In re B.B.
Filed 8/14/13 In re B.B. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
In re B.B.,
a Person Coming Under the Juvenile Court Law.
J.B.,
Petitioner,
v.
THE
SUPERIOR COURT OF THE COUNTY OF CONTRA
COSTA,
Respondent;
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU,
Real Party in Interest.
A138796
(Contra
Costa County
Super. Ct.
No. J11-01149)
Petitioner
J.B. is the mother of B.B., a two-year-old dependent child of the
Rules of Court, rule 8.452) to set aside the juvenile court’s order terminating
reunification services and setting a
permanency planning hearing (Welf. & Inst. Code, § 366.26).
to Mother would create a substantial risk of harm to the child. Mother contends this finding is not supported
by substantial evidence and that the juvenile court improperly shifted the
burden of proof. We disagree with Mother
and deny the petition on the merits.
I. PROCEDURAL BACKGROUND & FACTS
Mother
has mental health issues and her performance in reunification services is
characterized as having “ups and downs.â€
We review the pertinent facts.
On October 20, 2011, the juvenile court
sustained a dependency petition filed by respondent Contra Costa County
Children and Family Services Bureau (Bureau).
The Bureau alleged Mother had failed to protect B.B. (§ 300, subd.
(b)), who was then seven months old, because Mother “has mental health issues
that interfere with her ability to provide adequate care, support, and
supervision for the child, placing the child at substantial risk of harm
. . . .â€
Specifically, the
court sustained allegations that Mother had been the subject of a mental health
hold (§ 5150) on August 13, 2011, when she claimed her other daughter, a
two-year old, had been raped by boys aged nine and 13.
her to stop taking her medications and that she should assemble people to save
the world as it was going to end in 48 hours.
Mother was the subject of a second section 5150 hold two days later,
after she reported that both her children had been kidnapped by their maternal
grandparents. Mother’s behavior on that
occasion was described as “erratic,†and she “was unable to maintain a
cohesive, rational conversation.â€
The juvenile court
also sustained allegations Mother had been diagnosed with depression and
anxiety, had been hospitalized at least three times in the three months prior
to the filing of the petition, and admitted she stopped taking her medication
on August 13, 2011―the date of the first section 5150 hold.
The
Bureau’s dispositional report, dated November
17, 2011, states Mother “has a long established history of bipolar
disorder and other mental
health issues that require intervention for [M]other to adequately parent
her children.†She has been diagnosed
with “major depression, social anxiety disorder, and dysthymia,†and has a
history of “cutting, binge eating and purging,†as well as bulimia.
life and has suicidal thoughts, which include “plans of cutting, drug overdose,
and an intentional car accident.†She
was “inconsistent in taking her psychotropic medications . . . [and]
has used alcohol, marijuana and ecstasy which exacerbate her mental health
issues.â€
Mother
prided herself on “being a good mom†and wanted to reunite with B.B. She had been in individual therapy with
Contra Costa County Mental Health since June 2010, although that therapy did
not prevent the two section 5150 holds in August 2011. She acknowledged her mental health needs and
was taking four prescribed medications.
She reported she had not used alcohol since July 2011, but continues to
use marijuana because “it keeps me sane.â€
She “has not taken any responsibility [for] the reasons her family came
to the attention of the Bureau.†She
also had not provided any proof she had enrolled in any of the services
requested by the Bureau, and had admitted she had not attended individual
therapy since at least November 4,
2011.
The
Bureau concluded B.B., who had been placed with her maternal grandparents,
“would not be safe living with her mother.â€
The Bureau recommended reunification services for Mother. On December
12, 2011, the juvenile court accepted that recommendation and
ordered reunification services.
In
its six-month status review report, prepared for a hearing on May 21, 2012, the Bureau noted Mother
“has struggled to engage in services consistently.†She lost her bed in a shelter after she was
taken to the emergency room on February
22, 2012 for what appeared to be a drug overdose. On February
24, 2012, a psychiatric evaluation revealed a diagnosis of “bipolar
disorder versus schizoaffective disorder,†and an assessment Mother was
“suicidal.†She was placed on another
section 5150 hold, apparently, because she was not taking her medications. Mother “is currently homeless and couch
surfing for shelter.†Mother showed some
progress with services in February―apparently, before the events just
described―and seemed to be doing well in services in April 2012.
