In re J.D. CA4/1

Filed 2/20/15 In re J.D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.D., Person Coming Under the
Juvenile Court Law.
D066649
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J515495B)
Plaintiff and Respondent,

v.

P.C.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kimberlee A.

Lagotta, Judge. Affirmed.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
 P.C. appeals from an order of the juvenile court on a juvenile dependency petition

filed by the San Diego Health and Human Services Agency (the Agency) on behalf of her

minor son, J.D. (born 2013). She contends the court erred when it terminated her

reunification services at the contested 12-month review hearing under Welfare and

Institutions Code section 366.21, subdivision (f). (Undesignated statutory references are

to the Welfare and Institutions Code.) She also argues the juvenile court erred (1) in

finding there was no substantial probability of returning J.D. to her custody by the 18-

month permanency review hearing and, (2) not extending her services because J.D.'s

father, Arthur D., was still receiving services to the 18-month permanency review

hearing. We reject her assertions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

P.C. began using drugs when she was 18 years of age, dropped out of high school

her senior year and has reportedly abused methamphetamine daily for 13 years. Between

1999 and 2013, P.C. suffered 88 arrests, most of which were drug-related crimes, but also

included domestic violence, immigration crimes, contempt, elder abuse, and child

cruelty. In 2004, P.C.'s older son, J.C., was removed from her care due to her

methamphetamine use and physical abuse, including burning J.C. with a cigarette and

biting his arm. P.C. did not successfully reunify with J.C. and her parental rights were

terminated in 2006.

In 2013, P.C. gave birth to J.D. She admitted drug use throughout her pregnancy

and not receiving prenatal care. P.C. has an active criminal protective order against her

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stemming from a domestic violence incident with Arthur. The parents, however,

admitted to having ongoing contact.

The Agency filed a petition on J.D.'s behalf alleging he was at substantial risk of

serious physical harm or illness as a result of his parents' mental illnesses, developmental

disability or substance abuse. J.D. was detained in a confidential licensed foster home.

At the June 2013 jurisdictional and dispositional hearing, the juvenile court sustained the

petition, officially removed J.D. from his parents' custody, placed him in a licensed foster

home, and offered reunification services to both parents. P.C. was to obtain a

psychological evaluation, a psychotropic medication evaluation, participate in a domestic

violence program, individual counseling, an outpatient substance abuse program, drug

testing, 12-step meetings, and parenting courses.

At the December 2013 six-month review hearing, the court found P.C. had made

some progress with her case plan and Arthur had made substantive progress in his case

plan. The court granted additional reunification services to the parents. At the

September 2014 12-month review hearing, the juvenile court found Arthur had made

substantive progress with his case plan, a substantial probability of return by the 18-

month review date, and granted him additional reunification services. The court found

the Agency had provided P.C. with reasonable services, but she had made minimal

progress in her case plan and a substantial probability did not exist that J.D. would be

returned by the 18-month review date. The court terminated P.C.'s reunification

services. P.C. timely appealed.

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 DISCUSSION

I

Reasonableness of Reunification Services

A. General Legal Principles

The purpose of a reunification plan is "to overcome the problem that led to

removal in the first place." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738,

1748.) "Each reunification plan must be appropriate to the particular individual and

based on the unique facts of that individual." (In re Misako R. (1991) 2 Cal.App.4th 538,

545 (Misako).) To support a finding of reasonable services, "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 . . . ." (In re Riva M. (1991)

235 Cal.App.3d 403, 414.)

"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." (Misako, supra, 2 Cal.App.4th at p. 547.) The remedy for failing to

offer or provide reasonable services is to extend the reunification period and continue

services. (In re Alvin R. (2003) 108 Cal.App.4th 962, 975.) When a party challenges the

finding that reasonable services were offered or provided, we determine whether there is

substantial evidence to support the court's finding by reviewing the evidence most

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favorable to the prevailing party and indulging in all legitimate and reasonable inferences

to uphold the court's ruling. (Misako, supra, at p. 545.)

B. Analysis

P.C. asserts the evidence does not support the juvenile court's finding that the

Agency provided her reasonable reunification services. She contends there is no showing

the Agency addressed her posttraumatic stress disorder (PTSD) and it improperly waited

until August 2014 – one month before the 12-month review hearing – to initiate a second

psychological evaluation. We address each contention.

