Filed 1/31/18 Andrea A. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MEMORANDUM OPINION[1]

         In this juvenile writ proceeding, Andrea A. (mother) seeks extraordinary relief from the juvenile court order terminating her reunification services and setting a permanency planning hearing pursuant to section 366.26 with respect to her young son, M.A.  Although not a model of clarity, mother’s petition appears to challenge the juvenile court’s setting order on three separate grounds.  Specifically, she asserts that there was insufficient evidence to support the juvenile court’s refusal to return M.A. to her physical custody at the contested 18-month review hearing.  She further maintains that she was not provided with reasonable reunification services and that the juvenile court erred in refusing to grant her additional reunification services.  Upon review, however, we see no reason to disturb the juvenile court’s setting order.  We therefore affirm.

I. BACKGROUND

M.A. (born January 2015), the minor who is the subject of these proceedings, was detained by the San Francisco Human Services Agency (Agency) in February 2016, after the Agency received a referral indicating that mother’s mental health was deteriorating and that there was concern she was actively abusing drugs. Reportedly, mother stood outside her apartment building with then-one-year-old M.A. all day, screaming at passers-by and yelling obscenities. She left the building with the minor at all hours of the day and night and had become increasingly confrontational with apartment staff, threatening them and attempting assault. Mother’s mouth was described as being filled with bleeding sores. Apartment staff stated that they often saw M.A. crying in his stroller, but mother did not comfort him.

When the Agency responded to mother’s home, the social worker found M.A. crawling on the floor sucking on a cell phone. The home was cluttered. For instance, the bedroom floor was covered by clothing, medication bottles, cough syrup bottles, empty food containers, old food, trash, and cords piled up to the social worker’s knees. The social worker also smelled marijuana, noted mother’s eyes were red and glossed over, and observed a pipe on a dresser in the living room within easy reach of the minor. Mother became agitated almost immediately when the social worker described the Agency’s concerns: She waved her hands in the social worker’s face, yelled profanities, and threatened to “ ‘kick’ ” the social worker’s “ ‘ass.’ ” After mother attempted to hit her, the social worker stepped outside to call the police for assistance. Mother, however, took this opportunity to flee out the back door with M.A.

The next day, an Agency social worker returned with the police and a removal warrant. When the social worker introduced herself, mother became hostile, yelling, among other things, “ ‘[t]ake my kid if you want,’ ” and gesturing as if she was going to push or hit the social worker. The social worker was initially able to deescalate mother and speak with her about her situation. Mother acknowledged that she smoked marijuana and that she had schizophrenia, but no longer took any medication. She reported back pain from a car accident during her pregnancy with M.A. and stated that the minor’s father, M.D., was in jail.[2] When the social worker indicated that the Agency would be removing M.A., however, mother again became erratic, gesturing as if she was going to hit the social worker. Mother remained hysterical after the minor was removed—repeatedly screaming “ ‘Kill me! Kill me! I want to die!’ ”—such that the police ultimately placed her on a psychiatric hold pursuant to section 5150.

Even before the minor’s detention in February 2016, the Agency was aware of mother’s history of mental illness. Its records revealed that mother had previously been psychiatrically hospitalized in October 2010, December 2011, May 2012, and June 2012 due to recurring hallucinations. Moreover, the Agency had opened an investigation as recently as December 2015 with respect to mother after mother’s therapist reported concerns about mother’s thought process and paranoia. The therapist stated that she had witnessed bursts of rage from mother, causing her to fear for her own safety and the safety of M.A. Although the therapist had attempted to transport mother for a psychological evaluation in February 2016—prior to the referral which led to M.A.’s removal—mother refused to make herself available, repeatedly hanging up on the therapist.

In addition, mother and father’s other child had been removed from their care by the Agency in December 2011, after mother arrived at an emergency room in a psychotic state with that young minor, resulting in one of the above-referenced psychiatric hospitalizations. (M.D. v. Superior Court (May 22, 2013, A138096) [nonpub. opn.].) In this prior dependency, the juvenile court sustained an allegation that mother had mental health issues that interfered with her ability to safely parent her child. (Ibid.) Mother was offered reunification services, but failed to reunify. In particular, although she entered residential treatment in late 2012, she was discharged after six weeks for smoking marijuana. She did not otherwise follow through with substance abuse assessment or treatment. Mother also missed an important psychological evaluation in May 2012, and missed multiple appointments with her psychiatrist. Mother’s parental rights were terminated in July 2013, and the minor was ultimately adopted by the paternal grandmother.

