Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. JD093130-01. H. A. Staley, Judge.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Minor and Appellant.
B. C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
OPINION
DAWSON, J.
E.A., now 11 years old, challenges the dependency court’s April 4, 2008, order terminating family reunification services provided to his mother and placing him in a permanent plan of long-term foster care. Specifically, E.A. argues the evidence does not support the dependency court’s finding that there was a substantial risk that returning him to his mother’s custody would be detrimental; that the Kern County Department of Human Services (the Department) and the dependency court failed to comply with his case plan; and that the dependency court failed to make findings required by Welfare and Institutions Code section 366.22, subdivision (a).
All further statutory references are to Welfare and Institutions Code unless otherwise stated.
We find there was sufficient evidence to support the court’s finding of detriment and that the Department and court complied with E.A.’s case plan. But we agree with E.A. that the court failed to make legislatively required findings pursuant to section 366.22, subdivision (a).
FACTS AND PROCEDURAL HISTORY
On September 2, 2006, J.A. (mother) called the Department and reported that she was overwhelmed with caring for her children and wanted to place them in custody. Mother lived in a motel with her three children, D.G., born in 1994, M.G., born in 1995, and E.A., born in 1997. The Department took the children into protective custody after mother said she was “stressed and could not handle things” and wanted time to “get herself together.” The Department filed a dependency petition on the children’s behalf alleging that mother was unwilling to care for them, pursuant to section 300, subdivisions (b) and (g). The children were placed together in foster care.
Only E.A. is a party to this appeal; D.G. and M.G., his half siblings, are not.
This was not the first time mother had relinquished or threatened to relinquish her children. In September of 1995, before E.A. was born, mother left D.G. and M.G. in a Greyhound bus station at 5:30 a.m. because their father worked there and she wanted him to care for them.
A month later, mother brought D.G. into the hospital for the third time that week, insisting that she be admitted, even though she had only a slight fever. Hospital staff witnessed mother handling the child very roughly, and the staff thought mother “‘appear[ed] to want to get rid of the child.’” After allegations of general neglect were substantiated, mother did not participate in mental health counseling offered to her and instead told the social worker that she wanted to place her children up for adoption. Mother told the social worker she could “‘always [have] more children, I’m still at child bearing age,’” but she was tired of changing diapers and making bottles. When the social worker stated that she could not give the children up for adoption without their father’s approval, mother became irate, cussed out the social worker, and hung up.
In November of 1995, D.G. and M.G. were taken into protective custody after mother called an adoption agency and threatened to kill the children if they were not removed from her care. Allegations of physical abuse were substantiated and the children detained. Family reunification services were ordered and the children placed with their father. In February of 1997, dependency was dismissed and the children were returned to their mother.
In January of 2001, mother called the social worker and asked what would happen if she gave two of her children, specifically D.G. and M.G., to child protective services. When the social worker stated that mother would need to turn over all of the children, not just one or two, mother said it would be the best thing for them while she got her life back together. After giving it some thought, mother called again and asked the Department to pick up all three children. They were detained and allegations that the children were at risk of suffering serious harm or illness due to mother’s failure to provide for them were found true. Reunification services were ordered for mother and the father of the two oldest children. No services were offered E.A.’s father, “as services would not benefit the child.” In April of 2002, the court found mother had substantially complied and progressed with the case plan and E.A. was placed with her. Dependency as to D.G. and M.G. was dismissed and they were placed with their father. The record is somewhat unclear but, at some point during 2002 or 2003, mother regained custody of the two older children.
In April of 2006, mother brought D.G. to mental health services and stated that she could not care for her anymore and wanted her placed in juvenile hall. When mother was told that mental health services did not place children in juvenile hall, mother told D.G. to go outside, start a fight and get arrested so that she could be taken to juvenile hall.
In addition to these specific instances in which mother indicated she could not care for her children, the Department also received numerous referrals over the years alleging general neglect and abuse. Between September 1998 and November of 2000, the Department received five referrals. Only the last, which alleged physical and emotional abuse of all three children by mother, was substantiated. Mother agreed to participate in voluntary family maintenance services.
Various allegations of abuse and neglect were received in May, August, and September of 2002, August and October of 2003, and in January and July of 2004, but all “evaluated out” or were determined to be unfounded. In one instance, mother sent M.G., by ambulance, to the hospital when he had a temper tantrum.
In February of 2005, a report of general neglect was made that mother, while living for a short period in Texas, had hit M.G. on the head with a broom handle. In June of 2005, a report was made that mother had become upset at D.G.’s tardiness in getting ready for school and, as the child was getting into the car, mother accelerated and D.G. fell to the pavement. D.G. told school officials that mother told her daily that “she can’t stand me” and “doesn’t want me” and threatened to take her to juvenile hall and leave her there.
In October of 2005, mother was arrested for petty theft; M.G. was taken into protective custody and the other children stayed with a grandmother. Mother had other misdemeanor convictions: for “fight/noise/offensive words” in 1999; obstructing or resisting a peace officer, petty theft, evading a peace officer, cruelty to a child, and driving with a suspended license in 2003; and second degree burglary and petty theft with a prior in 2006.
At the detention hearing on the current petition on September 8, 2006, mother denied the allegations of the petition but stipulated to a psychological evaluation. The court appointed two psychologists to evaluate mother and determine whether she was likely to benefit from reunification services.
The social worker’s report filed in anticipation of the jurisdictional hearing chronicled mother’s increasingly erratic behavior after mother relinquished her children to the Department. Mother initially agreed to drug test and provided one sample, which was negative. When she was asked to drug test again, she refused. Thereafter, and even when no further tests were requested, mother continued to raise the topic and to leave irate voice mail messages for the social worker stating that she refused to drug test. She also encouraged the children to act out at their foster home and to show disrespect for their caregivers and social workers. After a visit with E.A., mother made a false police report that E.A.’s foster mother was abusing him. She encouraged the children to refuse to go to school and she minimized and justified her children’s bad behavior. As a result of D.G.’s disruptive behavior, which mother did not condemn, the children were separated and placed into different group homes. And as a result of mother’s disruptive behavior, the court suspended all contact between mother and the children from October 3, 2006, until the jurisdictional hearing on November 8, 2006.
