Colleen F. v. Superior Court

Filed 11/2/07 Colleen F. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; petition for writ of mandate. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Kazoua Cha, under appointment by the Court of Appeal, for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Petitioner Colleen F. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (formerly rule 38.1(a)), challenging the juvenile courts order terminating reunification services as to her children Brandy, Jack, and Sherry (the children) and setting a Welfare and Institutions Code^[1]section 366.26 hearing. Mother argues that there was a substantial probability the children would be returned to her care since she made substantive progress in her case plan. The Department of Public Social Services (the department) filed a letter on October 9, 2007, indicating its intention not to file a response to mothers writ petition. We deny the writ petition.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

On March 7, 2006, the department filed a section 300 petition on behalf of the children. At the time, Brandy was 8 years old, Jack was 7 years old, and Sherry was 6 years old. The petition alleged that the children came within section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). Specifically, the petition alleged that mother and father^[3]suffered from mental health problems, mother (and father) abused controlled substances, mother (and father) had a history with Child Protective Services (CPS) in San Diego County and received family maintenance voluntary services for approximately six months, as well as court-ordered services for over one and one-half years, mother (and father) had domestic violence problems, and mother (and father) neglected the childrens needs. The petition also alleged that mother was currently hospitalized at Emergency Treatment Services, with an unknown release date. In a detention report, the social worker stated that mother was 5150d^[4]due to bizarre behavior, such as barking like a dog, making incoherent statements, threatening the police, and stating that her children were from hell. The court detained the children and placed them in foster care. The court ordered mother to undergo a psychological evaluation.

Jurisdiction/disposition

The social worker filed a jurisdiction/disposition report on March 30, 2006, recommending that the children be declared dependents of the court and that mother be offered reunification services. The social worker reported that mother called her four days after she (mother) was released from the Riverside County Regional Medical Center psychiatric ward on March 11, 2006. Mother said that she was instructed to check in with the mental health department, which she did on March 13, 2006. Mother was instructed by the mental health department to get on the waiting list for substance abuse services and to attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Mother reported that she was prescribed Haldol.

The social worker attached a case plan for mother. The requirements included participating in general counseling, participating in a psychological or psychiatric evaluation, completing a domestic violence program, participating in substance abuse testing and, if needed, completing a substance abuse program, and completing a parenting education program.

On April 26, 2006, the juvenile court found the allegations in an amended petition true and declared the children dependents of the court. The amended petition alleged that mother (and father) suffered from mental health problems and substance abuse problems, and that they engaged in domestic violence; the other allegations were stricken. The children were declared dependents of the court and maintained in their foster home. Mother was granted reunification services and ordered to participate. The court also ordered mother to participate in a psychological evaluation for dispositional purposes.

Six-Month Status Review

The social worker filed a six-month status review report recommending that mother be offered six more months of reunification services. The social worker reported that mother continued to have mental health issues. Father told the social worker that mother had previously been diagnosed with bipolar disorder and schizophrenia. Although she was prescribed Haldol, mother stated that she was not currently taking any medication, since she did not understand why she had to take it. Mother did not feel that she had any mental illness. The social worker reported that mother attempted suicide in 1980 and that she had had several other 5150s. Mother was enrolled in the dual diagnosis program at the county mental health facility, but she left the program after only completing half of it. Mother said she quit because it caused too much stress in her life.

The social worker further reported that mother participated in a psychological evaluation with Dr. Robert Suiter. Mother was asked to complete a test of approximately 500 questions, but she only answered five questions. Dr. Suiter stated that he was unable to complete an assessment of mother because of her inability to recall information and complete the questions. She had two subsequent appointments, but was still unable to complete the questions. Mother believed she completed the psychological assessment simply because she went to the appointments.

Mother reported that she completed a domestic violence program in June 2006. She also completed a parenting education class on June 26, 2006. The social worker opined that, nonetheless, mother still had difficulty parenting the children. The social worker reported that in August 2006, during a visit with the children at the mall, mother took the children into a store. She entered the store with all three children and left with only two. When the person supervising the visit asked mother where the third child was, mother could not remember where she left her. The child was not located until one-half hour later.

The court held the six-month review hearing on November 20, 2006, and continued mothers reunification services.

12-month Status Review

The social worker filed a 12-month status review report on April 10, 2007 recommending that mothers reunification services be terminated and that a section 366.26 hearing be set. The social workers main concern was mothers untreated mental health issues. Mother had previously had multiple emergency psychiatric hospitalizations; two of them were for suicide attempts. Mother was referred to mental health counseling and services with Dr. Cathy Chance on April 6, 2006. Mother stopped seeing Dr. Chance shortly after starting. Mother felt like she had no problems to report to Dr. Chance and that the time with her was unnecessary. Mother continued to deny any mental health problems.

On October 12, 2006, Dr. Suiter filed a report with the department stating that mother told him she had been involuntarily hospitalized at least five times. He stated that she could not adequately identify the reasons why the children were removed from her care and that she was unwilling to discuss her drug history. In sum, he stated that mother was unwilling to cooperate with the examination and, to that extent, he did not believe she would cooperate with reunification services. Dr. Suiter said he would have extreme concerns about returning the children to her care. He opined that there was no reasonable likelihood that she would change in the foreseeable future.

