Opinion
A148255
02-02-2017
In re C.J., Jr., et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.J., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD143238, JD143238A)
C.J. (Father) appeals an order of the juvenile court ordering additional reunification services. He contends the court lacked authority to order new services at the 12-month hearing and that, even if the court had such authority, he was entitled to a contested hearing on the matter. We shall affirm the order.
I. BACKGROUND
We discuss only the facts relevant to the limited issues before us on appeal.
In July 2014, the San Francisco Human Services Agency (the Agency), filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of C.J., Jr. and J.J. (Minors), then six and four years old respectively. According to the detention report, Father had violated a court order prohibiting Minors' mother, Z.W. (Mother) from having contact with Minors' maternal half-sister, A.Y.; had refused to disclose the whereabouts of A.Y. and C.J., Jr.; had violated a restraining order prohibiting him from having contact with Mother; and had failed to protect Minors from Mother, who had serious mental health issues. The detention report also noted that Father's mental health appeared to be deteriorating.
All undesignated statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
Before the disposition hearing, the juvenile court ordered an expedited psychological evaluation for Father. However, the evaluation was "placed on hold" because Father refused to sign the consent forms. Father's long-time therapist reported that his mental health had begun to deteriorate since A.Y. had been moved to her father's home in another country, and she opined that Father had experienced a psychotic break that led to him not thinking rationally.
In September 2014, Minors were returned to Father with a safety plan in place. In a report before the disposition hearing, the Agency stated that Father appeared to suffer from a processing disorder or diminished cognitive capacity as a result of a head injury; the Agency reported that its goal was to provide him with mental health treatment to help him make more informed decisions regarding Minors.
The juvenile court sustained allegations, inter alia, that Father's unknown mental health status and lack of judgment placed Minors at risk of harm and that he had violated a court order prohibiting Mother from having contact with them. The court ordered that, to be considered for dismissal of the dependency, Father must sign consents to release information, undergo a neuropsychological evaluation, participate in individual therapy and family team meetings, show he understood Mother's mental health problems and was able and willing to protect Minors, and comply with restraining orders.
The Agency filed a supplemental petition (§ 387) in January 2015. In the detention report, the Agency reported that Father had come to Minors' school to pick them up, appearing confused and disoriented. An ambulance was summoned. Father admitted to paramedics that he had smoked crystal methamphetamine, although when questioned by a physician, he denied it. While in the emergency room, he experienced "disorganized thought," "appeared to be in an altered state," and spoke "gibberish." He tried to flee the hospital with intravenous tubes still in place. He tested positive for methamphetamine. The emergency room physician stated that Father's symptoms resulted from substance use. Father later denied to a social worker that he had smoked methamphetamine, and suggested he had been under the effects of a hallucination when he admitted using it. He also reported that he had been feeling depressed and low in energy, that his psychiatrist had prescribed Wellbutrin, and that he had taken more than the prescribed dose. Minors were placed in foster care.
In March 2015, the Agency reported that Father was receiving therapeutic and psychiatric services but had not consented to have information released to the Department. By the end of March, Father had provided a report on a psychological examination, which indicated he had cognitive limitations and made errors in judgment.
The parties reached an agreement on jurisdiction and disposition in May 2015, pursuant to which the supplemental petition was amended to allege that there were safety concerns regarding Father's household, that Father had difficulty implementing his support system and services and setting structure and routine for the children, and that Father's judgment was impaired in that he failed to consult with a physician to address his anxiety and depression before increasing his medication, resulting in an adverse reaction and a positive urinalysis test. Father agreed that Minors would be placed in out-of-home care, in the home of relatives. Among the reunification requirements, Father would sign necessary consents to release information, he would continue to participate in therapy and medication management as recommended by his physician, and he would participate in drug testing. The juvenile court sustained the supplemental petition as amended and ordered the agreed-upon reunification requirements.
Before the scheduled November 2015 six-month review hearing, the Agency reported that Father was receiving individual therapy on and off. His therapist said Father was making good use of therapy and was complying with his Wellbutrin dosage. She did not believe he was using any illicit drugs and thought he had no serious mental health issues other than becoming easily flustered when overwhelmed.
In May 2015, after the parties reached their settlement agreement, Father tested positive for methamphetamine. He failed to submit to drug tests until late September 2015; he produced one negative test then missed two additional tests that month. In October, a drug test was positive for methamphetamine and Father failed to check in for two days after that. On one occasion, he was "very agitated and not making sense" while meeting with a service provider. Father took the position that his Wellbutrin caused false positive tests for methamphetamine, and his therapeutic team said they were sure he was not using methamphetamine and also suggested the positive tests may have resulted from his prescription Wellbutrin. However, both a nurse and the scientific director of the drug testing facility disputed this position. The scientific director explained that the composition of Wellbutrin was very different from methamphetamine and would not cause a false positive reading.
