Opinion
H043712
04-10-2017
In re L.W., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15JU00048)
S.W. (mother) appeals from the juvenile court's order under Welfare and Institutions Code section 388 to terminate previously ordered reunification services with her daughter, L.W. (minor), on the ground that mother was suffering from a mental disability that rendered her incapable of utilizing those services (§ 361.5, subd. (b)(2)). Mother contends that termination of her reunification services violated federal law prohibiting discrimination in child welfare proceedings against a parent with a mental disability and was not supported by substantial evidence. Mother also contends that the juvenile court erred in finding that termination of her reunification services was in minor's best interests and that the Santa Cruz County Department of Family and Children's Services (Department) provided mother with reasonable services during the reunification period.
Unspecified statutory references are to the Welfare and Institutions Code.
For the reasons stated herein, we affirm the order of the juvenile court.
Although mother also initially challenged the Department's compliance with the Indian Child Welfare Act of 1978 (ICWA), she conceded in her reply brief that the issue was not ripe at the time this appeal was filed.
I. FACTUAL AND PROCEDURAL BACKGROUND
This court granted judicial notice of mother's prior appeal in In re L.W. (Aug. 29, 2016, H043388 [nonpub opn.]). The factual background underlying the jurisdictional and dispositional orders (sections I.A and I.B) is taken from this court's prior opinion. We have provided additional facts where necessary for consideration of the issues in the present appeal.
A. Dependency Petition and Detention Hearing
On November 9, 2015, the Department filed a juvenile dependency petition on behalf of minor (born 2005), alleging a failure to protect (§ 300, subd. (b)) and serious emotional damage (§ 300, subd. (c)).
The petition included the following facts relating to minor's father. Father has "possible mental health issues [which] render[] him unable to supervise or protect the minor adequately from the conduct of her mother . . . . [Father] lives in the family home and is aware of the conduct of the mother. [Father's] failure to protect includes allowing [mother] to verbally and emotionally abuse their daughter . . . and stunt her emotional and developmental growth . . . . [Father's] inability to be protective places his daughter . . . at substantial risk of serious physical harm."
With respect to mother, under section 300, subdivision (c), the petition alleged that minor was at risk of emotional harm due to: (1) mother's "focus[] and preoccup[ation] with" minor's food intake which "has contributed significantly to [minor]'s development of disordered eating patterns"; (2) mother shaming minor in front of others "calling her 'an idiot,' 'coocoo' [sic], 'insane,' 'a bitch' and telling [the minor] that she needs to live somewhere else because she is high jacking [sic] [mother's] life"; (3) mother treating minor like a toddler rather than a 10 year old, "making [minor] play with toddler toys, sit at a toddler chair and a toddler desk for which [minor] is too big for [sic], making [the minor] wear diapers to bed and not allowing [minor] to clean herself after having a bowel movement or learning how to shower on her own. [Mother] strips [minor] in the garage and wipes her down with antibacterial wipes before she is allowed to enter the home, [minor] is not allowed to socialize with her peers"; (4) mother's preoccupation with minor's "bowel movements and regulating when and how much her daughter goes to the bathroom"; (5) mother's inappropriate use of public services, such as calling 911 when minor will not get dressed, taking minor to the emergency room when she refused to go to school and when she pierced her own ears; and (6) mother's exaggeration of minor's symptoms to service providers, such as by telling them minor was diagnosed as autistic and claiming minor is "violent, belligerent, angry and assaultive," whereas at school, minor is a " 'model student' who is advanced academically, socially appropriate, articulate, calm, controlled and confident."
At the initial hearing on the petition, the juvenile court granted mother and father's request for a contested detention hearing, ordered temporary detention of minor pending the hearing, and found that ICWA may apply. The court ordered the Department to give notice to the appropriate tribes and the Bureau of Indian Affairs. At the contested detention hearing on November 16, 2015, the court found a prima facie case that removal of minor from parents' custody was necessary to protect her physical or emotional health.
On November 10, 2015, mother filed a "Parental Notification of Indian Status" form stating that her "6th great-grandmother ago" was a member of the "Delaware tribe (Lenni-Lenape)" and part of the "Turtles or one of two other[] [bands] (?)." Father's form indicated he had no Indian ancestry as far as he knew.
B. Jurisdiction and Disposition Report , Addendum , and Hearing
The jurisdiction/disposition report, filed on December 15, 2015, recommended that minor be made a dependent of the court and remain in out of home care, and mother and father be provided family reunification services.
The report described minor as "a bright child who [wa]s excelling in school" and talented in theatre, singing and gymnastics. It noted that minor was a client of the Regional Center due to an autism diagnosis when she was seven years old, but that she needed to be "reassessed" because her behavior had changed dramatically with rehabilitation in school. Minor required "special help with mental health, particularly anxiety" but academically functioned above average. Since her removal, minor told the social worker repeatedly that she wanted more privacy and independence at home but did not want to be removed permanently and wanted to be with her family. Minor was doing well in foster placement but expressed some anxiety after visits and phone calls with mother.
"Regional Center" refers to the San Andreas Regional Center.
The Department asserted that mother had "suffered from severe mental illness since the birth of her child" and that "[d]espite repeated attempts by CPS [child protective services] and other service providers to help mother parent safely over the last 10 years, [she] denies she has any problems so continues to go undiagnosed and untreated." The report stated that mother "has been overly controlling, demeaning, disconnected from reality and obsessed with [minor]'s diagnoses since birth and now [minor] is presenting with physical and mental health concerns as a result." Based on mother's failure "to engage in any service referrals to address her own mental health or parenting" and continued preoccupation with minor's behavior and medical issues, the Department requested that mother undergo two psychological evaluations. The evaluations would indicate, pursuant to section 361.5, subdivision (b)(2), if mother could benefit from family reunification services or "whether her mental disabilities render[ed] her incapable of utilizing those services."
At the December 15, 2015 hearing, the juvenile court granted the parents' request to set the matter for settlement conference and a contested hearing, and ordered mother to undergo psychological evaluations under Evidence Code section 730.
Evidence Code section 730 governs the appointment of an expert by the court.
The Department filed an addendum to the report on January 26, 2016 (addendum) reporting that both parents had been communicative with the social worker and had begun to engage in case plan services. They had indicated that they were "willing to do anything" for minor. Mother had started individual counseling with Joy LeClair at the Parents Center, was enrolled in a parenting class, and had agreed to complete a psychological evaluation. Mother disagreed with the petition allegations and denied that she was causing minor anxiety. She "made efforts to follow" the rules and boundaries established by the social worker regarding phone calls, scheduling of medical appointments, and gift giving to minor. Mother also "took multiple redirections" from the social worker and staff at the Parents Center. Mother often contacted the social worker and asked clarifying questions. The therapist who supervised the visits stated in January 2016 that mother was making progress and trying to follow boundaries.
For purposes of this appeal, we need not discuss father's relationship with minor or his participation in the case plan.
Minor was adjusting to the foster home. Minor told the social worker that she wanted to go home "but not until everything at home is good."
The social worker spoke with several individuals who participated in minor's care. Minor's pediatrician stated that she disagreed with the autism diagnosis, though she may not have a "modern view" of autism. She believed many of minor's symptoms "could have been stress induced." The pediatrician expressed concern that mother had difficulty reading minor's cues and following advice, though she noted that in the last year and a half, mother "was being more supportive of [minor]." The pediatrician believed that minor could not get better at home and needed to be in an environment where normal behaviors were modeled.
Minor's pediatric gastroenterologist said that he had referred minor for bio-feedback therapy for treatment of her encopresis and enuresis but, alternatively, minor "might get better with a different style of parenting."
