He.G. v. Super.
Filed 2/21/13 He.G. v. Super. Ct. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
HE. G.,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
B244175
(Los Angeles County
Super. Ct. No.CK18621)
ORIGINAL
PROCEEDINGS in mandate. Stephan Marpet,
Juvenile Court Referee. Petition denied.
Law Office of
Marlene Furth, Danielle Butler Vappie and Candice Roosjen for Petitioner.
John F.
Krattli, Office of the County Counsel,
James M. Owens, Assistant County Counsel, Jessica S. Mitchell, Senior Associate
County Counsel for Real Party in Interest.
Petitioner He.
G. (Father) challenges the juvenile court’s September 2012 order terminating
reunification services and setting a hearing to terminate parental rights under
Welfare and Institutions Code section 366.26.
(DCFS) did not provide reasonable services.
We conclude the court’s determination that reasonable services were
provided, but that Father did not make significant progress in resolving the
problems that led to the removal of his child or demonstrate the capacity to
complete the objectives of his treatment plan, was supported by substantial
evidence. Accordingly, we deny the
petition.
The family
came to the attention of DCFS on February 16, 2011, when 8-year old (H.) appeared at
school with marks and bruises on his body, leading school officials to call law
enforcement personnel.
name="_ftnref2" title="">[2] H. informed officers that Father had become
angry when H. failed to close the door to their home, threw him to the ground,
choked him, and said he wanted H. to die.
a wooden bed frame a few days earlier.
foster care. A petition was filed
raising allegations of physical abuse and failure to protect. Father was interviewed and denied hitting or
abusing H.
DCFS “to provide the parent[s] appropriate family
allegations raised in the petition.â€
In March 2011,
H.’s foster mother reported that H. had been physically aggressive with his
foster siblings and was acting out in sexual ways.
taught him “that was what men do, and that if he does not have sex or watch
porn, then he is not a man.†He also
told her that Father had performed sexual acts with him. In April 2011, H. was re-interviewed by the
caseworker and asked whether he had ever been touched in a “bad way.†H. describing being sodomized twice by
Father, when Mother was at work, and said Father threatened to kill him if H.
said anything to Mother. H. also stated
he had watched pornographic movies with Father “[a] lot[].†H. further stated that Father called Mother
names, threw things at her, and beat her.
As a result of
the new information, DCFS filed an amended petition in April 2011, which
included new allegations of sexual abuse and domestic violence. Due to the seriousness of the allegations and
the parents’ history, DCFS recommended no reunification services. Initially, H. stated he did not want to
return home. Within a few months, he
began to talk about loving and missing Mother and stated he wanted to live with
her. In December 2011, after a second
change in placement, H. stated that he wanted to return to his parents. He recanted the sexual abuse allegations,
stating instead that Father had hit his “private part†with a belt buckle while
disciplining him. H.’s therapist
reported that H. had denied being sexually abused. H. was assessed by a multidisciplinary
assessment team. Their report stated
that H. displayed elements of various mental illnesses and also stated that he
“lies . . . , fails to take responsibility for his actions, and blames others
for troubles he creates on his own.†The
medical examination conducted by the team found no physical evidence of sexual
abuse.
Due to the
April 2011 amendment and several continuances, the adjudication and disposition
did not take place until January 2012, nearly a year after the detention. Father and Mother contested jurisdiction, but
before the matter was submitted to the court, the parties settled, agreeing to
the truth of the following allegations:
(1) Father “inappropriately physically disciplined [H.],†by “grabbing
[him] by his shirt collar[,] choking [him] and throwing him against a wooden
bed frame†and (2) Father maintained “inappropriate sexual boundaries†by
“forcing [H.] to watch pornographic movies†and threatening to harm him if he
told anyone. With respect to both
allegations, the parties stipulated that Mother knew of the abuse and failed to
protect H. The parties further
stipulated that two of Mother’s older daughters had been the subject of prior
dependency proceedings due to “sexual misconduct†by Father, and that Mother
had failed to reunify with her daughters.
The stipulated
case plan required Father to participate in counseling with a licensed
therapist to address case issues, sexual abuse counseling for perpetrators, and
a 26-week domestic violence program.
Mother was to participate in counseling with a licensed therapist,
attend a sexual abuse awareness program, and participate in a domestic violence
program for victims. The parties agreed
to an Evidence Code section 730 (section 730) psychological evaluation of all
three family members.
Father and
Mother had begun some programs prior to the adjudication and disposition. Between May and August 2011, Father and
Mother completed a parental education program.
