Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK68802 Jacqueline Lewis, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant, F.C.; Nancy O. Flores, under appointment by the Court of Appeal, for Defendant and Appellant, Jose L.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.) the parents of a dependent minor child challenge a section 366.21, subdivision (f) 12-month review order whereby the trial court (1) terminated the mother’s reunification services, (2) continued the father’s reunification services, (3) continued the minor’s suitable placement in foster care, (4) continued a visitation order that permitted the parents to have weekend visitation with the minor child at their home so long as the father monitored the child’s interaction with the mother who is being treated for paranoid schizophrenia, and (5) denied the home of parent/family maintenance services order for the father that was recommended by the child protection social services agency. The home of parent order for the father was denied because the court determined that permitting the minor child to live in the family home when the mother is living there would compromise the safety of the minor.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Mother asserts it was an abuse of the trial court’s discretion to terminate her reunification services. Father asserts there is insufficient evidence to support the trial court’s finding that returning the minor to his care under a home of parent order would create a substantial risk of harm to the child. Our review of the appellate record convinces us that neither parent’s position is well taken. Therefore we will affirm the challenged order.
On December 19, 2008, four months after it made the order from which the parents have appealed, the dependency court placed the minor child in the father’s care. Based on that subsequent order, the social services agency filed a motion to dismiss the father’s appeal on the grounds it is moot. We denied the motion.
BACKGROUND OF THE CASE
1. Early Intervention by the Department and Subsequent Detention
Genesis C. (Genesis, born January 2007), is the minor child in this case. Her parents are F.C. (Mother) and Jose L. (Father). The case came to the attention of the Los Angeles Department of Children and Family Services (the Department) when it received notice from a clinic where Mother received mental health care services that Mother was not taking prescribed psychotropic medication for her diagnosed condition of paranoid schizophrenia. In January 2007 the parents agreed to Department oversight of the minor’s welfare through a Voluntary Family Maintenance Program (VFM), which included weekly in-home counseling.
During the several months of the VFM there was concern by the Department because Mother was having incidents of paranoia because she was not taking her medication on a daily basis as prescribed by her doctor. There was also concern that Father was not demonstrating an understanding that daily medication was required. Mother said Father told her to take the medication every other day. Moreover, Mother was missing mental health service appointments. On June 12, 2007, Mother’s therapist contacted the Department social worker and related that Mother had called her and reported that she (Mother) believed Father is an assassin, that Father was listening to a song about a garden, and that Mother believed Father may have buried women in a garden. Mother believed Father was going to strangle her.
Genesis was removed from her parents’ care on June 13, 2007, and placed in a foster home, and a section 300 petition was filed on her behalf. The petition makes a section 300, subdivision (b) allegation that the minor is placed at risk of harm by Mother’s diagnosed paranoid schizophrenia condition, Mother’s inconsistent medication and participation in mental health services, Father’s not demonstrating that he understands Mother’s condition and medication needs, and his being away from the home for hours at a time because of his employment. At the June 18, 2007 detention hearing the court detained the minor and ordered monitored visits for Mother and unmonitored for Father.
2. Adjudication of the Section 300 Petition
The Department’s report for a July 2007 pretrial resolution conference states there were multiple team decision meetings (TDMs) for this case covering the same concerns—Mother was not taking her medication as prescribed by her psychiatrist despite the fact that the parents have been repeatedly told how the medication should be taken, and Father was not helping Mother to take it properly. Also, during the times there has been a change in Mother’s behavior, Father did not take the initiative to take Mother to a professional or call a professional for help, call the social worker, or ask the in-home counselor to come to the home more than once a week, which put both Mother and Genesis at risk. At a TDM in July 2007, Mother and Father admitted that Mother started taking her medication on the day of the detention hearing, June 18, 2007. Thus, Father allowed Mother to care for the minor despite her unmedicated condition and her resulting symptoms. During a visit with her psychiatrist, whom she began seeing in November 2006, Mother refused bi-weekly injections which would have replaced her having to take medication daily. Because Mother was not consistent with taking her medication, it was difficult for the psychiatrist to know what dosage would work best. The psychiatrist opined that reduction of Mother’s psychotic symptoms is the first step in the process of returning Genesis to her care.
The Department report for an August 2007 hearing states the social worker was in contact with Mother’s individual counselor and with the case manager from the clinic where Mother receives psychiatric care, and the clinic staff was concerned about bizarre behavior that Mother exhibited in July 2007, and concerned about Father’s reaction to it. The clinic reported Mother was being extremely delusional and obsessed with her delusions. She called the clinic, stated she was concerned about Mel Gibson, and asked if he had died and if he was a nice person. She called the clinic because she was concerned that Jennifer Lopez had died. Also, the significant other of Genesis’s maternal uncle reported that Mother called the maternal uncle to tell him she was hearing voices. A pregnancy test revealed Mother was not pregnant, but Mother was concerned that she was pregnant because she felt something moving inside of her.
