Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J35337
McGuiness, P.J.
Minors Ashley and Samantha W., respectively nine and seven year-old children, and the Solano County Department of Health and Social Services (“Department”) appeal a series of orders by the Solano County Juvenile Court, issued between September 27, 2006, and November 7, 2006, ordering the Department to create and implement a transition plan to effect the minors’ return to their mother, Ann W., pursuant to Welfare and Institutions Code section 366.22, and declining to set a hearing to determine whether the mother’s parental rights should be terminated pursuant to section 366.26. Appellants also challenge the denial of their section 385 motion for reconsideration of the court’s order returning the minors to their mother, and the denial of their petition to modify or set aside a previous order, pursuant to section 388. Because we conclude that the juvenile court erred and there was a preponderance of the evidence that the girls’ return would create a substantial risk of detriment to their physical and emotional well-being, we reverse the lower court’s orders.
All further statutory code references are to the Welfare and Institutions Code unless otherwise indicated.
Factual Background
These children first came to the authorities’ attention in January 2005 when Ashley attempted to detain three other children in the school bathroom. Investigating the incident, the authorities learned that Ashley was mimicking her mother’s behavior, who had severely physically and emotionally abused and neglected both children. The girls had also witnessed their mother abusing her boyfriend and attempting to injure their father. The mother was known to use methamphetamine, which had been found in her home in 1992 when an older daughter (then six months old) had been found dead. Although no one was ever charged in the death of that child, another daughter, Brianna, went to live with her paternal grandparents at that time.
Both children initially demonstrated a continuum of behaviors raising mental health concerns. Ashley had daily tantrums, refused to comply with reasonable demands (e.g., bedtime), had nightmares, vomited when stressed, suffered from encopresis and enuresis, was irritable, difficult to control, and acted out domestic violence. Samantha shop-lifted, exhibited inappropriate behaviors in public, cried for extended periods of time, had nightmares (e.g., somebody trying to kill or choke her), was overly dependent and “clingy, ” and would tell adults whom she encountered that she was a foster child who had been whipped with a belt.
In March 2005 Ann W. was convicted of misdemeanor child endangerment and welfare fraud and sentenced to one year in county jail. She was released from jail in early August 2005, and placed on probation.
Procedural History
The girls were detained on January 31, 2005 and placed in foster care. The allegations contained in the amended section 300 petition were sustained on March 17, 2005: specifically, that the mother had physically abused the girls, that she had mental health issues, and that she used methamphetamine when she was pregnant with them. By the six-month review, Ann W. had been out of jail for approximately seven weeks. The Department noted the girls’ difficulty stabilizing in placement and the mother’s efforts to comply with her case plan. It expressed the hope that within six months Ann W. could “progress to a level that would support a safe return of her children to her care.” By the twelve-month review, originally scheduled for March 27, 2006, but held on June 6, the picture had, unfortunately, worsened, causing the Department to recommend terminating reunification services to both parents, and the setting of a section 366.26 hearing. Although the juvenile court terminated the father’s reunification services at that time, it did not terminate services to Ann W. It stated, “I think she’s shown pretty good faith attempts to comply with the multiple orders that we throw at her and that the department throws at her. Granted she could do better. Perhaps she could do better. I don’t know. But I’m willing to give her that opportunity. [¶] . . . [¶] And I don’t know if the progress will ever occur. But like I said, I’m willing to give her another three months to do that, but there has to be some kind of activity.” The court emphasized the importance of the mother’s deriving genuine therapeutic benefits from her program, admonishing her: “And I can’t urge you strongly enough to comply—if you have a real true interest in maintaining a relationship with your daughters, that you really comply and sit down and work with these people and try to get to that understanding that they’re talking about, not some slip-shot every once in a while kind of approach to it. It’s up to you really.”
At the 18-month review, held September 27 and 28, 2006—20 months after the minors were first detained—the Department reiterated its recommendation that reunification services to the mother be terminated and that a section 366.26 hearing be set. In support of its recommendation the Department submitted its extensive case notes and verbal or written reports from six mental health professionals: (1) Ashley’s individual therapist, (2) Samantha’s individual therapist, (3) the mother’s individual therapist, (4) psychologists and family counselors from the Parent-Child Interaction Therapy program, (5) the mother’s substance abuse counselor, and (6) an overall evaluation and summary report, based on interviews and a review of records, by a psychologist retained for that purpose, Dr. Lilia Salazar.
