Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge, Super. Ct. Nos. JD093128, JD093129, JD093130.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
The instant case involves three children—D., M., and E.—who have been the subjects of three dependency petitions in Kern County over the past 10 years. Each petition occurred when their mother, appellant June A., contacted respondent Kern County Department of Human Services and said she could not take care of the children anymore, without giving a clear explanation of why she could not take care of them.
Appellant now appeals from a dispositional order which resulted after the third dependency petition, where the court granted custody of D. and M. to their father, Michael. The court ordered their half-sibling, E., to continue as a dependent in a group home while appellant had more time to complete the reunification plan. Appellant contends there is insufficient evidence to support the jurisdictional and dispositional orders, the court should not have placed D. and M. with their father, and the court failed to make the requisite findings to support the dispositional orders. We will affirm.
FACTS
Appellant seeks review of the court’s jurisdictional and dispositional orders issued in January 2007. Her appellate arguments are based on the facts surrounding the third dependency action, which resulted in those orders. Given the unique circumstances of this case, however, we must resist appellant’s insistence on focusing on her most recent conduct, and must begin at the beginning.
Initial Referrals
Appellant was born in 1973. She was pregnant when she was 17 years old but the child was stillborn, after which she attended some type of mental health counseling and resumed high school. She graduated from high school, completed general education classes at Bakersfield College, and hoped to enter a nursing program. She never completed college, however, because she had trouble with the more difficult required courses, and dropped out after her third year. She had a variety of jobs at fast food restaurants, bus monitor, part-time teaching assistant, and at a group home. She quit working when her first child was born.
In July 1994, D., a girl, was born to appellant (the mother) and Michael G. (Michael). In July 1995, M., a boy, was born to appellant and Michael. Appellant and Michael never married. Appellant later claimed Michael had drug problems that led to mood swings, and he was physically abusive. Appellant stated he went to jail and she cut off contact with him. Appellant thus had sole physical custody of D. and M.
As we will explain, post, appellant’s representations about her life, her contacts with the children’s fathers, and the children’s status were not always accurate.
In September 1995, respondent received a referral of caretaker absence and incapacity regarding D. and M. Respondent’s report stated that appellant was “crazy,” she had “up and down mental problems,” and she took the children to a bus station at 5:30 a.m. because Michael, the father, worked there and she wanted him to take care of the children. Michael later reported that appellant called the police and claimed he was physically abusing her. The police arrived at his workplace, the bus station, and appellant called again and claimed he was beating her. Appellant was seen at the bus station, making telephone calls and hitting herself. Michael stated that he lost his job as a result of her actions.
In October 1995, respondent received a referral of general neglect when staff at Kern Medical Center saw appellant roughly handle D. According to respondent’s report, the staff believed appellant was stressed out and might injure the child. Appellant had brought the child into the hospital three times in one week. The child was running a slight fever but was not seriously ill. Appellant insisted the hospital admit D. and “appear[ed] to want to get rid of the child.” Appellant said she did not want her children and wished they had never been born, appellant told D. that she hated her, and appellant inflicted lacerations on D.’s face. A social worker determined there was no physical evidence of abuse but substantiated allegations of general abuse. The social worker tried to get appellant into treatment, but appellant failed to participate in “needed mental health counseling.”
Later in October 1995, appellant called a social worker and said she was giving up D. and M. for adoption because the father, Michael, had abandoned the family and his employer said he was dead. Appellant said she was tired of changing diapers and making bottles and she wanted to go back to school: “‘I can always [have] more children, I’m still at child bearing age, and I’m tired of taking care of these kids.’” The social worker explained to appellant that she could not give up the children for adoption without the father’s consent. Appellant claimed the father had not contacted her for six months. The social worker knew the father had just seen the children the previous week. Appellant insisted she was giving up the children for adoption and the father had deserted them. Appellant launched into a stream of curses and hung up.
The First Petition
In November 1995, police officers responded to appellant’s home because appellant had called an adoption agency and asked them to take the children from her. The officers found the telephone book open to listings for adoption agencies. They also found D. and M. had scratches and abrasions on their faces. D. and M. were taken into protective custody based on appellant’s repeated attempts to give up the children for adoption. Appellant also threatened to kill the children if they were not removed from her care.
Respondent filed a petition alleging the children were dependents and the children were detained. (The first petition is not in the instant record). In December 1995, the court held the jurisdictional hearing and found true the petition’s allegations that D. and M. were dependents within the meaning of Welfare and Institutions Code section 300, subdivision (a), based on the allegations that appellant tried to give them up for adoption. The petition also raised allegations against Michael, the father, that he failed to support the children. The court dismissed all allegations against Michael, adjudged the children dependents, and placed them with Michael. The court ordered reunification and family maintenance services for appellant and Michael.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In January 1996, the children were removed from Michael’s custody and respondent filed supplemental petitions based on Michael’s general neglect and his failure to provide the children with appropriate care. D. and M. were adjudged dependents under section 300, subdivisions (b) and (j). Respondent believed the children should not return to Michael until he fully understood parenting issues. Respondent also stated the children could not be returned to appellant because of her serious conduct toward them, and appellant should receive “a psychological evaluation in order to better determine her parenting abilities and tendencies for the future.” The children were placed in foster care.
After the children were removed, appellant apparently attended classes at California Care Center and earned her license as a certified nursing assistant in 1996. She claimed to have worked as a nursing assistant for a few years but quit because of physical problems.
In December 1996, Michael pleaded no contest to second degree felony burglary. In February 1997, Michael pleaded no contest to another charge of second degree felony burglary.
The next notation in the record is that in February 1997, the court dismissed the dependency of D. and M., and the children were returned to appellant because Michael failed to participate in reunification services. The record is silent as to whether appellant complied with the recommendation for a psychological evaluation.
Additional Referrals
In 1996, appellant married Edgar A. In April 1997, their son, E., was born.
In February 1997, Edgar pleaded no contest to misdemeanor infliction of corporal injury on a cohabitant. In December 1998, Edgar pleaded no contest to felony infliction of corporal injury on a cohabitant (appellant), and was sentenced to state prison. Appellant thus had sole physical custody of D., M., and their half-sibling, E.
In September 1998, respondent received allegations of general neglect and physical abuse of the children by appellant. A social worker found the home was messy but did not find any evidence of physical abuse. Appellant blamed all her problems on neighbors, she denied the reasons for the prior dependency, she denied taking any inappropriate actions toward the children, and she denied she had any mental health issues. The social worker determined the children were not at imminent risk, but believed the family would be involved in another dependency given appellant’s defensiveness, frustration, and short temper with the children.
In February 1999, December 1999, and March 2000, respondent received allegations of general neglect against appellant as to the three children, and the allegations were found inconclusive.
In August 1999, appellant pleaded no contest to a misdemeanor violation of disturbing the peace, and the court dismissed a misdemeanor charge of making annoying or obscene telephone calls.
The Second Petition
On November 24, 2000, respondent received a referral of caretaker absence and capacity as to Michael, and physical and emotional abuse as to appellant. A social worker spoke to the children and observed physical injuries on six-year-old D. The children said appellant pulled their hair and hit them with a stick, she called five-year-old M. a “‘stupid asshole,’” and threatened to put M. in foster care. M. was aggressive toward D. and hit her. D. had scratches on her face consistent with appellant’s nails, but appellant and the children said M. scratched D.
On December 7, 2000, the social worker tried to contact the family. No one was home, but a window was broken and uncovered and there were shards of glass and trash in the front yard.
Also on December 7, 2000, a social worker separately interviewed appellant and the children. D. had bruises on her face but insisted the injuries were inflicted by her brother, M., and not appellant. D. said appellant spanked M. and sometimes they did not have food. M. also had bruises and said appellant was mean, hit him, and called him names. E. did not have any injuries. Appellant said M. broke the window at home, Michael put the glass in the yard, and they were now living at a motel. Appellant said her fiancé was Charles Turner.
As will be seen, Mr. Turner stays in the picture and later plays a role in this case.
In January 2001, social workers repeatedly tried to offer assistance to appellant and the children. Appellant initially refused and said she was too busy and did not need any help. Appellant subsequently called respondent’s office and asked what would happen if she turned over the children to respondent’s custody. A social worker explained the legal implications, and reminded appellant that they could receive voluntary assistance without court intervention. Appellant asked respondent to pick up the children because she needed time to find a home and a job. Appellant said she was overwhelmed because her car was stolen, she was evicted, and she lost her job.
On January 22, 2001, appellant delivered the children to respondent’s custody, and they were taken to Jamison Children’s Center. D. and M. were again asked about D.’s bruises, and they said it happened while D. was playing with M., but D. later said that a cat scratched her face. D. also said her father, Michael, was really nice. M. said they did not have a lot of food or toys at home. M. said D. cut his face.
Respondent contacted Michael, father of D. and M. Michael said the three children lived with him and his mother in November and early December 2000, but appellant showed up and took them away. When the children lived with him, he noticed that M. had scratches and bruises inconsistent with appellant’s explanations. Michael had not seen the children for some time since appellant took them away. Michael admitted he had not paid child support but explained he had been unemployed.
Michael’s mother and sister stated appellant was physically and verbally abusive to M. and often threatened to put him in foster care if he misbehaved. They knew that M. inflicted injuries to himself and cut himself with glass. Appellant kicked M. when he refused to get her a soda from the kitchen. They also saw appellant slap and hit the children in the face, and leave red marks and scratches on their faces and backs.
Appellant’s mother, L.A., was very cooperative, she was upset the children were in custody, and advised the social worker that appellant left for Las Vegas just after turning over the children to respondent’s custody. L.A. previously had custody of D. and M., and wanted to take care of all three children, but she was concerned because appellant repeatedly harassed her during the previous custody period. L.A. was concerned about appellant’s emotional and mental health, and explained appellant had displayed such behavior since she was a teenager. L.A. wanted appellant assessed for a “chemical imbalance.”
Edgar, father of E., who had been in state prison, had since been transferred to federal custody for possible deportation to the Philippines, and did not have any part in the second dependency petition.
On January 24, 2001, dependency petitions were filed on behalf of the children pursuant to section 300, subdivisions (b), (c), and (g). The petitions alleged the children were at risk of suffering serious harm or illness due to appellant’s failure to provide adequate food or shelter, the family home was dirty and presented health and safety hazards, appellant requested the removal of the children because she was being evicted and had no means to support the children, the fathers failed to protect them from appellant’s conduct, and M. suffered serious emotional damage and exhibited aggressive behavior against D. as a result of appellant’s conduct.
On January 25, 2001, the detention hearing was held; Michael appeared but appellant was not there. The children were living with a relative, presumably appellant’s mother. The court ordered the children detained and provided for weekly supervised visits.
On March 13, 2001, the jurisdictional hearing was held. The court found the allegations against appellant were true, but found the allegations against Michael not true. The court found D. was within the provisions of section 300, subdivision (b), M. within subdivisions (b) and (c), and E. within subdivisions (b) and (g).
On April 3, 2001, the dispositional hearing was held; Michael was present but appellant did not appear. Michael requested custody of his children, D. and M., because he had completed domestic violence and anger management classes. Appellant’s attorney submitted the matter but objected to placing D. and M. with their father. The court adjudged the children as dependents and found appellant had made no compliance with the case plan. The court found Michael had made substantial compliance with the case plan but declined to place D. and M. with him until he obtained stable housing. The court noted E.’s father was in federal custody pending deportation. The court ordered reunification services and weekly supervised visitation to appellant and Michael, for a period not to exceed 12 months that would expire in March 2002, and to attend and complete specific counseling programs.
On October 3, 2001, the court conducted a review hearing. Michael was present but appellant did not appear. The court found appellant had not made acceptable efforts, did not cooperate, and failed to participate in the case plan, but continued reunification services and ordered appellant to complete parent training and child neglect counseling. The court found Michael had made acceptable efforts and cooperated with the case plan, and placed M. and D. with their father with family maintenance services, and continued all three children as dependents. Michael’s attorney requested the court to decrease appellant’s visitation because she was not participating in the case plan and she caused emotional turmoil to the children. The court declined to limit visitation and set that matter for a contested hearing.
On October 17, 2001, the court ordered for appellant to receive supervised visits of one hour every week. On January 15, 2002, the court granted respondent discretion to increase the length and frequency of appellant’s visits with the children.
On March 12, 2002, the court conducted a review hearing. Michael was present but appellant did not appear. Appellant’s attorney asserted she had made substantial compliance with the case plan and requested placement of all three children with appellant. The court found appellant had made substantial compliance and acceptable efforts. The court ordered appellant and Michael to have joint legal custody of D. and M., with Michael to have sole physical custody of the children and appellant to have weekly visitation. The court dismissed the petitions as to D. and M., and set the matter for a hearing as to whether E. should be placed with appellant.
On April 4, 2002, the court conducted a review hearing as to E.’s placement; appellant and Edgar were present. A social worker testified appellant had been living and working at a motel since the previous court hearing, but she was looking for another place and the social worker was helping her look for housing. Appellant had weekly visits with E. The social worker recommended returning E. to appellant.
The court found appellant had made substantial compliance with the case plan, placed E. with appellant with family maintenance services, and continued E. as a dependent, and set a review hearing for October 2002.
