Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. JV070221-1 and JV070221-2
Kline, P.J.
Introduction
In these consolidated petitions A.B-E. (mother) and A.E. (father), parents of H.E. and S.E., each seek issuance of an extraordinary writ and a stay from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing for April 27, 2009.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Mother argues: (1) the juvenile court’s finding of reasonable services was not supported by the record; (2) she was denied reasonable visitation; (3) the court’s finding of substantial risk of detriment was unsupported; (4) ICWA notice provisions were not followed; and (5) termination of all maternal visitation at the 12-month review hearing was error.
Father contends: (1) the court should have found extenuating circumstances to extend reunification services; (2) father did not receive reasonable services; (3) there was no reasonable basis to move from unsupervised to supervised visitation or to deny placing the children with him; and (4) the court abused its discretion in terminating reunification services where father made substantial progress and was in substantial compliance with his case plan.
We shall affirm the orders.
Factual and Procedural Background
On October 2, 2007, the Humboldt County Department of Health and Human Services (department) filed a petition under section 300, subdivisions (b) [failure to protect] and (c) [serious emotional abuse] for then two-year-old H.E. and 16-month-old S.E. Mother and father had been involved in a marital dissolution action “where the parents’ bitter custody battle and accusations had raised concerns for the children’s welfare.” (In re H.E. (2008) 169 Cal.App.4th 710, 712.) The facts and procedural background from detention through the court’s taking of jurisdiction and the disposition proceedings are set forth in In re H.E., in which we affirmed the disposition orders on the mother’s appeal. (Id. at pp. 712-718.)
Following disposition, the department requested a 45-day continuance of the six-month status review hearing to allow time for receipt of the psychological evaluations of the parents by Andrew Renouf, Ph.D. Counsel for the children did not object to the continuance, but requested termination of visits with the maternal grandparents and insisted that “at a minimum” visits with the mother needed more structure and direct supervision, as mother’s negative behavior in the presence of the children had a clear, direct, and negative impact on the children. Attached to this response was a letter from the adoptions caseworker to the children’s attorney. The worker wrote that she was concerned about the wellbeing of the children, as mother was not capable of controlling herself at the frequent visits and that on at least one occasion law enforcement had to be called. In the children’s presence, the mother continued to accuse the father of sexually molesting the children, to accuse the department and the court system of having stolen her children and planning to sell them for profit, and to assert the children were being abused in foster care. The statements upset the children, who returned from visits acting aggressive and violent (hitting, kicking, tantrums, and so forth). The children had toileting issues and nightmares after visits. The foster mother reported that H.E. was found packing up her toys and related that the mother had said she was moving to Oregon where they (presumably the foster parents and social services) will never find them. The letter also related concerns about the father’s behavior. Father, who had a criminal history, had pulled a knife on a developmentally-delayed youth at the mall while visiting with the girls and H.E. had commented to her caretaker that the father “ ‘takes pictures of my butt.’ ”
This followed an incident at a mall involving the grandmother and mother interfering with father’s visit with the children, wherein the police were called after father allegedly struck mother in the face with his elbow and grandmother hit at least one of the foster mother’s children with her cane, calling them “white trash” and swearing at them.
The report prepared for the six-month review reported that the children had been placed in a concurrent placement in early April. The parents continued to make allegations against each other. Mother had completed a parenting class and would complete her psychological examination later in the month. Father had completed his psychological evaluation. He was unemployed and his living conditions were not stable. He was living in a travel trailer rent free in return for work on the property in Willow Creek. It was not known whether a pen had been built to house his two dogs or if the area had been cleaned of debris. He had not completed a parenting class. He reported that he had a new girlfriend; a woman with two children. The girlfriend had a lengthy child welfare history with the department, had been arrested recently, and was in custody for a probation violation.
