Amanda K. v. Super.
Filed 1/9/13
Amanda K. v. Super. Ct. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AMANDA K.,
Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
D062864
(San Diego County
Super. Ct. No. EJ3451)
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS
in mandate after referral to a Welfare and Institutions Code section 366.26
hearing. Gary M. Bubis, Judge. Petition denied. Request for stay denied.
Amanda
K. seeks review of a juvenile court order setting a hearing under Welfare and
Institutions Code section 366.26.
name="_ftnref1" title="">[1] Amanda contends that the court erred when it
found that she was offered or provided reasonable services. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Amanda
K. is the mother of Z.K., who was born in July 2011.
Major Depressive Disorder. In 2009, when
Amanda was 18 years old, she began prostituting herself. Amanda lived on the streets until she
returned, pregnant, to her mother and father's home.
In
August 2011, less than three weeks after Z.K.'s birth, Amanda left Z.K. with
his maternal grandparents to go to a party.
She was gone for four days. When
Amanda returned, she told her mother that she was leaving with Z.K. The maternal grandmother was concerned about
Amanda's ability to care for Z.K. and contacted law enforcement authorities for
assistance. A sheriff's deputy responded
to the call and learned that Amanda was not taking her prescribed psychotropic
medication. She did not appear stable
and insisted on leaving the home with Z.K.
The sheriff's deputy contacted child protective services.
The
San Diego County Health and Human Services
Agency (Agency) detained Z.K. in protective custody and filed a petition
under section 300, subdivision (b), alleging that Amanda's mental health
condition prevented her from providing regular care to Z.K. In its jurisdictional and dispositional
report to the court, the Agency stated that the greatest challenges to
reunification were Amanda's unstable mental health condition and her economic
circumstances. Amanda had a history of
violent outbursts when she did not follow her prescribed medication
regimen. The social worker reported that
Amanda's history of prostitution and her substance abuse were complicating
factors, but there was no evidence to show that Amanda had recently engaged in
prostitution or drug use.
The
juvenile court sustained the section 300 petition and removed Z.K. from
Amanda's custody.
title="">[3] Amanda's court-ordered case plan required her
to continue to meet with her psychiatrist every month, participate in
individual therapy with an approved therapist, participate in support services
for women leaving prostitution (leaving prostitution program or program) under
the therapist's guidance, complete a parenting education class and submit to
on-demand drug testing.
In
March 2012, at the six-month status review hearing, the Agency recommended that
the juvenile court continue services to Amanda for another six-month
period. Amanda had been participating in
therapy for approximately three months.
She did not attend a leaving prostitution program, claiming that doing
so would interfere with her visitation with Z.K. and that that particular
program was only for women under the age of 18 years. The social worker asked Amanda to find
another program. In November 2011, the
social worker referred Amanda to in-home family parenting services. Amanda began participating in parenting
services in February 2012. She missed
sessions on February 20 and 27. Amanda
was provided visits with Z.K. at the
local library every day for three to four hours. However, Amanda did not always show up for
visits. When she did show up, she was
constantly talking or texting on her telephone during the visits. Amanda claimed that she was taking her
medication every day, but the maternal grandmother reported that Amanda was not
taking her medication.
The
court found that adequate and reasonable services had been offered or provided
to Amanda, and that Amanda had not made substantive progress in her
court-ordered case plan. The court
continued services to the 12-month review date.
In
March, Amanda was a victim of domestic violence. A boyfriend hit and injured her, and took her
cell phone and money. Amanda refused to
provide information about another boyfriend to the Agency. The maternal grandmother believed that this
boyfriend was Amanda's pimp.
In
April, despite repeated reminders by the social worker and maternal
grandmother, Amanda did not attend a medical surgical appointment for Z.K. Amanda last visited Z.K. in June.
At
the end of June, Amanda was arrested for prostitution. She was released on bail within 24
hours. Shortly after July 4, Amanda went
to Las Vegas, in violation of her conditions of release. On August 10, she was arrested at a casino
for soliciting and prostitution, and was returned to San Diego and jailed.
The
12-month review hearing was held on October 11, 2012. The Agency recommended that the court
terminate family reunification services and set a section 366.26 hearing. Amanda asked the court to extend services to
the 18-month review date.
The
social worker reported that Amanda last met with her therapist on May 15. Amanda participated in a total of five
therapy sessions. The therapist said
that Amanda was resistant to treatment and that she did not understand the
connection between her activities and risk to Z.K. Amanda did not attend a leaving prostitution
program. The social worker said that she
had given Amanda referrals to a leaving prostitution program on multiple
occasions. When there was some confusion
about the program, the social worker advised Amanda to "keep trying and
work on it".