On March 24, 2016, both parents submitted to jurisdiction on an amended petition which indicated that M.A. was at risk of harm because mother had mental health issues and a substance abuse problem requiring assessment and treatment; father was incarcerated and unable to care for the minor; and the parents had a previous child with whom they failed to reunify, leading to termination of their parental rights. The juvenile court found the amended allegations true and concluded that the minor was a person described by subdivisions (b), (g), and (j) of section 300. The court then declared dependency; removed the minor from the physical custody of both parents; and ordered reunification services. Mother’s court-ordered services included assessment and treatment as specified by the Homeless Prenatal Program (HPP); random drug testing; completion of a psychological evaluation and engagement in any recommended treatment; individual therapy; and maintenance of a clean and safe home.

The Agency’s 6-month review report disclosed that mother had been evicted and was homeless. Her visitation with M.A. was so inconsistent that it was cancelled for a time, and even after it resumed under the supervision of the maternal grandmother, it remained sporadic.[3] When mother did visit, she required a lot of coaching and there were concerns about her parenting skills. For instance, when M.A. was learning to walk, mother would let him fall and then laugh at him for falling. Mother was reportedly engaged in individual therapy during this period, although the social worker was unable to verify this. She had completed an assessment with HPP and outpatient treatment was recommended, but she had not started treatment. Nor had mother begun drug testing. Mother’s referral for psychological assessment was pending. Despite mother’s spotty engagement in services, the Agency recommended that reunification efforts be continued to the 12-month mark. At the 6-month review hearing in September 2016, the court agreed, ordering additional reunification services after finding by clear and convincing evidence that the Agency’s prior efforts had been reasonable.

By the 12-month review hearing in April 2017, mother had made some additional progress, such that the Agency recommended that services be continued. She had obtained stable housing in a San Francisco apartment with the help of San Francisco Tenderloin Neighborhood Development. She was attending the Lee Woodward Counseling Center for Woman (LWCC) for both outpatient drug treatment and mental health services. In particular, she was seeing a therapist on a weekly basis as well as participating in a number of relevant groups. Mother had also completed her psychological evaluation. Mother was having once weekly supervised visits with the minor at a visitation center and was described as more consistent and more “in tune” with M.A.’s needs. Because M.A. had begun to exhibit some anxiety and aggressive behaviors, the social worker had additionally referred mother for dyadic therapy with the minor. However, mother failed to participate in any court-ordered drug testing during this reporting period. At the 12-month review hearing, the juvenile court found that the Agency had provided reasonable services, ordered a continuation of services, and set the matter for an 18-month review hearing. The court’s order stated: “Keep up the good work—no more services can be provided after 18 [months].”

Unfortunately, in the report filed in advance of the 18-month review hearing, the social worker indicated that mother had not made progress sufficient to mitigate the safety concerns of the Agency. Although mother was consistent in both her weekly supervised visitation and weekly therapeutic visitation with the minor, mother’s attendance in therapy had become very sporadic, reportedly due to back pain. Mother’s attendance at her LWCC groups was also inconsistent, to the extent that she should have been discharged from the program, but was given additional chances due to her back issue. Mother also failed to consistently drug test. The Agency recommended that reunification services be terminated so that a permanent plan could be developed for M.A. As this recommendation was contested, the matter was set for further hearing.

