Filed 1/31/18 In re M.V. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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S.R., mother of the minor, M.V., appeals the juvenile court’s orders denying her petition for modification and bypassing her reunification services. (Welf. & Inst. Code, §§ 388, 361.5, 395.)[1] We affirm the juvenile court’s orders.

FACTUAL AND PROCEDURAL BACKGROUND

Dependency Petition and Request for Protective Custody Order

Mother came to the attention of the Sacramento County Department of Health and Human Services (Department) on August 21, 2015, when Child Protective Services (CPS) received a referral alleging general neglect by mother after the nine-year-old minor was placed on a section 5250 (psychiatric) hold at a psychiatric facility. Mother brought the minor into the facility for an assessment the day before, but wanted the child returned to her care, refusing to sign a release for the staff psychiatrist to communicate with the minor’s psychiatrist, and refusing to give the minor medications as recommended by the doctor. The minor was diagnosed with mood disorder “NOS,” conduct disorder, and oppositional defiant disorder, and stated she wanted to kill mother.

On September 4, 2015, staff at the minor’s school informed the social worker the minor had a lot of behavioral issues and bizarre behavior. The minor had recently been suspended for going to the office and randomly attacking people, “slugging” and kicking them. The minor’s teacher, Pam Gorton, stated she had been working with the minor for the past three years and the minor had “a lot of disturbances.” Gorton reported that mother came into the school, interrupted classes, and then left because she thought everybody was talking about her. Gorton also reported the minor “is vicious and is violent towards other children for no reason,” stating the minor had taken food from another child and spit in the child’s face.

Social worker Cimberly Davis met with the minor, who reported she had been sexually abused by her cousin and had recently been hospitalized for hurting herself and others. The minor also reported she had been sexually molested by her father and her mother’s current husband (her stepfather) and she wanted to kill her mother and other people. The minor stated that, if she killed herself or her mother, “the voices will stop.” She reported the stepfather drank excessively, and mother hit her “on the butt” and “punched her in the nose” and had threatened to kill her “if she keeps acting up.” The minor liked going to the mental hospital and preferred to go to foster care.

On September 9, 2015, social worker Davis spoke with mother, who stated she was “doing what she’s supposed to do” and did not need CPS investigating her. According to mother, the minor had been hospitalized three times in the past few months and liked being hospitalized “because it’s fun.” The minor lied about everything, liked drama and attention, did not listen, and did not like rules. Mother stated the minor had counseling twice a week but mother did not feel the services were helping. Mother refused to sign a release of information to enable the social worker to communicate with the minor’s counselors, did not want to disclose any of her own mental health information, and refused to allow Davis to tour her home. Mother refused several subsequent requests to sign a release of information.

On September 14, 2015, mother showed up at CPS unannounced, saying she was upset because she did not understand why CPS was investigating her when a previous social worker had already closed a referral several months prior. That same day, social worker Davis spoke with Stephanie Hess, the social worker assigned to mother’s prior referral, who stated mother had been uncooperative, preventing Hess from doing a thorough investigation. Hess stated she was able to close the referral because mother had the Eastfield Ming Quong (EMQ) provider leave a voicemail confirming the provider was working with the minor.

Mother appeared at the CPS office again on September 16, 2015, stating she did not want CPS intervention and did not want the minor to go to a mental hospital or a group home. She claimed she gave a verbal authorization for the social worker to talk with the minor’s therapist, Scott Totin. She also stated she initially did not want to give the minor medication, but then decided to “go ahead with it,” but feared the minor would “become a zombie.” Mother stated the minor simply needs a higher level of services and reported the minor did not take her own behavior seriously and had recently run into the middle of the intersection, necessitating mother’s call to the police. Mother also reported the minor had tried to cut herself for attention, and broke out mother’s car window. Mother’s sister, Sy.R., who was also present during the conversation, reported the minor was out of control and difficult to manage.

On September 17, 2015, mother spoke with social worker Davis and Department supervisor Michele Bell and again refused to sign a release of information. That same day, Davis received an e-mail from mental health liaison Julie Poole regarding mother’s mental health assessment referral. Poole reported that mother refused to set an appointment for the assessment stating she was “no longer interested.” Social worker Vuthy Prum received a call from Sacramento County Sheriff’s Deputy Cook who stated mother had called due to the minor’s behavioral and mental health issues. Cook stated the minor was reportedly inflicting harm to herself but, in Cook’s opinion, the minor was “ ‘trying to get a reaction’ ” and “it is ‘all behavioral issues.’ ” Cook reported the minor had recently been released from a mental health hospital but wanted to go back. She was hitting her forehead with her fist, scratching herself, and banging her head and face against the bed frame, and planned to tell school staff that her mother was the one who inflicted the scratches and bruises on her body.