The
Bureau concluded Mother’s “engagement in services has been irregular†and she
“has been unable to show insight into why her family has come to the attention
of†the Bureau. She “has made excusesâ€
for noncompliance with her case plan and with maintaining her medication, and
her contact with the social worker “has been erratic,†with Mother “often
presenting herself as subdued and confused or aggressive and irritated.†Mother claimed to be taking her medication as
of April 2012, and was currently re-engaged in services including therapy, drug
treatment, and testing.
The Bureau
recommended six more months of reunification services. The juvenile court accepted that
recommendation.
In its 12-month
status review report, prepared for a hearing on October 25, 2012, the Bureau recommended reunification
services be terminated and the court set a .26 hearing. The Bureau noted in the prior six months
Mother “has struggled to find a stable and appropriate housing situation,†and
her current “living situation is not conducive to regaining custody†of
B.B. Her income was “sporadic.†She graduated from a drug treatment program
in August 2012, and she reported having completed a parenting course and said
she was attending weekly therapy―however, “[t]he Bureau has not received
any treatment reports or certificates from [Mother] regarding [these]
services.†Likewise, Mother claimed to
be attending AA meetings, but provided no proof of attendance. Her Kaiser case manager did report to the
Bureau that Mother “has been comp[liant] with weekly sessions and has been
committed to regaining custody†of B.B.
“Within
the last six months, [Mother] has continued to have many ups and downs.†The Bureau remained concerned that Mother “is
unstable, inconsistent, and does not have the ability to plan for the
future.†In the last year, Mother “has
struggled to regulate her mood [and] emotions, and is often combative.†This fluctuation is related to whether she
takes her medication. The Bureau social
worker “has experienced [Mother’s] varying altered states, emotional variance,
and inconsistent persona on nearly a month to month basis. [Her] combative reactions have made it difficult
for her to move forward with multiple referred services.†Mother continued to have housing issues and,
while “[she] has shown her ability to engage in services,†the Bureau concluded
Mother “has not stabilized herself to a level that would provide [B.B.] with a
safe home.â€
The
Bureau did not foresee B.B.’s return to Mother within the next six months. Accordingly, the Bureau recommended the court
set a .26 hearing with the aim of creating a legal guardianship with the
maternal grandmother, with whom B.B. had been placed since her removal from
Mother’s custody.
The
matter was continued because Mother asked for a Marsden hearing. (
118.) On December 13, 2012, the Bureau changed its position and
recommended reunification services be continued until the 18-month review
hearing. Apparently, this recommendation
was adopted by the juvenile court.
The
Bureau reported Mother was in the process of entering a family shelter where
she could eventually live with B.B. and where staff would help her find
employment and supervise her medication.
Furthermore, Mother’s Kaiser case manager had reported that she believed
Mother “does not pose a threat to herself or [B.B.].†Nevertheless, the Bureau still was of the
view that Mother continued to struggle with reunification services, although
she was participating in most services, was more medication compliant, and was
more stable―but, she had missed two drug tests in November. The Bureau “continues to have concerns with
[Mother’s] stability and inconsistent nature . . . .â€
On
May 22, 2013, the Bureau
reported Mother had taken a turn for the worse.
She was out of compliance with her case plan, had not contacted her
social worker to update her whereabouts, and had refused to speak with the
social worker since March. She had
missed drug tests in March and April and had tested positive for alcohol on May
2, 2013―apparently, at 3:00 in
the afternoon. She had not provided
information regarding her whereabouts, her living situation, and her employment
situation. In February, Mother revoked
the Bureau’s release of information privileges, making it impossible for the
Bureau to assess Mother’s case plan activities.
The Bureau had “grave concern†for Mother’s ability to care for B.B.,
who has multiple medical issues, and recommended the juvenile court set a .26
hearing to impose a legal guardianship with the maternal grandmother.
In
its report prepared for the 18-month status review hearing, dated February 6,
2013, the Bureau noted Mother had been denied entry into the family shelter, in
part because of “her refusal to comply with mental health medication
protocol.†Mother was in a different
shelter, but was having trouble with her medication regimen. Furthermore, it would take up to six months
for the shelter to allow B.B. to stay there with Mother.
