T.S. v. Co. of San Bernardino

Filed 8/21/08 T.S. v. Co. of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; petition for extraordinary writ. Kyle S. Brodie, Judge. Petition denied..

Robin D. Edmond for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

15-year-old Petitioner T.S. (Mother) is the mother of 16-month-old Jeremiah S. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452, challenging an order setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing as to the child. Mother contends that the juvenile court erred in finding that she had been provided with reasonable reunification services. For the reasons provided below, we reject Mothers challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

Jeremiah came to the attention of the San Bernardino County Department of Childrens Services (DCS) in April 2007 a day after he was born due to Mothers history of mental illness and severe behavioral issues, including property destruction, fighting, cursing, yelling, screaming, injuring herself and others, and making threats to kill herself and others. Mother had displayed these behaviors at previous group home placements. Mother was 14 years old at the time of Jeremiahs birth and also had an open DCS case. Jeremiah was placed with his maternal great-aunt and great-uncle upon discharge from the hospital.

On April 4, 2007, a petition was filed on behalf of Jeremiah pursuant to section 300, subdivision (b), alleging that Mother had a current and extensive history of mental illness, which hindered her ability to adequately protect and parent the child, thereby placing him at risk for injury, neglect, and/or abuse.

Jeremiah was formally removed from Mothers custody at the detention hearing. Mother was provided with visitation a minimum of once a week for one hour and services pending the jurisdictional hearing. The court also ordered Mother to cooperate with DCS in obtaining two psychiatric evaluations necessary to support DCSs recommendation of no reunification services.

In a jurisdictional/dispositional report, DCS recommended no services for either Mother or alleged father, M.H. Mother had two pending charges at the Lancaster Juvenile Court (one for her assaultive behavior on a 12 year-old girl and the other for assaulting a staff member in a prior group home, requiring treatment at a hospital). Mother also had an incident prior to Jeremiahs birth where she became emotionally upset and attempted to get out of a moving vehicle while her brothers and sisters were in the back seat. Mother had also tried to swallow some pills she found while on her home visit, but she was stopped by her mother. Additionally, her group home staff reported that prior to Jeremiahs birth Mother had made threats to harm herself and her unborn child, which appeared to be Mothers way of manipulating staff to get her way.

Attached to the jurisdictional/dispositional report was a psychiatric evaluation performed on Mother in August 2005, when she was 12 years old. The report noted that Mother had problems being oppositional, defiant, aggressive, manipulative, and bossy and was lying and stealing. The report also noted that Mother had temper tantrums and poor boundaries and was physically assaultive with adults and peers. At that time, Mother was diagnosed as bipolar affective disorder, but had previously been diagnosed with impulse control disorder, attention deficit hyperactivity disorder (ADHD), and bipolar disorder with psychotic features. Mother had suffered neglect and abuse when in her mothers custody and was abandoned by her mother at a hospital in May 2005. Her father subsequently obtained custody of Mother, during which time Mother was hospitalized twice and placed in a group home. Her father ultimately agreed to place Mother in a group home permanently.

Also attached to the jurisdictional/dispositional report was a psychiatric discharge summary dated September 26, 2006. The summary indicated that Mother was discharged from Victor Childrens Services after it was discovered that Mother became pregnant while on a pass home. Due to her pregnancy, Mother was taken off all her medications and appeared to be stable.

The jurisdictional/dispositional hearing was held on April 25, 2007. M.H. made his first appearance and was ordered to take a paternity test. At the hearing, the court noted some significant problems with the social workers report and recommendation and requested an updated report. The matter was continued for paternity testing and the updated report.

In an addendum report filed May 29, 2007, DCS continued to recommend no services for either parent. At the further jurisdictional/ dispositional hearing, county counsel indicated that psychological evaluations had not been completed due to DCS awaiting approval for funding. The court found that this was not good cause to continue the matter and ordered DCS to complete the psychological evaluations of Mother by July 6, 2007. The matter was contested by Mother, and her request to bifurcate the matter was granted.