On May 17, 2002, the court filed its final order, which granted joint custody of D. and M. to appellant and Michael, with Michael to have physical custody, appellant to have weekly visits, and dismissed the dependency as to D. and M.
Thus, the second dependency as to D. and M. was dismissed and they lived with their father, Michael. E.’s dependency continued, however, and he lived with appellant.
Appellant Regains Custody of the Children
In May, August, and September 2002, appellant made several allegations to respondent that Michael abused D. and M., that Michael was drunk and out of control, the children did not like living with their father, and the children ran away from Michael. Appellant demanded respondent take the children from Michael. Respondent determined the allegations were unfounded, the children were doing well with Michael and his girlfriend, and appellant’s allegations were the result of the custody dispute between the parents.
In approximately August 2002, appellant regained physical custody of D. and M. from their father, Michael Appellant claimed that Michael lost interest in the children, he could not handle them, and he turned them over to appellant. As we will explain post, appellant managed to get an ex parte hearing held to change custody. The court later conducted a noticed hearing and ordered appellant to have physical custody of D. and M. The court records reflected Michael had been served with notice by Charles Turner, who was appellant’s boyfriend, but Michael later told respondent that he did not appear at the noticed hearing because he never received any notice. Thus, as of August or September 2002, appellant obtained a court order for custody of D., M., and E.
In March 2003, appellant pleaded no contest to misdemeanor battery and petty theft. In July 2003, appellant pleaded no contest to misdemeanor petty theft with a prior conviction, reckless evading of a peace officer, willful cruelty to a child (Pen. Code, § 273A, subd. (a)), and driving with a suspended license.
On August 19, 2003, respondent received allegations that appellant neglected M., who had been diagnosed with ADHD. The incident occurred when M. had a temper tantrum, and appellant called for an ambulance to take him to Kern Medical Center. M. was supposed to be taking medication for ADHD but the hospital determined he did not have any drugs in his system. Appellant demanded mental health treatment for M. When the mental health staff arrived, appellant changed her mind and refused services for M. M. said appellant constantly took him to the doctor when nothing was wrong, and took him to the hospital the prior week for no reason. Contrary to the hospital staff’s instructions, appellant took M. out of Kern Medical Center, and they went to another hospital for the same issues. The staff believed appellant appeared under the influence.
A social worker tried to investigate this matter but could not find appellant, and learned appellant had been arrested on August 20, 2003. The children were with relatives. The social worker reported appellant had the prerogative to seek medical care for her children, the children were in an appropriate placement with relatives, and the general neglect allegations were deemed unfounded.
On October 29, 2003, respondent received another referral of general neglect, that appellant allegedly used a belt to hit eight-year-old M. because he had been in trouble at school. Appellant was very derogatory toward M., she was swearing at him, and she appeared under the influence. M. was hoarding food in his room. A social worker determined there was no evidence of physical abuse and appellant used appropriate discipline techniques on the children. Appellant denied hitting M. with a belt and claimed she used time-outs. M. denied appellant called him bad names. The social worker reported appellant was receiving treatment for anxiety from Kern Community Medical Group and taking various medications.
At some point in 2003 or 2004, appellant and the three children moved to Texas and lived there. In January or February 2005, appellant and the children moved back to Bakersfield.
On February 7, 2005, respondent received another report of general neglect. A social worker in Texas informed respondent that while the family was living there, M. had been seen with a head injury and he said appellant hit him on the head with a broom. The Texas social worker said dependency allegations would have been found true against appellant if the family had stayed in Texas. A social worker in Kern County contacted appellant and she denied the incident in Texas. The children were upbeat, clean, and provided for, there were no obvious signs of distress, and appellant and the children were living with the maternal grandparents. The social worker advised appellant that her anger problems could jeopardize the children and lead to serious consequences. The social worker determined the maternal grandparents would provide support and protection.
On June 10, 2005, D.’s school notified respondent that D. had been injured when she was getting into appellant’s car on the way to school. Appellant was angry D. was late and accelerated the vehicle as D. got into the car. D. fell on the pavement as the car accelerated but managed to get in the vehicle. D. arrived at the school with a bloody foot. D. was very anxious because she did not want appellant to know that she told the school about the incident or the school nurse took care of the wound, and said appellant would beat her. D. said that on a daily basis, appellant said she did not want D., she could not stand D., she threatened to leave her at juvenile hall, and she did not talk to her daughter anymore.
A social worker subsequently reported D.’s injury was minor, it was inconclusive as to whether appellant intentionally accelerated the car, and no action was taken. The social worker reported appellant was hostile and not receptive to services. The children were hostile toward the social worker in appellant’s presence, but they were polite when appellant was not with them and rationalized appellant’s treatment and conduct.
On July 19, 2005, respondent was informed about a physical altercation between appellant and her live-in boyfriend, Charles Turner, in the children’s presence. The report was substantiated but Turner’s whereabouts were unknown.
On October 26, 2005, appellant was arrested for petty theft, M. was taken into protective custody, and the other two children were permitted to remain with their maternal grandmother. The record infers M. was with appellant when she was arrested. However, M. was subsequently released into appellant’s custody because she was staying with the grandparents. Appellant later pleaded no contest to misdemeanor second degree burglary, petty theft with a prior conviction, and contributing to the delinquency of a minor.
At some point in 2006, appellant and Edgar divorced and he was deported to the Philippines.
In April 2006, appellant arrived at the mental health services department with D., and said she could not care for D. anymore and wanted D. placed in juvenile hall. Appellant was told that mental health services did not perform such functions. Appellant told D. to go outside the office, start a fight, and get arrested so D. could be taken to juvenile hall. Appellant grabbed D.’s arm and said “you need to get arrested so you can get out of my life,” and left the office. D. said she did not want to stay with appellant.
In May 2006, appellant pleaded no contest to misdemeanor second degree burglary and petty theft with a prior conviction.
Also in May 2006, respondent received a referral that appellant took D. and M. to Kern County’s crisis stabilization unit because the children fought and were out of control. M. said appellant had hit him and threatened to kill M. and D. D. said appellant banged her head on the dashboard. Appellant denied the children’s allegations. A social worker investigated, and appellant and the children later denied the allegations. The children said they felt safe and the social worker believed they were not in imminent danger.
The Third (current) Petition
The instant dependency matter began on September 2, 2006, when appellant called a social worker and said she wanted to leave the three children at Jamison Children’s Center (JCC) because she could no longer handle them. Appellant said M. had ADHD and had to be watched at all times, even when sleeping, and she caught him eating cereal at night and she was upset about the incident. Appellant said the children had been living with relatives but they would not take them back. The social worker explained the legal implications if appellant relinquished custody to respondent, and appellant said she understood and still wanted the children to go to JCC. Appellant refused to meet the social worker, however, and wanted the social worker to pick up the children at the motel where they were living.
On September 2, 2006, the social worker picked up the children and took them to JCC.
Appellant subsequently told the social worker that she was stressed and could not handle things, she was very overwhelmed, and she needed some time to get herself together and care for the children. Appellant refused to give specific details as to why she was overwhelmed, but said she just needed help with child care and it was too difficult to take the children to their current babysitter because she had to use the bus to get there. Appellant also said she was living at a motel which was not appropriate for them. M. had been diagnosed with ADHD and was bipolar, but he was not receiving mental health treatment because she had conflicts with his case worker. Appellant said there were no relatives who would care for the children. Appellant denied using controlled substances but she took medication for hypertension, anxiety, and thyroid problems.
The social worker spoke to the children, and they said appellant needed time to “‘get on her feet,’” and appellant told them that they would be at JCC for a few months. The children said there had been no verbal or physical arguments within the family, and no recent incidents to trigger appellant’s request to turn over their custody. The children said appellant’s boyfriend, Charles Turner, did not live with them but helped financially, and they had a good relationship with him.
The social worker again contacted appellant and asked what type of services she needed to care for the children. Appellant said she could not care for them and just needed help with babysitting. The social worker reviewed the prior dependency proceedings and asked if she needed counseling. Appellant was somewhat defensive but agreed counseling might be appropriate, and agreed to a psychological evaluation and drug test. Appellant later submitted a negative drug test.
On September 7, 2006, dependency petitions were filed on behalf of the three children pursuant to section 300, subdivisions (b) and (g).
On September 8, 2006, the court held the detention hearing. Appellant was present with her counsel. The court found the whereabouts of the fathers were unknown. Appellant’s counsel stipulated to a court-ordered psychological evaluation. The court ordered the children detained, appellant to have weekly supervised visitation, and appellant to have psychological evaluations, and provided for respondent to obtain mental health services for the children.
Appellant’s Actions in September 2006
After appellant gave up custody of the children, respondent placed the children together in a foster home. Thereafter, appellant used nearly every day of September 2006 to engage in personal and telephonic confrontations with social workers, disrupt the children’s lives, harass the foster parents, and encourage the children to disobey the foster parents and resist their placements. The following is a summary of her activities.
As noted ante, respondent requested appellant to submit to a drug test shortly after she surrendered the children into custody, and the test was negative. As appellant’s erratic behavior continued, however, the social workers asked appellant to submit another drug test but appellant refused. Respondent did not obtain a court order and the social workers gave up asking appellant for more drug tests, but appellant became preoccupied with the matter and repeatedly called social workers and declared they could not make her take another drug test. The social workers repeatedly assured her that they were not asking for drug tests anymore, but appellant seemed obsessed with the topic and regularly left angry voice mail messages that the social workers could not force her to take drug tests.
Appellant’s obsession with drug tests continued to the final hearing in this case.
Appellant made hostile telephone calls to the social workers, accused them of limiting her contacts with the children, reminded them that she voluntarily gave up custody, and insisted that respondent could never have taken the children away involuntarily. Appellant launched into racial slurs against the Hispanic family who were the children’s foster parents, and accused respondent of placing the children with “‘illegal aliens.’” Appellant declared her boyfriend (Turner) was going to conduct a background check of the foster parents. Appellant also insisted respondent give the children cell phones so she could call them directly at any time, instead of going through the foster parents.
In another series of telephone calls to social workers, appellant claimed the foster parents mistreated D. and failed to provide her with any clothes to go to school, and again launched into a series of racial slurs and derogatory accusations against the foster parents, the social workers, and respondent. She demanded the children’s removal from the foster family’s home.
The record reflects that appellant regularly maintained contact with D., separate and apart from the supervised visitations, and called and harassed the foster parents with complaints that they were mistreating D. Appellant and D. placed a telephone call to the social worker together, and they left a voicemail message where appellant used racial slurs against the foster family and prompted D. to make various accusations against them. When the social worker confronted appellant about the recorded message, appellant denied making the derogatory comments or prompting D., and said she just needed more time to get her act together. Appellant said she was on a work-release program and looking for work. Appellant refused to take the prescribed medication for her mental health issues, and accused another social worker of having emotional problems. Appellant also complained that she was supposed to be evaluated by two different psychologists.
Appellant later admitted she secretly gave cell phones to all the children.
D. started her own series of telephone calls to the social worker and made numerous derogatory remarks against the foster parents. D. repeated many of the complaints voiced by appellant, that the foster parents did not treat her well and did not buy her any clothes for school. D. did not want to attend school and demanded a different placement. D. told her brothers, M. and E., that they did not have to go to school, and her brothers obeyed her and were disruptive in the foster home.
The social worker asked appellant to cooperate and help the children adjust to their placement in the foster home. Appellant denied making any negative statements about the foster parents or having D. complain about them. The social worker explained appellant’s constant telephone calls to the children were disruptive because she told D. not to listen to the foster parents. D.’s behavior had deteriorated to such a degree that she was going to be moved to a group home. Appellant denied calling the foster home but insisted the boys should also be removed from the foster family. The social worker explained appellant could not have any more telephone contact at this time.
Appellant called another social worker and demanded removal of all three children from the foster family’s home. The social worker informed appellant that her message with D. had been recorded, including her use of racial slurs against the foster family in D.’s presence, and her conduct showed her lack of parenting skills. Appellant again launched into complaints that the children did not receive appropriate clothing at the foster home and the social workers were causing all the problems. In the course of these confrontational exchanges, appellant repeatedly refused to disclose her current address and insisted respondent only needed her cell phone number.
On September 21, 2006, the social worker met with D. just before a scheduled visit with appellant, and advised D. that she was being moved from the foster home to a group home because of her conduct. D. became enraged and launched into a stream of curses, blamed the social worker for her problems, and demanded to go home to appellant. The social worker explained appellant voluntarily turned over the children, and suggested D. ask her mother if she could go home. Appellant arrived for the supervised visit and D. immediately asked if she could go home. Appellant did not know what to say, but became angry when she heard about the group home and demanded D.’s placement in another foster home. D. declared she would run away from the group home, there was nothing anyone could do about it, and “‘you don’t know how much hell I can raise.’” Appellant repeated her earlier accusations that the foster home failed to provide the children with clothing. D. was hysterical and crying, said she would not go to a group home, and threatened to run away. A supervisor arrived and asked appellant to help calm down D. Appellant agreed to help, D. calmed down, and she voluntarily went to the group home.
