IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 14, 2012
IN RE J. H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
P. H. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. Nos. JD229180, JD229181)
The opinion of the court was delivered by: Robie , Acting P. J.
In re J.H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother (L. A.) and father (P. H.) appeal from findings and orders made by the juvenile court at the 12-month review stage. (Welf. & Inst. Code,*fn1 § 366.21, subd. (f).) Mother appeals from the court's finding that she had received reasonable reunification services, and also argues that the court erred by allowing the minors to remain placed with the paternal grandparents. Father appeals from the court's no-contact order as to the minors. We affirm as to mother's appeal and dismiss father's appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2009, Sacramento County Department of Health and Human Services (the department) filed section 300 petitions as to K. H., a 13-year-old girl, and J. H., an 11-year-old boy, alleging that father had repeatedly sexually assaulted K. H. The accompanying protective custody warrant stated that father was arrested on January 20, 2009, and the minors were in the care of the paternal grandmother.
According to the detention report, the minors already missed father. K. H. had forgiven him, saying: "He is a good father. He must have gone crazy."
At the initial hearing, the juvenile court (Referee Peter Helfer) ordered that father have no contact with the minors.
The jurisdiction/disposition report recommended placing the minors with the paternal grandparents, denying services to father under section 361.5, subdivision (b)(6) (severe sexual abuse of K. H.), and offering them to mother.
The report stated that mother and father divorced in 2000, then equally shared custody of the minors. Mother later married B. A. (the stepfather), with whom she had two children. Mother and the stepfather intended to request placement of the minors with them.
When father was arrested, mother had been in a coma for six weeks. She was in and out of the hospital for two or three months due to liver failure. Father claimed she had been an alcoholic since 1996; K. H. had lived with him since she was 11 and visited mother only on alternate weekends; and J. H. had lived full-time with him since mother was hospitalized.
The stepfather acknowledged that mother was diagnosed with alcohol-induced hepatitis; however, he and mother denied that she was an alcoholic, and she was highly resistant to participating in treatment for alcohol abuse. Since November 2008 she had been deaf and did not know sign language. She appeared older than her age and in ill health, but believed her condition would improve.
An alcohol and other drug assessment (assessment) determined that mother was a substance abuser, primarily of alcohol. She was referred to Specialized Treatment and Recovery Services, but would not or could not participate due to her deafness and her denial of alcoholism. She was referred to one-on-one in-home substance abuse counseling, but would be expected to participate in standard programs once her hearing improved.
Father intended to plead no contest to the criminal charges against him.
The paternal grandmother said she had taken care of the minors on and off since they were born. She had long known of mother's drinking problem. The minors had told her they did not like going to mother's house because she was always sick and throwing up; K. H. had begged mother to quit drinking. The stepfather was the minors' primary caregiver when they were at mother's house.
The minors said the allegations against father were true. J. H. felt sad about him and really missed him; K. H. felt "bad, sad and angry" with him, and also felt sad for J. H. because she knew he missed father.
The minors wanted to stay with the paternal grandparents. They did not want to live with mother again because they did not feel safe in her home: she was always "sick" and they were treated badly there. The minors had to care for their half siblings because mother could not do so. According to K. H., mother and the stepfather were verbally abusive.
K. H. was briefly hospitalized with psychosomatic seizures and memory loss, probably due to a stress reaction. She was scheduled to see a counselor and a psychologist.
K. H. said mother was "negative" during their visits. K. H. wanted mother's visits to be limited to one every three weeks, to take place somewhere other than mother's house, and to exclude the stepfather. She wanted supervised visits with father.
At the jurisdiction/disposition hearing in April 2009, the juvenile court sustained the allegations of the section 300 petition, offered services to mother, and denied them to father. The minors' case plans included individual counseling, with family counseling to follow "with approval of therapist."
The six-month review report recommended continued services for mother and conjoint counseling for mother and the minors.*fn2
The minors were happy in the paternal grandparents' home and wanted to stay there permanently; the grandparents were willing to adopt them or to become their legal guardians. The minors did not want to live with mother, or with the stepfather, whom they disliked and felt unsafe with.
The minors enjoyed their individual counseling, but the social worker did not know how it was going because Kaiser had a policy "to not share any information that is used for any Court purposes."
According to the paternal grandparents, the minors were doing very well at home and at school, but K. H. had begun to have stress-related seizures again.