The case manager at the regional center said that minor was not a typical client, and several service providers had expressed concern that mother had misrepresented minor's symptoms and possibly had her own unaddressed mental health problems. Minor had been assessed for services at the center three times. The first two psychological assessments, completed in March 2012 and early 2013, concluded that minor did not meet the criteria for autistic disorder, did not have a developmental disability, and did not qualify for services. Mother and father requested a "fair hearing" that considered a psychological evaluation of minor completed by Dr. Pegeen Cronin in July 2013, based on which minor met the criteria for autism spectrum disorder and began receiving services. The social worker had not been able to speak with Dr. Cronin for more information.
The jurisdiction/disposition hearing took place on February 26 and 29, 2016. Father submitted on the information in the social worker's report and submitted to the allegations of the petition. At the conclusion of the contested hearing for mother, the juvenile court found the petition allegations to be true and sustained the petition. The court directed the Department to provide family reunification services to parents, including twice-weekly supervised visitation. Mother's case plan consisted of counseling, psychological evaluation, and parenting education. The court limited mother's right to make educational and medical decisions for minor. The juvenile court made no findings or orders on the ICWA.
Mother appealed from the jurisdictional and dispositional orders in an earlier appeal, discussed ante at footnote 2. This court found no evidence in the record that the juvenile court had fulfilled its duty to ensure compliance with ICWA at the time of the jurisdiction/disposition hearing. On that ground, we reversed the jurisdictional and dispositional orders "for the limited purpose of ensuring compliance with the inquiry and notice requirements of" ICWA and directed the juvenile court to comply with those requirements and to "reinstate the jurisdictional and dispositional orders if no tribe responds that the minor is a member or is eligible for membership." (In re L.W. (Aug. 29, 2016, H043388 [nonpub. opn.].)
C. Psychological Evaluations of Mother
The referral for court-ordered psychological evaluations identified five questions: "1. What is the parent's DSM IV diagnosis? [¶] 2. Does the parent suffer from a mental incapacity which renders the parent unable to care for and control the child adequately? [¶] 3. Does the parent's mental incapacity render the parent incapable of utilizing reunification services? [¶] 4. If the parent's mental incapacity renders them incapable of utilizing reunification services and services were nonetheless provided, would the parent be unlikely to be capable of adequately caring for the child within . . . 12 months . . . ? [¶] 5. If the parent's mental incapacity does not render them incapable of utilizing reunification services, what services would you recommend to help the parent become able to adequately care for the child?"
a. Evaluation by Dr. Gerard Chambers
Dr. Gerard Chambers, a clinical neuropsychologist, evaluated mother in February 2016. Dr. Chambers concluded that mother presented with "severe personality disordered psychopathology, several clinical correlations with a Factitious Disorder Imposed on Another, and an Obsessive-Compulsive Spectrum Disorder," but indicated "some diagnostic uncertainty caused by [mother]'s defensive posturing/responding during the assessment process."
The DSM diagnoses were "F60.89 Other Specified Personality Disorder, Severe," "F45.9 Unspecified Somatic Symptom and Related Disorder," and "F42 Other Specified Obsessive-Compulsive and Related Disorder."
Dr. Chambers identified several behaviors that were "extremely disturbing" and signaled "severe mental health concerns and a clear incapacity to parent." These included mother's "proclivity towards 'infantizing' her daughter by forcing her to sleep in a crib at the age of (7), sleeping next to her, having the daughter wear pull-ups, . . . dietary boundary violations, administering laxatives against medical advice, a lack of boundaries during toilet training and hygiene behaviors, 'baby gates' throughout the home, the constant offering of age inappropriate gifts, verbal abuse, truancy, and the constant barrage of medical and clinical personnel suggesting the mother is pathological with her daughter . . . ."
Dr. Chambers determined that mother may be "unable to regulate her affect" and found she displayed "ideations of persecution," as in "a conspiracy among" minor's doctors and service providers "to remove her daughter without any rational basis." Dr. Chambers explained that "individuals with this level of denial, poor introspective skills and/or intentional deceit are very difficult to treat and therefore, are highly unlikely to change." He concluded that if mother did not receive "adequate longitudinal treatment in which psychological practitioners can verify her ownership of the abusive behavior, and a willingness to remediate it; she may be incapable of utilizing reunification services." He also stated that mother denied "any and all personal dysfunction" and opined that until she could understand and articulate what she had done wrong, and make "consistent observable" changes in behavior, a premature reunification with minor "could have dire consequences" for the child.
Dr. Chambers recommended that mother receive twice-weekly psychotherapy from a practitioner experienced in "treating By Proxy Factitious Disorders in forensic matters, and severely personality disordered individuals with highly dysfunctional defense mechanisms with high intellect, a manipulative interpersonal style and odd ritualistic compulsions." He indicated that mother required "measurable outcomes" and supervised observation over a prolonged period of time "displaying unequivocal evidence that the mother's dysfunction has subsided," family therapy, and a psychiatric evaluation to determine if psychotropic medication was necessary.
b. Evaluation by Dr. Richard Alloy
Dr. Richard Alloy, a psychologist and neuropsychologist, completed a psychological evaluation of mother in April 2016. Dr. Alloy concluded that mother suffered from personality disorder not otherwise specified with narcissistic, compulsive, and histrionic traits, as well as anxiety disorder not otherwise specified and "possible" factitious disorder by proxy.
The DSM diagnoses were "301.9 Personality Disorder Not Otherwise Specified with Narcissistic, Compulsive, and Histrionic traits (Primary Diagnosis)," "300.00 Anxiety Disorder Not Otherwise Specified," "300.19 (Possible Factitious Disorder by Proxy)."
Dr. Alloy observed that mother's thought process was "not intact" but found "no evidence of any thought disorder, such as paranoid ideation or delusions, thought or behavior control, or thought broadcasting, insertion or deletion." He explained that mother's psychological testing was "so strongly affected by her tendency to minimize problems that no Axis I symptoms were identified." He determined that mother scored "very highly on the personality disorder scales for compulsive traits and high on histrionic traits." Dr. Alloy further noted that her profile "is difficult to associate directly with a diagnosis" and gave examples of diagnoses for the exhibited traits.
Dr. Alloy opined that mother's interview traits were "consistent with the test results in being rigidly self-centered, narcissistic, and controlling as well as having little to no insight, poor judgment, and clearly a great deficit in her capacity for empathy as regards her effect and impact on others." Dr. Alloy observed it was "clear that [mother] loves and wants to keep her daughter . . . ." He did not find mother's conduct regarding minor to be "conscious, intentional, or malicious" but noted it presented "a vicious cycle with a severe end result."
In response to the referral questions, Dr. Alloy opined that due to the "personality disorder and the history," mother was both unable to care for and control minor adequately, and incapable of utilizing reunification services. Dr. Alloy further opined that even if services were provided, mother would be unlikely to be capable of adequately caring for minor in 12 months primarily due to the "Axis II personality disorder traits which are by definition longstanding, characterological, and very highly resistant to change." This was "supported by reports of her consistent inability to take and follow parenting directions." He responded "[n]ot applicable" to the question about recommended services to help the parent adequately care for the child, if the parent is not incapable of utilizing reunification services.
Dr. Alloy nevertheless made suggestions about treatment. He opined that in light of the "psychological factors," further parent education would "probably be of limited or little usefulness." He added that parent education should continue, however, should mother continue to have parental contact with minor. He recommended that mother continue in psychotherapy and offered detailed suggestions for the method and focus of treatment. He also cautioned that "[t]his is one of the more untreatable groups of patients due to the fixity of their denial of hostility."
