Opinion
A146814
03-28-2017
In re ADAM M., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. GEORGE M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 0J14022940)
Shortly after Adam M. was diagnosed with acute lymphoblastic leukemia, he was removed from the care of his father, George M. (Father), pursuant to Welfare and Institutions Code section 300, subdivision (b). Following a combined six- and 12-month review hearing, the juvenile court terminated Father's reunification services and ordered a permanent plan of long-term foster care. Father appeals, arguing the juvenile court erred in finding he was offered or provided reasonable services and in declining to extend services. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Adam is the 12-year-old son of R.C. (Mother) and Father. In November 2012, when Adam was seven years old, a dependency case was initiated on his behalf in Contra Costa County. It was alleged that Father failed to protect Adam from Mother's neglect. In April 2013, the petition was sustained, pursuant to section 300, subdivision (b), and the Contra Costa County juvenile court awarded Father sole legal and physical custody of Adam.
Second Dependency Petition and Detention
Adam came to the attention of the Alameda County Social Services Agency (Agency) after a referral regarding Father's substance abuse and homelessness. Specifically, the reporting party stated Father recently had been released from jail for possession of drugs, was actively using, behaving erratically, and had no stable housing. Initially, when interviewed by a social worker, Father denied being dependent on alcohol or any other drug. When confronted with a February 2014 arrest for possession of methamphetamines, public intoxication, and driving with a suspended license, Father admitted a relapse, but reiterated that he was not currently using. Father agreed to receive services to address his alcohol and drug use, and the Agency planned to refer the case for family maintenance services. But, when the Agency learned of Adam's leukemia diagnosis, it took Adam into protective custody on May 19, 2014.
In connection with his February 2014 arrest, Father was ultimately convicted of disorderly conduct (Pen. Code, § 647). Father also had been arrested on numerous occasions for possession of a controlled substance (Health & Saf. Code, § 11377) and had a 2006 conviction for child abduction and child endangerment.
Adam was scheduled to begin chemotherapy and have a surgical procedure later in May 2014. Treatment would last approximately three years. During that time, Adam would need weekly blood tests and weekly visits to an oncology clinic. The hospital staff was concerned Father would be unable to follow the necessary treatment procedures. Adam's immune system was "compromised," and he could not be around school-aged children or sick individuals. To complicate matters further, Adam also suffered from "selective mutism" and would only speak to Father. Adam refused to speak with the social worker, but showed no physical signs of abuse. Father told the social worker he was "completely committed" to his son's care. Yet, Father had fallen asleep during a class regarding Adam's medical care and had been seen with an open container of alcohol in Adam's hospital room.
On May 21, 2014, the Agency filed a juvenile dependency petition on Adam's behalf, pursuant to section 300, subdivision (b). The petition alleged Adam (then nine years old) had been recently diagnosed with leukemia, Father was homeless, and Father was unable to appropriately care for Adam as a result of Father's history of substance abuse. The petition further alleged Mother's mental health issues limited her ability to parent Adam. Adam was detained and placed at Children's Hospital in Oakland.
Mother is not a party to this appeal and we do not further summarize the proceedings with respect to her.
Combined Jurisdiction/Disposition Report and Hearing
The combined jurisdiction/disposition report, filed June 5, 2014, indicated Adam was "stable" and eligible for hospital discharge. Father had been staying overnight with Adam in the hospital. The medical social worker reported Father made efforts to understand and care for Adam's medical needs. He was also doing a better job of answering and returning phone calls from the hospital in a timely manner.
Father was in the process of obtaining housing through the Department of Veterans Affairs (V.A.). He expected to secure housing in June 2014. Nonetheless, the Agency remained concerned about Father's criminal and substance abuse history, his "anger issues," and his reluctance to acknowledge any problems. Father continued to deny using drugs, and when asked to drug test he made disparaging remarks about Mother. Due to concerns Father might have untreated mental health issues, the social worker requested Father complete a psychological evaluation, in addition to substance abuse testing.