Mother had engaged in drug and alcohol testing, AA attendance, and individual counseling. Her counselor would provide parenting education because her hearing impairment precluded a standard program.
Visitation had not gone well. When mother's visits were unsupervised, she talked inappropriately about recovering custody, cried, and made the minors feel uncomfortable and unsafe. She asked J. H. why he did not like the stepfather and "remind[ed]" J. H. that the stepfather loved him. At one visit, she coerced K. H. into writing a letter to the juvenile court praising the stepfather. The paternal grandmother told the social worker the minors did not want further unsupervised visits, and the minors refused to go to the next scheduled visit. Accordingly, future visits were to be supervised.
The social worker saw a "dire need" for conjoint counseling to resolve the minors' "issues" with mother.
At the six-month review hearing, father requested letter contact with the minors. The juvenile court granted the request on the condition that the department screen father's letters and that the minors' therapists be consulted in advance of any contact.
Mother asked that the stepfather be included in family counseling. The court ordered conjoint counseling, but with the stepfather's involvement "only when deemed appropriate by the Department in consultation with the therapist."*fn3
The 12-month review report recommended returning the minors to mother, who had completed her services other than conjoint counseling, and proposed six more months of services "to monitor conjoint counseling, if deemed appropriate." The social worker acknowledged: (1) the minors were happy in the care of the paternal grandparents, who were meeting the minors' needs; (2) the minors were thriving at home and school; (3) they wanted to stay with the paternal grandparents, who wanted them to stay; (4) they had threatened to run away if forced to reunify with mother and the stepfather; (5) they did not want conjoint counseling with mother or the stepfather; and (6) they refused even visitation with the stepfather. But the social worker agreed with mother that the paternal grandmother was interfering with reunification and trying to sway the minors' feelings in favor of father (with whom they maintained letter contact).
Mother said her supervised visitation with the minors went well, though it was hard to keep from crying during the visits. The minors also thought the visits went well, but found it hard to stay when mother cried too much.
The minors were still in individual counseling with therapists at Kaiser. After learning from Kaiser medical secretaries that the minors were old enough to sign releases of information about their counseling, the social worker had obtained their releases. But when the social worker provided the releases to Kaiser and requested medical and psychiatric reports, Kaiser did not respond. J. H.'s therapist said she could not make recommendations for future counseling and could offer no opinion about conjoint counseling with mother. The social worker had not yet reached K. H.'s therapist.
On April 9, 2010, the juvenile court (Judge Elena Duarte) held a hearing on the 12-month review report. Because the minors and father opposed returning the minors to mother, the court set a contested hearing.
The minors' pretrial brief argued: (1) mother's services should be terminated and a section 366.26 hearing set, but (2) if mother argued she had not received reasonable services, the minors would agree, because the department had done nothing to assuage their fears about visitation. The brief made new allegations against mother and the stepfather and asserted that mother's case plan failed to address the minors' specific needs. The brief also asserted that the department had failed to arrange conjoint counseling or "therapeutic visitation."
In an addendum report filed May 7, 2010, the social worker reported that mother and the stepfather had called the minors' new allegations false. According to mother, the minors simply did not like being disciplined by the stepfather.
At a pretrial hearing on May 7, 2010, county counsel stated that the department now thought returning the minors to mother would be premature; instead, it recommended continued services, including conjoint counseling and increased visitation. Mother's counsel and the minors' counsel asserted that mother had not received reasonable services.*fn4
An addendum report filed May 10, 2010, stated:
On October 30, 2009, the social worker told the minors they would have to participate in conjoint counseling with mother as part of their case plans, but they refused.
On November 10, 2009, the paternal grandmother said only K. H. was still in counseling. The social worker told the minors she would arrange for them to visit mother once a week, since they had not had visits for a couple of months; the minors said they wanted no more than one or two visits a month. The social worker reminded the minors she was still looking into conjoint counseling, but it might take some time because the minors were with Kaiser.
On December 21, 2009, the social worker told the minors she was having a hard time reaching their therapists to get confirmation that they were ready for conjoint counseling (which they still refused to attend).
On January 27, 2010, the social worker asked the paternal grandmother to provide Kaiser with a release of information so that the social worker could talk to the therapists.
On the same date, the social worker left a message for K. H.'s therapist. J. H.'s therapist said she could give the department no information without a release, refused to provide a fax number, and would not confirm or deny whether J. H. was being seen there.
