J.H. v. Superior Court
Filed 1/15/13 J.H. v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
J.H.,
Petitioner,
v.
THE
SUPERIOR COURT OF FRESNO COUNTY,
Respondent;
FRESNO
COUNTY DEPARTMENT OF SOCIAL SERVICES,
Real Party in
Interest.
F065695
(Super. Ct. No. 12CEJ300087-1)
THE COURT
ORIGINAL
PROCEEDINGS; petition for
§ 21.)
Cheryl
K. Turner for Petitioner.
No
appearance for Respondent.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
J.H. (mother) seeks an extraordinary
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders
issued at a contested dispositional hearing in September 2012, denying her
reunification services under Welfare and Institutions Code section 361.5,
subdivision (b)(10) and (11)
name="_ftnref2" title="">[1] and setting a section 366.26
hearing as to her one-year-old daughter, Sarah.
We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Mother
is a 30-year-old woman who suffers from
in 1998 and Sarah in 2011. Sarah is the
subject of this petition.
This
is not mother’s first appearance before this court on a writ petition. In 1999, she sought writ relief from the
juvenile court’s orders terminating her reunification services and setting a
section 366.26 hearing as to Julia. She
argued that the juvenile court erred in finding she was provided reasonable
services. We denied the petition. However, because the circumstances of Julia’s
dependency are germane to this case, we take judicial notice of our opinion
(F034430), as well as the appellate record in that case and extract from them
those facts that give context to the case before us.
In August 1998,
mother was a 16-year-old living in a group home with then one-month-old
Julia. Mother was on probation from the
juvenile delinquency court because of drug and behavior related offenses. In late August 1998, she was arrested for
stealing money from the group home. She
also threatened the staff and threatened to leave, taking Julia with her.
The Fresno
County Department of Children and Family Services (department) took Julia into
protective custody, and in November 1998, the juvenile court ordered mother to
participate in substance abuse treatment, a mental health assessment and
recommended treatment, and parenting and
anger management classes. Over the
ensuing year, she participated in substance abuse treatment and parenting
classes and completed an anger management program. In March 1999, she completed a mental health
assessment but, according to the therapist who assessed her, mother presented
as angry, denied having any mental health issues, hated counseling and did not
want to talk about herself. The
department advised the therapist that mother was being referred for substance
abuse treatment, and it was decided that she would complete a second mental
health assessment after she completed the primary phase of substance abuse
treatment. Mother, however, did not
complete substance abuse treatment.
Instead, in April 1999, she relapsed into cocaine use, and in June 1999,
she was discharged from substance abuse treatment after testing positive for
cocaine. In August 1999, mother was
arrested and charged with battery, vandalism and malicious mischief, and
returned to juvenile hall.
In November
1999, the juvenile court terminated mother’s reunification services at a
contested 12-month review hearing.
Mother challenged the reasonableness of services on a writ petition,
which we denied.
In 2001, the
juvenile court terminated mother’s parental rights and freed Julia for
adoption. Ten years later, in October
2011, mother gave birth to Sarah.
In
November 2011, mother took then three-week-old Sarah to the hospital to be
evaluated for a virus and congestion.
The hospital staff contacted the department out of concern for mother’s
questionable mental health and Sarah’s safety.
The department
name="_ftnref3" title="">[2] was unable to obtain a
protective hold but advised mother to schedule an appointment with a
psychiatrist and asked the maternal grandmother (grandmother) to provide
support and supervision, and contact 911 if mother exhibited any bizarre or
concerning behaviors.
In
March 2012, paramedics responded to a call that Sarah was choking while in the
care of her maternal relatives.
Paramedics found mother’s behavior bizarre and contacted the police, who
in turn contacted the department. A
social worker responded and did not notice any bizarre behavior. Mother was not taking medication and the
social worker did not know if she had made an appointment with a
psychiatrist.
These
dependency proceedings were initiated in April 2012, when mother took Sarah to
the emergency room and reported that Sarah’s vagina “twitched†while mother was
breast-feeding her. Mother reported her
vagina also twitched as if she were having sex with Sarah. Mother thought that was “gross†and did not
want Sarah to feel that way. Sarah was
examined and there were no medical concerns; however, a unit clerk and a
security guard observed mother hitting Sarah.
