In re Daniel P.

Filed 3/6/07 In re Daniel P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Cheryl P. and Daniel P., Sr. (Daniel, Sr.), (together, the parents) appeal the judgment terminating their parental rights to their son, Daniel, Jr. Cheryl contends the juvenile court abused its discretion by denying her Welfare and Institutions Code section 388^[1]modification petition and by allowing the San Diego County Health and Human Services Agency (the Agency) to examine her counsel's consultant-psychologist at trial.^[2] We affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Daniel, Jr., was born in February 2002. In May 2004, a police officer found him asleep in a stroller on a downtown street corner, with the parents lying next to him, asleep. The officer was unable to awaken the parents and was concerned someone could have walked away with Daniel, Jr. The Agency filed a dependency petition, alleging Daniel, Jr., was at risk because he had been inadequately supervised and not provided with adequate food, clothing, shelter or medical care. The minor was detained in Polinsky Children's Center (Polinsky) and was later moved to a licensed foster home.

In August 2004, the juvenile court entered a true finding on the petition, declared Daniel, Jr., a dependent, ordered that he be placed in a foster home, and that the parents comply with their case plan.

At the 12‑month review hearing in August 2005, the court found the parents had made good progress with their case plan and substantial progress in alleviating the causes that led to their son's dependency. The court ordered six more months of services.

In October 2005, Daniel, Jr.'s foster parents decided they could no longer care for him due to his behavioral problems. The minor was returned to Polinsky. That month, Cheryl gave birth to another son, Nicholas P.^[3]In November, Daniel, Jr., was moved to another foster home.

At the 18-month review hearing, the court terminated reunification services and set a section 366.26 hearing. A month later, Daniel, Jr., was moved to the foster home where Nicholas, who by this time also was in the dependency system, had been placed. The new foster parents wished to adopt Daniel, Jr.

On May 8, 2006, the court set a pretrial status conference for June 19 and continued the section 366.26 hearing to June 26. On June 19, the court received Cheryl's section 388 petition. A hearing was held on the petition. On June 26, the court denied Cheryl's petition and terminated parental rights.

II

DISCUSSION

On appeal, Cheryl, joined by Daniel, Sr., challenges the juvenile court's termination of parental rights and its denial of the section 388 modification petition. Cheryl claims the juvenile court abused its discretion in denying the petition because the evidence presented at the section 388 hearing established she had participated in services and was able to meet Daniel, Jr.'s needs. She also asserts the court erred in the section 366.26 hearing by allowing the Agency, over objection, to examine her counsel's consultant-psychologist, whose opinion was protected by the work product privilege.

A. The Court Did Not Abuse Its Discretion by Denying Cheryl's Section 388 Petition

1. Legal Principles

The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the dependent child's best interests. ( 388; In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) In determining whether modification of an order is warranted, the court must consider: the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds; the time the child has been in the dependency system; the nature of the purported change of circumstance; the ease by which the change could be achieved; and the reason the change did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) Moreover, a court considering a section 388 request for change in placement at the permanency planning stage must recognize the focus has shifted to the child's need for permanency and stability "in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

We review the juvenile court's order for abuse of discretion. (In re Michael B., supra,8 Cal.App.4th at p. 1704; In re Kimberly F., supra, 56 Cal.App.4th at p. 522.) An abuse of discretion occurs where "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

2. Factual and Procedural Background

The parents received financial assistance as a result of their developmental disabilities. They had a long history of moving from city to city, shelter to shelter. Daniel, Sr., had difficulty controlling his anger and insisted that the family did not need services. Cheryl often deferred to Daniel, Sr. When Daniel, Jr., was detained, he had 12 decayed teeth, including four with nerve damage. He needed extractions, root canals, and crowns. He also had developmental delays.

At the May 2004 detention hearing, the juvenile court ordered the Agency to provide voluntary services to the parents. Visitation was to be unsupervised at Polinsky, and supervised outside of Polinsky. At the August 2004 jurisdiction and disposition hearing, the court gave the Agency discretion to lift the supervision requirement, allow overnight visits, and allow a 60-day trial visit, with the concurrence of the minor's counsel. It ordered the parents to comply with their case plan, which included parenting education, homemaking education, and services provided by the San Diego County Regional Center for the Developmentally Disabled (Regional Center). In December, the court ordered psychiatric evaluations and psychotherapy. In January 2005, it ordered that Cheryl's supervised visits take place at the social worker's office.^[4]In August, the court gave the Agency discretion to allow visits in the parents' home and to lift the supervision requirement, allow overnight visits, and allow a 60-day trial visit, with the concurrence of the minor's counsel. In November, it ordered two hours of supervised visitation, once a week.

