Mary F. v. Superior Court
Filed 7/30/12 Mary F. v. Superior Court CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
MARY F.,
Petitioner,
v.
THE SUPERIOR
COURT OF SOLANO
COUNTY,
Respondent;
SOLANO COUNTY
HEALTH AND SOCIAL SERVICES,
Real Party in Interest.
A135556
(Solano
County
Super. Ct.
Nos. J40976, J40977)
Petitioner
Mary F. is the mother of William D. and James D. She petitions for writ review of a juvenile
court order terminating reunification
services and setting a permanent plan selection and implementation hearing
pursuant to Welfare and Institutions Code
section 366.26. (Cal. Rules of Court,
rule 8.452.) Petitioner claims that this
order was not supported by substantial evidence and constituted an abuse of
discretion in light of the “symbiosis of medical issues” that she faced during
the review period which impacted her level of participation in the case plan.
We
conclude that the court’s orders are supported by
its discretion in setting the section 366.26 hearing. Accordingly, we deny the petition for writ
review.
BACKGROUND
A.
Jurisdiction and Disposition
On
September 19, 2011, the
juvenile court sustained a juvenile
dependency petition as amended as to William D. (born Sept. 2008) and James
D. (born July 2010). The court found
true allegations under section 300, subdivisions (b) (failure to protect) and
(j) (abuse of sibling). Specifically,
the court found that the alleged father, Joseph D., and petitioner were
arrested for child endangerment after
leaving the minors at a church nursery and disappearing for two hours, and were
unable to provide ongoing care and supervision due to the subsequent
incarceration. At that time James D. had
an infected bug bite and rash on his leg that required immediate
hospitalization, and the parents knew or reasonably should have known that his
condition required medical attention and that delay in seeking it placed him at
a substantial risk of physical harm.
This state of affairs placed both minors
at a substantial risk of serious physical
harm.
The
jurisdiction report of respondent
County Health and Social Services (Department) noted that the parents had a
prior substantiated referral for general neglect based on an unsafe housing
situation. The father reported two prior
criminal matters—a dismissed assault, and a driving under the influence of
alcohol case. At the time of the
parents’ arrest for child endangerment, they were living out of their vehicle
on church property and attempting to look for a place to stay. The vehicle was filthy; there was an open
bottle of wine next to the car seat.
They had dropped off their children in the church day care but failed to
return in a timely manner. An attendant
tried to change James’s diaper, which was dirty, noting a swollen red abscess
on his thigh. When mother returned, her
speech was rapid and loud.
The
disposition report indicated that petitioner reported a diagnosis of
posttraumatic stress disorder
and depression for which she has received individual therapy and medication
management. The parents admitted that
the current housing situation was inappropriate for children, and were working
with Ms. Nicodemus of youth and family services to obtain housing. They were also enrolled in a parenting
class. Petitioner’s hair strand test was
positive for amphetamine and methamphetamine.
No
medical or emotional health concerns were noted for either boy, although a
referral was made for speech evaluation due to William’s slurred speech. James was walking and speaking; his infected
bug bite had fully healed. The
Department was in the process of referring petitioner for a substance abuse
assessment to obtain recommendations for treatment. The reporting social worker recommended reunification
services for petitioner with discretion to the Department to return the minors
to her under a family maintenance plan.
As to Joseph D., they recommended no services unless he was determined
to be the presumed father.
Petitioner
and Joseph D. submitted on the recommendations.
The court found Joseph D. to be the presumed father.
B.
Six-month Status Review Report
In its status review report
filed March 12, 2012, the Department recommended that the juvenile court
maintain the minors in out-of-home placement; terminate reunification services;
and set a section 366.26 hearing for July 2012.
Three-year-old William was diagnosed with a language delay. A meeting was scheduled to develop an
individual education plan for him. James
was observed babbling, waving “bye,” and smiling and giggling with his foster
parents. His walk appeared stiff;
therefore, the social worker requested that the foster parents arrange to have
James assessed for developmental concerns regarding his walking. The boys were bonded to their foster parents
and appeared comfortable in their home, although the placement was not a
long-term permanency option. The
maternal grandmother and her husband requested consideration as a placement option. They live in New Jersey.
The
parents were partially compliant with the parent education component of the
case plan. They enrolled in parenting
classes but stopped attending when they contracted MRSA.
reentry achievement program services for petitioner were terminated because she
never completed the assessment to determine her strengths, needs and
challenges. Additionally, there was a
lack of follow through and consistency.