At the time of the jurisdiction report, E.A.’s father’s whereabouts were unknown and efforts to locate him had been unsuccessful. It was later learned that E.A.’s father had been deported to the Philippines.
Mother was present with her attorney at the November 8, 2006, jurisdiction hearing and did not contest the allegations. The court continued the hearing, however, because it had not received reports from the psychological evaluation, and the Department had not made a diligent effort to contact D.G. and M.G.’s father. Mother asked that visits be resumed. The court ordered supervised one-hour per month visits between mother and the children.
Two psychological evaluations were prepared in anticipation of the jurisdictional hearing. Dr. Thomas Middleton reported that mother stated she called the Department to take the children because she could not give them what they needed and she felt overwhelmed. She claimed that visitation with her children had been suspended because the children “‘got too riled up.’” She admitted giving D.G. a cell phone without telling the foster parents. Mother described how she was unable to secure stable housing and that she found it stressful to participate in a work release program (which she had been allowed to participate in after being charged with petty theft) while she had custody of the children.
Mother told Dr. Middleton that she was not taking antidepressants because she did not like the “side effects [she] read about.” She agreed to participate in any court-ordered treatment and counseling programs and to use prescribed medications.
Dr. Middleton found that:
“[Mother] 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. [Mother] 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 mother showed evidence of bipolar disorder. As a result, she showed little ability to effectively plan, organize, and carry out events in her life. She also showed evidence of an anxiety disorder with chronic depressive symptoms, and she did not understand the reason for her mood swings. Dr. Middleton found that mother was “clearly … in need of both an anti-depressant and a mood stabilizer to adequately address her symptoms.”
Dr. Middleton recommended that mother 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 [mother] refuses to participate in these services, then she should be considered to be 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.”
Dr. Middleton described mother’s prognosis as “guarded at best,” though she could stabilize if she was fully compliant with her treatment plan. If not, her prognosis was poor. Dr. Middleton also noted that mother was in need of an abuse and neglect class, a parenting class, and an anger management class “separate from her mental health counseling.” Mother would have 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 mother 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 also evaluated mother. She told him she had been arrested several times for petty theft and once for evading the police while the children were in her car, which led to a child endangerment charge.
Dr. Couture opined that mother suffered from a disabling mental condition, severe personality disorder, which made her incapable of utilizing reunification services. According to Dr. Couture:
“[Mother] suffers from a rather marked personality disorder, characterized by extremes of behavior, and extremes of dependency versus aggressiveness, versus antisocial type behaviors.… 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 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 entrench[ed] 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, [mother] has had the benefit of prior reunification services, with what appears to be little effect.”
Dr. Couture concluded that mother suffered from “a disabling mental condition, namely a severe Personality Disorder, making her incapable of utilizing reunification services.”
“I do not believe 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 [mother] could change her personality style, no[r] 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.”
On January 9, 2007, the dependency petition was amended to include the allegation, pursuant to section 300, subdivision (b), that there was a substantial risk of harm to the children due to mother’s mental illness. The following day, mother denied the amended allegations.
A supplemental jurisdiction report summarized the psychological evaluations and gave an update on the children’s status. M.G. was disruptive in school, but mother did not want him in a special class because it would label him as a “troublemaker.” Mother was not willing to sign papers requesting an evaluation of M.G. by the school psychologist. When pressed to sign the papers, mother said it was more important for her to deal with her own issues than with M.G.’s and “‘now you see why I gave you guys my kids.’” Mother said she wanted her children back, however, and would do what was required. She would accept mental health treatment, but she was hesitant about taking psychotropic medications.
At the time the supplemental jurisdiction report was prepared, mother was not enrolled or participating in any counseling. She later met with Dr. Shreedevi Keni, a psychiatrist at CalWorks Behavioral Health. During an evaluation, mother said she needed more Xanax and, when Dr. Keni declined to write the prescription, mother became angry, started making faces, tore up the appointment card and walked out saying, in that case, there had been no point in coming. Dr. Keni diagnosed mother with depressive disorder, dependent and antisocial features, and benzodiazepine dependence based on her demand for more Xanax. Another professional from CalWorks, Mary Kent, MFT, performed a mental health assessment of mother. Ms. Kent agreed with the other diagnoses, except that she did not find evidence of bipolar disorder.
The report described that mother had a visit with D.G. and E.A. on November 14, 2006, and one with M.G. the following day. Although the visits went without incident, the children’s bad behavior then escalated. D.G. was disrespectful and defiant, and she ran away from the group home. M.G.’s group home was extremely concerned about his ability to appropriately interact with others. And E.A. had been destructive of property and physically and verbally abusive toward others.
At the contested jurisdiction hearing on January 31, 2007, mother testified that she thought the children could be returned to her because she had gained new insight into her mental health condition and she was seeking mental health counseling and taking medication. She testified that she had applied for Social Security benefits and was living with her boyfriend, who was currently supporting her, in a three-bedroom home appropriate for the children.
The dependency court found all of the allegations in the amended petition had been proven and proceeded to the question of disposition. The court placed D.G. and M.G. in their father’s care and dismissed the petition as to them. The court placed E.A. in the custody and control of the Department and ordered family reunification services be provided to mother for “a period of time not to exceed 12 months, which expires November 2nd, 2007.” The court ordered that mother participate in mental health counseling and treatment and take psychotropic medications as prescribed or directed by her mental health care professionals, and that she participate in “counseling for Family Matters … and anger management and parenting.” Mother was also ordered to cooperate with the child’s education providers, maintain involvement in the child’s educational needs, cooperate with the child’s medical and mental health care providers, and to maintain involvement with the child’s medical and psychological needs. Monthly visitations were maintained, with the option by the Department to increase the frequency and duration of the visits.
