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In Re D.M., A Person Coming Under the Juvenile Court Law. v. P.M. et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


October 12, 2011

IN RE D.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND APPELLANT,
v.
P.M. ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. JV090327)

The opinion of the court was delivered by: Hoch , J.

In re D.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Yolo County Department of Employment and Social Services (the Department) appeals from the juvenile court's orders entered at the six-month review hearing ordering further reunification services. (Welf. & Inst. Code, §§ 366.21, subd. (e), 395 [undesignated statutory references are to the Welfare and Institutions Code].) The Department contends the juvenile court erred in finding that it had not provided reasonable services to the parents. We affirm.

BACKGROUND

On June 24, 2009, the Department was contacted by the police department after officers found the minor, D.M., age 12, lying in a crosswalk. She claimed to have been sexually assaulted by her "stepfather," brother, and three of her brother's friends. She further claimed to have a twin sister named Vanessa. The minor's father, however, is not her "stepfather" and the minor does not have a sister.

The minor was hospitalized pursuant to section 5150 due to unstable mental health. She was diagnosed with psychosis not otherwise specified and post traumatic stress disorder. The minor claimed her family was "fake" and referred to her father as a "robber." The sexual abuse evaluation was "abnormal" and evaluators concluded sexual abuse was highly likely.

The minor's parents speak little English so social worker Traci Brewer used an AT&T Laotian interpreter to speak to the mother. Mother stated she did not understand what was going on. Brewer tried to explain the nature of the investigation and court process. Social worker Barbara Fisher spoke with the minor's brother, who does speak English. He did not know what all the allegations were but stated he did not allow other males around his sister and no other males were ever in the home.

The Department filed a section 300 petition on June 26, 2009, alleging sexual misconduct had been perpetrated on the minor by the father, brother, and three of the brother's friends. The petition further alleged that the mother had failed to protect the minor from this abuse. The Department recommended counseling and parenting services for the mother. Visitation was not recommended pending further investigation and the Department noted that a Laotian interpreter would be required to be present during any visits to ensure the safety of the minor.

The detention hearing was held on June 29, 2009. Court certified Laotian interpreter John Johnston translated for the parents. The juvenile court ordered the minor detained and denied visitation until such time as the psychological evaluations had been completed, the minor had been engaged in therapy, and her therapists had no concerns about visitation.

On August 5, 2009, the parties stipulated to amend the section 300 petition to strike the allegations of sexual abuse and failure to protect, and add the following serious emotional damage allegation, pursuant to section 300, subdivision (c): "On June 25, 2009, twelve year old [D.M.] was taken into protective custody by the West Sacramento Police Department due to allegations that she was sexually molested. The minor was found lying in the middle of the street and while [being] transported to the emergency room, she reported that her father had raped her. The minor was hospitalized on a 5150 on or about June 29, 2009, due to her unstable mental health. The minor was at St. Helena Hospital for 30 days and released. Her diagnosis is Axis 1: Psychosis NOS and Post Traumatic Stress Disorder. Hospital staff believe that the minor's complete mental health break down may be triggered by a traumatic event. The minor was 5150'd again on August 1, 2009. At the time that law enforcement responded to assess her, she began accusing law enforcement of attempting to rape her while officers were subduing her. The minor is currently hospitalized at Sutter Center for Psychiatry for her unstable mental health. The minor continues to respond to internal stimuli and remains unstable." The juvenile court sustained the serious emotional damage allegation.

At the August 18, 2009, disposition hearing, the juvenile court declared the minor a dependent child of the court and ordered family reunification services for the minor and parents. The Department noted that the parents "appeared confused about the issues and behaviors of their daughter." The parents' services were to consist of counseling to assist with understanding the minor's mental health needs. The Department was charged with providing referrals to the necessary community resources and "perform[ing] all case managing activities to assist the parent[s] in successfully completing" the reunification plan. Visitation remained deferred for father and was to be arranged for mother. Supervised visits with mother occurred with the assistance of a Laotian interpreter.

Social worker Carrie Fleig was then assigned to the case. Fleig first met with the parents and a Laotian interpreter on September 23, 2009. The previous social worker had apparently attempted to refer the parents to Laotian-based services in Sacramento but such services were unavailable. Fleig provided the parents with the contact information in English for two counseling centers in Yolo County, although neither provided Laotian-specific services.

The mother tried to contact the providers "many times" but the agencies did not return her calls. Flieg typically waited to hear from counselors who had been contacted by parents and, to her knowledge, the parents had not made any contact with the agencies. Fleig met with the parents monthly.*fn1 She reiterated to the parents that the Department was recommending counseling services and discussed the counseling services with the minor's brother. She did not know whether the parents had called to make a counseling appointment and did not ask them why an appointment for counseling had not been made.

On February 8, 2010, the Department requested a continuance of the six-month review hearing and informed the court it had retained a Laotian interpreter to assist the parents with services. Although mother indicated to Flieg that she did not need services, the interpreter explained that mother did not understand mental health issues due to her culture. Mother agreed to participate in services and the parents sought assistance from Maichew Chao, a worker at a Loatian crime victim center, who agreed to provide referrals and interpretation for the family to engage in counseling. Visits between mother and the minor had been reduced to biweekly because the minor was objecting to visits.