Once D. arrived at the group home, however, appellant again launched into her pattern of daily hostile telephone calls to the social workers, contacting D. in the group home, and claiming that D. was not being treated well. Appellant complained that M. and E., who were still in the original foster home, were being mistreated. Appellant claimed that other social workers said the children could return to her custody if she had a home, and she planned to move into a homeless shelter with the children for a few months. The social worker explained appellant had failed to attend the court-ordered psychological evaluations and the court would make the dispositional decisions.
D.’s conduct deteriorated at the group home. She refused to obey orders or instructions, and refused to attend school. D. wrote racial epithets on the walls and furniture of her bedroom, and destroyed property. When D. told appellant what she had done, the social worker urged appellant to talk about the incident with her, but appellant had no comment on the matter. D. repeatedly ran away from the group home, contacted appellant, falsely reported that she had been mistreated, and appellant would call the social worker and level additional allegations against the group home. The social worker repeatedly asked appellant to help D. adjust and have a better attitude. The social worker also explained that it was appellant’s constant interference which led to D.’s removal from the foster home. Appellant replied that she voluntarily gave the children to respondent and she did not have to comply with respondent’s orders. Appellant was repeatedly advised that she did not have control over the children’s placements just because she had surrendered custody. Appellant offered to be more positive but only if she had unlimited telephone contact with the children. Respondent refused to bargain with appellant because of the negative influence of her telephone calls.
On September 26, 2006, appellant had a supervised visit with the children, and the social worker admonished appellant not to make negative comments about their placements. Appellant and D. had a whispered conversation so the social worker could not hear them. When the social worker asked them to speak louder, appellant launched into an attack upon the foster and group home placements and claimed the children were not being properly fed. The children started to repeat appellant’s negative and derogatory remarks about the foster parents. As the children left in the foster mother’s car, appellant wrote down the vehicle’s license plate number.
Later that evening, appellant called the police, claimed the children were being abused in the foster home, and provided the address of the foster home. The police responded and found no signs of abuse. After the visit with appellant, however, E. had become extremely violent and tried to jump out of the foster parent’s car. When they arrived at the foster home, E. threw rocks at the car, smashed a picture frame, and inflicted damage to a bathroom door and mattress. Appellant later claimed she called the police because E. called and said he was being hurt. When asked how she obtained the foster home’s address, appellant refused to explain.
On September 28, 2006, a social worker had a lengthy telephone conversation with appellant and tried to explain how appellant’s conduct, visits, and telephone calls to the children were very disruptive, that appellant was encouraging the children to be disruptive in their placements, D. and E. had been moved out of the foster home because of such behavior, and the children were suffering as a result. The social worker asked appellant if she was going to continue this behavior. Appellant replied, “‘Give me my phone calls or yes I am.’” Appellant insisted that she had the right to make placement decisions about the children. The social worker asked appellant to help the children adjust to their foster and group homes. Appellant replied, “‘Well if you just give me my phone calls I will help them understand things.’” The social worker again explained that appellant could not make the decisions for the children, and she should want to help the children adjust to their surroundings. Appellant said “‘this is going to keep happening’” if she did not have control over the children’s placements. Appellant reminded the social worker that the children were not involuntarily removed from her home and she voluntarily asked respondent to assume custody. The social worker explained that appellant was not willing to care for them and respondent was now responsible for the children’s well-being. Appellant ended the call by hanging up.
The Court’s Visitation Order
On September 29, 2006, as a result of appellant’s conduct, respondent filed a motion for modification to eliminate appellant’s visits with the children until she had cooperated with the psychological evaluations and the court reviewed the experts’ reports. Respondent filed a detailed and extensive social study report about appellant’s disruptive and disturbing conduct, as set forth ante, and the effect of such conduct on the children. The report stated:
“[Appellant] is unwilling to care for her children, and unable to provide [respondent] with an explanation other than she needs childcare. [Appellant] continues to make excuses not to assist [respondent] in providing for her children, and refuses to ease the transition for the children in placement. Since the [September 8, 2006] Detention Hearing [appellant] has been uncooperative with every aspect of [respondent’s] involvement in trying to assist her and her children.
“On numerous occasions the mother has contacted the children in foster care and advised them they do not have to listen to the foster parent, go to school or follow rules. [Appellant] continually undermines the social workers’ and the foster parent in stabilizing the children and the mother’s negatively [sic] has created disruption in the children’s placement.”
As a result of appellant’s negative and disruptive actions, D. had already been moved to a group home, E. had been moved to another foster home, and M. was also going to moved from the original foster placement. Nevertheless, appellant declared that she would “continue to wreak havoc at each and every placement until [respondent] adheres to her demands of daily phone contact. However, phone contact thus far [h]as proved detrimental to the children and their ability to remain problem free. It is difficult to help the children learn to abide by rules when their mother tells them they do not have to listen to the social workers or the foster parents.”
Respondent believed it was necessary to receive the psychological evaluations to guide appellant “in a positive and productive manner,” but appellant had refused any assistance and made it “almost impossible” to stabilize appellant and the children. Appellant did not understand the seriousness of her actions and the impact on the children. “[Appellant’s] behavior and lack of understanding as to what is appropriate is definitely attributing to the children’s current behaviors,” and it was not in the children’s best interests to have contact with appellant “until after the children stabilize in their respective placements.” Respondent recommended no visits, physical contact, or telephone communications until appellant participated in the psychological evaluations and the court reviewed the reports.
On October 3, 2006, the court conducted a hearing on respondent’s motion to restrict visitation. Appellant was not present but was represented by counsel. Respondent acknowledged the request was a “drastic measure[]” but cited the report as providing documentation of appellant’s disturbing behavior on the children.
Appellant’s attorney stated appellant was absent because she was at work release and wanted to complete the program. Counsel stated appellant did not deny the allegations, but counsel offered a breathtaking excuse:
“... I think a lot of what is in here is the fact that these were not three normal, garden-variety kids prior to coming into the system. I think they obviously had some problems. To say that my client was responsible largely for all of this acting out by … these kids, especially, well, [D.] and [E.], I think is somewhat unfair. It will be interesting to see how the kids react to this, whether they are able to settle down.” (Italics added.)
Appellant’s counsel acknowledged it was an “unfortunate situation,” but asserted “these kids have their own set of problems” which were the result of “not being with their mother and not having as much contact with her.” Counsel argued the children should be given the incentive to improve their behavior to continue their visits with appellant.
Respondent asserted appellant was “fueling the children’s behavior and the children are fueling the mother’s behavior” and the instant case was not a reasonable situation. Respondent argued the visits should be terminated until the court reviewed appellant’s psychological evaluations, given appellant’s repeated pattern of turning the children over to the county and her inability to explain exactly why she could not take care of them.
“[We] can’t quite figure out what she is wanting. She is wanting … to dictate what the Department does. She wanted the Department to buy new clothes, provide cell phones to them. She is wanting the Department to—on the other hand, she is calling the children and encouraging them to be disrespectful, to misbehave, to be destructive.”
Respondent was concerned the children could become delinquents because of their violent outbursts.
“… They are causing damage to the foster parents’ car. The mother is writing down the foster parents’ license plate and going and looking up her address, and … it’s gotten totally out of hand.”
Ms. Dietrich, the children’s attorney, agreed with respondent it was not in the children’s best interests to continue contact with her, and it was more important to stabilize the children’s placement. Ms. Dietrich believed D. was in juvenile hall because of destruction of group home property, noted D.’s delinquent behavior occurred after being with appellant, and appellant’s conduct toward D. was outrageous. Ms. Dietrich agreed it was psychologically damaging to the children because appellant encouraged their misconduct.
Appellant’s counsel stated he read the report’s allegations to appellant during a telephone conversation, and told her that she could not turn in her children and expect to exert control over them. He told her that “cell phones are out,” she could not have phone contact, and she could not repeatedly call the social workers except for extremely important issues. Counsel believed appellant understood the situation and he could “settle her down,” and requested visitation continue.
The court stated there were “very unusual circumstances” and found it more likely than not and substantially probable that the children’s visits with appellant, before the next hearing, would be detrimental to them. The court would provide for some type of contact after it reviewed the psychological evaluations. The court ordered appellant could not visit the children pending the next hearing on November 8, 2006.
The Psychological Evaluations
In October 2006, appellant was evaluated by the court-appointed experts. Dr. Thomas Middleton, a psychologist, reported that appellant was cooperative during the interview, and said she called respondent to take the children because she could not give them what they needed. She felt overwhelmed and wanted to stabilize their lives. As for the children, appellant said they had been “‘too riled up’” from her visits and the court suspended visitation. Appellant admitted she gave D. a cell phone without telling the foster parents. Appellant had been on a work-release program after being charged with petty theft. She had previously worked as desk clerks at motels and had not worked for one year.
Appellant said she had previously seen a physician and received medication for anxiety and depression. She had tried various psychotropic medications but did not take the drugs on a regular basis because of the side effects. Appellant denied any drug or alcohol abuse. At the time of the evaluation, appellant was taking medication for high blood pressure, a thyroid condition, unspecified pain medication, and had run out of Xanax. She agreed to participate in any court-ordered treatment and counseling programs and use prescribed medications.
Appellant said she had terminated her relationship with Michael, the father of D. and M., because of his substance abuse. She called Edgar, E.’s father, her “‘rock’” who held the family together, but he was being deported to the Philippines. Appellant denied any physical abuse of the children but admitted she lost patience and yelled at them. D. and M. were “‘a handful’” but E. was “‘good and quiet.’”
Dr. Middleton reached several conclusions about appellant’s status:
“[Appellant] showed an adequate understanding of the use of time outs and alternatives to spanking, but emotionally appeared fragile and easily overwhelmed. Thus, she may pose a danger to her children, especially as she described being overwhelmed and on edge with them prior to their removal. [Appellant] is clearly in need of psychiatric services for stabilization of her mood disorder and supportive services to assist her in obtaining and keeping a stable residence.”
Dr. Middleton believed appellant showed evidence of a “severe mental disorder” in the form of bipolar disorder. Her conduct was consistent with “a hypomanic or mildly manic phase of her disorder that is linked to her depressive episodes.” She showed little ability to effectively plan, organize, and carry out events in her life, which was due to her bipolar disorder. She also showed evidence of an anxiety disorder with chronic depressive symptoms, and she did not understand the reason for her mood swings. She clearly needed both an anti-depressant and a mood stabilizer to adequately address her symptoms.
Dr. Middleton recommended appellant participate in three to six months of focused mental health counseling, along with a consultation by a psychiatrist for a review of medication. “Mental health counseling is essential to her progress in her reunification plan. Taking her prescribed psychotropic medication is also essential.” If appellant refused to participate in these services, she should be considered “non-compliant with her program and her children should not be returned to her care.”
“… If her children are placed in foster care and she is not required to participate fully and completely in mental health services, she may simply stabilize, peripherally participate in her plan, and be able to control herself appropriately during visits. Returning her children under such circumstances would simply lead to further referrals and an eventual removal of her children from her care again in my opinion.”
Appellant’s prognosis was “guarded at best,” and she could stabilize if she was fully compliant with her treatment plan. If she continued to display disruptive behavior and failed to comply with the treatment plan, her prognosis was poor and she could require a longer period of time or simply be unable to complete her plan. He did not believe she had a substance abuse disorder, but drug tests should be ordered if it appeared she was self-medicating with street drugs. Appellant also needed to attend another abuse and neglect class, parenting class, and anger management class, as a separate matter from the mental health plan. She was not likely to be employed because “she is unable to be around people on a consistent basis.”
Dr. Middleton was subsequently asked to clarify his evaluation, and he said appellant’s current prognosis was poor at best, but she could benefit from treatment and participate in reunification if she was compliant with prescribed medication and therapy. Appellant had to participate in 60 to 90 days of mental health counseling and medication to stabilize her condition, and only then could she comply with the reunification plan. Dr. Middleton believed that if she failed to comply with any aspect of mental health treatment, it was unlikely she would benefit from the required counseling, and reunification services would not be successful.
Dr. Eugene Couture, a psychologist, conducted the second evaluation of appellant, and appellant was again cooperative. During the interview, appellant admitted she had been arrested several times for petty theft, and once for evading the police while the children were in the car, which led to a child endangerment charge. She had been placed on the work-release program but failed to complete it and served 45 days in jail. She was arrested again for petty theft when she took hair preparation items because she did not have any money. Appellant could not explain why she took beauty supplies instead of necessities if she did not have any money.
Appellant said the prior dependencies were because of an incident with nurses at a hospital, and her former boyfriend constantly called respondent and made false reports. She admitted the family lived in Texas for a while but failed to mention the dependency issue in Texas. She also admitted surrendering the children because she was living in a homeless shelter, but claimed she got a job and things improved. Appellant lived with her boyfriend, Charles Turner, who provided security in bars and was licensed to carry a gun. Appellant described him as getting “‘worked up—he’s leery of everybody.’” Appellant said her children liked him, and he was upset that she placed the children in protective custody and wanted to get them back. In the course of talking about the children, appellant revealed that all the children have cell phones and she complained about the monthly cost.
