Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. A. Rex Victor, Judge. Petition denied, Super.Ct.No. J226435
Meg Hogenson for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Real Party in Interest.
OPINION
KING. J.
In this petition for writ relief, the mother of the dependent child challenges the juvenile court’s decision to deny her reunification services and to set a hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends that there was substantial evidence that reunification services were likely to prevent reabuse and neglect as well as that it would be detrimental to the minor not to attempt to reunify because he was closely and positively attached to mother. We disagree and deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL BACKGROUND
Mother and her one-year-old son came to the attention of the San Bernardino County Children and Family Services (department) when mother went to the Colton Police Department on March 19, 2008, to report that her son’s father had beat the child and attempted to strangle her as well as the child.
The social worker reported that mother had met the father of the minor through his mother, who was mother’s coworker. They were at a party, drank, and had a brief encounter which resulted in the minor’s conception. The father was just under 18 years old at the time. The minor was born in January 2008. The parents did not have a lasting relationship and met again only once while mother was pregnant. Father came to see the baby on February 17, 2009, and mother allowed him to move in with her two days later. During the ensuing month, father took care of the minor while mother was at work.
On the evening before her appearance at the police station, mother reported to the police officer that she and father had been at a family gathering at his parents’ house. Father had gotten into an argument with a family member and he and mother had been asked to leave. They had argued on the drive home and father had threatened to strangle the baby. She said that father choked the baby twice and then began to choke her.
When they did arrive at their apartment, mother saw two police cars in the parking lot with their lights activated. Father told her that she had “better not start nothing.” When they got into their apartment, father picked up the baby by the neck and threw him on the bed. Father told her she had better put the child in bed before he got him. Mother went into the kitchen to warm a bottle and heard the baby scream and cry. She believed the father had spanked him. After things calmed down and the baby fell asleep, mother reported she did not want to disturb him or call 911 because she was afraid of father. She did admit that she and father had sexual relations that night.
The next morning mother stated that she saw marks on the baby’s buttocks when she was changing his diaper. She reported that father had spanked the child over his diaper but denied any history of domestic violence. Mother did go to work that morning, leaving the baby in father’s care. There, her coworker, the paternal grandmother, urged mother to leave, to get the baby, and go to the police. Father did pick her up from work around 12:30 p.m. and they all went back to the apartment. When father fell asleep, mother took the baby and went to the police station. Police officers contacted a social worker who instructed mother to take the baby to the hospital for treatment of his injuries.
Mother’s five-year-old daughter was interviewed by the social worker. The girl said her half-brother’s father hit the baby everyday when he cried. She indicated that the father hit him hard with his hand on his buttocks. Although the baby’s father never hit her, the girl told the social worker that mother hit her with a belt on her legs.
The interview took place in San Diego where the girl had been visiting with her father and where she remained as a result of these proceedings.
On March 25, 2009, the child was removed from the custody of mother and the alleged father due to physical abuse and neglect. Medical reports indicated that the child sustained a broken tibia as well as brain injuries as a result of being strangled and/or beaten by the alleged father. Dr. Massi of the Children’s Assessment Center at Loma Linda University Medical Center reported that in addition to the buckle fracture of the tibia, the child had suffered marks on his neck and chin, bruises to his jaw line and abrasions on the jaw, which were consistent with having been grabbed around the neck. The doctor stated that the child appeared to have suffered brain injuries, which he suspected resulted from multiple incidents.
The juvenile court took jurisdiction over the minor on May 13, 2009, finding that he came within section 300, subdivisions (b) and (e). The department recommended no reunification services to mother, and the disposition hearing was continued. By the time of that hearing, mother had done the following: completed parenting classes, attended domestic violence classes, counseling sessions, as well as a few Overeaters Anonymous meetings. She had also attended all of her twice weekly visits with the child.
Dr. Semansky testified on behalf of mother as to the results of the psychological evaluation. Dr. Semansky reported that mother had been victimized as a child, both physically and sexually. As a result of multiple traumas in her life, Dr. Semansky believed mother suffered from posttraumatic stress disorder and with a dystemic disorder, which is chronic, mild depression, and, lastly, compulsive overeating. She opined, however that mother would greatly benefit from reunification services and that she had the intellectual capacity to learn and the psychological ability to change.
As part of the psychological evaluation, mother was given the MMPI-2 test, which is the most widely used and objective personality tests. It gives 10 clinical scales showing a variety of personality traits. Mother was given the test twice, because the first test was thought to be invalid because her answers were so negative and atypical that it indicated she was making an effort to exaggerate her disturbance. Dr. Semansky scored the test results herself and then sent the results to Dr. Caldwell’s scoring service. Dr. Caldwell concurred that the test was invalid. Dr. Caldwell recommended that mother be retested and that she be instructed to answer questions as she would on a good day, or possibly a “wished for good day,” rather than on a bad day. He stated that, “[w]e insist that [the patients] present a more balanced picture of themselves that is not so totally self-negative.”
Dr. Semansky administered the second MMPI-2 test to mother over the telephone because of time constraints due to a court date. Mother had five clinical scales elevated two standard deviations above the norm. Dr. Caldwell’s report stated that mother’s test result pattern “strongly suggests a currently psychotic breakdown or a marked vulnerability to such a decompensation. The profile indicates moderately severe to severe distrust, emotional distancing, and estrangement.” The report added that “[r]esearch studies have shown a high incidence of borderline and paranoid personality disorders among patients with this general pattern.”
Based on her clinical interview with mother, Dr. Semansky concluded posttraumatic stress disorder rather than borderline personality disorder applied to mother.