On January 2, 2007, mother was referred to Dr. Edward Ryan for a second opinion. Mother told Dr. Ryan that she had passed the examination with Dr. Suiter. She admitted to Dr. Ryan that she had been hospitalized eight times. Dr. Ryan said that in 2006 she was prescribed Haldol, which is used for psychotic and paranoid symptoms. She told Dr. Ryan that she stopped taking the medication. She also told him that she had been prescribed antidepressants in the past. When Dr. Ryan asked her to discuss the night the children were taken away and what it would take to rectify the problems, mother just said that what was needed was for the children to come home. Dr. Ryan was concerned that the current case was her third dependency case. The first case resulted in her failure to reunify with her 14-year-old son. The second case involved the children, who were removed from her care for 15 months and then returned to her. Dr. Ryan opined that mother had the ability to benefit from reunification services, but he believed that she had gone through the motions just to satisfy the requirements of her case plan. His impression was that she was complying with the case plan in a reluctant manner and was just doing the absolute minimum, as opposed to taking advantage of the services offered to her. Dr. Ryan did not think mother had made any substantive changes that would prevent similar problems in the future.

The social worker further reported that mother believed she completed her case plan. She believed that any mental health issues were caused by the stress of having the children taken away from her and that the department was wrong in its assessment of her. Mother felt that she had no mental health issues and that she did not need medication.

As to visitation, the social worker reported that mother visited the children regularly. However, the social worker was concerned about mothers personal hygiene, noting that she came to the visits emitting a strong body odor. The social worker also reported her concerns about mothers behavior during one visit when mother brought four children with her. Mother spent the entire visit trying to keep the children contained in the departments visiting room, and she became upset when she was told that it was inappropriate for her to bring children to the visit. Mother stated that those children were her childrens friends and that she did not understand why she should not have brought them. She started screaming that she was a good mother and that the department was wrong in keeping the children from her. At that point, the children had already left with their caretakers. The other children became very frightened of mother, so the department worker drove them home.

In sum, the social worker was unable to recommend the return of the children to mothers custody because of mothers lack of motivation in completing a mental health program, seeking counseling, being forthcoming about her previous mental health history, or taking appropriate medication.

The court held a 12-month status review hearing on August 1, 2007. After reviewing all the evidence, the court found that mother failed to make substantive progress in her case plan, and that return of the children to her custody would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children. The court ordered mothers reunification services to be terminated and set a section 366.26 hearing for November 27, 2007.

ANALYSIS

The Court Properly Terminated Mothers Reunification Services and Set a Section 366.26 Hearing

Mother argues the court erred in terminating her reunification services since there was a substantial probability the children would be returned to her. She specifically asserts that she visited the children regularly, she made significant progress toward resolving the problems that led to the childrens removal, and she demonstrated the capacity and ability to complete the objectives of her case plan and provide for the childrens needs. We conclude that the court properly terminated her reunification services.

Section 366.21, subdivision (f), provides, in relevant part that, [a]t the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the childs home and, if so, when, within the time limits of subdivision (a) of Section 361.5. The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . The court shall also determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. ( 366.21, subd. (f).)

Here, the record supported the courts finding that mother failed to participate regularly or make substantive progress in her case plan. Mothers case plan required her to participate in general counseling, participate in a psychological evaluation, complete a domestic violence program, complete a parenting education program, and participate in substance abuse testing and, if needed, a substance abuse program. The record showed that mother did complete a parenting education class and a domestic violence program. However, the record showed that mother did not participate in counseling or receive any type of treatment for her mental illness problems. Mother, in fact, denied having any mental health problems and refused to take prescribed medication. She persisted in denying any problems, despite her history of being hospitalized for two suicide attempts, as well as other psychological problems, and being diagnosed with bipolar disorder and schizophrenia.

Furthermore, Dr. Suiter could not even complete a psychological assessment of her because she could only answer five of 500 questions. Dr. Suiter was concerned because mother could not adequately identify the reasons why the children were removed from her care. He also said he would have extreme concerns about returning the children to her care. Dr. Ryan similarly expressed concerns about mother, noting that this was the third time mothers children were removed from her care. He opined that she had not made any substantive changes that would prevent similar problems in the future.

In addition, mothers behavior and conduct with the children, during the dependency, showed that the return of the children to her would create a substantial risk of detriment to their safety and well-being. At the start of the dependency, mother was 5150d due to bizarre behavior, such as barking like a dog, making incoherent statements, threatening the police, and stating that her children were from hell. In August 2006, during a visit with the children at the mall, mother left one child behind. When the person supervising the visit asked mother where the third child was, mother could not remember. During another visit at the department office, mother brought four children to the visit. When she was told that it was inappropriate for her to bring children to the visit, mother had an outburst and started screaming that she was a good mother and that the department was wrong in keeping the children from her. The children had to leave the visit, as some of them became very frightened of mother.

In sum, the record clearly demonstrated mothers failure to make substantive progress in her case plan and that returning the children to her care would put them at risk of harm. Thus, the court properly terminated mothers reunification services and set a section 366.26 hearing.

We note mothers request for a temporary stay of the section 366.26 hearing, pending the granting or denial of the writ petition. In light of our timely decision, no stay is necessary.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ GAUT

J.

/s/ MILLER

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[2] We note that the department filed a letter on October 9, 2007, indicating its intention not to file a response to mothers writ petition.

^[3] Father is not a party to this writ petition.

^[4] Section 5150 allows the police to place a person who is a danger to herself or others, as a result of a mental disorder, in a mental health facility for treatment and evaluation. ( 5150.)