>M.S. v.
Super. Ct.>

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/18/13  M.S. v. Super.
Ct. CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

M.S.,             Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY,            Respondent;   SONOMA COUNTY HUMAN SERVICES DEPARTMENT et al.,           Real Parties in Interest.

A139035         (Sonoma County       Super. Ct. No. 3845-DEP)

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>Introduction

            A.S.
was removed from her mother’s custody based primarily on mother’s href="http://www.fearnotlaw.com/">substance abuse and domestic violence
issues.  A.S. was placed in foster care,
and both parents were provided with services. 
Only her father, M.S. (Father), substantially completed his
reunification plan.  He also successfully
reunified, in separate proceedings, with A.S.’s half brother.  The court nevertheless terminated services to
Father on the basis that A.S. had a “frail emotional condition” and thus could
not be safely returned to Father within the 18-month time limit.  Father filed this petition seeking a writ
compelling the court to vacate its order, claiming the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sonoma
County Human Services Department (Department) did not provide adequate
services and no substantial evidence supported the trial court’s finding of
substantial risk of detriment to A.S.’s emotional well-being.  We agree that the Department did not meet its
burden of proving substantial risk of detriment if A.S. is returned to Father,
and that there is no substantial evidence adequate services were provided to
Father.  We grant the petition.>

>Factual
and Procedural Background

            On
January 19, 2012, the
Department filed an initial juvenile dependency petition regarding A.S.  The petition alleged A.S.’s mother left A.S.,
then four years old, home alone in 2010, had a substance abuse problem, failed
to ensure A.S. attended school regularly, had a history of domestic violence
with her then-boyfriend, and A.S.’s infant half brother died of asphyxia in
2010 while in mother’s care.  A.S.
informed a social worker she and Mother had been sleeping in a car.  Mother also had allowed her boyfriend to
spend the night in the home with A.S., in violation of a written plan made with
the Department to guarantee A.S.’s safety.

            As
to Father, the petition alleged he had a history of domestic violence resulting
in a dependency petition being filed on behalf of A.S.’s half brother M.S. III
in November 2010.  An amended petition
filed on February 22, 2012,
alleged Father “has been involved in approximately six domestic violence
related incident[s] resulting in approximately four arrests and one
conviction.”href="#_ftn1" name="_ftnref1"
title="">[1]>  Father and Mother had another child, J.S., who
was living with his maternal grandparents, although the paternal grandmother
was his legal guardian.  The amended
petition also indicated Father’s “DMV records indicate[] that his license is
currently expired.”

            A.S.
was initially placed at the Valley of the Moon Children’s Home.  The social worker interviewed her in January
and February 2012, reporting “[t]he minor appeared very small and petite for
her age and continually cried throughout the interview . . . .”  “[T]he minor appears sad and withdrawn and
continually reports that she misses her mother. 
Staff at Valley of the Moon [Children’s Home] related that it took the
minor a few days to adjust to her new environment and slowly began to socialize
. . . .  The Undersigned will refer the
minor to a therapist soon.” 

            The
jurisdiction/disposition report filed on February 22, 2012, indicated Father
was currently employed full-time in a tile business.  In the dependency
proceeding regarding A.S.’s half brother, M.S. III was declared a
dependent, and was placed “with the father under a trial home visit.”  Father was receiving reunification services
and was “working diligently on their case plan.”  The report concluded “father is complying
with services [in the case involving M.S. III] but had a difficult time at the
beginning of the year complying with his case plan.  The Undersigned assesses that the father
needs more time in order to fully transition . . . [M.S. III], to their home
and ensure that all his needs are being met. 
The father is in agreement and hopes to be able to reunify with [A.S.]
in the near future.”

            Father’s
case plan in A.S.’s case required that he complete an approved domestic
violence treatment program, participate in counseling with a social worker
approved therapist, complete a social worker approved series of in-home or
in-community parenting sessions and demonstrate successful integration of the
parenting skills taught, continue to attend an outpatient substance abuse
program and randomly drug test.

            In
a March 2012 addendum report, the social worker indicated “it would be in the
minor’s best interest for the father to receive services given that he has
complied with services on behalf of his other child, [M.S. III], and the minor
is currently placed under his care in a trial home visit.  The father has been receptive to Family
Reunification Services on behalf of his son and continues to work diligently
with the in-home parent educator.”  The
social worker also reported A.S. was “very close to her half-sibling” and wants
to “see her ‘brother and spend more time with him.’ â€

            In
the status review report for the six-month hearing in August 2012, the social
worker reported A.S.’s placement had been changed to a “non-relative concurrent
home” after the relatives with whom she had been placed could no longer care
for her.  The social worker recommended
therapy for A.S. because she “has been acting out as demanding, clingy and has
been making up stories.”  A.S. was about
to begin first grade after having repeated kindergarten due to poor attendance
while living with Mother.

