In re >Ashanti> A.

























Filed 2/21/13 In re Ashanti A. CA2/4

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION FOUR




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In re ASHANTI A. et al., Persons Coming Under the Juvenile Court Law.	B242449 (Los Angeles County Super. Ct. No. CK85824)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CO. C., Defendant and Appellant.

APPEAL from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Rudolph A. Diaz, Judge. Dismissed.

Daniel G. Rooney, under appointment by
the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, James
M. Owens, Assistant County Counsel, and Denise M. Hippach, Deputy County
Counsel, for Plaintiff and Respondent.

INTRODUCTION

Appellant Co.C. (Mother) has three
children subject to the jurisdiction of the juvenile court: Ashanti (born in June 2002), C. (born in
Aug. 2003) and S. (born in April 2006).
Each child has a different father, none of whom is party to this appeal.

Mother’s appeal arises from the
contested 12-month review hearing. At
the hearing, the juvenile court found that the Los Angeles County href="http://www.mcmillanlaw.com/">Department of Children and Family Services
(Department) had provided her with reasonable reunification services and that she
had made significant progress in complying with the case plan. The court ordered Department to continue to
provide reunification services and granted Department (which had conceded that
it was responsible for Mother missing visits with her children) discretion to
liberalize Mother’s visitation with her children.

In this appeal, Mother contests the
trial court’s finding that Department had provided reasonable services to
her. Relying upon Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147 (>Melinda K.)—an opinion from our
colleagues in Division Two—we dismiss the appeal. We conclude that the finding does not
constitute an appealable order because, notwithstanding Mother’s disagreement
with it, she has suffered no adverse consequence as a result of it.



FACTUAL AND PROCEDURAL
BACKGROUND

1. The
Juvenile Court’s Assertion of Dependency Jurisdiction

In April 2011, Mother, represented by
counsel, pled no contest to four counts of an amended section 300href="#_ftn1" name="_ftnref1" title="">[1]
petition filed by Department. The counts
were based upon Mother’s abusive use of marijuana that interfered with her
ability to provide care for her children and two separate incidents of domestic
violence, one involving Mother and S.’s father and the other involving Mother
and a male companion. In the former
incident, S. was injured.

The juvenile court declared the three
children dependents of the court and removed them from their parents’ custody,
placing them with a relative. The court
ordered Mother to participate in a 12-week parenting program, a substance abuse
program and individual counseling to address, among other things, anger
management and the effects of domestic violence on children. In addition, the court ordered the children
to participate in individual counseling and Mother to participate in conjoint
counseling with the children. The court
ordered monitored visits for Mother with her children and gave Department
discretion to liberalize those visits.
The court directed Department to provide Mother with reunification
services. The court set the matter for a
six-month review hearing.



2. The
Six-Month Review Hearing

In October 2011, Department prepared a
report for the six-month review hearing that set forth the following. To a large extent, Mother had complied with
the juvenile court’s orders. She
completed a 12-week parenting skills class, a 15-week anger management class,
and a six-month substance abuse program that included random testing. In August 2011, she began individual
counseling. Department recommended
continuation of reunification services.

The issue of visitation was fluid
throughout this period. At first, Mother
did not comply with the court’s orders regarding visitation. She “had unmonitored access to the children
during the time that the visits were supposed to be monitored[,] . . . took the
children to solicit for food from strangers[, and] took [one] child . . . from
school after his pre-school graduation.”

However, thereafter, Mother
consistently visited her children and interacted appropriately with them. As a result, Mother filed a section 388
petition requesting unmonitored visits with her children. The trial court, with Department’s agreement,
granted the motion permitting two unmonitored visits per week. But subsequently, the children reported that
they were involved in two physical altercations during these unmonitored
visits.href="#_ftn2" name="_ftnref2" title="">[2] As a result, Department filed a section 388
petition to return Mother to monitored visits.


As for the court order that Mother
participate in conjoint counseling with her children, the October 18, 2011
report explained that the children were receiving individual counseling but
that the program was “unable to facilitate conjoint sessions due to scheduling
conflicts and the children’s participation in summer school. Subsequently, the children transitioned to
another counseling agency to ensure the therapist can provide services. . .
. The children’s therapist reported that
she is still building rapport with the children and anticipates conjoint
sessions with Mother and the children [in] a few months.” A January 27, 2012 letter from Mother’s counselor
indicated the children were “prepared to begin conjoint therapy with their
therapist and their mother in early 2012.”


At the six-month review hearing
conducted on February 8, 2012, the juvenile court found that
Mother’s participation in the case plan had been “partial” and that Department
had provided reasonable services to Mother.
The court granted Department’s section 388 petition to return to
monitored visits for Mother and directed the Department to continue to provide
reunification services. Two weeks later,
the juvenile court filed an order directing Department to obtain, among other
things, a “recommendation from children’s therapists concerning whether
conjoint therapy with children is appropriate at the present time.”