Dr. Couture offered the following opinions:
“... [I]t is my opinion that [appellant] suffers from a rather marked personality disorder, characterized by extremes of behavior, and extremes of dependency versus aggressiveness, versus antisocial type behaviors. She has repeatedly either surrendered her children or had them removed from her care. She has repeatedly gone through, at times somewhat unwillingly, parent training, anger management, and the other courses necessary to complete the reunification process, with little evidence that she has absorbed any of the material or has used it on a day-to-day basis. She appears to act angrily towards her children and to maintain a poor home environment. Importantly, she has abused the social workers in the process, has vilified the foster care parent and has actually placed that person at risk. She has refused to obey the lawful orders of the Court via [respondent], and has behaved in an aggressive, challenging and uncooperative manner. The essence of a personality disorder is that the individual has developed an enduring pattern of behavior that ‘deviates markedly from the expectations of the individual’s culture.’ This pattern is manifested by different ways of perceiving and interpreting the self and other people, a change in affect, inappropriate interpersonal functioning and poor impulse control. This is clearly reflected in her history. She displays a pattern of detachment from social relationships; she is estranged from her entire family, with no positive contact, with repeated relatively brief marital relationships and subsequent hostility. She desires solitary activities, takes pleasure in few activities, lacks close friends or confidants, and appears indifferent to the criticism of others, consistent with a Schizoid Personality Disorder. She also shows clear Antisocial Personality tendencies, with failure to conform to social norms with respect to lawful behaviors, including repeatedly performing acts that are grounds for arrest; deceitfulness, with repeated lies; impulsivity and failure to plan ahead; irritability and aggressiveness; reckless disregard for the safety of others (for example, evading the police with children in the car) and consistent irresponsibility; with a lack of remorse for these actions. Taken together, these actions and behaviors clearly support the diagnosis of a Mixed Personality Disorder with Prominent Schizoid and Antisocial Tendencies. The nature of personality disorders is that they are fixed and entrenchment and unlikely to change in any major way, particularly with the level of hostility seen in this case. This makes the prognoses for a success in reunification services very grim, indeed. Further, [appellant] has had the benefit of prior reunification services, with what appears to be little effect.” (Italics added.)
Dr. Couture concluded appellant suffered from “a disabling mental condition, namely a severe Personality Disorder, making her incapable of utilizing reunification services.”
“I do not believe that she would benefit from these services, and I believe that her further attempts to participate in these services would cause further harm to her children by further disrupting their lives and stability. I do not believe that [appellant] could change her personality style, not interaction and overall life expectations within the year to year and half time frame, typically seen in a reunification program. On this basis, I would strongly urge the Court that reunification services not be offered in this case.” (Italics added.)
A social worker reported that appellant was shocked to learn about the results of the psychological evaluations. Appellant said she wanted the children back and would do whatever was required, even accept mental health treatment, but she was hesitant about taking medication. The social worker pointed out that she had refused to cooperate in any way and there were no excuses for her behavior toward the children. Appellant replied that it was hard. Later in November 2006, appellant attempted to sign up for mental health counseling.
Restoration of Appellant’s Visitation
On November 8, 2006, the jurisdictional hearing was scheduled. Appellant was present with her attorney, signed a waiver of rights form, and submitted the matter on the documentary evidence. Appellant’s attorney said she “had a lot of stressors in her life. And these kids are clearly a handful,” but she admitted placing the children in protective custody. Respondent advised the court that it had located Michael in Kentucky but had not made contact with him.
The court continued the jurisdictional hearing because it had not received the reports from the psychological evaluations, and respondent had not made diligent efforts to contact Michael. Appellant’s attorney asked the court to resume her visitations with the children. Respondent agreed but intended to return for another order if the visitations were disruptive. The court ordered for appellant to have supervised visits of one hour per month with the three children.
On November 14, 2006, appellant visited D. and E. without incident. M. was unable to attend because of a scheduling mistake. On November 15, 2006, appellant visited M. without incident. Prior to the resumption of visits, D. had been somewhat more stable; after the visit, she ran away again, showed up at the house of appellant’s mother, and demanded to live with appellant. Just days after E.’s visit with appellant, he became increasingly destructive in the group home, refused to go to bed, and called everyone evil.
On November 29, 2006, respondent submitted a report which summarized the mental health evaluations and the children’s status. Respondent advised the court that while the renewed visitation went well, the children’s interactions with appellant caused such distress that the children acted out aggressively. The children continued to be argumentative, defiant, and sometimes destructive. D. was disrespectful and defiant, and she regularly ran away from the group home. M.’s group home was extremely concerned about his ability to appropriately interact with others. E. had been destructive of property, and physically and verbally abusive toward others. Respondent believed it was not in the children’s best interests to have weekly contact with appellant until their own mental health issues were stabilized. “[A] lifetime of negative interaction and inability to properly parent remains an issue, and until such time as visiting their mother does not cause the children to act out it is best that visit remain on a monthly basis.”
“[Appellant’s] behavior since the children were placed into protective custody has been explosive. [Appellant] is inconsistent and unwilling to take responsibility for her actions. [Appellant] remains unclear as to [the] seriousness of her behavior, and that of her children.
“[Appellant] has given her children up voluntarily on three different occasions since 1995 for much the same reason. The emotional harm this has caused on the children is evident by their recent behaviors. [Appellant] seems less than impacted by her abandonment of the children stating ‘It was best for them.’ However, [appellant] is defiant in every aspect of reunification and efforts made to assist the family. [Appellant] has not shown her ability to parent the children in an effective manner since the children were voluntarily relinquished from her care.”
Michael’s Renewed Contacts with Respondent
As explained ante, on May 17, 2002, the court resolved the second dependency petition by granting joint custody of D. and M. to appellant and Michael, with Michael to have physical custody of D. and M., and appellant to have weekly visits. At some point in 2002, however, appellant regained physical custody of D. and M. from their father, Michael, and the sequential record is silent as to how that happened.
When the third dependency petition was filed, appellant claimed she regained custody of the children in 2002 because Michael said he could not take care of them and turned them over to her. Respondent was never able to confirm appellant’s story through documentary evidence. In September 2006, respondent began an investigation into Michael’s whereabouts. In December 2006, respondent made contact with Michael and his girlfriend, and they were living in Kentucky.
Respondent’s investigation revealed how appellant regained custody of D. and M. from their father after the court dismissed the second dependency petition in May 2002. Shortly after the court dismissed the second petition, appellant moved for a change in custody and restraining order, which were denied by the court. In August 2002, appellant managed to get the court to conduct an ex parte hearing for a change in custody. Respondent reviewed the records from that hearing and determined that Charles Turner, appellant’s boyfriend, noticed Michael about the hearing, but Michael did not appear. The court awarded custody of the children to appellant, with Michael to have visitation.
Michael told respondent that when he went to pick up the children from school one day, he was told that appellant had the children and regained custody. Michael learned appellant and the children had moved in with his mother, so he believed the children would be safe with his mother’s family. Michael and his girlfriend subsequently moved to Kentucky, he learned appellant and the children moved to Texas, and he was unable to locate them.
On December 4, 2006, Michael advised respondent that he was willing and looked forward to taking care of his children, D. and M., in Kentucky. Michael was very concerned about maintaining his privacy, however, and he did not want appellant to know where he lived or worked because of her prior harassment against him, which had caused him to lose jobs in Bakersfield. Michael advised respondent about his employment and living situations. Respondent confirmed Michael was employed as a mental health associate at a group home for boys with mental health problems. His duties included managing and handing out medications to the children, helping out in the classroom, and assisting when the children needed restraining. Michael earned $1,600 to $1,800 a month. Michael stated he had the “occasional drink,” but he lived in a “‘dry county’” which did not sell alcohol except in a few restaurants. Michael said he submitted a clean drug test when he started work, and his employer confirmed that.
Michael and his girlfriend were advised of the children’s emotional and custodial status, and they were still willing to assume custody and already looked into agencies that could provide for the children’s special needs. Michael advised his employer about appellant’s instability, and his employer was supportive of Michael receiving custody of the children.
Respondent spoke to Michael’s employment supervisor, who confirmed his position at the group home. Michael had worked there for six months. His supervisor described Michael as a mentor to the boys, that he oversaw their medications and assisted the children in a positive manner. His supervisor provided respondent with documentation that Michael submitted a clean drug test in November 2006.
Michael’s employer submitted a letter to respondent, that Michael started working at the group home in July 2006 and was responsible for the care of 18 adolescent males in the group home.
“… He has been able to interact and provide a positive role model for each of the children. Based on my observation of his conduct and character in the work place I am led to believe that he would be a stable, caring and supportive father.
“On a personal level, I only know [Michael] in a professional context. Although, contact at work again leads me to feel that he is a well rounded, level minded individual. Over the past several weeks he has approached me seeking advice and insight related to his children. In that I witnessed a parent most concerned about the wellbeing of his children. He has shared with me the concerns associated with securing local emotional/psychiatric care, wanting to provide a positive home environment and developing better bonds with his son and daughter. [Michael] has been very busy working toward bringing his children to Kentucky.”
Respondent obtained Michael’s criminal record from Kentucky, which revealed vehicle offenses for speeding, driving without insurance, driving without a license, and driving with a suspended license. Michael’s girlfriend did not have any criminal records in Kentucky or California. Respondent investigated Michael’s employment records, and determined he had been gainfully employed in Kentucky since November 2003. Michael provided respondent with a list of mental health agencies in his area that could provide services to D. and M. Respondent contacted the agencies and determined there were both inpatient and outpatient services that were appropriate and available to the children.
A social worker contacted appellant’s mother, L.A., and asked about Michael. L.A. said he “always had his share of problems.” L.A. said that after Michael received custody of the children in the second dependency action, he became involved with a woman, he paid less attention to the children, and he became “‘negligent.’” L.A. said appellant restored contact with the children and “painted a better picture of life with her and after a while the children ran away” from Michael, and appellant obtained custody from the court. L.A. thought Michael received notice of the custody hearing. L.A. said she smelled alcohol on Michael on numerous occasions, and he sometimes had to attend counseling.
On December 7, 2006, a social worker spoke to D. about where she could live, and advised her that she could not be sent home because her mother had complained about her behavior. D. was asked if she would be interested in living with her father, Michael. D. “immediately” said yes and asked if they had heard from her father. D. said she liked living with her father but she did not like his girlfriend. She did not remember her father using drugs and he only drank. D. said that “both her and [M.] would go live with their father.” The social worker advised D. that they had to conduct background checks on their father before any recommendations could be made. D. asked to write to her father and the social worker agreed to send the letter to him. D. said she would rather live with her father than remain in the group home.
On December 12, 2006, the social worker spoke to M. about his father and how he would feel if he lived with him. M. became quiet and said it would okay. M. then said he did not want to go because his father ignored him for four years and never helped his mother or the children. The social worker explained that was his mother’s side of the story, M. should ask his father what happened, and M. could write to him. M. said he would think about it. M. said he never saw his father use drugs, he drank sometimes, and he never saw his father drunk. M. was concerned his father would not give him his medication, because his father previously gave his medication away to a friend. When asked about the details, M. said his father gave away one pill on one occasion. The social worker asked M. to think about living with his father.
In the meantime, appellant continued to display erratic behavior. In October 2006, M.’s school needed her consent to place him in special classes to deal with his behavioral problems. The social worker asked appellant to sign consent forms and offered to drop off the papers at her residence. Appellant said she was too busy to go to the school or the social worker’s office to sign the papers, and declined the offer to drop off the papers at her home because her boyfriend (Charles Turner) did not want anyone to know where he lived. Appellant complained that it was too much trouble to sign the papers for M.’s school and said, “‘now you see what I have been going through, now you see why I gave you guys my kids?’”
Appellant also discovered that respondent had located Michael and that he wanted to regain custody of D. and M. On December 12, 2006, appellant called the social worker and asked how respondent could send her children out of state, where they did not have any family, and they should stay in Bakersfield where the rest of their family lived. The social worker replied the court would make the decision, but the children hardly saw their family in Bakersfield because appellant had cut off contact with them. Appellant demanded respondent investigate Michael’s drug and alcohol use and criminal record, and asserted that he should also go through a psychological evaluation. The social worker replied that they were looking into Michael’s records and there was no evidence to support a psychological evaluation. Appellant claimed Michael gave the children back to her because he could not handle them, and the social worker replied that Michael gave a different story. The social worker admonished appellant not to discuss Michael with the children.
On December 21, 2006, appellant again called the social worker and said the children could not go to Michael because of his criminal record and failure to pay child support. The social worker replied that the court would make the decision. Appellant was upset that D. and M. could be sent to Kentucky and be separated from their half-sibling, E. The social worker reminded appellant that Michael had the same parental rights that she did, and the children were already separated because appellant’s disruptive conduct resulted in their removal from the first foster home. Appellant complained that Michael previously surrendered custody, but the social worker replied that Michael completed reunification and the court granted him custody. Appellant asked the social worker what would happen if the children did not want to go with their father, and the social worker explained the court would make the decision. Appellant became upset and said, “‘fine then fine now I know what I have to do. I know what I have to do,’” and hung up.
Respondent’s Renewed Contact with Edgar
In December 2006, Edgar, E.’s father who had been deported to the Philippines, contacted a social worker and said he learned from appellant’s mother that E. was in custody. Edgar was very concerned about appellant’s ability to take care of E., and said she yelled and screamed a lot at the children. Edgar said the domestic violence conviction was based on appellant’s allegations against him, that “‘things happen[ed]’” between them, and there were mutual physical altercations. Edgar was still in the Philippines but asked for appointment of counsel and contact with E.
