IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
February 14, 2012
IN RE K. S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
J. S., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JV10188, JV10189)
The opinion of the court was delivered by: Robie , Acting P. J.
In re K.S. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
J. S. (mother) appeals from dispositional and status review orders by the juvenile court as to her minor daughters N. K. and K. S. (Welf. & Inst. Code,*fn1 § 395.) Mother contends that the court erred at the dispositional stage by admitting a psychological evaluation of mother which lacked proper foundation and by adopting case plans for mother and K. S. which were inadequately tailored to their needs. Mother also contends that the court erred later by unlawfully changing or modifying dispositional orders on conjoint counseling and visitation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2010, mother lived with the minors, N. K. (age 15) and K. S. (age 14), in Davis.
N. K.'s father and mother's ex-husband, B. K., lived in Seattle. Mother had primary physical custody of N. K., pursuant to a Washington family court order, but N. K. had visited father regularly.
K. S. was adopted by mother in 2001 after K. S.'s biological mother (mother's sister, now deceased) lost custody of her children in her native North Carolina. K. S.'s maternal aunt, L. M., also a resident of North Carolina, has become involved in these proceedings, over mother's opposition.
The Section 300 Petitions And Detention Report
On April 29, 2010, Yolo County Department of Employment and Human Services (the department) filed a section 300 petition as to K. S. alleging: (1) mother might physically and emotionally harm the minor by covering her mouth and nose as "discipline," and (2) mother could face criminal charges.*fn2
The detention report alleged: Mother had pinned N. K. down and smothered her over 10 times, and had done the same to K. S. around 50 times. Mother also used to lock K. S. in the garage. After N. K. reported the most recent incident to persons at her school, mother was detained under Penal Code section 273a.
Mother admitted regularly restraining the minors, but denied smothering them or being the aggressor. Mother claimed that N. K. was sassy and got physical with her, while K. S. had frequently run away from home.
Mother and the minors had been in family therapy together for two years. Mother claimed she had attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) and took medication both for that condition and for depression.*fn3 N. K. wanted to be placed with her father in Seattle. K. S. wanted to be placed with the maternal aunt in North Carolina.
The Initial Hearing And Subsequent Events
On April 30, 2010, the juvenile court ordered N. K. placed temporarily with father and directed him to seek a change of custody order in the family court. However, the family court declined to issue the order.
When the social worker and the police executed a new protective custody warrant for N. K., mother resisted and tried to tape-record the proceedings secretly. The maternal aunt informed the social worker that mother was "very controlling" and had "anger issues."
At a contested detention hearing on May 4, 2010, the juvenile court adopted the recommended findings and orders as to K. S. (omitting N. K. because she had not yet been redetained).*fn4
The jurisdiction reports recommended out-of-home placement for both minors pending the disposition hearing.
There were referrals to Child Protective Services (CPS) on the minors in 2008 and 2009. The maternal aunt, who lived with mother and the minors from July to October 2009, saw abusive conduct by mother at that time.
Mother denied anger issues and invited a full investigation. She said that in the recent incident N. K. physically attacked her, then panicked when mother restrained her and tried to calm her. Mother claimed the minors had made up the present charge so they could live with father in Washington, and did not want to visit her now because they could not face her after lying about her. (According to mother, although K. S. had no ties to father and his family, she had recently contacted them on Facebook.)
Debra Wiegel, a family therapist who had treated mother and the minors, also believed N. K. had made up her accusations because she wanted to live with father. Wiegel had never seen evidence that the minors feared mother. The minors' school counselor believed the minors' story.
The minors said they had not told Wiegel about mother's abuse because they expected they would be disbelieved and would get into more trouble with mother afterward. According to the minors, mother was controlling and abusive; among other things, she tape-recorded all their conversations.
N. K. would prefer to live with father. Both minors would prefer foster care to living with mother.
Mental Health Assessment Of K. S.
A mental health assessment of K. S. by psychologist Marta Pickens, Ph.D., filed June 2, 2010, stated that due to early childhood traumas (including sexual abuse before the age of three) and feelings of abandonment and loss as to her biological parents, K. S. exhibited "significant emotional stress," "deficits in her coping capacities and level of frustration tolerance," a "hypervigilant stance toward others and the world," and an "insecure-avoidant attachment style." Mother claimed K. S. had had behavioral problems ever since her adoption.
K. S.'s emotional health seemed to have improved recently. However, K. S. saw mother as controlling and manipulative and believed that until lately mother had favored N. K. at K. S.'s expense.
Dr. Pickens thought mother needed a psychological evaluation and K. S. needed formal individual therapy.
At the contested jurisdictional hearing on June 7, 2010, the juvenile court made the recommended findings and orders as modified, ordered counseling for the minors without the parents' involvement, and ordered a psychological evaluation for mother.
Disposition Report -- N. K.
The disposition report as to N. K., filed July 1, 2010, recommended that father, the nonoffending, non-custodial parent, receive physical custody, with shared legal custody, reunification services for mother, and mediation to work out visitation issues.
