Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. CK62509
ORIGINAL PROCEEDINGS in mandate. Patricia Spear, Judge. Petitions denied.
Law Offices of Alex Iglesias, Pamela Rae Tripp and David Alaynick for Petitioner Andreas H.
Law Offices of Katherine Anderson, Victoria Doherty and Gloria Apt for Petitioner Rebecca M.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, Jacklyn K. Louie, Deputy County Counsel, for Real Party in Interest.
Rebecca M. (mother) and Andreas H. (father) seek writ review of an order setting a hearing under Welfare and Institutions Code section 366.26 with respect to their two children, Andreas H. and Jasmine H. Mother and father contend there was insufficient evidence before the juvenile court to warrant the denial of family reunification services under section 361.5, subdivision (b)(2). We reject this contention and deny the writ petitions.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
KLEIN, P. J.
FACTUAL AND PROCEDURAL BACKGROUND
1. Referrals leading to the detention of the children.
The Department of Children and Family Services (DCFS) received a referral regarding this family on April 28, 2005, in which it was reported that a bruise had been observed on then three-month-old Jasmine’s face and Jasmine was in an unsanitary condition because the family lacked money for diapers. This referral was closed as unfounded.
On July 19, 2005, DCFS received a report indicating Jasmine lacked clothes and had a ring of dirt around her neck. Case workers investigating this incident noticed paternal grandmother had bruises all over her body. The reporting party indicated father was responsible for these bruises. However, paternal grandmother denied that father had hit her and referral was closed with the allegations unfounded.
On January 31, 2006, DCFS investigated allegations that then two-year-old Andreas and one-year-old Jasmine were victims of physical abuse by their parents in that the children were hit with wooden spoons. Mother and father were living with friends, the W.’s. Mr. W. reported he had seen mother spank Andreas with an open hand. During the investigation, mother yelled and cursed to such an extent the CSW had to stop the interview. Father indicated he is mildly retarded and he receives services from the Harbor Regional Center. Mother indicated she has been diagnosed as schizophrenic and she previously received services from the Regional Center but “fired” them and she no longer takes medication for this disorder. Father became frustrated during the interview, paced back and forth, pulled his hair and said, “[Y]ou don’t understand.” The CSW observed a small red spot on Jasmine which father stated was a birthmark. The CSW advised mother and father the children would have to be examined by a doctor and mother and father agreed. When the CSW attempted to speak to the children, mother and the children would cry. The CSW observed the children to be very attached to mother and father.
On February 14, 2006, DCFS received a referral alleging general neglect when father appeared at the Life Steps Foundation office with Jasmine who was crying profusely because father had no diapers or food.
That same day, Collen Uyehara, father’s counselor at the Harbor Regional Center for more than six years, told the CSW that father has anger management issues and gets fired from jobs. Uyehara reported that, on one occasion, paternal grandmother slapped mother and father struck paternal grandmother. Uyehara indicated father was diagnosed with schizoid type personality disorder in 1988. Although father attended parenting classes, it did not help. Father has no income and mother receives SSI. The family has received budget assistance but is always impecunious. Most of the interventions through the Harbor Center have been unsuccessful. Mother is eligible for services, but refuses them.
On February 22, 2006, DCFS held a team decision meeting attended by mother, father, paternal grandmother, Harbor regional Center counselors Uyehara and Cassie Forrest, and Armand Garcia from Life Steps. Mother’s court appointed conservator, Karen Dwyer, was unable to attend the meeting and mother was reluctant to participate. Forrest indicated both mother and father had a long history of noncompliance with Regional Center services. Uyehara reported a long history of physical violence between mother and father before the birth of their children. Mother has been prescribed Prozac, Depacote, Cogentin and Haldol in the past and recently has indicated she is tired of being angry all the time and may resume her medication. The supervising caseworker indicated the parents frequently refuse services and they lacked insight into how to raise their children. When asked, they stated, “[W]e feed them.” The family is chronically homeless because neither parent can manage money. There are frequent physical altercations between mother and paternal grandmother which have resulted in father also striking paternal grandmother. The parents have failed to follow through on evaluations of both children by the Regional Center.
