Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Nancy B. Williamsen, Commissioner. Super. Ct. Nos. 515374, 515375, & 515376.
Nadine Salim, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Hill, Acting P.J., Kane, J., and Poochigian, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s orders terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her three children. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
This writ petition arises from the juvenile court’s orders issued on April 1, 2010, following a contested hearing on a section 388 petition brought by the Stanislaus County Community Services Agency (agency) seeking termination of petitioner’s reunification services and the setting of a section 366.26 hearing as to her then two- and five-year-old daughters and four-year-old son. The juvenile court granted the agency’s petition, resulting in the orders petitioner now challenges.
Petitioner contends the juvenile court abused its discretion in granting the section 388 petition, claiming it erred in finding she received reasonable services. This is not petitioner’s first challenge to the juvenile court’s reasonable services finding with respect to the underlying proceedings. By writ of mandate, petitioner challenged the juvenile court’s finding made on January 5, 2010, following a contested 12-month review hearing, that she received reasonable services. In an unpublished opinion filed on June 15, 2010, we denied her request for mandamus relief (F059486). Because our opinion in that case set forth a detailed summary of the procedural and factual history, we will restate it only as relevant to this writ petition.
The First 12 Months of Reunification Efforts
In November 2008, the agency took petitioner’s three children, ranging in age from eight months to three years, into protective custody after voluntary services designed to protect the children from domestic violence perpetrated by the father of the two youngest children failed. Also contributing to the risk to the children’s safety was petitioner’s reported untreated bipolar disorder and her harsh physical discipline.
In January 2009, the juvenile court adjudged the children juvenile dependents, ordered them removed from parental custody, and ordered petitioner to participate in a plan of reunification. Petitioner’s plan required her to complete a parenting program, a domestic violence counseling program, a mental health/medication assessment, a substance abuse assessment, a psychological evaluation, and to submit to random drug testing. The plan also included twice-monthly visits between petitioner and the children.
The juvenile court also ordered reunification services for the children’s fathers. However, the fathers’ services were terminated at the six and twelve-month review hearings.
Dr. Philip Trompetter, clinical psychologist, evaluated petitioner and submitted his written report in February 2009. Dr. Trompetter found insufficient evidence to diagnose petitioner with bipolar disorder even though he believed she struggled with depression. Instead, he assigned a primary diagnosis of personality disorder, not otherwise specified, with borderline, narcissistic, and antisocial characteristics. “It is this constellation of maladaptive personality traits and characteristics, and their accompanying impairing attitudes and sentiments, ” he stated, “that require the primary focus for her reunification.” He also made a secondary diagnosis, posttraumatic stress disorder (PTSD), which appeared to have been undiagnosed and untreated, relating to her alleged sexual abuse as a child. Dr. Trompetter also reported that petitioner had a history of polysubstance abuse but did not consider it a primary or even a secondary cause of her impaired parenting.
Dr. Trompetter recommended that petitioner participate in an anger management program because of her inability to control her temper and regulate her emotions when angered. He also believed petitioner could benefit from a program such as Parents United, because of the persistent influence her sexual molestation had on her relationships. Further, Dr. Trompetter recommended individual counseling though he opined petitioner’s prognosis for successful treatment was guarded at best. The key, he explained, required a targeted approach addressing the maladaptive borderline, paranoid, and narcissistic traits that formed petitioner’s personality and establishing rapport with petitioner before attempting to modify her behavior. Although petitioner’s general default reaction to counseling and advice was defiance, Dr. Trompetter thought repetitive counseling intervention over time might breach her initial rejection of them.
Soon thereafter, the agency referred petitioner to anger management and individual counseling as recommended by Dr. Trompetter. In February 2009, she began anger management and individual counseling with Maryanne Cose, MFT, who also counseled her in parenting and domestic violence.
In March 2009, at an interim status review hearing, the juvenile court vacated its previous order for a mental health/medication assessment of petitioner based on the thoroughness of Dr. Trompetter’s evaluation. Petitioner’s attorney agreed, stating “What my client really needs is just a lot of individual counseling and not medication.” In May 2009, petitioner completed the parenting program.
