N.M. v. Super. Ct.
Filed 2/4/13
N.M. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
N.M.,
Petitioner,
v.
THE SUPERIOR COURT OF
MERCED COUNTY,
Respondent;
MERCED COUNTY HUMAN
SERVICES AGENCY,
Real Party in Interest.
F066019
(Super. Ct. No. JP000226)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
William A.
Davis for Petitioner.
No
appearance for Respondent.
James N.
Fincher, County Counsel, and Sheri L. Damon, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
N.M. (mother)
seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile
court’s orders terminating her reunification
services at a contested dispositional hearing on a supplemental petition
(Welf. & Inst. Code, § 387)
three-year-old daughter, Angelica, and two-year-old son, Eduardo. She contends the juvenile court erred in
finding that she was provided reasonable services. We disagree and deny the petition.
FACTUAL
AND PROCEDURAL SUMMARY
In April
2010, the Merced County Human Services
Agency (agency) took then 11-month-old Angelica and newborn Eduardo into
protective custody after their father, Alfonso, was arrested for domestic
violence and mother was involuntarily committed for attempting to commit
suicide by slitting her throat. Mother
denied attempting suicide and claimed that a woman tried to kill her and take her
children. Authorities ultimately verified
her story.
In May
2010, the juvenile court exercised its dependency
jurisdiction over the children and ordered them returned to Alfonso and
mother’s custody under a plan of family maintenance. Under the plan, mother and Alfonso were
ordered to participate in a parenting education program as well as an anger
management and/or domestic violence program.
In addition, the juvenile court ordered mother to complete a mental
health evaluation and comply with any recommended treatment. The juvenile court set a family maintenance
review hearing for November 2010.
Mother and
Alfonso participated in their court-ordered services and in November 2010, the
juvenile court continued family maintenance services and set a review hearing
for May 2011.
Meanwhile,
in December 2010, mother left the family home with the children and checked
into a battered women’s shelter. She
claimed that Alfonso controlled and isolated her and would not let her end the
relationship. She also claimed he
threatened to have the children taken away and forced her to have sex in front
of the children. Alfonso denied
physically or sexually abusing mother and said she abused him. He said she initiated arguments and slapped
him in front of the children. After
several days at the shelter, mother left, wanting to return to Alfonso.
In January
2011, the agency took the children into protective
custody and filed a supplemental petition (§ 387), alleging that
family maintenance had proven ineffective in protecting the children and asking
the juvenile court to remove them from the home. In its report for the hearing on the
advised the juvenile court that mother and Alfonso admitted arguing and
engaging in physical fights while living together. The agency recommended that the juvenile
court provide them reunification services to address domestic violence and to
work toward reunifying with the children.
The
juvenile court vacated the family maintenance review hearing set for May 2011
and in February 2011, sustained the supplemental petition, ordered family
reunification services for both parents, and set a 12-month review hearing for
May 2011. Mother was ordered to continue
mental health counseling and complete domestic violence and parenting
programs.
In May
2011, the juvenile court continued reunification services for mother and
Alfonso until the 18-month review hearing, which it conducted in December
2011. By that time, mother completed
programs in parenting education and domestic
violence. In addition, she was
diagnosed with depression for which she was taking medication. Alfonso, meanwhile, had been deported to
Mexico. Prior to his deportation, he was
not consistently participating in services and was engaging in domestic
violence. In its report for the review
hearing, the agency recommended that the juvenile court terminate Alfonso’s
reunification services and return the children to mother with family
maintenance services.
In December
2011, at the 18-month review hearing, the juvenile court adopted the agency’s
recommendations and set a family maintenance review hearing for mother in June
2012. The juvenile court ordered mother
to continue mental health counseling and make an appointment with her
psychiatrist, if her psychiatric condition worsened. In June 2012, the juvenile court continued
the family maintenance review hearing to July.
Between
February and July 2012, the agency received several reports concerning the
children’s safety, including reports that mother allowed Angelica to go to the
store with a man who was going to give her candy, left the gas on in the home
while the children were present, allowed an alleged male gang member to live
with her, and physically abused the children.
The agency deemed the reports unfounded but observed that mother had
difficulty processing information. The
agency recommended that the juvenile court continue family maintenance services
but also recommended that mother complete a psychological evaluation to assess
her for a processing disorder.
In July
2012, the juvenile court continued family maintenance services and set a review
hearing for January 2013. The juvenile
court also approved an amended family maintenance services plan that required
mother to complete a psychological evaluation and follow any recommended
treatment.
In August 2012, the agency received a
call from mother’s day care provider stating that mother arrived intoxicated
and over three hours late to pick up the children. Mother’s friend told the responding social
worker that mother needed help. He said
she confided in him that she needed medication for depression and told him she
heard voices, had horrible dreams, and does not “belong to this world.â€
Mother
admitted drinking alcohol and feeling depressed. She also admitted that she drank alcohol
while the children were in foster care.
She said her psychiatrist asked her if she drank alcohol and she denied
it.
The agency took the children into
protective custody and filed a supplemental petition, which the juvenile court
sustained. The children were placed with
a non-relative extended family member.
In its report for the dispositional hearing on the supplemental
petition, the agency recommended that the juvenile court terminate mother’s
reunification services and deny them to Alfonso.
In October 2012, the juvenile court
conducted a contested dispositional hearing on the supplemental petition. Social worker Bert Navarro was the only
witness. He testified that, in addition
to parenting education, domestic violence counseling and mental health
counseling, mother received extensive in-home support. The agency was not, however, able to provide
mother a psychological
evaluation because she preferred a Spanish-speaking psychologist and the
agency was unable to locate one.
At the conclusion of the contested
hearing, the juvenile court found that the agency provided mother reasonable
services. The juvenile court terminated
mother’s reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Mother contends the juvenile court
erred in finding that she was provided reasonable services because the agency
did not offer her treatment for alcohol abuse.
Therefore, she further contends, the juvenile court erred in terminating
her reunification services. We disagree.
The provision of reunification
services in dependency proceedings is premised on the state’s interest in
preserving the family and the parent’s commitment to utilizing those services
to resolve the problem(s) that required juvenile court intervention. (In re
Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) The agency is charged with developing a
services plan that addresses the unique needs of the family. (Id.
at p. 1790.) Further, when circumstances
change over the course of reunification, the agency may be required to modify
the services plan in order to facilitate reunification.
As for the parent, the law presumes
that the parent is capable of complying with a reasonable services plan. (In re
Christina L. (1992) 3 Cal.App.4th 404, 415.) “A parent whose children have been adjudged
dependents of the juvenile court is on notice of the conduct requiring such
state intervention. If such a parent in
no way seeks to correct his or her own behavior or waits until the impetus of
an impending court hearing to attempt to do so, the legislative purpose of
providing safe and stable environments for children is not served by forcing
the juvenile court to go ‘on hold’ while the parent makes another stab at
compliance.†(In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
In this case, Angelica and Eduardo
were removed from mother because she engaged in domestic violence and appeared
to be mentally unstable. The agency
provided her services to address these as well as parenting issues. In total, mother received over two years of
family maintenance and family reunification services. Further, she knew that she had a problem with
alcohol but denied it. In doing so, she
deprived herself the opportunity to receive substance abuse treatment and
compelled the agency to remove her children once again. Under the circumstances, mother cannot now
claim that the agency was unreasonable in not addressing a problem that she
refused to admit.
We affirm the juvenile court’s
reasonable services finding and its orders terminating mother’s reunification
services and setting a section 366.26 hearing and deny the petition.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
J.
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