Both parents had been warned on numerous occasions that they must not talk about the case in any manner. However, both parents continued to do so. The children returned from visits talking about going home to live with the father in May and talking about lawyers and court. The foster parents reported that after visits H.E. was more aggressive and had the need to clean excessively. She would not go to sleep until she cleaned everything in her room. The foster mother reported that S.E. was extremely quiet and withdrawn after visits. Both children had nightmares. The girls returned from visits in a bad mood. Both were aggressive towards each other, biting and kicking. S.E. was very clingy after visits with her mother. After the last visit with her father, S.E. defecated in her pull up, when she had been using the toilet. Both parents show partiality toward H.E. The visits continued to be very stressful on the children. They were more calm and relaxed on weekends when there were no visits. The six-month report reiterated H.E.’s statement that mother was taking them to Oregon where no one would find them. H.E. also stated that they were going to live in Willow Creek with father. Mother repeatedly attempted to feed the girls formula in a bottle despite instructions not to do so. On one visit, mother became so distraught at the staff’s trying to explain to her that the girls did not need formula and bottles during visits, that for a second time during her visitations, the police were called and threatened to arrest her if she did not calm down.
Mother continued to make numerous accusations about the father, the department, the court system, and care providers abusing her children. The children were often present during these tirades. Both parents stated they did not want anything to do with each other and both obtained restraining orders against each other; however they continued to talk on the phone and communicate with each other, which further challenged the department’s role in the case.
The court-appointed social advocate (CASA) worker’s six-month review report disagreed with the department’s recommendation for another six months of services. CASA recommended that services be terminated and the matter referred to a section 366.26 hearing. The CASA report related that the children appeared to be very happy in their placement and very comfortable with the foster parents, and the foster parents’ mother, who lived in the home. CASA had observed the children’s mother’s extreme inappropriate behavior and had been told about instances of the mother and the father acting in disturbing ways in front of the children. These included the children having witnessed their mother physically assault the former foster mother, having witnessed their father threaten a developmentally-disabled individual with a knife, having witnessed their grandmother assault their former foster brother, whom the children view as a sibling, and having witnessed their mother assault their father. Additionally, H.E. had to be physically removed by law enforcement from her mother’s arms during a visit and father had reported to the former foster mother that he had handcuffed S.E.’s feet during a visit to keep her from running off. Both children exhibited anxiety, with H.E. often demonstrating physical aggression toward others and continuing to walk on her tip toes. S.E. had begun to exhibit the same behavior to a lesser degree. H.E. constantly chewed her thumb, which the pediatrician indicated was a reaction to anxiety. The chewing increased after visits with the mother. CASA opined that the frequent visitation schedule was adding to the stress level of the children and impeding their ability to relax. After visits, H.E. appeared nervous, emotional and often fell asleep immediately. It took the remainder of the day for her to recover from a visit, to calm down and appear comfortable and relaxed. S.E. was unable to get to sleep or to stay asleep after visits. She often needed to be rocked for a couple of hours in the middle of the night.
Counsel for the children believed that reunification services should be terminated for the mother and that her visits with the children should be radically curtailed. Counsel agreed with the department that the father should be given six months more of reunification services and supervised visits.
On July 2, 2008, the department requested an order that father’s visits be supervised during the pendency of an investigation into new allegations of sexual abuse. When H.E. and her sister were bathing together, H.E. spread her legs, touched her vaginal area and asked her sister to, “Suck my peepee please.” The reporter asked H.E. where she had heard this and H.E. replied, [father] told me to suck his peepee.” The reporter asked H.E., “then what happened.” H.E. replied, “I said NO!” The reporter asked if that was all and H.E. said, “He did,” and looked down, but did not elaborate further. The reporter was told that mother coaches H.E. to say things like that about father. However, the reporter stated H.E. had last seen her mother on Tuesday and did not make the statement until Saturday.
An addendum report, dated June 18, 2008, also related that S.E. had been experiencing night terrors, causing her to wake up screaming “No!” and “[Father] did it!” H.E. had begun therapy. Visits continued to be stressful. After a visit, H.E. was more aggressive and had the need to clean excessively, while S.E. was extremely quiet and withdrawn.
The department had received the two psychological evaluations of father conducted by Dr. Michael Ramirez and Dr. Andrew Renouf and an evaluation of the mother by Dr. Renouf.
