Angelica W. v. Superior Court
Filed 8/24/12 Angelica W. v. Superior Court CA4/1
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COURT
OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ANGELICA W.,
Petitioner,
v.
THE SUPERIOR
COURT OF SAN
DIEGO COUNTY,
Respondent;
D062004
(San Diego
County
Super. Ct.
No. J518191)
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
Proceedings
for extraordinary relief after reference to a Welfare and Institutions Code
section 366.26 hearing. Ronald F.
Frazier, Judge. Petition denied. Request for stay denied.
Angelica W.
seeks writ review of juvenile court orders terminating her
daughter, Aryanna W., and referring the matter to a Welfare and Institutions
Code section 366.26 hearing. (Statutory
references are to the Welfare and Institutions Code.) She contends the court abused its discretion
by terminating her services, and there was not substantial evidence to support
the court's finding there was a substantial likelihood she would not reunify
with Aryanna. We deny the petition.
FACTUAL AND
PROCEDURAL BACKGROUND
Three-year-old
Aryanna was taken into protective custody
in August 2011 when Angelica was hospitalized because of mental illness,
including depression and ideas of suicide.
Angelica admitted using alcohol and marijuana. She is a military veteran. She had previously been admitted to a
hospital in May 2010 because of suicide ideation and a plan to overdose. In 2008, when Aryanna was four months old,
the San Diego County Health and Human Services Agency (the Agency) had provided
voluntary services to Angelica after she had left Aryanna home alone for
approximately one hour. Angelica and
Aryanna's father had separated before Aryanna's birth and he had not seen
Aryanna since she was three months old.
Angelica vacillated between wanting to try to reunify with Aryanna and
thinking Aryanna would be better off in an adoptive home.
The Agency
petitioned on Aryanna's behalf under section 300, subdivision (b). Angelica submitted to the allegations, the
court found them to be true, declared Aryanna a dependent of the court, ordered
her placed in foster care and ordered reunification services. Angelica's case plan included counseling and
medication management at the Veterans' Administration (VA) Hospital, a
parenting course and substance abuse treatment.
On August 9, 2011, Angelica was released
from the hospital. Her discharge plan
advised her to meet with her psychiatrist once each week, attend a substance
abuse support group through the VA once each week, attend individual therapy
and take anti-depressant medication.
In October
Aryanna was reintroduced to her father and began having visits with him. However, he then stopped visiting. In January 2012, Angelica said she wanted to
relinquish her parental rights, but by February had changed her mind and said
she wanted to try to reunify.
For the
six-month review hearing scheduled for February 2012, the Agency petitioned
under section 388, subdivision (c) requesting that Angelica's services be
terminated because of her inconsistent visitation and inconsistent
participation and progress in services, which was negatively affecting
Aryanna. Although Angelica had
participated in some services, she was terminated from therapy for not attending
regularly and she did not appear to understand that her inconsistent visitation
and inability to make Aryanna her top priority was harming Aryanna.
After a
hearing on May 14, 2012, the court granted the Agency's section 388,
subdivision (c) petition, terminated the parents' services and set a section
366.26 hearing to determine a permanent plan.
Angelica
petitions for review of the court's orders.
(§ 366.28; Cal. Rules of Court, rule 8.456.) This court issued an order to show cause, the
Agency responded and the parties waived oral
argument.
DISCUSSION
When a
juvenile court removes a child who is three years old or older from parental
custody, the parents are generally entitled to 12 months of reunification
services. (§§ 361.5, subd. (a)(1)(A);
366.21, subd. (f).) However, a party may
petition under section 388, subdivision (c) for the court to terminate services
before the 12-month date. Section 388,
subdivisions (c)(1)(B) and (c)(3) provide the court shall terminate
reunification services if it finds the action or inaction of the parent has
created a substantial likelihood that reunification will not occur and
reasonable services were offered or provided.
In making its determination, the court considers factors such as the
parent's failure to visit the child or participate regularly and make
substantive progress in a court-ordered treatment plan. (§ 388, subd. (c)(1)(B).) It also takes into consideration factors such
as the parent's incarceration, institutionalization or participation in a
court-ordered residential substance abuse program. (§ 388, subd. (c)(2).) If the court terminates services, it must
order that a hearing under section 366.26 be held within 120 days. (§ 388, subd. (c)(4).)
For the
court to terminate Angelica's services, it was the Agency's burden to show by a
preponderance of the evidence that reasonable services had been offered or
provided to her, and to show by clear and convincing evidence that her action
or inaction had created a substantial likelihood that reunification would not
occur. (§ 388, subds. (c)(1)(B) and
(c)(3). The court's ruling based on its
findings is reviewed under an abuse of discretion standard. (In re
M.V. (2006) 146 Cal.App.4th 1048, 1059.)
