Alameda Cty. Soc. Serv. Agency v. Catherine R. (54 Cal. App. 4th 1131, 1997)

Opinion

LAMBDEN, J.

Catherine R. (mother) and Gary R. (father) are the parents of three children who were made dependents of the court. Mother is appealing from the juvenile court’s order which terminated family reunification services and established long-term foster care as the permanent plan for the three children pursuant to Welfare and Institutions Code section 366.22, subdivision (a). (All further unspecified code sections refer to the Welfare and Institutions Code.) Mother contends the court erred in finding the children’s return to the family would create a substantial risk of detriment to the minors’ well-being, because the court disregarded mother’s completion of the reunification plan.

We find the court did evaluate mother’s progress towards meeting the goals of the reunification plan and properly found she had not alleviated the causes requiring placement in out-of-home care. We therefore deny the requested relief.

Background

Mother and father were married on October 2, 1992. They have three children, Nina, Dustin, and Gary; bom, respectively, in May 1991, June 1992, and November 1993. In addition to these three children, mother had six other children from two previous marriages. Five of those children are now adults, and relatives have the legal guardianship of the sixth.

During the evening of August 6, 1994, Nina, Dustin, and Gary were in father’s care while mother was away from home. The following day Nina complained about her leg hurting and her mother took her to the hospital. Nina had suffered a spiral fracture of the left femur; the injury occurred, she claimed, when she was playing with her father. The hospital staff notified the police because the examining doctor believed the injury was inconsistent with the explanation given.

The Alameda County Social Services Agency (SSA) filed a juvenile dependency petition pursuant to section 300. Nina was made a dependent under section 300, subdivisions (a) and (b); Dustin and Gary were each declared dependents under subdivisions (b) and (j). On August 12, 1994, an amended petition was filed and it added an allegation against the mother for her past inability to protect three (of her six) older children from physical abuse and neglect. (These three children had been “permanently planned” by the juvenile court.)

On October 26, 1994, the juvenile court sustained the allegations in the amended petition and adjudged the minors dependents of the juvenile court under section 300, subdivisions (a), (b), and (j). The minors were placed out of home, and a separate, but identical, reunification plan was established for each parent. The plan contained the following requirements: (1) meet regularly with the county social worker, cooperate in developing a service agreement, and notify the worker of any changes in her [his] situation; (2) sign necessary authorizations for release of confidential information, so that her [his] compliance could be monitored; (3) maintain visitation with the children; (4) successfully complete a parent-education program; (5) maintain a stable, safe, and sanitary place for the children to live; (6) refrain from physical punishment of the children; (7) demonstrate knowledge of nonphysical, age-appropriate discipline techniques; (8) participate in counseling or therapy, as directed by the social worker, which addresses issues of physical abuse, parenting, family issues, and age-appropriate discipline; and (9) be evaluated and treated by a therapist who will provide the court with a report addressing the mother’s [father’s] ability to protect and provide adequately for the minors, the mother’s [father’s] level of participation, and the mother’s [father’s] ability and capacity to provide adequately for the emotional and physical well-being of the minors.

The juvenile court held the six-month review hearing on February 1,1995. The report from the SSA stated Nina was very fearful; while Dustin was delayed in daily living skills, had episodes of head banging, and had language skills below his age level. The youngest child, Gary, was depicted as having occasional tantrums and being “clingy.” The parents had participated in supervised visits with the children and the foster parents noted when the children cried or otherwise made the father uncomfortable, he immediately gave them to the mother or foster parents. The parents also had attended therapy sessions with Felicitas Bejarano (Bejarano), and she recommended a psychological evaluation for both parents. Accordingly, the juvenile court ordered reunification services continued and added, without objection, a requirement for psychological evaluations of the parents.

Mother underwent the psychological evaluation in March 1995. Sandra L. Dye (Dye), the examiner, had two areas of concern regarding mother’s ability to parent her children: (1) she failed to be aware of environmental cues, such as not perceiving anything unusual about her husband’s behaviors; and (2) she had serious limitations in her ability to profit from her mistakes, such as marrying abusive men. The examiner concluded the parents lacked the resources to provide “the highly structured, nurturing environment necessary to adequately meet their children’s special needs,” and recommended counseling for mother to increase “her ability to make consistently accurate and appropriate judgment based upon her improved observational skills.”

Father also was evaluated by Dye and she concluded: “The findings of this evaluation suggest that [father] will continue to have difficulty managing his own life as a result of his disturbance in his thinking and emotions. Thus, it will be difficult for him to adequately address his children’s needs. He is unlikely to develop any self awareness or insight into his serious cognitive disarray and affective disorder. He has become tolerant of his symptoms and is so accepting of his idiosyncratic logic system that he is likely to view himself as functioning quite adequately. Based upon these findings, I would strongly recommend that his contacts with his children continue to be closely supervised.”

Mother also saw Glenn Horwitz (Horwitz), a therapist at the Family Services of the East Bay. The treatment was to help her improve “her ability to protect and care for her children and provide for their emotional and physical well being.” He reported her attendance at sessions was good, but she continued to use the psychological defense mechanism of “denial.”

