K.R. v. Super. Ct.
Filed 6/28/12
K.R. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
K.R.,
Petitioner,
v.
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
Respondent;
STANISLAUS COUNTY
COMMUNITY SERVICES AGENCY,
Real Party in Interest.
F064524
(Super. Ct. Nos. 516018 & 516019)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Parent
Advocates of Stanislaus and Hana B. Balfour, for Petitioner.
No
appearance for Respondent.
John P.
Doering, County Counsel, and Robin L. McIver, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
K.R.
(mother)
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders
issued at a contested 12-month review hearing terminating
Welfare and Institutions Code section 366.26 hearing
S.R. and F.R. respectively. She contends
the juvenile court erred in finding that she was provided reasonable services
and that there was not a substantial probability the children could be returned
to her custody by the 18‑month review hearing. Thus, she asks this court to direct the
juvenile court to vacate the section 366.26 hearing and to continue
reunification services. We deny the
petition.
PROCEDURAL AND FACTUAL SUMMARY
In January
2011, the Stanislaus
County Community Services Agency (agency) took then two-year-old S.R. and
11-month-old F.R. into
custody after investigating a report of drug use, child neglect and
possible sexual molestation. At the
time, K.R. was living with the children in the home of her mother,
Kimberly. K.R.’s adult brother, Richard,
also lived there. The caller stated that
there was no food in the home and that S.R. was seen looking in the trash for
food. When the girls’ diapers were
changed, their vaginas were red and appeared torn. S.R. was asked who touched her privates and
she responded “Richard.”
K.R. and
Kimberly admitted to the emergency response social worker that they were using
methamphetamine. Kimberly said she had
been using the drug on and off for 20 years.
K.R. and Kimberly said they left the girls in Richard’s care about five
times a week when they left the residence, but denied that Richard touched
S.R. However, K.R.’s girlfriend said
there was an incident approximately a month before when S.R. got out of the
bathtub, touched her privates and said it hurt.
When asked if anyone touched her privates, she stated “Rich did.” Kimberly acknowledged this and said they
spoke to Richard and he denied being inappropriate with the children. Kimberly stated that she, K.R. and Richard
were molested as children.
This was
not the first reported incident of possible sexual
molestation concerning K.R.’s children.
In June 2010, K.R. contacted the agency, stating that she left then four‑month‑old
F.R. with then 20-year-old Richard. When
she returned, F.R. was screaming and K.R. suspected that Richard put something
in F.R.’s rectum. The agency
investigated and reported that F.R. had a rash but no visible cuts or
abrasions. The information was provided
to a social worker who was working on another referral concerning the
family.
In February
2011, the agency filed a dependency
petition on behalf of S.R. and F.R., alleging K.R. failed to protect
them. (§ 300, subd. (b).) The petition identified the children’s
fathers by first name only and indicated that their whereabouts were
unknown. S.R. and F.R. were placed with
foster parents, Mr. and Mrs. W.
In March
2011, the juvenile court adjudged S.R. and F.R. dependents of the court,
ordered them removed from K.R.’s custody and ordered her to participate in
sexual abuse counseling at Parents United and
instruction at Sierra Vista Child and Family Services (Sierra Vista). The purpose of the sexual abuse counseling at
Parents United was for K.R. to address her childhood sexual molestation. The purpose of the individual counseling at
Sierra Vista was for her to address the children’s sexual molestation,
including ways to protect them from it.
The plan also required K.R. to complete a drug and alcohol assessment
and submit to random drug testing and visit the children weekly. The court set the six-month review hearing
for August and an interim review hearing for June 2011.
In its
interim review report, the agency stated that K.R. completed the steps to
participate in some of her services but did not follow through. She completed a drug and alcohol abuse
orientation but missed several assessment appointments. As a result, she was still on the waiting
list for the program. She attended one
meeting of the Parents United Program but did not enroll. She completed an application for individual
counseling at Sierra Vista in February 2011 and attended an intake appointment
in April, but did not return. When asked
about her progress, K.R. told the social worker that she was doing her best but
that the court had asked her to do too much and that it was overwhelming.
The agency
also reported that K.R. visited the children once a week for an hour and a
half. The girls appeared to enjoy the
visits but also appeared indifferent to see their mother. When the visits were over they left without
incident.
In June
2011, the juvenile court conducted the interim review hearing. According to the minute order of the hearing,
the court was “not pleased [with K.R.’s] progress.”