On February 5, 2007, mother filed a notice of appeal appealing the dependency court’s order of January 31, 2007. Mother argued that there was insufficient evidence to support the court’s jurisdictional and dispositional orders, that the court failed to make sufficient findings when it made the dispositional orders, and that the court should not have dismissed the dependency petition as to D.G. and M.G. and granted custody to their father. In an unpublished opinion, In re D.G. et al. (Oct. 10, 2007, F052225), we disagreed and affirmed the dependency court’s order.
In February and March of 2007, the court granted two restraining orders against mother after she threatened two social workers. During the week following the jurisdictional/dispositional hearing, mother had contacted the social workers via telephone and made threatening remarks. Mother made various statements that she and the social worker were “‘in for a battle,’” that the social worker was “‘not going to get away with this,’” that things would “‘only get worse,’” and, at one point, when the social worker asked if there was anything more she could do, mother replied, “‘yeah die’” and hung up. Mother also told another social worker “‘what goes around, comes around,’” “‘I will not stop. I will not rest until you two have lost your jobs’” and “’[y]ou can give [my kids] back to me now or we could do it the hard way.’”
The Court Appointed Special Advocates’ (CASA) report prepared in anticipation of the first review hearing stated that E.A. resided in a group home and attended fourth grade. He was a good student and was on the honor roll. He liked the staff at the group home and got along well with his house mates. E.A. told the CASA worker that he had been allowed to speak to his siblings and his father on the phone.
The social study prepared in anticipation of the review hearing stated that mother “has made minimal compliance with her Family Reunification Case Plan and minimal progress towards alleviating or mitigating the circumstances for the child’s placement in foster care.” She had enrolled in mental health counseling but had two excused and six unexcused absences in a two-month period. Her level of participation was rated as “minimal.” Still, her counselor believed that mother “could benefit” from services. As of April 19, 2007, mother still had not enrolled or participated in counseling for anger management, parenting or family matters, and was not taking her psychotropic medications as directed by her mental health professionals.
By the time of the section 366.21, subdivision (e) hearing on May 2, 2007, mother had made better efforts with her case plan. She had completed a parenting class and was enrolled in an anger management course. But she was not taking her psychotropic medication. The Department agreed to allow visitation one hour every other week instead of once a month. And although the CASA worker originally recommended that E.A. be moved from the group home to a foster home, the CASA worker indicated that the group home was the best place for E.A. at that time.
The dependency court adopted the recommendations, found mother had made minimal progress toward alleviating or mitigating the causes for the child’s placement, that mother made acceptable efforts and had availed herself of services, and ordered that the social worker refer E.A. for a mental health assessment, if necessary. Family reunification services were continued, and E.A. was to be returned to his mother or placed for adoption or with a legal guardian by March 2, 2008.
On August 24, 2007, mother filed a request for change order asking that E.A. be returned to her with family maintenance services. Mother alleged that she had complied with all requirements of the reunification plan, with the exception of seven sessions remaining in Family Matters at Haven Counseling Center. She also alleged that E.A. was strongly bonded to her and wished to return to her custody.
The CASA worker reported that E.A.’s behavior was erratic. It had deteriorated in June when E.A. was enrolled in summer school, which he did not want to attend. He became angry and destroyed property of the group home. On various occasions, E.A. cussed at the staff and social worker. He acted out, sometimes violently flailing his arms and body around and throwing items in the group home. He also assaulted another child in the group home. Once back in school in the fall, however, E.A. did better. The group home staff stated that E.A. was not normally disruptive and this was behavior learned from the other children.
The CASA worker observed that mother had made progress towards securing an appropriate home to have E.A. placed back with her. Due to mother’s mental health history, the CASA worker did not think E.A. should be placed with her as yet but did recommend that E.A. be allowed monthly overnight visits with her.
The social worker reported that mother had regularly visited E.A. but continued to display “a lack of adequate parenting skills.” Although mother knew of E.A.’s disruptive behavior at the group home, she dismissed his inappropriate actions. And although mother had completed parenting and anger management, she had failed to comply with the mental health component of her case plan. The Department recommended that family reunification, rather than family maintenance, be continued.
At the modification hearing pursuant to section 388 on September 21, 2007, the court addressed E.A.’s behavior and questioned what type of counseling he was receiving. The social worker reported that E.A. was receiving individual counseling with an employee at the group home and was scheduled for individual counseling with Clinica Sierra Vista. The court expressed “a real concern about [E.A.]’s out-of-control behavior,” and that unsupervised contact with his mother was also going to depend on his behavior. Because E.A. was behaving well at school, the court noted that E.A. appeared to be able to control his behavior, which E.A. acknowledged. Although the court denied mother’s request for return of the child, it did allow for unsupervised visits between E.A. and mother.
In anticipation of the 12-month review hearing, the CASA worker reported that E.A.’s behavior at the group home had improved and that he looked forward to his visits with his mother. The worker recommended that visits remain supervised unless mother complied with her mental health component of her case plan.
The social worker reported that mother had successfully completed counseling for anger management and parenting, but had not successfully completed counseling for mental health or stayed on her psychotropic medication as directed. Nor had she implemented what she had learned in her parenting class. And although mother cooperated and maintained involvement in E.A.’s medical and psychological needs and visited him as scheduled, she had only minimally cooperated with the Department, child protective services and CalWorks workers. Mother had had unsupervised visits with E.A. on four occasions but, because mother was not compliant with her medications, the Department recommended that visits be cut back and supervised and reunification services be continued.
A letter received from the parenting instructor stated that mother had begun a “guided Visitation program” with E.A. and, after three visits, had shown “good ability to set and follow through with appropriate limits for her son.”
At the review hearing on December 6, 2007, mother’s counsel argued that she was taking her medication, but E.A.’s counsel argued it would be dangerous to return E.A. to his mother without proof of her compliance. The court questioned whether it could order mother to drug test to determine if she was taking her medication and told counsel to “come back on ex parte basis if there is some reason why it would be important for the mom to submit to random drug testing to determine if she is taking the properly prescribed medications.”