In August 2014, the Agency filed an addendum report, which indicated Adam had been moved to a nonrelative foster home. He continued to require weekly chemotherapy and could not be around school-age children. Prior to Adam's discharge, the hospital temporarily suspended Father's visits after he was found with marijuana. During another visit, Father slept on the floor of Adam's hospital room, raising concerns Father could expose Adam to "highly toxic germs." Father completed a psychological evaluation, but he had not submitted any drug test results. The social worker concluded, "[Father] has a pattern of behavior that demonstrates poor judgment and places him at risk of arrest, which makes him too unstable to care for such a medically fragile child. . . . [I]f [Father] is able to demonstrate that he is clean and sober for a sustained period of time, placement . . . may be appropriate."
The combined jurisdictional/dispositional hearing was continued to October 30, 2014. In the interim, the juvenile court ordered Father to "drug test and engage in drug treatment." The Agency filed a second addendum report, in which it was reported Adam returned to the hospital because his foster parents could no longer care for him. On September 9, Father was banned from the hospital after he was observed lying with Adam, in his hospital bed, and appeared to be masturbating.
On October 30, 2014, the Agency filed a second amended dependency petition, pursuant to section 300, subdivision (b). In addition to the prior allegations, the second amended petition alleged: "On or about 9/9/2014[, Father] was banned from the hospital for inappropriate behavior." Father withdrew his contest and the juvenile court sustained the second amended dependency petition, adjudged Adam a dependent, removed Adam from Father's custody, and ordered reunification services. Father was ordered to engage in general counseling, undergo a psychological evaluation, complete an outpatient substance abuse treatment program, and submit to drug testing. The court also ordered Father to cooperate with the social worker and ordered frequent supervised visitation between Father and Adam.
Six-Month Review Report
On April 15, 2015, the Agency filed its six-month status review report. Adam had been recently placed at a group home, where he appeared comfortable. He continued to receive outpatient medical treatment, speech therapy, and physical therapy at Oakland Children's Hospital.
Father was in partial compliance with his case plan. In July 2014, Father underwent a mental health evaluation, which revealed untreated mental health issues. Father was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, generalized anxiety disorder, stimulant use disorder (in sustained remission), and alcohol use disorder (in sustained remission). The evaluating psychologist opined that, if Father "is healthy and able to obtain adequate housing and resources to support [Adam] through his illness, continued custody should be considered."
Father claimed he had been attending a parenting class and a substance abuse program (Options), but refused to sign a release to allow the social worker to contact the programs. Instead, he told the social worker he would "bring proof of his attendance and drug tests results to [the juvenile court]." Father obtained temporary housing and planned to obtain stable housing, through the V.A., "once Adam is returned to his custody." Father admitted he was not attending therapy.
Father was consistent in attending supervised visits with Adam, having missed only one scheduled visit. At visits, "[Father] brought Adam toys, games, and clothing. [Father] was affectionate with Adam and interacted with Adam by engaging in conversations, reading books, and playing chess. Adam became animated, laughed, and smiled during visits with [Father]." However, Father appeared "tired" and closed his eyes during the majority of one visit. The social worker also noted Father "gets agitated and angry at times in front of Adam" and made promises to Adam that he would return to Father's care by April 2015.
As Father had not mitigated the issues leading to Adam's removal, the Agency determined it remained detrimental to return Adam to Father's care. The Agency recommended the court continue reunification services for an additional six months. The Agency specified Father needed to start substance treatment, submit to weekly drug testing, participate in weekly counseling, and engage in anger management and parenting classes.
Six-Month Review Hearing
After several continuances, the contested six-month review hearing commenced on July 7, 2015. The social worker, Cara Fischer, testified she was assigned to Adam's case in January. Fischer was aware Father obtained temporary housing. Because Father was not otherwise in compliance with his case plan, she had not inspected his housing. Father told Fischer he had been participating in substance abuse treatment at the V.A., since December 2012. He also told Fischer his tests were negative for all illicit substances. Because Fischer never saw any of Father's drug test results, his sobriety remained an ongoing "risk factor." Fischer referred Father to two different substance abuse programs—Options on June 18, 2015, and Terra Firma, on July 2, 2015. When she made the referrals, Fischer did not believe Father was receiving outpatient drug treatment through the V.A. Fischer also referred Father to counseling at Family Services of San Leandro, on June 3, 2015, but Father had not begun therapy.
