Isabel O. v. Super. Ct.

Filed 7/22/08 Isabel O. v. Super. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this writ proceeding, the mother of a dependent child seeks review of the juvenile courts findings and orders terminating reunification services and setting a permanency planning hearing. Because substantial evidence supports the juvenile courts determinations, we deny the mothers petition for an extraordinary writ.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Isabel O. is the mother of Deborah M., who was born in February 2001.

Dependency Proceedings

Petition

On January 30, 2007, a petition was filed by the Santa Clara County Department of Family and Childrens Services (Department). The petition was brought pursuant to section 300 of the Welfare and Institutions Code. (Further unspecified statutory references are to that code.) The petition alleged that Deborah was at risk of harm due to the mothers unstable mental health. According to the petitions factual allegations: The mother is religiously pre-occupied and is exhibiting paranoid behavior such as attempting to cleanse her home of anything that could be considered idolatrous including the bed that she and Deborah used, the kitchen table and chairs, Deborahs pink backpack, and all the food in the home except for one sack of potatoes, given to her by a church member. Due to her mothers erratic, unpredictable patterns of behavior, the petition alleged, Deborah exhibits signs of markedly parentified behavior and suffers from nightmares, which cause her to awaken in the night screaming inconsolably. Based on these and other factual allegations, the petition asserted that the mother had failed to protect Deborah and that the child was suffering or was at risk of suffering serious emotional damage. ( 300, subds. (b), (c).)

Detention

On January 31, 2007, the juvenile court ordered the child detained. The court authorized the girls placement with her maternal aunt, Rosalinda C. It also ordered the Department to refer the mother for a psychological assessment.

Jurisdiction/Disposition

In March 2007, the Department filed a jurisdiction/disposition report. According to the report, relatives stated that the mothers mental health had been spiraling downward for 12 to 18 months. During that period, family members were encouraging the mother to seek psychiatric help for her paranoia and her delusions. But the mother remained adamant in her refusal to seek help. The report described the social workers efforts since the case was initiated, including attempts to refer the mother for counseling in January and February 2007. It also described the social workers hope that the mother will put aside her anger, her fear, and her pride and seek the help that is very likely available to her though a program of psychotropic medication and counseling.

The recommended case plan included (1) a psychological evaluation; (2) counseling or psychotherapy for the mother; and (3) monthly visits with a psychiatrist of her choice.

At the combined jurisdiction and disposition hearing held March 26, 2007, the mother submitted on the petition.

As recommended by the Department, the court ordered a psychological evaluation for the mother, counseling, and psychiatric treatment.

Review Hearings

In May 2007, the Department filed an interim review report. As stated in the report, the mother was referred for a psychological evaluation, an evaluator had been appointed (a psychiatrist), and the Department had arranged transportation. The mother was also referred for counseling, and had attended one session of intake, but [had] not followed through with referral. Concerning the referral for counseling, an addendum report stated that the social worker continued to remind [the mother] to reschedule each time we have spoken. The addendum report also stated that the mother is anxious to have her psychological evaluation occur because she believes that this will bring her child home sooner. She does not believe that she has mental health issues of concern. The social worker nevertheless remained convinced of the need for assessment, citing the mothers recent behavior and her continued adamant refusal to seek psychiatric help.

In July 2007, the Department submitted the completed psychological assessment of the mother. According to the psychiatrist who evaluated her, the mother exhibited delusional thinking of a religious kind, and clearly acted in an inappropriate and hazardous manner in response to her ideas. He diagnosed the mother as suffering from a schizophrenic disorder, paranoid type, and a paranoid personality disorder. The psychiatrist stated: Safe return of the child should be dependent on responsible behavior and life planning by the mother. It should also be dependent on the mothers ability to temper her delusional thinking, and to develop insight and appropriate judgment regarding such thinking. Unfortunately, I am skeptical whether this is a realistic objective.

Six-Month Review

In connection with the six-month review hearing, the Department submitted a status review report. Concerning the counseling component of her case plan, the mother started counseling in February 2007. In March 2007, the social worker arranged funding so that the mother could engage counseling services without having to pay for them. In May 2007, the mother was given another referral as she had stopped attending counseling.

