Filed 9/13/17 In re H.G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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On June 23, 2016, at a contested six-month review hearing (Welf. & Inst. Code, 366.21. subd. (e)),[1] the juvenile court terminated appellant Dana S.’s reunification services as to her then 16-year-old daughter, H.G., and 14-year-old son, K.G., pursuant to section 388, subdivision (c)(1) and set a section 366.3 hearing. On July 30, H.G. tragically died, and in October, the juvenile court terminated its dependency jurisdiction over her. In the interim, Dana appealed the juvenile court’s findings and orders as to both minors. She contends: (1) the evidence was insufficient to support the court’s finding that Stanislaus County Social Services Agency (Agency) provided her with reasonable reunification services; and (2) the court erred in granting the Agency’s petition to terminate her reunification services on the ground she failed to participate regularly and make substantive progress in her court-ordered case plan. Respondent contends any issues as to H.G. are moot in light of her death. We affirm.

I

Factual and Procedural Background

A.Dependency Jurisdiction

Dependency proceedings were initiated in September 2015. At that time, Dana (Mother) had six minor children, H.G. and K.G. (the minors), and four others, ranging in age from 12 to 2.[2] She also had a long history with the Agency. From 2001 to 2015, the Agency received 47 referrals alleging emotional, physical and sexual abuse of the children. At the same time, the Agency became aware of the minors’ emerging mental illness and out-of-control behavior. By 2013, H.G. was reporting auditory and visual hallucinations and threatening Mother with physical violence. She was diagnosed with multiple mental disorders, including bipolar disorder, schizophrenia, mild mental retardation, and Oppositional Defiant Disorder. K.G. was also diagnosed with Oppositional Defiant Disorder as well as autism and Intermittent Explosive Disorder. In January 2014, the Agency offered Mother in-home voluntary family maintenance services. H.G., however, refused to work with the service providers and Mother made it difficult for them to provide the services. She delayed scheduling appointments, failed to return their telephone calls, and on one occasion screamed and yelled at them. The Agency terminated family maintenance services in August because of the family’s unwillingness to participate. During that time, the minors were hospitalized numerous times for psychiatric treatment; H.G. for suicidal ideation, suicide attempts and self-injuring, K.G. for violence toward himself and both for violence toward others. They reported not feeling safe in Mother’s custody.

This dependency action was initiated in September 2015 after the minors appeared before the Stanislaus County Juvenile Delinquency Court; H.G. for threatening Mother with a knife (Pen. Code, §§ 417, subd. (a)(1) & 422) and K.G. for battering Mother and H.G. (Pen. Code, § 242). K.G.’s battery charges stemmed from an incident in early September when he struck then 15-year-old H.G. several times in the face and scratched and bit Mother during their attempts to restrain him. H.G.’s charges stemmed from an incident four days later in which she tried to pull a knife on Mother during an argument and stated in effect, “[Y]ou need to die you f**king bitch.” The court referred the case to probation and the Agency for a joint assessment report (§ 241.1)[3] and continued the hearing to September 25. On September 25, the court ordered the minors to proceed as dual status minors with the Agency taking the lead.

The Agency filed a dependency petition alleging Mother caused the minors to suffer or placed them at a substantial risk of suffering serious physical harm or illness and serious emotional damage by failing to adequately supervise and provide them appropriate care. (§ 300, subds. (b) & (c).) The petition further alleged that H.G.’s father was unable to provide support for her. (§ 300, subd. (g).) The identity of K.G.’s father was unknown. The Agency placed H.G. in a level 12 group home and K.G. in intensive treatment foster care operated by Promesa Behavioral Health where he remained. Mother’s other four children remained in her custody.

The juvenile court detained the minors and set a combined hearing in October 2015 to adjudicate jurisdiction and disposition (combined hearing). In its report for the hearing, the Agency informed the court that H.G. had been verbally and physically assaultive toward others in the group home and had run away at least five times. She had also refused to engage in any counseling services. K.G. had also been verbally aggressive and made numerous sexually inappropriate and threatening statements. In light of the risk the minors’ behavior posed to themselves and others, the Agency opined it would be unsafe to return them to Mother’s custody.