Cheryl believed that reunification services were unnecessary, but agreed to accept them. In September 2004, she completed a basic parenting class. In October, she submitted to a psychological evaluation. Daniel, Sr., did not want Cheryl to participate in services offered by the Regional Center and, initially, she acceded to his wishes. However, she finally agreed to be assessed by the Regional Center and made an intake appointment for March 2005, 10 months after Daniel, Jr., was detained. Cheryl rescheduled the appointment, which finally took place in May, but did not complete the intake paperwork until July. At that time, she was found eligible for Regional Center services. In October, she told a Regional Center in-home parenting instructor that she was ready to begin services. She did not begin to participate in those services until May 2006  two years after Daniel, Jr., was detained, and four months after the court terminated reunification services.

3. The Section 388 Petition

Cheryl's section 388 petition sought modification of the order terminating reunification services and setting a section 366.26 hearing. It asked that the court place Daniel, Jr., with his parents and either provide family maintenance services or terminate jurisdiction. As changed circumstances, the petition alleged that "[t]he Court of Appeal ordered six months of services be provided for [Nicholas,^[5]and Cheryl was] working with P.R.I.D.E.,^[[6]] which trains parents with developmental disabilities in the care and management of their children." The petition alleged that the proposed modification would be in Daniel, Jr.'s best interests because he "can safely grow up with his biological parents and sibling. He is still young enough to be moved out of his current placement without long-lasting effects."

4. Testimony at the Section 388 Hearing

At the hearing on Cheryl's section 388 petition, various individuals testified. Their testimony is discussed below.

a. P.R.I.D.E. Personnel

Jacob Smith, the P.R.I.D.E. life-management supervisor, testified that life management skills instruction consisted of in-home instruction in money management, housekeeping, cooking, nutrition, and parenting. The parents began working with P.R.I.D.E. in January or February 2006. Smith met with the parents three times. In April, he observed a visit with Daniel, Jr. Cheryl was affectionate and nurturing, and Daniel, Jr., embraced her. Daniel, Sr., fed him and Cheryl played with him. The parents took turns interacting with Daniel, Jr., and Nicholas. The parents were "playful, yet parental" with Daniel, Jr. They responded to his requests for attention and acted appropriately. Smith did not observe anything that might have presented a risk to Daniel, Jr., who seemed to enjoy the visit. He called the parents "ma" or "mom" and "da" or "dad." Smith did not see Daniel, Jr., arrive at the visit. However, he noted that at the end of the visit, Daniel, Jr., "was not particularly affectionate."

Annabella Balistrieri, an independent living instructor at P.R.I.D.E., testified that she met with the parents once a week. She gave Cheryl emotional support, acted as her advocate, and told her about community resources, child safety, nutrition, and meal planning. Balistrieri observed a March visit. When she arrived, Daniel, Sr., was sitting with Daniel, Jr., who was eating food provided by his parents. Cheryl was attending to Nicholas. The parents were very attentive to, and affectionate with, both boys. The boys seemed very comfortable. Daniel, Jr., was very responsive to the parents, interacted with them, and went to his father for assistance with small tasks. Balistrieri left before the visit ended.

b. The Social Worker

Linda Johanesen, the Agency adoptions worker, testified that the case plans for the parents included family preservation services, parenting education, a psychiatric evaluation and counseling. When services were terminated in January 2006, Cheryl had not begun to participate in services. Her involvement in P.R.I.D.E. was the beginning of a change, but the family needed, among other things, in‑depth therapy and couples counseling.

Johanesen opined that were Daniel, Jr., to be returned to his parents, he would be at risk given Daniel, Sr.'s inappropriate feeding of Nicholas; Daniel, Sr.'s verbal abuse of Cheryl, social workers, and former foster parents; and the parents' failure to respond or even notice when Daniel, Jr., asked for help or attention. Johanesen noted that during visits, the parents paid more attention to Nicholas than to Daniel, Jr. As an example, she noted that during an April 2006 visit, Daniel, Jr., walked out of the visitation room and his parents failed to notice.

