In re Viola B.
Filed
4/3/13 In re Viola B. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re VIOLA B., Person Coming
Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
A.G.,
Defendant and
Appellant.
F065202
(Super.
Ct. No. JD125374)
APPEAL from a judgment of the
Superior Court of
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Theresa A.
Goldner, County Counsel, and Jennifer E. Feige, Deputy, for Plaintiff and
Respondent.
-ooOoo-
A. G.
(mother) appeals the disposition order removing the minor, Viola B., from her
custody under Welfare and Institutions Code section 361, subdivision (c)(1),
361.5, subdivision (b)(2). After
concluding the disposition order is supported by substantial evidence and it
was not an abuse of discretion to deny reunification services, we affirm the
disposition order.
FACTUAL AND PROCEDURAL
BACKGROUND
The minor, who was born prematurely
in June 2006, has spent a large part of her young life hospitalized due to
complex medical conditions, including cardiofacial-cutaneous syndrome,
chronic lung disease, mental retardation, cerebral palsy, and gastroesophageal
reflux disease. She depends on a
tracheostomy and ventilator to breathe and a gastrostomy tube (G-tube) to
receive nutrition. Sadly, the minor’s
genetic condition is non-recoverable; children with her condition generally die
young from respiratory infection or organ failure.
In November 2010, the
(the department) took the minor into protective custody. At the time, the minor was hospitalized at
Children’s Hospital Los Angeles (CHLA).
Hospital staff reported that the minor’s parents, mother and Jimmy B.
(father), were interfering with the minor’s medical care, including by
loosening her tracheostomy ties (trach ties), which can be life
threatening. After she was discharged
from CHLA, the minor was placed at All Saints Subacute Facility (All Saints) in
Los Angeles and has resided there ever since.
When necessary, she is transferred to CHLA for treatment.
The minor’s parents are both
developmentally disabled. They have been
diagnosed with mild mental retardation and are considered high
functioning. Mother also has epilepsy
and Sturge-Weber Syndrome.
name="_ftnref3" title="">[3] Father has a severe speech impediment. The parents reside together in Bakersfield
and visit the minor in Los Angeles on a regular basis.
Although the parents have
demonstrated deep love and concern for the minor and have been able to care for
her at home for brief periods of time, they have a long history of being
uncooperative with medical care providers and resistant to following
instructions on how to provide adequate medical care for the minor. According to Susan McArthur, a public health
nurse who has worked with the family for an extended period of time, the
parents do not hesitate to take the minor to the hospital when necessary. But once the minor is admitted, conflicts
occur between the parents and hospital personnel. The parents will not cooperate with medical
professionals at the minor’s bedside, nor will they take instruction from the
physicians dictating her plan of care.
The parents are “adamant that they are the only ones who can really
provide care for [the minor].â€
The parents’ behavior has resulted
in a number of medical care providers declining to work with the family,
including Children’s Hospital of Central California (CHCC), where the minor has
spent substantial amounts of time since birth.
CHCC has a special clinic for children with complex medical problems like
the minor. However, the minor will no
longer be admitted to CHCC as a patient except on an emergency basis. Dr. Horsepool, a CHCC doctor, reported
that treating the minor entailed a “constant battle†with the parents, who
would do things their own way despite medical orders. Dr. Horsepool noted the parents were
inflexible in their thinking and had difficulty following “changing
directions.†They also had a “false beliefâ€
the minor would get better.
Dr. Horsepool believed a subacute facility was the best placement
for the minor. Based on his experience
with the parents, he predicted that, if the minor were returned home, the
parents would continue to bring the minor to the hospital over and over again
and, when she eventually died, would blame whoever was caring for her at the
time.
Another health care provider that
will no longer work with the parents is Maxim Healthcare Services (Maxim), an
agency in Bakersfield which provided in-home nursing services to the minor
between December 2006 and May 2007.
Kathleen Schoen, Maxim’s director of nursing, reported that the parents
did not appear to understand the extent of the minor’s medical problems but
seemed to have “a stero[]typical view of baby care.†The parents would disregard specific
instructions from the minor’s primary physician, including not to take the
minor out in wet and cold weather due to her severe respiratory problems. In addition, although the minor was prone to
fevers, the parents would set their thermostat at 75 to 80 degrees and bundle
the minor in blankets and put her in bed with them underneath their sheets and
blankets. When the night nursing staff
would take her out of bed to cool off, “sure enough [the minor] would be
running a fever.†The parents would
become very upset at the nursing staff about this and did not seem to
understand that their actions were causing the minor to have a fever.
Schoen reported that Maxim finally
discharged the family after a number of incidents in which father lost his
temper and made threatening movements towards nursing staff. Schoen confirmed that her agency was no
longer willing to serve the family.
However, they might consider it if father “was out of the home and not
in the picture at all.†According to
Schoen, although there were other nursing agencies in Kern County, Maxim was
the only agency that provided in-home pediatric nursing.