The case records documented various incidents of concern to the Department because it felt they demonstrated Ann W.’s inability to perceive and accommodate her children’s emotional needs. For example, she resisted a counselor’s attempt to have her stop showing a preference for Samantha over Ashley, despite the adverse effect her favoritism was having on Ashley. Although the girls told her they were having nightmares and were troubled by anxiety, Ann W., though directed not to, brought scary movies to the visits and told the girls they could watch R-rated and scary movies when they returned home. When Samantha started talking in a public place about Ashley’s trying to engage in sexual behavior Ashley had observed her mother doing, Ann W. physically tried to stop Samantha from speaking by putting her hands over her mouth and pushing her against a wall.
Ashley’s therapist reported that Ashley continued to shows signs of post traumatic stress disorder resulting from the earlier abuse to which she had been subjected. Despite marked improvement, when the possibility of being returned to her mother’s care was raised, Ashley’s coping abilities and behaviors noticeably regressed. The child affirmatively expressed the desire to remain in her current foster placement rather than return to her mother. The therapist emphasized the importance of Ashley’s need to “gain some security regarding her future placement” and opined that she would require long-term therapy in addition to other intensive services to meet her “emotional, cognitive, adaptive, and educational needs.”
Samantha’s therapist advised that no additional visiting time be added with the mother. She reported that Samantha was crying excessively, required reassurance regarding her safety, and was plagued by on-going nightmares of being drowned and hurt by a woman. Samantha, like her sister, explicitly stated she did not want to return to live with her mother, “and very much want[ed] to remain in her current foster home.”
The Department’s written report to the court devotes one paragraph summarizing Samantha’s therapist’s assessment of the situation. The final sentence refers to Ashley, stating that she does not want to be returned to her mother. Because this is in a paragraph otherwise dealing exclusively with Samantha, we understand the reference to Ashley to be mistaken. Furthermore, our understanding is corroborated by Samantha’s therapist’s written report of September 6, 2006, which was not submitted to the juvenile court until appellants filed their reconsideration/modification motions.
The mother’s individual therapist wrote, “Although patient has made a sincere effort to develop her parenting skills, she will need to improve her coping skills i.e. impulse control, judgment, anger management and maturity, to effectively parent her children on her own.” He also acknowledged her “strong interest in being reunified with her two daughters.” He recommended that the Department consider placing the girls with their maternal grandmother so as to allow supervised contact with the mother, while not making her “directly responsible for the children’s supervision and care.”
The Co-Clinical Directors and a Development Specialist from the Parent-Child Interaction Therapy program provided objective data comparing Ann W.’s response to their program with normative responses which supported the observation that the mother’s response to the program was “highly unusual and negative.” The report noted the mother’s “lack of engagement” with her daughters, and her “actively ignoring the coaching and responding with sarcasm, which . . . caused the girls more distress.” The therapists believed that “the relationship between mother and her daughters seemed to become increasingly conflictual and that the [parent-child interaction] therapy was not benefiting the girls positively, ” and the decision was made to terminate parent-child therapy. Because the same agency was also providing individual therapy to the minors, the co-clinical directors of the program declined to provide individual therapy to the mother in order to preserve “the girls’ therapeutic safety and security.” They indicated that “this was the first time in the history of our [Parent-Child Interaction Therapy] program that treatment was terminated due to a parent’s negative response to [the therapy] and the strong potential for continued adverse impact on the child client(s).”
Ann W.’s substance abuse counselor documented the mother’s regular attendance in the program and the fact that she had randomly tested clean for illicit substances eight times. Nonetheless, the counselor considered her to be “at high risk of relapse.” She opined that Ann W. “appears to be going through the motions of whatever is asked of her however she does not appear to seem to understand how her addiction has played a role in her life situation. Overall [Ann W.] comes to group however she has not participated in her treatment recovery.”
Finally, Dr. Salazar, the same psychologist who had initially done an assessment and recommended a treatment plan, performed a summary evaluation. The initial treatment plan was based on a clinical interview with Ann W. and an individually tailored set of standardized psychological testing. The follow-up evaluation was based on that initial interview with the mother, plus reports by the Department regarding subsequent court proceedings and the reports from mental health professionals. The evaluator also met with the children and their foster parents. She, however, did not meet with the mother again. She also focused on details in the social work record; for example, although the mother and both children are dwarves, Ann W. opposed the school accommodating Ashley by providing her with a smaller desk and chair because of the her desire that her child not be treated differently than others and because she might grow out of her condition. The evaluator concluded, “While [Ann W.] appears to have done what was required of her, she either lacks the insight to probe deeper into herself, or is unwilling to do so. . . . She would need long and hard therapeutic work to start dealing with her real issues. Thus, in view of the best interest of the minors, they need the security of a permanent placement and continuing therapeutic services in order to deal with their past abuse and continue working on their trauma to grow up as emotionally and mentally healthy young adults.”