Regarding father, the addendum report observed that “[b]oth Dr. Ramirez and Dr. Renouf have stated that his choice of partners and the ease with which he has moved into another relationship bring into question his judgment, impulse control and capacity for meaningful relationships. Dr. Ramirez also states that [father] ‘is likely to feel lonely, emotionally deprived and interpersonally needy. Such people are at risk of reaching out desperately and indiscriminately for close relationships, and their interpersonal neediness may at times transcend their better judgment.’ [¶] Dr. Ramirez reported that ‘[father] may be described as exhibiting excessive control of his hostile impulses, but also as exhibiting periodic angry outbursts. . . . These correlates become more significant when coupled with a profile whose most salient characteristic is chronic, intense anger. Individuals with such a profile harbor hostile and aggressive impulses, but they are unable to express their negative feelings appropriately. . . . Individuals with this profile lack insight into the origins and consequences of their behavior. They tend to be extra punitive, blaming other people for their difficulties.” Dr. Ramirez recommended: “1. Compliance with [the] terms of any court-order including terms of visitation with [the] children and establishing safe housing for his family. [¶] 2. Participation in and successful completion of parenting education program.”
Dr. Renouf was unable to make a diagnosis because father’s lack of honesty resulted in invalid testing. Father’s concentration was poor but his elevated scores indicated antisocial behavior and attitudes, and possible substance abuse. However, Dr. Renouf observed that father’s “profile on the Rorschach Inkblot Test, which is less prone to defensive responding than structured questionnaires, suggested that he may suffer from depression, have significant problems with impulse control, and be chronically unable to cope with stress. . . . On the basis of the data collected for this assessment, few statements can be made about [father] with confidence, except that he minimized and denied psychological difficulties, and presented himself as unrealistically virtuous. This pattern of uncooperative responding could result from an extreme lack of insight into himself and his behavior, a characterlogical propensity to deny problems, or a deliberate attempt to portray himself in a positive light. His frequent and unsolicited statements of ‘having nothing to hide,’ his history of criminal behavior, and his unnecessary and frequent references to friends in law enforcement, however, raise concerns that [father] may have deliberately portrayed himself in an overly positive manner.” Dr. Renouf related that father had reported that his older brother may be a convicted child molester, which raised a question whether father may have been victimized as a child by his brother. If true, it would increase his risk to be a perpetrator. When asked about a history of abuse, father denied it, but his credibility was undermined by his failure to be forthcoming for the evaluation. It also seemed unusual to Dr. Renouf that father’s brother could be serving a life prison sentence and father was not sure of the reason why. It concerned Dr. Renouf that father was currently caring for his girlfriend’s two nine-year-old twins, while the girlfriend was in jail. However, Dr. Renouf recognized these concerns were “speculative and based solely on circumstantial factors.”
In his report of his evaluation of the mother, Dr. Renouf concluded that she “suffers from depression and delusions of persecution, and is chronically in psychological turmoil, which has been exacerbated by her current marital and legal situation.” Dr. Renouf opined that mother was “currently incapable of adequately caring for her children, as her decision-making and actions appear completely influenced by her delusional beliefs, with no insight into her condition. Although her parenting was not directly assessed, her mental health is impaired to such a degree that she is highly unlikely to be able to make logical and appropriate choices about the care of her children. Her prognosis is good with treatment, and she would be likely to return to whatever level of parenting skills she possessed before this most recent episode of delusional thinking.” However, Dr. Renouf recognized that implementation of the recommendations was likely to be difficult as any opinion or action not consistent with her delusional system is likely to be resisted and perceived as further evidence that she is being plotted against. “[Mother] suffers from delusions of persecution which currently completely influence her decision-making and behavior. Until this condition can be successfully treated, she is significantly impaired in most areas of adult functioning, but particularly in her role as a parent.”
On July 12, 2008, the court ordered an end to face-to-face visits with the grandparents, finding that it was not in the best interests of the children to visit them. The court referred to the enabling behavior between mother and the grandparents and a number of concerning issues related to visitation being exercised by the parents that made grandparent visitation problematic. The order stated the issue should be revisited if the grandparents demonstrated appropriate behavior.
At the six- month review held July 16 and 22, and July 31, 2008, the court received letters from the Bear River Rohnerville Rancheria and the Wiyot Tribe, both stating the children were not eligible for enrollment. It found the tribes had been properly noticed. The court found that both mother and father had engaged in services, but that progress had been minimal. The court found by clear and convincing evidence that visitation was detrimental. However, the court did not terminate visitation completely. Rather, it addressed the parties regarding the need to calm the waters. It found reasonable services were provided and that the return of the children would be detrimental. The court adopted the department’s recommendations as its findings and orders and set the matter for a 12-month review.