The Agency also reported that Mother did not believe the Agency would assist the minors or keep them safe. She wanted the minors to return to her custody, despite their assaultive behavior toward her. She was doubtful H.G. would ever engage in counseling or change her behavior and believed H.G. needed to be “locked up” and evaluated by a psychiatrist. Mother said she was tired of being involved with the Agency and felt that she and her children had exhausted all of the Agency’s resources and services and did not believe the Agency had the services or capacity to help her children. Nevertheless, the Agency recommended the juvenile court provide Mother and the minors with reunification services in the hope that the minors could achieve mental stability and return home. The Agency proposed a reunification plan that required Mother and the minors to complete family counseling through Sierra Vista Child Family Services (Sierra Vista). It also required Mother to complete individual counseling at Sierra Vista and the minors to complete a mental health assessment and/or a psychotropic medication assessment and comply with all recommended treatment.

On December 1, 2015, the juvenile court convened a contested combined hearing. County counsel asked the juvenile court to include an anger management component as part of Mother’s individual counseling. Mother’s attorney submitted on the information in the Agency’s report and objected to anger management as part of Mother’s reunification plan and to the court’s jurisdictional findings and dispositional orders. Minors’ counsel made an offer of proof that K.G., if called, would testify that he did not want to return to Mother at that time but would like to participate in family counseling with her first. He believed five to seven sessions would be necessary but he wanted to visit her. H.G. was present and told the court she wanted to return to Mother.

The juvenile court exercised its dependency jurisdiction over the minors, removed them from parental custody, amended Mother’s reunification as proposed and ordered reunification services for Mother and H.G.’s father. The court also ordered weekly visits for Mother and the minors and twice monthly sibling visits and set the six-month review hearing for May 19.

B.Six-Month Review Period

K.G. ultimately learned to adjust to his foster care placement and relate to his foster parents in a healthy way, though he initially challenged their rules and the structure of their home. He attended seventh grade and performed well academically, receiving A’s and B’s on his report card, and was able to be redirected by his teacher when he clashed with his classmates. He also participated in mental health services, and his probation was dismissed because of his progress.

H.G. did not fare as well. Shortly after the disposition, the Agency placed her in juvenile hall after she destroyed group home property. The Agency subsequently placed her in Mother’s care on a trial basis with in-home services designed to stabilize her. H.G. and Mother had their own support counselors and they met with a facilitator weekly. Initially, H.G. was resistant and disrespectful, but gradually bonded with the services team and began engaging in the therapeutic process. However, as H.G. progressed, Mother became less cooperative with services and following safety plans. On one occasion, when H.G. refused to ride the bus, Mother delayed picking her up until 6:00 p.m. By March 2016, Mother was insisting that the Agency remove H.G. from her home. On March 7, the Agency placed H.G. in foster care after Mother abandoned her in a Walmart parking lot. She did well in foster care for a short time but ran away in early April, upset that Mother would not return clothing she left at her house. She was exploited by a human trafficker and returned 24 hours later with severe bruising around her neck caused by strangulation. She refused medical treatment. The Agency placed her in a specialized group home for sexually exploited youth in Los Angeles where she remained for six days before running away again. By May 2016, her whereabouts were unknown and a protective warrant was issued. Over the next month, H.G. returned to her placement several times only to run away again.

On May 10, 2016, the Agency filed a section 388 petition, requesting the juvenile court terminate Mother’s reunification services on the grounds she had not participated in her court-ordered services and did not begin visiting K.G. until March 7, 2016.

The same day, the Agency filed a report for the six-month review hearing prepared by Pamela Werb, the social worker assigned to the minors’ case. Werb recommended that the juvenile court terminate Mother’s reunification services and establish a permanent plan of long-term foster care for the minors. Werb reported that Mother was visiting K.G. once weekly in Merced County but was not otherwise participating in her court-ordered plan. She completed an intake appointment for individual counseling at Sierra Vista on December 29, 2015 but was placed “on hold” in March 2016 after she failed to attend counseling sessions.

Werb opined that Mother was a “troubled, angry individual” and had not taken responsibility for her part in her family’s dysfunction and the minors’ mental health problems. In addition, the Agency was not able to assess Mother’s mental health status or her willingness to reunify with her children because she refused to participate in individual counseling.