            Father
continued to work full time and live with his girlfriend.  Their son, M.S. III, was living with them
“under Family Maintenance Services.” 
Father had successfully graduated from a domestic violence treatment
program.  Father reported attending
therapy, but not regularly due to his work schedule.  Father had been working with an in-home
parenting instructor and was “about to finish” the program.  He had missed two drug treatment group
sessions, one in April and one in May, and thus had not graduated from the
program because it required consecutive attendance at meetings.  The report noted when Father attends “he
fully participates and contributes to the group’s discussions.”  Father had been participating in random drug
tests, and had one positive test in June for alcohol.  He had initially had unsupervised visits, but
because both parents tested positive for alcohol, “visits began to be
supervised at California Parenting Institute.” 
The social worker recommended six more months of services for both
parents.

            In
November 2012, Father attended a meeting with the social worker, lawyers,
foster mother, and “two ladies . . . from the adoption agency.”  Father was concerned that the foster mother
had introduced A.S. to another foster family, and did not wish to continue
being a foster parent.  There was a
discussion about Father having unsupervised visits in the community, and Father
was “asked to do the driving because it was becoming a burden on the foster
mother.”  Father testified the social
worker knew his license was suspended around that time because in a different
meeting she told him “not to mention it.” 
The social worker denied that asking him to drive was for the benefit of
the foster mother.

            On
January 24, 2013, the social worker prepared a report in M.S. III’s case in
which she stated “ â€˜[T]his family has displayed resiliency in not only
being able to endure the struggles they have faced throughout the past two
years, but to accept responsibility for the part they played and take the steps
required to mitigate future risks.’ â€

            In
the February 2013 status review report in A.S.’s case, the social worker
reported A.S. was placed in “a foster home that would consider adoption.”  A.S. was in generally good health, albeit
with numerous dental issues, and was attending first grade where she was
performing “above grade level.”  She had
been seeing a therapist who reported to the social worker A.S. initially “had
many walls up to protect herself from unwanted feeling,” but is now “more in
touch with her feelings of distress.” 
The report indicated “It is clear that [A.S.] has been traumatized by the
accidental death of her baby brother. 
This is evidenced by [her] recurring thoughts that her mom’s unborn baby
is going to die.”  A.S. stated
“ â€˜it’s a good thing I don’t live with my parents . . . because they don’t
take care of me.’ â€  She clarified
“her dad did take care of her when she was a baby and that although he had a
house, she and her mom lived in the car . . . because her mom didn’t like her
dad.”

            In
the same report, the social worker described recent “traumatic” experiences for
A.S.  Her mother told her she would see
her on Christmas but did not, causing A.S. to cry “throughout the day saying
that her mother lied.”  “Over the holiday
season, [A.S.] presented as sad.  She
said to her foster mother that this was the best Christmas because Santa never
came when she lived with her mom.”

            Another
incident involved Father taking A.S. to a cemetery.  The social worker stated A.S. “likes to put
on a brave front, but when she returned from the visit she could not sleep in
her room because she thought that zombies were going to get her” and was afraid
to sleep alone.  The social worker
concluded A.S. “is a sensitive and emotionally frail child.  The undersigned suspects that the parents are
not completely aware of [A.S.’s] emotional and mental health needs.  She has been very anxious about where she is
going to ultimately live and has stated . . . she wants to live in one place,
where she feels safe, and taken care of.”

            The
social worker recommended termination of services to Mother, but continued
services to Father.  She noted Father’s attendance
at drug treatment services during the review period “has been inconsistent, but
he has been participating in drug treatment services at DAAC since 2010,”
estimating he has “attended around 30 group sessions” but “has never managed to
complete 12 sessions in a row to get a certificate.”  Father had been participating in href="http://www.mcmillanlaw.com/">individual therapy with Dr.
Rodriguez.  He had, “quite recently,”
successfully reunified with his youngest son, A.S.’s half brother.  Father had unsupervised visits with A.S. once
a week, but on “several occasions” “has arrived and returned [A.S.] late.”  However, the social worker recommended the
court make the finding that “[Father] has consistently and regularly contacted
and visited the child.”

