Crystal L. v. Superior Court

Filed 8/8/06 Crystal L. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Barker & Associates, and John Meyer, for Petitioner.

No appearance for Respondent.

David A. Prentice, County Counsel, and David L. Herman, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to her daughter S. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner has a long history of drug abuse and mental health problems. In September 2005 petitioner, then several months pregnant, ingested methamphetamine, engaged in domestic violence in the presence of then two-year-old S. and attempted suicide. After the incident, petitioner was transported to the hospital and S. was taken into protective custody by the Madera County Department of Public Welfare (department). In an interview with the social worker, petitioner stated that, two years previously, she was diagnosed with obsessive compulsive disorder (OCD) and bipolar disorder and prescribed medication. However, after six months, she stopped taking her medication because she was abusing it.

The juvenile court assumed dependency jurisdiction over S. and petitioner signed a plan of reunification, which required her, in part, to arrange counseling for her OCD and bipolar disorder and comply with all treatment recommendations, complete a parenting course, participate in outpatient drug treatment and submit to random drug testing.

On October 25, 2005, the caseworker spoke to a therapist at Madera County Behavioral Health, who had treated petitioner in the past. He stated that petitioner met with him on September 23, 2005, the day after her suicide attempt and again a week later. He also stated she attempted suicide in April and May 2005 and that each time, she tested positive for drugs and reported a fight with her domestic partner. The therapist diagnosed petitioner as suffering from major depressive disorder but did not recommend medication for her. He also stated that petitioner's mental health crises were more a result of her drug addiction than her disorder and that she called to make an appointment with him but he was unable to contact her.

Over the next six months, petitioner failed to progress toward reunification. She participated in an outpatient drug treatment program from September 2005 to February 2006. During that time, she was seen by the program therapist. However, by her own admission, she continued to use methamphetamine. As a result, she was admitted to an inpatient drug treatment program but stayed less than a day and then refused outpatient drug treatment. In April 2006, she delivered a son who tested positive for methamphetamine.^[2] In addition, petitioner failed to attend mental health counseling and did not complete a parenting program. Consequently, the department recommended the court terminate her reunification services at the six-month review hearing.

Petitioner challenged the department's recommendation at a contested six-month review hearing conducted on May 23, 2006. She argued her drug addiction and psychological disorder comprised a dual diagnosis, which required special services to successfully treat. Since her case plan did not specifically gear services to her dual diagnosis, she claimed her case plan as designed was inadequate. To support her contention, she called the caseworker to the stand and attempted to elicit testimony that her mental illness would interfere with her ability to benefit from drug treatment. However, the caseworker did not have the expertise to offer such an opinion. Instead, she acknowledged that people with dual diagnoses have special needs but stated that she deferred to the therapist at the drug treatment center to incorporate any special mental health services into petitioner's drug treatment plan.

Petitioner testified she asked the department many times for mental health services but had not seen a therapist since September 2005. She stated she could reunify with S. if given six more months to complete her case plan requirements.

Following petitioner's testimony, her attorney informed the court he had no further evidence to present. He also stated that he did not have any evidence that petitioner suffered from a dual diagnosis and that a dual diagnosis would interfere with drug rehabilitation. He indicated that if he had more time and if he were given a continuance, he would subpoena a specifically named individual to testify as to the existence of dual diagnosis and the unique problems it creates for people trying to undergo drug rehabilitation. However, counsel did not specifically ask for a continuance.

In response, the court stated that it would consider evidence that petitioner had a dual diagnosis but the court did not believe that the law provided additional time to reunify for people suffering from a dual diagnosis. In addition, the court found petitioner was provided six months of reasonable services but did not make significant progress toward reunifying with S. Consequently, the court terminated petitioner's reunification services and set the section 366.26 hearing for September 13, 2006. This petition ensued.

DISCUSSION

Petitioner argues the juvenile court erred in finding she was provided reasonable services because the case plan was not tailored to address her dual diagnosis and because the court did not consider the implications of her dual diagnosis in rendering its finding. We find no merit to either basis for error.

With respect to petitioner's first claim, we conclude that it is waived. The reasonableness of reunification services is judged by the content of the case plan and the department's efforts to implement the plan. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) A challenge to the content of the case plan must be made by direct appeal from the dispositional hearing or from any subsequent review hearing. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) In this case, the plan required petitioner to arrange individual therapy and to complete outpatient drug treatment. If petitioner believed her case plan required special accommodations for a dual diagnosis, it was incumbent upon her to appeal from the juvenile court's dispositional order. Having failed to do so, she cannot now claim the plan as ordered was unreasonable.

Further, the record does not support petitioner's claim the juvenile court denied her request for a continuance thereby preventing her from presenting evidence concerning the existence and treatment complications of dual diagnosis. On the contrary, according to the record, petitioner's attorney did not specifically ask for a continuance. Moreover, the court indicated its willingness to consider evidence of a dual diagnosis. Petitioner simply failed to present any such evidence. For example, she could have but did not present evidence that she actually suffers from a dual diagnosis. Further, she did not present expert testimony establishing that a dual diagnosis adversely affects a person's ability to meaningfully participate in drug treatment, how drug treatment services can be accommodated to eliminate or reduce the adverse affect and whether such an accommodation was made in petitioner's case. Therefore, even if petitioner had not waived review of the plan content, there is no evidence to support a finding that the plan as written was inadequate for her needs.

Moreover, there is no evidence the department acted unreasonably by not modifying petitioner's case plan because of her dual diagnosis. According to the record, petitioner's self-reported diagnoses of OCD and bipolar disorder were never confirmed and she discontinued the medication prescribed for these disorders a year and a half prior to these proceedings. In light of this fact, her claim the department should have taken special measures to wean her from her medication is not supported by the record. Further, petitioner's working diagnosis during these dependency proceedings was major depressive disorder for which the therapist chose not to prescribe medication. One could infer from this that petitioner either did not require medication for her depressive disorder, that her depression was caused by her drug use or that her chances of attaining sobriety were better without the medication. In any case, there is no evidence that a modification to petitioner's case plan was warranted. Therefore, we will affirm the juvenile court's finding petitioner received reasonable services.

Finally, having found that petitioner was provided reasonable services but failed to comply and, in the absence of any evidence she could regain custody of S. if given another six months of services, the juvenile court had no option but to terminate reunification services and set the matter for permanency planning. (§ 366.21, subd. (e).) Accordingly, we find no error.

DISPOSITION

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

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^*Before Harris, Acting P.J., Dawson, J., and Kane, J.

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

^[2] Dependency proceedings were initiated as to this child as well and petitioner has filed a notice of intent to file a writ petition from the court's dispositional order. (F050863.)