The social worker also opined that it was not in Daniel, Jr.'s best interests to return home. He was happy, bonded to his caretaker, and in a stable and safe home. His behavior had improved tremendously and his vocabulary had increased. During Daniel, Jr.'s last evaluation, it was determined that by the time he reached five years of age, he probably would no longer qualify for Regional Center services. Daniel, Jr., was more animated, playful, and verbal when he was with his caretakers than he was with his parents.

Daniel, Jr., did not look to his parents to meet his daily needs, did not run to them when he saw them, and did not reach out his arms for a kiss or hug. He did not display separation anxiety at the conclusion of visits and usually did not even say goodbye. He did not ask about his parents.

Finally, the social worker noted that since early May 2006, Daniel, Jr., had been clinging to his caretaker, refusing to come to visits with his parents. In June, when he was taken to the bonding study, he would not get out of the car. The caregiver had to hold him around the waist, while Johanesen peeled his fingers off the car seat. All the while he screamed, "No, no mommy. Stay with mommy." The caregiver had to carry him into the bonding study and help him calm down.

c. Cheryl

Cheryl testifiedDaniel, Sr., was not verbally abusive or violent, although he was loud. She hugged, kissed and picked up her children. She and Daniel, Sr., took turns playing with Daniel, Jr., and caring for Nicholas.

d. Daniel, Sr.

During visits, Daniel, Sr., hugged and kissed his son Daniel, and played ball with him.

5. The Juvenile Court's Ruling

In denying Cheryl's section 388 petition, the juvenile court found that the parents' involvement in P.R.I.D.E. was a change of circumstance, but that some of the concerns it expressed at the last hearing remained. Specifically, the court stated that it was "concerned about the parents' ability to parent Daniel[, Jr.,] on a day-to-day basis, even with the [P.R.I.D.E.] program involved." The court was also concerned about Daniel, Sr.'s loud voice and anger problems, which could scare Daniel, Jr., and services providers, and interfere with the ability to obtain services. The court concluded that it was not safe to place Daniel, Jr., with the parents, and that the placement would not be in Daniel, Jr.'s best interests. The court stated, "I can't imagine placing a child who . . . has to have his fingers pried off the car seat, screaming no visit, no visit, crying and not wanting to go to the visits to then turn around and say I'm going to place him with those people that he's screaming no visits about."

6. Analysis

Cheryl contends the juvenile court abused its discretion by denying her section 388 petition. She argues that the evidence showed she had participated in services through the Regional Center and was able to meet Daniel, Jr.'s needs.

The focus at the section 388 hearing was on Daniel, Jr.'s interests, not on Cheryl's. (In re Stephanie M., supra, 7 Cal.4th at p. 324.) As Cheryl acknowledges, the problems leading to Daniel, Jr.'s dependency were serious. The family was homeless and sleeping on a sidewalk. Daniel, Jr., had untreated developmental delays and severe tooth decay. The problems continued while Cheryl delayed engaging in the services she was offered. Although she eventually completed a basic parenting class and submitted to a psychological evaluation, it is unclear whether she profited from those services. Furthermore, she did not agree to be assessed by the Regional Center until 10 months after Daniel, Jr.'s detention. She then delayed the intake process. After she was found eligible for Regional Center services, she delayed participating until two years after the detention, four months after the court terminated reunification services and a short time before the hearing on her petition. Similarly, she did not began her services with P.R.I.D.E. until a few months before the hearing. It is unclear how much she had learned from her involvement in services at either the Regional Center or with P.R.I.D.E. While the two P.R.I.D.E. employees testified that Cheryl and Daniel, Jr., were affectionate with each other and she was responsive and appropriate, the employees observed only one visit. On the other hand, the social worker, who had observed more visits, noted Cheryl's inattentiveness to Daniel, Jr.

Cheryl's petition also alleged changed circumstances in that fewer than two months before the hearing on her section 388 petition, this court ordered the juvenile court to vacate its order denying reunification services to Cheryl and Daniel, Sr., in Nicholas's case, and to direct the Agency to provide six months of services. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 87.) The basis for this court's holding was the Agency's failure to meet its burden of proving, by clear and convincing evidence, that the parents had not made a reasonable effort to treat the problems that led to Daniel, Jr.'s removal, as required by section 361.5, subdivision (b)(10). (Cheryl P. v. Superior Court, supra,at p. 98.)

