Opinion
A103390.
10-23-2003
ALESIA S., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; BUREAU OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
I. INTRODUCTION
Pursuant to California Rules of Court, rule 39.1B, Alesia S., the mother of Orlando S., seeks review by extraordinary writ of the juvenile courts order terminating reunification services and pursuant to Welfare and Institutions Code section 366.26 setting the matter for a permanency planning hearing on October 29, 2003. Alesia contends substantial evidence does not support the juvenile courts determination that return of Orlando to her would present a substantial risk of detriment to Orlando. We conclude substantial evidence does support this finding. We affirm the juvenile courts orders and deny the petition for extraordinary writ.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
In January 2002, immediately after Orlando was born, the Contra Costa County Bureau of Children and Family Services (Bureau) filed a juvenile dependency petition under section 300, subdivision (b), alleging that, after his birth, Orlando tested positive for cocaine. His mother, Alesia, admitted to having a history of drug abuse. The petition alleged Alesia had failed to reunify with six of her ten children. Petitions were also filed at the same time for three children, who had been living with Alesia when Orlando was born — a fourteen-year-old boy, a five-year-old boy, and a one-year-old girl. Orlando was detained and placed in foster care.
A contested jurisdictional hearing was held on May 13, 2002. At this hearing, the court sustained the petition and adjudged Orlando a dependent child.
The dispositional hearing was continued several times. In a dispositional report, signed and apparently prepared in May 2002 but not filed until July 2002, the Bureau described Alesia as cooperative and doing well in her treatment program. The report noted she had entered a residential program for women and their children. This program required participation in a panoply of classes and groups. Alesia was reported to be participating fully in all activities of the program and as being compliant with all program requirements. Orlando was described as developmentally on target. The Bureau reported that Alesia had participated in weekly visitation with Orlando. Occasionally, Alesia failed to confirm visits, which were supervised by a parent aide. The parent aides reported that Alesia was loving and caring during her visits.
The Bureau acknowledged that Alesia had been successfully participating in her treatment program but, nevertheless, recommended the court provide no reunification services to Alesia. This recommendation was based on Alesias repeated failure to reunify with six of her children. The Bureau also noted that Orlandos father, a registered sex offender, was not permitted to have contact with minors and recommended that he not be provided with reunification services.
By the time the contested dispositional hearing was held on July 17, 2002, the Bureau had changed its position and filed a "recommended Family reunification plan" for Alesia along with amended dispositional recommendations. The plan required that Alesia enter and successfully complete individual counseling and receive a positive evaluation from the therapist that she understands the factors contributing to the dependency, has successfully addressed those issues, and the child is not at risk at this time. She also was required to complete a parenting education program and demonstrate an ability to meet her childrens emotional needs as well as show alternate ways to discipline her children. Alesia was required to successfully participate in and complete an inpatient substance abuse treatment program and to participate in random drug/alcohol testing. She was also required to successfully participate in an AA/NA program and provide written proof of attendance. The court adopted this plan and set a review hearing for September 12, 2002.
The scheduled review was continued from September 12 to September 26, 2002. Orlando continued to live in a foster home. The Bureau reported that Alesia was homeless, living with different friends in Oakland and not working. She was described as somewhat slow to begin reunification efforts, and failing to confirm visitation on more than three occasions. The Bureau stated that, as of a month before the report was prepared, Alesia had resumed bi-weekly visitation with three of her children, including Orlando. Alesia was reported to be participating in all aspects of her plan, maintaining a regular visitation schedule, completing a residential treatment program, participating in individual counseling and as having "finally begun her Out of County Drug Testing." The Bureau recommended that family reunification services be extended to twelve months. The court concurred with this recommendation, ordered that Alesia participate in a minimum of bimonthly visits and set a twelve month review hearing for March 17, 2003.
In its report prepared for the March 17, 2003, hearing, the Bureau noted that, a month earlier, Alesia had secured housing in an Oakland program. The program provided a 28-day stay with various childcare, education, training, health care, and employment counseling programs. The program also offered up to 18 further months of housing at a rate of 30% of household income and provided services such as relapse prevention. The Bureau reported that the court had previously authorized two of Alesias children to return to her under a 30-day consecutive overnight visit beginning on February 13, 2003. Alesia was reportedly continuing to participate in all court ordered programs and continuing to test negative for drugs or alcohol. She was working as an aide for a mentally-challenged adolescent. Orlando had experienced a change in placement and appeared to have adjusted well to this change.
