Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 78783
Lambden, J.
T. H. (mother) seeks a stay and writ review of an order terminating reunification services and setting a plan hearing for her now five-year-old dependent son, Benjamin P. (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26.) We issued an order to show cause, and real party in interest San Mateo County Human Services Agency (HSA) submitted a response, which we deem the return. Because our review adequately precedes the plan hearing set for September 29, 2009, we did not issue a stay. Mother mainly argues that the court abused its discretion by terminating services short of the 12 months usually accorded a parent of a child over age three. We find no error.
All further rule and section references are to the California Rules of Court and Welfare and Institutions Code.
Background
Mother was in and out of juvenile hall between the ages of 14 and 17, and served two terms in California Youth Authority (CYA), where she completed high school and earned some college credits. She conceived S.S. at age 16, by a man with whom she had one “encounter,” and entered her first CYA term pregnant. S.S. was born in 1997 and cared for from two days old by the maternal grandmother, while mother served a further nine months in CYA for a new offense. Mother moved in with grandmother and child upon her release but had parenting conflicts with the grandmother, with whom S.S. had primarily bonded. Mother reported leaving for a homeless shelter for awhile without S.S., moving back with them, and then moving out to a shared apartment at age 20, this time with S.S.
From 1997 to the current intervention there were six child welfare referrals. An absent-caretaker report in 1997 came when mother was incarcerated, but it was arranged for the maternal grandmother to step in. A 2002 referral (deemed inconclusive) came when S.S. was very upset and reported that mother had punched him in the nose. Benjamin was born in August 2004, from mother’s relationship with boyfriend Morris P., a relationship marked by drug abuse and by domestic violence (reportedly instigated by her). A 2005 referral (deemed inconclusive) came when S.S. was caught at school with a pornographic magazine and begged staff not to call his mother because she whipped him with a belt. A referral came later that year for S.S. being in a car with the windows rolled up while mother and two other adults smoked a brown substance. This was also deemed inconclusive, but mother said she was willing to participate in counseling, a parenting class and anger management, and was given services referrals and information on the effects of domestic violence on children. The last two referrals came one day apart in September 2005. The first was for domestic violence between the adults, for smoking marijuana in S.S.’s presence, and for mother whipping S.S. with a belt. The second referral was for mother hitting S.S. on the eye and stomach after a social worker left the day before. The physical abuse allegations were substantiated, as was a substantial risk to the younger Benjamin. Mother agreed to three months of voluntary services.
As an adult, mother had convictions for petty and grand theft (1998, 2002), and reckless driving (2002). She also had arrests for assault (2008), domestic violence (2004 and 2005), and driving under the influence (2002). She used marijuana, claiming it was prescribed by a “Dr. Bee” at a clinic to alleviate migraine headaches (which she no longer had), but that she also found relieved her depression.
Mother would testify, in the current proceedings, that a series of stressful events in 2006 left her in a “severe depressive state,” unable to trust or speak with anyone, and “more snappy towards” S.S. The grandmother’s home, where mother “always” left S.S., was “shot up” in violence targeted against neighbors. S.S. was not there at the time, and the grandmother escaped injury from the gunfire but was forced to move. Later that year, mother was impregnated by “an unknown assailant” (and had an abortion), and was fired from an administrative assistant job of six months, a firing she deemed discriminatory.
Current Intervention
Benjamin and S.S. were taken into protective custody on September 11, 2008, at ages four and 12, following a school referral that S.S. had bruises on his hip, and several healing marks on one arm and his back, from ongoing physical abuse inflicted by mother with a cord, plus mother choking him so that he could not breathe. A public health nurse saw bruises and marks on his upper back and left arm, cheek, and abdominal area. S.S. reported that all of those injuries, plus a bruise on his upper right thigh, were inflicted by mother with a cord, and that she also hit Benjamin with her hand when he wet the bed. S.S. was detained in the home of his father. Benjamin had no suspicious marks or bruises when examined by police, but was detained in the home of his paternal grandmother out of concern for his vulnerable age and risk of harm due to abuse of S.S.