The social worker subsequently spoke to L.A., appellant’s mother, about Edgar. L.A. said Edgar was a good father and very attentive to the children before deportation. L.A. said the domestic violence charges resulted because appellant “knew how to work the system and ‘cried wolf’” against Edgar. L.A. and her husband tried to help Edgar fight the charges and deportation but they were not successful. L.A. did not believe Edgar was physically violent to appellant. L.A. said appellant “abuses the system and has said every partner she has ever been involved with has been physically violent,” including appellant’s own father. L.A. said both appellant and Michael had issues that would hinder their ability to appropriately provide for the children, and Edgar was the best parental figure among the adults in this case.
The Amended Petition
On January 9, 2007, respondent filed an amended petition and alleged the children were within the meaning of section 300, subdivisions (b) and (g). The petition raised two allegations as to section 300, subdivision (b), that the children suffered, or there was a substantial risk the children would suffer, serious physical harm or illness: (1) by appellant’s willful or negligent failure to provide them with adequate food, shelter, and clothing, based on her repeated conduct in trying to give up the children for adoption, threaten them with harm, or surrender custody in 1995, 2000, 2001, and the most recent surrender of custody in September 2006; and (2) by appellant’s inability to provide regular care to the children due to her mental illness, based on the experts’ reports, that her mental illness hindered her ability to care for the children; and that she had been unable to care for them and voluntarily relinquished custody on three different occasions in 1995, 2001, and 2006. The petition raised one allegation as to section 300, subdivision (g), that appellant was unable or unwilling to care for the children when she contacted respondent on September 2, 2006, and wanted the children removed from her care because she was overwhelmed.
On January 10, 2007, respondent submitted an updated report which summarized the children’s current placements. D., M., and E., were in separate group homes. Respondent had not been able to keep the three children together because of their “very destructive and disrespectful behavior.” “Moreover, due to their behavior after visits with not only [appellant], but also each other, visitation has had to be limited to once a month.” D. routinely ran away and made contact with appellant, and had been diagnosed with mental health issues. M. had behavioral problems in school, often had outbursts in class, and had trouble obeying authority figures. E. was hostile and violent to other children in the foster and group homes. In one instance, E.’s foster parent discovered another boy giving oral sex to E. The foster parent demanded E.’s removal and E. was placed in a group home.
The children’s maternal grandparents (appellant’s parents) said they had attempted to help appellant and the children but appellant’s behavior was such that they no longer had contact with her, and it was also difficult to be involved with the children because they were just like appellant.
Respondent also addressed Michael’s current status and desire to obtain custody in Kentucky.
“Although [appellant] resides in Bakersfield, and is eligible to receive Family Reunification Services, it is in the best interest of [D. and M.] to reside with their father in the State of Kentucky. It is a difficult situation that [appellant] has put her children into. Despite the services available to the family, should the children remain in Bakersfield, there is no guarantee that [appellant] will successfully reunify, and should she be successful there is great concern she will repeat the pattern of being unable to care for her children. As previously reported ... this is the third time in the children’s lives that she has for one reason or another found herself so overwhelmed she choose to give her children to Child Protective Services. By doing this [appellant] perpetuates the children’s feelings of instability as well as feelings of abandonment.
“[Michael] has been cooperative with [respondent] and remained in regular contact. [Michael] has provided information requested and inquiring about his children’s wellbeing. [Respondent] has made [Michael] aware of his children’s severe behavioral problems, their destructive nature, as well as their continual disrespect for rules and authority figures. [Michael], despite the challenges that will surely be ahead of him, indicated that he is willing and able to provide a stable home for the children. [Michael] has provided [respondent] with a list of mental health providers in his area, which are available to him. [Respondent] has contacted the agencies and verified that services would not only be available but they are the appropriate services for the children.”
Respondent reviewed Michael’s employment history, his negative drug test, and the lack of significant criminal records of Michael and his girlfriend.
“There is no evidence to suggest that [Michael] would not be an appropriate caretaker to his children. [Appellant] maintains that [Michael] uses drugs and/or alcohol excessively. There is no evidence to suggest this to be true. [Michael] has no criminal involvement for drug related offenses while residing in the State of Kentucky, and [submitted a negative drug test]. He is employed and able to provide the basic necessities to his children.”
Respondent acknowledged the three children would be separated if D. and M. lived with their father in Kentucky, while their half-sibling E. remained in Kern County, but believed “the children’s stability is a far greater concern in this case. [D. and M.] have an opportunity to reside with their father, in a family home rather than a group home, which is a vastly different environment.” While the children had an emotional relationship with each other, there was little physical interaction “due to behavioral issues, and as such the detriment if the siblings are separated further would be limited.” D. and M. would be able to maintain a relationship with E. through telephone calls and letters.
Respondent thus recommended that Michael receive custody of his children, D. and M., in Kentucky. As for E., respondent recommended reunification services to appellant not to exceed 12 months, with appellant to participate in specific counseling and treatment programs.
On January 10, 2007, the court conducted the initial hearing on the amended dependency petition. Appellant denied the allegations of the amended petition and the court continued the jurisdictional and dispositional hearings. Appellant’s counsel requested to extend her visitations. Respondent explained there had been two visits since the court ordered the resumption of visitation, and the visits had been all right. Appellant wanted visits every two weeks. Respondent objected because the children needed to become stable in their placements, and noted that appellant had received 41 months of reunification services over the past 10 years. The court denied appellant’s request for additional visits.
The January 2007 Supplemental Report
On January 31, 2007, respondent filed a supplemental report which summarized appellant’s additional psychological evaluations. In December 2006, appellant met with Mary Kent, MFT, of CalWorks Behavioral Health, for a mental health assessment. Ms. Kent concurred with the assessment by the clinical psychologists of appellant’s personality problems, that her personality disorder presented a long term treatment situation, her quickness to anger and impulsiveness made her mental health status acute, but did not agree with a diagnosis of bipolar disorder.
Appellant also met with Dr. Shreedevi Keni, a psychiatrist at Behavioral Health. During the evaluation, appellant said she needed more Xanax. Dr. Keni declined to write the prescription and appellant became very angry, started making faces, tore up the appointment card, and walked out and said there had been no point in coming because she did not get her Xanax. Dr. Keni diagnosed her with depressive disorder, dependent and anti-social features, and benzodiazepine dependence based on her insistence for more Xanax.
The supplemental report also updated the children’s status. They were still in separate group homes. M. was having problems doing his homework and sometimes had fights with other residents. D. refused to attend school and was suspended, and she repeatedly ran away and met up with appellant. On one occasion, appellant dropped D. back at the group home and told her, “‘I miss you, try to come and see me.’” Appellant told D. that the siblings would be moving to Kentucky soon. The social worker believed appellant was “trying to stir things up with the children.”
The social worker later met with D., who greeted her warmly and admitted that she had messed up. D. immediately asked about her father, and that appellant said he was working at a group home in Bakersfield. The social worker said that was not true but she was not sure of Michael’s exact circumstances. D. said she wanted to go home with her mother, but the social worker explained that was not possible, appellant had some mental health issues, and it could take up to a year depending on appellant’s progress. The social worker said D. properly had hard feelings toward her father but she needed to address those issues with him, and she had only heard appellant’s version of events and she might not have heard the whole story. D. asked for her father’s telephone number; the social worker declined because D. would give it to appellant. D. laughed and agreed.
On January 23, 2007, D. again ran away from the group home, she was caught shoplifting at Wal-Mart, and she was taken to juvenile hall. The next day, appellant called the social worker and was upset D. ran away again, but she did not know about the shoplifting incident. The social worker admonished appellant that she did not help by meeting with D. every time she ran away, and talking to D. about her father and moving to Kentucky. Appellant said she was not enabling D., she never talked against Michael, and respondent caused the problems by forcing D. to move to Kentucky. During another incident, appellant showed up at D.’s group home and claimed D.’s father was an undercover officer, and also claimed D. had been beaten by another girl. Appellant complained about D.’s care but again said she could not care for her.
Appellant asked the social worker if Michael was in town. The social worker paused and tried to decide how to respond, and appellant interpreted the pause to mean Michael was in Bakersfield. The social worker denied it, but appellant hung up. Shortly afterwards, Michael’s mother called the social worker and said appellant had arrived at her house, and apparently believed Michael was at his mother’s house. Appellant declared her boyfriend “was a cop and he had planned on coming to their home with guns and he was bringing some friends with him. They were going to teach them a lesson. [Appellant] said she knew the layout of the home. [Appellant] then says that she had to talk her boyfriend out of going to the home because there are 2 young children in the home.”
Respondent’s supplemental report offered the following recommendation:
“[Appellant] continues to state that the children, [D. and M.], are stable despite the children’s behaviors and actions. It is concerning that [appellant] can not see or acknowledge that her children are emotionally suffering and would benefit from a home with their father instead of that of a group home. [Appellant] is only open to her own ideas and perceptions, and despite the evidence presented, and the dangers that lie ahead for her children should they carry on in this manner[] she chooses to disregard the possibility of them being nurtured, safe and loved in any other home other than one she can provide. The reality at this time is not promising; [appellant] has a lot of work to do in order to be an appropriate caretaker[] for the children, and it is unfair to keep the children in a holding pattern in hopes that [appellant] can stabilize her mental health and her life. [Appellant’s] past history in being able to parent these children, in spite of difficult situations, suggests that the road to the children will be lengthy.”
Respondent again recommended D. and M. should be placed with their father in Kentucky, rather than remain in group homes with no guarantee that appellant would successfully comply with any reunification program.
The Jurisdictional and Dispositional Hearings
We finally reach the orders which are the subject of the instant appeal. On January 31, 2007, the court held the contested jurisdictional and dispositional hearings. Appellant and Michael were present with their attorneys; the children were not present but represented by their attorney. D. was 12 years old, M. was 11 years old, and E. was nine years old. The court noted that it had reviewed the lengthy documentary record, including the psychological evaluations.
Appellant testified and requested custody of the three children. Appellant explained that she turned over the children to respondent because she was having problems with them, her only source of income was AFDC, and she was raising them by herself. She never received any child support from either of the fathers. Appellant tried to explain some of her problems when she surrendered the children in September 2006. Appellant testified M. was bipolar and had ADHD, he was having problems in school, he was on medication, he needed 24-hour supervision, and he had insomnia and would be up all night. Sometimes M. was loving and caring, but on other occasions he would be totally defiant, forget what he was told, and require redirection. Appellant testified that she had problems with D. because of peer pressure, her friends had things that she did not have, appellant could not afford to give her those things, and D. would become upset and refuse to attend school because she did not have stylish clothes and was embarrassed. E. was depressed because he missed his father, Edgar, who had raised him but was deported.
Appellant testified that in September 2006, she was living in a hotel and it was a bad environment. Appellant and the three children previously lived with the paternal grandmother (Michael’s mother) and appellant paid her monthly rent, but the paternal grandmother was evicted and they were kicked out. Appellant was also on the work release program because of a prior petty theft conviction.
Appellant testified she had completed her work release program, and she was now living with her boyfriend, Charles Turner, in a three bedroom house that was appropriate for the three children. She had applied for Social Security benefits, understood and was aware of her mental health issues from the expert reports, and intended to seek treatment.
Appellant admitted the court placed D. and M. with their father, Michael, in 2002, but testified Michael could not handle the children and returned them to her within one month, and she later obtained a court-order of custody. Afterwards, they had regular contact with Michael’s mother but never heard from Michael.
On cross-examination, appellant denied the children were with her when she was arrested for petty theft. Appellant also denied that she previously refused to accept mental health treatment from the CalWorks program but admitted she had a problem with the program because it was not flexible. Appellant denied that she failed to comply with the CalWorks treatment program and insisted she did the best she could. Appellant denied she ever “lost” custody of her children, and insisted she voluntarily gave up custody and had visits with them. Appellant was unable to remember the dates of the prior dependency petitions or when she previously gave up custody of the children. Appellant denied that she went to the Kern County Mental Health Department and asked them to remove her children. Appellant also denied that a dependency matter was going to be filed against her in Texas, and claimed there were no dependency issues there.
As to jurisdiction, appellant’s attorney asserted the court should dismiss the allegations in the amended petition and argued the case was in “a state of flux” from when appellant gave up custody in September 2006, that appellant did not have the same problems in her life, she had completed the work release program, and she was living in a better situation. “A lot has changed in the four-and-a-half months,” and appellant admitted there were mental health issues and she would accept treatment. “And I am not saying the kids don’t have problems. I think it’s pretty clear they do,” but there were no risks in returning the children to appellant’s custody and control and the petition should be dismissed.
Respondent replied the evidence supported every allegation in the amended petition, that the instant case was not in “flux” but presented the same situation which had recurred since 1995, when appellant first tried to turn over her children. Appellant had received approximately 43 months of court-ordered services since that time. The only thing that had changed was that the court had removed the children from appellant’s custody and limited her contact with them, and there were numerous documented reports about appellant’s inability to control her behavior.