In an addendum report filed July 5, 2007, DCS changed its recommendation and recommended services for Mother.^[2] DCS believed it would be in the childs best interest to offer Mother services. Mother was residing in a new group home and was continuing to have weekly visits with Jeremiah, demonstrating her sincere desire in having her son placed in her care.

Mother subsequently waived her rights, and the court found the allegations true in the petition as amended. Jeremiah was declared a dependent of the court and maintained in the home of a nonrelated extended family member. Mother was provided with reunification services, which required Mother to complete general counseling, psychotropic medication monitoring, a psychological evaluation, and a parenting course and participate in a family training program. The court specifically ordered that a psychological evaluation was to be paid for by DCS and that all therapy was to be provided by a licensed therapist for issues related to parenting skills, anger management, and mental health issues. The social worker was directed to resubmit the case plan, as no objectives were listed in the original case plan. Mother was also provided with supervised weekly visits with her child.

On July 19, 2007, DCS filed a nonappearance review packet addressing the changes in Mothers case plan and noting the objectives. On July 27, 2007, Mother objected to the case plan because no client responsibilities were listed, it was not signed by Mother, and Mother was reporting that her visits were not occurring.

In a review report filed August 10, 2007, Mother complained that she was not having her weekly visits. The social worker investigated Mothers concerns and found that Mother had visitation on April 20 and 28, May 6 and 23, June 16 and 23, and July 5, 10, 15, and 31, 2007. It was noted that Mother had missed her visit the last week of May due to her fighting with one of her peers and being absent without leave, which resulted in Mother being placed in juvenile hall. She was then removed from her Helping Hands Group Home and placed in New Directions Group Home (New Directions). In addition, there were problems in transporting Mother because of her difficult behavior while in the car. Mothers group home program director reported that Mothers behavior was so disruptive that they had concerns she might cause an automobile accident, become resistive and noncompliant and have temper tantrums. Jeremiah missed his visit the first week of August due to illness.

At the August 15, 2007, hearing, the court noted that the case plan attached to the July 19, 2007, nonappearance packet was inadequate. Changes were discussed, and another case plan was prepared reflecting those changes. It was further amended by interlineations, and the document was eventually agreed upon by all the parties. As to visitation, the court indicated there were numerous missed visits and ordered that if visits were missed due to transportation issues they were to be made up with a lengthier visit the following week. The court also admonished Mother regarding her behavior.

By January 2008, Mother had made significant progress since placement at New Directions. In addition, she had been participating in her case plan by attending a parenting class and an anger management program and was making significant progress in her parenting program. However, she had been suspended from school for engaging in harassment against school personnel and was disruptive during school activities, and her progress was not significant enough to place Jeremiah in her care. For example, during a recent visit, Mother became angry and reacted by throwing Jeremiah into the car while he was strapped in his car seat when it was time to leave. In addition, Mother saw the facility psychiatrist on a weekly basis until Mother decided she did not like that doctor and refused to see him. Mother was also seeing a doctor who was regulating her prescription medication.

Mother had continued weekly contact with Jeremiah. Jeremiahs foster mother had agreed to transport him to and from all visits to ensure that visits would occur. Jeremiah continued to reside with his foster mother, appeared to be in good health, and was reaching his developmental milestones. Jeremiah had developed a close and loving relationship with his foster mother and her family.

On April 18, 2008, in light of recently published case law, the court appointed a guardian ad litem for Mother and set a further hearing for her guardian to address whether or not Mothers interest had been adequately represented thus far.

On May 12, 2008, the guardian indicated that she did have concerns that Mother had not received her case plan until August 15, 2007, and requested a continuance of the 12-month hearing, but since the section 366.21 hearing had been set and the report had been prepared, the guardian noted that any argument about that [continuing the section 366.21 hearing] would best be kept until June 2nd when we have a report of everything that has been occurring since January. Mothers counsel agreed with the guardian. Mothers counsel also informed the court that two of Mothers visits had been cancelled by the caretaker, and makeup visits had not occurred. The court ordered DCS to make up any missed visits due to the caretaker cancelling them. Mothers counsel also pointed out that Mother had indicated she had recently undergone a psychological evaluation and the doctor had changed her medications. DCS reported no knowledge of the psychological evaluation. The court ordered the psychological evaluation be provided to counsel, if one had indeed taken place.

