Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate. Los Angeles County Super. Ct. No. CK68826, Robert Stevenson, Juvenile Court Referee.
Los Angeles Dependency Lawyers, Inc., Law Office of Barry Allen Herzog and Ellen L. Bacon, for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Real Party In Interest.
MANELLA, J.
Petitioner D.M. (Mother) seeks review of the juvenile court’s order of July 28, 2008, which terminated reunification services and set a hearing under Welfare and Institutions Code section 366.26 to consider termination of parental rights over her son W.G. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention, Jurisdiction, Disposition
W.G. (then 13 years old) and his half-sister C.M. (then 4 years old) came to the attention of the Department of Children’s and Family Services (DCFS) in June 2007, when W.G. informed a teacher and a police officer that his stepfather, Clarence M., had choked him the night before and had previously hit him with a belt. W.G. repeated these charges to the DCFS caseworker, and also said that Clarence had choked him on other occasions, regularly swore at him, and had once threatened to kill him. W.G. said the abuse had been occurring for six years and further reported that Mother occasionally spanked him with a belt. W.G. described himself as “angry” and “acting out” and said he had thoughts of killing his stepfather.
Clarence is C.M.’s natural father. C.M. was returned to Clarence and Mother’s home in December 2007, and the court terminated jurisdiction as to her on May 12, 2008. Because no issues concerning C.M. are involved in this appeal, we do not repeat the allegations and findings that related solely to her. W.G.’s biological father is not a party to this appeal.
At the August 2007 jurisdictional/dispositional hearing, the court found that Clarence used “excessive inappropriate physical discipline on [W.G.]”; that Mother failed to take action to protect him; and that Mother herself had used inappropriate physical discipline. By the time of the hearing, W.G. reported he did not want to go home and was “better off” in the group home in which he had been placed. W.G. told a physician that he liked living with his mother, but that he was “really scared’ of Clarence and did not want to live with him. Mother was allowed to visit W.G at the group home, but during her visits, he called her names and swore at her. The court ordered parenting classes and therapy for Mother and Clarence, and conjoint counseling with W.G. “when his therapist feels [it is] approp[riate].”
That same month (August 2007), the caseworker made contact with W.G.’s maternal aunt, Lisa C., who lived in Illinois. Lisa informed the caseworker that Mother and Clarence had been living in Illinois, but moved suddenly after Lisa informed that state’s child protective services about Clarence’s abuse of W.G. Lisa offered her home to W.G.
The caseworker contacted child protective services in Illinois to inquire whether a case had been opened there; no record of the described referral was found.
B. Six-Month Review
During his initial period of residence at the group home, staff members described W.G. as deceitful and not to be trusted. In addition, they reported that he misbehaved and was under 24-hour supervision to prevent him from leaving the home without permission W.G.’s disruptive behavior in the group home was described as “provoking other kids, leaving inappropriate messages to [Clarence], interrupting conversations, [engaging in] verbal[] abus[]e, and showing lack of respect to adult figure[s]/authority in general.” Twice police were called to help the staff control him. The group home manager stated W.G. was “not making any positive progress.” The caseworker concluded that due to his behavior, no foster home would accept him.
In November 2007, the caseworker reported that Mother and Clarence were making progress in fulfilling the reunification requirements. Both had attended parenting and anger management classes. Clarence was in individual therapy; Mother had also seen an individual therapist briefly, and as of the date of the report, was on a wait list for a therapist at a new facility. Mother visited W.G. weekly and called him daily. The more recent visits were reported to go well and W.G. said he was happy to see his mother. Clarence stated he had come to realize corporal punishment was wrong and that he must discipline the children in a non-violent manner. However, he was reluctant to have W.G. returned to the family home until W.G.’s ongoing behavioral problems were alleviated.
They ultimately received certificates of completion.
In December 2007, the caseworker reported W.G. had been suspended from school for one day as the result of making threats. Mother continued to visit him in his group home, but the staff reported the visits were never longer than 30 minutes and Mother spent the majority of the time questioning the staff rather than interacting with her son.
In January 2008, W.G. therapist held a conjoint session with Mother. During the session, Mother said that Clarence had not been abusive and had been justified in punishing W.G. She also said that W.G. wanted to live with his aunt because he believed she would not control his misbehavior and he would have more freedom. W.G. told Mother and the therapist he did not want to live with her and Clarence, and the therapist believed he was unlikely to change his mind.
In February 2008, just prior to the six-month review hearing, the caseworker reported that W.G.’s behavior had improved -- he was “less aggressive, more cooperative with staff and ha[d] gained some control over his anger.” W.G. reported to the caseworker on numerous occasions that he did not wish to be returned to Mother’s home, that for the time being, he was “happy and comfortable” in the group home, and that ultimately, he wanted to live with his aunt in Illinois. The therapist recommended that “[W.G.’s] wishes as to his future [be] taken in[to] consideration as he is 14 years old, and returning [him ] to his mother . . . would seem very unproductive.”