The Bureau described Alesia as making a "great deal of progress in her Reunification Plan" and "consistently participating in her court ordered plan." The Bureau stated that the risk of detriment to the children has been removed and recommended that the three youngest children, including Orlando, be returned to Alesia under a court ordered Family Maintenance plan.
Although this report was read and considered by the court, its recommendations were not adopted. Instead, Orlandos attorney requested that the court appoint Rosemary Anne Bower, Ph.D., an expert child psychologist, to evaluate the risk to Orlando of returning him to his mothers care. On March 13, 2003, the court appointed Dr. Bower to evaluate "the return of the child to the mother." In an order filed April 17, 2003, the court directed Dr. Bower to conduct a "comprehensive examination intended to determine whether return of the child to the physical custody of his mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child."
Dr. Bower submitted the results of her examination in a report dated May 12, 2003. Dr. Bowers report was based on an office interview with Orlandos foster parents, an office interview with Alesia, two visits with the foster parents at their home and two visits with Alesia that took place in the play area of the residential program and involved observation of Orlando, Alesia and her two other young children. Dr. Bower also spoke to the resident manager at Alesias program but did not see her apartment.
Dr. Bower noted that Orlando was first placed with emergency foster parents with whom he lived until he was ten months old. He was then placed with foster parents who wished to adopt him. Dr. Bower described Orlandos careful and successful transition from the first foster parents to the second and observed that trauma to Orlando as a result of this transition was kept to a minimum because his first foster mother continued to visit him and occasionally babysat him.
Dr. Bower stated that, based on her extensive knowledge of child development, one of the most important issues for a baby or toddler is his ability to attach to his caregivers. She observed that "children who fail to form attachments, or children who repeatedly are deserted by their caregivers, or are removed from those they love, face very serious mental health issues, which can be life long." At its simplest, according to Dr. Bower, "if a human child does not develop an attachment to at least one early caregiver and that caregiver stays involved with the child at least into its teens, the child faces many serious mental health risks." Whether a child can be switched from one caregiver to another without causing serious psychological damage depends on many issues "such as the childs own ability to form attachments, how rapidly the transition is made from one caregiver to the next, how many times the child is required to move from one caregiver to another, the age, temperament and mental status of the child."
Dr. Bower cataloged these health risks as follows: "depression, inability to make friends, inability to form intimate adult relationships, low self esteem (associated with adolescent and adult use of illegal drugs and alcoholism) and teen delinquency and adult crime."
Dr. Bower described three hours of observation of Orlando. She characterized Orlando as a "rather quiet, relatively slow moving, almost sedentary toddler." Dr. Bower concluded that Orlando displayed symptoms of "insecure attachment." She based this conclusion on her observation that he did not show any fear or shyness when she visited him and did not show much protest when placed with his foster family, or in childcare or taken by parent aides to visits with Alesia. She noted that at Orlandos age (16 months) a normal baby would show special attachment to his caregivers and protest when strangers pick him up. She observed that Orlando showed some developmental delay, but even with that delay, he "should be manifesting attachment by now." She also described how, when Orlando was handed to Alesia at a visit she observed, he reacted by crying in a frightened way. She noted that this reaction, although upsetting, showed a developing awareness of who are close people and who are strangers.
Dr. Bower stated that she had "serious doubts" about Alesias ability to help Orlando shift his attachment from his foster parents to her. She based this statement on her observations of Alesia with her two older children and with Orlando. Dr. Bower wrote: "[a]lthough she [Alesia] cares a lot and is highly motivated, she does not appear to have the skills or the intuition to be intimate with her children. Social skills such as eye contact, gentleness, quiet talk, slow approaches, watching for cues from the baby, patience, intimacy are not easily learned. This is what Orlando needs at this time." She specifically described Alesias reaction to Orlandos crying during the visit. Alesia gave Orlando a bottle, but otherwise "did not talk to him, or turn him so they could have eye contact. She did not appear to rock him or stroke him."