A PET was called to check on her on July 24, 2007, but she was not taken to a hospital. The following day Mother and her psychiatrist came to an agreement on how to help her take her medication. She was to come to the clinic each day by 9:30 in the morning and take a new medication in front of a nurse, and she was also to bring to the clinic the old medication pills she had at home. The next day she came to the clinic at noon, and the day after that she asked to be transferred to another clinic. The paperwork was done for the transfer, but then Mother changed her mind. She missed her appointment with her psychiatrist on July 30, 2007, and the following day the clinic sent a taxi to her home to pick her up. Although Father was told on two different occasions to take Mother to the hospital when she exhibits bizarre behavior, he did not do that but rather minimized Mother’s behavior and stated she says things like that all the time. The concern was that Mother’s illness was not getting better and Father was not supportive of Mother’s situation because he did not take her to a hospital where she could have more professional help than the clinic could provide. The social worker recommended an Evidence Code section 730 evaluation of Mother.
The dependency petition was adjudicated and sustained on August 2, 2007. The court ordered the section 730 evaluation with clinical psychologist, Dr. Timothy Collister.
Although the reporter’s transcript and the minute order for the August 2, 2007 hearing states that the sole count in the petition was amended by interlineations, the copy of the section 300 petition in the clerk’s transcript is not amended.
3. Dr. Collister’s Report
Dr. Collister interviewed Father, Mother and Genesis. He stated in his written report for the court that it did not appear that Mother had a history of “frank auditory hallucinations with command aspects,” nor “that there has ever been significant acting out or disinhibited expressions of anger and aggressiveness towards others. However, he noted that he had not reviewed Mother’s medical records from her treating clinic, Pacific Clinics, nor from her three hospitalizations for psychotic breaks. Noting Mother’s “most recent psychotic material” (believing Father might be an assassin who had buried people in a garden and might kill her and might be having an affair with an in-home counselor, which he described as “paranoid in nature”; and wondering about Mel Gibson and Jennifer Lopez, which he described as “disorganized ideation”), he stated “there may be a history of more severe psychiatric decompensation previously,” which “remains unconfirmed, but possible.” However, he stated these more recent decompensation episodes were “still quite seriuos [sic].” He noted that Mother’s presentation during the interview suggested there may be “continued internal processing with continued active psychotic material,” and Mother’s difficulty with the dependency court could cause stress and aggravate her symptoms.
He also found Mother to have “significant difficulty with intellectual function,” such that her level of intellectual function “is essentially commensurate with a person with mild mental retardation,” which he attributed primarily to a combination of her psychiatric disturbance which he concluded began when she was 17 years old, and the effects of medication. He concluded there were “two areas of deficit of concern to the Court. First, there is the area of the psychotic processing, and her inability to care for her child because of her psychiatric disturbance with schizophrenia, and then cognitive limitations, essentially functioning in the mild range of retardation.” Regarding Genesis, Dr. Collister found no concerns with her. He opined that Mother was strongly bonded to Genesis and has substantial love and concern for the child, and Genesis appeared comfortable with Mother and developing significant bonds with her.
Dr. Collister strongly recommended that both parents participate at Prototypes through the I-CAN Program in the city where they live. He described the I-CAN program as a “progressive organization for delivering mental health services to the chronically mentally ill,” which he believed “might perhaps be a more intense and informed focus, with services perhaps better suited to [Mother] and her husband.” He stated that given Mother’s level of intellectual function, her significant paranoid schizophrenia, and the likelihood that there will be a continuation of “at least mild active psychotic phenomena, or clear tendencies for that,” she should enter into an aggressive treatment at Prototypes, such as their day treatment program, and very close psychiatric follow-up would also be beneficial, as well as individual therapy. He stated the clinical profile recommends that initially the focus of Mother’s treatment be on “current problems toward improved reality testing and better discrimination both of her own reactions and of the intentions of others.... The profile also emphasizes the importance of strong supports to help her to[] continue meeting routine responsibilities along with the development of positive side interests to compensate for day-to-day frustrations.”
Dr. Collister had reference to Prototypes Centers for Innovation in Health, Mental Health, and Social Services, and its Inter-Community Alternative Network (I CAN).
Dr. Collister opined that it may be important for the parents to understand and accept Mother receiving her medication by injection because Mother stated during her evaluation with Dr. Collister that in order to better care for Genesis she did not take her medication because it made her sleepy and tired. Alternatively, she could take the medication daily at the clinic, but in any event her receiving the medication daily should be assured because her not taking the medication would explain her “psychiatric deterioration which has occurred recently.” He stated it is important that her treatment should be with professionals who are fluent in Spanish because she is much more comfortable interacting in that language, and that Father should have an interpreter or professionals who speak Spanish.
