In re M.S.
Filed 9/5/13 In re M.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.S. et al., Persons Coming Under the Juvenile Court
Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff
and Respondent,
v.
LINDA S.,
Defendant
and Appellant.
D063628
(Super. Ct.
No. NJ14109A-B)
APPEAL
from an order of the Superior Court
of
County, Blaine K. Bowman, Judge. Affirmed.
Elizabeth
C. Alexander, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas
E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Linda
S. appeals from a January 2013 postpermanency review hearing. She contends that the juvenile court erred in
not ordering six months of reunification
services for her under Welfare and Institutions Code section 366.3 because
additional reunification services with her youngest daughter, S.S., was the
best alternative for S.S. (Undesignated
statutory references are to the Welfare and Institutions Code.) We disagree.
Although the juvenile court also made findings as to Linda's older
daughter, M.S., Linda does not raise any issues on appeal with respect to
M.S.
FACTUAL
AND PROCEDURAL BACKGROUND
In
2009, M.S. (currently age 16) and S.S. (currently age 14) were removed from
Linda's care due to Linda's mental illness, suicide attempt and her mental
health hospitalization. At that time, a
psychologist described M.S. as a "very bright youngster" suffering
from mild depression and anxiety. S.S.
had previously been diagnosed with
retardation, anxiety disorder, obsessive compulsive disorder and mood disorder.
Linda
underwent two psychological evaluations.
One psychologist stated that Linda "demonstrat[ed] multiple
psychological problems that significantly impair[ed] her ability to effectively
and adaptively parent [M.S. and S.S.].
The fact that these children have special needs serves to further
exacerbate the concerns over her psychological and emotional status." This psychologist concluded that Linda was
not capable of benefitting from services "as these services [had] already
been provided on multiple prior occasions with no positive impact."
A
second psychologist similarly noted that Linda's "history is replete with
treatment episodes whereby she has a positive change in the short term, such as
her hospitalizations where she ha[d] been taken care of and medication ha[d]
strictly been adhered to, but such gains were not maintained due[ to] her
treatment noncompliance. There is no
indication that this pattern will change, that is, [Linda] is unlikely to
benefit from treatment. Medication has
shown to have a positive impact on her moods and ideations, however, she highly
likely . . . will continue to be noncompliant with any
psychotropic mediation." This
psychologist concluded that if Linda "can limit herself to nondemanding
activities in familiar surroundings, she can get by, though with a restricted
life. However, she is at risk in the
face of ordinary stress and can have limited frustration tolerance and poor
impulse control."
In
September 2009, the juvenile court declared the girls dependents of the juvenile
court and removed them from Linda's care.
It denied Linda reunification services, but ordered ongoing individual
therapy for her. In December 2009, S.S.
was placed in a specialized foster home where she remains. In March 2010, M.S. was placed at San Pasqual
Academy where she remains. Since March
2010, the girls have been in another planned permanent living arrangement
(APPLA).
In
January 2011, after holding an evidentiary hearing on section 388 petitions
filed by the San Diego County Health and
Human Services Agency (Agency), the juvenile court affirmed Linda's
visitation with M.S. in a therapeutic setting and authorized phone calls. For S.S., the court gave the social worker
discretion to reactivate supervised visitation with Linda and permitted
supervised phone contact. In June 2011,
the court continued the girls in out-of-home care and gave the Agency
discretion to allow Linda's visits with the girls to take place outside the
therapeutic setting. In December 2011,
M.S. decided to no longer have contact with Linda.
Linda
represented herself at the January 2013 postpermanency review hearing. She requested that the girls be returned to
her care or placed with her adult daughter, Amber S. The court heard testimony from a number of
witnesses, including Linda's former employer and former therapist, Dr. Alan
Lincoln. After considering the evidence,
the juvenile court concluded that further efforts at reunification were not the
best alternative for M.S. and denied Linda's request for her return or
placement with Amber. At the hearing,
the juvenile court noted it could order six months of reunification services
and possibly six months of family maintenance services. It stated:
"And I
know this is a case where there were no services that were ever offered. I am not in a position to second-guess that
finding … but I would imagine that there had to be a finding that she could not
benefit from services.
"And I
do think that [Linda] has shown the ability to benefit from services, and I
have considered ordering additional psychological evaluations to gain some
insight. And then we all -- and my
attention just constantly gets turned back to what happened in December, because it -- from the testimony I heard that
[Linda] has made improvements, through Dr. Lincoln she has made improvements,
and everybody has agreed that she has improved, but then we look at what
happened on December 12th, where, you know, it is reported that she was
improperly -- it was improperly suggested, let's just say, that she was going
to be going home to her mother, and then [S.S.] goes home and starts
packing. The foster mom asks her what
she's doing, and she thinks she is going to be going home, and that has
devastating effects to [S.S.], especially given her developmental delays. [¶] . . . [¶]
"And it
just shows that [Linda] has not made as much progress as I would hope. And that is kind of the extra weight that
pushes us back into not offering reunification services.
"I don't
feel at this point with respect to the return that it is in the best
interest[s] of [S.S.] to return to [Linda].
She has been in her current foster home since December 16th of
2009. She appears to be doing very well
there. She's very well-adjusted, and at
this point, to take her from that setting into what is kind of an unknown
setting with [Linda] is not the best alternative for her; and the Court finds
that [Linda] has not proven by a preponderance of the evidence that further
reunification interests are the best alternative for the child at this time.