3. The
Twelve-Month Review Hearing

Pursuant to Mother’s request, a
contested hearing was conducted to determine whether Department had provided
reasonable services. The matter was
submitted on Department’s reports and testimony from Mother and the social
worker.

Department’s reports indicated that by
January 2012, Mother had attended 14 individual counseling sessions. Conjoint counseling with Mother and her
children began on April 17, 2012, consisting of a weekly one-hour
session. In addition, the therapist met
with each child individually.

Mother had two monitored visits per
week with her children although Department conceded that “[a]pproximately four
to five visits have been canceled because there is no [Department] staff
available to monitor the visits.” On
some occasions, Mother brought her
children’s cousins to the monitored visits.
During those visits, the children would play with each other while
Mother spoke on her cell phone “for 20-30 minutes.” During this period, “there [were] several
instances where Mother [was] not appropriate with [her] children and use[d]
poor judgment in allowing inappropriate play.”
For instance, Mother allowed six-year old S. to play with a BB gun that
he had taken from his cousin’s purse. On
another occasion, Mother “pushed [Ashanti] up against the [bathroom] wall and
stated, ‘you are going to be home in a few months and I am going to get you
straight.’” And several times, Mother
was verbally abusive to her children, including calling her daughters dumb for
letting the caregiver give them perms.

Social worker Adrienne Snowden, called
as an adverse witness by Mother, testified that Mother had completed all
requirements of the case plan except for conjoint counseling. Nonetheless, Snowden was concerned about
Mother’s “interaction with the children, statements that she makes to the
children during monitored visitation.”
Snowden believed that Mother needed additional services to address that
problem.

On the issue of visitation, Mother
attempted to establish, through examination of Snowden and introduction of
Snowden’s Title XX reports,href="#_ftn3"
name="_ftnref3" title="">[3]
that numerous monitored visits had been cancelled (more than the four to five
recited in Department’s report) because of Department’s inability to furnish a
monitor; that often Mother was not informed of that fact beforehand; and that
as a result, Mother was kept waiting for her children who never arrived.

Mother testified and denied that she
called her daughters dumb for permitting their caregiver to give them perms;
that she pushed Ashanti against the bathroom wall; and that she knowingly let
S. use the BB gun.

Department recommended that
reunification services continue to be provided to Mother pending the 18-month
review hearing.

Mother argued that Department had not
provided reasonable services because:
(1) she had missed 11 visits with her children as a result of
Department’s poor planning and (2) conjoint counseling did not commence until
April 2012 although the court had first ordered it in April 2011.

Department argued that it had provided
reasonable services. On the issue of
visitation, it conceded that there had been some missed visits but questioned
whether the evidence supported Mother’s claim of 11 missed visits. Regardless, Department noted that it had a
limited amount of individuals who can function as monitors; that it did the
best it could with its limited resources; and that “hopefully, in the future,
the visitation can be arranged without so many missed visits.”href="#_ftn4" name="_ftnref4" title="">[4] On the issue of conjoint counseling,
Department stated that it commences “when the child’s therapist deems it
appropriate. And, normally, [the]
child’s therapists do not deem it appropriate immediately after reunification
services are ordered. [¶] If [the] courts want to start ordering us to
immediately provide conjoint counseling, we can do that. But right now, it says, when [the] children’s
therapists deem it appropriate, we’re more or less constrained by that
particular aspect of it.” Counsel for
the children concurred in Department’s recommendation to continue to provide
services to Mother and its assessment that it had provided reasonable services
even though “the visitation has not been perfect.”href="#_ftn5" name="_ftnref5" title="">>[5]

First, the trial court found, based
upon the documentary and testimonial
evidence, that returning the children to Mother’s custody would create a
substantial risk of harm to them so that it was necessary to continue the
placement of the children with their relative.
In this proceeding, Mother does not
challenge that ruling.

Turning to the issue of the
sufficiency of the reunification services, the court found that “under the
circumstances” the services Department had provided were “reasonable. They’re not perfect. They’re far from perfect. And I do think the court should and will make
certain orders to ensure that more efforts are made.” In regard to visitation, the court began by
noting “that it wasn’t long ago that [Mother] had unmonitored visitation. But because of circumstances that arose, the
visitations went back to monitored
visitation. And some of the issues
still come up since the last hearing on this matter. And while I agree that there is much to be
hoped for in terms of services by the Department to the parents and, in
particular, this case as well, the court also recognizes the limitations
because of economic reasons, among others, and time constraints.”