The
social worker reported that Amanda did not consistently attend her in-home
parenting classes and that she had been discharged from that program. The social worker did not know whether Amanda
was complying with her medication regimen.
She had referred Amanda to the Spring Valley Health Center on many
occasions but Amanda never made an appointment.
While in jail, Amanda completed an 18-hour parenting education class,
and a one-hour class on family, social and emotional development.
The
social worker testified that she learned that Amanda was in jail in
August. She did not set up any visits
between Amanda and Z.K. before the September 12 court date. At court, Amanda requested a visit with Z.K,
and the social worker set up a visit between Amanda and Z.K. at the jail.
Amanda
testified that her visits were cut off in April 2012 because she had missed
three visits due to illness, and had missed two other visits due to
transportation problems. She contacted the
social worker about reinstating visitation and the social worker told Amanda
that she would look into setting up visits.
Amanda said that she did not hear back from the social worker. She met with the in-home parenting service
provider over a period of three months, but that service ended at the same time
her visits with Z.K. stopped. Amanda
said that she attended therapy from January to June 2012. She said that she may have missed a few
sessions and claimed that the therapist was not there on several
occasions. Amanda testified that in
addition to completing a parenting class and a class on family development in
jail, Amanda had participated in a child protective services class, and had
obtained a food handler's certificate and her GED.
Amanda
said that she was in compliance with her medication regimen. She had a referral to the Family Health
Center and was waiting to see a psychiatrist who worked at the Center twice a
month. On March 14, the social worker
referred Amanda to a leaving prostitution program, Survivors of the
Streets. Amanda said that she had left
three messages at the number the social worker provided but was not able to
contact anyone at that number. She said
that when she told the social worker that she was having problems contacting
the program, the social worker advised her to keep trying.
The
court found that Amanda and the social worker were both credible and that their
testimony did not conflict. The court
commented that the Agency could not force an unwilling or indifferent parent to
accept services. The court found that
Amanda's case plan was appropriate.
Amanda complied with services when she was in jail but when she was on
her own, her participation in services was intermittent. The court found by clear and convincing
evidence that the Agency had offered or provided reasonable services to
Amanda. At the conclusion of the
hearing, the court terminated reunification services and set a section 366.26
hearing for February 5, 2013.
Amanda
petitioned for review of the court's order under California Rules of Court,
rule 8.452. She requests that this court
reverse the order setting a section 366.26 hearing. This court issued an order to show cause, the
Agency responded, and the parties waived oral argument.
DISCUSSION
A
Family reunification
services play a critical role in dependency proceedings. (§ 361.5; In re Alanna A. (2005) 135 Cal.App.4th 555, 563 (
§ 629a(a)(7).) Services "may
include provision of a full array of social and health services to help the
child and family and to prevent reabuse of children." (§ 300.2.) Reunification services should be tailored to
the particular needs of the family. (
123 Cal.App.4th 768, 793 (David B.),
citing In re Alvin R.
(2003) 108 Cal.App.4th 962, 972.)
At each review
hearing, the court is required to determine the "extent of the agency's
compliance with the case plan" in making reasonable efforts to return the
child to a safe home. (§ 366, subd.
(a)(1)(B).) "The standard is not whether the services provided were the best
that might be provided in an ideal world, but whether the services were
reasonable under the circumstances."
(In re Misako R.
(1991) 2 Cal.App.4th 538, 547.) To
support a finding that reasonable services were offered or provided to the
parent, "the record should show that the supervising agency identified the
problems leading to the loss of custody, offered services designed to remedy
those problems, maintained reasonable contact with the parents during
the course of the service plan, and made reasonable efforts to assist
the parents in areas where compliance proved
difficult . . . ."
(In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The "adequacy of reunification plans and
the reasonableness of the [Agency's] efforts are judged according to the
circumstances of each case." (
33 Cal.App.4th 1158, 1164.) If
reasonable services are not provided or offered to the parent, the court is
required to continue the case for the period of time permitted by statute. (See § 366.21, subds. (e) &
(g)(1).)
We
review a reasonable services finding to determine if it is supported by
substantial evidence. (
Cal.App.4th 404, 414.) We review the
evidence most favorably to the prevailing party and indulge in all legitimate
and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at
p. 545.) The burden is on the
petitioner to show that the evidence is insufficient to support the juvenile
court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Amanda contends
that she did not receive reasonable reunification services. She argues that the Agency did not offer her
a psychological evaluation by an Agency-approved, preselected evaluator and
help her to enroll in a leaving prostitution education program. She also contends that she was not given
adequate visitation services. Finally,
Amanda maintains that the social worker did not offer or provide reasonable
services, including visitation, to her while she was in jail.
Amanda has forfeited her
claim that the Agency denied her reasonable services when it failed to refer
her to a psychological evaluation.