Substantial
evidence supports the court's finding reasonable services had been offered or
provided and Angelica had failed to participate regularly and make substantive
progress in her court-ordered treatment plan.
Angelica's case plan required her to continue mental health services and
medication management and to gain insight through regular therapy into her
depression and its impact on her parenting.
She was also required to complete a parenting course and participate in
substance abuse services by attending a 12-step program at least once each week
and submit to random drug tests.
Angelica
completed a parenting course. She said
she been taking her psychotropic medications and had been drug and alcohol free
for nine months. She had been drug and
alcohol tested one time. She was not
evaluated for a drug and alcohol program until March 27, 2012, and did not
begin a 12-step program until April. She
then attended four meetings, was on step 2, but did not yet have a sponsor.
However,
the central issue of the case was Angelica's mental health concerns, including
her depression, and the way this problem was affecting Aryanna. Angelica was diagnosed with depression and
she had been overwhelmed by caring for Aryanna.
It was recommended that she attend therapy, but from September 9, 2011
until January 2012, she attended only eight therapy sessions and her therapist
terminated her from therapy because of her inconsistent attendance. She expressed uncertainty about whether she
should reunify with Aryanna. In February
she decided she did want to try to reunify, and started therapy with a new
therapist on February 8. Her attendance
with this therapist was inconsistent also and she attended only one session of
cognitive behavioral group therapy.
The social
worker reported Angelica did not show empathy for Aryanna, and, although they
had discussed several times how her failing to appear for scheduled visits
distressed Aryanna, throughout the case she often cancelled visits or did not
show up, causing Aryanna to be angry and disappointed. Angelica did not visit regularly even in the
weeks before the May 14 hearing, saying she was too busy with therapy,
parenting classes and going to school.
Although
Angelica was able to articulate to her therapist that Aryanna had been affected
emotionally by her actions and she could discuss ways to help Aryanna's
emotional stability, she did not apply this knowledge during visits. She would criticize Aryanna's appearance even
before greeting her at visits and at times would ignore her and respond only
when Aryanna acted out to get attention.
She showed Aryanna little physical affection and had a flat affect. At a visit on April 23, Angelica became very
upset about Aryanna's haircut. Aryanna
became afraid and began crying and screaming and said she wanted to go home to her
foster mother. When the social worker
asked Angelica if she wanted to apologize to Aryanna for upsetting her,
Angelica responded that she had nothing to apologize for and became more and
more agitated. The next day Angelica
told Aryanna the foster mother wanted to keep her forever and did not want
Aryanna to return home. When the foster
mother intervened, Angelica said she could say whatever she wanted.
At the
visit on May 7, Aryanna was concerned that Angelica would again begin
screaming. She began to cry and said she
wanted to go to the foster home.
Angelica raised her voice and said, "I'm your mother and if I need
to talk to you this way to listen to me, I will do it!"
Aryanna's
therapist reported Aryanna was showing signs of depression and attachment
disorders. The therapist said when
Aryanna began therapy in February 2012, she appeared to be depressed, and had
appetite and sleep disturbances and sad affect, including frequent crying and
low self-esteem. These symptoms
decreased over time, but would temporarily increase when Angelica did not show
up for a visit or Aryanna saw other children at the foster home leave with
their parents. The therapist said that
Aryanna's themes during play therapy were abandonment, rejection and harsh
interaction, and at the foster home she engaged in behaviors indicating
anxiety, such as picking at scabs until they bled and running so fast that she
would fall down. One day at the foster
home, Aryanna looked into a mirror and said, "You're ugly, no one wants
you. Your mommy doesn't love you, you're
no good." The foster mother
reported that in the two weeks before the May hearing, Aryanna had low energy,
was cold and tired and had little appetite.
The therapist opined Aryanna was not used to receiving positive attention. She was concerned Aryanna would become
clinically depressed.
Angelica's
lack of meaningful participation in services in order to treat her mental
health concerns so that she could be a safe and supportive parent to Aryanna
created a substantial likelihood that reunification would not occur. Substantial evidence supports the court's
findings under section 388, subdivision (c).
The court did not abuse its discretion by terminating Angelica's
reunification services.
DISPOSITION
The orders are affirmed.
The request for stay is denied.
McINTYRE, J.
WE CONCUR:
HUFFMAN,
Acting P.J.
IRION,
J.
