Theresa P. v. Superior Court

Filed 8/29/06 Theresa P. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Theresa P. (mother) and Brett P. (father), adoptive parents of three of the four children at issue and legal guardians of the fourth, have filed a writ petition seeking review of the order setting a hearing under Welfare and Institutions Code section 366.26.[1] (§ 366.26, subd. (l); Cal. Rules of Court, rules 38 & 38.1.) Parents contend that the juvenile court erred when it found by clear and convincing evidence that reasonable reunification services were offered and that the children are part of a sibling group as described in section 366.21, subdivision (e). They also contend that the court denied father due process by refusing to allow evidence at the six-month review hearing to attack the children’s credibility, and that the judge was biased against their attorney and should have recused himself. We find that substantial evidence supports the court’s finding that reasonable services were provided or offered, and that no other error or denial of due process has been shown, and therefore deny the petition.

BACKGROUND

On July 8, 2005, the Monterey County Department of Social Services (the Department) filed similar petitions as to the children T. (age 14), Ka. (age 6), D. (age 5), and Ke. (age 2), pursuant to section 300, subdivisions (b) [failure to protect], (d) [sexual abuse] and (j) [abuse of sibling]. The petitions alleged that the children were placed into protective custody on July 6, 2005. On July 5, 2005, the Department received a referral alleging the sexual abuse of the boys Ka. and D. by father at a campground in San Luis Obispo County and interviews of the boys by that county’s sheriff’s department confirmed that the boys were molested. In addition, the petitions alleged that a private adoption agency had denied the parents certification for adoption of two other girls, C. (age 12) and S. (age 10), that Sonoma County had placed in parents’ home, due to a substantiated child abuse report against mother. Mother had previously run a daycare center, but there were reports of physical and mental cruelty to the children in her care. The state revoked her daycare license,[2] and the allegations were substantiated at a subsequent trial. None of the girls in parents’ home made any statements that they had been molested.

In her jurisdiction/disposition report, prepared in September 2005, the social worker confirmed the molestation allegations of the petitions. In addition, S. had recently reported being molested by father. C. and S. were removed from parents’ care and returned to Sonoma County. T. and Ke. were placed together in one foster home and Ka. and D. were together in another. The social worker reported that father has been charged with lewd conduct on a child (Pen. Code, § 288) and substantial sexual conduct with a child (Pen. Code, § 288.5) as a result of the boys’ allegations. One of the incidents that led to the revocation of mother’s daycare license in 1990 involved sexual abuse of one child in her care by another child in her care. Other incidents involved mother’s repeated use of corporal punishment.

The social worker’s report included a letter from T.’s therapist, Jennifer Garbarino, Ph.D., who reported that she had seen T. and the family in early 2005. Parents had been having marital problems and were considering divorce, T. was experiencing depression, and father was having difficulty maintaining appropriate parent-child boundaries. Dr. Garbarino had met with parents to discuss appropriate parenting practices and inappropriate discipline, and to recommend individual therapy for them.

The social worker recommended that the juvenile court sustain the petitions for the children, adjudge them to be dependent children of the court, remove them from parents, and offer both parents reunification services. The reunification services should include psychological evaluations for both parents. The social worker reported that the children, although not all placed together, have a sibling relationship which was beneficial to each of them and which should be maintained.

After several continuances, the juvenile court conducted a contested jurisdiction/

disposition hearing on December 5, 2005. Parents submitted the matter on the social worker’s report as amended on the record. The court found the allegations in the petition to be true, ordered reunification services be offered both parents, and set a review hearing for March 3, 2006. Both parents were to participate in and complete a psychological evaluation. The court informed parents that, should they fail to participate regularly in any court-ordered services or fail to avail themselves of provided services, the court could terminate efforts to reunify them with the children after March 3, 2006, and terminate their parental rights.

In a psychological evaluation dated January 19, 2006, Elizabeth K. Lee, Ph.D. reported that father suffers from cannabis dependence; a personality disorder, not otherwise specified, with passive aggressive and paranoid features; and a severe impairment in interpersonal relationships. Dr. Lee reported that father is an emotionally immature man who has a hard time establishing close relationships with his peers. Although he denies molesting his children, the actions he does admit having taken show a severe deficit of judgment. Father appears unlikely to benefit from reunification services because his abstract verbal skills were such that he would have difficulty taking a lesson from one situation and applying it to another situation or drawing general conclusions. Dr. Lee also reported that father appears to believe that he has done nothing wrong so seems to have little motivation to change his behavior in therapy. Therefore, Dr. Lee recommended that father not be given reunification services.

In a psychological evaluation also dated January 19, 2006, Dr. Lee reported that mother has physically abused the children and suffers from a personality disorder, not otherwise specified, with histrionic features, and that the physical abuse is consistent with her psychological profile. Dr. Lee reported that it is also consistent with mother’s profile that she would side with father regarding the allegation of sexual abuse of the children and not consider the idea that father might be guilty. Dr. Lee recommended that mother not be offered reunification services because she would not likely benefit from either therapy or parenting classes, and stated that if any of the children were returned to mother’s care they would be at high risk for further abuse.

The social worker’s report for the review hearing, filed February 21, 2006, states that the Department received a child abuse report on mother on November 23, 2005, and that allegations of physical and emotional abuse of Ka. and D. by mother were substantiated by a case worker, but no criminal charges have been filed. Mother reported that she moved out of the home she shared with father on January 20, 2006. Ka. and D. have a very close sibling relationship and are together in one foster home. T. and Ke. also have a very close sibling relationship and are together in another foster home. Ka. and D. have refused all contact with parents since December 2005, and T. has refused to participate in visitation. Ka. and D. were also refusing to attend visits with T. and Ke., because the girls remind the boys of their life with parents, although the social worker and their foster mother were working with the boys’ therapist to determine if a sibling visit could take place in the future.

