Jacqueline C. v. Superior Court CA4/1 ( 2014 )

Filed 5/5/14 Jacqueline C. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JACQUELINE C., D064903
Petitioner,
(San Diego County
v. Super. Ct. No. EJ3247)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section
366.26 hearing. Gary M. Bubis, Judge. Petition denied.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner
Jacqueline C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
Dependency Legal Group of San Diego and Amanda J. Gonzales for Minor.
Jacqueline C. seeks review of a juvenile court order setting a hearing under Welfare
and Institutions Code section 366.26.1 Jacqueline challenges the finding that she was
offered or provided reasonable reunification services. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Jacqueline C. is the mother of Nicholas C., who is now 13 years old. Nicholas has
Lennox-Gastaut syndrome, a severe form of epilepsy that is usually accompanied by mental
retardation. As a result, Nicholas suffers from "significant neurological, cognitive,
emotional and behavioral challenges which impact him and those who care for him." He
has a history of serious behavioral problems, including aggression, tantrums and running
away, and functions at an emotional and psychological age of a two- to four-year-old child.
The early history of Nicholas's dependency proceedings is detailed in our
nonpublished opinion, Jacqueline C. v. Superior Court (Aug. 22, 2012, D061394). Briefly,
Nicholas was in the foster care system in Michigan until Jacqueline, his older sister, adopted
him and another sibling. Nicholas was removed from Jacqueline's care in August 2010 due
to her inability to manage his destructive behaviors, which included running away, trying to
set Jacqueline on fire, threatening her with a knife, destroying furniture, and urinating and
defecating in his bedroom. Jacqueline's family reunification plan required her to participate
in individual therapy and parenting education classes. She had unsupervised visitation with
Nicholas until January 2011, when he left her home while she was in the bathroom.
1 All further statutory references are to the Welfare and Institutions Code.
2
After searching for a suitable foster care home for Nicholas for seven months, the
San Diego County Health and Human Services Agency (the Agency) placed him in a special
needs foster care home in January 2011, with support services. When Nicholas was first
placed with his new caregivers, the extent and severity of his dysfunction exceeded what
was typically manageable within foster home settings. For the most part, Nicholas's foster
care parents were able to stabilize his behaviors. Nicholas had a strong need for structure
and did not respond well to changes in his routine. He continued to demonstrate a
consistent pattern of aggression and tantrums after visits with Jacqueline.
At the 12-month review hearing in February 2012, the juvenile court terminated
reunification services and set a section 366.26 hearing. Jacqueline filed a petition under
California Rules of Court, rule 8.4522 asserting that she had not been offered or provided
reasonable reunification services. (Jacqueline C. v. Superior Court, supra, D061394.)
This court concluded that Jacqueline had not been offered or provided with
reasonable reunification services because her case plan was not carefully tailored to provide
the training, education and services that were needed to parent a special needs child; her
therapist's treatment plan did not pass TERM team review; there had been delays
implementing other recommended services; and she had not consistently been offered or
provided reasonable visitation services. In August 2012, this court issued a writ of mandate
directing the juvenile court to direct the Agency "to develop a case plan that provides
Jacqueline with comprehensive, specialized training for caregivers of children with special
2 Further rule references are to the California Rules of Court.
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needs, and provide other reasonable services to her, including visitation, for a minimum of
six months." (Jacqueline C. v. Superior Court, supra, D061394.)
In October 2012, the Agency developed a new family reunification plan to provide
Jacqueline with the same services that Nicholas's foster family received through the Agency,
Toward Maximum Independence (TMI). Jacqueline was assigned a TMI team to work with
her in her home. Once services began, TMI would refer Jacqueline and Nicholas for
conjoint therapy with the San Diego Center for Children's Foster Family Agency
Stabilization and Treatment (FFAST) program. The plan anticipated that TMI would work
with Jacqueline and Nicholas three to four times a month, including in-home visits at least
twice a month. In addition, the new case plan required Jacqueline to undergo a
psychological evaluation and participate in individual therapy.
The Agency implemented the first step of the plan which was to provide therapeutic
support to Nicholas, who insisted that he did not want to visit Jacqueline. His therapist used
strategies that were designed to help Nicholas manage his anxiety, decrease his aggressive
behavior, and help him become less fearful about seeing Jacqueline. However, whenever
Jacqueline's name was mentioned, Nicholas became irritable, his face turned bright red, and
he said that he did not want to "be taken away" from his foster family. He expressed
homicidal ideation toward Jacqueline. In January, the therapist recommended that efforts
continue to prepare Nicholas for conjoint therapy with Jacqueline. However, when Nicholas
talked about seeing Jacqueline, he would cry hysterically, kick, scream, and yell. In early
February, while driving back from therapy, he pulled the foster mother's hair and would not
let go, nearly causing her to have an accident. Nicholas had nightmares that he was being
taken away from his foster family by monsters and by Jacqueline. At school, he tried to hit
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and bite his teacher. Nicholas's therapist reported that he was deteriorating and was not able
to tolerate exposure to the mention of Jacqueline's name.