1. PTSD diagnosis

In May 2013, a social worker expressed concern about P.C.'s mental health based

on claims that she had been raped, including a statement that " 'Michael Harper put me on

a love swing and I was raped three or four times.' " The social worker asked that P.C. be

screened by a mental health professional. In October 2013, she told the psychologist who

conducted her psychological evaluation that "she had been raped at least three times in

her life" at ages 18, 20 and 27, but she never reported the rapes because she was too "

'embarrassed.' " The psychologist diagnosed her with PTSD and suggested she should

receive "trauma-focused psychotherapy to help her manage the emotional symptoms and

distress associated with PTSD." The psychologist noted that P.C. "present[ed] as child-

like in her understanding of the world" and displayed "poor insight, avoidance, and

tendency toward debilitating changes in mood and increases in anxiety." He opined that

if P.C.'s PTSD could be treated successfully "she should be able to parent safely and

benefit from reunification services."

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 P.C. argues the Agency failed to consider her PTSD diagnosis in designing her

services and this failure impeded her ability to fully benefit from all of her other services.

The Agency contends P.C. forfeited the right to raise this argument on appeal by failing

to raise it below and explicitly arguing the opposite at trial.

P.C. has not pointed us to anything in the record showing her counsel ever argued

to the juvenile court that she was not receiving trauma-focused psychotherapy to address

her PTSD diagnosis and, accordingly, her services were not reasonable. During closing

argument, P.C.'s trial counsel reminded the juvenile court that the professional service

providers disagreed about the validity of P.C.'s PTSD diagnosis, stressing that a second

psychological evaluation should have been ordered when the disagreement arose

regarding the differing diagnoses. While counsel argued P.C. did not receive reasonable

services, she never asserted the services were deficient because they did not address her

PTSD diagnosis.

Generally, a party is precluded from urging on appeal any point not raised in the

trial court. (In re Riva M., supra, 235 Cal.App.3d at pp. 411-412.) Although forfeiture is

not automatic, we should exercise our discretion to excuse it in rare instances only,

particularly in dependency cases. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The record

here shows P.C. forfeited the issue by not raising it below. Even if the issue was not

forfeited, we would reject it as not supported by the record.

P.C.'s initial case plan, dated June 2013, noted that one of her specific goals for

individual therapy was to "address past trauma." In October 2013, a psychologist

evaluated P.C. and made the PTSD diagnosis, however, he did not issue his report until

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January 2014. The social worker testified that upon receiving the report she provided a

copy to P.C.'s treating therapist and discussed the report with the therapist.

Although P.C.'s therapist disagreed with the PTSD diagnosis, the social worker

testified that the therapist met with P.C. on a weekly basis and was working with P.C. on

her coping skills and implementing all the information P.C. was receiving in her various

services and programs. The social worker also discussed with P.C.'s therapist the

psychologist's recommendation that P.C. receive " 'sensitive and competent trauma

focused treatment and parenting education' " and noted this was the treatment the

therapist was providing to P.C.

P.C. also participated in substance abuse services from January 2014 to May 2014.

P.C.'s care coordinator for this program focused on addressing P.C.'s "mental health in

terms of PTSD" as a result of P.C.'s rapes. In a status review report dated June 2014, the

social worker recommended that P.C. be offered a trauma-focused psychotherapy and

noted this was in progress. In the July 2014 status review report, the social worker noted

the psychologist's recommendations and that P.C. was receiving trauma-focused

psychotherapy with her individual therapist. At that time, P.C. started missing sessions

with the therapist and by August 2014, the therapist informed P.C. her therapy might be

terminated if she missed any more sessions.

The social worker also addressed the psychological evaluator's recommendation

for trauma-focused parenting education with P.C.'s in-home parenting provider. They

discussed breaking down and simplifying the curriculum for P.C. The social worker also

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kept in touch with the parenting provider about her concerns, so the provider could

further address age milestones and age appropriate behaviors with P.C.

This record does not support P.C.'s contention that the Agency failed to consider

her PTSD diagnosis in designing her services. Rather, the record shows P.C. received

trauma-focused psychotherapy as recommended by the psychologist evaluator.

Moreover, P.C.'s argument ignores other evidence supporting the Agency's

recommendation to terminate services, such as P.C.'s resistance to using medication to

address her mental health issues, continued exhibition of obsessive and disoriented

thought processes, lack of progress in her domestic violence program, inability to

demonstrate appropriate parenting skills, and her ongoing contact with Arthur in violation

of the criminal protective order.

2. Second psychological evaluation

P.C. asserts the Agency improperly waited until August 2014 – one month before

the 12-month review hearing – to initiate a second psychological evaluation. She

suggests that had a second psychological assessment been conducted earlier the Agency

would have been able to better identify her mental health issues and provide services

appropriate to her mental health diagnosis. We reject this assertion as speculative.

