Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. 73454, 73455 & 73457
Richman, J.
In dependency proceedings involving five of their children, M.R. (father) and R.W. (mother) each seek writ review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26, subd. (l)) of a June 30, 2008 order setting for October 27, 2008, a permanency planning hearing for three of the children, daughters M.C. and M.G. and son M., who are in foster care. Neither parent disputes the order as to the eldest and second youngest children, sons M. Jr. and J., who were ordered to remain placed with mother. Having consolidated the parents’ petitions, we now deny them on the merits.
All unspecified section references are to the Welfare and Institutions Code.
Background
I. Earlier Proceedings
This marks the first appellate challenge in a case whose origins date to a March 2003 referral. Mother admitted hitting the children with a belt and pulling their hair but insisted that she had a right to do so. The parents signed a voluntary family maintenance agreement that required them to take parenting classes and not use physical discipline. The agreement expired eight months later, after another referral and the birth of their fifth child, M. The children were deemed not at risk, although mother had been “minimally cooperative” and father had refused to participate, insisting that the care and discipline of children was “ ‘women’s work.’ ” Mother was unemployed; father worked two jobs.
An original petition filed by the San Mateo County Human Services Agency (agency) a year later, in November 2004, alleged jurisdiction over J. and M.G. due to willful physical harm (§ 300, subd. (a)) and over the other three due to sibling abuse (id., subd. (j)). Father, in a rage, reportedly slapped and pushed five-year-old M.G. against a wall and, on another occasion, choked four-year-old J. Detention and an uncontested hearing of December 2004 resulted in jurisdiction, the children left in mother’s care under family maintenance, all but the infant child in therapy, father out of the home with services and a no-contact order, and the parents ordered into therapy and parenting classes. Father also had to take anger management and domestic violence classes.
A six-month review in June 2005 found father: in parenting classes but having comprehension trouble; in anger management classes but in some denial about anger problems, not yet in domestic violence classes, visiting the children but unable to control them; and hoping to reconcile with mother. Mother was getting the children to school properly. She did not want reconciliation and was in a relationship with another man, who helped her financially. A mental health evaluation was ordered for father; which would later reveal mental retardation, brain dysfunction (affecting visual/motor coordination, perception, memory and concentration), and rigid thinking. In the examiner’s opinion, father was unable to care for children on his own. A second such evaluation later confirmed those impressions.
The next six-month review, in late November 2005, disclosed the first mental health report. Father continued to have trouble setting boundaries with the children at visits, but he had started a domestic violence class. He had trouble accepting that mother did not want him in the home, yet it was anticipated that he would be incorporated into ongoing family therapy. Mother had failed two parenting classes and announced that she found the classes and family therapy to be “a waste of time.” She had resorted to corporal punishment for the eldest son. She had a boyfriend, Nicolas Soto, and another family living with her for a total of 12 people in a small one-bedroom apartment, and a boyfriend of a woman residing with her had struck M.G. and J. Mother had reported the latter incident to police. Nevertheless, the plan goal remained for all children to remain in the home. The court gave mother a month to show that non-family members had moved out.
A third six-month review, held on June 14, 2006, showed that mother had again used corporal punishment on the eldest child. Father was engaged in family therapy, receptive to learning parenting techniques, consistent at visits, and responsive to the children’s needs. The case plan remained substantially unchanged, and a fourth review was set.
On November 14, 2006, however, a supplemental petition (§ 387) charged further abuse by mother, having hit the eldest with a broom and allowed her boyfriend to hit the children. The children were detained in shelter care, loathe to tell of beatings mother had administered with a belt, and some afraid to return home. The court ordered a second mental health evaluation for father, and one for mother as well, continuing the matter pending results.
Mother expressed remorse and vowed not to hit the children anymore. CASA reported, among other things: that father visited but did not respond well to M.’s needs; that M.G. misbehaved and taunted M.; and that all the children’s behaviors worsened following supervised visits where mother coached them about what to say and promised them they would be returned to her at the next hearing.
The mental health assessments for both parents revealed mental retardation, illiteracy, and cooperativeness but limited intellectual and cognitive abilities. Father would impulsively say to the examiner, “ ‘yes, yes I understand’ when it was obvious that he didn’t,” and showed “[m]arked deficits” in analyzing complex problems and being “flexible in thought processes and keeping more than one aspect of a situation in mind.” Father appeared to love and care for his children very much but did not have “the ability to care for his children independently and without the assistance of his extended family.” Mother appeared to love her children, was remorseful and willing to try not to hit them, but was at times “likely to become overwhelmed by typical children stressors.” Given her limited intellectual and cognitive abilities, she was “unable to parent effectively without ongoing services.” Father continued to pay monthly child support and lived in a garage adjacent to the house of his brother and brother’s family. The garage was not converted into living quarters.
