In re Ayden S.
Filed 6/19/13 In re Ayden S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re AYDEN S., a Person Coming Under the Juvenile Court
Law.
___________________________________
MIA A.,
Petitioner,
v.
THE SUPERIOR COURT
OF SAN LUIS OBISPO
COUNTY,
Respondent;
___________________________________
SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Real Party in
Interest.
2d Civil No.
B247099
(Super. Ct.
No. JV 39054)
(San
Luis Obispo County)
Mia A. (Mother) is the
biological mother of Ayden S., born in March 2011, who has been a dependent of
the juvenile court since October 7, 2011. Mother seeks writ relief (Cal. Rules of
Court, rules 8.452, 8.456), from the juvenile court's order terminating her
reunification services and setting the matter for a
name="_ftnref1" title="">[1]
She contends that the
Obispo County Department of Social Services (the Department) did not
provide her with reasonable reunification services and that the order
terminating services is not supported by substantial
evidence. We deny the writ.
Facts
Ayden was born in March
2011. By October 2011, the Department
had received four referrals from law enforcement and extended family members
who expressed concern about the infant's welfare and the parents' substance
abuse. Among other things, these
individuals reported that Mother and Ayden's biological father, Gerald S.
(Father), were leaving the infant Ayden with random people without provision
for his care, such as diapers and food.
The Department's social
workers attempted to visit the family at their apartment at least three times
in August and September 2011. Mother and
Father evaded the appointments and prevented the social worker from seeing
Ayden. They also maintained a chaotic
lifestyle that threatened Ayden's physical and emotional well being. On September
3, 2011, Mother was arrested and jailed for assault after three
women complained to police that she physically attacked them in their driveway
at a mobile home park. In early October
2011, a truck rented in Father's name was abandoned after it crashed into a
guardrail. Ayden's paternal grandparents
informed respondent that Father fell asleep while driving. He was under the influence of drugs at the
time. Mother and Ayden were also in the
truck with him. The family was involved
in a second single car accident around the same time. Mother denied any involvement in the
accident.
Ayden was removed from
his parents' home on October 7, 2011. When the social worker and police officers
arrived to serve the protective custody warrant, Mother and Father refused to
answer or open their locked front door, forcing officers to gain entry using a
door ram. Mother was arrested for
delaying or obstructing an officer in violation of Penal Code section 148, and
the police department recommended that similar charges be filed against
Father.
Mother has a lengthy
criminal history as well as a history with the Department. She has two older biological sons. Both sons were placed in foster care as a
result of Mother's drug abuse. The
eldest has been adopted by his maternal grandmother; the younger son is in the
process of being adopted by his maternal grandfather.
At the detention
hearing, Mother testified that she has been drug and alcohol free since August 12, 2009. For eight months of that time, she lived in a
sober living house, eventually becoming the house manager. In August 2010, Mother moved out of the sober living home and
into an apartment. Ayden was born in
March 2011. Although Mother did not drug
test at the county testing facility as requested by the social worker, she
tested at another facility in July, August and October 2011. Each test was negative for all drugs. On November 15, 2011, Mother tested at the
county facility. The results of that
test were also negative.
Mother had escalating
contacts with law enforcement after Ayden's birth. San Luis Obispo police officers responded to
the parents' apartment 13 times between August 8, 2011 and October 9,
2011. One of these contacts concerned a
reported theft by Mother, two were welfare checks on Ayden, and the remainder concerned
disorderly or suspicious behavior. In
November 2011, police responded to eight separate complaints of disorderly
conduct at the parents' apartment.
Mother testified that many of these calls involved domestic violence
between Mother and Father. On November
2, 2011, Mother was arrested for burglarizing a neighbor's apartment and
possessing property stolen from the apartment.
The neighbors reported to police that a laptop, wallet and cell phone
were taken from their apartment during the night on November 1. On November 2, Mother walked into the
apartment without their permission and returned the stolen laptop.
Meanwhile, Mother
continued to drug test voluntarily at a private facility, on days that she
chose. While her drug test results were
negative, her behavior, including the many law enforcement contacts, indicated
to the social worker that she was still using drugs. The social worker testified at the
jurisdiction hearing that Mother's behavior was erratic, she exhibited
"disjointed thoughts," paranoia and rapid speech. An intake counselor at the county's drug and
alcohol services office was also "very concerned about [Mother's] behavior
and she believes that [Mother] is using . . . ." Because Mother was not willing to admit that
she was using drugs, however, the counselor would not allow her to participate
in group therapy. The social worker
described Mother as "very confrontational and uncooperative with
[respondent] . . . ."
She told the social worker that she did not believe respondent had a
valid warrant to detain Ayden in foster care and referred to his detention as
an "abduction." Mother also
refused to participate in a team decision concerning Ayden because "she
does not do anything without her lawyer.
[Mother] said that the Department will just use whatever she says
against her. She said that she feels
that the social worker railroaded her. "
The court entered its
order taking jurisdiction over Ayden on December 1, 2011. At the uncontested
the court ordered reunification services and supervised visits for both
parents. Ayden remained in foster care.