On February 27, 2006, the juvenile court ordered the children detained and directed the DCFS to provide family reunification services with monitored visitation twice per week.
2. Juvenile court proceedings.
A jurisdiction report prepared for March 20, 2006, indicated mother stopped taking her medication when she became pregnant. Mother refuses AFDC for the children and refuses to have them assessed by the Regional Center. However, mother recently agreed to appear for an assessment of her mental abilities at the Regional Center on March 27, 2006. Regarding father, a psychological assessment completed in 1983 indicates he has mild mental retardation, a schizo-typal disorder and possible frontal lobe damage. An assessment completed in 1994 revealed father had an IQ in the borderline range. Regarding the failure of the parents to have the children assessed by the Regional Center, it was reported that Andreas showed signs of developmental delays and possible autism. Andreas reportedly knocks his head on the floor, looks out of the corner of his eye, throws tantrums when he is moved and eats until he throws up.
On May 22, 2006, the juvenile court appointed Matteo Muti, Ph.D. and Timothy Collister, Ph.D. to determine if the parents are mentally disabled as defined in Family Code section 7827. The order directed the examiner to consult mother’s conservator, the Regional Center workers and the DCFS social workers and to review all DCFS records and any prior written evaluations or diagnoses from the Regional Center.
On July 14, 2006, the juvenile court sustained subparagraph a-1 of the dependency petition which alleged the children were at a serious risk of nonaccidentally inflicted serious physical harm, and subparagraphs b-1 and b-2, which alleged the parents inability or failure to protect the children adequately.
a. Collister’s report.
A supplemental social report prepared for October 25, 2006, indicated Collister’s evaluation had been received on September 19, 2006. Based on Collister’s report and father’s apparent failure to benefit from individual counseling or anger management classes, DCFS recommended no reunification services be provided, noting the parents have a history of not accepting services and they have already received six months of family reunification services without any demonstrated improvement, suggesting that further services would be futile.
Attached to the social report was Collister’s 26-page evaluation of mother and father. With respect to mother, Collister concluded the information provided suggests a history of substantial instability and chaos since early life. Mother recounts sexual abuse by a half-brother while she was a toddler and removal from mother’s care. Mother also suffered significant physical abuse at about age nine, which may have coincided with the beginning of medication including Haldol, a strong antipsychotic, which continued into her adult years until she was pregnant. Mother has told others that she previously has been diagnosed as having a bipolar disorder. Mother reports attempting suicide at age 17 and she suffers an undercurrent of depression that continues to the present.
Collister indicated mother and father both have been seen by mental health professionals at the Regional Center for years based on mild mental retardation. Both function cognitively in the upper end of the mild range of delay, with certain aspects into the borderline range. “With respect to parenting skills, a mother or father with limited intellectual function at the range presented both by [mother and father] would have questionable abilities . . . to care for and control their children adequately.” Collister noted mother and father also demonstrate emotional and behavioral difficulties. Mother in particular experiences substantial psychiatric difficulty “perhaps best captured by the diagnosis of bipolar disorder, [not otherwise specified], which she herself suggests has been diagnosed previously, and for which, she has been provided significant psychotropic medication. [Father], for his part, also experiences psychiatric difficulty, although not as acute as what is presented by [mother]. By history, [father] has shown episodes of aggressive acting out, striking the mother, causing bruises in the fairly recent past . . . .”
Collister found mother and father demonstrated mild mental retardation as well as substantial psychiatric difficulty and showed tendencies for lack of control of frustration and becoming verbally aggressive, even in the office setting. Mother and father repeatedly had refused services from the Regional Center, which were the very type of services required to insure they would be able to care for and control their children. Additionally, Collister noted the children themselves “both apparently present significant behavioral challenges which would be challenges even for fully functioning adults without any intellectual limitations or psychiatric difficulty. By the parents’ report, it appears that their son shows significant self-injurious behavior, as well as aggressivity and tantrumming, hitting and kicking, as well as biting at times. In addition to those behaviors, and perhaps related to those behaviors, he is also described as being mildly autistic. The daughter, now approaching age one, also appears to present behavioral challenges. Moreover, the two [children], by the parents’ report . . . , appear to synergize in their interactions together with behavioral difficulty ensuing. Thus, these children present challenges . . . which [would be] difficult even for fully functioning adults without psychiatric difficulty to address.”