Father attended weekly, one-hour, therapeutic visits with Adam. Fischer was informed the visits were "going well," and the supervising clinician recommended increasing the length of Father's visits to two hours. Adam wanted to live with Father. However, Father needed to complete the counseling and substance abuse treatment components of his case plan before Fischer could recommend returning Adam to his care.
Twelve-Month Review Report
Unable to conclude the six-month review hearing on July 7, 2015, the juvenile court put the matter over for further hearing on August 21 and required the Agency to file its 12-month review report in the interim. The Agency's 12-month review report recommended termination of reunification services. Father continued to live in temporary housing and was not in compliance with the remainder of his reunification plan. He had not been in regular contact with the social worker and had not attended individual therapy. Although Father represented that he was attending parenting and anger management classes, he had not signed a release of information or provided certificates of completion. Father also had not participated in substance abuse treatment or testing. He missed an intake appointment at the Terra Firma substance abuse program and when the program attempted to contact him, his phone was not in service.
The social worker regularly attempted to discuss the case plan with Father, through letters and voicemail messages. Specifically, the social worker mailed letters with substance abuse treatment and counseling referrals on June 18, July 2, and August 6, 2015. She met with Father on June 26, 2015, and attempted to schedule other meetings. However, Father did not communicate with the Agency.
Father missed one visit with Adam, on May 22, 2015. The Agency reported: "Adam presents as happy when [Father] arrives, Adam appears to be comfortable communicating with [Father], and Adam has increased his expression of his needs, wants, thoughts, and feelings. [Father] initiates and participates in play activities with Adam. . . . [Father] identified concerns about Adam's behaviors, and discussed use of parenting skills to address behaviors. . . . [Adam] laughs during sessions with [Father] and Adam appears to enjoy the time spent with [Father]." Father obtained permission to visit Adam at his group home, but had yet to follow through.
The Agency concluded it would be detrimental to return Adam to Father's custody due to Father's history of substance abuse, the unknown status of his sobriety and the fact that Father's mental health issues remained untreated.
Twelve-Month Review Hearing
The now combined six- and 12-month review hearing was ultimately held on October 16 and 30, 2015. Fischer further testified Adam had lived primarily at the hospital from April 2014 until his group home placement in January 2015. After Adam was medically stable, the Agency could not find a suitable placement. Adam would require chemotherapy for up to another two years. Father was not consistently involved in Adam's treatment. Fischer notified Father about Adam's chemotherapy appointments, but he attended only a few and was not in regular communication with Adam's doctors.
The contested hearing was not completed until October 30, 2015. At that time, the Agency asserted, without any objection from Father's counsel, they were only two weeks shy of the 18-month anniversary of Adam's entry into foster care.
Fischer knew Father completed an anger management program in 2011. However, Father refused to sign a release allowing the Agency to speak with his service providers. Father provided Fischer his certificate of completion for a 2011 parenting education class, but refused to provide a release. Irrespective of these services, which were completed before the instant dependency case began, Fischer believed Father needed additional parenting education. Although Father's therapeutic visitation with Adam was reported to be going well, the therapist did not recommend unsupervised visits.
Father provided Fischer with certificates showing he completed a substance abuse program and drug testing in 2011. However, he would not provide the Agency with authorization to obtain information about the treatment he received. Fischer wanted Father to complete a full intake assessment at another substance abuse program, and referred him to two, because he had tested positive for amphetamines as recently as October 24, 2014, but had not tested thereafter. Father did not follow through on the referrals. Father also was not in compliance with the general counseling component of his case plan. Father told Fischer he did not want to use any of the counseling services to which he was referred and instead wanted to go through the V.A. However, she did not know if he actually received any counseling through the V.A. because he refused to sign a release. Fischer further opined it was unlikely Adam could be returned to Father's custody within the next six months.