Father was willing to bring N. K. to California for monthly visits and to find a therapist for her. She had begun counseling.
Mother alleged that N. K. had been assessed with ADD, but no one else thought so. In fact, it was K. S. who had been so assessed.
N. K. did not want to return to mother's care or visit her. After the family court hearing, she felt unsafe in the home. N. K. feared mother's anger and "'mind games.'" Mother created a crisis every two weeks. Half of their arguments became physical. N. K. had felt hopeless about reporting her situation to the therapist, who was on mother's side.
Mother said that after she took some makeup away from N. K. as a disciplinary measure, N. K. became physically aggressive, so mother put her on the ground and restrained her. Mother admitted that this restraint, during which N. K. claimed she could not breathe, lasted 20 to 30 seconds.
Mother admitted that she had similarly restrained K. S. approximately 50 times. K. S. said mother had lately been doing it to N. K. instead because N. K. talked back to her.
Mother denied a "mental health diagnosis," but "believe[d]" she had ADD, for which she took Adderall; she also took Celexa. She had been seeing individual therapist Valerie Frakel for two years. She had been referred to parenting and anger management classes, though she denied anger issues.
After the social worker said she could not review the police department's DVD and mother's tape of her police interview, as mother had requested, because they were police property, mother indicated that due to "concerns about the Department" she would prefer to communicate with the social worker by e-mail from now on.
Over a month later, the social worker and mother had a "tense," "adversarial" meeting. Mother said: "If anyone expects me to say I abused my kids that is not going to happen." She insisted she wanted her daughters back and appeared very committed to them.
The minors' school counselor, Joanna Littell, had worked with mother and the minors for at least two years. Mother had been a strong advocate for the minors and was invested in their education. However, Littell had ongoing concerns about the family because the minors had reported mother's physical abuse to her and another school counselor, but the minors felt they were not believed and the situation was hopeless.
A teacher at the minors' school said the minors did not report abuse to him. Unlike mother, he had no concerns about ADHD as to N. K., but did have such concerns as to K. S.
Disposition Reports -- K. S.
The disposition report on K. S., also filed July 1, 2010, recommended out-of-home placement with reunification services for mother. K. S., like N. K., did not feel she would be safe in mother's care and did not want to visit her. K. S. had falsely denied abuse to CPS a year ago because she felt guilty about getting mother in trouble, but she would not lie about conditions at home anymore.
K. S. had had three mental health evaluations since 2001. In 2004, she was assessed as having ADD, but mother claimed medication did not help and the diagnosis was incorrect.
The maternal aunt had requested placement and K. S. liked the idea, but it was not feasible because the maternal aunt lived in North Carolina and mother would be receiving reunification services. N. K.'s father had also asked to be considered for placement of K. S., but was advised he did not qualify.
K. S., who was in the same foster home as N. K., hoped that N. K. would be placed with father so that K. S. could be the only foster child in the home. K. S. felt N. K. had previously betrayed her by telling on her to get her in trouble.
K. S. did not try to intervene in the most recent incident of abuse because she did not think it would make a difference and she wanted to stay out of the way. She had learned how to avoid conflicts with mother by doing what she was supposed to do.
K. S. reported fear of going home and being tape-recorded as N. K. was. According to her, mother would not let things drop; instead, she would become more frustrated and verbally abusive.
Dr. Pickens, who found K. S.'s disclosures about physical abuse credible, did not think K. S. should be returned to mother at this time.
On July 7, 2010, mother filed a voluminous response to the disposition reports, asking the juvenile court to return the minors to her custody under long-term supervision, to order all persons involved (including father) to participate in counseling, and to order N. K. to be tested for ADHD. The core of mother's response was a statement of over 34 single-spaced pages, setting out the history of her conflicts with father and his alleged attempts to poison N. K.'s mind against mother, among other things.*fn5
Dispositional Hearing (July 16, 2010)
On this date, the juvenile court (Judge Basha) held the first dispositional hearing. The court observed at the start that the parents' past conflicts were not relevant and tape-recording a person without permission is a crime in California.
After hearing the social worker's testimony, the court continued the matter to obtain the pending psychological evaluation of mother, a bonding assessment, and a mental health assessment of father.
The Psychological Evaluation Of Mother
In July 2010, Janice Nakagawa, Ph.D., submitted her evaluation. Based on a clinical interview of mother, psychological testing, and record review (including notes from Debra Wiegel and Valerie Frakel, the disposition reports, and Dr. Pickens's evaluation of K. S.), Dr. Nakagawa was of the opinion that mother suffered from "Anxiety Disorder, NOS [not otherwise specified], secondary to family issues," "Parent-Child Relational Problems," and "Personality Disorder, NOS."
According to the report, mother accused N. K. of making a "power play" just when K. S., whom mother called "attachment disordered," was getting better. Mother said she tape-recorded her conversations to protect herself against inaccurate allegations by the minors and the social worker, among others.