In July 2009, at the six-month review hearing, the juvenile court found petitioner made good progress in her case plan and ordered services to continue to the 12-month review hearing. The court also found petitioner was provided reasonable services and approved an updated case plan. The updated case plan required petitioner to continue to participate in individual, anger management, and domestic violence counseling, to continue making substantial progress in her substance abuse treatment program, and to randomly drug test. The case plan made no reference to Parents United, the sexual abuse services Dr. Trompetter recommended. In addition, the court ordered family counseling and continued supervised visitation but granted the agency discretion to allow longer visits outside the agency between petitioner and the children. Petitioner did not appeal the court’s six-month status review findings and orders.
In August 2009, petitioner had her first unsupervised visit with her children. Prior to the visit, the social worker made it clear to petitioner that petitioner’s mother was to have no contact with the children pursuant to court order. However, after the four-hour visit, petitioner’s oldest child revealed that petitioner took the children to their maternal grandmother’s home and told them not to tell anyone. Petitioner denied taking them there, claiming they saw their grandmother at the bus stop. Because of petitioner’s violation of the court order, the agency subsequently arranged therapeutic visitation under Ms. Cose’s supervision.
In October 2009, petitioner and the children began hourly family counseling sessions with Ms. Cose followed by an hour of therapeutic visitation every other week. Apparently, this was in addition to petitioner’s twice-a-month supervised visits.
In December 2009, the agency filed its status report for the 12-month review hearing. The agency reported petitioner completed substance abuse treatment and continued to participate in domestic violence and individual counseling. Further, the agency reported that petitioner seemed to have developed the kind of rapport with Ms. Cose that Dr. Trompetter believed was critical to her ability to modify petitioner’s behavior. However, petitioner continued to display outbursts of anger and complained of depression. In addition, she adamantly refused to discuss the possibility that her behavior negatively impacted her children.
The agency recommended the juvenile court continue petitioner’s reunification services to allow her to demonstrate that she could meet the children’s emotional and safety needs. The agency expressed concern, however, about petitioner’s ability to parent the children without Ms. Cose’s supervision and to control her anger without verbal and/or physical aggression. The agency attached an updated case plan to its report, requiring petitioner to follow the recommendations of Dr. Trompetter’s psychological evaluation, complete domestic violence counseling, submit to random drug testing, and continue to make progress in a substance abuse treatment program.
The 12-month review hearing was conducted as a contested hearing in January 2010. Petitioner challenged the reasonableness of services provided. She testified she had three or four therapeutic visits when she should have had many more. She also believed it would be helpful to her to have counseling with her mother because of the violent nature of their relationship when petitioner was young. However, petitioner made no effort to initiate such counseling. Petitioner also believed she would benefit from a medication evaluation because she was depressed.
Ms. Cose testified she conducted eight family counseling/therapeutic supervised visits, including make-up visits. When asked what other counseling would benefit petitioner, Ms. Cose stated continued individual counseling. She could not give an opinion as to whether petitioner would benefit from counseling with petitioner’s mother. However, Ms. Cose believed a medication evaluation might assist petitioner if petitioner were suffering from adult Attention Deficit Hyperactivity Disorder or if her impulsivity stemmed from depression. Going forward, Ms. Cose believed it would be appropriate at some point to consider permitting one of petitioner’s twice-monthly visits to occur in petitioner’s home and the other in the therapeutic setting.
Following closing arguments, the court found the agency provided reasonable services. Further, the court found that petitioner made significant progress and that there was a substantial probability the children could be returned to petitioner’s custody with extended services. Consequently, the court ordered services to continue to the 18-month review hearing, which it set for May 3, 2010. The court approved the case plan attached to the agency’s report and ordered the agency to refer petitioner to Parent’s United and to Dr. Trompetter for a second evaluation to determine if petitioner progressed as a result of counseling. The court also ordered twice-monthly visits in a therapeutic setting and twice-monthly visits outside a therapeutic setting, and granted the agency discretion to allow overnight visits.