The 12-month status review report prepared October 30, 2008, related that visitation continued to be very stressful for the children. Dr. Renouf’s evaluations of H.E. and S.E. were attached to the 12-month report.
According to Dr. Renouf’s evaluation, “[H.E.] is extremely distressed. She exhibits delays in her development and behaviors associated with atypical development such as seen in an autistic-spectrum disorder, and was reported to be depressed, anxious, aggressive, and to exhibit sexual and compulsive behaviors. There were also reports of impaired reality-testing from both the foster parents and VA’s [vocational assistants], for instance, [H.E.] hearing voices. There appears, however, to be some variability in [her] behavior according to context, with her teacher reporting few problems in school while her foster parents and the VA’s supervising visits with her biological parents reporting a significantly greater level of problems. If the variation in behavior and functioning according to context is genuine, then it suggests that [H.E.]’s problems are primarily emotional and psychological in basis, rather than resulting from congenital conditions such as a true developmental delay or an autistic disorder. . . .”
Dr. Renouf recommended that visits with the mother be terminated. “[H.E.]’s level of anxiety caused by the visits appears extremely high and is either the principal cause of much of her problem behaviors or is greatly exacerbating them. Furthermore, [H.E.] exhibits sexual behaviors that are highly unusual for a child her age. Sexual behavior alone cannot conclusively demonstrate that sexual abuse has occurred, but the level of [H.E.’s] sexual acting-out is strongly suggestive that she has been sexually victimized.”
With regard to S.E., Dr. Renouf related that the current assessment indicated that she “has problems with her sleep, is developing a habit of toe-walking, is increasingly aggressive during visits with her biological mother, and is resistant to visits with her mother. Overall, however, there were few indications of serious problems with [S.E.]’s development, behavior, or emotional functioning.” Dr. Renouf opined that “[S.E]’s visits with her mother do not appear to be as distressing for her as for her sister. It is interesting to note, however, that her foster parents reported she began toilet training, slept better, and appeared happier during a recent two-week period of not visiting with her parents. Although I do not feel the same urgency for [S.E.] that I do for [H.E.] regarding parental visits, I would be concerned if [H.E.]’s visits with her mother were terminated and [S.E.]’s were not. This is because of the attention that [S.E.] would be likely to receive from her mother if [H.E.] was not present; especially making her bear the full burden of [mother’s] dysfunctional parenting.” During visitation, the girls would twirl. Because it happened more often in certain contexts than in others, he believed the twirling was probably more emotionally or environmentally based rather than neurologically based. Dr. Renouf opined that the twirling behaviors were caused by stress or anxiety. Similarly the toe-walking behavior during visits also represented high levels of stress and anxiety.
Based upon Dr. Renouf’s evaluation and its own observations, the department recommended that visitation between the mother and the children be discontinued immediately.
The 12-month report stated that although visitation between the father and the children was less stressful than maternal visitation, the department continued to express concerns regarding his parenting abilities. During a visit between father and the children shortly before the 12-month report was prepared, H.E. lay back on the couch, spread her legs, put her hand on her vagina and patted it, telling her father to “look” and patted her vagina again. Father told her to stop and to put her legs together. The department recommended that visitation with father continue to be supervised and occur one time per week, decreasing over the course of two months until visits would occur only one time per month for two hours.
Mother continued to allege the department had illegally detained her children and that the department continually abused the children by scheduling weekly molestations of them by the father. She stated to the social worker that she did not need medication or therapy because she does not lie. In a letter to the department dated September 4, 2008, Dr. Renouf stated that mother’s condition appeared to be “chronic and long-standing, and therefore it is also highly unlikely to spontaneously resolve without intervention.” Additionally, Dr. Renouf reports that “[mother]’s mental health problems constitute essentially a chronic illness with the severity waxing and waning over time, and so a ‘cure’ is unlikely.” Even with treatment, it was unlikely that mother could recover sufficiently to care for the children within six months.
