Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Diego County Super. Ct. No. J516812
HUFFMAN, J.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Yvonne E. Campos, Judge. Petition denied, request for stay denied.
Carolyn P. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26. She contends the court's reasonable services finding is not supported by substantial evidence. We deny the petition.
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Carolyn P. is the mother of Jordan B., born March 2005. In August 2007 police found two-year-old Jordan and his father living in a car. Jordan was filthy and his father did not have food or clothing for him. Carolyn was homeless and could not care for him. Jordan had significant behavioral problems. In October the court adjudicated Jordan a dependent, removed him from parental custody and ordered a plan of family reunification services.
Jordan's father was minimally involved in Jordan's dependency proceedings. He is mentioned here only where relevant.
Carolyn's services included individual therapy and a psychological evaluation, if recommended, a parenting education program, a substance abuse assessment and treatment, if recommended, and in-home support services, when appropriate. Jordan was to receive "age appropriate, child-oriented services."
From August 19, 2007 to March 10, 2008, Jordan had several interim placements at Polinsky Children's Center and La Cuna Agency Home, three foster care placements and one relative placement. Jordan was removed from one foster care placement because of wildfires in San Diego County; the other caregivers could not manage Jordan's behaviors and asked the Agency to remove him. Jordan was extremely active. His behaviors included biting, hitting, spitting and kicking.
On March 10, 2008, the Agency placed Jordan with a fourth foster care parent, who later became Jordan's de facto parent. She reported Jordan was very disturbed and out of control when he first arrived at her home. He bit and hit others and spit at them; he was not socialized and very nonverbal. Jordan displayed sexualized behaviors and did not sleep.
On April 1, 2008, in its initial report for the six-month review hearing, the Agency stated Jordan was a friendly and energetic little boy. There were no concerns about his mental and emotional status and his case plan continued to be appropriate. The Agency reported Carolyn began residing at St. Vincent de Paul in March 2008 and was receiving assistance with housing and employment resources. Carolyn completed a parenting program in November 2007 and was participating in therapy. The social worker stated Carolyn demonstrated a parental role during visits, responded to Jordan's verbal and nonverbal signals with empathy, and put his needs ahead of her own.
At the request of the de facto parent, the court appointed a special advocate for Jordan (CASA) on May 10, 2008.
On May 29, 2008, Gricelda Fragoso, Psy.D., Rady Children's Hospital, conducted a comprehensive developmental evaluation of three-year-old Jordan. Her diagnostic impressions of Jordan included pervasive developmental disorder (PDD), not otherwise specified (NOS), average cognitive functioning and possible sexual trauma secondary to abuse, R/O. She reported Jordan had a history of communication and behavioral problems, most consistent with an autism spectrum disorder.
Dr. Fragoso recommended specific and timely service interventions to include autism-specific behavior therapy, behavior therapy, social skills training, speech therapy, and a follow-up therapeutic assessment by a licensed masters' level therapist to properly assess trauma, secondary to possible sexual abuse.
On August 21, 2008, the de facto parent filed a letter with the court from Judith Froehlich, LMFT, Program Director and Social Work Supervisor, at La Cuna, Inc. La Cuna staff had received Dr. Fragoso's report on June 2 and noted it included recommendations to refer Jordan to the San Diego Regional Center (SDRC) for further evaluation and to begin treatment as soon as possible, as clinically indicated. La Cuna staff immediately notified SDRC and learned the Agency social worker had to initiate the intake process. La Cuna staff informed the Agency social worker of her responsibility on June 2 and periodically asked for a status report. They did not receive a response. In early August La Cuna contacted minor's counsel for assistance. The Agency social worker made the referral to SDRC on August 13.
La Cuna supervised visitation between Carolyn and Jordan. Froehlich stated Carolyn was doing her best to reunify with her son but she made minimal progress to improve her parenting skills and the quality of parent-child interactions. On July 8 La Cuna requested a referral on behalf of Carolyn and Jordan for Parent Child Interaction Therapy (PCIT) to improve the parent-child relationship and to determine whether Carolyn could develop the child-centered emotional attachment with Jordan that he required as a mildly autistic child.
In its August 26, 2008 addendum report, the social worker stated the intake packet for SDRC had been mailed. Carolyn had a PCIT assessment on August 26. The Agency supervised visits between Carolyn and Jordan in July and August and stated they were appropriate. La Cuna expressed concerns about Carolyn's interactions with Jordan at some visits, but the Agency stated overall Carolyn was doing well.
The six-month review hearing, initially calendared on April 1, 2008, concluded on August 26, 2008.
