Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo Super. Ct. No. JV-43196, Roger T. Picquet, Judge
Edward L. Somogyi for Petitioner.
No appearance for Respondent.
James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel, for Real Party in Interest.
COFFEE, J.
Jeffrey A. petitions for extraordinary writ review of an order of the juvenile court setting the matter for a hearing after terminating parental rights and establishing adoption as a permanent plan with respect to three of his children. (Welf. & Inst. Code, § 366.26.) We deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL BACKGROUND
The Children
Petitioner has eight children by two mothers. He also has several stepchildren. Only T., J. and G. are the direct subjects (subject children) of this petition, but the relevant facts involve all of the children and a basic description of their relationships follows.
Petitioner first married Serena A., with whom he had two children: M. ("Little M.") and M.A.. Petitioner and Serena divorced. Serena later had two more children by a different father: K. and J. (hereafter stepbrother)
After divorcing Serena, petitioner married V. (mother), who had a son by a prior relationship, M. ("Big M."). Petitioner and mother then had six children together: A. (born 1992), J.A. (born 1995), C. (born 2003), and subject children (T., J. and G., born 1996, 1998, 2001, respectively).
Petitioner and mother divorced in 2003, and petitioner reconciled with Serena. He continued to live with Serena and her children throughout these proceedings. Mother later had one more child by another father: R. (born 2004).
History of Abuse
Mother made complaints of physical abuse by petitioner during their marriage. When petitioner reconciled with Serena in 2003, he began to abuse her. Serena reported to police that petitioner struck her and their children on several occasions, that he used sleep deprivation techniques upon her when he was upset with her, and that he prevented her from using the telephone to call police.
Between February 2003 and May 2005, 13 referrals were made to the Department of Social Services (DSS) concerning petitioner's children, including allegations that petitioner was physically abusive toward them. Petitioner had a criminal history, including robbery and child cruelty convictions in 2003 (Pen. Code, §§ 211, 273a, subd. (a)); a conviction for keeping a place to sell controlled substances in 1989 (Health & Saf. Code, § 11366); and a conviction for providing false identification to a peace officer in 1991. (Pen. Code, § 148.9.)
Between 2003 and 2004, subject children were sexually abused by their stepbrother in the home of petitioner and Serena. It is undisputed that the abuse was severe, frequent and had a lasting effect, and that it occurred when petitioner and Serena were home.
On July 14, 2004, petitioner slapped Serena's face five or six times and punched her in the mouth. When their son Little M. tried to protect Serena, petitioner punched him in the face, got on top of him and began to choke him. In 2004, petitioner was sentenced to 10 days in jail for child cruelty. (Pen. Code, § 273a, subd. (a).)
On December 31, 2004, petitioner was arrested for vandalism and felony spousal battery upon Serena after he pushed her, knocked her forward, and slashed the valves of her tires to prevent her from escaping. (Pen. Code, §§ 273.5, 594, subd. (a)(2).) When petitioner was arrested, he was served with an emergency protective order, which he immediately violated by calling Serena and Little M. from the holding cage. Petitioner was convicted of spousal abuse and violation of the protective order.
The Detention
Mother suffers from major depression with psychotic features. On June 5, 2005, mother attempted suicide. At the time, A., J.A., R. and subject children were in her care, and petitioner was serving a 270-day jail sentence. Mother was placed on an involuntary psychiatric hold for the second time in six months. Her children were detained by DSS. Subject children were placed in the home of petitioner's sister, where they have remained. DSS alleged that mother had failed to protect her eight children due to mental illness, and that petitioner had failed to provide for his children.
The Initial Hearing
At the initial hearing, DSS reported that petitioner was not receiving visitation services while incarcerated because a restraining order prevented him from contacting his children. Petitioner was participating in a counseling program to address his violent behavior and DSS recommended that he continue in counseling once released. DSS reported that mother was progressing well with counseling and education services, and recommended that the older children (Big M., A. and J.A.) be placed with her. DSS advised the court that the younger children would require more attention and supervision than mother could provide.