The court then stated that, although mother had told her attorney that she was complying with the court-ordered components for mental health counseling and complying with medication orders, it wanted to see “some independent evidence to corroborate that.” The court deemed the current visitation schedule appropriate until the Department was able to verify that mother was both medication compliant and complying with the mental health counseling component. The court found mother had made moderate progress toward alleviating or mitigating causes for E.A.’s placement in out-of-home care and made minimally acceptable efforts at services provided her. E.A. was to be returned to mother or placed for adoption or with a legal guardian by March 2, 2008.
In anticipation of the 18-month review hearing, the Department filed a report stating that mother had completed anger management and parenting classes and family matters counseling. Mother had participated in CalWorks Behavioral Health between September 24, 2007, and January 31, 2008. Her enrollment ended when she began receiving supplemental security income (SSI), but she was scheduled to start counseling with another provider on February 1, 2008. Mother was said to be compliant with her medications.
Mother and E.A. participated in guided visitation and her visits were increased to four hours in December of 2007 and to six hours in January of 2008. Mother and E.A. enjoyed the visits and several day-long unsupervised visits were scheduled. Mother and E.A. appeared to have a “strong bond” and they “carry conversations well and seem happy when they are together.”
E.A. continued to do well in the group home. In more recent months, E.A.’s behavior had been “great,” according to a group home staff member.
The Department recommended that E.A. be placed with his mother and that family maintenance services be provided mother. The CASA worker also recommended that E.A. be placed with his mother.
But by the time of the hearing on February 28, 2008, the Department changed its recommendation and explained its reasons for doing so. In a report, dated February 26, 2008, the Department reported it had learned that, in November of 2007, mother had received a new mental health counselor who indicated that mother’s participation in group counseling was “medium” and that she “needs to focus on self improvement and less on external factors.” The mental health worker reported that mother did not test for prescribed medication as requested by the counselor on November 7, 2007. When she did test on November 21, 2007, the results came back positive for benzodiazepines, “which are prescribed sedatives, usually used for anxiety or upon the use of initial anti-depressants.” When asked about mother’s participation in counseling, the mental health worker told the social worker that mother was “not necessarily unwilling to participate, but rather burnt out.” Mother had said that she had participated in so many classes for so long that she felt worn out. In January of 2008, mother’s participation was “minimal” and she failed to drug test on January 17, 2008, to show she was medication compliant. When she did test a week later, the results were negative for any drug in her system, including prescribed medications.
Mother had to change counseling providers on January 31, 2008, because she was receiving SSI and was no longer CalWorks eligible. She enrolled in counseling on January 31, 2008, through Oildale Community Health Center, and saw a Dr. Khan. She was scheduled for counseling on February 1, 2008, with another doctor at the health center, but failed to attend. After some further scheduling difficulties, however, mother attended a counseling appointment at the Mary Kay Shell Center.
A printout received by the social worker on February 25, 2008, indicated that mother filled prescriptions for Synthroid (thyroid medication) on October 18, 2007, and November 19, 2007, for 30 tablets each to be taken daily; for flouxetine (Prozac) on August 23, 2007, and October 26, 2007, for 30 tablets each to be taken daily; for Seroquel on November 26, 2007, and February 22, 2008, one to three tablets daily as needed; and for Prozac on November 28, 2007, and February 22, 2008, 60 tablets each to be taken twice daily.
The social worker’s report noted mother and E.A.’s “very strong” bond, but stated
“[M]other’s failure or inability to maintain or commit to mental health counseling for an appropriate amount of time is worrisome. She showed somewhat of an effort to attend counseling through the Kern County Mental Health/CalWorks from November 2007 through January 2008. However, she only tested to show medication compliance when requested by the counselors about 50% of the time. Further, only once in the provided progress reports does it indicate that she showed that she was taking her medication when she was tested. [¶] Although [mother] has filled some of her prescription medication as given to her by her doctors, she has not shown to have done it on a consistent basis. For example, when she filled her prescription for Flouzetine (Prozac) on August 23, 2007, she was given a 30-day supply, but she didn’t refill it again until October 26, 2007. When she filled her prescription for Prozac on November 28, 2007, she was given 60 pills, to be taken twice daily, which was also a 30-day supply, yet she didn’t refill this prescription again until February 22, 2008. [Mother] stated to Social Service Worker … that she did fill some prescriptions at other pharmacies but was unable to provide specific information for the Department.”
The report concluded that mother “has not maintained a proper balance of mental health counseling and a prescribed medication regime to allow her to properly parent” E.A. The Department recommended that services be terminated for mother.
At the scheduled hearing, counsel for the Department told the court that the Department had changed its recommendation because there were indications that mother was obtaining prescriptions and throwing them away, that the benzodiazapine that mother tested positive for was not a prescription she was supposed to be taking, and that she “came up negative” for any of her psychotropic medications. A contested hearing was scheduled.
In a supplemental social study dated March 19, 2008, the social worker reported that she met with mother, E.A., mother’s boyfriend, and the administrator of the group home right after the hearing. Mother was upset about the supplemental report and insisted that some of the facts were wrong. Mother wanted a new social worker and “appeared … to pass blame to the Dept. for [her] previous failures to reunify.” Mother said she was willing to drug test to show she was medication compliant. The social worker reported that, at one point, mother said “she would take the child and leave the county, state, or even the country if she had to, because she just wanted to be with her child.”
The social worker revised her earlier supplemental report to explain that, when mother was tested at CalWorks, it was only for illegal controlled substances and for prescription benzodiazepines, and not for any prescribed medications. Since her doctor was in the process of taking her off of benzodiazepines, she was being screened for that. But Prozac would not show up on this particular drug test.
In a telephone conversation on March 3, 2008, mother said she did not drug test for CalWorks because she was told by her counselors there that it was not court-ordered that she drug test, and she had various reasons for not testing. The social worker explained that, while she was not court-ordered to drug test, she was ordered to comply with mental health treatment. Mother stated that she had a counseling assessment appointment scheduled for March 26, 2008, at the Mary Kay Shell Center.
In summary, the social worker stated, because of mother’s inconsistency in filling her prescription medication and failure to comply with her mental health case plan, “[t]he Department upholds its opinion that [mother] has not been able to maintain a stable mental health care regime for herself and therefore, the child should not be returned to her care.”
