John B. v. Superior Court

Filed 3/4/08 John B. v. Superior Court CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Debra L. Losnick, Temporary Judge (Pursuant to Cal. Const., art. VI,  21.) Petition denied.

Law Office of Alex Iglesias, Steven B. Shenfeld and Adam Reed, for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest.

Childrens Law Center, Alison Siebers, for the Minor.

__________________

John B. (father) has filed a petition pursuant to California Rules of Court, rule 8.452, challenging the juvenile courts order terminating family reunification services with his daughter, Sav. B., and setting the underlying juvenile dependency proceeding for a hearing to consider the termination of fathers parental rights. (Welf. & Inst. Code,  366.26.)^[1] We find substantial evidence supports the juvenile courts order, and deny the petition.

FACTS AND PROCEDURAL HISTORY

This case came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in September 2006, on an emergency referral from staff at Los Angeles County/USC Hospital. Sav. B.s mother, Tupe I., was confined to bed rest at the hospital prior to Sav. B.s birth. Hospital staff overheard ongoing loud arguments between mother and father, during which father was verbally abusive to mother.
The parents would become confrontational with the staff when the staff tried to intervene. A DCFS emergency response worker interviewed the parents. Mother admitted she had been diagnosed with schizophrenia and had been prescribed medications, but had stopped taking them when she was pregnant and did not plan to resume them. Father admitted he had been diagnosed with schizophrenia two years before, but said both he and mother were now fine. Father acted in a threatening manner toward the DCFS worker, denied that he and mother ever argued, demanded to know who had made these reports, and threatened to sue everyone. The DCFS worker concluded Sav. B. would be at risk if she were released to the parents, and she detained Sav. B. in foster care.

On September 12, 2006, DCFS filed a section 300 petition alleging that mother was unable to care for Sav. B. because of mental and emotional problems, including Schizophrenia, Schizoaffective/Bipolar type, paranoia and auditory hallucination[s]. ( 300, subd. (b)(1).) Mother had three other children who were dependent children of the court and were receiving permanent placement services. ( 300, subd. (b)(7)) It was further alleged that father had a criminal history, including convictions for driving under the influence, battery, [attempted] murder causing great bodily injury, assault with a deadly weapon, and possession of a controlled substance for sale. ( 300, subd. (b)(5).)

In a report prepared for the disposition hearing, which was initially set for November 7, 2006, the DCFS social worker stated that father had declined to talk about his criminal history. Two of mothers relatives, who were interviewed as possible placements for Sav. B., told DCFS they were afraid of father. DCFS recommended that mother not be offered reunification services because of her failure to reunify with other children ( 361.5, subd. (b)(10),^[2]and that father not receive reunification services due to his criminal history. ( 361.5, subd. (b)(12.) However, DCFS gave both parents referrals for individual and family therapy and parenting classes.

The parents requested a contested adjudication hearing, which was set for December 18, 2006. In anticipation of that hearing, a DCFS investigator interviewed Renai Clayton, fathers counselor at A New Serenity counseling center. Father had told Mr. Clayton that DCFS intervention in the case was a mistake and unjust, and he (father) was going to take action from [an] independent entity to avenge himself and his family. DCFS also reported that the parents were not receiving services from appropriate or qualified service providers. Fathers counselor, for example, had a Bachelor of Arts degree in literature and a certificate in anger management counseling, but was not a licensed therapist.

For various reasons (including an unsuccessful attempt to mediate the case), the contested adjudication hearing was trailed to April 26, 2007. DCFS continued to recommend that neither parent receive family reunification services. Both parents were terminated from the A New Serenity program for refusing to undergo drug testing. Both said they were done with individual counseling and had not resumed services elsewhere.