On February 8, 2010, the minors gave the social worker their signed releases; the social worker faxed them to Kaiser the next day with requests for medical and mental health records.
On February 23, 2010, mother provided the social worker with a release of information from her counselor.
On March 16, 2010, mother told the social worker she would use her own private insurance to get conjoint counseling. The social worker encouraged her to do so.
On March 18, 2010, the social worker again contacted J. H.'s therapist, who denied receiving any release for him. The therapist also said the only information she could give, even with a release, was whether J. H. was being seen at Kaiser.
On the same date, the social worker faxed a release to K. H.'s therapist.
On April 15, 2010, the social worker received staff notes from the minors' counseling sessions, which were attached to the addendum report.
At a pretrial hearing on May 11, 2010, the minors stated that they refused to return to mother's custody and did not feel safe alone with her in an unsupervised visit. Father's letter contact with the minors was discussed but not ruled on.
An addendum report filed June 7, 2010, stated:
On May 20, 2010, a therapist said that because the minors were on Kaiser Medi-Cal, they could be seen only through Kaiser unless they switched to straight Medi-Cal. Mother said that at least six providers covered by her private insurance indicated they would not furnish reports to the department. The social worker then consulted the department's sliding scale counseling agencies list. One agency said it would charge at least $50 per session for a family (for which mother would probably not be reimbursed by her insurer) and did not take Kaiser members. Mother said she could not afford that fee and would keep checking with her insurer.
On June 1, 2010, the social worker called therapists to inquire about conjoint counseling. She also learned that mother could be seen at Kaiser with the minors under their mental health coverage if she obtained a temporary Kaiser member number. But mother preferred to keep searching through her private carrier because Kaiser was "too difficult to deal with." The social worker said if Kaiser came through before mother found other coverage, the family would be seen through Kaiser.
On June 2, 2010, an agency told the social worker that it might be able to see the family and would charge a sliding scale fee of $35 per session.*fn5
At a hearing on June 7, 2010, mother's counsel complained that the minors had missed more visits. The minors' counsel said they had refused to go; K. H. was still having anxiety attacks which sometimes sent her to the emergency room, and both minors were also missing school.*fn6
On June 30, July 1, and July 29, 2010, the juvenile court held the contested 12-month review hearing. The court made the following findings and orders:
Because father's letter contact with the minors had taken place in disregard of the conditions imposed by Referee Helfer, and because the nature of father's offenses made any contact potentially detrimental, the court set aside Referee Helfer's order and substituted a no-contact order.
Conjoint counseling was not originally part of the reunification plan, but was ordered only after visitation problems developed.
Referee Helfer's conjoint counseling order did not require the prior approval of the minors' therapists. Nevertheless, on the mistaken but good faith belief that it did, the social worker took great pains to get their approval.*fn7 After being frustrated in her outreach to Kaiser, the social worker took other steps to initiate conjoint counseling (which also appeared to have failed so far).
Despite the social worker's misunderstanding and the failure of conjoint counseling to take place as of yet, the department had provided reasonable services.
On August 2, 2010, father filed a notice of appeal from the juvenile court's order suspending letter contact with the minors.
On August 5, 2010, the department filed an 18-month permanency review report which recommended continued services for mother with the goal of reunification, and the maintenance of the minors in their current placement. The report stated that conjoint counseling had only just begun (with no results to report yet), and visitation had been suspended by interim order "due to detriment to the children's well being" because the minors still refused to visit, claiming they felt unsafe around mother. In the social worker's view, it would not be in the minors' best interest to be placed with mother at that time. However, the social worker thought the risk of doing so would be low, placement with mother would be "the least intrusive placement" for the minors, and reunification with mother was still the goal of the proceeding. The social worker noted with apparent sympathy that mother wanted the minors moved to a "neutral placement" rather than left with the paternal grandparents, whom mother believed to be sabotaging reunification.
On August 16, 2010, mother filed a notice of appeal from "[the] [o]rder made on 7-29-10, where the court finds that reasonable services were provided by the Department despite its continuing failure to locate and implement conjoint counseling."
On August 20, 2010, the juvenile court extended mother's reunification services, including conjoint counseling, and set a contested permanency review hearing for September 14, 2010. The court indicated that the department's recommendation of permanent placement with the goal of reunification was "not legally viable," given the mutual desire of the minors and the grandparents for adoption.
Father's Appeal Is Moot
Based on subsequent orders in the proceeding, as to which we have granted the department's request for judicial notice, the department contends that father's appeal from the no-contact order is moot. We agree.