First, P.C. has not shown that the Agency improperly waited to initiate a second

psychological evaluation. The psychological evaluator opined that P.C. should undergo a

second psychological evaluation in six to eight months to reassess her treatment needs

and evaluate whether she met the diagnostic criteria for bipolar disorder. Although the

evaluation was conducted in October 2013, a report was not generated until January

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2014. The social worker submitted a request for a second psychological evaluation in

August 2014, 10 months after P.C. underwent her first evaluation and seven months after

the date of the first report.

Additionally, P.C. provided no argument showing how a second psychological

evaluation would have changed the type of services she received. P.C.'s initial case plan

identified her service objectives as: consistently, appropriately and adequately parenting

her child; complying with medical or psychological treatment; maintaining a relationship

with her child by following the conditions of the visitation plan; drug testing, staying free

from illegal drugs and showing an ability to live free from drug dependency; and

expressing anger appropriately and not acting negatively on impulses. To help her meet

these objectives, the Agency provided a domestic violence program, general counseling,

outpatient substance abuse program, substance abuse testing, parenting education, and

they recommended a psychotropic medication evaluation, and psychological testing.

P.C.'s counsel acknowledged that her client participated in an "astounding amount

of services," but argued to the juvenile court that P.C. did not resolve her protective

issues because the services provided were not reasonable. Counsel also argued that had a

second psychological evaluation been ordered earlier there could have been new

suggestions on services to resolve her client's protective and mental health issues. As

already noted, however, P.C.'s therapist was working with her on her coping skills and

implementing all the information P.C. was receiving in her various services and

programs. It is highly speculative that additional services would have resolved P.C.'s

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protective and mental health issues. Substantial evidence supports the juvenile court's

finding that reasonable services were offered or provided to P.C.

II

Termination of Reunification Services

P.C. asserts the evidence does not support the juvenile court's order terminating

her reunification services at the 12-month review hearing. She argues the juvenile court

erred (1) in finding there was no substantial probability of returning J.D. to her custody

by the 18-month permanency review hearing, and (2) not extending her services because

Arthur would be receiving services to the 18-month permanency review hearing.

Whereas here, a juvenile court finds it would be detrimental to return the child

home at the 12-month permanency hearing, the court may continue services to the 18-

month date "if it finds that there is a substantial probability that the child will be returned

to the [parent's] physical custody . . . and safely maintained in the home within the

extended period of time . . . ." (§§ 366.21, subd. (g)(1), 361.5, subd. (a)(3); In re K.L.

(2012) 210 Cal.App.4th 632, 641-642.) This finding is proper only if the parent has:

(1) consistently and regularly contacted and visited the child; (2) made significant

progress in resolving the problems that led to the removal of the child; and

(3) demonstrated the capacity and ability to complete the objectives of the treatment plan

and to provide for the child's safety, protection, physical and emotional health, and

special needs. (§ 366.21, subd. (g)(1)(A)-(C).) These findings have been characterized

as establishing "a very high hurdle for continuing the case beyond 12 months." (A.H. v.

Superior Court (2010) 182 Cal.App.4th 1050, 1060.) We review the juvenile court's

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finding on this issue for substantial evidence. (Kevin R. v. Superior Court (2010)

191 Cal.App.4th 676, 688.)

The purpose of reunification visitation is to "maintain ties between the

parent . . . and the child, and to provide information relevant to deciding if, and when, to

return a child to the custody of his or her parent . . . ." (§ 362.1, subd. (a).) The juvenile

court found P.C. had not maintained regular and consistent contact and visitation with

J.D., noting that her visitation had been reduced to once a week and she had missed visits.

P.C. admits her visitation had been reduced from twice a week to once a week due to her

absence and missed visits. Nonetheless, she contends the facts show she regularly visited

J.D. throughout her case and there were no extensive gaps of time where she stopped

visitation.

Initially, P.C. was allowed two, two-hour supervised visits with J.D. each week.

On August 25, 2014, less than two weeks before the contested 12-month hearing, her

visitation was reduced to one, two-hour visit because of "no shows and cancelled visits."

Prior to that reduction, P.C. had expressed concern during a visit that J.D. did not seem to

know her. This evidence supported the juvenile court's finding that P.C.'s visitation was

not regular and consistent. P.C. argues there were never any "extensive gaps" of time

where she stopped visitation. We are not persuaded by this argument given J.D.'s tender

age and P.C.'s own realization that J.D. did not seem to know her.