When the hearing resumed on October 30, 2015, Fischer was shown Father's results from three drug tests performed by the V.A. One test was positive for alcohol. Father had not provided the Agency with a written release to speak with the V.A. until the date of the hearing.
Father testified he had completed, in 2012, a seven-month parenting education course, an anger management class, and group substance abuse counseling. Father received certificates for completing the parenting and anger management programs. The substance abuse counseling was through a V.A. program, which began in 2012 and ended in May or June 2014. Thereafter, Father only drug tested at the V.A. In 2014, he submitted to four to six drug tests at the V.A. Father said he provided the test results to the Agency. However, the social worker would not accept the results, saying she wanted to "see the numbers."
Father admitted receiving referrals for anger management classes from the social worker in 2014. Father did not attend the classes because of his previously completed anger management program. The social worker told Father to "redo the classes," but Father refused. Although he occasionally talked with a caseworker at the V.A., Father had not been engaged in therapy since 2014. Father did not engage in a substance abuse treatment program in 2015, or follow through on the social worker's referrals for drug testing. However, he submitted to three drug tests at the V.A. in 2015—on October 20, 23, and 27. Despite a positive test for alcohol and an ambiguous result for "amphetamine," Father denied using alcohol or any controlled substances.
At the conclusion of the contested review hearing, Adam's attorney asked the juvenile court to continue family reunification services "for a period of time to allow [Father] to demonstrate his sobriety." Father's attorney also asked the court to consider returning Adam to Father's care while continuing Father's reunification services. The juvenile court found the Agency had provided reasonable services, Father had not made substantial progress on his case plan, and there was not a substantial probability that Adam would be returned to parental custody within six months. The court explained: "[F]rom my perspective, the only issue is not whether or not [Father] can meet [Adam's] medical needs . . . . It's also what's [Father's] deal? Is he clean and sober? What's the housing look like? . . . [¶] [T]hese are issues that the court should know before making a decision. . . . And [Father] has not made that information available to the Court or to the Agency. [¶] [S]o I feel like I'm between a rock and a hard place, because it's not just [Adam's] medical, I think that [Father] will work with everything that he has to make sure [Adam's] medical needs are taken care of as best he could. I don't question that. The question is why is he not following through with the case plan over this extended period of time? Why is there the back and forth about information, and we . . . don't have a lot of information? . . . [¶] . . . [¶] But . . . there's no argument that the Agency hasn't done what they should do and offered services. It's just that [Father has not] taken advantage of those services. And I find myself in a really difficult position. Because do I necessarily think it's in the best interest of [Adam] at this time to do what I think the only thing the Court can do? No. But do I find a mechanism to do anything else? No."
The juvenile court terminated reunification services to Father and Mother, but did not set a section 366.26 hearing because the court selected long-term foster care as Adam's permanent plan. The court further ordered that visitation be "as frequent[] as possible" and granted the Agency discretion to initiate unsupervised visits if Father submitted eight negative, random drug tests. Father filed a timely notice of appeal.
II. DISCUSSION
Father maintains substantial evidence does not support the juvenile court's reasonable services finding, and the juvenile court abused its discretion by refusing to extend reunification services. Father's arguments are unpersuasive.
"The purpose of the California dependency system is to protect children from harm and to preserve families when safe for the child. (§ 300.2; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The focus during the reunification period is to preserve the family whenever possible. [Citation.] Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody. (§§ 366.21, 366.22; [citation].)" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423.) However, reunification services are a benefit. "There is no constitutional 'entitlement' to these services." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475.) And "[f]amily reunification services, when provided, are subject to time limitations. For a child who was three years of age or older on the date of the initial removal from the physical custody of his or her parent, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care unless the child is returned home. (§ 361.5, subd. (a)(1)(A).)" (In re J.P. (2014) 229 Cal.App.4th 108, 121, fn. omitted.)