In a supplemental social study dated April 2, 2008, the social worker reported that she had received a hostile voice mail from mother in which mother claimed the social worker had gotten her facts incorrect. At one point, mother threatened the social worker, stating, “If I were you I would double, triple check my work before publishing it because I will bring a shit storm so far down on you that the DA is going to have you look at every report ever made, written by you .…” The social worker reported that mother continued to “display uncooperative and hostile behavior” towards her case worker.
On March 27, 2008, the social worker was informed that mother attended her first scheduled mental counseling appointment at the Mary Kay Shell Center, but was late for the appointment. And when told mother would need to provide a copy of her prescription the next time the medication was refilled, mother said it wouldn’t be refilled because Medi-Cal no longer paid for it. When the social worker tried to verify this information, she found that mother was receiving food stamps and Medi-Cal through Social Security, which did pay for prescription drugs.
The social worker attempted to telephone mother to speak with her. Mother did not answer but later left a voice message which stated, in part, “I have nothing more to say to you. Please do not call me again.” The social worker then made a house visit to discuss the medication issue with mother. When the social worker asked to see her prescriptions, mother at first said she didn’t want to “tear up the house” looking for them, but then was only able to find a bottle labeled Seroquel with three to four pills in it. And when mother wasn’t happy with the social worker’s reply about when mother could see E.A., mother said, “You’re just a bitch.” When told she should not use names, mother said she could, because of her freedom of speech, and began yelling and cursing. Mother eventually said she was going to call E.A. and tell him everything was the social worker’s fault.
The social worker then went to E.A.’s school to discuss why visitation would be changed. Afterwards, mother called the social worker and left a message telling the social worker to stay away from E.A.. Mother said, “If I were you … [s]hit storm is coming down on you and the department. Leave my son alone. You come to my house again and it wont be pretty. Stay away from my property. I will defend my property as I see fit.” Mother later called to say that Medi-Cal covered only 20 mg. tablets of Prozac, not 40 mg., and the prescription would be ready the following Monday. Mother concluded by saying, “I hope that makes you happy! And so I can see my son next weekend and makeup for the time that you’ve taken away from us. This is all your fault.”
At the April 4, 2008, hearing, social worker Niki Piercy testified that she had been mother’s social worker since the middle of January of 2008. When she took over the case, her impression was that mother was complying with her case plan and she was “med compliant.” Mother had done well in visits, and it was not until information was received that mother was not consistently filling her medications that the Department had concerns. When Piercy was asked if she had seen any change in mother’s behavior “that would show you that she wasn’t taking medication,” Piercy replied she had not seen a change until after the court date when mother found out she was not getting her child back.
On cross-examination, Piercy acknowledged that the Department had taken no action on court-ordered drug tests to monitor whether mother was taking her medication.
Mother testified that she was not taking her medication in August of 2006 when she lost her Medi-Cal due to the fact that her children were not in the home. She did get back into taking the medication in August of 2007, when she would receive a month’s prescription at a time. Mother testified that she tried, through a number of programs, to get her prescriptions filled, including MIA (medically indigent adults) and CalWorks, and finally Medi-Cal because she was on SSI. When she would be without a prescription for a short time, she would take pills leftover from when her medications were changed in the past, to tide her over. Mother assured the court that, if E.A. were returned to her, she would continue to take her medications and go to counseling.
E.A., through his counsel, made an offer of proof that he wanted to go home to live with his mother. The CASA worker acknowledged that E.A. wanted to be returned to mother but did not think it was in his best interest, due to mother’s noncompliance with her medication.
Counsel for the Department argued that, despite mother’s repeated interactions with the Department over the years, and particularly over the past 18 months, “we’re still sort of in the same position.” Counsel argued that mother did not start her medication until October 7, 2007, and, although she claimed to be getting counseling through CalWorks the previous fall, the CalWorks worker reported that, in October of 2007, mother was noncompliant with her mental health counseling. Counsel was also concerned that mother had been reported making comments “that she is not planning on being compliant after the return of her son.”
The dependency court found return of E.A. to his mother would create a substantial risk of detriment to him, terminated family reunification services, and placed E.A. in long-term foster care. In doing so, the court found that E.A. was not likely to be adopted and there was no one to accept legal guardianship. It also found that there was a strong bond between mother and E.A. and that continued contact with mother was in E.A.’s best interests. Supervised visits with mother were ordered to occur weekly and the Department was given discretion to allow unsupervised visits. A further hearing was scheduled for April 2, 2009.
DISCUSSION
1. Substantial evidence supports the court’s order denying E.A. placement with his mother.
Under section 366.22, subdivision (a), at the 18-month review hearing, the court must order the return of the child to his or her parents unless the court finds, by a preponderance of the evidence, that returning the child to parental custody would create a substantial risk of detriment to the child’s safety, protection, or emotional or physical well being. The Department bears the burden of establishing detriment. (§ 366.22, subd. (a).) The parent’s failure to participate regularly and make substantive progress in court-ordered programs “shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a); see In re Heather B. (1992) 9 Cal.App.4th 535, 560-561.)
E.A. contends that the juvenile court’s order denying his return to his mother is not supported by substantial evidence of a substantial risk of detriment. We disagree.
In reviewing a juvenile court’s ruling under section 366.22, we consider the entire record, resolving all conflicts in favor of upholding the ruling, to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, to support the court’s finding. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705; In re John V. (1992) 5 Cal.App.4th 1201, 1212.) If supported by substantial evidence, the court’s ruling will not be disturbed on appeal absent a clear showing that the court exercised its wide discretion in an arbitrary, capricious, or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Constance K. v. Superior Court, supra, at p. 705.)
In this case, the Department provided ample evidence that returning E.A. to his mother’s custody would subject him to a substantial risk of detriment. As stated earlier, despite mother’s participation in major portions of her reunification plan, she failed to stabilize her psychological condition and demonstrate an ability to provide E.A. with a safe and suitable home environment.