On November 4, 2010, the
department filed a dependency petition on the minor’s behalf, alleging the
minor had suffered, or there was a substantial risk she would suffer, serious
physical harm or illness as a result of her parents’ willful or negligent
failure to provide her with adequate medical treatment, and the parents’
inability to provide regular care for her due to their
(§ 300, subd. (b)).
According to the allegations in the
petition, the minor was hospitalized at CHLA in October 2010, where the medical
staff instructed mother on the need for tightness of the minor’s trach
ties. Mother disregarded these
instructions and loosened the minor’s trach ties on four different occasions
and argued with medical staff when they retightened the trach ties. On October 23, 2010, mother loosened the
minor’s trach ties to the point the tube fell out, resulting in a
decline in the minor’s oxygen saturation.
Because mother’s interference with the minor’s medical care could
potentially result in her death, CHLA restricted mother to supervised
visits. The petition further alleged
that father “became volatile and assaultive towards the hospital social worker
by ‘blocking’ her from leaving a room.â€
Both parents also threatened to take the minor and leave against medical
advice.
On November 5, 2010, the
juvenile court ordered the minor detained and set a jurisdiction hearing. The parents were permitted supervised visits
with the minor every other week for two hours.
The jurisdiction hearing was continued several times. In the meantime, the department filed a
detailed jurisdiction report, documenting the evidence supporting the
allegations in the dependency petition, and two supplemental reports,
documenting the parents’ continuing lack of cooperation with medical staff.
On December 22, 2010, CHLA
contacted the social worker and informed her that the minor needed surgery to
revise her G-tube because it was leaking, but mother was refusing to sign a
consent form for the surgery. When the
social worker followed up with a phone call to mother, mother stated she would
not consent to surgery until she could see the minor. While they were talking, the social worker
could hear father yelling in the background.
Mother expressed the opinion that All Saints had “messed up†the G-tube
and this was why the minor needed surgery.
The social worker arranged for a supervised visit so that mother could
sign the consent form.
After the
surgery on December 23, 2010, Dr. Garcia, the minor’s main doctor at
CHLA, came in and told the parents the minor had done well and could be
discharged to All Saints in a few days.
The doctor also talked about why the surgery was done. The parents indicated they had no questions
for the doctor at that time. However,
after Dr. Garcia left the room, mother criticized what had been done and
said a different type of tube should have been used. When the social worker asked mother why she
did not talk to the doctor about it, mother said she did not want to get in
trouble by arguing with the doctor.
After the minor was released from
CHLA and transferred back to All Saints on January 3, 2011, mother refused
to sign the admissions packet required by All Saints based on her belief that
the facility had caused the minor to become ill and require surgery. The minor subsequently received additional
treatments at CHLA. On January 21,
2011, All Saints contacted the social worker and reported that it now had four
admissions packets the parents needed to sign, explaining the parents had to
sign a new admissions packet every time the minor was released from the
hospital.
On January 27, 2011, while the
parents were attending a supervised visit with the minor, All Saints’ vice
president of operations informed the social worker that, unless the parents signed
the admissions packets, the facility would be forced to discharge the minor
that day. When the social worker and All Saints staff tried to explain the
situation to the parents, the parents continued to refuse to sign the paperwork
and started raising their voices. The
social worker then started calling the attorneys involved in the dependency
proceeding to apprise them of the situation.
The same day, an ex parte hearing was held and the juvenile court
ordered the minor to remain at All Saints.
Prior to the jurisdiction hearing,
the juvenile court ordered the parents to undergo a psychological evaluation by
Dr. Allison Little to determine the necessity of appointing a guardian
each parent was in need of a guardian ad
litem and made the necessary appointments.
Following the contested
jurisdiction hearing on March 22, 2011, the juvenile court found all the counts
and specific allegations in the dependency petition to be true. The court set a disposition hearing and
reappointed Dr. Little to evaluate the parents on the question of whether
they could benefit from reunification services.
At the department’s request, the juvenile court continued the
disposition hearing again and appointed Dr. Eugene Couture to evaluate the
parents.
After numerous continuances, the
disposition hearing commenced over a year after the jurisdiction hearing. In the interim, the department filed seven
reports. The original disposition
report, prepared in late June 2011, recommended removing the minor from the
parents’ custody, adopting a permanent plan of long-term foster care, and
continuing the minor’s placement at All Saints.
Based on the results of the two psychological evaluations, the report
also recommended denying reunification services to the parents. Both Dr. Little and Dr. Couture
concluded that the parents were incapable of utilizing reunification services
due to the parents’ developmental disabilities.
Dr. Little evaluated the parents
on March 29, 2011. She reported that,
while interviewing both parents, father would often raise his voice, stand up
in a “threatening†manner, and argue about the case. Although his arguments were largely
unintelligible due to his speech impediment, he clearly was angry and had
difficulty controlling his emotions.
