Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate. Super. Ct. No. CK64891. Margaret Henry, Judge. Petition denied.
Law Offices of Katherine Anderson, Victoria Doherty and Martin Lee, for Petitioner.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Denise M. Hippach, Associate County Counsel for Respondent.
Children’s Law Center of Los Angeles CLC 1 and Craig Schultz for Minors D. A.1, S. A., A. A., M. A., K. A. and R. A.
EPSTEIN, P. J.
Mother M. R. seeks review of the juvenile court’s order terminating family reunification services and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26. She contends the juvenile court erred in finding she was provided reasonable reunification services and in denying an extension of those services. Mother also claims a conflict of interest by the attorney representing six of the children constituted ineffective assistance of counsel.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Substantial evidence supports the juvenile court’s conclusion that mother was offered reasonable services. The court did not abuse its discretion in declining to extend services for an additional six months. Mother failed to raise an objection to counsel for the minors in the juvenile court, and therefore failed to preserve that issue for review. We deny mother’s petition on these grounds.
FACTUAL AND PROCEDURAL SUMMARY
In September 2006, the Department of Children and Family Services (DCFS) filed a section 300 petition as to mother’s eight minor children, detained them, and placed them in foster care. It alleged that mother and one of the children had physically abused one of the other children, D. A.2, and that the eldest child’s whereabouts were unknown, with the family unwilling or unable to account for her. Some of the children denied any abuse of D. A.2 Two police officers informed DCFS that D. A.2 had admitted lying about being burned with a frying pan so that he could be placed in foster care or adopted. According to family members, D. A.2 had a history of wandering away from home.
The whereabouts of the eldest of the minor children, E. A., was unknown at the time detention was ordered. A protective custody warrant was issued for E. A. Eventually, the parents admitted that E. A. had been allowed to move in with a family they knew through church. The family had moved, taking her with them, and parents had no contact information.
Two of the minors share the initials “D. A.” In conformity with the policy that the confidentiality of children in dependency be preserved, we refer to the eldest as “D. A.1” and the youngest as “D. A.2.”
Since presumed father is not a party to this writ proceeding, we confine our summary to facts relevant to mother.
Father claimed mother has mental health issues, hears voices, and has a history of abandoning the children because voices tell her to leave. Between April 2004 and May 2005, the family was under a voluntary family maintenance contract because mother had left and her whereabouts were unknown. An adult son living with the family suffers from schizophrenia. The children and home were dirty and neglected. There had been five prior referrals for general neglect, caretaker absence or incapacity, and emotional abuse. Family reunification services, including individual counseling, parenting, and anger management courses, were ordered for mother.
The parties reached an agreement through mediation. The court accepted the mediation agreement and amended the section 300 petition. But on its own motion, the court filed a section 385 motion, then vacated its orders sustaining the petition as amended through mediation. The matter was set for adjudication, and an evaluation pursuant to Evidence Code section 730 was ordered to determine whether mother suffers from mental illness or any psychological or personality disorders which would interfere with her ability to parent, and if so, to recommend a treatment plan. The court was particularly concerned that the oldest child, E. A, was still missing, and that her status posed a risk to her siblings.
In December 2006, psychologist Alfredo E. Crespo reported on his Evidence Code section 730 evaluation of mother and father. He concluded that mother was experiencing significant distress associated with significant depression and resentment of societal standards. Other test results suggested that mother “holds rigid expectations concerning children, something typical of parents lacking in knowledge regarding normal child development who for this reason may pose a risk to their own children.” Dr. Crespo concluded that the imminent return of the minors to the care of either parent should be discouraged, particularly in light of the adult son’s schizophrenia. He concluded that neither parent appeared to obviously be afflicted with mental illness. He suggested that both parents should be enrolled in parenting and anger management classes in addition to couples counseling. He recommended that mother be referred for a psychiatric consultation to rule out a thought disorder. Dr. Crespo recommended that the children remain in foster care until it was clear that parents were working through the multiple issues in their relationship.
On January 11, 2007, the court amended the petition and ordered mother to complete a parenting class (which she already had done), attend individual counseling, submit to a psychiatric evaluation, and comply with any recommended treatment plan, including medication. All the minors except E. A., who was still missing, were declared dependent children and were ordered detained for suitable placement. Minors D. A.1, R. A., D. A.2, and S. A. were ordered into individual counseling, and minor D. A.1 was ordered to receive a psychological evaluation. The following month, the court ordered referrals to the regional center and mental health services assessments for the three youngest children.
At the 12-month review hearing, the court continued reunification services but could not find a substantial probability that the children would be returned to their parents’ custody pursuant to section 366.21, subdivision (g). The court ordered continued individual therapy for mother and a second psychiatric evaluation to test for conditions such as schizophrenia and to assess the need for medication. Minors D. A.1 and R. A. were ordered home to parents in September 2007.