In addition to the mental health picture of the mother outlined above, Ann W. has been unable to maintain steady employment. As of September 2006, she had held five marginal jobs since her release from jail: working at Arby’s, holiday bell-ringing for the Salvation Army, selling newspapers for The Daily Republic, telemarketing for Pacific Crest Research, and working as a sign holder.
Ann W.’s testimony at the June 6, 2006, hearing supported the view that her participation in treatment had been perfunctory and that she was out-of-touch with her daughters. For example, she acknowledged that she did not begin post-incarceration drug treatment therapy until April 2006, eight months after she had been released from jail and shortly after her social worker recommended terminating reunification services to her. She claimed to have attended Narcotics/Alcohol Anonymous meetings since shortly after being released from jail, but it had taken her one to two months to start working with her 12-step sponsor. After approximately ten months of participating in a post-incarceration substance abuse program, she was somewhere between the first and second step out of 12 steps. Nonetheless, she was unable to identify what Step Two was. She had no idea that her children had habitually been exhibiting sexualized behavior. She was shocked that Ashley and Samantha were afraid that she would hurt them again, although she ultimately conceded that they might feel that way “a little bit.” She was baffled as to why her children had nightmares and she denied they suffered any adverse emotional effects because she had physically abused them.
Opposing the Department and the minors’ position, Ann W. points to the following: (1) early in the protective custody process, as reflected at the April 7, 2005, dispositional hearing, the children expressed concern and love for her and her contact with them was appropriate; (2) she reliably participated in mandated treatment programs and supervised visitation with the children, (3) she maintained her sobriety, as documented by negative drug tests, and (4) she showed signs of internalizing what she was learning in therapy. She introduced no testimony or report by any mental health professional who believed she could care for her children.
The mother points to two examples in particular: (1) her appropriate acknowledgement that she had hit the girls, accompanied by a promise not to do so in the future, when accused by one of the girls of having previously hit them and (2) her saying that they would wait to see what the judge decided in response to Samantha’s statement that they were getting a new mom and that she would no longer be their mother.
Based on this evidence, the juvenile court ruled that “the Department has not met its burden of proof regarding substantial risk of detriment to the safety and protection of the physical or emotional well being of both minor children.” In explaining its decision, the court stated that it would give “no weight” to Dr. Salazar’s summary evaluation. In the court’s view, the report violated “every standard of psychological evaluation.” The court objected that, while the main focus was on “the client, ” i.e., Ann W., the evaluator did not meet with her, but met with the minors. The court also gave “very little weight” to the therapists’ opinions because they were “speaking as therapists” and failed to use “the proper legal standard.” The court explained that there is a “particular required statutory standard” that they failed to follow. The court also gave little credibility to the children’s statements about fears for their safety because that was a “therapy issue, ” which could be “dealt with adequately whether the children are in the home of the foster care providers or the minors’ homes.”
At a subsequent hearing, in response to the County’s characterizing the court’s statement as indicating that it would not consider the report, the juvenile court clarified that it was not excluding the report. A review of the record shows no ambiguity here: the court did not exclude the report, but, because of its perceived deficiencies, gave it no credence.
The juvenile court set a second hearing, by which time the Department was to “come up with a case plan on how [the return of the children to their mother was] to be effected.” The court explained its ruling as follows: “In making my assessment of the minors’ or the mother’s progress, she’s completed a 52-week parenting class, she continues in therapy, she has reduced her level of probation’s supervision to minimal. She continues to test clean and there is more than one test, there are numerous tests in terms of her testing clean. That undercuts the negative spin that the Department and minors’ counsel place on her progress in drug abuse therapy. She’s making the bottom line, which is stay[ing] drug free, and she’s doing that quite successfully. She continues to go to AA and NA meetings and she completed her 52-week parenting class. [¶] The anecdotal material in the visitation I believe is—it gives material that can be dealt with in family maintenance as well as family reunification. I think that this case is going to require a high level of services in family maintenance, but that is what I’m going to order. [¶] . . . [¶] . . . Okay, you know, I’ve also indicated I think intensive services are going to be required in this case. You know, that includes for the mother and her continued drug addiction treatment and her own personal therapy. It includes the parenting, it includes minors’ therapy, and it’s going to include some type of [conjoint] therapy or family therapy.”
