Opinion
E068525
11-30-2017
In re A.K., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.K., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J264496) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Reversed. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
B.K. (father) appeals from the juvenile court's order at the six-month review hearing finding San Bernardino County Children and Family Services (CFS) provided him reasonable reunification services as to his now almost three-year-old son, A.K. Father contends CFS's failure to provide him a referral for a psychological evaluation rendered services inadequate because his mental illness was a fundamental problem leading to A.K.'s removal and addressing his mental health issues was a main component of his case plan. Although father challenges other aspects of CFS's services, we agree with him that the failure to refer him for psychological assessment on its own requires reversal of the reasonable services finding. "[W]hen a parent or guardian has a mental illness or a developmental disability, that condition must be the 'starting point' for a family reunification plan which should be tailored to accommodate their unique needs." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420 (Patricia W.).)
I
FACTUAL BACKGROUND
A. Initial Jurisdiction and Disposition
In March 2016, when A.K. was 13-months old, CFS filed a dependency petition alleging he suffered serious physical harm within the meaning of section 300, subdivision (a) (severe physical abuse), when his mother, R.H. (mother), threw him on the ground because she was mad at father. The petition also alleged A.K. fell under section 300, subdivision (b) (failure to protect) because mother had substance abuse and mental health problems, the parents engaged in domestic violence in his presence, and father reasonably should have known that leaving him in mother's care was dangerous to his safety. A.K. suffered a concussion and bruising to his head and stomach as a result of mother's abuse.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
The social worker interviewed father at his home in Yucaipa several days after the incident and found him willing and able to care for A.K. Father told the social worker that mother drank a "fifth" of alcohol every day and needed to complete a rehabilitation program before he would allow her around his son again. He said mother had been angry with him the day of the incident. She had been yelling at him to tend to A.K., and he went outside to smoke a cigarette and avoid an argument. Mother followed him to the doorstep and threw A.K. at him. Mother ended up calling the police who arrested her for child abuse, and she had been in custody ever since.
Father said he and his mother (the paternal grandmother) had taken A.K. to the hospital where he was treated for a concussion. He said he did not plan to reconcile with mother because he could not trust "a person who would throw a baby."
The social worker described A.K. as "very bonded" with father, and observed the home was clean with ample supplies. Father told the social worker that the paternal aunt and grandmother could help him care for A.K. Father took a random drug test the day after his interview with the social worker and the results were negative.
In a jail interview, mother admitted she had thrown A.K. out of frustration with father. She said she had consumed "a pint of tequila" and was very drunk. In a second interview, father admitted he and mother argued frequently and mother had punched him once in A.K.'s presence. He admitted he had left A.K. in her care when he had to work even though he knew about her drinking problem.
Father also shared he had been physically abused as a child by his own father and paternal grandfather. He said he had been diagnosed with PTSD as a minor, but had stopped attending counseling when he was 19 years old. Father is currently 27 years old and has an 11th grade education. He used to work at a fast-food restaurant, but was unemployed at the time of the interview and receiving financial help from his family. Father also reported having recently hit his head in a scooter accident and said he suffered migraines and memory loss as a result.
Father said he did not think he needed counseling or services because he had not done anything wrong, but ultimately he "reluctantly agreed" to his case plan, which consisted of general and domestic violence counseling and parenting classes. CFS recommended removing A.K. from mother, placing him with father, and offering father family maintenance services. The social worker believed father knew or reasonably should have known that mother could not safely care for A.K. and as a result could benefit from services.
At the jurisdiction and disposition hearing in April 2016, the juvenile court sustained all of the section 300 subdivisions (a) and (b) allegations in the petition, placed A.K. with father, and ordered family maintenance services for father and family reunification services for mother. The court emphasized to father the importance of avoiding contact with mother, warning, "if we find out that she pops over for a visit, even if you had no control over it. That's cause for removal."
B. Supplemental Petition
The parents made some progress on their case plans in the months following disposition. Father attended nine counseling sessions with A.K. The counselor told the social worker father appeared mature and bonded with A.K. and A.K. seemed happy, comfortable, and bonded with him.
But things took a turn for the worse in September 2016 when mother and father were arrested together for public intoxication. The social worker interviewed father after the arrest and he admitted there had been alcohol "on the scene" but denied having drank any himself. He said he "did not see the problem because there is no court order stating that he can't spend time with his wife as long as his child is not present." The social worker was concerned this incident was similar to the one that had necessitated the dependency and believed the parents had a codependent relationship that affected their judgment and placed A.K. "at risk of neglect and abuse."