Father wanted to share custody of the children with mother but, should he not achieve that, preferred that the children return to mother’s care instead of being in foster care. All of the children were adapting well to foster care but wanted to be back with mother and have visits with father. All reports were favorable about his unsupervised weekly visits with them. Mother had supervised visits and was manipulative. A daughter revealed that mother told her “that if she tells the court that she wants to return home,” she would be returned, and that mother had a stomach tumor and was going to die unless the children came home. Two of the children were diagnosed as having a high risk of developing juvenile diabetes due in part to past diets with large amounts of fat and sugar. On doctor’s orders, they had been on diets restricted in fats, sugar and processed carbohydrates, with the foster parents implementing the diets. Neither parent, however, appeared to understand the dietary restrictions, despite instructions about them.
In February 2007, the parents waived a hearing and submitted on the reports. The court sustained the petitions and ordered services for the parents. It also ordered that mother’s boyfriend, who had an arrest for possession of heroin for sale, leave the home and that, once he was gone, the agency obtain a restraining order against him.
Uncontested interim and six-month reviews in May and August 2007 revealed that father had almost immediately permitted the children an unsupervised visit with mother at her home, without agency consent, and that mother had told the children not to tell anyone about it. Mother had also troubled the children by speaking of things such as her financial difficulties, despite instructions not to do this. Mother had assured the agency that Soto left the apartment, but Soto was in fact living in the garage. Mother invited roomers into the apartment, without having them first screened as instructed, and a series of people she submitted to the agency to be screened never showed up. Then, the parents began a relationship as “roommates” in the apartment. Mother ordered him out several times (for not paying the rent), but he always returned. The agency, which had referred mother to services for alternative housing, had concerns about how she managed to pay the household expenses and $950 rent where she was, given that she did not work, that father could not contribute full rent, and that the rent was somehow paid. The agency was concerned with “father’s commitment to the mother” and how this was interfering with his focus on reunification with the children and working toward having some or all of the children placed with him.
The six-month report summarized: “This family is faced with several dilemmas. The parents are intellectually limited. The father is obsessed with his wife to the point of making the decision to reside with her as oppose[d] to remaining with his relatives and potentially obtaining custody of some if not all of his children. The father does not want to go against the mother’s decisions and thereby fails to offer his children the possibility of residing with family members as oppose[d] to remaining in foster care. The parents love their children but at the same time, they are unable to place the children’s needs before their [own]. . . . . The parents are unable to . . . provide a safe home for their children at this time and . . . still need to complete their case plan and objectives . . . .” The parents, despite two years of services predating the current removal, were still addressing alternative discipline techniques and unable to understand the effects of the abuse. The children remained at risk of further abuse if returned.
Mother had begun unsupervised visits, and she and father had decided to share their visits. Due to logistical challenges, disruptive behavior, and concerns about safety, it was recommended that visits between all of the siblings together be reduced in frequency. The girls and youngest boy resided together in a foster home in Antioch; the other boys were in a home in Pacifica.
The recommendation thus was for continued foster care, but with a case plan goal that six more months might enable a return. The court maintained the status quo but authorized the agency to allow overnight visits.
An interim review in November 2007 found the parents in family therapy and showing “a high level of engagement.” The social worker (backed by CASA concern) had not allowed overnight visits, citing inconsistencies in the parents’ statements about who lived in the residence and mother having allowed a niece to move in without a background check. Mother had also told the children not to disclose what went on in the home. Father continued to live there as well, but said he did not spend much time there, slept on a mattress in the (detached) garage, and mainly slept in his brother’s restaurant, where he worked. Mother continued to adamantly oppose placement with any paternal relative, and father has refused to give the agency names of his family members to investigate. In August 2007, however, he signed a form regarding potential caregivers and provided information on his brother, Fermin. The agency began investigating the Fermin home, and father, reminded of the psychologist assessment that he could not care for his children unaided, said he was “willing to relocate and to reside with his brother if this meant that he would be with his children.” It turned out that Fermin had a federal felony conviction for being an alien in possession of a firearm, with conspiracy to unlawfully export, and that any placement with him would require an exemption. Mother was still coaching the children not to tell what was going on, including others being in the house.
The court again maintained the status quo, adding that mother would have no overnight visits until she was “completely honest” with the social worker and compliant with orders.
A 12-month review in February 2008 found the parents still living as roommates, with father sleeping at times in the garage but mainly in his brother’s restaurant. Mother did occasional work cleaning and preparing food to make ends meet, and her niece (now screened by the agency) shared the residence. The report cited the parents’ completion of parenting classes, participation in counseling (with “substantive progress”), demonstrated commitment, ability to co-parent the children effectively, and mother’s acceptance of responsibility for the abuse that led to the children’s removal. Substantial risk factors to the children had decreased so that return of the children to either of them would not be detrimental. It was recommended that M. Jr. and J. be returned to mother’s care now, and that the court find a substantial probability that the other three children would be returned by the 18-month mark. Assessments of parental education were positive and optimistic. All of the children were healthy and thriving, and they were no longer overweight, as they had been when removed.