The court found that Carolyn made substantial progress with her case plan, authorized the Agency to begin unsupervised visits with the concurrence of minor's counsel and continued reunification services.
Carolyn and Jordan began PCIT on October 1, 2008. The treatment was designed to strengthen the parent-child relationship and attachment, and improve Carolyn's ability to decrease and manage Jordan's behaviors. After each weekly session, Carolyn and Jordan had a one-hour visit supervised by Agency social workers.
In its status review report prepared for the 12-month hearing, initially scheduled for October 2, 2008, the Agency recommended the court extend reunification services for six months and allow unsupervised visits. Minor's counsel, joined by the de facto parent, contested the recommendations.
The Agency reported that a behavioral specialist provided in-school and in-home services to the de facto parent, and to Carolyn during visitation, from June 11 to September 16, 2008. The primary goal was to stabilize the foster care placement to avoid removal. The behavioral specialist worked with Jordan at school one to three times a week to increase compliance and decrease aggression. Jordan's teacher stated Jordan made positive progress. The last few weeks focused on parent-child visits. The de facto parent cancelled in-home services because the placement was no longer at risk.
Carolyn had been participating in therapy and made progress but she had not met with her therapist since the birth of her baby in late July 2008.
In an addendum report, the Agency stated Jordan underwent a psychological evaluation at SDRC on October 21, 2008. The clinical psychologist's diagnostic impression was Jordan did not meet a diagnosis of autism, and a diagnosis of PDD NOS should be deferred until he had been in a stable placement for a longer period of time. Jordan's need for stability was critical. His caregiver should continue to work with a professional to address behavioral and other concerns, and Jordan should undergo a school-based occupational therapy evaluation to assess his fine motor skills, and speech and language issues.
The 12-month review hearing began on December 19, 2008. Minor's counsel withdrew her opposition to unsupervised visitation and submitted on the Agency's recommendations. Carolyn objected to proceeding to a hearing where all parties except the de facto parent submitted on the Agency's recommendations. The court determined the matter would proceed as an uncontested review hearing and allowed the de facto parent to present evidence.
The de facto parent testified when Jordan first arrived in her home, he had no boundaries. Jordan required constant supervision, physical activity and well-set boundaries. He stabilized after 90 days in her care and did well at home and at school. After PCIT started and visitation increased, Jordan's behavior significantly regressed. He bit other children and deliberately pushed an 18-month old child off a playground structure. The child fell four and a half feet and hit his head. On December 18 Jordan was expelled from preschool after he picked up a tricycle and threw it at a classmate, hitting the classmate in the spine and injuring him. Jordan was not permitted to return without a full-time behavioral specialist accompanying him.
The de facto parent stated she had to follow up aggressively with the social worker to obtain needed services for Jordan. On several occasions she told the social worker the SDRC doctor told her that Jordan needed outpatient psychiatric care, not play therapy.
The 12-month status review hearing continued on February 17, 2009. The Agency changed its recommendation to termination of reunification services and asked the court to set a section 366.26 hearing. Carolyn opposed the recommendation and requested a contested hearing. Louie Subido, MFT, the PCIT therapist, and Jennifer Miller, Ph.D., a clinical psychologist with the TERM program and Jordan's therapist, testified.
Louie Subido provided mental health services and therapy at Rady Children's Hospital Chadwick Center for 15 years, and PCIT therapy for two years. Jordan was extremely overactive. He was oppositional, aggressive and defiant, and did not listen. He kicked, yelled and hit. Carolyn had difficulty under pressure. Progress had been slow. Carolyn needed to be more consistent with Jordan and to apply her skills at home with him as well. It would help if she could spend more time with him. PCIT had no value if the parent was not visiting with the child.
Jennifer Miller, Ph.D., provided weekly therapeutic services to Jordan for 14 weeks from June to September 2008. Miller stated she did not have background information usually provided by the Agency. She requested the standard Agency reports but never received them. Miller usually saw children for at least 20 sessions. Jordan was in need of continued therapy. Miller customarily relied on the social worker's directives to continue therapy but the de facto parent terminated her services in September.
Miller stated Jordan's progress was slow. She concurred with Jordan's diagnosis of PDD NOS. Jordan required a higher level of stability than the average three to four year old. Transitions, including any change in his daily routine, were very difficult for him. Miller approved of PCIT and believed the intervention would benefit Jordan and his mother.
