D.H. v. Superior Court
Filed 1/31/14 D.H. v. Superior Court CA1/1
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opinion has not been certified for publication or ordered published for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 ONE
D.H.,
Petitioner,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY,
Respondent;
SAN MATEO COUNTY HUMAN SERVICES AGENCY et al.,
Real Parties in
Interest.
A139602
(
Super. Ct. No. 81521)
Two weeks after the minor was ordered
placed in the custody of her presumed father D.H., the minor alleged he sexually
abused her. The juvenile court issued a
ordered a stay of the order placing the minor with D.H. The San Mateo County
(Agency), in turn, filed a Welfare and Institutions Code section 387
sexual touching and risk of acute stress disorder, and the minor filed a
section 388 petition seeking reversal of the custody order. After the Agency struck the touching
allegation, the court granted both petitions.
The court also determined D.H. had received more than 12 months of
for a section 366.26 hearing.
D.H. has filed the instant writ petition
challenging the juvenile court’s adequate services determination and order
setting a section 366.26 hearing. We
conclude substantial evidence supports the court’s findings of adequate
services and substantial risk of detriment, and therefore deny the petition.
We set forth the background of this
case in our opinion in case number A138121, and thus quote from that opinion
“In June 2011, the Agency filed a
section 300 petition regarding K.R. and her half siblings, who were then living
with their mother. The petition alleged failure
to protect based on the mother’s substance abuse and involvement in
placed in a foster home.
“The following month, the Agency
filed an amended petition identifying K.R.’s alleged father and alleging his
whereabouts were unknown. Following a
contested hearing, the juvenile court sustained the amended petition. On August 15, the court declared the minor a
home would be contrary to [her] welfare,’ and committed her to the care,
custody and control of the Agency.
“In the meantime, on August 1, D.H.
contacted the social worker and requested placement of the minor and her half brothers.
D.H. stated he and the mother ‘began
dating when [K.R.] was born and had known each other for a few months prior.
[D.H.] stated they met in Merced County when he drove a bus for a program that brought people to church on
Friday evenings.’ The Agency indicated
it was ‘assessing the situation, but there are concerns about [D.H.’s] mental
health and substance abuse history as well as the situation with his own
children.’
“On October 18, D.H. filed a ‘De Facto Parent Statement.’ In it, he indicated he was the ‘Step Dad
trying to get all 3 kids back per CPS since July.’ As to K.R., he stated he had been her
stepfather for over three years, and that she lived with him from August 2008
through September 2010, and from April 2011 through May 2011. D.H. also indicated he had responsibility for
the day-to-day care of the minor during those dates. He stated, ‘I met [K.R.] the day she was born
I am the only father she has ever know[n].’ In an attached letter, D.H. stated the
children had been living in his studio apartment for two months ‘prior to
[Mother’s] eviction and Jennifer Toler (Da[ly] City CPS) did come see and
approved of the children staying here before they moved in.’ He also attached a September 13, 2011, letter
from the Agency stating ‘approval of your home for placement of the above named
children is [r]escinded, the denial or rescission of approval of your home is
based upon the following: [¶] (a)
The[] dwelling in which you currently reside (studio) would not provide sufficient
space for the three children, and their respective ages/sex.’
“The court set D.H.’s request for de
facto parent status for hearing on February 8, 2012, the date previously set for the six-month review hearing. At the hearing, the court appointed counsel
for D.H. and continued the issue of de facto parent status until March 9. The hearing was apparently continued twice
more, until May 3. At the hearing, the
court ordered supervised visits between the minor and D.H., and again continued
the issue of de facto parent status until June 7.
“Two supervised visits occurred in
May, which the social worker described as ‘appropriate.’ The Agency indicated it was ‘opposed to the
de facto parent request,’ but was in agreement with continuing visitation
because ‘the visits have been appropriate.’
The Agency also observed the minor ‘does not appear to have a connection
with [D.H.] although she was raised by him for the first two [and a] half years
of her life.’
“In preparation for the June 7
hearing, D.H.’s attorney filed a trial brief seeking ‘presumed father’ status. At the hearing, the court granted D.H.’s
request for de facto parent status, and continued the issue of presumed father
status until July 19.