On February 20, 2008, the court followed the recommendations, ordered the two boys returned to mother, retained the others in foster care, authorized the agency to allow overnight and extended visits, and set an 18-month review for June. It ordered that Soto, the boyfriend, have no contact with the children.
II. Current Proceedings
In May, a month before the next hearing (all unspecified further dates are in 2008), the agency received a referral. The girls had reported that, on a May 9 visit (when father was not present) the children were allowed to drink beer that Soto brought to the house. Mother first denied, then ultimately admitted, that Soto had had contact with the children. Given conflicting and changing stories from the children, the agency ultimately deemed the beer report to be “ ‘Inconclusive.’ ”
But this triggered a team decision meeting on May 20 to reevaluate reunification for the other three children. Numerous items were discussed, including the beer report; ongoing contact with Soto against a court order, including mother causing the children stress and anxiety by telling them they could not divulge this contact or what went on during weekend and overnight visits; the girls’ insecurities and worries whether mother could financially provide and care for them; their “parentified role” toward the youngest sibling, M.; the parents’ inability to “set limits and boundaries” for the eldest boy, M. Jr. (who told the two girls they should be “slapped” with a knife he was holding), or meet the children’s emotional needs. The team opted to discontinue overnight visits, as not in the children’s best interests, and to have the children evaluated for emotional states, coping skills, and the impact of terminating services. The foster mother was concerned that one of the girls came home wearing or carrying soiled underwear and complaining of stomach aches, and M., the youngest boy, had begun using profanity and regressed from using the toilet.
The agency, in a report for the June 11 review date, urged that the two boys already in mother’s care remain there but that the other three siblings not be returned. The report summarized concerns since the return of the two boys and initiation of overnight visits for the others: “During the last three months of [services], . . . there [have] been ongoing concerns about the mother’s ability to parent all of her children . . . . [She] continues to pressure the children not to disclose what occurs in the home, causing the children to become distress[ed,] which increases their level of anxiety. [She] continues to coach the children[,] causing emotional distress[, and] to violate the no contact Court Order. The statutory time for reunification has expired since the three [in foster care] were removed, and it is not realistic that the mother and or the father will be able to adequately care for [them]. In addition, if the children were returned to the mother’s care, the conditions [that warranted juvenile court intervention] would most likely reoccur.” The report recommended, for those three, terminating reunification services and setting a permanency planning hearing. “It appears that the [parents] are unable to parent all of the children together given the children’s unique personalities and emotional needs. It appears that given the two . . . girls statements, the mother tends to depend on them to assist with the youngest child, M[.] When all the children are together, it appears given the children’s statements, the parents are unable to set boundaries and limits[,] which result[s] in some sort of chaos between the siblings in the home.” The agency did feel that the parents had shown themselves able to parent the two already in their care.
A CASA report for the girls echoed the concerns and recommendations, noting that Soto had “frequently been in the home” and allowed contact with all of the children. The CASA report also strongly credited the beer drinking report: “Both girls told the basics of the event to me, and further elaborated on the details of the incident when they told their foster mother about it. I was one of the two persons who reported the incident to the CPS hotline separately. Despite the fact that the girls have corroborated each other’s story, the [agency] has ruled the investigation inconclusive because the boys and [mother] will not corroborate the story. I have worked with this family for nearly three years, and I know these girls very well. I am confident [they] were telling me the truth. Both girls have been repeatedly coached by their mother that they are not to speak to the social worker nor myself about things that happen during their home visits[;] however[,] the drinking incident was the very first thing the girls mentioned when they got in the car with me that weekend. It appeared to be a cry for help.” The CASA described abusive enforcement tactics by mother: “[S]he . . . requests that they keep secrets about what occurs in the home, and reprimands the girls the next time she sees them if they talk about the wrong things. These reprimands take the form of verbal scolding, withholding gifts, and emotional manipulation, i.e.[,] telling the girls that they have disappointed her because they didn’t keep the secrets, or by disparaging one sibling to another sibling, including telling the boys that the girls have broken her heart by telling the secrets. These instances of keeping secrets and emotional manipulation have increased during the past four months. During the same period of time the girls have exhibited increasingly anxious behavior when I speak to them about their visits. They are clearly afraid to speak about anything that occurs during the visits, regardless of how benign the topic . . . . The foster mother has reported that on more than one occasion [M.C.] has come home from the weekend visits with soiled underwear, and I have personally witnessed odd behavior by both girls which I can only attribute to anxiety or distress. I strongly feel that [mother’s] actions compounded over the long term are harmful to the girls, and their reactions seem to substantiate this.” Also harmful was that M.G. was often “expected to act as a mother” to the youngest brother, M., when at home visiting her parents. “The foster parents have worked very hard to de-parentify both girls over the past 18 months, working to teach them that it is okay to be children and that they do not need to be mothers to M[.] M[.] has significant behavioral problems and requires a great deal of parenting. If the girls were to be returned home to their mother’s house, it would be detrimental to the girls if [she] continued to require them to act as parents to M[.]”