In compliance with the juvenile court’s order, prior to the next hearing, the Department submitted a transitional plan outlining a high level of services in an attempt to safeguard the minors. The plan had specific elements designed to address the general risk of physical abuse to the children, the risk of physical abuse and neglect due to the mother’s mental illness, the risk of physical abuse and neglect due to the mother’s substance abuse, and the risk of serious emotional damage to the children. The Department indicated that the plan was being “submitted to comply with the order of the Court issued on September 27, 2006, directing the development of a family maintenance plan.” Nonetheless, it remained “the collective opinion of all of the participants in the staffings that the risks to these two children of neglect and abuse are too high to return the children home.”
Before that hearing, the Department, joined by the minors, brought a “Motion for Reconsideration/ Request for Change of Court Orders Issued on September 27, 2006, ” pursuant to sections 385 and 388. At that hearing, the Court “generally approve[d] the case plan as submitted, ” but granted the mother leave to put the matter back on calendar to discuss specific elements of the plan. It also set a date to hear the motion for reconsideration, at which time it anticipated reviewing a progress report on the implementation of the proposed family maintenance plan.
Section 385 states: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.”
Section 388 allows interested individuals to petition the court, based on changed circumstances or new evidence, to set aside or modify a previous order of the juvenile court, after a minor has been declared to be a court dependent. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
The new evidence submitted in support of the Motion for Reconsideration/ Request for Change of Court Orders consisted of:
(1) a declaration from the Department’s counsel explaining that the social worker assigned to the case had recently been working away from her office, and had not promptly recognized that certain materials relevant to the court’s decision to return the children to their mother had been delivered;
(2) a psychological evaluation of Ashley, dated September 22, 2006, that, included, among its many recommendations, “re-evaluating Ashley’s visits with her mother at this time due to her increased and prolonged hyperarousal state (including sleep problems, fearfulness, nightmares, aggression) [and that] [v]isits with her mother may be contraindicated at this time, given her distress level after seeing her mother (the perpetrator of her abuse)”;
(3) a written report, dated September 6, 2006, from Samantha’s therapist, which discussing the deterioration of Samantha’s emotional state due to her “continued fear that she will be returned to live with her mother” and opining that “[i]f she is returned to live with her mother, Samantha is most likely to respond with an increased intense emotional reaction to cope with her anxiety and fears . . . [necessitating] ongoing long term intensive mental health services to include individual and family therapy for Samantha, in home support services, parenting classes as well as . . . individual therapy for her mother”;
(4) a letter from Dr. Salazar, dated October 6, 2006, explaining why it had not been necessary to meet with Ann W. in order to perform her summary evaluation previously submitted to the court; and
(5) additional clinical material reported by the Department, e.g., that, on one occasion, Ann W. had come to her drug treatment program very agitated and angry at the minors’ foster parents, apparently because of a dispute about how the children were dressed, and when the group attempted to give her feedback, she starting yelling and verbally abusing group members until she was asked to leave the group and discuss her angry, abusive behavior with her counselor. On another occasion, right after a visit at which Samantha indicated her desire not to live with her mother, Ann W. (perhaps unwittingly) allowed the girls to overhear her yelling and cursing in a bathroom stall.
The mother argued that because (other than Dr. Salazar’s report and the note regarding the incident in the bathroom) these documents were all dated prior to the September 27 hearing, they were not new evidence. She contended that Dr. Salazar’s note contained nothing substantially new and that the bathroom incident was, at most, inadvertent and followed a visit that had gone well.
The juvenile court determined that “a motion for reconsideration does not lie in [section] 300” matters, and denied the motion. Similarly, the court denied the section 388 request for a new hearing because Dr. Salazar’s report “doesn’t add anything new, ” and the “other new information is not sufficient for me to reconsider the matter.” The court also called “somewhat true” a comment by counsel that the Department and other report writers were attempting “to paint the mother in as bad as light as possible.” Implicitly reasoning that the successful implementation of the transition plan required a more positive attitude, the court directed that the next report emphasize the mother’s accomplishments and de-emphasize “every little indication that people feel is negative about her.”
The Department and minors filed Notices of Appeal, challenging the juvenile court’s orders establishing the transition plan to return the girls to their mother and denying their sections 385 and 388 motions. The minors, joined by the Department, also filed a petition for a writ of supersedeas and a request for an immediate stay of the order transitioning the girls to their mother’s care. After temporarily staying the girls’ return and the implementation of the transition plan, we granted the petition for a writ of supersedeas, staying the juvenile court’s orders pending the determination of this appeal.
I. This Court Reviews the Juvenile Court’s Decision Under a Substantial Evidence Standard
The minor appellants argue that, although normally a ruling returning children to their parents’ care is reviewed for substantial evidence, here the court’s allegedly erroneous evidentiary rulings, should be reviewed de novo. The Department, on the other hand, agrees with the mother that the appropriate standard of review of the juvenile court’s section 366.22 ruling is substantial evidence. The Department and the mother are correct.
