Opinion
F051528
5-4-2007
In re A.M., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. R. M. et al., Defendants and Appellants.
Gregory S. Walston, for Defendants and Appellants. Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Cornell, J., and Kane, J.
INTRODUCTION
R. M. and E. M., appeal from orders of the juvenile court denying their request under Welfare and Institutions Code section 388 to modify previous orders terminating reunification services based on alleged change of circumstances. At the same hearing, the juvenile court terminated appellants parental rights pursuant to section 366.26. We will affirm the judgment of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Prior Proceedings
Dependency was initiated in Alameda County in November 2004, after appellants then eight and seven-year-old sons and five and one-year-old daughters were taken into protective custody because of severe neglect and abuse. At the time, the family, including E., R.s wife and the childrens mother, was living in a small trailer with various animals, including four caged boa constrictors and a python. Garbage covered most of the dirty trailer floor where the children played and slept. They were made to sit at a table in the dark during the day so that R., who worked nights, could sleep. If the children disobeyed, R. threatened to lock them in the cage with the snakes. None of the children attended school. E. claimed she home-schooled them even though there was no evidence that she did. E. also refused to let the children out of the home, telling them strangers would cut their heads off or they would be bitten by mosquitoes and contract West Nile virus.
The Alameda County Social Services Agency (agency) filed a dependency petition alleging appellants neglected the children, physically and emotionally abused them, and exposed them to domestic violence. (§ 300, subds. (b) & (c).) Appellants denied the allegations then and would continue to deny them throughout the proceedings.
The Alameda County juvenile court detained the children, assumed dependency jurisdiction, and ordered appellants to participate in general counseling, undergo a psychiatric evaluation and complete a course in parenting education. The court also ordered weekly supervised visitation and telephone contact with the children.
During the first six months of reunification services, appellants completed a parenting course. They were also evaluated by a psychologist, who diagnosed E. with paranoid personality disorder with narcissistic traits and R. with adjustment disorder related to the loss of his children. In the psychological evaluation prepared in March 2005, the psychologist recommended individual therapy for both parents but specified that E. begin individual therapy immediately with a therapist experienced in treating personality disorders. The psychologist also recommended a family bonding study and couples counseling designed to improve appellants parenting skills and to teach R. to compensate for E.s inability to properly respond to the childrens needs.
The psychologist, Dr. G., tested both parents for their intelligence and psychological profile. E. had a vocabulary score of 95 that was average, and an overall I.Q. score of 83 that was below average. The verbal score measured her ability to deal with words and to solve problems. Dr. G. found E.s verbal skill to be a strength compared to her non-verbal, fluid intelligence. The difference between the two measurements was possibly due to a stroke E. had previously suffered. E.s paranoia, self-centered approach, mistrust of others, and inability to experience any affective disturbance after the removal of her children, are all consistent with a Personality Disorder. E. met the full criteria for Paranoid Personality Disorder and had some features of Narcissistic Personality Disorder.
At the six-month review hearing in May 2005, the juvenile court found appellants were provided reasonable services and continued services for another six months. The court set the 12-month review hearing for November 2005.
Meanwhile, in August 2005, the agency convened a special meeting with appellants because they were not cooperating with the agency in an effort to provide them counseling. During that meeting, the agency agreed to the parents demand that the agency provide service referrals to the parents attorneys who in turn would assess the appropriateness of the service providers recommended and arrange for services. As a result of this arrangement, appellants selected their own individual therapists and decided independently to have separate couples counselors.
The social worker from Alameda County reported that the parents had been referred first to Sierra Vista for counseling, then later to the Center for Human Services. Appellants sought their own counselors. The Alameda County social worker reported she was unfamiliar with the counselors appellants said they were seeing and that the appellants stopped going to the Center for Human Services which, the appellants claimed, would not provide a report of the appellants participation in services.
In October 2005, the couple moved to Stanislaus County necessitating a transfer of the case. At the 12-month review hearing in November, the Alameda County juvenile court found appellants were provided reasonable services and ordered the case transferred to Stanislaus County. The case was accepted in transfer on December 30, 2005, and the Stanislaus County Juvenile Court ordered an additional six months of services. Appellants were ordered to participate in individual and couples counseling and to follow the recommendations of the therapist. Their case plans specifically required them to seek counseling to gain insight into how they neglected and abused their children and to take responsibility and gain insight into how they placed their children at risk of harm. The juvenile court set the 18-month review hearing for April 11, 2006.
