Opinion
H030668
12-1-2006
KATY S., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent, SANTA CRUZ COUNTY HUMAN RESOURCES AGENCY, Real Party in Interest.
In this writ proceeding, the mother of a dependent child petitions for relief from the juvenile court order terminating reunification services and setting a permanency planning hearing. As we explain, substantial evidence supports the juvenile courts decision to deny the mother further reunification services. We therefore deny the petition.
BACKGROUND
The child whose interests concern us here is Sophia S., who was born in August 2005. The childs parents are Katy S. (the mother), the petitioner here, and Joshua L. (the father), who is not a party to this writ proceeding. Both the mother and the father suffer from mental illnesses. Because the father has not petitioned this court for relief from the juvenile courts order, we discuss his role in the proceedings only as relevant to the background of the mothers petition.
Detention
Sophia was placed in protective custody as soon as she was born. Two days later, a petition was filed on her behalf by the Santa Cruz County Human Resources Agency (the Agency). The petition sought dependency jurisdiction over Sophia, under the provisions of Welfare and Institutions Code section 300. The petition alleged that there was a substantial risk that Sophia would suffer serious harm as a result of her parents inability to provide care for her due to their mental illness, developmental disability, or substance abuse. (Welf. & Inst. Code, § 300, subd. (b).) In addition, the petition alleged that the father was unable to provide for Sophia due to his incarceration. (Id., subd. (g).) After conducting a hearing, the juvenile court ordered the child detained. (See § 315.)
Further unspecified statutory references are to the Welfare and Institutions Code.
Jurisdiction; Order for Psychological Evaluations
The Agency prepared a jurisdiction/disposition report, dated September 1, 2005.
In the report, the Agency advised the court that the mother had "been receiving mental health interventions through the County since she was nine years old" and that her "history with receiving services through Childrens Mental Health and Adult Mental Health has resulted in eight volumes of case documentation." The Agency summarized the mothers extensive adult "history of crisis stabilization, hospitalization and enrollment in social rehabilitation programs" in a synopsis that consumed nearly two full single-spaced pages in the report. The mothers diagnosis is schizoaffective disorder. Since May 2004, when the mother "transitioned from residential care" to independent living, she had been "provided the highest level of intensive services available, short of [being] conserved again." The father has an extensive criminal history, which includes violence directed at the mother, and he has been diagnosed as bipolar. In the Agencys view, the mother and the father "each have significant mental health issues and appear to continue to struggle in maintaining an independent lifestyle. They have repeatedly engaged in violent behaviors within their relationship and continued to do so when [the mother] was pregnant with Sophia." The Agency opined that "neither parent appears able to adequately and safely care for Sophia."
In its jurisdiction/disposition report, the Agency asked the court to declare Sophia a dependent child. The Agency also requested the court to refer the mother for two psychological evaluations, in order to determine her capacity for parenting and for benefiting from reunification services. The Agency made a similar recommendation with respect to the father, conditional on later determination of his status as Sophias presumed father.
After several continuances, the court conducted a hearing in late October 2005, which addressed jurisdiction and "partial disposition." (See §§ 355, 358.) Based on paternity testing, Joshua L. was declared to be Sophias biological and presumed father. Both parents submitted to jurisdiction based on the allegations of the petition.
On October 25, 2005, the juvenile court entered a formal order after hearing. It found that Sophia was a person described by section 300, subdivisions (b) and (g), and that reasonable efforts had been made to avoid her removal from her parents custody. The order allowed the mother twice-weekly supervised visitation. Concerning the requested evaluations, the order states: "Two psychological/psychiatric evaluations are ordered to assess the parents capacity to parent and capacity to utilize reunification services." The court ordered the parents to cooperate with the Agency in obtaining the evaluations, and it specified the questions to be addressed. The formal order notified the parents that the Agency was recommending a bypass of reunification services. The courts minute order identified four evaluators by name, two for each parent. For the mother, the first evaluation was to be completed by Dr. David (Tony) Hoffman. Finally, the court ordered the "entire matter . . . continued to December 29, 2005, for receipt of psychological evaluations."
