In re L.P.

Filed 2/5/09 In re L.P. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Donald P., father of the minor, appeals from orders of the juvenile court entered at the six-month review hearing continuing the minor in foster care and ordering further reunification services.^[1] (Welf. & Inst. Code,^[2] 366.21, subd. (e), 395.) Appellant contends there was insufficient evidence to support the findings that reasonable services were provided to him and that there would be a substantial risk of detriment to the minors physical or emotional well-being if returned to appellants custody. We affirm.

FACTS

The Department of Health and Human Services (the department) removed the 12-year-old minor, L. P., from appellants custody in March 2007, following a physical altercation between appellant and the minors siblings, J. P. and H. P. and H. P.s friend, C. C., which resulted in injury to the friend. As a result of the incident, appellant also refused to allow H. P. back into the house, forcing the minor to sleep outside without shelter or access to bathroom facilities. The minor had not been physically assaulted, although he had observed violence in the home and feared someone would get hurt. Appellant had a history of physically assaulting J. P. and H. P. but not the minor.

Both appellant and the minors stepmother denied responsibility for violence in the home and the minors removal, blaming H. P. The court sustained an amended petition and ordered appellant and the minors stepmother to participate in a reunification plan which included individual and joint counseling, parenting, anger management classes, and a substance abuse assessment.

The six-month review report stated appellant visited sporadically at the outset then stopped visiting altogether, although he had recently requested to resume visits. The minor wanted to visit appellant with a sibling present so he felt protected. According to the report, the minors stepmother refused to sign a case plan because she saw no need for services and continued to blame the department and H. P. for the minors removal. Appellant was hostile and aggressive to the social worker, also blaming the department and refusing to take responsibility for the minors removal. After appellants first therapy session, the therapist recommended he first participate in an anger management class and a psychological evaluation before continuing with therapy because appellant was so upset at the session. The department referred appellant to anger management. Appellant went to the intake appointment but did not attend further because he believed the sessions could be used against him in his criminal case. Appellant was also referred to parenting classes but had not attended them. Appellants substance abuse assessment indicated no treatment was needed. The report recommended additional services.

At the contested review hearing, appellants private therapist, who had treated him for a year prior to the minors removal for job-related stress, testified about the negative effects of removal on the minor. The therapist was not concerned about appellants potential for aggression, seeing him instead as passionate about issues and felt he was meeting his plan requirements for therapy by participating in sessions with her. The therapist was of the opinion the counselor assigned to appellant through the departments referral was inadequately trained. The therapist stated they had discussed parenting techniques in therapy sessions and she did not believe appellant had hurt his children.

The court, considering the testimony and report, found appellant was referred to, but had not participated in, necessary services, therefore, returning the minor to his custody would be detrimental to the minors well-being. The court noted that the therapy appellant had engaged in had not addressed the issues identified in the case plan. The court ordered further services, specifying that appellant participate in a psychological evaluation, anger management and parenting education, family counseling, and visitation.

DISCUSSION

Appellant contends there was insufficient evidence to support the finding reasonable services were provided to him because he was not referred for a psychological evaluation prior to the review hearing and could not complete the counseling requirement until that was accomplished.^[3] He also argues there was insufficient evidence that the minor would be at a substantial risk of detriment if returned to appellants custody.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L.,at p. 1214.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

I

Reasonable Services

At the six-month review hearing [i]f the child is not returned to his or her parent . . . the court shall determine whether reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent . . . . ( 366.21, subd. (e).) To provide reasonable services, the department must identify the problems which led to loss of custody, design services to remedy the problems, maintain reasonable contact with the parent, and make reasonable efforts to assist the parent when compliance has proved difficult. (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) The question is not whether more or better services could have been provided, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

The department identified the basic problems of lack of parenting skills coupled with inter-family and anger issues and referred appellant to appropriate services. When it developed that he would also benefit from anger management education, the department provided an additional referral. The psychological evaluation was suggested by the therapist to tailor any additional services which might be necessary before appellant could benefit fully from the insight therapy he had begun. However, nothing prevented appellant from participating in the services available to him, i.e., parenting, anger management, and visitation. Regardless of the outcome of the psychological evaluation, it was apparent that these services, at a minimum, would address the issues which led to removal. The services might have been more complete with a timely referral for a psychological evaluation, but the lack of that service, which could only enhance the case plan, did not render the remaining services, which did address appellants issues, unreasonable. Substantial evidence supports the juvenile courts finding that services were reasonable.

II

Risk Of Return

At the six-month review hearing, the court must return the child to the physical custody of his or her parents unless the court finds that returning the child to his or her parent would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child. . . . The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. ( 366.21, subd. (e).) The court shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself to services provided. ( 366.21, subd. (e).)

The evidence clearly showed that appellant had made little effort and less progress in the court-ordered treatment programs. Without progress in parenting skills and insight into his own responsibility for the minors removal, the risk of detriment to the minors safety and well-being remained. Substantial evidence supported the courts finding that return of the minor to the custody of appellant would be detrimental to the minor.

DISPOSITION

The orders of the juvenile court are affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

HULL , J.

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^[1] Although not at issue in this appeal, we note that the record does not unequivocally identify the minors mother, reflect attempts to serve notice of the proceedings on her or disclose any efforts to inquire about her Indian heritage. C. M. is identified in the detention report as the minors biological mother and there is some information in that report on her whereabouts, however, the due diligence declaration attached to the jurisdiction report does not refer to any of this contact information. The siblings mother, K. D., and the minors stepmother, T. P., are variously identified incorrectly as the minors mother. We recommend this matter be clarified.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] Respondent argues this issue was waived for failure to assert it in the juvenile court. Appellants argument is a substantial evidence argument and need not be asserted in the trial court before raising it on appeal. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)