Corina E. v. Sup.

Filed 6/27/07 Corina E. v. Sup. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane A. Cardoza, Judge.

Corina E., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her son T. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In March 2006, then 15-month-old T. was taken into protective custody by law enforcement after petitioner was arrested for child endangerment and being under the influence of methamphetamine. The juvenile court detained T. and the Fresno County Department of Children and Family Services (department) placed him in foster care. The court also ordered the department to arrange supervised visitation and to refer petitioner and T. for mental health evaluations and petitioner for a parenting class, substance abuse evaluation and random drug testing.

In late March, petitioner completed a substance abuse evaluation. Because of petitioners anxious and depressed mood and self-reported use of methamphetamine and alcohol to intoxication, she was referred for residential substance abuse treatment and a mental health assessment to rule out depression and anxiety. That same month, she met with a therapist, was diagnosed with an anxiety disorder and began weekly individual therapy.

In early April, petitioner entered a residential treatment program from which she was discharged in mid-May for noncompliance. While there, she was evaluated by a psychiatrist and prescribed medication for anxiety and depression.

Not long after petitioners discharge from the first residential treatment program, she entered a second program but refused to take her medication as prescribed. As a result, she was aggressive and verbal to staff and clients and, in mid-July, she was discharged from that program. At the end of July, petitioner terminated her individual therapy.

Meanwhile, the juvenile court adjudged T. a dependent of the court and, at the dispositional hearing in June, incorporated the services already ordered into a reunification plan for petitioner and added the requirement she complete a psychological evaluation. Also in June, T. was evaluated by a child therapist, who observed T. was not attached to petitioner or his foster mother. In addition, T. exhibited self-harming behavior. The therapist concluded T. suffered from disrupted attachment and recommended the department permanently place him as soon as possible to prevent further emotional damage.

In mid-August 2006, the department compromised and let petitioner enter intensive outpatient drug treatment rather than residential treatment because she claimed she could not get along with the residents. Petitioner stayed two days, left the program and then entered a second outpatient treatment program. All the while, she was not taking her medication as prescribed or regularly drug testing. However, when she drug tested, she tested negative.

In September, T.s therapist referred petitioner to a therapy group designed to teach her the fundamentals of parent/child attachment. Petitioner attended several group meetings but appeared confused and unable to process the information. As a result, she was discharged from the group. Suspecting petitioner may suffer from a learning disability or thought disorder, T.s therapist recommended and the court approved psychological testing to determine if petitioner could benefit from mental health services.

Petitioner met with the psychologist in November, 2006 and told her she had difficulty learning and concentrating because she had too many thoughts at one

time. For the first time, petitioner disclosed that, as a child, she was exposed to ongoing domestic violence between her parents, who were both alcoholics. She frequently thought that her father was going to kill her mother and, at one point, she believed that he had killed her mother. At the age of 5, she began running away from home and, at the age of 10, her father began physically abusing her. Also at 10 years of age, petitioner was raped by a stranger while hitchhiking. She was raped a second time as an adult. Petitioner also reported experiencing intrusive thoughts and fears, which she attempted to avoid through drug and alcohol use.

The psychologist concluded, based on her interview and testing, that petitioner was a good candidate for treatment and could benefit from reunification services but that her scores were significantly elevated on post-traumatic stress disorder (PTSD) scales and that she was likely suffering from emotional distress and disturbing thoughts. In addition, she was suffering from depression which could account for the mental dullness and confusion she exhibited. The psychologist diagnosed petitioner with chronic PTSD and major depression and recommended further psychiatric evaluation to rule out a thought disorder, therapeutic focus on anxiety-reduction techniques, referral for Eye Movement Desensitization and Reprocessing (EMDR), and group therapy for petitioner and conjoint therapy for petitioner and T.

In December, petitioner completed a parenting class and her participation in the class was good. However, according to the facilitator, she appeared confused in that her participation was often rambling, contradictory, unfocused and fragmented. That same month, she resumed individual therapy with her prior therapist.

In its six-month review of dependency, the department recommended the court terminate petitioners reunification services for lack of regular participation in her case plan. Specifically, the department reported petitioner completed outpatient substance abuse treatment but did not regularly drug test. She did not keep her weekly therapy sessions or take her psychotropic medication and she demonstrated an inability to properly respond to T. during visitation or establish a proper boundary setting with him. As a result, T. was frustrated and distressed during and after his contacts with petitioner.

In March 2007, the juvenile court conducted a contested hearing on the departments recommendation. Petitioners position at trial was that the department failed to provide her reasonable mental health services. Among her witnesses were her therapist, T.s therapist and the testing psychologist from whom the following key evidence was elicited. Anxiety disorder is a broad diagnostic spectrum which includes PTSD for which EMDR is the treatment of choice. According to the psychologist, anxiety and depression can mask as a memory problem because they can interfere with retaining and recalling information. For that reason, a strong intervention like EMDR was a critical treatment modality for petitioner. In addition, because EMDR produces the quickest therapeutic effect, the psychologist opined petitioner could have possibly reunified with T. within 12 months of T.s detention.