The June 2, 2008, 12-month review hearing was set contested by Mother and continued. By the 12-month review hearing, Mother had reverted back to her old ways despite referrals by DCS. She had continued to be highly explosive and very unstable. She had been in three group homes within the previous six months due to her violent outbursts and was awaiting placement in a level 14 group home. In addition, Mother continued to be suspended from school and was nearly expelled for falsely accusing another student of molesting her. She was discredited after she gave the boy she accused a letter full of explicit sexual acts she wanted to perform on him. Mother was described as very disturbed with a poor prognosis for her future and no ability to care for her child.

Though Mother had been attending individual and group counseling/therapy and had completed two parts of her four-part parenting program, her counselor reported that Mother had not benefited in any way from counseling, describing her as extremely immature and lacking in any kind of insight. Mother would often not participate in therapy and would sometimes refuse to go, despite prompting by staff at Mothers group home. The counselor opined Mother was not ready to parent and would pose a risk to any child. Although Mother had been consistently participating in parenting and anger management programs prior to Jeremiahs birth, the instructor indicated Mother had only marginally benefited from the programs.

Regarding therapy with a licensed therapist, Mother had initially received services from Dr. Fisher, a licensed therapist, on a weekly basis to address her issues of anger control, impulse control, peer relations, parenting, and social conduct. However, Mother later refused to continue therapy with Dr. Fisher. After Mother was transferred to a new group home, Mother began weekly therapy with Rebecca Ruiz, who was not a licensed therapist but was under the close supervision of a licensed therapist who also had occasional sessions with Mother. However, Mother was eventually asked to leave that group home, and since leaving was being seen weekly by Joseph Jones, a licensed therapist. All of the therapists noted they saw some minor improvements with Mother but nothing that would indicate Mother was ready to parent; rather, she would pose a danger to her child if he were to be placed in her care. Mother also consistently saw a psychiatrist during the pendency of the case and had participated for five months in a substance abuse group three days a week. However, despite medication and the treatment she was receiving, Mother was never able to control her anger and continued to have violent outbursts resulting in her injuring staff and peers in her group homes regularly.

In regard to the psychological evaluation, apparently the prior social worker had pursued a psychological evaluation, but it was never completed. The current social worker contacted Mothers current group home, Value Options in Bakersfield, to find a psychologist in that area to conduct the evaluation. Mother had prior psychological evaluations where she had been diagnosed with bipolar disorder, impulsivity disorder, and ADHD. Mothers current psychiatrists found the diagnoses to be accurate, and her medication and treatment plans reflected this. In addition, Mother had undergone a psychological evaluation for her tri-annual individualized education program (IEP) meeting, which placed Mother in the borderline/low average intellectual range. Due to Mothers extreme behavioral issues, Mother was qualified as emotionally disturbed and was given in-home schooling. Mother was also referred to the Kern County Regional Center for a comprehensive psychological/psychiatric and neurological examination to determine if she might qualify for services. A formal psychological evaluation was set up, but Mother left her placement before it was conducted.

Meanwhile, Jeremiah was in good health and doing well developmentally. Mother had consistently visited Jeremiah, but both the group home staff and foster mother reported that there was absolutely no bonding between Mother and Jeremiah. Mother showed no interest in Jeremiah and did not want to hold him during visits. Mother also presented a physical risk to the baby, as she would become easily agitated with him for no reason. Recently, Mother had been allowed to visit for the weekend with Jeremiah at the maternal grandmothers home. However, the maternal grandmother became fearful for the babys safety and asked his foster mother to pick him up the first day. Jeremiah became frightened of Mother and distressed when he had to see her.

