Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. D. Zeke Zeidler, Judge. Super. Ct. No. CK65930
Law Office of Alex Iglesias, Steven D. Shenfeld and Donna Bernstein for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James Owens, Assistant County Counsel, Judith A. Luby, Principal Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.
Children’s Law Center of Los Angeles and Ronnie Jade Cheung for Real Party in Interest Ruben L.
ZELON, J.
Petitioner Carina L. seeks extraordinary writ review (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452) of the juvenile court’s order setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for her one-year-old son Ruben L. The petition is opposed by the Department of Children and Family Services (Department) and also by Ruben, who has joined in the Department’s response. We deny the petition.
. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
Ruben is the third child born to Carina L. Her first child, four-year-old Daniel L., was removed from Carina L.’s care and placed with Rebecca S., a maternal aunt, when he was five months old after Carina L. accused him of having sex and threatened to cut off his penis. Carina L. was placed in a mental hospital, and Rebecca S. was made Daniel’s legal guardian in 2001. Carina L.’s second child, three-year-old David V., was removed from Carina’s care two days after his birth in Fresno County for her general neglect, homelessness and severe mental illness, and his adoption by Leslie and John K. was finalized in 2006.
On the day Ruben was born in November 2006, a social worker for the Department responded to a report from the hospital advising that an anonymous caller had alerted a hospital social worker that Carina L. had a history of child abuse and severe mental illness in Fresno County, and may have traveled to Los Angeles to give birth to avoid Ruben’s detention by the Fresno County social services agency.
On December 1, 2006 the Department filed a petition under section 300 to declare Ruben a dependent child of the juvenile court. The petition alleged Carina L. had a history of chronic mental illness including psychiatric hospitalizations and noncompliance with psychotropic medication, placing Ruben at risk of serious harm. The petition further alleged Ruben’s half-sibling David had been removed from Carina L.’s care and was in a permanent placement in Fresno County. On December 1, 2006 the juvenile court ordered Ruben detained.
In a pre-release investigation report submitted December 13, 2006, the Department indicated Carina L. had requested Ruben be placed with Rebecca S. and Rebecca S. was willing to care for Ruben, but the Department recommended against the placement pending further assessment because its investigation disclosed Rebecca S. had a family history of violence and physical abuse.
In its report for the jurisdiction and disposition hearing, the Department indicated Carina L. had a troubled upbringing requiring intervention by child protective services for several years during her childhood. Rebecca S. had obtained legal guardianship of Daniel in probate court, after it was determined Carina L. had been psychotic without treatment for at least two years and had become mentally incapacitated. The Fresno County social services agency removed David from Carina L. in 2004, her parental rights were terminated in 2006, and David was currently living in Fresno County with Leslie and John K. Carina had a history of chronic homelessness and multiple arrests for offenses including terrorist threats, exhibiting a deadly weapon and battery. Carina L. also had a lengthy history of psychiatric hospitalizations, had recently accused her family of spitting in her food, and had hallucinations and heard voices. Dr. Esfahan Zandi, a psychiatrist with the Department of Mental Health, had seen Carina L. twice and was conducting a psychiatric evaluation. Carina L. told the social worker she sometimes used drugs while living on the streets, she had been told she had schizophrenia and used to take medication, but she “got really mad and just stopped . . . doing everything.” Carina L. identified three men as possibly being Ruben’s father. The Department recommended the dependency petition be sustained without reunification services for Carina L. for her failure to reunify with David (§ 361.5, subd. (b)(10)), and that Ruben be placed with Rebecca S.
At a hearing conducted January 8, 2007 the juvenile court detained Ruben in the home of Rebecca S. in Fresno County over Carina L.’s objection. On January 16, 2007 the Department informed the court that it had removed Ruben from Rebecca S.’s home and placed him with David in the home of Leslie and John K. after receiving reports of domestic violence between Rebecca S. and her husband. The juvenile court ordered Ruben redetained with Leslie and John K. and set the adjudication hearing for February 1, 2007.