Section 361.5, subdivision (b)(10) allows for the denial of reunification services where "the court ordered termination of reunification services for any sibling . . . because the parent . . . failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent . . . and . . . [the] parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling . . . ." This court specifically noted that this subdivision refers to efforts, not progress. (Cheryl P. v. Superior Court, supra,139 Cal.App.4th at pp. 98-99.) On the other hand, progress, not effort, is relevant to a showing of changed circumstances in a section 388 proceeding.

At the time of the hearing on Cheryl's section 388 petition, Daniel, Jr., was four years old and had been out of her care for over two years. He had been living with his foster family for four and a half months in a safe and stable home. The foster family wanted to adopt him. He was thriving and extremely attached to his caretaker. He demonstrated little, if any, attachment to Cheryl. As to the suggestion in Cheryl's petition that Daniel, Jr., should be returned to her care so he could live with his biological family, we note "[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004) 123 Cal.App.4th 181, 192.)

The court did not abuse its discretion by concluding that Cheryl had shown little in the way of changed circumstances and that granting her section 388 petition, which requested placement, would not promote Daniel, Jr.'s best interests.

B. The Court Did Not Err by Allowing Dr. Murphy to Testify

1. Factual and Procedural Background

On May 8, 2006, the date initially set for the section 366.26 hearing, Cheryl's counsel requested that Daniel, Jr., be made available for a bonding study. The court granted the request. The bonding study took place on June 15 with psychologist Raymond Murphy. On June 19, the court ordered that any written report of the bonding study be provided to all parties.

On June 21, 2006, Daniel, Sr.'s counsel requested a separate bonding study. The Agency opposed the request. Minor's counsel informed the court that Daniel, Jr., was "having an adverse reaction to being taken to visits" and asked that he be spared "that kind of trauma."

In ruling on the motion the court stated, "But I don't see at this point for whatever reason dragging a child kicking and screaming into a bonding study is going to support your cause . . . . I just don't see how that will help you. You can make other arguments as to why this is going on and I am willing to listen to the evidence, but at this point I won't order that Daniel[, Jr.,] be dragged into the bonding study. I just don't see that helps you, number one, and I don't think it is fair to the child." After noting that it would be "extremely detrimental" to make Daniel, Jr., go to another bonding study, the court denied Daniel, Sr.'s counsel's request.

Cheryl's counsel then informed the court that the Agency had subpoenaed his consultant-psychologist, Dr. Murphy, to testify at trial, and that Dr. Murphy's opinions about the bonding study he had performed were counsel's work product. Because there had been no notice that that issue would be discussed at the hearing, the court declined to address it.

On June 26, 2006, Cheryl's counsel renewed his work product objection to Dr. Murphy's testimony. The court asked why Dr. Murphy's testimony would be work product. Daniel's counsel replied, "Because it's something that we undertook in the investigation of the case . . . . It's qualified. It's not the pure work product of my notes and impressions, but it is qualified." Daniel, Jr.'s counsel took no position on the issue.

After hearing argument, the court overruled Cheryl's counsel's objection to the proposed testimony of Dr. Murphy. Citing In re Tabatha G. (1996) 45 Cal.App.4th 1159 (Tabatha G.), the court noted that its task was to determine the best interests of Daniel, Jr., and, for the minor's sake, it was important that the court consider all relevant evidence  including Dr. Murphy's opinion about the extent of the parent-child bond.

2. Dr. Murphy's Testimony

Dr. Murphy testified after the denial of Cheryl's section 388 petition in connection with the section 366.26 hearing.

He began his testimony by noting that at the beginning of the two-hour bonding study, Daniel, Jr., appeared anxious, stressed, and upset when separated from his foster parent. He held out his hands, indicating he wanted to go with her. He said, "Don't go, mommy. I want to go with mommy." When Cheryl entered the room, he greeted and hugged her, became very quiet and reserved, and then interacted with her. At the end of the visit, he did not cry when he separated from Cheryl, and he did not seem anxious or upset.

Dr. Murphy believed they had "a less than primary bond, probably a subsidiary attachment with evidence of negative behavior by Daniel[, Jr.]" There were indications of difficulty in the bond, such as avoidance. For example, Daniel, Jr., turned his back on Cheryl and played independently, despite her attempts to make a physical connection. Also, he hugged her when she offered a hug, but he did not hug her spontaneously.