In March 2010, the juvenile court facilitated a conference with the assistance of a court approved interpreter. During the conference, they discussed ways to provide the parents with information, education, and counseling regarding the case. The Department was then in contact with a Laotian doctor who understood Laotian culture and would provide the family with mental illness education. Fleig gave the parents the doctor's name and number but told the parents to wait to be contacted because no one in the office other than the doctor spoke Laotian. The parents were never contacted.

At the time of the April 14, 2010, six-month review hearing, the parents had still not commenced any counseling services, nor were any services scheduled. Mother had not been able to visit the minor for six weeks because the Department did not have an interpreter available. At this point, the court interpreter volunteered to assist with interpretation, visitation and, if necessary, consultation with the doctor's office. The juvenile court expressed concern and frustration about the delays in complying with the orders and plan set in March. The six-month review hearing was continued to May 5, 2010.

After the April 14, 2010, hearing, Fleig referred the parents to Yolo County Mental Health and Yolo Family Services Agency. The parents opted to contact Yolo County Mental Health and did what they could over the phone, and were told they would be contacted for an appointment.*fn2 As of the May 5, 2010, hearing, they had not heard back from Yolo County Mental Health. The hearing was continued to June 22, 2010, with the court emphasizing that it wanted the case to be made a priority and counseling to begin within three weeks.

Thereafter, Flieg followed up and discovered that Yolo County Mental Health no longer provided services to adults, although it did not so inform the parents or the Department. She contacted Yolo Family Services Agency on May 27, 2010, during a visit when the interpreter was present and set up an intake and appointment for June 21, 2010, for mother. The interpreter agreed to assist father with his intake and screening. His appointment was scheduled for June 23, 2010.

At the June 22, 2010, review hearing, the juvenile court found the Department did not meet its burden to show it had provided the parents with reasonable services. Counseling had only just begun, a year after the minor had been removed. The court acknowledged the case was difficult and complicated. The case was complicated for several reasons, including a language barrier, the minor's initial accusations concerning the father and her brother, and the minor's mental health needs. There was also an assumption by the Department that the parents understood the situation and knew how to contact interpreters and access services. While the court recognized that the parents had not been assertive enough in informing the Department they needed help accessing services, the court also found that the Department needed to do more. The court found reasonable services designed to aid the parents to overcome the problems which led to the initial removal had not been provided.*fn3 The case was continued to August 4, 2010, for a progress report and to December 15, 2010, for a 12-month review hearing.

DISCUSSION

The adequacy of reunification plans and the reasonableness of the efforts of the Department are decided according to the circumstances of each case. (In re Edward C. (1981) 126 Cal.App.3d 193, 205.) The Department must make "[a] good faith effort" to provide reasonable services responding to the unique needs of each family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) "[T]he 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)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted.)

The Department must establish by clear and convincing evidence that such services have been offered to the parents. Under this burden of proof, "evidence must be so clear as to leave no substantial doubt. 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.) We review the juvenile court's determination of the reasonableness of the services provided for substantial evidence, viewing the evidence in a light most favorable to the respondent and indulging in all legitimate and reasonable inferences to uphold the juvenile court's finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) In this case, the evidence supports the juvenile court's finding that the Department did not make adequate efforts to provide reunification services to the parents.

The language barrier made communication in this case difficult. As the juvenile court noted, while the parents should have told the social worker they had attempted to contact the agencies and were not getting responses, the social worker should have followed-up with the parents to get the counseling services scheduled. The social worker knew of the language barrier, knew the initial list of providers was provided in English, and knew those agencies did not have Laotian services. There was no follow-up with mother or the agencies about the status of counseling services, resulting in no services being provided to the parents. After the court facilitated a conference in March 2010, the parents were provided with the name of a Laotian doctor but told to wait to be contacted. A month later, the parents had not been contacted and there is no evidence of any follow-up with that doctor's office in the interim. The juvenile court could find the Department's efforts to be unreasonable under the circumstances of this case.

The Department was charged with providing referrals to the necessary community resources and "perform[ing] all case managing activities to assist the parent[s] in successfully completing" the reunification plan. After the April 14, 2010, hearing, the parents were referred to Yolo County Mental Health and Yolo Family Services Agency. But only one of those referrals was effective (and, unfortunately, not the one the parents contacted, resulting in further delays). After finding out that Yolo County Mental Health no longer treated adults, the social worker was able to get the parents counseling services at Yolo Family Services Agency. The Department emphasizes the difficulties it had in addressing the language and cultural barriers, yet it does not, and cannot, allege that the necessary services were not available.

As alleged by the Department, "The minor has serious and challenging mental health issues that require specialized care and treatment. The parents lack awareness and ability to care for the minor's multiple diagnoses and high needs." The Department recommended counseling to address these issues, yet did not provide effective assistance in providing such services until immediately prior to the June 22, 2010, review hearing. The evidence supports the juvenile court's finding that the Department had not provided reasonable services to the parents.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: RAYE , P. J. HULL , J.


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