The disposition hearing was finally conducted on June 29, 2007. In a report prepared for that hearing, the DCFS social worker stated that throughout the life of the case, father had continued to demonstrate aggressive and angry behavior to DCFS employees, the foster agency employees and the caregiver. The explosive and irrational nature of his anger is of grave concern to the department as it relates to [Sav. B.s] safety and her long-term well being. The juvenile court sustained the petition and ordered that mother receive no family reunification services because she had failed to reunify with her other children. ( 361.5, subd. (b)(10).) The court ordered DCFS to provide reunification services for father. As part of the case plan, father was to undergo individual counseling with a licensed therapist, attend anger management sessions, and submit to an Evidence Code section 730 evaluation.

In a report prepared for a status review hearing on August 27, 2007, DCFS stated that father had been attending anger management classes at Los Angeles Downtown Mental Health for six weeks. According to the social worker, father was under the assumption that he does not need to enroll in individual counseling. When the social worker reminded him that he needed to follow up with a licensed therapist, father was angry and adamant that he was only to do anger management and he knew what he was doing. On August 17, 2007, when the social worker asked father what programs he was attending, father became annoyed in his tone of voice and stated what programs, you mean program, not many but one, and thats anger management.

The social worker also reported having had an uncomfortable confrontation with father in July, when he appeared at the DCFS office demanding bus tokens and complained of being short changed when he received only five bags of tokens rather than the six he requested. Father continued to become angry, and verbally aggressive, cursing under his breath and stating he was going to call CSWs supervisor and his attorney. Father later told the supervisor that his concern was not being short changed, but that mother did not receive bus tokens as well. (Mother was not receiving reunification services and therefore was not entitled to transportation funds.) Father also complained about having to travel to Pasadena for the Evidence Code section 730 evaluation when it was out of his area. The social worker commented generally that father was often aggressive and impatient with what he is told. He does not cooperate if he is not in agreement with what he is being told.

Father had monitored visits with Sav. B. twice a week, accompanied by mother. Although fathers interactions with Sav. B. were appropriate for the most part, he and mother often argued during the visits. Sav. B.s foster mother also reported that during a visit on August 15, 2007, father had made a threatening comment about what he would do if he didnt get his baby back. The foster mother hesitated to provide details due to the fear of [fathers] temperament and retaliation.

Dr. Michael Ward submitted his Evidence Code section 730 evaluation on
October 8, 2007. Dr. Ward reported that father denied having any mental or psychiatric problems, and denied having used drugs. Father did not drink alcohol because it was against [his] religion (Christian). Father also denied having been violent, but admitted he had been in jail for This, that and the other. Father claimed his conviction for attempted murder resulted from an act of self-defense.^[3]

Dr. Ward opined that father had an atypical clinical presentation. Although father did not exhibit any psychotic behavior, he had a certain hypomanic quality about him, along with a certain edgy, angry, somewhat volatile quality . . . . Father felt people were out to get him, so reacted to questions as if he were under attack. Father tends to simply deny any problems or difficulties, refuses to talk about a number of issues and gives fairly brief, unelaborated responses to many questions. Dr. Ward concluded: I frankly doubt there would be much value in referring him for therapy, since it would be very difficult to work with this man. If the juvenile court was inclined to order therapy, it should be with an extremely strong and seasoned professional, who is not going to be intimidated by this man and who is somehow able to break through all of his defensiveness and lack of insight. The prospects for any such treatment were very limited, in light of the severity of this mans personality disorder.

On September 7, 2007, DCFS sent father a copy of the courts order directing that he undergo individual therapy, with a follow-up letter on September 24, 2007, listing counseling referrals. On October 10, 2007, DCFS reported that father still had not contacted the social worker.

A contested hearing pursuant to section 366.21, subdivision (e), began on
October 16, 2007. Charles Davis, a licensed psychiatric technician employed by the
Los Angeles County Department of Mental Health, was called as a witness by DCFS.
Mr. Davis is the facilitator of fathers anger management group. He also spoke with father on an individual basis for an hour each week. Father told Mr. Davis that he was attending anger management to try to get his child back. Father did not admit to the hospital staffs accusations that he was being abusive to his wife, but said he was just communicating with her.