Mother described her biological family as "dysfunctional." She stated that she had never been hospitalized for psychiatric reasons. She had seen therapists for family-related issues and for grief counseling after her sister's death. She had been prescribed Celexa in late 2009.
The report does not show that mother mentioned her alleged ADD/ADHD. However, she did discuss her belief that N. K. had this condition.
In Dr. Nakagawa's opinion, mother displayed "a distinct tendency toward defensiveness and avoiding self-disclosure." She felt a need to present herself as "sociable, conventional and composed (both behaviorally and emotionally)," while downplaying "troublesome family or personal relationships." She experienced significant emotional tension and showed signs of underlying "marked insecurity" and feelings of "personal inadequacy." She did best in well-structured situations with clearly defined expectations, and might be "woefully inept" in dealing with tense, volatile, unpredictable situations where she might feel out of control. She might at times "display self-assurance and even may be seen by others as almost arrogant, even haughty, especially in circumstances [in] which she herself may feel uncomfortable."
In summary, mother "presents as conventional and quite earnest in being rule-following and conforming. She is highly accomplished in terms of her academic achievement and is intellectually sophisticated. [She] probably is most comfortable when situations are well defined and life, in general, is orderly and structured. . . . She . . . evidences a psychological rigidity [in] situations that are emotionally-charged and unpredictable. There are indicators of some controlling, rather constricted emotionality [and] of some deep . . . feelings of inadequacy. These likely contribute to a sense of chronic anxiety and uncertainty, of which she may not be wholly aware. The defensiveness may manifest in [a] certain abrasiveness or challenging demeanor or behaviors."
Although mother loved her children and wanted to reunify with them, "she has difficulties even coming to terms with examining her own behaviors. This has probably exacerbated the negativity that has been evidenced in her relationship with her children. . . . [H]er daughters, as adolescents, might have begun to manifest challenging or even defiant behaviors. . . . Given her underlying (possibly unacknowledged) chronic sense of inadequacy, coupled [with] a certain histrionic impulsivity, in emotionally charged situations she is inclined to revert to a familiar stance of attempting to be controlling and punitive. . . . [I]n highly emotionally charged situations (such as her daughters not 'to[e]ing the line'), she likely is at a loss. . . . As a result she might well revert . . . to an authoritative, even autocratic, stance that likely further escalates tensions in emotionally charged interactions with . . . her daughters."
Dr. Nakagawa recommended that reunification services include family therapy for mother and the minors, and individual therapy for mother. The therapists should be chosen by the department, not by mother.
The Bonding Assessment
On August 13, 2010, Jayson Wilkenfield, Ph.D., submitted his bonding assessment. Based on interviews with the minors, mother, father, and the minors' foster mother, observations of the minors interacting with the parents and each other, and record review, Dr. Wilkenfield wrote:
The minors had an emotional connection but not a strong sibling bond. Neither expressed even a weak preference for being placed together. Placing them separately would not cause a significant emotional detriment to either.
N. K. still had "an at least moderate positive emotional attachment" to mother, but it had been damaged by mother's "rigid parenting style and overuse of aversive consequences to control [N. K.]'s behavior." If mother tried to force reunification without reexamining her own behavior, it would only make things worse.
N. K. had a substantial positive emotional attachment to her father and looked to him as her primary source of security, stability, and nurturance.
K. S. did not relate to mother as a significant source of safety, stability, and support, and did not show a substantial positive attachment to her. Due to K. S.'s history, forming relationships might always be difficult for her. Mother should complete parenting education before attempting to reunify with K. S.
Dispositional Hearing (August 16, 2010)
The juvenile court admitted Dr. Wilkenfield's bonding assessment over mother's objection. Without objection, the court also admitted Dr. Nakagawa's psychological evaluation of mother and Dr. Pickens's mental health assessment of K. S.
The court then learned that mother had tried to record the proceedings surreptitiously. The court granted counsel's request to be relieved. After mother declined appointment of new counsel, the court allowed her to proceed in propria persona.
The court ordered that N. K. be placed with father and that K. S. remain in foster care. The court ordered father to work with the social worker and to begin the counseling process. The court also ordered that any counselor for K. S. have full access to mother and to family therapist Wiegel, because mother feared K. S. might regress in foster care.
K. S.'s Visitation
During a hearing on August 25, 2010, mother complained that there had been no visitation with K. S. The social worker stated that K. S. had requested there be none. The court declined to order visitation at that time.
Dispositional Hearing (August 30, 2010)*fn6
Mother called Debra Wiegel, Valerie Frakel, and Jayson Wilkenfield as witnesses. Mother also submitted a new declaration from Dr. Solis which attacked Dr. Nakagawa's evaluation as professionally deficient, but did not explain the basis for Dr. Solis's claim of expertise in this field.*fn7 Dr. Solis did not testify.
Wiegel, a licensed family and marriage therapist, testified that mother was a caring parent who had not abused her children. Wiegel was not aware that the juvenile court had found the minors were at risk of serious physical harm in mother's home.