            In
early February, but apparently after the February 6 report, the social worker
learned Father did not have a valid drivers’ license.  She suspended his visitation with A.S. until
“he was able to give me the information of who was going to drive around with
[A.S.]”  When he could not find anyone to
drive, she offered him bus passes in early March.  Father then attempted to correct the
suspended license issue by self-surrendering at traffic court on March 29,
2013.  The juvenile court took judicial
notice of the docket in that case, which indicated Father pleaded no contest to
violation of Vehicle Code section 14601.1, subdivision (a), (driving while
license suspended for a reason other than driving under the influence or
reckless driving) and of Vehicle Code section 4000, subdivision (a)(1)
(unregistered vehicle) on January 23, 2013. 
The court suspended imposition of sentence, imposed conditional
probation, and ordered him to serve 45 days in jail to be stayed until
March 13, 2013 or enrolled in a work release program.  Because he failed to timely contact the
program or report on the jail commitment, a warrant had been issued for his
arrest.  On March 29, 2013, he admitted
his probation violation and was remanded into custody to serve 45 days in jail.  Father actually served 22 days.  Father’s girlfriend contacted the social
worker to inform her he was in jail.

            The
12-month review hearing was continued at the request of Father for one week,
until April 17, because Father was in county jail.  The hearing was continued again, until May
14, 2013, because Father had not been transported from county jail to the
hearing despite an order.  Father was no
longer in jail on May 14.

            On
May 6, 2013, the Department filed an addendum report in which it changed its
recommendation to termination of services for Father based on his
incarceration, “seeing just how affected [A.S.] is by the current
circumstances,” and A.S.’s expressed desire to continue living with her foster
mother rather than her parents.  The social
worker reported “[t]he biggest concern . . . revolves around [A.S.’s] behaviors
and emotional state of mind.”  The social
worker relayed that “On February 20, 2013 [A.S.] was reluctant to talk to her
therapist . . . .  She was worried that
her therapist will tell her parents that she wants to live with the foster
parent and be adopted.  She also stated
that sometimes it would be easier if her parents would die so she wouldn’t have
to hurt their feelings.  [A.S.] wants to
please her parents but she often cries because she does not want to be put in
the middle of things.”  Her bedwetting
had “increased again to nightly” and she has “little accidents here and there
during the day.”  A.S. told the social
worker she wants to stay with her foster mother and not live with either
parent.  If she could wish for what she
really wanted, it would be “ â€˜to live with [foster mother] and . . . a
purple pony for my imaginary friend.’ â€ 
A.S. has an imaginary friend who is a girl her age who is staying with
her because her parents do not take good care of her.

            The
social worker concluded the report with the following “evaluation.”  “After the undersigned learned that [father]
was recently rearrested and seeing just how affected [A.S.] is by the current
circumstances the undersigned believes that it would be in the best interest of
the child to remain in the care of her foster mother, and for family
reunification services to the parents to be terminated at this time.  [A.S.] does not want to live with either
parent and she is happy and secure under the care of her fost-adopt mother.”

            At
the May 14, 2013 hearing, the social worker testified she had changed her
February 2013 recommendation to continue reunification services to Father, and
now recommended termination based on A.S.’s “special needs” in terms of her
emotional health.  In the 60 days prior
to the hearing, A.S. found out her father was in jail because she “overheard
the foster mom talking.”  She told the
social worker she was upset because “her daddy lied to her” about being in
jail, and she was worried that he was “in the dungeon, with chains and all
that.”  Additionally, A.S.’s mother had
given birth to another baby, and A.S. “constantly talks about that baby dying.”  The baby was hospitalized and had some medical
concerns, but the Department was “trying not to discuss that with [A.S.].”

            There
had been no formal psychological
evaluation of A.S., but A.S.’s therapist informed the social worker she had
posttraumatic stress disorder.  Her past
traumas are “past things that happened when she was in the care of the mother,”
including the death of her half sibling while in mother’s care, being homeless
and living in a car, her mother being involved with “scary guys,” witnessing
domestic violence between her mother and boyfriend, her mother’s stealing
things, and never having a “real Christmas and a real tree.”

            The
social worker testified regarding a traumatic incident in December 2012 when
Mother promised A.S. she would visit on Christmas but the “Department did not
recommend that visit to occur.  So the
child was waiting by the phone during the entire Christmas day waiting for her
mother . . . .  And the child was really,
really devastated . . . crying, inconsolable.”

            On
cross-examination, the social worker testified Father had requested that A.S.
celebrate Christmas day with him and her siblings, but “the foster mom had
already made plans, and they were not gonna be in town.  So it wasn’t gonna work for the foster mom
because it wasn’t on one of the days that was his regular visitation
days.”  The social worker explained “I
cannot force the foster parent to change their holiday plans with their family
to accommodate a father.”