On October 24, 2016, CFS filed a supplemental petition under section 387 alleging father had substance abuse problems and "mental health and emotional issues" that compromised his ability to care for A.K. CFS placed A.K. in the custody of the paternal aunt. The paternal grandmother told the social worker she did not think father was capable of caring for a child. She also said she had recently obtained power of attorney over him because she was concerned about his "mental stability." After discussing the matter with father, the social worker questioned whether he was competent to understand the dependency proceedings. Father told the social worker the paternal grandmother was his attorney and that he wanted to give her custody of A.K. The social worker said father had been belligerent and unwilling to discuss the petition allegations during the conversation.
At the hearing on the supplemental petition, the court appointed a guardian ad litem for father at the request of his counsel. During the court's questioning, father indicated he did not fully understand what the court meant when it referred to a "lawyer," "social worker," "hearing," and "trial." When asked if he understood what it meant to "take a class" as part of a case plan to regain custody of his son, he replied, "I am not sure." He told the court he had PTSD and "bipolar depression" and said he had been hospitalized in the past for mental illness. He was not taking medication even though he "was supposed to" because he thought it would impair his ability to parent A.K. The paternal grandmother informed the court she was in the process of seeking a conservatorship to obtain "medical responsibility" over him.
The court sustained the section 387 allegations against father, ordered family reunification services for him, approved the parents' case plans, and scheduled a six-month review hearing for April 2017. Father's revised case plan included a psychological/psychiatric evaluation, an outpatient substance abuse treatment program, a 12-Step program, and substance abuse testing. The court ordered CFS to provide father and mother psychological evaluation referrals "forthwith."
C. Reunification Efforts and the Six-month Review Hearing
A few months into the reunification period, the court removed A.K. from the paternal aunt and placed him in a foster home due to allegations the aunt and her live-in babysitter were abusing children in their care. Father and mother had lived at the paternal grandmother's home in Mentone during some portion of the reunification period, but when the social worker saw father in January 2017 he had an "emotional meltdown" and told her they were homeless.
In a six-month status review report filed April 18, 2017, the social worker reported father had made minimal progress on his case plan. Other than the counseling sessions he had completed months earlier, all he had done was complete his parenting education courses. She noted he had failed to take advantage of the referrals for individual and domestic violence counseling and had not shown up for any of his substance abuse testing dates from January to April 2017.
The social worker acknowledged, however, that she had "somehow overlooked" the outpatient substance abuse program component of father's case plan and had not given him a referral until April 14, 2017 (which was less than two weeks before the six-month review hearing). She made no mention of the psychological evaluation or the 12-Step program components of his case plan.
According to the foster mother, the parents interacted well with A.K. during visits. However, she also reported it had been difficult to schedule visits with the parents over the phone because they were not making sense and sounded as if they were under the influence of alcohol. The social worker said father had shown up for a meeting in February and admitted to being under the influence of alcohol. She reported he had fallen out of contact with CFS after February 2017.
The social worker documented her efforts to reach father about his case plan progress. She sent an unacknowledged text message to the parents' phone number on April 10, 2017 informing them their counselor wanted to continue services. She called the parents two more times, but no one answered. The address listed for the parents in the six-month status review report was the paternal grandmother's Mentone address. The report listed a phone number for mother but none for father.
At the scheduled six-month review hearing on April 26, 2017, the court granted the parents' request to set a contested hearing regarding whether CFS had provided reasonable services. The court held the contested hearing on June 12, 2017. Father and his guardian ad litem were present and mother was in custody. The parents' attorneys argued CFS had not provided reasonable services during the reunification period because it failed to timely refer them to an outpatient substance abuse treatment program. Father's counsel argued an erroneous reasonable services finding could be prejudicial to the parents down the line even though CFS was recommending six more months of services.
CFS acknowledged such a finding could negatively impact the parents later in the dependency, but argued it was highly unlikely because of the parents' current "level of compliance" with their case plans. CFS argued the parents were homeless, difficult to reach, and knew what was expected of them. CFS acknowledged its substance abuse program referral was late, but pointed out the parents had failed to utilize the substance abuse services for which they had received referrals—alcohol testing. In response to the court's questioning, it became clear the social worker had tried to reach father by phone only, and not by mail.