On December 23, 2005, the caseworker assigned by the Stanislaus County Community Services Agency (Stanislaus agency) met with appellants and gave them referrals for individual and couples counseling, which they declined. The caseworker met with them three more times over the next two months and emphasized the importance of participating in counseling. It was not until E. obtained private counsel in February 2006, that she agreed to participate in counseling and signed up with Sierra Vista for counseling services. Over the next several months, the caseworker consulted with several psychologists none of whom were experienced in treating personality disorders. In March 2006, E.s attorney located clinical psychologist Dr. H. who agreed to treat her. She had her first session with him at the end of the month.
In March 2006, appellants filed a section 388 petition, asking the court to grant them a trial visit on the grounds the bonding study revealed a strong parent/child bond, they had obtained a suitable home, and they located schools for the children. Before a hearing was set on the petition, the Stanislaus agency filed its 18-month status review in which it recommended the court terminate reunification services because appellants steadfastly denied that E. suffered psychological problems and that together they harmed their children. The Stanislaus agency noted that neither parent participated regularly in court-ordered treatment programs and neither parent had made substantive progress in such programs. The hearing on the petition was calendared to be heard in conjunction with the contested 18-month status review hearing.
Once the appellants had moved to Stanislaus County, they were again referred to Sierra Vista for counseling services. The social worker emphasized the importance of working on the issues that led to the removal of the children and told the parents they had not yet acknowledged responsibility or shown improvements in their knowledge of why the children had been neglected and abused.
On April 11, 2006, the Stanislaus County Juvenile Court convened the combined hearing, which was conducted over six days and concluded on April 19, 2006. The parties conceded that the children were strongly bonded to their parents and accepted an offer of proof that they wanted to return to their custody. Both appellants denied any wrongdoing or parental deficiencies. The only parental problems they took responsibility for were not providing the children schooling and dental treatment.
The social workers report noted the parents attendance in counseling was mere attendance. The parents failed to work on the parenting problems that led to dependency petitions. The social worker found that because the parents failed to take responsibility for their treatment of the children, it was likely that if the children were returned to the parents, they would treat the children in the same manner. E. has a mental health disorder that makes it difficult to parent her children effectively and R. finds no problem with his wifes paranoid behavior. There had been no meaningful change in the parents attitude and no improvements in their parenting skills that the social worker would find beneficial to the children.
The children continued to suffer unresolved issues concerning physical abuse and domestic violence. A psychologist providing services to the children noted they displayed wariness of strangers and levels of fearfulness significantly exceeding what the psychologist observed in other children committed to foster care. The children showed difficulty communicating, appeared depressed, and were unable to engage in age appropriate social interactions. The children were seriously damaged psychologically from the parents cruel disregard for their emotional and developmental needs. The children displayed very impressive improvement in their mood and functioning in their foster care placement.
Dr. H. testified that he could not confirm E.s diagnoses in the one session he had with her. Dr. H. explained that personality disorders are, by their nature, difficult to treat and that patients with paranoid personality disorder with narcissistic traits are some of the most difficult to treat. Assuming E. would consent to treatment and cooperate in therapy, he estimated it could take at least nine months to a year of therapy before she would be able to show any improvement in her ability to care for her children.
After argument, the court found it would be detrimental to the children to return them to appellants custody. The court also found they were provided reasonable services but made limited progress. The court denied the section 388 petition, ordered services terminated and set the section 366.26 hearing. R. filed a petition for extraordinary writ to this court pursuant to California Rules of Court, rule 8.450, challenging the trial courts termination of reunification services. On June 30, 2006, this court filed its opinion denying the petition making the following findings:
"[T]he juvenile court properly concluded, as do we, that continuing reunification services would not serve the best interests of [R.]s children. Despite 18 months of services, neither [R.] nor E. made any progress toward acknowledging much less taking responsibility for the horrendous neglect their children suffered as a result of E.s seriously debilitating psychological disorder and [R.]s ineffectual way of dealing with it.
"Moreover, there was no indication that [R.] and E. would be able to safely parent their children if provided another six months of services. Rather, under the best of circumstances, E. would require nine months of therapy before she would demonstrate improvement in her ability to parent the children. Meanwhile, the children were placed together in a foster home in which they were thriving and progressing."
Section 388 Petition
Appellants retained their own counsel, Mr. Walton, who filed a petition for modification pursuant to section 388 in late July 2006. Walton filed a second petition pursuant to section 388 just prior to the section 366.26 hearing. The second petition was nearly identical to the first, but contained the opinion of one more psychologist.
The first petition was withdrawn in court by Walton on September 26, 2006.
