Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 510362, Linda A. McFadden, Judge.
Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Alice E. Mimms, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, A.P.J., Levy, J., and Cornell, J.
L.D. appeals from an order terminating reunification services as to his adolescent daughter, J.D. The juvenile court reached its decision by both granting a modification petition, brought by respondent Stanislaus County Community Services Agency (agency), and conducting a 12-month status review hearing of J.D.’s dependency. (Welf. & Inst. Code, §§ 388 & 366.21, subd. (f).) Appellant contends the court erred in granting the section 388 petition because it did not apply a heightened proof standard of clear and convincing evidence and the agency failed to present clear and convincing evidence to support its petition. He also joins in arguments raised by J.D.’s mother in her appeal (F056616; In re J.D.) that may accrue to his benefit. She challenged the granting of the section 388 petition on other grounds as well as the court’s decision to terminate services based on its 12-month status review. On review, we conclude the court properly terminated services as a consequence of its 12-month status review and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In December 2007, the Stanislaus County Superior Court adjudged J.D. and her four younger siblings dependent children and removed them from parental custody. The court previously determined J.D., in particular, came within its dependency jurisdiction under section 300, subdivisions (b) (neglect) and (c) (serious emotional damage) based on the following facts.
Appellant and J.D.’s mother struggled with developmental disabilities. Over the preceding 15 years, they received a wide array of services, from respondent as well as Valley Mountain Regional Center (Regional Center), Public Health, Sierra Vista Children’s Center and the children’s schools, to assist the parents in providing for the children’s education, developmental, and health needs. Despite the intensity and volume of assistance received, the parents continued to struggle with providing the children with a stable and clean home as well as a healthy home environment. The children were increasingly tardy, absent or suspended from school. In addition, appellant had an alcohol abuse problem and was verbally abusive to appellant and the children.
In the juvenile court, each parent had the benefit of a court-appointed guardian ad litem as well as representation by a court-appointed attorney.
J.D. appeared to have suffered the most from her parents’ neglect. She struggled with severe emotional challenges the parents were unable to address. In August 2007, police officers responded to a complaint that 11-year-old J.D. trespassed on a neighbor’s lawn. Upon the police officers’ arrival, J.D. attempted to harm herself by putting glass in her mouth and swiping glass across her wrists. The police placed her in a patrol car where she kicked out its rear passenger side window in an effort to escape. She had to be physically restrained until she could be taken by ambulance for medical treatment.
J.D. apparently had a habit of defecating on lawns, stealing and threatening property damage.
Her behavior continued to escalate beyond the parents’ ability to address. She engaged in sexually provocative behavior as well as obscene, vulgar, and disrespectful language with her siblings, peers, and school staff. Although J.D. had been referred for counseling and medication services, the parents failed to adequately follow through to ensure the child received the mental health services she needed.
Due to the profound nature of J.D.’s problems, the agency had to place her in a group home. It placed her younger siblings in both relative and foster homes.
Once the court removed the children from parental custody at the December 2007 dispositional hearing, it also ordered the parents to complete a psychological evaluation to determine if they were able to benefit from reunification services. It was agreed that, if they were unable to benefit from services, the court would order a second psychological evaluation. In the meantime, the court ordered: both parents to complete a parenting class and utilize services offered through the Regional Center; and appellant to complete an anger management class and a substance abuse assessment as well as submit to random drug testing. The court also ordered counseling for the children and set a six-month review hearing.
In February 2008, the parents met individually with Dr. Philip Trompetter to complete psychological evaluations consisting of an interview and a battery of psychological testing. Dr. Trompetter diagnosed both parents with mild mental retardation and concluded they had a mental defect rendering each of them unable to care for and control their children. Although appellant functioned at a higher level than the mother, both parents demonstrated significant impairment in their fund of general information, social judgment, practical reasoning, ability to think abstractly, and capacity to problem solve. There was little likelihood of substantial improvement or deterioration in their adaptive functioning necessary for successful parenting. Dr. Trompetter concluded,
“There is little to be done at this point beyond the services they have already been provided. If they have failed to reach or surpass the threshold criteria for successful reunification by now, they are unlikely to reach it in the foreseeable future because of the stable and unremitting nature of their incapacities, notwithstanding their desires to the contrary.”
Dr. Trompetter later clarified the provision of services would not enable either parent to adequately care for and control the children within the statutory period of 12 months.