"Regardless of his or her age, a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian." (§ 361.49.)
Although it was not completed until October 30, 2015 (almost 18 months after Adam's initial detention), it is undisputed that the hearing at which the court terminated services was a 12-month status review hearing, subject to the standards of section 366.21, subdivision (f). "At each review hearing, if the child is not returned to the custody of his or her parent, the juvenile court is required to determine whether reasonable services . . . designed to aid the parent in overcoming the problems that led to the initial removal and the continued custody of the child have been offered or provided to the parent (reasonable services finding). (§ 366.21, subds. (e), (f).)" (In re J.P., supra, 229 Cal.App.4th at p. 121.) "If the child is not returned to parental custody at the 12-month review hearing, the juvenile court has the discretion to continue the case to the 18-month review date, set a section 366.26 hearing, or order a permanent plan of long-term foster care for the child. (§ 366.21, subd. (g)(1), (2) & (3).) However, '[t]he court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . .' " (In re K.L. (2012) 210 Cal.App.4th 632, 641, italics omitted; § 366.21, subd. (g)(1).)
Even at an 18-month review hearing, the juvenile court has the authority to continue the hearing, under section 352, if it finds reasonable family reunification services have not been offered or provided by the social services agency or where the best interests of the child would otherwise be served. (Tracy J. v. Superior Court, supra, 202 Cal.App.4th at pp. 1426-1428 [agency provided mother no services to address her physical disabilities and child's asthma, unnecessarily limited visitation, and did not inform parents of child's medical appointments]; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1000, 1017 [no reasonable services ever provided to father incarcerated all but one month of reunification period], superseded by statute on another ground, as stated in Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1504; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777, 1792-1799 [services inadequate for mother hospitalized all but five months of reunification period]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209 [social worker never spoke to mother; trial court found services to be a "disgrace" but erroneously believed it must terminate reunification after 18 months]; In re Dino E. (1992) 6 Cal.App.4th 1768, 1773, 1777-1778 [social services agency failed to develop reunification plan for father].) A. Reasonable Reunification Services
Father challenges the juvenile court's finding he was offered reasonable reunification services. We review a reasonable services finding for substantial evidence (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762), bearing in mind the clear and convincing evidence burden of proof. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
Initially, we address the Agency's position that Father forfeited his claim by failing to raise it below. Generally, "[a] party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H., supra, 132 Cal.App.4th at p. 221.) With one exception for reasons stated post, we agree with Father that no objection was necessary to preserve his substantial evidence argument. (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1448, fn. 1; Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1158; cf. In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1561; In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.) "A parent is 'not required to complain about the lack of reunification services as a prerequisite to the department fulfilling its statutory obligations.' " (Melinda K., at p. 1158.) We turn to the merits of Father's argument.
"In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The juvenile court considers the appropriateness of services offered, the extent to which the agency facilitated utilization of those services, and the extent to which the parent availed him or herself of the services provided. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) "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." (Misako R., at p. 547.)
"Section 361.5 has been construed, however, to require '[a] good faith effort' to provide reasonable services responding to the unique needs of each family." (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) "It is the job of a [social services agency] to assist parents with inadequate parenting skills in remedying the sources of the problem, not to eradicate the problem itself. . . . [¶] . . . A proper service plan must be tailored to the specific needs of the dysfunctional family. However, to make the requisite findings, 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)." (In re Riva M., supra, 235 Cal.App.3d at p. 414, italics omitted.)