In July
2011, K.R. entered the Nirvana Women of Hope residential drug and alcohol
treatment program (Nirvana) and tested positive for methamphetamine. She also began parenting instruction at
Sierra Vista. By the end of July, K.R.
had a sponsor but was having difficulty sharing in group settings and at
Narcotics/Alcoholics Anonymous meetings.
In addition, K.R. had not begun sexual abuse counseling at Parents
United; however, her drug counselor recommended that she defer it until she was
further into the recovery process.
In its
six-month status review report, the agency recommended that the juvenile court
continue K.R.’s reunification services, however, the agency had concerns. Specifically, it was concerned that K.R. was
not sharing in her group sessions and seemed to be going through the motions
and that her friends and family were a threat to her sobriety. Meanwhile, S.R. and F.R. were bonded to Mr.
and Mrs. W. who wanted to adopt them.
In August
2011, the juvenile court continued K.R.’s reunification services to the
12-month review hearing which it set for February 2012. However, the juvenile court stated that it
was not impressed with K.R.’s performance and that it was not inclined to set a
12-month review hearing. The court set
an interim review hearing in November and admonished K.R. that if her progress
was not “stellar” that it would terminate her services at that time.
In its
report for the November 2011 hearing, the agency described S.R. and F.R.’s
behavior in foster care. Initially, they
displayed extreme emotional reactions to going to the bedroom and being in bed
and would have nothing to do with any male including Mr. W., their foster
father. F.R. would pull away from men
and cry and S.R. would hide behind Mrs. W. or run away screaming, crying and
yelling, “Go away!” As they gained
trust, their behavior subsided; however, S.R. began to act out sexually by
grabbing female breasts, rubbing her vagina with eating utensils and attempting
to insert them into her vagina.
The agency
also reported that K.R. completed residential and day treatment at Nirvana and
was living at Redwoods, a transitional facility for women, and participating in
intensive outpatient treatment. She had
a sponsor and was testing negative for drugs.
She also completed parenting classes at Sierra Vista and continued to participate
in individual parenting sessions and parent/child labs. She began sexual abuse counseling at Parents
United in September 2011 and attended all but one meeting due to illness. She still had not begun individual counseling
at Sierra Vista to address the children’s molestation. Also during this period, the social worker
increased visitation to four hours a week and K.R. asked about overnight
visitation. The social worker, however,
did not recommend it because S.R. had suddenly become incontinent which the
social worker attributed to the increased contact. In addition, S.R. was reluctant to visit and
when longer or overnight visits were mentioned, she said she liked to “play
with mommy but [didn’t] want to live with mommy.”
In November 2011, another judicial
officer presided over the interim review hearing and continued reunification
services to the 12-month review hearing.
In its report for the 12-month
review hearing, the agency recommended that the juvenile court terminate K.R.’s
reunification services and set a section 366.26 hearing to implement a
permanent plan. The agency reported that
F.R. was beginning to display sexualized behavior. Mrs. W. reported that on one occasion, during
bath time, F.R. aggressively attempted to poke S.R.’s vaginal area with a soap
crayon. In addition, K.R. was adamant
that Richard did not touch the children.
The agency also reported that K.R.
actively avoided participating in sexual abuse counseling. In September 2011, at the social worker’s
encouragement, she started the newcomers group at Parents United. In late September, she missed the group
session and lied about the reason for her absence. She asked Laurie Lopez, her social worker, if
she could attend one-on-one counseling instead of sexual abuse counseling at
Parents United because she did not like speaking in front of other people. Ms. Lopez told her that she was required to
complete counseling at Parents United as well as individual counseling to
address the children’s molestation. In
December 2011, K.R. completed the newcomers group at Parents United. That same month, she began the Adults
Molested as Children (AMAC) group and attended every session. However, the focus of the group was on
personal victimization and K.R. was not attending the group sharing
session.
The agency opined that K.R. failed
to demonstrate the ability to protect the children from molestation and/or
sexual abuse. She appeared to be going
through the motions of treatment and failed to demonstrate the capacity to
provide for the children’s physical or emotional needs.
The 12-month review hearing was
continued and conducted in March 2012 as a contested hearing. Several of K.R.’s service providers testified
on her behalf. Therapist Lupe Ruelas-French
testified that she was contracted to provide individual and parenting
counseling for clients of Sierra Vista.