Jurisdiction over the missing eldest child, E. A., was terminated in May 2007.
The DCFS report for the 18-month review hearing showed that the five children remaining in foster care had progressed. A psychiatric evaluation was performed for mother in 2007. The psychiatrist concluded that mother was not a danger to herself or others, and that at the time she did not have psychiatric illness. It was possible that she had an adjustment disorder with fixed anxiety and depressed mood. Mother denied all symptoms of schizophrenia at an additional psychological screening conducted in 2008, and the psychologist concluded that she did not meet the diagnostic criteria associated with schizophrenia or any other mental illness. She began individual therapy on February 2, 2008. Mother continued to be inappropriate, disrespectful and uncooperative during visits with the children. She failed to comply with visits with S. A, and ignored her when she did visit. Mother continued to make negative remarks in front of the minors during visits.
The social worker observed that mother did not appear to enjoy the visits or take full advantage of the limited time allowed. Instead, she focused her visitation time on criticizing the caregivers. The social worker concluded that the minors did not appear to have a strong bond with mother. S. A. did not interact with her because mother ignored her. A. A. and M. A. did not appear attached, and were not upset when mother’s visits ended. K. A. struggled to get away from mother and cried when she tried to hold him.
The therapist for D. A.2 wrote to the court, warning that visitation between the minor and his biological parents “would be emotionally damaging to [D. A.2] due to the extreme fear and anxiety caused by his negative history with his family of origin.” The therapist said that D. A.2’s high level of fear toward his parents and older brothers apparently stemmed from the physical abuse he experienced when living with them. D. A.2 had expressed very positive feelings about his foster family and wanted to remain with them.
Current caregivers had agreed to adopt A. A., M. A., K. A. and D. A.2. Planning assessments were completed for these children and adoption was identified as the permanent plan for them. DCFS recommended termination of family reunification services. In an unannounced visit in late March 2008, the social worker confirmed that the schizophrenic son who is not part of the dependency case, was still living in the home despite parents’ representations that he had moved out. DCFS was ordered to assess the safety of D. A.1 and R. A. in the home in light of his presence there.
A contested section 366.22 hearing was held in April, May and June 2008. The two psychiatrists who evaluated mother testified that she displayed no symptoms of mental illness, but one recommended that she receive psychotherapy.
Johnny Carrera, a marriage and family therapist intern for the Children’s Institute, also testified. He had been providing family therapy to mother and D. A.1 for two months. He also supervised four visits by mother with four of the children (K.A., M. A., A. A. and S. A.). He described mother’s relationship with D. A.1 as very good. She attended every session, was friendly and cooperative, and demonstrated concern for the therapy and for her son and the family. He said mother treated the children very appropriately and did not appear to have a problem with anger management during the visits. She displayed appropriate discipline techniques.
Mr. Carrera admitted he had received 13 reports by DCFS from the social worker about the family, but had read only some of them. He understood that the children were removed because of physical abuse and that mother had heard voices. He did not read anything about mother living on the streets with the children, or abandoning the children for a long period of time. He did not read reports that the youngest children had been neglected, that K. A. had an insect in his ear when detained, or that the two youngest girls had engaged in sexualized acting out.
Foster care social worker Claudia Hirugami testified. She was assigned to S. A. and had monitored six visits between the child and parents. Hirugami said she did not see any affection from mother toward S. A. S. A. seemed happy to have the visits. At some visits, S. A. was not allowed to keep a toy that mother brought for her to play with, but the other children were allowed to keep their toys. Mother tended to prefer the younger children over S. A. Hirugami testified: “I just don’t see any connection between mother and child. So for me there’s obviously some kind of mental or maybe psychological issue going on there because of the interaction that I’ve seen between the two.” When asked whether she believed it was better for S. A. to stay in her current foster home rather than being returned to her parents, Hirugami said: “Absolutely.”
S. S., the caregiver for A. A., M. A. and K. A., testified that she had been caring for the children for over a year (it would be two years in December 2008). She said she wanted to adopt the children with all her heart.
Miriam Muente, the social worker, testified at the hearing. She had been assigned to the case for 18 months. She described an incident in February 2007 during a visit at McDonalds when mother tried to grab D.A.2, and said there had not been any other incident of physical abuse of the minors by mother. She believed the children were still at risk of physical abuse by mother as defined by the Welfare and Institutions Code. Muente based her conclusion on the way mother conducted herself during visits: she raised her voice and got irritated, and continued even when told her behavior was inappropriate; her behavior escalated and she became confrontational when she was upset. Muente testified that she believes mother continues to suffer from mental and emotional problems which would make her unable to care for her children.