Lucia Morales, the reporting social worker, stated that she enrolled both
parents in group parenting education classes; they were attending, and had
missed just one session.
As
well, the parents were partially compliant with their responsibility to
participate in the minors’ developmental assessments. William’s speech pathology assessment was
delayed because the parents failed to turn in the required paperwork on time.
The
parents were not compliant with substance abuse testing. Both failed to appear for four scheduled
tests after their hair tested positive for amphetamine/methamphetamine. Both disputed the results, ascribing them to
prescribed medications. However, neither
parent followed through with the medical review office as directed by Ms.
Morales to ascertain if their prescribed medication would alter test results. The parents were also referred to a
behavioral health assessment team (BHAT) due to lack of compliance with drug
testing. Although Joseph D. initially
reported that they scheduled an appointment, BHAT staff reported no appointment
had been made. Ultimately Ms. Morales
scheduled an appointment for them.
Joseph D. mistakenly showed up in the morning for an afternoon
appointment and did not return.
Petitioner kept her appointment; BHAT instructed her to get a note from
a doctor confirming that her medication was altering the drug testing result,
but she did not follow through.
The
parents were not compliant with the requirement that they maintain stable and
suitable housing. Petitioner informed
the social worker they were staying with different friends. The social worker was unable to obtain an
address from them personally, but did obtain the information from another
source. Petitioner also told the social
worker that they had to move because of mold and ongoing construction, and the
house was not “good for the kids,” but then said it was a beautiful house and
would not agree to a visit because “the people at the house” did not want the
social worker there.
A
housing resource staff person brought petitioner to an appointment at the
Bridge to Life housing program. The
visit did not go well. The staff person
suspected petitioner was under the influence of some substance, and the intake
worker asked petitioner to drug test but she refused, due to her
medication. The intake worker explained
that she needed to be clean and sober to enter the program. An aide there overheard petitioner call the
intake worker “[b]itch.”
The
parents had weekly, three-hour supervised visits with their sons. They attended all visits in September 2011;
were an hour late one week; cancelled two visits in October due to illness; did
not visit in November due to being diagnosed with “STAPH/MRSA”; cancelled two
visits in December; and cancelled a visit in January 2012 due to petitioner’s
illness. Joseph D. showed up for the
last visit but left early due to petitioner’s illness.
The
visits that did occur were appropriate; the parents interacted well with the
children. The social worker attended one
scheduled visit that ended up being cancelled.
She observed William kicking, crying and screaming “momma” when carried
out of the visitation area.
The
social worker recommended termination of services “based on their partial
participation in case plan responsibilities.
Throughout this reporting period, [petitioner and Joseph D.] have had
sporadic visits with their children and have recently engaged in parenting
classes, but they have not obtained stable and suitable housing and have not
drug tested since 09/2011. . . .
[¶] . . . [¶] . . . Throughout this reporting period,
[petitioner and Joseph D.] have been reluctant to engage in family
reunification services despite the numerous referrals and attempts the
undersigned has made.” Further, they
denied having a substance abuse problem and blamed their positive test on
prescribed medication. Additionally,
they would not provide the Department with a home address.
The
social worker also had concerns about petitioner’s mental health, noting that
she has “exhibited signs of anxiousness, rapid talk, and emotional outburst,”
and surmised that the “behaviors may be due to possible substance abuse and/or
mental health issues.” Concern was also
expressed about the parents’ health, as they reported “being sick” at most
meetings and claimed to have contracted “STAPH/MRSA” in jail. The social worker was unable to confirm the
exact dates they were contagious.
C
Status Hearing
contested six-month review hearing set for April 18, 2012, was continued at
petitioner’s request. At that time
Joseph D. produced a letter from petitioner’s physician stating she was being
“followed” for medical problems. Out of
an abundance of caution, the court continued the matter for verification that
petitioner could not attend the hearing because of her medical condition. Two days later the court received a note from
Dr. Chen, stating that petitioner “suffers from mental illness
(depression/anxiety)” and a “MRSA” skin infection, “and therefore was unable to
appear in court.” Dr. Chen urged
petitioner to seek mental health services and delineated the prognosis for
mental illness as “fair.” Dr. Chen
explained that petitioner’s MRSA skin infection had not completely resolved
despite a regimen of multiple antibiotics, and she would refer her to an
infectious disease specialist.