The social worker recommended that services be terminated and opined that there was not a substantial probability that Jeremiah could be safely returned to Mothers care if additional services were given. The social worker noted that Mother had been given all of the appropriate services to assist in reunification, but, due to her mental illness and low intellectual functioning, none of the services made a significance difference. In fact, Mother had stated to the social worker that she was aware she could care for Jeremiah and that he was better off being adopted by his caretaker. The social worker pointed out that services had also placed stress on Mother, who had been prompted by others to try to get her son back, when she appeared to have personal goals for herself in wanting to get a job, do well in school, and hang out with friends. Indeed, in June 2008, Mother had called asking to cancel her visit so she could go to an amusement park with friends but failed to mention rescheduling when the social worker pointed out she could do both.

In addition, on June 7, 2008, Mother ran away from her group home with another resident and took a bus to Pomona to meet a man Mother had met on the internet. The other resident returned two days later after turning herself in to Pomona police, and reported that the man told her and Mother that if they wanted to stay at his home, they would have to have sex with him and another man at the home. The girls complied and were then told by the men that they wanted them to become prostitutes for them. She left, but Mother chose to stay at the home. On June 11, 2008, the social worker learned that Mother was in juvenile hall for shoplifting over $500 in merchandise from an Upland Wal-Mart. The social worker also detailed Mothers placements, duration of the placement, and the reason for leaving each placement. Since 1999, Mother had lived in 24 different placements, the longest lasting nine months. She was consistently required to leave due to assault of staff, vandalism, and violent behavior.

The contested 12-month review hearing was held on June 17, 2008. Following admission of evidence, testimony from the social worker, and arguments from counsel, the juvenile court found that reasonable services were provided to Mother and that there was not a substantial probability that the child could be returned to Mother if services were extended. The court then terminated services and set a section 366.26 hearing.

II

DISCUSSION

Mother contends the juvenile court erred in finding that DCS had offered reasonable reunification services. We disagree.

We review the correctness of an order pursuant to section 366.21 to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) That standard requires us to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged . . . . (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In reviewing the reasonableness of the reunification services, we recognize that in most cases more services might have been provided, and the services provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) A court-ordered reunification plan must be tailored to fit the circumstances of each family and designed to eliminate the conditions that led to the juvenile courts jurisdictional finding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

The record in this case, set out above, reveals the services offered were reasonable â€‘‑ they were tailored to fit the circumstances and to eliminate the conditions that led to the juvenile courts jurisdictional finding â€‘‑ and Mother consented to them. As counsel for DCS recognizes, the services provided here may not have been perfect but were certainly reasonable under the circumstances. Despite the numerous challenges faced by DCS due to Mothers young age, her behavioral issues, and her frequent changes in placements, Mother received multiple services over the 16 months leading to the termination of her reunification services. She was consistently offered counseling and therapy to address her many issues, oversight of her medication, parenting classes, and anger management classes. In addition, the social worker and the foster mother worked diligently to ensure that Mother had as consistent visitation with Jeremiah as possible.

Mother made some progress in her case plan and took advantage of the services provided to her. However, ultimately she failed to benefit from those services. Substantial evidence reveals that DCS provided Mother with reasonable reunification services. Further, the services offered were reasonably geared to overcoming the problems that caused the dependency and were appropriate under the circumstances. (See In re Jasmon O. (1994) 8 Cal.4th 398, 424-425; In re Christina L. (1992) 3 Cal.App.4th 404, 417.) The problem is not that inadequate services were offered, but that Mother failed to benefit from them.

Mother argues services were inadequate because (1) DCS failed to put an appropriate plan in place until over four months after the detention hearing; (2) the programs offered were unreasonable; (3) she had attended a teen substance abuse program when none was required; (3) no psychological evaluation was completed; and (4) her visitation did not take place as ordered by the court. These contentions do not support a finding that services offered were unreasonable.

First, Mother fails to provide any legal authority to support her position that the delay in the approval of a case plan is tantamount to unreasonable services. Here, despite the fact that no plan had been approved by the court, Mother had received services from the time of detention. She was involved in parenting and anger management programs from the time of Jeremiahs birth. The absence of an approved case plan did not prevent or preclude Mother from participating in services. Moreover, it is clear from the record that the social worker was active in enrolling Mother in these programs prior to the acceptance of the case.