During these episodes, mother frequently told father to “be quiet,â€
“shut up†and “sit down.â€
During the evaluation,
Dr. Little asked mother if she would allow outside agencies to support her
in the medical care of the minor. Mother
said it would be okay, but she would not want them to help the whole day. When Dr. Little asked mother what she
would do if she disagreed with recommendations from the minor’s primary care
physician and supportive medical staff, mother responded:
“I know about my baby.
They expected her to live only two years, but I got her to live four
years. But now she’s fighting for her
life in Los Angeles. I think she’s not
happy with all this stuff that’s going on.
They can’t take care of her.
Probably not giving her the right medicine. They should already know the medicines. She’s dying slowly down there. It’s different down there. It was better before. She’s always asleep now to keep her
calm. They can’t keep her calm when
she’s awake.â€
When Dr. Little attempted to pursue her last question
further, mother “became somewhat defensive and was unable or unwilling to
discuss the issue further.â€
Dr. Little reported that
mother obtained an IQ score of 69, which fell in the range of mild mental
retardation. When asked about psychotic
symptoms, mother described seeing and hearing ghosts at the hospital. Mother’s records also indicated that she
sometimes presented as suspicious to paranoid regarding others’ intentions. Based on these factors, Dr. Little could
not rule out a possible diagnosis of psychotic disorder, not otherwise
specified. However, she did not have
enough information to offer the diagnosis with certainty.
Dr. Little concluded the
parents were incapable of utilizing reunification services based on their
developmental disabilities, as well as their failure to understand and
cooperate with medical staff recommendations in the minor’s best
interests. Dr. Little
observed:
“[The parents] have been afforded numerous educational
opportunities in order to participate in the medical care of the minor. However, even with this education the parents
continue to disregard medical staff recommendations, treatment plans, and
pursue their own beliefs regarding the needed medical care of the minor,
potentially endangering their daughter’s life.
These episodes have not thwarted the opinion that they know best, even
to the point that the mother has engaged in behaviors that placed the minor at
threat of death, as well as both parents threatening to take the minor out of
the hospital against medical advice.
Based on the parents’ interactions with supportive staff in both the
hospital setting as well as in-home supports, their behavior ha[s] led to
agencies refusing to provide medical attention to the minor.â€
A similar
conclusion was reached by Dr. Couture, who evaluated the parents on
May 23, 2011. He observed the
parents were “clearly functioning in the range consistent with Mild Mental
Retardation.†He described mother as
“very suspicious and very perseverative†and explained “[p]erseverative
behaviors are those behaviors which are repetitive, where the individual is not
able to learn from feedback.â€
Dr. Couture noted that mother “does seem to get stuck on issues and
has a great deal of difficulty in changing,†indicating “she is not able to use
outside information to make adequate, independent decisions.â€
Based on
his review of the records, Dr. Couture observed that, when the minor “was
younger and somewhat less involved,†the parents were able to learn some of the
skills necessary to maintain the minor in their home and provide care that was
“adequate for her complex medical situation.â€
However, Dr. Couture concluded,
“I think the physicians, in
this case, have come to the correct conclusion that the parents simply do not
have the cognitive ability to understand what their daughter needs and when she
needs it …. It is not acceptable to
argue with the nursing staff. It is not
acceptable to refuse services because you are suspicious. They must cooperate with the process of
medical care and medical administration in order for their daughter’s care to
be complete. I think, given their
overall situation, they present an unacceptable level of risk to [the minor].
“This
is a sad situation. It is my opinion
that these parents could be good parents for a child without all of these
extreme medical demands presented by [the minor]. However, in this situation, the demands are
simply too high for them to cope. They
have had repeated opportunities to learn to do better and they have not done
so. It is, therefore, my opinion that
they are mentally retarded and that this mental disability renders both parents
incapable of utilizing family reunification services in this case.â€
During the year leading up to the
disposition hearing, the parents complied with their initial case plans by
completing parenting and neglect classes.
After initially resisting, father also enrolled in and completed a
recommended anger management program.
Supplemental reports filed near the
time of the disposition hearing reflected that mother continued to express
disagreement with the opinions of medical professionals regarding the minor’s
care and father continued to have angry outbursts.
During a supervised visit on
February 9, 2012, the minor had three seizures, but mother did not believe the
first two were seizures despite being so informed by the nurse. The
social worker observed that, during the first seizure, the minor’s body began
to stiffen, she turned red to the point of almost looking purple, and her eyes
moved rapidly. The nurse administered
medication rectally at five minutes.
Within a few minutes, the minor began to loosen up and her color began
to look better. Mother whispered to the
social worker that it was not a seizure but a “breathing fit.†When the social worker pointed out that the
nurse had called it a seizure, mother repeated it was not a seizure and said
that giving the minor medicine would make her become immune to it as it was not
a seizure. The nurse then informed
mother that the doctor had called it a seizure.