As for Father, Dr. Collister opined that whereas he does not have issues himself that require therapy he needs more education to enhance his understanding of Mother’s mental health needs and the positive and negative effects of medication, and to learn the markers for significant psychiatric deterioration. Dr. Collister also recommended that Father be required to participate in 12-week education classes and in family support groups through the National Alliance on Mental Illness (NAMI), to obtain information for that point in time when Genesis is returned to his care. Dr. Collister stated that if Father aggressively pursues this education and participation in family support groups, it would be appropriate to consider increasing his unmonitored visitation with Genesis on weekends and allowing him to monitor visits between Mother and the child on those extended weekend visits, which would enhance the bonding between Genesis and her parents.
The social worker testified at the disposition hearing that the purpose of having Father attend the NAMI program was to provide him with a better understanding of Mother’s mental illness and symptoms he should look for. Also, the program is a support group for people who live with people who have a mental illness.
Dr. Collister recommended that reunification between parents and Genesis should be considered when Mother’s participation in therapy and medication compliance have progressed without signs of behavior difficulties towards others and no further signs of decompensation. At that point, Genesis should be placed in daycare during the day with Father monitoring her at other times and designated monitors to take his place when he is not able to monitor the minor.
Dr. Collister made a point of saying that his recommendations were based on the information he had about Mother, including the fact that she had not shown inappropriate behavior towards others even when she has been acutely decompensated with severe visual hallucinations and acute delusional material that are consistent with active schizophrenia. But he cautioned that he had not had the opportunity to review Mother’s records from her treating psychiatrists at the clinic and from the places where she has been hospitalized, and that Mother’s treating professionals should monitor her progress on a daily basis.
4. Disposition
According to reports from the Department submitted for the November 2007 disposition hearing, Mother was reported to be attending Prototypes and receiving individual counseling and psychiatric services. Father was given referrals for the NAMI program. Testimony was taken from Father and from the social worker at that hearing. The social worker testified there was concern that Father was not reacting appropriately at the times when Mother was exhibiting strange behavior. He was not reporting the behavior to Mother’s psychiatrist, therapist, or the social worker. Instead, the Department would receive reports about Mother’s behavior from the in-home counselor, who was at the parents’ home once a week. Asked whether Father’s plan of having the minor in daycare while he is at work is appropriate, the social worker stated the plan did not address the fact that the minor is pre-verbal and so cannot tell the social worker what is occurring at home, including the parents’ behavior. She stated that with babies the risk level is very high.
The social worker stated the parents were referred to parenting classes when the minor was detained, and parenting classes would help Father understand what actions he needs to take to protect Genesis and attend to her needs. She talked to him about attending parenting classes and tried to give him referrals for infant parenting programs but he refused them, saying the court had not ordered attendance in an infant parenting program and so there was no point in starting a program that he may not be ordered by the court to attend. The social worker stated that the in-home counseling that was previously in place for the family offered instruction in how to care for an infant but the in-home counselors told the social worker that there was not much participation by father in that instruction. The social worker offered Father videos in the Spanish language and he told her that he and Mother already have them. She counseled him that he and Mother need to watch them, and Father replied that it was Mother that needed to watch them. The social worker told Father that he is a parent too. The social worker’s concern about permitting Father to monitor Mother’s visits was that he would not actually monitor her and would let her do as she pleases.
Father testified he understands Mother is chronically mentally ill, and he monitors her psychiatric care and medication and takes her to her counseling sessions. He stated he understands that Mother may not be able to be the child’s primary caregiver if the child returns home, and he added that prior to the minor’s removal from the family home he was always responsible for the child after he returned home from work. Since March of 2007 he had not seen Mother behave in any way that he thought would be detrimental to Genesis. Asked if he had enrolled in parenting classes, he gave a nonresponsive answer, but when pressed for a responsive one, he stated he “need[ed] for the judge to tell [him] that it will be okay for [him] to start the classes and then [he] will.” He acknowledged that the social worker told him about parenting classes. Asked if he had enrolled in NAMI, he stated he “ha[s] an appointment tomorrow.” He stated he was willing to take any class that he is ordered to take or that is recommended to him so that he can have Genesis returned to him, and he would cooperate with in-home services if the child were returned home.
The court declared Genesis a dependent child, placed custody under the Department’s supervision, and ordered suitable placement in foster care. The court noted that the Department had been involved with the family “just short of a year,” and the court opined it was unfortunate that Father had not been more willing to participate and cooperate because if he had, “we would be in a very different situation almost a year into Genesis’s life.” The court found substantial risk to Genesis in, among other things, (1) Father’s assertions to Dr. Collister that he knows Mother is not dangerous and would not harm Genesis; (2) Father’s failure to make sure the child was safe while in the parents’ care; (3) Father’s not taking Mother’s mental health seriously; and (4) Father’s refusal for a year to participate in services. It found the parents had made minimal progress in alleviating or mitigating the causes that necessitate placement of the minor.