Dr. Bower explained, "Orlando needs special handling to ensure that his probably emergent ability to form attachment to his caregivers is not disrupted or halted." She stated that Orlando is "at high risk for cognitive emotional and social learning problems as he grows up." According to Dr. Bower, Alesias limited parenting skills and her challenges with her other two small children made it likely that Orlando "will not get the tender, intimate mother that he needs to develop and secure attachments to his main people. This could certainly have a very serious effect on his childhood, adolescence and adult life."
On May 19, 2003, a contested twelve-month review hearing was held. Dr. Bower qualified as an expert in child psychology. She testified she had contacted Orlandos first foster mother who described Orlando at ten months as not showing the same intense attachment she generally saw in other children. Dr. Bower also observed behavior — such as protesting when placed in Alesias arms — that led her to believe that Orlando had at "least the beginnings of the ability to attach." She testified that Orlando "has a problem compared to other 16-month old children." "He seems to have a problem with forming the kind of attachment that you would see in a typical 16-month-old child." Although she was unable to attribute a specific cause to this problem, she stated, "whether thats his temperament, drugs, or transitioning to the [foster parents], I cant say. But its evident."
As for Alesia, Dr. Bower described her behavior with Orlando as a "curiously unintimate way." Dr. Bower testified that she observed Alesia with Orlandos six and two-year-old siblings and Orlando. She noted that "even though they were all together physically, [Alesia] did not make physical contact with [Orlando]." She described a "notable lack of intimacy" and concluded from these "worrisome signs . . . that she has trouble being intimate with her kids. And the specific thing was that she didnt — she didnt do much in the way of eliciting language behavior from the kids. [¶] You can talk to children and say what is that, or you made something, or tell me, and draw kids out. And she doesnt seem to know how to do that. Shes had a very tough life; but it just simply isnt there. Its adequate, in the sense that they will not hurt themselves; but in terms of building a relationship, it was really quite barren." [¶] She pointed out that Alesia was "somewhat overwhelmed" dealing with Orlandos other young siblings. "Add in a baby who needs a lot of special attention to trying to deal with the two-year-old who is very hyper . . . trying to add that to the mix, it will be hard to make the quality special time Orlando needs to pull him out of this sort of unresponsive unbonded stage is what I am concerned about." Dr. Bowers concluded that, at the time she observed Alesia, "I would be concerned about whether [Alesia] can meet the special needs of this baby in conjunction with the two other children who would also be living with her."
Brittanie Flores, the social worker who prepared the report for the review hearing, testified that Alesia had received no positive tests for drugs or alcohol. Alesia had missed tests but she came to the testing center on days other than those for which she had been scheduled. Flores had not observed Alesia with Orlando. Flores testified that Alesia is in individual therapy and sees her therapist weekly. However, Flores reported having only one conversation with the therapist and had not confirmed recently that Alesia was seeing this therapist on a regular basis. Flores explained that, because Alesia had been in therapy for six sessions, she (Flores) did not seek a positive letter of evaluation from the therapist. Alesia had reported seeing a family therapist on her own. Flores indicated that there was some possibility that some of Alesias other children might be placed back with her. She testified the Bureau would provide Alesia with parental coaching to help her deal with Orlando. On cross-examination, Flores testified that she had never spoken directly to the family therapist Alesia reported she was seeing. Flores had exchanged voice mail messages with the family therapist, the last one being two to three months ago. At that time, she learned that Alesia had not attended several appointments. The information given in her report to the effect that mother was in compliance with the therapy requirement was based entirely on conversations with Alesia. As for drug testing, Flores testified that mothers approach to drug testing was "not standard" and that she had missed some days when she was asked to test and then tested on other days. She did not consider the missed days to be positive tests.
Alesia testified that she wasnt "really myself" when she was observed by Dr. Bowers. She was anxious because the therapist "had the power to disconnect my unit." She felt, however, able to use the parenting skills shed learned during the visit. She explained that she wanted Orlando back "because he is part of my unit. Hes my son. And I want to teach him things. I love him."
The hearing was concluded on July 2, 2003. On July 17, 2003, the court found, by clear and convincing evidence, that the return of Orlando to Alesia would create a substantial risk to Orlandos well being. The court noted, in reaching this conclusion that Orlando was born with a positive toxicology screen for cocaine or methamphetamine. The court found Dr. Bowers well qualified, professional, credible and the only person with the necessary expertise to properly observe the visit between Alesia and Orlando. The court also found that Flores had provided substantially incorrect information in her reports, had inaccurate knowledge about the visits between Alesia and Orlando, and had failed to give a full picture of numerous missed drug tests.
