriculum. In November 2019, father’s therapist said that father
attended group sessions but did not participate in self-reflection.
Father believed that he did not have anything to work on and that his
behavior was not a problem. The psychological evaluation of father in
July 2020 noted that father described his domestic violence classes as
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stupid and the other participants as morons. In October 2020, father
was unable to tell a social worker any examples of how his work in his
individual therapy sessions and domestic violence classes related to his
behavior and life. At the last report before the 18-month hearing, the
couple’s therapist said both parents were volatile towards one another.
The therapist also described how father would have angry outbursts
during therapy sessions that involved yelling, pacing, and hitting
furniture. At the hearing, father continued to deny engaging in
physical violence against mother. The juvenile court found this denial
not credible when contrasted with mother’s rebuttal testimony
describing specific acts of abuse.
Pursuant to section 366.22, this evidence of father’s substantially
unchanged attitude over the course of the case, despite receiving
services, is prima facie evidence of detriment. (§ 366.22, subd. (a)(1).)
In response, father asserts that he participated in all aspects of his
plan and some aspects of his plan were not completed because of the
pandemic and the Bureau’s failure to provide reasonable services, as
the juvenile court found at the combined six- and 12-month review
hearing. This argument ignores father’s failure to make progress in his
individual counseling or couples therapy during the last review period.
Besides, section 366.22, subdivision (a) requires more than mere
attendance in classes or therapy sessions. (In re Dustin R. (1997) 54
Cal.App.4th 1131, 1141–1142 [“Availing [oneself] of the services
provided is one consideration under section 366.22, subdivision (a), but
under this statute the court must also consider progress the parent has
made towards eliminating the conditions leading to the children’s
placement out of home”].) Father’s scoffing during his domestic
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violence classes and refusal to engage in self-reflection during his group
therapy sessions indicate that father did not meaningfully participate
in the classes he attended. Likewise, father’s inability to tell the social
worker about any connections between his therapy or classes and his
life reflects a lack of insight inconsistent with progress in his
counseling. Father cannot blame the Bureau for his failure to fully
participate and make substantive progress in his case plan.
Father also attempts to rebut the finding of detriment by citing
several pieces of contrary evidence. He asserts the psychologist said
that father was learning to acknowledge his temper. He also cites his
testimony at the hearing that he was calmer because he and mother
were no longer a couple and that there were plans for mother to move
out of the home. Finally, he notes that the minor stated at the
beginning of the case that the minor was not afraid of father and
father’s anger was not directed at the minor.
This argument implicitly asks this court to weigh the evidence he
cites against the evidence supporting the juvenile court’s findings. This
we cannot do. The juvenile court’s findings must be affirmed so long as
substantial evidence supports them, even if other evidence might
support a contrary conclusion. (In re L.Y.L., supra, 101 Cal.App.4th at
p. 947.) Father’s contrary evidence therefore is legally insufficient to
warrant reversal of the juvenile court’s findings.
Moreover, the evidence father cites does not significantly affect
the overall state of the record. The minor’s beliefs at the beginning of
the case several years earlier have little bearing given the additional
evidence that accumulated by the 18-month hearing after disposition.
It is helpful that father had begun acknowledging his temper. But this
14
is not sufficient to require the return of the minor, because father still
had not acknowledged how his temper in the past had led to domestic
violence. Father’s testimony also did not address mother’s accusations
of rape. Mother attempted to retract those accusations by saying father
merely had sex with her when she did not want to have sex at the
moment, but the juvenile court reasonably viewed this as confirming
the accusation. Finally, even accepting at face value the testimony that
father’s relationship with mother had ended and that mother intended
to move out of the house, at the time of the hearing the two were still
living together and mother had no specific plan to leave. Given these
circumstances, the juvenile court could reasonably credit the
psychologist’s assessment that father’s domestic violence would likely
continue because he still lacked insight into his actions.