D. Further Proceedings
a. Section 388 Petition for Modification
On May 6, 2016, the Department filed a petition alleging a change in circumstances (section 388 petition). The Department requested that the court modify its disposition order pursuant to section 388 to terminate family reunification services for mother under section 361.5, subdivision (b)(2) (hereafter the "bypass provision"). In support of the section 388 petition, the Department cited the conclusions of Dr. Chambers and Dr. Alloy, as well as feedback from mother's parenting class instructor, individual therapist, and the social worker. The Department also filed an addendum report which provided an update on the family's circumstances, mother's participation in parenting class and individual counseling, and visitation (May 6 addendum).
The Department recommended continuing family reunification services for father.
The May 6 addendum stated that mother regularly attended visits with minor. Lisa Ward, the family therapist who supervised the visits, told the social worker that mother and father continued to have challenges during visits, including arguments and emotional outbursts from mother. Mother had difficulty responding to redirection and reading minor's cues. Ward also shared positive aspects of the visits and noted that mother and minor "love each other a lot."
The parenting class instructor, LeClair, who also served as mother's individual counselor at the Parents Center, told the social worker that mother had made no progress in the parenting class or in relation to her therapeutic counseling goals. The minor's foster parents reported that phone calls between minor and mother often upset minor and increased her anxiety, due to inappropriate comments by mother, or mother's failure to pick up the phone or return minor's call.
The social worker described her own interactions with mother in which mother "continued demonstrating concerning behaviors and thought processes." These included mother blaming minor or minor's behavior for her removal, deflecting any discussion of her own mental health challenges to minor and minor's difficulties, and exhibiting difficulty responding to redirection in all contexts. Mother remained "hyper-focused on medical issues related to [minor] and herself." The social worker reported that mother had been able to follow boundaries, when clearly articulated in writing, though she often required multiple redirections and clarifications. Even so, mother expressed her desire to reunite with minor and stated that she wanted to "fix things in the home," was willing to take medication if it would help, and indicated her willingness to engage in services.
The Department acknowledged mother's love for minor and efforts to address the Department's concerns by engaging in recommended case plan services and reportedly making changes in the home, such as taking down the toddler gates and "getting rid of things." However, the Department argued that it was no longer in minor's best interests to continue to provide family reunification services to mother, because mother "continued to exhibit concerning behaviors in multiple settings" and as reported by service providers, had "not made progress in changing her emotionally abusive behaviors towards her daughter." Mother's inability to acknowledge her role in the problems that led to minor's removal, lack of insight into her own behaviors, difficulty following boundaries or "understanding the underlying purpose of the rules and guidelines established by the Department," and failure to see "any link" between her parenting and minor's challenges "continue[d] to put [minor] at risk of emotional harm." Citing Dr. Chambers's and Dr. Alloy's evaluations indicating it was unlikely mother would be able to address her mental health needs and make behavioral changes in the necessary timeframe, the Department requested that the juvenile court terminate family reunification services for mother.
Evidence throughout the record suggested that mother had possible challenges with "hoarding" and "clutter."
b. Contested Hearing on Section 388 Petition
The matter proceeded to a contested hearing on July 6, 2016, at which mother and the social worker testified. The Department's reports and all attachments, including the May 6 addendum to the section 388 petition and the psychological evaluations, were admitted into evidence. Mother introduced three exhibits, including supervised visit logs and a letter from Marga Vaquer, the therapist who mother had begun working with about three weeks earlier, in June 2016, along with three pages of handwritten notes by mother.
Social Worker's Testimony
Department social worker Stefanie Wolf testified regarding mother's progress with the case plan. Mother had completed a "Triple P" parenting class. The class was not "specifically designed and tested" to meet the needs of parents with disabilities and children with disabilities, but "it could be applicable."
Mother also had attended visitation twice a week together with father. However, mother, father, and the family therapist requested about two weeks prior to the contested hearing that mother and father have separate visits. Since that change, Wolf had supervised one visit, in which mother and minor "were interacting well" and there was no need to redirect mother.
Wolf testified that in mid-March, mother's individual therapist at the Parents Center, LeClair, informed her that the Parents Center did not have the skills needed to provide counseling for mother long-term. Wolf connected mother with "Adult Mental Health," a voluntary program that she thought would be "most skilled in dealing with" mother's "complex need . . . and mental health challenges." Mother informed Wolf on March 22 that she was not eligible for services through Adult Mental Health, so Wolf contacted various colleagues and providers to ask for recommendations. Wolf referred mother to Vaquer in early May, who was "the most closely suited" based on Dr. Chambers's recommendations and the concerns that the Department wished to see addressed. Vaquer had experience with clients who were involved with CPS as well as clients dealing with personality disorders and behaviors.
Mother's Testimony
Mother disagreed with the assessment of the parenting class instructor. She testified that to provide emotional safety for minor, she had learned from the parenting class to listen to minor, observe her, slow down, and ask her questions.
Mother testified that she had participated in therapy with LeClair from January to June 2016, and had her first session with Vaquer on June 10. On the advice of Vaquer, mother wrote three pages of notes about what she had learned. Mother testified that she was willing to participate in services to improve her mental health. She hoped the court would allow her to continue counseling and other services, because she loves and "will do anything" for her daughter. She added, "I want the opportunity to show that I'm able to learn what the Court has set forth for me, the goals, and I want an opportunity to have further parenting instruction beyond the scope of the basic parenting class. [¶] . . . [I]f there's any area in which I was lacking during the first parenting class, I would like an opportunity to repeat those parts and work with [minor]."
Mother testified regarding progress that she felt she had made toward the goals discussed in counseling with LeClair. She described being a victim of abuse by father, stating that in the last couple of months she had taken steps like going to the police station and the Women's Center. She testified that Vaquer suggested she try to put aside the issues with father until after the court date on the section 388 petition, so she had been trying to avoid him.
Mother acknowledged difficulties during the visits with minor in March 2016. Though she tried to follow redirections, "it was not easy in [father's] presence." She felt that the visits were going better and were "less stressful" since she started visiting minor on her own. She stated that she was complying with the boundaries on medical appointments, phone calls, and gift giving.
Regarding the psychological evaluations, mother denied several factual statements that Dr. Chambers included in his report. Mother stated that she "never deviated at all from" minor's prescriptions for laxative; if anything, "maybe I didn't question the doctors enough."
Arguments of Counsel
Counsel for the Department argued that the psychological evaluations constituted a change of circumstances, and that the evidence of mother's mental disability and inability to utilize services satisfied the conditions under section 361.5, subdivision (b)(2). Counsel for minor joined in the Department's argument. She explained that minor loved her parents very much, wanted to be reunified with mother, and hoped that her parents would be able to make the changes so that she could return home. However, counsel concluded that in light of the psychological evaluations, Parents Center reports, visit logs, and mother's own testimony and notes, mother was not able to benefit from the services being provided. Counsel for minor argued that it was not in minor's best interest to continue the services to mother, noting the "unlikeliness of reunification" was "only leaving [minor] in limbo for a longer period of time." Counsel believed it was in minor's best interest to "be placed in a concurrent home as soon as possible."
Counsel for mother pointed out that mother was willing to comply with whatever services the court recommended and argued that the evidence in the record showed that mother could benefit from services in order to reunify with minor. Counsel argued that the opinion of Dr. Chambers was "not conclusive" that mother could not benefit from services, and Vaquer's letter indicated her willingness to work with mother. Moreover, counsel for mother argued that a review of all the visitation logs showed that visits for the most part went very well, with mother responding appropriately to minor. Finally, counsel for mother argued that the services provided to date were not tailored to the unique needs of the family and violated the rights of mother and child under the Americans with Disabilities Act (ADA).
c. Order Terminating Reunification Services for Mother
The juvenile court prefaced its decision by recognizing mother's love for minor and "the love that [minor] clearly has for you." The court found the evaluations of Dr. Alloy and Dr. Chambers to be "incredibly persuasive, supported by an accurate factual recitation of the case, and . . . corroborated by not only the mother's handwritten statements that are in [evidence] showing what she perceives as her parenting style, but also her testimony here on the stand . . . showing an absolute lack of insight into what happened and why this case came to the attention of the Department and why the parenting that she's engaged in and unable to have any insight into has caused such trauma and arrested development in her daughter who she loves."