“D.H. had two more supervised
visitations with the minor in June, which the social worker again described as
‘appropriate.’ The social worker
indicated D.H. was ‘more aware of the child’s cues as when the child wants to move
on to another activity. . . .
The child . . . appears to build rapport with [D.H.] as she continues to
have visitation.’ The social worker also
spoke with D.H., who told her he lived with the minor for the first two and a
half years of her life, and cared for her while Mother worked. He stated the minor’s ‘well-being was his main
concern and that he did not want the mother’s children in foster care, as he is
willing to care for [them] and provide them with a stable home.’ In addition, the social worker spoke with the
mother about D.H., and she indicated she was ‘in agreement with [D.H.] being
declared the presumed father of the child . . . . The mother stated that the child . . .
recognizes the name [D.H.] as being her dad.’ The Agency agreed D.H. should be granted de
facto parent status (which had already been granted). It also stated, ‘it appears that [D.H.] is
also a potential presumed father for the child’ and recommended the court
declare him “to be the presumed father of [K.R.].â€
“At the July 19 hearing, the court
found D.H. to be the minor’s presumed father.
No party objected. The minor’s counsel
merely observed D.H. was ‘aware that this matter has been pending for some
time, and he would like an opportunity to participate in services.’ The court ordered the Agency to prepare a
reunification plan for D.H. and continued the matter until August 21.
“In its August 20 report, the Agency
stated ‘In regards to [D.H.] the presume[d] father . . . [, the] Agency respectfully
recommends that the Matter be set for a continued hearing to address services
for [D.H.]. The[re] has not been enough
time to address [D.H.’s] protective capacity especially around contact with the
mother, to address [D.H.’s] mental health state as he has indicated th[at] he
was 5150’d and that he was on psychotropic medications and to address any other
services that he may need t[o] assist with facilitating reunification.’ The Agency recommended termination of services
to Mother, supervised visitation with D.H. and continuing the matter of
services for D.H. until September 11. In
an addendum report filed the following day, the Agency recommended the minor
and D.H. ‘participat[e] in, [and] successfully complete, a program of
counseling/psychiatric therapy as directed by the social worker, with specific
treatment to be based upon an assessment completed by an approved therapist,’
and that D.H. participate in a mental health evaluation.
“At the August 21 hearing, the court
terminated services to Mother and ordered D.H. to participate in
counseling/psychiatric therapy as directed by the social worker, a parenting
class, dyad therapy, and therapeutic visitation. The court also ordered D.H. to participate in
a mental health evaluation, and authorized unsupervised visitation with the
minor ‘when deemed appropriate by the Agency.’
“Approximately one month later, D.H.
had his first unsupervised visit with the minor. After five minutes, D.H. called the foster
mother because K.R. was crying and he could not console her. D.H. had three more unsupervised visits with
the minor, with the foster mother in attendance. The minor, then four years old, told the
social worker she did not want to visit D.H.
“D.H. also participated in five
‘collateral’ therapy sessions with the minor’s therapist between September 14, 2012 and November 6, 2012. When the social worker informed the therapist
the Agency was not recommending placement with D.H., the therapist stated ‘this
might change when Dyad Therapy occurs between the child and [D.H.].’
“Psychologist Robin Press conducted
a psychological evaluation of D.H. He
tested in the high average range of intelligence. In her report, Dr. Press concluded his ‘character
is fundamentally collaborative, altruistic and kind. He is prone to blame himself for problems
rather than to find fault with others.
His motives for caring for [K.R.] appear genuinely humane. . . . He has achieved a stable sobriety and has also
managed to achieve stability in his mood although he still struggles with
experiences of apathy, dysphoria, detachment, emotional deadness and a sense of
physical malfunction. . . . [D.H.]
tests as capable as functioning as loving, responsible, stable parent to this
child at this time. He would be
considered a safer parent if he returned to AA meetings at this time and if he
agreed to seek treatment at any time in the future if his symptoms of
depression worsened.’
“In the Agency’s December 12 status
review report, the social worker indicated a dyad therapy session with D.H. and
K.R. occurred on November 16, 2012. The therapist reported the minor ‘ “did
not allow [D.H.] into her play until the very end of the session.†’ The therapist recommended a bonding study. The social worker told the therapist the court
had ordered that dyad therapy occur more than once a week, but the therapist
responded ‘this was [my] clinical decision.’ The social worker also indicated that despite
the court’s August 21 order, she had not referred D.H. to a parenting class and
had not referred him for therapeutic visitations.