Concerning the issues to be addressed, the order provided as follows: "The evaluators shall address the following questions: [¶] a. What is the parents DSM IV diagnosis? [¶] b. Does the parent suffer from a mental incapacity, which renders the parent unable to care for and control the child adequately? [¶] c. Does the parents mental incapacity render the parent incapable of utilizing reunification services? [¶] d. If the parents mental incapacity renders them incapable of utilizing reunification services and services were nevertheless provided, would the parent be unlikely to be capable of adequately caring for the child within twelve months? [¶] e. If the parents 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."
Further Disposition Hearings
At the hearing on December 29, 2005, the social worker advised the court that only one psychological evaluation for each parent had been completed thus far and neither had yet been received by the Agency. The social worker requested new referrals for the second evaluations, based on the unavailability of the previously appointed evaluators. Counsel for the Agency requested a continuance to permit completion of the second evaluation for each parent.
The court ordered a second psychological evaluation for each parent. For the mother, the court appointed Dr. Barbara Mayers. The court continued the matter to February 2006 for receipt of the evaluations and for disposition.
At the scheduled hearing in February 2006, the court was advised that the second evaluations had not yet been completed. The matter was therefore continued for another month. By the March hearing date, the evaluations still were not done. The Agency provided the court with the first set of evaluations, and the matter was put over again, to April 20, 2006.
At the hearing on April 20, 2006, the court was notified that the parents still had not arranged for their second set of evaluations. The Agency asked the court to "make the findings pursuant to In re C.C." The court apparently declined to do so. Instead, it granted the mothers request for a continuance, and it directed the social worker to provide a current report. The court put the matter over for another week, for receipt of the report and for "Confirmation of Contested Hearing."
We presume that the reference is to In re C.C. (2003) 111 Cal.App.4th 76. In that case, the court applied the disentitlement doctrine, finding that the mother was not entitled to receive reunification services where she refused to participate in a psychological evaluation designed to determine her capacity to utilize those services. (Id. at pp. 85-86.)
At the hearing on April 27, 2006, both parents requested a continuance, which the court granted over the Agencys objection. The court set the matter for hearing on May 15, 2006. The court also received the Agencys report, entitled "Memo to the Court." In the report, the Agency described its "efforts in assisting the parents . . . to participate in second psychological evaluations." It closed with these statements: "At this time, it is the Agencys recommendation that the Court not offer Family Reunification services to either of the minors parents. On October 20, 2005, the Agency noticed both parents [of] the intent to consider Bypass. On December 29, 2005, both parents were present when the Court ordered that both complete second evaluations. Evaluators were identified on the record in Court at this same time. [¶] Both parents have since received clear instructions multiple times as to the need to move forward with their respective second psychological evaluations. Neither parent has been able to comply. Several months have passed since the Court first directed the parents to engage in their second evaluations. It is the Agencys belief that the absence of these evaluations several months past the minors initial detention provides the Court with a clear indication as to the parents capacity to benefit from Family Reunification services." The Agencys memorandum, dated April 28, 2006, was later filed on May 12, 2006.
At the contested dispositional hearing on May 15, 2006, the court received into evidence the Agencys jurisdiction/disposition report, which had been prepared more than nine months before, and its recently filed memorandum. As reflected in the minute order, the court heard argument of counsel and made several findings and orders, including this: "The Court adopts the recommendations contained in the Jurisdiction/Disposition and [Memo] to the Court." But the minute order also contains this order, which appears to contradict those recommendations: "Family reunification services shall commence." The Agencys counsel was directed to prepare a formal order.
The courts formal dispositional order after hearing was filed on May 25, 2006. It provides that reasonable reunification services shall be provided to both parents, as described in the current case plan. It further provides: "A second psychological/psychiatric evaluation is ordered to assess the mothers and fathers capacity to parent and capacity to utilize reunification services; these evaluations are those ordered by the Court in December 2005." The order provides for hearings in October and November 2006, with an interim hearing to be held on August 18, 2006.