B. Reasonable services
Subject to exceptions not applicable here, if a child is not
returned to a parent at the 18-month hearing, the court must terminate
services and set a selection and implementation hearing under section
366.26 to determine the appropriate plan for the child. (§ 366.22, subd.
(a)(3).) The court must also determine, using a preponderance of the
evidence standard, whether reasonable services have been offered or
provided to the parent. (Ibid.; Katie V. v. Superior Court (2005) 130
Cal.App.4th 586, 590.) “To support a finding that reasonable services
were offered or provided to the parent, ‘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
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areas where compliance proved difficult.’ ” (In re A.G. (2017) 12
Cal.App.5th 994, 1001, italics omitted.) “In almost all cases it will be
true that more services could have been provided more frequently and
that the services provided were imperfect. The standard is not whether
the services provided were the best that might be provided in an ideal
world, but whether the services were reasonable under the
circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
“ ‘[R]eunification services are voluntary . . . and an unwilling or
indifferent parent cannot be forced to comply with them.’ ” (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1365.)
“When a finding that reunification services were adequate is
challenged on appeal, we review it for substantial evidence.” (In re
Alvin R. (2003) 108 Cal.App.4th 962, 971.)
Father
The problems that led to the minor’s removal from father were
his inability at times to regulate his aggressive emotional outbursts
and to understand the impact of these outbursts, his acts of domestic
violence toward and rape of mother, and his failure to ensure the minor
followed proper hygiene and received treatment for an autism-related
condition. To address these issues in the final review period, the
Bureau provided father a parent partner, continued the domestic
violence/anger management services father had been receiving since
the beginning of the case, and held two Children and Family Team
meetings. The Bureau also followed up to confirm father had
completed a group therapy program designed to give him tools to
change his behavior in response to stress. The Bureau continued its
efforts to secure individual counseling for father, and father was able to
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schedule and participate in five individual counseling sessions. The
Bureau also secured couples counseling for both parents.
Father does not dispute that these services were properly
designed to remedy the problems the Bureau identified. Instead, he
first argues the juvenile court should have extended his services
because it previously found at the 12-month hearing that the Bureau
failed to provide reasonable services. Father cites several cases that
held that a failure to provide reasonable services required the extension
of services beyond the 18-month review period. (Serena M. v. Superior
Court (2020) 52 Cal.App.5th 659, 663, 675, 678 [no reasonable services
during combined six-, 12-, and 18-month review]; T.J. v. Superior Court
(2018) 21 Cal.App.5th 1229, 1252, fn. 12, 1255–1256 [12-month review];
In re Alvin R., supra, 108 Cal.App.4th at pp. 970, 973–975 [six-month
review].) None of these cases involved a situation like the one here,
where a court found a failure to provide reasonable services at an
interim review and then terminated services after a social services
agency offered an additional period of services. “The remedy for the
failure to provide court-ordered reunification services to a parent is to
provide an additional period of reunification services to that parent and
to make a finding on the record that reasonable services were not
offered or provided to that parent.” (In re A.G., supra, 12 Cal.App.5th
at p. 1005, italics omitted; T.J. v. Superior Court, at p. 1251.) The
juvenile court provided this remedy by making the required finding and
ordering additional services during the 18-month review period.
The services provided to father during the 18-month review
period corrected the deficiencies in the services from the prior period.
The juvenile court’s finding of no reasonable services at the combined
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six- and 12-month review hearing was based on the absence of
individual therapy sessions, which in turn was due to the pandemic
and shelter-in-place orders, difficulties with father’s health insurance,
and waiting lists for services. The juvenile court was apparently also
concerned about the billing difficulties that had interrupted father’s
domestic violence classes. The juvenile court ordered the Bureau to
assist father with getting into therapy immediately and to avoid
further billing issues. The Bureau complied with these orders by the
18-month hearing, since father had attended five sessions of individual
therapy and resumed his domestic violence classes. Father had also
already completed a 12-week program of behavioral therapy to help
him deal with stress, which was the same ground he was covering with
his therapist. In these circumstances, the Bureau’s failure to provide
reasonable services during the combined six- and 12-month period did
not require the extension of services beyond the 18-month period.