The court acknowledged that circumstances could change between the original filing of the petition and the jurisdictional hearing, but found the allegations in the amended petition had been proved and the children were dependents pursuant to section 300, subdivisions (b) and (g).
The court turned to the dispositional issues, and noted respondent’s recommendation was to place D. and M. with their father, Michael, in Kentucky. Appellant’s counsel made an offer of proof that if D. and M. were called to testify, they would state their first preference was to live with their mother and, if they could not do so, their second preference was to live with their father. The other parties submitted on the offer of proof.
Appellant’s counsel objected to placing D. and M. with their father, noted appellant just started the required counseling, and respondent was going to break up the family by sending D. and M. to Kentucky. Counsel argued the children should be returned to appellant with family maintenance services. Appellant’s counsel argued Michael had abandoned the children even after the court had granted him custody, and his explanation that he could not find the children was not credible because his mother was in contact with appellant and the children. Counsel also argued the court should not dismiss the petition as to D. and M. because that would eliminate monitoring of their situation in Kentucky, especially since the children had such serious problems.
Appellant’s counsel asked the court to use the Interstate Compact on Placement of Children (ICPC) process to investigate Michael’s exact living conditions in Kentucky, and complained that none of the social workers had gone there to confirm Michael’s self-serving statements. Counsel argued an ICPC was appropriate to obtain a thorough analysis of Michael’s situation, and then the court could consider placement with Michael.
Michael’s attorney argued there were no allegations against Michael and no basis to order an ICPC. The social worker had regular contact with Michael, he had appeared in court for the contested hearing, and he was dedicated to regaining custody and caring for D. and M. It was clear the children could not go home to their mother, and their second choice was to live with their father in Kentucky.
Respondent requested the court place D. and M. with their father, and argued an ICPC was not appropriate since Michael was not alleged to have done anything to bring him within the court’s jurisdiction. The children had problems but Michael had some insight into these issues based on his employment, and he was going to get them into counseling and the appropriate school. Respondent noted D. and M. wanted to live with Michael if they could not live with appellant.
“They don’t wish to return to the group home. Obviously the group home is not a good placement for these minors. The disobedience of staff at the group homes, the running away, the out-of-control behavior at school is not a way to live.”
The CASA worker stated that she spoke to D. and M. in December 2006 about living with their father. At that time, they said they did not want to live in the group home, they knew their mother needed help and they could not get out of the group home, and they were willing to live with their father and try to work something out. The CASA worker spoke to D. and M. one week later, and they said that they did not want to live with their father.
“You know, I don’t know if somebody had talked to them about that. But the first week they were, yes, they wanted to do it and maybe we should do that. They were concerned about their mother’s health, and they didn’t know how long it would take for their mother to get better. That was their main concern. But they felt like they shouldn’t be in a group home because of it.”
The CASA worker believed D. and M. were exposed to “outside sources” in the group home “that are trying to tell them what to do.” They were calm when the CASA spoke to them individually, but their behavior changed when they returned to the group home. The CASA believed the children would be in a good position with Michael because they needed someone more stable “instead of an outside figure telling them you can’t do this.”
Respondent again noted appellant had repeatedly received services since she turned over the children in 1995, and reviewed the reasons behind the three dependency petitions, including appellant’s record and the petition that was about to be filed in Texas. There were also substantiated allegations of domestic violence between appellant and her boyfriend, Charles Turner.
“[Appellant] has received 43 months of Court-ordered services. And these are children. They have one childhood. And they deserve some permanency. They deserve to be with a parent who wants them and can take care of them.”
Respondent argued the social worker conducted an appropriate investigation of Michael’s circumstances in Kentucky, Michael was present at the hearing, and had tickets to take D. and M. to Kentucky.
As to D. and M., the court noted it was a difficult case because of appellant’s conduct and her mental health issues, and there were strong emotions on both sides. The court found there was insufficient evidence to order an ICPC on Michael, and such an order would require substantial evidence that the children’s health, safety, and well-being would be in danger if placed with Michael. The court acknowledged the children cared about their mother but noted permanency was important.
“… They are understandably concerned about [appellant’s] well-being. They want to be near to her if that could be of some assistance to her. But under all the circumstances these children are not in a position to be caretakers for their mother. They are not in a position to provide her with any meaningful assistance in her present efforts to make progress on her own mental health. And the Court is having to decide whether they are better off living in a group home here in Kern County so they are closer to the mom or living in Kentucky with their dad, who can provide permanence and all of the benefits of living with a parent.
“The Court finds that all the evidence supports placing [D. and M.] with the father, and that is consistent with the goals of the dependency laws. We are trying to establish permanency and stability. We are trying to reunite families. If we can reunite the children with one or both parents, that is the ultimate goal. And we can accomplish that in the case by placing them with their father ....”
As the court made the findings as to D. and M., appellant interrupted the proceedings and said she wanted a new attorney and “[w]e are going to stop this.” The court asked to her refrain from interrupting or the bailiff would remove her from the courtroom.
The court found D. and M. were dependents within the meaning of section 300, subdivisions (b) and (g), removed them from appellant’s physical custody, and terminated reunification services to appellant. The court granted joint legal custody to appellant and Michael, with Michael to have sole physical custody, and appellant to have visits every three months, telephone calls every other week, and letters as monitored by Michael at his discretion. The court terminated the dependency as to D. and M.
As to E., respondent advised the court that Edgar was in the Philippines but aware of the dependency matter, and appointed counsel was present to represent him. Counsel stated Edgar wanted custody of E., but acknowledged the court could not send E. to the Philippines. The court ordered for Edgar to have weekly supervised telephone calls with E.
The court found E. was a dependent within the meaning of section 300, subdivisions (b) and (g), continued E.’s out-of-home placement, found appellant had made no progress toward alleviating the causes for the placement, and provided for appellant to receive reunification services for 12 months, until November 2007. The court ordered appellant to comply with the specific terms and conditions of the case plan, including mental health treatment and prescribed medication, cooperate with child welfare and social workers, and cooperate with E.’s educational needs. The court ordered appellant to receive one supervised visit with E. per month. The court stated the goal was to help appellant do what she needed to be reunited with E.
Appellant’s counsel requested weekly visits with E. Respondent objected because of appellant’s conduct during a visit that occurred just before the instant hearing, and argued E. needed to stabilize in his placement. Appellant’s counsel objected because the earlier visit did not involve E. The court again ordered for appellant to have one supervised visit with E. per month. The court also ordered for the siblings to have visitation and telephone contact with E.
The court advised appellant about her appellate rights, and urged her to speak with her attorney before she requested new counsel. Appellant replied:
“Yes, sir, I understand. I also know [Michael] will not let me ever—since all this has been going on he’s never been around with the kids. He won’t—once the kids are with him, I will never see them again. He will move, change his phone number, not let me see them. He’s done it in the past, and he will do it again.”
The court advised appellant that it had ordered for her to have visitation with D. and M., and that was an enforceable order. The court also advised appellant to take advantage of the opportunity to receive treatment and focus on reuniting with E. Appellant replied:
“I will advise everybody [that the social worker], from the very beginning, wanted to keep wanting a drug test. She came back and harassed me about drug tests. And every time I had a visit set with the kids she called and cancelled it and told my kids I was in jail. My kids were in tears.”
The court again advised appellant to focus on reuniting with E. and to speak with her attorney about appellate rights. Appellant wanted to spend some time with D. and M. before they left for Kentucky. Respondent objected and the social worker explained what happened when appellant briefly visited D. and M. just before the instant hearing.
“[Appellant said] that she was never ever going to see them again, the father was not going to take care of them, that they belonged here with her. You know, I kept telling her ..., you need to be positive. I warned her, and she just kept on and on. Finally I said I will call the bailiff. She said the bailiff is my friend. Well, I am going to call the bailiff because you are—you are upsetting the kids. She started to cry, and the kids started to cry. And it wasn’t positive. It was not positive reinforcement.”
Appellant claimed the social worker was exaggerating.
“… I explained to the kids what was going to happen. And [the social worker] wanted me to keep everything hush-hush. But these kids need to know what’s going on. This is the process. This is what is going to happen. And [the social worker’s] been telling them for the longest time don’t tell them anything, when I visit don’t say this, don’t say that. And she’d always threaten to terminate the visits when the kids ask me questions about what’s going on. She threatened to terminate the visits every single time and this visit too. I was not crying. The kids were upset.”
The court found the social worker’s account persuasive and that it was not in the children’s best interests for appellant to have another visit with D. and M. that day, but she would have telephone contact once everything calmed down.
On February 5, 2007, appellant filed a notice of appeal of the court’s orders of January 31, 2007. On appeal, she contends there is insufficient evidence to support the court’s jurisdictional and dispositional orders, the court failed to make sufficient findings when it made the dispositional orders, and the court should not have dismissed the dependency petition as to D. and M. when it granted custody to Michael and permitted him to move them to Kentucky.
Appellant’s opening brief also argued the children’s court-appointed attorney had an actual conflict of interest when she represented the three children. Appellant withdrew this issue in her reply brief.
DISCUSSION
I.
JURISDICTIONAL FINDINGS
Appellant contends the court’s jurisdictional findings pursuant to section 300, subdivisions (b) and (g) are not supported by substantial evidence because the circumstances which led to the children’s detention in September 2006, when she voluntarily surrendered custody, no longer existed at the time of the jurisdictional hearing in January 2007.
At the jurisdictional hearing, the court must find by a preponderance of the evidence that the minor is a person described in section 300. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) On appeal, we must determine whether the court’s jurisdictional findings are supported by substantial evidence. (Ibid.) The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court. We review the record in the light most favorable to the juvenile court’s determinations and we adhere to the principle that issues of fact, weight, and credibility are the provinces of the juvenile court. Appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (Ibid.)
A child will come within the jurisdiction of the juvenile court under section 300, subdivision (b) when the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability, or willful or negligent failure of his or her parent to adequately supervise or protect the child. “The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) A child will come within section 300, subdivision (g) when the child has been left without any provision for support, the child’s parent has been incarcerated and cannot arrange for care, or the parent has surrendered physical custody of a child no more than 72 hours old.
To find jurisdiction under section 300, the court must determine whether circumstances in existence at the time of the hearing subject the child to the defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824; In re Janet T. (2001) 93 Cal.App.4th 377, 388.) Evidence of past events may have a probative value in finding jurisdiction, but only if circumstances existing at the time of the hearing make it likely the child in the future will suffer the same type of serious physical harm or illness as alleged in the petition. (In re Janet T., supra, 93 Cal.App.4th at p. 388.)
The court’s jurisdictional findings are supported by the overwhelming evidence of appellant’s repeated and continuing attempts to abandon her children, which clearly placed them at substantial risk for serious physical harm. Appellant tried to give up her children for adoption, place them in juvenile hall, or leave them at mental health agencies. She had surrendered custody of the children to respondent three times in the past 10 years. On each occasion, she complained that it was too difficult to take care of them, she could not deal with their specific issues, and she needed better child care. On each occasion, respondent offered voluntary services, tried to dissuade appellant from requiring the initiation of dependency proceedings, and explained that she did not have to surrender legal custody to obtain services. On each occasion, she refused to accept voluntary services, insisted on handing over the children to respondent’s custody, failed to take advantage of the reunification services, failed to appear at the dependency hearings, failed to explain the exact reasons why she could not take care of the children, and failed to comply with even the most basic aspects of the case plan.
Indeed, the entirety of the record suggests appellant used respondent to provide the child care services she allegedly lacked, while she tried to control and disrupt the children’s daily lives. Once the children were placed in custody, she displayed a complete disregard for their emotional well-being. Appellant repeatedly complained that respondent split up the three half-siblings. The children were in separate placements, however, solely because of appellant’s repeated interference with the foster parents. Respondent made great efforts to ensure the three children were placed together in a foster home when appellant surrendered custody in September 2006. Thereafter, appellant used nearly every contact with the children to encourage and instruct them to disobey, disrupt, and disparage the foster parents, including the use of racial slurs and false allegations of mistreatment and abuse. Appellant’s month-long campaign had the inevitable result of undermining the children’s respect for the foster parents’ authority, and appellant declined to correct the children’s misbehavior and silently acquiesced in the children’s misconduct. Appellant did everything possible to create havoc and chaos in the children’s emotional lives, and refused respondent’s pleas to help the children adjust to their detention unless respondent bargained with her.
Appellant contends there was no evidence the children were at risk for physical harm to support the section 300, subdivision (b) allegation at the time of the January 2007 jurisdictional hearing, and the court improperly relied upon prior acts to find the allegations true. Appellant complains that the prior dependency proceedings were remote and occurred under different facts and circumstances. The record suggests otherwise. Since 1995, appellant repeatedly tried to permanently rid herself of responsibility for the children, going so far as to call adoption agencies and even suggesting that D. engage in criminal conduct so that she would be arrested and placed in juvenile hall. The instant dependency action did not result from an isolated or unique incident, but was simply a continuation of appellant’s refusal to accept responsibility for her children’s care.
