Opinion
F076867
11-02-2018
In re E.B., a Person Coming Under the Juvenile Court Law. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. HEATHER B., Defendant and Appellant.
Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV7764)
OPINION
APPEAL from an order of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Heather B. (mother) appeals from the Welfare and Institutions Code section 366.21 order terminating her reunification services as to her son, E.B. She contends the juvenile court's finding that the Tuolumne County Department of Social Services (department) provided reasonable services is not supported by sufficient evidence. She also contends that in assessing the reasonableness of services, the court improperly relied on the engagement of mother with services. We disagree with both contentions and affirm the juvenile court's order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2016, a dependency petition was filed alleging E.B., four days old, came within subdivision (b) of section 300. The petition alleged that at the hospital, the day after E.B. was born, mother threatened to commit suicide by jumping out of the window. E.B. had to be removed from the room to ensure his safety. The petition also alleged mother had been placed on two psychiatric holds while she was pregnant: once for drinking Windex in an attempt to kill herself and once for holding a knife to her stomach and threatening to stab herself because she wanted to have an abortion.
On the same day, the department filed a declaration for a protective custody warrant, wherein the social worker declared that when the department responded to the hospital, father relayed that mother had been diagnosed with Schizoaffective Disorder (a mental disorder in which a person experiences a combination of schizophrenia symptoms, such as hallucinations or delusions, and mood disorder symptoms, such as depression or mania). He reported that she received services through Full Service Partnership (FSP). Mother reported she had used methamphetamine and marijuana in the past but had been clean and sober for approximately one year. Mother did not take her prescribed medications during her pregnancy because she had concerns of how they would affect the baby. For part of her pregnancy, she had been in a substance abuse treatment facility as a condition of probation for a drug offense. While there, she was placed on an involuntary psychiatric hold because she was hitting herself in the head with a water bottle and stating she wanted to die.
Father, D.B., is not a party to this appeal.
The hospital nurse told the social worker that mother was not picking up on cues from E.B. to be nursed, changed, and comforted. Father's sister reported to the social worker that she was concerned mother would kill E.B. during one of her mental breakdowns if he were left in her custody. Mother was reported to be violent and dangerous during outbursts.
On November 23, 2016, E.B. was ordered detained pending a jurisdictional hearing. The parents waived the jurisdictional hearing and submitted on the documents. On December 20, 2016, the court found that E.B. came within the provisions of section 300. On January 24, 2017, E.B. was adjudged a dependent of the court, and reunification services were ordered as to both parents.
Mother was ordered to participate in a mental health intake as instructed by the social worker. She was to participate in and show progress through a general counseling program as recommended by the mental health intake and approved by the social worker. She was ordered to comply with psychological/psychiatric testing at the discretion of the social worker and to schedule and attend all appointments with physicians and/or psychiatrists to ensure her medication is adequate and appropriate and to take all prescribed medications. She was ordered to complete parenting classes as directed by the social worker. She was ordered to comply with random drug and alcohol testing. She was ordered to complete a psychological evaluation if recommended by the social worker and to continue to participate and show progress in FSP. FSP is a community-based program operated by Tuolumne County Behavioral Health, which provides the highest level of care and services necessary to prevent facility placement or a more restrictive environment.
In March 2017, mother was arrested and held in custody in county jail. While incarcerated, mother had to be placed in a "safety cell" three times for danger to self, suicidal ideation, and/or grave disability. On May 30, 2017, mother was found incompetent to stand trial in her criminal case and was awaiting transfer to Napa State Hospital to regain competency.
On June 23, 2017, the department filed a section 388 petition asking the court to assess whether mother should be appointed a guardian ad litem to ensure her due process rights were protected. On July 11, 2017, following an in camera hearing, the juvenile court appointed a guardian ad litem for mother.
Prior to mother's incarceration, mother's participation in services offered were characterized by the social worker as "minimal." The social worker testified that mother could not meaningfully participate because of her level of psychosis. Father terminated his relationship with mother in January 2017, and Tuolumne County Behavioral Health staff reported that she decompensated and was unable to maintain a level of healthy functioning as father previously ensured medication compliance, appropriate hygiene, and would intervene to prevent law enforcement contact.