Collister concluded “with this fabric of information, including the parents’ intellectual limitations at the upper end of the mild range of retardation, and substantial emotional turmoil for [mother], including the need for psychotropic medication in the past, and likely at present, and [father’s] tendency towards manipulation, described by social workers, prevarication and denial, as well as underlying paranoid tinged ideation and grandiosity, as well as poor judgment exhibited in his decision making process as pointed out by the counselors, as well as his tendencies to show verbal aggressivity and occasional physical acting out, it appears the parents are unable to care for and control the children adequately, even more so, as one considers the children’s behavioral challenges and the son’s reported autism.”
Collister noted that, if the court ordered reunification, therapeutic resources would be necessary but the prognosis for significant change was low, especially for father. Mother might benefit from psychotropic medication but would require weekly supportive psychotherapy. Collister suggested father might benefit from a one-year course of domestic violence classes, as opposed to the standard twelve-week course.
b. Anticipation of Muti’s report.
On October 25, 2006, the juvenile court continued the disposition hearing for receipt of Muti’s report to December 4, 2006, and then to December 8, 2006, and December 11, 2006. On December 11, 2006, the juvenile court ordered Muti to be subpeaned for a December 29 hearing. The juvenile court noted it had called Muti’s answering machine and his pager number but had received no response. The juvenile court excused the appearance of all parties for the next hearing, including the parents, mother’s conservator and the Regional Center workers. The juvenile court apologized to the parties who had appeared at the last three hearings anticipating receipt of Muti’s report and stated, “I will never use this doctor again. I didn’t realize he was so unreliable.”
c. Muti’s report.
Muti’s report was received on December 29, 2006. Muti’s evaluation of father indicated Muti reviewed “extensive history” and interviewed father on September 26, 2006. Muti noted father’s intellectual capacity was tested in September of 1983 and October of 1988 with IQ results of 66 and 68, respectively. Because these estimates were consistent, Muti did not retest father. Muti concluded father’s limited mental capacity combined with his inability to accept assistance strongly suggests he is incompetent to provide a safe environment for his children. Muti diagnosed father as AXIS I mild mental retardation (317.00), AXIS II unspecified developmental disorder, AXIS III borderline personality disorder. Muti recommended father reside in a board and care home and that he work in a sheltered workshop as an assistant to authority figures.
Muti’s evaluation of mother indicated he reviewed her extensive records and examined her on September 28, 2006. Muti found mother appears to be mentally delayed and noted she had recently been evaluated at the Regional Center in April of 2006, at which time her IQ was tested at 69. Muti concluded mother “is mentally incompetent to provide adequate care for both of her children. Her emotional capacity to cope with assistance is so impaired that she is unable to benefit from guidance. She becomes angry instead of being receptive and compliant.” Muti diagnosed mother as AXIS I 799.30 deferred, AXIS II 317 mild mental retardation. Muti recommended mother begin counseling to prepare her to separate from her children.
3. The disposition hearing.
On January 10, 2007, mother’s counsel objected to Muti’s report as inadequate. Counsel noted Muti’s entire report consumed four pages, two pages for mother and two pages for father, as opposed to Collister’s evaluation which is 26 pages long. Further, Muti’s report does not indicate how long he spent with mother and father, what reports he read or what testing he performed. Rather, Muti draws “some hasty conclusions based on vague assessments.”
The juvenile court overruled mother’s objection, noting Muti was on the list of licensed evaluators who had been hired by the juvenile court under Evidence Code section 730. The juvenile court stated: “His report is thin, I think his conclusion is completely consistent with the really fat report I got from Dr. Collister, and I think it meets the requirements.”
