In re S.O.
Filed 4/24/13 In re S.O. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 S.O., a Person Coming Under the Juvenile Court Law.
2d Juv. No. B242948
(Super. Ct.
No. J068357)
(Ventura
County)
VENTURA COUNTY HUMAN SERVICES AGENCY,
Plaintiff and
Respondent,
v.
AMANDA O.,
Defendant and
Appellant.
Amanda O. (mother) suffers
from a severe mental disorder. Due to manifestations of that illness, her
daughter S.O. was removed from her custody shortly after the child's
birth. Two months after
mother began a new drug treatment and responded positively. At the six-month review hearing, however,
mother did not oppose the termination of services and instead sought to have
the child placed with the maternal grandmother.
After the juvenile court denied the request and scheduled a
Inst. Code, § 366.26),
name="_ftnref1" title="">[1] mother filed a modification petition seeking
reinstatement of reunification services (§ 388) on the ground that her
mental condition had improved to the point she could now comply with her case
plan. The court denied the petition and
proceeded to terminate mother's parental rights and select adoption as S.O.'s
permanent plan. Mother now appeals.
Although we are not
unsympathetic to mother's position, it cannot be said the court abused its
discretion in concluding that the indisputably dramatic change in mother's
mental condition was simply not enough to establish that further reunification
services would be in S.O.'s best interests.
Because the child's best interests became paramount once services were
terminated and mother did not oppose the termination of those services, there
is no basis for us to disturb the court's decision. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Mother was diagnosed
with schizophrenia at the age of 17, and was subsequently diagnosed with
schizoaffective and bipolar disorders.
Shortly after S.O.'s birth in June 2011, mother began behaving
erratically and barricaded herself in her hospital room with S.O. Although hospital staff were able to remove
S.O. for tests the following morning, mother's condition worsened after the
child was returned to her. After a
30-minute standoff with the police, mother was restrained while S.O. was taken
into custody.
On June 23, 2011,
County Human Services Agency (HSA) filed a section 300 petition alleging
that mother's mental illness impaired her ability to care for S.O. and created
a significant risk of future abuse or neglect.
detained and set a jurisdiction and disposition hearing for July 19, 2011. Mother was prohibited from having further
contact with S.O. until her condition had stabilized and she was able to comply
with her treatment.
On July 3, 2011, mother was voluntarily admitted for
psychiatric treatment. She was then
placed on a 72-hour hold and certified for an additional 14 days of treatment
(§§ 5150, 5250). On July 11, 2011, she was discharged and referred to
her regular psychiatrist, Dr. Jantje Groot, for further treatment.
Mother was interviewed
by an HSA social worker three days after her discharge. Mother had difficulty understanding the
questions and frequently did not respond.
Her parents reported she was psychiatrically hospitalized on two prior
occasions and was stable from 2009 until three to four months prior to S.O.'s
birth. Dr. Groot indicated that mother
was not taking all of her medications and was minimizing her psychotic
symptoms, which included hearing voices.
Mother had her first
supervised visit with S.O. on July 18, 2011.
Mother's parents and a public health nurse were also present. During the visit, the social worker observed
that mother required "lots of coaching" from the nurse and did not
appear to know how to hold, feed, or bond with the child.
A contested jurisdiction
and disposition hearing was set for September 8, 2011. When the matter was called, mother announced
she had abandoned her contest and waived her right to a trial. The court sustained the section 300 petition,
ordered that mother be provided reunification services, and set a six-month
review hearing for January 3, 2012. The
court adopted HSA's recommended case plan, which included a
counseling, psychotropic medication, parenting education, and supervised
visitation. Mother and her parents
were given a list of service providers and each aspect of the case plan was
discussed.
On October 4, 2011,
mother missed her scheduled psychological evaluation. Mother's new social worker subsequently
discussed the case plan with her and arranged to have the maternal grandmother
take her to her rescheduled evaluation, which was conducted by Dr. Christina
Griffin on October 17, 2011. In her
report, Dr. Griffin opined that mother could not presently care for her own
needs and did not have the capacity to adequately parent S.O.
After mother underwent
the psychological evaluation, she missed several appointments with her social
worker. During an unannounced visit in
December 2011, mother appeared confused and said she had not been performing
her case plan because her mother lost it and she could not remember what it
said. Dr. Groot told the social worker
that mother had been attending her monthly appointments, although she was
sometimes off by two or three days. The
doctor also reported that mother had been doing better since beginning her new
medication regimen a month earlier. That
medication was administered by an injection given every four weeks.