On August 8, 2017, at the six-month review hearing, it was recommended that services be terminated as to mother. The social worker opined that mother's severe mental health issues rendered her unable to provide adequate care for E.B. and could be detrimental to his health and safety. The social worker opined that further reunification services could be ineffective in assisting mother in demonstrating consistent long-term safety in parenting her child. The department expressed concern that further participation in services would exacerbate mental health symptoms and behaviors and could be detrimental to mother herself.
Mother requested six more months of services. The court found that "the likelihood of reunification within six months is slim, but on the other hand, to the extent that the Court has discretion to continue services, I think that in light of the fact the Court is going to continue services for the father, that I will continue to offer services to the mother, particularly in light of the barrier that she has had based on her mental health issues to accessing services." The court ordered six more months of services and found that the department had complied with the case plan by making reasonable efforts to provide reasonable services up to the point of the hearing. In light of mother's pending transfer to Napa State Hospital and the department's concern that the rules of the institution would not allow for visitation, the court ordered the current visitation order to continue with the added language, "as practicable." The case plan was updated with input from mother's guardian ad litem. The case plan was similar to the initial case plan, but reflected therapy was to be recommended by Napa State Hospital while she was in the care of the hospital.
On August 15, 2017, mother was transferred to Napa State Hospital in order to restore competency for her criminal case. Mother's guardian ad litem signed the case plan on mother's behalf on August 23, 2017. On September 21, 2017, she was deemed competent and returned to jail, and on October 2, 2017, she was released on probation.
On October 3, 2017, mother met with the social worker. Mother told the social worker she had resumed services with FSP and would access a partial prescription pending her appointment with her psychiatrist the following week at Tuolumne County Behavioral Health. After her release from custody, mother communicated with the social worker in an alert, linear, and oriented fashion. On October 6, 2017, mother had a visit with E.B., which was successful compared to her previous visits.
On October 18, 2017, a referral was made to AmeriCorps Family Support for modified nurturing parenting intervention/education. At the time of the referral, it was requested parenting intervention be individual, during visitation, flexible, and include on- going assessment of family and parenting needs. It was requested that parenting education and intervention be tailored to decreasing barriers to mother's meaningful participation in the Nurturing Parenting Program. Parenting support was to be provided each Friday during scheduled visitation, but mother did not attend visits after October 6.
After mother was released from custody, her participation with FSP was inconsistent. She failed to follow through with appointments despite her father and FSP case manager providing transportation to her appointments. On October 27, 2017, she was terminated from FSP services due to noncompliance but was eligible to resume if she was reassessed and actively engaged.
On November 22, 2017, mother contacted the social worker and told her she wanted what was best for E.B. and that she no longer wanted to receive services.
A contested 12-month review hearing was held on December 29, 2017, at which mother's social worker testified. The court ordered termination of mother's reunification services. Because reunification services had been continued as to father, no section 366.26 hearing was set. Mother filed a timely appeal.
DISCUSSION
I. Sufficiency of the Evidence
Mother contends the juvenile court's finding that reasonable services were offered to mother is supported by insufficient evidence. She challenges several aspects of the reunification case plan and the implementation of that plan: that her case plan included participation in FSP, that no psychological evaluation was ordered, that her mental health services were not reevaluated or made more intense to reflect her minimal progress, that substance abuse treatment was not ordered, that parenting education was delayed, that her case plan was not adequately modified to reflect her incarceration and institutionalization, and that visitation while she was incarcerated and institutionalized was inadequate.
In reviewing for sufficiency of the evidence, "[w]e determine whether substantial evidence supports the trial court's finding, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)
"The 'adequacy of reunification plans and the reasonableness of the [agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, '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....' [Citation.] '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.' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)
Our review is limited to the period between the six- and 12-month review hearings: August 8, 2017 through December 29, 2017. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846.) The court's finding that reasonable services were offered is supported by sufficient evidence.