Father had testified at the previous hearing that he was not able effectively to parent his children at that time. At the time of the 12-month report, he had only begun addressing the multiple issues outlined in the psychological evaluations presented to the court more than six months before. His therapist reported to the department that with respect to addressing issues that contributed to the dependency, father had not been bringing “ ‘anything of substance’ ” to his counseling sessions, and he just started attending a parenting class.
The department recommended that family reunification services be terminated, that visitation between the children and their mother be terminated immediately, that visitation between the father and the children be drastically reduced, and that a section 366.26 hearing be set. CASA’s report agreed with the department’s recommendation that services be terminated and a section 366.26 hearing be set. CASA further related that during a recent visit, “the mother brought a photo album that in CASA’s opinion contained explicit photos from an assortment of Playgirl cards.” CASA recommended that visits with the mother be terminated, attributing the girls’ problematic behavior to be a “direct result of the stressful interactions and emotional trauma that both girls endure when visiting their biological mother.” CASA also recommended that if the father was to receive visits, that they be highly structured.
A 12-month review hearing was held on December 16, 17, 19, 30 and 31, 2008. Many witnesses testified. Among them, Dr. Renouf, who had evaluated both parents and the children and who testified that in his professional opinion, “the visits are detrimental to the children’s well-being, to their emotional and social development, and to their current mental health.” He explained the bases for this opinion in detail. He also testified that after reviewing 200 pages of service logs, he could discern no change in mother’s behavior or her demeanor over the course of the dependency. He saw no evidence that she had sufficiently complied with the recommendations he had made about treatment, which were services ordered by the court.
The court received faxed documents on December 30, 2008, assertedly providing new information concerning ICWA. The court found the new information did not indicate the children were eligible under ICWA. The court stated that it had previously found on January 9, 2008 that ICWA did not apply. It directed the department to follow-up on the new information received by the court regarding Indian ancestry. The court found that the department complied with the case plan by making reasonable efforts to eliminate or prevent the need for removal; that the father and the mother had made only minimal progress toward alleviating or mitigating the causes necessitating out-of-home placement; and that the return of the children to either parent would create a substantial risk of detriment to the safety, protection or physical or emotional wellbeing of the children. It found visitation between the children and mother to be detrimental to the child and suspended her visitation. It terminated reunification services and set a section 366.26 permanency planning hearing for April 27, 2009.
Mother and father each timely filed a petition for extraordinary writ (Cal. Rules of Court, rules 8.452, 8.456) challenging the orders issued by the court at the 12-month review and requesting a stay of the section 336.26 hearing. We denied the stay requests and consolidated the petitions.
I. MOTHER’S PETITION
A. Standard of Review
The juvenile court is required to have clear and convincing evidence when it finds that the reunification services offered were adequate, but that finding is reviewed on appeal for substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) An appellate court conducting an examination for substantial evidence has a very constrained scope of operation.
“The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Adequacy of Counseling for H.E.
Mother contends that reasonable services were not provided in that H.E. did not receive counseling until just before the six-month review and alleged domestic violence and sexual abuse issues were never addressed.
First, the court adopted the case plan at the disposition hearing. Neither mother nor father challenged the adequacy of the case plan at that time. Although mother appealed from the disposition, she did not challenge the alleged failure of the case plan to address issues of sexual abuse or domestic violence on that appeal. (See In re H.E., supra, 169 Cal.App.4th at pp. 725-726.) She has therefore waived any complaint she may have regarding the reunification plan as ordered. (John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405; In re Julie M. (1999) 69 Cal.App.4th 41, 47.)
Moreover, the reunification plan addressed the specific issues that brought the children under the jurisdiction of the court. The petition was filed based on the severe emotional damage H.E. was suffering, mother’s failure to obtain counseling for her, and the risk of serious emotional harm to S.E. The allegations included that mother may have serious mental health issues rendering her incapable of providing appropriate care. Domestic violence and sexual abuse were not the issues that brought the children into the dependency system. The reunification plan at the time did not have to address those issues. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1475; In re Michael S. (1987) 188 Cal.App.3d 1448.)