            A.S.
told the social worker when she visited Father’s home, “there’s a lot of people
in that home and . . . ‘[e]verybody was mean to each other.  Everybody was yelling.’  And her heart would go ‘boom, boom, boom.’
”  The social worker opined A.S.’s past
traumatic experiences changed the significance to her of hearing people yelling
during visits to her father’s house. 
“[S]he has been exposed to domestic violence and physical altercations
with adults. . . .  She is afraid that,
you know, whoever is yelling—and she calls it ‘being mean’ . . . that something
really bad is going to happen.”

            The
social worker also testified that Father’s taking A.S. on a visit with the
other children to a cemetery to visit family graves demonstrated Father did not
understand A.S.’s emotional needs. 
Father testified about the cemetery visit.  He brought four of the children, including
A.S., to a cemetery where Father’s grandmother and brother were buried to visit
their graves.  Father’s brother had
passed away when he was eight years old. 
The children were “really interested in [his] brother because they’ve
seen a lot of pictures.”  When they
arrived, the cemetery was closed, so they visited the next-door “Rural
Cemetery, which is also a historical park . . . [with] cannonballs and
everything out front.”  The children saw
it and were interested, including A.S., so they “went to go check it out, and
there was no mention of zombies or ghosts or anything like that. . . .  [¶] And . . . it seemed like it was a
good day. . . I didn’t see that she was scared at all.  I don’t—I don’t really know where that came
from.”

            The
Department also offered evidence regarding another incident it maintained
demonstrated Father’s failure to recognize A.S.’s trauma.  In one, A.S. told social worker about
“yelling” and people being “mean” during an unsupervised visit to Father’s
home.  Father explained he picked up A.S.
after getting off work.  They had planned
an outing, but Father was tired after working 60 hours a week, and suggested
they rent some movies and have a “movie day” with the other children.  Father fell asleep while watching the
children’s movie with A.S. and the other four children, including his
15-year-old stepdaughter.  When he woke
up the “kids were running around, popcorn was everywhere, they were jumping on
the furniture, and [he] kinda freaked out. . . .  [¶] [He] was kinda barkin’ orders
around, you know, for [J.S.] to get the popcorn off the floor, . . . and for
[A.S.] to help pick up the garbage, or whatever was goin’ on, because mom was
on her way home. . . .  [¶] So
during the time that I was doing this, [A.S.] did start to cry, and she felt
singled out.  I had to reassure her
that—you know, that I wasn’t mad at her, that I was just—you know, had to be
stern and instruct everybody . . . . 
[¶] And she did mention that, you know, she doesn’t really
experience any yelling in the house, and I apologized to her for—for doing
that, and you know, I let her know that—that it wouldn’t happen again.  [¶] And, you know, I just comforted her
and hugged her and let her know that it was okay, that I wasn’t mad at her . .
. .”

            Father
also spoke with his other children about the incident.  They talked about “us yelling and how [A.S.]
was, you know . . . emotionally different, that we needed to, you know, think
about that because, as a family of five, you know, we can get pretty—things
could get pretty loud.  The kids can
argue.  [¶] And they—they all came
to me and said that, you know, they would make whatever adjustments that we had
to make and that they would change their behavior, do anything that they had to
do to get her back.”

            The
social worker testified she did not recommend family therapy for Father and
A.S. because “we’re [not] going to have enough time to get her to trust that
she’s going to be fine with Dad. . . . 
I’m not sure we have enough time for that.  She really has a lot of trauma.  You know, more than I realized she has.”

            Father
testified he had recently moved to a bigger home with three bedrooms to make a
place for A.S.  Father had prepared a
bedroom for A.S. to share with his stepdaughter.  He bought bunk beds and dressers, and put
their television and A.S.’s personal things in the room “to make her feel at
home.”  Father described her as generally
happy when she visited him, not troubled or sad.  He felt she had a “great bond” with her
brother.  In addition to Father’s
reunification with A.S.’s half brother, M.S. III, her full brother J.S. had
been placed with Father.

The juvenile
court “adopted the findings and orders” prepared by the Department, which
stated “The extent of progress made by the father toward alleviating or
mitigating the causes necessitating placement has been minimal.”  At the hearing, however, the court stated
Father had done “everything with the case plan.”  The court terminated family reunification
services and found “there is not a substantial probability that, with the
continuation of services to parents, the child would be safely returned to
[Father’s] custody during the extended service period.”  The court explained “You have been an
outstanding example of how one embraces services.  You are a good Dad, but [A.S.] has needs that
you can’t provide in terms of emotional safety right now, and that’s what the
law dictates. . . .  So I don’t want you
to feel bad about—feeling like ‘Oh gosh if I had only had my license’ or . . .
if I hadn’t gone to the cemetery.’ 
No.  Those aren’t the things.  But those are the things to look at for
understanding [A.S.] and where she is at and why this is the way it is.”