Father had finished his course and did not appear to be party to the lying and manipulation, or forbidden contact with Soto, but he had no suitable place to receive the children, having long stood in the way of even investigating his relatives for placement. Father now said that he was willing to move in with “one of his brothers” if it meant having the children returned to him, but he had not done so. His brother Fermin, despite months of prodding from the agency, had not followed through with needed letters of character reference or a personal statement regarding the offense for which he had been convicted. The prolonged delay, it was felt, meant that he was uncertain about having the children.
The CASA report briefly mentioned father having an “alleged habit of wearing women’s underwear.” “As far as the girls are concerned, [this] does not seem to be a serious issue. They have expressed to me that while they think it is a strange habit, they still love their father very much and if they are not able to live with their mother, they would like to live with their father. This alleged habit does appear to be one that causes [M. Jr.] great distress and he tells his sisters they cannot ‘love their dad.’ ”
The parents appeared on June 11, and the court appointed separate counsel for each child and set a contest for June 30. An addendum report of June 27 reiterated the agency’s recommendations and related several updates. At the end of a weekend visit, when the children were getting ready to be transported by a community worker back to the foster home, mother dealt with a child’s need to relieve himself by pulling down his pants between the van and the garage and ordering him several times—becoming “adamant” against the worker’s pleas—to “pee” on the sidewalk. When mother finally relented and shot “a hard look” at the worker, father took the child into the house to use the toilet. Days later, the foster mother reported that the three children had grown defiant and resistant to her directions since the last court appearance, the girls telling her they wanted to live with a paternal aunt because she had a swimming pool. Around the same time, mother called the social worker to have M. Jr. tell the worker (mother’s prompting audible in the background) that he did not want “a ‘man’ ” he did not know taking a shower in the house and asking the worker to convey this to father. Mother then got on the line and said father’s nephew had showered there and slept in the garage. The worker spoke by telephone to father, who said he allowed it, despite knowing of the need for a background check, because his nephew had nowhere to shower; he apologized and promised it would not happen again.
An update letter from CASA expressed alarm that mother had been making unfounded and inappropriate accusations to the children (including J.) against the foster mother. They were happy and well cared for in the foster home. Having picked up the children as they left each residence, the CASA representative related that the children were often dirty, tired and complaining of stomach pain upon leaving mother’s home, yet always clean, rested, and well fed upon leaving the foster home. A change in the foster home, she felt, would be “extremely detrimental.” She also noted a defiance by mother of the judge’s orders against inappropriate subjects that was evident even in a waiting room at the last hearing, where mother spoke to the girls “about why they should request to go live with their aunt and uncle.” The CASA wrote: “These conversations consistently cause the girls to become very stressed and anxious. In light of this, I would suggest that [mother] no longer be allowed to interact with her children without supervision”—preferably by one who spoke Spanish.
The social worker and mother testified on June 30. The social worker confirmed much of the information already in the reports in evidence. She added that mother had called her for advice about the children squabbling over the TV or ice cream, and about someone inappropriate being in the house (evidently meaning the recent presence of father’s nephew), but had allowed Soto in the home against court orders. She had admitted wrongdoing on “some occasions,” but this was not a sign of progress when mother “recants her stories.” Up until the last six months, mother “appeared to be making progress,” including learning age-appropriate expectations about the children, but since the two boys’ return to her custody, she had “regressed to kind of staying on, kind of like she wants to discipline the children and do what she wants to do.” Troubling, too, were the beer episode and stomachaches, and the coaching of the girls. Mother had told the girls “that they want to be with their aunt and uncle and that that’s where they are going to be” if not returned to her. The girls had spoken of wanting all of the siblings reunited, but not recently. Recently they had expressed wanting to return to their mother but, if that was not possible to remain with their foster mother. The youngest boy had significant speech delays and was unable to communicate completely or relate any problems.