The six-month hearing was continued, and in December 2015, the Agency reported that Father tested positive for methamphetamines or amphetamines in November 2015, failed to call in on several occasions, and had a negative test in December 2015. During a November meeting with a care coordinator, Father appeared paranoid and angry, and engaged in "non-reality based conversations." The Agency did not have consent forms allowing it to communicate with Father's clinical team.
After a contested six-month hearing, which took place in January 2016, the juvenile court found return of Minors would create a substantial risk of detriment and ordered them to remain in out-of-home care with relatives. The 12-month hearing was scheduled for March 2016.
Before the 12-month hearing, the Agency reported that Father was continuing to receive psychotherapy and was compliant in his treatment. He had recently begun taking Trazodone rather than Wellbutrin. He had again tested positive for methamphetamine in February 2016. Despite the positive tests, his individual therapist said she did not believe Father was using drugs. The Agency suggested that a complete psychological examination might help it understand Father's level of functioning and how best to serve him. The Agency noted: "This was court ordered awhile back and although client completed assessment he did not consent to information being released to [the Agency]. He then did a brief independent evaluation in a different clinic and submitted that instead." The report stated that before the Agency would consider overnight visits, Father would need to address his substance abuse. The Agency recommended continuing services for six months.
The 12-month review hearing was continued to April 7, 2016. On April 4, 2016, the Agency filed an addendum report recommending two new reunification services for Father: participation in an inpatient or outpatient substance abuse treatment program and completion of a psychiatric evaluation. Despite the positive tests, Father continued to insist he was not using methamphetamines, and he said he would no longer submit to drug tests. The report also explained that Father's previous psychological evaluation was not released to the Agency, and that although Father had completed his own evaluation and released it to the Agency, it was brief and dealt with cognitive functioning: "The evaluation did not address the intersection of medication management, cognitive functioning, and mental health and how this impacts his ability to care for his children on a day to day basis. The Agency hopes a psychiatric evaluation can clarify [Father's] needs."
Father had switched his psychiatric medication from Wellbutrin to Trazodone around late December 2015.
At the 12-month hearing, Father objected to the addition of the two new reunification services. He submitted on the 12-month review report as a whole and told the court he wanted six more months of services, but requested a contested hearing on the issue of the new services. The juvenile court denied Father's request for a contested hearing, renewed services for six months, and ordered Father to resume drug testing, attend substance abuse treatment, and undergo a psychiatric evaluation. Father has appealed from this order.
II. DISCUSSION
A. Additional Services
Father contends the juvenile court lacked authority to order additional reunification services at the 12-month hearing. We reject this contention.
At the 12-month hearing, the Agency's counsel told the court that, under section 366.21, subdivision (e)(7), the court at any review hearing could modify the terms and conditions of reunification services. In making its order, the juvenile court stated, "I have the authority under 366.21(e)(7) to modify the terms and conditions of his plan."
Father points out correctly that section 366.21, subdivision (e), governs not 12-month permanency hearings, but six-month review hearings. Subdivision (e)(7) of that statute provides: "In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services." Subdivision (f) governs the 12-month permanency hearing, and does not contain an analogous provision. Because it does not, Father argues, the juvenile court lacked statutory authorization to modify the terms of his services.
The juvenile law contemplates that reunification will be accomplished within 12 months. (§ 361.5, subd. (a)(1).) "The six- and 12-month review hearings occur during 'the reunification phase' of the dependency when the focus is on ameliorating problems that led to the dependency to accomplish the goal of family preservation and reunification. [Citation.] 'Until permanency planning, reunification of parent and child is the law's paramount concern.' [Citation.] [¶] At the 12-month review hearing, the court may continue reunification services for another six months only if it believes there is a substantial probability the parent will reunify within that time. (§ 361.5, subd. (a).) On the other hand, if the court finds there is no substantial probability of return within 18 months of the original removal order, the court must terminate reunification efforts and set the matter for a selection and implementation hearing under section 366.26. [Citation.]" (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 595-596, fns. omitted.)
Section 362, subdivision (a) gives the juvenile court broad authority to fashion appropriate orders. It provides: "If a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . ." This provision has been construed to allow the court to order a parent to participate in counseling as part of reunification services. (In re Nolan W. (2009) 45 Cal.4th 1217, 1228-1229.) (See also § 245.5 ["In addition to all other powers granted by law, the juvenile court may direct all such orders to the parent, parents, or guardians of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of . . . the minor."].) It has also been applied to orders made at review hearings. (See Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 309 [order at six-month review hearing].) The court is not limited to addressing the problems identified in sustained allegations, but may address other problems that impede reunification. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1008 [where there was evidence father had a substance abuse problem, dispositional order could require testing although allegation regarding alcohol use was not sustained].) Here, the juvenile court's order was designed to accomplish the goal of reunification by assisting Father in addressing his apparent methamphetamine use. We conclude this order falls within the court's statutory authority.