Discussion

            We are faced with
the unusual situation where Father
has substantially completed the elements of his reunification plan (earning
significant praise from the court) and successfully reunified with another
child, but the juvenile court nevertheless found returning A.S. would create a
substantial risk of detriment and there is no substantial probability that with
continued reunification services, A.S. could be safely returned before the end
of the 18-month period. 

            We
look first to the statutory mandate. 
Welfare and Institutions Codehref="#_ftn2" name="_ftnref2" title="">>[2]
section 366.21 provides in part: 
“The permanency hearing shall be held no later than 12 months after the
date the child entered foster care. . . . 
At the permanency hearing, the court shall determine the permanent plan
for the child, which shall include a determination of whether the child will be
returned to the child’s home. . . . 
After considering the relevant and admissible evidence, the court >shall order the return of the child to
the physical custody of his or her parent or legal guardian >unless the court finds, by a
preponderance of the evidence, that the return of the child . . . would create
a substantial risk of detriment to
the safety, protection, or physical or
emotional well-being of the child. 
The social worker shall have the burden of establishing that
detriment.”  (§ 366.21, subd. (f),
italics added.)

            “The
court shall also determine whether reasonable services that were designed to
aid the parent or legal guardian to overcome the problems that led to the
initial removal and continued custody of
the child have been provided or offered to the parent. . . .  In making its determination, the court shall
review and consider the social worker’s report and recommendations . . . shall
consider the efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or herself of
services provided, taking into account the particular barriers to an
incarcerated . . . parent’s or legal guardian’s access to those court-mandate
services and ability to maintain contact with his or her child . . . .”  (§ 366.21, subd. (f), italics
added.)  “The court may not order that a
hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been
provided or offered to the parent . . . .” (§ 366.21, subd.
(g)(1)(C).)

            Similarly,
California Rules of Court, rule 5.715 provides at the 12-month hearing, the
court “must order the child returned to the custody of the parent or legal
guardian unless the court finds the petitioner has established, by a href="http://www.mcmillanlaw.com/">preponderance of the evidence, that
return would create a substantial risk of detriment to the safety, protection,
or physical or emotional well-being of the child. . . .  [¶] . . . [¶]  (4) If the court
does not order return of the child to the parent . . . the court must specify
the factual basis for its finding of risk of detriment to the child . . . .”  (Cal. Rules of Court, rule 5.715(b)(1),
(4).)  “If the child is not returned to
the custody of the parent or legal guardian, the court must consider whether
reasonable services have been offered or provided.”  (Cal. Rules of Court, rule 5.708(e)(1).)


Substantial Risk of Detriment

            Until
services are terminated, “reunification is the goal and [Father] is entitled to
every presumption in favor of having [A.S.] released to his custody.”  (David
B. v. Superior Court (2004) 123 Cal.App.4th 768, 788 (David. B.).)  The Department
has the burden of demonstrating substantial risk of detriment to the child if
returned to the physical custody of the parent. 
(§ 366.21, subd. (f).) 
“[S]imply complying with the reunification plan by attending the
required therapy sessions and visiting the children is to be considered by the
court; but it is not determinative.  The
court must also consider the parents’ progress and their capacity to meet the
objectives of the plan; otherwise the reasons for removing the children
out-of-home will not have been ameliorated.” 
(In re Dustin R. (1997) 54
Cal.App.4th 1131, 1143 (Dustin R.).)href="#_ftn3" name="_ftnref3" title="">[3] 

            The
evidence demonstrated Father had successfully completed the domestic violence
program, and had refrained from domestic violence with his current live-in
girlfriend.  Father also successfully
completed the parenting class, as well as “coaching sessions” at some of his
supervised visits with M.S. III.  The
social worker agreed Father had substantially addressed his domestic violence
issues.  She testified in the two and one
half years she had been working with Father (due to the multiple dependency
cases) she had ordered random chemical testing, and he had only tested positive
once, for alcohol on June 29, 2012, “at the very beginning of the case . . . a
long, long time ago.”  She acknowledged
the case plan did not require him to totally abstain from alcohol.  The social worker also testified Father was
referred to DAAC, a substance abuse program, which required an individual to
complete 12 consecutive classes.  If a
class was missed, the individual had to start over.  Although Father had not attended 12
consecutive classes, he had completed over 30 classes by December 2012.  Father was also attending substance abuse
classes at Indian Services.href="#_ftn4"
name="_ftnref4" title="">[4]>