Petitioner challenged the juvenile court’s reasonable services finding by writ of mandate. Specifically, she argued, the agency did not offer frequent and liberal visitation, did not make a good faith effort to facilitate family counseling, and should have referred her to Parents United and for a medication evaluation. She also argued the foster/de facto parents of the two younger children interfered with reunification to the point that it rendered the agency’s efforts unreasonable. This court denied relief, concluding substantial evidence supported the court’s reasonable services finding.
Section 388 Petition
In January 2010, Dr. Trompetter submitted the results of his second evaluation. During the interview, petitioner told Dr. Trompetter that she participated in weekly counseling sessions with Ms. Cose and had just started attending Parents United. Dr. Trompetter reported no change in petitioner’s mental status, test results or diagnoses, and opined she was not clinically depressed though she reported feeling depressed. Further, while petitioner displayed the essential features of PTSD in February 2009, she denied any PTSD symptoms during the second evaluation. She also denied any trouble managing her anger and stated she had no continuing problems requiring therapeutic intervention stating, “I covered everything.” She expressed annoyance that they “tacked on Parents United.” Dr. Trompetter further stated petitioner claimed to have accomplished all of the treatment requirements imposed upon her and had no insight into the problems necessitating the agency’s intervention or the incidents that occurred subsequently.
In summary, Dr. Trompetter reported:
“[Petitioner’s] maladaptive behaviors continue. Her comments to me during the current evaluation strongly indicate she is simply going through the motions to be dutiful and compliant with what is being required of her. I see little evidence that she has observed or internalized any lessons, or changed in any measureable way. If she has made gains, she is unable to articulate them. [¶] There is little reason to be optimistic that she can complete her reunification goals within the next several months. My diagnostic impression of [petitioner] has not changed at all; indeed her subsequent behavior further reinforced the initial evaluation. There is no reason to be optimistic that in the next few months she can correct the multitude of maladaptive traits and characteristics that she has displayed for most of her life.”
In February 2010, the agency filed a section 388 petition, based on Dr. Trompetter’s reevaluation, asking the juvenile court to modify its prior orders and terminate petitioner’s reunification services and reduce visitation to supervised visits twice a month. A contested hearing on the petition was set for February 25, 2010.
On February 25, 2010, counsel for petitioner advised the court she engaged an expert to evaluate petitioner and requested a continuance. The court continued the hearing to late March and then to April 2010.
In early March 2010, petitioner was evaluated by Dr. Christopher Heard, clinical psychologist. After administering psychological testing and interviewing petitioner, Dr. Heard concluded petitioner suffers from low-grade depression with symptoms of PTSD. He recommended she be referred to a psychiatrist for a medication evaluation. Without that, he did not believe petitioner’s full functioning potential could be assessed.
In late March 2010, Ms. Cose updated the agency in a letter on petitioner’s attendance and participation in services. Ms. Cose reported that petitioner participated in individual counseling until February 22, 2010, when she advised Ms. Cose that she could only discuss her case with her attorney. Petitioner stated she would continue to attend counseling but did not have anything to say. Just several weeks prior to this, Ms. Cose discussed the results of Dr. Trompetter’s reevaluation with petitioner. According to Ms. Cose, petitioner was not pleased with his findings and stated she had done everything required of her and just wanted her children back. After forty minutes with Ms. Cose, petitioner left stating she was through with counseling. Petitioner did not attend any further counseling sessions after February 22.
Ms. Cose also stated in her letter that petitioner still struggled to manage the older two children’s behavior and that her son displayed concerning behavior following visitation. Ms. Cose observed petitioner to be more mechanical in her responses and guarded with her. She did not believe petitioner would be able to make the necessary changes to regain custody of the children in the short period of time she had left.
On April 1, 2010, the juvenile court conducted the contested hearing on the section 388 petition. Social worker Suzanne Yarberry testified that in January 2010, she believed there was a substantial probability the children would be returned to petitioner’s custody by May 2010, but that her opinion changed after reading Dr. Trompetter’s second psychological evaluation. Ms. Yarberry said she also consulted with Ms. Cose who concurred with Dr. Trompetter. She also asked the children’s therapists their opinions about the appropriate frequency of visitation. The oldest child’s therapist could not give an opinion because she had never seen petitioner with the child. However, the therapist for the two younger children did not believe it would be in the best interests of petitioner’s son to continue to visit petitioner weekly.