Petitions filed by HSA, initially on September 15, 2008, alleged substantial risk of serious physical harm to S.S. based on mother’s recent and past physical abuse of him (§ 300, subd. (a)) and, as to Benjamin, abuse of the half sibling (id., subd. (j)). Mother denied doing any more than spanking S.S., and attributed scars to S.S. “picking on himself,” but the court sustained both petitions, as amended to conform to proof, at a jurisdictional/dispositional hearing on November 5, declared jurisdiction, kept Benjamin in the grandmother’s care, and set the case for a six-month review on May 5, 2009.
Mother’s initial reaction was to deny using force beyond spanking, and she was hostile, particularly toward initial social worker Jennifer Torres. She had to be removed by security for threatening Torres at a supervised visit, and she also directed outbursts to the court at disposition.
HSA had concerns from the outset about mother’s “explosive temper,” violence, mental health, uncooperativeness, and resumed physical abuse despite voluntary services, yet initially recommended for disposition a plan of reunifying in six months. Reunification services were ordered, but only for Benjamin.
The disposition wound up being final as to S.S. and unchallenged. He was placed in the custody of his father (and a stepmother and 15-year-old stepbrother) in Stockton, with family maintenance services. Mother was granted visitation but not reunification services, and S.S. ultimately remained in the placement. He continued to recount physical abuse (beating with belt or extension cord, choking, etc.) and fear of mother, including fear that she would go too far one day and kill him. He reported that she gave him ever-increasing responsibilities, including the care of Benjamin, called him “ ‘stupid or dumb,’ ” and yelled at the least thing he did short of her expectations. He had to “ ‘walk on eggshells’ ” to keep from getting hit. Benjamin did not get “whooped with the belt or anything,” but mother did strike Benjamin. “ ‘I know my mom loves me,’ ” S.S. lamented, “ ‘but she just doesn’t treat me fair.’ ”
S.S. adjusted well to his father’s home, was accepted into the family with loving care, felt safe and happy there, bonded firmly with his father, was relaxed and relieved, and, after a period of transition in middle school, ceased getting in trouble, and made many friends. He was happy to see Benjamin and mother on visits but strongly preferred living with his father, calling it “easier than living with my mom” and saying he had “never been happier.”
Benjamin’s initial placement in East Palo Alto with his paternal grandmother was temporary, pending an assessment for placement in Fairfield with a paternal aunt and uncle who were willing and able to provide longer or permanent care. Benjamin was placed with the aunt and uncle, who embraced him as part of the family. Benjamin’s father acknowledged paternity but, due to instability, drug problems, and failure to utilize services, was never appropriate for custody and had his services terminated. He is not a party here.
Among her reunification requirements at disposition, mother was ordered to sign releases and medical consents, and to undergo and complete “counseling/psychiatric therapy as directed by the social worker, with specific treatment to be based upon an assessment completed by an approved therapist.” This proved difficult for mother to accept. She sidestepped private therapy referrals from HSA by engaging, on her own, intern Shawan Worsley from county health services. However, mother then refused for months to sign releases allowing HSA to track her progress with Worsley. She refused to sign releases mailed to her in January and February, and proposed that the social worker give her a list of written questions so that Worsley could give written responses that mother would in turn “review” before passing on to the social worker. Advised that this was not acceptable, mother did, in late March, finally sign a release that was “invalid due to numerous hand-written changes [she] made to the document.” Only on April 9, 2009, a month before the six-month review date, did she sign a release allowing the HSA to communicate with her various service providers, and by then, Worsley had left her internship at county health services and was no longer mother’s therapist. As of the last review hearing date, two months later, mother had not resumed individual therapy.
Successor social worker Emilia Jones discovered Worsley’s departure when she tried to contact her in early May and was informed of it by a supervisor. Jones asked the supervisor to have Worsley respond specifically to (1) mother’s current treatment goals and progress, (2) whether mother discussed her children and why they came into dependent care, (3) whether mother displayed insight into the roots of her anger and bouts of explosivity, (4) whether mother expressed insight into how her actions had directly or indirectly affected her children, and (5) whether she was learning techniques or strategies to channel her anger so that it did not place her children at risk of abuse. Worsley wrote back but, rather than speaking to any of those questions, wrote that mother’s treatment goals were to identify three major triggers for her depression, identify and implement one coping strategy for each trigger, and identify two sources of social support. Jones was concerned at the lack of focus on her concerns and the fact that the sessions had been only once every two weeks. She was frustrated that lack of a timely release by mother had prevented her from intervening to correct the situation.
