A.T. v. Super.
Filed 5/23/13 A.T. v. Super. Ct. CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
COUNTY
& HUMAN SERVICES et al.,
Parties in Interest.
A138097
(
Super.
Petitioner
A.T. (mother) has two children, G.T. and M.T.
The children were declared dependents of the juvenile court, removed
from mother’s custody, and returned to her at the 12-month review hearing. (Welf. & Inst. Code, §§ 300,
366.21.)
for the children due to her mental
health and anger management issues, and the court again removed the
children after sustaining petitions under sections 342 and 387. Mother seeks extraordinary writ relief from
an order denying her additional reunification
services and setting the case for a hearing under section 366.26. She argues that the court should have granted
her an additional period of reunification services because the services
provided to date had been inadequate. We
disagree and deny the writ petition.
I. BACKGROUND
Mother
gave birth to her daughter, G.T., in February 2009. The Humboldt
County Department of Health and Human Services (Department) received a
referral for general neglect of the newborn baby, based on a report that mother
was belligerent and mentally unstable while in the hospital to give birth and
that she lacked adequate baby supplies.
Mother utilized community resources and the report was deemed
inconclusive.
In
January 2011, when G.T. was almost two years old, the Department again received
a referral for G.T. alleging that she had suffered
of her stepfather, Gary T., due to severe domestic
violence that he inflicted on mother.
Mother was hospitalized as a result of one such episode.
On
March 16, 2011, G.T. was
admitted to the hospital emergency room with injuries that included a swollen
left eye, two cuts above the eye, and bruising behind her right ear. A CT
scan revealed fluid, most likely blood, in her maxillary sinus. Mother told a Department social worker that
G.T. had awakened her at 2:30 a.m. She was fussy, so mother put her on a bean
bag chair and turned on a movie. Mother
went back to sleep and when she awakened again at 5:30 a.m.,
G.T. had the injuries. Mother said that
G.T. must have fallen out of her bean bag chair and hit her head on a night
stand or jewelry box in the room. She
admitted arguing with Gary T. that night but claimed the argument had not
become physical. The emergency room
doctor who treated G.T. opined that her injuries were inconsistent with the
facts reported by mother.
G.T.
was taken into protective custody and
a petition was filed alleging that she was a dependent child as described in
section 300, subdivisions (a), (b), and (e).
In April 2011, while the petition was pending, mother gave birth to
G.T.’s half-brother, M.T., whose father was Gary T. M.T. was taken into protective custody and a
petition was filed alleging that he was a dependent child under section 300,
subdivision (j), due to acts of abuse and/or neglect against his
half-sibling. Mother was convicted of
felony child abuse based on G.T.’s injuries and was placed on probation.
The
juvenile court sustained amended versions of the dependency petitions in
June 2011. A report prepared by the
Department for disposition indicated that mother and Gary T. continued to claim
that G.T.’s injuries had been self-inflicted.
At the dispositional hearing, also held in June 2011, the court removed
the children from mother’s custody and ordered a reunification plan for mother
that included the completion of a child-abuse prevention program, participation
in a domestic violence support group, and submission to a
T.’s parents and a court appointed special advocate (CASA) was appointed for
G.T.
By
the time of the six-month review hearing in December 2011, mother had completed
a mental health assessment and had been diagnosed with post traumatic stress
disorder (PTSD) and major depressive disorder.
She had been receiving weekly one-on-one counseling and was taking
medication. Mother and Gary T. had
separated and mother was in a new relationship with D.V., with whom she was
attending parenting classes. Mother had
also completed the intake process for a child abuse prevention and treatment
program and had been attending weekly since October. Although mother was participating in her case
plan, there were concerns that she had significant anger issues; she had been
overheard in a heated argument with D.V. on two occasions and had been
confrontational with her social worker when discussing difficult subjects. Based on mother’s progress, the Department
recommended an additional six months of reunification services. The CASA agreed with the recommendation of
additional services, but noted concerns about mother’s new boyfriend and his
criminal history, which included assault.
The court ordered an additional six months of reunification services.