The Agency filed a section 388 petition asking the juvenile court to issue a no contact
order between Nicholas and Jacqueline, and to stop therapy directed at facilitating visits.
Jacqueline filed a section 388 petition requesting an independent case evaluation to
determine what services were required for her to reunify with Nicholas.
On May 16, the juvenile court granted the Agency's request for a no contact order
and also granted Jacqueline's request for an independent case evaluation.
The juvenile court held a contested 18-month review hearing on November 4. The
Agency recommended that the court terminate reunification services and set a section
366.26 hearing. The court admitted in evidence the Agency's reports and statements that
Jacqueline made in e-mails to the social worker and other persons who were involved in
Nicholas's case.
According to Jacqueline's TMI team, she made only minimal efforts to participate in
their services. She was routinely late to appointments and complained that she was tired or
did not feel well. Jacqueline did not keep in touch with Nicholas by sending him letters or
birthday presents. She did not pursue educational opportunities for parents of special needs
children. Mary Heed, the behavioral consultant who was working with Jacqueline through
the TMI program, said that Jacqueline was being given the tools that she needed to
effectively parent Nicholas but would not "pick them up."
An evaluating psychologist concluded that Jacqueline was suffering from a
generalized anxiety disorder. She was very independent and did not have an adequate
support system. Jacqueline would not ask others for help.
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Robert Geffner, Ph.D. and his team reported that they had made several attempts to
interview Jacqueline, but she made little effort to meet with them, and further reported that
her behavior was consistent with other providers' statements regarding her level of
involvement with services. Without Jacqueline's involvement and improved motivation and
efforts, Dr. Geffner could not recommend reunification. In Dr. Geffner's view, Jacqueline
had demonstrated that she was not ready to fully participate in her case plan. Once she
worked through the issues that were impeding her ability to properly participate in the
reunification process, she should participate in conjoint therapy with Nicholas as well as in
parenting education for special needs children. Jacqueline appeared to be unaware of
Nicholas's developmental stages, safety requirements, and needs. In view of Jacqueline's
lack of participation, Dr. Geffner concluded that it was in Nicholas's best interest to remain
with his foster parents. Dr. Geffner interviewed Nicholas and asked him about Jacqueline.
Nicholas firmly and abruptly told the evaluator that he did not want to talk about her. When
pressed for a reason, Nicholas said Jacqueline was "mean" and quickly changed the subject.
The juvenile court found that reasonable services had been provided, stating:
"The evidence speaks for itself. I'm not going to get too deeply
into this. As to the visitation orders, I know that the Court of Appeal
said visits shall occur. This court based on all of the circumstances
could not order those visits to occur because I just could not do it based
on the evidence. I'm supposed to always act in the best interests of the
child and [visitation] would not be in the best interests of this child, and
you know, just a few observations, first of all, my heart goes out to this
mother. I mean, she took on a huge, huge responsibility and then her
husband dies. She was put in a bad situation, and I think she made
really good efforts. I think it would be overwhelming. In that same
regard, I don't know why Nicholas all of a sudden became so averse to
her, but he is as a toddler and has a lot of emotional problems."
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The juvenile court terminated family reunification services and set a section 366.26
hearing.
Jacqueline petitioned for review of the juvenile court's findings and orders.
(§ 366.26, subd. (l); rule 8.452.) She asks this court to vacate the findings and orders
terminating reunification services and remand the case with orders to provide six months of
family reunification services. This court issued an order to show cause and the Agency
responded.
DISCUSSION
There Is Substantial Evidence to Support the Finding that
Reasonable Services Were Offered or Provided to Jacqueline
Jacqueline argues that the services that were offered to her could not be fully
implemented without visitation. She contends that the Agency was required to provide her
with "hands-on training" with Nicholas, and that without visitation, she was deprived of a
meaningful opportunity to reunify with her son. Jacqueline maintains that the juvenile court
improperly delegated its authority by failing to make or enforce an order for visitation. She
further argues that the juvenile court erred when it suspended visitation in May 2013.
At an 18-month status review hearing for a child, if the court does not return the child
to the physical custody of the parent, the court shall continue the case only if it finds that
there is a substantial probability that the child will be returned to the physical custody of his
or her parent and safely maintained in the home within the extended period of time, or that
reasonable services have not been provided to the parent. (§ 366.21, subds. (f) & (g).)
Unlike the standard of proof for a reasonable services finding at a six-month or 12-month
review hearing, which requires a finding by clear and convincing evidence, the standard of
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proof required for a reasonable services finding at an 18-month review hearing is
preponderance of the evidence. (Katie V. v. Superior Court (2005) 130 Cal. App. 4th 586,
595.) At the 18-month hearing, the authority of the juvenile court to set a section 366.26
hearing is not conditioned on a reasonable services finding. (Denny H. v. Superior Court
(2005) 131 Cal. App. 4th 1501, 1511.)