The contested 18-month review hearing was held on October 25, 2017. At that hearing, the social worker testified that, at the time of mother’s psychological evaluation in October 2016, the evaluator had described mother as being in a very “unstable situation” and in need of individual therapy as she had serious symptoms related to depression as well as limited internal processing abilities. The evaluator further opined that mother’s past agitation and some of her psychotic symptoms could be related to her substance use and that it would be “important to help her develop effective coping strategies so she does not have to return to drug[s] or alcohol for escape or relief.” Mother testified that she had missed seven of the 15 drug tests scheduled for her between July 20 and September 20 and that the eight tests she had completed were all positive for marijuana. At the conclusion of the contested hearing, the juvenile court stated that it believed mother had made “a lot of progress, although it’s slow progress.” While it commended mother and indicated that she was in a much different place than she had been with her older child, the court concluded that mother was “just not there yet.” It therefore found that there would be a substantial danger to the minor’s physical or emotional well-being if he were returned home; terminated mother’s reunification services; and set a permanency planning hearing for M.A.

Mother subsequently filed a timely notice of her intent to file a writ petition, and the petition itself was filed in December 2017. (Rules 8.450(e), 8.452.)

II. DISCUSSION

Mother first argues in her writ petition that M.A. should have been returned to her care at the contested 18-month review hearing, stating that there was “insufficient evidence of [her] ineligibility to parent her child” and “no legitimate finding that [she] could not be reunited” with him. To the contrary mother asserts, “[t]here were plenty of indications of [her] participation in services and appropriate involvement with her son.” As stated above, the juvenile court agreed that mother had made “a lot of progress,” although it was “slow progress.” In the end, however, the court concluded that while mother was “almost there,” she was “not there yet.” In particular, the court expressed concern regarding mother’s sporadic participation in therapy, noting the need for her to develop coping skills to handle her depression, work on issues of interpersonal conflict, and learn to handle the triggers for her substance use. The court also opined that mother needed “some concrete, specific strategies for combating the risks and safety concerns that can happen with a child.” It therefore declined to return the minor to mother.

At the review hearing at issue, the juvenile court was required to return M.A. to mother’s physical custody unless it found, by a preponderance of the evidence, that such return “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child,” (§ 366.22, subd. (a)(1).) Moreover, the burden was on the Agency to establish such detriment, although “[t]he failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Ibid.) We review the juvenile court’s detriment finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) This means, among other things, that we must uphold the decision of the juvenile court even if substantial evidence might also support a different conclusion. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57 [under substantial evidence analysis “ ‘[m]ere support for a contrary conclusion is not enough to defeat the finding’ ”].) Here, it is clear that the juvenile court, after thoughtfully considering the matter, concluded that mother was not yet in a position to safely parent M.A. Given the severity and chronic nature of mother’s mental health concerns as chronicled in the record before the court—as well as the uncertainty surrounding the continuing impact of mother’s substance abuse on her situation due to her failure to drug test and/or engage in consistent treatment—we find the juvenile court’s detriment finding to be amply supported.

Mother’s other two claims—her argument with respect to the reasonableness of her reunification services and her assertion that the juvenile court erred by refusing to extend those services for an additional six months, beyond statutory timeframes—have both been forfeited because they were not raised in the juvenile court. (See In re T.G. (2015) 242 Cal.App.4th 976, 984 [citing cases].) Indeed, the entire focus of the contested review hearing at issue was on whether M.A. should be returned to mother or referred for permanency planning. “[A]lthough an appellate court has the discretion to excuse such forfeiture, it should do so ‘rarely and only in cases presenting an important legal issue.’ [Citation.] This is especially true in juvenile dependency cases, which involve the well-being of children and in which ‘considerations such as permanency and stability are of paramount importance.’ [Citation.]” (Ibid.; see also In re S.B. (2004) 32 Cal.4th 1287, 1293 [forfeiture rule exists “to encourage parties to bring errors to the attention of the trial court, so that they may be corrected”].) We see no reason to excuse mother’s forfeiture under the circumstances of this case.

III. DISPOSITION

The petition is denied on the merits. (See § 366.26, subd. (l)(1)(C), (4)(B).) Because the permanency planning hearing in this matter is set for February 20, 2018, this opinion is final as to this court immediately. (Rules 8.452(i), 8.490(b)(2)(A).) Mother’s request for a stay is denied as moot.

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REARDON, ACTING P. J.

We concur:

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STREETER, J.

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SCHULMAN, J.*

*Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A152763 A.A. v. Superior Court