Wiegel knew about the precipitating incident with N. K., but thought N. K. was the aggressor and had not been traumatized by the incident. Recent therapy sessions had focused on N. K.'s lack of effort at school and resistance to mother's household rules.
According to Wiegel, K. S. had made significant progress in mother's home since 2001. Wiegel had said mother was "controlling, rigid, and restricted [sic]" in parenting K. S., but had not meant it negatively; that was how parents had to deal with traumatized children. K. S. belonged in mother's home where they could work together on repairing their relationship. K. S. was not mature enough to make decisions on placement or visitation.
Wiegel thought K. S. did not want to return home because that would mean "[her] reprieve [wa]s over" and she would have to do her homework again. Her refusal to visit mother was "a symptom of regression in terms of her attachment problems." It was not unusual for children with attachment disorder to make false accusations of abuse. Any therapist who saw K. S. should understand attachment disorder.*fn8
Wiegel agreed with Dr. Nakagawa that mother suffered from anxiety disorder, but could not comment on Dr. Nakagawa's personality-disorder diagnosis because Wiegel was not trained in diagnosing personality disorders. Wiegel had never seen signs of mental illness in mother.
Wiegel believed, contrary to Dr. Wilkenfield's opinion, that the minors were bonded to each other.
Valerie Frakel, a licensed marriage and family therapist who had seen mother individually since September 2008, believed mother was a caring parent who had taken responsibility for why her children were removed. (However, Frakel did not specify what mother thought she had done wrong.) Frakel did not agree with Dr. Nakagawa that mother had a personality disorder or that she should be directed to find another therapist.
Dr. Wilkenfield testified that he concluded the minors lacked a strong sibling bond by interviewing them, observing their interactions with each other, and discussing them with others.
The minors told him they feared adverse consequences from reporting mother's behavior. They thought she was unwilling to acknowledge mistakes or to change anything she did.
When Dr. Wilkenfield interviewed mother, she showed no desire to change her behavior; if anything, she thought she had not been controlling enough. In Dr. Wilkenfield's opinion, mother's methods were "fostering oppositional behavior" from the minors.
Although Dr. Wilkenfield thought it "possible" that K. S. had attachment disorder. Her behavior toward mother might also come from unhappiness at home and anger with mother.
Dr. Wilkenfield would not recommend returning K. S. to mother or requiring visitation at this time. To force her to visit would confirm her feeling that mother is very persuasive and gets things to go her way.
Dr. Wilkenfield approved the placement of N. K. with her father. He would not recommend forcing her into conjoint counseling with mother, but would leave it to N. K. to decide when she felt ready to do it.
Dr. Wilkenfield believed the minors would be at risk of emotional harm in mother's custody.
The juvenile court made the following interim orders:
N. K. was to be placed with father under a family maintenance plan, with the court retaining jurisdiction. She was to receive individual counseling in Seattle. She and mother were to engage in conjoint counseling as soon as N. K. was willing. She was not to be forced to visit mother, but might do so if she wished.
K. S. was to remain in foster care and to work on reunifying with mother. K. S. was to continue individual counseling. She was also to go into conjoint counseling with mother as soon as K. S. was prepared to see her, and the department was to encourage this process.
Mother was to receive individual counseling about her parenting style. The department was to discuss the choice of an appropriate counselor with Debra Wiegel and Valerie Frakel.
The court scheduled an early review hearing on November 3, 2010, to consider visitation and conjoint counseling. The court reserved the right at that point to order the minors to engage in both if they were not already doing so.*fn9
Updated Case Plans
On September 2, 2010, the department provided the juvenile court a copy of the updated case plans for mother and the minors. As to K. S., the plan read in part, under the heading "Counseling/Mental Health Services": "The minor to participate in counseling services, to include conjoint session when recommended by Department and therapist. [¶] The minor to be open honest and feelings [sic]." (Italics added.)
At a hearing on September 29, 2010 (at which mother again had counsel), the court made the following dispositional orders:
The reunification case plan was approved, and mother was ordered to participate fully therein.*fn10 K. S. would remain placed in a confidential foster home. Mother would receive visitation of up to two hours a week if K. S. was willing and it could be arranged; K. S. would not be allowed to refuse visitation altogether. The maternal aunt could contact and visit K. S., but the social worker and K. S.'s court appointed special advocate (CASA) were instructed to make clear to both of them that K. S. would not necessarily be placed with the maternal aunt.
N. K. was to be placed in father's care. She and K. S. would visit each other once a month. Mother would have visitation with N. K. consisting of at least two, two-hour periods per month on weekends (the parents sharing the cost of transportation).
As to individual counseling, the court ordered that mother see a counselor other than Frakel (whom she could still see on her own, but not as part of the case plan). As to conjoint counseling, the court ordered the department to find out whether all parties could agree on a counselor; if not, the court would make the decision.
On October 15, 2010, mother again undertook to represent herself.
On October 19, 2010, Judge Basha recused himself from the case.