A. Mental Health Services
Mother argues that because FSP participation was included in her case plan despite her voluntary utilization of the program prior to E.B.'s removal, the plan was not specifically tailored to her. FSP was part of the initial case plan, which mother consented to, and thus she is precluded from challenging it now. (See In re Precious J. (1996) 42 Cal.App.4th 1463, 1476 (Precious J.).) An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
Nonetheless, the reason for E.B.'s removal was mother's severe mental health issues. Mother is a dually diagnosed client with Schizoaffective Disorder and co-occurring substance abuse. Through the FSP program, mother received intensive case management, individual and group mental health counseling, dual diagnosis/substance abuse individual and group counseling, psychiatric medication evaluation and treatment, housing, employment, education, transportation, and community resource services. Intensive case management includes a minimum of five mental health contacts per week, whether with a therapist, psychiatrist, or case manager.
Mother also argues that she did not receive reasonable services because she was never required to participate in a psychological evaluation. The reunification plan indicated she must participate in up to two psychological evaluations at the recommendation of the social worker. This contention fails because whether mother was to have a psychological evaluation was at the social worker's discretion. Again, mother did not challenge this aspect of the case plan when it was ordered, and thus cannot do so now. The social worker testified she did not recommend an evaluation because mother had been evaluated for competency by a psychiatrist as well as receiving a high level of services through FSP and being assessed and treated by a psychiatrist regularly.
Mother argues the department did not reasonably assist her with parts of her plan that proved difficult. Mother contends her case is like Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397 (Patricia W.). In Patricia W., the appellant had been diagnosed with schizophrenia. The minor was removed because the appellant had run out of medication and experienced a relapse of schizophrenic episodes that involved violent hallucinations of harming and killing her child. (Id. at p. 401.) In her case plan, the appellant was ordered to participate in anger management, stress counseling, and a parenting program, and to continue to meet with her mental health clinician and her tele-psychiatrist in order to " 'help her not harm others, stay safe, and live happy' " and to " 'monitor and manage her psychotropic medications and her symptoms related to her mental disability.' " (Id. at p. 406.) Shortly after proposing the case plan, the agency took steps to bypass reunification services altogether and terminate the appellant's parental rights on the ground of her mental illness. (Id. at p. 407.) The appellate court concluded the juvenile court's finding that reunification services were reasonable was not supported by substantial evidence.
In Patricia W., the appellant's mental health issues were vaguely and inconsistently diagnosed—different diagnoses appeared in the reports at different parts of the proceedings. (Patricia W., supra, 244 Cal.App.4th at pp. 423-424.) There was no evidence that the agency had consulted with, and provided the appellant with access to, mental health professionals who diagnosed and prescribed her appropriate medication that would control her hallucinations and enable her to safely parent the minor. (Id. at p. 425.) The agency did not demonstrate it consulted medical experts about the degree to which the appellant would pose a risk to her son, if any, if she remained medication compliant, and whether given the appellant's diagnosis she could be expected to remain on her medication. (Ibid.) In Patricia W., there were repeated indications the appellant was not taking her prescribed medications, and the agency did nothing to investigate or ameliorate her compliance problem.
Mother's case here is distinguishable. "[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 pp. 420-421.) In mother's case, her mental illness was the starting point, and she required and received a much higher level of monitoring than the appellant in Patricia W.
Unlike the appellant in Patricia W., mother received medication services as well as a high level of involvement from the social worker and the most intense mental health services the county offers. The social worker assigned to mother's case had 12 years of masters' level experience working with clients with dual diagnosis of mental health and substance abuse issues such as mother's. The social worker was in regular contact with mother and mother's FSP case manager throughout the reunification period. Despite the intensive case management she received through FSP, mother's participation with services before her incarceration in March was "minimal" because of her level of psychosis. The social worker worked closely with mother's FSP case manager to assist her. The department attended meetings with mother and her FSP case manager. When mother was incarcerated, she continued to be provided with mental health services, and the social worker remained in regular communication with her and alerted crisis prevention when she was concerned about mother's decompensation. When mother was institutionalized in Napa State Hospital, the social worker made several attempts to contact someone at the hospital in order to discuss mother to no avail. Once mother was released from custody, she met with the social worker who encouraged her to continue with FSP and directed her to receive her medication for that day. She offered weekly visitation, but mother only attended one session since being released from custody until the 12-month review hearing. The social worker arranged for parenting support through AmeriCorps. However, despite all of these efforts, mother did not continue with visitation and was discharged from FSP because of her low level of engagement.