"Reunification services should be tailored to the particular needs of the family." (Tracy J. v. Superior Court, supra, 202 Cal.App.4th at p. 1425.) The agency must also accommodate the special needs of disabled and incarcerated parents. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1792.) The adequacy of the plan and the Agency's efforts must be judged according to the circumstances of the particular case. (In re Taylor J., supra, 223 Cal.App.4th at p. 1451; Mark N. v. Superior Court, supra, 60 Cal.App.4th at pp. 1010-1011.) "In other words, [a parent's] difficulty meeting the case plan's requirements does not excuse the agency from continuing its efforts to bring [the parent] into compliance with the court's orders." (Taylor J., at p. 1451.) Part of that responsibility is the "duty 'to maintain adequate contact with the service providers and accurately to inform [the parent] of the sufficiency of the enrolled programs to the meet the case plan's requirements.' " (Id. at p. 1452.) However, reunification services are voluntary and cannot be forced on an unwilling parent. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) " 'The remedy for a failure to provide reasonable reunification services is an order for the continued provision of services, even beyond the 18-month review hearing.' " (Taylor J., at p. 1453; accord, § 366.21, subd. (g)(1); In re J.P., supra, 229 Cal.App.4th at pp. 121-122; In re Alvin R., supra, 108 Cal.App.4th at p. 975.)
Recognizing that he largely did not comply with his case plan, Father attempts to reframe the case. He faults the Agency for focusing on his substance abuse and insists the Agency failed to provide reasonable services because it did not provide services specifically targeted at "the essential issue"—his ability to adequately care for his medically fragile son. There is no dispute that Adam is a medically fragile child with ongoing medical needs. And the Agency did not refer Father to a parenting class specific to medically fragile children, or otherwise refer him to a source of medical education. In focusing on this issue, Father seeks to put the cart before the horse. Father's lack of education regarding Adam's medical needs was not an obstacle to reunification. Rather, the key issue preventing reunification was Father's failure to address his substance abuse issues and show he was clean and sober. It was not unreasonable for the Agency and the juvenile court to believe that Father's inability to care for Adam's medical needs is a symptom of his substance abuse problem. Had Father's inability to take care of Adam's medical needs been the primary obstacle to reunification, the Agency's failure to provide services specifically targeted at that issue would have been more significant. (Cf. In re J.E. (2016) 3 Cal.App.5th 557, 562-567 [juvenile court did not abuse discretion in extending services where no services targeted " 'core issue' " preventing reunification]; In re Taylor J., supra, 223 Cal.App.4th at pp. 1451-1453 [juvenile court's reasonable services finding not supported by substantial evidence where agency provided inadequate referrals to counseling and domestic violence services].)
In any event, it is too late to reframe this case in terms more favorable to Father; medical education was not required by Father's case plan. At the combined jurisdiction/disposition hearing, Father raised no objection to the case plan, which required Father to engage in substance abuse treatment, drug testing, and counseling. Nor did Father appeal from the dispositional order. As a result of Father's failure to object or appeal from the dispositional order, Father forfeited any argument that the requirements of his case plan were unreasonable. (In re T.G. (2015) 242 Cal.App.4th 976, 984-985; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
Father also argues he was not offered or provided reasonable services because the Agency failed to account for how his adjustment and anxiety disorders interfered with his ability to cooperate with the Agency and access mental health services. Father maintains his case is analogous to In re K.C. (2012) 212 Cal.App.4th 323 (K.C.) and Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397 (Patricia W.), in which orders terminating reunification services were reversed because reasonable services had not been provided.
In K.C., supra, 212 Cal.App.4th 323, the father's case plan required him to complete a psychological evaluation and follow any recommendations made by the evaluator. (Id. at pp. 326, 329.) The father underwent a psychological evaluation, which identified a diagnosis of "mood disorder with obsessive-compulsive features" and paranoid personality disorder. (Id. at p. 326.) The evaluator also recommended an examination by a psychiatrist for consideration of psychotropic medication. (Id. at pp. 326-327, 329.) In response, the social services agency referred the father to a public mental health clinic, but when that clinic determined the father did not meet their treatment criteria, the agency made no further efforts to help him. (Id. at pp. 327-329, 331.) The court concluded the agency effectively delegated the burden of seeking a medication assessment to the father, who was ill-equipped to find it in light of the mental health issues the treatment was designed to remediate. (Id. at p. 330.) The court explained: "The psychologist's report indicated . . . that [the father's] less-than-full cooperativeness was itself a product of psychological conditions that might be responsive to pharmacological treatment. Had [the father] refused to submit to the recommended medication evaluation, or refused to take such medications as might be recommended, his refusal would presumably have sustained a finding that reasonable services were provided. But here he was never placed in a position where such refusal was possible." (Ibid., italics added.) Under the circumstances, it was unreasonable for the agency to fail to make further efforts to arrange a medication assessment. (Id. at pp. 333-334.)