She said that the initial referral from the agency authorized K.R. to
participate in Sierra Vista’s parenting program. K.R.’s attorney introduced the contract service
authorization and encumbrance form which authorized it into evidence. Ms. Ruelas-French was assigned to provide
K.R. the one-on-one parenting portion of the parenting program and she said
that K.R. completed it and “did well.”
She said she spoke to K.R.’s prior social worker, Kathy Kleinfelder, in
August 2011 and she recalled them discussing parenting but not individual
counseling.
Ms. Ruelas-French further testified
that in February 2012 she received a copy of K.R.’s case plan and a second
authorization from the agency to provide K.R. individual counseling. Prior to receiving the case plan, she did not
know that the children were removed from K.R.’s custody because they were
sexually molested. She said that K.R.
would not have received individual counseling without an authorization. She said the focus of her individual
counseling with K.R. was protecting the children from possible molest.
On cross-examination by county
counsel, Ms. Ruelas-French testified that services do not begin without an encumbrance. She said she sometimes asked the agency for a
report so that she could obtain a family history, but operated on a general
understanding that there was neglect or endangerment resulting from substance
abuse and/or domestic violence. She said
that details about the family history and the specific issues of concern were
generally disclosed during the one-on-one parenting counseling. She said that if a client mentioned a type of
counseling for which she did not have an encumbrance, she would refer the
client to the social worker. She said
that K.R. did not mention needing individual counseling in 2011 or disclose
that the children were removed because of suspected sexual molestation. She said that information would have been
important to know so as to provide K.R. appropriate parenting counseling.
On redirect examination, K.R.’s
attorney asked Ms. Ruelas-French who in her experience typically identified the
issues to be addressed in counseling.
She said that information typically came from the agency. She also testified that clients are not
necessarily willing to identify the issues that they need to address. She said it would probably have made a
difference in the way she approached K.R. and the issues she discussed with her
if she had known that there was concern that the children had been
molested.
Carolina Storment, K.R.’s mentor at
Redwoods, testified that she oversaw K.R.’s visitation with the children. She described K.R. as being very engaged in
visitation and the children as “excited” to see her. She said the children could live with K.R. at
the facility and that they could remain as long as necessary.
Rene Pirie, K.R.’s case manager at
Redwoods, testified that she met with K.R. weekly to discuss her progress and
recovery. She said she made sure that
K.R. was meeting with her sponsor, working her steps thoroughly and attempting
to attend outside meetings on her own.
She said that K.R. was progressing well in her recovery and was working
on step 9 of the 12 steps. She said she
discussed triggers that could cause relapse with her clients but had not
discussed that with K.R. She said that
K.R. did not tell her that she had been molested, but also said that was not a
subject she would have necessarily talked to her about as her case manager.
Stacy Glover, K.R.’s substance
abuse counselor, testified that K.R. finished the 12-week outpatient treatment
program and decided to stay for the last component of the program which she
said was more intensive and lasted up to a year or longer. In that component, they worked on core issues
regarding family, genograms and amends letters to her children. She also testified that K.R. participated in
one-on-one counseling and group sessions.
She said that K.R. shared openly in group sessions and believed that she
made “great progress” in the program.
She further testified that K.R. completed a relapse prevention packet
and was able to identify her triggers.
She said that K.R discussed being molested as a child but did not
discuss the children’s molestation.
Sandra Santos, K.R.’s parent
educator at the drug treatment facility, testified that K.R. had been
participating in parenting classes and individual sessions with her since
November 2011. She said the parenting
classes included a class on sexual abuse during which they discussed red flags,
how to protect children, and inappropriate touching. She said K.R. was quiet in class and
participated randomly but appeared attentive.
She said that during the parent/child lab she conducted, K.R. interacted
well with her daughters. On
cross-examination by county counsel, Ms. Santos was asked whether K.R.
mentioned the children’s sexualized behaviors following visitation. She said she had not and that it would have
been good information to have. However,
she also testified that it was normal for children to act up after visiting a
parent and that K.R. would not have any control over the children’s behavior
following visitation.
Laurie Lopez testified for the
agency. She said that she took over the
case from social worker Kathy Kleinfelder in September 2011. At that time, K.R. was not participating in
individual counseling at Sierra Vista.