Mother suggests that the department was required to refer her to other services when she disengaged. However, the evidence on the record showed that FSP was the highest level of services the county could offer. The social worker spoke with the FSP case manager and tried to arrange to get mother reengaged in FSP to no avail. The social worker testified she did not refer mother to a private therapist because it would not be "family centered."
Mother suggests the department improperly relied on FSP in handling various aspects of her case that mother argues the department should have been handling. She made this argument below at the 12-month review hearing. The juvenile court rejected the argument by pointing out that Tuolumne County Behavioral Health, of which FSP is a part, is the only department that can provide the close supervision of mental health professionals that mother needs. This observation echoes rather than defies the reasoning of the Patricia W. court, who emphasized that the "input of professionals is necessary for an agency to appropriately tailor reunification services to [a parent with a disorder such as schizophrenia]." (Patricia W., supra, 244 Cal.App.4th at p. 425.) Through FSP, the department received the necessary professional input.
In a similar vein, mother contends her case is like T.J. v. Superior Court (2018) 21 Cal.App.5th 1229 (T.J.) because, as mother puts it, "[t]he department delegated the responsibility to provide services to the regional center, and due to waitlists the mother had limited time to actually engage in the services she eventually received."
In T.J., the appellant was ordered to participate in a program which provided in-home counseling and parenting services to parents with intellectual disabilities, but because the appellant was placed on a waitlist, she was not able to access services. The T.J. court found that the nature and breadth of services were adequate: "Our concern about the [agency's] provision of services lies not in the failure to identify programs and services tailored to [the appellant's] needs, but in the delays that occurred throughout the dependency in actually getting [the appellant] engaged in the identified services." (T.J., supra, 21 Cal.App.5th at pp. 1241-1242.) The appellant in T.J. could not access services because the appellant was placed on a waitlist. There was no such barrier in mother's case. T.J. does not stand for mother's apparent proposition that the department may not refer parents to other facilities for services, but the court noted that referral alone is not a "panacea that automatically satisfies the reasonable services requirement," particularly where the outside facility cannot provide the service due to being backed up. (Id. at p. 1243.) This is not a case where the department merely referred mother to a program and left her to fend for herself. Mother had access to the mental health services to which she was referred, and the social worker worked very closely with FSP to ensure services were being offered and provided to mother and encouraged her to participate.
The record contains ample evidence that the department made reasonable efforts to provide mother with reasonable mental health services.
B. Substance Abuse Treatment
Mother argues that services were not reasonable because she was not provided with substance abuse treatment. This argument fails because substance abuse treatment was not identified as the reason for removal and was never ordered as part of the case plan. Mother consented to the case plan, and cannot now challenge the fact that substance abuse treatment was not ordered. To the extent mother is arguing that substance abuse treatment should have been ordered during the reunification period due to evidence she was using illicit substances, we do not agree.
The social worker testified mother was not recommended to receive substance abuse treatment because the level of services she received through FSP, the level of case management, housing stabilization, and mental health counseling would assist her in a community setting and that mother's mental health issues were the "trump card." Though substance abuse and mental health issues were co-occurring, mother's mental health diagnosis had been the prevailing concern since she was a teenager. Mother indicated she had been clean and sober at the time E.B. was removed. Mother never indicated she wanted to receive substance abuse treatment. Her use of substances during the reunification period did not necessarily compel the department to seek substance abuse treatment to be ordered, particularly in light of mother's severe mental health issues, which took precedence as they were the identified reason for E.B.'s removal. " '[A] reunification plan formulated to correct certain parental deficiencies need not necessarily address other types of conduct, equally deleterious to the well-being of a child but which had not arisen at the time the original plan was formulated.' " (Precious J., supra, 42 Cal.App.4th at p. 1475.)
Further, mother did receive some services that addressed substance abuse. There is evidence on the record that mother was offered substance abuse therapy as part of FSP, as well as 12-step meetings while she was incarcerated.