To support a finding that reasonable services were offered or provided, "the record
should show that the supervising agency identified the problems leading to the loss of
custody, offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made reasonable efforts
to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991)
235 Cal. App. 3d 403, 414.) Reunification services should be tailored to the particular needs
of the family. (David B. v. Superior Court (2004) 123 Cal. App. 4th 768, 793.) The child
welfare agency must make a good faith effort to provide reasonable services responsive to
each family's unique needs. (Mark N. v. Superior Court (1998) 60 Cal. App. 4th 996, 1010.)
The adequacy of a reunification plan and the reasonableness of the agency's efforts are
judged according to the circumstances of each case. (Robin V. v. Superior Court (1995)
33 Cal. App. 4th 1158, 1164.) "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.)
A normal part of reunification services is visitation between the parent and his or her
child. (In re Nicholas B. (2001) 88 Cal. App. 4th 1126, 1138.) Visitation must be as frequent
as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) "At the
same time, visitation orders must provide for 'flexibility in response to the changing needs
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of the child and to dynamic family circumstances.' [Citation.] 'In addition, the parents'
interest in the care, custody and companionship of their children is not to be maintained at
the child's expense; the child's input and refusal and the possible adverse consequences if a
visit is forced against the child's will are factors to be considered in administering visitation.'
[Citation.]" (In re Brittany C. (2011) 191 Cal. App. 4th 1343, 1356.) "No visitation order
shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).)
We review a reasonable services finding to determine if it is supported by substantial
evidence. (In re Christina L. (1992) 3 Cal. App. 4th 404, 414.) We do not resolve conflicts
in the evidence, pass on the credibility of witnesses or determine where the preponderance
of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal. App. 4th 965, 969.) The
burden is on the petitioner to show the evidence is insufficient to support the juvenile court's
findings. (In re L.Y.L. (2002) 101 Cal. App. 4th 942, 947.)
In view of this court's directive to offer reasonable visitation services to the family,
and Nicholas's opposition to visiting Jacqueline, the juvenile court acted within its discretion
when it fashioned a visitation order that relied on therapeutic modalities. (See In re Anna S.
(2010) 180 Cal. App. 4th 1489, 1501-1502 [generally, on remand, the juvenile court fashions
orders after assessing the child's current circumstances and needs].) We are not persuaded
by Jacqueline's contention that the juvenile court delegated its authority to determine
visitation. The record shows that the juvenile court ordered a plan to provide therapeutic
services to Nicholas to facilitate visitation. However, Nicholas began to deteriorate after
therapy began, becoming combative, anxious and aggressive. The social worker
acknowledged that it was difficult to determine why Nicholas felt so strongly about not
visiting Jacqueline, but it was evident from his behaviors that he was not able to tolerate any
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contact with or discussion about her. Because of these developments, the Agency filed a
section 388 petition asking the juvenile court to modify its previous visitation order. The
juvenile court has the power to suspend a visitation plan when continuing it would be
harmful to a child's emotional well-being. (In re Brittany C., supra, 191 Cal.App.4th at
p. 1357.) Here, the juvenile court's decision to suspend visitation was in response to
Nicholas's deteriorating emotional well-being. This was not an impermissible delegation of
judicial authority to a third party to determine whether visitation is to occur. (In re Hunter
S. (2006) 142 Cal. App. 4th 1497, 1505.)
With respect to Jacqueline's claim that the juvenile court did not make a finding on
the record that visitation would be detrimental to Nicholas, both the Agency and minor's
counsel correctly point out that Jacqueline did not appeal from the order suspending
visitation and has thus forfeited her right to claim error on appeal. To the extent that her
claim relates to the reasonable services finding, the record shows that the attempt to provide
visitation to Jacqueline had extremely adverse effects on Nicholas's behaviors, including
homicidal ideation, aggression, bedwetting, nightmares, and hysterical crying. The record
shows that the juvenile court was acutely aware of Nicholas's reaction to any proposed
visitation with Jacqueline, and that the no contact order was based on the court's
determination that the previous visitation plan was detrimental to Nicholas.
Following remittitur of this court's opinion in Jacqueline C. v. Superior Court, supra,
D061394, the juvenile court ordered a reunification plan that was reasonably tailored to the
needs of the family. Jacqueline was offered or provided services through the Agency, the
San Diego Regional Center, the TMI agency, the FFAST program and other educational
programs for parents of children with special needs. She also participated in a
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psychological evaluation and individual therapy. In addition to those services and others,
Nicholas received therapeutic support services to facilitate visitation. Nicholas's
tremendous needs for emotional stability and security impeded the full implementation of
that plan.
The record shows that the Agency made a good faith effort to provide reasonable
services that were responsive to the family's unique needs, including offering visitation.
(Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1010.) However, Jacqueline's
receptivity to services was mixed, and she was not willing to engage in all the services that
were offered to her. Significantly, when Jacqueline was contacted to arrange visitation, she
would not commit to visiting Nicholas on Saturday mornings. Further, she refused to
participate in an independent case evaluation that she had requested. We conclude that there
is substantial evidence to support the juvenile court's finding that reasonable services were
offered or provided to the family.
DISPOSITION
The petition is denied.
AARON, J.
WE CONCUR:
McINTYRE, Acting P. J.
IRION, J.
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