“The adequacy of the reunification plan and of the department’s efforts to provide suitable services is judged according to the circumstances of the particular case. [Citations.] . . . ‘[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .’ [Citations.]” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) But the reunification services offered have only to be reasonable; perfection is not expected or required. (In re Jasmon O. (1994) 8 Cal.4th 398, 425; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
“In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The reasonableness of reunification services is to be determined in light of all relevant circumstances, which include “the mental condition of the parent, her insight into the family’s problems, and her willingness to accept and participate in appropriate services.” (In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
Substantial evidence shows that the department addressed the matter of counseling for H.E. in a timely manner. The delay was occasioned by the unavailability of a therapist, not the department’s delay in addressing the counseling issue. Here, it is conceded that H.E. began therapy a month or two before the six-month review.
In Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, the court affirmed a finding of reasonable services, despite a delay of nearly six months in obtaining court-ordered counseling for the child where the delay was “due in part to the caretaker’s ignorance of how to proceed with the counseling process and in part to the Department’s change of case social workers. Once the new social worker learned that the minor was not in counseling, he immediately took steps to arrange both the individual and the conjoint counseling. There may not have been such a lengthy delay if the caretaker had immediately asked the Department for assistance or if there had not been a change of assignment in social workers. Clearly, the delay in the minor’s individual counseling rendered the services provided imperfect, but rarely will services be perfect. (Elijah R. v. Superior Court[, supra, ] 66 Cal.App.4th 965, 969.) ‘The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.’ (In re Misako R.[, supra, ] 2 Cal.App.4th 538, 547.) We conclude that substantial evidence supports the court’s finding that the services provided were reasonable under the circumstances.” (Melinda K. v. Superior Court, at p. 1159.) Similarly, in this case services may not have been perfect, but substantial evidence supports the court’s finding that reasonable services were provided. (See In re H.E., supra, 169 Cal.App.4th at pp. 725-726.)
C. Suspension of Visitation
Mother contends that she has been denied reasonable visitation, asserting that her visitation has been restricted on numerous occasions and that the court terminated all maternal visits without justification in spite of the testimony of her father, her sister, and two friends, that mother was a good parent, who doted on her children and that there would be no detriment in return of the children to her care.
We reiterate that on appeal, we apply the substantial evidence standard of review. As we said in the previous appeal in this case: “Viewing the evidence in the light most favorable to the finding, and presuming in its support the existence of every fact the trier could reasonably deduce, we ask whether any rational trier of fact could have made the finding by the requisite standard. [Citation.] Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion.” (In re H.E., supra, 169 Cal.App.4th at p. 724.)
Here, ample evidence, detailed above, supported the court’s suspension of maternal visits at the 12-month hearing on the grounds that the visits were detrimental to the children. Until that time, the department had facilitated frequent and regular (indeed, several times a week) visitation between mother and the children—at a significant cost to the emotional health of the children. The suspension of mother’s visits due to detriment to the children was strongly supported by Dr. Renouf, by the social worker, by the children’s attorney, and by the CASA advocate. That mother’s family and friends disagreed and testified that the children suffered no detriment from their relationship with mother does not undermine that finding.
Other than mother’s testimony, there is no evidence in the record that the majority—or even a significant portion— of her visits were cancelled, until the court-ordered suspension of visitation. Social worker Noreen Held testified that around the time of the 12-month review hearing, the VA’s were transporting the children twice a week for visits to their mother. She related that S.E. had begun resisting visits by screaming, clinging to the foster mother and refusing to allow the VA’s to pick her up. The vocational assistants are not allowed to forcibly put children into the car. However, visits continued, as evidenced by a confrontation between the children and mother on December 11, 2008 regarding whether they enjoyed the visit.
D. Substantial Risk of Detriment
Mother argues that there was no substantial risk of detriment in returning the children to her as her father, sister and two friends all testified. We are convinced that the evidence detailed above, provides substantial evidence that return to mother’s custody would subject both H.E. and S.E. not only to a “substantial risk of detriment” but to actual detriment. The opinions of the witnesses in mother’s favor in no way undermines that substantial evidence.
E. ICWA Notice
Mother contends that ICWA notice provisions were not followed as the Wiyot Tribe was never informed by the department of the enrollability of the maternal great-grandmother. She further argues that ICWA placement preferences have never been followed. We reject these claims.