The court found that reasonable efforts had been made to eliminate the need for removal of the minors from the home, and that detention was required. The court referred the matter for mediation and continued the jurisdiction and disposition hearing.
The petition was amended in August 2005 after subject children disclosed that they had been sexually abused by their stepbrother. J. reported that he had tried to tell petitioner about this abuse, but that petitioner had called him a liar. G. also reported that she had been sexually abused by Little M., but this report was unconfirmed. The amended petition also alleged that petitioner's "violent nature makes him an unsafe caretaker for his children," due to his criminal history and his history of abuse and intimidation. A second amended petition clarified his criminal history.
At a September 2005 mediation, the parties agreed that petitioner would have supervised visitation with Big M., A., J.A. and C., but would not have any visitation with subject children until subject children received therapy. Subject children were referred to a therapist and it was agreed that visitation of them would be reviewed in 45 days.
A jurisdiction and disposition hearing was held on October 7, 2005. Petitioner had been released from jail and was living with his mother in San Luis Obispo County. Pursuant to the terms of his probation, he was undergoing therapy. His probation officer recommended that he have no contact with his children until completing more therapy. DSS recommended supervised visitation.
The court declared the children dependents of the court and ordered reunification services. The court permitted Big M., A., J.A. and C. to reside with mother under court-ordered family maintenance. The court placed subject children in the home of their paternal aunt. The court granted petitioner supervised visitation as recommend by DSS.
The court adopted a case plan for petitioner that required him to 1) attend a certified domestic violence program as recommended by the probation officer, 2) continue child abuse counseling until successfully completed, and 3) participate in a parenting education program. DSS set petitioner's objectives as follows: Attend and demonstrate progress in a county certified domestic violence program, follow the conditions of the visitation plan, comply with all orders of the court, develop and use a domestic violence relapse plan, express anger appropriately and not act negatively on impulses, interact with children without physical abuse or harm, follow all conditions of probation or parole, avoid arrests and convictions, do not behave in an abusive or threatening manner, comply with medical or psychological treatment, show acceptance of responsibility for actions and treat others with respect.
On November 8, 2005, DSS reported that subject children had begun therapy. It recommended that after their second visit, petitioner be allowed weekly visitation supervised by DSS.
Six-Month Review
At the February 14, 2006, six-month review hearing, the court found that reasonable reunification services had been provided and petitioner was complying with his case plan; but that as to subject children, sufficient progress had not been made by petitioner toward alleviating the causes necessitating their placement. The court allowed the other children to remain with mother and continued supervised visitation for petitioner.
The social worker reported that petitioner was diligent with his case plan, regularly attended domestic violence classes, completed a parental education program, and initiated individual therapy on his own initiative. Participation in 10 child abuse prevention classes was verified. The social worker recommended that unsupervised visits with subject children "can only happen when their therapists feel they are ready. It is [my] belief that when the children and [petitioner] have progressed sufficiently in their treatment, [petitioner] will need to meet with his children in therapy and apologize to them and acknowledge that he did not protect them from the abuse that took place in his home." Petitioner's therapist reported that petitioner was actively working on these issues.
The court adopted a new case plan that required petitioner to continue in child abuse treatment until successfully completed, attend a certified domestic violence program if recommended by the probation officer, and participate in any additional education program as recommended. New objectives were added for petitioner that included listening to and showing acceptance and support of disclosures made by his children; showing that he will not permit others to sexually abuse his children; and consistently, appropriately and adequately parenting the children.
12-Month Review
The 12-month review hearing was continued several times at the request or stipulation of counsel, who were involved in mediation. On June 28, 2006, the parties agreed that petitioner would have supervised visitation with subject children for two hours every other week depending upon DSS's ability to provide supervision and that a plan would be developed for therapeutic intervention for petitioner and the children and to address unsupervised visitation and reunification.
The contested 12-month review hearing commenced on October 17, 2006. After seven days of testimony, all parties reached an agreement that services be continued for an additional six months based on special and unique circumstances, including the extent of the sexual abuse perpetrated on three of the children requiring additional family therapy. The parties agreed that an 18-month review hearing would be set for November 21, 2006.
