In re K.W.
Filed 1/24/14 In re K.W. CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
In re K.W. et al.,
Persons Coming Under the Juvenile Court Law.
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and
Respondent,
v.
Wanda W.,
Defendant and
Appellant.
C072514
(Super. Ct. Nos. JD232316,
JD232317)
of the minors, appeals from the judgment of disposition.
(Welf. & Inst. Code,
§§ 360, 361, 395.)
disabled individual before determining she was unable to benefit from
services pursuant to the bypass provision of section
361.5, subdivision (b)(2).
substantial evidence did not support the
juvenile court’s finding that reasonable efforts had been made to provide
necessary services to mother. Mother
also argues she was denied due process because she did not have a fair
opportunity to show whether she was capable of properly caring for the minors
before services were bypassed. We
conclude substantial evidence supports the juvenile court’s finding that
reasonable efforts were made. We reject
mother’s due process claim because she had notice the bypass provision was
being considered and participated in the hearing on the issue. Accordingly, we affirm the judgment.
FACTS
The minors, K.W. and M.W., were born
prematurely in March of 2012. Eleven
days later a mandated reporter informed the
appeared to be unable to learn basic child care skills although the
born. On April 4, 2012, the social worker spoke to hospital staff who provided examples of mother’s inability
to care for the minors and difficulty processing information when staff
attempted to instruct her on basic child care.
Staff was concerned about the maternal grandmother’s apparent lack of
support for mother. Hospital records
showed mother had been assessed and diagnosed as having a
disability. The doctor told the social
worker that the minors, while medically fragile, were ready for discharge but
were not released because mother was unable to demonstrate she could care for
the minors’ basic needs.
The social worker met with mother,
the maternal grandmother, and maternal aunt the next day. Mother did not respond to the social worker’s
questions but deferred to the maternal grandmother and maternal aunt. The relatives agreed they would be providing
primary care for the minors because mother, who lived with them, would be
unable to do so. However, both declined
to engage the services of Birth and Beyond, an in-home program designed to
assist with parenting needs, although they had previously told the hospital
social worker they would do so. On April 6, 2012, both the maternal grandmother and maternal aunt again refused to
permit the Birth and Beyond program access to their home and did not see why
the service was necessary since they would be caretakers of the minors. The social worker pointed out that for mother
to be able to care for the minors she would benefit from parenting education
due to her delays. Both the maternal
grandmother and maternal aunt insisted mother had no cognitive delays and acted
“normal†in her regular life.
The Department placed the minors in
protective custody and filed a petition that alleged the minors were at
substantial risk of serious physical harm due to mother’s significant
developmental delays that impaired her judgment and ability to care for the
medically fragile minors. At the initial
hearing, the juvenile court detained the minors, found reasonable efforts were
made to prevent removal and ordered the Department to offer reunification
services to mother without prejudice to further recommendations by the
Department.
The jurisdiction/disposition report
stated mother denied she needed any assistance in her daily life and insisted
the hospital staff made false statements about her ability to care for the
minors. Mother said she was able to
perform all necessary tasks after some instruction. Mother told the social worker she was
evaluated by Alta Regional Center (Alta) 12 years earlier and was found ineligible for services. She had been in a special education class as
a child but as an adult had lived on her own, paid her own bills and attended
school. Mother was willing to
participate in services. The maternal
grandmother and maternal aunt continued to insist mother had no developmental
or mental disability and was capable of caring for the minors. Both the maternal grandmother and maternal
aunt claimed the hospital staff made false statements about mother. The social worker contacted Alta whose
records showed there had been a telephone call about mother but mother had not
been assessed.
The social worker’s report described
mother’s first two scheduled visits with the minors. The social worker asked the visit supervisor
to allow mother to demonstrate her abilities on her own to assess her ability
to care for the minors. Visits were marked
with mother’s inability to respond to the minors’ cues or the supervisor’s
suggestions. Mother needed continuous
instruction and was unable to split her attention between tasks or between
children. She was unable to feed the
minors the proper amount of formula in an appropriate manner. Mother’s contact with the minors was mechanical
and not interactive or responsive to their needs. At the second visit, mother remembered some
instructions from the first visit but still needed almost continuous support
and direction from the social worker or visit supervisor.