In Patricia W., supra, 244 Cal.App.4th 397, a mother suffering from schizophrenia challenged an order terminating reunification services, arguing no substantial evidence supported the finding that reasonable reunification services had been provided. (Id. at pp. 401, 419.) The problem that led to the child's removal was the mother's mental illness, and more specifically her difficulty remaining medicated, which precipitated a relapse in symptoms—auditory hallucinations urging her to harm or kill her child—as well as the father's alleged denial of the seriousness of her condition. (Id. at pp. 401, 403-404, 410-411, 422.) Despite the parents' participation in all of the services required under their case plan, the juvenile court terminated reunification services and found return would create a substantial risk of detriment, largely in reliance on the social worker's observations regarding the mother's demeanor and an unsubstantiated concern the mother was not taking her medication. (Id. at pp. 415-416, 418.)
The reviewing court determined substantial evidence did not support the finding the mother's reunification services were reasonable. (Patricia W., supra, 244 Cal.App.4th at pp. 419, 427.) It observed: "[T]aking mother's mental illness as a 'starting point' [citations], the Agency was required, first, to identify mother's mental health issues and provide services designed to enable her to obtain appropriate medication and treatment that would allow her to safely parent [her child] [citation] and also, second, to provide services designed to help her stay on her medication. [The agency] did not meet its burden to show that it took either step." (Id. at p. 422.) The agency did not even secure a psychological evaluation as part of its case plan, much less an evaluation of whether the mother was on the optimal medication. (Id. at pp. 401, 407, 422-424.) There was also no evidence the agency offered any services to either parent to assist them in improving mother's medication compliance. (Id. at pp. 401, 425.)
The facts of K.C. and Patricia W. are easily distinguishable. As a result of the agency's inaction, the mother, in Patricia W., did not obtain a critical psychological evaluation that was necessary for future treatment and reunification. Here, Father received a thorough mental health evaluation early in the case. Unlike the father in K.C., Father's evaluation did not indicate he suffers from the kind of significant psychological issue that would interfere with completion of the case plan. The Agency also did not stop with the evaluation. Father was referred to individual counseling services at Family Services of San Leandro, which he simply refused to attend. In contrast to the parents in K.C. and Patricia W., Father indicated he had not enrolled in therapy or fully engaged in substance abuse services, not because his mental illness was causing difficulty accessing such services, but because, having completed services in connection with the prior dependency case, he believed additional services were a waste of time.
A similar theme repeated itself throughout all components of Father's case plan. By no later than August 2014, Father was referred to substance abuse treatment programs and ordered to submit to random testing. Despite being offered services for over 12 months, Father did not engage with the referred programs and did not share testing results with the Agency until the very last day of the contested 12-month review hearing. The Agency was also unable to confirm if Father engaged in parenting and anger management classes because he refused to sign release forms. Nevertheless, the social worker continued to make unsuccessful attempts to communicate with Father and obtain signed releases for any programs in which he did engage. The Agency identified Father's housing and substance abuse issues, as well as potential mental health concerns, at the outset and attempted to provide resources to address these problems. The social workers' efforts to facilitate services for Father is well documented in the record. Substantial evidence supports the juvenile court's finding reasonable reunification services had been offered. B. Substantial Probability of Return Finding
Father also contends the juvenile court abused its discretion by refusing to extend reunification services. He insists substantial evidence does not support the juvenile court's finding there was no substantial probability of returning Adam to his care by the time of an 18-month review hearing. "The period for reunification services for a parent and child over the age of three when removed from parental custody is limited to 12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(A).) . . . [¶] In order to extend services beyond that 12-month date and up to 18 months from the date of initial removal, the juvenile court [is] required to make the specific factual findings set forth in sections 361.5, subdivision (a)(3) and 366.21, subdivision (g)(1)." (San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 222, italics omitted.)