The unit clerk
said she was standing a few feet away from mother and saw her holding Sarah,
who was crying loudly. The clerk saw
mother slap Sarah with the palm of her hand square in the face and heard her
say “shut up.†Mother then grabbed
Sarah’s body and began sliding it back and forth on the gurney telling her to
“shut up.â€
The
security officer saw mother slap Sarah on the left buttock and thigh. He said the slap was so hard that he heard it
from his location, which was approximately 10 to 12 feet away.
The
police were contacted and Officers Nichols, Gregory and Nelson responded. They all had prior contacts with mother and
knew that she suffered from some type of mental illness. Nichols and Gregory contacted mother on two
previous occasions and she displayed paranoid and bizarre behavior. She said people were watching her and
following her from the freeway while she was inside her residence. Nichols and Gregory recalled that mother
could not answer questions in a reasonable manner. Gregory conducted a follow-up investigation
and found that mother had been involuntarily committed on several
occasions.
Nichols
examined Sarah and observed two scratches approximately 1/4 inch in length on
her right thigh and buttock, along with three vertical lines consistent with finger
marks on her right thigh. Sarah also had
red welts on her left thigh and buttock area and two red welts on her
stomach.
Nichols arrested
mother for misdemeanor child abuse, and then five-month-old Sarah was taken
into protective custody. Mother stated
she did not understand what was happening.
She did not know why she was being arrested when there was an “abuserâ€
out there who was going free. Mother
denied that she struck Sarah.
Several
days later, social worker Juana Perez met with mother and grandmother to
discuss the case. Mother denied hitting
or shaking Sarah. Perez asked her if she
had sought mental health services as recommended by the department. She gave Perez a form request from Dr. Mark
Chofla for blood testing. She said she
received Supplemental Social Security Income for schizophrenia, and was taking
Zoloft and Proset but discontinued them.
She said the doctor allowed her to stop taking her medication in order
to breast feed her daughter. She also
told Perez that she had been drug free for 10 years.
In
April 2012, the juvenile court ordered Sarah detained and ordered the
department to provide mother supervised visits.
The court did not authorize any other services for mother. That same month, mother entered Pathways to
Recovery (Pathways), an outpatient substance abuse treatment program where she
participated in the Co-Occurring Disorder Track designed to assist her with
substance abuse and mental health problems.
She was also seeing a doctor for psychotropic medication, attending
weekly Narcotics Anonymous (NA) meetings, parenting classes, and participating
in random drug testing.
In
June 2012, the juvenile court adjudged Sarah a dependent child and set the
dispositional hearing for July. Sarah
was placed in foster care.
In July 2012,
the department filed its dispositional report recommending that the juvenile
court deny mother reunification services under section 361.5, subdivision
(b)(10) and (11) because her reunification services and parental rights as to
Julia were terminated and mother failed to make reasonable efforts to remedy
the problems that led to Julia’s removal.
As evidence that mother failed to make subsequent reasonable efforts,
the department cited her failure to complete substance abuse treatment and
mental health treatment in Julia’s case.
As to the latter, the department reported that, as part of Julia’s
dependency, mother completed two mental health assessments and was diagnosed
with adjustment disorder with disturbance of emotions and conduct but would not
cooperate with treatment. In addition,
the department reported that mother had schizophrenia for which she received
social security income, and that she had a history of being involuntarily
committed because of her bizarre behavior.
The department also cited the many reports of mother’s bizarre behavior
following the first crisis referral in November 2011 and concerns that she was
“mentally unstable†and “detached from reality,†as well as mother’s express
paranoia that, for example, people were looking in her windows, wanting to
climb in her mouth and wear her clothes.
The department
further opined that mother’s prognosis for reunifying with Sarah was poor given
her untreated mental health issues and her statement to the social worker that
she did not like the way her medication made her feel. The department also advised the juvenile
court that Sarah’s foster parents were willing to adopt her.