            The
social worker testified she told Father that she and her supervisor “had great
concerns about what the foster mom might do if, in fact, reunification services
were order[ed] continued for the father.” 
She claimed, however, those concerns had no influence on her changing
her recommendation to terminate services to Father.  The social worker indicated she changed her
recommendation to continue services because she received “new information that
just came about, you know, that I found out. . . .  So while I was hearing all these things that
[A.S.] was talking to me about, Dad was in jail, so I had no opportunity to
talk to him about it.  And the time that
we met . . . I didn’t even touch on that, because I had already recommended to
terminate services.  [¶] [T]he 18
months is in July.  So whether or not
we’re going to have enough time to get her to trust that she’s going to be fine
with Dad and family therapy, I’m not sure we have enough time for that.  She really has a lot of trauma.  You know, more than I realized she has.”

            The
social worker indicated she changed her recommendation based on A.S.’s newly
expressed desire to stay with her foster mother rather than live with Father or
Mother, her anxiety and mental distress about changing homes and the “yelling”
at her father’s house, and that Father was in custody in county jail for 22
days after going “to traffic court to resolve issues regarding his driver’s
license.”  She also testified that
Father’s taking A.S. on a visit with the other children to a cemetery to visit
family graves demonstrated Father did not understand A.S.’s emotional needs.

            The
factors to which the social worker testified are, taken together, insufficient
to meet the Department’s burden of establishing “a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the
child.”  (§ 366.21 , subd.
(f).)  First, “a child’s preference is
not the deciding factor in a placement decision, even when that child is a
teenager.”  (In re Patrick S. III (2013) 218 Cal.App.4th 1254, 1265.)  “The liberty interest of a minor is not
coextensive with that of an adult.”  (>Ibid.)  As the court noted with
regard to the minor’s wish to remain with his foster parent, “We understand . .
. [he] quickly became attached to the first stable parental figure in the first
stable home he ever had.  Nevertheless,
foster care is not a preferred placement.” 
(Ibid.)  Similarly here, A.S.’s newly expressed wish
to remain with her foster mother is understandable, but it does not establish
substantial risk of detriment.

            The
Department also maintained the evidence showed Father did not truly understand
A.S.’s sensitivity.  The social worker
testified she had concerns about choices Father made during visits with A.S.,
referring, however, only to taking A.S., along with her siblings, to a cemetery
to visit the graves of relatives.  The
social worker acknowledged A.S. did not act traumatized while there, but later,
apparently at the home of foster mother, was worried about “zombies,” would not
sleep alone and was wetting the bed.  The
social worker explained A.S. “likes to please people.  So if everybody says, ‘Let’s go,’ she’ll go.
. . .  [¶] So you have to get to
know the child really well, to actually figure out whether she really wants to
do something or if she feels she has to be pleasing the adults.”  The social worker concluded “the father needs
to get to know [A.S.] really well, to kind of see the clues that maybe body
language, or maybe she’s saying ‘yes,’ but she really doesn’t mean yes.”

            The
other incident about which the social worker testified involved Father yelling
at A.S. and her siblings to clean up popcorn they had spilled during a movie at
his home.  When A.S. began to cry, the
evidence showed Father immediately consoled her, and testified it would not
happen again.  His testimony evidenced
awareness of A.S.’s sensitivity:  “I had
to reassure her that . . . I wasn’t mad at her. . . .  [¶] . . . I apologized for [yelling and]
. . . I let her know that—that it wouldn’t happen again.”  Father also testified he had talked with his
other children about yelling and A.S.’s sensitivity.  Other than this single incident of a
hard-working parent falling asleep while watching an appropriate movie with his
family, and waking up to a tumble of children and popcorn, prompting Father to
bark at them to cut it out and clean up the mess, the social worker identified
no other interchange of concern.      

            As
the court in David B. explained,
substantial risk of detriment “cannot mean merely that the parent in question
is less than ideal, did not benefit from reunification services as much as we
might have hoped for, or seems less capable than an available foster parent or
other family member.”  (>David B., supra, 123 Cal.App.3th at p. 789.) 
We simply cannot agree that A.S.’s stated desire to remain with her
foster mother, the family outing to the local cemetery where relatives were
buried (which was also a historical park), and a tired Father “barking” at his
rambunctious children to clean up (and also paying special attention to A.S.
when she reacted with tears) is evidence of detriment sufficient to overcome
the presumption in favor of custody with Father.  There was not substantial evidence from which
the juvenile court could conclude there was a “substantial risk of detriment”
to A.S.’s emotional well-being if she were returned to Father’s custody.