The court found "overwhelming" evidence that mother suffered from a mental disability that rendered her unable to utilize reunification services, even if she continued to receive such services. It described the visitation logs as showing "very disturbing parent-child interactions" in which mother was "stuck" even as minor was "gaining insight into her behavior . . . ." The court concluded that "given the severity and the depth of the underlying pathology," it would not be in minor's best interest to continue the reunification process "when the evidence before me is clear and convincing that it won't work . . . ." The court further found that the Department had provided reasonable reunification services to assist mother in overcoming the issues that led to minor's removal.
In an order filed on July 6, 2016, the juvenile court ruled that the section 388 petition was supported by a change in circumstances and it was in minor's best interest to terminate reunification services for mother. The court found by clear and convincing evidence that mother suffered from a mental disability that rendered her incapable of utilizing reunification services and made it unlikely that she could adequately care for and control minor after 12 months, even with continued family reunification services. The court also found, by a preponderance of the evidence, that reasonable services had been offered to mother. The court ordered termination of mother's family reunification services and directed the Department to begin tapering mother's visits to a minimum of twice a month.
II. DISCUSSION
A. Reunification Services in the Context of a Parent's Mental Disability
Mother argues that she was unfairly denied reunification services on account of her mental disability. She asserts that among families brought into the child welfare system, a parent whose inability to adequately care for a child is coupled with mental disability is placed on a "fast track to the permanent loss of their right to the care, custody and control of their child." Mother contends that because her mental disability was diagnosed for the first time during these proceedings, she was not given the same chance to reunify as other parents. For example, in contrast with application of the bypass provision to a parent with a history of chronic alcohol or drug abuse who has resisted treatment (§ 361.5, subd. (b)(13)), a parent may be bypassed due to a mental disability regardless of whether they have had any prior treatment. Mother argues that this equates to a presumption of parental unfitness, as it allows a bypass of reunification services based not on the parent's conduct but on the existence of a mental illness. Mother argues that this "presumption of parental unfitness" violates the ADA (Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.), under which parents with disabilities must be given equal opportunity to obtain the same result or gain the same benefit in dependency proceedings as that provided to others.
Mother refers this court to several detailed accounts in the literature. (See, e.g., Chris Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded (1995) 83 Cal. L. Rev. 1415, 1438 [describing ways in which "presumptions of unfitness continue to subtly define the law's approach to parents" with developmental disabilities]; Jeanne M. Kaiser, Victimized Twice: The Reasonable Efforts Requirement in Child Protection Cases When Parents Have A Mental Illness (2011) 11 Whittier J. Child & Fam. Advoc. 3, 18, fn. 81 [noting that other than mental disability, all circumstances under California's reunification bypass provision relate to the parent's behavior and not their status].)
We address only whether section 361.5, subdivision (b)(2), as applied here, violated mother's rights under the ADA. We find that the procedural protections of the challenged bypass provision sufficiently protected mother's rights under the law. A short summary of the statutory scheme may be useful.
There is a presumption in dependency cases that families will receive reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95.) Section 361.5, subdivision (a) directs the juvenile court to order reunification services "whenever a child is removed from" parental custody, unless the case is within the enumerated exceptions in section 361.5, subdivision (b). (Cheryl P. v. Superior Court, supra, at p. 95.) This framework "implements the law's strong preference for maintaining the family relationship if at all possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 (Baby Boy H.); see § 202, subd. (a) ["reunification of the minor with his or her family shall be a primary objective"].) Reunification services are designed "to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child." (Baby Boy H., supra, at p. 478.)
Section 361.5, subdivision (b) expresses "a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child's interests." (Baby Boy H., supra, 63 Cal.App.4th at p. 474.) This may be because "the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation" (In re T.G. (2015) 242 Cal.App.4th 976, 986 (T.G.)) or because "it may be fruitless to provide reunification services under certain circumstances." (In re Rebecca H. (1991) 227 Cal.App.3d 825, 837 (Rebecca H.); accord Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.) The statutory sections authorizing denial of reunification services are sometimes referred to as "bypass" provisions. (T.G., supra, at p. 986.)
Section 361.5, subdivision (b)(2), the bypass provision at issue here, states that reunification services need not be provided to a parent when the court finds by clear and convincing evidence that the parent "is suffering from a mental disability . . . that renders him or her incapable of utilizing those services." The section incorporates the Family Code's definition of mental disability as "a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately," as determined by two qualified experts. (Fam. Code, § 7827, subd. (a); id., subd. (c).) The statute further provides that when a parent is alleged under section 361.5, subdivision (b)(2) to be incapable of utilizing services due to mental disability, "the court shall order reunification services unless competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the time limits specified in subdivision (a)." (§ 361.5, subd. (c)(1).)
The experts must each be either a certified "physician and surgeon" or "a licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders . . . ." (Fam. Code, § 7827, subd. (c).)
The time limitation for family reunification services when the minor removed from parental custody is over the age of three is "12 months after the date the child entered foster care . . . ." (§ 361.5, subd. (a)(1)(A).)
The bypass of mother's reunification services pursuant to section 361.5, subdivision (b)(2) thus required findings supported by clear and convincing evidence of a mental disability that rendered mother (1) unable to care for and control minor, as determined by two qualified psychologists, and (2) incapable of utilizing reunification services, as well as evidence from competent mental health professionals that, even with services, mother would be unlikely to be capable of adequately caring for minor within a time limit of 12 months. (§§ 361.5, subds. (b)(2), (c); Fam. Code, § 7827, subds. (a), (c).) Upon application of the bypass provision, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Baby Boy H., supra, 63 Cal.App.4th at p. 478.)
b. ADA
"Title II of the ADA prohibits discrimination in the furnishing of public services by governmental agencies." (In re Anthony P. (2000) 84 Cal.App.4th 1112, 1115 (Anthony P.).) It provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (42 U.S.C. § 12132.) Its protections apply to the services, programs, and activities of state and local governments, including child welfare agencies and court systems. (42 U.S.C. § 12131(1)(A), (B).)
c. Application of the Bypass Provision Did Not Violate Mother's Rights Under the ADA
Few published cases in California address a parent's invocation of the ADA in a dependency proceeding. Anthony P. examined "the interplay between the ADA and laws which permit the termination of parental rights." (Anthony P., supra, 84 Cal.App.4th at pp. 1115-1116.) The court followed the reasoning of numerous out-of-state authorities in finding that while a parent may have a separate cause of action under the ADA based on the agency's actions or inactions, " 'dependency proceedings are held for the benefit of the child, not the parent. Therefore, the ADA is inapplicable when used as a defense by the parent(s) in [those] proceedings.' " (Id. at p. 1116.)
Similarly, in In re Diamond H. (2000) 82 Cal.App.4th 1127 (Diamond H.), overruled on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, footnote 6, the court determined that "the ADA does not directly apply to juvenile dependency proceedings and cannot be used as a defense in them." (Diamond H., supra, at p. 1139.) The parent in Diamond H. was developmentally disabled with three other children in child protective services. (Id. at p. 1133.) She argued that the juvenile court violated her rights under the ADA when it ordered the bypass of reunification services with her fourth child based upon her failure to reunify with the other children (§ 361.5, subd. (b)(10)). (Diamond H., supra, at p. 1138.) In rejecting her ADA claim, the court explained that "California's juvenile dependency law requires the courts and social services agencies to consider a parent's limitations and disabilities in providing reasonable services. [Citations.] The ADA does not change this requirement nor does it provide a separate basis for challenging the actions of the court or Agency. Rather, any challenge a parent has under the ADA for alleged violations must be raised in a separate cause of action in federal court." (Id. at p. 1139.)