The court told CFS it had "made a huge mistake" by not making the outpatient substance abuse referral sooner, remarking that it was "not really reasonable to not refer somebody to something that's in the case plan." The court added, "I don't like the Department's practice of just trying to call a phone number and not following through. . . . I don't know why they don't mail, when they can't get ahold of somebody, I don't know why they don't send mail notice. This is troublesome to the court." The court reasoned, however, that the question "really turn[ed] on . . . whether . . . the parents would have enrolled in an outpatient program or not had the referral been made." The court concluded the parents were not likely to have participated in an outpatient program based on their efforts to date, and found CFS had provided reasonable services "for that reason." The court told the parties it had been a "very close call."
The court found the parents had made minimal progress in their case plans but also found there was a substantial probability of reunification within the next six months. It set a 12-month review hearing for December 2017 and extended the parents' reunification services.
Father timely appealed the order from the six-month review hearing containing the reasonable services finding.
II
DISCUSSION
A. Applicable Law and Standard of Review
Whereas services are presumptively provided for 12 months to children over the age of three and their parents (see § 361.5, subds. (a)(1), (b), & (e)), the presumptive rule for children under the age of three on the date of initial removal is that "court-ordered services shall not exceed a period of six months from the date the child entered foster care." (§ 361.5, subd. (a)(1)(B); see In re Christina A. (2001) 91 Cal.App.4th 1153, 1160-1161.) If the child is not returned to the parent at the six-month review hearing, "the court shall determine whether reasonable services that were designed to aid the parent . . . in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent." (§ 366.21, subd. (e)(8).) A finding the services were not reasonable allows the court to extend reunification services to the 12-month review period. (§ 366.21, subd. (e)(3).)
When the juvenile court orders reunification services, the child welfare agency must "specifically tailor" those services to the "unique needs" of the family and design them to alleviate the circumstances that gave rise to the dependency. (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451 (Taylor J.).) The agency "must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.'" (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345 (Amanda H.); see In re K.C. (2012) 212 Cal.App.4th 323, 329-330 (K.C.).) The agency must also find and maintain contact with service providers and keep the parent informed of whether his or her progress is consistent and compliant with the case plan. (Taylor J., at p. 1452.)
The agency must attempt to provide reasonable reunification services even if it is difficult to do so or the prospects of reunification are low at the time the court orders the services. (In re Taylor J., supra, 223 Cal.App.4th at p. 1451; see In re Alvin R. (2003) 108 Cal.App.4th 962, 973 (Alvin R.) ["[s]ome effort must be made to overcome obstacles to the provision of reunification services"].) The agency's efforts do not have to be perfect, but they must be reasonable given the circumstances of the case. (In re T.G. (2010) 188 Cal.App.4th 687, 697 (T.G.).)
We review the juvenile court's reasonable services findings for substantial evidence. (Amanda H., supra, 166 Cal.App.4th at p. 1346; T.G., supra, 188 Cal.App.4th at pp. 696-697.) Although substantial evidence may consist of inferences, "'inferences that are the result of mere speculation or conjecture cannot support a finding.'" (In re Roxanne B. (2015) 234 Cal.App.4th 916, 920.) "The remedy for the failure to provide court-ordered reunification services to a parent is to provide an additional period of reunification services to that parent and to make a finding on the record that reasonable services were not offered or provided to that parent." (In re A.G. (2017) 12 Cal.App.5th 994, 1005 (A.G.).)
B. Forfeiture and Appealability
Before reaching the merits of father's challenge, we address CFS's procedural arguments. CFS contends father "partially forfeited" his challenge because he only objected to the lateness of the substance abuse outpatient program referral and did not mention the missing psychological evaluation referral. This argument fails for two reasons. Most fundamentally, "[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. v. Superior Court (2004) 116 Cal.App.4th 1147, 1157-1158 [parent did not forfeit challenge to the adequacy of services by raising it for the first time on appeal]; see also In re Javier G. (2006) 137 Cal.App.4th 453, 464 [a substantial evidence challenge is "an obvious exception to the [forfeiture] rule"].) It was CFS's burden to show by clear and convincing evidence it had provided reasonable reunification services, and father was not required to object to the agency's failure to carry its burden of proof. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623 [a parent is not required to object to the agency's failure to carry its burden of proof].)
Additionally, even if the forfeiture rule did apply in this context, father preserved his challenge for appeal. The rule exists to "encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Counsel informed the court in advance that father desired a contested hearing on the reasonableness of CFS's services and the court held a full-fledged hearing on the issue during which both sides presented evidence and legal argument. The hearing presented ample opportunity for the court to fully consider CFS's reunification efforts, and the transcript of the hearing shows the court did so.