As of mid 2008, the parents participated in and complied with the services offered them. There was also no question the parents loved their children. However, they did not demonstrate any insight into the parenting problems that contributed to their children’s removal and there were serious concerns regarding each parent’s inability to make progress in correcting those problems.
The mother’s counseling had been terminated due to her lack of insight. Her belief that only a “dirty house” led to her children’s removal prevented the exploration of the real issues in the case. She did not acknowledge the children’s lack of medical care, supervision and protection not to mention their chronic truancy and behavioral problems.
Also, despite the fact that a dirty house was the one problem she could identify and notwithstanding the myriad of services she received, the mother did not consistently maintain a clean home. Apparently, she kept the house clean with the help of supportive services so long as she was subject to routine checks. Informed that her service provider would be on vacation, the mother reverted to her former ways; a surprise social worker inspection during this period revealed an extremely cluttered house that smelled of rotting food, mold, body odor, cigarette smoke and damp, dirty clothes.
Even after the parents completed an intensive parenting program, their instructors remained seriously concerned about the parents’ ability to provide a safe and secure environment for their children. According to each parent’s parenting instructor, the parents did not demonstrate any insight into the parenting problems that contributed to their children’s removal. For example, the mother’s responses to the material were rote and concrete with no demonstrated capacity to relate the information to a variety of circumstances or adapt what she learned.
While appellant demonstrated an understanding of the material in class and in one-on-one sessions, he was only able to manage the children if they were engaged in the same activity. He as well as the mother would not be able to handle the children’s challenging behavior on a daily basis. Indeed, J.D.’s behavioral issues required an individual to be prepared for any behavior she might exhibit and to think rationally in response.
In the meanwhile, appellant successfully completed anger management and outpatient substance abuse treatment programs. He tested negative for drugs, complied with Regional Center services and regularly participated in parenting classes.
During parent/child labs, there was little interaction between J.D. and her parents. J.D. appeared particularly unhappy and uncomfortable to see her mother.
After making some initial progress in her group home, J.D. started acting out. According to her therapist, J.D.’s latest behavioral problems served two purposes. When she acted out at school, staff, including a male counselor, would intervene such that she would get his attention. Also, acting out ensured she would remain in the group home. J.D. told both her therapist and the mother she did not want to go back home.
A pediatric psychiatrist had diagnosed J.D. with post traumatic stress disorder, oppositional/defiant disorder, a learning disorder, and ADHD. Her intellectual functioning was also borderline. The psychiatrist described J.D. as very labile, anxious, and having severe problems with trust. She was easily agitated and angry, oppositional and defiant, as well as sexually pre-occupied.
The psychiatrist prescribed an anti-psychotic medication for J.D.’s severe agitation. Often he would try an antidepressant first for patients with temper problems. However, the severity of J.D.’s problems required a more aggressive approach. Also, her behavioral issues required her caregiver to be prepared for any behavior she might exhibit and to think rationally in response.
At a July 2008 status review hearing, the juvenile court found the agency provided reasonable services and, although the parents were “trying very hard,” they made “almost minimal” progress. The court continued the children’s out-of-home placement and reunification services. It also ordered the parents to participate in a second psychological evaluation as well as additional parent-child labs to see if the parents made any improvement. It concluded by setting a 12-month review hearing for November 2008.
The parents completed the second psychological evaluation in August 2008 with Dr. Cheryl Carmichael, who interviewed them together but did not repeat the psychological testing administered by Dr. Trompetter. Dr. Carmichael concurred with Dr. Trompetter’s diagnosis as to both parents.
In particular, appellant’s understanding of social standards of behavior was negligible or erroneous. His understanding of parenting techniques was limited and simplistic. Similarly, the mother’s mild mental retardation significantly interfered with and limited her ability to integrate new information and to think abstractly. This in turn interfered with her ability to plan ahead, understand social nuances, and accurately gauge her behavior and that of others. She did not see change as necessary nor did she have the capacity to make meaningful changes in her ability to care and control the children.
Dr. Carmichael did not believe either parent could benefit from reunification services given the extensiveness and intensity of services provided over the years. As to what services might be helpful, Dr. Carmichael suggested each parent might benefit from visits with one child at a time given the number of children involved and the significant management issues they presented. This might be especially true if any of the children had an easy temperament with few behavior problems.
