San Diego Cnty. Health & Human Servs. Agency v. M.F. (In re M.F.)

32 Cal.App.5th 1

243 Cal.Rptr.3d 510

IN RE M.F., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.M.F., Minor and Appellant.

N.W., et al., Defendants and Respondents.

D074260

Court of Appeal, Fourth District, Division 1, California.

Filed January 11, 2019

Neale B. Gold, under appointment by the Court of Appeal, for Minor and Appellant.

Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Respondent N.W.

Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Respondent Stephen C.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.

NARES, J.

Minor M.F. appeals from orders at the 12-month review hearing under Welfare and Institutions Code section 366.21, subdivision (f)¹ directing the Agency to extend the reunification period for an additional six-month period and setting the 18-month review hearing more than 23 months from the date he first entered foster care. M.F. challenges the juvenile court's finding the San Diego County Health and Human Services Agency (Agency) did not provide reasonable services to his father. He also contends the juvenile court lacks authority to order continued services beyond the 18-month review date absent special circumstances not present here.

We conclude there is substantial evidence to support the juvenile court's finding that reasonable services were not provided or offered to the parent. We further conclude the juvenile court is authorized to extend reunification services up to the 24-month review date if the court determines that reasonable services were not provided or offered to the parent. Because the statutory framework prohibits setting a section 366.26 hearing at the 12-month and 18-month review hearing when reasonable services have not been provided or offered, the juvenile court is not required to consider the need for a continuance under section 352 when extending services. We affirm the findings and orders.

FACTUAL AND PROCEDURAL BACKGROUND

M.F. is the son of Nicole W. and Stephen C. The Agency detained M.F. in protective custody on December 20, 2016, after he tested positive for methamphetamine and other drugs at birth. Nicole's parental rights to M.F.'s two older half siblings had been terminated after she did not mitigate her substance abuse problems.²

In January 2017, Nicole was arrested for vandalism after she broke Stephen's bedroom window during an argument. Nicole and Stephen denied they were in a relationship. Stephen said he was willing to care for M.F. but first needed to find suitable housing and childcare. Stephen had health issues, including heart problems, leg pain, severe asthma, and high blood pressure. At times, he had difficulty walking even short distances. The Agency detained M.F. in the home of the paternal grandmother (caregiver) of one of his half siblings.

At the dispositional hearing, the juvenile court found that Nicole was not entitled to reunification services. The court ordered the Agency to provide services to Stephen. Stephen's reunification case plan required him to complete parenting education, attend Al-Anon codependency groups, and participate in services provided by Cultural Brokers. The Agency also asked that Stephen attend M.F.'s medical and developmental appointments.

Stephen regularly participated in services at Cultural Brokers. They identified his need for suitable housing as the primary issue preventing reunification and provided housing referrals and other resources. At the end of March, Stephen was arrested on domestic violence charges for slapping Nicole on the cheek.

Stephen regularly visited M.F., who was a happy, healthy and easygoing baby. In July, Stephen told the social worker he forgot to attend Al-Anon and said he would find a group. In August, the caregiver reported that Stephen told her that Nicole had stabbed him during an argument. Stephen would not discuss the incident with the social worker.

The contested six-month review hearing was held on September 26, 2017. The Agency recommended the juvenile court terminate Stephen's reunification services and set a section 366.26 hearing. The social worker believed that Stephen was not able to protect M.F. from harm from Nicole, who continued to display dangerous and violent behavior.

Cultural Brokers reported that Stephen had completed 10 of 17 parenting classes. He continued to look for appropriate housing for himself and M.F. Although the Agency's referral was closed, Cultural Brokers continued to provide Stephen with extra accommodations assistance because he was "comprehension impaired." The social worker reported that Stephen attended three Al-Anon classes in September.

The juvenile court found that Stephen had made some progress with his case plan but significant protective issues remained. Stephen was reticent to acknowledge the nature of his codependent relationship with Nicole. The court said Stephen needed to address codependency, domestic violence and communication issues, and ordered the Agency to submit a revised case plan and provide therapeutic services to Stephen.