Mother had begun counseling sessions in June and July, but those
sessions ended when her counselor left the program in which she was
enrolled. Father attended a 12-week
domestic violence program at the Union Rescue Mission, which had ended in
December 2011.
In a report
dated April 9, 2012, the caseworker reported that Father and Mother had
provided letters indicating they were participating in individual therapy and
that Mother was attending a domestic
violence intervention program.
name="_ftnref9" title="">[9] The report further stated that Father and
Mother were visiting H. regularly, and that during the visits the three of them
interacted appropriately and affectionately.
H. stated he wanted to return home to his parents. The caseworker described the parents as
“fully compliant with the case plan,†and recommended six more months of
reunification and unmonitored visitation.
A few days
prior to the caseworker’s report, Dr. Stephen Ambrose completed the section 730
evaluation.
title="">[10] In interviews, H. told Dr. Ambrose that the
sexual abuse he had previously described to the caseworker had in fact
occurred, and that he recanted because Father told him to lie. H. expressed fear of Father and did not
appear to be comfortable around him. Dr.
Ambrose concluded that H.’s allegations of sexual abuse were credible because “[h]is
affect in disclosing [the information] was fully consistent with the nature of
[the] disclosure†and “disclosures of anal penetration are, for most, so
embarrassing that they are rarely fabricated.â€
H.’s report of sexual abuse was further supported by evidence that
Father had been arrested for prostitution in his youth, indicating a
“propensity for deviant sexual behavior,†and by the proven allegations of
sexual misconduct with the older half-sisters.
Dr. Ambrose noted that Father continued to deny abuse of H.’s
half-sisters, “employ[ing] the same far-fetched explanations, minimizations and
justifications that he has in the past,†“categorically denied†domestic
violence, and described the allegations of the underlying petition as “a ‘sack
of lies.’†The evaluation described
Father as “immature and self-centered,â€
unable or unwilling to disclose personal information, and “[un]motivated for
psychological change,†and said he had not “meaningfully participated in
treatment.†Dr. Ambrose recommended discontinuing
H’s visitation with Father, termination of reunification services for both
parents and adoption planning, unless Mother separated from Father.
At the hearing
on April 9, 2012, designated a 12-month review hearing (§ 366.21, subd.
(f)), counsel for DCFS indicated that DCFS was prepared to stand by its
recommendation to continue services for another six months, until the 18-month
review date (see § 366.22), but no longer recommended unmonitored
visitation. Counsel for Father requested
a contest to determine whether reasonable services had been provided, which was
set for June 5. Counsel for DCFS warned
that DCFS’s recommendation was likely to change by that date due to the
opinions expressed by Dr. Ambrose in the section 730 evaluation.
In a June 2012
report, the caseworker stated that he had informed Father on April 9 that the
domestic violence class at the Union Rescue Mission was not DCFS-approved, and
had given him referrals for approved domestic violence and sexual abuse
programs. On April 18, Father enrolled
in a program for sexual offenders at Kheper Life Enrichment Institute. Mother had reported on April 9 that she had
completed phase one of a program for victims of domestic violence, but was
having difficulty locating a sexual abuse awareness program. On April 17, after receiving a packet of
referrals from the caseworker, she reported she had enrolled in an appropriate
program. The June report stated that
based on Dr. Ambrose’s evaluation, DCFS was changing its recommendation to
termination of reunification services.
Father’s
sexual offender therapist, Erica Byrd, testified on the first day of the
contested review hearing.
name="_ftnref13" title="">[13] She stated that besides individual therapy,
which occurred every other week, Father was enrolled in a sexual
offender/awareness program and had attended 10 classes. In the classes and in therapy, they discussed
boundaries and how to prevent offending.
Father had told Byrd that there was a misunderstanding with regard to
the allegations H. had made. Father
indicated he had not done anything inappropriate with his son. He had not discussed domestic violence.
reports or the section 730 evaluation from the caseworker.
In August
2012, the caseworker reported that Father was enrolled in sexual abuse
counseling for perpetrators, but his counselor said he had made “little
progress since he ha[d] not disclosed much information during session[s].†Father had begun individual counseling, but
attended only three sessions and “ha[d] made no progress in therapy.†In sum, though he had cooperated by enrolling
in the court-ordered programs, Father had not made progress in “gaining
awareness into his family problems and dynamics,†had not disclosed significant
information to his sexual abuse counselor or individual therapist, and
“continue[d] to demonstrate his denial of any abuse and neglect despite the
statements provided by his son, and [Dr. Ambrose].â€
their respective programs, neither parent [has] made any significant change
internally that would address their family issues and sexual abuse allegations
against [Father]. No parent has
demonstrated a change in thought awareness, a desire to change or mitigate the
risk to their son by fully cooperating and engaging in therapeutic
services.†DCFS continued to recommend
termination of reunification services.