The social worker told mother that if the doctor called it a seizure, it
was a seizure. Mother whispered to the
social worker that the minor also had “tantrums†and they looked just like
seizures.
A little while later during the same visit, the minor had a second
seizure. No medicine was administered
because the seizure did not last long.
Mother told the social worker that the minor had a “tantrum†not a
seizure. Approximately 15 minutes later,
the minor stiffened up, became red, and her eyes started moving rapidly. This time, mother said the minor was having a
seizure and the social worker called the nurse.
The social worker pointed out to mother that the minor did the same
thing all three times. Mother replied
that she could tell the difference between a “tantrum,†a “breathing fit,†and
a seizure.
On March 22, 2012, All
Saints informed the social worker that the minor was having difficulty
breathing and was being transferred to CHLA that day. On March 29, 2012, the social worker
informed the parents that the minor needed surgery to replace her G-tube with a
gastrojejunostomy tube (J-tube or GJ-tube).
The parents were unwilling to consent to the surgery and mother
expressed the belief that removal of the G-tube would kill the minor. When the social worker asked mother where she
got that information, mother stated that one of the hospitals had told her, but
she could not remember which one.
On
March 30, 2012, Edward Rivera, a CHLA social worker, spoke with the
parents regarding the medical team’s surgical recommendation to change the
minor’s G-tube to a GJ-tube. Rivera
reported that after he explained the procedure, the pros and cons, and that it
would benefit the minor, mother was unable to reiterate what he had told
her.
On
April 2, 2012, mother called the department social worker and asked if she
could skip the next scheduled visit with the minor, who was then hospitalized
at CHLA. Mother explained she did not
want to be there because she had an argument with the CHLA social worker. The department social worker encouraged
mother to visit the minor and said she would call the hospital and request that
only she and the parents be present during the visit. Mother stated she objected to the surgery and
wanted to help the minor by not making her go through another surgery. Mother explained she had been told that the
minor’s current G-tube would last a long time, and she felt that the hospital
wanted to argue with her. The social
worker told mother the doctors were just trying to explain why the surgery was
needed. Mother replied that it was not
needed and she did not want to argue.
On April 5, 2012, the social worker met
with the parents and Dr. Elizabeth LaGuardia, one of the pulmonologists
who had been treating the minor at CHLA. The social worker told
Dr. LaGuardia that the parents were now willing to sign the consent forms
for the GJ-tube surgery. When the doctor
asked whether the parents had any questions, mother hesitated and then said,
“not really.†The social worker told
Dr. LaGuardia that mother had voiced concerns and that another hospital
had told her that removal of the G-tube would hurt the minor. Dr. LaGuardia explained to the parents
that, during the procedure, they would use the same area but would put a tube a
little farther in the stomach into the beginning of the intestine to help the
minor with reflux, aspiration, and lung infections. Although there were risks with any surgery,
the procedure could help improve the minor’s health and lead to fewer
illnesses.
After Dr. La Guardia explained the surgery, mother said her
attorney advised her to sign the consent form or else it would look bad on the
parents and the minor would not be returned to them. The social worker asked mother if she would
consent to the surgery even if the minor was not in protective custody. Mother said that she would. When asked if she understood what the surgery
was for, mother said she did but was concerned.
During the parents’ conversation
with the social worker on April 5, 2012, father became upset and complained
about his attorney. Father said that if
the minor was not returned to them at court, he was going to “hit the social workersâ€
and “attorneys.†Because of his speech
impediment it was difficult to understand what he was saying, but the social
worker heard him say something with the word “dead†in it. While father was making these statements,
mother told him to “shut up.â€
Father became agitated again during
a supervised visit at All Saints on April 19, 2012. When the parents arrived, mother became very
concerned and informed the staff she was scared because the minor was turning
blue. They came in to check on the minor
but could not find anything wrong.
Father began to get upset and yelled, “you are not doing anything for my
baby. She is dying and turning blue.†Mother asked the staff to suction the minor’s
trach and they did. When a staff member
went to throw the mucous away, father grabbed it and placed it in his
pocket. The staff member pulled the
social worker aside and said he was afraid father was going to hit him because
father had thrown chairs in the past.
The parents were then taken into a
separate room to meet with several representatives of All Saints, including the
vice president of operations. The vice
president of operations told the parents their behavior was unacceptable and,
if they acted out again, the facility would seek a restraining order to prevent
them from visiting the minor. After the
meeting, the rest of the visit went better.
The parents calmed down and were compliant. However, the vice president of operations
told the social worker that she was concerned about the possibility the minor
would be returned to the parents. Based
on her observations, she did not feel the parents had the ability to maintain a
quality level of care for the minor.