Based on the observations during
visits, the social worker concluded mother did have significant delays. Mother struggled with independent decision
making regarding basic child care and needed instruction and reminders on common
care activities. The social worker recommended
referring mother for two psychological evaluations to explore her limitations
and determine whether she would benefit from services. Further, if services would be beneficial, the
evaluations could identify what type would best suit mother’s needs.
An addendum report in May 2012
stated the social worker had reviewed hospital records that described mother’s
inability to retain information and follow simple instructions. Mother also had difficulty remembering the
minors’ names.
A second addendum report discussed
mother’s visits in April and May of 2012.
While there were some areas of progress, and increased interaction
between mother and the minors, mother was easily confused, had difficulty
prioritizing the minors’ needs even with suggestions from the social worker,
failed to follow suggestions, and had to ask directions several times to
perform some basic child care activities.
The addendum stated mother was participating in a parenting class and
the social worker was investigating an organization that could provide
services, including parenting assistance, to developmentally disabled
adults.
A third addendum report in June 2012
provided information from a nurse at the hospital regarding mother’s
difficulties in applying instructions on infant care or in following modeled
caretaking behavior. The nurse also
noted the maternal grandmother did not intervene or otherwise assist
mother. The nurse believed someone would
have to be constantly present to assist mother in caring for the minors.
At the jurisdiction hearing in June
2012, mother’s counsel argued the Department had not shown mother had a
significant developmental delay. The
juvenile court sustained the petition as amended, finding the observations of
the nurses at the hospital and the social workers were consistent and
established mother’s impairment and inability to retain information. Mother’s counsel objected to the court
ordering psychological evaluations for mother because services could be
tailored for her without them. The
social worker informed the court an Alta evaluation was pending, mother had
completed the parenting class, and the most relevant service was coaching on
parenting skills mother received during visitation. The court ordered two psychological
evaluations.
A fourth addendum report in July
2012 noted mother’s ongoing issues with adequate parenting during visits. The addendum also provided the results of the
two psychological evaluations that concluded mother’s limitations were too
profound to permit her to reunify with the minors within the statutory time
limit.
be well below average and she had a poor understanding of basic parenting. Mother’s profile indicated a preference for a
simple, repetitive dependent life pattern marked by the absence of
responsibilities. Her deficits would
preclude her from managing the responsibilities of a primary caretaker of the
minors. The addendum acknowledged mother
had made some progress in concrete skills but continued to have difficulty in
critical thinking regarding prioritizing the minors’ needs and required
constant direct supervision to prevent placing the minors at risk. The Department recommended denying
reunification services to mother due to her inability to benefit from
them.
A final addendum report filed in
October 2012 stated mother had ongoing problems retaining information regarding
the minors’ care and still needed prompts for basic activities. She had improved her interaction with the
minors and made efforts to remember the child care information but was unable
to do so. As the minors’ needs changed,
mother needed continued training and coaching because she was unable to
extrapolate from prior experiences.
Mother was unable to learn a routine for child care when the social
workers modeled it and did not benefit from coaching. Mother had scheduled an intake assessment at
Alta but cancelled at the last minute. A
second intake appointment was scheduled.
Mother avoided discussing the Alta assessment with the social worker and
declined to sign a release of information for the social worker to communicate
with Alta. The Alta intake counselor
told the social worker mother had attended the intake assessment appointment
but the intake process was pending while the eligibility team determined
whether mother needed further testing.
Disposition
Hearing
At the disposition hearing, the
maternal aunt testified that mother had lived with her and the maternal grandmother
for about a year. She had thought mother
could care for the twins but had changed her mind due to the reports and
psychological evaluations. She did not
think mother had a developmental delay because mother had a job in high school,
went to college, had a job as an adult, and had lived on her own. Mother had also helped her with her own
children. The maternal aunt testified
that mother received benefits due to her learning disability and had a payee
from the age of 19 because she could not manage her own money.