The investigating unit had gone out to the Fermin home, but Fermin still had not submitted the letters of recommendation or his account of the federal firearms offense. Asked by father’s counsel whether there had been complaints by the older boys about father’s care, the social worker said that there had. When counsel then ceased her questioning without more, the court stepped in and, over counsel’s relevance objection, got the answer, first clearing the children from the courtroom on a prompt from the witness that the matter was “a bit delicate.” The witness explained that she learned from mother that father liked to wear women’s lingerie and that, in later discussing this with father, he did not deny it. The witness asked father to please keep the lingerie where the children could not get close to it and not to purchase any in front of them. Within a week or two after the older boys’ return, however, they started talking about their dad wearing women’s clothes. The younger one told her once, as she wrote down father’s name: “ ‘You should put down Martina. He’s a girl. My dad is a girl.’ ”
Father’s counsel objected: “Your Honor, I would like to make a preemptive strike here and object as to the relevance. This has nothing to do with treatment of the children, if it’s what I’m thinking it is.” The court replied: “You asked the question, and now I want to hear the follow-up, Ms. Miller. Ouch.”
Mother’s testimony consisted initially of mostly monosyllabic answers to her counsel asking whether she would do things she had learned from her services (“Yes”) and whether she would do again the various negative things she had done (“No”). Then came more elaborate answers on the subject of whether she would tell the children what to tell the social worker and judge. (During this subject, the court noted for the record, the children “voluntarily chose to absent themselves, one by one[.]” Asked if she had told them they should tell the judge “they want to come home,” mother said that they had asked her about coming home and that she told them: “You’re the ones that should say it, if you want to come home”; “Speak with the Judge. She’s the one who is deciding yes or no.”
Father did not testify or offer evidence, but his counsel said, in evident reference to matters already in evidence, that father was “prepared to move in with the uncle in Tracy and to care for the children in the uncle’s home,” and that the home was “almost cleared.” He urged the court to allow “the two girls and M[.] to live with their father in that house.” Mother’s counsel did not address that prospect but urged that mother was trying, in “a difficult situation,” to care for the children and keep the family together. Counsel urged that mother was “not lobbying the children.”
Counsel for the boys M Jr. and J. each said the boys wanted to remain there, and seconded that recommendation. They also expressed concern for lack of stimulation and development at home, one suggesting greater safeguards, such as unannounced visits.
Counsel for the three children in foster care were unanimous in agreeing that they should stay there, not be returned, and that all visits should be supervised. The youngest, M., could not express an opinion, but the girls had made it clear to their counsel that they wished to remain in their stable foster home.
The court ruled: “I’m extremely concerned about the children, that the department recommends I allow them to remain in the home. [¶] These parents have been violating court orders repeatedly and knowingly, and trying to manipulate the facts otherwise.” The court then had the children leave the courtroom before continuing, speaking first to father: “The issue of the cross-dressing is relevant as follows: I don’t care what you do in your personal life, sir. That’s your business. But you do it around children who are the dependent children of this court after a social worker told you not to, now it’s my business. [¶] These boys are at an age where they can begin to become very confused. You’re not helping the situation by not following the social worker’s rules.”
The court then addressed mother: “I know these children were given alcohol. My gut tells me that’s true. [¶] I also know that Mr. Soto has been in there whenever you can get away with it. That’s totally unacceptable. [¶] I also notice that Martin is overweight, is progressively still overweight, and is going to be at the same risk for diabetes that we just got his sister out of because of the bad nutritional patterns going on. [¶] This is a situation rife with bad news all the way around for these kids. And I don’t hold out . . . a lot of hope for change in the long term. [¶] I can’t in good conscience allow the boys to remain in the home unless they stick a social worker in the home to supervise 24/7; not with the information that came to light today. [¶] . . . [I]t appeared that mom has been tinkering with the department’s orders, mom has been manipulating the kids. Mom has been the main transgressor.”
The court continued: “For me to hear the social worker give the father solid advice, and he doesn’t follow it, given the stakes here in this case, having three kids already removed, that’s just beyond the pale, just beyond the pale. [¶] I expect to see a detention hearing with respect to [M. Jr. and J.] as soon as possible. [¶] As to the remaining kids, I’m going to go ahead and continue dependency [and] make all the orders and findings requested . . . .” With that, the court ordered psychological evaluations for “all five children” and, for the three still removed, ended all unsupervised contact, terminated reunification services, and set a plan selection hearing for October 27th.
Among other rulings, the court found that each parent had made “minimal” progress toward alleviating the causes requiring placement and that return of the children to either parent would create a substantial risk of detriment to the children’s physical or emotional well-being.
Discussion
I. Issues and Review Standards
The parent’s petitions each recite standards of review and claim error in denying them custody of the girls and youngest boy. This coincidence of briefing would not be unusual except that it is largely worded, and even formatted, identically. In other briefing, mother claims error in finding that she made “minimal” rather than substantial progress, and father claims that consideration of his fondness for wearing women’s lingerie was an irrelevant and unconstitutional use of his “sexual orientation.”