After conducting updated
the parents on April 24, 2012, Dr. Little reported that it continued to be
her professional opinion that the parents were unable to utilize reunification
services. Dr. Little noted that
“even with education offered by the medical treatment team, the mother has
continued to demonstrate her own opinion as it relates to the medical best
interest of her daughter.â€
Dr. Little observed that the parents continued to express the
belief that the surgery to replace the minor’s G-tube was not necessary,
although they had consented on the advice of their attorney. Dr. Little also cited the incident where
mother persisted in the belief that the minor was not having seizures despite
medical advice to the contrary.
Dr. Little opined “[t]his incident reflects mother’s inability to
recognize the severity of their daughter’s fragile health and symptoms
associated with her medical diagnoses.â€
Dr. Little concluded that “once again it is my opinion that the
mother and [father] are incapable of utilizing reunification services at this
time based upon their developmental disability, as well as failure to
understand and cooperate with medical staff recommendations in the best
interest of their minor daughter.â€
The
contested disposition hearing finally commenced on May 30, 2012. After the court heard testimony on May 30,
there was another delay and the hearing finally resumed on June 20 and
concluded on June 22, 2012.
On the first day of the hearing, a
letter prepared by Dr. LaGuardia
was introduced and the parties stipulated it would be admitted in lieu of
testimony. The letter presented a
brief overview of the minimum requirements to care for the minor at home,
including, among others things, a “[h]ome skilled nursing agency with
experience/ability to care for pediatric patients on home mechanical
ventilation (24 hours/day of home skilled nursing care is recommended).â€
Mother also called
Dr. Christine Deeths as an expert witness.
Dr. Deeths, a family medical doctor in Bakersfield, testified she
had experience working with children with severe medical issues and helped
coordinate their care with multiple specialists. Dr. Deeths examined the minor at All
Saints and opined the minor could be maintained at home if all the proper
services were put into place. The doctor
also met with the parents and talked to them about the minor’s condition. She found they both understood the minor’s
condition and were able to articulate “knowledge of the fundamental care to
maintain the child’s needs to survive, the ventilator, the tracheostomy and the
G-tube.â€
Dr. Deeths testified that the
minor’s medical records reflected that the minor, who was then almost six years
old, had originally been expected to live only between two and two and a half years of age. The records also reflected that, on more than
one occasion, the parents had successfully completed training at CHCC and had
been able to care for the minor for periods of 24 to 48 hours without any
concerns. According to Dr. Deeths,
the protocols the parents had to meet for the minor to be discharged from CHCC
were the same as the requirements set forth in Dr. LaGuardia’s
letter.
Dr. Deeths testified she was
familiar with the resources available in Bakersfield and opined that there was
nothing being done for the minor at All Saints that could not be done for her
locally. Dr. Deeths also described
some of the negative impressions she had formed of All Saints during the 20 to
30 minutes she spent with the minor. She
also testified generally about the benefits of living in a home setting versus
a hospital setting.
Dr. Deeths
was later recalled and testified that, based on a conversation she had with
Dr. LaGuardia, she did not interpret Dr. LaGuardia’s letter to mean
that “there needs to be a nurse in the home 24 hours a day, seven days a
week.†Rather, Dr. Deeths
understood it “to mean that there needs to be an availability of a nurse by
telephone in the event of a problem or emergency 24 hours a day.â€
Dr. Deeths acknowledged that
in Bakersfield, Maxim was the only company that provided in-home skilled
nursing to pediatric patients, but she believed there were other ways that need
could be met, including using a nursing agency from another city or utilizing
the services of private nurses. The
minor might also be eligible for home hospice care, as new legislation had
recently been passed allowing pediatric patients already on home ventilators to
continue to use ventilators even when under hospice care.
Mother also
called a number of witnesses who provided positive testimony regarding the
parents’ ability to care for the minor at home.
Carolyn Tellanian, a clinical
social worker at CHCC, testified that she had known the parents for
approximately three years and thought they “did an exceptional job†caring for
the minor. Tellanian explained
that, before the parents were allowed to take the minor home from the hospital,
they each had to provide 48-hour care for the minor with the nurses standing by
to provide help if needed. When the
nurses and respiratory therapist signed off to allow the parents to take the
minor home, it meant they were very confident with the parents’ care of the
minor.
Tellanian confirmed that currently the minor could only be admitted to
CHCC in the case of an emergency and could not be a regular patient at the
clinic. Although father tended to raise his voice when he was
excited and had made the nurses uncomfortable, Tellanian never thought he was a
physical threat to anyone. She
observed the parents were very attentive and affectionate towards the
minor. It never appeared to her that
their disabilities prevented them from learning how to care for her. Rather, Tellanian thought the parents
“learned everything … exceptionally well.â€
Father had an “impressive†understanding of the medical equipment and
the parents “worked as a team very well.â€
Danny Lack, a respiratory
therapist, testified he worked for a company that provided ventilators for
in-home use. His primary
responsibilities included training families on how to care for patients and
manage their equipment. When Lack met
the parents in November 2011, they were able to articulate most of the settings
on a ventilator they had used with the minor a year earlier. He was “surprised by the amount of
information that they retained.†Despite
the parents’ developmental disabilities, Lack felt he would be able to train
them how to use the two types of ventilators currently used in home-care
settings.