The case plan provides that the mother "will participate in two psychological evaluations for the purpose of determining whether she is suffering from a mental incapacity that renders her unable to benefit from reunification services. [¶] [The mother] is asked to follow all of the evaluators treatment recommendations — including, but not limited to, counseling, parenting education, medication management and/or other forms of psychiatric treatment." Apart from the psychological evaluations, the only services for the mother mentioned in the case plan were supervised visitation, case planning, and referrals to community resources.
The Agencys Request to Deny Reunification Services
On August 11, 2006, the Agency filed a petition seeking to modify the disposition order insofar as it required the provision of reunification services to the parents. (See § 388.) As changed circumstances in support of the requested modification, the Agency cited the mothers recently completed second psychological evaluation, which concluded that no level of services would render the mother capable of parenting Sophia.
At a previously scheduled interim hearing held a week later, the Agency asked the court to terminate reunification services. The father was not present, and his counsel reported that he "may be at the Dominican Hospital Behavioral Health Unit." Fathers counsel requested a continuance, which the court granted. The court set the matter for a contested hearing on the Agencys modification petition, to be held September 21, 2006. The court directed counsel "to file briefs as to termination of services" prior to the hearing.
On September 13, 2006, the Agency filed a "trial brief" in support of its request to terminate reunification services and to set the case for a permanency planning hearing. Sophia joined in the Agencys brief. The mother filed a brief opposing the Agencys request, on the ground that a modification petition under section 388 is not the proper procedural vehicle for terminating reunification services. The Agency filed an addendum, refuting the mothers procedural argument.
Contested Hearing
On September 21, 2006, the court conducted the contested hearing on the Agencys request for denial or termination of reunification services, which was brought as a modification petition under section 388. As authority for the proposed modification, the Agency relied on section 361.5, subdivision (b)(2), which permits the bypass of reunification services to parents suffering from mental disabilities that render them incapable of utilizing those services.
1. The Agencys Case
The court received the mothers two psychological evaluations in evidence.
The first evaluation, dated January 31, 2006, was prepared by Dr. David (Tony) Hoffman, a licensed psychologist. Dr. Hoffman described the mother as having "mild to moderate symptoms of schizoaffective disorder." Dr. Hoffman considered the mother "a candidate for reunification services . . . but only under the context of intensive social support." In Dr. Hoffmans opinion, the mother "is unable to raise a child on her own. However, with social service support, her mental status is not so severe that she poses a severe risk to a child." Dr. Hoffman found that the mother was "likely to benefit from parent training, domestic life skills development, and other skill training in family living." He added: "But this is not to say that she is a candidate for reunification services at present. Without much family and social service support, she probably would have significant difficulty providing minimally adequate parenting." Dr. Hoffmans recommendations included: "Cessation of reunification services."
The second evaluation was submitted by Dr. Barbara Mayers, also a licensed psychologist. Her report began with relevant history, including the mothers childhood diagnosis of schizophreniform disorder. According to Dr. Mayers, the mothers current test results "did show personality features but . . . not . . . an AXIS I diagnosis. Her childhood and recent history clearly document an AXIS I disorder." In an addendum, Dr. Mayers stated that "there seemed to be a pattern of schizophrenia during adulthood." Dr. Mayers noted that the mother had required significant support services, including help with "basic living skills such as buying food, cleaning her house, transportation, money management . . . . " Dr. Mayers opined: "I do not believe that she is capable of taking care of a child." Given the mothers history, Dr. Mayers was pessimistic about her ability to benefit from reunification services, saying: "I cannot think of any level of assistance that would work."
The court next entertained testimony from the social worker, who verified the allegations in the modification petition. On cross-examination by the mothers counsel, the social worker described the mothers visits with Sophia. The social worker also confirmed that she had considered both psychologists evaluations of the mother in preparing the modification petition.
2. The Mothers Case: Motion and Evidence
After the court received the foregoing evidence, the mothers counsel brought an oral motion under section 350, subdivision (c). Mothers counsel sought a determination that the Agency had not met its burden of proof on the petition.