The parents’ briefing on standards of review covers abuse of discretion and substantial-evidence review, plus prejudice tests for ordinary error (People v. Watson (1956) 46 Cal.2d 818, 836), constitutional error (Chapman v. California (1967) 386 U.S. 18), and per se reversal. We will find no error at all, which makes prejudice immaterial. It is an appellant’s burden to affirmatively show error from the record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574), and our role in review of challenged findings is limited. “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence 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 [finding], if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) In other words, in the presence of substantial evidence, we are without the power to reweigh conflicting evidence and alter a dependency court’s determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
II. Consideration of “Sexual Orientation”
Permeating father’s briefing against the no-return finding is the notion that the court improperly considered, over his objection, that he wore women’s lingerie and that this constituted use of his “sexual orientation” in violation of his state constitutional rights to privacy, liberty, due process and equal protection (Cal. Const., art. I, §§ 1, 7; cf. In re Marriage Cases (2008) 43 Cal.4th 757, 823), and discrimination in violation of state statutes (Civ. Code, § 51 et seq. [business accommodation based on sex]; Gov. Code, § 11135, subd. (a) [access to state-funded programs or activities based on sex ]). Father cites no cases applying such limitation to what a dependency court may consider in making a no-return finding. Nevertheless, assuming for sake of argument that these rights apply in this context, we find no error.
First, the argument is forfeited. No finding or resulting decision may “be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion[.]” (Evid. Code, § 353, subd. (b), italics added.) The subject of father’s proclivity for wearing women’s underwear first arose in one paragraph of the CASA’s letter attached to the 18-month review report. That report was admitted into evidence at the very start of the hearing, without objection, and father never moved to strike any part of it.
The court said at the start of the hearing: “I have read the reports, the CASA reports. We’ve had a conference in this matter.” If father raised any pertinent objections in that conference, they were not stated for the record.
His only objection came when the social worker was asked by the court to explain “the complaints [J.] and [M. Jr.] made about the father’s care.” The objection was that the evidence lacked relevance as having “nothing to do with treatment of the children,” not that it was inadmissible for the extrinsic policy reasons now advanced (fn. 2, ante). Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action” (Evid. Code, § 210), and we review a relevance ruling for abuse of discretion (People v. Harrison (2005) 35 Cal.4th 208, 230).
The witness answered (after the children had left the courtroom): “Your Honor, approximately a year ago, the mom revealed to me that the dad likes to wear women’s lingerie. I then proceeded to talk to the dad, which he did not deny [sic]. [¶] I asked the father to please stash that lingerie where it was and not where the kids could get close to the lingerie, or that he not purchase lingerie in front of the children. [¶] Since the children were returned, probably about a week or two after—meaning the boys, [J.] and [M. Jr.]—[M. Jr.] started talking about that his dad wears women’s clothes. [¶] He went to further say not only—he said women’s clothes, basically, and that he dresses like a woman; that he spends a lot of time with the neighbor, that’s a man, and what do they do during all that time. [¶] When I was filling out an application with the mom—this is within the same time they are sitting down talking to me—I wrote the dad’s name. And [J.] said, ‘You should put down Martina. He’s a girl. My dad is a girl.’ ” Counsel for father then moved “to strike that testimony as irrelevant in these proceedings,” and the court ruled: “No. It’s not irrelevant.”
No abuse of discretion is shown. Indeed, father offers little argument against relevance (as opposed to policy grounds newly posited here), except to claim that there was no evidence that he violated the instructions. We find substantial evidence that he did violate them. Pertinent questions before the court were whether services should be terminated, in part due to noncompliance with directives of the social worker, whether the children were detrimentally affected, and whether the three that remained out of home could be returned to either parent. The court could reasonably infer, from the witness’s testimony that the boys’ distress began a week after being returned to mother, that father had in fact disregarded the social worker’s directives to be discreet about wearing or buying lingerie. This had distressed the two boys and would impede the ability to return the other siblings to mother or to trust that father would follow directives should any of the children be placed in his custody. The evidence was clearly relevant.
Even if father had preserved the policy arguments he now stresses, we see no prohibited use of his “sexual orientation.” Father does not clearly articulate his concerns but seems to assume that the court used his cross-dressing against him and would not have so penalized a parent with more pedestrian clothing preferences. We see nothing that penalized father for cross-dressing as such. The court’s remarks at the close of the hearing make this clear: “The issue of the cross-dressing is relevant as follows: I don’t care what you do in your personal life, sir. That’s your business. But you do it around children who are the dependent children of this court after a social worker told you not to, now it’s my business. [¶] These boys are at an age where they can begin to become very confused. You’re not helping the situation by not following the social worker’s rules.”