On September 21, 2015, Sutter Center for Psychiatry social worker Geneva Vang told social worker Davis the minor had been admitted to the hospital the day before and had told the staff psychiatrist that mother had been slapping her and the stepfather (who the minor claimed “always physically abuses her”) and grabbed her, causing the bruising on her wrist. Vang stated the minor did not want to go home and the hospital staff felt the minor should not be discharged to mother, who had been difficult to work with presently and in the past. Vang reported mother refused to allow the minor to take any recommended medication other than Clonidine, and had refused to provide any CPS phone numbers to her.

That same day, social worker Davis received a call from mother stating the minor was “ ‘off the hook’ ” and had to be taken to the Sacramento County Mental Health Center. Mother requested that the minor receive wraparound services, and admitted she needed help and did not want her child taken away.

On September 22, 2015, social worker Vang confirmed the minor was placed on a “5150 hold” after threatening to kill herself, her mother, and her stepfather. Vang stated mother had not been forthcoming with information and refused to put the minor on new medication stating, “ ‘the reason I have is the reason I have.’ ” Mother had neither visited nor spoken with the minor since the minor was admitted on September 20, 2015, despite doctors’ calls to mother.

The minor’s therapist, Scott Totin, stated the minor had been diagnosed with “Anxiety Disorder NOS and Oppositional Defiant Disorder with a rule out of ADHD.” He noted there had been some difficulty seeing the minor due to frequent no-shows and difficulty scheduling appointments. Mother was uncomfortable with the minor seeing a therapist one-on-one and decided not to continue the minor’s individual therapy. Mother also refused to allow Totin to speak with staff at Sutter Center for Psychiatry where the minor was being treated. Totin stated mother reported she had to call law enforcement three times during the past week regarding the minor, once after the minor broke mother’s car window, climbed out of the car, and ran down the street to the store. Totin expressed concern with mother’s ability to parent the minor, noting he felt the minor was “walking on eggshells” during the meetings. It was Totin’s opinion that mother needed to address her own issues and the impact of those issues on her relationship with the minor. Totin stated the minor expressed strongly and directly that she did not want to go back home with mother, and he was concerned the minor was willing to harm herself to get away from mother.

The Department was concerned the minor was suffering from serious emotional damage as a result of mental health and behavioral issues, and mother was unable to provide appropriate care and supervision of the minor in order to manage the minor’s behaviors. It was noted that mother had her own history of mental health concerns and had, twice in the past, completed psychological evaluations concluding she was not capable of providing care for the minor. Due to those concerns, the Department requested removal of the minor from mother’s care.

Dependency Petition

On September 25, 2015, the Department filed a petition pursuant to section 300, subdivision (c) alleging the minor was suffering serious emotional damage due to mother’s inability to provide appropriate care. At the Department’s request, the juvenile court issued a protective custody warrant.

Detention Report

Based on the allegations in the request for protective custody order, the Department filed a detention report recommending the minor be detained pending a jurisdiction/disposition hearing due to the minor’s significant mental health issues and mother’s inability to manage the minor’s behaviors.

The report detailed mother’s prior child welfare history. The first substantiated incident was a February 7, 2006 referral for general neglect. Mother was having difficulty with the minor, then a newborn baby, but was “reluctant to have some one [sic] come to her home to help learn general baby care.” It was reported that mother had “mental health issues and the developmental level of [a] twelve year old.”

The next substantiated referral on February 13, 2006, alleged mother had been placed on a section 5150 hold “as she was not in her right mind” and had a “long history of mental health issues.”

The third referral, on September 28, 2011, alleged the father had abducted the minor at five months old and had been living with the minor in Mexico until mother brought the child back to the United States. The minor reported her paternal grandmother “hit her when she was mad” and her paternal grandfather “hit her all the time.” According to mother, the minor stated her “peepee hurt” and when asked if anyone touched her, the minor said, “grandpa did it.” The minor’s teacher in Mexico reported that the minor was threatened with getting her hand burned if she talked to or accepted gifts from mother. The teacher also reported the minor cut and scratched herself when she was in trouble, had emotional problems, and had no friends.

The next referral on July 31, 2012, alleged physical abuse after mother hit the minor and left a scratch on the child’s face. It was reported mother hit the minor all the time, pulled her hair, and disciplined her by keeping food from her. When mother was asked how the minor got a scratch on her face, mother responded, “ ‘she got it because she was a bad girl.’ ”

The Department received another referral on October 22, 2012, alleging mother hit the minor with a belt, leaving bruises on the child’s legs. The minor reported that mother hits her with the metal part of the belt, especially when the minor gets into trouble at school, and withholds food from her when she otherwise gets into trouble.

At the initial detention hearing on September 30, 2015, the juvenile court ordered the minor detained and temporarily placed in the care and custody of the Department, and ordered reunification services for mother and supervised visitation with the minor.