During the course of the dependency, notices were sent to all tribes of which the children might be members or eligible for membership. The JV-135 forms and proofs of mailing, already filed with the court, were attached to the department’s addendum report regarding ICWA, filed January 9, 2008. All tribes, including the Wiyot Tribe, responded that the children were not members or eligible for membership, based on the information provided.
On the next to last day of the 12-month hearing, documents were faxed to the court by the Bureau of Indian Affairs, based on a statement of the mother that the maternal great-grandmother was possibly eligible for membership. The fax transmission cover sheet states that it was sent by a secretary at the Bureau of Indian Affairs in response to a request by the mother. It states: “[Mother] requested that I send these documents to the court for a hearing that is to take place today at 1:30 pm. [¶] From what [mother] tells me, if her grandmother can get enrolled with the Wiyot Tribe, then her and her children will be eligible for enrollment as Descendents.”
On December 31, 2008, the court received the fax transmission in to evidence. It did so stating that “tribal enrollment is a matter that the Court leaves for the tribe to determine. And, in this particular instance, as I indicated yesterday, the tribe has spoken in that respect. And they’ve indicated that the minors are not eligible for enrollment.” Mother’s counsel argued the information about potential eligibility of the maternal great-grandmother was “new information.” Counsel for the department stated that there was nothing to show that there was new information. She represented that to the extent the fax contained new information, the department would follow through as required by law and would notify the court if anything changed.
Clearly, the faxed document is hearsay and there was no evidence before the court that mother’s conclusion that the children are or may be eligible for enrollment is true. Counsel for mother admitted the evidence concerning the maternal great-grandmother was not before the court.
The department moves to strike the document attached to mother’s petition and entitled “Notice of Application for Membership in the Wiyot Tribe.” This notice purports to relate to rules of eligibility for membership in the tribe. This document was not part of the fax that was admitted into evidence and was not before the court at the 12-month hearing.
Alternatively, the department requests that we order the record to include the February 4, 2009 letter from the Wiyot Tribe received by the department in response to a new notice document including the great-grandmother’s name and stating that the children are not eligible for enrollment in the Wiyot Tribe. We refuse to do so. The department has failed to comply with the requirements for the taking of new evidence by this court. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252; cf. In re Zeth S. (2003) 31 Cal.4th 396, 399-400 [in an appeal from an order terminating parental rights Court of Appeal should not receive and consider postjudgment evidence that was never before the juvenile court to reverse the judgment, except in rare and compelling cases].)
We agree with the department that the “Notice of Application for Membership in the Wiyot Tribe” was not before the court below and we strike the document. At the section 366.26 hearing, further evidence of the department’s ICWA compliance and the tribe’s response may be taken, if properly introduced. On this record, we see no ICWA violation.
II. FATHER’S PETITION
A. Reasonable Services
Father maintains that the services offered to him were not reasonable, given the mother’s documented mental illness. He urges that mother’s mental illness was the focus of the department during the six months before the 12-month review, to the detriment of his services. He contends the court should have found extenuating circumstances to extend services to him for another six months. The record does not support father’s claim that the department was so focused on the mother that he was denied reasonable services. Indeed, there is no evidence that father was neglected by the department during the dependency.
Services had already been extended once, past the presumptive six-month period for children less than three years old on the date of removal. (See M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174-175.) Father was referred to services, including several parenting courses throughout the dependency. He received a referral to Humboldt County Mental Health for a mental health evaluation and a medication evaluation. He was referred for counseling. There is no evidence that he attended or completed the Dad’s Program for which he had signed up at detention. He failed to obtain the medication evaluation. He participated in a mental health evaluation and he received frequent and regular visitation with the children during the reunification period, despite mother’s claims that he was sexually abusing them. Visits moved from unsupervised to supervised only when new behavior and statements by the children about father’s conduct required further investigation and persuaded the department the children were at risk in his care.
On this record, substantial evidence supports the juvenile court’s finding that reasonable services were offered to father over the course of the dependency. Neither mother’s mental illness and behavior, nor father’s belated attempts to fully comply with the case plan in using those services constituted such extraordinary circumstances that the court was required to extend services for an additional six months.
B. No Substantial Progress
At the 12-month hearing, the trial court found that father had participated in services, but found that his progress had been “minimal.” Substantial evidence supports this finding. Father contends he had maintained regular and consistent contact and visitation with the children, had attended some parenting classes, and was generally seen to parent appropriately during visitations. He had followed through with a psychological assessment and had begun counseling in September 2008.