Bejarano, the therapist seeing the parents as a couple, reported, in part, on July 5, 1995: “The childrens [ízc] presence in three sessions was helpful in observing the parents interacting with them. Catherine had no hesitation in providing attention to her children. In contrast, Gary the first session [sz'c] was very cautious in picking up and interacting with his children. . . . [^D Although Catherine and Gary are good in making it to sessions, they are unfortunately not using the sessions as would be hoped. It is likely they see counseling as a criteria [szc] for reunification but that attendance is the key factor.”

The therapist hired by the county to treat Nina, found Nina was seriously emotionally disturbed, being angry, anxious, and unusually destructive; she therefore recommended Nina needed more “extensive treatment.” She also reported both Nina and Dustin, who were seen together for nine therapy sessions, were seriously disturbed by an “Overanxious Disorder” which “interferes with their ability to master normal psychosocial developmental tasks.” She surmised their behavior was consistent with a history of physical abuse rather than resulting from a single incident.

The 12-month review hearing occurred on August 25, 1995. The report from the SSA stated the following: “The parents are participating in counseling and parenting classes, but appear to [be] ‘going through the motions’ without ever dealing with the abuse. They also seem oblivious to the disturbed behavior displayed by Nina and Dustin.” It recommended, in part, “[t]hat the parents have made substantial progress in complying with the case plan but have not alleviated or mitigated the causes necessitating placement of the children in out-of-home care.”

At the end of the 12-month review hearing, the juvenile court found mother had made “substantial progress” towards reunification, but returning the children to the family posed a substantial risk of detriment to the minors “because the parents have not completed the reunification plan and the father is currently incarcerated.” The father had been serving a three-month sentence after pleading guilty to the criminal charges related to Nina’s injury. The juvenile court also found by clear and convincing evidence reasonable reunification services had been provided, and found a substantial probability of reunification within six months.

The 18-month review hearing occurred on 3 separate court dates in February and March 1996. Hagit Glickman, Ph.D. (Glickman) had examined Nina and Dustin. He found Nina was delayed approximately one year in her cognitive abilities, and exhibited aggressive and regressive behaviors. He concluded Nina’s developmental delays were “likely due to the emotional trauma of abuse and neglect.” Similarly, Dustin was delayed in social and living skills, particularly in language skills. Dustin had tantrums and had exhibited “unusual behaviors” at the time of removal from his home, including head banging, biting, and aggressive behavior towards other children. His developmental delays were evaluated as “likely due to neglect and possible physical abuse.”

Glickman observed the three children interact with their parents. The mother’s “interactions with the children were positive but generally bland. She did not appear aware of the children’s unusual and withdrawn behavior.” The mother was more comfortable interacting with the children without her husband; “[wjhen the mother was alone with the children, they all sat closer to her and responded to her attempts at play.” Glickman concluded the parents as a unit appeared to have a very limited awareness of the needs of their children and mother “remains in denial about her husband’s inappropriate interactions and the children’s complicated needs.” He recommended: “. . . the parents must have supervised visits by a professional who is aware of appropriate and inappropriate behavior on the part of the parents regarding their children.”

Mother’s'therapist, Horwitz, reported she was less defensive and more revealing. Horwitz found she “demonstrated adequate judgment and awareness of the situation.” Additionally at the hearing, mother acknowledged her husband’s responsibility for Nina’s injury and she accepted some responsibility for failing to protect Nina from the injury.

The child welfare worker, Laura Loomis (Loomis), reported mother had substantially complied with her reunification plan. Loomis concluded, however, the psychological evaluation of mother showed “considerable concern about the mother’s judgment and her inability to recognize her husband’s problematic behavior and her children’s specialized problems.” She believed the parents had not gained any insight from their participation in counseling and parenting classes. Loomis also reported all three children were “displaying severe emotional disturbance,” and were not adoptable because of this. Because of the desirability of keeping the three children together, she recommended long-term foster care as the permanent plan to be implemented.

On March 6, 1996, the court found the following: “There’s another very recent case, In re Joseph B., . . . . That was a case where basically the parent completed the reunification plan and the Court felt compelled to return the children because of completion of the reunification plan, as I recall it. [<]□ ... It talks about the Court shall order the return of the minor to the physical custody of his or her parent or guardian unless, by a preponderance of the evidence, it finds that return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor. The focus of the finding is not on the parent. The focus of the finding is on the minor and will there be detriment to the minor by return of the child to the parent. [U And the reports by Dr. Glickman both indicate this finding, in effect, by the doctor that the parents appear to have very limited awareness of both emotional and physical needs of their children. ‘They clearly do not recognize how their past behavior and maltreatment of their children has severely influenced the children’s development.’ [D . . . Here I have evidence from mental health professionals that return, even visitation in an unsupervised setting, would be detrimental to these minors, and that in fact, if that’s the case, then clearly return is even more detrimental. And it’s that lack of appreciation of the impacts of the previous abuse and neglect. [