Jurisdiction/Disposition Report

The jurisdiction/disposition report stated mother met with the social worker on October 8, 2015, and indicated she was eager to regain custody of the minor, claiming the information in the detention report was “ ‘all lies.’ ” Mother was initially unwilling to provide information regarding the allegations in the petition, and stated her belief that the social worker had already made up her mind about the case. She eventually gave the social worker a folder containing “ ‘all the information you need,’ ” and asked to speak with the supervisor regarding her concerns about the allegations.

In response to the section 300, subdivision (c) allegation of serious emotional harm, mother stated the minor was already suffering serious emotional damage before mother brought her back from Mexico. She claimed the minor had anxiety and behavioral problems, including yelling, cursing, and hitting mother, when the minor lived with father in Mexico. Father took the minor to Mexico under false pretenses and molested the minor. Mother sought out mental health services for the minor to address the sexual abuse trauma and aggressive and violent behaviors. The minor began to sexually act out by kissing her cousin’s “bottom” and touching her younger cousin’s vagina, so mother supervised the minor’s interactions with other children. Mother stated the minor appeared not to care for others and showed no remorse or empathy when inflicting pain on others.

Mother acknowledged the minor’s history of harming herself, but denied the minor wanted to kill herself or anyone else, claiming the minor made such statements to get her way and be able to remain in the hospital or be placed in foster care. Mother claimed the minor lied and said anything to get her way, and had a pattern of being hospitalized, getting out, and going back to the hospital.

Mother stated she felt she had the necessary skills to provide appropriate care for the minor, “but when she runs off ‘I can’t catch her.’ ” She stated she called “ ‘EMQ Families First to seek support and make sure she [(the minor)] takes her medication,’ ” and claimed she never abused the minor.

The report stated the social worker met with the minor on October 15, 2015. The minor was initially uncooperative and refused to provide information. However, eventually she stated she was nine years old, in the third grade, liked to play soccer, and had friends at school. She indicated she would like to have more visits and additional phone time with mother.

1. Psychological Evaluation by Dr. Sidney K. Nelson, Licensed Psychologist

The report discussed mother’s previous psychological evaluation by licensed psychologist Dr. Sidney K. Nelson conducted pursuant to a request by the Placer County Juvenile Court in a previous 2006 dependency matter. In that case, mother took the minor to the hospital “because she was not eating enough” and then went to the hospital room of a dying friend to “pray for his soul.” Mother described having a “ ‘religious experience’ ” and stated her friend woke up and began swearing at her and telling her to leave. Police and CPS were called and the minor was taken from mother and placed in protective custody. Dr. Nelson’s report, authored in 2006, noted there had been some concern that mother had developmental delays. His testing found “there was no evidence to indicate a form of thought disorder and the mother’s associations were intact,” and her communication was “logical and goal oriented.” However, the report indicated mother’s intellectual capabilities were in the bottom third percent of the population, and her subtest scores were below average. While mother showed strength in her expressive vocabulary ability, her abstract reasoning and conceptual thinking abilities were “much delayed” and her general thought of information was “markedly delayed.” The report stated mother had “an easy denial of difficulties and may also try to conform to the wishes of others,” and noted her defensiveness for admitting any psychological difficulties. She lacked insight into the reasons for the dependency proceedings but felt she was stable and did not need any further services. Mother also had a “poor ability to learn new information and to then generalize this information to new situations.” Dr. Nelson concluded: “ ‘[M]other’s parenting capacity is likely very poor. I believe that it will be a very high risk situation to have a young child in her care.’ ” Dr. Nelson did not believe mother would meaningfully benefit from reunification services due to her impaired cognitive and reasoning abilities and her poor ability to learn new information.

2. Psychological Evaluation by Dr. Eugene P. Roeder, Ph.D.

The report also discussed a previous psychological examination conducted by Dr. Roeder, a clinical and forensic psychologist. Dr. Roeder’s report, authored in 2011, was also requested by the Placer County Juvenile Court in relation to a prior dependency matter. Dr. Roeder reviewed the 2006 incident resulting in mother’s loss of custody of the minor. Mother claimed the juvenile court did not give her a chance to be a parent because of her history, and the social worker made numerous false statements in the report. Mother’s verbal IQ test in 2006 placed her in the bottom third percentile. However, her estimated IQ in 2011 was in the bottom one percentile. The report stated mother’s limited intellectual capabilities “are rather consistent and permanent.” Dr. Roeder indicated it “would be very unlikely to be in [the minor’s] best interest to be placed with her mother given the mother’s substantial limitations.” He opined that someone with mother’s IQ could function as a custodial parent if they had a very active and involved support system available to them, but the minor’s history and level of need suggested her parenting requirements were beyond mother’s capacity. Dr. Roeder noted mother’s functioning had improved substantially since the 2006 evaluation but, while “she no longer presents with dangerous psychotic symptoms,” she “remains cognitively limited and intellectually impaired and incapable of assuming custodial responsibilities without a great deal of support and assistance.”

