v. Super. Ct.
Filed 1/28/13 Abigail K. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ABIGAIL K.,
Petitioner,
v.
THE SUPERIOR COURT OF MERCED
COUNTY,
Respondent;
MERCED COUNTY HUMAN SERVICES
AGENCY,
Real Party in Interest.
F065922
(Super.
Ct. Nos. JP000268, JP000452)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
extraordinary writ review. John D.
Kirihara, Judge.
David Haycraft, for Petitioner.
No appearance for Respondent.
James N.
Fincher, County Counsel, and Sheri Damon, Deputy County Counsel, for Real Party
in Interest.
-ooOoo-
Abigail K.
seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile
court’s orders issued at a contested and combined six and 18-month review
hearing (Welf. & Inst. Code, §§ 366.21, subd. (e) & 366.22, subd.
(a))
a section 366.26 hearing as to her four-year-old son M.K., two-year-old
daughter R.G., and one-year-old son O.G.
Abigail contends the juvenile court erred in finding that it would be
detrimental to return the children to her custody and that she was provided
reasonable services. We disagree and
deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Dependency
proceedings were initiated in July 2010, when the Merced County Human Services
Agency (agency) took then two-year-old M.K. and three-month-old R.G. into
protective custody after receiving a report that Abigail and R.G.’s father,
Oscar, were suicidal and engaged in domestic violence. The social worker who responded found Oscar
crying and the home in disarray. Oscar
said that he and Abigail were involved in a domestic dispute and he threatened
to kill himself with a knife. He said he
and Abigail threatened to kill themselves and each other, and the children were
not safe in their care. The social
worker observed prescription bottles of several medications on the floor
prescribed to Abigail. Abigail denied
needing mental health treatment or medication.
The agency
filed a dependency petition alleging that Oscar and Abigail’s domestic violence
and untreated mental illness placed the children at a substantial risk of
harm. The juvenile court detained the
children pursuant to the petition and the agency placed them in the custody of
M.K.’s paternal great aunt in Merced County.
The juvenile court set the jurisdictional/dispositional hearing for July
2010.
Meanwhile, Abigail told a social
worker that she had a difficult childhood and had been suicidal. She said she had been in counseling but
stopped going about a year and a half before because she was moving back and forth
between Stockton and Modesto and did not have transportation. In February 2010, she began counseling with
Tony Ryland in Los Banos and Dr. Haralson in Merced. She said she was diagnosed with
post-traumatic stress disorder, depression, anxiety attacks, split personality
and bipolar disorder, and was taking Paxil and Trazodone.
In September 2010, the juvenile court
ordered reunification services for Abigail and Oscar, as well as for M.K.’s
father, Joshua, and set the six-month review hearing for March 2011. Abigail’s services plan required her to
complete a parenting program, continue mental health counseling, complete a
medication evaluation and comply with any medication regimen prescribed.
By March
2011, Abigail had completed a parenting program but did not interact with the children
during visitation and was unable to divide her time between them. In addition, Abigail made three inter-county
moves, from Merced to Stanislaus to San Joaquin and back to Merced. Consequently, she was not in one place long
enough to receive any meaningful mental health services. In April 2011, Oscar was incarcerated for
sexually molesting Abigail’s eight-year-old sister. Abigail did not believe her sister was
molested and continued to defend Oscar despite his incarceration.
In its report for the six-month
review hearing, the agency recommended that the juvenile court terminate
reunification services for Abigail, Oscar and Joshua.
In May
2011, the juvenile court conducted a contested six-month review hearing. Abigail testified that she moved several
times out of necessity and that each move negatively affected her ability to
participate in services. She explained
that when a person moves to another county, it takes approximately 30 days for
Medi-Cal benefits to become effective in the new county. She said she was referred to Dr. Alfonzo
times before she moved again. Following
Abigail’s testimony, the agency changed its recommendation and asked the
juvenile court to continue her services and approve a revised services
plan. The juvenile court did so and set
the 12-month review hearing for August 2011.
The court also continued services for Joshua.
Abigail’s revised services plan
included an anger management/domestic violence assessment and group counseling
for childhood sexual abuse. It also
required Abigail to pursue mental health services in Merced County, request an
appointment for a mental health and medication assessment, and participate in
any treatment indicated. It also
required her to address specific issues through individual and/or group
therapy.
In August 2011, Abigail gave birth
to Oscar’s son, O.G., who was taken into protective custody and placed with his
siblings in foster care. By this time,
Abigail had completed an anger management assessment and was attending group
sessions for sexual abuse. However, she
did not understand how sexual abuse affected a child and denied that Oscar
sexually molested her sister. In
addition, she had not completed a medication evaluation.