The court ordered a case plan for Mother consisting of individual counseling with a licensed psychologist to address case issues; participation in a day treatment program to address her mental illness issues as recommended “in detail in Dr. Collister’s report”; attendance at her psychiatric sessions as often as required; and taking medication as prescribed. The court indicated the social worker should look into what programs have day treatment and confer with Dr. Collister. Father’s court ordered case plan consisted of parenting classes that address the needs of infants, and participation in NAMI classes and support groups. The court opined that a hands-on parenting program would be best for Father, and it would be good if the program would accept Mother as well, “given her issues.” The court directed the Department to facilitate “a chance for [the parents and Genesis] to be in a program together, parenting program, or Gymboree or something like that.” Father’s visits continued to be unmonitored and Mother’s monitored, with Father not to be Mother’s monitor.
5. Six-Month Review
The Department’s report for the February 2008 section 366.21, subdivision (e) six-month review hearing states the parents met with the social worker in January 2008 and indicated they were interested in learning how to reunify with the child. They indicated that the prior social worker required them to take their court ordered programs in Spanish, but their schedules and the distance between their home and the location of the Spanish speaking NAMI group did not enable them to do that. The new social worker advised them they could take the English speaking programs so long as they could comprehend in English and read the English materials. Father indicated a NAMI group in the area where the parents live was scheduled to begin on March 10. The social worker referred the parents to a particular parenting class and as of January 30, 2008, they were attending the class and participating. Because Father indicated the class was geared to older children, the class leader indicated he would direct the parents to the consulting pediatrician for education appropriate for parents with toddlers. Mother was attending counseling at Prototypes but could not remember her therapist’s name. Father stated that Mother’s dosage of anti-psychotic medication had been increased and the parents stated that caused Mother’s symptoms to disappear. The social worker made three visits to the parents’ home and found it to be neat and clean, and Mother to be rational and not delusional. The social worker was introduced to the person who has been the parents’ longtime roommate and who has a teenage son, and to the parents’ neighbor who has two young children. The roommate stated she would look in on Mother when Genesis is returned to the parents’ care and the neighbor stated a willingness to stay at the parents’ home during the day when the minor is returned.
Mother began individual therapy with a Prototypes I-CAN therapist in August 2007 and had met with the therapist weekly since then. The therapist was of the belief, based on Mother’s behavior, that Mother had been medication compliant since October 2007. A written report from the therapist states that because of her past experience with therapy, Mother was initially reluctant to engage in therapy without Father being present, but since late November 2007 Mother was receiving therapy without Father’s company. Mother indicated she was trying to work hard to bring Genesis back to her home, and she was addressing issues related to maintaining medication compliance and a daily productive routine. However, the therapist spoke with the social worker in January 2008 and told her that Mother refused to attend the day treatment program ordered by the court to provide her with support and aid her in maintaining compliance with her medication.
The social worker opined that the parents are emotionally bonded to Genesis, they have been compliant with court orders “to the extent of their understanding,” and it would be safe for the minor to be in the parents’ home for weekend overnight visits because Father would be present to assist Mother with child care and the roommate and neighbor were willing to provide support. The social worker noted Father’s belief that the minor would be safe at the parents’ home during the week if Father hired day care for the minor. The social worker suggested that after weekend visitation can be assessed, a slow progression towards reunification should occur. The social worker indicated the parents were “essentially compliant” and “very cooperative, even if they have some limitations understanding what is required of them.” The social worker recommended that the court order the parents to complete parenting classes, order Mother to continue in weekly individual counseling and enroll in adult day treatment program at Prototypes, and liberalize visitation at the discretion of the Department to overnight weekend visits.
At the February 2008, six-month review hearing, the court ordered the Department to provide Mother with bus passes or transportation funds to enable Mother to attend a day treatment program, and ordered the parents to participate in all services previously ordered. The court liberalized Mother’s visits to allow Father to monitor them and ordered the parents could have weekend visits with Genesis at their home.
6. 12-Month Review
The 12-month review hearing was held on August 15, 2008. Since the six-month review hearing, the parents had been visiting the minor one evening a week and having visits with her in their home on Friday evening through Sunday evening. The social worker made three unannounced visits to the family home on weekends and found no problems there. Additionally, the social worker and supervising social worker visited the home to certify its safety in anticipation that the minor could be returned to the home at the 12-month review hearing.
The parents completed the weekly parenting classes that Father was ordered to take. The person who conducted the classes told the social worker the parents were cooperative, but Mother often seemed to be daydreaming in class and he was not certain how much information she was able to grasp. The social worker opined that due to Mother’s diagnoses of mild mental retardation and paranoid schizophrenia, she cannot follow through on all court orders but she makes sincere attempts to do so. Father demonstrated that he learned the substantive information provided in the parenting classes. Father also completed the 12-week NAMI classes, and thus he completed his case plan. The Department’s report states Father learned a great deal in the NAMI classes about what it means to be a family member of someone diagnosed as paranoid schizophrenic, including that the illness is typically progressive and continued decompensation may be expected. However, Father remained devoted to Mother.