3. The Minor’s School Behavior and Attendance

The minor’s school records indicated numerous instances of violence and acting out. For example, on September 8, 2015, the minor had to be physically restrained after she ransacked her classroom, destroyed computers and other items, and attacked administration officials and several students. On August 31, 2015, she assaulted numerous staff and students. In prior incidents, the minor destroyed school property, punched and kicked school staff, and assaulted other students.

4. Visitation

The social worker supervising visits between mother and the minor reported mother “attempts to micro manage the visits, is paranoid, recording visits and phone calls,” and “appears to be responding to internal stimuli.”

The Department recommended continued out-of-home placement for the minor, asserting it would be detrimental to return the minor to mother’s care given mother’s lack of mental capacity to assess the minor’s mental health needs, and mother’s lack of skills to provide adequate and appropriate care for the minor. Mother minimized the minor’s severe mental health issues that the Department described as “violent, suicidal, and homicidal,” and was in denial of the minor’s behaviors, which included threats of killing mother. Despite mother’s awareness of the minor’s ongoing behaviors, mother was unwilling to allow medical and mental health providers give the minor the medication and treatment necessary to minimize the threat of suicide or homicide.

The Department recommended bypass of reunification services pursuant to section 361.5, subdivision (b)(2) and two psychological evaluations to assess mother’s mental disability in that regard. In the alternative, the Department recommended that mother participate in general counseling, mental health assessment, and a parenting education program for children with behavioral problems.

Addendum Report

The addendum report filed November 10, 2015, discussed mother’s strengths and participation in services prior to removal of the minor. Mother reported attending parenting classes in 2008 while the minor was still living in Mexico. She reported learning new skills, such as how to deal with anxiety, how to take care of herself so she could care for her child, anger management, and how to nurture children. She also learned about setting schedules, consistency, and letting children know what is coming next. Mother claimed the minor took mother’s kindness for weakness and mother realized the approach she used to discipline the minor did not work. Mother acknowledged she “ ‘should have been more consistent,’ ” noting she struggled with consistency with the minor’s bedtime, homework, and medication.

Mother also reported she taught the minor about her body, how it was growing and changing, and normal things the minor could expect to go through. Mother explained that there was a period of time when the minor was “more pleasant to be around” and it was during this time that mother utilized her new coping tools and followed directions for rewarding the minor.

Mother reported she participated in a few sessions of therapy in the Parent Child Interaction Therapy Program through EMQ Families First, and felt her participation helped her relationship with the minor. She and the minor would role-play and mother would compliment the minor when she did something well. According to mother, the minor felt as if mother was giving her one-on-one attention. Mother only participated in the program for one month, however, because she requested that the minor see a counselor and was uncomfortable being observed during therapy. Mother obtained a certificate through EMQ Families First for the minor’s successful completion of counseling services and mother’s acquisition of the skills necessary to address the minor’s behavior. However, mother reported the minor’s behavior gradually deteriorated and, after only one to three weeks, “ ‘things went downhill.’ ” The minor became abusive towards other children “for no reason” and would inflict harm on herself. Mother felt she was not seeing results with the therapeutic services being offered, nor were the minor’s weekly visits with a counselor improving the minor’s behavior.

Mother reported that, in 2012 or 2013, the minor disclosed the father had been molesting her. The minor had sexualized behaviors such as pulling down her pants and underwear and flashing unknown males. Mother stated the minor had to be supervised at all times for fear she would molest another child. She reported the minor had fantasies about the child’s stepuncle and reported the stepuncle touches her, to which mother responded, “ ‘he’s not a sicko like your father.’ ” Mother claimed she knew how to handle the minor’s needs and could manage the child at home, and felt the minor should be returned to her custody with wraparound services.

According to Placer County Family Court mediator Christine Brown, who assessed both parents for the prior family court matter, mother consistently requested the support of the court to bring the minor back from Mexico and eventually went to Mexico and brought the child back to the United States herself. Brown testified father had been convicted of sexual abuse with a minor, but was unable to substantiate mother’s claims that father also sexually abused the minor. The minor’s teacher in Mexico informed Brown that the minor was not being cared for in Mexico by the father, but by the paternal grandmother who physically abused the minor. Mother’s custody of the minor was provisional and mother was being monitored while she participated in a “high intensive” program. However, once funding for that program fell through, the case was referred back to court. Brown was concerned about mother’s cognitive abilities and opined that mother loved the minor but lacked the skills to parent the child.