She said that Ms. Kleinfelder logged a conversation she had in April
2011 in which K.R. asked if she had to attend individual counseling for her
molestation at Sierra Vista or if she could address the issue in one-on-one
counseling as part of drug treatment. Ms. Kleinfelder told K.R. that she would have
to inquire. Ms. Lopez said that she
first discovered that K.R. was not attending individual counseling for sexual
molestation at Sierra Vista in October 2011.
At that time, she directed K.R. to speak to her counselor at Sierra
Vista about providing that type of counseling.
She also followed up monthly to see if K.R. had signed up for the
counseling. At some point, K.R. told Ms.
Lopez that she was participating in individual counseling at Sierra Vista for
sexual molestation and Ms. Lopez discovered that instead K.R. was participating
in AMAC. She said that AMAC consists of
group sessions only, not one-on-one counseling.
She also said that K.R. was regularly attending but not participating.
Ms. Lopez further testified that
she recommended terminating K.R.’s reunification services based on various
concerns, including K.R.’s denial that Richard molested S.R. and F.R. Ms. Lopez testified that K.R. adamantly
denied that Richard molested them until February 2012 after Ms. Lopez recommended
that the juvenile court terminate her services.
After that, K.R. suggested that a previous boyfriend may have molested
them.
Ms. Lopez was also concerned that
K.R. was vulnerable to relapse because her only source of support, Kimberly,
was a person with whom she used drugs and because she had not progressed beyond
supervised visitation. In addition, Ms.
Lopez did not believe that the children could be returned to K.R.’s custody by
the 18-month review hearing in July because she was still in denial that
Richard may have molested them.
On cross-examination by K.R.’s
attorney, Ms. Lopez testified that K.R. could have attended individual therapy
at Sierra Vista even without an encumbrance.
She explained that if K.R. had made it known at the intake that she
needed to attend individual counseling, it would have been brought to someone’s
attention at that time. She said it was
not uncommon to encumber a limited amount of services at the beginning of a
case plan so as not to overwhelm a client with many services and tie up
funds. She said that it was the social
worker’s responsibility to make services available to a client, but that it was
K.R.’s responsibility to bring it to a service provider’s attention when there
are multiple services from one provider.
K.R. testified that she believed something
happened to S.R. based on her behavior but she did not know if anything
happened to F.R. She did not know if
Richard molested them but said it could have been him. She said she was never told she needed
individual counseling at Sierra Vista.
Had she been referred for it, she would have completed it. She said she had been in individual
counseling for several weeks to address protecting her children from
molestation. She said that she had
learned tools to protect them. For
example, she said she would not leave her children with family members but
would use child care.
At the conclusion of the hearing,
the juvenile court found that the agency provided K.R. reasonable services and
that there was not a substantial probability the children could be returned to
K.R.’s custody by the 18-month review hearing.
The court terminated services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Reasonableness
of Services
K.R. contends that the agency’s
failure to authorize child sexual abuse counseling through Sierra Vista prior
to February 2012 was a failure to provide reasonable services. Therefore, she further contends, the juvenile
court’s reasonable services finding is error and must be reversed. We disagree.
In determining whether reasonable services were provided,
the juvenile court considers not only the appropriateness of services offered,
but also the extent to which the department facilitated utilization of the
services and the extent to which the parent availed himself or herself of the
services provided. As a practical
matter, one could always argue that the department could
have done more or provided better services
Misako R. (1991) 2 Cal.App.4th 538, 547 (Misako R.).) The standard is
whether the services provided were reasonable under the circumstances. (Ibid.)
On a challenge to the juvenile
court’s reasonable services finding, we view the evidence in a light most
favorable to the department, indulging in all legitimate and reasonable
inferences to uphold the finding. (
If substantial evidence supports the juvenile court’s finding, we will
not disturb it. (Ibid.)
Since
K.R. bears the burden of demonstrating error on appeal (
624, 632), she must show that the juvenile court’s reasonable services finding
evidence.
In this
case, the juvenile court considered the fact that there was not a specific
authorization to Sierra Vista for individual sexual abuse counseling, however
found that in the totality of the circumstances the agency provided K.R.
reasonable services. In so ruling, the
court stated that it was satisfied that K.R. knew that she was required to
address the children’s molestation in counseling based on her discussions with
the social workers and the references to it in the agency’s reports. Having reviewed the record, we find it
plausible that K.R. may have been confused at times as to how to meet her
counseling requirements. However, at
least by October 2011, she was specifically directed by Ms. Lopez to talk to
her counselor at Sierra Vista, presumably Ms. Ruelas-French, about
incorporating the issue of the children’s molestation into her individual
counseling. K.R. did not bring it to her
counselor’s attention and lied to Ms. Lopez saying that she did. For whatever reason, K.R. avoided
participating in that particular counseling.