During his
meeting with the parents, Lack brought trach ties and a tube similar to the
ones they would use on the minor and asked them to place them on one
another. The parents demonstrated they
could properly attach the trach ties.
Lack also brought in a ventilator and showed the parents how to use
it. After speaking about other topics
for a while, Lack asked the parents to demonstrate what he had taught them
about the ventilator. The parents
retained the information and repeated it to him.
On
cross-examination, Lack testified that his agency did not provide in-home
nursing, but he had worked with three pediatric in-home agencies in
Bakersfield, including Maxim, Around the Clock, and Interim.
Mother also
called Dr. Little, who confirmed that it was not her opinion “the parents
were incapable of learning anything.â€
However, Dr. Little testified, “I feel like collectively, with
their development disability, their unwillingness at times to follow medical
directives, their behaviors together make them, in my opinion, not able to
utilize family reunification services at this time.†Dr. Little observed that despite
completing the components of their case plans, the parents’ behavior since was
such that it was still her opinion they were not capable of benefiting from
reunification services. Although she
thought the parents could participate in and benefit from classes, it appeared
they were unwilling to change their behavior.
In her
testimony, department social worker, Dina Tucker, acknowledged that, although
mother was argumentative with medical staff, she had not done anything to interfere
with the medical equipment or treatment of the minor for the past year and a
half. Mother was also capable of putting
the trach tube back in and was actually the one who put it back in on the
occasion at issue when it fell out because mother loosened the trach ties.
Tucker
further testified that the parents had consistently visited the minor until
recently. The parents’ explanation for
why they had not attended recent visits with the minor was that there were
always concerns at the visits and they did not want to argue with the staff and
upset the minor.
Tucker was concerned the parents
were not going to be able to get the supportive services they needed based upon
their history of noncompliance with doctors and nursing agencies. When she researched providers of in-home
nursing services, the only two providers she found were Maxim and Interim;
Around the Clock did not come up.
Interim did not provide pediatric nursing services and Maxim was not
willing to take the minor unless the father was out of the house. The department was unable to locate a
subacute facility in Kern County where the minor could be closer to the
parents. Although there was one in
Delano, it was not available.
Department
social worker, Colleen Saenz, testified that the parents had been offered a
choice to visit the minor once a week for an hour, or every other week for two
hours. They chose the latter because it
was too expensive to drive down to Los Angeles every week. Without traffic, the trip took about an hour
and 40 minutes. During visits, the
parents showed appropriate concern towards the minor and were affectionate with
her.
When the parents were not at All
Saints, someone spent a minimum of two to three hours with the minor each
day. There was a teacher who came in and
did things like talk and sing to her.
Someone also picked her up each day.
Saenz never observed the minor react differently to the parents than to
anyone else. The minor had a positive
response to touch and both the parents and the nurses were able to calm her
down by rubbing her hair.
Saenz, who was present during the
incident when mother expressed the opinion that the minor was not having
seizures, confirmed that mother did not try to interfere with what the medical
staff was doing but just whispered her opinions in the social worker’s
ear.
With respect to the parents’
initial resistance to surgery to replace the minor’s G-tube with a GJ-tube,
Saenz testified that they expressed a legitimate concern based on their report
of a previous experience in which the minor had an infection following a
surgery. Saenz’s understanding was that
the new surgery would help the minor from getting ill so often. Because of the minor’s chronic lung disease,
she was always having infections and the placement of a GJ-tube would alleviate
some of the mucous and aspirations that were getting down into her lungs. Saenz testified the parents remained “on the
fence†about the surgery but consented after being advised to do so by mother’s
attorney.
Saenz further
testified she had investigated other out-of-home care options for the minor,
including the possibility of placing her with a foster family living closer to
the parents. However, the fee for a
foster family was between $6,000 and $9,000 per month, which was not covered
under Medi-Cal or Social Security, and the parents said they could not afford
that. Other than the unavailable
facility in Delano, there was a subacute facility in Lancaster, but Saenz had
heard from people at CHLA and All Saints that it was not a good facility.
Mother and
the minor’s maternal grandfather also presented testimony describing positively
the care routines the parents followed in the past when caring for the minor at
home, as well as their appropriate responses in emergency situations.
After listening to the arguments of
counsel, the juvenile court ruled, in relevant part, as follows:
“The
two medical experts or psychological experts in this case, Doctors Little and
Couture, have both concluded that the parents are not capable—or incapable of
utilizing reunification services based on their developmental disability as
well as their failure to understand and cooperate with medical staff
recommendations in the best interests of their daughter. That’s, in essence, what they have concluded.
