Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. OJ-07-008334
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On October 7, 2008, the Alameda County Superior Court, Juvenile Division, entered an order in this proceeding that denied reunification services for T. W. (Mother) and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for L. W. (the minor). Mother challenges the order by petition for extraordinary writ, claiming the juvenile court erred in making certain findings. As discussed below, we conclude there is substantial evidence to support the contested findings, and we deny Mother’s petition on the merits.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
Mother is developmentally disabled and has a history of mental health issues. These affected her ability to provide adequate care for the minor’s four older siblings, and resulted, at least in part, in Mother’s loss of custody of those children in prior dependency proceedings. Shortly before the minor’s birth, Mother obtained placement in a licensed board and care home administered by the Alternative Learning Center (ALC), hoping that her residence in this supportive environment would enable her to retain custody and care of the minor, her fifth child.
The ALC home, located in Oakland, is designed to accommodate a total of six individuals and is dedicated to providing supervision and support for developmentally disabled adults with infant children. It is funded by the Regional Center of the East Bay (RCEB)—a nonprofit organization devoted to assisting individuals with developmental disabilities. The home is “transitional” in the sense that a resident parent and child are expected to leave and live independently after the parent completes a three-year period of training in parenting and independent living skills. There is at least one staff person present in the ALC home at all times, to supervise and assist the residents.
The county’s Social Services Agency (Agency) initiated this proceeding in late October 2007, after Mother gave birth to the minor. Hospital staff had reported a lack of bonding with the infant and an apparent inability to provide reasonable care. The petition, as amended, alleged Mother “has chronic mental health issues as well as developmental disabilities that impair her ability to provide consistently responsible and adequate care for the minor.” (§ 300, subd. (b).) It also alleged Mother’s loss of custody of the minor’s older siblings, “due to [Mother’s] mental health issues and unstable housing,” and stated that parental rights had been terminated as to three of those siblings. (§ 300, subd. (j).)
The juvenile court entered an order detaining the minor in out-of-home custody on October 25, 2007, and commenced a contested jurisdictional/dispositional hearing the following month. The Agency’s dispositional recommendation was that the court remove the minor from Mother’s custody and deny Mother reunification services pursuant to section 361.5, subdivision (b)(2), (10), and (11). Mother contested these recommendations, taking the position that the minor could safely be placed in her custody and care based on her residence in the ALC home.
The juvenile court did not conclude receiving evidence in the jurisdictional/ dispositional hearing until mid-August 2008. During the intervening period – almost 10 months from the date of the minor’s initial removal from Mother’s physical custody – Mother had extensive visitation with the minor at the ALC home. Eight-hour visits were scheduled five days a week. The evidence presented during the course of the contested jurisdictional/dispositional hearing included testimony and reports concerning Mother’s care of the minor during these visits.
On September 23, 2008, the court announced its decision sustaining the jurisdictional findings noted above. On October 7, it entered its dispositional findings and orders. These included a finding, by clear and convincing evidence, that returning the minor to Mother’s custody would cause a substantial danger to the minor’s physical health, safety, protection, or physical or emotional well-being and there were no alternative means to protect the minor. (See § 361, subd. (c)(1).) They further included findings by clear and convincing evidence that the court made with respect to Mother pursuant to section 361.5, subdivision (b)(2), (10), and (11). On the basis of these findings the court denied reunification services for Mother. The court then set the matter for a hearing under section 366.26. Mother’s petition followed. (§ 366.26, subd. (l).)
Discussion
A. The “Substantial Danger” Finding
Before ordering the removal of a minor from a parent’s physical custody pursuant to section 361, subdivision (c)(1), a juvenile court must find, by clear and convincing evidence, that the minor is at risk of substantial danger to his or her physical health, safety, protection, or physical or emotional well-being if left in the parent’s custody, and there are no reasonable alternatives to removal by which the minor’s physical health can be protected. (In re Isayah C. (2004) 118 Cal.App.4th 684, 695 (Isayah C.).) Mother contends there was insufficient evidence to support that finding in this case. In Mother’s view the evidence established that the minor could safely be placed in her custody and care, conditioned on her residence in the ALC home.
Mother’s argument summarizes in detail the evidence favorable to her. She also questions the credibility of one witness whose testimony was not favorable. Our task, however, is to determine whether there is substantial evidence that would permit a reasonable trier of fact to make the challenged finding under the clear and convincing evidence standard of proof. (Isayah C., supra, 118 Cal.App.4th 684, 694.) Under this standard of review we do not reweigh the evidence; nor do we pass on the credibility of witnesses. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333 (Christopher L).) We view the record most favorably to the juvenile court’s ruling, resolving all conflicts and drawing all reasonable inferences in its favor. (Ibid.)