In September 2008, the agency filed a section 388 petition recommending the court terminate the parents’ reunification services based on the psychologists’ conclusions that the parents could not benefit from further reunification services. The agency filed Dr. Carmichael’s psychological evaluations, along with the section 388 petition. A contested hearing on the 388 petition was set for October 2008.
Meanwhile, the agency filed its 12-month status review report, recommending the juvenile court terminate reunification services for the parents based on their poor progress and because there was not a substantial probability that the children would be returned to parental custody in what remained of the maximum 18-month period for reunification. It also recommended the court set a section 366.26 hearing to select and implement permanent plans for J.D.’s siblings. The agency recommended long term foster care as a permanent plan for J.D.
Since the last review hearing, J.D. made little if any progress in her school, group home or therapy. Her psychiatrist had found it necessary to significantly increase the dose of J.D.’s anti-psychotic medication. Despite this, she continued to engage in aggressive, disruptive, and sexualized behaviors. Some of these behaviors occurred multiple times a day and were severe in their intensity. Her verbal requests to be restrained or for “containment” caused staff great concern. She had containments on a daily basis. She was placed in a Level 12 group home.
The parents participated in some additional parent-child labs as well as continued supervised visits. According to appellant’s counselor who supervised the parent-child labs, the parents demonstrated good communication skills by using a pleasant voice and making eye contact, especially as they set boundaries for the children. They played board games during the labs. The parents were consistent with ensuring the children were engaged in play, played in turn, followed the rules and cleaned up the playroom at the end of the sessions. J.D.’s behavior however posed a challenge for the parents. They frequently reminded her to “settle down.” Although they learned and applied parenting concepts, the parents’ developmental delay caused appellant’s counselor concern.
The social worker who supervised some of the visits noted the family was presenting much better during visitation. However, the social worker attributed the improvements to the children, save for J.D., and not to the parents; J.D.’s siblings had improved as a result of their beneficial out-of-home placements. The parents provided very little direction or correction for negative behaviors during the visits. At one visit, two of the children almost came to blows; the mother prevented this from happening by literally throwing her body between them. During the same visit, J.D. demonstrated her love for being contained and hurt one of her sisters in the process. Neither parent interceded. At another visit, the parents made the only reported effort to parent J.D. by attempting to redirect her behavior. J.D. responded by talking back to them and engaging in yet another risky behavior.
In November 2008, the juvenile court conducted a contested hearing on the agency’s section 388 petition followed by the 12-month dependency status review. At the beginning of the combined hearing, the children’s counsel informed the court that the day before police had been called and J.D. had to be removed from her school. She had been taken to a mental health facility in San Francisco.
The mother’s counsel called appellant as a witness. He testified the court should give him a second chance with his family to show what he had learned in parenting and by staying sober. He later testified the court should continue reunification services because he did everything the court asked of him and he learned “a lot of interesting stuff in parenting classes.” He claimed to have learned through parenting classes how to be a responsible parent. He learned how to settle disputes among his children and learned the importance of maintaining a clean home and getting the children to school on time. He also learned the importance of knowing where his children are at all times and who they are with. He believed all that interfered with his parenting in the past was his drinking.
Asked what J.D.’s special needs were, appellant claimed to be confused because too many people were involved in her case. He could not identify the problems she faced and testified he did not know. He thought her acting out in a sexual way was “hormonal.” He admitted she always had behavior problems.
Appellant’s attorney called an employee of a supportive living service as a witness. She testified she monitored approximately six visits between the parents and the children. They were affectionate with one another. Appellant provided direction when the children needed it and they were responsive to him.
The parties also agreed to an offer of proof that the children’s social worker would testify the children’s interests were not served by extending further reunification services.
Following argument on the agency’s section 388 petition, the juvenile court granted the petition. In so doing, the court explained it did not believe continuing services would increase the likelihood of reunification. Further, in the interest of permanency, the court concluded terminating reunification services would serve the children’s best interests.
Regarding the 12-month review phase of the hearing, no additional evidence or argument was offered. The juvenile court adopted the agency’s recommended findings. Those included that: the agency provided the parents with reasonable services; the parents made poor progress toward alleviating or mitigating the causes of the children’s out-of-home placement; and there was not a substantial probability that the children would be returned to parental custody in what remained of the maximum 18-month period for reunification. The court in turn terminated services for both parents. While it set a section 366.26 hearing for J.D.’s siblings, the court found such a hearing would not be in J.D.’s best interests because she was not adoptable and no one was interested in becoming her legal guardian. J.D. would remain in foster care.