The
report prepared by the Department for the 12-month review hearing held in May
2012 indicated that mother had begun
in July 2011, and that while she had made progress, her symptoms interfered
with her daily functioning. Mother had
not seen or spoken to her counselor since April 2012, which caused him concern
that she would discontinue counseling if the children were returned to
her. She had been attending medication
assessment appointments. As for her
living situation, mother had been sharing a room at the Serenity Inn, but had
moved into a friend’s room at the Blue Heron motel. She did not want to live at the Multiple
Assistance Center (MAC), as suggested by the Department, because she preferred
to find housing where her boyfriend D.V. could live with his dog. Between the time of the six-month review hearing
and the 12-month review hearing, mother had missed several visits with her
children.
The
Department recommended that G.T. and M.T. be returned to mother subject to
conditions that she apply for housing at MAC, ensure her children had adequate
housing, and attend all of her therapy sessions. The CASA disagreed, noting that mother had
missed several visits and brought her boyfriend to others, suggesting that the
boyfriend’s needs took precedence over the children’s. The CASA was concerned that mother had
unrealistic expectations of G.T. and reacted angrily to fairly normal toddler
behavior, such as pulling toys away from her little brother and allowing a
chair on which he was playing to tip over.
The court ordered the children returned to mother with family
maintenance services.
At
an interim review hearing held in July 2012, the Department reported that
mother had high expectations of G.T. that were not age appropriate and, given
mother’s authoritarian parenting style, were likely to lead to conflict. The social worker recommended that mother
attend parent-child interactive therapy (PCIT) with G.T. Mother and the children had moved with D.V.
into a two-bedroom apartment.
In
an interim report prepared in August 2012, the Department noted that mother had
missed a therapy session. There had been
reports of her putting duct tape over G.T.’s mouth when she acted out, but
mother denied this and said she had only threatened to do so. Mother had made contact with a PCIT clinician
but had cancelled a number of appointments.
In
August 2012, mother’s therapist advised the Department that he had reassessed
her and diagnosed her as suffering from recurrent depressive disorder, PTSD,
and borderline personality disorder.
Mother did a lot of “finger-pointing†and expressed a lot of anger. In September 2012, a representative from the
Child Abuse Prevention and Treatment Program informed the social worker that
mother felt victimized by her children and that her understanding of their
abilities was inaccurate. Mother had
been encouraged to try positive engagement with G.T. rather than constantly
punishing her. On one occasion, mother
became verbally abuse in response to some feedback she was given regarding an
incomplete assignment, and acted in a “very intimidating†manner.
A
PCIT therapist who visited mother’s home told the social worker that mother was
very hard on G.T. and focused only on the negative things she did. Mother spoke of G.T. in negative terms,
calling her mean, hateful, spiteful, and a brat. G.T. had been diagnosed with an adjustment
disorder with mixed episodes of depression and anxiety. Mother blamed the children as she believed
the problem was their behavior, not her responses.
Also
in September 2012, mother asked D.V. to move out of her home. He contacted the social worker to describe
mother’s treatment of the children, reporting that mother used foul words,
grabbed the children, slammed doors and threw objects. According to D.V., mother started nagging and
screaming as soon as she got up in the morning and had called M.T. “you fucking
little bastard.†G.T. was always in a
time out in the corner.
The
Department detained the children in October 2012 and filed a subsequent
petition under section 342 and a supplemental petition under section 387 based
on mother’s mental health and anger management issues.
jurisdictional hearing on these petitions, and in addition to the information
described above, the social worker reported that mother had been assaulted by
her new boyfriend, E.B., in October 2012.
Mother continued to receive services, including visitation, therapy, and
child abuse prevention counseling.
In
December 2012, the court sustained the petitions under sections 342 and 387 and
ordered mother to undergo a mental
health evaluation before the dispositional hearing. In January 2013, mother was examined by
psychologist Andrew Renouf, Ph.D., who assessed her as having depression with
brief episodes of mania that included irritable and angry moods. Dr. Renouf believed that mother suffered from
bipolar disorder, and
though he had considered her prior diagnosis of borderline personality
disorder, he was not successful in reaching mother’s therapist and could not
confirm the validity of that diagnosis.
He noted that bipolar disorder and borderline personality disorder share
many of the same features and have similar treatments, though borderline
personality disorder involves long-standing character traits and has a poorer
prognosis. Mother had described to Dr.