With respect to conjoint counseling,
the court stated that “it would just not be appropriate for [it] to order
counseling when it’s not right, when it’s not appropriate. That doesn’t make sense, of course, conjoint
counseling when the parties, and particularly the children, just aren’t ready
for it. [¶] . . .
I’m not prepared . . . to order or force conjoint counseling, until such
time as the therapist for a child renders an opinion in regard to that.”

The court, acknowledging that Mother
had made significant progress in
complying with the case plan, ordered Department to continue to provide
services. In addition, the court granted
Department discretion to liberalize Mother’s visitation schedule to “increase
the opportunity to provide for more consistency in the visitations” and “if
appropriate, maybe part of the solution regarding the visitation is that Mom’s
visitation might be unmonitored.” When
Mother’s counsel voiced concern that the previously missed visits could
ultimately result in termination of Mother’s parental rights, the court
responded: “She’s not losing her
children as long as she’s complying. No
one has even indicated that we’re taking her children away from her. [¶] .
. . I’m directing the Department to
ensure that [she] is receiving her visitation.”

The court set the matter for a section
366.22 hearing.



DISCUSSION

In this proceeding, Mother purports to
appeal from the juvenile court’s “final findings and orders on May 3, 2012 . .
. that [Department] made reasonable efforts to provide her with reunification
services.” In particular, she contends
that the “long delay in providing conjoint counseling services was
unreasonable” and Department’s “execution of its responsibility to ensure
visitation was unreasonable.”
(Capitalization omitted.) Relying
upon Melinda K., supra, 116
Cal.App.4th 1147, we conclude that
Mother cannot appeal from the May 3, 2012 finding because although she
disagrees with it, she is not aggrieved by it.href="#_ftn6" name="_ftnref6" title="">>[6] We therefore dismiss the appeal.

In Melinda
K., the parent sought a contested hearing at the six-month review hearing
on whether Department had adequately provided counseling services to her child
as had been previously ordered. (>Melinda K., supra, 116 Cal.App.4th at p.
1151.) After taking evidence, the
juvenile court found that Department had provided reasonable reunification
services, including counseling, and ordered a six-month extension of those
services. (Id. at p. 1152.)

The parent appealed to contest the
finding that reasonable services had been provided, arguing that there had been
an unreasonable delay in providing counseling services to her child. The parent relied upon section 395 to argue
that the contested finding was appealable.

Section 395 provides: “A judgment in a proceeding under Section 300
may be appealed in the same manner as any final judgment, and any subsequent
order may be appealed from as an order after judgment.” This provision has been interpreted to mean
that “[t]he dispositional order is the ‘judgment’ referred to in section 395,
and all subsequent orders are appealable.”
(In re S.B. (2009) 46 Cal.4th
529, 532.)

Melinda
K. concluded that
section 395’s language “does not authorize an appeal from the isolated finding
in this case that reasonable reunification services had been provided.” (Melinda
K., supra, 116 Cal.App.4th at p. 1153.)
Melinda K. reasoned: “The juvenile court is required to make
numerous specific findings throughout the dependency process. For example, when family reunification
services have been ordered, the court is required expressly to make a finding
at each subsequent hearing as to whether reasonable services have been provided
during each review period.
[Citations.] When the juvenile
court makes a finding that reasonable services were provided, a parent . . .
may not be immediately impacted by that finding. Here, for example, mother was not aggrieved
by the finding that reasonable reunification services were provided, given that
services were continued for at least another six months and no negative
consequence flowed from the reasonable services finding.” (Ibid.)

Melinda
K. noted that it was
significant that the parent did “not challenge the nature or adequacy of the
reunification services ordered. Nor does
she challenge the juvenile court’s order to continue such services. Additionally, mother does not challenge the
court’s order that her daughter not be returned to her based on its finding
that doing so would be detrimental to the child’s safety, protection, physical
or emotional well-being. Mother does not
contest the court’s finding of detriment, nor does she contend that her
daughter should have been returned to her at the six-month review
hearing.” (Melinda K., supra, 116 Cal.App.4th at p. 1154.)

Melinda
K. therefore
concluded: “We do not believe that section 395 permits a party to appeal a finding
in the absence of an adverse order resulting from that finding. Accordingly, we conclude that there is no
right to appeal a finding that reasonable reunification services were provided
to the parent or legal guardian unless the court takes adverse action based on
that finding, because, in the absence of such action, there is no appealable
order resulting from that finding.”
(Melinda K., supra, 116
Cal.App.4th at pp. 1153-1154, italics added.)