Thereafter,
the Department submitted a confidential pleading addendum with an appended
letter to the court from Dr. Chen. Dr.
Chen stated she had only seen petitioner twice and did not test her for
MRSA. Based on petitioner’s report of multiple emergency room visits for MRSA
infection as well as her presenting mild conjunctivitis and mild boils on the
skin, Dr. Chen referred petitioner to an infectious disease specialist “for
assistance to help treat as well as educate patient about MRSA
infections.” Dr. Chen stated that it was
very unlikely that petitioner’s infection was life threatening despite
petitioner’s perception to the contrary.
Further, Dr. Chen had not advised petitioner to be quarantined and did
not tell her to avoid contact with the minors, mental health services or
parenting classes. Indeed, at each visit
she urged petitioner to seek a mental health evaluation and treatment, which
was crucial to her overall health.
Neither
parent appeared at the rescheduled
hearing, and counsel for both asked for a continuance because their clients
were ill. Petitioner told her attorney
that her MRSA condition had worsened, she had an appointment to see an
infectious disease specialist, and her eyes were badly infected. The court denied the requests, stating that
the motions to continue were untimely, not supported in writing, and the court
had no basis upon which to accept the parents’ representations.
Dr.
Stacey, the chief medical officer for Solano County, testified as an expert in
family medicine. He explained that MRSA
can be acquired in the community and also contracted in a hospital. In a hospital setting, the condition can be
resistant to many antibiotics.
Community-acquired MRSA infections are very common; they are usually
skin lesions that can be treated on an outpatient basis.
MRSA
is spread by skin-to-skin contact.
Persons infected with community-acquired MRSA do not need to be
quarantined, but should adequately cover any abscess and wash their hands.
Dr.
Stacey testified that there was no confirmation in petitioner’s medical records
that she had even been infected with MRSA.
Petitioner was treated in a clinic in late October for an abscess and
went to the emergency room on November 14 where she received one dose of
intravenous antibiotics. She received an
oral course of antibiotics as an outpatient.
By December the infection had resolved.
There was no instruction in the medical file to remain isolated.
Dr.
Stacey indicated that MRSA contracted in a county jail would be considered
community-acquired MRSA. Community-based
forms of MRSA could require hospitalization.
MRSA in the bloodstream or spinal fluid would be a very serious
infection requiring hospitalization.
People with lower functioning immune systems are at higher risk to many
other infections. An abscess, left untreated, could become a
systemic infection.
According
to Dr. Stacey, MRSA was an acute infection, not a chronic illness. Dr. Chen’s description of the papules on
petitioner’s skin was a nonspecific finding.
Dr. Chen did not exclude the possibility that petitioner suffered from
MRSA, and did refer her to a specialist.
Dr.
Stacey testified that conjunctivitis was most commonly caused by a virus or
allergies, but could be caused by bacteria.
There was nothing in Dr. Chen’s records that suggested petitioner had
MRSA.
Social
worker Lucy Fuentes also testified and updated information in the six-month
status report. Since then, the parents
had started a parenting course, and attended four out of seven sessions,
blaming MRSA for their failure to complete the course. The parents informed Ms. Fuentes that they
were going to participate in an online parenting class, but had not sent her
information about the course or confirmation of completion.
Neither
parent attended William’s individual education plan meeting because they were
sick. They failed to show for drug tests
on February 23 and March 29.
Joseph
D. finally provided Ms. Fuentes with a home address on March 12, 2012. When she arrived on March 28, 2012, for an
unannounced visit, they claimed they were contagious and denied her
access. Ms. Fuentes heard other voices
inside. Petitioner said they were
friends helping paint the house, who were “okay” with the MRSA. In order to confirm that the parents satisfied
the housing element of their case plan, Ms. Fuentes would have to complete a
home visit and assessment.
The
parents visited their sons on January 20 and 27, and February 3, 10 and
17. They missed a late February visit
because Joseph D. said he was sick; there were no visits in March; and mother
made no visits in April, again missing one visit because of illness.
Ms.
Fuentes described petitioner as “very emotional” at a recent meeting. She could not calm down and walked out. Joseph D. told Ms. Fuentes that “court will
just make her go nuts.”
The
court concluded by a preponderance of the evidence that the return of the
children to their parents created a substantial risk of detriment to their
safety, protection and physical well-being.