He was by that time, receiving regular therapy and medication for ADHD.
The group home reported that W.G. was still engaging in “negative behaviors,” including “provoking, lying, threatening, and fighting peers.” W.G. had had a holiday visit with his aunt. She reported he had been well-behaved.
During this period, Mother continued to visit W.G. and to call him daily. They played board games during their visits, she was always “appropriate,” and W.G. was always happy to see her. In addition, Mother and Clarence continued to undergo therapy, but the caseworker had not received a progress report. The caseworker reached the conclusion that W.G. was “not ready to be returned home” because “he continues to display behavioral problems at school and in placement.” Moreover, “although [Mother] continues working toward her case plan goals[,] the minor has reported . . . on numerous occasions that he does not wish to return to his mother’s care.” DCFS recommended an additional six months of family reunification services. On February 11, 2008, the six-month review hearing, the court ordered the additional services.
C. 12-Month Review
The court ordered a psychiatric evaluation of W.G. which took place in March 2008. The therapist noted that W.G. had been “angry, defiant and withdrawn” and “physically aggressive” when he was first removed from Mother and Clarence’s home. As of the date of the evaluation, he remained “angry” and “emotionally constricted” and had “unresolved anger towards his mother.” He also had indications of depression, anxiety, insecurity, and lack of trust, caused in part by confusion over what was going to happen to him. The therapist believed W.G. had “a strong need for nurture and care” and saw his aunt as a “rescuer,” “someone who [was] going to take care of him” and “provide a family life for him.” The therapist concluded W.G. needed “a very trusting therapeutic relationship with a consistent adult in order to fully address these issues.”
In June 2008, just prior to the 12-month review hearing, the caseworker reported W.G. was still working on his goals of “increas[ing] cooperative behaviors at school and home” and “improv[ing] positive communication and anger management skills.” His behavior had improved in that he had “gained more control over his anger and frustrations” and his aggression, dishonesty, and manipulation had diminished. In May, W.G., Mother and Clarence had begun receiving family counseling and were, according to the therapist, “progressing well.” Completion of this counseling program was scheduled to occur in October. The conjoint therapist reported that she observed “positive interaction” and perceived a “possible positive outcome for the family in the future,” although W.G. was “resistant to address[ing] unresolved case issues with [Clarence].” W.G.’s individual therapist reported that W.G. had been consistent in his desire to live with his aunt, and the caseworker continued to perceive that W.G. was “adamant about not returning home.”
As noted in the petition, the caseworker reported that only Mother and W.G. attended the conjoint sessions. The therapist stated in a letter that Mother “and her husband” attended. We presume the therapist was correct.
The caseworker noted that Mother had “complied with her case plan goals and has demonstrated herself motivated in addressing all unresolved case issues with her son in therapy.” In addition, she had been “involved and interested in the minor’s well-being, and maintaining regular visitation with the minor.” However, the caseworker was unsure whether the unresolved issues would be remedied by the end of the 18-month reunification period if additional services were provided. The caseworker noted that W.G. therapist reported W.G. had “unresolved anger” toward Mother and that he was still “guarded and shy” in counseling. Nevertheless, DCFS recommended six more months of family reunification services.
At the July 28, 2008 contested 12-month review hearing, the parties submitted on the reports and called no witnesses. Despite its earlier recommendation, DCFS requested that family reunification services be terminated. W.G.’s attorney also recommended that services be terminated. Mother opposed and asked for additional services. Although the court concluded that Mother had “complied with the case plan,” it also found there had been no significant progress in repairing the relationship between W.G. and Clarence, and that reunification was unlikely in the foreseeable future due to their ongoing conflict. The court gave weight to W.G.’s feelings about where he wanted to reside, noting that W.G. was resistant even to visit with Clarence. The court further noted that extending the reunification period would require W.G. to stay in the group home, which was not in his best interest. Accordingly, the court ordered termination of reunification services and set a section 366.26 hearing for November 24, 2008. Mother noticed her intent to seek writ review of the court’s order.
DISCUSSION
Where a minor over the age of two is detained by DCFS and the court finds the exercise of dependency jurisdiction is necessary for his or her protection, section 366.21 obliges the court to hold review hearings at six-month intervals. At the six-month review hearing, the court must generally “direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian . . . .” (§ 366.21, subd. (e); see § 361.5, subd. (a)(1); Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546 [“Except under specifically described circumstances, the parent is . . . entitled to 12 months . . . of reunification services . . . aimed at assisting the parent in overcoming the problems that led to the child’s removal.”] (Italics omitted.).)
At the 12-month review hearing, the court may order an additional six months of family reunification services, but only if it finds “that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time . . . .” Under the express provisions of the statute: “In order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following: [¶] (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1); see § 361.5, subd. (a)(3).)
Alternatively, the court may order an additional six months of services if it finds that “reasonable services have not been provided to the parent or legal guardian.” No issue concerning inadequate services has been raised here.