Next, CFS argues father may not appeal the reasonable services finding because he was not aggrieved by it, as the court effectively provided him the remedy for inadequate agency efforts by extending reunification services for another six months. We rejected the same argument in T.G., where we explained that even in situations like this where the court has ordered additional services, an erroneous reasonable services finding "can put the interests of parents and children in reunification at a significant procedural disadvantage." (T.G., supra, 188 Cal.App.4th at p. 695.)
For example, "a heightened showing is required at the time of the 12-month review in order to continue services to the statutory maximum of 18 months. The court must find 'that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period 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 guardian within the extended time period or that reasonable services have not been provided to the parent or guardian.' (§ 361.5, subd. (a)(3); see also § 366.21, subd. (g).) [¶] To conclude there is a 'substantial probability' of return to the parents under section 366.21, subdivision (g), the court must find there was consistent and regular visitation by the parent and 'significant progress in resolving problems that led to the child's removal.' (§ 366.21, subd. (g)(1)(B).) In addition, the court must find 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)(C).)" (T.G., supra, 188 Cal.App.4th at p. 695, italics added.) "Under these circumstances," we concluded, "it is obvious it would be significantly more difficult for a parent to either reunify with a child or to satisfy the heightened showing required for a continuation of reunification services if the parent was not provided with reasonable services during the first six months of the reunification period." (Ibid.) Additionally, "a parent whose services are terminated at the 12-month review period based in part on an erroneous finding of reasonable services during the first six months of reunification, would be unable to challenge that finding by way of an appeal from a subsequent adverse order at the time of the 12-month review hearing." (Id. at pp. 695-696.)
Finally, despite his having received an additional six months of services, an erroneous reasonable services finding at the six-month review hearing could unfairly support termination of father's parental rights if the dependency reaches that stage. Section 366.26 prohibits a juvenile court from terminating parental rights if "[a]t each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided." (§ 366.26, subd.(c)(2)(A).) As our colleagues in Division Four of the Second District explained, a reviewing court must reverse an erroneous reasonable services finding even where the juvenile court ordered an additional six months of services "just as it would have done, had it found that reasonable services had not been provided," because otherwise "the prejudice to [the parent] from the ruling will come later, at each successive phase of the proceedings." (Alvin R., supra, 108 Cal.App.4th at p. 974.)
For these reasons, we also reject CFS's related argument that an erroneous reasonable services finding is harmless in light of the juvenile court's provision of additional services. We agree with the court's conclusion in A.G. that the harmless error rule should not apply to a reasonable services finding. As the court explained, the Welfare and Institutions Code contains a "'precise and demanding'" statutory scheme aimed in part at "protect[ing] the legitimate interests of the parents," and as part of that statutory scheme the Legislature "mandated consequences for the failure to provide court-ordered reunification services to a parent." (A.G., supra, 12 Cal.App.5th at pp. 1004-1005.) Those consequences include not only the provision of additional services, but also a finding on the record that services were not reasonable. (Id. at p. 1005.)
CFS claims the real reason the court provided additional services was to "level the playing field for Father, because of CFS's lapses in providing certain referrals," and as a result father was not prejudiced by the reasonable services finding. This is apparent, according to CFS, because the court's stated reason for giving father additional services—its substantial probability of return finding—is not supported by substantial evidence. We refuse to speculate about why the court gave father more services. It stated it did so because it found a substantial probability of return within six months, and seeing as CFS has not appealed that finding, the sufficiency of the evidence supporting it is not before us.
C. Reunification Services Were Inadequate
"The focus of California's dependency system 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. [Citations.] After reunification services are terminated, the focus is to provide the child with a safe, permanent home.' [Citation.]" (Patricia W., supra, 244 Cal.App.4th at p. 420.) As noted, we review a reasonable service finding for substantial evidence. However, "[a] finding that reasonable reunification services have been provided must be made upon clear and convincing evidence," and "[w]hen applying the substantial evidence test . . . we bear in mind the heightened burden of proof." (Alvin R., supra, 108 Cal.App.4th at p. 971.) "'Under this burden of proof, 'evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.''" (Ibid.)