In a psychological evaluation completed in December 2007 and admitted with one of the Agency’s dispositional reports, the evaluator, Sherry Lebeck, Ph.D. (Lebeck), gave Mother an Axis I diagnosis of delusional disorder, persecutory type, and a dissociative disorder not otherwise specified. Lebeck gave Mother an Axis II diagnosis of borderline intellectual functioning, as well as a personality disorder not otherwise specified with schizoid, compulsive, dependent and narcissistic traits. Lebeck likened Mother’s presentation to that of a “vulnerable child,” who was distrustful of external interactions and exhibited tangential speech that was often difficult to follow. Mother sometimes responded to Lebeck’s questions with a blank stare, and at other times seemed paranoid, questioning the purpose of some of Lebeck’s inquiries into her personal history. Lebeck noted Mother had refused to take a Rorschach test, insisting that only people with “problems” could see things in the inkblots, whereas she herself had no problems. Lebeck stated it was clear Mother was functioning at borderline intellectual capacity, that she had problems forming attachments with people, including her children, and that these problems, together with her delusional disorder and personality disorder, gave Mother “ ‘impaired judgment, immaturity, impulsive proclivities, low tolerance for frustration, and extreme defensiveness,’ ” all symptoms that would hinder Mother’s “ability to provide a stable physical and emotional environment” for the minor. Lebeck noted that, while the ALC home might be able to coach Mother in performing practical parenting tasks, such as changing a diaper, it could not resolve Mother’s attachment difficulties or “defuse” the character traits of her personality disorder. Lebeck concluded that Mother’s prognosis was poor, “especially in the realm of providing her child responsible care” and stated that her greatest concern was that Mother would not be capable of caring adequately for the minor once she was no longer eligible to reside at the ALC home. In Lebeck’s professional opinion, the minor would not benefit from a placement with Mother.
The multiaxial assessment system of the Diagnostic and Statistical Manual of Mental Disorders (DSM) includes all mental disorders in Axis I, with the exception of personality disorders and mental retardation, which are Axis II disorders. (DSM-IV (4th ed. 2000) Multiaxial Assessment, pp. 27–28.)
Lebeck also testified at the jurisdictional/dispositional hearing. She noted that Mother’s mental health issues and her developmental disability were “intertwined,” and that her prognosis was therefore poor. For example, Lebeck reported that Mother had stated she had been “going along with it” at the ALC home, but “already knew all of the things” they were attempting to teach her. Thus Lebeck regarded Mother’s mental health issues as an impediment to her ability to take advantage of the parenting and life skills training she was receiving at the ALC home. Noting that Mother’s overall ability to function in the world was, in Lebeck’s assessment, “pretty low,” the psychologist reiterated her concern that the ALC home, while qualified to assist mother with concrete parenting tasks, could not assist an individual with Mother’s “level of disconnect” to understand parenting “in the way that [she] would need to in terms of raising a child . . . on [her] own.” Lebeck confirmed her opinion that the minor would not be safe in Mother’s care, based on her observations.
Lesley Jones testified in May 2008 as one of Mother’s current parenting instructors at the ALC home, who had begun working with Mother in March 2008. Jones affirmed earlier statements she had made to the Agency’s assigned case worker, to the effect that Mother would require “24/7 supervision forever” in order to care adequately for the minor. Jones noted that Mother required repeated instructions for parenting tasks yet did not seem able to “absorb concerns” that were expressed to her. Mother’s response to direction was frequently defiant, and she insisted on doing things “her way” even though they might be harmful. For example, Jones described instances in which Mother had resisted placing the minor on the floor to allow the infant to exercise her motor skills, instances in which Mother exhibited poor judgment in feeding or cleaning the minor despite instructions, and instances in which Mother left the minor unattended on a bed after instruction that to do so was dangerous. Jones noted additionally that Mother appeared to be self absorbed and unmotivated to go outside the home, visit relatives, or otherwise seek out stimulating activities for the minor.
It is true there was other evidence in this case that offered a more positive view of Mother’s parenting capacity, particularly the testimony of her therapist of six years, Marilyn Senf, Ph.D. As we have noted, however, we view the record in the light most favorable to the ruling and resolve conflicts in its favor. If the finding is supported by substantial evidence, we affirm the ruling, even though other evidence might support a contrary conclusion. (Christopher L., supra, 143 Cal.App.4th 1326, 1333.)
It is also true that harm to a minor is not presumed from the mere fact of mental illness or disability of the parent, and that there must also be evidence showing specific instances in which a parent’s mental illness has affected the minor or might adversely affect the minor’s safety. (In re Jamie M. (1982) 134 Cal.App.3d 530, 540.) We are satisfied that the evidence we have summarized above shows such specific instances. It provides, in other words, substantial support by which a reasonable trier of fact could find, under the clear and convincing standard of proof, that there is a risk of substantial danger to the minor’s physical health, safety, protection, or physical or emotional well-being if she were returned to Mother’s custody. Also we find that substantial evidence supports the finding under the clear and convincing standard that Mother’s residence in the ALC home, which offered only a three-year period of supervision and instruction, was not a reasonable alternative to removal for protection of the minor’s physical health.