In addition, K.R. did not disclose that the children were molested and
she still doubted whether Richard molested them. Under the circumstances, even if she had been
authorized to receive the counseling sooner, there is no reason to believe that
she would have participated in it or benefitted from it given her active
avoidance and denial.
Further,
the case that K.R. cites to support her argument, In re Alvin R. (2003) 108 Cal.App.4th 962 (Alvin R.), is distinguishable.
In Alvin R., reunification
depended on a series of events which had to occur in the following order: eight individual therapy sessions for Alvin,
conjoint therapy for Alvin and his father, and visitation. (Id.
at pp. 972-973, 975.) However, the
department, in that case, ignored the juvenile court’s order eliminating the
eight-session requirement and made no attempt to get Alvin into therapy except
to refer him to a therapist with a waiting list. (Id.
at p. 973.) The appellate court reversed
the juvenile court’s reasonable services finding, concluding that the
department did not make a good faith effort to facilitate the therapy sessions
and provide the father reasonable services.
(Id. at pp. 973, 975.)
Unlike
to K.R.’s services. Rather, her case
plan was designed such that she would participate in them simultaneously. Her inability to do so therefore was not
because other services depended on her first receiving counseling focused on
the children’s molestation, but rather because she failed to take the appropriate
steps to initiate it.
That said, however, it was
ultimately the agency’s responsibility to provide the proper authorization for
the counseling and communicate to the therapist the specific nature of the
required counseling. The fact that the
social worker did not follow through is bothersome, especially since it was
unlikely that K.R. would voluntarily pursue counseling to address the
children’s molestation given her general avoidance of counseling and the
painful nature of the subject matter.
Nevertheless, given the gravity of the situation, the importance of
counseling to her ability to reunify and her understanding that it was a
requirement, we must agree with the juvenile court that services were
reasonable given the totality of the circumstances.
Substantial
Probability of Return
K.R. contends the juvenile court erred
children could be returned to her custody by the 18–month review hearing. Therefore, she further contends, the juvenile
court also erred in terminating reunification services. We disagree.
The
juvenile court has discretion to extend services beyond 12 months if it finds
there is a substantial probability that the child will be returned to parental
custody and safely maintained in the home within the extended period of
time. (§§ 361.5, subd. (a)(1),
366.21, subd. (g)(1).) In order to find
a substantial
probability of return, the
juvenile court must first find that the parent made significant progress in
resolving the problem necessitating the child’s removal and that the parent
demonstrated the capacity to meet the objectives of the case plan and provide a
safe home for the child. (§ 366.21,
subd. (g)(1)(B) & (C).)
When the juvenile court’s order
terminating reunification services is challenged on appeal, our role is to
determine whether substantial evidence supports the juvenile court’s
order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) In doing so, we do not reweigh the evidence
or draw our own conclusions from it. (
315, 321.) Rather, we merely determine
if there are sufficient facts to support the findings that the juvenile court
made. (Ibid.) Stated another way, the question on appeal is
not whether the juvenile court could have found differently, but whether
substantial evidence supports the finding that the juvenile court made. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
On this record, we conclude that it does.
In this case, the children were
removed from K.R.’s custody in large part because they were sexually molested
while in her care and a main objective of her reunification plan was to protect
them from sexual abuse. However, after
12 months of services, K.R. had, according to Ms. Ruelas-French, only
participated in two individual sessions to address the children’s molestation
and she was still denying that Richard molested them. In most respects, K.R. was no better equipped
to protect the children than she was when they were first removed. Indeed, the juvenile court found that her progress
was “limited.” Given her limited
progress and the depth of the problem, there was no reason to believe that K.R.
would have the skills to protect the children and provide them a safe home in
the months remaining before July 2012 which marked 18 months from the date the
children were initially removed from her custody. (§ 366.22, subd. (a).) We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this
court.
refer to mother and her children by their first and last initials to protect
the children’s identities. (Cal. Rules
of Court, rule 8.401(a)(2).)