The interesting paradox in this case is that appellant willingly gave up custody but used the entire reunification period to interfere and disrupt the children’s lives. Appellant suggests that her numerous telephone calls and heated confrontations with social workers were simply her attempts to ensure the children were treated properly. Again, the record refutes such a specious claim. Appellant failed to take the simplest steps to ensure her children were safe and comfortable, even refusing to sign consent papers so M. could enter special classes at school. In October 2006, the social worker asked appellant to sign consent forms for M. and offered to drop off the papers at her residence. Appellant said she was too busy to go to the school or social worker’s office to sign the papers, declined the offer to drop off the papers at her home because her boyfriend (Charles Turner) did not want anyone to know where he lived, and complained it was too much trouble to sign the documents. Indeed, she became exasperated at the social worker’s attempts to explain the importance of these documents and the urgent need for her signature, and exclaimed, “‘now you see what I have been going through, now you see why I gave you guys my kids?’”
Appellant makes the rather startling assertion that while she may have previously tried to abandon the children, the court should have found the petition not true and the children should have been returned to her because they were “no longer infants and not as vulnerable as they had been before. As their behavior in foster care reflected, they were quite capable of standing up to someone, even [appellant], and asserting themselves.” This assertion is similar to the arguments appellant raised below, when she pointed to their deteriorating conduct in the foster and group homes as evidence of what she had to deal with when they were in their care. Appellant’s arguments ignore the obvious decline and deterioration in the children’s emotional lives over the past 10 years, as they tried to deal with a mother who regularly said that she did not want them, inflicted physical harm, and ignored their physical and mental well-beings.
Appellant further asserts the children were not at risk for physical harm because she realized she was overwhelmed and voluntarily surrendered custody rather than allow her children to be placed in danger. Such an argument represents the most favorable “spin” for appellant’s decade-long quest to rid herself of the children and move on with life. Indeed, as she said in October 1995, when she tried to give up D. and M. for adoption, she was tired of changing diapers and making bottles and she wanted to go back to school: “‘I can always [have] more children, I’m still at child bearing age, and I’m tired of taking care of these kids.’”
Appellant also asserts that in the course of each dependency proceeding, “she was able to comply with reunification services and have her children returned to her care.” Such an argument is a charitable description of the aftermath of the second dependency action. Indeed, it is far from clear exactly how appellant regained custody of the children at that point. The court found appellant failed to comply with the case plan and placed the children with Michael, but appellant somehow regained custody within a few months. Appellant subsequently declared Michael turned the children over to her because he could not handle them, and she subsequently obtained custody pursuant to a court order. Michael insisted he never received notice of the court hearing, appellant picked up the children from school and he learned about the court order, and appellant and the children moved to Texas shortly afterwards and he could not find them. Respondent determined the proof of service was performed by appellant’s boyfriend. Appellant’s mother, perhaps the only reliable source, said that after Michael received custody, he became involved with a woman, he paid less attention to the children, and he became “‘negligent.’” Appellant’s mother said appellant restored contact with the children and “painted a better picture of life with her and after a while the children ran away” from Michael, and appellant obtained custody from the court.
Appellant contends the court could not rely on mental illness as the basis for jurisdiction, there were conflicting opinions from the experts as to her exact diagnosis, and she was still capable of seeking help for the children, even if she had a mental illness, because she surrendered custody. As set forth ante, the experts disagreed as to whether appellant suffered from bipolar disorder, but they agreed she had a personality disorder which prevented her from caring for the children or utilizing reunification services, given the extensive services already offered. Dr. Middleton was concerned that if appellant merely stabilized herself without fully complying with the treatment plan, “[r]eturning her children under such circumstances would simply lead to further referrals and an eventual removal of her children from her care again in my opinion.” Dr. Middleton believed her current prognosis was poor at best, she had to participate in 60 to 90 days of mental health counseling and medication to stabilize her condition, and only then could she comply with the reunification plan. Dr. Middleton believed that if she failed to comply with any aspect of mental health treatment, it was unlikely she would benefit from the required counseling, and reunification services would not be successful.
Dr. Couture concluded appellant suffered from “a disabling mental condition, namely a severe Personality Disorder, making her incapable of utilizing reunification services.” Appellant’s actions and conduct clearly supported “the diagnosis of a Mixed Personality Disorder with Prominent Schizoid and Antisocial Tendencies. The nature of personality disorders is that they are fixed and entrenchment and unlikely to change in any major way, particularly with the level of hostility seen in this case. This makes the prognoses for a success in reunification services very grim, indeed. Further, [appellant] has had the benefit of prior reunification services, with what appears to be little effect.”
“… I do not believe that she would benefit from these services, and I believe that her further attempts to participate in these services would cause further harm to her children by further disrupting their lives and stability. I do not believe that [appellant] could change her personality style, not interaction and overall life expectations within the year to year and half time frame, typically seen in a reunification program. On this basis, I would strongly urge the Court that reunification services not be offered in this case.” (Italics added.)
The court’s jurisdictional findings were not simply based on the existence of a mental illness, but on the undisputed evidence of appellant’s continued treatment of these children over the past decade.
“Harm to the child cannot be presumed from the mere fact of mental illness of the parent and it is fallacious to assume the children will somehow be ‘infected’ by the parent. The proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother’s behavior has and will adversely affect the child or jeopardize the child’s safety. Other jurisdictions have recognized that the evidence must reveal a detriment to the child resulting from the mother’s illness before removal is justified. [Citations.]
“The court should examine each factual situation to determine what type of detriment might result and not impose its set of values as to what constitutes a ‘good home environment’ on a family who may not subscribe to those same values. There is no national consensus on how to raise a ‘healthy’ adult, and a juvenile court should examine the question of parental custody from the child’s view point. [Citation.] Often the harm created by removing a child from its parents may be more serious than the harm which the state intervention seeks to prevent [citation] because the courts lack the ability to insure that the placement is superior to the child’s own home. Moreover, children in foster care experience the anxiety of identity problems and conflicting loyalties caused by having three sets of adults with a stake in caring for them .... The children may also be harmed by viewing the placement as punishment for some unknown thing they have done wrong. The court should recognize that ‘“[t]he consensus of expert opinion holds that it is most important to avoid multiple placements for children between six months and three years of age. Each additional placement may retard the development and may impair their ability to form lasting attachments.”’ [Citations.]
“Although balancing these two potential harms may be difficult, ‘[t]he juvenile court is constantly faced with the necessity of choosing on behalf of a child, the best of several not entirely satisfactory alternatives. It is seldom possible to make such a choice on the mechanical basis that the proof of some particular fact “ipso facto” calls for a predetermined response.’ [Citation.] It cannot be presumed that a mother who is proven to be ‘schizophrenic’ will necessarily be detrimental to the mental or physical well-being of her offspring. There are innumerable eccentric parents whose behavior on certain occasions may be less then socially acceptable and yet they are loving and compassionate parents. Conversely, there are parents who always exhibit socially acceptable behavior publicly, but whose children have parent-induced psychological and emotional problems their entire lives. The trial court’s duty in this situation is to examine the facts in detail. The social worker must demonstrate with specificity how the minor has been or will be harmed by the parents’ mental illness. [Citation.] The court must then weigh the evidence of the harm which will be caused the children if they remain in parental custody against the harm caused by placing the children in foster care. Only after this balancing has taken place, based on all the available evidence, can the court make an informed decision which can be said to be truly in the best interests of the children.” (In re Jamie M. (1982) 134 Cal.App.3d 530, 540-542, fns. omitted, italics in original; see also In re Heather P. (1988) 203 Cal.App.3d 1214, 1228-1229, overruled on other grounds in In re Richard S. (1991) 54 Cal.3d 857, 866, fn. 5; In re David D. (1994) 28 Cal.App.4th 941, 953.)
Appellant complains respondent relied on the most “inflammatory facts” in this case, such as her telephone conversations with the social workers, and failed to show the children were at risk of physical harm during the third dependency period. The record is replete with evidence that appellant’s erratic and disturbing behavior greatly affected the children. She surrendered custody but encouraged them to believe they were being mistreated by the social workers and foster parents, yet failed to perform even the simplest tasks of signing consent forms or explaining why she could not take care of them. She had inflicted both physical and emotional abuse upon them for years, to such an extent that M. inflicted physical injuries upon himself, E. became violent after his visits with her, and D. repeatedly ran away after their contacts.
Finally, appellant contends the court lacked evidence to find the section 300, subdivision (g) allegation true, that appellant left the children without any provision for support. Appellant contends that three weeks after she surrendered custody in early September 2006, she advised respondent that she could take care of the children again, and complains that respondent ignored her request. The record refutes this claim. At some point in late September or early October 2006, respondent was forced to move D. from the foster home to the group home because of her misbehavior, which was clearly encouraged by appellant. Once D. arrived at the group home, appellant again launched into her pattern of daily hostile telephone calls to the social workers, contacting D. in the group home, and claiming that D. was being mistreated. Appellant complained that M. and E., who were still in the original foster home, were being mistreated and demanded their removal. Appellant claimed that other social workers said the children could return to her custody if she had a home, and she planned to move into a homeless shelter with the children for a few months. At that point, however, appellant had failed to attend the court-ordered psychological evaluations or comply with any aspect of the case plan. Appellant’s vague plan to move the children into a homeless shelter at some undisclosed future time, when she had failed to comply with any aspect of the court-ordered case plan, hardly reflects her alleged ability to resume the care and custody of the children.
Appellant also points to her status at the time of the jurisdictional hearing in January 2007, that she was living with her fiancé in a three-bedroom house, and thus capable of caring and providing for the children. Up until the time of that hearing, however, appellant said she was not able to take the children. On September 20, 2006, she said she was continuing to try to “get her act together” so that she could take the children. On September 21, 2006, she told D. and the social worker that she could not “take the children back right away and needed some time.” On January 25, 2007, she told the social worker that “she couldn’t take the children right now and that is why she gave them to CPS, to take care of them for her.” Appellant asserts that her statements on January 25, 2007, may have been read out of context and “[w]e cannot speculate as to what the reasons were that [appellant] could not immediately resume custody of the children” on that date. We cannot read more into appellant’s statements than the plain meaning, which was that she was not ready to assume custody and care of any of the children at that time.
While past incidents, standing alone, may be insufficient to establish jurisdiction, “‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) While appellant testified at the January 31, 2007 jurisdictional hearing that she wanted the children returned to her care, appellant’s well-documented history and statements during the tendency of the most recent proceeding suggests otherwise. The court’s jurisdictional findings are supported by overwhelming evidence.
II.
THE DISPOSITIONAL ORDER
Appellant next contends the court’s dispositional order, which removed the children from her custody, is not supported by substantial evidence. Appellant asserts the court improperly granted custody of D. and M. to their father, Michael, allowed him to take the children to Kentucky, and dismissed the dependency petitions. Appellant similarly asserts the court improperly continued E. in the group home, and that all three children should have been returned to her custody.
The dispositional order removing a child from his or her home must be based on a finding, made by clear and convincing evidence, that there is a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being if returned home, and there is no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) When a parent challenges a dispositional finding, we employ the same standard of review enunciated above and review the juvenile court’s order for substantial evidence. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) At a dispositional hearing, the juvenile court must undertake a judicious appraisal of all available evidence bearing on the child’s best interests, including an evaluation of the relative merits of alternative custody awards. The juvenile court’s broad discretion to determine what best serves a child’s interests will not be reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
Section 361.2, subdivision (a) evidences “the Legislative preference for placement with [the nonoffending noncustodial] parent.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132; In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570.) It states:
“When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a), italics added.)
The juvenile court’s ruling that a child shall not be placed with a nonoffending, noncustodial parent requires a finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426; In re Isayah C. (2004) 118 Cal.App.4th 684, 699-700.) “We review the record in the light most favorable to the court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (In re Luke M., supra, 107 Cal.App.4th at p. 1426.)
Appellant contends there is insufficient evidence to support the dispositional orders which placed D. and M. with their father, and continued E. in a group home. Appellant argues that at the time of the January 2007 hearing, the children should have been returned to her custody because there was no evidence of physical harm since she was in counseling and on medication. Appellant asserts the children were not doing well in their placements because they were “bonded to and aligned with their mother to the point that separation was causing more disruption in their lives than remaining with [appellant] with her occasional need for respite care. The children had been separated into three different homes due to their behavior and much of their behavior issues had to do with wanting to go home to their mother.” Appellant notes the children never ran away when they lived with her, and she was in a better position to provide for their mental health needs and educational support. Appellant contends the court improperly separated the siblings and sent D. and M. to the unknown situation of Michael’s home in Kentucky, and it would have been better to keep them together with appellant since they were obviously bonded with her.
As with the jurisdictional findings, there is overwhelming evidence to support the dispositional order which removed the children from appellant’s custody. Appellant’s arguments are based on an extremely narrow view of the record and only focus on the circumstances of the third dependency petition, originally filed in September 2006 and amended in January 2007. Appellant’s assertion that the children only displayed emotional problems after they were taken into custody completely ignores the impact of her repeated efforts to abandon the children over the previous 10 years. As with the jurisdictional issues, appellant’s arguments herein are counterintuitive to her assertions below. During the dependency hearings, she repeatedly declared it was too difficult to take care of the children, and appellant grew exasperated at being asked to do the simplest task to support them, such as bringing D.’s clothes to the foster home or signing M.’s consent forms. Appellant’s attorney cited to the children’s misbehavior at the foster and group homes as evidence of appellant’s difficulties to take care of them, and declared they were “a handful.”