As for psychiatric treatment, in August 2007, the Department provided the mother with numbers to the Mental Health Call Center and Mental Health service team that [she] could call to attempt to find a psychiatrist. She reports that she can not afford a therapist. She was encouraged to go ahead and get on the waiting list through County Mental Health and to see if she can find a Psychiatrist who will provide their service at a sliding scale rate based on her income. She was also provided information on getting her psychotropic medications free from the manufacturer. The social worker spoke to staff at Valley Medical Center (Ability to Pay Program) on 9/14/07, and they concurred that the client should get on waiting list through County Mental Health Call Center.

The Department recommended an additional six months of reunification services for the mother. As the social worker explained in an August 2007 letter to the mother: This will allow another six months for you to work on the psychiatric component of your case plan.

In December 2007, the juvenile court conducted the contested six-month review hearing. The court characterized the mothers progress with her case plan goals as fair. It ordered six months of additional reunification services.

12-Month Review

In a report prepared for the 12-month review hearing, filed in May 2008, the Department recommended that the court terminate family reunification services and set a permanency planning hearing under section 366.26.

According to the report, the mother disagreed with the diagnosis reflected in the psychological evaluation and does not appear to believe that she has mental health issues. By contrast, the therapist that the mother had seen in 2007, Lena Nitikin, LCSW, MD, reported that the mother sees all the issues discussed in therapy from the viewpoint of her psychosis. The therapist further expressed that [the mothers] refusal to take meds limited the effectiveness of therapy.

As for the psychiatric component of the case plan, the Departments report recounted the social workers earlier provision of telephone numbers to the Mental Health Call Center and Mental Health service team that [the mother] could attempt to call to find a psychiatrist. It also summarized the social workers efforts to obtain information about financial assistance for psychiatric services, including her earlier call to Valley Medical Center, her check[] on Family Preservation funding for Psychiatric care and her advice to the mother that she could also apply for Social Security Disability as a means to qualify for Medi-Cal, which would open further psychiatric treatment options. The social worker discussed this more than once with [the mother]; however, she is unwilling to apply for Social Security Disability and does not accept her diagnosis.

In May 2008, the juvenile court conducted the contested 12-month review hearing. In terms of documentary evidence, the court received the Departments most recent reports into evidence, and it took judicial notice of the entire case file. As for testimonial evidence, the court heard testimony from the social worker and from the mother. The court then entertained closing statements before rendering its decision from the bench. After discussing some of the evidence, the court stated: I think reasonable efforts have been made and I do not think that offering two and a half months more of services would allow this child to be returned to [the mothers] care. I am going to adopt the findings and recommendations that the Department has put forth today, and I will terminate reunification services and set the matter for a [section 366.26] hearing to occur in 120 days.

Petition for Extraordinary Writ

The mother gave timely notice of her intent to file a writ petition. In support of her bid for extraordinary relief, the mother alleges that the court erred in determining that she was offered reasonable reunification services.

The Department opposes the writ petition. In its view, substantial evidence supports the juvenile courts finding that the mother was provided with reasonable reunification services.

DISCUSSION

To provide the proper framework for assessing the issues presented here, we begin by setting forth the principles that guide our review.

Legal Principles

Appellate Review

A petition for extraordinary writ may be brought in the Court of Appeal to challenge a juvenile courts decision to terminate reunification services and to set a permanency planning hearing. (See Cal. Rules of Court, rules 8.450, 8.452, 5.600; see generally, Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 577-578 [discussing former rule 39.1B].)

The writ procedure, as outlined in the statute and implemented in the rules, enables a party to obtain expeditious review of the juvenile courts findings and orders in setting a permanency planning hearing pursuant to section 366.26. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) The statute encourages reviewing courts to consider such petitions on their merits. (Id. at p. 807; see 366.26, subd. (l)(4)(B).) We shall do so here.

Whether appellate review is sought in a writ proceeding or in an appeal, we apply the general rule that the trial courts judgment or order is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) 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; see also, e.g., In re Alvin R. (2003) 108 Cal.App.4th 962, 971; Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) When we review juvenile court determinations that must be predicated on clear and convincing evidence, we bear in mind the heightened burden of proof, but we nevertheless employ the deferential substantial evidence test. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Alvin R., at p. 971; see Katie V. v. Superior Court, at p. 598 [heightened clear and convincing evidence standard of proof is required for reasonable-services findings at the six- and 12-month review hearings, but not at the 18-month review hearing].)