The department's request for judicial notice, filed with its brief, showed that on November 22, 2010, the juvenile court set a section 366.26 hearing as to both minors, and on April 14, 2011, the court terminated mother's and father's parental rights and set a permanent plan of adoption for the minors.
Father's reply brief, filed after we granted judicial notice of the subsequent orders, fails to explain why the termination of his parental rights does not moot his appeal from the no-contact order. We conclude that it does. Even if the order was erroneous, there is no effectual relief we could now grant father, and his appeal raises no important issue of continuing public interest. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) Father's appeal is dismissed as moot.
Mother Received Reasonable Services
Mother contends the juvenile court erred by finding she had received reasonable services between the six-month and 12-month review hearings. According to mother, the department failed to make reasonable or good faith efforts to implement the order for conjoint counseling.
The department replies that we should dismiss mother's appeal because it is not taken from an appealable order. The department also contends that mother received reasonable services.
We conclude that the finding is appealable, but mother's arguments lack merit.
The department contends: A juvenile court finding unattached to an order is not appealable and may be challenged only by a writ petition; furthermore, mother is not aggrieved by the finding here because the juvenile court extended her services. We disagree.
The department relies on Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147. The department's reliance is misplaced.
In Melinda K., the mother purported to appeal from a juvenile court order extending her reunification services, but challenged only the concurrent finding that she had received reasonable services. (Melinda K. v. Superior Court, supra, 116 Cal.App.4th at p. 1152.) The appellate court held: (1) An appeal from the "isolated finding" that reasonable services had been provided did not come within section 395, the statute authorizing appeals from post-disposition orders. (Id. at p. 1153.) (2) Because the court extended her services and no negative consequences flowed from the finding, the mother was not aggrieved by the finding. (Id. at pp. 1153-1154.)*fn8
However, a more recent decision, In re T.G. (2010) 188 Cal.App.4th 687, held that a father could appeal from a finding of reasonable services at the six-month review stage because it was adverse to his interest in reunification. (Id. at p. 696.) In so holding, the court rejected both of the arguments on which Melinda K. had based its contrary holding. (In re T.G., supra, 188 Cal.App.4th at pp. 694-696.) For the reasons given below, we think the reasoning in In re T.G. is a better fit for the circumstances in this particular case.
In In re T.G., as in Melinda K., the challenged finding was made in conjunction with an order extending services; however, unlike in Melinda K., the juvenile court also found that the father's progress was inadequate and did not find a substantial probability that the minors would be returned to his custody. (In re T.G., supra, 188 Cal.App.4th at pp. 691, 693.) The court in In re T.G. distinguished Melinda K. on that basis. (In re T.G., supra, 188 Cal.App.4th at pp. 693-694.) But the court also disagreed with Melinda K.'s analysis.
Questioning Melinda K.'s conclusion that a finding alone could not be appealable, In re T.G. cited a recent Supreme Court decision holding that a finding of adoptability made as part of an order under section 366.26, subdivision (c)(3) is appealable. (In re T.G., supra, 188 Cal.App.4th at pp. 694-695, citing In re S.B. (2009) 46 Cal.4th 529, 534-537.) The court further reasoned (contrary to Melinda K.) that an erroneous finding of reasonable services at the six-month review hearing may aggrieve a parent even if services are extended: it may put the parent at a "significant procedural disadvantage" at the 12-month stage by making it far more difficult to satisfy the heightened showings required for reunification or further services. (In re T.G., at pp. 695-696.)
In the present case, unlike Melinda K. and In re T.G., the juvenile court did not make its finding of reasonable services as part of an order extending services: it made the finding on July 29, 2010, and the order on August 20, 2010 (after mother had filed notice of appeal from the finding).
Nonetheless, the underlying question -- whether mother's services should be extended -- was still pending when the court made its finding of reasonable services. Conjoint counseling was the only service mother had not completed, and all parties agreed that reunification could not occur without it. Thus, whatever the court ruled as to reasonable services, conjoint counseling would still need to occur if mother's services were extended. It would therefore be hypertechnical to treat the finding of reasonable services as if it were isolated rather than inextricably connected to the court's order extending services. (See In re T.G., supra, 188 Cal.App.4th at pp. 693-694; Melinda K. v. Superior Court, supra, 116 Cal.App.4th at pp. 1154-1156.)