That subdivision provides: "At any hearing in which the probation department bears the burden of proof, after the presentation of evidence on behalf of the probation department and the minor has been closed, the court, on motion of the minor, parent, or guardian, or on its own motion, shall order whatever action the law requires of it if the court, upon weighing all of the evidence then before it, finds that the burden of proof has not been met. That action includes, but is not limited to, the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review. If the motion is not granted, the parent or guardian may offer evidence without first having reserved that right." (§ 350, subd. (c).)
In arguing that motion, counsel began with a procedural point, reiterating the contention raised in her brief that a modification petition under section 388 is not a proper vehicle for bypassing reunification. Counsel then addressed the psychological evaluations at length, attacking their sufficiency to support either the existence of a mental disability or the mothers inability to benefit from services within the allotted time. As to the first point, counsel argued that "Dr. Mayers evaluation of [the mothers] mental disorder is not conclusive" and that Dr. Mayers "does not conclude that Mother has a mental disability." As to the second point, counsel argued "Dr. Hoffman concludes that Mother can benefit from services . . . . " Counsel asked to the court to find "that the Agency did not meet the burden of proof by clear and convincing evidence." Acting through his counsel, the father joined the mothers motion.
The Agencys counsel opposed the motion, saying: "There is ample evidence before the Court." Counsel outlined the statutory scheme, describing it as "essentially, three bites" of the apple for the parent: "No. 1, the question of disability. No. 2, the question of utilizing services. No. 3, the question even if, even if the answers are no and we still gave them services, would they be able to be a safe parent within that period of time? [¶] The answer clearly from both providers, from both evaluators is no, [though it is] less clear with Dr. Hoffman." Addressing the first question, counsel stated: "Mother has a mental disability that renders her unable to . . . care for and control the child adequately. [¶] Both doctors agree to that." Counsel then turned to the second question, ability to utilize services, saying, "this is the arguable point in this case. Dr. Mayers says absolutely not" while "Dr. Hoffman is much more hopeful. . . . " Nevertheless, counsel argued, between the two evaluations, the court had enough information to conclude that "Mom cant benefit from reunification services." Counsel continued: "The third bite at the apple, then, would be even if provided with services, would the parent be able to adequately parent the child within the given period of time? And thats six months. . . . Dr. Mayers says absolutely not. Dr. Hoffman says after some period of time. Certainly, not currently. He doesnt specify what the period of time is. [¶] . . . My argument to the Court is that six months is not enough time for Mom. [¶] So there is plenty of information before the Court upon which the Court can come to the conclusion that the parent suffers from a mental disability that renders her incapable of safely parenting the child; that no reasonable services could be provided that would help her; that she would not be able to benefit from services to be able to be a safe parent to the child." Sophias counsel expressed agreement with the Agencys position.
The court found "clear and convincing evidence that the Agency has met its burden" and it therefore denied the mothers motion under section 350, subdivision (c).
The mother then presented evidence, which consisted of her own testimony. The father made an offer of proof.
3. Argument
After all the evidence was in, the court entertained argument from counsel on the subject of the contested hearing, the denial of reunification services, sought by the Agency through its modification petition.
The Agency argued against the provision of reunification services to the mother, based on the two psychological evaluations. The Agencys counsel asked the court "to find from those evaluations the information necessary to make the findings, even though Dr. Hoffmans evaluation is somewhat equivocal." Sophias counsel agreed with the Agencys request, "except that rather than ending services, I would ask the Court to change the original disposition order from offering reunification services to the parent to not offer reunification services to the parent pursuant to Welfare & Institutions Code [section] 361.5 ([b]) (2)."
The mothers counsel argued against the requested modification to deny services. Counsel characterized Dr. Mayers evaluation as "totally unreliable" and argued that it was not "competent evidence" on the question of the mothers mental disability. Next, counsel argued that "the second prong" of the statutory scheme — ability to benefit from reunification services — was "not met at all." As to that point, counsel cited Dr. Hoffmans "opinion that Mother is perfectly capable of utilizing services." Counsel therefore asked the court "to order reunification services to the Mother, to this Mother who is anxious to have the child in her care."