Besides relying on the juvenile court’s finding of no reasonable
services at the combined six- and 12-month review hearing, father also
argues his services in the 18-month review period were not reasonable
because the Bureau failed to provide him a treatment plan
recommended by the psychologist who evaluated him. Father contends
the Bureau was obligated under Patricia W. v. Superior Court (2016)
244 Cal.App.4th 397 to provide him services tailored to his mental
illness. That case held that a parent’s failure to take medication to
treat her mental illness should have been the starting point for
tailoring reunification services. (Id. at pp. 420, 422.) This case is
inapposite because father’s argument rests on a misreading of the
record. The psychologist’s evaluation of father stated that it would be
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useful for father’s treatment planning and growth to acknowledge his
temper and what provokes it. This statement does not mean the
psychologist had prepared a treatment plan that the Bureau failed to
implement. Rather, it indicates merely that father would not benefit
from any treatment given his inability to recognize that he needed the
treatment at all. Father also cites nothing to support his contention
that he had a mental illness. The psychologist’s report did not state
that father suffered from mental illness; rather, it said that father’s
obstacle to making progress with his services was his denial of his
behavior. Father does not identify any service the Bureau could have
offered that would have overcome this attitude.
Mother
The Bureau removed the minor from mother’s custody because
her medical condition made her unable to care for the minor and she
was physically and psychologically unable to protect herself from
father’s domestic violence. To address these issues in the final review
period, the Bureau provided mother a parent partner, continued
mother’s domestic violence counseling, secured couples counseling, and
held two Children and Family Team meetings.
Mother contends these services were inadequate because the
Bureau did not comply with the juvenile court’s orders at the combined
six- and 12-month review hearing. The juvenile court had ordered the
Bureau to hold a Children and Family Team meeting and to explore
creative opportunities related to what services would be best for mother
if she were to continue living in the home. Mother notes that creative
solutions that would allow mother to remain in the home were
important because the Bureau believed the negative family dynamic
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had not changed and the Bureau had faulted mother for failing to leave
the home. The outcome of the first Children and Family Team meeting
was the provision of couples counseling. Mother characterizes this as
lacking creativity and comprehensiveness. She argues she should
instead have been referred back to a public health nurse for further
services, assisted in re-engaging or increasing in-home support services
from someone other than father, and assisted in obtaining the records
necessary to prove her eligibility for Regional Center services, or
referred to a disability rights advocate.
Mother’s arguments demonstrate the same inconsistency that
mother herself did over the course of the case. The court’s order
regarding creative solutions at the 12-month hearing was apparently
based on mother’s statement at that hearing that she wanted to remain
in the home. Similarly, mother’s arguments here regarding the need
for in-home supportive services and a public health nurse to alleviate
stress in mother’s and father’s relationship assume mother would
remain in a relationship with father. But during the last review period,
mother denied ever saying that she wanted to remain in a relationship
with father and insisted instead that she wanted to leave the house.
Mother’s changing desires placed the Bureau in a difficult position: if it
followed the juvenile court’s orders from the hearing, mother could
argue it failed to take into account her new desires, while if it followed
those desires, mother could fault the Bureau, as she now does, for
failing to follow the juvenile court’s orders.
In these circumstances, the Bureau reasonably decided that
couples counseling was a creative solution that would help mother
remain in the home, if she decided that was her goal. The Bureau also
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offered other services to meet mother’s desire at the time of leaving the
home. In one meeting with mother during the final review period, the
social worker offered to assist mother on the spot with calling her
physician to begin a referral to enter a skilled nursing facility. Mother
did not accept the offer. Mother later refused to communicate with the
social worker. The social worker also noted that mother made no
movement toward leaving the home after a domestic violence counselor
told mother she should enter a skilled nursing facility. These services
were reasonable under the circumstances. (In re Michael S. (1987) 188
Cal.App.3d 1448, 1463, fn. 5 [there is no “requirement that a social
worker take the parent by the hand and escort him or her to and
through classes or counseling sessions”].)