B. Denial of Reunification Services
As we have noted, the juvenile court made a finding with respect to Mother, pursuant to section 361.5, subdivision (b)(2). That is, the court found by clear and convincing evidence that Mother suffered from a mental disability that rendered her unable to care for the minor adequately and rendered her incapable of utilizing reunification services. (§ 361.5, subd. (b)(2); see also Fam. Code, § 7827, subd. (a).) The court additionally found that, even if reunification services were provided, Mother was unlikely to be capable of adequately caring for the minor within the applicable time period for such services. (See § 361.5, subd. (c).) Because of the minor’s age, the applicable time period in Mother’s case was a six-month period that ended in late June 2008. (§ 361.5, subd. (a)(2).)
The six-month period began 60 days after the date of the minor’s initial removal from Mother’s custody in late October 2007. (See § 361.5, subd. (a).)
Mother challenges these findings, urging they are unsupported by the evidence. Her argument essentially summarizes the evidence favorable to her, while attacking two of the three psychological evaluations admitted into evidence. One, an evaluation completed in September 2001 by Warren Taylor, Ph.D. (Taylor), was in Mother’s view too “dated” and failed to consider Mother’s more recent history. The second, Lebeck’s evaluation, was of suspect value according to Mother because of Lebeck’s reliance on a review of Agency reports in both this and earlier dependency proceedings involving the minor’s older siblings, her reliance on Taylor’s earlier report, and her reliance on largely subjective testing and observations.
Again we review the challenged findings to determine whether there is substantial evidence that would permit a reasonable trier of fact to make the finding under the clear and convincing evidence standard. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474 (Curtis F.).) Thus we do not reweigh the evidence or revisit credibility issues. Rather, we consider the evidence in the light most favorable to the ruling, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Angelique C. (2003) 113 Cal.App.4th 509, 519.) Again, if the finding is supported by substantial evidence, we affirm the ruling, even though other evidence might support a contrary conclusion. (Christopher L., supra, 143 Cal.App.4th 1326, 1333.)
To support a finding under section 361.5, subdivisions (b)(2) and (c), the juvenile court must obtain the reports of at least two qualified experts. (Curtis F., supra, 80 Cal.App.4th 470, 473; see Fam. Code, § 7827, subd. (c).) It is not necessary that the experts agree. (Curtis F., supra, at p. 474.) In this case, as we have noted, there were Dr. Taylor’s September 2001 evaluation and Dr. Lebeck’s December 2007 evaluation. There was also a third evaluation completed by an RCEB psychologist in February 2007.
We have previously summarized Dr. Lebeck’s evaluation and testimony. Dr. Taylor’s evaluation reached similar diagnoses and conclusions. While the Taylor evaluation was completed several years before the initiation of this proceeding, that circumstance does not necessarily invalidate the evaluation, although it might affect its weight. Lebeck testified that it was not unusual for the two evaluations to have reached similar conclusions, because Mother’s mental health issues and developmental disabilities were of a “pervasive” nature and were “not going to change all that much” with the passage of time.
As for Dr. Lebeck’s evaluation and testimony, the juvenile court qualified her as an expert witness in mental health diagnoses and developmental disabilities. She testified that it was appropriate for her to review Taylor’s evaluation and Agency reports “to get the entire picture.” There is nothing inappropriate or unusual in a mental health professional reviewing prior evaluations along with other history in determining a diagnosis and prognosis. Declining to consider such information would be unusual at best.
In our view, Lebeck’s evaluation and testimony, together with Jones’s testimony, both summarized above, provide substantial support permitting a reasonable trier of fact to find that Mother suffers from a mental disability “that renders . . . her incapable of utilizing [reunification] services.” (§ 361.5, subd. (b)(2).) That same evidence also similarly provides substantial support for the finding that Mother was unlikely to be capable of caring for the child adequately within the six-month period applicable in this case. (§ 361.5, subd. (c); see § 361.5, subd. (a).) Dr. Taylor’s evaluation provided additional support for both findings.
We conclude the juvenile court’s denial of reunification services for Mother under section 361.5, subdivisions (b)(2) and (c), was supported by substantial evidence. Consequently we need not consider whether the court’s denial of services was also proper under section 361.5 subdivision (b)(10) and (11). Subdivision (b) of section 361.5 provides that denial of services may be predicated on “any” of the numerous possible bases.
Disposition
The request for stay is denied and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur: Marchiano, P. J. Margulies, J.