The six-month review
hearing was scheduled to occur in June 2012.
In the interim, Mother failed to comply with her case plan. She refused drug testing, failed to enter
into residential treatment and frequently argued with and raged at the social
workers and other employees of the Department who were trying to help her and
Ayden. In a March 2012 interim review
report, the Department noted that Ayden was doing well in foster care but
appeared to have difficulty adjusting after visits with Mother. Ayden had to be moved to a second
confidential foster placement after Mother discovered the address of his first
placement. Although Mother was offered
38 supervised visits with Ayden, she missed 14 and either arrived or left early
from another 13 visits.
Mother was back in jail
by March 3, 2012, and had no stated release date. While in custody, Mother was diagnosed with
bipolar disorder and began taking medication for that condition. Her behavior and attitude showed marked
improvement after she began taking the medication.
An April 2012 evaluation
of Ayden by a county mental health therapist noted that the then-11 month old
Ayden "has had and continues to have, atypical crying behavior. The crying is characterized as escalating
within seconds to a panicked, piercing scream.
This desperate crying has occurred the moment Ayden sees any food, including
adults eating; when he wakes repeatedly during the night and in the morning and
realizes he is alone, and when he is unable to tolerate not having his foster
mothers' attention. [¶] Ayden
has also shown a consistent hypersensitivity to raised voices." According to the therapist, Ayden had also
shown an aversion to physical contact.
"He demonstrated a preference to have his bottle held for him at
arm's length from his caregiver."
The therapist noted that behaviors such as Ayden's are understood to be
early expressions of common responses to trauma. "It appears that Ayden's experiences
prior to foster care placement have had an extreme and profound effect upon his
development and ability to self-regulate."
The Department
recommended that Mother's reunification services be terminated because she was
incarcerated, had not been complying with her case plan, and refused to
participate in residential drug treatment.
By mid-May, however, all parties had agreed that Mother's services would
be continued and that she would enter a residential treatment program on her
release from jail, which was expected to occur on May 29, 2012.
Mother was released from
custody on May 29, but did not enter the residential treatment program. Instead, she moved into the same sober living
house she had lived in prior to Ayden's birth.
She continued, however, to take her medication and appeared to be much
calmer. According to the social worker,
"Her most recent visits with Ayden (two since being released from jail)
now appear to be more beneficial to her and less traumatic to Ayden. He has smiled while sitting in her lap, and
also after being kissed by her." In
a June 2012 report prepared for the six-month review hearing, the Department
again recommended that Mother's reunification services be terminated, based on
her failure to comply with her earlier agreement by entering a residential
treatment facility. Meanwhile, Mother
requested that her case plan be modified to replace the requirement for
residential drug treatment with one for out-patient mental health
treatment. The trial court granted
Mother's request and ordered the parties to develop a new case plan for
her. On August 8, the parties filed a
new case plan that required Mother to remain drug and alcohol free, comply with
the orders of her mental health treatment team, and to obtain suitable housing
for herself and Ayden after her graduation from her sober living home.
Mother and Father had a
joint supervised visit with Ayden on August 20, 2012. During the visit, Mother and Father began to
argue with each other about a car they were sharing. Rather than attending to Ayden's needs,
Mother was distracted by the disagreement, made several calls on her cell phone
and left the room several times. Ayden
became very upset while the argument was going on and when Mother left the
room. The visitation supervisor ended
the visit early because it was having a negative impact on Ayden. Mother and Father had no more joint visits
with Ayden. In September, the court increased
Mother's visitation and permitted her two visits per week at her sober living
home, supervised by staff at the home.
The 12-month review
hearing occurred in February 2013. In a
status review report prepared for the hearing, the Department recommended that
reunification services for both parents be terminated and that Ayden be moved
toward a permanent adoptive placement.
The Department acknowledged that Mother had successfully completed her
sober living program and obtained employment.
It also acknowledged that her visits with Ayden had been more productive
after she began taking medication. Its
recommendation to terminate services was based on four considerations. First, while Mother had a years' long history
of struggling with mental health issues, substance abuse and inappropriate
behavior, her stability and sobriety
were relatively recent and short lived.
Second, her relatives believed Mother should not be given custody of
Ayden because she had made little effort to be involved with her two older
children and they feared "this is a pattern that will ultimately continue
down the road with Ayden." Third,
Mother steadfastly maintained her relationship with Ayden's father, even though
that relationship is marked by domestic violence, quarreling and substance
abuse, all of which are extremely traumatic for Ayden. Finally, Mother continued to be in denial
about the circumstances and behavior that led to Ayden's detention, had
difficulty taking responsibility for her own actions and "is, therefore,
unlikely to make the necessary permanent changes in her behavior to meet the
long term needs of her child."
After the evidentiary
hearing, the trial court accepted the Department's recommendation and
terminated reunification services for both parents. In its ruling, the court acknowledged that
the issues were "complicated" with respect to Mother because the
erratic behavior that led to Ayden's removal may have been related to substance
abuse, undiagnosed mental illness or both.
