Brittany Y. v. Super. Ct.
Filed 8/15/13
Brittany Y. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
BRITTANY
Y.,
Petitioner,
v.
THE SUPERIOR COURT OF
TUOLUMNE COUNTY,
Respondent;
TUOLUMNE COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
F067293
(Super. Ct. No. JV7211)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Robert
Price, Public Defender, and Clay Bedford, Deputy Public Defender, for
Petitioner.
No
appearance for Respondent.
Sarah
Carrillo, County Counsel, and Christopher J. Schmidt, Deputy County Counsel,
for Real Party in Interest.
-ooOoo-
Brittany Y. seeks an extraordinary
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued
at a contested six-month review hearing (Welf. & Inst. Code, § 366.21,
subd. (e))
setting a section 366.26 hearing as to her one-year-old son Zachary. Brittany contends the juvenile court erred in
finding she was provided reasonable reunification
services and in allowing the testimony of her minor cousin. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In October 2011, the
County Department of Social Services (department) was alerted by hospital
staff that newborn Zachary was not safe in Brittany’s care. The nurses reported then 23-year-old Brittany
claimed to be in contact with the “spirit world.†She said spirits walked in her room and made
the lights flicker and she could touch them.
The nurses also reported Brittany did not know how to care for herself
or the baby. She attempted to change
Zachary’s diaper by putting a clean diaper over a dirty diaper and needed
prompting to feed Zachary as well as shower herself and brush her teeth.
Brittany
told the nurses she had bipolar disorder, depression and anxiety and her
mother, Cynthia, and step-father engaged in domestic violence. Cynthia has a history of child welfare
intervention. In 2001, the department
removed Cynthia’s newborn son after Cynthia was arrested for
sale. At the time of Zachary’s
removal, Cynthia was on probation for driving on a suspended license.
The
department took Zachary into protective custody and placed him in the home of
his maternal great-grandmother Yvonne.
The department assented to Brittany living with Zachary in Yvonne’s home
with the understanding that Yvonne would make sure Brittany was supervised at
all times.
In July
2012, the department received a report that Brittany took Zachary and left
Yvonne’s home to stay with Cynthia.
After investigating, the department took Zachary into protective custody
and placed him in foster care.
In August
2012, Brittany was evaluated by psychologist Dr. Deborah Schmidt to determine
whether Brittany could safely parent Zachary after six to twelve months of
treatment. During the clinical
interview, Brittany disclosed being physically abused by her biological father
and raped multiple times as a teenager.
Dr. Schmidt found Brittany
“exhibited the symptoms of a likely Posttraumatic Stress Disorder [PTSD]; a
Bipolar II Disorder; a specific learning disability; and Dependent and Histrionic
Traits.†Dr. Schmidt concluded Brittany
was not a safe and adequate parent for Zachary at that time and it was not
clear whether Brittany could be within six to twelve months. Dr. Schmidt recommended Brittany complete a
psychiatric evaluation to determine whether medication could alleviate her mood
instability and anxiety, participate in intensive individual psychotherapy and
parenting classes, work with an in-home parent educator, and obtain her own
residence and employment so she could demonstrate her ability to care for
Zachary independently.
In October
2012, the juvenile court declared Zachary a dependent child and ordered
Brittany to participate in reunification services. The juvenile court denied Zachary’s
biological father reunification services and set the six-month review hearing
for April 2013.
Brittany’s services plan required
her to obtain a suitable residence for herself and Zachary, obtain a legal
source of income, comply with medical and/or psychological treatment and
demonstrate the ability to be independent and self-sufficient. To assist her in meeting those objectives,
her services plan also required her to participate in intensive individual
psychotherapy, complete a second psychological evaluation, undergo a medication
evaluation by a psychiatrist and complete a parenting and/or in-home parenting
class as directed by the case managing social worker. Brittany signed her services plan, agreeing
to participate in it.
Brittany completed a second
psychological evaluation with psychologist Blake D. Carmichael. As part of the evaluation, interviews were
conducted with Emily Amoruso, Brittany’s social worker; Jan Black, LCSW,
Brittany’s therapist; and Rogenia Willhite, Brittany’s parenting instructor.
Amoruso said Brittany was generally
compliant with her services and Brittany reported feeling better mentally. In addition, Amoruso monitored visits between
Brittany and Zachary and did not have any significant concerns about Zachary’s
safety during visits. However, Amoruso
was concerned Brittany relied heavily on Cynthia who tested presumptively
positive for methamphetamine while being evaluated for relative placement. Amoruso said that the urine test was sent to
a laboratory for further testing and the result was negative. However, her concerns remained given
Cynthia’s criminal history involving drug use and her “highly inappropriateâ€
behavior and hostility toward Amoruso and other departmental staff. Amoruso was concerned that Brittany was too
dependent on Cynthia to separate from her for Zachary’s well-being.
Black said she began treating
Brittany shortly after Zachary was detained and their sessions focused on
teaching Brittany strategies for regulating her emotions, particularly her
anger. Black said that she noticed a significant
improvement in Brittany’s emotional state since she had been taking
psychotropic medication. Black opined
that Brittany was protective and would not place herself or Zachary in a
harmful situation. She also credited
Brittany with becoming more independent by trying to find a job, get a driver’s
license and submit an application for low-income housing. Black believed Brittany was doing her best to
meet the department’s expectations but was hindered by her impoverished
background and limited resources. She
recognized she was limited in commenting on Brittany’s parenting skills because
she had never seen Brittany interact with Zachary.