On cross-examination by minors’ counsel, Ms. Yarberry opined that visitation should revert to the original visitation order of two times a month. She believed that would not only serve the best interests of petitioner’s son, but her two daughters as well.
On cross-examination by petitioner’s counsel, Ms. Yarberry testified she referred petitioner to Parents United right after the 12-month review hearing in January 2010. However, she did not inquire whether petitioner went there. She also testified that on October 29, 2009, Ms. Cose telephoned her stating petitioner was depressed and needed medication but lost her Medi-Cal card. Ms. Yarberry gave Ms. Cose an emergency crisis number to give petitioner. She said petitioner called her back immediately and yelled at her, claiming it was the wrong number. Ms. Yarberry said she did not make any further effort to help petitioner obtain medication. She said petitioner had Medi-Cal and needed to go through her doctor.
On cross-examination by counsel for one of the fathers, Ms. Yarberry testified she found petitioner to be difficult to work with but that did not stop her from assisting her with her services. After petitioner yelled at her in October 2009, Ms. Yarberry consulted with Ms. Cose and understood that Ms. Cose would assist petitioner with her medication.
Ms. Cose testified petitioner had difficulty controlling her impulses and regulating her moods. She said she stopped counseling petitioner on February 22, 2010, but that petitioner requested another session so she saw her on March 22, 2010. She also said petitioner appeared anxious during therapeutic visitations and utilized time-outs more frequently than other parenting skills. On cross-examination by petitioner’s attorney, Ms. Cose testified that she and petitioner mutually agreed to terminated petitioner’s counseling sessions in February 2010. She recalled suggesting to Ms. Yarberry in October 2009 that petitioner may benefit from a medication assessment but said her only involvement was to pass along to petitioner the emergency number Ms. Yarberry gave to her. She said it was beyond her professional scope to directly facilitate a medication assessment for petitioner but she followed up by asking petitioner whether she got her Medi-Cal card and made an appointment. Ms. Cose believed petitioner could still benefit from a medication evaluation if petitioner were willing to complete one. She also said petitioner’s parenting skills had improved and petitioner was not as impulsive at least not in her sessions with Ms. Cose.
Mr. C., foster/de facto parent to petitioner’s two youngest children, testified that petitioner’s son reacted negatively after visits with petitioner. He became aggressive during play, hitting other children and his sister. He also had bad nightmares and was anxious. He also tried to get other children alone to show them his private parts and urinated on two children on the playground. On cross-examination by petitioner’s attorney, Mr. C. admitted he did not want petitioner to reunify with her children because he did not believe it would be in their best interest.
Following testimony, the court entered two exhibits, a letter from Dr. Heard and petitioner’s sign-in sheet from Parents United. In addition, county counsel made an offer of proof, which the court accepted, that Ms. Yarberry would testify that petitioner had Medi-Cal and did not require a referral for medication.
In closing, county counsel argued that in January 2010, the juvenile court found there was a substantial probability petitioner could reunify with her children by the 18-month review hearing. In light of that finding, the court increased visitation. However, Dr. Trompetter’s second evaluation refuted any such finding and there was testimony that visitation was chaotic and that petitioner’s son experienced adverse reactions to contact with petitioner. Consequently, county counsel urged the court to grant the section 388 petition.
Petitioner’s attorney argued that continued reunification services were warranted because the agency failed to provide petitioner reasonable services. Specifically, the agency did not refer petitioner to Parents United until January 2010. Further, even though there was evidence petitioner could benefit from medication, Ms. Yarberry delegated the task of arranging a medication evaluation to Ms. Cose who did not have the authority to do so. In addition, petitioner’s attorney argued, petitioner made progress in her court ordered services, citing Ms. Cose’s testimony that petitioner’s parenting skills improved and petitioner demonstrated less impulsivity. Finally, petitioner’s attorney argued there was insufficient evidence to link petitioner’s son’s behavior to contact with petitioner and urged the court not to reduce visitation.