At the six-month review
hearing, HSA recommended that reunification services be terminated and the
matter be set for a permanency planning hearing. The social worker reported that mother
consistently needed help caring for S.O. during their visits and had failed to
sufficiently participate in her case plan.
Mother contested HSA's
recommendation and a hearing was set for February 1, 2012. When the matter was called, however, mother
abandoned her opposition to the termination of services and urged the court to
grant the maternal grandmother's request for relative placement of S.O.
pursuant to section 361.3. The court
denied the request and proceeded to terminate reunification services and set
the matter for a section 366.26 hearing.
In its notice of hearing, HSA stated it was recommending termination of
mother's parental rights and implementation of a plan of adoption. A contested hearing was subsequently set for
June 14, 2012.
Prior to the section
366.26 hearing, mother filed a section 388 petition seeking reinstatement of
reunification services. At the combined
hearing, Dr. Groot testified that mother "has had tremendous improvement
in her symptoms" over the prior six months. Over the course of that period, her
hallucinations had steadily disappeared and she "basically [got] her
personality back." The positive
changes began after mother's medication was altered following her
hospitalization in July 2011. The doctor
began by giving mother injections of Risperdal Consta every two weeks. In November 2011, the doctor began giving
mother injections of Invega Sustenna every four weeks combined with doses of
medications. When the doctor last
saw mother in April 2012, her mental condition had stabilized and she could
"be essentially self-sustaining and run her life like any other
person." The doctor acknowledged,
however, that "it remains to be seen whether" she could actually do
so. There also remained a
"substantial risk" that mother would not continue to comply with her
medication requirements. She would
presumably have to continue having the injections or a similar medication for
the rest of her life. If she stopped,
there was a 90 percent chance she would suffer mental decompensation within six
months.
Mother's social worker
testified that she had seen many positive changes in mother since reunification
services had been terminated. Although
mother's ability to care for S.O. during visits had improved, one or both of
her parents were always there to assist her and she still "usually needs
to be prompted to feed the child or change the child or . . . play with
[her]." The social worker also
believed that mother "still requires a lot of help from her own parents to
care for her own needs" and noted that she "hasn't shown any
independence or any initiative to ask for more visits[.]" Although S.O. now recognized mother, the two
did not have a bond. The child
"doesn't seem to gravitate toward" mother during their visits and
"[a]s soon as she gets home from the visits, she reaches for her foster
mother."
Mother testified on her
own behalf. Ever since she started
having her monthly injections, her mood had changed and she was more
aware. She never considered
discontinuing her medication, but there are negative side effects. She graduated from a parenting class and
believed that S.O. "[knew] more or less who I am." She was also seeing a therapist once a
week.
At the conclusion of
testimony, counsel for S.O. joined HSA's counsel in asking the court to deny
mother's section 388 petition, terminate her parental rights, and select
adoption as the child's permanent plan.
The court thereafter entered an order to that effect.
DISCUSSION
Mother contends the
court abused its discretion in denying her section 388 modification petition
because she demonstrated that circumstances had changed and that
further
reunification services would be in S.O.'s best interests. We conclude otherwise. Section 388 authorizes a juvenile court to modify a prior
order if a parent shows a change of circumstances and establishes that
modification is in the best interests of the child. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
The court has broad discretion in resolving a petition to modify a prior
order, and its determination will not be disturbed on appeal unless an abuse of
discretion is clearly shown. (
"'[U]p until the
time the section 366.26 hearing is set, the parent's interest in reunification
is given precedence over a child's need for stability and permanency.' [Citation.]
'Once reunification services are ordered terminated, the focus shifts to
the needs of the child for permanency and stability.' [Citation.]
'The burden thereafter is on the parent to prove changed circumstances
pursuant to section 388 to revive the reunification issue. . . .'" (In re
Zacharia D. (1993) 6 Cal.4th 435, 447; In
re Vincent M. (2008) 161 Cal.App.4th 943, 955.) Where, as here, the court's ruling is against
the party who has the burden of proof, it is practically impossible for the
party to prevail on appeal by arguing the evidence compels a ruling in her
favor. Unless the trial court makes
specific findings of fact in favor of the moving party, we must presume the
court found that her evidence lacks sufficient weight and credibility to carry
the burden of proof. (
Cal.App.4th 233, 241.) "[W]hen a
court has made a custody determination in a dependency proceeding, '"a
reviewing court will not disturb that decision unless the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations]."' [Citations.] . . .'