Mother’s position that the social worker should have assisted
mother in establishing her eligibility for Regional Center services
assumes without evidence that mother was eligible. The social worker
tried for almost two years to secure the necessary documentation,
including by asking the maternal grandmother for information, but
without success. To demonstrate the social worker’s attempts were
unreasonable, mother must point to some evidence to suggest that a
reasonable effort had a chance of success. She has not done this, so we
must infer from the record that mother was ineligible.
Like father, mother also faults the Bureau for failing to assess
her for any cognitive issues, noting that the Bureau described mother
at the beginning of the case as presenting with mental and/or
developmental disabilities, the court appointed her a guardian ad litem,
and the couples therapist expressed concerns about mother’s and
father’s cognitive functions. Mother’s functioning changed fairly
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dramatically during the case, evolving at one point over the course of
several days from an inability to communicate with more than a few
words and head gestures to the expression of complete thoughts in full
sentences. During the final review period in particular, mother had no
difficulty communicating or explaining her desires to social workers
and her guardian ad litem. She also testified clearly at the 18-month
review hearing. The therapist did express concerns about mother’s
cognitive function, but the therapist also admitted it was difficult to tell
the difference between her impaired functioning and her manipulative
tactics of claiming not to know or remember things. Mother also
ignores the fact that she was diagnosed as having conversion disorder,
epilepsy, and post-partum depression. Mother does not acknowledge
these diagnoses, explain why they were insufficient to explain her
behavior, or demonstrate why the Bureau should have decided mother
required further assessment. These facts are therefore different from
Patricia W. v. Superior Court, supra, 244 Cal.App.4th at page 401,
where a child was removed from her parents’ custody because the
mother ran out of medication and had relapsed into schizophrenic
episodes that involved violent hallucinations of harming and killing
their child. Patricia W. held that in such circumstances, the social
services agency was obligated to offer services to address the mother’s
difficulty remaining medicated. (Id. at p. 422.) There is no indication
here that mother suffered from an undiagnosed condition or that the
Bureau could have improved mother’s use of services through the
straightforward step of helping her take medication.
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C. Visitation
Even when a court terminates services at an 18-month review
hearing and sets a hearing under section 366.26 to determine the
permanent plan for a child, the court “shall continue to permit the
parent or legal guardian to visit the child unless it finds that visitation
would be detrimental to the child.” (§ 366.22, subd. (a)(3).) On appeal,
we review a juvenile court’s visitation order for abuse of discretion. (In
re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)
The parents contend the juvenile court abused its discretion in
reducing visitation from two hours per month to one hour per month.
They point out that the juvenile court did not explain the basis for the
reduction in visitation. They also note that evidence in the record
regarding the visits during the last review period was largely positive,
with the parents behaving appropriately and both the minor and
parents enjoying the visits.
The Bureau defends the juvenile court’s order by noting that the
minor had become ambivalent towards visitation with the parents.
This does not demonstrate that continuing the prior level of visitation
would have been detrimental to the minor. The minor’s ambivalence
about visitation related to the need to wear masks and adhere to social
distancing requirements during in-person visits because of the COVID-
19 pandemic. The minor had also recently stopped asking for calls or
video chats with the parents in addition to the regular visits. However,
the minor continued to express a desire to remain in contact with the
parents. Thus, the record falls short of demonstrating that the minor
was opposed to visits. Moreover, even if the minor were ambivalent,
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that would not constitute evidence that continued visitation for two
hours per month would be detrimental to the minor.