In a report submitted February 1, 2007 the Department indicated Leslie and John K. had expressed a desire to adopt Ruben. The court continued the adjudication hearing to March 2, 2007 at Carina L.’s request. In a subsequent report for the adjudication hearing, the Department stated that Leslie and John K. remained committed to adopting Ruben. In a separate letter to the juvenile court, Leslie and John K. requested Ruben be placed with them permanently so that they could adopt him and raise him with David.
On March 2, 2007 the court sustained the dependency petition upon Carina L.’s plea of no contest and continued the matter to May 8, 2007 for a contested disposition hearing. In a report for the disposition hearing, the Department indicated Dr. Zandi told the social worker she had not seen Carina L. for about six weeks and had no knowledge of her progress. Dr. Zandi believed Carina L. might become violent if she did not take her medication. Anthony Van Phuc, a psychiatric social worker who was also treating Carina L., told the social worker he had not seen Carina L. without medication, believed she could suffer a relapse if she stopped taking medication or come under stress, and could not opine on Carina L.’s ability to parent a child. Rebecca S. was no longer interested in caring for Ruben. Ruben’s maternal grandmother stated Carina L. was cured of all of her mental problems and was in perfect health and employed part-time at a Ralph’s market. The Department indicated that although Carina L. was currently receiving treatment and medication, her short period of therapy was insufficient to rectify her serious psychiatric problems and mend “many years of destroyed emotions and childhood resentments.” The Department noted Ruben was the third child to be removed from Carina L.’s care, and she had never had any training in raising a child on her own. The Department added that Carina L. had been visiting Ruben regularly at his placement, and Leslie and John K. had reported she interacted with Ruben more like a child than a parent during visits, often treating Ruben as if he were a doll and not a baby. The Department recommended the court proceed to implement adoption as a permanent plan for Ruben without reunification services for Carina L.
On June 28, 2007 the court ordered Ruben removed from Carina L.’s care, ordered the Department to provide family reunification services to Carina L., and ordered Carina L. to participate in a parent education program including interactive parenting, individual counseling with a licensed therapist to address anger management and mental health issues, and psychiatric treatment including medication. The court appointed Dr. Ronald Fairbanks, Ph.D. to conduct a psychological evaluation of Carina L. (Evid. Code, § 730.) The court continued the matter to August 1, 2007 for the six-month review hearing. (§ 366.21, subd. (e).)
On July 24, 2007 Dr. Fairbanks submitted his Evidence Code section 730 report, which was based on a lengthy interview with Carina L. and administration of several psychological tests. When he asked her about her upbringing and home life, Carina L. had told Dr. Fairbanks that her family went to church together and prayed together, and there was no violence, no substance abuse or any other problem in the home, leaving the false impression that Carina L. was raised in a perfect environment. Carina L. also told Dr. Fairbanks that she was once placed in a foster home because her mother spanked her and her father took medications. Carina L. stated that all three of her children were from casual relationships, and she had never had a real relationship. Carina L. alluded to four psychiatric hospitalizations but could not recall the name of even one hospital, adding that she had not experienced delusions, hallucinations or paranoid ideations and did not suffer from anxiety or depression. She added however that she had taken medications for years and had suffered from anger problems, mood swings and racing thoughts, which Dr. Fairbanks found to be consistent with a bipolar disorder. From the interview and the formal assessments Dr. Fairbanks determined Carina L. lacked insight, was unwilling to acknowledge her problems, was defensive, heavily in denial and rigid, all of which left her resistant to treatment and unlikely to make a commitment to change. Dr. Fairbanks added that Carina L.’s denial and rigidity, together with her troubled family history, suggested a risk she may become abusive if a child were placed in her care. Dr. Fairbanks concluded Carina L. was unlikely to benefit from therapy or to become able to care for a child, and recommended the court not provide further reunification services.
On July 30, 2007 Mr. Van Phuc submitted a letter stating Carina L. was attending counseling regularly, but he had not observed her parenting a child and thus could not opine as to whether she should reunify with Ruben. On July 28, 2007 the administrator of Carina L.’s parenting program reported Carina L. had participated adequately in 31 sessions of nonviolent parenting classes.