The social worker reported that mother had completed her psychological evaluation, had been in weekly individual counseling for over seven months, had attended and completed two parenting classes and one workshop, was currently enrolled in a class for parents of teens, and had participated in supervised visitation with Ke. Mother’s therapist reported that mother has had difficulty accepting that father did all the things the children accused him of doing and denies that her own behavior has been abusive. Father had completed his psychological evaluation, which recommended that he not be provided reunification services. He has sought out and participated in individual therapy, and his therapist reported that father is also being assessed by another psychologist. The social worker recommended that services be terminated and that a section 366.26 hearing be set.

In an addendum report filed May 17, 2006, the social worker continued to recommend that services be terminated and that a section 366.26 hearing be set. Mother moved back into the home with father and the children remained in their respective foster home placements. T. continues to refuse to participate in visits with mother, and Ka. and D. continue to express refusal to ever see parents again. Mother continues to participate in therapy and supervised visitations with Ke., and both parents have participated in second psychological evaluations.

After several continuances, the juvenile court conducted the contested review hearing on May 22 and 24, 2006. The court admitted into evidence the social worker’s report and addendum and Dr. Lee’s two psychological evaluations. Dr. Lee testified that mother minimized problems and did not acknowledge that some of the things she did were very unhealthy for the children. She has responded to the allegations against father the same way she responded to the allegations regarding her daycare center in 1990, by just dismissing them as false. Dr. Lee testified that she was concerned about mother’s ability to protect the children in her care. Mother is not able to use therapy to learn to protect her children because she will consistently choose to believe her husband rather than her children. Mother has not shown any insight into her inappropriate behavior and discipline even though she has been in therapy, and her current therapist has indicated that she did not think mother was making progress in therapy. Therefore, mother will not benefit from further reunification services.

Dr. Lee testified that she believes that father sexually abused Ka. and D. In her opinion, if the children were returned to father they would be at risk for further sexual abuse because father has a family history of sexual abuse and father continues to say that he did not commit any inappropriate behavior. Father would not benefit from reunification services within the time allowed because he cannot benefit from therapy dealing with sexually inappropriate behavior with children.

Faren Akins, Ph.D., testified that, in his opinion, Dr. Lee’s reports were not very balanced, but rather focused almost entirely on negative findings. Also, father’s clinical profile has changed, although not significantly, since he has abstained from using marijuana beginning in January 2006. Dr. Akins further testified that, based on the data that was presented to him from parents’ various psychological evaluations, he does not feel that the finding that parents cannot benefit from reunification services is justified.

The social worker testified that she reviewed reports from Dr. Lee, the therapists and the service providers in his case. She personally observed visitation between mother and Ke., consulted with the therapists and caregivers for all the children and discussed with parents their participation and progress in services. In her opinion, it is not in the children’s best interests to be returned to parents or to have services continue. Mother has difficulty accepting that father did the things the children accused him of doing and denies that her own behavior was abusive. She cannot protect the children as long as she does not recognize that there is a problem.

Mother testified that she is not asking to reunify with Ka. and D. She believes that she has taken responsibility for her actions that the Department has deemed inappropriate. Father testified that he was never given a case plan to follow regarding reunification with the children. He has attended parenting classes. He has not engaged in sex abuse counseling because he was told that he would have to admit guilt. He will not admit the allegation of sexual abuse because he did not do it. His criminal case is still pending.

After the parties rested the court asked them to discuss whether and what sibling group exists. The Department argued that the four children are one sibling group for the purposes of permanency planning. They were removed at the same time. The boys were placed together in Sonoma County and the girls were placed together in Monterey County, and the Department still hopes to facilitate sibling contact. T. also sees herself as the other children’s sibling. Counsel for the children agreed with the Department while admitting that the boys and girls were probably going to have to be placed in separate homes. Parents argued that T. and Ke. should be treated as one sibling group and Ka. and D. as a separate sibling group. Parents asked that services not be terminated as to Ka. and D. since there have been no visits. After the parties’ closing arguments, the court ordered that mother’s visits with Ke. be reduced from two to one hour and took the remainder of the matter under submission.

The court issued its decision on May 30, 2006. The court stated that it previously found by clear and convincing evidence that D., Ka. and S. were sexually abused by father, and that it continued to agree with those findings. The children were removed from mother’s care because she was unable to protect the children due to her choosing to believe father’s denials rather than the reports of the children. After initially complying with the case plan, parents are again living together, they intend to move to Oregon together, and they have both attacked the credibility of the children and other witnesses. The court found by clear and convincing evidence that reasonable services designed to help the parents overcome the problems that led to the children’s removal have been provided or offered to parents, but the parents have not made substantive progress toward alleviating or mitigating the causes necessitating the children’s out-of-home placement. The court found that return of the children to the parents, or either of them, would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children. Moreover, the older children remain extremely fearful of harm if they were returned. The court stated that it could not find that all the children were part of one sibling group, but that it did find that the girls are one sibling group and the boys are another. Having made these findings, the court further found by clear and convincing evidence that, even if it found that no sibling group with a child under three exists, there is not a substantial probability that any of the children may be returned to one or both parents by “the outside date applicable to children over three, to wit, September 4, 2006.” Therefore, the court terminated services to parents and set a selection and implementation hearing for September 22, 2006.

DISCUSSION

Reasonable services

Parents first contend that the court erred when it found by clear and convincing evidence that reasonable reunification services were provided or offered to them. They argue that father was not provided services because of Dr. Lee’s finding that father would not benefit from services because he would not admit the alleged molestation. Because of this, father was faced with the “ ‘confession dilemma’”