Furthermore, because this finding was made at the 12-month stage, rather than the six-month stage as in Melinda K. and In re T.G., the possibility of prejudice to mother from an erroneous finding is greater, if anything, than in those cases.
Based on the reasoning of In re T.G., we conclude that the finding the mother had received reasonable services is appealable.
Relying mainly on In re Alvin R. (2003) 108 Cal.App.4th 962, mother contends the department failed to provide reasonable services because as of July 29, 2010, it had neither brought about conjoint counseling nor made reasonable and good faith efforts to do so. We disagree.
As mother acknowledges, we review the juvenile court's finding under the substantial evidence standard, construing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Alvin R., supra, 108 Cal.App.4th at p. 971; accord, Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)
"Reunification services need not be perfect. [Citation.] But they should be tailored to the specific needs of the particular family. [Citation.] Services will be found reasonable if the Department has '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 . . . .' [Citation.]" (In re Alvin R., supra, 108 Cal.App.4th at pp. 972-973.) "[T]he mere fact that more services could have been provided does not render the Department's efforts unreasonable. [Citation.]" (Id. at p. 973.)
Although conjoint counseling had not yet occurred when the juvenile court made its finding, substantial evidence shows that the department made reasonable and good faith efforts to initiate such counseling.
As the court observed, conjoint counseling was not recommended or ordered at the outset, but came into the picture at the six-month stage because of the breakdown in visitation. The minors' existing case plans called for individual counseling, with family counseling to follow "with approval of therapist." The order for conjoint counseling made at the six-month review hearing did not similarly specify that the minors' therapists' approval was needed, but it also did not plainly say otherwise.*fn9 Understandably, the social worker assigned to the case after the six-month stage believed that she needed to obtain the therapists' approval and made heroic efforts to get it. Frustrated by Kaiser's lack of cooperation, she investigated other avenues, including the department's own list of sliding scale counseling agencies and mother's private insurance, and consistently kept mother informed of what was being done or could be done. Thus, the social worker exercised proper diligence.
Moreover, even after mother learned that she could be seen in conjoint counseling at Kaiser on the minors' mental health coverage, mother resisted the idea because she did not want to go through Kaiser. Thus, the failure of conjoint counseling to occur before the 12-month review hearing was due in part to mother.
In In re Alvin R., supra, 108 Cal.App.4th at page 962, the only case cited by the parties in which the failure to bring about conjoint counseling constituted a failure to provide reasonable services, does not help mother. There, the department knew that the minor needed to go through a course of individual counseling before he and the father could participate in conjoint counseling, but the social worker did practically nothing either to get the minor into individual counseling or to explain what efforts had been made to do so. (Id. at pp. 972-973.) Because the social worker in our case worked hard to initiate conjoint counseling and thoroughly explained what she had done, In re Alvin R. is distinguishable.
Mother has failed to show that the court's finding was erroneous.
Mother's Attack On The Placement Of The Minors With The Paternal Grandparents Is Not Properly Before Us On This Appeal
Mother contends that the department did not show a good faith effort to assist her in reunification because it allowed the minors to remain in a placement with relatives who were actively opposed to reunification. The department replies that this contention is not properly before us and lacks merit in any event. We agree with the department's first contention, and therefore do not reach the merits of mother's argument.
Although mother asserted at the 12-month review hearing that the grandparents were interfering with reunification, she did not base her argument that she had not received reasonable services on this contention to any extent. She did not file a section 388 petition seeking a change of placement before the 12-month review hearing. Her notice of appeal did not mention the minors' placement. And her opening brief neither specifies any allegedly erroneous ruling by the juvenile court on this issue nor cites any authority suggesting that an allegedly mistaken placement can constitute a failure to provide reasonable services. We agree with the department that mother is improperly "attempting to bootstrap a placement issue into a reasonable services argument." Because mother does not designate any particular ruling by the juvenile court on placement as erroneous, she cannot show grounds for reversal on this issue.
We also note, as the department points out, that after the hearing at which the juvenile court found mother had received reasonable services, mother filed a section 388 petition seeking the removal of the minors from the grandparents' care and their placement in a "neutral location." The court denied this petition on August 20, 2010. The record does not show an appeal from the order denying the petition, which is now final.
Because mother's contention is not properly before us, we do not reach its merits.
The finding that mother had received reasonable services is affirmed. Father's appeal from the no-contact order is dismissed.
We concur: BUTZ , J. MAURO , J.