The social worker provided a list of 44 San Diego County TERM³ therapists to Stephen on October 17. The social worker, Cultural Brokers, and Stephen agreed the best practice was to have Stephen engage in therapy with an African American therapist.

The social worker gave Stephen the names of four African American therapists (short list).

A new social worker was assigned to the case in late October. He did not discuss therapy services with Stephen.

At some point in time not clear in the record, Stephen began having day-long unsupervised visits with M.F. M.F.'s court-appointed special advocate (CASA) reported that overnight visits were scheduled to begin in late February 2018, with longer visits to follow. Stephen was always excited to see M.F. and he was very attentive and gentle with his son. M.F. seemed to enjoy spending time with his father. Stephen and Nicole had been living together but she recently moved away. Nicole had visited M.F. only once in eight months. She was arrested in January 2018 on charges of possession of methamphetamine.

In its initial report prepared for the 12-month review hearing, the Agency recommended the juvenile court extend reunification services to Stephen for an additional six months. The Agency planned to expand Stephen's unsupervised visits with M.F. Stephen had made good progress with his service goals. His communication with the caregiver was good. He completed his parenting education and the required number of Al-Anon classes and was receiving ongoing support services from Cultural Brokers. Stephen's home was clean and appropriate for M.F. In-home family preservation services (IFPP), designed to help Stephen identify unsafe behaviors by the mother, were in place in anticipation of M.F.'s 60-day extended visit with Stephen. The social worker believed the prognosis for returning M.F. to his father's care by the 18-month review date was good. Stephen was demonstrating a strong commitment to his son.

At a meeting on March 5 to discuss implementing M.F.'s overnight and extended visitation with Stephen, the caregiver presented a public assistance application for utility services at Stephen's home in Nicole's name. The caregiver said she had discovered the application in M.F.'s diaper bag after his last visit with Stephen on March 2. Stephen appeared confused and said he had no knowledge of the application. He denied Nicole was living with him. On investigation, the social worker determined that Nicole did not appear to be living at Stephen's home.

On March 19, the Agency changed its recommendation from reunification to termination of services and referral to a section 366.26 hearing. When the social worker met with Stephen at his residence on March 13, the electricity was off. Stephen could not provide a lease or rental agreement. The social worker received a cancellation notice for the IFPP referral. Stephen told the social worker he and M.F. saw Nicole at a taco shop near his house. He allowed Nicole to see M.F. because they were in a public place and he wanted M.F. to know his mother. The Agency believed Stephen was allowing Nicole to stay with him. The social worker said Nicole's untreated substance abuse and the parents' history of domestic violence placed M.F. at risk of physical and emotional harm or death.

In an addendum report, the social worker informed the court that support services were being provided to the caregiver. The caregiver appeared to be overwhelmed caring for M.F. and his brother, who had behavioral challenges. The house was in disarray and the children were dirty. The social worker informed the caregiver it would consider removing M.F. from her care if the situation did not improve.

The contested 12-month review hearing was heard on May 30 and June 5, 2018. Stephen testified he did not attend M.F.'s medical appointments because he did not learn about them until after the fact. He completed 16 weeks at Al-Anon. The social worker said he could continue with Al-Anon if he wanted to do so. Stephen attended for another month. With assistance from Cultural Brokers, Stephen tried to obtain services from a TERM therapist. He did not receive individual therapy because he could not find a therapist. When he and M.F. saw Nicole at a taco shop, he reported the contact, which lasted less than five minutes, to the social worker. Nicole never visited him when he had M.F. in his care. Because of Nicole's drug use, he would never allow M.F. to be alone with Nicole or allow her to spend the night at his home.

Carol B., a psychiatric nurse, ran the family support program at Cultural Brokers. She said Stephen completed 17 parenting classes and had almost completed a second, voluntary, parenting program. Cultural Brokers did not offer individual therapy....