Filed 2/7/18 In re A.W. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

In re A.W., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

T.W. ,

Defendant and Appellant.

F075989

(Super. Ct. No. 0081373-3)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary Green, Judge.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
In this dependency case, T.W. (mother) appeals from the May 31, 2017, juvenile court’s findings at the six-month review hearing that reasonable reunification services were provided and in failing to order that unsupervised visits commence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and her family have a child welfare history dating back to 1997, including 23 referrals related for general neglect, physical abuse, and sexual abuse. Two of her children, K.P., born in 1998, and A.W., born in 2003, were previously removed in a dependency proceeding in 2012, when A.W. alleged sexual abuse by her father Scott W. (father). Father is a registered sex offender due to previous sexual abuse of A.W.’s half sibling, Tiffany W. Mother reunified with the children in 2014, and was granted sole legal and physical custody.
On August 19, 2016, the Fresno County Department of Social Services (department) received a referral alleging general neglect of K.P. and A.W. by mother and father. It was reported that Scott W. was residing in the home and having unsupervised contact with the children, despite a restraining order against him and a custody order requiring visits with A.W. be supervised by a licensed clinician. A Welfare and Institutions Code section 300 hold was placed on the children due to concerns that mother could not protect them from father. K.P. later told a social worker father touched his genitals.
Law enforcement went to mother’s home to discuss concerns that father had returned to the home. Mother said father was not there at the moment, but admitted he had been and was grocery shopping. An officer explained to mother that she was in violation of the restraining order by allowing father into the home. Mother said she intended to have the restraining order changed, but had not yet done so. Mother stated father was a good man, that she trusted him and that he was sick, with diabetes, and needed her help. Father told the social worker he had been living with mother for more than two weeks. Father was arrested for violating the restraining order.
Thirteen-year-old A.W. said she lived at home with her mother, father, and brother and that father had been living in the home for “awhile.” She denied father had touched her inappropriately.
Dependency
The section 300 petition, filed August 23, 2016, alleged A.W. and K.P. were at risk of harm because mother had allowed father to live in the home and have unsupervised contact with the children, in violation of the restraining order and the requirement that visits with him be in a therapeutic setting with a licensed mental health clinician or agency. The petition alleged a substantial risk that A.W. and K.P. would be sexually abused by father, due to previous allegations by A.W., current allegations by K.P., and father’s previous abuse of Tiffany. K.P. was reported to have Prader Willi Syndrome and developmental delays.
A.W. was placed in a confidential licensed foster care home; K.P. was placed at a hospital because he required 24-hour care.
At the detention hearing August 24, 2016, the juvenile court found continuance of K.P. and A.W. in mother’s home “contrary to their welfare,” and temporary placement given to the department. Mother and father’s visits with the children were ordered to be supervised. Jurisdiction was set for September 28, 2016.
Jurisdiction
The report prepared in anticipation of jurisdiction stated mother was participating in supervised visits; father had not made arrangements to visit as yet.
At the jurisdiction hearing September 28, 2016, K.P.’s name was removed from allegations in the petition, as he turned 18. The allegations of the dependency petition were found true. Disposition was set for November 2, 2016.
Disposition
The report prepared for disposition stated father, as a registered sex offender, was required to have a current address on file in conformity with Megan’s Law statutes. As he was not in compliance, a warrant was issued for his arrest.
At the disposition hearing November 2, 2016, mother’s counsel informed the juvenile court that A.W. was having a difficult time with the separation from mother, and mother wanted to increase visitation. A.W.’s counsel agreed that was what she wanted.
The juvenile court found a continued need for A.W.’s removal from mother’s custody. It ordered supervised visits between mother and A.W. a minimum of once a week, and allowed the department to “progress the visits.” The juvenile court bypassed reunification services for father, under section 361.5, subdivision (b)(10) and (16). He was given once a month therapeutic visits. Mother was ordered to receive parenting classes, a domestic violence index (DVI) evaluation and recommended treatment, and a mental health evaluation and recommended treatment. A six-month review was set for April 19, 2017.
Six-Month Review
The report prepared in anticipation of the six-month review hearing stated mother completed her mental health assessment in December of 2016, and was participating in weekly individual treatment. She was attending a nurturing parenting program, which she began in January of 2017. Mother failed to attend the first two DVI appointments scheduled for her. She attended the third on February 27, 2017, and it was recommended that she complete a 52-week child abuse intervention program. The department referred her to such a program on April 5, 2017.