Psychological Evaluation (Kline Report) and Testimony
Meanwhile, during the impasse over releases, mother and S.S. each underwent evaluations by psychologist Jeffrey Schreiber Kline. Kline found S.S. to be friendly, cooperative, well adjusted in his new home and, fortunately, while lacking in feelings of self-worth and competence, in no current need of any particular services unless he were to reunite with mother. Of greater concern in our review is the April 1, 2009 evaluation for mother (Kline report).
The report utilized in part information from HSA about ongoing supervised visits, but Kline noted that, due to lack of releases, he lacked input from other service providers. Kline later confirmed in testimony at the review, however, that having seen the additional information, none of his report conclusions were altered.
The report responded to requests to examine mother’s mental health, personality status, and parenting capacity, with specific responses to three questions: (1) What was the likelihood that mother could learn skills to contain her anger, see its impact, and take responsibility to have a healthier parent/child relationship? (2) What treatment plan and services did he recommend? (3) Is there a mental disability that renders mother incapable of utilizing services (mental disability defined to include the likelihood of persistent inability to safely parent for six to 12 months despite the provision of services).
Kline found mother to be articulate and cooperative but unusually “cautious and guarded” about revealing information like her history of DUI arrests, work, and domestic violence, or her rape, current romantic partner, or use of medical marijuana. She denied having a substance abuse problem and adamantly stated that she needed no toxicology screening. Mother also “selectively decided” not to respond to subjects she raised like her urges to smash things, suicidal thoughts, beatings received as a child, finding greatest happiness when alone, suspensions from school for bad behavior, and anger leading to hurting people in physical fights.
In standard clinical tests, Kline found results consistent with paranoid psychotic disorder or severe personality disorder, significant disturbances in thinking, prominent persecutory ideation, paranoid suspiciousness about other’s motives, serious thought dysfunction, unrealistic and unusual thinking and perceptions, and social alienation resulting in substantial difficulties in interpersonal adjustment. Results also showed “overall extremely elevated levels of experienced stress” in her role as S.S.’s mother, evidenced by dysfunctional parent-child interactions, and experiencing S.S. “as an extremely difficult child.” A “primary abuse risk score” was “within normal limits,” but with subscale elevations indicating feelings of being alone in the world, unhappy in life, rejected, misunderstood and worthless. Such people describe their children as having behavioral problems, and themselves as having limitations, and feeling that others have made their life difficult and painful. They feel that people cannot be trusted and that relationships are not “a positive resource.”
Kline clarified in testimony that his general report language was meant to describe mother.
Kline saw in mother “a woman who, despite attempting to present herself as exceptionally well adjusted, has serious disturbances in her thinking that include prom-inent persecutory ideation and paranoid suspiciousness about the motives of others.” She was socially alienated, with a then low risk of suicide increasing should she experience additional stress, substance abuse, or loss (like loss of a child). Such people “can be very conscientious,” extremely preoccupied with orderliness and control, perfectionistic, rigid, moralistic, and emotionally constricted, with “difficulty empathizing with the feelings of others.” Behind suspiciousness and general restraint lay intense anger and oppositional feelings that occasionally break through the person’s control. Her high stress level was “particularly evident in dysfunctional parent-child interactions” and her view that S.S. was an extremely difficult child. “While [S.S.] has manifested some behavioral problems at times, these do not appear inherent in his character at this time, as the results of his evaluation indicate.” Assuming the truth of S.S.’s accounts, mother “grossly minimize[d] the extent of her use of violent means to control him.” The social worker, Kline noted, reported that Benjamin was tense with mother, who was “hostile, controlling, emotionally distant, and engaged in conversation inappropriate for a four-year-old.”