At
the dispositional hearing, the matter was confirmed for trial and continued to
September 2012. Meanwhile, the
department filed an addendum report, informing the juvenile court that mother
tested positive for methamphetamine in early July 2012 while in Pathways and
was placed on a behavioral contract for that, as well as for unexcused
absences. She was discharged from the
program in late July, but was offered the opportunity to return by attending
the REACH OUT program, attending 30 meetings in 30 days, and meeting with her
counselor once a week. Mother declined. Mother said she used methamphetamine because
she was depressed and missed Sarah. She
also said that she had “too much on her plate and [could] not do
everything.â€
At
the contested hearing, mother was the sole witness. She testified she is a recovered drug addict
and that she attended NA meetings. On
cross-examination by minor’s counsel, she testified that she enrolled in drug
treatment in April 2012 but was kicked out of the program for violating her
contract. She said she was in the second
phase at the time and was two weeks short of completing the program. She said she did not attempt to reenter drug
treatment.
Mother further
testified that her mental health was not a concern when Julia was removed. At that time, she did not have a psychiatric
diagnosis, was not in therapy, and was not taking medication or seeing a
psychiatrist. She further testified that
she had been under the care of a psychiatrist for approximately a year and a
half and taking medication for schizoaffective
disorder.
During
argument, the attorneys all acknowledged mother’s mental health as being her
overriding problem. Minor’s counsel
characterized mother’s testimony as “disjointed and indicative of somebody who
has trouble with mental illness.†County
counsel questioned whether mother had the ability to reasonably address her
mental health problems on her own.
Nevertheless, they joined in arguing that mother should be denied
reunification services under section 361.5, subdivision (b)(10) and (11) for
failing to remedy her mental health and substance abuse problems following the
termination of her reunification services and parental rights as to Julia.
The
juvenile court concurred, stating:
“And looking at the
prior orders in the case involving Julia, originally mental health services
were not offered or considered something to be provided to [mother]. It wasn’t until I think the Department
assessed [mother], even at that young age, that they determined that a serious
mental health issue was being exhibited and needed to be addressed and
treated. And so at disposition, it was
specifically ordered based on also a diagnosis that was made in regards to what
the evidence shows was a serious concern at that time in the matter regarding
the mother and Julia.
“So it wasn’t just
an assessment that was ordered. It was
specifically mental health treatment to be ordered. And based on the information in the prior
case, the Department did make every effort to involve mother in mental health
services and, as stated, in the information provided, mother was very
uncooperative, did not complete those services and eventually services were
terminated and the relationship and parental rights were also terminated as to
between [mother] and Julia.
“I think substance
abuse issues was also raised at that time.
Although, it wasn’t the primary factor in this current case with Sarah,
there is mother’s testimony, as well as evidence in regards to the substance
abuse treatment and positive drug test that substances continue to be an issue
with the mother ….
“But I think
the pressing issue is the ongoing mental health issues that continued. And so I think the main issue that needed to
be addressed in this trial was whether mother had made any reasonable efforts
to treat that issue.
“I think the
[d]epartment has provided information in regards to a history of mental health
issues, [Welfare and Institutions Code section 5150] commitments, concerns
raised by the public health nurse prior to Sarah being removed, and even I think
there was at least one comment by a family member. And the [d]epartment identifies essentially
no effort by the mother in treating these mental health issues. And the only testimony or evidence provided
by the mother was her own testimony that she has recently returned to seeing a
psychiatrist and has recently begun taking medication.
“However,
there was no corroboration. There’s
nothing that has been submitted to show that any of that is true. And giving mother the benefit of the doubt
that it is true, it’s concerning in regards to the information as to some
missed appointments, conversations between the [d]epartment and the
mother.…
“So if she
is on medication, I think it’s unfortunate that there’s not more information as
to whether … the medication is treating the problem, whether there’s a good
prognosis that this medication can successfully assist mother in doing what’s
necessary to complete any services and/or overcome the issues that have led not
only to [Julia being removed years ago] but the more recent incident of Sarah
being removed.
“So there’s
nothing to corroborate mother’s testimony that she’s currently on medication
and seeing a psychiatrist, and there’s nothing to support that whether she’s
benefiting from that.
“So I do see
the issue being the same in that there was mental health issues primarily in
the past, along with substance abuse issues and, again today, mental health
issues continue with some substance abuse issues. But the focus, I believe, based on the
information provided is the mental health issues. And I don’t feel that there’s been sufficient
evidence to show that mother has made a reasonable effort to treat that.â€
The juvenile
court denied mother reunification services under section 361.5, subdivision
(b)(10) and (11) and set a section 366.26 hearing. Mother filed a writ petition challenging the
juvenile court’s orders denying her reunification services and setting the
section 366.26 hearing. (Cal. Rules of
Court, rule 8.450.) We stayed the
section 366.26 hearing pending our further order.