The Bureau also notes that the juvenile court had terminated
reunification services and set a section 366.26 hearing, apparently
implying that visitation was detrimental because of the impending
hearing at which mother’s and father’s parental rights might be
terminated. The mere termination of services is not a basis to reduce
or eliminate visitation. The Board’s argument to the contrary ignores
the statutory presumption that visitation must continue even when
reunification services are terminated unless such visits would be
detrimental. (§ 366.22, subd. (a)(3).) Additionally, “[m]eaningful
visitation is pivotal to the parent-child relationship, even after
reunification services are terminated,” because only with visitation can
a parent hope to satisfy the statutory exception to termination of
parental rights in section 366.26, subdivision (c)(1)(B)(i) for a parent
who has a beneficial parent relationship with a child. (In re Hunter S.
(2006) 142 Cal.App.4th 1497, 1504–1505.)
Because there is no evidence in the record to support a finding
that visitation at the prior level would be detrimental to the minor, we
conclude the juvenile court abused its discretion in reducing visitation
for the parents to one hour per month. We will therefore direct the
juvenile court to vacate its visitation order and continue the prior level
of visitation unless it finds such visitation would be detrimental to the
minor.
D. Bonding study
In their final argument, the parents argue the juvenile court
erred by denying their motions for a bonding study. Evidence Code
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section 730 empowers a juvenile court to appoint a fact-finding expert
witness to study the bond between a parent and child. (In re Jennifer
J. (1992) 8 Cal.App.4th 1080, 1084.) Such a bonding study analyzes
the strength and nature of the relationship between the parent and
child, which can be relevant at a hearing under section 366.26 to the
question of whether the beneficial parent-child relationship exception
to termination of parental rights in section 366.26, subdivision
(c)(1)(B)(i) applies. (Abbott et al., Cal. Juvenile Dependency Practice
(Cont.Ed.Bar 2020) § 8.33.) A bonding study can be particularly helpful
when there is “a need for a more objective, third party analysis to assist
in determining the extent to which a parental relationship does exist,
and in determining (to the extent possible) the detriment to the child if
the relationship with the parent is severed by a termination of parental
rights.” (Ibid.) However, “[t]here is no requirement in statutory or
case law that a court must secure a bonding study as a condition
precedent to” terminating parental rights. (In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1339.) When reviewing the denial of a request for a
bonding study, “[t]he applicable standard of review is whether, under
all the evidence viewed in a light most favorable to the juvenile court’s
action, the juvenile court could have reasonably refrained from ordering
a bonding study.” (Id. at p. 1341.)
The juvenile court denied mother’s and father’s motions for a
bonding study in part because it was concerned a study could be
intrusive or involved for the minor. Mother points out that there was
no evidence regarding what a bonding study would entail, so the
juvenile court’s concerns about a study being intrusive or detrimental
to the minor are speculative. This is true. However, given that the
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parents were requesting the bonding study and therefore had the
burden of proof, the absence of evidence in the record regarding the
nature of the proposed bonding study weighs against their request, not
for it.
In any event, even if the juvenile court’s concerns about
detriment were speculative, the juvenile court also denied the parents’
motion because it believed the record already presented an in-depth
description of the visits between the minor and the parents. Father
attacks this conclusion by contending the record of the visits between
the minor and parents was insufficient because the Bureau was not
neutral on the issue of termination of parental rights. As proof of bias,
father points to the Bureau’s admission that it discussed adoption with
the minor before the hearing and told the minor that adoption would
not mean severing contact with the parents.
Even assuming that these discussions with the minor tipped the
Bureau’s hand regarding its position on adoption, that position does not
appear to have skewed the Bureau’s descriptions in its reports of the
visits between the minor and the parents. Those reports are almost
uniformly positive. The social workers’ reports noted that the parents
consistently visited with the minor and described father as having a
loving bond with the minor and encouraging the minor to engage with
mother, despite mother’s difficulties with mobility and communication.
The juvenile court therefore did not abuse its discretion by rejecting the
claim that a bonding study was needed because of the Bureau’s bias.
