Superior Court
Filed 6/18/13 Mariah A. v. Superior Court CA5
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opinion has not been certified for publication or ordered published for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
MARIAH
A.,
Petitioner,
v.
THE SUPERIOR COURT OF
KERN COUNTY,
Respondent;
KERN COUNTY DEPARTMENT
OF HUMAN SERVICES,
Real Party in Interest.
F066889
(Super. Ct. No. JD127368-00)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Mariah A.,
in pro. per., and J. Anthony Bryan, for Petitioner.
No
appearance for Respondent.
Theresa A.
Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Mariah A., petitioner, in propria
persona, filed an extraordinary writ petition (Cal. Rules of Court, rule 8.452)
years old). Petitioner seeks relief from the juvenile court’s order issued at
the status review hearing terminating petitioner’s reunification services and
setting a Welfare and Institutions Code section 366.26 hearing for Gabriella.
FACTS AND PROCEEDINGS
The
(department) filed a petition pursuant to section 300 on behalf of Gabriella
and her half-siblings on September 19, 2011, after they were taken into
2011. A first amended petition was filed
on October 21, 2011, alleging that petitioner’s husband, Michael A., suffered
from mental illness, was suicidal, and possessed a gun in violation of an order
from Florida forbidding him to possess firearms. Michael A. physically, verbally, and
emotionally abused one of the older children, sending that child on one
occasion to the emergency room and causing the child to physically harm
himself. Michael A. threw a phone at
petitioner. Petitioner failed to protect
her child from Michael A.’s abuse.
Michael A. possessed weapons and in 2009, petitioner left Michael A.
after he shredded her belongings with a knife.
Petitioner also suffered from mental health issues but was not receiving
mental health services. These issues and
others placed Gabriella at risk for substantial serious physical harm or
illness.
A second amended petition was filed
on January 31, 2012, alleging that Gabriella was at substantial risk of
petitioner’s mental illness or developmental disability. Petitioner had a long history of mental
health issues, was diagnosed with Post Traumatic Stress Disorder, and was not
currently receiving mental health treatment.
Petitioner also relied on Michael A. to parent her children and he had
unaddressed mental health issues, was verbally abusive to Gabriella’s siblings,
and did not parent the children effectively.
Gabriella was also at risk due to Michael A.’s mental illness or
developmental disability.
Prior to the jurisdiction hearing,
the parents were both evaluated by two psychologists. Dr. Thomas Middleton concluded that neither
parent would benefit from reunification services due to their underlying mental
illness issues. Dr. Eugene Couture
agreed that Michael A. would not benefit from reunification services due to his
mental health issues, but concluded that petitioner would benefit from such
services.
Dr. Middleton noted that if
services were to be provided, petitioner should receive counseling and should
be seen by a psychiatrist for medication management of her symptoms. Dr. Middleton’s testing of petitioner
indicated dependent personality traits with borderline and schizoid
features. Dr. Middleton further
diagnosed petitioner as having a depressive disorder, not otherwise
specified. Dr. Couture diagnosed petitioner with attention
deficit hyperactivity disorder. Dr.
Couture recommended close supervision of petitioner by her social worker.
At the conclusion of the
jurisdiction hearing on February 24, 2012, the juvenile court found that
petitioner relied on Michael A. to parent her children and that both petitioner
and Michael A. had unaddressed mental health issues. The court found the allegations of the second
amended petition to be true. At the
conclusion of the disposition hearing on July 5, 2012, the juvenile court
denied reunification services to Michael A.
The court found clear and convincing evidence that the children faced a
substantial danger to their safety in the physical custody of Michael A. and
petitioner, adjudged the children dependents of the court, and removed them
from the physical custody of Michael A. and petitioner.
The court granted petitioner family
reunification services. Petitioner was
ordered to participate in counseling for parent training and a 26-week child
protection program. Petitioner was to have
individual counseling to address self-esteem, codependency, domestic violence
as a victim, and to receive mental health services. Petitioner was also to comply with medication
recommendations and prescriptions by a mental health professional. Michael A. was granted weekly visitation with
Gabriella.
Petitioner was advised of her right
to appeal the juvenile court’s rulings.
Petitioner appealed the juvenile court’s rulings on the single ground
that notices given pursuant to the Indian Child Welfare Act (ICWA) were
deficient as to the deceased father of the four older children. On February 1, 2013, in In re Richard O., case No. F065415, this court found no merit to
petitioner’s challenge to the sufficiency of ICWA notice and affirmed the
juvenile court’s rulings at the jurisdiction and disposition hearings.