In arguing for de novo review, the minor appellants rely on two related arguments: (1) that de novo review is appropriate because the juvenile court failed to weigh all the relevant evidence, citing Estate of Larson (1980) 106 Cal.App.3d 560, 567), and (2) that where prejudicial error occurs, it must be reversed even when a court admits evidence, but then refuses to consider and weigh it (citing Lewis Food Co. v. Fireman’s Fund Ins. Co. (1962) 207 Cal.App.2d 515, 524. The appellate courts’ analyses in both those cases, however, show that in each one the trial court admitted, but did not consider, certain evidence. In Estate of Larson the trial court considered a certain fact to be determinative, when it was only one of various relevant facts. (Estate of Larson, supra 106 Cal.App.3d at p. 568.) This had the effect of causing the trial court not to consider the other relevant factors. In Lewis Food Co., the trial court admitted extrinsic evidence regarding the interpretation of an insurance policy, but proceeded on the understanding that the policy had to be interpreted without regard to the extrinsic evidence, and the extrinsic evidence was ignored. (Lewis Food Co., supra, 207 Cal.App.2d at pp. 523-524.)
Straining to fall within the holdings of Estate of Larson and/or Lewis Food Co., the minor appellants contend that the juvenile court made significant “errors of law” in its “evidentiary” rulings. By characterizing the court’s rulings as concerning the “admissibility of evidence, ” where the juvenile court actually “gave little or no weight” to the Department’s evidence, they erroneously interpret the juvenile court’s comments to mean that it did not consider key evidence.
The minors focus on the court’s statements that (1) it was giving no weight to Dr. Salazar’s summary report because she had not re-interviewed the mother, (2) it was giving very little weight to the therapists’ opinions, because they failed to use the proper legal standard in reaching their opinions, and (3) it was giving very little credibility to the children’s statements about their safety and their desires not to be returned to their mother’s custody. It is apparent from the court’s comments, however, that it considered and weighed all of this evidence; nothing was excluded. Rather, as the finder-of-fact, it considered each piece of evidence either to be flawed or to be of little import to its ultimate decision, so it was not persuaded by the evidence. Because the juvenile court admitted and considered all the evidence proffered by appellants, de novo review is not appropriate here. Rather, appellants are contesting whether the lower court’s findings were reasonable, credible, or of solid value—i.e., whether they are supported by “substantial evidence.” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) Under this standard, of course, if there is substantial evidence to support the juvenile court’s decision, we are powerless to reweigh conflicting evidence and to compel a different result. (Ibid.) As discussed below, however, there was not substantial evidence to support the lower court’s decision.
The juvenile court questioned the relevance of the girls’ desires to remain with their foster family and indicated it was considering “striking” that information. It did not strike the evidence; in considering the statements, it determined they merited little weight.
II. The Department Has Rebutted the Statutory Presumption that the Children Should Be Returned to Their Mother
Section 366.22 requires the court to order the children’s return to their mother unless, by a preponderance of the evidence, it finds their return “would create a substantial risk of detriment to [their] safety, protection, or physical or emotional well-being.” (§ 366.22, subd. (a).) In support of its decision to order the development and implementation of a transition plan to return the girls to their mother, the court emphasized that she had remained drug-free and had participated in the mandated counseling and parenting classes. The juvenile court was unquestionably correct in crediting Ann W. for remaining drug-free. Similarly, the court was also correct in acknowledging her perseverance in completing and/or continuing in alcohol, drug, and parenting treatment. The fact that Ann W. had remained drug-free for a significant period of time and was continuing her treatment was also a valid consideration to weigh in evaluating the counselor and evaluator’s opinions that her prognosis was poor. Of course, a parent—such as Ann W.—with a history of significant child abuse associated with the use of illicit drugs would be required to remain drug-free before a court would return her children to her care. In addition, the development of insight, alternate behaviors, and support systems that would buttress the parent’s continuing sobriety is also essential. Here, the fact that the mother has remained drug-free is a necessary, but—by itself—insufficient condition for her regaining custody of the girls. We must consider whether, in addition to maintaining her sobriety, the mother made other necessary changes to enable her to parent her children. This necessitates consideration of the mental health evidence put on by the Department and the reasons the juvenile court discounted it.
As explained above, the unanimous opinion of all the counselors, therapists, and the psychological evaluator involved in this case was that the mother’s participation in her various therapies had been perfunctory and/or inadequate to achieve the desired results. The fact that none of the mental health experts involved in this case believed that the children should be returned to their mother’s care is not necessarily dispositive; the court could still return the children to her if there is not a substantial risk that their return would be detrimental. The cumulative weight of those opinions, does, however, create a significant obstacle to concluding that there is no such risk. (See In re Jasmon O. (1994) 8 Cal.4th 398, 430 [noting the importance of mental health testimony in juvenile dependency and child custody proceedings: “It cannot seriously be argued that such evidence should be . . . denied substantial weight”].)