C. Parenting Education
Mother argues that reasonable services were not provided because parenting education was not referred until October 2017. Her argument fails because these services were ordered to be provided at the discretion of the social worker. The social worker testified that parenting education was not provided until after mother was released from custody because she wanted the timing in which mother received services to set her up to be successful. The social worker did not want to put mother in a position that could cause further decompensation. She consulted with mother's FSP case manager in this regard. Once mother had received treatment at Napa State Hospital and appeared lucid, parenting education services were provided; however, at that point, mother was voluntarily not utilizing services nor attending visitation. The social worker described mother's parenting plan as "completely unconventional to meet [mother's] needs in particular." The social worker set up social work staff and AmeriCorps staff to be available during visitation to assist with parenting and to monitor mother's symptoms. The social worker instructed the staff to let mother take the lead because she was worried about mother's mental health. The social worker indicated any education mother received would be geared around where she was.
There is substantial evidence to support that the department made reasonable efforts to provide reasonable parenting education.
D. Services While Incarcerated and Institutionalized
Mother argues services were not reasonable because her case plan was not modified until the six-month review hearing to reflect her incarceration and institutionalization. This challenge is untimely, as the finding that services were reasonable at the six-month review hearing was reviewable by writ petition, and the time to challenge has since passed. (See Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147; see also In re Julie M. (1999) 69 Cal.App.4th 41.) Further, the record indicates the court departed from the department's recommendation to terminate services in part because mother was incarcerated. Mother is also precluded from challenging the modified six-month plan because her guardian ad litem consented to it on her behalf, and the time to challenge it has since passed. Nonetheless, the record shows that mother was provided with ample services while incarcerated and institutionalized.
When mother was incarcerated, she was offered visitation, mental health and medication assistance, monitoring by the jail nurse, 12-step meetings, individual counseling, and crisis intervention. Mother was seen by mental health staff and clinicians several times while incarcerated. She also received regular check-ins from her case manager at FSP. The social worker testified she contacted the FSP case manager on several occasions to have someone meet with mother. The social worker saw mother on numerous occasions. She called the jail regarding mother and called the crisis team on several occasions because she had concerns about mother's decompensation. When this happened, mother's FSP case manager or someone from the crisis team would go over to the jail immediately and assess her and make sure she was doing okay.
When mother was institutionalized in the state hospital, the social worker tried several times to contact mother. Though the social worker did not have contact with anyone at the hospital, she opined that any classes or programs mother would have been involved in at Napa State Hospital would have been relevant for reunification to the extent they include working on life skills. The social worker testified that any classes or services that Napa State Hospital would offer to restore competency and help her get to a place of clarity would contribute to her ability to respond to services provided by Tuolumne County.
There is substantial evidence on the record that mother was provided with reasonable services while incarcerated and institutionalized.
E. Visitation While Mother Was Incarcerated and Institutionalized
Mother argues services were not reasonable because only one visit was attempted during the eight months that mother was either incarcerated or institutionalized. Mother also argues that the court improperly delegated authority as to whether visitation would occur to Napa State Hospital. We find the court did not improperly delegate authority regarding visitation and that the department made reasonable efforts to provide visitation.
1. Relevant Background
In March 2017, mother began her incarceration in relation to her pending criminal case. The six-month report indicated that mother had been offered visitation while incarcerated but she appeared disoriented, derailed, and did not realize she had a child. Mother declined visitation. The report indicated that in June 2017, mother asked to see E.B. A visit was arranged, but despite direct support and intervention from a social worker, mother refused to leave her cell for the scheduled visit.
At the six-month review hearing, counsel for E.B. argued that visitation and services should continue for mother if they were to be ordered to continue for father. The department submitted on the report. Counsel for the department told the court it would not ask for a detriment finding because "[t]here is no evidence to support such a finding" but expressed a "concern" for the child frequently visiting jail. Counsel also expressed concern for mother's well-being, informing the court that the social worker told him she thought there was a connection between mother's decompensation in jail and visitation. The court asked the social worker directly about this, and she responded: "[W]e had a social worker accompany [E.B.] to the jail to do a visit in the attorney booth, and at that time, [mother] refused to come out of her cell. And she was placed in the safety cell because there was such grave concern for her mental health. [Mother] also refused to see the psychiatrist on that day as well, and in my multiple meetings with [mother] at the jail, she vacillated in her understanding of her awareness that she is a parent and what the dates are, the months are, whether or not she was pregnant, who [father] was, the fact that she had a child. [¶] She frequently refers to her child as [T.], which is [E.B.]'s middle name, but there is such a lack of awareness, and with her mental health decompensation, I am very, very concerned."