C.Six-Month Review Hearing

In June 2016, the juvenile court convened a contested hearing on the six-month review of reunification services and the Agency’s section 388 petition. The hearing was conducted over three sessions that month. County counsel submitted the matter on its report.

Werb, called by Mother’s counsel, testified that Mother claimed she could not participate in individual counseling at Sierra Vista because she did not have daycare and did not want anyone watching her children. Werb referred Mother to a child referral program and to the Children’s Crisis Center. Werb acknowledged it was her responsibility to review Mother’s case compliance with her monthly and that she had failed to do so. However, Werb called Mother every month and attempted to schedule a monthly meeting but Mother was not always available. Werb’s last monthly compliance contact with Mother occurred on March 7, 2016, when she visited K.G. at the Agency. Werb expressed her concern that Mother was not participating in individual counseling and that the Agency did not know the state of her mental health. In Werb’s opinion, Mother was unable to provide for K.G.’s special needs because she and K.G. had a volatile relationship and Mother’s ability to parent at that time was lacking. Once out of Mother’s care, his mental health stabilized, he was doing well in school, his teachers liked him and his probation case was dismissed.

On questioning by the juvenile court, Werb confirmed that Mother’s case plan included family counseling and the Agency referred her for individual and family counseling on September 30, 2015. She explained the Agency can recommend family counseling, but it is up to the individual counselor to determine when it starts and Mother had not seen a counselor. Werb also confirmed Mother was still “on hold” for services.

Mother, called as a witness on the second day, testified that after court on the first day she scheduled a counseling appointment at Sierra Vista for July 6. She did not previously attempt services at Sierra Vista because she was receiving counseling through Center for Human Services (the center). She informed Werb she was receiving services there and Werb did not tell her she had to complete her counseling at Sierra Vista. Mother also had other reasons why she could not engage in services at Sierra Vista such as lack of childcare, the children having scabies from December 2015 through early March 2016 and one of the children recovering from a broken arm between November 2015 and January 2016.

The juvenile court asked Mother whether she told the social worker in February 2016 that her services at the center were terminated because of her lack of engagement. Mother said the center closed in April and she was not able to participate because the children had scabies. She said she completed nine sessions and was involved in Parent Resource Center. The court also asked Mother whether she told the social worker she did not need any services. Mother responded, “I think my children need them more than I do.” The court also asked her what type of progress she believed she had made. Mother said she and K.G. interacted and communicated well during visitation. She also said H.G. reached out to her and was not erratic or prone to flee while in her care.

Mother’s attorney asked Mother what additional services she needed to reunify. She believed the Agency needed to take a more aggressive approach in ensuring that H.G. received psychotropic medication and be more diligent in providing her the opportunity to communicate with and visit H.G.

Social worker Keri Brandt disagreed that H.G. ran away less frequently while in Mother’s care and testified that H.G. ran away more frequently after her involvement in sex trafficking. When she notified Mother that H.G. was involved in sex trafficking, Mother responded sarcastically to the effect, “Good job.” Asked to characterize H.G.’s interaction with Mother, Brant described it as “antagonistic, volatile and aggressive on both sides.” However, she observed their relationship improve during the trial visit. Once H.G. knew she was going to be leaving Mother’s home, her behavior stabilized but Mother’s behavior became more volatile. Brandt testified that H.G. contacted Mother a couple of days before the hearing resumed and requested “desperately” that Mother pick her up. Brandt asked Mother why she had not informed her about H.G.’s call. Mother said the police department should have informed her. H.G. contacted Brandt the day before and told her that Mother told her she would be returned to her as soon as she turned herself in. H.G. told Brandt she would never turn herself in.

Brandt opined that terminating Mother’s reunification services served H.G.’s best interest. H.G. expressed to Brandt throughout the process that she never wanted to return to Mother’s custody, stating that Mother was “nothing to her.” Mother exposed her to domestic violence and she did not feel safe in her home. In H.G.’s view, being involuntarily hospitalized for psychiatric care was a “vacation” from Mother’s volatile and aggressive home. After the trial visit ended, Mother did not contact Brandt to inquire about H.G.’s well-being.