At the conclusion of Mr. Daviss testimony, the juvenile court said it did not consider fathers anger management group to have provided the individual counseling the court had required. At the request of fathers counsel, the court asked DCFS to make every effort to help father find a licensed therapist before the next hearing date on November 7, 2007.

At the continued hearing on November 7, 2007, Shely Dan, a social worker from the foster family agency United Care, testified that he had been assigned to the case a few days after Sav. B.s birth and had met father shortly thereafter. Mr. Dan monitored most of fathers visits with Sav. B., which occurred at the foster family agency. When asked whether fathers demeanor had changed as a result of attending anger management,
Mr. Dan said father had good days and bad days; was frustrated at times, and compliant at times, but was compliant for the most part. He described fathers character as very vibrant and emotional.

Father testified that he had received a letter from DCFS on July 15, 2007, with counseling referrals. He called the places listed in the letter, but no one could help him because all charged even low-income patients $15 per visit, which father could not afford. Father testified that he told the social worker that the cost was a problem for him, and he would most definitely go into counseling with a licensed therapist if he could afford it. Under cross-examination by Sav. B.s counsel, father acknowledged having told the social worker in early November that he and Mr. Davis did individual counseling for an hour after the anger management group ended, and the social worker agreed to that arrangement. Under cross-examination by counsel for DCFS, father testified that he had received referral letters in July and October, and acknowledged having told the social worker on November 1, 2007, that he was attending both anger management and individual counseling at the same place; I go to the group and then after the group Charles [Davis] and I do individual for another hour. Father testified that the social worker agreed with that arrangement. Father denied ever having said that he did not have to participate in individual counseling. Father also denied having made similar statements to Dr. Ward. When asked how long he had been a client of Downtown Mental Health, father stated, Since I started the individual counseling, anger management. . . .  5 weeks.

At the conclusion of the hearing, the juvenile court found that father had partially complied with the case plan but had failed to complete individual counseling with a licensed therapist. The court said it had ordered individual counseling with a licensed therapist for a reason, and fathers individual discussions with Mr. Davis did not qualify as individual counseling. The court made this finding despite fathers claim that his failure to comply was due to financial issues. The court also noted that although
Mr. Dans testimony was favorable to father overall, the court focused on that part of the testimony in which Mr. Dan indicated that father was still volatile, that his moods change pretty quickly even during visits, and that he lets his emotions get the best of him. The court also referred to Dr. Wards conclusion that he could not recommend reunification at that time (October 2007) or at any time in the near future. The court found that Sav. B. could not be returned to fathers custody at that time, and there was no substantial probability that she would be returned within six months. The court terminated family reunification services and set the matter for a hearing to consider the termination of fathers parental rights.

DISCUSSION

We review the juvenile courts order under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency courts findings.
(In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence is evidence that is reasonable, credible and of solid value that would allow a reasonable trier of fact to reach the same conclusion as the juvenile court. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support the courts order, contradicted or not, we must affirm the dependency courts decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

Father contends there was not substantial evidence to support the juvenile courts findings that DCFS made reasonable efforts to provide him with reasonable reunification services, that father had only partially complied with the case plan, and that there was a substantial risk to Sav. B. if she were returned to petitioner. We conclude substantial evidence supports each of the courts findings.

Sufficiency of reunification services.

Father first contends DCFS did not make reasonable efforts to provide him with court-ordered reunification services, because he could not afford even the lowest fees charged by DCFSs individual counseling referrals.

Father faults DCFS for failing to expend any further effort to assist him with no-cost individual counseling referrals. However, the record demonstrates that fathers failure to enroll in individual counseling was not due to financial concerns or to any failure on the part of DCFS. Rather, father took the position, which he maintained until he testified otherwise at the hearing below, that he did not need or want individual counseling and the juvenile court had not ordered it.