Mother’s mental illness lies at the heart of the problem. She was diagnosed with a “severe mental disorder” in the form of bipolar disorder and a mixed personality disorder with prominent schizoid and antisocial tendencies. Her mental illness is characterized by extremes of behavior, greatly affecting her ability to parent. Mother’s psychological treatment requires psychotropic medication.
One psychologist who evaluated mother described her as suffering from “a disabling mental condition, namely a severe Personality Disorder, making her incapable of utilizing reunification services.” Another psychologist described mother’s prognosis as “guarded at best,” and that she could stabilize, but only if she was fully compliant with her treatment plan.
E.A. does not dispute the existence of his mother’s mental illness, but argues that “[h]arm to the child cannot be presumed from the mere fact of mental illness of the parent.” (In re Jamie M. (1982) 134 Cal.App.3d 530, 540.) He quotes from the opinion in Jaime M.:
“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.” (Id. at p. 542.)
In In re Heather P. (1988) 203 Cal.App.3d 1214, overruled on other grounds in In re Richard S. (1991) 54 Cal.3d 857, 866, footnote 5, this court reversed the dependency court’s order, setting aside a permanency planning hearing, finding insufficient evidence to support a finding of detriment due to the mother’s mental illness. But the facts in In re Heather P. are distinguishable. Heather’s mother suffered from paranoid schizophrenia, for which she was receiving effective medication management and ongoing therapy. (Id. at p. 1222.) The mother had met all of the elements of the service plan, including visiting the child, receiving psychotherapy, training on parenting skills, and maintaining a residence. The mother had shown “significant improvement in a rather short period of time,” had “changed her attitude toward her need for treatment,” and had “focused her life on reobtaining custody of her child.” (Id. at pp. 1227-1228.) The only evidence of detriment to Heather was the social worker’s report that the mother had not received “a positive evaluation from her therapist.” (Id. at p. 1227.)
Here, however, there was “prima facie evidence that return would be detrimental” because of mother’s “failure … to participate regularly and make substantive progress in court-ordered treatment programs.” (§ 366.22, subd. (a).) Throughout the reunification period, mother’s efforts toward seeking and receiving regular psychological treatment and services were inconsistent at best. While the children were detained at the beginning of September 2006, mother did not enroll in counseling until December of 2006. She was dropped from mental health counseling in August of 2007 and did not re-enroll until a month later. In October of 2007, mother was not compliant with her medication regimen, did not cooperate with treatment, and reported that she intended to stop mental health counseling as soon as E.A. was returned to her. The following month, mother’s participation in mental health counseling was rated as “medium” and was told she needed to “focus on self improvement and less on external factors.” In December of 2007, mother attended less than half of her scheduled classes and, in January of 2008, missed two of her sessions. Her degree of interest was described as “minimal” although her progress was “satisfactory.” In January of 2008, when mother stopped classes before receiving SSI, mother’s therapist criticized her level of participation and attitude and stated that it appeared mother was “worn out” from attending classes so long. Mother did not restart mental health classes until late March of 2008.
Mother’s use of psychotropic medication was also inconsistent. There was evidence that mother was not filling her prescriptions regularly, even though she tried to explain her failure to obtain Prozac in February and March of 2008. Mother’s behavior was also consistent with not taking her medication. She threatened the social workers, leaving long angry voice mail messages, to the point that restraining orders were issued. At one point, mother threatened to kidnap E.A. and move him out of state. At another, E.A. could not play outside unsupervised because mother continued to drive by the group home and the school parking lot, worrying the staff that mother was trying to kidnap E.A..
And while E.A. and mother had a number of unsupervised visits that demonstrated that mother could care for him on a short-term basis, mother’s erratic behavior caused legitimate concern that he might not be safe with her for longer periods of time. This concern was heightened by the history of mother’s pattern of relinquishing her children when she was overwhelmed, which began even before E.A.’s birth.
We conclude there was sufficient evidence to support the dependency court’s finding of detriment.
2. Did the court and the Department fail to comply with E.A.’s case plan?
E.A. next argues that the dependency court and the Department failed in various ways to comply with his case plan. He claims the Department did not provide him a concurrent permanency plan, as required by section 16501.1, subdivision (f)(9). He also claims the court did not ensure that he maintained court-ordered contact with his siblings; did not ensure that he maintained court-ordered telephone contact with his father; did not ensure that he received court-ordered mental health treatment; and did not make proper statutorily mandated determinations concerning his sibling relationships, pursuant to section 366, subdivision (a)(1)(D). We will address each contention separately.
A. Concurrent permanency plan
E.A. contends first that the Department made no effort to find an alternative permanent home for him, pursuant to section 16501.1, subdivision (f)(9). Specifically, he argues the Department should have but failed to consider placing him with his father, his siblings’ father, his maternal great-grandparents, his maternal grandmother, or his paternal aunts. Finally, he argues that the Department should have attempted to place him in foster care given his marked improvement in behavior. We find no error.
The case plan is the foundation and central unifying tool in child welfare services. (§ 16501.1, subd. (a)(1).) Section 16501.1, subdivision (f)(9) provides:
“If out-of-home services are used and the goal is reunification, the case plan shall describe the services to be provided to assist in reunification and the services to be provided concurrently to achieve legal permanency if efforts to reunify fail. The plan shall also consider in-state and out-of-state placements, the importance of developing and maintaining sibling relationships pursuant to Section 16002, and the desire and willingness of the caregiver to provide legal permanency for the child if reunification is unsuccessful.”
Here, the social study dated November 21, 2006, stated that the case plan was to provide E.A. with a safe, permanent home in his own home by resolving those issues which brought him within the provisions of section 300. “The goal shall be accomplished by a successful return of the minor[] to his … parent[] or by … institution of a long-term plan of adoption, legal guardianship or emancipation.” Concurrent planning for E.A. included a preliminary assessment of the eligibility of any identified prospective adoptive parent or guardian, including interested or eligible relatives, and the social worker’s monthly contact with the out-of-home provider and discussion of their willingness to provide permanency for E.A.
