M.A. v. Superior Court CA1/1 filed
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Filed 4/11/11 M.A. v. Superior Court CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE M.A., Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, A130800 Respondent; (Alameda County Super. Ct. No. 177875-02) ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al. Real Parties in Interest. M.A. (Mother) seeks extraordinary relief from an order of the Alameda County Superior Court, Juvenile Division, entered December 16, 2010, that terminated her reunification services and set a hearing under Welfare and Institutions Code section 366.261 to select a permanent plan for the minor P.A. (born April 1994). Mother challenges a finding in that order, that the Alameda County Social Services Agency (Agency) offered or provided her with reasonable services, claiming the Agency unreasonably failed to arrange for visitation between her and the minor. She also contends the court erred in admitting a psychological evaluation of the minor into 1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified. 1 evidence. As discussed below, we conclude that substantial evidence supports the finding of reasonable services, and that the juvenile court did not abuse its discretion in ruling the psychological evaluation admissible. Accordingly, we deny Mother s petition for an extraordinary writ on the merits.2 BACKGROUND Mother and D.A. (Father) were divorced in 1999, and Father was awarded custody of the minor the following year. It appears there had been a referral concerning sexual abuse of the minor by the maternal grandfather, with whom Mother had been living, and that Mother s loss of custody was due at least in part to her failure to obtain a restraining order against the maternal grandfather and otherwise follow through with services, including therapy for the minor. In August 2009, the minor then 15 years of age was living with Father and T.A. (Stepmother). Stepmother reportedly learned, for the first time that month, that the minor had been subjected to sexual abuse by Father. Stepmother and the minor left Father s residence at that time, and went to live with nonrelated extended family members. The Agency initiated this proceeding on September 4, 2009. Its petition alleged primarily that Father had sexually abused the minor since she was approximately seven years of age, and had permitted another adult male living in the home to abuse the minor sexually. (§ 300, subds. (b) & (d).) With regard to Mother, the petition stated she had not provided or cared for the minor since her loss of custody, and had signed a Voluntary Relinquishment of Custody on September 1, 2009, which included an acknowledgment that Mother did not believe she could presently provide adequate care for the minor. (§ 300, subd. (g).) 2 Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).) 2 The juvenile court formally ordered the minor s detention on September 8, 2009. In an interview conducted that same day, Mother declined to comment about the minor s disclosures of sexual abuse by Father. She told a case worker she wanted the minor to be placed either in her custody or with maternal relatives. Mother admitted, however, that her own housing and employment had been unstable for the past few months. At that time, she was living temporarily in a motel with her current husband and their two children, the minor s younger half siblings. Meanwhile, the minor expressed a desire to remain with Stepmother, whom she described as a big part of her support system, and the person with whom she felt most comfortable. The minor told the case worker she did not have a good relationship with [Mother], having been out of her care since she was two years of age. At the conclusion of the jurisdictional/dispositional hearing, on December 17, 2009, the juvenile court sustained the allegations concerning Father, under section 300, subdivisions (b) and (d), but struck the allegation against Mother under section 300, subdivision (g). The court ordered the minor removed from Father s custody based on findings under section 361, subdivision (c)(1), (3) and (4). It further determined the minor s placement with Mother as the noncustodial parent would be detrimental to the minor s safety, protection, and physical or emotional well-being. (See § 361.2, subd. (a).) The court placed the minor in the Agency s custody, approving her placement with nonrelated extended family members. The juvenile court ordered reunification services for both parents and directed them to cooperate with the case worker and participate in their case plans. Mother s case plan called for her to engage in individual counseling and follow the recommendations of the therapist, participate in family counseling once this was assessed to be appropriate by the minor s therapist, and complete a parenting education program. One of Mother s specific objectives was to [l]isten to and show acceptance and support of the disclosure made by [the minor]. With regard to visitation, the juvenile court ordered the Agency to arrange for visitation between [the minor] and her mother . . . as frequently as possible consistent 3 with [the minor s] well-being and taking into account [the minor s] input as to that visitation issue. This directive essentially restated one of the Agency s recommended dispositional orders, which the court adopted in its minute order that the Agency was to arrange for visitation . . . as frequently as possible consistent with the child s wellbeing. 