The juvenile court granted the Agency’s section 388 petition, finding by clear and convincing evidence the Agency offered or provided Mother reasonable reunification services and her failure to participate regularly and make substantive progress created a substantial likelihood that reunification would not occur.

The juvenile court perceived Mother as “extremely resistant to engaging in services” and unwilling to acknowledge her own need for them. In addition, she had not made reunification a priority or communicated to H.G. that she wanted her to come home. Consequently, the court did not believe continuing Mother’s services to the 12-month review hearing in November would make any difference and would probably harm more than help the minors. The court also believed Mother’s interaction with the minors contributed to their behavior.

The juvenile court terminated reunification services for Mother and H.G.’s father, ordered the minors into long-term foster care, and set a post-permanency review hearing (§ 366.3) for November 2016.

On July 30, 2016, H.G. died after she walked onto a railroad track and was hit by a train. Her death was ruled a suicide. On October 11, 2016, the juvenile court terminated its dependency jurisdiction over her.

II

Discussion

When the juvenile court removes a child from parental custody, it generally orders reunification services; the duration of which depends on the age of the child. If, as here, the child is over the age of three years on the date of the initial removal, the juvenile court must provide 12 months of reunification services beginning with the dispositional hearing and ending 12 months after the date the child entered foster care.[4] (§ 361.5, subd. (a)(1)(A).)

A parent, however, is not entitled to a prescribed minimum period of reunification services and the juvenile court may terminate them before the applicable statutory period has expired if termination would serve the child's best interests. In this regard, section 388, subdivision (c)(1) permits the early termination of reunification services if the juvenile court finds by a preponderance of the evidence that reasonable services have been offered or provided to the parent and by clear and convincing evidence, as applicable here, that “[t]he action or inaction of the parent ... creates a substantial likelihood that reunification will not occur, including, but not limited to ... the failure of the parent ... to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 388, subd. (c)(1)(B) & (c)(3).)

On appeal we review the juvenile court’s ruling on a section 388 petition for abuse of discretion. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.) “In exercising its discretion, the court has ‘the ability to evaluate whether the parent will utilize additional services and whether those services would ultimately inure to the benefit of the minor.’ [Citation.] We will not disturb the court’s determination unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the juvenile court. [Citation.]” (Ibid.)

Mother contends the juvenile court abused its discretion by granting the Agency’s section 388 petition to terminate her reunification services. She argues the necessary findings were not supported by substantial evidence. We disagree.

On review, we determine whether the requisite factual findings were supported by substantial evidence, and if they were, whether the juvenile court abused its discretion when it terminated services based on those findings. (See In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Julie M. (1999) 69 Cal.App.4 th 41, 46.)

1. The Termination of Juvenile Court Jurisdiction Renders the Case Moot as to H.G.

“As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. However, dismissal for mootness in such circumstances is not automatic, but ‘must be decided on a case-by-case basis.’ ” (In re C.C. (2009) 172 Cal.App.4th 1481, 1488; citations omitted.)

Mother contends her appeal as to H.G. is not moot because the juvenile court’s termination of reunification services order could infect a future dependency proceeding as to K.G. if he were returned to her custody and removed a second time. Indeed, if that occurred, the court could conceivably deny Mother services to reunify with K.G. based in part on the termination of services order as to H.G.[5] Mother’s concern however is highly speculative. Nevertheless, we will consider the merits of Mother’s issues as to H.G. out of an abundance of caution since dismissal of the appeal as to H.G. operates as an affirmance of the underlying judgment or order. (In re Jasmon O. (1994) 8 Cal.4th 398, 413.)

2. The Agency Provided Mother Reasonable Reunification Services

Mother contends the services provided by the Agency were inadequate to address the problems that necessitated the minors’ removal and the Agency failed to comply with the visitation order. We disagree.

When a child is removed from a parent’s custody, the Agency must make a good faith effort to develop and implement reasonable family reunification services responsive to the needs of that family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) “The adequacy of a reunification plan and of the [Agency’s] efforts are judged according to the circumstances of each case. ... ‘The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.’ ” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362; citation omitted.) “[T]he 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 [parent] during the course of the service plan, and made reasonable efforts to assist the [parent when] compliance proved difficult ....” (In re Riva M. (1991) 235 Cal.App.3d 403, 414; italics omitted.)