Mother and father then each personally addressed the juvenile court, pleading for the return of their children. Counsel for the children indicated the case was a sad one and noted there was bonding between the parents and the children. However, given the difficulty mother and father faced raising two special needs children, counsel joined in DCFS’s request that services be denied.
After hearing argument of counsel for mother and father, the juvenile court concluded this case was “very heartbreaking because [mother and father] obviously love the children . . . and they are very, very sincere . . . .” However, the juvenile court denied family reunification services in the best interests of children, relying on Collister’s prognosis the parents could not care for the children and noting Collister’s proposed plan of reunification required more than any agency would be able to provide. The juvenile court stated the suggested plan entails “basically living these parents lives for them and being with them practically twenty-four-seven until the children grow up . . . .” The juvenile court made the findings required by law and denied services under section 361.5, subdivision (b)(2).
The juvenile court then noted the amount of time that had been spent waiting for Muti’s report, “which I won’t say I am happy with it because it is very thin, and I certainly had hoped to get more. On the other hand he has a diagnosis. He seems to have done some testing, he doesn’t describe it very well in the report [but he] has a lot of different comments that he has made that leads the court to believe that he must have spent some time with the parents, done some testing. [¶] Additionally, he was sent all the reports and I believe he did indicate to the court in a conversation that he had reviewed all of those. So he had all the information from [DCFS] prior to writing his evaluation . . . .” The juvenile court also noted Collister wrote “an extremely persuasive evaluation” which recommended denial of reunification services and Muti concurred with that conclusion.
The juvenile court revised the order sustaining the dependency petition and dismissed the allegation under section 300, subdivision (a) in the interest of justice. The juvenile court declared the children dependents under section 300, subdivision (b) and set a hearing under section 366.26 on July 11, 2007.
CONTENTIONS
Mother and father contend there was insufficient evidence to support the denial of reunification services. They also claim Collister and Muti failed to demonstrate they possessed the credentials required by Family Code section 7827, and their evaluations provide conflicting diagnoses. Mother further contends Muti’s conclusions lack foundation, Collister’s report lacks a psychiatric evaluation of mother and the orders appointing Collister and Muti were facially defective,
DISCUSSION
1. Statutory provisions relevant to the denial of family reunification services.
The Legislature has recognized that, in some cases, it would be fruitless to provide reunification services. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) Section 361.5, subdivision (b)(2) states family reunification services need not be provided where “the parent or guardian is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services.”
Family Code section 7827 defines mentally disabled to mean “that a parent or parents suffer a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately.” (Fam. Code, § 7827, subd. (a).) Under Family Code section 7827, subdivision (c), a finding of mental disability must be supported by “the evidence of any two experts,” each of whom must be a psychiatrist or psychologist. When the expert is a psychologist, he or she must have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders. (Fam. Code, § 7827, subd. (a).)
We review the denial of reunification services under section 361.5, subdivision (b) for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600; In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)
2. Petitioner’s challenges to the admissibility of the reports.
a. The qualifications of the experts.
Petitioners contend Collister and Muti failed to demonstrate they possessed the credentials required by Family Code section 7827. Mother and father note there is no curriculum vitae attached to either evaluation. They conclude the juvenile court impermissibly relied on these evaluations without the necessary foundation that Collister and Muti each had at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders. (Fam. Code, § 7827, subd. (a).)
As noted in In re Joy M. (2002) 99 Cal.App.4th 11, “The statutory language [relating to the appointment of an evaluator under Family Code, section 7827] does not suggest the proponent of [the evaluation] must submit affirmative proof of the qualifications [of the evaluator].” (Id. at p. 19.) Thus, there is no requirement that the expert’s qualifications appear on the face of the record.
Further, in this case, the juvenile court asked the parties to agree on two evaluators from the list of approved experts. Thereafter, the juvenile court appointed Collister and Muti. Neither mother nor father objected to these appointments. Although mother later objected to the quality of Muti’s report, neither she nor father questioned the credentials of either expert. Indeed, such an objection likely would have been futile, given that both experts were on the list of approved experts maintained by the juvenile court. Having failed to raise concerns about the qualifications of the appointed doctors in the juvenile court, where the objection would have been easily met, petitioners have forfeited the right to raise the objection in this court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
b. The orders appointing Collister and Muti not facially defective.