On appeal, however, appellant now contends the children only began to display their emotional problems when they were placed in the foster and group homes in the course of the third dependency, and respondent’s decisions resulted in D. repeatedly running away, refusing to attend school, and her descent into delinquency, E.’s violent outbursts, and M.’s learning disabilities. Appellant raises one valid point, that the children, particularly D., seemed bonded to her, but the entirety of the record reflects a sick type of codependency, in which appellant especially made D. feel responsible for her. After one of D.’s frequent departures from the group home, she met up with appellant, and appellant drove D. back to the group home. As appellant dropped her off, appellant said, “‘I miss you, try to come and see me.’” Appellant never took any steps to try and calm her children’s obvious issues about being dependents, and instead took every opportunity to fuel their anger and resentment at being separated from her, when the separation occurred at her own request and continued because of her repeated statements that she was unable to resume their care and custody.
The record also refutes appellant’s assertions that she had made significant progress by the time of the January 31, 2007 jurisdiction/dispositional hearing, particularly as to her emotional treatment of the children. On December 21, 2006, appellant called the social worker when she learned Michael wanted custody of D. and M., and asked what would happen if the children did not want to go with their father. The social worker explained Michael had the same parental rights as she did, and the court would make the decision. Appellant became upset and said, “‘fine then fine now I know what I have to do. I know what I have to do,’” and hung up. Respondent later learned that appellant told D. that the siblings would be moving to Kentucky soon, and the social worker believed appellant was “trying to stir things up with the children.”
Moreover, on January 25, 2007, just days before the dispositional hearing, appellant again displayed the same type of erratic and bizarre behavior as shown throughout this case. She called the social worker, again complained that D. was not being treated well in the group home, and asked if Michael was in town. The social worker paused and tried to decide how to respond, and appellant erroneously interpreted the pause to mean Michael was in Bakersfield. The social worker denied her accusation but appellant hung up. Shortly afterwards, Michael’s mother called the social worker and said appellant had arrived at her house and apparently believed Michael was there. Appellant declared her boyfriend “was a cop and he had planned on coming to their home with guns and he was bringing some friends with him. They were going to teach them a lesson. [Appellant] said she knew the layout of the home. [Appellant] then says that she had to talk her boyfriend out of going to the home because there are 2 young children in the home.” While appellant had complied with the mental health evaluations, her subsequent visits to mental health professionals primarily consisted of her demand to obtain more Xanax.
Appellant next contends the court improperly placed D. and M. with their father, Michael, and the court should not have terminated the dependency petition because Michael should have been subject to some type of oversight by respondent and the social workers. While appellant repeatedly argues that her own past conduct should not be considered, she points to Michael’s “history of being unable to care for the children.” She notes that during the first dependency case, Michael received custody of D. and M. but failed to comply with the reunification program, and the children were removed from him and returned to appellant. She also points to the second dependency case, that Michael obtained custody of D. and M., but “they either ran away or he returned them to [appellant] within a short period of time,” failed to resume custody, and abandoned them for the next five years. “This history, which essentially amounts to an almost immediate failure of placement and subsequent abandonment by the father, weighs heavily in favor of a finding that placement with the father would be detrimental.”
Appellant is correct that during the first dependency case in 1995, Michael received custody of D. and M. but the children were removed because he failed to comply with the reunification plan. As we have already explained, appellant’s version of the second dependency case is not as accurate. The second case began when appellant again surrendered custody of the children in January 2001 and said she could not take care of them. Michael’s mother and sister stated appellant was physically and verbally abusive to M. and often threatened to put him in foster care if he misbehaved. They knew that M. inflicted injuries to himself and cut himself with glass. Appellant kicked M. when he refused to get her a soda from the kitchen. They also saw appellant slap and hit the children in the face, and leave red marks and scratches on their faces and backs. Appellant’s mother advised the social worker that appellant left for Las Vegas just after turning over the children to respondent’s custody.
While the second petition raised allegations against Michael, the court found the allegations were not true. On October 3, 2001, the court found Michael had made acceptable efforts and cooperated with the case plan, placed D. and M. with their father with family maintenance services, and continued them as dependents. On March 12, 2002, the court granted sole physical custody to Michael and dismissed the petitions. In May, August, and September 2002, appellant made several allegations to respondent that Michael abused D. and M., that Michael was drunk and out of control, the children did not like living with their father, and the children ran away from Michael. Appellant demanded respondent take the children from Michael. Respondent determined the allegations were unfounded, the children were doing well with Michael and his girlfriend, and appellant’s allegations were the result of the custody dispute between the parents.
In approximately August 2002, appellant regained physical custody of D. and M. from their father, Michael When the third dependency petition was filed, appellant claimed she regained custody of the children in 2002 because Michael said he could not take care of them and turned them over to her. Respondent was never able to confirm appellant’s story through documentary evidence, which revealed that shortly after the court dismissed the second petition, appellant moved for a change in custody and restraining order, which were denied by the court. In August 2002, appellant managed to get the court to conduct an ex parte hearing for a change in custody. Respondent determined that Charles Turner, appellant’s boyfriend, noticed Michael about the hearing, but Michael did not appear. The court awarded custody of the children to appellant, with Michael to have visitation. Michael told respondent that when he went to pick up the children from school one day, he was told that appellant had the children and regained custody. Michael stated he never received notice of the hearing, contrary to the proof of service prepared by Turner. Michael learned appellant and the children had moved in with his mother, so he believed the children would be safe with his mother’s family. Michael and his girlfriend subsequently moved to Kentucky, he learned appellant and the children moved to Texas, and he was unable to locate them. While Michael apparently did not take all possible steps to reverse the court’s order, the record also reflects that he desperately wanted to prevent appellant from learning his own whereabouts, since her erratic conduct had disastrous consequences for him when he was still in Bakersfield.
As far as the children’s preferences, D. was excited to learn her father wanted custody and eager to re-establish contact with him. M. was uncertain and unhappy that his father had not helped them for so many years, but his reluctance could have been the result of appellant’s version of events. At the January 31, 2007 jurisdictional/dispositional hearing, appellant’s counsel stipulated that D.’s and M.’s first choice was to return to appellant, but their second choice was to live with their father, Michael.
Appellant complains the court should have conducted an ICPC report before allowing Michael to take the children to Kentucky. However, the court herein properly determined it was not required to order an ICPC report before it granted custody to Michael. The ICPC (Fam. Code, § 7900 et seq.) is an agreement between California and other party states to facilitate cooperation in the placement and monitoring of dependent children. (Fam. Code, § 7901, art. 1.) California courts have concluded that the ICPC does not apply to out-of-state placements of children with a parent. (In re John M., supra, 141 Cal.App.4th at pp. 1574-1575; In re Johnny S. (1995) 40 Cal.App.4th 969, 977 (Johnny S.); Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834, 1837-1838; see also McComb v. Wambaugh (3d Cir. 1991) 934 F.2d 474, 479-481 (McComb).) “Placement” under the ICPC is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (Fam. Code, § 7901, art. 2, subd. (d)), and compliance with evaluation requirements applies only when “placement in foster care or as a preliminary to a possible adoption” is contemplated. (Fam. Code, § 7901 , art. 3, subd. (b).) Thus, by its very terms it does not apply to out-of-state placement of children with a parent. (Johnny S., supra, 40 Cal.App.4th at pp. 977-978; Tara S., supra, 13 Cal.App.4th at p. 1837-1838; In re John M., supra, 141 Cal.App.4th at pp. 1574-1575; McComb, supra, 934 F.2d at pp. 479-481.)
The ICPC does allow interstate monitoring of placements of children with parents through voluntary agreements between agencies in the sending and receiving states to provide for needed services. (Fam. Code, § 7901, art. 5, subd (b); Johnny S., supra, 40 Cal.App.4th at p. 979.) While such agreements are consistent with the ICPC, they are not mandatory when a child is placed with a natural parent in another state. (Johnny S., supra, 40 Cal.App.4th at pp. 978-979.) In addition, in some cases, the sending agency may itself be able to monitor the out-of-state parent’s compliance with court orders. (Ibid.) The court herein thus properly found it was not required to obtain an ICPC report before it granted custody to Michael in Kentucky.
Appellant next argues that even if an ICPC report was not required, the court should have maintained the dependencies over D. and M. when it granted custody to Michael, to provide oversight and ensure the children would receive the appropriate educational and emotional treatment in Kentucky. Appellant complains that little was known about Michael’s life in Kentucky, aside from his self-serving statements, and the continued dependency was appropriate.
Appellant’s arguments are again refuted by the record. There was a great deal of evidence about Michael’s circumstances in Kentucky aside from his own reports. Michael advised respondent that he had been working at a group home, he had given a clean drug test, his employer was supportive of his custody request, he and his girlfriend wanted to care for the children, they were aware of the behavioral issues, and they had located appropriate facilities to provide services. Respondent investigated Michael’s employment records and determined he had been gainfully employed in Kentucky since November 2003. Respondent spoke to Michael’s supervisor, who confirmed he had been working at the group home for six months and described Michael as a mentor to the boys. Michael’s employer similarly confirmed his status at the group home, that he provided a positive role model for the children there, and that he would be a stable, caring, and supportive father. Michael provided respondent with a list of mental health agencies in his area that could provide services to D. and M. Respondent contacted the agencies and determined there were both inpatient and outpatient services that were appropriate and available to the children.
While appellant insisted Michael had an extensive drug problem, D. and M. said they never remembered their father using drugs and that he occasionally drank. Respondent verified Michael only had minor traffic infractions in Kentucky, and neither Michael nor his girlfriend had drug- or alcohol-related offenses in Kentucky. Respondent also verified Michael submitted a negative drug test to his employer in November 2006.
The court’s disposition orders are supported by the evidence.
III.
THE ADEQUACY OF THE COURT’S DISPOSITIONAL FINDINGS
As a separate issue, appellant asserts the court failed to make the requisite findings to establish a factual basis for placing D. and M. with their father, and keeping E. in the group home, instead of returning the children to her custody. Appellant argues the court would have realized the detrimental effect of such placements if it had made such findings, and the court’s alleged failure to make such findings was prejudicial because it failed to consider Michael’s prior failure to care for his children and the dangers created by sending D. and M. to Kentucky.
Appellant cites to the court’s statutory findings as to the existence of clear and convincing evidence to remove the children from her custody, and asserts the court’s statements were insufficient. Again, the record refutes this argument and demonstrates the court made lengthy and insightful findings in issuing the dispositional orders in this case. We are compelled to quote the entirety of the court’s findings given the seriousness of appellant’s arguments on this point:
“I have considered all the evidence, all the arguments of counsel, the input from CASA.
“And the Court recognizes that most of the cases that we deal with in this court are difficult cases. There are strong emotions. We have parents who love their children very much. And then we get into the issues as to whether or not the parents are creating dangerous situations for their children that require the Court’s intervention.
“And this case is a difficult case from the standpoint that we do have a mother that the evidence does support and she admits is coping with mental health issues. And the Court understands how mental health issues can be difficult to deal with. Oftentimes people who are suffering mental health problems have difficulty accepting the care that would allow them to overcome the problems that they are facing. Certain conditions seem to have cycles where people will get help and get better, and then they cycle back through a period of time then where they are not coping successfully with the challenges of daily living in a way that they can cope either for themselves or for their children.
“And I do find, considering all the evidence, weighing the evidence, that [respondent’s] recommendations are appropriate.”
The court found there was no evidence to support an ICPC report on Michael, and continued its findings:
“… I don’t find any substantial evidence that there would be ... such danger if [the children] are placed with [Michael]. And permanency is important. And I think the CASA input is very helpful in that regard.
“Obviously the children care about their mother. They are understandably concerned about her well-being. They want to be near to her if that could be of some assistance to her. But under all the circumstances these children are not in a position to be caretakers for their mother. They are not in a position to provide her with any meaningful assistance in her present efforts to make progress on her own mental health. And the Court is having to decide whether they are better off living in a group home here in Kern County so they are closer to the mom or living in Kentucky with their dad, who can provide permanence and all of the benefits of living with a parent.
“The Court finds that all the evidence supports placing them with the father, and that is consistent with the goals of the dependency law. We are trying to establish permanency and stability. We are trying to reunite families. If we can reunite the children with one or both parents, that is the ultimate goal. And we can accomplish that in the case by placing them with their father as to [D. and M.].”
The record thus reflects the court carefully examined the entirety of the record, recognized the difficult issues in the case, and decided that it was important for D. and M. to have permanency in their lives by placing them with their father instead of continuing their placement in group homes. The right to parent is not absolute but must be balanced against the best interests of the children. (In re Angelia P. (1981) 28 Cal.3d 908, 916-917.)
“… Expressions of love and concern do not equate to the day to day care and devotion the average parent expends on behalf of children. The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.” (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The court herein did not abuse its discretion when it granted custody of D. and M. to their father, and continued E.’s placement in a group home.
DISPOSITION
The judgment (the jurisdictional and dispositional findings and orders appealed from made January 31, 2007) is affirmed.
WE CONCUR: LEVY, J., HILL, J.