“The 18-month review hearing, as
well as D.H.’s placement request, was heard over eight days between December 21, 2012, and January 28, 2013. During this time period, the minor’s attorney,
on January 22, 2013, filed a section 388 ‘motion’ to set aside D.H.’s presumed
father status ‘based upon new information obtained through testimony at trial.’
“On March 7, 2013, the court denied the section 388 motion, ruling it did ‘not state
new evidence for a change of circumstances that is in the best interests of the
child’ and the testimony at the review hearing was simply an ‘increased level
of specificity . . . not new information.’ The court also found the reunification
services provided to D.H. ‘were reasonable in the context of this case.’ The court further found the Agency had not met
its burden of establishing, either by substantial evidence or clear and
convincing evidence, that returning the minor to D.H.’s custody would create a
substantial risk of detriment to her, and ordered a “transitional return†over
a 30-day period.†(In re K.R. (Jan. 31, 2014, A138121) [nonpub.
opn.].)
The first overnight visit of the
transitional return occurred a week later, on March 16. D.H. testified the child vomited on herself
and wet the bed during the night. The
social worker was to pick her up at a Starbucks, and the foster mother was told
not to be there. Nevertheless, the
foster mother appeared and demanded to know why the minor did not have her
“mini luggage.†D.H. was upset and asked
the social worker why the foster mother was there and allowed to yell at him. The social worker stated the foster mother was
not yelling, but was “stern†and “firm.â€
The foster mother went into the Starbucks, then “abruptly†came out
again and in the minor’s presence “stated in a firm voice†the luggage belonged
to her daughter, and her daughter had also lent the minor a toy. The foster mother later reported the minor wet
the bed during her nap that day, which had “never happened before with a nap.â€
A second overnight visit was
scheduled to begin on March 22. The
transfer was to take place at the mental health program clinic following a
“transitional†therapy session with the minor and her foster mother, where they
“could talk about some of the feelings that might come up around . . . her
transition back to [D.H.].†There was a
confrontation between the foster mother and D.H., who was again upset that the foster
mother was there during the transfer. One
of the psychiatric social workers testified she was at the office on that day,
and observed the minor crying and very sad. The minor was with D.H., who appeared angry
and said “what was going on with [the minor] was all [the therapist’s] fault.†The minor appeared “very distressed and sad,â€
and the psychiatric social worker observed D.H. did not attempt to sooth her. The minor’s therapist, Marian Sanchez,
indicated the minor “was very clingy†with the foster mother and began crying. Sanchez accompanied the minor and D.H. in the
elevator to leave the building. While in
the elevator, D.H. stated “ ‘you are doing this to [the minor]’ and ‘I am going
to ask for a new individual therapist for [the minor].’ †The minor “had her head down and was silent.†The therapist stated she “is concerned that
[D.H.] did not take into account how his behavior would affect my client, [the
minor].â€
When the minor returned from the
three-night visit with D.H., she vomited during dinner. That evening, while in the bathtub, the foster
mother reported the minor said D.H. had touched her “gina,†meaning vagina.
On April 1, the social worker and a
police officer interviewed the minor at her foster home. The minor said she had told her foster mother
D.H. touched her, and demonstrated it was in her crotch area. She told the officer it was over her clothing,
she had told D.H. she did not like it, and he had stopped. She also was asked “if anyone had told her
what to say or that if she knew someone was going to come over and talk to her
and she stated, ‘Yes, my [foster] mommy told me.’ †The same day, a forensic interview of the
minor was conducted. Officer Boyajian watched
the interview, which was recorded. Officer Boyajian observed the minor seemed
intelligent and was interactive with the interviewer, until the subject of D.H.
was raised. Then, “she would change the
subject or would just not answer the questions.†During that interview, the minor did not state
any inappropriate touching occurred.
Also on April 1, a nurse
practitioner conducted a forensic examination of the minor and concluded there
was “definite evidence of sexual abuse and/or sexual contact,†based on an
“abrasion-pinpoint on hymen fossa junction.†The minor’s counsel filed a section 388
petition the same day seeking postponement of order placing the minor with D.H.