Reunification

Until permanency planning, reunification of parent and child is the laws paramount concern. (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546; accord, Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 596; see 361.5, subd. (a); 366.21, subd. (g)(1).) When the state removes children from their parents, it is obliged to make reasonable efforts to reunify the family. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Generally speaking, parents of dependent children are entitled to reunification services aimed at assisting the parent in overcoming the problems that led to the childs removal. (Judith P., at p. 546; see In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242-1243.)

Reunification plans should be specific and internally consistent, with the overall goal of resumption of a family relationship. (In re Luke L. (1996) 44 Cal.App.4th 670, 678.) They must be tailored to the particular situation. (Ibid.)

However, as this court long ago observed: Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220 [although reunification plan was adequate, father showed little interest in complying with its requirements]; see also, e.g., Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 970 [father showed little willingness to utilize [reunification] services].)

Analysis

Having reviewed the record in this case, we conclude that substantial evidence supports the juvenile courts explicit determination that the Department provided reasonable reunification services to the mother to help her address the psychiatric issues that led to Deborahs removal. Substantial evidence also supports the courts implicit finding that the mother refused to avail herself of those services.

Reasonable Services

The Departments status review report, filed in May 2008, described the Departments efforts to assist the mother with the psychiatric component of her case plan. Those efforts included: (1) providing the mother with telephone numbers to the County Mental Health Call Center and Mental Health service team by mail on 8/1/07; (2) contacting the Countys Mental Health Call Center about services; (3) contacting staff at Valley Medical Center about financial assistance; (4) check[ing] on Family Preservation funding for Psychiatric care; (5) advising the mother about Social Security Disability as a possible way to open further psychiatric treatment options; and (6) sending letters to the mother on 4/30/07, 5/2/07, 7/5/07, 8/1/07, 8/3/07, 9/27/07, 10/26/07, 1/28/08, and 2/27/08 regarding her case plan and case issues/concerns.

In testimony at the 12-month review hearing, the mother acknowledged that the social worker had given me some agencies and she said to go and call them. However, the mother testified, she could not afford to pay for those services. In addition, there was a long waiting list. But as reflected in the Departments December 2007 report, the mother was encouraged to go ahead and get on the waiting list through County Mental Health and to see if she can find a Psychiatrist who will provide their service at a sliding scale rate based on her income. She was also provided information on getting her psychotropic medications free from the manufacturer.

The record in this case thus contains substantial evidence to support the juvenile courts finding that the Department provided reasonable reunification services. Moreover, the Departments efforts must be assessed in the context of the mothers unwillingness to accept psychiatric treatment, described below.

Refusal to Seek Psychiatric Treatment

As the social worker testified at the 12-month review hearing in May 2008, the mothers case plan included the requirement to see a psychiatrist and she has not been willing to do that. According to the social workers testimony, weve met a few times in person. Weve talked on the phone. Each time when I bring up the issue of seeing a psychiatrist and psychotropic meds she really has difficulty discussing that area. She gets pretty angry in response to usually she will maintain shes done everything on her case plan, but I basically will remind her that that is the core area, the main concern in regard to Deborahs safety. The social worker spoke to the mother about the need and requirement to see a psychiatrist on multiple occasions. But the mother expressed that she doesnt feel there is a need for psychiatrist.

In her own testimony at the 12-month review hearing, the mother did not dispute the evidence that she was unwilling to undergo psychiatric treatment. Rather, she considered it unnecessary. The mother testified that her current therapist, Jim Cardellino, Ph.D., doesnt think that I need to go in that direction. Thus, as the social worker testified, the mothers mind set had not changed in regard to seeing a psychiatrist.

The objective and focus of reunification services is to remedy those problems which led to the removal of the children. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464; accord, Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 598.) In this case, Deborahs removal was prompted by the mothers unstable mental health. The court ordered assessment, counseling, and psychiatric treatment to address that problem. But the mother refused to comply with the psychiatric component of her plan. (See Katie V. v. Superior Court, at p. 599 [the mothers real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered ].)

Considering both the Departments efforts to assist the mother and the mothers unwillingness to seek psychiatric treatment, the record supports the juvenile courts decision to terminate family reunification services.

DISPOSITION

The petition for extraordinary writ is denied.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Elia, Acting P.J.

________________________________

Mihara, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com