Renouf a history of “cutting behaviors†as a form of self-harm, something that
could be very distressing for her children if they were to witness it. Her scores on the Child Abuse Potential
Inventory indicated that she had a very high risk of being abusive. If her mental health issues could be
adequately treated, Dr. Renouf believed there was a high probability that her
ability to parent would improve and she would be better able to access
services. He assumed that the
psychotropic medication she was currently taking was inadequate, and noted that
proper medication would increase the chance that psychotherapy would be
effective.
At
the dispositional hearing on the section 342 and 387 petitions, held in
February 2013, the court removed the children from mother’s custody,
denied reunification services and set the case for a hearing under section
366.26. The court noted that the case
had progressed beyond the 18-month period during which services could be
offered, and found that the services provided by the Department to date had
been reasonable.
II. DISCUSSION
Mother
argues that the court should have ordered additional reunification services
rather than setting the case for a section 366.26 hearing. We disagree.
When,
as here, a child is under three years of age at the time of removal,
court-ordered reunification services “shall be provided for a period of six
months from the dispositional hearing . . . but no longer than 12 months from
the date the child entered foster care. . . .â€
(§ 361.5, subd. (a)(1)(B).)
A child is “deemed to have entered foster care on the earlier of the
date of the jurisdictional hearing held pursuant to Section 356 or the date
that is 60 days after the date on which the child was initially removed from
the physical custody of his or her parent or guardian. (§ 361.49.) The presumptive time limit for services “may
be extended up to a maximum time period not to exceed 18 months after the date
the child was originally removed from physical custody of his or her parent or
guardian if it can be shown, at the [12-month review hearing] held pursuant to
subdivision (f) of section 366.21, that the permanent plan for the child
is that he or she will be returned and safely maintained in the home within the
extended time period. The court shall
extend the time period only if it finds that there is a substantial probability
that the child will be returned to the physical custody of his or her parent or
guardian within the extended time period or that reasonable services have not
been provided to the parent or guardian.â€
(§ 361.5, subd. (a)(3); see Tonya
M. v. Superior Court (2007) 42 Cal.4th 836, 843 [parent of child under
three was presumptively entitled to six months of services under former version
of § 361.5].)
title="">[4]
G.T.
was detained in foster care in March of 2011 and M.T. joined his sister upon
his birth in April 2011. The
jurisdictional and dispositional hearings were held in June 2011. Using M.T.’s case as the reference point,
mother was presumptively entitled to reunification services for six months from
the dispositional hearing (until December 2011), with an outside limit of 12
months from the time M.T. “entered foster care†(June 2012). If the court found a substantial probability
of return or the provision of inadequate services by the Department, mother
would have been entitled to up to 18 months of services from the date of
the children’s original removal from her physical custody in April 2011. Mother received reunification services from
June 2011 until June 2012, when the children were returned to her, family
maintenance services until October 2012, when the children were again removed
from her custody, and additional court services until at least November 2012,
after the children were detained following the hearing on the sections 342 and
387 petitions. She had, therefore,
received more than the statutory maximum of 18 months of court-ordered
services. (See In re N.M. (2003) 108 Cal.App.4th 845, 853, superseded by statute
on other grounds in In re T.W. (2013)
214 Cal.App.4th 1154, 1168 [18-month limitation in § 361.5 applies to
combination of reunification and maintenance services]; Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166-167
[when subsequent petition under § 387 is sustained, case does not go back
to “square one†with respect to reunification services; but picks up where case
left off chronologically].)
Mother
argues that the reunification period should have been extended because the
services provided by the Department were unreasonable. As she observes, case law has recognized that
the juvenile court has the implied authority to extend the 18-month maximum for
reunification when reasonable services have not been offered. (See Mark N.
v. Superior Court (1998) 60 Cal.App.4th 996, 1016-1017 [no reasonable
services ever provided to parent during reunification period];
1205, 1209 [social worker had never spoken to mother; trial court had found
services to be a “disgrace†but erroneously felt constrained to terminate
reunification after 18 months]; In re
Dino E. (1992) 6 Cal.App.4th 1768, 1777 [social services agency failed to
develop reunification plan for father].)
Mother suggests that the services provided in her case were inadequate
because she was misdiagnosed by her therapist as suffering from borderline
personality disorder when in fact she was (according to the psychological
evaluation prepared by Dr. Renouf) bipolar.
She submits that the Department should have done more for her because
her psychological symptoms were interfering with her ability to access mental
health services.