Mother contends the orders appointing Collister and Muti did not comply with section 361.5, subdivision (b)(2) in that they failed to specify whether the evaluator should perform testing or whether a psychiatric evaluation was necessary, failed to specify the time parameters of the data to be reviewed and failed to indicate that the purpose of the evaluation was to determine whether mother was capable of utilizing reunification services.
As with mother’s attack on the sufficiency of the evidence supporting the credentials of the evaluators, mother failed to object to the wording of the orders appointing Collister and Muti in the juvenile court. Because it would have been a simple matter to modify the orders to include matters mother believed were relevant, mother has forfeited the right to object to the phrasing of the orders in this court. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.) In any event, the orders were adequate for the stated purpose.
3. The evidence supports the juvenile court’s denial of reunification services.
a. Mother’s contentions.
(1) Sufficiency of Muti’s report.
Mother contends Muti’s evaluation lacks detail or analysis, makes no mention of reunification services and fails to analyze whether mother could learn to be an effective parent if reunification services were provided. Mother concludes Muti’s evaluation was inadequate to support his conclusions. (In re Carmaleta B. (1978) 21 Cal.3d 482.)
Contrary to mother’s assertion, Muti’s report reflects reasoned consideration of the entire record. Muti’s report indicated he reviewed extensive records, which he references in the evaluation, including mother’s Regional Center evaluation. Based on these records and Muti’s interview of mother, Muti found mother suffered from mild mental retardation and observed that her “intellectual resources are so limited [as to] place[] her children’s health and welfare in serious jeopardy.” Muti believed mother was mentally incompetent to provide adequate care for the children and that her “emotional capacity to cope with assistance is so impaired that she is unable to benefit from guidance.”
Moreover, Collister agreed with Muti’s assessment that mother was unlikely to benefit from services. Muti’s failure to suggest what family reunification services might be provided reasonably flows from his conclusion mother would not benefit from services. In any event, the failure to suggest a case plan does not render Muti’s evaluation inadmissible.
Mother’s reliance on Carmaleta B. is misplaced. The experts in Carmaleta B.. concluded the mother in that case was mentally disabled based on the mother’s neglect in failing to prevent injuries that resulted in the children being made wards of the court, and her purported inability to cope. One of the experts had never met mother and the other based his opinion on a one-hour interview with her. Further, based on cross-examination of the experts, it was clear there was no basis for the conclusion mother was mentally ill. (In re Carmaleta B., supra, 21 Cal.3d at p. 496.) Unlike Carmaleta B., the record in the case at bench shows mother had a long history of mental illness, developmental delay and mental retardation. Muti reviewed these records and interviewed mother. Thus, Carmaleta B. does not support mother’s assertion the juvenile court’s finding lacks evidentiary support.
In sum, Muti’s report, although not as extensive as Collister’s, was admissible and the juvenile court properly could rely on it to reach its conclusion mother would not benefit from family reunification services.
(2) Collister’s conclusions not unfounded.
Mother contends Collister’s conclusion that mother has significant psychiatric difficulties and is in need of psychotropic medication is unfounded because the record does not include a current psychiatric evaluation of mother. Mother asserts it is clear from the social reports that she is in need of a current psychiatric evaluation. Mother reasons Collister’s conclusion regarding mother’s ability to benefit from reunification services cannot be credited because Collister lacked recommendations from a psychiatrist as to what psychotropic medication would benefit mother and whether medication would allow her to parent the children appropriately. Mother argues that, because Collister’s report indicates mother might be able to benefit from services if she were provided psychiatric care and psychotropic medication, she should have been evaluated by a psychiatrist and started medication, if so indicated, before Collister’s evaluation. Mother further contends that, given the information about mother provided in this case, at least one of the two evaluators should have been a psychiatrist.