“The evidence presented to this
court regarding this child’s prognosis was that apparently at the outset, it
was estimated—or the prognosis was that she might survive to two and a half
years of age. And now a week and a day
from today, she’ll be turning six years old.
So, certainly, those types of educated conclusions aren’t always
predictive. Certainly, they are what we
have to rely on to the extent that they can be used for making plans.
“What I’ve read in these
reports and was testified to as well is that the parents’ behavior at the
children’s hospital in Madera .… []
…was such that they could only utilize their services on an emergency
basis. Children’s Hospital Los Angeles
has similar concerns. A local provider
of services ceased providing those services because of the behavior of at least
one of the parents, [father]. And the
indication from the testimony given by Mr. Lack was that [if father] were not
in the home, his understanding was that they might provide those services.
“That is consistent with what
the—what we’ve heard as far as—and reviewed as far as the evidence is concerned
regarding these parents’ ability to benefit from reunification services—or to
be able to utilize those services is the better way of putting it.
“There is a schism between the
parents and those they have to rely on for providing services for their
child. Most recently, according to the
mother’s testimony, this has resulted in them not visiting this child. I can’t say that the evidence from Doctors Little
and Couture is not competent evidence, that the parents are unlikely to be able
to adequately care for this child. I
believe the parents should still be able to have an ongoing relationship with
this child. But the court cannot agree
with counsel’s argument that family maintenance services should be provided and
that reunification services should be extended .… [¶]
“I think there is clear and
convincing evidence at this point that supports the recommendations that have
been proffered by the Department of Human Services, and the court is going to
follow those recommendations. [¶] … [¶]
“The court has read and
considered the social worker’s reports and supplemental reports …, as well as
the other evidence presented during these past four hearing dates, and makes
the following findings and orders based on that information: [¶] … [¶]
“There is clear and convincing
evidence that there is a substantial danger to the physical health, safety,
protection or physical or emotional well-being of the child or there would be
if the physical custody of the child is not removed from the parents or
guardians, and there are no reasonable means to protect the child’s physical
health without removal of the child from the physical custody of the
parents .… [¶] … [¶]
“Family reunification services
are not to be provided to the parents … as there is clear and convincing
evidence the child comes within Section 361.5 subdivision (b)(2) of the Welfare
& Institutions Code.
“The aforesaid are suffering a
mental disability as described in Chapter 2 commencing with Section 2820 of
Part 4, Division 12 of the Family Code which renders the aforesaid incapable of
utilizing services and competent evidence from mental health professionals that
establishes that even with services, aforesaid are unlikely to be capable of
adequately caring for the child within twelve months.â€
disposition order.
A child may properly be removed
from the physical custody of her
parents if the court determines, based upon clear and convincing evidence, that
“[t]here is or would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parents’ …
physical custody.†(§ 361, subd.
(c)(1).) However, even when the standard
of proof below is clear and convincing, we cannot weigh the evidence on
appeal. We must uphold the juvenile
court’s order if there is substantial evidence to support it. (In re
Basilio T. (1992) 4 Cal.App.4th 155, 170.)
The substantial evidence test is
well known: “In juvenile cases, as in
other areas of the law, the power of an appellate court asked to assess the
sufficiency of the evidence 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. All conflicts must be resolved in favor of
the respondent and all legitimate inferences indulged in to uphold the verdict,
if possible. Where there is more than
one inference which can reasonably be deduced from the facts, the appellate
court is without power to substitute its deductions for those of the trier of
fact.†(In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Before addressing mother’s
sufficiency of the evidence challenge, we briefly address her claim that the
juvenile court failed to state a factual basis for its section 361, subdivision
(c)(1) findings but instead “focused exclusively†on the department’s
recommendation to deny reunification services under 361.2, subdivision (b)(2),
based on the psychological evaluations, which concluded the parents were unable
to utilize reunification services. The
record belies mother’s claim. In
addition to the psychological evaluations, the court specifically referred to
testimony presented at the disposition hearing and information contained in the
reports, which supported the court’s finding of “a schism between the parents
and those they have to rely on for providing services for their child†and the
court’s conclusion that “the parents are unlikely to be able to adequately care
for this child.â€
Although the juvenile court did
appear to rely heavily on the psychologists’ evaluations in ordering the minor
removed from mother’s custody, this was not improper. The experts did not limit their opinions to
the question of the parents’ ability to utilize reunification services but also
addressed the parents’ ability to provide adequate care for the minor and
cooperate with medical staff in the minor’s best in the minor’s best interests.
Mother’s reliance on
Cal.App.4th 1415 (Tracy J.) is
misplaced. That case teaches that,
“‘Harm to the child cannot be presumed from the mere
fact of [the developmental disability] of the parent .… The proper basis for a ruling is expert
testimony giving specific examples of
the manner in which the mother’s behavior has and will adversely affect the
child or jeopardize the child’s safety.’
