In re Alyssa O.
Filed 2/5/07 In re Alyssa O. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ALYSSA O., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TERRI B., Defendant and Appellant. | D049239 (Super. Ct. No. NJ12930A) |
APPEAL from an order of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.
Terri B. appeals from an order of the juvenile court authorizing administration of psychotropic drugs to her minor daughter, Alyssa O., under Welfare and Institutions Code section 369.5.[1] Terri contends the juvenile court abused its discretion by authorizing the administration of psychotropic medications for Alyssa because the court lacked adequate information to make an informed decision. We affirm the order.
FACTUAL AND PR€OCEDURAL BACKGROUND
Alyssa was born in November 2000 and is the eighth of Terri's nine children. In August 2004 the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b) on Alyssa's behalf. The petition alleged Alyssa was at substantial risk of serious physical harm due to Terri's failure to provide adequate supervision.
The Agency submitted a detention report noting Terri had a long history of involvement with child protective services including more than 70 child abuse referrals and several earlier dependency matters. Terri also had a lengthy criminal record and several convictions for child cruelty, battery, robbery and welfare fraud. The detention report noted Alyssa suffered from behavioral delays. She had temper tantrums that involved kicking, biting and hitting others. In August 2004, the court held a detention hearing, made a prima facie showing on the petition, and detained Alyssa in out-of-home care. In August 2004, the court held a jurisdiction hearing. Terri was present with counsel and submitted to jurisdiction. After a contested disposition hearing, the court removed Alyssa form Terri's custody and placed her in licensed foster care. The court ordered Terri to participate in services and the Substance Abuse Recovery Management System program (SARMS) and submit to a psychological evaluation.
During the next six months, the Agency placed Alyssa in her fifth foster home since her removal from Terri's custody. Alyssa's behaviors, although improving, made it difficult to maintain placement. Alyssa was attending preschool but showed signs of attention deficit and an inability to control her behavior. She continued to have tantrums in addition to hitting and biting others. Terri continued to have difficulties complying with her reunification plan. She had not participated in services and had refused to comply with a SARMS evaluation. Terri further had difficulties cooperating with the Agency and had threatened twice to kidnap Alyssa in the months before the six-month review hearing. The social worker recommended the court continue services for an additional six months in an effort to provide Terri with the opportunity to follow her case plan.
The 12-month report indicated Alyssa continued to suffer from behavioral difficulties. She suffered from tantrums and although she attended kindergarten, she remained behind in her emotional and cognitive development. Alyssa had problems with sitting still, fought with other children, and frequently was disrespectful to adults. As a result, Alyssa was sent regularly to the school principal. Terri remained noncompliant with her services. There was no verification that she attended counseling and Terri believed she should not be required to participate in SARMS. The social worker believed prospects of reunification appeared poor and recommended the court terminate services.
The Court Appointed Special Advocate (CASA) for Alyssa filed a report in October 2005. The report was in agreement with the social worker's recommendation set forth in the 12-month report. The CASA met with Alyssa at her current foster home. The foster mother informed the CASA that Alyssa had to be kept under close supervision because she lacked a sense of self-restraint. Alyssa continued to struggle with tantrums and exhibited inappropriate behavior toward other children smaller than her and to animals. However, Alyssa appeared to be happy at her current foster home and the CASA believed because Terri had not completed any of her services or shown an ability to care appropriately for Alyssa, it would be in Alyssa interests to maintain her current placement.
In December 2005, after receiving more than 12 months of reunification services, the court terminated services and set a selection and implementation hearing under section 366.26. The report for the section 366.26 hearing summarized the behavioral problems exhibited by Alyssa during her months as a dependent of the court. Alyssa showed signs of sexualized behavior including exposing herself, pulling other children's pants down, and trying to engage the other children in sexualized play. She had a history of having severe tantrums in addition to acting violently toward others and had a possible diagnosis of " Reactive Attachment Disorder and Intermittent Explosive Disorder." As a dependent, Alyssa had been in a total of 11 placements.
Before the section 366.26 hearing, Alyssa's doctor filed a JV-220 form requesting an order authorizing the administration of psychotropic medications, Risperdal or Seroquel, to Alyssa. The application indicated Alyssa had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Intermittent Explosive Disorder. The medication was intended to address Alyssa's violent behavior toward others including showing aggression toward peers and Agency staff. The Agency reported Alyssa had been removed from her prospective adoptive placement because the caregiver feared she would hurt someone or herself. While at the Polinsky Children's Center (PCC), Alyssa acted violently against a social worker causing injury to the worker. Alyssa further yelled at staff, " I wanna kill all of you." Alyssa's therapist believed medication would be helpful to control the violent tendencies. The social worker noted Alyssa's behavior and years of instability contributed to the 12 placement changes made during the dependency proceedings.
The court held a hearing to address the possible administration of medication. Terri opposed the request for medications and the court expressed its concern about administering psychotropic medications to a young child. The court requested the Agency obtain a second expert opinion. The Agency subsequently submitted an addendum report claiming a second opinion was pending but that a doctor had administered a very low dose of Risperdal for Alyssa on an emergency basis and Alyssa showed signs of improvement.