Thus, whether a parent was provided reasonable services is a two-part determination. The first is whether the reunification services selected by the Agency are reasonably tailored to address the problems that necessitated the juvenile court’s intervention. The second is whether the Agency made reasonable efforts to assist the parent in accessing the services selected. In other words, the services plan content and the Agency’s efforts to assist the parent in complying must be reasonable.

Reunification services are ordered into effect at the dispositional hearing and remain the order of the juvenile court unless the parent succeeds in having them modified. In contrast, the reasonableness of the Agency’s efforts is fluid and the juvenile court must determine at each review hearing whether the parent was provided reasonable services during the period under review.

On a challenge to the juvenile court’s reasonable services finding, appellant bears the burden of demonstrating error. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) We review the evidence in a light most favorable to the respondent, indulging in all legitimate and reasonable inferences to uphold the finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile court’s finding, we will not disturb it. (Ibid.) Moreover, under our review, services need not be perfect to be reasonable. Rather, the “standard is ... whether they were reasonable under the circumstances. [Citation.]” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

In this case, the minors were removed from Mother’s custody because they were severely emotionally disturbed and violent and Mother could not control them. The Agency provided them mental health services and placed them in settings to receive that support and the services provided were successful at least in terms of stabilizing K.G. Mother’s contentions K.G. was not properly referred for individual counseling and provided medication support are not supported by the record.[6]

H.G.’s mental health needs were much more challenging and unlike K.G., she was never stable long enough to get the help she needed. According to the record, she was taking a psychotropic medication before dependency proceedings were initiated but discontinued it because she did not like the side effects. She also refused mental health counseling at the group home. In December 2015, she was willing to try other psychotropic medications and the juvenile court approved her psychiatrist’s medication request in January 2016. It is unclear however from the record whether she was actually administered the medication and Mother claims she was not. However, H.G. was in Mother’s custody during that time until early March 2016. After that, she was constantly running away. Under those circumstances, there is only so much the Agency can do. It cannot force an unwilling teenager to accept help. Further, contrary to Mother’s assertion, the Agency attempted to protect H.G. from being sexually exploited by placing her in a specialized group home.

With respect to the reasonableness of Mother’s services, she contends the Agency failed to address her developmental and psychological needs. Presumably, any such needs would have been identified and hopefully addressed had Mother participated in individual counseling as ordered.

Finally, concerning visitation, the record reflects that H.G. refused to visit Mother in the months following her initial removal and that Mother did not request visits. H.G. was subsequently placed in Mother’s custody and then was a runaway until her death. Under the circumstances, the Agency was hard-pressed to facilitate visitation. K.G. also initially refused to visit Mother, but in October 2015, requested to do so, and visitation began in early March 2016. It is not clear from the record why it took so long to arrange it; however, the record reflects that Mother contributed to the delay by refusing to obtain childcare for her other children and to visit anywhere other than the Agency’s visitation center.

We conclude the Agency’s efforts to reunify Mother with the minors were reasonable under the circumstances.

3. Mother Failed to Regularly Participate and Make Substantive Progress

Mother contends the juvenile court failed to apply the clear and convincing burden of proof in finding she failed to regularly participate and make substantive progress. Alternatively, she contends the court abused its discretion in terminating her services because it did not consider her accomplishments (i.e. individual counseling at the center and Parents Resource Center), the minors’ ongoing service needs, and the fact that long-term foster care rather than a permanent home would result.

Contrary to Mother’s contention, the juvenile court applied the correct burden of proof[7] and did not abuse its discretion in ruling as it did. Mother decided not to participate in services and refused to acknowledge any problems on her part. The court's finding that Mother's inaction created a substantial likelihood that reunification with her children would not occur was overwhelmingly supported by the evidence.

Under these circumstances, the juvenile court did not abuse its discretion in granting the section 388 petition and terminating mother's reunification services.

III

DISPOSITION

The judgment is affirmed.

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POOCHIGIAN, J.

WE CONCUR:

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LEVY, Acting P.J.

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PEÑA, J.