In August
2012, Tony Thompson, the caseworker since October 2011, testified at the
continued review hearing. He stated he
had gone over the necessary services with the parents when he first met with
them, sometime after assuming responsibility for the case. Between January and March, he did not have an
address for the parents, which made locating appropriate service providers
difficult. In February 2012, Thompson
learned that the Union Rescue Mission, where Father had participated in a
domestic violence program, did not have a licensed therapist and on April 9,
provided Father with new referrals for domestic violence counseling. Thompson admitted that when preparing the
April 2012 report, he did not know the identity of Father’s individual
therapist and therefore did not know if he was licensed and had not sent the therapist
or the agency providing the counseling any of the case reports.
In September
2012, Father’s individual therapist, Josh Cohen, testified he had had three
sessions with Father, in April and June.
Cohen also testified that he had only recently received copies of
reports prepared for the case.
On the final
day of the review hearing, September 19, 2012, counsel for DCFS and H.’s
counsel urged the court to terminate reunification services due to the parents’
lack of progress. Counsel for Father
contended that DCFS had not provided reasonable services, basing this
contention on the caseworker’s failure to inform Father during the period
between January and April 2012 that the domestic violence program he had
completed was inadequate, the misleading nature of the April 2012 report which
indicated Father was in full compliance with his case plan, and the
caseworker’s failure to provide reports to Father’s therapists in a timely
fashion.
The court
found that DCFS had provided reasonable services but that the parents had not
made substantial progress and, accordingly, terminated reunification
services. The court found that Father
had not complied with the case plan.
With respect to Father’s alleged confusion about which programs DCFS
approved, the court pointed out that Father had received and signed a copy of
the reunification plan. In addition, he
had been given referrals at the detention hearing in February 2011, when the
court ordered pre-disposition services to be provided. The court pointed out that there had been no
testimony from Father indicating confusion “about what he reasonably believed
[he was required] to do or not do.†The
court set a section 366.26 hearing to consider termination of parental rights.
writ petition.
Because family
preservation is the first priority when dependency proceedings are commenced,
juvenile courts must in most cases order DCFS to provide services to the
parents to enable them to demonstrate fitness and regain custody of their
child. (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) “DCFS must make a good faith effort to
develop and implement a family reunification plan†by “‘identif[ying] the
problems leading to the loss of custody, offer[ing] services designed to remedy
those problems, maintain[ing] reasonable contact with the parents during the
course of the service plan, and ma[king] reasonable efforts to assist the
parents in areas where compliance proved difficult . . . .’†(Amanda
H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345, quoting
414.) The effort must be made “in spite
of the difficulties of doing so or the prospects of success.†(In re
Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
Where the minor is over the age of three, the juvenile court is
statutorily prohibited from setting a hearing to terminate parental rights at
the 12-month review stage unless it finds that reasonable services have been
provided the child’s parents or guardians.
(§ 366.21, subd. (g)(1); see Amanda
H. v. Superior Court, supra, at
p. 1345 [“Typically, when a child [over the age of three] is removed from a
parent, the child and parent are entitled to 12 months of child welfare
services to facilitate family reunification.
These services may be extended to a maximum of 18 months. [Citation.]
If, at the 12-month hearing, DCFS does not prove, by clear and
convincing evidence, that it has provided reasonable services to the parent,
family reunification services must be extended to the end of the 18-month
period. [Citations.]â€].)
At the
12-month review hearing, the court must also consider whether to continue
reunification for an additional six months.
If reasonable services have been provided, the court may continue the
reunification period “only if it finds that there is a substantial probability
that the child will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended period of
time . . . .†(§ 366.21,
subd. (g)(1).) “[I]n order to find a
substantial probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the home within
the extended period of time, the court shall be required to find all of the
followingâ€: [¶] “(A) That the parent or
legal guardian has consistently and regularly contacted and visited with the
child. [¶] (B) That the parent or legal
guardian has made significant progress in resolving problems that led to the
child’s removal from the home. [¶] (C)
The parent or legal guardian has demonstrated the capacity and ability both to
complete the objectives of his or her treatment plan and to provide for the
child’s safety, protection, physical and emotional well-being, and special
needs.†(§ 366.21, subd.