As he did at the six-month review hearing, father argues CFS's substance abuse services were inadequate, but the focus of his appeal is the missing psychological evaluation referral. He argues CFS's complete failure to address the psychological component of his case plan created a foundational problem for reunification. He points out the petition alleged his "mental health and emotional issues . . . compromise[d] his ability to . . . parent" and were one of the problems leading to A.K.'s removal. He also points out that the juvenile court was concerned enough about his basic cognitive functioning to appoint him a guardian ad litem. Under these circumstances, father argues, a psychological evaluation "was a fundamental first step" toward identifying the problems that lead to removal and offering services designed to remedy those problems. (T.G., supra, 188 Cal.App.4th at p. 697.) We agree.
"[W]hen a parent or guardian has a mental illness or a developmental disability, that condition must be the 'starting point' for a family reunification plan which should be tailored to accommodate their unique needs." (Patricia W., supra, 244 Cal.App.4th at p. 420, citing K.C., supra, 212 Cal.App.4th at pp. 332-333.) That "starting point," must include "an in-depth examination of [the parent's] psychiatric history, her present condition, her previous response to drug therapy, and the potential for future therapy with a focus on what affect her behavior has had, and will have, on her children." (In re Jamie M. (1982) 134 Cal.App.3d 530, 540.) K.C. and the recent Patricia W. highlight the importance of psychological services to the reunification process.
In K.C., the agency expressed concern the father suffered from mental illness and, as part of his case plan, he underwent a psychological evaluation. His evaluator identified psychological conditions impairing his ability to parent and recommended a pharmacological evaluation to assess the need for psychotropic medication. (K.C., supra, 212 Cal.App.4th at pp. 326, 330.) After initially expressing resistance, the father went to the agency's referred mental health clinic for the evaluation, but the clinic turned him away and the agency made no effort to help him obtain the recommended evaluation elsewhere. (Id. at p. 327.)
The appellate court concluded the agency had not provided reasonable services to help the father obtain psychotropic medication. (K.C., supra, 212 Cal.App.4th at p. 334.) It reasoned that the problems leading to removal "all appeared to stem from his mental health issues," and while the agency had properly identified those issues, "when it came to addressing them, [it] appeared to delegate the burden of finding and obtaining suitable services to Father himself—despite the high likelihood that the very issues necessitating treatment would interfere with his ability to obtain it." (Id. at p. 330, second italics added.)
Nor was the agency excused by the father's stated opposition to medication, because the agency had "made no attempt to show that [he] would in fact have refused medication if presented with a choice between taking it and permanently losing custody of his children." (K.C., supra, 212 Cal.App.4th at p. 331.) In other words, the agency "could not pounce upon stale expressions of reluctance as an excuse for its own inaction." (Id. at p. 332.)
Similarly, in Patricia W., where the mother suffered from mental illnesses thought to include schizophrenia and bipolar disorder, the reviewing court held the agency "was required, first, to identify [her] 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]." (Patricia W., supra, 244 Cal.App.4th at p. 422, italics added.) The court concluded the agency had completely shirked this requirement. Not only had the agency failed to ensure the "careful evaluation of [her] mental illness called for by In re Jamie M.," but even more problematic, it had failed the threshold step of securing the psychological evaluation called for in the case plan. (Ibid.)
The court described the significant problem unevaluated mental health issues pose for parent-child reunification. "In some ways, this record is so wanting on the subject of mother's mental illness it defies analysis. The Agency secured two mental health evaluations early on, but not as part of mother's case plan . . . [T]he record contains no information about the full identity, qualifications or licensing of either doctor, their conclusions are not described in the Agency's 12-page report other than three vague comments—opining generally about the severity of mother's symptoms and the potential danger she posed to S.L., her state of 'denial' about her condition, and noting favorably that 'she appears to be medication compliant but needs to remain so.' So it is impossible to ascertain what, if anything, these examining psychologists might have concluded about what mother's condition is, what her treatment needs are and her prospects for reunifying successfully with her son." (Patricia W., supra, 244 Cal.App.4th at pp. 423-424, italics added.) The court observed the mother's mental illness had been "vaguely and inconsistently diagnosed," and concluded it was impossible to provide reunification services appropriately tailored to her needs "without a clear diagnosis of her mental illness secured through an evaluation as part of a case plan." (Ibid., italics added.)