Melinda
K. noted that its “conclusion would be different if the court had found
that the child’s return to mother would be detrimental to her because mother
had not availed herself of services provided when mother contended that the
Department had failed to provide her with reasonable services. In that event, the juvenile court’s order
that the minor not be returned to mother would be premised on its finding that
reasonable services had been provided, and a direct appeal from that order
would be appropriate and necessary to address the issue. [Citations.]” (Melinda K., supra, 116 Cal.App.4th at p. 1154.)

This case is virtually
indistinguishable from Melinda K. The juvenile court found that Department
had offered reasonable services to Mother and made no adverse order based upon
that finding. Instead, it acknowledged
that Mother had made significant progress in complying with the case plan,
ordered continuation of reunification services, and granted Department
discretion to liberalize the visitation schedule (including the possibility of
moving to unmonitored visits) with the goal of increasing the opportunity for
consistent visitation. In sum, the
juvenile court’s order was entirely favorable to Mother. Further, as in Melinda K., Mother does not challenge the juvenile court’s finding
of detriment and does not contend that her children should have been returned
to her at the 12-month review hearing.
We therefore conclude that the juvenile court’s finding that reasonable
reunification services had been provided does not constitute an appealable
order.href="#_ftn7" name="_ftnref7" title="">[7]


Mother advances several arguments to
avoid this conclusion.

First, she argues there is an adverse
consequence to a finding of reasonable services because it “is a necessary step
in the statutory process for terminating services and setting a hearing to
determine the permanent plan for a child.
[¶] . . . Prejudice to a parent from an affirmative finding
cumulates at each successive phase of the juvenile proceeding. . . . With two findings of reasonable services already
made and the 18-month hearing fast approaching, [Mother] was nearly out of
time—conjoint therapy began April 17 . . . and the 18-month hearing was
scheduled 6 weeks thereafter on June 20—she had just two months.”href="#_ftn8" name="_ftnref8" title="">[8]

On this record, Mother’s argument is
unpersuasive speculation. The argument completely disregards the positive tenor
of the trial court’s comments at the 12-month review hearing about Mother’s
progress, its implicit acknowledgement that Department, not Mother, was
responsible for the missed visits, and the following response it made when
Mother’s counsel advanced the same speculative argument as made now: “She’s not losing her children as long as
she’s complying. No one has even
indicated that we’re taking her children away from her. [¶] .
. . I’m directing the Department to
ensure that [she] is receiving her visitation.”

Next, Mother relies upon >In re T.G. (2010) 188 Cal.App.4th 687 (>T.G.), a case which both distinguished >Melinda K. on its facts and held that
its conclusion was inconsistent with Supreme Court precedent.

In T.G.,
at the six-month review hearing, the juvenile court found that reasonable
services had been offered to the parent and ordered that services be
continued. But the juvenile court also
found that the parent had made inadequate progress toward alleviating or
mitigating the causes requiring removal of his children and that the parent had
failed to make substantive progress in completing the case plan. Further, the court did not find that there
was a substantial probability that custody of the children would be returned to
the parent. (In re T.G., 188 Cal.App.4th at pp. 691 & 693.) T.G.
reasoned that “all of these findings are interrelated. Because the [trial] court found Father’s
progress inadequate and concluded there was no substantial probability of
return, we cannot say that this case is analogous to Melinda K. Nor can we say
for certain that no negative consequences flowed from the court’s finding that
reasonable services were provided up until the six-month review hearing.” (Id.
at pp. 693-694.) T.G. therefore concluded that the parent could appeal from the
order finding reasonable services. Here,
in contrast, the juvenile court made no findings adverse to Mother when it
found reasonable services had been offered.
Thus, T.G. does not support
Mother’s position that the finding is appealable.

T.G.
also questioned >Melinda K.’s holding in light of >In re S.B., supra, 46 Cal.4th 529. In re
S.B., supra, resolved a conflict among the courts of appeal about whether a
parent could appeal from the trial court’s finding that the parent’s children
were probably adoptable and its order that efforts be made to locate an
appropriate adoptive family. The Supreme Court held that the parent can
appeal from the “order that efforts be made to locate an appropriate adoptive
family” (§ 366.26 (c)(3)) and on that appeal contest the predicate finding
of probable adoptability because the interests of the parent(s) and child are
substantially affected by the order. (>Id. at pp. 536-537.) We disagree with T.G. that the Supreme Court’s holding undermines >Melinda K.
In re S.B., supra, held simply that the parent could appeal from an
order (not a finding) potentially adverse to the parent. Melinda
K., on the other hand, held that a parent cannot appeal from a trial court
finding (not an order) that reasonable services had been provided because it
had no adverse affect upon the parent.
These two holdings are not inconsistent.



>DISPOSITION

The appeal from the trial
court’s May 3, 2012 order is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.





We concur:







EPSTEIN, P. J.







MANELLA, J.