In a July 24, 2008 letter to the social worker, Mother’s therapist reported that the Prototypes day treatment program was no longer an official program of the Department of Mental Health and, although Mother made an attempt to participate in Prototype day treatment groups, she was not appropriate in the program’s group sessions because of a language barrier and she was not comfortable with interacting with others in a group setting. Although Mother was not receptive to participating in groups outside of Prototypes, the therapist suggested that Mother be referred back to Pacific Clinics, where she had previously received treatment, to perhaps enroll in its day treatment program, and she was also referred to other agencies where she could participate in groups that were appropriate. The Department social worker repeatedly spoke with Mother and referred her to Pacific Clinics but Mother did not appear to grasp the referrals even though the social worker would remind her that day treatment was ordered by the court.
The therapist also reported that Mother’s attendance at individual therapy became inconsistent in July 2008 when she was making attempts to go to therapy on her own. Additionally, Mother “ha[d] not been able to do any type of process work since March 2008 due to her lack of insight, having difficulty controlling her delusions, and wanting to have short sessions which last no more than 30 minutes.” The therapist stated Mother would continue to receive weekly individual therapy at Prototypes and her medication services there.
The social worker’s report states that Mother was placed on a section 5150 72 hour hold at a Pasadena hospital and her medication was changed. Her response to medication was poor and her psychiatrist repeatedly told Father to give the medication more time to build up in her blood stream. Her main side effect to the medication was sleepiness and so she was not able to care for Genesis on the weekend visits. The Department’s report states Father was aware that he could not leave the minor in Mother’s care for even a few minutes. The person in charge of the child care facility which Father indicated he would utilize for Genesis if the court returned the child to his care confirmed that her facility would provide daycare for Genesis and she understood that Mother’s mental illness made her not able to provide care for the minor.
The social worker recommended that the court termination reunification services for both parents, order that Genesis reside in the sole care and custody of Father under a home of parent order for Father and receive family maintenance services, but that the court permit Mother to reside with Father and Genesis, and order that the minor not ever be left alone in Mother’s care. At the August 15, 2008 12-month review hearing, the attorneys for the Department, Genesis and Father submitted on the basis of the three reports submitted by the Department for the hearing.
Mother’s attorney indicated to the court that Mother was in agreement with the Department’s recommendation. The attorney argued Mother has no history of violent delusions, there is no nexus between Mother’s mental illness and the safety of Genesis, Father is aware that Mother is not to be left alone with the minor, and Mother is willing to testify she is never alone with Genesis and knows she is not supposed to be alone with her. The attorney stated Mother was willing to have someone live in the family home to be there at those times when Father is preoccupied. The attorney argued that the section 730 evaluation of Mother showed that it does not appear that Mother has a history of “significant physical acting out or disinhibited expressions of anger or aggressiveness towards others” even at “points of gross psychiatric deterioration,” and further showed that Mother is strongly bonded to Genesis and concerned about the minor’s care, and Genesis is comfortable with Mother and developing significant bonds. Further, the attorney argued, Mother has worked diligently on her case plan, attending individual and group therapy, and although the therapist stated Mother was having difficulty controlling her delusions, Mother’s delusions have not been such as to pose a danger to the minor, especially if there is an adult besides Father in the home.
The court found that the arrangement recommended by the Department of a home of parent order for Father and permitting Mother to live with him and Genesis under an order that she never be left alone with Genesis, was not feasible because during those periods of time when Father is at the home, there will be times when he is not available to monitor the child. The court stated: “The reality is that [Father] will need to take showers. He will need to use the restroom. For this child to be safe, someone would need to be following the mother around from room to room 24 hours a day to make sure that she’s not alone with Genesis. That is fundamentally incompatible. It just can’t be done.” The court acknowledged Father’s loyalty to Mother and desire to care for her, however the court stated that “at this point the child being in the same home with the mother is not a safe situation and father is going to need to make a decision in regards to how he wants to handle that.” The court cited “In re David P.,” apparently referring to Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692.
In Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 145 Cal.App.4th 692, the court found that permitting a parent who had sexually abused a child to reside with the child and the other parent, and have his contacts with the child monitored by the other parent or some other responsible adult, was not acceptable if the dependency court determined that contacts between the offending parent and the child must be monitored at all times. That court observed that there would necessarily be periods when the monitor would be unavailable to be with the child, such as when the monitor was sleeping or using the bathroom. The court stated it was not prepared to say it would never be appropriate for an offending parent to live with his or her child under an order that all contacts between such parent and child remain monitored, but “when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact.” (Id. at p. 699.) Regarding the possibility that in some cases an offending parent could be permitted to reside with a child under a monitored contact arrangement, the court observed that an earlier case, In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376, recognized that “ ‘[v]isitation arrangements demand flexibility to maintain and improve the ties between a parent or guardian and child while, at the same time, protect the child’s well-being.’ ” (Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 145 Cal.App.4th at p. 699.)
The court found that although Mother had participated in reunification services during the six months prior to the hearing, she had made no progress in her mental health issues and therefore she had made no progress in alleviating or mitigating the causes that necessitated suitable placement of the minor, and “failure to participate and make substantive progress in court-ordered treatment constitutes prima facie evidence that return would be detrimental.” Her reunification services were terminated.