The addendum report confirmed mother had completed 13 sessions of parenting classes in 2012, 16 sessions from October 2014 through January 2015, and several classes from August 2008 through November 2008.

The Department commended mother on completing parenting classes and seeking out mental health services for the minor, but noted mother continued to struggle with her ability to follow through with the recommendations of those professionals whose support she sought, a point mother openly admitted. The Department stated mother had no insight regarding the importance of consistency in addressing the minor’s mental health, and continued to lack the capacity to parent the minor due to poor follow-through and failure to give the minor medication, which could reduce the minor’s suicidal and homicidal behaviors. Mother was also unable to demonstrate or use the skills she learned despite participation in multiple services. The Department recommended mother submit to two psychological evaluations to determine if she could benefit from reunification services given her “limited cognitive delays.”

Contested Jurisdiction/Disposition Hearing

At the contested jurisdiction hearing on November 10, 2015, the juvenile court amended the allegation in the dependency petition to more accurately allege the minor’s diagnoses and strike the allegation that the minor did not feel safe at home. Minor’s counsel informed the court that the minor’s clinical therapist indicated the minor was doing “really well” in her placement and going to school, there had been no suicidal tendencies and no outbursts since being placed there, and the minor did not want to go home. Minor’s counsel also submitted on the Department’s recommendations as set forth in the various reports.

Mother testified that, after she brought the minor back from Mexico in September 2011, the minor exhibited concerning behaviors such as hurting herself and doing “unsafe things.” Mother attempted to keep the minor safe by talking to her, taking her to the emergency room, and calling the police. Mother also worked with several agencies to get the minor into counseling. Mother took parenting classes and did “some research on the phone to do different ways to parent [the minor] in different ways to discipline her and consequence.” She learned how to discipline the minor without punishing her, and to be consistent. She also learned how to keep the minor safe, deal with her anger, and express herself to the minor in a healthy way.

Mother testified she was currently involved in counseling, which she found to be helpful in understanding the minor in a different way. When asked whether she believed the minor needed medication, mother responded: “I think that sometimes medication might help her to calm some--medication might help her a little bit. But I really don’t want her on medication. But if it’s going to help her for the moment until she is able to control her feelings and how to deal with in a better way, then maybe eventually she could get taken off the medication.” Mother stated she wanted the minor back home and wanted to be able to practice what she learned so she could “get that relationship and bond back.” She stated wraparound services would be helpful, and felt placement in a group home might be helpful but only after having the chance to practice the parenting techniques she learned. She also stated she had done some research on group home options for the minor if necessary.

Mother argued the section 300, subdivision (c) allegation, and particularly the allegation that she lacked the necessary skills to provide appropriate care for the minor, was not supported by a preponderance of evidence in that, while mother “may have significant mental health needs, the mother is able to make appropriate decisions about this.” Mother argued she had fully immersed herself in services, participated in parenting classes, and engaged in EMQ, and was hoping to regain custody of the minor, but was willing to place the minor in a group home if necessary. She noted she called the police on several occasions when the minor’s behaviors were out of control, and took the minor to the hospital when she could not manage the minor’s behavior. She argued it was not her shortcomings that required CPS involvement, and no parent would have been able to more appropriately care for the minor.

Mother objected to additional psychological evaluations, arguing she had already been subjected to two prior psychological evaluations, she was engaged in services, she would be able to care for the minor with services in place, and the minor was no longer a young child.

The Department acknowledged that mother loved the minor, but argued mother did not possess the insight and consistency necessary to provide appropriate care for this particular minor who had been diagnosed with a number of problems and demonstrated behaviors, at least some of which pose a danger to herself and others. The Department again requested the appointment of two experts to conduct psychological evaluations of mother pursuant to section 361.5, subdivision (b)(2). Noting that Dr. Roeder’s 2011 psychological evaluation indicated mother would need significant support both from family and others in order to be able to provide adequate care for the minor, the Department argued the minor was currently thriving not in mother’s home, but in a group home.

The juvenile court amended the petition, finding the minor was suffering from serious emotional damage, having been diagnosed with anxiety disorder, oppositional defiant disorder, possibly a mood disorder, and a conduct disorder, but striking the allegation of posttraumatic stress disorder and disruptive mood regulation disorder for lack of evidence, and modifying the language to allege the minor had been placed on a section 5250 hold, her third hospitalization in two months. As modified, the court found the allegations true by a preponderance of evidence and found the minor to be a child described by section 300, subdivision (c).