The court ultimately ordered reunification services be continued, including visitation, noting, "And I will order that a social worker—that if there is any hint of distress to the child from the visits to the mother, that the visits should be terminated or suspended. I'm really concerned about the mother's behavior. If, in fact, the mother does behave inappropriately during the visitation and it is causing distress to the child, I agree with [mother's counsel] that visit should be suspended." Further, in light of mother's pending transfer and the department's concern that visitation might not be allowed in the facility, the court added the words "as practicable" to the visitation order to reflect the possible effect of rules at Napa State Hospital on the order. The written visitation order was for four hour-long visits per week.
Mother was transferred to Napa State Hospital on August 15, 2017, and her guardian ad litem signed her updated case plan on August 23, 2017. Once mother was deemed competent, she was returned back to county jail for two weeks: September 21 to October 2, when she was released on probation.
Mother met with the social worker the day after she was released on probation, and a visit with E.B. was arranged for October 6, 2017. The visit went well compared to mother's previous visits. However, mother voluntarily absented herself from any future visits, even though she was offered them weekly. She also disengaged from other services, and she eventually told the social worker in late November that she no longer wanted to receive reunification services and just wanted what was best for E.B.
2. The Juvenile Court Did Not Improperly Delegate to Napa State Hospital Whether Visitation Would Occur and Reasonable Efforts Were Made to Arrange Visitation While Mother Was at Napa State Hospital
Mother argues the juvenile court improperly delegated visitation to Napa State Hospital and FSP.
Section 361.5, subdivision (e)(1) authorizes reasonable services for incarcerated or institutionalized parents to include "(C) Visitation services, when appropriate." (Italics added.) The court may delegate the "time, place, and manner" of visitation, but not whether visitation occurs. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 (Christopher H.).) In Christopher H., this court found that the juvenile court's order that the department provide "reasonable visitation" was a permissible delegation because it provided a standard for which the department was required to provide visitation. We contrasted this with an order in another case, In re Shawna M. (1993) 19 Cal.App.4th 1686, where visitation was ordered "as approved by" the agency. In the present case, the court ordered visitation but provided the department with a standard to follow—"as practicable." The order was made based on the department's concern that visitation simply would not be allowed while mother was institutionalized. In Christopher H., we cited with approval reasoning from In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792: "[T]he court noted that visitation where a parent is incarcerated 'may or may not be reasonable depending on the rules and regulations of the institutions involved, the condition of the parent, and the distance from the children's placement.' " (Christopher H., at p. 1011.) We find the "as practicable" language a permissible delegation.
The social worker testified that she made several attempts to contact the hospital. This constitutes reasonable efforts to comply with the order. "[T]he department should, at a minimum, [contact] the relevant institutions to determine whether there was any way to make services available to the [parent]." (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1013.) The social worker was not able to make contact with anyone at the hospital regarding mother despite attempting to do so. Visitation under these circumstances was clearly not "practicable."
As for mother's contention the court impermissibly delegated authority to FSP, we find no order that could be construed as such.
3. The Department Made a Good Faith Effort to Provide Visitation While Mother was Incarcerated
As we have discussed, the department's efforts to provide visitation while mother was in the custody of Napa State Hospital were reasonable. Mother does not challenge the visitation she was offered when she was out of custody. The visitation offered or not offered in the period between the dispositional hearing and the six-month review hearing is not at issue in this appeal as the time to challenge the six-month reasonableness finding has passed. Thus, all we have left before us to analyze are the two weeks mother was in the custody of county jail from September 20 to October 2. According to the order, mother was entitled to four weekly visits for a total of four hours per week, but there is no evidence on the record as to what attempts at visitation were made in this brief period. However, we find relative to the rest of the period at issue on appeal, any failure to provide visitation during these two weeks is de minimis.
Nonetheless, there is evidence on the record that would explain why visitation may not have been arranged while mother was incarcerated for the two weeks before her release on probation. It appears from her testimony the social worker was under a mistaken impression that only monthly visits had been ordered. At the 12-month review hearing, the social worker testified that mother was offered weekly visits. She testified she believed monthly visits were ordered, but she did not recall what the exact order was. She testified mother was offered more visits than were ordered.