[Citation.]†(
Here, the psychologists submitted detailed reports with specific
examples of how mother’s past and current behaviors placed the minor’s health
and safety at risk. There is no
indication either expert presumed harm to the minor based on the mere fact of
mother’s developmental disability or that the juvenile court ever adopted such
a position.
We likewise see no support in the
record for mother’s claim that the court violated her equal protection rights
by basing its removal order solely on her mild mental retardation instead of
considering the relevant factors under section 361, subdivision (c)(1).
Focusing on
the evidence favorable to her, mother argues the disposition order removing the
minor from her custody is not supported by substantial evidence. She argues the minor could be properly
protected if returned to the parents’ home under court supervision. Her argument assumes she and father would be
able to obtain all the services necessary to maintain the minor safely at
home. She does not acknowledge the
parents’ history of being dropped by medical caregivers and facilities due to
behaviors the parents continued to exhibit up to the time of the disposition
hearing, including frequently disagreeing with the opinions of the doctors and
nurses charged with the minor’s care.
Thus, even assuming the parents were able to find agencies willing to
work with them, the record supports the inference that a conflict or schism
between the parents and medical care providers would almost certainly arise
again, jeopardizing the minor’s health and safety.
Evidence of mother’s persistence in
expressing inaccurate and inflexible opinions regarding the minor’s condition
and medical needs indicates mother cannot presently be trusted to follow
medical advice. Just a few months before
the disposition hearing, mother stubbornly insisted that two seizures suffered
by the minor were not seizures but merely “a breathing fit†and a
“tantrum.†Mother would not alter her
opinion when confronted with the contrary opinion of the physician and the fact
the minor’s symptoms were identical to the ones the minor presented during an
event mother acknowledged was a seizure.
Mother also expressed a troubling belief that the medication the nurse
administered to control the first seizure was unnecessary and would result in
the minor becoming immune to it.
Although mother testified at the disposition hearing that she would have
administered the medication to the minor if the event had occurred while she
was caring for the minor at home, the record contains ample evidence from which
the court could reasonably infer mother was simply saying what she thought the
court wanted to hear and would follow her own beliefs if given the chance.
Based on the record before us, we
agree with Dr. Couture’s opinion that mother presents an “unacceptable
level of risk†to the health and safety of the minor and conclude that
substantial evidence supports the juvenile court’s disposition order removing
the minor from her care.
not an abuse of discretion.
The
juvenile court denied the parents reunification services pursuant to section
361.5, subdivision (b)(2), which provides:
“Reunification services need not be provided to a parent … when the
court finds, by clear and convincing evidence .… [¶] … [¶]
That the parent … is suffering from a mental disability … and that
renders him or her incapable of utilizing those services.†We review the denial of reunification
services for abuse of discretion. (
1166, 1179.)
No abuse of discretion appears. The original psychological evaluations and
the updated evaluation conducted shortly before the disposition hearing
consistently concluded that mother was suffering from a developmental
disability and that her developmental disability rendered her incapable of
utilizing reunification services. Those
conclusions were well founded. As just
discussed, throughout the proceedings, mother persisted in her beliefs about
the minor’s complex medical conditions, even when those beliefs conflicted with
those of the experienced medical professionals caring for the minor. Thus, mother continued to exhibit the
perseverative behavior Dr. Couture originally observed, indicating her
inability “to use outside information to make adequate, independent
decisions.†Dr. Little’s updated
evaluation also observed that, despite mother’s participation in parenting and
neglect classes and efforts by medical staff to educate her, mother “continued
to demonstrate her own opinion as it relates to the medical best interest of her
daughter.†In support of her opinion,
Dr. Little cited recent incidents, including the incident when mother
insisted the minor was not having seizures despite medical advice to the
contrary. The psychologist observed that
this incident reflected “mother’s inability to recognize the severity of their
daughter’s fragile health and symptoms associated with her medical
diagnoses.†Again, mother’s reliance on
psychologists’ opinions here were well supported with specific examples of
behaviors demonstrating mother’s inability to utilize reunification
services. The court properly denied
reunification services.
The disposition order is affirmed.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
WISEMAN, J.
_____________________
PEÑA, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare
and Institutions Code unless otherwise indicated.
name="_ftn2" title="">[2] The record contains the following definition of this
condition: “Cardiofacial-Cutaneous (CFC)
syndrome is a rare genetic condition that typically affects the heart
(cardio-), facial features (facio-) and skin (cutaneous). It is seen in equal frequency in males and
females and across all ethnic groups.
Children with CFC syndrome may have certain features that suggest the
diagnosis, such as relatively large head size, down-slanting eyes, sparse
eyebrows, curly hair, areas of thickened or scaly skin, and small stature. Most will also have a heart defect.â€