At the six-month review hearing scheduled for April 19, 2017, the matter was set for a contested hearing at mother’s request, to determine whether there was a substantial risk of detriment to return A.W. to mother’s care. Mother was scheduled to complete the nurturing parenting program May 1, 2017. A settlement conference was scheduled for May 17, 2017, and a contested hearing for May 24, 2017.
Settlement Conference
At the May 17, 2017, settlement conference, the juvenile court indicated the issues for trial were a service referral for the child abuse intervention program and whether A.W. could return to mother, specifically whether mother could protect A.W. from father.
Continued Six-Month Review
In an addendum report prepared for the continued six-month review hearing, it was reported that a maternal aunt stopped supervising visits between mother and A.W. because mother was difficult. According to the aunt, A.W. would hit K.P., but mother would not do anything about it. Mother was also said to have left K.P. with strangers, in particular a man who lived at the back of the property. When asked about that man, K.P. began to cry. The aunt stated mother was “probably hiding” father in the home at that time. It was also alleged by three separate individuals that father, using another name, picked up K.P. from his adult day program.
The department was concerned that mother was unable to separate herself from father. Mother twice filed for divorce from father, but failed to appear at the hearings and the first filing was dismissed. She also filed two temporary restraining orders, but they were also dismissed because she failed to appear. The department opined that mother’s behavior indicated that she wanted father to be present despite the safety risk to A.W..
At the May 31, 2017, continued six-month review hearing, the juvenile court noted mother completed the parenting class, the mental health evaluation and was currently in therapy. The juvenile court noted that mother had also resisted participation in a child abuse intervention program, which would have benefited her; she was slow to attend her domestic violence assessment appointments; and that her estrangement from her family left her without a support system and vulnerable to father. The juvenile court found reasonable services had been provided and that mother’s progress was moderate. The juvenile court continued reunification services for mother.
The juvenile court denied mother’s request to have A.W. returned to her care on family maintenance, finding a continued risk of detriment to A.W.’s safety or well-being if she was returned to mother, as there was “no concrete evidence to demonstrate that [mother] had learned skills and tools to protect [A.W.].”
The juvenile court stated it would like to see visits progressed. An interim review hearing concerning visitation was set for August 30, 2017; a 12-month review hearing set for September 28, 2017.
DISCUSSION
I. THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION BY DENYING UNSUPERVISED VISITS
Mother contends the juvenile court abused its discretion by failing to order that unsupervised visits commence. We disagree.
In making a visitation order, the juvenile court must consider the child's well-being and best interests. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) The juvenile court may consider the child's wishes, although not as the sole factor. (Id. at p. 51.)
We review the juvenile court's visitation order for an abuse of discretion. (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) We will not disturb the trial court's decision unless it is “‘“arbitrary, capricious, or patently absurd”’” and “‘exceed[s] the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
Here, the underlying concern was whether mother could adequately protect A.W. from sexual abuse by father. Mother did not contest the allegations in the petition that father was a registered sex offender, that he previously sexually abused A.W.’s half sibling, that A.W. previously alleged father sexually abused her, that there were current allegations that father sexually abused K.P., and that, despite this knowledge, mother still allowed father to reside in the home and have unsupervised visits with the K.P. and A.W.
At the six-month review hearing, A.W.’s counsel stated she wished to “touch on” the issue of visits and asked for “some type of modified-type unsupervised” visits, in which the care provider would drop mother and A.W. off at a public location. The department explained that it was not in agreement with unsupervised visits, but might be able to facilitate third-party supervised visits, with the care provider being the supervisor. The department argued that, in order to progress visits, mother would need to be more involved in her DVI treatment and to have a closer support group. The department suggested an interim review to check on the progress of the visits. Mother’s counsel argued that reasonable services had not been provided and that A.W. should be returned to her care. She made no mention of a request for unsupervised visits, noting only that the visits between mother and A.W. were “wonderful.”
In its ruling finding continued detriment, the juvenile court stated the issue with mother was still one of A.W.’s safety, noting mother provided no evidence that she had learned skills and tools to protect A.W. from father; that she had demonstrated a resistance to participate in the child abuse intervention program; that she lacked self-awareness and accountability, blaming others; and that she had a limited support system, leaving her vulnerable to father. In denying mother’s request to return A.W. to her custody on family maintenance, the juvenile court did note “minor’s counsel raised an issue about progressing mother’s visits, and, as such, the Court would like to see that is investigated. And the Court will go ahead and set an interim review for visitation.”