P.C. asserts no substantial evidence showed she failed to make significant progress

in resolving the problems that led to J.D.'s removal. She cites her negative drug tests and

participation in individual therapy and domestic violence sessions. She also notes her

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completion of a dual diagnosis substance abuse treatment program, an in-home parenting

course, a psychological evaluation, and a psychotropic medication evaluation. She

argues this evidence demonstrates her capacity and ability to complete the objectives of

her treatment plan and successfully parent J.D.

We acknowledge P.C.'s participation and completion of portions of her case plan

and commend her for positively addressing her long-standing drug addiction. This is a

major step in furthering her well-being. The evidence must also show, however, that she

has made significant progress in resolving the problems that led to J.D.'s removal and

demonstrate she can provide for his safety, protection, physical and emotional health, and

special needs. (§ 366.21, subd. (g)(1)(B), (C).) On these issues the juvenile court found

that while P.C. had completed portions of her case plan, her progress was not consistent

or substantive. It found P.C. lacked insight into the issues that brought her and her child

before the court and continued to blame others for these issues. The court expressed

concern that P.C. failed to continue with medication, finding this was "crucial" to her

stability and a finding that J.D. would be safe and well cared for in P.C.'s care. The

juvenile court also expressed concern that P.C. continues to exhibit disoriented thoughts

and statements "which take away from her ability to reasonably deal with [J.D.] in a way

that the court would believe she is capable of keeping him safe, protecting him, and

caring for him, as a parent should." Substantial evidence supported these findings.

At trial, the social worker testified that P.C. continued to lack insight regarding the

issues that brought J.D. before the court, explaining that P.C. did not take responsibility

for her actions and was unable to understand why J.D. needed to be removed from her

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care. Additionally, throughout the reunification period, P.C. displayed thought disorders.

P.C.'s individual therapist initially noted that while P.C. could be focused at times, she

also presented obsessive, illogical and paranoid thoughts. After nine months of therapy,

the therapist reported that P.C. continued to exhibit paranoid and obsessive thinking. The

therapist wrote that P.C. "is obsessed with her history of rapes and abuses, prejudices,

unfair treatment by the 'system,' how Asian people live off welfare and she can't, hates

her mother, her sister. Her tirades go from subject to subject, she has difficulty focusing

on how she can improve her life and have her son returned to her." Despite these thought

disorders, P.C. did not believe she needed therapy or medication for any of her

psychological symptoms.

The court-appointed special advocate expressed concern that despite the services

P.C. received, her interactions with J.D. reveal "she still does not fully understand what is

expected of [J.D.] at this stage of development and continues to make inappropriate

comments towards him." Critically, despite having completed all three modules of her

parenting education program in May 2014, P.C.'s therapist noted in her August 2014

report that P.C. "appears lacking in knowledge about the basics of a child's

developmental stages and normal growth." P.C.'s therapist also believed that P.C.'s

mental problems were concerning as they "seem[ed] to dictate her perceptions of events,

her emotional reactivity, and lead to inappropriate behaviors." Notes from visitation

monitors supported these observations. During one visit P.C. asked J.D. why he was mad

at her after J.D. bumped his head and started crying. During another visit, P.C. was

overheard asking J.D. if he knew how to French kiss.

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 This evidence demonstrated P.C. had not made sufficient progress in resolving the

problems that led to J.D.'s removal. This evidence also supported the juvenile court's

conclusion that P.C. did not have the ability to manage and care for J.D. in a parental

manner. Notably, when the court made its decision to not extend services at the 12–

month hearing, the 18–month date was only two and a half months away. The juvenile

court could have reasonably concluded that continuing to offer services to P.C. amounted

to an unwise use of governmental resources. (In re Alanna A. (2005) 135 Cal.App.4th

555, 566 (Alanna).)

Finally, we reject P.C.'s contention that her services should have been extended

because Arthur would be receiving services to the 18-month permanency review hearing.

Success or failure in reunification is assessed separately as to each parent. (In re Jesse W.

(2007) 157 Cal.App.4th 49, 60.) We also reject P.C.'s assertion that the Alanna case

supports her argument for extension of services as the mother in Alanna had her services

extended to the 18-month date despite her shortcomings in completing her case plan.

While P.C. is correct that the juvenile court in Alanna extended the mother's services to

the 18-month date even though the Agency found her prognosis for reunification was

poor, the father was the appellant in Alanna and the mother's extension of services was

not at issue. (Alanna, supra, 135 Cal.App.4th at p. 561.) A case is not authority for a

proposition it does not address. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)

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 DISPOSITION

The order is affirmed.

MCINTYRE, J.

WE CONCUR:

MCDONALD, Acting P. J.

IRION, J.

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