The evidence establishes that Mother regularly contacted and visited W.G. and that she was motivated to resolve the problems that led to his removal from the home. The issue is whether the evidence supported the court’s finding that, despite whatever progress had been made, Mother would be unable to regain custody and provide for W.G.’s safety and physical and emotional well-being by the next review hearing, were she to be granted additional services.
We review the court’s findings for substantial evidence. (In re Julie M. (1999) 69 Cal.App.4th 41, 46; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) Under this standard, “[w]e construe all reasonable inferences in favor of the juvenile court’s findings . . . .” (In re Julie M., supra, at p. 46.) “In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination.” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).)
In making the factual determinations required at a review hearing, the court may properly consider, among other things: “psychological evaluations which indicate return to a parent would be detrimental to a minor” (Constance K., supra, 61 Cal.App.4th at pp. 704-705; see, e.g., In re Jasmon O. (1994) 8 Cal.4th 398, 423; In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Brian R. (1991) 2 Cal.App.4th 904, 915); “difficulties a minor has in dealing with others such as stepparents” (Constance K., supra, at p. 705; see, e.g., In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816-817); “limited awareness by a parent of the emotional . . . needs of a child” (Constance K., supra, at p. 705; see, e.g., In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142); and “the manner in which the parent has conducted himself or herself in relation to a minor in the past” (Constance K., supra, at p. 705; see, e.g., In re Jasmon O., supra, 8 Cal.4th at p. 424; In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Laura F. (1983) 33 Cal.3d 826, 833).
A court acts arbitrarily if it orders reunification services for an additional six months in the absence of evidence that the child could be returned to the parent at the conclusion of the period. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1069.) “[S]imply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents’ progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.” (In re Dustin R., supra, 54 Cal.App.4th at p. 1143.) “The problem is not . . . 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).” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.)
Here, the primary problem to be resolved was Clarence’s pattern of physical and verbal abuse of W.G. and Mother’s acquiescence. The fact that W.G. expressed a deep fear of Clarence, wanted no contact with him and was unwilling to consider returning to Mother and Clarence’s home even when the only alternative was a group home attests to the severity of the abuse he suffered and its impact on his psychological and emotional health. Although Mother contends she did everything within her power to resolve the problem and effect reunification, as recently as January 2008 she denied that Clarence had abused W.G. and said her husband had been justified in punishing her son. Moreover, she attempted to rationalize W.G.’s efforts to keep himself out of an abusive home as an adolescent desire to avoid restrictions on his freedom. That she would continue to hold to such beliefs months after initiation of therapy did not bode well for her ability to deal with W.G.’s psychological and emotional needs in the future -- or to protect him from Clarence if the need arose again. The petition accurately describes W.G. as “a clearly troubled minor,” but overlooks that the most serious misbehavior was observed in the months after he was removed from an abusive home. His disruptive and antisocial behaviors decreased in both seriousness and frequency the longer he was detained, suggesting that separation from the abusive home was alleviating some of the psychological and emotional harm caused by the abuse. His progress was likely to be interrupted were he to be returned, particularly given Mother’s lack of understanding concerning the source of W.G.’s problems and her contribution to them.
To support her position, Mother points to the report of the conjoint therapist who, after less than a month of sessions, projected a “possible positive outcome for this family in the future” and completion of the program by October. However, the therapist also stated W.G. was “resistant to address[ing] unresolved case issues with [Clarence],” and W.G.’s individual therapist reported that W.G. was “adamant about not returning home.” Moreover, the therapist who conducted the court-ordered evaluation concluded that after years of abuse, W.G. had numerous psychological and emotional problems and a “strong need” for “nurture and care” and “a very trusting therapeutic relationship with a consistent adult in order to fully address [his psychological and emotional] issues” -- an adult such as his aunt, who would “take care of him” and “provide a family life for him.” The court could reasonably discount the conjoint therapist’s rosy projections in the face of contrary evidence from others who had spent more time with W.G. That W.G. was unwilling even to meet with Clarence outside the confines of a therapy session supports the court’s conclusion that the conflict between them which led to physical abuse was unlikely to be resolved in a few months.
Mother notes that family reunification is the “‘primary objective’” of the dependency system. (Quoting § 202.) While reunification is important, the welfare of a child is also “‘a compelling state interest that a state has not only a right, but a duty, to protect.’” (In re Brequia Y., supra, 57 Cal.App.4th at p. 1069.) “‘California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.]’” (Ibid., quoting, In re Marilyn H. (1993) 5 Cal.4th 295, 307.) The court, faced with a statutory duty to determine whether Mother had “demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for [W.G.’s] safety, protection, physical and emotional well-being, and special needs” within the period remaining for provision of reunification services, concluded it was not feasible based on the amount of progress made as of the date of the 12-month review hearing. Substantial evidence supported that finding.
DISPOSITION
The petition is denied.
We concur: EPSTEIN, P. J., SUZUKAWA, J.