The court found that the parents did not substantially comply with the
case plan, and in fact actively undermined it with claims that they have
medical conditions that preclude them from doing anything. Additionally, the Department provided
reasonable services to them to aid them in overcoming the problems that led to
the minors’ removal. By clear and
convincing evidence the court found that both parents failed to participate
regularly in and make substantial progress in their court-ordered treatment
plan, terminated reunification services and set a section 366.26 hearing. This petition followed.
II. DISCUSSION
Petitioner maintains that the above
orders were not supported by substantial evidence, or constituted an abuse of
discretion. The substantial evidence standard
of review applies to challenges to findings concerning whether a parent
complied with and regularly participated in a court-ordered case plan, and
whether the return of a minor to a parent’s custody would be detrimental. (Angela
S. v. Superior Court (1995) 36 Cal.App.4th 758, 763; see
Cal.App.4th 619, 625-626.)
Section
366.21, subdivision (e) governs the six-month status review hearing, providing
that the court shall return a minor to the physical custody of his or her
parent or guardian “unless the court finds, by a preponderance of the evidence,
that the return of the child . . . would create a substantial risk of detriment
to the safety, protection, or physical or emotional well-being of the child. .
. . The failure of the parent . . . to
participate regularly and make substantive progress in court-ordered treatment
programs shall be prima facie evidence that return would be detrimental.” The statute further provides that where, as
here, the child was under three years of age upon initial removal, “and the
court finds by clear and convincing evidence that the parent failed to
participate regularly and make substantive progress in a court-ordered
treatment plan, the court may schedule a hearing pursuant to Section 366.26
within 120 days. If, however, the court
finds there is a substantial probability that the child . . . may be returned
to his or her parent . . . within six months or that reasonable services have
not been provided, the court shall continue the case to the 12-month permanency
hearing.” (§ 366.21, subd. (e).)
Under
the statute, the court must consider not only the completion or lack of
completion with the technical requirements of the reunification plan, but also
the progress the parent has made toward eliminating the conditions that led to
the minor’s removal. (
1131, 1139, 1141-1142.) Here, petitioner
partially complied with the visitation and parenting class requirements,
missing visits and classes due to her perceived illness notwithstanding that
her doctor never quarantined petitioner or otherwise forbade her from having
contact with her children or participating in services. She failed to submit to drug tests or to
follow through with a substance abuse evaluation, claiming prescribed
medications yielded positive test results, yet did not follow through with the
very procedures that were designed to clarify such situations. Petitioner reported a history of mental health
issues, and her doctor urged her on more than one occasion to seek mental
health treatment, yet there is no indication that she did so. Petitioner was lax in dealing with the
paperwork for William’s therapy, and did not attend his individual education
plan meeting due, again, to illness.
Petitioner
does not argue that she made substantive progress in her treatment plan. Instead she states that at the time of the
six-month review, she had obtained two-bedroom housing; the minors appeared
attached to her and referred to her as “momma”; and she participated in
“certain” parenting classes. She
concludes that because the “symbiosis of medical issues during the review
period” impacted her level of participation in services, it was erroneous to
set the section 366.26 hearing.
The
above assertion of housing merits clarification. On cross-examination of Ms. Fuentes,
petitioner’s attorney established that petitioner reported to the Department
that she had a two-bedroom, two-bath residence.
However, Ms. Fuentes made it clear that the Department would have to be
able to conduct a home visit and assessment to determine if the housing were
livable and safe. It was petitioner who
thwarted the Department’s effort to verify housing conditions, a pattern
consistent with evading services or remedies to document or assess substance
abuse or mental health issues. She also
missed many crucial visits with her children, both under three years of age,
when there was no medical reason to avoid the contact. She did not attend the critical contested
status review hearing, after having it put over for her benefit. In short, there is substantial evidence
supporting the juvenile court’s finding by clear and convincing evidence that
petitioner failed to participate regularly and make substantive progress in her
court-ordered treatment plan.
(§ 366.21, subd. (e).)
Accordingly, the court did not abuse its discretion in setting the
section 366.26 hearing.
III. DISPOSITION
affirm the order terminating reunification services and setting a section
366.26 permanency plan hearing. We deny
the petition for extraordinary writ review on the merits. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i),
8.490(b)(3).)
_________________________
Reardon,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Rivera, J.
name="_ftn1" title=""> [1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
“MRSA” is the acronym for methicillin-resistant staphylococcus aureus.