Counsel for D. A.2 argued that his return to parents would be detrimental, citing the therapist’s opinion that visitation between him and parents would be potentially damaging in light of the negative family history. D. A.2 did not wish to return to his parents, and had made remarkable progress in his current foster home. Although he suffers from mental and behavioral problems, these issues were being addressed. His attorney argued that it was in his best interests to remain with his foster caregiver.
Counsel for mother argued that DCFS disagreed with the experts who concluded mother had no mental illness, and did not provide additional services to alleviate any concern that mother still had issues which would prevent her from caring for the minors. Counsel for mother also argued DCFS had failed to arrange conjoint counseling so parents could improve the relationship between themselves and the children. He asked that dependency jurisdiction be terminated as to the two eldest children, D. A.1 and R. A. and that parents share joint physical and legal custody of them. As to the five younger children, mother asked that the children be returned and that the court find that DCFS did not make reasonable efforts to provide adequate reunification services.
DCFS recommended that reunification services be terminated and a section 366.26 hearing be set as to the five youngest minors. Counsel for the children except D. A.2 agreed that a placement of home with parents was appropriate for the two eldest. He agreed that the remaining children were situated differently. In his view, S. A. was the most difficult. She wanted to return home, but her attorney felt there continued to be issues to resolve before the court could conclude that was a safe recommendation. He indicated he intended to work with the conjoint therapist to file a section 388 petition to allow the parents to work on their relationship with S. A.
As to the three youngest children, A. A., M. A., and K. A., their attorney argued that return to the parents would be physically, emotionally and developmentally detrimental. When removed, each child had severe emotional problems and severe developmental delays, but had flourished in foster care. Based on reports that mother had engaged in an angry outburst at a recent visit with the youngest children, the court temporarily suspended visitation.
D. A.1 and R. A. were ordered placed in the home of parents. As to the remaining children, the court found DCFS had made more than reasonable efforts at reunification. The court found that the therapist, Mr. Carrera, had no credibility. The court observed that parents did not seem to understand its concern that the eldest child, E. A. had been allowed to move away with another family with no means of communicating with her. The court said there had been no report from a therapist that showed parents understood the issues that needed to be addressed and what progress was required. It acknowledged that mother may not be mentally ill, but “[s]he just does awful things sometimes with respect to her children like disappearing and irrationally getting angry with them and like allowing whoever had access to those little babies that has left them in the position that they’re sexually acting out and all the different behaviors they have.” The court concluded that parents were not capable of dealing with the physical, mental, and emotional problems that those young children have.
The court concluded there was a substantial danger that mother would disappear again when the family situation got difficult. While parents had made some progress, they still had not demonstrated an understanding of basic parenting concepts and how to really parent their children which “leaves an extreme risk of detriment . . . .” It found that continuing jurisdiction is necessary because conditions which justified taking jurisdiction continued to exist. By a preponderance of the evidence, the court found that return of the children to the physical custody of parents would create a substantial risk of detriment to their safety, physical or emotional well-being. It found by clear and convincing evidence that parents had made only partial progress toward alleviating the conditions necessitating placement of the children. Reunification services were terminated. A hearing under section 366.26 to select a permanent plan as to the five younger children was set.
Mother filed a petition for extraordinary writ challenging this order. We issued an order to show cause and a temporary stay. Counsel for six of the minors joins in the answer filed by DCFS.
DISCUSSION
I
Mother argues the court erred when it found that reasonable services were provided to her. “[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered. [Citations.]” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “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.)
Mother argues the social worker handled the case as if mother had been diagnosed with a mental illness despite Dr. Crespo’s Evidence Code section 730 evaluation to the contrary. She claims this demonstrates that DCFS was out of touch with her situation. Mother claims that DCFS did nothing to implement Dr. Aguilar’s recommendation that she attend family counseling until February 2008. According to mother, the real issues in the case were marital discord, limited parenting skills, and a lack of inner and external resources. She contends that DCFS should have realized she was in need of “hands-on” parenting skills training in order to deal with her special needs children, but such services were never provided.
Mother complains that the social worker focused on her inappropriate behavior during visitation, but failed to provide services to remedy that issue. She now suggests that the friction between herself and the foster parents required “something therapeutic” to mitigate the situation, or exclusion of the foster parents from the visits. She claims the desire of the foster parents to adopt the children in their care while they monitored mother’s visits created a stressful situation for both the children and herself.
Mother relies on Mr. Carrera, the family therapist for mother, father, and D. A.1. Although Carrera admitted that he had not read all of the DCFS reports, he accompanied mother to monitored visits with the younger children. He testified that mother was loving, caring and affectionate with the children during visits. She never displayed behaviors that caused him concern regarding her mental or emotional state.
DCFS argues that mother waited eight months to complete the psychiatric evaluation ordered on January 11, 2007, and to enroll in counseling which she completed in September 2007. Mother was ordered to continue counseling at the November 16, 2007 and January 11, 2008 hearings, but did not. The social worker reminded mother of her reunification plan, provided referrals, took her to two of the psychiatric evaluation appointments and enrolled her in counseling.