“until the investigation is complete.†A
second forensic examination was conducted on April 3. The reviewing physician indicated “There is an
area of the hymen that has a brown lesion on it. The examiner noted it to be an abrasion. On my review it appears brown and irregular,
more similar in appearance to normal pigmentation, such as a nevus (‘freckle’
or ‘mole’). It appears the same on both
dates, which makes this less likely to represent trauma. There is one more exam scheduled to review
this finding again.â€
A second forensic interview was
conducted of the minor on April 3. This
time, the minor denied being touched in the vaginal area by anyone except the
doctor or her foster mother when bathing her. The minor stated she did not want to go to
D.H.’s house because “she sleeps with him and because she goes there and then doesn’t
go back to her mommy’s house.†The CASA
reported the minor had told her during a visit a week earlier, on March 23,
that D.H. slept in the bed with her.
On April 5, the Agency filed an ex
parte application for a protective custody order regarding the minor, which the
juvenile court granted that day. The
same day, the minor’s counsel filed in this court a petition for writ of
supersedeas and request for immediate stay of the order placing the minor with
D.H. We issued an order directing “that
part of the San Mateo Juvenile Court’s order of March 7, 2012 . . . placing the
minor, K.R., in the care of her presumed father, D.H., is hereby stayed with
immediate effect, subject to further order of this court.â€
On April 10, a third forensic
examination of the minor was conducted.
Dr. Tricia Tayama reported, “The exam appears normal, with pigmented
nevus, without signs of trauma.†A
review of the exam photographs with another physician was scheduled for April 23.
The following week, the juvenile court
set the minor’s section 388 petition for hearing and suspended visitation with
D.H. pending the hearing. The Agency then
filed a supplemental section 387 petition alleging sexual abuse and that
placement with D.H. “places her at risk of acute stress disorder.â€
At the hearing on June 14, David Brodzinsky,
Ph.D. testified as an expert on child attachment on behalf of minor. He
testified “disrupted attachment creates great stress, in some cases trauma . .
. in the child.†“Long term, there is a
significant risk for longer term problems.
But the impact of longer term problems has a lot to do with the quality
of care being offered in the new home.
We have treatment techniques now that can help children to recover. Although research shows that recoverability
is not inevitable and often not complete.†Brodzinsky testified the “constellation of
symptoms [the minor had] . . . suggested heightened stress for her.†He opined the most important characteristic of
a caregiver is “the consistent pattern to be emotionally attuned to the child.
. . . [¶] . . . [¶] [T]he
failure of a parent to be . . . emotionally attuned will make it that much more
difficult to deal with the disruptive effects of the severing of an attachment. And that disruptive effect will continue in
one form or another, undermining development.†Brodzinsky also testified, based on his
assessment of the minor with her foster mother on two occasions, that the minor
“views [the foster mother] as her psychological parent, at this point in time.
. . . [¶] She certainly interacts
with her in the ways that we see children interact with people with whom they
have a trusting relationship.†He did
not evaluate the minor in relationship to D.H. at that time, and could not
“speak to the quality of the attachment.†He testified that in the “best-of-all possible
scenarios, post transition, then probably the long-term problems are . . . not
as likely to occur as they might otherwise.
In other words, less than 50 percent chance.â€
The minor’s preschool teacher
testified the minor had been a student of hers since October 2012. She described the minor as a “really happy . .
. well-adjusted little girl.†From March
7, the date of the order returning her to D.H., and the end of March, the
teacher observed “when she was getting picked up . . . she would just have some
kind of anxiety about it. . . . [¶] . .
. I noticed her chewing on her lip a little bit, you know, and a little more
aggressive behavior.†The minor also
urinated on herself, which the teacher thought “was just more anxiety thing,
because she’d never done it before.†From
the end of March until April 16, the date on which she testified, the teacher
indicated the minor “seems a little more adjusted, happier,†and had not
urinated on herself during that time. The teacher also testified the class was
making father’s day cards, and the minor told her “I don’t want to make the
Father’s Day card, because I don’t want to go back to him.â€
The minor’s therapist, Marian
Sanchez, reported the minor had “shown regression†during the transition
period, including baby talk, pulling at her lip, and during therapy sessions, “putting
a blanket over her head reporting that she just wants to hide.†The therapist opined the minor’s “mental
health issues put her at risk for acute stress disorder as evidenced by her
fear and helplessness and avoidance of transitioning to the presumed father,â€
and concluded “I believe her emotional well being is placed at risk due to her
current response to her transitions.â€
Clinical psychologist Robin Press
testified as an expert in “the field of child psychology and attachment theory.â€
She performed a psychological evaluation
of D.H. and prepared a proposal for further attachment between the minor and
D.H. She noted D.H. had an older daughter
with whom he had no relationship. Press
testified “I had speculated that [the minor] most likely had a secure
attachment to [D.H.], given what I know from evidence about [his] personality,
which is that he is extraordinarily empathetic, stable, caring, consistent, and
focused on other people rather than himself.