3. The Court's Comments on the Evidence

In the course of determining that the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights did not apply, the juvenile court commented on the bonding study. It characterized the study as "another observation of the way that Daniel[, Jr.,] reacts to his parents" and noted "that Dr. Murphy's observations are consistent with what the social worker has reported throughout her reports as far as Daniel[, Jr.'s] reactions to his parents." The court opined, however, that bonding studies had "limited applicability" and said that it took them "with a grain of salt."

4. Analysis

The parents contend that the Agency should not have been permitted to call Dr. Murphy to testify because of the attorney work product doctrine.

The parents and the Agency all assume that the attorney work product doctrine is applicable to the juvenile court's decision to allow the Agency to call Dr. Murphy at trial, and thus they have briefed whether an exception to the attorney work product doctrine applies here. We question whether the attorney work product doctrine is the appropriate rubric under which to analyze the juvenile court's decision. Specifically, the attorney work product doctrine governs whether evidence must be produced in discovery. (Cf. Williamson v. Superior Court (1978) 21 Cal.3d 829, 834-836 [outlining the attorney work product doctrine as applied to the work product of experts].) Here, the court was not making a discovery ruling, but rather a ruling about whether Dr. Murphy could be called by the Agency at trial.

Although the parties do not cite any authorities addressing the circumstances in which an expert who performed a bonding study on behalf of a parent may be called to testify by another party to a dependency proceeding, we find the analysis of Tabatha G., supra, 45 Cal.App.4th at pages 1166-1168, useful by analogy. In Tabatha G., a bonding study was prepared on behalf of the mother without the knowledge or consent of the court. Tabatha G. concluded that even if the bonding study was attorney work product, it was nonetheless discoverable in a proceeding to terminate parental rights because the focus of the analysis in that proceeding is the child's best interests, and it was in the child's best interest for all parties to have access to the bonding study. (Ibid.) Tabatha G. pointed out that " 'in making the difficult decisions which it must make, a juvenile court can only benefit by having available to it all relevant information . . . .' " (Id. at p. 1167, italics added.) Moreover, Tabatha G. noted that the bonding study should be accessible to all of the parties because "requiring [the child] to undergo another one . . . , would have subjected [the child] to unnecessary inconvenience and potential trauma, contrary to her best interests. (Id. at p. 1168.)

Although this is not a discovery dispute but rather a dispute over trial testimony, we apply a similar approach. Applying the focus on the best interests of the child as set forth in Tabatha G., supra, we conclude that the court properly allowed the Agency to call Dr. Murphy to testify because (1) it was in Daniel, Jr.'s best interests for the juvenile court to have all of the relevant evidence so that it could make a well-informed decision about termination of parental rights and the applicability of the section 326.66, subdivision (c)(1)(A) exception; and (2) any policy that would require a separate bonding study to be conducted by the Agency for use at trial would have unreasonably subjected Daniel, Jr., to inconvenience and potential trauma and would not have been in his best interests.^[7]

In response to the Agency's argument, Cheryl argues that she was prejudiced by the juvenile court's decision to allow Dr. Murphy to testify. We disagree. We perceive no prejudice resulting from Dr. Murphy's testimony. The court made clear that it was not placing heavy reliance on the testimony, and that the testimony was consistent with what the social worker had stated throughout her reports. The testimony of the social worker regarding the nature of Daniel, Jr.'s relationship with the parents provides substantial evidence to support the juvenile court's decision that the exception to the termination of parental rights in section 366.26, subdivision (c)(1)(A) did not apply. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [a social worker may be treated as an expert in the assessment and selection of permanency planning for a dependent minor].)

DISPOSITION

Judgment affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Pursuant to California Rules of Court, rule 8.200(a)(5), appellant Daniel, Sr., joins in and adopts as his own the arguments raised in co‑appellant Cheryl's opening brief, filed September 25, 2006.

^[3] Nicholas is not a subject of this appeal.

^[4] The juvenile court also suspended Daniel, Sr.'s visitation. In May, it reinstated his visits.

^[5] On May 5, 2006, this court ordered the juvenile court to vacate its order denying reunification services to the parents in Nicholas's case. This court also ordered the juvenile court to direct the Agency to provide six months of services to the parents in that case. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87.) On May 8, the juvenile court complied with the order.

^[6] According to the Agency, this is an acronym for Promoting Responsible Independence in Daily Endeavors. P.R.I.D.E. was a services provider under contract with the Regional Center.

^[7] Indeed, the juvenile court stated that it would be "extremely detrimental" to make Daniel, Jr., attend another bonding study.