DCFS points out that mother never objected to the adequacy of the reunification services until the 18-month review hearing. The court in In re Christina L. (1992) 3 Cal.App.4th 404, 416 observed: “If Mother felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan: ‘“The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” [Citation.]’ (Sommer v. Martin (1921) 55 Cal.App. 603, 610.)”
Mother’s relationship with father remained unstable during the reunification period. Although she was ordered to continue individual counseling, mother did not comply with that order. She disappeared between January 21, 2007 and March 26, 2007, telling her husband that she had left with her boyfriend. Mother told the social worker that she had gone to Oceanside to babysit a friend’s children, and that she is not obligated to inform her husband of how she manages her life because he does not work or provide for her or the children. Mother told the worker that she wanted father to leave the house. She went to Arizona between June and August 2007 because she did not have money for housing and other expenses here. In September 2007, mother told the worker she was living with a pastor from church.
As DCFS points out, mother’s behavior continued to be a problem during monitored visitation. She was aggressive, disrespectful and inappropriate with the caregivers (who monitored the visits) and the children. Mother continued to make negative remarks in front of the children and focused her time in the visitation on criticizing the caregivers. During a visit in October 2007, mother’s behavior frightened the three youngest children so much that they hid behind the caregiver’s chairs. Mother brought toys for some of the children, but not S. A. On the advice of therapists, visits for D. A.2 with his parents were suspended. The therapist for K. A. reported that the child would regress if separated from his foster mother during visits.
There is substantial evidence to support the court’s conclusion that mother had been offered reasonable services. She was given family therapy and other services. Despite warnings by the social worker about her behavior during visitations, mother continued to act inappropriately with the children. While she may not have a mental illness, her conduct throughout the reunification period demonstrated that she did not yet have the ability to provide for the physical, emotional and developmental needs of her five youngest children.
In a related argument, mother contends the court should have extended services beyond the 18-month date, including one-on-one parenting skills training on the care of special needs children; therapy “with a therapist who understood the dynamics of the case” and education about dealing with the various providers of services to the children. We review the decision not to extend services for abuse of discretion. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1793-1796.)
DCFS contends that an extension of services beyond the 18-month date has been limited to rare circumstances, for example where no reunification plan was developed or implemented, or a parent’s hospitalization made it impossible to comply. (See In re Elizabeth R., supra, 35 Cal.App.4th 1774 [mother’s hospitalization for mental illness compromised ability to participate in services]; In re Daniel G. (1994) 25 Cal.App.4th 1205 [reunification services offered “virtually nil,” mother not contacted by social worker during reunification period, visits not arranged as ordered]; In re Dino E. (1992) 6 Cal.App.4th 1768 [no reunification plan for father developed].)
We find no extraordinary circumstances to compel a conclusion that the court abused its discretion in refusing to extend reunification services. The minors had been in foster care for 20 months and were flourishing. Mother had twice disappeared during that period and continued to create problems during visits because of her behavior. There was no evidence that an additional six months of services for mother would benefit the children whose interest in stability and prompt resolution of their custody status is paramount. (See In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068-1069.)
II
Mother argues counsel for the minors had an actual conflict of interest, which amounted to ineffective assistance of counsel. On September 28, 2006, attorney Craig Schultz was appointed to represent minors D. A.1, R. A., S. A., A. A., M. A., and K. A. Separate counsel was appointed to represent D. A.2, who had allegedly suffered physical abuse by his family.
Mother claims that Schultz should have declined the appointment because there was already an actual conflict between his clients. She bases this claim on the inconsistent accounts given by the children to DCFS concerning whether D. A.2 had been physically abused by the parents or adult sibling J.; whether mother had mental health issues; whether mother physically abused D. A.2.
Mother cites In re Celine R. (2003) 31 Cal.4th 45, 60, footnote 3. But she does not cite authority to establish that inconsistent accounts amount to an actual conflict. Mother also cites Carroll v. Superior Court (2002) 101 Cal.App.4th 1423. In that case, the court said the clearest actual conflict of interest among siblings arises when advocacy for one minor’s best interests is for termination of parental rights and advocacy for another’s best interests is against termination of parental rights. (Carroll, supra, at p. 1430.) In In re Celine R., the actual conflict was found harmless because it would not have impacted the outcome since there was no basis for the court to suspect the younger children had a bond with an older half sibling. (31 Cal.4th. at p. 58.)
We agree with DCFS that mother was obligated, through her own counsel, to raise any conflict of interest claim in the juvenile court. The issue was not preserved on appeal. (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
DISPOSITION
The petition for extraordinary writ is denied and the temporary stay is vacated.
We concur: WILLHITE, J. SUZUKAWA, J.