In re M.K.

Filed 3/11/09 In re M.K. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant D.K. (mother) appeals the order terminating reunification services. She maintains that respondent San Francisco Department of Human Services (Department) should have required an appropriate mental health diagnosis and a workable plan for maintaining her mental health, and that it failed to do so. Hence, she reasons that reasonable reunification services that took into account her special needs were not offered or provided. We disagree and affirm.

I. BACKGROUND

A. Dependency History

The most recent dependency commenced in January 2007, but the history of dependency proceedings reaches back to M.K.s birth in July 2002 when he was hospitalized for nearly two months due to severe methadone withdrawal. The Department filed the first dependency at that time. Mother and son had entered a residential drug treatment program by the time of the disposition hearing and hence the petition was dismissed.

A second detention occurred in August 2004, at which time M.K. was placed in foster care because mother had been hospitalized under Welfare and Institutions Code[1] section 5150. Her diagnosis upon discharge a month later was psychosis NOS [not otherwise specified], possibly secondary to substance abuse. Mother entered Ashbury House in November 2004, and M.K. was placed with her the following month.

Three months later, M.K. again was removed from mothers care because she left the program with M.K. and there were concerns mother was using drugs and had not adequately participated in the program. Mother returned to Ashbury House in May 2005, and two months later M.K. was returned to her care at that facility for a second time. The Department dismissed the dependency, and thereafter closed the case because mother and son were doing well and had graduated from Ashbury House with honors.

However, in October 2006 the Department received a referral alleging general neglect. That referral was inconclusive so the Department created a treatment/safety plan for mother. She stuck with the plan for about three months.

B. Present Dependency

The instant petition, filed in January 2007, followed another hospitalization under section 5150. A neighbor reported that mother was unresponsive and unable to take care of M.K. She was stoic, unresponsive, and had been standing on the streets. Mother discontinued her medications and when questioned about anything, she said that the Lord will provide. The author of the detention report was unclear whether mothers current decompensation was due solely to mental health issues, or whether she ha[d] relapsed. The petition alleged failure to protect and no provision for support, pursuant to section 300, subdivisions (b) and (g).

The Department temporarily placed M.K. in foster care. After reviewing mothers history and making contact with, among others, the psychiatry staff; mothers therapist; psychiatrist and methadone maintenance counselor; visiting room staff; and the director of M.K.s preschool, the protective services worker recommended that M.K. remain in foster care. The disposition report noted that mother had tested positive for cocaine in September and October 2006.

As for mother, the report recommended that she remain under the care of a qualified mental health professional and comply with recommendations for therapy and medication; cooperate with drug testing as recommended; attend NA/AA meetings at least five days a week; cooperate with services at the methadone maintenance clinic; and visit regularly with M.K. and maintain contact and involvement. The parties agreed to a jurisdiction/disposition order pursuant to which M.K. would remain in foster care and mother would be provided reunification services.

C. Failure to Reunify

In April 2007 mother filed a request for overnight visits. She appeared to be doing well at the time and provided evidence that she was complying with the reunification plan: attending weekly therapy, taking her medication and focusing on becoming a full-time parent. The court granted her request.

On July 17, 2007, M.K.s attorney filed an emergency application to terminate unsupervised visits. Again, mother had been hospitalized. M.K. was hesitant to spend time alone with his mother and was in need of therapeutic help himself. At an earlier visit that month, mother had lectured M.K. about Jesus to the point that he said, I dont want to die, Mommy. At times during the visit mother was distracted and stared off into space; her affect was flat. The court granted the application and ordered therapy for M.K.

The protective services worker submitted a six-month review report detailing mothers diligent efforts and attendance at scheduled visits and recommended an additional six months of services, which the court ultimately ordered. However the report reflected concern that mother appeared to decompensate when faced with medical issues or unusual stresses such as having to care for M.K. on her own. Further, she was not able to admit that she has mental health issues or identify when she is at risk. The worker expressed grave concern that mother might not be getting the level of treatment needed to maintain sound mental health.

The Department conducted an administrative review at the end of September 2007 to determine a future plan for M.K. It concluded that adoption would be the best plan and mother should have a psychological evaluation to determine her specific diagnosis and best method of treatment. To expedite resolution of mothers mental health issues while reunification was ongoing, in October 2007 mothers attorney applied for appointment of a psychological expert to evaluate her client. The court granted the appointment. However, mother did not show for the scheduled evaluation.

In mid-September 2007, mother began volunteering at M.Ks school. In October the principal reported that mother was demonstrating unusual behaviors, e.g., giving a long religious speech to the children, standing in the middle of the street for long periods of time before taking a step and sitting M.K. down and arranging drink boxes in a strange pattern on the table. The principal spoke with mother and offered to help. She stopped volunteering. Her last sign-in date was 10/32/07; she signed as Dawna Christ.

Mother began missing visits. She appeared at visitation on November 9, 2007, in bizarre makeup, reporting that she was getting married to someone called BJ, but his real name is Jesus.

Mother was hospitalized from November 21 to December 4, 2007. Her therapist visited, reporting that she was childlike and actively psychotic. After release, mother did not reconnect with her therapist or psychiatrist.