18-Month Review
The 18-month review was continued at the request of petitioner's counsel, and again to allow time to find a new therapist.
A revised case plan recommended in November 2006 gave petitioner objectives to "[d]evelop and use a specific domestic violence Relapse Prevention Plan" for himself, and to "show that [he] will not permit others to sexually abuse [his] child(ren)." The latter objective required petitioner to "[c]ontinue in family therapy with [subject children] around the sexual abuse they suffered in [his] home. The specific therapist must be court-ordered," and petitioner is to "[c]ontinue in individual therapy to address [his] responsibilities and to learn the necessary skills to protect [his] children from sexual abuse." The completion date for these objectives was May 18, 2007. The court signed orders requiring services to be continued for six months based on special and unique circumstances and adopting the proposed case plan. A new therapist was appointed for petitioner. The court set the matter for a 24-month review on May 15, 2007.
Petitioner's Request for Unsupervised Visitation
On March 19, 2007, petitioner filed a request to change the court's order to allow unsupervised visitation of subject children. (§ 388.) After two days of testimony, the court denied the motion. At the request of DSS, a clinical psychologist evaluated petitioner before the hearing.
The psychologist testified that petitioner suffers from an antisocial personality disorder. He testified that the disorder is not treatable, and that therapy and medication do not change the underlying pathology. Based on the personality profile, he was concerned that petitioner "may not be fully aware of threats to the safety of a child, may not fully think through the impact of decisions, and may not provide really for the safety and welfare of a child in an acceptable fashion." The psychologist testified that a person with antisocial personality disorder fails to conform to societal norms, is impulsive, and is consistently irresponsible, "which includes things like not watching out for your children." He testified that there is a pattern of deception, deceitfulness and manipulation, irritability and aggression, lack of remorse and reckless disregard of the safety and well-being of others. He testified that petitioner scored high in a profile that indicates a person is narcissistic, self-centered, demonstrates superficial emotions and shows no regard for the needs of others. His evaluation was performed on April 23, 2007. He testified that DSS first asked him to conduct an evaluation in February of 2007, but that petitioner had cancelled his first appointment and missed the second.
Petitioner's therapist offered her opinion that petitioner and Serena could participate in unsupervised visits, but not in petitioner's home. She testified that petitioner had made progress in 12 therapy sessions with Serena and subject children. The therapist testified that petitioner had taken responsibility for failing to prevent the sexual abuse of his children while in his home, and had taken measures to ensure their safety. She testified that J. expressed a wish to live with his father. She agreed that children who have been molested are at greater risk for other victimization. She testified that petitioner did not frustrate or anger easily in the controlled environment of therapy; but, with his history, she would have been surprised if he did not have traits of antisocial personality disorder. She agreed that antisocial personality disorder does not respond well to therapy, and that people with the disorder tend to be manipulative, disregard the rights of others, put their children in danger, and be irritable and aggressive. She testified that she would not support G. having contact with Little M. until they had therapeutic intervention.
Subject children's own therapist offered her opinion that the children should remain supervised at all times when with petitioner. She testified that subject children were vulnerable to further abuse because of the frequency, intensity, and length of the time each was sexually abused in petitioner's home. The therapist had been seeing the children weekly for about eight months. She reported that J. wished to be adopted by his foster family.
24-Month Review
On July 31, 2007, at the 24-month review hearing, by agreement of the parties, the court considered the testimony previously presented at the section 388 hearing. The court heard eight additional days of testimony.
Social worker Gail Gordon testified that petitioner had complied with the specifics of his case plans, but that it would be very hard to return subject children to him. She testified that he had not developed a level of trust with subject children, and that he could not protect subject children with so many other children in his home. She did not think it was possible for petitioner to be reunified with his children, based upon his diagnosis. Subject children had special needs, and J. and T. were special education students. Petitioner had not made sufficient progress with empathy for his children's abuse, ability to put the children's needs ahead of his own, ability to identify warning signs for risk in the environment, and diligence with the children's needs. He had "gone through the motions" but had not made the internal change necessary to parent these special needs children. The children had not made sufficient progress in their own therapy that they could be safe in petitioner's home.