Miller was not surprised to learn Jordan did not qualify for SDRC services. Usually a child with PDD required special care or special assistance with tasks and needs. Jordan did not require a high-functioning, well-educated caregiver; rather he needed someone with consistency, stability, patience, tolerance and compassion. His home life needed to be stable, calm, structured and consistent.
The court was not able to conclude the 12-month review hearing. Because the next available trial date was approximately two months after the 18-month review date, the court combined the 12-month review hearing with the 18-month review hearing and extended reunification services to the hearing date. The court ordered the Agency to continue Jordan's therapy with Dr. Miller and to locate a speech therapist for him.
On April 24, 2009, the court admitted in evidence the Agency's reports of August 22, September 12 and October 4, 2007, April 1, June 24, August 26, October 2 and 27, and November 10, 2008, and February 17 and April 24, 2009, the social worker's resume, and PCIT therapist Subido's report and stipulated testimony.
Subido reported Carolyn and Jordan recently began the second stage of PCIT, focusing on improving the parent's skills. Carolyn continued to show progress. During PCIT she remained calm when Jordan's behaviors escalated and understood how to manage them.
The Agency reported it had not yet located a speech therapist for Jordan. Jordan resumed therapy with Dr. Miller in March 2009. Jordan's behavior was improving despite some regression and aggressive acting out. Later that month, Jordan qualified for IEP services, including specialized academic instruction, home visits, language and speech services, and occupational therapy.
On April 2, 2009, Jordan's school asked the social worker to transition Jordan to another school because of a series of escalating incidents. On March 4 Jordan bit a child in the head and hit other children all afternoon. On March 5 Jordan hit and growled at the other children. When a teacher took him aside, he spit in her face twice. On March 10 Jordan hit a child's mother. On March 11 he slapped a child across the face and was aggressive toward the other children. The school reported he had been completely out of control for two days. On March 24 Jordan hit a child in the back and told a teacher he was going to shoot them all. On March 30 he pushed a child down the stairs. On April 2 Jordan hit a child, hurting him, and bit another child.
Jordan's behaviors in the de facto parent's home also deteriorated.
The social worker observed visits between Jordan and Carolyn in February, March and April. At times Jordan was affectionate and responded to Carolyn, at other visits he refused to engage with her and/or misbehaved. At times Carolyn was able to control his behavior and they displayed mutual affection and love. At other times Carolyn did not try to or could not control Jordan's behavior.
During one visit in April, Jordan kicked, pinched, punched and slapped Carolyn. Carolyn stated several times, "I will leave and you will never see me again." At another recent visit, Carolyn became frustrated and repeatedly told Jordan she was leaving. She told Jordan several times he was bad and "the bad people were going to take him away." Jordan began to cry. The social worker intervened. Carolyn became frustrated and left after 30 minutes. The social worker then played with Jordan for another 40 minutes. The social worker reported Jordan was smiley, rambunctious and appeared to be having fun. He did well with positive stimulation.
The court found that the Agency made extraordinary efforts to help Carolyn stabilize her situation and reunify with Jordan. Carolyn's capacity to provide patience, structure and consistent parenting to Jordan was limited and return to her care would be detrimental to him. The court found that the 18-month review date had passed and there were no justifications for further extension of the reunification period. The court terminated reunification services and set a section 366.26 hearing.
Carolyn petitions for review of the court's order under California Rules of Court, rule 8.452. She requests this court reverse the order setting a section 366.26 hearing. On March 26, 2009, this court issued an order to show cause and the Agency responded. The parties waived oral argument.
Further rule references are to the California Rules of Court.
DISCUSSION
A. The Issue
Carolyn contends she was denied reasonable services when the court allowed the de facto parent to contest the Agency's recommendation for unsupervised visitation, thus delaying unsupervised visitation and impeding her progress with PCIT. Carolyn acknowledges minor's counsel made the initial request for a contested 12-month review hearing. She argues minor's counsel withdrew her objection to unsupervised visitation and the court erred when it allowed the de facto parent to turn an uncontested review hearing into a hearing with the atmosphere and character of a trial.
The Agency acknowledges the role of a de facto parent is limited and does not include the right to set a contested hearing. The Agency argues that despite minor counsel's withdrawal of her request for a contested hearing, a de facto parent is allowed to present evidence at an uncontested review hearing. It contends if the court erred in its conduct of the hearing, any error was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. The Agency maintains Carolyn received reasonable services during an extended reunification period, including reasonable visitation services.