CFS's efforts were even more lacking here. Like the agency in Patricia W., CFS knew father's mental illness was one of the problems that had led to removal, and as a result, it had appropriately included a psychological evaluation in his case plan. Unlike the agency in Patricia W., however, CFS made no effort to secure a mental health evaluation for father. If the reviewing court found the agency's reliance on the two vague evaluations inadequate in Patricia W., we cannot find the complete failure to secure any evaluation an adequate effort by CFS. As the juvenile court correctly observed at the six-month review hearing about CFS's lapse in substance abuse referrals, it is not reasonable "to not refer somebody to something that's in the case plan." This is especially true when that service is as crucial as a psychological evaluation. We therefore agree with father that the lack of a psychological evaluation referral supports reversal of the reasonable services finding on its own.
In arguing otherwise, CFS spends much of its brief cataloging father's shortcomings to prove he would not have taken advantage of a psychological evaluation had it been offered. CFS characterizes its "lapse in referrals" as "an innocent error" and argues father is appealing with "unclean hands" because he told the social worker "egregious lies" about his alcohol problem and relationship with mother and "flagrantly resisted" treatment.
First of all, father's progress was not as abysmal as CFS makes it out. Without prompting from CFS, he took a parenting class and attended several counseling sessions. More importantly, however, this is not an equitable analysis where the court considers the culpability of the parties. An agency's responsibility to provide reunification services is "untethered to [the] parent's actions or statements." (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 71.) While father should have been far more diligent in his efforts to reunify with A.K. and to stay in contact with CFS, it is axiomatic that an agency must try to provide reasonable services even when the parent's efforts are minimal. (Taylor J., supra, 223 Cal.App.4th at pp. 1451-1452.) This is especially important in situations like this where one of the problems leading to removal was the parent's mental illness. As father's appellate counsel aptly points out, "It can come as no surprise that father—a homeless man who was actively abusing alcohol, whose mental instability had required hospitalization in the past, and who told the court that he was not sure he understood what it meant to 'take a class'—was not unilaterally motivated to drug test, participate in domestic violence treatment, take psychotropic medication, [or] separate from mother." Father's lack of progress on his case plan is likely a result of his mental condition. (See K.C., supra, 212 Cal.App.4th at p. 330.)
The cases discussed above teach that the first step in helping parents with mental illness reunify with their children, even before parenting classes or substance abuse programs, is understanding their condition. And the only way to do that is through a psychological evaluation (and, most likely, a medication program, a point this case has not yet reached due to CFS's failure). CFS complains about father's lack of insight into his alcohol problem, but it failed to assist him in securing the one thing that could have helped him gain such insight.
Indeed, the juvenile court recognized the importance of a psychological evaluation when—after father told the court he suffered from PTSD and bipolar depression and had been hospitalized for his mental illness—it ordered CFS to provide the referral "forthwith." (Italics added.) Unfortunately, when it came time to assess services at the six-month review hearing, the juvenile court also focused on father's lack of progress to excuse what it observed were lackluster efforts on the agency's part. "However, '[a parent's] difficulty meeting the case plan's requirements does not excuse the agency from continuing its effort to bring [the parent] into compliance with the court's orders.'" (In re T.W.-1 (2017) 9 Cal.App.5th 339, 348, citing Taylor J., supra, 223 Cal.App.4th at p. 1451; see also K.C., supra, 212 Cal.App.4th at p. 331 [an agency cannot argue a psychological service would have been "futile" if it "never offered" the service in the first place].)
The delay CFS's lapse in referrals will cause in this case is regrettable, but necessary. At this stage of the dependency, the parent's interest in reunification is "paramount," and it is only after a court terminates a parent's services that the focus shifts to the child's interest in permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Father's mental and emotional stability was the primary barrier to reunification. The record shows him vacillating from a seemingly safe and responsible parent to someone who required a guardian ad litem because he did not understand the nature of the proceedings. Going forward, CFS should tailor his services towards diagnosing and treating his mental health issues, and it should do so expeditiously given A.K.'s young age.
Our conclusion makes it unnecessary to address father's arguments regarding the inadequacy of the substance abuse services. We assume that on remand the court will reexamine those services if father shows progress on his mental health issues. Indeed, if father does show such progress, it is possible he will be able to approach his substance abuse and codependent relationship issues more effectively.
III
DISPOSITION
We reverse the juvenile court's order at the six-month review hearing only with regard to its finding that father had received reasonable reunification services, and we vacate that finding. On remand, we direct the juvenile court to enter a new order finding CFS had not provided father with reasonable reunification services as of the six-month review hearing, and to order CFS to provide such services.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. FIELDS
J.