The court found that, despite mother’s participation in services, mother was still unable to take the information she learned and apply it to parenting the minor. Mother was unwilling to cooperate with various service providers who were attempting to assist her in providing care for the minor, and unwilling to consistently follow through with the recommendations of those various service providers. The court further found as follows: “So I do think that certainly there is a reason to believe--given the first psychological evaluation that was done a number of years ago when [the minor] was still a fairly young child--there is certainly reason to believe that the mother may not be able to benefit from the provision of services. Frankly, the mother--the evidence establishes the mother is engaged in all the services we have available to give her, but here we are with this very disturbed nine-year[-]old child. The Court having established the [section 300, subdivision] (c) petition as a result of the emotional damage that the child is currently suffering from. I certainly don’t believe that there is anything intentional on the part of the mother that has resulted in this situation. So I do think that the Department’s recommendations are well stated.”

The court found mother did suffer from a mental disability that might render her incapable of utilizing available services designed to assist her to safely parent the minor, and ordered two psychological evaluations to determine whether she was currently suffering from a mental disability, the nature of the disability or diagnosis, whether she would be able to utilize services to gain the skills necessary to parent the minor within a 12-month period, and, if so, what types of treatment interventions and services would be appropriate. The court ordered that services to mother be continued in the interim, and ordered an evaluation of the minor to assess the need for medication.

Second Addendum Report

Psychological Evaluation by Dr. Jayson Wilkenfield, Ph.D.

The second addendum report, filed January 5, 2016, discussed the report prepared by Dr. Jayson Wilkenfield regarding his psychological evaluation of mother. After speaking with mother and reviewing mother’s CPS history and summaries of the two previous psychological evaluations, Dr. Wilkenfield noted mother presented as stoic, mildly depressed, and having conspicuous cognitive limitations, but had no signs of delusional thinking or psychotic symptoms. He concluded “ ‘the deficits [mother] demonstrated in her judgment, insight, abstracting thinking ability and receptive language skills were seen as most likely a function of neurodevelopmental factors and would not be expected to be subject to any significant improvement irrespective of any services the Department could provide her.’ ”

Dr. Wilkenfield reported mother tested in the bottom fourth percentile for intelligence, and her scores indicated “ ‘substantial deficits in information processing and her ability to handle any new learning (especially of any complex concepts or those that require the ability to make use of information previously learned to perform novel tasks).’ ” Dr. Wilkenfield noted mother’s responses were “ ‘notably defensive in that she was generally reluctant to admit to any existing psychological problems or weaknesses,’ ” and those responses “ ‘portrayed her as a rather narcissistic individual who shows little concern for the welfare of others.’ ”

Dr. Wilkenfield concluded he had “ ‘significant doubts’ about mother’s ability to ‘manage the responsibilities associated with providing adequate care, supervision and protection for a child who demonstrates the sort and degree of conduct issues and emotional dysfunction that is describe[d] in the records in relation to [the minor].’ ” He stated it was his belief that a child displaying the sorts of behavioral and emotional issues as those displayed by the minor would be “ ‘extremely challenging for even the most experienced and educated of parents to manage, and given [mother’s] limited intellectual abilities and the impediments that her limitations impose on her capacity for learning to manage complex contingencies, I do not believe she possesses the wherewithal to learn what she would have to and effect the changes in her personality that would be necessary for her to parent a child with [the minor’s] special needs successfully or to provide her with the sort of structure and predictability in her home environment that she appears to need on any sort of a consistent basis.’ ” Dr. Wilkenfield opined that the minor likely required placement in a structured residential facility setting, and he did not believe mother had the capacity to benefit from any services the Department could provide her by the end of the legal timeframe for reunification such that the minor could be returned to her care without substantial regression in any progress achieved in her current specialized placement.

Third Addendum Report

Psychological Evaluation by Dr. Cyrus Moazam, Ph.D.

The third addendum report, filed January 12, 2016, discussed the report of Dr. Cyrus Moazam, following his psychological evaluation of mother. Dr. Moazam reported mother presented as alert and polite and her thought processes were simple but coherent with no indication of psychotic symptoms. Mother’s intellectual functioning was “estimated as being in the borderline range,” her concentration skills were “below normal,” and her judgment and insight were “limited.” Mother’s reasoning abilities measured in the bottom fifth percentile and her ability to concentrate and exert mental control measured in the “extremely low range.” Mother underreported emotional and social difficulties, depression, and hopelessness. Dr. Moazam opined that “mother’s ‘inadequate cognitive ability and social judgment as well as her limited social skills, leaves her prone to fail’ to accomplish tasks crucial to her personal objectives despite a motivation and desire to do so.”