4. Decision
After hearing the foregoing evidence and argument, the court ruled from the bench, granting the Agencys petition for modification. The court stated that it was "using the clear and convincing evidence standard." Applying that standard, the court found "that the Agency has met its burden under [section] 361.5 ([b]) (2)" thereby warranting the denial of reunification services. The court acknowledged the mothers love for Sophia, her "strong desire" to be a successful parent, and her "progress [in] dealing with her own circumstances," but it nevertheless found that the mother "does have a mental disability that will prevent her from utilizing services to safely parent Sophia in the time allowed by law. Six months has already passed. Nine months has already passed. Sophia deserves permanency in her life." The court concluded: "At this time, the Court will grant the motion pursuant to [section] 388 and modify and terminate — not offer further services" to either parent.
A formal order followed. It includes these specific findings: by clear and convincing evidence, the mother suffers from a statutorily described mental disability that renders her incapable of utilizing family reunification services; the mothers mental disability also renders her incapable of adequately caring for and controlling her child; it is unlikely that the mother could provide adequate care and control for the child, even if services were continued for 12 months; and it is "not in the childs best interest that reunification services be continued." Consistent with its ruling at the hearing, the court set a permanency planning hearing for December 8, 2006.
Writ Petition
The mother brought this petition for extraordinary writ. (See § 366.26, subd. (l); Cal. Rules of Court, rules 38, 38.1, former rule 39.1B.) The Agency filed opposition to the petition, which the child has joined.
The writ procedure, as outlined in the statute and implemented in the rules, enables a party to obtain expeditious review of the juvenile courts findings and orders in setting a permanency planning hearing pursuant to section 366.26. (See Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) The statute encourages reviewing courts to consider such petitions on their merits. (Id. at p. 807; see § 366.26, subd. (l)(4)(B).) Having previously granted the mothers motion for relief from late filing of this petition, we shall do so here.
DISCUSSION
As a framework for our analysis, we begin with a brief overview of the principles of dependency law that inform our decision. Against that backdrop, we analyze the specific contentions that the mother raises here.
I. Statutory Framework
The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.) The primary goal of the dependency statutes is "to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible." (In re David M. (2005) 134 Cal.App.4th 822, 824; see § 300.2; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Put another way, the underlying purpose of dependency law is to protect the best interests of the child. (In re Malinda S. (1990) 51 Cal.3d 368, 384 ["paramount concern is the childs welfare"].)
In dependency proceedings involving the removal of children from their parents, there are generally four phases: (1) jurisdiction, (2) disposition, (3) reunification — unless bypassed, and (4) the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) This case concerns the third phase.
II. Reunification Services
"The reunification phase of dependency proceedings is a critical aspect of the entire dependency system. If the parent fails to reunify with the minor, then the juvenile court must conduct a selection and implementation hearing, which may result in the permanent severance of the parent-child relationship." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 755.) The decision to withhold reunification services thus "should not be taken lightly because it is tantamount to terminating parental rights under section 366.26, subdivision (c)(1)." (In re Jennilee T. (1992) 3 Cal.App.4th 212, 222.)
The specific statute that governs the provision of family reunification services is section 361.5. Subdivision (a) of the statute sets forth the general rule that reunification services are required whenever a child is removed from the parents custody. But subdivision (b) provides exceptions; it describes a number of circumstances in which reunification services may be bypassed. These bypass provisions represent the Legislatures recognition that it may be fruitless to provide reunification services under certain circumstances. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)
Here, the juvenile court declined to offer the mother further services based on the statutory exception that reads as follows: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence . . . [¶] . . . [¶] (2) That the parent or guardian is suffering from a mental disability" as described in cited provisions of the Family Code. (§ 361.5, subds. (b)-(b)(2); accord, Cal. Rules of Court, rule 1456 (f)(5)(B); see Fam. Code, § 7820 et seq.)