The court concluded the mental health opinions did not support a finding that substantial evidence of detriment existed—by employing two lines of reasoning with respect to those opinions. It discounted the therapists’ opinions generally because “[t]hey’re speaking as therapists. There is a particular required statutory standard that has to be followed and there is no sign at all in any of their material that they are following that standard when they make their recommendation.” With respect to Dr. Salazar’s summary report, the court also found that her report “was written in complete disregard of every standard of psychological evaluation that I am aware of. . . . She didn’t even see the client or speak to the client [mother]. She met with the children, but the main focus is on the client.”
A. Neither the Treating Nor Evaluating Mental Health Professionals Need to Identify the Applicable Legal Standard of Review
That mental health therapists speak “as therapists” should come as no surprise since they are testifying based on their knowledge, experience, and expertise in that field. Expert testimony is admissible if it “relate[s] to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” (Evid. Code § 801, subd. (a).) It may address an issue ultimately to be decided by the trier of fact (Evid. Code § 805), but it does not alter the court’s responsibility to determine the applicable law. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1185.) Whether the mental health professionals used the language of the correct legal standard is irrelevant. Even Dr. Salazar’s referring to “the best interest of the minors, ” the incorrect standard for a section 366.22 review, is beside the point. Whether the case should be decided under a “child’s best interest” standard or a “substantial risk of detriment” standard is for the court to determine. When the court applies the correct legal standard, the issue is whether the therapists’ reports contribute towards the evidence of substantial risk to the minors.
A juvenile court should order a child’s return to a parent’s custody on a finding that, while return would not be in the child’s best interests, no substantial risk was shown that the return would be detrimental to the child. A court might even find, contrary to expert recommendations, that not only would the child’s return not be detrimental, but it would actually be in the child’s best interests. (See e.g., People v. Gentry (1968) 257 Cal.App.2d 607, 611 [expert testimony not binding on the court].) The fact that a court may decide not to credit an expert’s opinion does not mean that if a mental health professional simply fails to state (or misstates) the applicable legal standard, the expert’s factual observations and clinical judgments should be ignored. Understanding the therapists’ opinions and the bases for them, the court should apply the appropriate legal standard and then determine what action is appropriate. Although their familiarity with the appropriate legal standard may enhance mental health professionals’ persuasiveness, they are not responsible for educating the court about the proper legal standard.
There are situations where an expert’s misunderstanding the applicable legal standard can be problematic. (See e.g., People v. Leonard (2007) 40 Cal.4th 1370, 1392 [psychiatrist sometimes misstated the test for competency to stand trial].) In those situations, the expert’s misunderstanding leads to an erroneous evaluation of the facts in support of the opinion. Here, a therapist’s misstatement or silence regarding the legal standard does not change the validity or the import of his or her observations and impressions.
Here, no evidence was adduced to undermine the overall picture conveyed by Dr. Salazar that Ann W. was resistant to treatment and had failed to demonstrate significant changes (other than remaining drug-free) in coping with stress or in dealing with the children. Although she regularly attended therapy, she continued to have difficulty accepting the children’s perspectives and responding to their needs. She persisted in minimizing or denying key problems, such as the continuing impact of her past abuse on the girls. The children’s symptoms became markedly more pronounced when faced with the possibility of being returned to her care. She was the only parent in the history of one parenting program to have her treatment terminated due to her negative response to the program and “the strong potential for continued adverse impact on the child[ren].” None of this is undermined by the mental health professionals’ failure to state (or misstatement of) the legal standard under which the court was to make its decision.
B. The Summary Report Should Not Have Been Discounted Simply Because the Evaluator Did Not Re-Interview the Mother
With respect to Dr. Salazar’s report, the juvenile court evidenced some confusion. The court referred to the mother as Dr. Salazar’s “client, ” whom Dr. Salazar neglected to re-interview in preparing the September 11, 2006 report. The report, however, specified Dr. Salazar was retained by a county social worker for the purpose of reviewing documents related to the question of returning the minors to their mother’s custody. The “client” here was the Department, not the mother.
Dr. Salazar’s initial evaluation found that Ann W. suffered from amphetamine dependence, a parent-child relational problem, and a non-specified personality disorder. She opined that she needed to “deal with her problems before her children can be returned to her care, ” lest they “continue to be at risk for physical and emotional abuse.” The summary report indicated that although it included a review of that initial evaluation, it was based primarily “on the documentation of [Ann W.’s] progress according to her providers with the goal of determining [her] competence in taking care of her children. . . .”