Dr. Moazam assessed mother as “ ‘incapable of benefiting sufficiently from services that could be offered to her within the legal time frame’ due to her significant intellectual deficit.” He concluded mother’s “ ‘parenting capacity is limited and most likely it would be a high risk situation to have a mentally ill young child in her care.’ ” Dr. Moazam opined that, because there is no known treatment for lack of mental capacity, mother could not meaningfully take advantage of reunification services given the limitations with her cognitive and reasoning abilities, and therefore would have an impaired ability to benefit from participation in parenting classes, counseling, and other basic services. He further opined that mother “would not be capable of providing a safe home for [the minor] given [the minor’s] severe emotional and behavioral symptoms,” and concluded mother’s “ ‘intellectual and memory deficits would most likely preclude her from having adequate insight, common sense, and sufficient reasoning to recognize and effectively [respond] to her daughter’s safety concerns for appropriate support and protection.’ ”

The Department recommended continued out-of-home placement for the minor in foster care or a group home given the significant risk of physical and emotional harm if returned to mother’s care. The Department further argued reunification services should be bypassed pursuant to section 361.5, subdivision (b)(2) pursuant to the opinions rendered by Drs. Wilkenfield and Moazam.

Contested Disposition Hearing

At the contested disposition hearing on February 1, 2016, mother testified she felt the minor would be safe in her care if the minor received help with “controlling her feelings and anger and her emotions.” Mother testified she would provide support to the minor by communicating with the minor and letting the minor express her feelings. She was engaged in counseling, parenting class, and a support class through the wellness center. She discussed the minor with her counselor and received suggestions that have been helpful and have improved her ability to parent. She felt wraparound services would help both her and the minor. She also felt she had the ability and confidence to parent the minor. Mother testified she felt the group home was an appropriate place for the minor until graduation, after which she wanted the minor placed back with her. She disagreed with opinions expressed in the psychological evaluations because “it’s their opinion and they don’t know me.”

The Department argued the prior and recent psychological evaluations demonstrated mother’s developmental disabilities had not improved, she did not have the capacity to benefit from services, there was no treatment to improve her lack of mental capacity, and there was significant risk associated with placing a child with mental disabilities such as the minor in mother’s care. The Department requested, and minor’s counsel agreed, that the court bypass services to mother pursuant to section 361.5, subdivision (b)(2) and set the matter for a hearing pursuant to section 366.26.

Mother objected to the Department’s recommendations, arguing there was not clear and convincing evidence that she suffered from a mental disability, which rendered her incapable of utilizing services. She argued she was capable, willing, and motivated to help and provide support for the minor, whose severe emotional disability would be “hard for even the most experienced and educated parents to manage.”

The court adjudged the minor a dependent child of the juvenile court, finding clear and convincing evidence the minor was suffering severe emotional damage and there was no reasonable means by which the minor’s emotional health could be protected without removal from mother’s custody. The court denied reunification services to mother, finding clear and convincing evidence mother suffered from a mental disability that rendered her incapable of utilizing services pursuant to section 361.5, subdivision (b)(2). The court scheduled the matter for a selection and implementation hearing pursuant to section 366.26.

Selection and Implementation Report

The selection and implementation report filed on May 16, 2016, stated the minor remained at her current placement in the group home. She reportedly struggled with social-emotional development and was diagnosed with posttraumatic stress disorder and disruptive mood dysregulation disorder. The minor was placed in restraints on three occasions, had aggression with staff twice, was involved in peer conflicts on nine occasions, and stole her roommates’ belongings.

The minor received a minimum of one hour of individual therapy weekly, in which she focused on, among other things, appropriate expression when distressed and adaptive coping strategies. She was reportedly more irritable and, while she had improved attachments to staff and the therapist, she was less responsive to therapy and often did not want to talk. Staff determined it was possible her regression was the result of uncertainty in her placement or discussions about moving to another placement closer to home.

The report noted the minor had limited comprehension and lacked insight and judgment. She received a minimum of 120 minutes of family therapy monthly, and attended group therapy twice weekly. At times, she made inappropriate, rude, or provocative comments in group therapy, but was able to be redirected.

Mother participated seven times by phone in family therapy sessions with the minor, focusing on building a connection and relationship, modeling healthy interactions, parenting, attachment, trauma response, positive parenting strategies, and positive reinforcement. Mother was reportedly “highly involved and persistent,” demonstrating improved parenting, “including support, reinforcement, praise and encouragement, but at times will revert quickly to a punitive approach.” It was also reported that mother was distrustful of the therapist, program staff, and the program itself, and was responsive at times to suggestions and interventions but “distrustful, demanding and argumentative” at other times. Mother believed the minor should be forced to talk to her more, and did not believe staff should hold her accountable for the minor’s difficulties.

The report stated the minor “does not have many significant adult relationships. She struggles with her relationship with her mother and individual therapy is helping to improve this relationship and make it more positive.” It was also noted that the minor had some positive attachments with staff at the group home. The minor was benefitting from the structure, consistency, and limits provided by the residential treatment group home.

The report concluded the minor was “specifically adoptable” due to her age and behaviors, and the Department stated the minor would benefit from continued placement in the current group home “with a specific goal of a less restrictive foster setting,” adding, “[o]nce she is discharged and stabilizes in a foster home a more permanent plan can be assessed at that time.”