Nevertheless, the court could determine that progress was “minimal” at the 12-month hearing. Neither of the two psychological evaluations he completed were favorable to father. His visits had moved from supervised, to unsupervised, and back to supervised by the time of the hearing. This was not due to mother’s accusations against him, but because of spontaneous utterances made by H.E. concerning sexual abuse by father and S.E.’s night terrors, which caused her to wake up screaming “No!” and “[Father] did it.”
On April 25, 2008, the adoptions caseworker sent a letter to the children’s counsel, expressing concern about both parents’ visitation, including a concern about father’s having pulled a knife on a developmentally-delayed youth at the mall while the children were visiting him. Of further concern was the fact that father’s girlfriend, who had recently been released from jail, was participating in father’s unsupervised visits with the children, despite her longstanding child welfare history and criminal history, most recently including possession of methamphetamine. Father testified at the 12-month review hearing that he had broken up with this woman and no longer saw her children. However, as recently as several weeks before, he referred to her children as his “stepchildren.” Father, as well as mother, was warned on numerous occasions not to talk about the case with the children during visits. However, he continued to do so. The children returned from a visit talking about going home to live with father in May and talking about lawyers and courts. S.E.’s toileting regressed following a visit with father. Both parents exhibited partiality toward H.E.
By the 12-month hearing, despite claims that he had signed up for the “Dads Program” offered by Changing Tides at the time of detention, there was no evidence presented that he attended the program. Father was referred to several parenting classes throughout the dependency. He started the Incredible Years Parenting Course on October 1, 2008, when the 12-month review was scheduled for October 2008. He testified that classes were on hold until January and that he thought he had four to six more classes. There was no showing that he had completed any parenting program.
In short, father began major components of his case plan only shortly before the 12-month review, when facing the termination of services. He had begun, but had not completed a parenting course; he had not completed the medication evaluation; he did not show stable housing; he had only started counseling on September 11, 2008 and had just begun to address issues in counseling by December 2008, the month of the hearing. Before that time, his therapist told the social worker that father attended the sessions, but was not bringing anything of substance to the sessions. He was adolescent-like, approval seeking, not telling whole truths, and being deceitful. The counselor did not believe he was being maliciously so, but just “incredibly vague.” This is consistent with the psychological evaluation, that indicated father was not being truthful. By December 5, 2008, the therapist opined to the social worker that father was being cooperative and forthcoming and that she did not see him as trying to hide anything, just that “he had a naiveté about him.” The therapist opined that father would need continual parenting classes and counseling services for a very long time, were he to regain custody of his daughters. At the time of the hearing, for reasons not explained in the record, father’s counseling was on hold. Father was to call the therapist for an appointment when the court hearing was over.
Father argues that “clearly he began classes before the petition was ever filed” and that it was “evident” that he attended parenting classes and applied those skills during his visitations. There was no evidence before the court that he had completed any parenting classes at the time of the 12-month hearing.
Father testified at the 12-month hearing that he still was not able to take the girls at that time. However, he anticipated that when he could move his trailer to a more permanent location in a couple of weeks, pay various fines and get his suspended license back, he would be in a position to take custody of them.
The social worker testified to her concern that father would be unable to provide the children with the services they needed. Both girls were in counseling. They were going to need additional assessments through Redwood Coast Regional Center. They required extensive, continued mental health treatment. The social worker opined that father was not able to provide those needed services to the children.
“The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency . . . is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go ‘on hold’ while the parent makes another stab at compliance.” (In re Michael S., supra, 188 Cal.App.3d at p. 1463, fn. 5, italics added.)
There is little doubt that father was engaging in services and making efforts to comply with his case plan. However, he did not begin to address the parenting and counseling components of the plan until very late in the reunification period. Substantial evidence supports the court’s finding that his compliance was “minimal” and that return of the children to his custody presented a substantial risk of detriment to their physical or emotional wellbeing.
Disposition
The petitions are denied. The order to show cause, having served its purpose, is hereby discharged. Our decision is final as to this court immediately.
We concur: Lambden, J. Richman, J.