The corresponding Family Code provision defines "mentally disabled" to mean "that a parent or parents suffer a mental incapacity or disorder that renders the parent or parents unable to care for and control the child adequately." (Fam. Code, § 7827, subd. (a).) Subject to an exception that does not apply here, "the evidence of any two experts," who have the qualifications specified in the statute, "is required to support a finding under this section." (Id., subd. (c); see, e.g., Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 473.)
III. Analysis
With that overview in mind, we turn to the specific contentions asserted here.
The mother raises two arguments in her petition. First, she contends, the juvenile court erred in finding a sufficient change of circumstances to support bypassing reunification services. Second, the mother asserts, the court erred in determining that the childs best interests were served by the bypass of services.
A. Evidentiary Support for a Bypass of Services
In reaching its decision to bypass or terminate services, the juvenile court had the benefit of two psychological evaluations. In the mothers view, however, the first of those evaluations — Dr. Hoffmans — "does not appear to recommend bypass." As to the second evaluation, which was prepared by Dr. Mayers, the mother characterizes it as "incomplete" because it did not follow "the court ordered protocol."
1. Standard of Review
In essence, the mother is challenging the sufficiency of the psychological evaluations as an evidentiary basis for the juvenile courts decision to deny reunification services. In the face of such challenges, our role as a reviewing court is limited. "We review petitioners claim under the substantial evidence test. The duty of a reviewing court is to determine whether there is any substantial evidence to support the juvenile courts findings. In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the courts order was proper based on clear and convincing evidence." (Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 474; accord, In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.)
2. Analytic Framework
As suggested by counsel at the contested hearing below, the denial of reunification services under these circumstances requires a three-part analysis, which examines (a) mental disability, (b) capacity to utilize reunification services, and (c) capacity to adequately parent if services are provided.
a. Mental Disability
The juvenile court first assesses whether there is evidence that the parent suffers from a mental disability, as statutorily defined. (§ 361.5, subd. (b)(2).) The definition, found in the Family Code, is "a mental incapacity or disorder that renders the parent . . . unable to care for and control the child adequately." (Fam. Code, § 7827, subd. (a).) By statute, the evidence must come from "any two experts" who have the necessary qualifications as specified in the statute. (Id., subd. (c).) Here, the qualified experts were Dr. Tony Hoffman and Dr. Barbara Mayers.
Dr. Hoffman described the mother as having "mild to moderate symptoms of schizoaffective disorder." He opined that she "is unable to raise a child on her own."
Dr. Mayers was somewhat less direct in terms of the diagnosis. She stated that the mother "was perhaps inadvertently less than candid on the MCMI Test. Her results did show personality features but did not [delineate] an AXIS I diagnosis. Her childhood and recent history clearly document an AXIS I disorder." In an addendum, Dr. Mayers stated: "In terms of Axis II syndromes showed Avoidant Personality Traits, Obsessive Compulsive Personality Features and Borderline Personality. As she described her history there seemed to be a pattern of schizophrenia during adulthood." As to the mothers ability to parent, Dr. Mayers unequivocally stated: "I do not believe that she is capable of taking care of a child."
The court specifically found "that there were diagnoses in both reports" that proved the existence of a mental disability as described in the statute. We agree. Statements in both evaluations — quoted above — clearly support the courts determination that the mother suffers from "a mental incapacity or disorder that renders [her] unable to care for and control the child adequately." (Fam. Code, § 7827, subd. (a).)
b. Capacity to Utilize Services
The next step in the juvenile courts analysis focuses on the mentally disabled parents ability to benefit from reunification services. Again, both experts weighed in on that issue in this case.
Dr. Hoffman answered the question of whether the mother is "a candidate for reunification services" by saying: "Yes, but only under the context of intensive social support." He concluded that the mother was "likely to benefit from parent training, domestic life skills development, and other skill training in family living." Nevertheless, he added, "this is not to say that she is a candidate for reunification services at present." And listed first among Dr. Hoffmans recommendations was this: "Cessation of reunification services."