In its report for the six-month review hearing the Department indicated Carina L. had been consistent in her visitation with Ruben, but she did not take on a parental role or interact properly with Ruben and as a result the quality of the visits remained poor. Carina L. had not started to participate in an interactive parenting program. The Department recommended termination of family reunification.
On August 1, 2007 the six-month review hearing was continued to September 24, 2007 for a contest. In an addendum report for the contested hearing the Department indicated Carina L. had started interactive parenting classes. A therapist had reported Carina L. behaved appropriately during several therapeutic supervised visits, but thought it was likely her behavior would not continue to be stable without medication.
On September 24, 2007 Leslie and John K. submitted a “De Facto Parent Statement” and a “De Facto Parent Request,” on Judicial Council of California forms, stating that they had cared for Ruben on a day-to-day basis since he was six-weeks old and asking to be appointed de facto parents of Ruben.
Before the contested hearing commenced on September 24, 2007, counsel for Carina L. stipulated in writing that Carina L. would not contest that Ruben could not currently be returned to her or that the Department had provided reasonable reunification services, and that the sole issue to be litigated was whether Carina L. should receive further reunification services.
At the outset of the hearing the juvenile court announced that (1) the only issue to be decided was whether Carina L. should be offered further reunification services, and (2) the court had granted de facto parent status to Leslie and John K. on an ex parte basis. Carina L.’s counsel objected to the latter, as the de facto parent request had just been filed that day.
The court added that it had not yet appointed counsel for Leslie and John K.
Dr. Zandi, called by Carina L., was the first witness at the hearing. In response to questions from the court Dr. Zandi testified that Carina L. disassociates when she becomes anxious, and had thus far received only supportive therapy to help her to cope and to prevent her from “cracking up.” Carina L. had not received therapy to provide her with insight into her underlying anger and other emotional issues, and thus to help her become able to parent a child.
When questioned by counsel for Carina L., Dr. Zandi testified Carina L.’s disassociation suggested she was coping with an active trauma. Dr. Zandi believed Carina L. had recently made a breakthrough by dealing with some emotions before acting on them. Dr. Zandi diagnosed Carina L. as suffering from post-traumatic stress disorder (PTSD) and ruled out a bipolar disorder. On cross-examination by Ruben’s counsel, Dr. Zandi testified PTSD is a “very dangerous condition[,] . . . maybe even more . . . dangerous than schizophrenia or bipolar . . . and . . . could show its teeth at any minute.” Dr. Zandi had not performed any testing on Carina L., deeming tests to be “more or less a student job,” and in any case there was insufficient time for testing because she saw Carina L. for sessions lasting just 15 to 20 minutes, which was not enough time to perform tests. Dr. Zandi had not observed Carina L. with Ruben, and had seen Carina L. just eight times during the previous nine months. Dr. Zandi testified Carina L. would likely need at least 10 years of treatment for her PTSD, but with family support, and if she lived with her parents, she could care for Ruben in about six months.
The next witness was Mr. Van Phuc, who testified he had been providing therapy to Carina L. on a weekly basis during the previous eight months. Mr. Van Phuc believed Carina L. had been misdiagnosed as schizophrenic and suffered from bipolar disorder instead. Mr. Van Phuc testified that people with Carina L.’s condition can become able to parent a child with medication and therapy, but he could not predict how long it would take for Carina L. to become able to care for Ruben because he had not seen her parenting a child or observed how she handles stress. Mr. Van Phuc further testified some of Carina L.’s past problems, and the misdiagnosis of schizophrenia, were attributable to substance abuse which can create symptoms of mental illness. Mr. Van Phuc testified Carina L. was making progress in her therapy and “deserves a chance” to reunify with Ruben, but reunification would require insight therapy and Carina L. was not yet ready for insight therapy.
Mr. Van Phuc later testified he understood Dr. Zandi had ruled out PTSD and had diagnosed Carina L. as suffering from bipolar disorder.