"The agency must make a good faith effort to develop and implement reasonable services responsive to the unique needs of each family." (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 69.) We find the department made a good faith effort to comply with the visitation order and was responsive to the needs of the family. Mother had a history of refusing visits while incarcerated and decompensating in connection with visits. Further, she did not attend the visits she was offered, except for one. In viewing all facts and inferences in favor of the judgment, we find the department did make a good faith effort to offer visitation, and the juvenile court's finding of reasonable visitation was supported by substantial evidence.
We find the juvenile court's finding at the 12-month review hearing that the department made reasonable efforts to provide mother with reasonable services is supported by sufficient evidence.
II. The Trial Court's Analysis of Reasonableness
Mother alleges the juvenile court used the incorrect legal standard when determining services were reasonable. She alleges the court erred when it said: "So there is an element that—in assessing the reasonableness of services, you also have to assess the level of engagement of the parent." She suggests this mention of mother's engagement in services shifted the burden of proof. We find no merit to this contention because we do not find that the court improperly relied on mother's participation to determine whether reasonable services were offered.
The court made a lengthy ruling analyzing whether reasonable services were provided. In part, the court reasoned:
"[Mother] clearly has some special needs. She clearly requires very tailored services, and the services that one typically sees in a reunification case plan would really be of little use to [mother]. What she requires is medication assessment, medication services, the supervision—close supervision by mental health professionals that is provided. The only agency that can provide it in this county is Behavioral Health, and the testimony was that part of the Full Service Partnership Service is that a mental health professional meets with her five days a week. ... It really was that the services that she needed—tailored services that needed to be provided to [mother] could really only come from Behavioral Health. They are the psychological professionals who provide public services in this county and the Full Service Partnership is their most intensive service, so it would be the most tailored service to meet her very special and very specific needs.
"So when the argument is made that you have to tailor services to meet the parent's needs, that is exactly what was done here, and unfortunately, because of the depth of [mother's] mental illness, once she is out of custody and able to make decisions as to whether or not she is going to participate, she chooses not to participate. It happened in February and March of 2017; it happened again in
October of 2017 when she was released from custody. And she—in October of 2017, the testimony was that she was essentially discharged ... from Full Service Partnership because she wasn't participating. She remained eligible to go back if she wanted to participate and wanted to receive those services. She was eligible. And [the social worker] testified that she encouraged her to return to those services, and [mother] declined, said she wasn't going to do it. So there is an element that—in assessing the reasonableness of services, you also have to assess the level of engagement of the parent. [¶] ... [¶]
"[T]he Court has to make certain findings and must consider all the factors in the case, particularly the incarceration of the parent and whether that was a barrier to participate in services. And unfortunately, for [mother], her incarceration was really the only time she was receiving services. I mean, the services were offered and the services were more than reasonable and the services were as intense as they could be and were very specifically tailored to her needs. In fact, it details in the 12-month report [FSP] ... 'includes intensive case management, medication services, individual and group mental health treatment, individual and group substance abuse treatment, housing, employment, education, transportation, and community resource services.' They're not any services you can offer to a parent other than those. Her refusal to participate in those services doesn't change the fact that the services offered were completely reasonable. The Court does find by clear and convincing evidence that the services offered to [mother] have been reasonable services." (Emphasis added.)
We do not find that the court conflated legal standards and agree with respondent's characterization that the "Court merely noted that mother's failure to participate did not mean the services were not reasonable." The juvenile court explained the reason mother was not utilizing services was based on her actions and not a reason outside her control. This was a relevant comment in the context of the analysis. A parent cannot successfully complain of the denial of a particular service when the only reason the service was not utilized was his or her voluntary avoidance. (See In re Julie M., supra, 69 Cal.App.4th at p. 48.) When a fully engaged parent is not making progress, an inference could be drawn that the services being offered are not reasonable. Here, the lack of progress by mother was not based on a lack of services but on a lack of her voluntary utilization of the services being offered.
The juvenile court did not err by improperly considering mother's engagement with services in its reasonableness finding.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
MEEHAN, J.