Reasonableness of Reunification
Services

            When
a child is removed from a parent’s home, the supervising agency is required to
formulate a plan for reunification of the child and parent and to provide to the
parent reasonable reunification services “that [a]re designed to aid the parent
or legal guardian in overcoming the problems that led to the initial removal
and the continued custody of the child.” 
(§ 366.21, subd. (e).)  The “
‘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 parents during the course of the service
plan, and made reasonable efforts to assist the parents in areas where
compliance proved difficult (such as helping to provide transportation and
offering more intensive rehabilitation services where others have
failed).’  [Citation.]”  (David
B., supra, 123 Cal.App.4th at p. 794.) 
Reunification services must be tailored to the unique needs of the
particular family.  (Id. at p. 793.)  The
Legislature required the development and implementation of family reunification
plans “ â€˜[t]o achieve the goal of preserving the family whenever possible
. . . .’ â€  (In re Elizabeth R.  (1995)
35 Cal.App.4th 1774, 1787.)

            “The
juvenile court shall not refer a case to a permanency planning hearing unless
it has been shown by clear and convincing
evidence that reasonable services have been provided.”  (In re
Mark L. (2001) 94 Cal.App.4th 573, 585, § 366.21, subd. (g).)  “The courts have defined clear and convincing
evidence as evidence which is so clear as to leave no substantial doubt and as
sufficiently strong to command the unhesitating assent of every reasonable
mind.  [Citations.]  It has been said that a preponderance calls
for probability, while clear and convincing proof demands a >high probability.”  (In re
Terry D. (1978) 83 Cal.App.3d 890, 899.)

            When
a parent has completed the reunification plan but the Department still contends
there is a substantial risk of detriment if the child is returned to the
parent, the issue arises of whether reasonable services were provided to the
parent.  As the court in >Dustin R. explained, we “have rules in
place to address the situation where the juvenile court finds it detrimental to
return the minors to the home despite the parents’ achieving the plan’s
objectives.  In the latter case, as long as
the situation does not fall into the narrow exception created by >In re Joseph B.[, supra, 42 Cal.App.4th 890href="#_ftn5" name="_ftnref5" title="">>[5]], the
reunification plan would probably not be reasonable and the parents could mount
a challenge on that basis.”  (>Dustin R., supra, 54 Cal.App.4th at p. 1143.) 


            The
following evidence was adduced at the hearing about the reasonableness of the
reunification services provided. 
Father’s reunification plan included completing a drug abuse program, a
domestic violence program, and an in-home parenting class.  He had already been referred to those
programs in the dependency action involving M.S. III.  Father was referred to individual therapy in
A.S.’s case.  Despite the social worker’s
assessment of A.S. as an emotionally fragile child with unspecified special
needs, the social worker testified she did not refer Father to more parenting
classes in A.S.’s case because “[i]t was going to be a repeat of what he
already completed [in M.S. III’s case].” 
The social worker agreed she “didn’t feel the need for [Father] to be
re-referred for any other aspect of parenting or in-home parenting.”  She also acknowledged the case plans in
A.S.’s and J.S.’s cases “are the same.” 
In short, the Department appears to have made no effort to provide
services to assist Father with the unique needs of A.S.

            A.S.’s
fragile emotional state was not a new condition coming to light only after the
Department’s February 2013 recommendation to continue services.  The Department acknowledges “[b]y the time of
her removal [A.S.] was already in a fragile state.”  Indeed, after the social worker’s initial
interviews of A.S. in January and February 2012, the social worker reported
“[t]he minor appeared very small and petite for her age and continually cried
throughout the interview . . . .”  “[T]he
minor appears to be sad and withdrawn and continually reports that she misses
her mother.  Staff at Valley of the Moon
[Children’s Home] related that it took the minor a few days to adjust to her
new environment and slowly began to socialize . . . .  The Undersigned will refer the minor to a
therapist soon.”

            Over
six months later, A.S. had not been referred to individual or family
therapy.  In August 2012, the social
worker reported A.S. “has been acting out as demanding, clingy and has been
making up stories.  Therefore, the Department
will be getting [A.S.] into therapy near her placement.”  A.S. began seeing a therapist in September
2012.href="#_ftn6" name="_ftnref6" title="">[6]

            The
Department was well aware of the substantial trauma suffered by A.S., and the
fact it was due to Mother’s actions or inactions, not Father’s.  Yet A.S. was not referred to therapy for nine
months after being removed from Mother’s custody, and no services were offered
to Father that specifically addressed dealing with A.S.’s trauma and
posttraumatic stress.  The social worker
did not consider referring Father to any parenting program regarding
emotionally fragile children, or, in fact, any parenting program.  She testified any new parenting program would
be a “repeat” of what Father had already completed in regard to M.S. III.  There was no evidence, however, that A.S. had
the same parenting needs as M.S. III—in fact, the court noted A.S. reacted
differently than Father’s other children. 
At the hearing, the social worker acknowledged she could have referred
father and A.S. to family therapy, but now it was too late.