Answering the three specific questions put to him, Kline concluded: (1) “The extent and severity of her disorders, her resistance to self-disclosure, and the repetitive nature of her aggressive conduct toward her children and other adults, suggest that her ability to learn safe parenting skills may be somewhat limited.” (2) As for a plan and services, Kline recommended completing an anger management program (then under way), parenting education, eventual family therapy, and substance abuse treatment (or at least random toxicology screening). Mother would also need extensive in-home services if reunified, and she would benefit from “a psychiatric assessment for pharmacotherapy.” The nature of her current romantic relationship had to be assessed given her history of partner violence and refusal to provide Kline with sufficient information about it. (3) Cautioning that it was a legal rather than clinical conclusion, Kline felt that mother most likely met the statutory criteria for mental disability rendering her incapable of utilizing services. “Her psychological, substance abuse, and aggressive parenting practices are severe, repetitive despite prior intervention, and long-standing.... [Mother] does not assume adequate responsibility for her misconduct, minimizes the extent of her violent conduct toward [S.S.], has expressed little interest in visiting with [him]... and has been observed as hostile and inappropriate during visits with Benjamin, who reportedly fears her.... While [mother] could sufficiently progress if given an extended time period for treatment involvement, and provided she engages fully and openly in recommended interventions, the severity and chronicity of her psychological, substance abuse, and aggressive parenting practices could not be expected to progress sufficiently to render her a safe parent within the statutory time frame.”
Kline elaborated in testimony. The stress level he measured was vis-à-vis S.S., who showed resistance to mother, whereas Benjamin was described as “astonishingly compliant,” apparently to avoid her reactions. Nevertheless, this created a risk that he might continue to be flat in affect and always gauging his behavior to minimize risks of her anger and violence, as he saw in her reactions to S.S., which was not healthy for the development of his personality. “[T]he child has to spend so much time with that, other parts of his personality go in the background and don’t develop. And then a child can look flattened, scared, alienated from other kids, afraid of other adults, and eventually develop a trauma syndrome characterized more by disassociation like a flattening of feeling, a disengagement from the world out of fear.” He was already showing “signs of that manner of coping in his personality.” A converse risk was that, as Benjamin developed and gained a greater sense of his own independence, it “set up the risk of [mother] being physically abusive to him as well. The child can’t continue to be super compliant like that.” Further risks from mother were that he would be exposed to domestic violence, marijuana use, and alcohol abuse.
Kline understood, by the time of his hearing testimony, that mother had completed parenting and anger management classes, but he was unable to assess mother’s progress in private therapy based on what Shawan Worsely had revealed. The focus of the therapy had been “[j]ust to manage her moods better,” and while Worsely noted “some progress,... it wasn’t clear what it was based on. It seems like it was based on just the discussions within the session. Not on anything else.” Worsely’s therapy goals “make sense for someone who seems to have difficulty with depression. They are relatively superficial and usually designed for short-term therapies with individuals who aren’t very deeply depressed or have characterological problems that might interfere with progress. It doesn’t really address [mother’s] diffculties that relate to the parenting.” (See fn. 2, ante.) The sessions were also rather limited, being just 14 in number and occurring every other week. Worsely was also an intern therapist. Kline had “nothing against interns,” but the extent of mother’s difficulty, he felt, required “an experienced therapist.”
Elaborating on his report supposition that mother might “sufficiently progress if given an extended time period for treatment involvement, and provided she engages fully and openly in recommended interventions,” Kline said he doubted mother was capable of engaging with a skilled therapist at a level required for such progress, or that she would be open to or compliant with any medication needed to stabilize mood or treat depression. Even if she were, he opined, she could not progress enough with another six months, or even by March 2010. “That would be just starting. That’s not very long for someone with persistence of difficulty and severity of difficulty she has had since childhood.” Citing the severe and long-term nature of her difficulties, he said, “I would say start with two years, and at the end of two years have the mother evaluated again.” Dyad-type therapy, he felt, was inappropriate for mother until she demonstrated she had settled into consistent therapy for herself, and this was something mother had not yet demonstrated.
Status Report and Testimony
A status report was prepared for the review by social worker Emilia Jones, the successor to Jennifer Torres since December 2008, and it recommended terminating mother’s reunification services at six months and setting a permanent plan hearing. It documented key findings from, plus some background information alluded to in the Kline report. Mother’s conversations inappropriate for a four-year-old were repeated questions to Benjamin, whether anyone touched his private parts and warnings that he should not allow that or ever shoot guns. She had also told him at an early visit that the agency “likes to separate families like back in the days of slavery.” Very late in the proceedings, mother phoned Benjamin asking if he missed her and was “ready to come home”; Benjamin said yes but repeatedly tried to get off the phone. Jones spoke to Benjamin’s fear of mother, saying he had told her several times that he feared her, and Jones read his “great deal of caution” around mother as fear. Jones had also personally witnessed mother’s explosive and angry behavior, and at times feared for her own safety.