The court concurred with Dr. Bowers conclusion that Orlando has significant emotional problems and is not developmentally on target. The court laid a great deal of emphasis on the fact that Flores had stated Alesia was participating in all court ordered programs when, in fact, she had not participated in counseling as required by her reunification plan. The court also found that Alesia did not demonstrate an understanding of Orlandos needs. The court observed that Alesia was invested in her own recovery and not Orlandos. The court was also concerned that Alesia had fulfilled her reunification plan "at her discretion and only in her way. She did not test when she was required to test by the Department." Nor did she visit when requested to visit. The court reiterated its concern that there was no evidence Alesia was involved in the required counseling. The court concluded that although Alesia had accomplished much, "given the special needs of Orlando and mothers clear inability to appropriately parent Orlando and attend to his emotional needs, the court does find that Orlando would suffer severe emotional abuse." The court stated it would have preferred to return Orlando to Alesia but "simply cannot do it without finding that there is a substantial danger to his emotional well being."
Reunification services were terminated and the court set a permanency planning hearing for October 29, 2003, pursuant to section 366.26.
This timely writ petition followed.
III. DISCUSSION
A. Substantial Risk of Detriment
Alesia argues the trial court abused its discretion in finding that the return of Orlando to her would create a substantial risk to his well being. (§ 366.22, subd. (a).) Although she concedes that a court may rely on psychological evidence when it makes this finding of detriment, she argues, citing Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1750 (Blanca P.), that Dr. Bowers evaluation was not "reasonably specific and objective" and, therefore, the court improperly relied on it. We disagree.
At the review hearing, the court was required to return Orlando to Alesias custody unless it found, by a preponderance of the evidence that such a return would create a substantial risk of detriment to Orlandos safety, protection, or physical or emotional well being. (§ 366.22, subd. (a); see also § 366.21, subds. (e) & (f).) Among other things, in making this determination, the court may consider the recommendation of any child advocate appointed on the childs behalf, whether the parent participated regularly in any treatment program set forth by the plan, the "efforts or progress" of the parent, the extent to which the parent "availed himself or herself of services provided." (§ 366.22, subd. (a).)
We apply the substantial evidence standard of review. In so doing, we draw all reasonable inferences in support of the courts finding and orders and view the record in the light most favorable to the order. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) We do not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The trial courts decision was not an easy one. At the time of the review hearing, the evidence suggested Alesia had made significant strides in combating her drug dependency. She possessed a strong desire to reunite with her children. In fact, two of Alesias children — a six-year-old and a two-year-old — were living with her. The unfortunate truth, however, is that Orlando requires care that Alesia cannot give him. As a child who tested positive for cocaine at birth, displayed developmental delays and difficulty bonding, Orlando was, in Dr. Bowers opinion, "at high risk for cognitive emotional and social learning problems as he grows up." Dr. Bower described Orlando as a child in need of "special handling to ensure that his probably emergent ability to form attachment to his caregivers is not disrupted or halted." During the time she observed Alesia, Dr. Bower did not see Alesia display the kinds of parenting skills necessary to ensure that Orlando would form an attachment with her. The trial court, therefore, had substantial evidence on which to base its conclusion that returning Orlando to Alesia would create a substantial risk of detriment to Orlandos safety, protection, or physical or emotional well being.
Alesia attempts to analogize this case to Blanca P., supra, 45 Cal.App.4th 1738. In that case, the trial court relied on a social workers conclusion that parents who had been to counseling and therapy had not sufficiently "internalized" proper parenting skills. (Id. at p. 1746.) The Blanca P. court criticized the social workers characterization of the parents, describing the conclusion reached by the social worker as "simply too vague to constitute substantial, credible evidence of detriment." Although a subjective opinion, unsubstantiated by any evidence, is insufficient to support a finding of detriment, Dr. Bowers report was based on her observations of Orlando and Alesia, her extensive experience working with children and her professional knowledge about child development. The social workers conclusion in Blanca P. that the parents had not "internalized" proper parenting skills is a far cry from Dr. Bowers conclusion that Alesia did not possess the parenting skills necessary to care for an at-risk child such as Orlando.