The department retained Dr. Pace to review the documents in the case, and later to review Dr. Semansky’s psychological evaluation, particularly the raw data and the test results. He was troubled that Drs. Caldwell and Semansky concluded that the first MMPI-2 test was invalid because he believed mother would have no motivation to try to fake pathology. Rather the alternative explanation was that mother had severe psychopathology. Dr. Pace was also concerned that the second MMPI-2 test was given over the phone and that mother was given unusual instructions before taking it. Even the results of the second test showed mother has major problems in that there were significantly elevated scores in the areas of depression, psychopathic deviance, paranoia, and nuresthenia. On cross-examination, Dr. Pace admitted that he misinterpreted mother’s answers, believing that all questions listed by Dr. Semansky were answered in a critical fashion. In fact, only the questions in bold print were answered in a critical or affirmative fashion. Thus, for example, mother had not answered that most of the time she wished she were dead. Dr. Pace indicated he had never seen this type of reporting of critical items. He stated that the MMPI profile is extremely abnormal despite the misinterpreted answers. He also noted that Dr. Caldwell made the evaluation and found five elevated scales. This showed mother had multiple issues, which reduces the probability that treatment will have a positive outcome.
Dr. Pace concluded that mother has a borderline personality disorder and that her elevated scores on the MMPI-2, her many problems, and her life history of abuse made the prognosis for her ability to safely parent very guarded.
Karlee Ohm, a licensed marriage and family therapist, testified that mother had attended 13 counseling sessions with her—three before the dependency proceedings were instituted and 10 since April 2009. She noted that mother has done everything she was asked to do, including taking parenting and domestic violence classes. Ms. Ohm also concluded that there was a bond with the child because mother reported to her about her visits with him. The therapist opined that mother had made substantial progress and stated a very strong desire to improve herself and be a better mother, but indicated she would have to be in therapy for at least a year to work on her problems. Concurrent reunification and ongoing therapy would be indicated in this situation, Ms. Ohm stated
While Ms. Ohm has a degree in psychology, she does not possess a Ph.D. Therefore, the juvenile court did not consider her an expert to give a psychological diagnosis of mother.
In assessing the testimony of the two psychotherapists, the juvenile court commented that each side picked the expert that it felt would be of assistance to it. However, it did conclude that Dr. Pace’s qualifications were far superior to Dr. Semansky’s who was licensed in 2007. The court did acknowledge that Dr. Pace had been substantially impeached because he misread some of the test answers. It also observed that it was regrettable, but not dispositive, that he had not received all of the raw data due to Dr. Semansky’s inadvertence. The court was also concerned that the results of the second MMPI-2 test were suspect because of the detailed instructions that seemed to coach mother. In its view, there was no satisfactory reason for conducting the second test over the telephone.
On balance, the court gave more weight to Dr. Pace’s testimony and his conclusion that the prospects for mother achieving reunification was at worse poor and at best guarded. Using any standard of proof, the court was unable to find that providing services to the mother would be to the child’s benefit.
DISCUSSION
The court made a finding that the minor came within its jurisdiction pursuant to section 300, subdivision (e), because he was under the age of five and had suffered severe physical abuse. Based on that jurisdictional finding, the court denied services under section 361.5, subdivision (b)(5). Nonetheless, the juvenile court could have ordered services if it had found, “based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.” (§ 361.5, subd. (c).) Mother contends that the juvenile court erred when it did not make either finding. We disagree. The evidence from all the professionals showed that mother had multiple, serious mental health issues that affected her ability to parent. Dr. Pace believed at best that there was a very guarded prognosis for successful reunification. Even Dr. Semansky found that mother had problems that would require long term therapy to address. The juvenile court clearly believed that reunification services were not likely to prevent further abuse and neglect.
“(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶]... [¶] (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.” (§ 361.5, subd. (b)(5).)
Although it initially appeared that the child was well-bonded to the mother, the social worker soon began to notice indications that the attachment was not that strong. Mother appeared distracted during her visits and her interactions were unemotional. The caretaker reported similar observations that mother would do other things, such as texting on her phone, rather than hold or interact with the child during the visits.
It is also significant to the lack of bonding that the child began calling his caretaker “Mommy” soon after placement. He became very upset when the caretaker left the room even when visiting with mother, and the social worker believed that he was more attached to the caretaker and her family than to mother. The juvenile court’s conclusion that there was no close and positive attachment to the mother was certainly supported by these facts.
Mother contends that the juvenile court erred when it did not allow mother’s therapist to testify as an expert to provide a diagnosis of mother or to critique the psychologists’ reports. The juvenile court did not err. Its determination that the therapist did not qualify as an expert in the field of psychological diagnosis or psychometric tests was well within its discretion. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) Moreover, Ms. Ohm was allowed to testify extensively about her observations of mother during the therapy sessions and provide an opinion as to the latter’s behavior.
Mother also contends that the juvenile court erred in giving any weight to Dr. Pace’s testimony and report. Again, the weight to be given to the testimony of any particular witness is a matter lying exclusively within the discretion of the trier of fact. (South Bay Irr. Dist. v. California-American Water Co. (1976) 61 Cal.App.3d 944, 965.)
Finally, mother contends that the trial court erred when it sustained a relevancy objection to questions concerning mother’s case plan attached to the jurisdiction/disposition report. Because the court had not ordered this case plan be implemented, it found that case plan irrelevant. We find neither error in this ruling or prejudice to the mother. The juvenile court noted that there was nothing new and different from the services offered at the time of detention, commenting that the issue is not which plan but which services. There was ample testimony regarding the services that mother had obtained.
DISPOSITION
The petition is denied.
We concur: RAMIREZ. P. J., GAUT. J.