Second, in regard to the programs offered, the record is clear, as set out above, that Mother was offered a variety of services including therapy, psychiatric monitoring, parenting classes, anger management, and visitation. During the time Mother resided in New Directions from June 6, 2007, through March 20, 2008, Mother had access to therapy through a licensed therapist on a weekly basis to address issues of anger control, impulse control, peer relations, parenting issues, and social conduct. It was only after Mother refused to continue therapy with the licensed therapist that her therapy was interrupted. She later saw another therapist when she moved into a new group home. Though that therapist was unlicensed, that therapist was under the close supervision of a licensed therapist, who also had occasional therapy sessions with Mother. After Mother was again forced to leave that group home, Mother began seeing another licensed therapist. In addition, Mother consistently saw a psychiatrist, who was responsible for regulating her medication.

There is no evidence in the record to support Mothers assertion that the services offered were unreasonable. In fact, it appears that the court and DCS went above and beyond to offer Mother with reasonable services. We reject Mothers implication that it was an error for Mother to be involved in a substance abuse program, highlighting the fact that drugs were never identified as a problem for Mother. Mother fails to recognize that the record does not show that DCS ever referred Mother to this program. The social worker merely indicated that Mother was taking part in the program. Additionally, Mother neglects to consider that she herself was a dependent of the court and this may have been an element of her case plan as a minor. Moreover, there is nothing to show that these classes were anything other than beneficial to Mother.

Regarding the psychological evaluation, DCS concedes that no psychological evaluation took place after Jeremiah was removed from Mothers care. Nonetheless, as the record shows, DCS attempted to obtain a formal psychological evaluation of Mother but was unable to due to Mothers frequent changes in placement. Regardless, even though no formal psychological evaluation took place, the social worker was provided with a prior psychological evaluation of Mother that indicated many of the same problems dealt with during the dependency. In addition, Mother had a psychological workup as part of her tri-annual IEP and was also referred to her local regional center where a comprehensive psychological exam was to take place. The record is clear that an updated psychological evaluation was unnecessary here, as Mother continued to struggle with the same issues addressed in the evaluation from 2005. Furthermore, Mother has failed to provide any argument as to how the failure to conduct a psychological evaluation prevented her from receiving reasonable services. On the contrary, despite the lack of a recent psychological evaluation, the social worker provided Mother with the necessary services to address her numerous issues.

Mothers final contention is also unsupported by the record. Though the issue of missed visitation was raised in August 2007, there was no issue thereafter. Every report from August 15, 2007, through the final report in June 2008, indicated that visits took place weekly with the foster mother transporting Jeremiah to Mothers group home. There were only a few instances noted where visits did not take place due to illness or at the request of Mother. Moreover, despite the consistent visitation, it appeared that Mother showed no interest in Jeremiah, did not hold him during visits, became easily agitated with him, and essentially posed a threat to him.

Ultimately, it was Mothers failure to benefit from the services provided that resulted in the court finding it was detrimental to return Jeremiah to Mothers care, and not a deficiency in the types of services provided. Mother was unable to demonstrate she had benefited from the services that had been provided to her, that she was capable of understanding how to provide proper care to Jeremiah, or that she was able to control her violent anger behavior. Mother herself admitted that she knew she could not care for Jeremiah and that he was better off being adopted by his caretaker. Hence, even though Mother appeared to love Jeremiah, her immaturity, mental illness, anger management issues, and violent behavior left her unable to provide adequate care to Jeremiah. The court, the social worker, the service providers, and the foster mother all strived to identify and provide services to help Mother overcome her mental issues in an effort to reunite with Jeremiah. However, unfortunately, Mother still required continuous supervision and it remained unsafe to return Jeremiah to her custody.

Viewing the evidence in the light most favorable to DCS, we find that the services provided were reasonable under the circumstances of this case.

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2] The paternity test results showed M.H. was not Jeremiahs biological father. Mother was unable to identify another possible father for Jeremiah.