Nevertheless, we are aware, as the court was in Blanca P., that "In deciding whether it would be detrimental to return a child, the easy cases are ones where there is a clear failure by the parent to comply with material aspects of the service plan. . . . [¶] The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent." (Blanca P., supra, 45 Cal.App.4th at p. 1748.) The trial courts order, and our affirmance of it, in no way suggests Alesia has not worked hard to become a better parent. She has. Nevertheless, in the time available, she has simply not been able to acquire the skills needed to parent Orlando at this crucial point in his development.
Alesia points out that the social worker and Alesias case manager at the residential program in which she was participating both believed Orlando could be returned safely to Alesia. However, under the substantial evidence standard of review, the existence of evidence that might have supported a contrary conclusion is of no consequence. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.) Here, the trial court appears to have weighed the evidence and found Dr. Bowers report and testimony more persuasive than that of the social worker and case manager. The trial court openly questioned the accuracy of the social workers report, after it emerged that the social worker had not observed Orlando with Alesia, had permitted Alesia to skip drug testing on scheduled days, did not accurately report missed visits with Orlando, and reported that Alesia was in compliance with the requirement that she attend individual therapy although she had had only one conversation with Alesias therapist and had not confirmed that Alesia was attending therapy regularly. The trial court similarly gave greater weight to Dr. Bowers analysis than it did to the less substantive opinion of Alesias case worker.
Alesia also contends Dr. Bower misunderstood the nature of her assignment and, rather than analyzing the detriment to Orlando, instead simply chose Orlandos foster parents over Alesia. Although Dr. Bowers report uses terms that might suggest she believed her task was to determine which placement was in Orlandos best interest, she testified she understood the nature of her assignment was to "evaluat[] the detriment to the minor if returned to the care of his mother." The court also made clear that the "issue is whether theres detriment to the child in being removed from the home the child is in and returned to mother, regardless of who the foster parent or situation that is going to occur. This is not at all a test or issue between the [foster parents] and mom. Thats not at issue. [¶] And I am not real interest in the [foster parents] and their abilities to care for Orlando. Thats not a consideration this Court is making."
Alesia takes issue with the fact that Dr. Bower did not consult with Alesias therapists. However, there is nothing in the record that indicates consultation with these therapists, whom Alesia appears to have seen sporadically, would have altered Dr. Bowers conclusions. Dr. Bower stated that Alesias therapy background "wasnt absolutely essential to the observations that I saw." Similarly, Alesia contends Dr. Bower did not observe her "own methodology" because Dr. Bower observed Alesia over a one-hour period rather than for the two-hour visit originally scheduled. Dr. Bower testified that, although two hours would be better than an hour to observe a parent, it was not necessarily the case that the more an individual engaged with her the more trusting they became. Nor did Dr. Bower testify, as Alesia suggests, that a two-hour observation period was required in order for Dr. Bower to reach adequate conclusions regarding the risk of detriment to Orlando. In fact, Dr. Bower characterized her description of Alesias parenting and Orlandos needs as "an accurate snapshot for that period of time."
Nor can we agree that Dr. Bower displayed a "sinister" concern with Alesias personality in her assessment of the risk of detriment to Orlando. Dr. Bower described the type of parenting necessary to ensure that Orlando would form a secure attachment with his caregiver in order to avoid significant emotional problems later in his life. She observed Alesia, described what she saw and concluded Alesia did not possess these parenting skills. We see nothing sinister in this.
Finally, we do not agree that the trial court failed to articulate any specific risk of detriment to Orlando and, instead, focused on the statistical possibility of such a risk. In fact, the evidence before the trial court was that Orlando appeared to be developmentally delayed and had difficulty forming attachments to his caregivers, characteristics typical of a child, like Orlando, born with drugs in his system. The risk of detriment presented by returning Orlando to his mother was that he would not form an adequate attachment to her and, consequently, would be at serious risk for emotional problems later in life.
Under these circumstances, the juvenile court did not abuse its discretion in ordering a permanent plan for Orlando.
IV. DISPOSITION
The petition for extraordinary writ is denied on the merits. The permanency planning hearing is set for October 29, 2003 and, therefore, our decision on the writ petition is final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)
We concur: Lambden, J., and Ruvolo, J.