It also acknowledged that Mother's behavior and attitude had changed
since she began mental health treatment.
According to the court, "It is true that [Mother] has of late
complied with her reunification plan and there is evidence that justifies
Ayden's return to her." On balance,
however, the court reasoned, the evidence showed that "return would be
detrimental to Ayden." Mother
remained unable to avoid having arguments, raising her voice, and creating
stressful situations and changes in routine while caring for Ayden, all
circumstances that were traumatic for Ayden.
In particular, the court
noted, the August 20 visit demonstrated that Mother had not addressed all of
the issues that led to Ayden's dependency.
By the time of that visit, Mother had been taking medication for her
months and had made many other positive changes. Nevertheless, she continued to display an
"apparent lack of understanding regarding Ayden's unique needs and how to
prioritize those needs when faced with other immediate problems. It is disturbing to learn from all who were
present at that visit, how the visit broke down and how Ayden's needs were
overlooked." The parents had also
expressed a desire to stay together, even though their volatile relationship
was obviously harmful for Ayden.
The trial court's order
terminated reunification services for both parents and scheduled a hearing on
the termination of their parental rights for June 19, 2013. Thereafter, Mother filed this writ
petition. She contends the Department
failed to provide reasonable services or adopt a reasonable case plan to
achieve reunification and that the order terminating reunification services is
not supported by substantial evidence.
Discussion
Reasonable
Services
Typically, when a child
is removed from parental custody, the child and parent are entitled to child
welfare services to facilitate family reunification. (In re
K.C. (2012) 212 Cal.App.4th 323, 329; §§ 361.5, subd. (a);
366.21, subd. (g)(1).) The Department is
obligated to make a "good faith effort" to provide reasonable
reunification services, tailored to the circumstances of each family and
designed to address the conditions that led to the court's exercise of
jurisdiction over the child. (
"[A] reviewing
court ordinarily will not consider a challenge to a ruling if an objection
could have been made but was not made in the trial court. [Citation.]
This purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected." (In re
S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) While the court has discretion to excuse a
forfeiture and consider an issue not raised in the trial court, that discretion
"should be exercised rarely and only in cases presenting an important
legal issue." (Id.) This is especially true
in dependency matters where, because the proceedings "involve the
well-being of children, considerations such as permanency and stability are of
paramount importance.
[Citaion.]" (
At each stage in these
proceedings, the trial court made a finding that the Department had provided or
was providing reasonable reunification services to Mother. Mother never objected to those findings, nor
did she raise the failure to provide reasonable reunification services as an
objection at the 12-month review hearing in February 2013. Consequently, Mother has forfeited review of
this issue.
Had review of the issue
not been forfeited, we would nevertheless reject Mother's contention because
the Department provided reasonable services to her. From the beginning, Mother's case plan
required her to, among other things, participate in drug and alcohol treatment,
counseling and random testing, take parenting classes, obtain an assessment
from the County's Mental Health Services and participate in counseling as
required by the Mental Health Services.
These items were included in an interim case plan adopted by the
Department in October 2011, four days after Ayden was removed from parental
custody. While her initial case plan
focused on drug and alcohol treatment and counseling, the case plan was revised
in May 2012 and again in July 2012, to reflect Mother's need for mental health
treatment. The Department provided
Mother with referrals to mental health and substance abuse treatment programs,
parenting classes, visitation supervision and bus passes. These services were reasonably designed to
address the issues that led to Ayden's dependency. (Amanda
H., supra, 166 Cal.App.4th at p. 1345.)
Substantial
Evidence
Mother contends the
order terminating her reunification services was not supported by substantial
evidence. We disagree. As the court found at the 12-month review
hearing, Mother had achieved a period of sobriety and had begun to address her
mental illness, the primary issues that led to Ayden's dependency. Before late May 2012, however, her entire
adult life had been marked by substance abuse, disruptive and sometimes violent
behavior, anger, verbal abuse and confrontations with nearly everyone who
crossed her path. Exposure to any of
these circumstances is extremely harmful to Ayden, who is prone to panic
attacks when his routine is disrupted or he hears raised voices. As the court noted, Mother continues to lack
insight regarding the negative impact her argumentative and confrontational
behavior has on Ayden. On balance, the
court concluded, returning Ayden to Mother's custody would be detrimental to
him. Substantial evidence supports this
conclusion because Mother's sobriety and mental stability were relatively
recent compared to her years' long history of substance abuse, mental illness
and disruptive behavior.
Disposition
The writ petition is
denied.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Linda
D. Hurst, Judge
Superior
Court County of San Luis Obispo
______________________________
Frederick F. Fost, for
Petitioner
No appearance for
Resondent.
Rita L. Neal, County
Counsel, County of San Luis Obispo County and Leslie H. Kraut, Deputy County
Counsel, for Real Party In Interest.
name="_ftn1" title="">[1] All statutory references are to the Welfare
& Institutions Code unless otherwise stated.