Regarding Father, the court found he complied with his case plan, he made significant progress, the Department should continue to provide him with reunification services and he should continue to participate in those services. However, the court stated the suitable placement order must remain in full force and effect because the issue continued to be that Father resides with Mother and Mother continued to be as much of a risk to the child as she was at the time of the disposition hearing when the suitable placement order was made.
Regarding visitation, the court observed that its current visitation order was that Mother’s visits were unmonitored “because father was basically monitoring Mother.” The court amended that visitation order by stating that if Mother were to cease living in the family home, her visits would have to be monitored if she were outside of Father’s presence. Father and Mother filed timely appeals from the order.
CONTENTIONS ON APPEAL
Mother contends the dependency court abused its discretion when it terminated her reunification services. Father contends there is insufficient evidence to support the trial court’s rejection of the home of parent order for him that the Department recommended.
DISCUSSION
1. Termination of Mother’s Reunification Services
Section 366.21, subdivision (g), provides that when a child is not returned to the custody of a parent at the 12-month review hearing, the court has three options. The court can continue the case to an 18-month hearing and provide the parent with additional reunification services. The court may do that if it finds a substantial probability that the minor can be returned to the physical custody of the parent and be safely maintained in the parent’s care within that additional period of time. The court must also find that the parent has consistently contacted and visited the minor, has made significant progress in resolving problems that led to the removal of the child from the parent’s care, and has demonstrated he or she has the capacity and ability to complete the court’s reunification plan and provide for the child’s physical and emotional well being. Alternatively, the court can set a section 366.26 hearing, or the court can order that the child remain in long-term foster care.
In the instant case, the court continued Father’s reunification services and set an 18-month hearing. The court terminated Mother’s reunification services, but it was not required to do so. At the 12-month review hearing, if the court continues reunification services for one parent, then with respect to a nonreunifying parent, such as Mother in this case, it can continue reunification services for that parent or terminate them. (In re Alanna A. (2005) 135 Cal.App.4th 555, 558-559, 564-566) The Alanna A. court stated that when a child is likely to have continued contact with the nonreunifying parent, further reunification services for that parent may be in the minor’s best interests. (Id. at p. 565.) The court also observed that in some cases, the best interests of the child would necessitate continuation of reunification services to a nonreunifying parent, and termination of the services would constitute an abuse of discretion. (Id at p. 565, fn. 11.) In Alanna A., the court did not find an abuse of discretion in the denial of continued services to the father in that case. It noted that although the trial court observed “that in most circumstances it would have continued services to the other parent even when reunification with only one parent was realistic,” the trial court “reasonably concluded that [the father’s] performance did not merit continued reunification services.” (Id. at p. 565.)
Here, the court determined at the 12-month review hearing that Mother had not made progress in addressing the cause of dependency even though she participated in services, and had not demonstrated an ability to complete her case plan. Our review of the record shows that Mother maintained her individual counseling during the time she received reunification services, but Mother’s therapist reported that since the six-month review hearing, the therapy sessions were not as successful as they had been. Additionally, Mother had been placed on a section 5150 hold during the period between the six-month and 12-month review hearings. Further, it did not appear that she would be able to successfully engage in and complete another component of her case plan—the day treatment program. That program was something that Dr. Collister strongly recommended for her. Given these facts, we cannot say the court abused its discretion by terminating Mother’s reunification services.
2. Rejection of the Department’s Home of Parent Recommendation
a. Statutory Mandates
Section 366.21, subdivision (f) provides that at the 12-month review hearing “[t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.... The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker’s report and recommendations..., shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided, and shall make appropriate findings.... ”
A dependency court’s decision at a review hearing on the question whether it would be detrimental to return a child to his or her parent’s care is reviewed under the substantial evidence test. (In re Alvin R. (2003) 108 Cal.App.4th 962, 965, 974.) The reviewing court’s task is to “ ‘determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact.’ ” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) Conflicts in the evidence and in reasonable inferences drawn from the evidence are resolved in favor of affirming the challenged order and credibility of witnesses is a matter for the trier of fact. (Ibid.) “ ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ” (Id. at p. 1394.)
b. The Trial Court’s Findings and Analysis
The Department’s report for the 12-month review shows that Father made significant progress in the time between the six-month and 12-month review hearings. He completed his case plan. He demonstrated that he learned the substantive information provided in his parenting class, and learned a great deal about what it means to have a family member who is a paranoid schizophrenic. Further, he understood that he could not leave Genesis in Mother’s care for even a short period of time, and he successfully had weekend visits with the minor. The Department’s recommendation was that Genesis should be placed in Father’s care under a home of parent order with family maintenance services, and the record shows that the minor’s attorney did not raise an objection to that recommendation. Thus, the question arises whether substantial evidence supports the court’s determination that the home of parent order proposed by the Department would be detrimental to Genesis.