Mother contends the Bureau’s descriptions of the numerous visits
between the minor and the parents were inadequate to determine the
minor’s relationship with the parents. She notes that the reports were
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written by several different social workers and maintains the
descriptions of the visits, while positive, are insufficiently detailed. The
concurrence of several different social workers regarding the positive
nature of the parents’ numerous visits serves only to support the
parents’ position, not undercut it. Also, while mother is correct that
some visit descriptions are less detailed than others, the record as a
whole is extensive, describing visitation throughout the two and a half
years after the Bureau filed its first petition. The juvenile court was
well aware of this record, as demonstrated by the court’s remarks in its
findings at the 18-month review hearing regarding the minor’s bond
with the parents, particularly father.
Mother further contends that the nature and importance of her
bond with the minor is difficult to assess from the record of visits
because her medical issues limited her communication and
participation in visits and because both parents visited the minor
together. The social workers did describe how mother’s medical
condition affected her visits with the minor, especially in contrast to
father’s more active role in the visits, but these facts are relevant
evidence as to the nature of the minor’s bond with mother. The record
is not inadequate simply because it does not favor mother’s position. A
bonding study is also not necessary merely because mother’s
communication and mobility had improved by the 18-month review
hearing. “The kind of parent-child bond the court may rely on to avoid
termination of parental rights under the exception provided in section
366.26, subdivision [(c)(1)(B)(i)] does not arise in the short period
between the termination of services and the section 366.26 hearing.
‘The exception applies only where the court finds regular visits and
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contact have continued or developed a significant, positive, emotional
attachment from child to parent. [¶] At the time the court makes its
determination, the parent and child have been in the dependency
process for 12 months or longer, during which time the nature and
extent of the particular relationship should be apparent.’ ” (In re
Richard C. (1998) 68 Cal.App.4th 1191, 1196.)
Finally, the parents note that the minor had been diagnosed with
an autism spectrum disorder and argue this disorder’s impact on the
relationship between the minor and the parents was worthy of expert
analysis. This diagnosis perhaps could have justified the juvenile court
in granting the request for a bonding study. But we cannot say that
such a diagnosis necessarily means the juvenile court erred by denying
the request. If the parents believed the minor’s autism spectrum
disorder prevented the Bureau from accurately assessing the nature of
the family visits, the parents should have requested a bonding study
long before the 18-month review hearing.
A court considering whether to obtain a bonding study is not
operating in a vacuum, especially when the request comes at the
conclusion of the 18-month review hearing in preparation for a
selection and implementation hearing under section 366.26. Bonding
studies take time, usually requiring continuance of the section 366.26
hearing. (In re Richard C., supra, 68 Cal.App.4th at p. 1197 [“Bonding
studies after the termination of reunification services would frequently
require delays in permanency planning”]; Abbott et al., Cal. Juvenile
Dependency Practice, supra, § 8.33.) Even if bonding studies were
required only when children have mental health diagnoses like the
minor here, such requests could be made in many dependency cases,
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delaying permanency for children in need of stability. “While it is not
beyond the juvenile court’s discretion to order a bonding study late in
the process under compelling circumstances, the denial of a belated
request for such a study is fully consistent with the scheme of the
dependency statutes, and with due process.” (In re Richard C., at
p. 1197.) We thus conclude the court did not abuse its discretion in
denying the parents’ request for a bonding study.
III. DISPOSITION
The writ petitions are granted in part. Let an extraordinary writ
issue directing the juvenile court to vacate its order setting visitation
for mother and father at one hour, one time per month. The court shall
re-examine the issue of visitation and continue to permit mother and
father to visit the minor for one hour, two times per month unless it
finds that such visitation would be detrimental to the minor. In all
other respects, the writ petitions are denied. The requests for a stay of
the April 7, 2021 hearing are denied as moot. This decision is final as
to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
L.B. v. Contra Costa County Superior Court (A161673)
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