During the proceedings, Amanda had multiple opportunities to request a
psychological evaluation. However, she
did not raise the issue in the juvenile court.
She therefore cannot claim error in this
court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222
[forfeiture is intended to prevent a party from standing by silently until the
conclusion of the proceedings].)
Even if we were to consider
Amanda's claim that she was denied a psychological evaluation, we would
conclude that the claim is without merit.
When Z.K.'s dependency case began, Amanda informed the social worker
that she was under the care of a psychiatrist and that she had been prescribed
medication for her mental health condition.
She was diagnosed with Bipolar Disorder and Major Depressive
Disorder. Amanda's case plan required
her to continue seeing her psychiatrist on a monthly basis to monitor her use
of psychotropic medication, and to participate in individual therapy with an
approved counselor. The case plan did
not require Amanda to undergo another psychological evaluation unless it was
recommended by her therapist. The case
plan stated, "While in therapy, the mother will address: any
recommendations [for] psychological/psychiatric evaluations, clarification on a
mental illness diagnosis, the parent will create a safety plan for how to deal
with her mental illness and how to keep this from affecting her own and her
child's safety." There is no
indication in the record that Amanda did not have access to psychiatric care,
that her mental health diagnosis was at issue, or that her therapist
recommended another psychological
or psychiatric evaluation.
We are not
persuaded by Amanda's argument that she did not receive reasonable visitation
services. Before Z.K. was placed with
his grandparents, Amanda had visits with him two to three times a week. After Z.K. was placed with his grandparents,
Amanda was able visit Z.K. daily in a structured public setting. However, she did not always show up for
visits. Amanda did not attend a surgical
appointment for Z.K. in April. After the
six-month review hearing, Amanda did not consistently visit Z.K. At some point in time that is not clear from
the record, the Agency imposed supervision requirements on Amanda's
visitation. The visitation center
terminated Amanda's visitation because she frequently failed to show up for
visits. Although Amanda claims that the
social worker was not responsive to her requests to reinstate visitation, the
record shows that the social worker met with Amanda in May. Amanda visited Z.K. in June. The social worker tried unsuccessfully to
contact Amanda in June and July. Amanda
was arrested in late June. After she was
released on bail, Amanda went to Las Vegas, where she was again arrested for
solicitation and prostitution. It is not
clear how Amanda expected to visit Z.K. when she was on the run from law
enforcement in another state. At a
hearing on September 12, Amanda asked the social worker to arrange a visit with
Z.K. at the jail, which the social worker did.
The record shows that visitation services were reasonable under the
circumstances.
Amanda's
contention that the social worker did not provide reasonable services to her
while she was in jail is without merit.
Amanda completed a parenting program and another class while she was
incarcerated. She participated in a
child protective services program and met with two social workers. Amanda received a food handler's certificate
and completed her GED. It is not relevant
that these services were provided to Amanda by another government agency. It is an unwise use of scarce public
resources to require the agency to duplicate services that a parent is readily
able to access through other providers.
(Cf. Alanna A.,
["Resources available to the juvenile court are not unlimited"].)
Finally, as to
Amanda's contention that the social worker did not help her enroll in a leaving
prostitution program, the record shows that Amanda told the social worker that
she did not qualify for the first program to which she had been referred
because she was over the age of 18 years.
The social worker told Amanda that she should find another program. In March 2012, after Amanda was assaulted,
the social worker gave Amanda a referral to another leaving prostitution
program, Survivors of the Streets.
Amanda testified that she left three messages at that telephone number
but was unable to contact anyone at that program. The court found that Amanda's testimony was
credible. The social worker encouraged
Amanda to "keep trying and work on it" but did not help her enroll in
the required service.
The social
worker's response to Amanda's unsuccessful efforts to enroll in a court-ordered
program does not constitute best practices. The social services
agency has an obligation to make reasonable efforts to
assist parents in areas where compliance proves difficult. (In re Riva M.,
p. 414.) Once Amanda advised the
social worker that she had tried to contact the program on multiple occasions
and that no one had responded to her inquiries, the social worker had an
obligation to assist Amanda by contacting that program or by providing
referrals to other suitable programs or services.
Although the services
provided to Amanda were not perfect, we conclude that they were reasonable under the
circumstances. (In re Misako R., supra,
2 Cal.App.4th at p. 547.) There is substantial evidence to support the finding that reasonable
reunification services were offered or provided to Amanda.
DISPOSITION
The petition is denied.
The request for stay is denied.
AARON,
J.
WE CONCUR:
McCONNELL, P.
J.
BENKE, J.
name="_ftn1" title="">[1] Further statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] The identity of Z.K.'s
father was not established.