He has all the psychological ingredients to provide for a child’s secure
attachment. [¶] Did I observe them?
No.
[¶] So that was a leap. But,
based on what I know from his personality, which is evidence based, I did make
that leap.†In her proposal for further
attachment, Press recommended dyad therapy commencing with four individual
sessions with the minor and an “experienced child psychologist†and “a minimum
of four dyad therapy sessions†for the minor and D.H., “although the total
number of sessions should be left to the clinician’s discretion.†She also recommended two to four parenting
sessions for D.H., as well as “any transfers should be made by a neutral
party.â€
Richard Geisler, Ph.D., a forensic
and clinical psychologist, conducted a psychological evaluation of D.H. “to
assess his risk for committing a sex offense.†He concluded D.H. “is at low risk for
committing any future sex offenses.
Notably, there is no evidence he meets the criteria for Pedophilia—or
any other sexual paraphilia, for that matter.
This 50-year-old man has no record of past sex offenses against any
population—adult or children.â€
On June 18, the court ordered two supervised
therapeutic visits between the minor and D.H. The visits occurred on August 5 and August 7. During one visit, D.H., gave the minor a
“laser light†which the private investigator videotaping the visits deemed
inappropriate.
The director of the minor’s
preschool reported on August 7, the minor engaged in two unprovoked acts of
aggression. She pushed another child off
the bridge of a playground structure, and hit another child in the face. The next day, the minor fell and hurt
herself. When another child came to help
her, the minor said “No†and hit her.
On August 12 and August 15, Dr.
Brodzinsky conducted a bonding study between D.H. and the minor. He observed the minor did not show “any
typical fear reactions†in D.H.’s presence. She did not, however, return D.H.’s greeting,
approach him, or affirmatively engage him in play. “There was no initiative on her part of any
physical or verbal affection.†The minor
allowed D.H. to hug her at the end of the session, but she “didn’t really respond
with a mutual hug.†When Brodzinsky had
D.H. leave the room to “observe any separation issues,†the minor “didn’t
acknowledge it†and “readily engaged [Dr. Brodzinsky] in play.†Brodzinsky asked the minor if she wanted to
tell him anything, and she responded “[M]ommy said I should tell you that I
want to live with her not with [D.H.].†Brodzinsky
concluded “to the extent that there is a bond, and there is a question whether
it really would be classified as attachment.
It’s relatively weak and doesn’t afford her the level—the kind of
security that we would hope for or that [I] certainly saw in the observation
with [foster mother].†“She can be
comfortable with him in play. . . . She
doesn’t like to be touched at this point by him. And she’s not seeking him for the kind of engagement
that we ordinarily see in a securely attached child with a caregiver. . . . For certain help there is a functional kind
of engagement, meaning if she needs help with something, she’s familiar with
him, she knows him enough, she is comfortable enough to ask him. He’s not a stranger. And she can accept his help and she can
accept a certain playfulness with him and enjoy it.â€
A week later, on August 23, the juvenile
court granted both the Agency’s section 387 petition (amended to delete
the sexual abuse allegation) and the minor’s section 388 petition. The court ordered the transition plan be
halted and the minor not be placed in D.H.’s custody. The court found “there is new evidence before
the Court which the Court deems as dramatic, not temporal, not simple anxiety,
but dramatic evidence that this transition plan was a disaster . . . . [¶] It was the Court’s hope that, in
fact, [the minor] was exhibiting simple anxiety, but that was not the
case. And this is a child who has said
on many occasions that she does not want to live with [D.H.] The Court is not considering that because . .