Mother contends that the outcome in Diamond H. (and by extension, Anthony P.) is not supportable following a technical guidance issued by federal agencies in 2015 that addressed the application of title II of the ADA, as well as section 504 of the Rehabilitation Act of 1973, to parents with disabilities involved in the child welfare system. Mother quotes extensively from the guidance and its legal analysis; but we find no reference to it in the record, nor does mother request that this court take judicial notice of the guidance independently. Consequently, we decline to consider the guidance, which raises numerous issues that were not before the juvenile court in the first instance. (See People v. Hardy (1992) 2 Cal.4th 86, 134 [judicial notice of matters not considered by trial court risks "unfairness that would flow from permitting one side to press an issue or theory on appeal that was not raised below"].) In any event, the Department does not contest the application of the ADA to these proceedings.
See United States Department of Health and Human Services, Office for Civil Rights Administration for Children and Families, and United States Department of Justice Civil Rights Division Disability Rights Section, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (Aug. 2015) <https://www.hhs.gov/sites/default/files/disability.pdf> (as of Apr. 10, 2017).
The guidance arguably could be the subject of judicial notice as an official act of a government agency. (Evid. Code, § 452, subd. (c); see People v. Crusilla (1999) 77 Cal.App.4th 141, 147 [taking judicial notice of "an official publication of the California Attorney General's Office" on jurisdictional analysis of border crossing].) However, if a party wants this court to take judicial notice of a matter, that party must file a motion seeking judicial notice in this court, as required by California Rules of Court, rule 8.252.
The Department responds that while public entities are required to make reasonable accommodations under the ADA to provide available services to persons with disabilities, the agency need not take action that "would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens" (28 C.F.R. §§ 35.150(a)(3), 35.164) and need not permit an individual to participate or benefit from services "when that individual poses a direct threat to the health or safety of others." (28 C.F.R. § 35.139(a).) Insofar as the ADA applies to dependency proceedings, the Department argues that it does not require that reunification services be provided to a parent who, due to a disability, is unable to benefit from those services and incapable of becoming a safe parent within the reunification time limits.
The Department points to the reasoning of this court in In re Christina A. (1989) 213 Cal.App.3d 1073 (Christina A.). We agree with mother that to the extent Christina A. did not address (and in fact predated) the ADA, it has limited applicability here. But one point regarding the purpose of the bypass provision (§ 361.5, subd. (b)) remains relevant. That is, the classification created by the bypass provision is intended "to ensure the well-being of children whose parents are unable or incapable of caring for them by affording them another stable and permanent home within a definite time period. Although the goal of the juvenile law is to reunite children with their parents whenever possible, this reunification must be accomplished within 18 months from the time the child is originally taken from his or her parents' custody. (§ 366.25, subd. (a).)" (Christina A., supra, at p. 1080.) This court observed that "the focus of section 361.5, subdivision (b) is not on the degree of parental impairment but on the needs of the child, 'where it assertedly belongs.' " (Ibid.)
In finding that the Department had met its burden to bypass reunification services for mother pursuant to section 361.5, subdivision (b)(2), the juvenile court did not "presume" that mother was an "unfit parent" incapable of benefitting from reunification, as mother contends. The court followed the procedure dictated by the statutory scheme, which coextensive with the principles of title II of the ADA, is not based on generalizations about mental disability, but requires individualized findings following expert evaluation and amounting to clear and convincing evidence of the inability to utilize reunification services due to a mental disability, as determined at an evidentiary hearing. (§ 361.5, subds. (b)(2), (c)(1).) Moreover, the mental disability bypass begins with a presumption in favor of reunification services, which may be rebutted by competent evidence from mental health professionals that doing so would be fruitless within the time constraints of the dependency scheme. (§ 361.5, subd. (c)(1).)
In contrast, the other bypass categories under section 361.5, subdivision (b) begin with a presumption against reunification: "The court shall not order reunification for a parent or guardian described in [section 361.5, subdivision (b)(3)-(4), (b)(6)-(17)] unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
Mother's claim that application of the bypass provision deprived her of the chance to manage her mental illness and instead required that she be "cured" before she could receive reunification services is inconsistent with the express terms and procedural protections of the bypass provision. It also fails to consider that the focus of the dependency scheme is on protecting the safety and well-being of the minor (Christina A., supra, 213 Cal.App.3d at p. 1080), and even under the ADA, limits to accommodation may exist when affording equal opportunity requires "fundamental alteration in the nature of a service, program, or activity" (28 C.F.R. § 35.150(a)(3)) or "poses a direct threat to the health or safety of others." (28 C.F.R. § 35.139(a).)
Having found no violation of mother's rights based on application of the bypass proceedings, we do not reach the issue of whether a claimed violation of the ADA may serve generally as a defense to an order in dependency proceedings. (Cf. Diamond H., supra, 82 Cal.App.4th 1127.)
B. Application of Bypass Provision to Reunification Services for Mother
As discussed above, the decision to bypass reunification services pursuant to section 361.5, subdivision (b) must be supported by clear and convincing evidence. That standard, requiring "a high probability, such that the evidence is so clear as to leave no substantial doubt" (In re Isayah C. (2004) 118 Cal.App.4th 684, 695) is for the guidance of the trial court. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880 (Sheila S.).) On appeal, our function is limited to determining whether there was substantial evidence to support the juvenile court's decision in accordance with the appropriate standard. (Id. at pp. 880-881; In re Angelique C. (2003) 113 Cal.App.4th 509, 519.) We consider whether "the evidence [wa]s reasonable, credible, and of solid value" to support the conclusion of the trier of fact. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474 (Curtis F.).) Further, " '[a]ll conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, 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.' " (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)
The provision to bypass reunification services under section 361.5, subdivision (b)(2) "must be read in conjunction with" subdivision (c). (Rebecca H., supra, 227 Cal.App.3d at p. 843.) Application of these provisions requires a three-part inquiry to examine the parent's mental disability, the parent's capacity to utilize reunification services, and the parent's capacity to parent safely if reunification services are provided. (§ 361.5, subds. (b)(2), (c); Rebecca H., supra, at p. 843.) We find that substantial evidence supported the juvenile court's conclusions as to all three requirements.
a. Mental Disability
Mother does not contest that Dr. Chambers and Dr. Alloy independently determined that she was suffering from a mental disability as defined by Family Code section 7827. Dr. Chambers made "general diagnostic conclusions" due to mother's "self-protective system reporting, defensiveness, and high probability of false negative diagnostic profile . . . ." Dr. Chambers explained that mother exhibited "severe personality disordered psychopathology, several clinical correlations with a Factitious Disorder Imposed on Another, and an Obsessive-Compulsive Spectrum Disorder." He cited minor's "cessations in encopresis and other psychological distress when removed from her mother's care," along with certain "disturbing" behaviors of mother that "all signal[ed] severe mental health concerns and a clear incapacity to parent."
Dr. Alloy diagnosed mother with "Personality Disorder Not Otherwise Specified with Narcissistic, Compulsive, and Histrionic traits," "Anxiety Disorder Not Otherwise Specified," and "Possible Factitious Disorder by Proxy." Dr. Alloy opined that mother was suffering from a mental incapacity that rendered her unable to care for and control minor adequately. He explained, "This is due to the Axis II personality disorder and the history. If the possible Factitious Disorder by Proxy is also true, this accentuates the level of concern and urgency."