In its
initial report for the 12-month review hearing, the agency recommended that the
juvenile court terminate Abigail’s reunification services for noncompliance and
failure to emotionally connect with her children and effectively manage their
behavior. However, in a subsequent
report, the agency asked the juvenile court to continue reunification services
for Abigail so she could participate in intensive family visitation services
and in domestic violence and anger management counseling.
In November
2011, at the 12-month review hearing, the juvenile court continued
reunification services for Abigail and Joshua and set the 18-month review
hearing for January 2012. That same
month, the juvenile court ordered reunification services for Abigail as to O.G.
and set the six-month review hearing for May 2012. The juvenile court denied Oscar reunification
services.
The six and
18-month review hearings were continued multiple times and convened as a
combined and contested hearing in August 2012.
In the meantime, Abigail settled in Stockton and married Justin, who had
a three-year-old son, Cody.
In November
and December 2011, Abigail’s visitation with the children was limited because
the children were sick. In mid-December
2011, Abigail told social worker Martinez that she was not participating in her
services. She did not think she had to
since she was not visiting the children.
She asked if Martinez could refer her for services in Stockton. Martinez told her it was too late because
there was a hearing scheduled in January 2012.
Martinez also explained that the agency had paid for several assessments
in different counties and Abigail had not taken advantage of them. Martinez told Abigail she needed to be
consistent and complete her services.
In late
January 2012, during a conversation about mental health counseling, Abigail
told Martinez she had never been referred for counseling and medication. Martinez reminded Abigail she was already
seeing a doctor and taking medication.
Abigail told Martinez she stopped taking medication when O.G. was born
because the doctor told her she no longer needed it. Martinez told Abigail to provide a statement
from the doctor stating she no longer needed medication. Several days later, Martinez contacted San Joaquin
Mental Health for a status of Abigail’s treatment and was given a release of
medical information form.
In early
February 2012, during a home visit, Abigail showed Martinez a doctor’s note
stating she could not take her medications, Paxil and Trazodone, during her
pregnancy. Abigail told Martinez she did
not know where to obtain mental health counseling and a medication evaluation
and did not think she needed to take medication anymore because of the doctor’s
note. Martinez reminded Abigail she had
been assessed and had appointments at San Joaquin Mental Health. Abigail acknowledged she went there but said
she did not believe the agency would accept Dr. Alfonzo’s assessment. Martinez faxed signed release of information
forms to Abigail’s mental health providers.
In late
February 2012, Abigail contacted Martinez to tell her that she attempted to
make an appointment at San Joaquin Mental Health but was told they did not
accept Medi-Cal. She also contacted
Merced County Mental Health and was told that her case was closed and that they
did not accept Stockton Medi-Cal.
Martinez asked Abigail if she would drop by the Merced office so she
could help her set up appointments.
Abigail said she could not because she had to transport Cody to his mother
for visitation.
In late
February 2012, Martinez received medical records from Community Medical Center
in Stockton stating Abigail was evaluated earlier in the month for a panic
attack and was prescribed medication.
She reported having panic attacks two to three times a week and a
history of anxiety since she was sixteen years old. In mid-March 2012, Martinez left the agency
and the following June social worker Irene Lopez was assigned the case. Ms. Lopez would later testify that she was
unaware if Abigail was assigned a social worker in that interim period.
In July
2012, Abigail told Lopez she had not completed her mental health
assessment. By late August 2012, with
Lopez’s assistance, Abigail was evaluated by a psychiatrist, prescribed medication,
and was participating in counseling.
In August
2012, the juvenile court convened the contested review hearing, which was
conducted over multiple sessions and concluded in October 2012. The agency’s recommendation was to terminate
reunification services and set a section 366.26 hearing as to all three
children. The agency’s position was that
the children could not be safely returned to Abigail’s custody and that Abigail
failed to comply with her mental health services. Abigail’s position was that the children
could be safely returned or alternatively that the agency did not provide her
reasonable mental health services.
Julianne
Sims-Culot testified that she provided Abigail weekly intensive visitation
beginning in October 2011. She had some
initial concerns about Abigail’s inattention to the children’s basic needs and
her ability to provide structure.
However, by March 2012, Abigail had progressed to the point that
Sims-Culot discussed arranging unsupervised visits in Merced. She described an unsupervised visit in April
that caused her particular concern.
Abigail, Justin, Abigail’s grandparents and the children met at a large
park. Sims-Culot drove by the park a little
after noon to check on the family and observed Abigail, Justin and Abigail’s
grandparents near the picnic table and the children on the playground
equipment. She estimated the distance
between the picnic table and the equipment was equivalent to a city block. She drove by about four times and noticed the
adults were not supervising the children.
She even sat and watched for seven to eight minutes before Justin went
over to check on them. She said it
concerned her because the children are small and had easy access to the street
so she intervened and told Abigail and Justin they needed to supervise the
children. She said Abigail had not
received any unsupervised visits since April.