A mental health assessment of Benjamin was done in early April by therapist Marie Clemente, who met individually with him, his caretakers, and mother. Clemente found in the boy an astonishing “level of over compliance” and suggested dyad therapy (mother and child together) and play therapy to address this deficit in Benjamin’s “social-emotional needs.” When she suggested this to mother, mother “rolled her eyes” and, in a matter of seconds, transformed from calm and focused to “irate and verbally explosive.” She said, before leaving, that she and her son were fine, needed no therapy, and that “the system” was hurting them. Clemente saw in the rapid and unforeseen outbursts reason for Benjamin’s “insecurity, self protective over compliance and emotional shut down[.]”
Mother had successfully completed an anger management course, but Jones’s efforts to gauge her progress were impeded by lack of a release until late April. When program director Bill Tiedman did respond to Jones, passing along a mid-point progress note by an instructor, it revealed only that mother attended 10 out of 16 sessions, seemed to “intellectually grasp” the material, and that there was no way to assess her relationship with her children or whether she was implementing the strategies and techniques. She rarely discussed her children, and was primarily concerned with her relationship with her mother. Tiedman also told Jones that he would not say mother had made substantial progress in the class. With a few sessions left to go, he felt she had gotten all she was going to get out of it, and needed to do more individual work. Asked his opinion on how long mother needed to benefit from individual therapy, based on his work with her in anger management, Tiedman said, “ ‘That’s hard to say, but Id. say at least several years worth.’ ”
Mother had made 20 ordinary visits since the disposition, some going well and some not, and a few others missed or marked by mother’s lateness. Mother’s moods were mercurial, sometimes growing angry, and other times saying she “accepted the feedback.” Benjamin sometimes would not bother to say goodbye to her, and he did not display any sadness or separation anxiety when their visits ended.
In May, upon realizing that dyad therapy was not going to work, Jones suggested therapeutic visits, where a therapist would observe the visit and give feedback to the parent. Mother had two such visits. The assessment was that they went well, and mother testified that she enjoyed them. Jones testified that mother expressed great reluctance to take psychotropic medications.
Jones related that mother proposed, in an April 22 phone conversation, a plan A/plan B scenario for Benjamin. Plan A was that the caretakers would continue to take care of him, and plan B was that Benjamin would reside with her. The aunt also reported that Jones had proposed to them the evening before that she was “ ‘going through a lot’ ” and that if they took care of Benjamin, she would provide them with monetary assistance whenever she could and visit the child on weekends.
A May report addendum revealed the disappointing information about mother’s private therapy (see fn. 2, ante), and a second addendum related that mother had completed a parenting class and, despite earlier insisting that she did not need it, asked Jones about starting dyad therapy. Parenting class facilitators reported that mother attended 10 out of 13 classes and made some progress, was initially “very defensive and unwilling to participate,” but toward the end, “became more involved.” Dr. Kline deemed dyad therapy premature, as did Clemente, who urged re-engaging first in individual therapy, explaining, “ ‘I wouldn’t put her in a room with Benjamin for therapy before she shows progress in her explosivity, insight, and ability to self regulate.’ ”
Under no circumstances did Jones feel that Benjamin could be safely returned to mother, even with extended statutory time. She mirrored Kline’s concerns, adding that what concerned her was that Benjamin would not always be an obedient four-your-old, “the obedient and compliant little boy that he is today,” and it concerned her how mother might respond to Benjamin, now and in the future.
On May 5, 2009, the scheduled first day of review, mother submitted on HSA’s recommendation to terminate the dependency as to S.S. and grant full physical and legal custody to the father due to S.S.’s progress in that home. Mother sought a contest for a recommended termination of services and plan hearing for Benjamin, and the contest was heard on May 15 and June 3.