The renewed petition alleged new comprehensive findings by Dr. D. that invalidate all prior findings because E. did not suffer a psychological condition, but rather a neurophysical condition. R. and E. sought an extension of services while E. underwent a nine-month course of treatment for her neurophysical condition. The petition alleged that an earlier bonding study showed the children would benefit from the bond between their parents.
Two letters attached to the petition from Dr. H. stated that E. returned to his office on May 9, 2006 and stated a desire to continue psychotherapy. She saw Dr. H. on three more occasions in May and June, cancelling one appointment. Dr. H. believed E. exhibited symptoms of Paranoid Personality Disorder and features of Narcissistic Personality Disorder, but he would not apply the full diagnosis to each disorder. E. functions adequately well in the community, expresses deep love for her children, and is seeking services to reunify with her children. Dr. H. could not, however, "provide any information with certitude about whether the children are best served by being in her care or otherwise." Dr. H. did not believe E. currently exhibited personality structures that would be harmful to her children.
In a second letter, Dr. H. explained that he was unable to provide E. with weekly therapy sessions. E. exhibited some paranoia, but Dr. H. found a factual basis for some of her complaints. Dr. H. found R. and E. to be relatively well functioning. Dr. H. believed E.s concern for her children was sincere, but he had not met the children and could not evaluate whether their needs would be best served by being in E.s care. Dr. H. believed E. should continue to be seen for psychotherapy.
A marriage and family therapist reported that R. continued to receive individual counseling. Therapy addressed appropriate ways for R. to cope with the removal of his children. Another marriage and family therapist submitted a letter that R. and E. successfully completed couples therapy and were utilizing excellent coping skills.
Dr. R. treated the parents for four sessions between June and July 2006. Dr. R. noted that R. and E. were punctual and cooperative. Dr. R. described E. as a pleasant, vivacious, loquacious person who is eager to parent her children. E. was sensitive to the pain of her children. During therapy, R. and E. showed mutual affection, respect, and support. E., who is bilingual in English and Spanish, talked more than her husband during the therapy sessions. Dr. R. did not observe any sign of severe psychopathology in either parent. Dr. R. recommended R. and E. retain their parenting rights.
Dr. D., a psychologist, prepared a lengthy report in August 2006. He reviewed the reports, tests, and diagnoses of the other psychologists who evaluated E. Dr. D. found the data in E.s case contradictory and found that after suffering a stroke in 1999, E. no longer had an intact brain. E. suffered some significant, but extremely well compensated for, neuropsychological damage. Dr. D. tested E.s verbal I.Q. at 80 and her full-scale I.Q. at 80. On vocabulary, E. scored below the normal range. Dr. D. reported E. had lost her ability to speak Spanish. Her working memory score, however, was only in the first percentile. Dr. D. found there were signs of "paranoia, narcissism, and histrionicity." Dr. D. concluded that the stroke physically affected E.s brain and that her denial mechanism was "not just psychologically based." According to Dr. D., people with brain injuries like E.s can be narcissistic, compulsive, and hyper-religious.
Dr. D. believed that a portion of E.s brain died from lack of oxygen. Dr. D. thought E. was disoriented and psychologically fragmented, but that her brain was impaired physiologically. Dr. D. opined that E.s stroke was not given enough attention or weight in the psychological testing process. Dr. D. vaguely noted: "[t]here are portions of the psychological testing reports about [E.] that carry face validity in terms of their description of her personality and character because parts of it are due to her neurological deficits and attempts to compensate for defects in symbol-formulation. However, other conclusions which have been drawn are not necessarily valid, because results are derived as a result of her neurological defects, rather than defects or anomalies in her personality."
Dr. D. found E. suffered a cognitive disorder and an anxiety disorder with obsessive compulsive symptoms caused by her stroke. E. had some Narcissistic and Paranoid psychological features. Dr. D. concluded E. had not been properly treated for her brain defect. Dr. D. recommended an on-going plan of therapy with possible medication. He further recommended treatment by a "team of neuropsycholinguistic specialists in psychology, psychiatry, and speech therapy." Dr. D. thought E. would make significant progress in six to nine months.
The social workers report noted that the children had been with their prospective adoptive parent for at least six months. A home study was approved. The prospective adoptive parent was committed to a plan of permanent adoption.