Although the record indicates that E.A.’s father had contact with him early in his life, he was absent from E.A.’s life for extended periods. In the earlier dependency, father had spent much of the time in custody awaiting deportation, which occurred on May 12, 2004. By November of 2006, mother had not had contact with E.A.’s father since he had been deported. Mother also stated that father’s sisters left California after father was deported. At the time of the current petition, father’s whereabouts were unknown.
After the initial dispositional hearing on November 8, 2006, the Department located E.A.’s father, who expressed an interest in being a party to the court proceedings. According to E.A.’s father, he was close to his son at one time and wanted the opportunity to rebuild their relationship.
At the contested dispositional hearing, counsel for E.A.’s father stated that father wanted to have E.A. placed with him, but acknowledged that would not be practical because father had been deported. Counsel agreed to investigate the issue and to inform the court if that was something father wished to or could pursue. Counsel made no further request.
Aside from the statement from E.A.’s father, there is no evidence in the record that any other relative was willing to care for E.A. or requested to be evaluated for placement. When mother wished to relinquish her children on September 2, 2006, she was asked if there were any family members that the children could stay with. At that time, mother stated that they had already lived with her father and sister for several months and the family would “not take them back.” Mother stated she had told a friend about wanting to give up her children, and the friend tried to talk her out of it. But when asked if the children could possibly stay with her friend, mother said that was not possible because the friend lived with his parents. When the social worker spoke to mother several days later, she again asked if mother had any relatives or close family friends that were appropriate and willing to assist and provide temporary care for the children. Mother stated she did not. And when asked about her parents, who had provided care to the children in the past, mother stated, “They won’t help.” Mother was not able to provide the social worker with the children’s maternal grandparents’ phone number. Dr. Couture’s psychological evaluation stated that mother was estranged from her own mother and her sisters.
E.A. made no request to be placed with his father or any other relative. At the section 366.22 hearing, E.A.’s only request was that he be placed with his mother and her boyfriend. We find that the Department properly pursued these options for placement with a relative.
As for E.A.’s argument that the Department should have placed him in a foster care home instead of a group home, we note first that E.A. was originally placed in foster care, but his mother’s erratic behavior triggered the children’s bad behavior and, as a result, E.A. and his siblings were each moved to a separate group home. The CASA worker reported, in May of 2007, that E.A. was doing well in the group home, that he liked the staff members and got along well with his housemates. At the May 2, 2007, review hearing, the CASA worker recommended that E.A. be considered for foster care, but that the group home was a “good idea” “for now.”
The CASA worker reported that, in July of 2007, E.A. had asked to be moved from his group home because the staff and housemates picked on him. The CASA worker, along with various social workers, mother, and group home staff members met with E.A. to discuss with him that it was his own improper behavior that led to the problems in the home. E.A. was told that he would be moved to a foster care home when his behavior improved. By October of 2007, E.A.’s behavior improved, and four months later, in February of 2008, the CASA worker recommended that E.A. be returned to his mother. But by the time of the section 366.22 hearing on April 4, 2008, the CASA worker, who had earlier recommended that E.A. be returned to his mother, now recommended E.A. for long-term foster care due to additional information concerning mother’s failure to comply with her mental health treatment.
There is sufficient evidence in the record to find that the Department provided concurrent permanency planning for E.A.. The focus by the Department was to return E.A. to his mother. This appeared an acceptable goal because of the strong bond between E.A. and mother and E.A.’s age, which made him unlikely to be adopted. There is no indication in the record that E.A.’s father or any other relative expressed a desire to care for E.A. When first detained, E.A. had been placed in foster care. But E.A. and his siblings’ behavior, spurred on by mother’s erratic behavior, had required that E.A. be transferred to a group home. It was there that E.A.’s behavior improved and it appeared that he would be reunited with his mother. Because the Department thought E.A. would be returned to his mother, before it received additional information of her failure to comply with her mental health treatment, it cannot be faulted for failing to find foster care for E.A. in the short intervening months between E.A.’s improved behavior and the setting of the section 366.22 hearing.
B. Court-ordered telephone contact with siblings
E.A. contends that the dependency court erred when it did not ensure that he maintained his court-ordered telephone contact with his siblings. At the disposition hearing, the court ordered that E.A. have monthly 15-minute telephone visits with his siblings, to be supervised by the Department or its designee. E.A. was raised with his two older half siblings, who were placed with their father in Kentucky at disposition.
The CASA worker’s report prepared in anticipation of the six-month review hearing stated that E.A. reported speaking to his siblings by telephone at least one time. The social worker’s report prepared in anticipation of the 18-month review hearing stated that telephone visits were ordered between E.A. and his siblings, but that the social worker “had no information to report to the undersigned regarding sibling visits.”
On this record, we cannot determine whether E.A. did or did not have the court-ordered monthly telephone visits with his siblings. But E.A. was represented at all times by counsel and a CASA worker. Because no objection was made on this issue at any time during the many hearings, we find E.A. has forfeited his claim. (In re S.B. (2004) 32 Cal.4th 1287, 1292-1294.)
C. Court-ordered telephone contact with father
E.A. contends that the dependency court erred when it did not ensure that he maintained his court-ordered telephone contact with his father. At disposition, the dependency court ordered that E.A. have telephone contact with his father every other week for 15 minutes, to be paid for and supervised by the Department or its designee.
The social study prepared in anticipation of the 18-month review hearing stated that the previous social worker had been monitoring telephone visits between E.A. and his father but, due to the difficulty communicating in three-way calls out of the country, the social worker turned over monitoring of the calls to the group home. As of February of 2008, the current social worker had no further details on how the telephone visits had gone.
Again, on this record we cannot determine whether E.A. did or did not have the court-ordered twice monthly telephone visits with his father. But because E.A. was represented at all time by counsel and a CASA worker, we find E.A. has forfeited this claim. (In re S.B., supra, 32 Cal.4th at pp. 1292-1294.)
D. Court-ordered mental health treatment
In May of 2007, the dependency court ordered the Department to “notify the director of mental health that the child may be in need of specialized mental health treatment.” (Capitalization omitted.) E.A. contends he never received court-ordered mental health counseling. We disagree.