(g)(1).) A trial court’s findings at a
review hearing are reviewed for substantial evidence. (Amanda
H. v. Superior Court, supra, 166
Cal.App.4th at pp. 1345-1346; In re
Kristin W. (1990) 222 Cal.App.3d 234, 251.)
Father
contends DCFS did not provide reasonable services. Specifically, he contends he was misled by
the statement of the caseworker in the April 2012 report that both parents were
“fully compliant with the case plan,†made at a time when neither he nor Mother
was enrolled in a sexual abuse program and when the caseworker knew the
domestic violence program at the Union Rescue Mission in which Father had
participated was not DCFS approved.
Father further contends that any deficiencies in his compliance were the
fault of the caseworker for failing to provide referrals prior to April 2012
and failing to maintain closer contact with the service providers or provide
them with case information, including copies of reports.
The record
does not support Father’s allegations that the caseworker misled him or that he
was prejudiced by the caseworker’s misstatement or his failure to provide
referrals prior to April 2012.
name="_ftnref17" title="">[17] The April 2012 report did erroneously state
that Father and Mother were “fully compliant.â€
However, as the court pointed out when making its final ruling, there
was no testimony from Father or other evidence to suggest that the contents of
the April 2012 report led him to believe he had enrolled in all the programs
required by the case plan, which he had signed in January.
More importantly,
the court’s ruling was based primarily on Father’s conduct between April and
September 2012, and Father’s noncompliance after April was not the result of
any misleading information from DCFS.
Immediately after the April 9 hearing, the caseworker informed Father
that he needed to enroll in a different domestic violence program and gave
Father referrals for approved domestic violence programs. In addition, he gave Father referrals for
sexual offender counseling which enabled Father to enroll in an approved
program a few days later. The court’s
final ruling was made five months after Father enrolled in the relevant
programs. By that time, the court had
the benefit of Dr. Ambrose’s assessment that after years of denial of abusive
behavior, Father was resistant to psychological change and unlikely to make
satisfactory progress. The court also
had heard testimony from Father’s therapists, and received DCFS’s June and
August reports. The evidence indicated
Father had stopped attending individual therapy and had attended only one
approved domestic violence class.
name="_ftnref18" title="">[18]
Moreover, the
court had before it evidence that Father was not making significant progress in
sexual offender therapy because he was not honest with his therapist concerning
the abuse he had inflicted on H.
Instead, he denied abusing H. in any fashion despite having stipulated
to jurisdictional findings that he had physically abused H. and forced him to
watch pornography. On this evidence, the
court could reasonably find that Father was not making “significant progress in
resolving problems that led to [H.’s] removal from the home†and had not
“demonstrated the capacity and ability both to complete the objectives of his
or her treatment plan.†(§ 366.21, subd.
(g)(1)(C); see In re Dustin R. (1997)
54 Cal.App.4th 1131, 1141-1142 [court cannot base decision at review hearing on
parent’s attendance at programs and “completion of the technical requirements
of the reunification plan,†but must consider “progress the parent has made
towards eliminating the conditions leading to the children’s placement out of
homeâ€].)
Father
attempts to blame his lack of progress on the caseworker’s failure to provide
reports to his therapists until July.
Although the caseworker should have maintained contact with service
providers and provided case information in a more timely fashion, his failure
to do so did not excuse Father’s failure to provide honest information to the
therapists or his decision to drop out of individual therapy and the domestic
violence program. Based on Father’s
non-attendance, lack of honesty, long history of abusive behavior, and
resistance to change, the court could reasonably believe that there was no
likelihood of significant progress or of H. safely returning to the parents’
home if additional services were provided for a few more months.
The petition
is denied. The stay of the permanency
review hearing under section 366.26 is lifted.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
Unless otherwise indicated,
statutory references are to the Welfare and Institutions Code.
Father and H.’s mother, Valerie
G. (Mother), had been involved with DCFS in 1995 and 2000 in proceedings
involving two of Mother’s three older daughters. The record reflects that allegations
pertaining to one daughter were sustained in November 1995 under section 300,
subdivisions (b) and (g), but contains no specifics concerning the jurisdictional
findings. In March 2000, allegations
that Father sexually abused another of Mother’s daughters by inappropriately
touching the girl were sustained. Father
ultimately stipulated to “sexual misconduct†with two of Mother’s daughters. Mother did not reunify with either girl. Allegations of sexual abuse against Father
made in 2002 were found to be unsubstantiated or inconclusive. In 2003 and 2004, H.’s then adult
half-sisters called DCFS because they were concerned Father might be physically
or sexually abusing H. DCFS investigated
and found no signs of abuse or neglect at that time.