Mr. Van Phuc testified Carina L. “deserves a chance. I mean we all deserve a chance in life . . . . [By] all means I think she should be given a chance.” Shortly thereafter the court remarked, “Basically what just happened is [Mr. Van Phuc] became an advocate instead of a service therapist.”
When the hearing resumed on September 26, 2007, counsel for Carina L. argued she should be entitled to challenge the adequacy of the Department’s reunification services, notwithstanding her earlier stipulation, because “reasonable services is always an issue.” The court determined it was untimely to raise this issue at the current stage of the contest, and in any case counsel had cited no new evidence to justify a contest on the issue of the adequacy of reunification services.
Counsel stated a “slight” issue as to the adequacy of services arose from Dr. Zandi’s testimony regarding the benefits of insight therapy, which had not been addressed by the Department.
Next to testify on behalf of Carina L. was Amy Endo, a social worker in the office of Carina L.’s counsel who had observed two of Carina L.’s visits with Ruben. Ms. Endo testified that based on her observations Carina L. shared a bond with Ruben and reacted appropriately to his needs.
At the conclusion of testimony counsel for the Department requested the court terminate reunification services. Counsel argued the evidence made clear that despite her satisfactory participation in her case plan Carina L. had not made substantive progress to enable her to safely care for Ruben, and there was not a substantial probability Ruben could be returned to Carina L. within six months. Counsel noted the evidence showed Carina remained heavily in denial of her serious mental and emotional problems, had received only support therapy to enable her to cope with her daily life and was not yet ready to receive insight therapy, which was essential for her to acquire an ability to care for a child. Counsel for Ruben joined in the Department’s request, noting Carina L.’s therapists remained reluctant to begin insight therapy for fear it could cause Carina L. to suffer a severe breakdown.
Counsel for Carina L. argued reunification services should be extended because there was not clear and convincing evidence Carina L. had failed to participate regularly and make substantive progress in her case plan.
After the hearing argument, the court announced its decision to terminate reunification services. The court found that although Carina had participated in her required programs, there was clear and convincing evidence she had failed to make substantive progress in her treatment plan. The court further found there was not a substantial probability that Ruben could be returned to Carina L. within six months. The court then set the matter for a hearing pursuant to section 366.26.
CONTENTIONS
Carina L. contends the juvenile court (1) improperly terminated reunification because there was not clear and convincing evidence she had failed to make substantive progress in her treatment plan; (2) erred by granting de facto parent status ex parte to Leslie and John K.; (3) improperly precluded Carina L. from challenging the reasonableness of the Department’s reunification services; and (4) improperly undertook to ask questions of the witnesses and assumed the role of advocate for Leslie and John K.
DISCUSSION
1. Termination of Reunification Services
We reject Carina L.’s contention the juvenile court should have ordered extension of reunification beyond the six-month date. In order to provide dependent children with permanence and stability, the Legislature has set limits on how long a dependent child must wait for a parent to become adequate. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) When a child is under the age of three when initially removed from a parent’s custody, the parent is generally accorded only six months of reunification services. (§ 361.5, subd. (a)(2).) Services can be extended only if the court finds there is a substantial probability the child can be returned to the parent by the 12-month date or that reasonable reunification services have not been provided to the parent. (§ 366.21, subd. (e), 3rd par.)
The record in this case contains substantial evidence to support the court’s determination there was not a substantial probability that Ruben could safely be returned to Carina L. within the period remaining until the 12-month hearing. The record before the court - - including Dr. Fairbanks’s assessment that Carina L. lacked insight into her serious mental and emotional problems and was not a good candidate for insight therapy, the testimony of Dr. Zandi that Carina L. suffered from a very dangerous condition and that insight therapy would be dangerous for her and may cause her to have a severe breakdown, and Mr. Van Phuc’s testimony that Carina L. was not ready for insight therapy and he could not predict how long it would take for her to be able to safely care for Ruben - - belies any claim Carina L. could become able to provide a safe and stable home for Ruben within the 10-week period until the 12-month review hearing. The court thus properly declined to extend services to 12-month date.