In claiming that Dr. Salazar’s report violated professional standards, the court seemed to be concerned that by not re-interviewing the mother, but interviewing the foster parents and the children, she was unfair. The evidence, however, was simply that the evaluator initially had determined the mother suffered from some deep-seated problems, and the reports of the professionals who subsequently worked with this family were consistent with the initial assessment and suggested Ann W. had made no significant therapeutic progress. Given the picture Ann W.’s counselors painted, Dr. Salazar’s re-interviewing her would have yielded no new material information. The juvenile court incorrectly disregarded Dr. Salazar’s conclusions simply because Dr. Salazar did not re-interview Ann W.
This is a theoretical possibility, which potentially might be a basis for discounting an evaluator’s conclusions. For example, if there were evidence in the record that the mother had responded well to treatment and that the evaluator’s decision not to re-interview her precluded the mother from demonstrating her therapeutic gains, the court’s concerns might have been justified. Similarly, if the conduct reported by the counselors working with the family had been inconsistent with the evaluator’s initial impression, there might be a reason to conduct a second assessment.
C. The Minors’ Preferences Should Not Have Been Minimized
The court also indicated it was giving “very little credibility” to the girls’ statements, as reported by the mental health workers, that they feared their mother and wanted the judge to know they wanted to stay with their foster parents. The juvenile court explained: “That seems to me to be a therapy issue, a PTSD [post-traumatic stress disorder] issue that can be dealt with adequately whether the children are in the home of foster care providers or the minors’ homes.”
The law requires that the court be apprised of children’s wishes concerning custody, if they are at least four years old. (§ 317, subd. (e).) Although children’s wishes are not binding on the court, depending on the circumstances, they can be powerful evidence of what is in their best interests or what would be detrimental to their well-being. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1087-1088.) In characterizing this as a therapeutic issue, the juvenile court implicitly assumed the risk of future physical or emotional abuse was small and dismissed the children’s fears as unfounded. Unfortunately, that assumption is not warranted. As previously noted, the mental health staff believed that the risk of continued neglect and abuse was too great for the children to be returned to their mother. Despite the fact that the mother was not using drugs and clearly wanted the girls returned to her care, the uncontroverted evidence strongly corroborated the Department’s view: (1) her impulse control, judgment, and anger management were not sufficiently developed to allow her to parent independently, (2) there was a high risk of her starting to use drugs again due to her failure to appreciate the significance of her substance abuse on her life and to participate in treatment in a meaningful way, (3) her supervised interactions in the parent/child counseling were too negative and conflictual for her to continue in that program, (4) her frequent inability to perceive or accommodate her children’s needs (e.g., rejecting school-accommodations for Ashley, not understanding her children’s fear of returning to her care despite the abuse she had perpetrated, ignoring the girls’ anxiety and nightmares and insisting they could watch scary movies, failing to appreciate the adverse effect her preferential treatment of Samantha had on Ashley) and (5) the pattern of the children’s symptoms, which improved significantly after they had been placed in foster care, but deteriorated markedly when it seemed likely that they might be returned to their mother’s care. In this context, the children’s statements simply reinforced and emphasized the import of the other relevant information—that their return to Ann W. would result in “a substantial risk of detriment to [their] safety, protection, or physical or emotional well-being.” Their statements ought not to have been discounted.
D. When the Evidence the Juvenile Court Minimized Is Properly Weighed, the Department Sustained Its Burden
The statute declares that a parent’s failure both to participate in and to make “substantive progress in court-ordered treatment programs” is prima facie evidence that the children’s return would be detrimental. (§ 366.22, subd (a).) The analysis must be based on the qualitative change in the parent’s behavior, not simply summing up the programs in which the parent has participated. (Constance K. v. Superior Court, supra, 61 Cal.App.4th at pp. 705-708; see also In re Brian R. (1991) 2 Cal.App.4th 904, 913-914 [where parent had made progress in keeping drug problem in remission, had completed parenting class, had received domestic abuse counseling, and had consistent positive supervised visits with minor, but where unrebutted expert testimony showed that parent still lacked the capacity to parent and that if child were returned to parent, the minor would be at risk for developing same personality disorder as parent, juvenile court’s order referring case for termination of parental rights hearing was affirmed].)