3 (See § 362.1, subd. (a)(1)(A).) The Agency report prepared for the six-month status review hearing (six-month hearing) recommended that reunification services be continued. Signed and filed on May 24, 2010, the report indicated that Mother s progress with her case plan had been minimal. She had been given two referrals, but had not yet begun to engage in individual therapy, and had completed nine of 12 parenting education classes. Mother had also not participated in family counseling because minor s counsel had not yet assessed family therapy to be appropriate. Mother reportedly was not being supportive of [the minor s] disclosures of sexual abuse, contrary to one of her case plan objectives. As for the minor, she had refuse[d] visitation with either parent, but was working with her therapist on this, and the case worker stated it was the Agency s goal . . . to initiate family therapy during this next reporting period, with the minor and Mother and possibly Father. On June 2, 2010, Mother s counsel stated concern that there had not been any visits at all between the minor and Mother during the reporting period, and suggested a contested hearing on the issue. The juvenile court agreed, and set a contested six-month hearing on the issue whether the parents had not received reasonable services because no visitation had occurred. Minor s counsel then requested that the court appoint a 3 The jurisdictional/dispositional minute order also set out a directive that the Agency was to arrange for visitation between the minor and mother. In Mother s view, this language is controlling and required the Agency to arrange visitation as to her without any qualification or unconditionally. However, the more detailed order recited by the court in the reporter s transcript controls for purposes of our review. (See People v. Smith (1983) 33 Cal.3d 596, 599 [when the record is in conflict, that part will prevail that because of its origin and nature or otherwise, is entitled to greater credence ].) 4 psychologist to evaluate the minor to determine the appropriateness of visitation with her parents at this time. The contested six-month hearing began on August 9, 2010, at which time the Agency submitted the above-mentioned six-month status report, as well as a psychological evaluation of the minor. Mother s counsel objected to admission of the minor s evaluation, arguing among other things that it was not relevant to the six-month period under review, and because the evaluation was submitted after the discovery cut-off date, he had no opportunity to subpoena the evaluator for examination. The juvenile court admitted the minor s evaluation, and then granted a recess to allow counsel an opportunity to review it prior to the commencement of witness testimony.4 The six-month hearing continued a week later on August 17, 2010. At the end of the session that day, counsel for the Agency requested that the continued hearing be regarded as the 12-month permanency hearing (12-month hearing), for which the Agency would prepare and submit a report. The court accordingly continued the matter to what would also be the 12-month hearing date. 5 The Agency s report for the 12-month hearing, completed on October 5, 2010 and filed the following day, recommended that the juvenile court terminate reunification services for both parents. The report noted that Mother had sought and been given an additional referral for individual therapy, but still had not commenced this component of her case plan. She also stopped going to parenting education in April 2010, after completing nine of the 12 required classes. Although Mother expressed a willingness to participate in her third component, family therapy, the minor continued to refuse to participate, and the case worker deemed it against the minor s best interests to force her 4 The minute order for August 9, 2010, indicated the court had called a recess for counsel to review evidence submitted by the Agency, but did not reflect the court s ruling admitting the minor s psychological evaluation. 5 The 12-month hearing must be held no later than 12 months after the date the minor entered foster care, as defined by section 361.49. (§ 366.21, subd. (f), 1st par.) In this instance, the date the minor entered foster care was November 1, 2009, or 60 days after her initial removal from Father s physical custody. (See § 361.49.) 5 to do so. Further, Mother continue[d] to report that she is unsure if she believes [the minor s] disclosures concerning Father s sexual abuse, contrary to one of her case plan objectives. With respect to the minor, the report stated she continued to refuse visitation with either parent during this reporting period. Her individual therapist noted there had been no change in the minor s position on this issue. The report further noted the minor s psychological evaluation had concluded there should be no visitation with Father, and that forced visitation with [Mother] would be extremely counterproductive and harmful to the minor. 6 In an addendum report, signed November 18, 2010, and filed four days later, the case worker stated the minor continued to state she did not want contact with either parent. The minor explained she did not want to see Mother because Mother did not believe [the minor s] disclosure of sexual abuse. The hearing now in effect a combined six-month and 12-month hearing continued on November 30, 2010. Mother s counsel indicated at the outset that she was contesting the reasonableness of services for both reporting periods. The Agency s counsel introduced its 12-month report, the addendum report and, again, the minor s psychological evaluation. (See fn. 4, ante.) Counsel for Mother again objected to the admission of the evaluation, this time on grounds of hearsay, the fact that the evaluator was not present for cross-examination, and because the evaluation was not generated during the reporting period in question. The juvenile court overruled these objections and again admitted the minor s evaluation into evidence. On December 16, 2010, the juvenile court concluded the combined six-month and 12-month hearing. At that time, the court found that the Agency had offered or provided 6 The evaluation itself, completed August 5, 2010, went on to state that forced visitation with Mother would exacerbate the minor s post-traumatic stress disorder and chronic depression (dysthymia), especially since [the minor] sees [Mother] as identifying with and aligning herself with [Father]. 