Section 366.21, subdivision (g)(1), provides that if the minor is not ordered returned to the parents within the time period provided in subdivision (a)(1) of section 361.5, the juvenile court may "[c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the minor was originally taken from the physical custody of his or her parent. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." (Italics added.) In order to find a substantial probability the child will be returned to his parent's custody and safely maintained in the home within the extended period of time, the court must find "all of the following: [¶] (A) That the parent . . . has consistently and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1).) The provision calls for the juvenile court "to essentially determine if the parent has demonstrated sufficient rehabilitation to complete the program plan in the extended time, as well as the ability to once more adequately provide for a child's emotional and physical well-being." (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1062.)
"The parallel provisions of section 361.5, subdivision (a), limit reunification services to ' "a maximum time period not to exceed 12 months," which under certain circumstances may be extended to 18 months.' [Citation.] Services may be extended for this additional six-month period 'if it can be shown that the objectives of the service plan can be achieved within the extended time period.' " (In re Monica C., supra, 31 Cal.App.4th at p. 304; § 361.5, subd. (a)(3)(A).) We review decisions to terminate reunification services for abuse of discretion. (In re Alanna A. (2005) 135 Cal.App.4th 555, 565; Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1092.)
It is undisputed that Father consistently visited Adam and that Adam has a strong bond with Father. In fact, Adam wants to return to Father's care and Father remains one of the few people with whom Adam will verbally communicate. Such facts certainly weigh in favor of an extension of services. On the other hand, as demonstrated ante, by the time of the 12-month review hearing, Father had not made significant progress in resolving the problems that led to Adam's removal. Although Father underwent a psychological evaluation, obtained temporary housing, and was offered more than 12 months of services, he never engaged in individual counseling and waited until the eve of the 12-month review hearing to submit drug test results to the Agency. Even then, after the Agency recommended terminating Father's services, Father's test results were not unambiguously clean. As a result of Father's unwillingness to drug test and participate in substance abuse treatment, Father never advanced to unsupervised visitation with Adam.
Father concedes he "failed to comply with his case plan," but insists this was because he completed similar services during the prior dependency case and saw no need to repeat them. This is no excuse. Father's criminal activity and positive drug test in 2014, as well as his possession of alcohol and marijuana at the hospital, amply demonstrate the problems that led to the removal of Adam from Father's care in the instant dependency case and, as the social worker repeatedly explained, why Father still had issues to address. Father's resistance to testing and the October 2015 test results are inconsistent with his assertion he has no substance abuse problem.
Father focuses on his "emerging willingness to cooperate with the Agency," purportedly demonstrated by his submission—on the final day of the 12-month review hearing—of drug test results and a release allowing the social worker to speak to the V.A. This was too little, too late. Despite a positive test for alcohol, Father continued to deny any recent use of alcohol or controlled substances. Considering the extremely limited time remaining before an 18-month review and Father's failure to accept responsibility for his substance abuse problem, it appears next to impossible for Father to complete the objectives of his reunification plan and to provide safe care for a child in Adam's condition.
No evidence in the record supports Father's implicit assertion that this is an extraordinary case where external circumstances prevented him from complying with the case plan and a continuance was justified. Unlike the mother in In re Elizabeth R., supra, 35 Cal.App.4th at page 1793, who substantially complied with her case plan despite commitment to a mental hospital for most of the reunification period, Father cannot point to any extenuating circumstances or substantial compliance with his reunification plan. (See In re Daniel G., supra, 25 Cal.App.4th at pp. 1213-1214.) The record supports the juvenile court's finding there was no substantial probability of safely returning Adam to Father's care by the 18-month review date.
III. DISPOSITION
The order terminating reunification services is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.