Mother's Section 388 Petition
On October 20, 2010, mother in propria persona filed a section 388 petition seeking the return of K. S. to her custody and a ban on further contact with the maternal aunt, who had supposedly interfered with reunification. Mother alleged that K. S. was regressing in foster care and had been sexually assaulted at school. Mother also complained that there had not yet been any conjoint counseling.
CASA's Report On K. S.
On November 1, 2010, K. S.'s CASA reported: Although K. S. had been sexually assaulted at school, she seemed to be doing all right now. However, she felt "depressed and defeated" because everyone was pushing her toward visitation and conjoint counseling with mother. K. S. would rather have conjoint counseling than visitation. The CASA recommended letting K. S. stay in her present foster home, letting her choose whether she wanted visitation or conjoint counseling, and allowing her more contact with the maternal aunt.
Interim Review Report
The department's interim review report, filed November 3, 2010, stated: K. S.'s therapist thought she was not ready for family therapy yet. The department did not want to force her to do conjoint counseling now because it could worsen her feelings toward mother. K. S. was willing to do it only as a substitute for visitation; she did not want to use it to work on her issues.
Hearing (November 8, 2010)
At a hearing scheduled for early review and consideration of mother's section 388 petition, the juvenile court (Judge White) maintained the existing orders in force.
Mother's Order To Show Cause And Affidavit For contempt
On November 29, 2010, mother filed an order to show cause (OSC) and affidavit for contempt as to the current social worker. Among other things, mother alleged the social worker had failed to set up conjoint counseling with mother and the minors in violation of the court's order of September 29, 2010.
The juvenile court set a preliminary hearing on the OSC and mother's section 388 petition for January 12, 2011.
Mother's Request To Compel Discovery
On December 30, 2010, mother filed a request for a hearing to compel discovery.*fn11 The juvenile court set this request for hearing on January 4, 2011.
Hearing On Discovery And Other Issues
At the January 4 hearing, the juvenile court denied most of the requested discovery (without prejudice to reconsideration at the January 12 hearing). The court also addressed and ruled on other issues, including visitation and conjoint counseling.
To support her request for information about the minors' therapists, mother asserted that the department, in reliance on a "hearsay" statement from K. S.'s therapist, had violated Judge Basha's order for conjoint counseling with the minors. County counsel replied: (1) Judge Basha had ordered that conjoint counseling would not take place until the minors were ready, and (2) subpoenaing their therapists to testify would destroy the therapeutic relationship and any progress toward reunification. K. S.'s counsel added that K. S.'s therapy had been going very slowly and she feared any disclosure about the therapist would allow mother to interfere in the process.
The court ruled that conjoint counseling was ordered "when it's appropriate." Mother protested: "That was not what Judge Basha said. I will bring the transcript on January 12th." The court replied: "You won't have to because to the extent the order can be amended, I'm now finding that conjoint counseling will occur when and if the therapist believes it is appropriate."
Mother also asserted that she had not received the amount of visitation ordered by Judge Basha.*fn12 The court ruled that Judge Basha's order for one, two-hour visit per week would be enforced. After mother stated that she had asked for more frequent visitation, the court ruled that the department could increase visitation in its discretion, but need not do so.
CASA Report (January 11, 2011)
According to K. S.'s CASA report, K. S. was not yet ready to deal with her issues. Even after six months, she had only begun to open up to the CASA. She was not comfortable with her present therapist. The CASA believed K. S. should get a new therapist whom she could trust and who had experience with attachment disorder.*fn13
Visitation with mother was still going badly. K. S. and mother "seem to push each other's buttons." K. S. still felt mother favored N. K. over herself. The last time mother and the minors had a joint visit, K. S. threw up several times during the visit. She had nightmares after mother's visits.
K. S. kept in touch with her maternal aunt and biological siblings in North Carolina and would benefit from a visit with them.
K. S.'s current foster home was well suited to keeping her healthy and safe.
Hearing (January 1, 2011)
At this hearing, the CASA and county counsel asked that mother's visitation with K. S. be reduced from two hours to one hour per week. The court modified the visitation order to "once a week, one to two hours" (in other words, if K. S. wanted to leave after an hour, she could).
Hearing (January 12, 2011)
Ruling on mother's section 388 petition, the court found (as relevant to this appeal) that mother had not made a prima facie case to support changes in the orders on conjoint counseling. The court reaffirmed the order that conjoint counseling would occur "when and if the therapist believes it is appropriate."
Addressing visitation as to K. S., the court made no change in the existing order.
Hearing (January 19, 2011)
In a hearing on this date for which the record does not contain a reporter's transcript, the court apparently reaffirmed the existing visitation order.
Admission Of Dr. Nakagawa's Evaluation
Mother contends the juvenile court erred by admitting Dr. Nakagawa's evaluation because it lacked proper foundation. Since the evaluation came in without objection, this contention is forfeited.
The Contention Is Forfeited
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353.)