These two evaluations constituted substantial evidence to support the juvenile court's finding that mother was a parent "suffering from a mental disability" (§ 361.5, subd. (b)(2)) that rendered her "unable to care for and control [minor] adequately." (Fam. Code, § 7827, subd. (a).)
b. Capacity to Utilize Reunification Services
The next step in the juvenile court's inquiry is whether the mental disability renders the parent incapable of utilizing reunification services. (§ 361.5, subd. (b)(2).) Mother challenges the sufficiency of the evidence supporting the juvenile court's finding on the ground that both experts did not conclude that mother was incapable of utilizing services due to her mental disability. She argues that while Dr. Alloy stated that mother's mental disability rendered her incapable of utilizing services, Dr. Chambers outlined a service plan for mother and "envisioned mother possibly being able to adequately parent [minor] with the appropriate assistance of the reunification services."
Dr. Alloy's conclusion on this point was unequivocal. Dr. Chambers's conclusion was less stark but provided evidence that was "reasonable, credible, and of solid value" (Curtis F., supra, 80 Cal.App.4th at p. 474) for the juvenile court's determination that mother's disability rendered her unable to utilize reunification services. In response to the question about mother's capacity to utilize services, Dr. Chambers explained that "individuals with this level of denial, poor introspective skills and/or intentional deceit are very difficult to treat and therefore , are highly unlikely to change ." He indicated that mother appeared "unable to regulate her affect," displayed "ideations of persecution," and attributed "a conspiracy . . . to remove her daughter" to the service providers working with minor. At most, Dr. Chambers concluded that any ability to utilize reunification services would be dependent on very specific, "longitudinal treatment in which psychological practitioners can verify [mother's] ownership of the abusive behavior, and a willingness to remediate it." Thus, Dr. Chambers's prognosis for capacity to utilize reunification services was negative, absent specific, long-term intervention.
Mother nevertheless argues a position expressed in the dissent to Curtis F., supra, 80 Cal.App.4th 470—that the two qualified experts engaged to assess mental disability under section 361.5, subdivision (b)(2) must agree not only that the parent suffers a mental disability, but also that the parent is rendered incapable of utilizing services. In Curtis F., the experts provided different assessments under the mental disability bypass provision of the parent's likelihood of reunifying with his child. (Curtis F., supra, at p. 474.) One psychologist "opined that reunification was unlikely" and the other opined that "reunification was 'guarded to fair.' " (Id. at p. 475 (dis. opn. of Sims, J.).) The " 'guarded to fair' " report also described the parent's problems as " 'very resistant to treatment,' " but offered suggestions for treatment. (Id. at p. 472.)
The appellate court held that the statute does not require both experts to agree that a parent is unlikely to benefit from services, but "requires a showing only of evidence proffered by both experts regarding a parent's mental disability, evidence from which the court then can make inferences and base its findings." (Curtis F., supra, 80 Cal.App.4th at p. 474.) The dissenting justice articulated a different interpretation of the evidence needed to bypass reunification services based on mental disability. Under this interpretation, "competent evidence" under section 361.5, subdivision (c), would be based upon the professional opinions of the two experts, not merely on "facts in the expert's reports from which the trial court may draw an inference that the parent is unlikely to be capable of adequately caring for the child within the specified time limits." (Curtis F., supra, at p. 475 (dis. opn. of Sims, J.).)
Either way, Curtis F. does not command a different result here. Dr. Chambers's opinion of mother's capacity to utilize services was that if she did not receive particularized long-term treatment and demonstrate an understanding of her abusive behavior and the ability to make changes, "she may be incapable of utilizing reunification services." This cannot be said to approach a reunification prospect of " 'guarded to fair' " (Curtis F., supra, 80 Cal.App.4th at p. 472), given mother's state of denial. What is more, we are unable to substitute mother's optimistic reading of Dr. Chambers's report for other legitimate inferences that flow from it. (Francisco G., supra, 91 Cal.App.4th at p. 600 [reviewing court indulges all legitimate inferences to uphold the verdict and is without power to substitute its deductions for those of the trier of fact].)
Dr. Chambers's indication for possible treatment is relevant to the issue of continuing provision of services; it does not eliminate the substantial evidence otherwise presented in both expert evaluations, which supports the juvenile court's determination that mother's mental disability rendered her incapable of utilizing reunification services.
c. Ability to Adequately Parent with Continued Provision of Services
The final step in the juvenile court's inquiry is whether competent evidence from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the statutory time limits for reunification. (§ 361.5, subd. (c)(1).)
Mother asserts that the record did not support the extreme step of denying her reunification services, particularly considering evidence that she had made some progress in following the rules and boundaries set by the Department despite the poorly tailored services that she received. Mother argues that this evidence does not comport with Dr. Alloy's reference to "reports of [mother's] consistent inability to take and follow parenting directions" in support of his conclusion that mother would be unlikely to be capable of caring for minor within 12 months if reunification services were provided. Mother further contends that by outlining a framework for services, including psychotherapy, family therapy, and psychiatric evaluation, Dr. Chambers indicated that she would be able to benefit from tailored services.
The Department points out that Dr. Chambers and Dr. Alloy both outlined recommended services in response to the question about what services should be offered to help the parent become adequate, if the mental incapacity does not render her incapable of utilizing services. The Department argues that these recommendations were not opinions that services would enable mother to become capable of adequately caring for minor within 12 months. The juvenile court viewed Dr. Chambers's evaluation in a similar manner, stating that based on the court's "reading of the report, that isn't his recommendation, . . . that's the response to that question."
Dr. Alloy wrote "Not applicable," but still made recommendations.
We find that both psychological evaluations suggested that even with services, mother was unlikely to be capable of adequately caring for minor. The treatment recommendations must be viewed in relation to the evaluators' overall conclusions about the likely treatability of mother's mental disability in the available timeframe.
Dr. Chambers stated that "individuals with mental incapacities may be able to reunify with their children within 12-months when you have someone that is aware of their deficits and is willing to make/take corrective actions ." He added, "However, [mother] denies any and all personal dysfunction. She is either being dishonest and/or is grossly mentally ill to the point where she lacks the ability for accurately appraising reality. Therefore, until [mother] not only understands and articulates what she has done wrong, and evidences consistent observable changes in her behavior; a premature reunification could have dire consequences for a developing child that has already been traumatized, neglected and displays unequivocal signs of arrested development consequent to her pathological environment."
Dr. Alloy similarly based his conclusion on mother's "personality disorder traits which are by definition longstanding, characterological, and very highly resistant to change." Dr. Alloy also referenced "reports of her consistent inability to take and follow parenting directions." Dr. Alloy noted, "[i]t does seem that [mother] had been causing physical and psychological symptoms in her daughter" and described it as "an unconscious process that creates a sick role for [minor] and through which [mother] gets to rationalize herself as the good caring mother in her response to her sick daughter. However, it is a vicious cycle with a severe end result. It only appears to have been broken upon [minor]'s removal from home and from the direct care of her mother . . . ." In his recommendations on psychotherapy, Dr. Alloy observed that based on mother's profile, "[t]his is one of the more untreatable groups of patients due to the fixity of their denial of hostility."
It is true that mother began to work with Vaquer only a few weeks before the hearing on the Department's section 388 petition. The record also reflects mother's efforts, and some success, abiding by boundaries that the social worker carefully laid out and reiterated when mother sought guidance or clarification. These considerations were not lost on mother's individual counselor at the Parents Center, parenting class instructor, and visitation supervisor, who all acknowledged various points at which mother maintained boundaries or followed redirection. Yet as of the May 6 addendum report filed in support of the section 388 petition, each service provider reported that mother had made no progress.