Dr. Jeffrey Rowe provided the court with a second opinion concerning the administration of Risperdal for Alyssa. He evaluated Alyssa and noted that for about two
years, she had exhibited aggressive behavior toward her peers and staff. She suffered from angry outbursts, hyperactivity, attention problems and was observed inappropriately touching others around her. It was because of these actions that Alyssa had been removed from most of her foster placements. The most violent incident resulted in an Agency staff member requiring stitches. Dr. Rowe noted Risperdal and Seroquel are commonly used to treat extreme aggressive behavior and mood instability. In addition, the drugs have been used in small doses to treat young children. Concerning possible side effects, Dr. Rowe discussed the fact the drugs have been known to cause diabetes but because Alyssa was not overweight, he believed the drugs could be safely administered while being closely monitored by a doctor.
At a subsequent hearing to address the administration of the psychotropic drugs, the court stated it had reviewed the reports and discussed the matter with Dr. Rowe. The court found the doctor's recommendation to be in Alyssa's best interests in an effort to stabilize her behavior and find her a permanent placement. The court authorized the administration of the medication.
DISCUSSION
I
Terri claims the court did not properly exercise its discretion when it authorized the use of the psychotropic drug, Risperdal, for Alyssa. She contends the court did not have adequate information to make a reasoned decision because the court did not seek a second independent opinion to address the safety of the medication.[2]
A
Section 369.5, subdivision (a) provides that " only a juvenile court judicial officer shall have authority to make orders regarding the administration of psychotropic medications" for a dependent child who has been removed from parental custody. " Court authorization for the administration of psychotropic medication shall be based on a request from a physician, indicating the reasons for the request, a description of the child's diagnosis and behavior, the expected results of the medication, and a description of any side effects of the medication." (Ibid.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994)7 Cal.4th 295, 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The Judicial Council adopted rule 5.640 (former rule 1432.5), which sets forth the procedure for obtaining court authorization for the administration of psychotropic medication to a dependent child. The procedure is initiated by the filing of an application. Rule 5.640(c) provides that the application " must be completed and presented to the court, using [Judicial Council Form JV-220,] Application and Order for Authorization to Administer Psychotropic Medication-Juvenile." Rule 5.640(c)(2)(A) clarifies the request must state " [t]he diagnosis of the child's condition that the physician asserts can be treated through the administration of the medication." Rule 5.640(c)(2) also requires the request to list the recommended dosage, the length of the course of treatment, and a description of other relevant treatment plans. Counsel must be given the opportunity to file a statement in opposition or to request additional information and the court may, but is not required to, set a hearing. (Ibid.) Neither section 396.5 nor rule 5.640 require more than one expert opinion be considered by the court before authorizing medication.
B
The court properly exercised its discretion by requesting and considering a second expert opinion after receiving the initial request for authorizing the administration of a psychotropic medication. The court first received a JV-220 form submitted by Dr. Joan Gildin. Dr. Gildin filed the form in compliance with rule 5.640 by indicating a diagnosis, the recommended dosage, and appropriate treatment plans for Alyssa. Specifically, Dr. Gildin reported Alyssa had been diagnosed with ADHD and Intermittent Explosive Disorder. In addition to listing the diagnosis, Dr. Gildin elaborated that Alyssa had physically injured her peers and staff members. The form listed two possible choices of medications to treat Alyssa and indicated the recommended dosage. In addition to medication, Dr. Gildin recommended a treatment plan for Alyssa that included group and individual therapy. After receiving the JV-220 form, the court held a hearing to address the request. Terri had objected to the request and the court noted its concerns about authorizing psychotropic medications to Alyssa because of her young age. Based on its concerns, the court requested a second expert opinion.
Dr. Rowe subsequently evaluated Alyssa and submitted his report to the court. Terri argues Dr. Rowe's opinion was not independent because he was Dr. Gildin's supervisor. However, the record does not indicate Dr. Rowe acted improperly or was unqualified. Dr. Rowe is a psychiatrist in juvenile forensics and conducted an independent evaluation of Alyssa in addition to considering the possible side effects of the medications. Dr. Rowe acknowledged in his report Alyssa had suffered from two years of aggressive and violent behavior, angry outbursts, hyperactivity, and attention problems. The Agency had reported 15 incidences of aggressive behavior exhibited by Alyssa. Her behavior led to the frequent changes in foster home placement. Dr. Rowe noted while Alyssa was placed at PCC, her aggressive behavior caused the injury of a staff member. Dr. Rowe addressed the court's concerns of administering medication to Alyssa by applying a " risk versus benefit" analysis. Dr. Rowe felt that the benefit Alyssa would receive from the medications to treat her extreme behavior and the danger she posed to herself and others outweighed any risk. Further, the medications had been used with children in Alyssa's age group at low doses. Any possible side effects could also be closely monitored by Alyssa's doctor. In addition to Dr. Rowe's second opinion, the court received information that an emergency application of Risperdal had been administered to Alyssa and showed positive results. The court here was not required to seek a second opinion but did so in an effort to ensure the safety of administering the medications to Alyssa. The two opinions provided the court with adequate information to make an informed decision. The court acted within its discretion by requesting and considering a second opinion and by granting the order.
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line attorney.
[1] All statutory references are to the Welfare and Institutions Code.
[2] We note the Agency's contention that Terri violated the California Rules of Court by including facts in her opening brief that were not considered by the trial court. The facts presented in the brief include additional medical literature concerning the uses of psychotropic medications for use on children. Terri, however, does not offer explanation for why the facts were not produced at trial when it appears the literature was available at the time of the hearing and could have been presented to the trial court. (See Cal. Rules of Court, rule 8.252 [all further rule references are to the California Rules of Court].) Accordingly, we will not consider facts outside of the designated record. In any event, the facts as presented by Terri do not explicitly express the opinion that Risperdal should not be administered to children.