Addressing "the issue of reunification services to assist her in parenting," Dr. Mayers stated that the mother "has had a high volume of services in basic living skills for herself and has still not been very successful. I do not think that further assistance in child care skills or basic living skills will be enough to allow her to successfully deal with a baby or a young child. I do not believe that she is capable of taking care of a baby." Dr. Mayers added: "As to what would work for [the mother] to take care of her child I cannot think of any level of assistance that would work."
The mother argues here that Dr. Mayers did not respond to the courts specific question concerning the mothers ability to benefit from reunification services within the allotted timeframe and therefore that she failed to comply with the court-ordered "protocol." As the mother puts it, Dr. Mayers "never addressed the issue of length of reunification services for the mother in her . . . evaluation." The juvenile court specifically found otherwise, saying "the questions as posed were answered in the reports . . . . " By reasonable inference, it is clear from her evaluation that Dr. Mayers concluded that the mother would not benefit from services within the allotted time period — or ever.
As the majority said in the Curtis F. case: "In this case, the juvenile court was faced with a difficult task, that of assessing the reports of two psychologists whose conclusions about petitioners prospects were not identical. However, under subdivision (a) of Family Code section 7827, there is no requirement that both experts must agree a parent is unlikely to benefit from services before the court may deny the parent services. Instead, the statute requires a showing only of evidence proffered by both experts regarding a parents mental disability, evidence from which the court then can make inferences and base its findings. [¶] Here, both reports considered by the juvenile court contain ample evidence to suggest that petitioner is unlikely to be capable of caring for his child, even if provided with reunification services, due to a mental disability." (Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 474.) "Based on these two reports, the juvenile court determined it was unlikely that petitioner would benefit from reunification services. Each report, considered on its own, contains facts consistent with the conclusions reached by the court. Accordingly, substantial evidence supports the courts findings." (Ibid.)
The dissenter in Curtis F. took issue with "the majoritys view, [that] evidence may be `competent if it consists of facts in the experts 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. v. Superior Court, supra, 80 Cal.App.4th at p. 475 (dis. opn. of Sims, J.).) The dissenting justice stated: "In my view, the statute envisions that the experts must render professional opinions that the parent is unlikely to be capable of adequately caring for the child within the specified time limits. I think this is so because the question of likelihood of reunification (given the provision of services) seems to me to be peculiarly one that lends itself to resolution of mental health professionals, not judges." (Ibid.) Applying that construction of the statute, the dissenting justice concluded: "On this record, there was only one mental health professional . . . who opined that reunification was unlikely. [The other] opined that reunification was `guarded to fair. This is not an opinion that reunification was unlikely. Consequently, in my view, the record does not reflect competent evidence from two mental health professionals that, even with the provision of services, reunification was unlikely. Petitioner was wrongfully denied reunification services, and a writ should issue." (Ibid.)
Even if we were to adopt the reasoning of the dissent in Curtis F., the result in this case would not change. Here, even Dr. Hoffmans assessment of the mothers ability to utilize reunification services was far more pessimistic than "guarded to fair." (Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 472.) He stated flatly that the mother "will not, and does not want to benefit from reunification services at this time."
In sum, substantial evidence from both psychologists evaluations supports the juvenile courts finding that reunification services would likely not benefit the mother.
c. Parents Adequacy
The third and final step in the juvenile courts analysis is governed by section 361.5, subdivision (c), which provides that "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).) Again, both psychologists addressed that issue here.
Dr. Hoffman opined that the mother "could not care for her baby Sophia without intensified social service and family support." As of the time of the hearing, however, the mother was no longer receiving intensive in-home services; her only support was a therapist and a payee for money management. The mother thus lacked the intensive support needed to assist her in parenting. Without it, Dr. Hoffman opined, "she probably would have significant difficulty providing minimally adequate parenting." Moreover, Dr. Hoffmans opinion of the mothers ability to parent was further conditioned on "the proviso that she avoid future relationships with violent partners." As to that point, the court had evidence "that her intention was to remain with [the father] as a family and raise Sophia." In Dr. Mayers view, the mothers "expectation that she and [the father] will be able to function as a good family with Sophia based upon past and recent abuse is extremely unlikely and is another fantasy of wish fulfillment."