The
Bureau “continues to have concerns that [M]other is unstable, inconsistent, and
does not have the ability to plan for the future.†While she has made “significant progress in
her services, she has yet to show she is able to remain stable within
employment and housing to provide a stable environment for [B.B.]†The Bureau “continues to have grave concern
for [M]other’s ability to adequately and appropriately parent [B.B.]â€
After
a hearing, the juvenile court found that reasonable services had been provided
to Mother, but that returning B.B. to Mother’s care and custody would create a
substantial risk to B.B.’s well-being.
Accordingly, the juvenile court set a .26 hearing.
II. DISCUSSION
Mother contends
the substantial risk finding is not supported by substantial evidence. We disagree.
Our
task “begins and ends with a determination as to whether or not there is any
substantial evidence, whether or not contradicted, which will support the
conclusion of the trier of fact.†(
540, 547.) We must resolve all conflicts
in the evidence in favor of the ruling and “indulge in all legitimate
inferences to uphold the court’s order.â€
(Elijah R. v.
965, 969.) We cannot reweigh conflicting
evidence to change a juvenile court’s determination in a dependency
proceeding. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Mother
points to favorable evidence showing her progress in services and her
“proactive[]†measures to address her mental illness. She also notes she had successfully completed
a parenting course, had obtained a state license in cosmetology, and was having
unsupervised overnight visitation with B.B.
But we cannot parse through the record to consider only evidence
favorable to the party who did not prevail.
And progress alone is not necessarily enough. The juvenile court, viewing the entire
history of the case and Mother’s distinct pattern of inconsistency and
instability, along with her current inability to provide housing for B.B., was
entitled to conclude return of the child to Mother would result in a
substantial risk of harm to B.B. That
finding is supported by substantial evidence.
Mother
also argues the juvenile court improperly shifted the burden of proof. She introduced two exhibits at the
hearing: Exhibit A, consisting of two
letters, one from Mother’s vocational counselor showing her consistent
participation in the program, and the other from Mother’s Kaiser case manager
stating she has been “making progress towards her treatment goals,†and has
been medication compliant; and Exhibit B, consisting of certificates showing
completion of a parenting class and a family recovery program in August 2012.
At the conclusion
of the hearing, the juvenile court noted the completion of the parenting class
and the family recovery program “dated back all in 2012.†“And since that time, [M]other has been
unable to successfully complete a residential program for reasons relating to
medical compliance with medication.†The
court noted the Kaiser letter was a “To Whom it May Concern†letter, and was
not addressed to the issue whether B.B. would be safe with Mother. Furthermore, it was signed by a social worker
not a treating psychiatrist.
The court
concluded, “So I don’t find that these items provided to the Court by [M]other
really address the concerns here. So I
don’t find this to be substantial evidence that she no longer suffers from
issues of mental health that would place her child at risk.†The court found substantial risk “based on
the state of the record before this Court,†and “[there’s] no evidence
whatsoever . . . before this Court other than this
to-whom-it-may-concern letter that you are at all seeking any sort of
appropriate mental health care. This
record is such that I simply cannot find that you are a safe custodial parent.â€
Mother
claims this shows the juvenile court shifted the burden of proof. We do not so interpret the court’s
language. The juvenile court was simply
evaluating Mother’s evidence and concluding it was not probative on the issue
at hand. There is no indication the
court had shifted the burden of proof from the Bureau, where it lies
(§ 366.22, subd. (a)), to Mother.
The court reviewed the entire record and reached its conclusion based on
a proper allocation of the burden of
proof.
The
writ petition is denied on the merits.
The request for stay is denied.
Because the .26 hearing is set for September 4, 2013, this opinion if
final as to this court immediately.
(Cal. Rules of Court, rule 8.490(b)(3).)
______________________
Sepulveda, J.*
We concur:
______________________
Margulies, Acting P.J.
______________________
Dondero, J.
* Retired Associate Justice of
the Court of Appeal, First Appellate District, Division Four, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title=""> [1]
Subsequent statutory references are to the Welfare and Institutions Code. The section 366.26 hearing will be referred
to as a “.26 hearing.â€
name="_ftn2" title=""> [2]
Mother’s other daughter is not a subject of this appeal.