At the 12-month hearing the court stated on the record its reasons for not following the Department’s recommendation of a home of parent order for Father. The court found that Mother had not made substantial progress in mental health care, and that at the time of the review hearing Mother was as much a risk to the well-being of minor as she was when the court made its disposition order. From that finding about Mother’s mental health, the court reasoned that not only would return of the child to Mother’s care be detrimental to the minor, but because the recommended home of parent plan for Father included Mother continuing to live with Father, the plan to place Genesis in the family home with Mother living there would also put the minor at risk. The court stated that even though the child would be in day care when Father was at work, Father would not be able to be awake and be in the minor’s presence to monitor her at all times that he was home with the child. The court concluded that given such a situation, Father would have to make a decision on what to do about that, but in the meantime, Genesis would remain in foster care. On appeal, Father disputes the court’s determination that there exists a nexus between Mother’s mental health and behavior, Father’s ability to deal with it, and a risk to the minor from it.
c. Case Law on Parents With Mental Health Issues
In In re Jamie M. (1982) 134 Cal.App.3d 530 (Jamie M.), a mother who is a diagnosed schizophrenic successfully challenged a disposition order that removed her two children from her care. After considering the appellate record, the Jamie M. court found the order was not supported by substantial evidence. The mother’s illness was managed by medication but when she went off of her medication her behavior prompted intervention by the police, a child services agency, and the dependency court. After the jurisdiction hearing at which the court found cause to take jurisdiction over the children, the mother in Jamie M. returned to her medication program.
The Jamie M. court stated that the evidence before the trial court at the disposition hearing was as follows. The mother’s chronic schizophrenic illness would manifest itself in the form of paranoid delusions; drug therapy was very effective in controlling her illness; the mother’s delusions that prompted the intervention by the police, the child services agency and the court were the result of her failure to maintain her drug therapy; she had been hospitalized for her illness on two occasions prior to the jurisdiction hearing, and she was again hospitalized in the period between the jurisdiction and disposition hearing; the latter two hospitalizations were voluntary and lasted no more than one or two months, and the first hospitalization occurred 13 years prior to the dependency case; her children were healthy and she had never mistreated them; and at the time of the disposition hearing she was rational and coherent and under outpatient psychiatric care and drug therapy. (In re Jamie M., supra, 134 Cal.App.3d at p. 537.)
From this evidence, the social worker in Jamie M. drew the conclusion that the mother was not responsible enough and not emotionally capable of providing her children with an appropriate home environment, and the reviewing court stated that the dependency court apparently based its disposition removal order on that conclusion. The reviewing court observed that because there was no evidence showing how the mother’s illness would adversely affect her children, the “basic premise” of the trial court’s disposition order was that a schizophrenic parent is per se detrimental to a child. Citing various studies and reports on schizophrenia, the court observed that drug therapy usually results in improvement for schizophrenics but it is not necessarily successful, and when the therapy does lead to improvement in the patient such that he or she can go to an outpatient status, a significant number of such patients are later rehospitalized for various reasons, sometimes because drug therapy is not maintained. The court noted that in one study, one-third of the subjects needed hospitalization after two years of drug therapy. (Jamie M., supra, 134 Cal.App.3d at pp. 537-540.)
The Jamie M. court stated that the appellant mother’s diagnosis of schizophrenia did not indicate the cause of her illness nor its severity, and the diagnosis said little about her behavior and its effect on her children, and thus it was only a starting point for the dependency court and the court must make an in-depth examination of the mother’s psychiatric history, present condition, and her response to drug therapy, with a focus on the effect her behavior has and will have on her children. “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.” (Jamie M., supra, 134 Cal.App.3d at pp. 540-541; accord Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067 (mother diagnosed as bipolar with schizo-affective disorder); and In re Heather P. (1988) 203 Cal.App.3d 1214, disapproved on another point in In re Richard S. (1991) 54 Cal.3d 857, 866, fn. 5, (mother diagnosed as a paranoid schizophrenic).)
Our review of the record in the instant case convinces us that the evidence is sufficient to support the trial court’s determination that returning Genesis to Father’s care under a home of parent (Father) order was not appropriate at the 12-month review hearing even though the social worker had recommended such an order and the attorney for Genesis did not object to that plan. First, there is Dr. Collister’s report on his interview of Father, Mother and Genesis. He stated in his written report for the court that it did not appear that Mother had a history of “frank auditory hallucinations with command aspects,” nor “that there has ever been significant acting out or disinhibited expressions of anger and aggressiveness towards others. However, he noted he could not say for sure because he had not reviewed Mother’s medical records from her treating clinic, Pacific Clinics, nor from her three hospitalizations for psychotic breaks, and he stated “there may be a history of more severe psychiatric decompensation” than what she exhibited after the Department became involved with her. Moreover, he stated these more recent decompensation episodes were still quite serious and Mother’s difficulty with the dependency court could cause stress and aggravate her symptoms. He recommended that her treating professionals monitor her progress on a daily basis.