The record shows that, at a modification hearing in September of 2007, the dependency court held an “extensive” in-chambers conference about individual counseling for E.A. The social worker reported that E.A. was receiving individual counseling from a staff member of the group home. And the group home director reported that E.A. had had an assessment at Clinica Sierra Vista at the beginning of August, but that counseling had not begun as yet.
The CASA report dated October 31, 2007, stated that, in September of 2007, the worker had spoken to E.A.’s case manager at Clinica Sierra Vista who stated that E.A. was attending group sessions at his school. The case manager stated that E.A. was in need of individual counseling, but that the request at Clinica Sierra Vista had not yet been approved. Later, on October 5, 2007, the CASA worker was told that E.A. started attending counseling at Haven Counseling Center for anger management issues.
On this record, there is sufficient evidence to find that E.A. was receiving court-ordered mental health counseling.
E. Determination concerning sibling relationships
E.A. contends that the dependency court erred when it failed to consider and protect E.A.’s sibling relationships at any of the review hearings, in violation of section 366, subdivision (a)(1)(D). That section provides, in pertinent part, that, at every review hearing, the court shall determine, if the child has other siblings under the court’s jurisdiction, what the nature and relationship is between the child and his siblings, the appropriateness of developing or maintaining sibling relationships, and the impact of the sibling relationship on the child’s placement and planning for permanence. (§ 366, subd. (a)(1)(D).)
E.A. mistakenly refers to the section as section 366, subdivision (a)(1)(C).
But dependency as to E.A.’s two half siblings was terminated on January 31, 2007, when they were placed with their father. E.A.’s siblings were therefore not “under the court’s jurisdiction,” and the provision does not apply to E.A.’s situation.
3. Did the dependency court fail to make the necessary findings required by section 366.22?
E.A. argues that the dependency court erred in failing to make legislatively required findings, pursuant to section 366.22, subdivision (a). Specifically, he argues error arising from the court’s failure to (1) consider and state for the record in-state and out-of-state options for his permanent placement, (2) schedule a hearing under section 366.26 to determine his adoptability or make findings required by the statute, and (3) determine whether the Department made reasonable efforts to maintain his relationships with individuals important to him. We address each contention in turn.
A. Options for permanent placement
Section 366.22, subdivision (a) provides, in pertinent part, that if the child is not returned to a parent or legal guardian at the time of the 18-month review hearing, “the court shall consider, and state for the record, in-state and out-of-state options for the child’s permanent placement.” E.A. contends that the dependency court failed to comply with this mandate.
At the section 366.22 hearing, the dependency court found E.A.’s out-of-home placement appropriate and necessary. The court then ordered that:
“A planned permanent living arrangement is appropriate and is ordered as the permanent plan with a specific goal of either a less restrictive setting or emancipation to be achieved by the next court review date.”
The next hearing was scheduled for April 2, 2009.
We agree with E.A. that the court did not “state for the record, in-state and out-of-state options for the child’s permanent placement.” This provision was added to the statute effective January 1, 2008 (Stats. 2007, ch. 583, § 27.5), and it is very likely that the dependency court, which conducted the hearing on April 4, 2008, was not aware of the added requirement. Because the dependency court had a sua sponte duty under the statute, E.A. has not forfeited his right to appeal this issue. (In re A.C. (2008) 166 Cal.App.4th 146, 155.) Respondent does not contend otherwise.
B. Failure to schedule a section 366.26 hearing
E.A. argues that the dependency court failed to make the findings required by section 366.22, subdivision (a), when it refrained from scheduling a hearing under section 366.26 to determine whether adoption or long-term guardianship would be in his best interests. Section 366.22, subdivision (a), provides, in pertinent part:
“[I]f the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child. However, if the court finds by clear and convincing evidence, based on the evidence already presented to it, including a recommendation … by a licensed county adoption agency, that there is a compelling reason … for determining that a hearing held under Section 366.26 is not in the best interest of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship, then the court may, only under these circumstances, order that the child remain in foster care.” (Italics added.)
E.A. is correct that the court here did not make the finding requisite to dispense with a section 366.26 hearing. Neither does the court’s finding that E.A. is not adoptable provide an adequate substitute, for what the court said turned the burden of persuasion on its head: “There is not clear and convincing evidence the child is likely to be adopted.” We will remand for further proceedings as described, post.
C. Failure to determine important relationships
Finally, E.A. claims that the dependency court erred when it failed to determine whether the Department made reasonable efforts to maintain the relationships with individuals who were important to him, pursuant to section 366.22, subdivision (a). That section states, in pertinent part, that
“If the court orders that a child who is 10 years of age or older remain in long-term foster care, the court shall determine whether the agency has made reasonable efforts to maintain the child’s relationships with individuals other than the child’s siblings who are important to the child, consistent with the child’s best interests, and may make any appropriate order to ensure that those relationships are maintained.”
At the 18-month hearing, the dependency court acknowledged E.A. and mother’s strong relationship, and stated that contact between the two would be in E.A.’s best interests. The court ordered continued visitation between the two. But it did not specifically determine whether the Department had made reasonable efforts to maintain E.A.’s relationships with other individuals who were important to him, consistent with his best interests. Respondent concedes the issue, and we accept the concession. We will remand to the dependency court for further proceedings as described, post.
DISPOSITION
The dependency court’s orders terminating reunification services and denying return of E.A. to his mother’s custody are affirmed. The matter is remanded, however, for further proceedings pursuant to section 366.22, subdivision (a) as follows:
1. The court shall consider, and state for the record, in-state and out-of-state options for the child’s permanent placement;
2. The court shall either (a) order that a hearing be held pursuant to section 366.26, or (b) make the requisite finding, by clear and convincing evidence, that there is a compelling reason for determining that a section 366.26 hearing would not be in the child’s best interest because he is not a proper subject for adoption and has no one willing to accept legal guardianship;
3. If, after complying with these directions on remand, the dependency court again orders that E.A. remain in long-term foster care, it shall comply with the requirement of section 366.22 subdivision (a) that it determine whether the Department has made reasonable efforts to maintain E.A.’s relationships with individuals who are important to him and make appropriate orders to ensure that any such relationships are maintained.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.