Petitioners therapist testified she did not diagnose petitioner with PTSD because petitioner did not disclose her history of childhood trauma and the therapist was not provided a copy of the psychologists evaluation. After reviewing the psychologists report on the stand, she concurred in the diagnosis but testified it would not have significantly altered her treatment modality. Had she known or suspected petitioner suffered from PTSD, she would have focused their sessions more on petitioners trauma and how it affected her behavior. The therapist also testified that she was not trained in EMDR but that she used a cognitive behavioral technique with petitioner, which is an alternative treatment for PTSD. She also testified that petitioner did not keep all of her appointments but participated when she did.

The psychologist testified that she specifically recommended the department provide the psychiatrist with a copy of her report so as to inform the psychiatrist that petitioner may also have a thought disorder. However, the psychologist did not know if the psychiatrist had reviewed her report nor was she contacted by the psychiatrist.

T.s therapist testified petitioner made no progress in her ability to relate to T. and that petitioner and T. were not ready for conjoint therapy. In addition, she reviewed the psychologists report but found no information that would explain petitioners lack of progress. She confirmed petitioner was discharged from the parent group therapy because petitioner was having difficulty grasping the concepts. Petitioner only attended a few group sessions and stated that the group was not useful to her and she did not want to attend.

Following testimony and argument, the court found T. could not be safely returned to petitioners custody. The court further found petitioner was provided reasonable services but failed to participate. Consequently, the court terminated petitioners reunification services and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Petitioner seeks return of T. to her custody or, in the alternative, continued services. In a somewhat rambling handwritten petition lacking citation to the record or legal authority, petitioner challenges aspects of testimony concerning her medication and diagnoses and claims she was abused and ridiculed by the department. However, from the petition arises one discernible argument; i.e., that petitioner completed all of her case plan requirements. Ordinarily, petitioners failure to support her contention by explaining the significance of the cited portion of the record and supporting her argument with legal authority would render the petition facially inadequate and subject to dismissal. (Cal. Rules of Court, rule 8.452(b) (rule).) Further, her failure to support her contention with argument or citation to the record invites dismissal on a theory she abandoned her issue for appellate review and thus waived it. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.) However, because we liberally construe dependency petitions in favor of their adequacy (rule 8.452(a)(2)), we will exercise our discretion to review the petition on the limited issue of whether the court erred in finding petitioner failed to regularly participate in her court-ordered treatment plan.

At the six month review hearing, the court must return the child to parental custody unless the court finds, by a preponderance of the evidence, the return of the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.21, subd. (e).) Failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.)

In this case, there is more than sufficient evidence to support the courts finding of detriment. Petitioner failed to regularly participate in critical components of her case plan; namely individual therapy, medication compliance and drug testing. As a result, she still suffered from uncontrolled anxiety and depression and continued to present a physical or emotional threat of harm to T.

Given its finding of detriment, the court may, at the six-month review hearing, schedule a permanency planning hearing where the child, on the date of removal, was under the age of three years and the court further finds, by clear and convincing evidence, the parent failed to participate regularly in the court-ordered plan. ( 366.21, subd. (e).) If, however, the court finds there is a substantial probability that such a child may be returned to her parent within six months or that reasonable services were not provided, the court must continue the case to the 12-month permanency hearing. (Ibid.) In order to find a substantial probability that the child will be returned, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection and physical and emotional well-being. ( 366.21, subd. (g)(1).)

We review the juvenile courts order terminating reunification services for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the courts finding. (In reBrison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On review of the record as summarized above, we conclude substantial evidence supports the juvenile courts order.

For the reasons already cited, petitioner failed in significant ways to participate in her court-ordered treatment plan. Moreover, while one wonders whether petitioners mental health needs were fully assessed or treated, she does not challenge the reasonableness of services provided. Consequently, the court had no choice but to terminate services and proceed to permanency planning unless it could find a substantial probability of return based on the presence of all three factors listed above. Real party in interest concedes petitioner regularly visited T. but argues the evidence does not support findings petitioner made significant progress in resolving her drug abuse and demonstrated the capacity and ability to complete the objectives of her case plan and provide for T.s safety and well-being. We agree. As an accommodation, petitioner was allowed to participate in outpatient drug and alcohol treatment, which she completed. However, she did not regularly drug test. Therefore, there is no way of knowing if she is drug-free. Moreover, by refusing to regularly participate in therapy and take her medication as prescribed, petitioners ability to manage her anxiety and depression and thereby complete the objectives of her case plan and provide for T.s safety and well-being is unknown. Since the evidence does not support a substantial probability of return, we conclude the juvenile court properly terminated petitioners reunification services and set a section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^*Before Vartabedian, Acting P.J., Levy, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.