Mother’s claim that she should have been evaluated by a psychiatrist before Collister’s evaluation is not persuasive. The record demonstrates mother had been prescribed medication for her psychiatric disorder but she stopped taking it when she became pregnant and had not resumed the medication. Additionally, mother had refused services from the Regional Center. Mother cannot engage in the long-term refusal of psychotropic medication on one hand, and on the other hand argue she must be medicated before her ability to benefit from family reunification services can be evaluated. Mother has been on notice for some time that the return of the children to her requires her to resolve her psychiatric issues. She cannot now make the evaluation of her ability to benefit from family reunification services depend on initiation of medication when mother refuses to take the medication she already has been prescribed.
Regarding mother’s claim one of the experts should have been a psychiatrist, the statute does not impose this requirement and, in any event, it appears mother agreed to the experts selected from the list of approved doctors. Because the statute does not require a current psychiatric evaluation, the absence of such an evaluation went to the weight to be accorded Collister’s report, not its admissibility.
Finally, Collister did not suggest mother would benefit from family reunification services if psychiatric care and medication were provided. Rather, in response to the request for recommendations for therapy in the order that appointed the experts, Collister outlined what steps should be taken if mother and father were granted reunification services. Thus, the record does not support mother’s reading of Collister’s report.
In sum, mother’s attacks on Collister’s report uniformly fail.
b. Father’s contentions.
Father contends Muti failed to address the second prong of section 361.5, subdivision (b)(2), which requires the juvenile court to find by clear and convincing evidence that father was not capable of utilizing services. Father argues Muti’s report should have been discounted, in light of the juvenile court’s comments about Muti’s reliability. (In re Carmaleta B., supra, 21 Cal.3d 482.) Father notes Collister recommended exactly what services could be provided and indicated that, if they were adhered to, reunification was a possibility. Father requests the order terminating family reunification services be set aside.
Regarding father’s assertion Muti’s report failed to address whether he had reached his conclusion by clear and convincing evidence, this standard is for the juvenile court to apply, not the expert. In any event, Muti diagnosed father as having mild mental retardation, mixed specific developmental disorder and borderline personality disorder. Muti concluded father was mentally incompetent to provide sufficient care for the children. This conclusion is adequate to address the question posed by the statute.
3. Conflict in Collister and Muti’s diagnoses of petitioners not a valid basis upon which to set aside the juvenile court’s order.
Petitioners contend Collister and Muti reached conflicting diagnoses which the juvenile court failed to address. Mother asserts Collister’s evaluation indicated she had a psychotic disorder, not otherwise specified with predominately paranoid tinged ideation (AXIS I 298.9), chronic dysthymic disorder (AXIS I 300.4), disruptive behavior disorder (AXIS I 312.9), bipolar disorder, not otherwise specified, with psychotic features, now mild or in remission (AXIS I 296.7), post traumatic stress disorder related to prior physical and sexual abuse primarily resolved and pronounced depending and mild paranoid personality traits (309.81), and mild mental retardation (AXIS II 317). Muti, on the other hand, found mother had deferred (AXIS I 799.30) and mild mental retardation (AXIS II 317).
Father notes Collister diagnosed father as suffering mild mental retardation and mixed maladaptive personality traits marked by paranoid and grandiose ideation (AXIS II 317). However, Muti found father had a borderline personality disorder (AXIS III).
Petitioners assert the discrepancies in the diagnoses are so great that the juvenile court should have continued the disposition hearing to allow Collister and Muti to explain their evaluations in person, especially in light the juvenile court’s expressed concerns about the quality of Muti’s report.
The statutory scheme does not require the experts to agree that a parent is unlikely to benefit from services. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 473-474.) Accordingly, there is no requirement that the experts agree in their diagnosis. Rather, the statute requires only the submission of evidence from two qualified experts. The juvenile court has no obligation to harmonize diagnostic inconsistencies in the reports.
4. Conclusion.
Petitioners fail to demonstrate any error in the juvenile court’s refusal to provide family reunification services in this case. Consequently, the writ petitions must be denied.
DISPOSITION
The writ petitions are denied.
We concur: CROSKEY, J., KITCHING, J.