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In re JUAN E. III et al., Persons Coming Under the Juvenile Court v. JUAN E.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


November 30, 2010

IN RE JUAN E. III ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
JUAN E., JR., DEFENDANT AND APPELLANT.

APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed. (Super. Ct. No. SJ12180A-B)

The opinion of the court was delivered by: O'rourke, J.

In re Juan E.

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Juan E., Jr., (Father)*fn1 appeals an order from the six-month review hearing granting him an additional six months of reunification services under Welfare and Institutions Code*fn2 section 366.21, subdivision (g)(1) and (2).

Father challenges the sufficiency of the evidence to support the court's findings that reasonable services had been provided to him. He further argues the court erred by applying a preponderance of the evidence standard of proof instead of requiring clear and convincing evidence when finding that Father received reasonable services. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Two-year-old Juan III (Juan) and three-month-old Ricardo (together, the minors) came to the attention of the San Diego County Health and Human Services Agency (Agency) after Ricardo was found to have sustained fractures to both of his legs. In June 2009, the Agency filed petitions on behalf of the minors under section 300, subdivisions (a) and (j) alleging that Ricardo had suffered the fractures to his legs nonaccidentally. The court held a detention hearing and both minors were detained in out-of-home care.

In a jurisdiction and disposition report, the Agency recommended offering reunification services to Father. Father stated he may have accidentally caused Ricardo's injuries when he fell on the infant. According to medical reports, however, the fracture was acute in nature and the injuries to the lower right leg appeared to have " 'a little more pull and twist' " feature to the fracture.

In July 2009, the Agency filed amended petitions on behalf of the minors under section 300, subdivisions (e) and (j). Dr. Premi Suresh, a child abuse expert, stated that the injuries were " 'most likely' " caused by physical abuse. The Agency noted that it was considering recommending the denial of reunification services under section 361.5, subdivision (b)(5).

The court held a jurisdiction hearing and sustained the allegations against Father. The court ordered that Father receive supervised visitation and services.

In November 2009, the court held a hearing to address Father's visitation schedule. Social worker Adriana Gutierrez reported she planned to modify Father's visitation scheduled to accommodate his new work schedule. The court continued the hearing in order to allow time to implement the new schedule and for the Agency to provide copies of Juan's reunification case plan. By December 2009, Father stated the visitation issues were resolved and that he would sign the new case plan. In addition to visits, the case plan included services such as learning how to address children with special needs, counseling sessions and parenting education.

Father later requested conjoint services with Juan and developmental classes with Ricardo. The Agency agreed that Father could participate in services with the minors as long as the caregiver also participated. In addition to these services, Father participated in individual therapy sessions with therapist David Najera. The therapist reported that Father was making moderate progress with the therapy goals.

In a six-month review report, the Agency recommended an additional six months of services for Father. Father consistently participated in his case plan but his progress was limited because he would not take responsibility for abusing Ricardo and continued to claim the fractures to Ricardo's legs had been caused by an accident.

Before the six-month review hearing took place, Najera terminated Father from therapy sessions despite the social worker's request to continue with the sessions. Najera did not return the social worker's phone calls. Father's last therapy session was on January 13, 2010.

Najera eventually provided the Agency with a treatment plan update and reported that Father made moderate progress and was being terminated from therapy. Father agreed to come back for more sessions if necessary.

The court held a contested six-month review hearing in April 2010. Father opposed a finding that he had been provided with reasonable services. He argued that there had been a lapse in his therapy sessions from January 13 through March 24, 2010.

The court received in evidence the following reports: a March 2010 status review report, a March 2010 addendum report, and an April 2010 addendum report. In addition, the court heard testimony from social worker Gutierrez.