Sims-Culot further testified that
she had concerns about Abigail’s ability to provide constant feeding for the
baby and to supervise the children. She
said Abigail was easily distracted and posed a potentially life-threatening
danger to the children.
Abigail testified on
cross-examination that Ms. Sims-Culot gave her a list of psychiatrists and
counselors in the Stockton area. Abigail
also said that she had been to the medical center in Stockton in 2010 and knew
where to go.
In October 2012, at the conclusion of the
hearing, the juvenile court found it would be detrimental to return the
children to Abigail’s custody and terminated her reunification services. The juvenile court also terminated Joshua’s
reunification services as to M.K. and set a section 366.26 hearing as to all
three children. This petition ensued.
Detriment
There is a statutory presumption at
each review hearing that the juvenile court will return the minor children to
parental custody unless it finds by a preponderance of the evidence that it
would pose a substantial risk of detriment to the child to do so. (§§ 366.21, subds. (e) & (f);
366.22, subd. (a).) A parent challenging
the juvenile court’s finding of detrimental return bears the burden of showing
that the juvenile court’s finding was error.
(Winograd v. American Broadcasting
Co. (1998) 68 Cal.App.4th 624, 632.)
Abigail contends the children can
be safely returned to her custody because she demonstrated an increased ability
to care for and supervise them. She
acknowledges the incident at the park was concerning but asserts she recognized
her mistake and did not repeat it. She
also points out that Justin will be there to help her manage the children.
In essence, Abigail does not argue
the juvenile court erred in not returning the children to her. She simply cites reasons why she believes it
could have.
Our role on review is not to
independently review the proceedings or reweigh the evidence to determine
whether the juvenile court could have made an alternative or contrary
finding. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Rather, we determine whether substantial
evidence supports the finding that the juvenile court made in this case, that
it would be detrimental to return the children.
In our view, such evidence exists in this record, most notably the
testimony of Ms. Sim-Culot, who testified Abigail was not only inconsistent in
her care of the children but inattentive to the point of endangering their
lives. Thus, we find no error in the
juvenile court’s finding it would be detrimental to return the children to
Abigail’s custody.
Reasonableness
of Services
Abigail contends she was not provided
reasonable mental health services because the agency did not maintain contact
with her or make reasonable efforts to help her obtain mental health counseling
and a medication evaluation by a psychiatrist.
To that end, she cites Martinez’s failure to contact San Joaquin Mental
Health on her behalf in January and February of 2012 and the agency’s failure
to assign her a social worker between March and June of 2012.
In dependency proceedings, each
family is unique with respect to its circumstances and needs and the agency is
duty-bound to make reasonable efforts to assist the family in its effort to
reunify. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1790.) The standard by which the agency’s efforts
are measured, however, is not perfection.
(Elijah R. v. Superior Court
(1998) 66 Cal.App.4th 965, 969.) Rather,
“the standard is … whether they were reasonable under the circumstances.†(Ibid.)
In this case, the agency could have been more
proactive in making sure Abigail completed a medication assessment and was
participating in mental health counseling.
At a minimum, it seems, it could have ensured that she had an assigned
social worker at all times. However,
notwithstanding all that the agency could have done, the question is whether
what it did was reasonable. In this
case, we conclude it was.
According to the record, the agency
provided Abigail with the proper mental health referrals. In addition, Abigail was very familiar with
mental health services and how to access them.
In fact, the record reflects that she utilized mental health services
for many years and was in therapy and taking medication before the children
were detained. Further, Abigail declined
to utilize services. For example, she
stopped participating in therapy in November and December 2011 because she was
not visiting the children. She also
decided not to take her medication after O.G. was born. Finally, she declined Martinez’s offer in
February 2012 to help her make appointments in Stockton. Given her refusal to participate, Abigail
cannot blame the agency for her lack of mental health services from November
2011 to February 2012.
The question then is whether the
agency’s failure to assign a caseworker between March and June of 2012 rendered
Abigail’s services unreasonable. On the
facts of this case, we conclude it did not.
During that interim period, Abigail had the regular support and guidance
of Sims-Culot who, according to Abigail, provided her a list of psychiatrists
and counselors in the Stockton area.
Further, though mental health services were an important aspect of
Abigail’s services plan, facilitated visitation was also important. Abigail acknowledges that she was provided
this “one-on-one instruction†and concedes that it was adequate. Given Abigail’s familiarity with mental
health services, Sims-Culot’s availability to assist her, and the agency’s
otherwise reasonable provision of services, we cannot say any deficiency in
providing mental health services, to the extent it occurred, rendered Abigail’s
services unreasonable.
Based on the foregoing, we conclude
Abigail was provided reasonable services.
Consequently, we find no error in the juvenile court’s orders
terminating her reunification services and setting a section 366.26 hearing and
we deny the petition.
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Levy, Acting P.J., Kane, J. and Peña, J.
name="_ftn2" title="">[1] All
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