Child welfare worker Aneata Bonic visited mother in December 2007. When mother opened the door of her studio apartment, a huge amount of smoke flowed out. At first mother thought Ms. Bonic appeared through the smoke. Mother said she had not been in touch because she was too upset at the administrative review and did not think staff would let her see M.K. A visit took place a couple days later. Mother was very emotional. Toward the end of the visit M.K. asked if it was time to leave. There were no more visits; Ms. Bonic tried to contact mother by phone, sent letters, went to her school, called her therapist, to no avail. In January 2008, Ms. Bonic went to mothers home, but mother told her to leave. In March 2008, mother left a message that she did not have a phone and would come by the office, but never did.

In May 2008, M.K.s attorney filed an ex parte application asking the court to modify supervised visits and order mother to stay away from M.K.s school. The application stated mother was mentally ill, may be taking street drugs, and has not been in treatment for at least 7 months. [Her last visit with M.K.] was in December 2007. Mother has called [M.K.s] school principal and stated she is going there to do volunteer work. The application also noted that mother was homeless. The court ordered supervised visits suspended until mother began and sustained a program of treatment and drug testing, and issued a stay-away order.

Following a 12-month contested hearing on May 5, 2008, the court found, by clear and convincing evidence, that reasonable services had been offered or provided, concluded that the conditions prompting dependency remained unchanged and terminated reunification services. The court remarked that mother failed to participate regularly in reunification services or to make substantial progress in her treatment programs, in particular she did not visit regularly or participate in mental health treatment. As well, mother did not keep the appointment for the psychological evaluation.

Mother has appealed the order terminating reunification services.

II. DISCUSSION

Mother is adamant that reasonable reunification services were not offered or provided, and hence we should reverse the order terminating such services. In reviewing a parents claim that she was not provided reasonable reunification services, we search the record to determine whether substantial evidence supports the juvenile courts finding, construing all reasonable inferences in favor of such finding. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) There is substantial evidence to support this key finding.

A. Special Needs

Mother first argues that the Department did not properly take into account her special needs, namely her mental disorder, when crafting the reunification plan. We disagree.

Reunification efforts must be tailored to the unique challenges suffered by a parent who is mentally disabled, unless a section 361.5 disability is proven. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792.) In Elizabeth R., the mother was hospitalized for treatment of her mental illness for most of the reunification period. At the 18-month status review hearing, the juvenile court terminated reunification services and set the case for a selection and implementation hearing despite the fact that the mother had substantially complied with the reunification plan. The court was under the belief that it could not extend reunification services and must either terminate them or return the minors to the mother. The reviewing court reversed, holding that the Department of Social Services failed to accommodate the mothers special needs when it restricted visitation during her hospitalization, notwithstanding the mothers exemplary record of visitation and compliance with the reunification plan. (Id. at pp. 1790-1792, 1799.) The remedy was to seek a continuance of the 18-month review hearing pursuant to section 352. (Id. at pp. 1797-1799.)

The court reasoned that [v]isitation and compliance with the reunification plan should be indicia of progress toward family preservation. (In re Elizabeth R.,supra, 35 Cal.App.4th at p. 1790.) Thus, where hospitalization or incarceration results in involuntary estrangement of a parent from his or her children, the agency must accommodate visitation if reasonable under the circumstances, and, if not, explain why. (Id. at p. 1792.)

Mothers main complaint is that, given the Departments knowledge of her history, it should have been crystal clear to the department in January, 2007, that [she] needed a proper mental health diagnosis, and a workable plan for maintaining her mental stability. First, at the administrative review of September 27, 2007, mothers attorney stated she would seek a court order for a psychological evaluation, but she did not obtain the order. Thereafter the attorney herself arranged for a psychological evaluation of her, but mother failed to appear.

In any event, in contrast to In re Elizabeth R., supra, 35 Cal.App.4th 1774, here appellant was not hospitalized for most of the attempted reunification. She simply ceased visiting in late December 2007, and stopped attending therapy and psychiatric treatment sessions in January 2008; her last drug test was in October 2007.[2] For the last six months of reunification mother failed to respond to personal visits and phone calls. This is not a case of involuntary estrangement. It is a case of failing to participate and comply with the plan.

B. Reasonable Services

Mother also specifically argues there was no substantial evidence that reasonable services were offered or provided.

Mothers plan began in February 2007. It was comprehensive in addressing both her mental health issues as well as drug abuse. The plan called for attending NA/AA meetings at least five days a week, drug testing and drug counseling through the methadone clinic, remaining under the care of her therapist and psychiatrist, and participating in regular visitation. A psychological evaluation scheduled earlier in the reunification date may have made some kind of differencewe will not speculatebut the benchmark for reunification services is not perfection. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) We point out that mothers program called for regular meetings with her psychiatrist and therapist who had been treating her for several years. These professionals evaluated, observed and assessed mother. At the commencement of reunification, her diagnosis was episodic major depression without psychosis because they had not seen any psychosis. By the time of her last hospitalization, her therapist reported that mother was actively psychotic and requested that she remain in the hospital. However, mother was released with the understanding that she meet with her psychiatrist, but she did not reconnect with either mental health professional.

While not perfect, there is substantial evidence in the record that reasonable reunification services were provided or offered.

III. DISPOSITION

The juvenile court order is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] Apparently the drug testing system at the methadone treatment program was not operational in October and November.