Any other conclusion would lead to an anomalous result here. At the hearing, the juvenile court suggested strongly that it accepted Minor's counsel's position that Minors could not be reunified with Father unless he participated in drug treatment. If we accept Father's position, then in a circumstance such as this—in which additional services are necessary to create a "substantial probability of return"—the court would be prohibited from ordering those services and would be instead forced to terminate reunification services and set the matter for a hearing pursuant to section 366.26.
Father argues, however, that it was impossible for him to comply with the order that he engage in drug treatment and have a psychiatric evaluation before the 18-month hearing, which was set for late July 2016. He did not raise this issue at the hearing, and there is no evidence to support it. There is no reason to presume the Agency would not facilitate his participation in the necessary services. The services were connected to those already ordered: their necessity flowed from his continuing to produce positive results during court-ordered drug tests. The juvenile court could properly order them at the 12-month hearing.
B. Denial of Contested Hearing
Father also contends that, even if the juvenile court had authority to order additional services, he was entitled to a contested hearing on whether those services should be ordered.
A number of cases have concluded that a parent at a review hearing has a due process right to cross-examine and confront witnesses. (See, e.g., In re James Q. (2000) 81 Cal.App.4th 255, 266-268; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751.) Appellate courts have reached different conclusions on whether a juvenile court may properly require an offer of proof before granting a hearing to a parent. (In re James Q., supra, 81 Cal.App.4th at pp. 259-260, 266-268 [court could not require offer of proof before granting contested six-month review hearing on question of whether parent should receive extended period of reunification services]; David B. v. Superior Court (2006) 140 Cal.App.4th 772, 775 [parent entitled to contested 18-month review hearing without offer of proof]; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116 [court could require parent to make offer of proof before granting hearing on application of beneficial relationship exception to termination of parental rights].) As explained in In re Thomas R. (2006) 145 Cal.App.4th 726, 732, an offer of proof may be required where the parent has the burden of proof (as with the application of the beneficial relationship exception), but not where the agency bears the burden of proof (as with whether further services should be offered at the six-month hearing). (Accord, M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1180.)
This case is not precisely analogous to any cited by Father, and we are mindful that due process is a "flexible concept which depends upon the circumstances and a balancing of various factors." (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817; see In re A.B. (2014) 230 Cal.App.4th 1420, 1436.) Father did not challenge the Agency's recommendation that the dependency be continued and that he receive an additional six months of services. Rather, his challenge was to the nature of those services—services that are a benefit to the parent (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475), designed to assist the parent in addressing the problems preventing return of the child. (Compare In re James Q., supra, 81 Cal.App.4th at p. 267 ["the court must permit the parent to attempt to contest potentially adverse recommended findings"].) We are not persuaded that in the circumstances before us, the juvenile court was obliged to permit a contested hearing on that limited issue.
We need not finally resolve this issue, however. Even if the juvenile court erred, we do not reverse unless a miscarriage of justice occurred. (Cal. Const., art. VI, § 13; Ingrid E., supra, 75 Cal.App.4th at pp. 759-760; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387.) " 'The standard of review where a parent is deprived of a due process right is whether the error was harmless beyond a reasonable doubt. [Citation.]' " (M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1182.)
The record here persuades us that there was no prejudice. We recognize that the Agency recommended the additional services not in its 12-month status review report, but in an addendum filed only three days before the hearing. (See § 366.21, subd. (c) [social worker must file status review report at least 10 days before review hearing].) However, the previously filed status review report for the 12-month hearing indicated that a complete psychological examination might be helpful and that Father needed to address his substance abuse before he could receive overnight visits. Moreover, Father had previously been required to undergo a neuropsychological evaluation that addressed recommendations for therapy and/or medication; rather than releasing the report on the court-ordered evaluation, he had substituted a brief evaluation by a provider of his own choosing, which focused on cognitive functioning rather than medication management. Thus, although the Agency did not challenge the adequacy of that evaluation at the time, the psychiatric evaluation was within the scope of the requirements imposed on Father earlier in the dependency.
We have no doubt that the juvenile court would have ordered a psychiatric evaluation and substance abuse treatment even if it had held a contested hearing. There is no dispute that Father had tested positive for methamphetamine on multiple occasions. Although Father took the position that the test results were caused by his prescription Wellbutrin, he was refusing to participate in drug testing despite having switched medications and a laboratory scientist had explained that Wellbutrin could not cause the positive results. Moreover, the record indicates that the question of whether Wellbutrin caused false positive test results was litigated at the contested six-month review held in January 2016 and that the juvenile court rejected Father's argument. Thus, this is not a case such as In re Armando L. (2016) 1 Cal.App.5th 606, 620-621, in which the appellate court refused to speculate as to what evidence a mother might have presented in support of her contention that the minor's father had physically abused him. In the circumstances of this case, we are confident the juvenile court would have ordered the same services if there had been an evidentiary hearing and that any error was harmless beyond a reasonable doubt.
III. DISPOSITION
The April 7, 2016 order is affirmed.
/s/_________
Rivera, J.
We concur:
/s/_________
Ruvolo, P.J.
/s/_________
Reardon, J.