Dr. Collister also found Mother to have “significant difficulty with intellectual function,” such that her level of intellectual function “is essentially commensurate with a person with mild mental retardation,” which he attributed primarily to a combination of her psychiatric disturbance and the effects of medication. He concluded there were “two areas of deficit of concern to the Court. First, there is the area of the psychotic processing, and her inability to care for her child because of her psychiatric disturbance with schizophrenia, and then cognitive limitations, essentially functioning in the mild range of retardation.”
Dr. Collister strongly recommended that given Mother’s level of intellectual function, her significant paranoid schizophrenia, and the likelihood that there will be a continuation of “at least mild active psychotic phenomena, or clear tendencies for that,” she should enter into an aggressive treatment at Prototypes, such as their day treatment program, and very close psychiatric follow-up would also be beneficial, as well as individual therapy. Dr. Collister noted that Mother told him that in order to better care for Genesis she did not take her medication because it made her sleepy and tired. However he stated she should continue to take her medication because her not taking it explained her recent “psychiatric deterioration.” He recommended that reunification between parents and Genesis should be considered when Mother’s participation in therapy and medication compliance have progressed without signs of behavior difficulties towards others and no further signs of decompensation. At that point, Genesis should be placed in daycare during the day with Father monitoring her at other times and designated monitors to take his place when he is not able to monitor the minor. Similarly, Mother’s psychiatrist opined that the first step in the process of returning Genesis to the family home would be a reduction of Mother’s psychotic symptoms.
The record shows that in between the February 2008 six-month review hearing, when the trial court ordered weekend visits between Genesis and her parents, and the August 2008 12-month review hearing, Mother progress slipped. Her long time therapist reported that since March 2008 she had not been able to do “any type of process work... due to her lack of insight, having difficulty controlling her delusions, and wanting to have short sessions which last no more than 30 minutes.” (Italics added.) Further, she was placed on a section 5150 hold at a hospital, and she was having a poor response to her medication. That status was exactly the opposite from what Dr. Collister believed would warrant reunification of Genesis and her parents. Therefore, it should make no difference whether the Department’s recommended home of parent order was only for Father or for both of the parents since Mother was going to be living in the family home.
We note that in Jamie M., supra, 134 Cal.App.3d 530, 537, and Kimberly R. v. Superior Court, supra, 96 Cal.App.4th 1067, 1079, the appellant parents were under psychiatric and/or psychological care, compliant with their medication therapy, and not having mental problems at the time the dependency courts made the challenged orders, and in In re Heather P., supra, 203 Cal.App.3d 1214, 1229, the social worker had not obtained a current status on the appellant mother for the hearing that produced the challenged order. Thus, those cases are factually different from this case. Also, the Department’s report for the 12-month review hearing states that Father, having learned a great deal about what it means to have a family member who is a paranoid schizophrenic, understands that he cannot leave Genesis in Mother’s care for even a short period of time. Nevertheless, Father argues that the Department never demonstrated a nexus between Mother’s mental illness and a risk of harm to Genesis. We disagree. Mother’s therapist reported Mother was having a difficult time controlling her delusions. Reasonable inferences can be drawn that if Mother was not compliant with her medication regimen or the medication was not working sufficiently well such that she was not able to control her delusions, a likely result is that the delusions will occupy her attention and perhaps prevent her from devoting necessary attention to Genesis when Father is not available to look after the minor, or cause her to devote inappropriate attention, thus placing the minor at risk. Alternatively, if the effect of the medication is that Mother is too sleepy or drowsy to attend to the minor when Father is not available, again Genesis is at risk.
Father argues that the trial court has already determined that “the parents were fully capable of caring for Genesis, unmonitored, full-time Friday through Sunday by the six-month hearing [and n]ot once during six months of unmonitored visitation did any issue arise regarding Genesis’s safety.” (Italics added.) We disagree with that factual presentation. At the six-month review hearing, the court stated Genesis could spend the weekend at the parents’ home and Father could monitor Mother during the visits. As for whether safety issues arose during the period in between the two review hearings, Father’s acknowledgement that he could not leave the minor alone with Mother is an indication of a safety issue. At the time of the 12-month review, Genesis was 19 months old. The attention needed to keep a toddler safe is far different from that needed to care for an infant who essentially lets a parent know something is amiss by crying in his or her crib.
Father argues it was a contradiction for the trial court to continue the minor’s weekend visits at the parents’ home while at the same time asserting that Father is not capable of monitoring Genesis all the time if she is returned to the home under a home of parent order. However, we observe that courts often permit trial weekend visitations before they permit children to return to the parent’s home either under a home of parent order or a reunification with termination of court jurisdiction. Logically, it is less of a risk to a child to be at the family home for 48 hours over a weekend than it is to be there “24/7.” Father also argues that the trial court never told him he would have to maintain a residence separate from Mother in order to have Genesis returned to his care. However, Mother’s “slipping” mental health occurred after the six-month hearing when the court granted weekend visitation.
DISPOSITION
The order from which the parents have appealed is affirmed.
We Concur: KLEIN, P. J., ALDRICH, J.