Dr. Mayers opinion of the mothers ability to adequately parent her child was more straightforward than Dr. Hoffmans. She stated flatly: "I do not believe that she is capable of taking care of a baby." She repeated: "I do not believe that she is capable of taking care of a child." Finally, Dr. Mayers could not "think of any level of assistance that would" enable the mother to adequately care for Sophia.
Taken together, the two psychologists evaluations support the juvenile courts conclusion that the mother "is unlikely to be capable of adequately caring for the child within the time limits specified" in the statute. (§ 361.5, subd. (c).)
3. Conclusion
All three prongs of the analysis are satisfied here. The record contains substantial evidence that the mother falls within the statutory description of a mentally disabled parent whose "mental incapacity or disorder . . . renders [her] unable to care for and control the child adequately." (Fam. Code, § 7827, subd. (a).) For that reason, the juvenile court acted properly in denying the mother reunification services. (§ 361.5, subd. (b)(2).)
B. The Childs Best Interests
That brings us to the mothers second contention — that the court erred in determining that the childs best interests were served by the bypass of services, which the Agency sought through its modification petition.
"Modification orders in juvenile dependency court are authorized by section 388. Essentially, the statute requires a showing of a change of circumstances and that modification based on that change would be in the `best interests of the minor children." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526, fn. omitted.)
Here, the juvenile court specifically found that there was "a change in circumstances" and that "the best interests of the minor may be promoted by the proposed change in order." Conversely, the court found: "It is not in the childs best interest that reunification services be continued." The mother challenges those findings.
1. Standard of Review
The party bringing a petition under section 388 "has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the minors best interests." (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) "The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
2. Factors
"Although the specific factors a court must consider vary with each case, each childs best interests would necessarily involve eliminating the specific factors that required placement outside the parents home . . . ." (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.) "In addition, as in any custody determination, a primary consideration in determining the childs best interest is the goal of assuring stability and continuity." (Id. at p. 464.) Moreover, the childs best interests typically require prompt action in the dependency proceeding, particularly when the child has been removed from parental custody. As the California Supreme Court said in another procedural context, "lengthy and unnecessary delay in providing permanency for children" is "the very evil" that the Legislature has sought to avoid. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) As the court observed there, reunification efforts might continue "for a period as long as 18 months. Another four months may pass before the section 366.26 hearing is held. While this may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate." (Ibid.)
3. Application
Applying those precepts to the case before us, we begin with the first factor identified above — elimination of the precipitating cause for removal. In this case, one of the principal factors that required Sophias out-of-home placement was the mothers mental illness. Sadly, that underlying problem appears to be intractable, according to substantial evidence in the record. (Cf. In re Angel B., supra, 97 Cal.App.4th at pp. 463-464, 464-465[mother was addressing the problem that led to childs removal, her drug addiction].) Where the underlying problem cannot be eliminated, bypassing reunification would seem to serve the childs best interests.
Stability is another factor that contributes to a dependent childs well-being. Indeed, "there is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers." (In re Angel B., supra, 97 Cal.App.4th at p. 465.) In this case, there is no evidence that Sophias placement was a concurrent one. However, as asserted in the modification petition: "Terminating reunification services now will allow the Agency to proceed with a plan for the minor which will provide increased permanency and stability."
Another pertinent consideration here is avoiding delay. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) As the juvenile court said in this case: "Six months has already passed. Nine months has already passed. Sophia deserves permanency in her life." As the court implicitly determined, a swift route to permanency is in Sophias best interest.
Under these circumstances, the juvenile court was warranted in concluding that the requested modification — denial of reunification services — would promote Sophias best interests. (In re Jasmon O., supra, 8 Cal.4th at p. 416 [finding "substantial new evidence" to support the juvenile courts "decision to set aside the previous order as not in the best interests of the child"].) There is no abuse of discretion here.
DISPOSITION
The petition for extraordinary writ is denied.
We Concur:
Bamattre-Manoukian, Acting P.J.
Duffy, J.