We have already recited most of the evidence supporting termination of services, but mother testified as well, contradicting or trying to explain away much of it. Her plan A/plan B comments to the aunt, she said, were “a misunderstanding in communication,” for she meant to have Benjamin returned to her care and “never said” to the aunt that she wanted her to continue caring for him if reunification could not occur. Mother said she only suggested that, if she got custody, Benjamin would stay with the aunt a couple weeks to say goodbye to friends and “have closure there” rather than be “ripped from another home” back to hers. The aunt agreed to maintain relations with Benjamin and “help out” every month or two. Plan B, she told the social worker, was that “if the court didn’t grant me custody of Ben, that they would try to seek out I guess guardianship but they wouldn’t like try to get him adopted.” She also blamed problems with visits on “miscommunication” about scheduling—plus some bus transportation challenges when she did not drive herself. Clemente’s view that mother had refused dyad therapy as not needed was a “misunderstanding,” and mother never got angry about it or said the system was hurting her or Benjamin. Mother did not “refuse to sign any consent form related to the kids,” and she had “a general release” on file as to her own therapy that she planned to change after she had “dealt with it, trust issues, and other things[.]” A report by Benjamin asking her to stop, and crying when he saw her stomp S.S.’s neck was “a lie”: it never happened, and Benjamin was “nowhere around” whenever she spanked S.S. Someone could have put this information in the child’s mind. As for Benjamin’s compliancy, he was definitely not afraid of her, just by temperament “very respectable,” having gone to “a Bible-based day care.” As for feedback at visits from social worker Jones on how to interact with Benjamin, Jones gave her none except when mother spoke to Benjamin about guns and whether he was touched in his private parts. The touching, mother explained, is something she “always check[ed]” with her boys because they were not in her own care; inconsistently, she also said she did not feel she had to ask Ben about it anymore: “I feel he is at the level where he’ll share it with me.” S.S.’s report of being hit in the stomach by her after the investigator left the home in 2005, and of her choking him and knocking him down, were not true. Mother conceded getting in-home voluntary services for S.S. in 2005 but denied saying she was willing to participate in counseling, parenting class and anger management, or getting referrals for any of those services. She never “intentionally” refused to answer any questions on the psychiatric tests for Kline, and she never smoked marijuana in front of her children, explaining, “I never take medication in front of my kids, ever.”
In other testimony, mother confirmed some evidence, like her strong aversion to taking prescribed drugs (besides marijuana) to treat her depression disorder. She stood against “any type of non-natural medication” or “psych meds” and would take them only if “necessary”—meaning, should a “professional psychiatrist” (not a “bias person” (sic) for whom they were “routine”) tell her, “[Y]ou can’t get better unless you take these meds.” She felt she had benefited from private therapy with a therapist of her own choosing, and gained from her anger management and parenting classes, and recent therapeutic visits. She said she lived alone now but had been dating someone (unidentified) for six months. She remained unemployed throughout these proceedings, except for volunteer work.
Ruling
The court recited that it had listened to both days of testimony, observed the demeanor of witnesses, and reviewed all documents, including addenda and the Kline report. It ruled orally as follows: “Mom, my duty is to decide the welfare and benefit to your son Benjamin. I have to take into account many things.
“Frankly, I don’t think that you are going to work with the professionals in the way you need to to accomplish the goals that [HSA] has for you to get your child back. And, realistically, I don’t believe you would take the medicine, meds that would be prescribed for you to help you deal with the issues that you have. And some of the things you said... [in] your testimony here—gives me great pause.
“I’m not going to do an idle act to provide services for another four months basically and waste the resources of the community for something that is not going to accomplish any good in the long run.
“I don’t find that there is substantive or substantial progress that has been made by you. I don’t find that your child Benjamin would be returned to you whether six months, 12 months or even 18 months from the time he was removed.
“I accept Dr. Kline’s conclusion there that it would be a much longer process in order for [Benjamin] to be safe. I am also taking into account what you did to your older son and the circumstances of that and what transpired before.
“As a result, I find by clear and convincing evidence that Benjamin would not be returned to you within the statutory periods of time by either six, 12 or 18 months.
“I find that you have not by clear and convincing evidence made substantial progress. I don’t mean that you haven’t attended the courses. I accept that you have. I don’t think it’s kicked in in your mind and in your emotions, and I feel that Benjamin would be at risk if he were with you.
“As a result, I’m going to terminate the services to you.” The court set a plan hearing (§ 366.26) for September 29, 2009.