The social worker testified she did
not agree with the psychological evaluation secured by mother’s counsel because
she did not see that it contained a clear analysis of why mother would be able
to benefit from services. She
acknowledged that two of the three evaluators recommended a referral to
Alta. The social worker stated mother
did an intake assessment for Alta in September 2012. She was concerned the maternal grandmother
and maternal aunt were unwilling to support mother at the level that was
required if the minors were placed with mother and neither relative had visited
the minors since their birth.
Mother’s counsel objected to the
juvenile court applying the bypass provision of s
services to mother. Counsel observed
mother had begun to be involved in Alta.
Mother did not argue reasonable efforts were not made to prevent the
need for removal.
Juvenile Court’s
Ruling
The juvenile court started with the
applicable law: “Pursuant to [s]ection
361.5, [subdivision] (b)(2), the Court may deny reunification services to a
person who is suffering from a mental disability as it is described in Family
Code Section 7820 and the code sections which follow. The reason for such denial is that the person
would not be able to benefit from using those reunification services. As set forth in Family Code Section 7827, the
Court must have the opinions from two mental health experts in order to make a
determination of such a mental disability.â€
The juvenile court ruled that the
two psychological evaluations agreed mother had “notable deficiencies that
would compromise her ability to manage the responsibilities associated with
providing for [the minors’] needs and well-being on her own.†The court found the “shared opinion is
supported by the other evidence presented, which includes descriptions of the mother’s
time spent with the [minors] and observations of her attempts to care for
them.†Pursuant to the bypass provision
of section 361.5, subdivision (b)(5), the court determined mother was suffering
from a mental disability and was incapable of utilizing reunification services
to reduce or alleviate the risk to the minors.
The court also found reasonable efforts were made to prevent or
eliminate removal from the home. As to
mother, the court ordered reunification services shall not be provided.
DISCUSSION
I
Reasonable
Efforts
Mother does not argue substantial
evidence did not support the bypass order.
Instead she argues the juvenile court could not make a finding that the
Department made reasonable efforts to prevent removal of the minors because the
voluntary services offered were inadequate because they did not take into
account her developmental disabilities.
The juvenile court must make a
finding that the Department made reasonable efforts to prevent or eliminate the
need for removal at two points. The
first is at the initial petition hearing when the court is making an order for
temporary custody. (§
hearing. (§
minor must be removed from parental custody because there is a substantial
danger to the physical health of the minor, the court must also determine
whether reasonable efforts were made to prevent or eliminate the need for
removal. (§
the finding at the initial petition hearing, the challenge has been mooted by
the subsequent finding at the disposition hearing by a higher standard of
proof. (Cal. Rules of Court, rules
5.676(a), 5.678(a) & (c).)
Mother essentially challenges the
sufficiency of the evidence to support the juvenile court’s finding that
reasonable efforts were made to provide necessary services to mother. When the sufficiency of the evidence to support
a finding or order is challenged on appeal, the reviewing court must determine
if there is any substantial evidence -- that is, evidence that is reasonable,
credible, and of solid value -- to support the conclusion of the trier of fact. (In
re Angelia P. (1981) 28 Cal.3d 908, 924; I
1206, 1214.)
The interim and voluntary nature of
the services provided prior to and during the full investigation of the
parent’s needs in anticipation of dispositional orders means the social worker
is making a best guess at what will be most helpful to a parent who is facing
removal of a child. The social worker
must assess changing information and refer the parent to preliminary services
that will hopefully eliminate the need for removal. The ongoing assessment prior to disposition
means additional services may be identified to address the root causes of the
problems that led to filing the petition.