Serena testified that she had learned about early signs of abuse but that, looking back, there had not been any of the "standard red flags." She testified that the children never complained of soreness and had continued to play with their stepbrother.
Petitioner testified that he and Serena had a safety plan in place for subject children and that T.'s clinginess and withdrawal had been early signs of abuse. He said he had learned that most of the abuse had taken place when he was cooking dinner, and that he had been distracted by the difficulties of combining households with Serena. He testified that he did not recall any of the children telling him that anything bad or inappropriate was happening. Petitioner testified that he loves his kids and cries for them. He testified that he would keep subject children safe by providing "Supervision, 100 percent."
The court ordered that reunification services be terminated as to subject children and set a permanency hearing pursuant to section 366.26. The court dismissed the petition as to A., J.A. and C., awarding custody of A. and J.A. to petitioner and custody of C. to mother, each with visitation.
DISCUSSION
Petitioner contends that he was not given reasonable reunification services and that the court's decision to terminate reunification services was not supported by clear and convincing evidence. We disagree.
A parent is entitled to reunification services for 12 months from the date the child enters foster care. (§ 361.5, subd. (a)(1).) "The court may not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian." (§ 366.21, subd. (g)(1)(C).) On appeal, review of a reasonable services finding is subject to the substantial evidence test. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
At the permanency review hearing, the juvenile court must return the children to the parents unless it finds, by a preponderance of the evidence, that return would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a).) The social worker has the burden of establishing detriment. (Ibid.) The court must consider the reports and recommendations of the social worker and child advocate and the parent's efforts or progress. (Ibid.) Failure of the parent to make substantive progress in court-ordered treatment is prima facie evidence that return would be detrimental. (Ibid.)
Our review of the record discloses substantial evidence that reasonable reunification services were provided to petitioner and that return to his home would be detrimental to subject children. Reunification services were provided for 24 months, including individual and family therapy, anger management education and supervised visitation. A social worker was in regular contact with petitioner, his parole officer, and his individual and family therapists, and case plans were revised according to the changing needs of the children. "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Petitioner argues that subject children should have been returned to him because he complied with the specific requirements of his service plan. "Compliance with the reunification plan is certainly a pertinent consideration at the section 366.22 hearing; however, it is not the sole concern before the dependency court judge." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704.) Petitioner attended every therapy session and each scheduled visit, but there was substantial evidence that he did not make substantive progress toward important objectives of his case plan. The case plan required petitioner to show acceptance of responsibility for his actions; to treat others with respect; to listen to and show acceptance and support of disclosures made by his children; to show that he will not permit others to sexually abuse his children; and to consistently, appropriately and adequately parent the children. The children's therapist and the social worker reported that petitioner had not made substantive progress in developing the children's trust and developing empathy for their suffering and that his apology to the children had been insincere. Petitioner's therapist reported that he had progressed in therapy and had made a tearful apology to the children. However, she conceded that the progress was made in the controlled environment of therapy and she stopped short of recommending outright return of the children to petitioner's home.
Petitioner suffers from antisocial disorder. The psychologist testified that this disorder is accompanied by superficial displays of emotion, and an inability to genuinely consider the needs of others. A personality disorder may render a parent incapable of benefiting from reunification services. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474 [order denying reunification services altogether pursuant to section 361.5, subdivision (b)(2) was affirmed].) Petitioner points out that he was not diagnosed until one month before the final review hearing. It does not appear that earlier detection would have reduced the risks presented by the disorder. The psychologist testified that the pathology underlying antisocial disorder is not treatable with medication or therapy. Petitioner's therapist agreed that the underlying pathology is not treatable.
The juvenile court was in the best position to assess petitioner's sincerity and to weigh the conflicting opinions of the mental health care professionals in this complex case. Substantial evidence supports the court's findings that reasonable reunification services were provided to petitioner and that return of subject children to his home would have been detrimental to their safety.
The petition is denied.
We concur: YEGAN, Acting P.J., PERREN, J.