Discussion
I. Early termination of services
The age of a child when initially removed from parental custody determines the presumptive minimum length of reunification services afforded the parent—six months for children under age three and 12 months for older children. (§ 361.5, subd. (a).) The juvenile court nevertheless retains discretion, in an unusual case, to terminate the services earlier, whether the child be under (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1237 (Aryanna C.)) or over (In re Derrick S. (2007) 156 Cal.App.4th 436, 439 (Derrick S.)) the age of three.
Benjamin was four years old when initially removed. The 12-month period began to run at the dispositional hearing on November 5, 2008 (§ 361.5, subd. (a)(1)(A), and the court terminated services on June 3, 2009, five months short of 12 months.
This action was filed in 2008, but out of caution, our calculation of the period gives mother the retroactive benefit of an amendment, effective January 2009, that makes the dispositional hearing the starting point. (§ 361.5, subd. (a)(2)(A), Stats. 2008, ch. 457, § 1.5, No. 8 West’s Cal. Legis. Service, p. 2738.) The period previously started upon the earlier of the jurisdictional hearing date or 60 days after the initial removal from parental custody. (In re N.M. (2003) 108 Cal.App.4th 845, 852.) Neither party notes that change, but our ultimate assessment of abuse of discretion would be no different under the former or current versions of section 361.5, subdivision (a).
As our division explained in Derrick S.: “The exercise of... discretion to terminate services short of 12 months will... be very infrequent. Such a decision will be warranted only in those situations where the parent has already received or been offered reunification services, thus giving the juvenile court a basis for evaluating whether additional services will be utilized by the parent in the time remaining for reunification. Only from this historical perspective will the juvenile court be able to conclude, as the Aryanna C. court emphasized, that ‘the likelihood of reunification is extremely low.’ [Citations.]” (Derrick S., supra, 156 Cal.App.4th at p. 450.)
We review an exercise of discretion. This is “ ‘not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles... to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ [Citations.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) We reverse only arbitrary, capricious, or patently absurd determinations (In re Arthur C. (1985) 176 Cal.App.3d 442, 446), and, for factual matters, test for substantial evidence (In re Robert L., at pp. 1066-1067), which governs findings made by clear and convincing evidence (Crail v. Blakely (1973) 8 Cal.3d 744, 750). It is the trial court’s role to assess the credibility of witnesses and weigh the evidence to resolve conflicts and conflicting inferences. In review, we accept the evidence favorable to the ruling and discard unfavorable evidence as having been rejected below. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Mother’s petition recites, in about two and a half pages, almost exclusively facts supporting compliance with her case plan—anger management and parenting classes, private therapy of her choosing, and her own testimony claiming misunderstandings and professing willingness to learn, accept constructive criticism, and undergo a medication evaluation. This showing, however, avoids contrary evidence and inferences and, on its face, fails to show abuse of discretion (Rayna R. v. Superior Court (1993) 20 Cal.App.4th 1398, 1407). It also fails to address or factor in the implicit finding by the court below, after it considered all of the evidence and mother’s demeanor on the stand, that much of her testimony lacked credibility, and that we cannot second-guess such a finding on appeal. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; In re Sheila B. (1995) 19 Cal.App.4th 187, 199.)
We have nevertheless examined the full record, partially aided by HSA’s more comprehensive briefing, and set out that evidence at length in the background part of this opinion. We need not reiterate it to make the point, but the record supports the ruling to terminate services early. In essence, this was a case where, despite grave misgivings from the outset about mother’s ability to benefit from services, HSA felt that the record of mere voluntary prior services and inconclusive prior referrals made foregoing services altogether questionable. So HSA supported trying reunification services and waiting to see what would happen. Monitoring the situation was made difficult by mother’s refusals to provide releases until five months into the services, and meanwhile, the Kline report gave strong support that services could not be effectively utilized by mother or result in reunification, even within full or extended statutory time.
This case certainly is, as mother urges, factually distinguishable from Aryanna C. or Derrick S., but then virtually every case will be. Those precedents did not purport to announce the only circumstances that will support an early termination of services. (Cf. People v. Perez (1992) 2 Cal.4th 1117, 1125 [case precedent “did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation”].) Rather, they support a broader proposition that early termination is justified “when [the court is] confronted with a parent who is unwilling or unable to benefit from additional reunification services, or if for other reasons the likelihood of reunifying the family is faint.” (Derrick S., supra, 156 Cal.App.4th at p. 439, italics added.) The court below could rationally find that this was such a case.