The six-month review hearing was
originally calendared for January 2, 2013.
Due to numerous delays throughout the history of the case, a final
review hearing was conducted on March 14 and 15, 2013. The social worker’s report prepared in
December 2012 stated that petitioner had completed 25 of 26 sessions in her
26-week Family Matters class. On July 6,
2012, petitioner completed a combined parenting/neglect class. Petitioner completed a 10-week anger
management class in September 2012 and in October 2012, enrolled in a 12-week
domestic violence class and was participating regularly. Petitioner was scheduled to finish the
domestic violence class on December 19, 2012.
At the end of December 2012, a
social worker reported that petitioner “indicated that she has been receiving
counseling services to address the issues of self-esteem and co-dependency from
Dr. Farber, M.D.†A progress report was
unavailable at that time.
The assessment of petitioner’s
appointment with Dr. Jagdeep Garewal, dated October 31, 2012, is attached to
the December 2012 social worker’s report.
Dr. Garewal states under the category of “psychoeducation†that he
discussed with petitioner epidemiology, pathophysiology, course and treatment,
diagnosis management, treatment options, prognosis, medication effects and side
effects, goals of treatment, risk factors, and access to services. Under the category of prognosis, Dr. Garewal
indicates he discussed the illness and outcomes with and without treatment. Under the category of medication treatment options,
Dr. Garewal discussed with petitioner long-term treatment with psychotropic
medications, the need for monitoring regularly, as well as treatment
choices. Dr. Garewal notes that
petitioner was to be given sequential medication trials for treatment of
symptoms. Initially, Dr. Garewal
prescribed an antianxiety medication from the benzodiazepine class of
sedatives.
On October 31, 2012, petitioner
told her social worker that she was planning to move out of Michael A.’s home
by December 1, 2012. Petitioner said she
would need a restraining order. The
social worker informed her that there was a no contact order already in place
for Michael A. and the four older children.
On November 26, 2012, petitioner played a recording of an argument
between her and Michael A. The social
worker described the argument, which occurred in a moving car, as a tirade by
Michael A. Petitioner reported that
during the argument, Michael A. broke petitioner’s cell phone into two pieces
and threw it out of the car.
Petitioner informed the social
worker on November 30, 2012, that she had moved out of Michael A.’s residence
and was separated from him. The social
worker was concerned about petitioner’s ability to protect her children due to
her ongoing relationship with Michael A.
On December 4, 2012, petitioner told the social worker it would be
difficult for her to remain apart from Michael A. and petitioner minimized
Michael A.’s aggressive behavior.
Although petitioner was completing
the services offered to her, social workers remained concerned because visits
with the children were chaotic and petitioner did not have the ability to
redirect the children’s behaviors. The
chaotic nature of the visits showed an inability by petitioner to parent
adequately and unsupervised visits were not initiated by the department. Petitioner was referred to a guided
visitation program.
Although petitioner reported to
social workers that she was no longer living with Michael A., Michael A. told
social workers in late December 2012 and early January 2013 that he was living
with petitioner.
title="">[4]
Petitioner
spoke to social workers on February 7, 2013, and reported that Michael A.
caught her, became forceful, threatened to hurt her, and took her out of
California in mid-January 2013. On January
18, 2013, petitioner sent a friend a text message that stated Michael A. had
lost his mind because petitioner told him what she said to federal
investigators and he threatened to kill petitioner. Petitioner told her friend that Michael A.
had kidnapped her and taken her to Arizona.
Petitioner implored the friend to make a missing persons report because
Michael A. was hurting her. The friend
contacted the Kern County Sheriff’s Department to report the incident. The Kern County Sheriff’s Department learned
that a federal search warrant related to the child pornography investigation
had been executed on Michael A. on January 14, 2013.
The Kern County Sheriff’s
Department upgraded petitioner’s status from missing person to kidnapping
victim on January 20, 2013. Michael A.’s
adult daughter contacted deputies and informed them that Michael A. and
petitioner were at a campsite in Quartzsite, Arizona. Michael A. was arrested by Arizona
authorities but later released because of lack of evidence. Petitioner said that she packed up the
campsite on January 21, 2013, and drove to Blythe, California. She stayed the evening in Blythe waiting for
Michael A. to meet her there but he never arrived. Petitioner drove back to the campsite in
Quartzsite the morning of January 22, 2013, and found Michael A.’s body near a
creek.