DISCUSSION
When the juvenile court removes a
child from parental custody, it must order reunification services unless it
finds by clear and convincing evidence that the parent satisfies any of the
exceptional circumstances set forth in section 361.5, subdivision (b). (§ 361.5, subd. (a).) Here, the juvenile court relied on section 361.5, subdivision (b)(10) and (11), which
in pertinent part:
“(b) Reunification services need not be provided
to a parent ... when the court finds, by clear and convincing evidence
...: [¶] ... [¶] (10) [t]hat the court
ordered termination of reunification services for any siblings ... of the child
because the parent ... failed to reunify with the sibling ... [and the] parent ...
has not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling ... of that child from that parent ...[;] [¶] (11)
[t]hat the parental rights of a parent over any sibling ... of the child had
been permanently severed, ... [and the] parent has not subsequently made a
reasonable effort to treat the problems that led to removal of the sibling ...
of that child from the parent.â€
Mother
contends that subdivision (b)(10) and (11) do not apply to her because Julia
and Sarah were removed for different reasons; Julia because of her drug use and
Sarah because of her mental illness.
Moreover, she contends the department failed to show that she did not
make reasonable efforts to treat her drug problem subsequent to her failure to
reunify with Julia. We disagree.
According to the
record, mother was diagnosed with mental illness during Julia’s dependency but
refused treatment. Over the years, her
mental illness became far more severe so that by the time Sarah was born,
mother was suffering from schizophrenia.
Mother did not, however, properly treat her mental illness as evidenced
by her bizarre behavior and multiple involuntary commitments. Further, though mother testified that she was
under the care of a psychiatrist and taking medication, the juvenile court did
not find her credible. On these facts,
we conclude substantial evidence supports the juvenile court’s finding that
mother failed to make reasonable efforts to treat her mental illness.
We further conclude
that mother failed to treat her drug problem.
She admitted to having a longstanding drug problem and she tested
positive for methamphetamine after Sarah’s removal. In addition, she made no effort to resume
drug treatment after she was discharged from her program. On that evidence, the juvenile court could
reasonably find that mother failed to make reasonable efforts to treat her drug
problem as well.
Mother further
contends that the juvenile court failed to make “the appropriate findings
regarding the 361.5(b)(10) and (11) and 361.5(c) criteria.†Section 361.5, subdivision (c) allows the
juvenile court to order reunification services if it finds by clear and
convincing evidence that reunification would serve the child’s best interest
even though the juvenile court found that the parent did not make reasonable
efforts under section 361.5, subdivision (b)(10) and/or (11).
Mother does not
identify the “criteria†the juvenile court was required to address in its
findings. Further, the record reflects
that the juvenile court not only found that mother failed to make reasonable
efforts under section 361.5, subdivision (b)(10) and (11) but discussed it at
some length as evidenced by its ruling quoted in our summary of the case. Additionally, the record reflects that the
juvenile court also expressly found that reunification would not serve Sarah’s
best interest. The juvenile court
stated: “[N]o evidence was really presented in this case on behalf of the
mother that would show clear and convincingly that reunification would be in
the minor’s best interest.â€
We affirm the juvenile
court’s findings under section 361.5, subdivision (b)(10) and (11) that mother
failed to make reasonable efforts to resolve the problems that led to Julia’s
removal. Thus, we also affirm its orders
denying mother reunification services and setting a section 366.26 hearing as
to Sarah.
Though we affirm, we
question the department’s wisdom of proceeding under either section 361.5,
subdivision (b)(10) or (11) in a case like this where the parent’s mental
health problems have deteriorated to the extent that mother’s have. It seems to us that section 361.5,
subdivision (b)(2)
address the situation that mother presented and may have been a more
appropriate fit.
The petition for extraordinary writ is denied. This court orders that this opinion is final
on the date it is filed. The stay order
filed in this court on December 19, 2012, is vacated. The stay order is dissolved effective the
date this opinion is filed.
name="_ftn1" title="">* Before Levy, Acting P.J., Gomes, J. and Kane, J.
are to the Welfare and Institutions Code unless otherwise indicated.