.
. . When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the
trial court."'
[Citations.]" (
pp. 318-319.)
The court did not abuse
its discretion in finding that mother had failed to meet her burden of
establishing not only that circumstances had changed, but also that ordering
further reunification services would be in S.O.'s best interests. In making the latter determination, courts
generally consider the seriousness of the problem leading to
the
dependency, the strength of the relative bonds between the child and her
parents and caretakers, and the degree to which the problem can be easily
removed as well as the current success of the parent in correcting the
problem. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Mother suffers from a serious mental illness
that, when left untreated, causes hallucinations and other psychotic
symptoms. A manifestation of those
symptoms shortly after S.O.'s birth presented a direct and immediate danger to
the child's safety. Although mother had
made tremendous progress in addressing the problem at the time of the hearing,
that progress was relatively recent and a significant possibility of relapse
still remained. She also still had to be
prompted to feed, change, or play with S.O. during her visits with the child,
and had not demonstrated any initiate to visit with the child more often.
Moreover, no substantial
bond exists between mother and S.O. such that it could be said further
reunification services would be in the child's best interests. In arguing to the contrary, mother offers
that she had shown devotion to S.O. in a number of ways and "definitively
took advantage of her visitation time to bond." The issue is not, however, whether mother has
expressed her affection for S.O. While
we do not question mother's commitment to bonding with S.O., it unfortunately
appears that her efforts had yet to be successful when her section 388 petition
was heard. Although S.O. enjoyed their
visits, she is very secure in her long-term prospective adoptive placement and
reaches out for her prospective adoptive mother whenever she returns from her
visits with mother. In light of this
undisputed evidence, it cannot be said that offering mother additional
reunification services would be in S.O.'s best interests.
In support of her claim,
mother asserts that "this case cries out for the same rational[e] as
applied in" In re Elizabeth R. (1995)
35 Cal.App.4th 1774 (Elizabeth R.). Elizabeth
R. is inapposite. The error in that
case was the trial court's decision to terminate reunification services in the
first instance. The issue, as framed by
the Court of Appeal, was "whether the juvenile court was compelled by law
to terminate reunification services and order a Welfare and Institutions Code
section 366.26 hearing when a parent,
although
hospitalized for treatment of her mental illness for most of the reunification
period, had substantially complied with the reunification plan." (Elizabeth
R., at p. 1787.) In answering this
question in the negative, the court essentially relied on the principle that
any reunification services offered to a parent suffering from mental illness
must be reasonable services. (
Here, mother did not
challenge the termination of services, either in the trial court or by
petitioning for extraordinary writ relief. She thus cannot be heard to complain that
reasonable services were not provided. (
248, 255-256.) Once reunification
services were terminated, the burden shifted from mother's interest in
reunification to S.O.'s interest in permanency and stability. (In re
Stephanie M., supra, 7 Cal.4th at p. 317.)
As the court in Elizabeth R. effectively
recognized, the mother in that case would have been unable to demonstrate that
further attempts at reunification were warranted once this burden had
shifted. (Elizabeth R., supra, 35 Cal.App.4th at pp. 1797-1798.) Mother is in no better position.
We appreciate that
mother's mental illness may have rendered it difficult for her to understand
the need to comply with the objectives of her case plan. We also acknowledge that proper reunification
plans for parents suffering from mental illness should be designed to
accommodate such concerns. (
p. 1790.) Any deficiency in mother's
plan was, however, a matter to be addressed at the dispositional hearing. Here, mother never claimed that reasonable
services were not offered, nor did she seek appellate review of the order
terminating services. For purposes of
this appeal, the only issue is whether the court abused its discretion in
finding that mother had failed to prove circumstances had changed such that it
would be in S.O.'s best interests to offer additional services. As we have explained, no abuse of discretion
>
has
been shown.
The order denying
mother's modification petition and terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Ellen
Gay Conroy, Judge
Superior
Court County of Ventura
______________________________
Kate M. Chandler, under
appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County
Counsel, Oliver G. Hess, Assistant County Counsel, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory references are to the
Welfare and Institutions Code.
S.O.'s father was unknown. Although
mother subsequently identified him, he did not appear in the proceedings and is
not a party to this appeal.