The court did not question whether a cross-dressing parent was fit for custody. Its concern was father’s disregard of the social worker’s instructions to be discreet about it, so that M. Jr. and J. were not distressed. It should have been easy for father to be discreet about the underwear, especially when he slept in the garage or at his brother’s restaurant. The boys were 8 and 13, ages when assumptions and peer pressure beyond the agency’s control could make father’s behavior disconcerting, and the boys’ negative reactions signaled potential trouble in reunifying with other siblings. Father’s disregard of instructions also posed doubt that he could follow other instructions should he have any of the children placed in his care. The CASA letter likewise showed no disapproval of him having custody due to “sexual orientation.” It stated, rather, that the habit did not itself “seem to be a serious issue” in that the girls, then ages 9 and 10, had told the CASA “that while they think it is a strange habit, they still love their father very much[.]” The problem, the CASA noted, was that the habit “does appear to be one that causes [M. Jr.] great distress[,] and he tells his sisters they cannot ‘love their dad.’ ” It does not appear that the CASA, the social worker, or the court assumed that Martin and Jose could not address their discomfort through counseling; the short-term need, however, was that father not aggravate the situation in the meantime. The record does not suggest that the court would have been any less concerned about the children being distressed by sexually charged behavior by a parent who did not cross-dress.
The youngest child M.—age five with “significant behavioral problems” and impaired ability to communicate—was evidently too young or inarticulate to express a view about his father’s dress habits. At least none is reported.
Father’s claim of erroneous use of his “sexual orientation” is therefore forfeited and, even if preserved, not supported by the record.
III. No-Return Findings
In declining to return the three children to either parent, the court found, by a preponderance of the evidence, that return would create a substantial risk of detriment to the children’s physical or emotional well-being. (§ 366.22, subd. (a).) Both parents attack that finding. Father argues: “There is no evidence let alone any substantial evidence in the case at bar to suggest that [he] should not take custody of his children.” “[He] has learned to overcome the problems which originally brought his children into the system. Over the course of this matter, [father] has demonstrated a dedication and ability to provide for his children’s needs in an appropriate manner. Admittedly, he will need the assistance of his extended family because of his limitations. However, [he] is prepared to do whatever is necessary, including moving in with his brother, in order to have his children returned to his care.”
Mother parrots: “There is no evidence let alone any substantial evidence in the case at bar to suggest that [she] should not take custody of her children.” “[She] has learned to overcome the problems which originally brought her children into the system. Over the course of this matter, [mother] has demonstrated a dedication and ability to provide for her children’s needs in an appropriate manner. Admittedly, she will need the assistance of her social worker because of her limitations. However, [she] is prepared to do whatever is necessary, including moving in with his brother [sic], in order to have her children returned to her care.”
The petitions’ nearly identical wording would make it impossible to tell which was the source and which the copy except that the last-quoted sentence above shows that mother’s petition inadvertently copies a sentence that only applied to father.
Both parents stress their progress as of the 12-month review, when the two boys were returned to mother’s care. The reports were then optimistic, congratulatory in what each had accomplished, and held out a hope of complete reunification within the time remaining. The reality, however, is that progress was lost over that time, and the parents improperly ignore most of those facts in claiming insubstantial evidence for the no-return finding.
Return to father.
We have already rejected father’s view that no evidence shows him having violated the social worker’s instructions. He suggests that deterioration of the two boys in mother’s custody was more attributable to her foibles than his own, but the glaring and dispositive problem for him is that he never showed himself ready to take the children into a suitable home. He was no longer intimate with mother, to whom he had been a sometime “roommate,” sleeping in the garage or, most often, at his brother’s restaurant. Mental health evaluations had found him to be cooperative and motivated but incompetent to care for children alone, without family assistance. This was due partly to mental retardation, organic brain dysfunction, poor empathy and insight, and extremely concrete cognitive abilities, matters largely irremediable through services.
Father cites the agency investigation into the home of his brother and employer, Fermin, and this representation by his counsel at the close of the hearing: “[Father] is prepared to move in with the uncle in Tracy and to care for the children in the uncle’s home. We believe it would be appropriate for the two girls and [M.] to live with their father in that house. [¶] . . . [¶] The relatives’ home has been assessed and is almost cleared. The uncle just needs to provide a couple letters, and the clearance will occur.”
Contrary to the impression presented by trial counsel, however, the prospect was not so near completion, and had been thwarted in part by father himself. Father was initially set on “transitioning to becoming the mother’s roommate,” and expressed no interest in having custody on his own. Deferring to mother’s wishes that none of his relatives have custody, Father joined her in refusing to sign parental information forms about potential relative caregivers. Then in late August 2007, he did sign a form and name his brother Fermin as a possible caregiver. A social worker ran a “Livescan” check on Fermin that showed a federal conviction for “ ‘Illegal Alien in Possession of a Firearm with Conspiracy to Unlawfully Export’ ” for which Fermin had served probation and a year in jail. Still, the worker consulted a Department of Justice analyst who opined that the agency might submit an “exemption” given that Fermin had since achieved United States residence status and had no further criminal history. In late November 2007, another social worker spoke directly with Fermin about having his niece (evidently a cohabitant) submit a Livescan check and told Fermin that he also needed to submit three letters of character reference plus his personal recollection of the event that led to his federal conviction. Fermin said that he would.