The parents each filed separate notices of intent seeking relief from the court’s orders as to all of their children. This court deemed the notices of intent as to J.D. to be notices of appeal in that the court had not set a section 366.26 hearing for her (§ 366.26, subd. (l)). Our orders resulted in this appeal brought by appellant and a companion appeal (F056616, In re J.D.) brought by the mother. The notices of intent regarding J.D.’s siblings led to separate writ proceedings, one brought by appellant and the other brought by the mother. We dismissed the mother’s writ proceeding upon her failure to file a writ petition. (Dismissal order, F056570, L.W. v. Superior Court.) In appellant’s writ proceeding, we issued an opinion denying him relief based on our review of the record, appellant’s writ petition and the agency’s written opposition. (Slip op. F056576, L.D. v. Superior Court filed2/25/09.)
DISCUSSION
I.
Appellant contends the agency should have been held to a clear and convincing standard of proof for its modification petition since that is the evidentiary standard required to bypass reunification services in the first instance. (See § 361.5, subd. (b).) He also joins the mother who challenged any reliance on the expert opinion of Dr. Carmichael that she (the mother) could not benefit from reunification services. The mother claimed the agency’s section 388 petition was essentially untimely in that at the 12-month stage the court should no longer evaluate the parents’ inability to benefit from services under section 361.5, subdivision (b)(2), a bypass ground available for denying reunification services at the outset.
We conclude, as discussed below, the court properly terminated reunification services as part of its 12-month status review. As a result and because section 388 has been amended effective this year to address its use in terminating reunification services, we do not address the parents’ section 388 arguments.
The Legislature amended section 388, effective January 1, 2009, to add subdivision (c) which states:
II.
At a 12-month status review hearing, the juvenile court determines whether a dependent child will be returned to parental custody and, if not, whether to continue or terminate reunification efforts. (§ 366.21, subds. (f) & (g).) In the process, the court also determines whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent. Here, it is undisputed the juvenile court properly found return of custody would be detrimental to J.D. and reasonable services had been provided to the parents.
When, as in this case, the court does not return a child to parental custody at the 12-month status review hearing and reasonable services were provided, the court has only limited discretion to continue the case, in essence reunification efforts, for up to 6 months. (§ 366.21, subd. (g)(1).) It shall do so “only” if it finds there is a “substantial probability” the child will be returned to the physical custody of a parent and safely maintained in the home within the extended period of time. (Ibid.) In order to find such a substantial probability, the law requires the court to find all of the following:
(A) the parent has consistently and regularly contacted and visited with the child;
(B) the parent has made significant progress in resolving problems that led to the child’s removal from the home; and
(C) the parent has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs. (Ibid.)
These provisions reflect the general rule that for children three years or older at the time of initial removal, court-ordered reunification should not exceed 12 months from the date children enter foster care. (§ 361.5, subd. (a)(1).)
Here, as previously discussed, the court found no substantial probability of return. It consequently terminated reunification services and, in J.D.’s case, ordered that she remain in long-term foster care, because she was not a proper subject for adoption and had no one willing to accept legal guardianship. (§ 366.21, subd. (g)(3).)
III.
The mother argued she satisfied each of the three prongs cited above to merit a “substantial probability” of return finding. Although appellant joined in the mother’s arguments that might accrue to his benefit, he has not separately addressed the substantial probability issue based on the evidence regarding him. Consequently, we reviewed the record solely as to the mother’s argument regarding her progress and capacity. We repeat our discussion of that issue here.
It is undisputed the mother maintained consistent and regular contact and visitation with J.D. Regarding the second prong of section 366.21, subdivision (g)(1) - whether she made significant progress in resolving problems that led to J.D.’s removal from the home - the mother selectively analyzes portions of the record to support her position. As to the third prong - did she demonstrate the capacity and ability both to complete the objectives of his or her treatment plan and to provide for J.D.’s safety, protection, physical and emotional well-being, and special needs - the mother criticizes Dr. Carmichael’s report as having minimal probative value, if not being inadmissible because the law focuses on the parent’s “demonstrated... capacity[.]” (§ 366.21, subd. (g)(1)(C).) In crafting her argument, the mother overlooks several rules of appellate review which, as applied here, fundamentally undermine her claim of error.