Section 388 Hearing
The section 388 petition was heard at the commencement of the section 366.26 hearing on September 26, 2006. After hearing counsels argument on the section 388 petition, the juvenile court noted that the reports of the psychologists in the petition were very inconsistent. The court observed that the latest doctor finds E. has a brain problem instead of a mental health issue. The court stated this did not change its earlier finding that services provided to the parents were reasonable. Also, Dr. D. did not indicate E. has any greater ability to comply with the reunification plan. The court stated its main concern was getting the children into a permanent placement.
The court explained that, because the parental bond is important, it disliked any case where the children are not being returned to the parents. The court stated the legislature has found it is important for kids to have stability in their lives and it is not fair to leave them up in the air as to what will happen. The court found it had given the parents a substantial amount of time to work on their issues and it would not be beneficial to the children, or in their best interests, to give the parents additional time or reunification services.
When counsel for the parents argued that Dr. D. found that E. was not suffering from a mental health issue, the court responded that E. did not focus on this issue when she was seeing Dr. H. The court observed that E. failed to work with the agency in trying to establish her case plan. The court found the failure to get services and to accept the services provided to her was E.s fault. The court disagreed with Dr. Ds conclusion that E. had speech issues. The court found that when E. testified, the court observed no speech or brain issue other than paranoia.
The court noted that E.s paranoia was a real problem because E. would not accept services. The court stated that regardless of whether this was a physical or a mental health issue, E. would not accept the services provided to her. The court found E. clearly had the intelligence to do so as well as to follow through with what was requested. The court found there were not any other services that could have been provided to E. that would have assisted her in reunifying any more than what was already provided to her. The court denied the section 388 petition.
Appellants counsel argued that Dr. D.s very point was that E. was compensating for speech and intelligence impairment. E.s issues could be remedied with speech therapy and other treatments and sending her to mental health was the wrong treatment. The court responded that it had found E. clearly understood what was required of her. The court further found it did not believe Dr. D.s opinion that E.s conduct was due to a prior stroke or brain damage. The court stated this was another excuse that was inconsistent with the other reports. The court noted that even if E. had some medical issues with her brain, she still understood what was required of her. The court concluded that it was not a medical issue that prevented E. from complying with her case plan but her own failure to accept the adequate services provided to her.
Section 366.26 Hearing
The court proceeded with the section 366.26 hearing. The appellants conceded the children were, by clear and convincing evidence, likely to be adopted. They called Dr. O., who performed the initial bonding study, to testify. Dr. O. had no contact with the children since his assessment on January 21, 2006. At that time, the parent-child bond was strong. Because he had not reevaluated the family, however, Dr. O. could not indicate the current strength of the bonds. Dr. O. expected the bonds would have weakened over nine months. Dr. O. did not have enough information to assess the best interests of the children.
R. testified that he and E. visited the children regularly. The children whispered to their parents that they were being beaten and abused in foster care. R. believed the children were not happy with their caretakers and wanted to be returned to their parents. R. said he observed bruising and scratching on all of his children, but did not report his observations. R. has the means to financially support his children.
R. J., one of the children, testified that if he were to chose, he would like to live with his parents. R. J. explained that his parents were not nice when he lived with them before, but he wanted to live with his parents again because now they were nice. R. J. stated that no one hit him while he resided with his prospective adoptive parent. R. J. told the court that things are good for him and his siblings in the prospective adoptive parents home.
The parties stipulated to an offer of proof that the supervising social worker would testify that she never observed any unusual bruising on any of the children and neither the children nor the parents reported there had been abuse in the foster home.
The court observed that it was not impressed with the evidence it heard from R. The court believed R. and E. continued to pose a risk to the children. In the courts view, nothing had changed. The parents were still blaming others for their own problems. The court found the agency complied with the case plan in making reasonable efforts to return the children to a safe home. The court further found that all of the children were likely to be adopted and termination of parental rights would not be detrimental to the children. The court found a permanent plan of adoption was appropriate and terminated the parents parental rights.
DISCUSSION
Appellants contend their children were taken from them based on the erroneous premise that E. suffered psychiatric or psychological issues when her actual problem was a physical deficit to her brain after she suffered a stroke. Appellants argue this misdiagnosis led to E.s failure to make minimal progress in her reunification plan because psychological treatment did not address her problems. Appellants believe the juvenile court erred in denying their section 388 petition and in terminating their parental rights.
Appellants had the burden to prove there was new evidence or there were changed circumstances that made a change of the childrens placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.) Appellants have failed to accomplish either task.