. [the] child’s preference is not the deciding factor; however, her body is—is
clearly reflecting that by her emotional response to being with [D.H.].†After reviewing the DVDs of the supervised
visitations between the minor and D.H., the court concluded there was clear and
convincing evidence that “there is a substantial danger to [the minor’s]
physical health, safety, protection, or physical or emotional well-being if she
were returned to the home of [D.H.].†The court also found true the allegations in
the amended section 387 petition by a preponderance of the evidence.
The court terminated reunification
services and visitation with D.H. and set the matter for a section 366.26
hearing on November 13. D.H. filed a
petition for extraordinary writ, and on October 16, this court ordered the
section 366.26 hearing stayed.
Discussion
Section 387 Petition
D.H. contends no substantial
evidence supports the juvenile court’s grant of the Agency’s amended section
387 petition. While acknowledging the
minor “had some adverse symptoms in the transition,†he maintains these were
not sufficient to “establish the high level of detriment required to sever the
parent-child custodial relationship.â€
Section 387 provides in part: “An order changing or modifying a previous
order by removing a child from the physical custody of a parent . . . and
directing placement in a foster home . . . shall be made only after noticed
hearing upon a supplemental petition. (§ 387, subd. (a).) “The supplemental petition . . . shall contain
a concise statement of facts sufficient to support the conclusion that the
previous disposition has not been effective in the . . . protection of the
child . . . .†(§ 387, subd. (b).) “[T]he issue at the adjudication hearing on a
supplemental petition is limited to the question whether the previous
disposition was effective in the rehabilitation or protection of the child. . .
. [A] hearing under section 387 must be
bifurcated into (1) an adjudicatory hearing on the merits of the allegations in
the petition and (2) a disposition hearing on the need for the removal of the
child from his or her current level of placement.†(In re
Javier G. (2006) 137 Cal.App.4th 453, 460.)
“When a section 387 petition seeks
to remove a minor from parental custody, the court applies the procedures and
protections of section 361. [Citation.] Before a minor can be removed from the parent’s
custody, the court must find, by clear and convincing evidence, ‘[t]here is or
would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were returned home,
and there are no reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s . . . physical
custody.’ (§ 361, subd. (c)(1); see
based on proof of (1) parental inability to provide proper care for the minor
and (2) potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been harmed before removal is appropriate. The focus of the statute is on averting harm
to the child.†(In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) “The only fact necessary to modify a previous
placement is that the previous disposition has not been effective in protecting
the child.†(Id. at p. 1161.) We review
the juvenile court’s findings for substantial evidence. (Ibid.)
Ample evidence supports the juvenile
court’s findings here. The first two
transitional visits and their aftermath demonstrated serious detriment to the
minor’s emotional well-being. D.H.,
himself, testified the minor vomited on herself and urinated in bed during the first
transitional visit. She continued to
decompensate after the visit, urinating on herself at school, engaging in
uncharacteristic aggressive behavior with other children, and hiding under a
blanket during therapy. In addition, Dr.
Brodzinsky testified the child had a “relatively weak†bond to D.H., “to the
extent there is a bond,†and she did not want to be touched by him or to seek
him out to initiate play. Brodzinsky
also testified a parent with a history of mental health problems and alcohol
abuse, as D.H. had, presents a concern about that parent’s capability to be
emotionally attuned to the child care, which would be required to form an
attachment. In short, the juvenile
court’s findings that its previous order was not effective in protecting the
minor and return of the minor to D.H. would cause substantial danger to her
emotional well-being is solidly grounded in the record.
Minor’s Section 388 Petition
D.H. maintains the juvenile court
abused its discretion in granting the minor’s section 388 petition, “[f]or the
same reasons why the section 387 order must be reversed.†Since we have determined the juvenile court
did not err in granting the Agency’s section 387 petition, we need not
elaborate further as to the minor’s section 388 petition, particularly since
the standard of review of a section 388 ruling (abuse of discretion) is more
deferential than that applicable to a section 387 petition (substantial
evidence). (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.) We additionally note that, as required under
section 388, the lion’s share of the evidence on which the minor’s instant
section 388 petition was based, was, indeed, “new†evidence. (§ 388.)
Reasonableness
of Services
D.H. contends the Agency failed to
provide him with reasonable services, thus making it improper to set a section
366.26 hearing. He also maintains he was
denied his substantive due process rights by the Agency’s actions.