Fermin did not, however, and the agency’s home-finding unit notified the social worker in early February 2008 that the relative assessment was discontinued due to “lack of follow-up by the family.” Advised of this by the social worker, Fermin said he had been delayed by an unexpected trip to Mexico but had meant to have the children placed in his care and would follow up with the needed documentation. The social worker sensed that Fermin was “uncertain” about having the children, and Fermin’s wife left a phone message a week later saying that the family’s mortgage had increased, and that they were “in danger of losing their home” and “dealing with a lot [of] stress” about possible foreclosure. Father told the social worker in late May that “he would be willing to move in with one of his brothers if it meant that he could have his children returned to his care.”
The social worker spoke directly with Fermin again in early June 2008. He told her he was “interested in having the children if [they] were not returned to” mother. If father came to live with their family in Tracy, they would be able to provide support for him and the children; but, Fermin cautioned, father would have a hard time finding a job in Tracy and supporting the children. Fermin said he and his wife were “interested in having the children” but that “it would be challenging” to take all five.
That is where the matter stood four weeks later, at the June 30 hearing where father was denied return of the children. The social worker confirmed in testimony that the home-finding unit’s investigation had found the Fermin home to be a potential and appropriate placement but that Fermin had never submitted the three reference letters or his statement about the federal firearms conviction. Father did not testify or otherwise provide new evidence about Fermin’s willingness to be a caregiver or whether Fermin would ever furnish the documentation. Nor was it shown that father had moved into Fermin’s household, or was in the process of doing so. Thus, there was no evidence to support father gaining an immediate or imminent assumption of custody.
On that evidence, with the statutory time for reunification having passed and Fermin having failed to produce the documentation after more than seven months of prodding from the agency, the court logically declined to act upon counsel’s unsworn representation that father was “prepared to move in with the uncle” and that the Tracy home was “almost cleared.”
The no-return finding as to father is therefore supported, even without need to weigh his violation of orders and instructions, including having recently introduced a nephew to mother’s house, to sleep and shower, without first securing a background check and clearance that he admittedly knew the agency required. Father’s lack of a suitable home with requisite assistance showed the requisite substantial risk of detriment to the children’s well-being. (§ 366.22, subd. (a).)
Return to mother.
A mental health evaluation had also judged mother to be unfit to care for children unassisted, due in part to mental retardation and other problem similar to those affecting father. Nevertheless, mother had seemingly committed herself to the case plan courses and therapy, completed those requirements and, by the 12-month review, convinced the agency that she could care for two of the boys then and perhaps all of the children later.
We have set out the results at length in the background portion of this opinion, and it is enough to say that the optimism rightfully turned sour, starting with the return of the two boys, with problems experienced by the other three from visits. There is substantial evidence that mother knew the rules, had seemingly learned many of the skills taught in courses and therapy, yet quickly regressed. She willfully disobeyed court orders, hid her misdeeds from the agency, and emotionally manipulated the girls (and boys in her care) into doing the same, causing the girls great distress and anxiety, and all three of the other children loss or compromise of gains achieved before the older boys’ return.
Thus, despite mother’s mostly conclusive briefing to the contrary, substantial evidence supports the findings that return of any of the three would create a substantial risk of detriment to the children’s physical or emotional well-being (§ 366.22, subd. (a)).
IV. Mother’s “Minimal” Progress
Mother’s assault on the finding of “minimal” progress by her suffers from the same lack of care in copying father’s briefing as shown in earlier arguments, for she touts the case plan progress made by father, quoting his briefing word for word. Assuming, however, that she means to tout her own case plan progress, we can see that she did finish substantially all of her coursework and therapy. In the end, however, she chose duplicity and manipulation over following what she had learned, especially to the detriment of the three children not yet returned to her. Indeed, Mother’s regression alarmed the court even with respect to the boys already returned to her care. Her progress, in other words, was “minimal” not in the sense of initial follow through, but in demonstrating that she could utilize it for the benefit of her children. Substantial evidence supports the finding.
Disposition
The petitions are denied on the merits (Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888 [barring subsequent challenges by appeal]; § 366.26, subd. (l)(1)); given the imminency of the permanency planning hearing set for October 27, 2008, our decision is final as to this court immediately (Cal. Rules of Court, rule 8.264(b)(3)).
We concur: Kline, P.J., Haerle, J.