The failure to raise a timely and specific objection to the admission of evidence forfeits the objection on appeal. (People v. Doolin (2009) 45 Cal.4th 390, 438.)
Mother acknowledges that there was no objection to the evaluation, but blames the failure to object on her counsel and asserts: "Once representing herself, mother sought to challenge Dr. Nakagawa's report, subpoenaing Dr. Nakagawa to appear at the contested dispositional hearing." However, mother does not claim her counsel was ineffective for failing to object. Mother also cites no authority holding that a belated "challenge" to evidence already admitted without objection can avoid the forfeiture rule, and we know of none. Nor does she state that she even belatedly attempted to raise the foundational objection she asserts now.
We conclude that mother's evidentiary attack on the evaluation is forfeited.
The Case Plan
Mother contends that the case plans approved by the juvenile court for herself and K. S. were inadequate. Not so.
Mother's Case Plan
Mother's case plan required her to participate in domestic violence, anger/stress management, and parenting programs. She was also to participate in counseling "as approved by the Department" and to "follow all recommendations of psychological evaluation in regards to services and issues to be addressed and worked through."
In therapy, mother was to explore "pertinent issues that have negatively impacted her life," including but not limited to "[f]amily-of-origin issues," "[c]onflict [r]esolution and communication," "[i]nterpersonal relationships," and "[i]ssues that led to [mother] making negative choices for herself." Mother was to "gain insight to her part of parenting difficulties," to "accept feedback," to "lower level of resistance and defensiveness and look at how her actions have impacted her relationships with her daughters," and to "accept . . . guidance as to concerns about her rigid thinking [and] controlling behaviors."
Mother asserts that this plan was "basically a 'boilerplate' plan . . . that could be applied to virtually any parent who has come into the dependency system," did not go into specifics about mother's "purported personality disorder," did not discuss mother's ADHD or her current medications, and did not provide for treatment by Valerie Frakel, "whom mother trusted and with whom she had a two-year history." These assertions are unpersuasive.
"At a disposition hearing, the court may order reunification services to facilitate reunification between parent and child. 'The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court's determination in this regard absent a clear abuse of discretion. [Citation.] [¶] The reunification plan "'must be appropriate for each family and be based on the unique facts relating to that family.'" [Citation.] Section 362, subdivision (c) states in pertinent part: "The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the minor is a person described by Section 300." [Citation.] The department must offer services designed to remedy the problems leading to the loss of custody. [Citation.]' (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007 . . . .)" (In re Alexis E. (2009) 171 Cal.App.4th 438, 454.)
Mother fails to show that the juvenile court abused its discretion by adopting the case plan as to her. First, it is not a "boilerplate" plan: it contains numerous provisions clearly tailored to the problems that led to the removal of the minors from her custody. (§ 362, subd. (c).) Not all parents display "rigid thinking" and "defensiveness" or engage in inappropriately "controlling behaviors," as the court found mother had done. These issues, and the others identified by the case plan, were sufficiently specific to delineate the goals of mother's therapy.
Second, the case plan did not need to discuss mother's alleged ADD or ADHD for the reasons given earlier.
Third, the juvenile court properly exercised its discretion by refusing to name Frakel as mother's therapist under the case plan. In the two years Frakel had worked with mother, she had not discovered the problems that led to the removal of the minors from mother's custody, and at the dispositional hearing Frakel could not specify anything mother had done wrong. Thus, the "trust" between mother and Frakel appeared to depend on Frakel's uncritical acceptance of mother's perspective. The court could reasonably conclude that a therapist who did not challenge that perspective would not help mother reunify with the minors.
K. S.'s Case Plan
As noted above, K. S.'s case plan stated as to "Mental Health/Counseling" only that K. S. was "to participate in counseling services, to include conjoint session when recommended by Department and therapist"*fn14 and was "to be open honest and feelings [sic]." Mother asserts that this "generic" plan was inadequate because the plan did not specifically address K. S.'s deep psychological problems -- in particular her "attachment disorder," as described by mother and family therapist Wiegel. Again, we are not persuaded.
The case plan is designed to remedy the problems that led to the minors' removal from the parent's custody. (§ 362, subd. (c); In re Alexis E., supra, 171 Cal.App.4th at p. 454.) K. S.'s psychological problems did not cause her removal from mother's custody; mother's abusive conduct toward both minors did. So far as that conduct caused or contributed to K. S.'s emotional difficulties, the case plan's directive that K. S. engage in counseling, including conjoint counseling, to deal with those difficulties was sufficient.
Mother cites no authority holding that a case plan for a dependent minor needs to address in detail the minor's psychological problems, which were not the cause of removal from mother's custody, or to make precise therapeutic recommendations for treatment. And since any therapist or counselor appointed for K. S. would have to become conversant with the diagnostic material in the record, we see no need for such precision in K. S.'s case plan. In particular, it did not need to address K. S.'s alleged "attachment disorder" -- a diagnostic term of art not used, so far as this record shows, by any person qualified to do so, but only by mother, a layperson, and family therapist Wiegel, who was not trained to diagnose personality disorders and had not seen any such diagnosis of K. S.*fn15
Mother has shown no abuse of discretion in the juvenile court's adoption of the case plans as to herself and K. S.