On September 27, 2006, father signed a receipt acknowledging he had received a list of referrals for therapy (individual, family and marital) and parenting classes. Although father had individual counseling in connection with his anger management and parenting classes at A New Serenity counseling center, father knew by mid-December 2006 that the individual counseling services were not provided by a qualified therapist because DCFS noted this in its December 18, 2006, report. There is nothing in the record to suggest that father requested additional referrals at that time. In fact, both parents told the social worker in April 2006 that they were done with individual counseling.

When the juvenile court sustained the petition on June 29, 2007, its order provided that father was to undergo individual counseling with a licensed therapist. However, in late August 2007, DCFS reported that father was not enrolled in individual counseling and was under the assumption that he does not need to enroll in individual counseling. When the social worker reminded father that he needed to follow up on the referrals DCFS gave him in mid-July 2007, father was angry and adamant that he was only to do anger management and he knew what he was doing. In October 2007, DCFS reported that father had stated to CSW on various occasions over the telephone that he does not believe he has been Court ordered to seek individual counseling. The social worker also reported that on September 24, 2007, she had sent father additional referrals along with a letter stating he was to enroll in individual counseling. As of October 10, 2007, father had not replied.

Partial compliance with case plan.

The juvenile court found that father had only partially complied with the case plan because he did not participate in individual counseling with a licensed therapist. Father points to the testimony of Mr. Davis, who stated that he spent an hour a week talking individually with father about fathers feelings of anger. Although father now characterizes these meeting with Mr. Davis as individual therapy, the court sustained county counsels objection when fathers trial counsel characterized these services as therapy. It is undisputed that Mr. Davis is not a licensed therapist.

Substantial risk of detriment.

Finally, father contends there was not substantial evidence to support the juvenile courts conclusion that Sav. B. would be at risk if she were returned to him. Father claims that because he had made substantial progress in therapy, the court should have found that Sav. B. could be returned to him within six months, and the court should have ordered six additional months of reunification services.

Because Sav. B. was under the age of three at the time she was detained, father was entitled to a maximum of only six months of reunification services, measured from the date Sav. B. entered foster care. ( 361.5, subd. (a)(2).) Reunification services may be extended for an additional six months, at the juvenile courts discretion, if the court finds there is a substantial probability that the child will be returned to the parent within the extended period. ( 361.5, subd. (a)(3) In other words, the maximum reunification period for a child under the age of three years is 12 months.

In this case, Sav. B. entered foster care on September 7, 2006. By the time of the hearing below, the reunification period had already been extended to 14 months, which is eight months longer than the statutory period to which he was entitled and two months longer than he would have been entitled to under an extended order. A parent is entitled to extended services only under limited circumstances, including the parents significant progress in resolving the problems that led to the childs removal. ( 366.21, subd. (g)(1)(B).)

In this case, father had made some progress, but not significant progress.
Dr. Ward, the only licensed mental health professional who evaluated father, noted that father had an edgy, angry, somewhat volatile quality about him, was extremely defensive and responded even to benign questions as if he were under attack, and denied having any mental problems or difficulties whatsoever. Dr. Ward noted that fathers general presentation could be problematic in a variety of settings, especially if he was upset. Dr. Ward concluded not only that father needed individual therapy, but that the therapist would have to be an extremely strong and seasoned professional who is not going to be intimidated by father. Dr. Wards report constitutes substantial evidence that father had failed to resolve the problem that first led to Sav. B.s detention: the inability to control his temper.

DISPOSITION

The petition for extraordinary writ is denied. Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

ASHMANN-GERST

We concur:

___________________, P. J.

BOREN

___________________, J.

CHAVEZ

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The juvenile court has since terminated mothers parental rights to her three older children.

^[3] Father was convicted of trying to murder his former girlfriend on November 2, 1990. The victim told the police she had broken up with father because of his bad temper and he had been following her for a month. According to the police report, father threatened to kill the victim, chased her, pushed her over a cement wall and stabbed her several times. The victim was treated for stab wounds to the stomach (which required surgery) and arm. When apprehended, father told the police, I just cut her a little.