At
the six- and 12-month review hearings, the court found by clear and convincing
evidence that reasonable services had been provided to mother. Mother did not object to these findings or
challenge these prior orders by writ or appeal, thereby forfeiting her
challenge to the adequacy of services prior to the 12-month review
hearing. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147,
1156-1157; In re Cicely L. (1994) 28
Cal.App.4th 1697, 1705.) But, even
assuming it is appropriate to review the sufficiency of the reunification
services from the inception of the dependency case, we would reject mother’s
argument.
We must uphold the juvenile court’s
determination that reasonable services were offered if it is supported by
substantial evidence. (
Cal.App.4th 619, 625-626.) We view the
evidence in a light most favorable to the Department and indulge in all
legitimate and reasonable inferences to uphold the juvenile court’s
decision. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) “[W]e must also recognize that in most cases
more services might have been provided, and the services which are provided are
often imperfect. The standard is not
whether the services provided were the best that might have been provided, but
whether they were reasonable under the circumstances. [Citation.]â€
(Elijah R. v. Superior Court
(1998) 66 Cal.App.4th 965, 969.)
Here,
mother lost custody of her children because her two-year-old daughter G.T.
suffered serious injuries that mother could not adequately explain, set against
a backdrop of domestic violence between mother and Gary T., M.T.’s father. A psychological evaluation that the
Department arranged early in the case revealed that mother suffered from mental
health issues that included PTSD and depression. Mother’s case plan included visitation with
her children, individual therapy, a
parenting class, a child abuse prevention treatment program, and housing
assistance. She received medication
to treat her mental health issues, and attended regular appointments to evaluate
the efficacy of this medication. The
reunification services enabled mother to regain custody of her children,
although her therapist had concerns about her willingness to continue treatment
and mother seemed reluctant to participate in the PCIT to improve her very
challenging relationship with G.T. After
the children were returned to mother’s care, it became clear that mother’s
anger and mental health issues were interfering with her ability to parent, at
which point the Department filed petitions under sections 342 and 387.
It
is true that Dr. Renouf, the psychological evaluator appointed after the
sections 342 and 387 petitions were filed, could not confirm that mother
suffered from borderline personality disorder as diagnosed by her therapist, and
believed she instead suffered from bipolar disorder. According to Dr. Renouf, the treatment for
bipolar disorder, though similar to that for borderline personality disorder,
tends to be more effective. But, even if
we were to assume that bipolar disorder was the correct diagnosis in mother’s
case (to the exclusion of borderline personality disorder), this does not mean
the Department was remiss or that the services offered were inadequate.
Mother
argues that her case is analogous to In
re K.C. (2012) 212 Cal.App.4th 323 (K.C.),
in which the appellate court concluded that reasonable reunification services
had not been provided at time of the 12-month review hearing. (Id.
at pp. 329-331.) The father in
evaluation that identified certain mental health issues, and the evaluator
recommended a further examination to determine the efficacy of psychotropic
medication. (Id. at p. 329.) The social
services agency referred father to a public mental health clinic, but when that
clinic determined that father did not meet their treatment criteria, the agency
made no other attempts to help him secure the evaluation. (Ibid.) The court concluded that the agency had
effectively delegated the burden of seeking treatment to the father, who was
ill equipped to find it in light of the mental health issues the treatment was
designed to remediate. (
arrange a medication evaluation for the father was unreasonable. (Id. at
p. 334.)
The
facts of K.C. are easily
distinguishable from the Department’s efforts in this case. As a result of the agency’s inaction, the
father in K.C. did not obtain a
critical psychological evaluation that was necessary for future treatment and
reunification. Here, mother received a
mental health assessment, counseling, parenting classes, and housing
assistance—indeed, the services provided were sufficient to enable her to
regain custody of her children at the 12-month review hearing in June 2012.
Having
received 18 months of reasonable court-ordered services, mother was not
entitled to additional services after the court sustained the petitions under
sections 342 and 387.
III. DISPOSITION
Mother’s
petition is denied on the merits. This
decision shall be final at the conclusion of the fifth court day after this
opinion is filed. (Cal. Rules of Court,
rules 8.452(i), 8.490(b)(3).)
Mother’s request to stay the hearing under section 366.26
is denied.
NEEDHAM,
J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
Welfare and Institutions Code.
Gary T. as to M.T., but were eventually terminated. He is not a party to this writ proceeding.