We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
B. The Court Properly Applied the De Facto Parent Doctrine to Gain Critical Information About the Child
A de facto parent is "a person who has been found by the court to have assumed, on a day-to-day basis, the role of a parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." (Rule 5.502(10).) "The de facto parent may: [¶] (1) Be present at the hearing [at which the status of the dependent child is at issue]; [¶] (2) Be represented by retained counsel or, at the discretion of the court, by appointed counsel; and [¶] (3) Present evidence." (Rule 5.534(e).) "Within its limited scope, the doctrine of de facto parenthood has since been liberally applied to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor." (In re Kieshia E. (1993) 6 Cal.4th 68, 76.)
The court allowed the de facto parent to testify at the uncontested 12-month review hearing on December 19, 2008. The de facto parent did not complete her testimony and the hearing was continued to January 14, 2009. On January 14, the de facto parent completed her testimony and indicated she was going to cross-examine the social worker and call witnesses to testify. The Agency and Carolyn questioned whether a de facto parent had the right to call witnesses and to cross-examine the social worker. (Compare rule 5.534(e) [de facto parent right to present evidence] with rule 5.534(k) [child, parent and guardian rights to confront and cross-examine witnesses, use court processes to bring in witnesses, present evidence and receive social worker's reports and all documents filed with the court].)
The court stated the issue had been raised and resolved, and in any respect the parties should consider the issue moot because the court was going to call the social worker and the PCIT therapist to testify. The court stated in view of Jordan's recent transition to a new school and other recent events, the Agency should resume services and supervised visitation, and slowly start graduated unsupervised visits.
The court temporarily suspended visitation and PCIT therapy because Jordan underwent substantial surgery on December 22, 2008, and had to remain quiet and off his feet for at least two weeks to properly heal.
By the time the hearing resumed on February 17, 2009, the Agency changed its recommendations. Carolyn requested a contested hearing. The record indicates the court called Louie Subido, MFT, and Jennifer Miller, Ph.D., as witnesses and conducted direct examinations, and then gave the parties, including the de facto parent, the opportunity to cross-examine the witnesses.
The court correctly stated it was not required to follow the Agency's recommendations. Despite the Agency's earlier recommendation for unsupervised visitation, the evidence indicates Carolyn's interactions with Jordan often required professional assistance and intervention. As late as April 2009 Carolyn displayed limited tolerance with Jordan's behavior in supervised settings. The court could reasonably infer unsupervised visitation was not consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) Further the protracted 12-month review hearing resulted in an extension of the reunification period to 20 months, which inured to Carolyn's benefit.
The record belies Carolyn's assertion the court allowed the de facto parent to turn an uncontested review hearing into a contested hearing, thus impeding reunification services by unreasonably denying her the unsupervised visits necessary to fully implement PCIT therapy. Carolyn's argument is not supported by the facts and we deny the petition.
While we deny the petition on the grounds presented, we are concerned about the services provided to the child, particularly the eight-month delay in identifying and seeking appropriate services for Jordan, the Agency's difficulties coordinating Jordan's services with the many agencies involved in his care and providing standard information to service providers, subsequent service delays such as providing speech therapy (first recommended in May 2008 and not yet in place as of April 2009), and the lack of a definitive diagnosis after 20 months as a dependent of the court. Were it not for the extraordinary efforts, dedication and perseverance of Jordan's de facto parent, his CASA volunteer and La Cuna Agency, the dependency system may have failed this child.
During our review of the appellate record, we noted SDRC deferred a diagnosis to allow Jordan to stabilize in a supportive placement and by April 2009 his behavior appears to have seriously deteriorated. The record suggests at least one professional considered referring Jordan for a psychiatric examination. It also indicates Jordan stabilized with intensive in-home and in-school behavioral support services, which stopped (as did his play therapy) in the weeks before PCIT first started. These suggest it may be appropriate, if the Agency has not already done so, to refer Jordan for a second SDRC or other evaluation and/or to reinstitute intensive behavioral support services. Our observations are in no way intended as a substitute for the informed judgment of the court and Agency. (See In re Valerie W. (2008) 162 Cal.App.4th 1, 14 [Agency must accurately identify the child's needs].)
With respect to the upcoming proceedings, the court should ensure the assessment report is comprehensive and it should receive other evidence the parties may present. (§§ 366.22, subd. (c)(1), 366.26, subd. (b); In re Valerie W., supra, 162 Cal.App.4th at pp. 11-12.) The court should also liberally construe the parent's petition for a section 388 hearing, if any, in favor of a hearing. (§ 388, subd. (a); rule 5.570; In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
DISPOSITION
The petition is denied. The request for a stay is denied.
WE CONCUR: McCONNELL, P. J. O'ROURKE, J.