Gutierrez testified as to the reason why Father's therapy sessions with Najera had lapsed during the reunification period. In January 2010, Gutierrez learned that the payment authorization for therapy sessions with Najera was due to expire. Najera also contacted Gutierrez in January regarding the expiration. Gutierrez informed Najera that she would submit a new payment authorization for additional therapy sessions, which she did on January 14, 2010. Gutierrez testified that the protocol for authorizing therapy services required Agency social workers to submit an authorization request to United Behavioral Health (UBH) and then UBH would send the authorization to the therapist.*fn3 UBH informed Gutierrez that the renewed authorization was processed on January 22. In March, UBH confirmed payment authorization had been sent to Najera on January 22. Gutierrez contacted Najera several times between January and April to inform him that therapy had been authorized. According to Father's reports, Najera claimed he did not receive authorization.

Gutierrez contacted UBH in March 2010 and she requested that another authorization be sent to Najera. The second authorization was sent in March. Najera confirmed receipt of the payment and resumed the therapy sessions with Father. At the review hearing, the court received stipulated testimony from a UBH manager stating therapy authorization was processed on January 22. UBH processed a second authorization on March 5.

Gutierrez did not agree with Najera's assessment that Father was making moderate progress in therapy. She expressed concern that Father continued to claim that Ricardo's injuries were the result of an accident. Gutierrez contacted Najera to discuss the scope of the therapy sessions held with Father.

At the conclusion of the hearing, the court held by a preponderance of the evidence that Father had been provided with reasonable services. The court continued the minors' placement in relative care and Father received an additional six months of services.

DISCUSSION

I. Reasonable Reunification Services

Father argues the court erred by finding at the six-month review hearing that reasonable reunification services were provided to him. He requests that this court reverse the trial court's determination and order an additional six months of services beyond those provided between the six-month review hearing and the 12-month review hearing.*fn4

A. Relevant Law

"Family reunification services play a 'crucial role' in dependency proceedings." (In re Alanna A. (2005) 135 Cal.App.4th 555, 563, citing In re Joshua M. (1998) 66 Cal.App.4th 458, 467.) The purpose of the reunification plan is "to overcome the problem that led to removal in the first place." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) Any reunification plan must take into account the special needs of a parent who is physically disabled, developmentally delayed or mentally ill. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792; In re Misako R. (1991) 2 Cal.App.4th 538, 545-546.) If reasonable services are not provided to the family, the court is required to continue the case for the period of time permitted by statute.

(§ 366.21, subds. (e), (g)(1).)

To support a finding of reasonable services, "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 . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) "The . . . reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

When a party challenges the finding that reasonable services were offered or provided, we determine whether there is substantial evidence to support the court's finding by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.) In applying the substantial evidence test to a finding of reasonable efforts, we keep in mind that clear and convincing evidence must support the finding. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) The party challenging the finding bears the burden to show the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B. Analysis

Substantial evidence supports the court's finding that reasonable services were offered to Father. Here, the court ordered supervised visits along with a number of services and the Agency made reasonable efforts to provide those services. In addition to visitation, Father was offered individual counseling, parenting classes and in-home support services. In sum, Father had about 10 months of services during which he participated in the aforementioned services. All of the services offered were consistent with Father's needs and, as the court noted, Father made some progress with his case plan provisions.

Father specifically claims that he suffered a lapse in therapy services from January 13, 2010, through March 24, 2010. He claims that this six-week lapse was significant enough to show the court lacked substantial evidence to supports its reasonable services finding. We disagree. This six-week gap in services is insufficient to establish that the remaining nine months of services and therapy sessions were unreasonable. When the Agency social worker learned that the therapy sessions had ceased, she made efforts to assist Father in reinstating the sessions. Gutierrez contacted UBH, the appropriate entity in charge of authorizing therapy services, once she learned that payment authorization for therapy sessions with Najera was set to expire.