Appellants assertion there was new evidence of changed circumstances was based on the report of Dr. D. that E. had been misdiagnosed with a psychiatric or psychological disorder when, in his opinion, she suffered a physiological impairment from a stroke. Dr. D. recommended a new course of treatment which included speech therapy. The juvenile court found Dr. D.s evaluation unpersuasive. The court noted that E. had no difficulty verbally expressing herself in prior proceedings and clearly understood what was expected of her. These findings are corroborated by the psychological testing and evaluation of Dr. G. who found that E.s highest I.Q. score, a score in the normal range of intelligence, was her verbal score. The courts findings are further corroborated by Dr. R. who described E. as loquacious, bilingual, and more talkative than her husband.
The juvenile court accurately noted that the appellants section 388 petition was internally inconsistent. The reports of Dr. H. were largely consistent with Dr. G.s original evaluation. The report of Dr. R. was that E. had no impairment at all. Dr. D. viewed E.s impairments as physical rather than mental.
Given these inconsistencies, the juvenile court had to make its own findings of credibility. In doing so, the court stated it did not believe Dr. D.s opinion that E.s conduct was due to a prior stroke or brain damage. The court found this was another excuse that was inconsistent with the other reports. The court noted that even if E. had some medical issues with her brain, she still understood what was required of her. The court concluded that it was not a medical issue that prevented E. from complying with her case plan but her own failure to comply with the adequate services provided to her. In making these findings, the court clearly rejected Dr. D.s diagnosis of E.s physical and mental state. This finding is supported by other substantial evidence of E.s diagnosis in the record.
Dr. Ds diagnosis and plan for further treatment was specific in his recommendation that E. needed speech therapy and other language related treatment, but was vague as to other specific services E. needed to reunify with her children. Dr. D. also believed E. would require six to nine months of additional treatment. These are additional reasons for the juvenile court to reject Dr. Ds diagnosis. It appears that in some regards, Dr. D.s diagnosis was not entirely at odds with those of Dr. G and Dr. H. Dr. D acknowledges that E. suffered from features of narcissism and paranoia. Although Dr. D. did not make a full diagnosis of these psychological ailments, he appears, at least implicitly, to concur in part with his colleagues. Thus, the reunification services offered to E. by the agencies had some apparent efficacy even within Dr. D.s diagnosis.
Appellants contention on appeal rests on the theory that E. was misdiagnosed and therefore received the wrong reunification services. The court resolved the factual conflict between the different opinions of the doctors against appellants interpretation of the evidence. When sufficiency of the evidence to support a finding or order by the juvenile court is challenged on appeal, reviewing courts determine if there is any substantial evidence to support the conclusion of the trier of fact. All conflicts are to be resolved in favor of the prevailing party. Issues of credibility are questions for the trier of fact. In dependency proceedings, a trial courts determination will not be disturbed unless it exceeds the bounds of reason. (In re P. A. (2006) 144 Cal.App.4th 1339, 1344.)
The agencies involved in this action in both Alameda and Stanislaus Counties attempted to secure proper services for E. based on Dr. G.s earlier diagnosis. There was substantial evidence in the record to support the agencies and the courts reliance on that diagnosis. It was E.s own failure to take advantage of those services that led to the juvenile courts termination of further reunification services. Furthermore, the appellants ignore the fathers failure to obtain the proper services necessary for reunification. There is no allegation in the section 388 petition of changed circumstances with regard to his status or explanation concerning his inability to avail himself of reunification services offered in the earlier stages of these proceedings.
We further note that appellants failed to make an adequate showing that maintaining the parental relationship would be in the best interests of the minors. To understand the element of best interests of the minors in the context of a section 388 motion brought, as in this case, shortly before the section 366.26 hearing, we look to the Supreme Courts decision in Stephanie M. At this stage of the proceedings, a parents interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the childrens needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.)
Notably, both here and in the juvenile court, appellants ignore their childrens need for permanence and stability in advocating their position. Neither the juvenile court nor this court, however, may do so. The juvenile court here found that it would not be in the childrens best interests to remain with their parents. The courts deliberations and findings were thorough, well considered, and well supported by the record.
Provided a dependent child is likely to be adopted, the statutory presumption at the permanency planning stage is that termination is in the childs best interests and therefore not detrimental. (§ 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344 (Lorenzo C.) In other words, the decision to terminate parental rights at a section 366.26 hearing is virtually automatic if the child is going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.). It is up to a parent or other party to prove that termination would be detrimental. (Lorenzo C., supra, 54 Cal.App.4th at p. 1343.)
DISPOSITION
The order denying appellants section 388 petition is affirmed. There being no separate challenge to the courts selection of permanent plans for the child, the courts section 366.26 findings and orders are affirmed as well.