            Furthermore,
the Department’s efforts to facilitate visitation, a component of the
reunification plan, were lacking. 
Notably, despite emphasizing the trauma caused to A.S. by her mother not
visiting on Christmas as she had promised, the Department refused Father’s
request to bring A.S. home to celebrate Christmas with her siblings.  Unlike the situation with Mother, there is no
evidence Father promised A.S. the visit would happen before it was
approved.  The Department did not deny
the visit based on any concerns about Father or A.S.’s safety—it denied the
visit because Christmas did not fall on Father’s regular visitation day, and
the foster mother had other plans.  Yet
the social worker also indicated Father needed to get to know A.S. better—that
requires enhanced visitation the Department did not facilitate or provide.

            The
social worker indicated Father’s suspended license and 22-day incarceration
prevented him from visiting A.S.  Father,
however, had been required to visit A.S. by driving from his home in Santa Rosa
to Novato, picking her up after school, and returning her to a shopping mall in
the same town for pickup by the foster mother. 
Father testified, contrary to the social worker’s testimony, that “he
was asked to do the driving because it was becoming a burden on the foster
mother,” not for his convenience.  The
social worker acknowledged she had told Father she and her supervisor “had
great concerns about what the foster mom might do if, in fact, reunification
services were order[ed] continued for the father.”  Moreover, upon “being informed” Father had a
suspended license on February 8, 2013, the Department’s response was that he
should tell them who could drive him and pick up A.S. for visitation.  The social worker testified she did not offer
Father bus passes until “early March,” after he informed her he could not find
anyone to drive him.

            Father
then attempted to correct the suspended license issue by self-surrendering at
traffic court on March 29, 2013.  The
juvenile court took judicial notice of the docket in that case, which indicated
Father pleaded no contest to violation of Vehicle Code section 14601.1,
subdivision (a), (driving while license suspended for a reason other than
driving under the influence or reckless driving) and of Vehicle Code section
4000, subdivision (a)(1) (unregistered vehicle) on January 23, 2013.  The court suspended imposition of sentence,
imposed conditional probation, and ordered him to serve 45 days in jail to be
stayed until March 13, 2013, or enrolled in a work release program.  Because he failed to timely contact the
program or report on the jail commitment, a warrant was issued for his
arrest.  On March 29, 2013, he
admitted his probation violation and was remanded into custody to serve 45 days
in jail.  Father actually served 22
days.  Father’s girlfriend contacted the
social worker to inform her he was in jail.

            Though
Father did not visit A.S. during that time period or participate in services,
the court was required to “tak[e] into account the particular barriers to an
incarcerated . . . parent’s or legal guardian’s access to those court-mandated
services and ability to maintain contact with his or her child.”  (§ 366.21, subd. (f), italics
added.)  Moreover, the fact Father was in
custody for a short time was because of his effort to address and resolve his
driving situation so he could maintain visitation with A.S.   

            The
Department acknowledged it knew A.S. was emotionally fragile from the start of
the proceedings, and knew she had suffered significant trauma while in Mother’s
care.  Nevertheless, A.S. was not
referred to therapy for almost nine months, and Father was not referred to >any parenting classes apart from the
ones he had already completed in regard to M.S. III, much less a program
designed to teach him how to parent a child with special emotional needs.  Neither were Father and A.S. referred to
family therapy, because the social worker testified that even she, a trained social
worker, did not realize until “too late” in the proceedings that A.S. had “a
lot of trauma.”  The Department made only
minimal efforts to assist Father in maintaining consistent visitation.  Again, there is simply no substantial
evidence supporting the trial court’s finding, required to be made by clear and
convincing evidence, that reasonable services had been provided to enable
Father to reunify with A.S. 

Disposition

            Let
a writ issue directing the superior court to vacate its order terminating
reunification services for Father and setting a section 366.26 permanency
planning hearing, and enter a new order providing him with six additional
months of appropriate reunification services. 
This decision is final immediately as to this court.  (Cal. Rules of Court, rules 8.452(i) &
8.490(b)(3).)

 

                                                                                    _________________________

                                                                                    Banke,
J.

 

We concur:

 

_________________________

Dondero, Acting P. J.

 

_________________________

Sepulveda, J.href="#_ftn7" name="_ftnref7" title="">*