In its
report for the review hearing, the department noted that petitioner had made
minimal progress toward alleviating or mitigating the causes for Gabriella’s
placement outside the home. The
department stated that returning Gabriella to petitioner’s custody would create
a risk of detriment to the child’s safety and protection, or to her physical or
emotional well-being. The department
recommended termination of family reunification services to petitioner.
The review
hearing was conducted on March 14 and 15, 2013.
The social worker assigned to petitioner’s case, Veronica Ruiz-Cox,
testified that she supervised visits between petitioner and her children at the
Child Visitation Center (CVC). After a
visit on August 1, 2012, they were kicked out of the CVC due to the children’s
behavior and petitioner’s inability to control the children during
visitation. Thereafter, visits were held
at the department’s offices. Visits were
attempted at a local park, but one of the older children would not listen and
tried to run away. In January 2013,
visits were resumed at CVC as long as a social worker was present. There were few visits in January 2013 because
petitioner was not in the county.
The
juvenile court initially noted that petitioner had maintained a relationship
with Michael A. even though she was not supposed to do so. The court also observed petitioner had in the
past testified that she was no longer in a relationship with Michael A. and
this was not true. The court noted that
petitioner’s credibility as a witness was low.
The court found that although petitioner had completed the programs
required under her reunification plan, she had not shown any improvement in her
ability to parent the children during her visits with them. The court noted that recent reports indicated
petitioner still could not control the children and visits were chaotic. The court denied a section 388 petition filed
by petitioner for the return of her children.
The court
found that the hearing was a 6- and 12-month review hearing pursuant to section
366.21, subdivisions (e) and (f). The
juvenile court terminated further reunification services to petitioner with
regard to Gabriella. The court noted
that petitioner had made minimally acceptable efforts to avail herself of
services and that return of Gabriella to petitioner’s custody would create a
substantial risk of detriment to Gabriella’s safety, protection, and her
physical or emotional well-being. The court
found that the department had made reasonable efforts to assist petitioner and
provided her with reasonable services.
The court terminated petitioner’s reunification services for Gabriella. The case was set for a section 366.26 hearing
to determine a long-term plan for Gabriella.
This petition ensued.
DISCUSSION
Petitioner seeks reversal of the juvenile court’s
order terminating her reunification services.
Petitioner claims she finished all of the services pursuant to her
reunification plan and that a primary reason for Gabriella’s dependency, her
abusive relationship with Michael A., is no longer a basis for continued
jurisdiction of the juvenile court because Michael A. is deceased.
Although petitioner was represented by counsel at
prepared the extraordinary writ petition herself. As we read the petition, it raises two
issues. The first is a challenge to the
juvenile court’s jurisdiction. The
second, liberally construed, constitutes a challenge to the sufficiency of the
evidence to sustain the juvenile court’s findings and orders.
belated challenge to the juvenile court’s jurisdiction and disposition orders
made in 2012. Petitioner filed an appeal
from those proceedings raising only the issue of the juvenile court’s findings
that ICWA was inapplicable. Petitioner
did not challenge the juvenile court’s findings that the allegations of the
petition were true. Permitting a parent
to raise issues going to the validity of a final appealable order would
undermine the concerns of finality and reasonable expedition, including the
predominant interest of child and state.
(Sara M. v.
1018; In re Janee J. (1999) 74
Cal.App.4th 198, 206-207.) This issue
has been waived. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1157.) The juvenile court maintained jurisdiction in
this action.
Petitioner
is also challenging the sufficiency of the evidence to support the juvenile
court’s findings concerning whether she should continue to receive
reunification services because she finished the required services under her
plan and Michael A. is deceased. We
review the juvenile court’s finding that reasonable services were provided to a
parent for sufficiency of the evidence.
(Robert L.
Court (1996) 45 Cal.App.4th 619, 625-626.)
If there is substantial evidence to support the juvenile court’s
findings, our duty ends and the juvenile court’s orders must not be
disturbed. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472 (
Our
review of the juvenile court’s finding for sufficiency of the evidence requires
that all reasonable inferences be given to support the findings and orders of
the juvenile court. The record must be
viewed in the light most favorable to those orders. The juvenile court’s findings may not be
disturbed if supported by substantial evidence.