Willhite
said she provided parenting education services and monitored visits. She had seen Brittany for four parenting
sessions and monitored four weekly visits.
Brittany demonstrated an interest in child development and displayed
appropriate parenting skills. Willhite
observed her to be attentive to Zachary’s feelings and needs. She acknowledged, however, that she had only
observed Brittany in a controlled environment.
Dr.
Carmichael diagnosed Brittany with PTSD and dependent personality disorder
(“the disorderâ€). Dr. Carmichael opined
the disorder posed the greatest barrier to her ability to benefit from services
because of its chronicity and resistance to treatment. He concluded Brittany was unable to benefit
from services and cited her relationship with Cynthia as an example, stating
“Despite significant concerns raised by [the department] regarding [Cynthia’s]
substance abuse and criminal history, and being advised that relying on her
could jeopardize her reunification with Zachary, [Brittany] continued to seek
her mother for direct support in taking care of Zachary. [Brittany] has a pattern of making decisions
based on emotional needs without adequate consideration for possible
consequences to herself or the wellbeing of her son.â€
In its
report for the six-month review hearing, the department recommended the
juvenile court terminate Brittany’s reunification services, reiterating
Amoruso’s concerns that Brittany continued to live with and depend on Cynthia
knowing that she was undermining her ability to reunify with Zachary by doing
so.
In May
2013, the juvenile court convened a contested six-month review hearing. Dr. Carmichael testified that it would take
twelve months or more of counseling for Brittany to reach a baseline level of
functioning where she may be able to care for Zachary. Ms. Black, on the other hand, believed
Brittany could reunify with Zachary if given another six to twelve months of
services. Dr. Schmidt testified family
maintenance services were not an option.
Amoruso
testified she had no evidence Cynthia was using methamphetamine, but believed
she was because of her history of drug use, presumptive positive tests for
methamphetamine and her inability to provide a urine sample when asked. Cynthia testified she last used
methamphetamine in 2001.
Brittany
testified she was better able to concentrate and regulate her emotions with
psychotropic medication. She was working
part-time as a housekeeper and applied for a driver’s permit and low-income
housing. Brittany denied seeing any
signs Cynthia was using drugs. If she
suspected it, she said she would leave Cynthia’s home.
Olivia M.,
Brittany’s 15-year-old cousin, testified she spent a lot of time with Brittany
and Zachary when they were staying with Yvonne.
She witnessed Brittany yell at Zachary and spank him. She said Brittany told her she had
conversations with dark figures and demons and the demons told her to wake
Zachary. She saw Brittany wake Zachary
up 10 to 15 minutes after he fell asleep approximately twice during the
day. She also saw Brittany molest
Zachary by touching his genitals.
Brittany told Olivia she wanted to be Zachary’s lover when he was
older. Olivia told her father, a police
officer, about the molestation but did not know if he reported it.
Amoruso and
Brittany were recalled to the stand.
Amoruso denied knowing about the molestation until two days before and
Brittany denied Olivia’s statements including that she fondled Zachary.
At the
conclusion of the hearing, the juvenile court found the department made
reasonable efforts to reunify Brittany and Zachary, but that Brittany failed to
regularly participate and make substantive progress in her court-ordered
treatment. In so finding, the juvenile
court made it clear that the case did not turn on whether Cynthia posed a
detriment to Zachary. Rather, it found
the critical issues to be Brittany’s inability to parent Zachary independently
and to make proper decisions with respect to him.
The
juvenile court terminated Brittany’s reunification services and set a section
366.26 hearing. This petition ensued.
DISCUSSION
Reasonable Services
Brittany
contends in essence the department did not provide her reasonable services
because her reunification plan did not include services to assist her in
reunifying with Cynthia. We conclude she
forfeited her right to raise this contention on two grounds.
First, Brittany’s trial counsel did
not challenge the reasonableness of reunification services at the six-month
review hearing. Consequently, Brittany
forfeited her right to now claim her services were not reasonable. (Amanda
H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1347-1348; fn. 5.)
Further, Brittany did not challenge
the content of her services plan.
Rather, she signed her services plan, acknowledging and assenting to its
contents which did not include services designed to make Cynthia’s home a safe
place to raise Zachary. By not
challenging the content of her reunification plan by direct appeal from the
dispositional hearing, Brittany forfeited her right to now claim the plan as
ordered was unreasonable. (
47.)
Olivia’s Testimony
Brittany
contends the juvenile court erred in considering Olivia’s testimony because it
“does not seem reasonable in light of all the other testimony†and “does not
relate to the original petition.â€
Brittany’s trial counsel did not, however, object to Olivia’s testimony
or move to have it stricken.
Consequently, Brittany forfeited any claim on appeal that the testimony
should have been excluded as inadmissible.
(Evid. Code, § 353, subd. (a).)
We find no error on this record.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
to the Welfare and Institutions Code unless otherwise indicated.