We address this issue more fully in relation to the Department's provision of reasonable services, post at section II.C.b. --------
Mother's testimony at the contested hearing and handwritten notes—which were intended to "reflect on, acknowledge responsibility and write specific examples" of how past behavior and mistakes may have affected minor—also demonstrated mother's apparent inability to gain insight into her conduct. In her handwritten notes, mother stated that she should have questioned minor's doctors and expressed more concern about minor's medications, should have been more assertive when minor acted out inappropriately, and utilized different re-direction and positive discipline techniques. Mother devoted a full page to the problem of minor telling lies and making up stories, and techniques to respond. The juvenile court called the notes "quite disturbing" because it seemed that if given the opportunity, mother "would follow the same type of patterns . . . that would further cause trauma" to minor.
We conclude that the court's determination that mother was unlikely to be capable of adequately parenting minor, even if she were provided with reunification services, was based on "competent evidence from mental health professionals" as required to rebut the presumption for services under section 361.5, subdivision (c)(1).
C. Section 388 Petition for Modification
Having concluded that substantial evidence supported the juvenile court's findings under the section 361.5, subdivision (b)(2) bypass provision, we turn to mother's assertion that the court erred in granting the section 388 petition.
Section 388 authorizes petitions in dependency proceedings to change or set aside a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) Mother does not dispute that the psychological evaluations qualified as new evidence. But she contends that the juvenile court abused its discretion when it determined that terminating reunification services for mother was in minor's best interest and, further, that the court erred in finding that the Department had provided mother with reasonable services. The Department disagrees that a "best interest" finding was required under the statute, but argues in any case that the juvenile court's decision as it related to minor's best interests was well supported.
a. Best Interests of Minor
We review the juvenile court's findings on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
The Department argued in its section 388 petition that it was "no longer in [minor]'s best interests to continue to provide" reunification services to mother, based on the psychological findings and on mother's lack of progress. Mother argues that the Department may not now assume an inconsistent position by contending that a "best interest" finding was not required. She argues that as reunification in this case was in the early stages, the focus of the dependency proceedings was the preservation and strengthening of the family. She points to mother and minor's bond, and minor's expectation and desire to return to mother's care, among other factors that should have been considered in evaluating whether terminating reunification services for mother served minor's best interests. She argues that maintaining reunification services for mother would have allowed minor to maintain this familial bond (In re Kieshia E. (1993) 6 Cal.4th 68, 76) and would not have delayed minor's progress toward stability and permanency, since father was continuing to receive reunification services.
We do not minimize the importance of these considerations and the critical nature of reunification proceedings. But they do not bar the termination of reunification services pursuant to section 388, subdivision (c)(1), when clear and convincing evidence establishes the applicability of the bypass provision as required under the statute.
Section 388, subdivision (c)(1), provides in relevant part that a petition to terminate court-ordered reunification services may be brought "only if one of the following conditions exists: (A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services." (§ 388, subd. (c)(1)(A).) The statute directs the court to "terminate reunification services . . . only upon a finding by a preponderance of evidence that reasonable services have been offered or provided, and upon a finding of clear and convincing evidence that one of the conditions in subparagraph (A) . . . of paragraph (1) exists." (§ 388, subd. (c)(3).)
Accordingly, when a party at this stage of proceedings seeks to set aside an order providing reunification services under subdivision (a) of section 361.5, the pertinent provisions of section 388 require two findings. First, there must be a change of circumstance or new evidence that satisfies, by clear and convincing evidence, a condition of one of the bypass provisions in section 361.5, subdivision (b) or (e). (§ 388, subd. (c)(1)(A).) Second, the juvenile court must find by a preponderance of the evidence that reasonable services have been offered or provided. (§ 388, subd. (c)(3).) There is no mention of a "best interests" finding. The exclusion is notable because other provisions of section 388 expressly mention the best interests of the child. (See § 388, subd. (a)(2) [requiring "clear and convincing evidence that the proposed change is in the best interests of the child" in order to modify a prior order that reunification services were not needed, or an order related to custody or visitation].) In fact, section 388, subdivision (d) requires the juvenile court to hold a hearing "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order, modification of reunification services, custody, or visitation orders concerning a child for whom reunification services were not ordered . . . , or clear and convincing evidence supports revocation or termination of court-ordered reunification services . . . ." (Italics added). This language suggests that while a "best interests" showing is integral to propose a change order in some circumstances, it is not required to trigger a section 388 hearing on revocation or termination of previously ordered reunification services.
While cases analyzing the grant or denial of a section 388 petition often refer generally to a "best interests of the child" showing, those cases do not arise under the provisions of section 388 that are at issue here. (See, e.g., In re Michael B. (1992) 8 Cal.App.4th 1698, 1703; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The California Supreme Court's treatment of the best interest of the child standard in the context of a section 388 petition pertaining to orders involving placement of the child do not automatically resolve the question before us for the same reason. (See, e.g., In re Jasmon O., supra, 8 Cal.4th at p. 418 [issue was "whether there was new evidence that the best interests of the child required that the previous order returning the child to her father be set aside"]; Stephanie M., supra, 7 Cal.4th at p. 317 [deciding if new circumstances "make a change of placement in the best interests of the child" after the termination of reunification services; id. at p. 320].)
Moreover, the conclusion that a section 388 petition brought under the conditions set forth in subdivision (c)(1)(A) does not require the juvenile court to make a best interest finding keeps with the statutory scheme pertaining to bypass provisions under section 361.5, subdivision (b). This is because the bypass of family reunification services reflects "a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child's interests." (Baby Boy H., supra, 63 Cal.App.4th at p. 474; see also T.G., supra, 242 Cal.App.4th at p. 986; In re Rebecca H., supra, 227 Cal.App.3d at p. 837.) The case of Sheila S., which mother cites as support for the argument that the juvenile court considers the child's best interest in its analysis of a section 388 petition to terminate reunification services, is illustrative.
Sheila S. involved a section 388 petition that, like here, sought the "termination and bypass of reunification services" under the provisions of section 361.5, subdivision (b)(2). (Sheila S., supra, 84 Cal.App.4th at p. 880.) This court considered the sufficiency of the evidence in support of the section 388 petition and the bypass provision. Noting that the psychological evaluations offered pursuant to section 361.5, subdivision (b)(2) were "essentially unrebutted" and demonstrated that the mother was incapable of benefiting from reunification services within the prescribed time period, we concluded that "there was substantial new evidence supporting the juvenile court's determination that it was in the children's best interests to not provide reunification services to mother." (Sheila S., supra, at p. 881.) The "children's best interests" analysis in Sheila S. was not distinct from the substantial evidence analysis under the bypass provision.
We conclude that although the juvenile court was not required to find in minor's best interests, in connection with the specific section 388 petition brought here, neither was it an abuse of discretion to do so. The record before the juvenile court documented years of child welfare referrals related to mother's dysfunctional childrearing that ultimately caused serious risk of emotional damage to minor (§ 300, subd. (c)). There was clear and convincing evidence that mother suffered a mental disability that rendered her incapable of utilizing reunification services, as demonstrated by the psychological evaluations, progress reports, visitation logs, and mother's own testimony and notes. The juvenile court found the trend of parent-child interactions in the visitation logs to be "very disturbing" and observed that mother in her testimony was "denying" that such issues as "having toddler fences in her home had any negative impact on [minor]" and in her notes was "continuing to blame [minor] . . . ." Minor's counsel agreed with the assessment that continuing reunification services would not be in minor's best interests and was "only leaving [minor] in limbo for a longer period of time," despite minor's love for mother and hopes to reunify.