The petition urges: “Here, mental health issues predominate and mother should not be punished or treated differently than those parents not afflicted with mental health problems. Due process and equal protection require[] no less.” What we require for such an argument to prevail on appeal, however, is authority or compelling logic. Mother offers neither, and it would make no sense to require a child to remain at risk of harm because his parent’s inability to parent was based on “mental health issues.”
A finding by clear and convincing evidence that mental disability renders a parent incapable of utilizing services is an established reason under section 361.5, subdivision (b)(2), for not ordering services in the first place, and the court here made its findings of no substantial progress, and no return within a period of even 18 months—based in part on the Kline report—by clear and convincing evidence. Settled law is that neither due process nor equal protection is violated by denying services based on any of the various classifications in section 361.5, subdivision (b) (In re Joshua M. (1998) 66 Cal.App.4th 458, 472-477), and, by their very nature, reunification services presume some capacity to achieve reunification goals. The fact that a parent suffers from emotional problems or developmental disability does not excuse her from the statutory requirement of participating in a reunification plan or services. (In re Christina L. (1992) 3 Cal.App.4th 404, 415; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
II. Other issues
HSA first sought early termination of services in its status review report filed on April 24 for the May 5 review, then repeated the request through a modification petition (§ 388) filed on June 3, 2009, the second day of the review contest. The modification petition was filed out of caution, HSA having discovered during supplemental briefing that new amendments to sections 361.5 and 388, effective January 2009, required an early termination of services to be initiated under section 388. (Stats. 2008, ch. 457, §§ 1.5-2, No. 8 West’s Cal. Legis. Service, pp. 2738-2739, 2744-2745.)
Mother’s counsel, Juris Dumpis, aware of the termination request since at least May 5, had raised no objection to termination being sought in the review report, and had sought a contest in light of it. Then on June 3, when HSA made its precautionary filing, Dumpis objected based on “notice” (perhaps alluding to a code requirement of “advance notice” in section 386). The court asked Dumpis to clarify, given that he had notice of the request a full month in advance of the modification petition, and while counsel continued to object to the correction as “unfair,” he conceded that he suffered no surprise or prejudice.
“Mr. Dumpis: So I brought up the issue of notice.
In a single paragraph, mother repeats her complaint about the irregularity, calling the section 388 petition “untimely and lacking notice,” but ignoring the concessions made by counsel below. We, like the trial court, see no due process problem or other prejudice and therefore reject the claim of error.
Mother also complains, in a single sentence, that the court failed to make “requisite finder [sic] set forth in Welfare [and] Institutions Code section 366(a).” She gives no elaboration or clue as to what defect she sees, and cites only three pages of transcript where the court gave its oral ruling, ignoring the ensuing written order. This failure to adequately show error or prejudice requires no further response. (Rayna R. v. Superior Court, supra, 20 Cal.App.4th at p. 1407.)
Disposition
The petition is denied on the merits. (Kowis v. Howard (1992) 3 Cal.4th 888, 894 [barring later challenge by appeal]; § 366.26, subd. (l)(1).) Given the proximity of the plan hearing, our decision is immediately final as to this court.
We concur: Kline, P.J., Richman, J.
“The Court: Notice of what?
“Mr. Dumpis: The notice on the 388.
“The Court: How is that prejudicial in light of the fact that the reports way back on May 5th indicated the desire to terminate services?
“Mr. Dumpis: Well, I don’t know that it’s prejudicial. It’s certainly unfair because we have a situation where [HSA] is recommending termination at the six-month hearing.
“After county counsel does some research, they discover there [are] some cases that deal with the issue, and lo and behold the appropriate vehicle for terminating at such an early stage is via 388. It’s kind of a bootstrapping approach to try and accomplish something in an illegal fashion. That’s my objection to the 388.
“Obviously, the issues are going to be identical. I recognize that. I’m not saying: Oh, my God. What’s happening here?
“I just think it’s unfair that at the last minute they discover what the appropriate vehicle to do is and try to comply with that.”