Modification Of Dispositional Orders
Mother contends Judge White unlawfully and incorrectly modified Judge Basha's dispositional orders as to conjoint counseling for herself and K. S. rather than enforcing those orders. We disagree. First, mother's premise that Judge White materially changed or modified Judge Basha's orders is mistaken. Second, mother shows no error in Judge White's orders on the merits.
Mother asserts: When Judge White took over the case, she apparently did not know that Judge Basha had set an interim review hearing to assess the progress of conjoint counseling and failed to reschedule the hearing or otherwise address the issue at first. Mother thereafter raised the issue in her section 388 petition, which demanded immediate conjoint counseling. County counsel misled Judge White by stating that Judge Basha had ordered conjoint counseling not to occur until the minors were ready for it. Judge White then so ruled, without exploring why Judge Basha had set the interim review hearing in the first place. This ruling was also a violation of mother's due process rights because it was made without notice to mother. In addition, Judge White erred by denying mother's request to subpoena and question K. S.'s therapist about her progress and by unlawfully delegating to K. S.'s therapist the decision as to whether conjoint counseling would occur.
We conclude that mother has shown no abuse of discretion in any order by Judge White as to conjoint counseling. As mother acknowledges, the juvenile court may change or modify any order on motion of a party or sua sponte. (§ 385; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111 & fn. 16.) As we shall explain, Judge White's orders were a proper exercise of discretion based on the information before Judge White when she made the orders.
As in part II of the Discussion, mother mistakenly relies on interim orders by Judge Basha which were superseded by his final dispositional orders. After setting an interim review hearing on conjoint counseling at the hearing of August 30, 2010, Judge Basha learned on September 29, 2010, that K. S. did not yet have a designated counselor for that purpose and directed the parties to confer on a list of names. Judge Basha then adopted the case plan for K. S., which stated that conjoint counseling for mother and K. S. would occur "when recommended by [the] Department and [K. S.'s] therapist." In other words, Judge Basha ruled on September 29, 2010, that conjoint counseling could not occur in the immediate future, and could not usefully occur before the social worker and K. S.'s therapist found K. S. was ready for it.
When Judge White first ruled on conjoint counseling, at the hearing of January 4, 2011, she ordered -- after county counsel stated that Judge Basha had previously ordered such counseling would occur only when the minors were ready, and K. S.'s counsel stated that K. S.'s therapy was proceeding slowly -- that conjoint counseling would take place "when it's appropriate." In response to mother's protest that this was not what Judge Basha had ordered, Judge White said: "[T]o the extent the order can be amended, I'm now finding that conjoint counseling will occur when and if the therapist believes it is appropriate." Judge White reaffirmed that order at the hearing of January 12, 2011.
Since Judge Basha had made essentially the same order on September 30, 2010, Judge White's order did not materially change or modify Judge Basha's existing order. But even if it had done so, such a modification would have been within Judge White's discretion, based on the circumstances before her when she made her ruling. (§ 385; Nickolas F. v. Superior Court, supra, 144 Cal.App.4th at p. 111 & fn. 16.)
We also reject mother's claim that Judge White's order violated due process because it was made without notice to her. Mother was on notice that conjoint counseling might be addressed at the hearing of January 4, 2011, because mother had already raised this issue in her section 388 petition and in her OSC and affidavit for contempt. In any event, any due process violation would be harmless because at that hearing Judge White essentially reaffirmed the existing order by Judge Basha, of which mother had notice through her case plan and because Judge White readdressed the issue and reaffirmed the order at the hearing of January 12, 2011. Mother's claim of "unlawfulness" fails.
The Order On Conjoint Counseling
So far as mother contends Judge White erred on the merits as to any matter related to conjoint counseling, we disagree. The evidence before Judge White, set out above in the Factual and Procedural Background, showed that K. S. had made little progress in therapy and was not yet prepared to use conjoint counseling to deal with the issues between mother and herself. Mother cites no authority for the proposition that K. S. should have been ordered into conjoint counseling before her therapist thought she was ready, and we do not see how such an order could be conducive to reunification.
Moreover, unlike visitation, to which a parent in dependency proceedings is entitled by statute (§ 362.1, subd. (a)(1)(A)), counseling is merely a service the court may order if the court thinks it would benefit the parent and the minor (§ 361.5). If the minor's therapist thinks the minor is not ready for conjoint counseling, the court may properly decline to order it. (In re Andrea G. (1990) 221 Cal.App.3d 547, 556.)*fn16
The Order Denying Mother's Request To Examine K. S.'s Therapist
Mother contends Judge White erred by denying mother's request to subpoena and examine K. S.'s therapist. We disagree. This request was barred by the psychotherapist-patient privilege, which precludes a psychotherapist from disclosing any confidential communication by his or her patient without the patient's permission. (Evid. Code, § 1014.)