Gutierrez contacted UBH in January 2010 and was told authorization had been submitted. After Najera claimed he did not receive authorization, Gutierrez contacted UBH a second time in early March and authorization was resubmitted. Gutierrez also made repeated attempts to contact Najera to confirm receipt of the payment authorization. The Agency made every effort to prevent the lapse in therapy sessions; once sessions ended, it made reasonable efforts to remedy the situation. Father successfully resumed therapy with Najera in March 2010. The court acknowledged the gap with therapy sessions but stated the social worker worked to address the lapse in a prompt fashion and that the therapy sessions had resumed. The court further noted that under the circumstances, the Agency acted reasonably and acted accordingly to facilitate the process. This is not a case in which the Agency hindered Father's attempts to participate in services. "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R., supra, 2 Cal.App.4th at p. 547.) Under these circumstances, the Agency made reasonable efforts to provide Father with services.

C. Standard of Proof

Father contends the court erred by applying an incorrect burden of proof when it found Father was provided with reasonable services by the Agency under a preponderance of the evidence standard. He asserts that under section 366.21, the correct burden of proof to be applied at the six-month review hearing is clear and convincing evidence.

Under the statutory scheme, review hearings in dependency proceedings are to be held every six months. At the review hearings, the court shall determine, among other things, whether the Agency has offered the parent reasonable reunification services.

(§§ 366.21, subds. (e), (f), (g), 366.22, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) Although section 366.21 does not explicitly state the burden of proof when services are continued at the six-month review hearing, this court previously determined that, "[a]t the six- and 12-month review hearings, the standard of proof for the reasonable services finding is expressly clear and convincing evidence." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594; § 366.21, subd. (g)(1) & (2 ).)*fn5

" 'Clear and convincing' evidence requires a finding of high probability . . . . It must be sufficiently strong to command the unhesitating assent of every reasonable mind." (In re David C. (1984) 152 Cal.App.3d 1189, 1208.

Here, the record shows the court made a finding that Father had been provided reasonable services by the Agency during the first six-month reunification under a preponderance of the evidence standard and thus, continued services for an additional six months. The issue remaining, therefore, is whether Father was prejudiced by the court's use of a lesser standard of proof. We conclude that, after reviewing the entire record, Father suffered no prejudice and no miscarriage of justice occurred. (In re Andrew S. (1994) 27 Cal.App.4th 541, 549-550.)

At the time of the six-month review hearing, Father had received more than six months of services. The record shows he participated in about 10 months of services, far more than the required six months. Out of those 10 months, Father participated in therapy for about eight and a half months. He missed about six weeks of therapy due to the lack of therapy payment authorization. Outside of the missing therapy sessions, Father received a number of other services, including parenting education classes. The court found Father made some progress with his case plan.

Gutierrez testified she did not agree with Najera's statements that Father had made moderate progress in therapy. She remained concerned that Father continued to assert Ricardo's injuries were the result of an accident. Based on Father's continued denial, Gutierrez did not believe Father had made progress in therapy. She requested that Najera redirect the scope of the therapy sessions he had with Father. At the time of the hearing, Najera continued to work with Father regarding acknowledging the abuse of Ricardo.

In addition to needing to make progress in therapy, Father also needed to make progress with his other services, including with his child abuse class. It appeared his progress was minimal in regards to his class because he would "just [say] what he needed to say, what the Agency was wanting him to say."

Based on the record in this case and the absence of significant progress made by Father, there is nothing to show that the outcome of these proceedings would have been any different had the trial court at the six-month review hearing used the higher standard of proof in determining whether Father had received reasonable services. Our review of the entire record, and our discussion ante, leads us to conclude that the trial court properly found Father received reasonable services, including therapy and a multitude of classes tailored to address the problems leading to the minors' dependency. Missing the five or six weeks of therapy sessions during a 10-month period would not have led to a different result, regardless of the standard of proof used. There was no miscarriage of justice. (See In re Albert B. (1989) 215 Cal.App.3d 361, 379-381.)*fn6

DISPOSITION

The order is affirmed.

WE CONCUR: BENKE, Acting P. J. HALLER, J.


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