The Department correctly concluded that the risk of future abuse and serious neglect to the children was “very high, ” due to the family history, the poor quality of the mother’s visits with the children, and the mother’s lack of progress in dealing with her own mental health issues. At oral argument on the supersedeas petition, Ann W.’s counsel pointed out that since the children were taken into protective custody there has been no further physical abuse. Although this is commendable, because the mother’s contact with the children has been limited to supervised visits, this fact is hardly predictive of her future behavior. Since there is no indication that the mother has developed alternative and effective coping strategies for dealing with the pressures of full-time, unsupervised parenthood, the risk of physical abuse remains high.
Furthermore, for the reasons outlined above, there is substantial evidence that the mother lacks the capacity to parent. Raising children requires the ability to assess and respond to their legitimate needs. That task is complicated further when the parent has physically and emotionally abused the children him or herself. This mother, unfortunately, has not demonstrated the capacity to understand, protect and nurture her very vulnerable children. The fact that she has stopped using drugs does not compensate for this deficiency.
Finally, we must consider the effect returning the children to their mother would have on their relationship with their foster parents. (See In re Stephanie M., supra, 7 Cal.4th at p. 319; Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 709.) The uncontroverted evidence in the record before us shows that the children, after an initial adjustment period, improved significantly while under the foster parents’ care, although the relationship was somewhat disrupted by the prospect of Ann W.’s regaining custody. The girls strongly prefer to remain with the foster parents. Returning the children to their mother—or, indeed, even seriously contemplating returning them to the mother—interferes with their right to a stable relationship with their current parental figures. (In re Jasmon O., supra, 8 Cal.4th at p. 419 [fundamental rights of children include the right to be protected from neglect and to have a stable and permanent placement].) Returning them to their mother’s care, therefore, would be detrimental to them.
III. The 18-Month Reunification Period Should Not Have Been Extended
Absent extraordinary circumstances which prevent a parent from participating in a case plan, the juvenile court may not extend reunification services beyond 18 months. (§ 361.5, subd. (a); In re Jasmon O., supra, 8 Cal.4th at p. 420 [“turning point at which the child’s interest may outweigh that of the parent is reached no later than 18 months after the child has been removed from the parental home”]; Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1509-1511.) At 18 months, the focus becomes the children’s need for permanence and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Here, the 18-month reunification period should have ended on July 31, 2006. Arguably, Ann W. lost some time to make the necessary changes because (1) she was initially incarcerated during the 18-month period (although she did receive drug and parenting counseling during that time) and (2) after she was terminated from parent/child counseling, additional parent/child counseling was not immediately commenced. The court ordered an additional three months of services to effect the necessary changes, despite entertaining some doubts that she would ever make the necessary progress. Ultimately, she was given even more time because at the September 27, 2006, hearing the juvenile court declined to return the children to their mother’s care immediately, but ordered a “case plan on how this return is to be effected, ” which was to include a “high level of services in family maintenance.” The court did not order the return of the children until the end of November, 2006, almost two years after the girls had been detained.
The 18-month reunification period may be extended for good cause. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465-1466). When, for example, “a parent, although hospitalized for treatment of her mental illness for most of the reunification period, had substantially complied with the reunification plan, ” the court determined an extension was appropriate to allow for a stabilization period. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787, 1797-1798; see also Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1466 [“ ‘In exercising its discretion, the juvenile court should consider: the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [the child’s] need for a prompt resolution of her dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court’s attention.’ ”) Here, the mother received services while she was incarcerated, and there is no evidence that she was making great progress toward being able to care for her children full-time. Thus, it was an abuse of discretion to continue reunification efforts for an additional five months. (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1512.)
Conclusion
The juvenile court erred when it determined that “the Department has not met its burden of proof regarding substantial risk of detriment to the safety and protection of the physical or emotional well being of both minor children.” For the reasons explained above, the Department met its burden of demonstrating that returning the girls to their mother’s custody would entail a substantial risk to their physical and emotional well-being. Furthermore, the reunification period should not have been extended beyond the 18-month period. The juvenile court (1) should not have ordered the children to be returned to their mother (or ordered the development and implementation of a transitional plan to effect their return), (2) should have ordered that reunification services be terminated, and (3) should have set a section 366.26 permanency planning hearing.
Disposition
The juvenile court is ordered to vacate its September 27 and November 7, 2006, orders and issue a new and different order setting a section 366.26 hearing. Nothing in this opinion, however, shall be deemed to pre-determine any issue to be decided at that hearing. The stay previously put in place by the writ of supersedeas is dissolved and shall no longer have any force or effect.
Because we reverse the juvenile court’s original orders requiring the Department to develop a transition plan to effect the return of the children to their mother, the issues concerning the sections 385 and 388 motions are moot and we do not reach them.
We concur: Pollak, J., Siggins, J.