K. S., being over 12 years of age, holds the psychotherapist-patient privilege and is entitled to invoke it in these proceedings. (§ 317, subd. (f).)
Mother tries to avoid this bar by citing the exception to the privilege created by Evidence Code section 1017. She also asserts that the juvenile court could have structured any examination of the therapist to avoid disclosing confidential matter. We are not persuaded.
Evidence Code section 1017, subdivision (a), states in part: "[T]here is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient." However, in In re Eduardo A. (1989) 209 Cal.App.3d 1038, the very decision mother relies on under this statute, makes clear that it does not cover court referrals for counseling with the purpose of treatment, as here.
"We do not consider a juvenile court referral for counseling to be the equivalent of a court-ordered examination of a patient by a psychotherapist within the meaning of Evidence Code section 1017, subdivision (a). [¶] . . . [¶] [A] court-ordered psychiatric examination is . . . an information-gathering tool, rather than a treatment tool. The exception to the psychotherapist-patient privilege in Evidence Code section 1017 is directed toward [the] information-gathering examination. We find no basis for broadening the exception to the psychotherapist-patient privilege to encompass the very different situation of court-ordered counseling. This narrow view of the privilege exception is consistent with the general rule that the statutory psychotherapist-patient privilege is to be liberally construed in favor of the patient. [Citation.]" (In re Eduardo A., supra, 209 Cal.App.3d at pp. 1041-1042 [holding that therapist's testimony about mother's statement during treatment to which she had been referred by court was properly stricken].)
Mother relies on In re Pedro M. (2000) 81 Cal.App.4th 550 and In re Kristine W. (2001) 94 Cal.App.4th 521 to support the proposition that even if Evidence Code section 1014 applies, the juvenile court could have allowed limited examination of K. S.'s therapist without breaching any confidentiality protected by the privilege. These decisions do not assist her.
In re Pedro M., supra, 81 Cal.App.4th at page 550, is inapposite. The minor, a juvenile delinquent who had admitted a forcible lewd act upon a child under 14, was undergoing court-ordered treatment as a condition of probation. (Id. at p. 553.) Distinguishing In re Eduardo A., supra, 209 Cal.App.3d at page 1038, the appellate court held that the lower court needed to be informed on the minor's participation and progress in his treatment plan to find out whether he was complying with probation. (Pedro M., at pp. 554-555.) Mother has no such grounds to override the psychotherapist-patient privilege.
In In re Kristine W., supra, 94 Cal.App.4th at page 521, a dependency proceeding, the agency requested information about the minor's therapy, arguing that it needed limited disclosure to help it to determine appropriate services for the minor. (Id. at pp. 523-525.) The juvenile court ruled that on these facts the agency's need for information outweighed the minor's need to maintain the confidentiality of her therapy; however, the court did not define the limits of the information to be disclosed. (Ibid.) The appellate court affirmed the order, but only "to the extent it permits disclosure by Kristine's therapist of matters that would reasonably assist the juvenile court in evaluating whether further orders are necessary for Kristine's benefit, and preserves the confidentiality of the details of her therapy." (Id. at p. 529.) Like the juvenile court, the appellate court did not attempt to define the limits of appropriate disclosure. (Id. at p. 528, fn. 8.) Thus, the decision gives little guidance beyond its unique facts. Judge White properly denied mother's request to examine the therapist.
"Delegation" To The Therapist
Relying on In re Donnovan J. (1997) 58 Cal.App.4th 1474, mother contends Judge White improperly delegated to K. S.'s therapist the decision whether conjoint counseling will ever occur. Mother's reliance is misplaced. In re Donnovan J. does not address conjoint counseling. It holds only that a court may not delegate to a therapist the decision whether visitation will occur. (Id. at p. 1477.)
As we have already said, visitation is a parental right in dependency proceedings; conjoint counseling is not. Therefore, the juvenile court may properly defer conjoint counseling until the minor's therapist thinks the minor is ready to undertake it. (In re Andrea G., supra, 221 Cal.App.3d at p. 556.)
Finally, mother contends Judge White's order on visitation was erroneous because it improperly modified the prior order without a section 388 petition and because it unlawfully delegated to K. S. the decision whether any visitation would occur. We disagree.
First, as already stated, the juvenile court does not have to wait for a section 388 petition before it can change or modify an order; it may do so on its own motion at any time. (§ 385; Nickolas F. v. Superior Court, supra, 144 Cal.App.4th at p. 111 & fn. 16.)
Second, the order did not delegate to K. S. the power to decide whether visitation would occur at all: it simply allowed her to decide whether she would attend the required visitation for one hour or two. Thus, it did not materially change Judge Basha's dispositional order for "up to two hours [of visitation] a week if [K. S.] is willing and if they can be arranged." (RT 523) Judge White's order, like Judge Basha's prior order, was within the court's discretion.
The orders appealed from are affirmed.
We concur: BUTZ , J. MURRAY , J.