“Generally, a parent is entitled to
12 months of reunification services when the child is at least three years of
age on the date of removal from parental custody. (§ 361.5, subd. (a)(1).) The juvenile court shall not refer a case to a
permanency planning hearing unless it has been shown by clear and convincing
evidence that reasonable services have been provided. (§ 366.21, subd. (g).)†(In re
Mark L. (2001) 94 Cal.App.4th 573, 584–585.)
The Agency is required to formulate
a plan for reunification of the child and parent and to provide to the parent
reasonable reunification services “that [a]re designed to aid the parent or
legal guardian in overcoming the problems that led to the initial removal and the
continued custody of the child.†(§
366.21, subd. (e).) 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 (such as helping to provide transportation and offering more
intensive rehabilitation services where others have failed).’ [Citation.]†(David B.
v. Superior Court (2004) 123 Cal.App.4th 768, 794.) Reunification services must be tailored to
the unique needs of the particular family. (Id. at
p. 793.) We review a finding that reasonable
reunification services have been provided for substantial evidence. (Id. at
p. 795.)
In our opinion in appeal No. A138121,
we concluded the Agency provided reasonable reunification services from the
time D.H. was found to be the presumed father until March 7, 2013, the date of the order returning the minor to his custody. (In re
K.R., supra, A138121.) After that, the
Agency formulated a transition plan, which included therapy sessions and
overnight visits over a month-long period. The transition plan was cut short, however, following
the allegations of sexual abuse. When
those allegations proved inconclusive, the court ordered two supervised
therapeutic visits between the minor and D.H. In sum, there was substantial evidence D.H.
was provided services tailored to the evolving circumstances and designed to
facilitate the return of the minor to his custody.
D.H. broadly complains the Agency and
juvenile court “interfered with his ability to obtain custody, recognition as
the presumed father, receipt of counsel, and receipt of timely and reasonable reunification
services.†His primary complaint,
however, is the Agency’s failure to immediately place the minor with him after
she was detained (given that the Agency had approved his home for temporary
stays) and failure to immediately commence reunification services. Section 309, however, only requires the
Agency to immediately release a detained child to “the child’s parent,
guardian, or responsible relative†unless certain conditions exist. (§ 309, subd. (a).) D.H. was not, at the outset of the dependency
proceeding, a parent, guardian, or responsible relative, nor did he even identify
himself as such at that point. He filed
a de facto parent statement on October 18, 2011, was appointed
counsel on February
8, 2012, and did not seek presumed father
status until June 2012. On this record, we
cannot say he was denied his due process rights.
D.H. also maintains the juvenile
court’s section 366.26 order was based on a “misunderstanding of the amount of
time father had received services.†At
the August 23 hearing, the court stated: “As it relates to the dispositional
recommendations, the Court finds that there is not a substantial probability of
return within the next six months. [¶] And as noted . . . reunification
services are not offered to the presumed father, [D.H.], as he has already
received more than 12 months of services for the child.†The parties agree D.H. received approximately
6.5 months of actual reunification services.
However, any misperception as to the
time of services has no consequence here given the maximum time period for
services, which is 24 months from the date a minor is removed from the parent’s
custody. (§ 361.5, subd. (a)(4).) Here, the child was removed from her mother’s
custody and placed in foster care on August 15, 2011. Thus, the maximum two-year period in which
reunification services could be provided ended prior to the court’s order of August 23, 2013,
setting the section 366.26 hearing.
name="_ftnref3" title="">[3] D.H. did not begin receiving reunification
services, nor was he entitled to, until July 19, 2012,
when the court found him to be the minor’s presumed father.
did not operate to toll the two-year maximum reunification period. (See In
re Zacharia D. (1993) 6 Cal.App.4th 435, 452.)
The petition under 366.26, subdivision (l), is denied. This decision
is final immediately as to this court. (Cal.
Rules of Court, rule 8.490(b)(2)(A).) The stay of the hearing under section 366.26
ordered on October 16, 2013, is dissolved forthwith.
_________________________
Banke,
J.
We concur:
_________________________
Margulies,
Acting P. J.
_________________________
Dondero, J.
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
judicial notice of our opinion in case No. A138121. (See Evid. Code, § 451, subd. (a).)