We find no abuse of discretion on the part of the juvenile court by not ordering unsupervised visitation to commence.
II. THE JUVENILE COURT DID NOT ERR IN FINDING REASONABLE SERVICES WERE OFFERED
Mother contends that the juvenile court erred by finding that the department provided her with reasonable reunification services. Mother specifically argues she was prejudiced by the department’s failure to send her a referral to a 52-week child abuse intervention program in a timely matter. We disagree.
“We determine whether substantial evidence supports the trial court’s finding, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598 (Katie V.); see also Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345 (Amanda H.).)
“The ‘adequacy of reunification plans and the reasonableness of the [department’s] efforts are judged according to the circumstances of each case.’ [Citation.] To support a finding 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....’ [Citation.] ‘The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ [Citation.]” (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426, italics omitted; see also Amanda H., supra, 166 Cal.App.4th at p. 1345.)
Applying these principles, we affirm the finding that reasonable services were afforded mother. A.W. was removed from mother’s care due to allegations that she and her half brother K.P. were at risk of harm because mother had allowed father to live in the home and have unsupervised contact with the children, in violation of the restraining order and the requirement that visits with him be in a therapeutic setting with a licensed mental health clinician or agency. The petition alleged a substantial risk A.W. and K.P. would be sexually abused by father, due to previous allegations by A.W., current allegations by K.P., and father’s previous abuse of Tiffany. Mother’s case plan was tailored to address these problems through a parenting class, a mental health evaluation and recommended treatment, and a DVI evaluation and recommended treatment.
Mother’s argument that she did not receive reasonable services focuses on the delay in referring her to a 52-week child abuse intervention program. According to mother, there was an unreasonable delay in the provision of this service, because, as of May 24, 2017 (12 weeks after the February 27, 2017, recommendation date), she had still not received “any DVI child abuse program referral in the mail.” Mother contends the social worker mailed mother’s case plan referral to her old address instead of mailing it to her last known address, which the social worker had knowledge of as he had personally been there to see her. She also contends no one from social services followed up with her to find out if she had received the referral or questioned why she had not yet signed up for the intervention program.
At the six-month review hearing, the social worker testified that the delay between mother’s completion of her portion of the assessment, February 27, 2017, to the date of the completed assessment, April 5, 2017, was a “typical” time frame. The referral was then sent to mother’s JV-140 address.
In its ruling on the reasonableness of services, the juvenile court noted mother’s role in the delay of services, namely that she missed DVI appointments on November 30, 2106, which was three weeks after disposition, and on January 16, 2017. Both of these appointments were arranged before mother finally attended the February 27, 2017 appointment. As the juvenile court noted, the delay for mother “could have been avoided had she attended one of the earlier appointments.”
The juvenile court also noted mother’s role in the delay of attending the child abuse intervention program, noting the April 5, 2017, referral was mailed to the JV-140 address active at the time. As stated by the juvenile court, “[M]other did not provide an updated JV-140 with that new address until [May] 24, 2017 , the day of the trial. Mother was obligated to update her address in writing. Mother’s argument puts [the social worker] in a untenable position. Had he mailed the referral to her current address, mother could argue that he should have mailed it to her former JV-140 address. Moreover, mother had an obligation to provide in writing her updated mailing address.”
Again, “‘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.’” (Katie V., supra, 130 Cal.App.4th at pp. 598-599.) “Services will be found reasonable if the [agency] has ‘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 ....’ [Citation.] ” (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) In assessing the reasonableness of reunification services, the juvenile court evaluates not only the agency’s efforts to assist the parent in accessing the services, but also the parent's efforts to avail himself or herself of the services. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.)
A.W. was removed from mother’s home primarily because it was alleged that mother could not protect A.W. from father, a registered sex offender, whom mother repeatedly allowed back into the home. Mother’s case plan was tailored to address these problems, in part, through a DVI and treatment. Both of the factors addressed by the juvenile court – mother’s failure to attend earlier appointments, as well as her failure to update her address – played a part in delaying the necessary services to mother, which would have helped a possible return of A.W. to her custody.
Under the circumstances, we find substantial evidence supports the finding that reunification services were reasonable, and we reject mother’s claim to the contrary.
DISPOSITION
The juvenile court’s order of May 31, 2017, is affirmed.