Following argument, the court terminated petitioner’s reunification services and reduced visitation to once monthly. The court also found petitioner was provided reasonable services, set a section 366.26 hearing as to all three children, and ordered that the children be made available for a bonding study. This petition ensued.
DISCUSSION
Petitioner contends she was not provided reasonable services. Therefore, she claims, the juvenile court erred in terminating her reunification services. We disagree.
The juvenile court terminated petitioner’s reunification services under the provisions of section 388, which generally provides that a parent or person having an interest in a dependent child may, upon grounds of changed circumstances or new evidence, petition the juvenile court to change, modify, or set aside any order previously made by the court. (§ 388, subd. (a).) In addition to showing that changed circumstances or new evidence exists, the petitioning party must show that the requested change or modification would serve the child’s best interests. (§ 388, subd. (d); In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Section 388, subdivision (c)(1), also allows a party to petition the juvenile court to terminate reunification services prior to the 12-month review hearing (§ 366.21, subd. (f)), or within six months of the original dispositional hearing under certain specified conditions. (See also § 361.5, subd. (a)(2).) Even if one of the conditions is met, the juvenile court can only terminate reunification services if it finds by a preponderance of the evidence that reasonable services were provided or offered to the parent. (§ 388, subd. (c)(3).) If the court terminates reunification services, it must set a section 366.26 hearing. (§ 388, subd. (c)(4).)
Section 388, subdivision (c)(1), provides, in relevant part:
Petitioner acknowledges that the provisions of subdivision (c)(1) of section 388 (subdivision (c)(1)) do not pertain to her case because the petition to terminate her reunification services was brought after the 12-month review hearing. Nevertheless, she contends the provision requiring that the court find she was offered or provided reasonable services should still apply. We disagree. Subdivision (c)(1) plainly identifies the period to which it refers: “prior to the hearing set pursuant to subdivision (f) of Section 366.21 …, ” the statute governing the 12-month review of services. Therefore, subdivision (c)(1) does not apply. Consequently, the juvenile court did not have to make a reasonable services finding in this case and we need not review the one that it made.
The issue in this case is whether the juvenile court erred in terminating petitioner’s reunification services under the general provisions of section 388. More specifically, the issue is whether termination of reunification services would serve the best interests of petitioner’s children since petitioner does not assert that Dr. Trompetter’s reevaluation did not constitute a change in circumstances. We review the grant of a section 388 petition for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) Having reviewed the evidence, as summarized above, we conclude the juvenile court did not abuse its discretion.
The circumstances which necessitated the removal of petitioner’s children were very serious. Petitioner and the father of her youngest children regularly engaged in domestic violence. He severely beat her even to the point of unconsciousness. In turn, petitioner physically abused her young children by slapping them in the face and mouth, sometimes for minor infractions and sometimes hard enough to leave hand prints. The original detention report stated petitioner was prone to “uncontrollable rage” and violence. Dr. Trompetter, who gave petitioner a guarded prognosis, declared, after a year of counseling, that her maladaptive behaviors continued, that she had no insight into her problems, and that she had merely gone through the motions of reunifying. The evidence that nothing had changed and would not change could only mean that the children, if returned to petitioner’s custody, would again be exposed to violence and abuse. Under those circumstances, continued attempts to reunify them with petitioner would not serve the children’s best interests. In light of those circumstances, we conclude the juvenile court did not err in terminating petitioner’s reunification services and setting a section 366.26 hearing. Accordingly, we will deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
“Any party, … may petition the court, prior to the hearing set pursuant to subdivision (f) of Section 366.21 for a child described by subparagraph (A) of paragraph (1) of subdivision (a) of Section 361.5, or prior to the hearing set pursuant to subdivision (e) of Section 366.21 for a child described by subparagraph (B) or (C) of paragraph (1) of subdivision (a) of Section 361.5, to terminate court-ordered reunification services provided under subdivision (a) of Section 361.5 only if one of the following conditions exists:
“(A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services.
“(B) The action or inaction of the parent … creates a substantial likelihood that reunification will not occur, including, but not limited to, the [parent’s] … failure to visit the child, or the failure of the parent … to participate regularly and make substantive progress in a court-ordered treatment plan.”