6 reasonable services, terminated reunification services to both parents, and set the matter for a hearing to implement a permanent plan pursuant to section 366.26. Mother s petition followed. (§ 366.26, subd. (l).) DISCUSSION A. Admission of the Minor s Psychological Evaluation Mother contends the juvenile court erred in admitting the minor s psychological evaluation. She argues there was no foundation laid as to the evaluator s qualifications who she suggests was a hired gun for the Agency and the Agency also failed to make the evaluator available for cross-examination. She also claims the court should have excluded the evaluation on hearsay grounds, and because it was completed after the first six-month reporting period, on the ground that it was not relevant to the issue whether the Agency should have arranged for visitation to occur during that reporting period. Generally, we review a ruling admitting evidence for abuse of discretion, and will not disturb the ruling unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Lewis (2009) 46 Cal.4th 1255, 1286; see also Evid. Code, § 353.) The psychological evaluation was filed under cover of the Agency s assigned case worker on August 6, 2010. The juvenile court, having ordered the evaluation, was entitled to receive and consider it. (See Welf. & Inst. Code, § 281; Evid. Code, § 730.) Any question of the evaluator s qualifications, or partiality, was one easily resolved on the objection of any party. (See Evid. Code, § 720, subd. (a).) Mother made no such objection, and under these circumstances we deem the objection forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Similarly, any party is entitled to call and examine a court-appointed expert. (Evid. Code, § 732.) Mother was present when the court first ordered the evaluation on June 2, 2010. If she did not have sufficient opportunity to call the evaluator as a witness when the Agency first submitted its report on August 9, 2010, she had ample time to do so afterward, prior to her objection on November 30, 2010, that the Agency had not made the evaluator available. Mother also had ample time to arrange to call and examine the evaluator or the minor concerning statements included in the 7 evaluation. We find her general hearsay objection unpersuasive. (See In re Jose M. (1988) 206 Cal.App.3d 1098, 1105.) Finally, even if we assume the evaluation had no relevance to the services offered or provided by the Agency during the first six-month reporting period, it was first submitted on August 9, 2010, well before the end of the second reporting period, and well before the Agency submitted its second, 12-month review report. As such, it was relevant on the issue whether the Agency had provided reasonable services during the second reporting period. Nothing in the record indicates the juvenile court considered the evaluation for an improper purpose, and, as discussed further below, we reject Mother s suggestion that the court s admission of the evaluation reflected some sort of improper delegation of its authority regarding visitation. We conclude there was no abuse of discretion in admitting the minor s psychological evaluation. B. Reasonable Services If a child is not returned to his or his parent s custody at the conclusion of the 12month hearing, the juvenile court must order one of three statutory options. (§ 366.21, subd. (g).) It may order a hearing under section 366.26, but only if there is clear and convincing evidence that reasonable services have been provided or offered to the parents . . . . (§ 366.21, subd. (g)(2).) As noted above, the court made that requisite finding before setting the section 366.26 hearing, that the Agency had offered or provided reasonable services to the parents. Mother contends this finding of reasonable services as to her is not supported by the evidence and erroneous. Specifically, she urges the Agency completely failed to provide [her] and the minor with any time together. Mother claims the order for visitation, made at the dispositional hearing, obligated the Agency to facilitate visits, and gave it no discretion whether or not visits were to occur. In reviewing this finding, our sole task is to determine whether substantial evidence shows that the Agency made a good faith effort to provide reasonable services. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) This review standard applies even 8 though the trial court was required to utilize the higher standard of clear and convincing evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75 (Jasmine C.).) In applying it, we view the evidence in the light most favorable to the juvenile court s ruling, resolving conflicts and indulging all reasonable inferences in favor of the finding. (See In re Julie M. (1999) 69 Cal.App.4th 41, 46 (Julie M.).) We do not reweigh the evidence. (Jasmine C., supra, at p. 75.) Services may be deemed reasonable when the case plan has identified the problems leading to the loss of custody, the Agency has offered services designed to remedy those problems, has maintained reasonable contact with the parent, and has made reasonable efforts to assist the parent in areas in which compliance has proven to be difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Here, Mother objects only to the Agency s failure to facilitate visitation between herself and the minor, and we have accordingly focused on the evidence relevant to this issue in our summary above of the reports and the evaluation submitted by the Agency. We additionally note certain portions of Mother s testimony. With respect to the first six-month review period, Mother testified on August 9, 2010. On cross-examination she agreed she had learned early on in this proceeding, from the minor herself (during an encounter at a team decision meeting) that the minor did not want visitation with Mother, and Mother was pretty clear as to that being the minor s continuing position. When asked if she understood that the reason the minor did not want to visit her was because she felt Mother did not support her disclosure of sexual abuse, Mother replied, Yes, although she also stated she had never said either that she did believe or did not believe the minor. Mother conceded she did believe [her] daughter need[ed] to know if I do believe her or not, but Mother was still in between. With respect to the second period under review, Mother testified on November 30, 2010. She said she finally began the individual therapy component of her case plan on October 10, 2010. She further stated that she now believed her daughter s disclosures of sexual abuse. When later asked about her feelings towards her daughter, Mother testified she felt mad and frustrated, and the minor had been brainwashed. 9 We first note that the visitation order, calling for visitation as frequently as possible consistent with the minor s well-being, and considering the minor s input, conferred only a limited discretion on the Agency to determine when it was appropriate to begin visitation. In other words, it meant the minor should not be forced to visit [Mother] against [her] will, but in no way suggested the minor was authorized to do anything more than express her desire in this regard. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.) The nature of the dependency scheme and the interests of judicial economy require the delegation of some quasi-adjudicatory powers to the agency dedicated to the dependent child s welfare, and such delegation is permissible so long as it is limited and subject to supervision, as it was here. (Ibid.) This case is, therefore, distinguishable from those in which a juvenile court impermissibly delegated all its adjudicatory power regarding visitation to a private therapist, to a dependent minor, or to the social services agency. (See, e.g., Julie M., supra, 69 Cal.App.4th at pp. 43, 46, 48 51.) It does not appear the Agency, in this instance, exceeded its limited discretion. It was aware of a previous referral in which Mother had disregarded an allegation of sexual abuse by the minor s maternal grandfather, one that contributed to her loss of the minor s custody. The Agency was also aware of Mother s refusal to support her daughter s disclosures regarding Father s sexual abuse, and that this was the reason the minor did not want to see Mother. Reports by the minor and her therapist were consistent with the Agency s implicit assessment that it would be detrimental to force visitation under such circumstances. Mother s testimony on August 9, 2010, was also consistent with the Agency assessment, to the extent she said she was still unsure whether she believed her daughter, despite her awareness her daughter did not want to visit her for this reason, and despite her awareness that her daughter was entitled to know whether Mother believed her or not. Mother stated, finally, that she believed her daughter s disclosures when she testified again on November 30, 2010, although even this breakthrough was somewhat undermined by her view that the minor had been brainwashed. The fact that Mother 10 had only begun the individual therapy component of her case plan the previous month begs the question whether she might have arrived at this crucial objective of reunification at some earlier time, had she not delayed engaging in therapy for some 10 months. In our view, the foregoing evidence viewed in the light most favorable to the juvenile court s ruling provides substantial support for the finding that the Agency, in these specific circumstances involving a sexually abused child, offered or provided reasonable services notwithstanding its decision not to force the minor against her will to engage in visitation with Mother. The issue is not whether the agency could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We are not persuaded otherwise by the authorities cited by Mother. The decision in In re Alvin R. (2003) 108 Cal.App.4th 962, for example, involved a father who did everything possible under his case plan, whereas the agency failed to make reasonable efforts to get the minor in therapy which was essential for visitation through family therapy to occur. (Id. at pp. 965 969, 973 974.) Here, the Agency facilitated the minor s individual therapy and expressed its goal of moving from there to family therapy. Mother failed to participate in individual therapy until nearly the end of the 12-month reporting period. The case of In re Brittany S. (1993) 17 Cal.App.4th 1399 is similarly distinguishable on its facts. We conclude substantial evidence supports the juvenile court s finding that the Agency offered or provided Mother with reasonable services. DISPOSITION The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Ct., rules 8.454(a), 8.490(b)(3).) 11 ______________________ Marchiano, P.J. We concur: ______________________ Margulies, J. ______________________ Dondero, J. 12
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