First, the scope of our appellate authority on issues of fact begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.
The mother points to some positive statements made about her efforts to keep her house clean, her basic understanding of some parenting concepts, her appropriate behavior during visits and her occasional effort to apply parenting lessons when her children were difficult during visits. She also selectively read the court’s remarks at the previous review hearing to claim she was making “fair” progress. However, she glosses over the remainder of the record.
For example, she dismisses the fact that she and appellant had already received 15 years of intensive services at the point that the children had to be removed in these proceedings. She ignores the fact that she was terminated from counseling in the spring of 2008 based on her inability to make progress. She did not acknowledge then or anytime thereafter the children’s lack of medical care, supervision and protection as well as their chronic truancy and behavioral problems.
The mother also overlooks the evidence that she did not consistently maintain a clean home. Indeed, the juvenile court even warned her at the previous review hearing that her home needed to remain clean even when people were not watching. Similarly, she disregards her parenting instructor’s conclusion that she (the mother) did not demonstrate any insight into the parenting problems that contributed to their children’s removal and that her responses to the material were rote and concrete with no demonstrated capacity to relate the information to a variety of circumstances or adapt what she learned.
The mother’s assertion of a “fair” progress finding by the court at the six-month review hearing is also disingenuous. She discounts the fact that the court corrected itself. After initially characterizing the parents’ progress as “fair,” the court stated “[t]he progress has been -- actually, the Court would fin[d] almost minimal.”
Finally, the mother all but ignores the profound problems that J.D.’s behaviors posed and the lack of any proof that appellant could appropriately manage and care for J.D. The child’s behavioral issues required her caregiver to be prepared for any behavior she might exhibit and to think rationally in response. On this record, the juvenile court could properly find neither parent was up to this task.
In summary, there was no evidence of any significant progress on the mother’s part in resolving problems that led to J.D.’s removal from the home. (§ 366.21, subd. (g)(1)(B).) Because the juvenile court must be able to make all three factual findings under section 366.21, subdivision (g)(1) to warrant extending services and the court properly found the parents made poor or minimal progress, we could stop our analysis here. However, we add the following.
To the extent the mother claims Dr. Carmichael’s report was inadmissible, she has forfeited her claim having never objected to the admissibility of the psychologist’s report in the trial court. (Evid. Code, § 353.) Indeed, her entire argument over the probative value attributable to Dr. Carmichael’s opinion not only ignores the rule that we may not reweigh or express an independent judgment on the evidence (In re Laura F., supra, 33 Cal.3d at p. 833), it disregards the apparent advantage she received in the trial court. Rather than await the reports of both psychologists to determine whether a bypass of services was appropriate in this case, the court at the dispositional phase followed the parties’ agreement to provide services and conduct the first psychological evaluation. It was agreed that, if the parents were unable to benefit from services, the court would order the second psychological evaluation. By her appellate argument, it appears the mother seeks to change her position to gain legal advantage on appeal. We remind the mother that any alleged error spawned by a party’s position at trial would be invited error. (See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685 [where party, by conduct, induces commission of error, he is estopped from asserting it as grounds for reversal].)
We conclude the evidence warranted the court’s decision to terminate reunification services. There was no abuse of discretion.
DISPOSITION
The order terminating reunification services is affirmed.
“(1) Any party, including a child who is a dependent of the juvenile court, may petition the court, prior to the hearing set pursuant to subdivision (f) of Section 366.21 for a child described by paragraph (1) of subdivision (a) of Section 361.5, or within six months of the initial dispositional hearing for a child described by paragraph (2) or (3) of subdivision (a) of Section 361.5, to terminate court-ordered reunification services provided under subdivision (a) of Section 361.5 only if one of the following conditions exists:
“(A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services.
“(B) The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent or guardian’s failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.
“(2) In determining whether the parent or guardian has failed to visit the child or participate regularly or make progress in the treatment plan, the court shall consider factors including, but not limited to, the parent or guardian’s incarceration, institutionalization, or participation in a residential substance abuse treatment program.
“(3) The court shall terminate reunification services during the above-described time periods only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in subparagraph (A) or (B) of paragraph (1) exists.
“(4) If the court terminates reunification services, it shall order that a hearing pursuant to Section 366.26 be held within 120 days.”