Issues of fact and credibility are questions of fact for the juvenile
court to decide, not this court. (
1218, 1226-1227 (Tanis H.).) In reviewing the reasonableness of services
provided to a parent, we again view the evidence in the light most favorable to
the respondent. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
The
evidence before the juvenile court was that petitioner remained in what she
herself recognized as an abusive relationship until Michael A. passed away in
late January 2013. The juvenile court
could reasonably conclude from the evidence before it that petitioner continued
to maintain a tolerance for domestic abuse and failed to implement what she had
been taught in her domestic violence training.
Petitioner also had great difficulty controlling her children during
visitations, which were described by social workers as chaotic. We note, however, that petitioner completed
all of her required classes and regularly visited Gabriella and the other
children.
We
are troubled in this case with the paucity of information in the record
regarding the department’s compliance with mental health services, a critical
component of petitioner’s reunification plan.
Although they disagreed as to whether petitioner would benefit from reunification
services, Drs. Middleton and Couture both diagnosed petitioner with mental
health problems. Dr. Couture recommended
close monitoring by the department of how petitioner received psychological and
psychiatric services. Dr. Middleton
specifically recommended that petitioner receive psychological and psychiatric
treatment, if the court ordered that she receive reunification services.
At
the conclusion of the disposition hearing in July 2012, the juvenile court
specifically ordered that petitioner receive individual counseling to
address the issues of self-esteem and codependency, mental health services, and
to comply with her medical doctor’s recommendations and prescriptions.
There are, however, very few references in the
record concerning the nature of psychological and medical treatment petitioner received. There are only the references to petitioner’s counseling
from Dr. Farber and her appointment with Dr. Garewal. The social worker reported in one report that
a progress report from Dr. Farber was unavailable with no indication as to why
the report was unavailable. Dr.
Garewal’s appointment with petitioner occurred late in the reunification
process, on October 31, 2012. There is
no indication in the record as to why the appointment occurred so late in the
proceedings. Dr. Garewal explained a
course of treatment for petitioner, but was only beginning the introduction of
medications through sequential trials, starting initially with a sedative. If petitioner was receiving a critical
component of her reunification services so late in the proceedings, and the
department failed to properly monitor these services, we question the efficacy
of the reunification services provided to petitioner.
The current record reveals nothing concerning the
nature, duration, and quality of
detailed information concerning the mental health services offered to the four
older boys than those offered to petitioner. Psychological and psychiatric services were a
major component of petitioner’s
reunification plan, but we know little about them. This record is largely silent on how petitioner procured
services, whether she benefitted from those services, and whether the
department facilitated or properly monitored this part of petitioner’s reunification
plan.
If
the department failed to follow through in facilitating or otherwise assisting
petitioner with obtaining psychological and psychiatric services, the juvenile
court’s finding that reasonable services were provided to petitioner
necessarily comes into question. Where
reasonable services have not been provided to a parent or guardian, such
services may be extended up to 24 months pursuant to section 361.5, subdivision
(a)(4) where to do so would be in the best interests of the child.
There
must be substantial evidence to support a juvenile court’s finding that
adequate reunification services were provided.
(Precious J.,
and/or the social services agency has failed to comply with portions of that
plan, there is not substantial evidence to support the juvenile court’s
findings and its orders are reversed. (
court’s finding that adequate services were provided to petitioner, vacate its
order setting the matter for a hearing pursuant to section 366.26, and remand
for further proceedings.
The petition for extraordinary writ
is granted and the juvenile court’s order setting this matter for a hearing
pursuant to Welfare and Institutions Code section 366.26 is vacated. The matter is remanded for a hearing to address
the issue of what mental health services were provided to petitioner, whether these
services were adequate, and whether they were provided or offered to petitioner
in a timely manner. If the juvenile
court determines that reasonable mental health services were not provided to
petitioner, were inadequate, or untimely, the court shall reopen reunification
services to petitioner and make such orders it deems necessary to provide such
services for six months pursuant to Welfare and Institutions Code section
366.5, subdivision (a)(4).
Alternatively, if the court
determines that reasonable, adequate, and timely mental health services were
provided to petitioner, the court may once again set the matter for a hearing
pursuant to Welfare and Institutions Code section 366.26.
This opinion is final forthwith as to this court.
Gomes, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] All further rule references are to the
California Rules of Court.