When we review the juvenile’s court’s findings under the substantial evidence standard, we inquire only whether there is any evidence, contradicted or uncontradicted, that supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
See Tonya M. v. Superior Court (2007) ___Cal.4th___ [in deciding at the six-month review hearing whether to continue or terminate reunification services pursuant to section 366.21, subdivision (e), the court must consider the likelihood of reunification in such time as remains until a potential 12-month review hearing, even if less than six months].
Carina L. contends the juvenile court “conflated” two separate concepts contained in subdivision (e) of section 366.21, arguing that the court improperly measured whether she made “substantive progress” in her treatment plan by the likelihood Ruben could be returned to her care within six months. Carina L.’s claim is unavailing, first because the record contains ample evidence that she failed to make substantive progress in her case plan, and in any case because under the statute the court lacked power to continue the case to the 12-month date unless it was able to find there was a substantial probability that Ruben could be returned to her care within six months or that reasonable services had not been provided.
2. De Facto Parent Status
Carina L. contends the juvenile court erred by granting de facto parent status to Leslie and John K. on an ex parte basis and without allowing opposition. Although neither Carina L. nor the Department has adequately briefed the proper procedural requirements for a grant of de facto parent status, we conclude the juvenile court should have afforded Carina L. an opportunity to oppose the de facto parent request. The record shows however that upon being advised at the hearing of the court’s action counsel for Carina L. made only a general objection, without making any offer of proof as to the basis for any opposition to the granting of de facto parent status. The record further shows that Leslie and John K. did not present any evidence or otherwise participate actively at the hearing. Nor does Carina L. in the instant proceeding allude to any specific harm she suffered as a result of the standing accorded to Leslie and John K. as de facto parents. Under these circumstances, Carina L. does not show that she suffered any prejudice as a result of the court’s decision to grant de facto parent status to Leslie and John K. without giving Carina L. an opportunity to oppose the request.
Counsel merely stated, “Your honor, I think that is wrong because it’s filed on the date of the hearing.”
3. Reasonableness of Reunification Services
We reject Carina L.’s claim the juvenile court improperly denied her an opportunity to challenge the adequacy of reunification services at the six-month hearing. The record shows that prior to the hearing counsel for Carina L. executed a “Statement of Issues at Trial,” stipulating that the only issue to be litigated was whether reunification services should be extended because she had made substantive progress in her case plan and there was thus a substantial probability Ruben could be returned to her. Nor did counsel request permission to raise the issue of the reasonableness of reunification services at the commencement of the hearing. It was only at the beginning of the final day of the three-day hearing, after Dr. Zandi and Mr. Van Phuc had concluded their testimony, that counsel made her request to raise “what may be a slight issue regarding reasonable services.” Under these circumstances, we find no abuse of discretion in the juvenile court’s decision to preclude Carina L. from challenging the adequacy of the Department’s reunification services. We further note there is ample evidence in the record showing that the Department fully complied with its obligation to provide services. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Apparently, counsel wished to show that the Department should have investigated the possibility of insight therapy for Carina L.
4. Questioning of Witnesses by the Trial Court
Carina L. contends the court improperly undertook to ask questions of Dr. Zandi and Mr. Van Phuc and assumed the role of advocate for the de facto parents, violating her right to a fair hearing. The court’s obligation was to decide the matter - - which involved critical issues going to the safety and well-being of a young child - - in light of all of the relevant facts. The transcript of the proceedings shows that the sole purpose of the court’s questions was to develop facts required to make an appropriate decision in the case. All of the court’s questions were intended to elicit relevant facts or clarify the witnesses’ testimony when the testimony was confusing or incomplete. We find nothing in the nature, content, or tone of the questions that indicates any trial court bias against Carina L. or any other party. Nor has Carina L. suggested otherwise in the juvenile court or in the instant proceeding, and she has not identified any specific question that she claims reflects bias or otherwise affected her right to a fair trial. Under these circumstances Carina L. does not demonstrate a violation of her right to a fair trial.
DISPOSITION
The petition is denied on the merits.
We concur: PERLUSS, P. J., WOODS, J.