Mother’s Request to Change Order Bypassing Reunification Services

On July 14, 2016, mother filed a request pursuant to section 388 to change the court’s February 1, 2016, order bypassing reunification services. The request asserted mother retained her own psychologist to conduct an evaluation, engaged in classes on her own accord, and participated in individual counseling, and claimed she gained insight into how to better parent the minor and meet the minor’s needs. Mother requested the minor be returned to her care or, in the alternative, that the Department provide mother with reunification services. The request included a report prepared by mother’s counselor, April Coffin, a licensed clinical social worker (LCSW); a psychological evaluation report prepared by Dr. Sherif Zaher; and a certificate of completion of a parenting class.

Report by April Coffin, LCSW

The report prepared by April Coffin, LCSW, stated mother sought therapy for herself and the minor, and self-referred for services to assist with the minor. Mother presented as open and willing to participate in any services that would be beneficial to her and the minor, and requested help improving her communication skills and skills to maintain healthy relationships.

Coffin reported that mother was responsive to treatment and, over a 10-month period, had met her goals, “which include increasing recognition and demonstrating appropriate social skills and gaining insight into issues that may be the source of problems in her relationships.” Coffin further reported that mother had “been able to identify and recognize her patterns of communication in her relationships including maladaptive behaviors and defense mechanisms” and “has increased her ability to utilize assertive communication, healthy coping skills, and identified personal change to improve her relationship. [Mother] has not only gained insight from the therapeutic process, but has shared a variety of learning materials she has researched on parenting to improve parenting a child with high needs.” The report concluded mother “met her current goals” and “expressed interest in gaining more practice improving her communication skills and conflict resolution skills.”

Psychological Evaluation by Sherif Zaher, Psy.D.

According to Dr. Zaher’s report, mother provided “elaborative answers” to all of the questions presented to her and spoke in a clear and organized manner. However, based on mother’s difficulty understanding several of the questions, Dr. Zaher opined that it was possible mother “may be suffering from low intellectual functioning.” Mother showed no gross symptoms of neuropsychological disorder and denied any delusions or psychotic symptomatology. Dr. Zaher found mother’s insight and judgment to be “in the fair range” and found her memory functioning and recollection of past events to be “indicative of possible disruptions in long-term memory.”

Mother reported she had a history of “exploring mental health services” beginning in early childhood to help her “better manage the symptoms resulting from her traumatic experiences” (e.g., various forms of abuse by her father). She also reported having used psychotropic medication from 1998 to 2005, but discontinued her use when she became pregnant with the minor. She stated she would like to learn to better manage her symptoms without the need for psychotropic medications.

Dr. Zaher reported that, according to the “records available” and information from a counselor working with the minor at the Oak Grove Center and the CPS social worker, mother “has made noticeable progress with regards to her ability to adequately communicate with [the minor].”

Dr. Zaher opined that something that “may have been overlooked” in mother’s mental health history was the possibility that mother “may have suffered from postpartum psychosis,” raising the initial concern that she lacked the capacity to recognize the minor’s emotional and behavioral needs. He further opined that “it is reasonable to conclude that her symptoms were part of an isolated incident, rather than an ongoing personality attribute.”

Dr. Zaher reported he reviewed mother’s four prior psychological evaluation reports, and the second and third addendum report, as part of his evaluation of mother. Dr. Zaher also reported that he administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test of adult psychopathology and mother’s responses were useful but suggested she might be “ ‘faking good’ . . . demonstrating a relative degree of defensiveness (uncooperativeness that may be due to unwillingness to disclose personal information or lack of psychological sophistication/insight).” The profile Dr. Zaher developed based on mother’s responses indicated mother was preoccupied about her health, had “little psychological mindedness, poor concentration, feels unhappy about her home environment, denies aggressive impulse, and may be experiencing marital and/or family conflict (such as alienation from family members).” Mother’s scores revealed she “may feel threatened by psychological problems” and “her struggle with somatic symptoms as well as personality problems, which are generally long-standing and resistant to change, limit her ability to benefit from psychological interventions . . . ltimately, labeling her a bad candidate for psychological treatment methods.” Given mother’s clinical profile, the assigned probable diagnosis was “Somatoform Disorder with an underlying Personality Disorder.” However, Dr. Zaher concluded that diagnosis was unwarranted and her MMPI-2 profile might have been created on inaccurate information regarding her psychological functioning. He opined that one possible explanation for that inaccuracy could be mother’s low IQ, in that it was possible mother did not fully comprehend the questions in the assessment, as demonstrated by her statement to Dr. Zaher following the assessment that she struggled with understanding many of the words included in the test.

[u] /s/

Blease, Acting P. J.

We concur:

/s/

Hull, J.

/s/

Mauro, J.