In this case, there was conflicting
evidence of the cause and degree of mother’s apparent developmental
disability. Observations of the hospital
staff, the social worker, and the visit supervisor indicated serious deficits
that training and education were unlikely to remedy. On the other hand, family members and mother
denied she was unable to function at an average level and she had not provided
proper care for the minors in the hospital once she had been instructed on what
was needed. The social worker referred
mother to parenting classes and parenting modeling was provided at visitation. The social worker tried unsuccessfully to
find services for disabled adults and sought psychological evaluations that
would more clearly identify the nature and extent of mother’s deficits and
what, if any, services might be best to include in her case plan. While the social worker could have made a
referral to Alta, the failure to do so was reasonable in light of the
information that mother had previously been found ineligible and either mother
or the maternal grandmother had made a new request for an intake assessment by
Alta after the minors were removed. (§
a request for assistance].) The intake
assessment was performed prior to disposition, but had not yet resulted in
services and the social worker was unable to discuss the assessment with Alta
because mother refused to sign a release.
Here, in the period between the temporary detention and disposition, the
social worker made reasonable efforts to provide necessary services to mother
and tried to determine what further services might benefit her. Substantial evidence supports the juvenile
court’s finding that reasonable efforts were made.
II
Due Process
Mother further argues that the
failure to provide reasonable services, including a referral to Alta for
evaluation, constituted a denial of due process because she did not have a fair
opportunity to show whether she was capable of properly caring for the minors
before services were bypassed.
As we have discussed, the services
offered prior to the disposition hearing are preliminary in nature. If the issues to be resolved are clear cut,
such services may result in enough progress by the parent to prevent
removal. The issues in this case were
not so clear.
Reunification services are a
benefit, not a constitutional right. (
J. v. Superior Court (2001) 26 Cal.4th 735, 750; In re Aryanna C. (2005)
132 Cal.App.4th 1234, 1242.) The
contours of the benefit offered are highly dependent on the nature of the facts
available to the social worker. Just as
it is not every case that preliminary services can resolve, it is not in every
case that formal reunification services result in return of the minor. In some circumstances, this may be apparent
at the outset of the case and bypass of services is justified. (§ 361.5,
subd. (b).)
Mother provides no authority to
support the proposition that a parent must be placed in the best possible
circumstances to benefit from services prior to disposition. Mother relies on authority dealing with
services provided during reunification.
(Amanda
H. v. Superior Court (2008) 166 Cal.App.4th 1340 [12-month review
hearing]; T
202 Cal.App.4th 1415 [12-month review hearing]; In re Victoria M. (1989)
207 Cal.App.3d 1317 [termination case dealing with services post
disposition]; I
3 Cal.App.4th 404 [same]; I
4th 1774 [same]; I
[12-month review hearing]; Guardianship
of Christian G. (2011) 195 Cal.App.4th 581 [probate guardianship
discussing failure to refer to CPS].)
These cases are inapposite to the factual setting of this appeal
involving the bypass provision of section 361.5, subdivision (b)(2).
Further, the bypass provision of s
withstood previous constitutional challenges.
(In
re Christina A. (1989) 213 Cal.App.3d 1073, 1078-1080.) Mother had notice that the bypass provision
was being considered and had a full contested hearing on the issue with expert
evidence as required. As the juvenile
court stated, the two psychological evaluations agreed mother had “notable
deficiencies†that would compromise her ability to manage the responsibilities
of caring for the minors on her own and her limitations were too profound to
allow her to reunify within the statutory time period. The court noted there was other evidence
presented that supported this conclusion, including descriptions of the
mother’s time spent with the minors and observations of her attempts to care
for them. Mother has not demonstrated
how either the statute or the preliminary dependency proceedings violated her
due process rights
DISPOSITION
The judgment is
affirmed.
HOCH , J.
We concur:
BLEASE , Acting P.
J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Section 361.5,
subdivision (b), provides:
“Reunification services need not be provided to a parent or guardian
described in this subdivision when the court finds, by clear and convincing
evidence, any of the following: . .
. (2) That the parent or guardian is
suffering from a mental disability that is described in Chapter 2 (commencing
with Section 7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.â€