We cannot say, on this record, that the juvenile court abused its discretion in finding that it was not in minor's best interests to continue reunification with mother.
b. Reasonable Reunification Services
Mother contends that the juvenile court erred when it determined that the Department had provided her with reasonable reunification services. She asserts that the services were not designed to assist her with the issue of her mental disability that brought minor to the attention of the juvenile court. Instead, she was offered a general parenting program and months of counseling with a therapist who was not equipped to meet her needs. When she eventually was referred to Vaquer, she had only three sessions before the hearing on the section 388 petition.
Section 388 requires "a finding by a preponderance of evidence that reasonable services have been offered or provided" before the juvenile court can terminate previously ordered reunification services under subdivision (c)(1)(A). (§ 388, subd. (c)(3).) This court in In re K.C. (2012) 212 Cal.App.4th 323 previously summarized the basic standard that an agency must meet for the provision of reasonable reunification services to a parent.
The Department must work to provide services that are responsive to the unique needs of each family, with a plan that is " ' "specifically tailored to fit the circumstances of each family" ' " and " ' "designed to eliminate those conditions which led to the juvenile court's jurisdictional finding." ' " (In re K.C., supra, 212 Cal.App.4th at p. 329.) The record must show that the Department " ' "identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult." ' " (Id. at pp. 329-330, italics omitted.) These efforts are required " 'in spite of difficulties in doing so or the prospects of success . . . .' " (Id. at p. 329.) Thus, "when a parent . . . has a mental illness or a developmental disability, that condition must be the 'starting point' for a family reunification plan which should be tailored to accommodate their unique needs." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420 (Patricia W.); In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1790.)
Whether the Department met its obligations to provide suitable services is judged according to the circumstances of the particular case. (In re K.C., supra, 212 Cal.App.4th at p. 329.) We review the juvenile court's finding that reunification services were reasonable for substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
Here, the problems identified in the dependency petition that led to the loss of custody included mother's excessive preoccupation with minor's eating habits, hygiene and toileting, exaggeration of minor's medical symptoms, name-calling, and treating minor like a toddler. The case plan for mother included the Triple P parenting course, individual counseling, two psychological evaluations, and supervised visitation. There is no dispute that mother was referred to and received these services. The closer question is whether the services provided were tailored to the family's particular needs in light of mother's psychological problems.
The evidence suggested that the parenting course was general in nature. The social worker testified that whether addressed to children with disabilities or parents with disabilities, the Triple P parenting course "could be helpful," explaining that it was not "specifically designed and tested" for that purpose "but it could be applicable." Though the parenting program was not designed for parents with mental disability, there is no evidence to suggest that the Department should have known or anticipated that it would be ineffective under the circumstances.
Individual counseling with LeClair at the Parents Center began in January 2016. In March 2016, LeClair received the psychological evaluation of Dr. Chambers and communicated to the social worker that the Parents Center would not be able to provide therapy to mother long-term because "they weren't skilled in the areas that she specifically needed support with." Social worker Wolf testified that Dr. Chambers had "recommended something very specific" for what might help "[i]f the parent was able to notice what was wrong." Wolf asked Dr. Chambers if he could recommend any provider, but testified that he did not have any ideas. Wolf suggested that mother contact Adult Mental Health, but mother informed her on March 22, 2016, that she did not qualify for their services. Wolf sought recommendations from one of her former supervisors, from the program supervisors at county adult and children's mental health programs, and from a psychologist, Dr. Solomon, who referred her to a therapist with Survivors Healing Center, who eventually referred Wolf to two therapists, one of whom was Margo Vaquer. Wolf spoke "at length" with Vaquer before Vaquer agreed to work with mother.
Wolf explained: "It was really difficult to find someone who was willing to work with a client who had the diagnoses that were given in the psych evals and who didn't seem to think there were problems with at least the concerns CPS had that needed resolving because a lot of therapists want the client to choose their goals and have self-determination. [¶] . . . [W]e were essentially asking almost for a mandated service. So Ms. Va[quer] was one of the first providers who was willing to consider this, and she's skilled."
There is no question that it would have been preferable for mother to begin individual counseling with Vaquer earlier in the reunification process. But " '[t]he standard is not whether the services . . . were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.' " (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1166.) Mother does not contend that the Department only secured more closely tailored therapy in June 2016 due to some failure of diligence or reasonable effort. The record reflects that after the first psychological evaluation showing the severity of mother's mental condition, and after LeClair informed the Department that the Parents Center would not be able to provide counseling to mother long-term, the social worker referred mother to Adult Mental Health, contacted multiple, knowledgeable providers, and pursued several leads. Meanwhile, mother continued individual counseling with LeClair, parenting classes, and supervised visitation, until the Department eventually arranged for mother to begin to counseling with Vaquer. It is unclear what more the Department could have or should have been doing during that time frame in order to " ' "specifically tailor[]" ' " mother's reunification services. (In re K.C., supra, 212 Cal.App.4th at p. 329.)
These facts are substantially distinguishable from cases like In re K.C. and Patricia W. In In re K.C., the minor's father underwent a psychological evaluation, which concluded that he could parent safely with the benefit of certain " 'additional steps,' " including " '[m]edication and therapeutic management through psychotropic evaluation and treatment for possible mood and thought disorder.' " (In re K.C., supra, 212 Cal.App.4th at p. 326.) The agency referred the father to a public mental health clinic and encouraged him to return several times, but did nothing further after the clinic turned the father away as ineligible for their services. (Id. at pp. 327-328.) This court determined that the attempt to secure a pharmacological evaluation for the father was inadequate, particularly insofar as the agency seemed "appeared to delegate the burden of finding and obtaining suitable services to Father himself—despite the high likelihood that the very issues necessitating treatment would interfere with his ability to obtain it." (Id. at p. 330.) Whereas the agency in In re K.C. failed "to consider other service providers when the public clinic declined to provide the needed evaluation" (id. at p. 331), here the Department made reasonable efforts to find potential therapists for mother after Adult Mental Health indicated that mother was not eligible.
In Patricia W., the mother suffered homicidal hallucinations and had "difficulty remaining medicated, which [had] precipitated her relapse," leading to dependency jurisdiction over her child. (Patricia W., supra, 244 Cal.App.4th at p. 422.) The appellate court explained the agency's obligations under these circumstances were to identify the mother's "mental health issues and provide services designed to enable her to obtain appropriate medication and treatment that would allow her to safely parent," including "services designed to help her stay on her medication." (Ibid.) But the agency did not secure psychological evaluations as part of the mother's case plan (id. at p. 423), failed to show that it had provided her access to mental health professionals who could prescribe appropriate medication, (id. at p. 425) and offered no evidence of "any effort to ascertain how mother could better manage her medications . . . ." (Ibid.) Unlike the agency's utter failure to show that it had taken steps to secure appropriate services to help the mother in Patricia M., here the social worker consulted with Dr. Chambers and with numerous colleagues regarding help for mother, but struggled to find appropriate services—possibly in part due to the fact that the evaluations declared mother's psychological traits to be characterological, deeply entrenched, and difficult to treat.
We find that substantial evidence supported the juvenile court's finding that the Department provided reasonable reunification services for mother.
D. The ICWA Notice
In her opening brief, mother challenged the juvenile court's finding at the May 31, 2016 hearing that the Department's ICWA notification was timely. She concedes in her reply brief that because the juvenile court made a finding only that notice to the tribes was "timely," and did not decide the applicability of ICWA or the sufficiency of the ICWA noticing, the issue was not ripe for consideration when this appeal was filed. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171 [discussing concept of "ripeness"].) We accept mother's statement that she "reserves her right to raise the issue of the sufficiency of the ICWA notice pending a decision by the juvenile court on the applicability of the ICWA."
III. DISPOSITION
The order of the juvenile court is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Elia, J.