"As I
indicated, I strongly considered it. I
strongly considered offering reunification services for [S.S.], based on
[S.S.]'s desires, the strong love that exists between [S.S.] and [Linda], but I
look at the law, and I have to follow the law, and I have given it a great deal
of thought. And the mother just has not
met the burden.
"So the
request to return [S.S.] to [Linda] is denied.
[¶] "Although the request wasn't made for reunification services
under [section] 366.3[, subdivision] (f), . . . I have
considered that possibility, and it is denied."
After considering some final
statements by Linda where she essentially expressed her frustration with the
dependency system, the juvenile court stated:
"As I
said, it was a close call for me, which I said probably is surprising news for
county counsel here. All right?
"I would
encourage you not to give up. I would
encourage you to continue your improvement, and these same issues could be
before the Court in six months, and I want you just to focus on your visits
with your kids and make them as positive as possible."
The
juvenile court found APPLA the appropriate plan for the girls and set the next
postpermanency review hearing for July 2013.
Linda timely appealed.
DISCUSSION
Linda
contends the juvenile court abused its discretion when it denied her
reunification services in S.S.'s case because she met her burden of showing
significant improvement and changes in herself mitigating the initial reason
for removal and that the granting of reunification services was in S.S.'s best
interests. As a preliminary matter, the
Agency asserts Linda did not raise the issue of reunification services below
and violates the theory of trial doctrine by seeking review of this issue.
Here,
the Agency is correct that Linda, representing herself, did not argue for
additional reunification services even though the juvenile court has the
discretion to order a further period of reunification services at a status review
hearing. (§ 366.3, subd. (f).) The Agency, however, addressed this issue and
argued that Linda had not met her burden to qualify for reunification services. The juvenile court considered the issue and
expressly ruled on it. On this record,
we conclude that Linda has not waived her right to appeal any of the section
366.3 issues, including the opportunity to prove that reunification services
was the best alternative for S.S.
Turning
to the merits, at a status review hearing, the juvenile court is required to
consider all permanency planning options, including whether the child should be
returned to the home of the parent, placed for adoption, appointed a legal
guardian or placed in APPLA. (§ 366.3,
subd. (h).) It is presumed that
continued care is in the child's best interests, unless the parent proves, by a
preponderance of the evidence, that further efforts at reunification are the
best alternative for the child. (§
366.3, subd. (f).) If the parent proves
that reunification is the best alternative for the child, "the court may
order that further reunification services to return the child to a safe home
environment be provided to the parent or parents up to a period of six months,
and family maintenance services, as needed for an additional six months in
order to return the child to a safe home environment." (Ibid.) "[T]he burden and standard of
proof . . . is the same as under section 388." (In re
Dakota H. (2005) 132 Cal.App.4th 212, 226.)
Accordingly, the juvenile court's ruling will not be disturbed absent a
clear abuse of discretion. (
415-416.) We " 'interfere only
" 'if we find that under all the evidence, viewed most favorably in
support of the trial court's action, no judge could reasonably have made the
order that he [or she] did.' " ' "
(Alicia B. v. Superior Court
(2004) 116 Cal.App.4th 856, 863.)
Here,
the juvenile court commended Linda on her efforts in seeking services on her
own, noting "great change" in Linda since the beginning of the dependency
in 2009. After reviewing the record, we
concur. The evidence is overwhelming,
that despite two psychological evaluations in 2009 finding that Linda would
services on her own and has shown marked improvement. We agree that Linda must be commended for the
tremendous strides she has made in improving herself. Linda's improvement, however, is only part of
the equation. She must also show that
further efforts at reunification are the best alternative for S.S. The juvenile court found evidence on this
lacking.
The
goal for further reunification services is to eventually return the child to a
safe home environment. (§ 366.3, subd.
(f).) Currently, S.S. is doing well in
her foster placement, is very close to the family and participates in family
activities. The foster mother reported,
however, that S.S. can be noncompliant at times. She requires prompting to complete hygiene
tasks, periodically soils herself or her bedding, is slow to respond to prompts
and sometimes completely ignores directions.
While Amber testified regarding Linda's good care of her as a child, the
record does not show that Amber suffers from any developmental delays such as
those impacting S.S. The evaluating
psychologists in 2009 both expressed concern regarding Linda's ability to cope
with S.S.'s special needs.
Our
review of the reporter's transcript of the hearing reveals that, in general,
Linda handled this stressful situation very well. Linda's composure, however, began to wane
while questioning M.S., including muttering under her breath that M.S. had been
brainwashed and accusing M.S. of lying.
Significantly, one of Linda's goals in therapy was to improve her
ability to regulate her behavior when stressed.
Another goal was for Linda to see a psychiatrist to reestablish her
prescription for appropriate psychotropic medication. Dr. Lincoln referred Linda back to psychiatry
but she never went. Instead, she met
with a nurse practitioner and decided not to take any medication. This testimony is troubling based on the
evidence in the record that Linda has a history of being noncompliant with
psychotropic mediation even though this medication has shown to have a positive
impact on her moods and ideations. Based
on the totality of the evidence, the juvenile court could have reasonably found
that the granting of reunification services to Linda was unlikely to make
return of S.S. more likely.
Linda
concentrates on the juvenile court's comment about S.S.'s packing her bags
after a visit with Linda to show the court abused its discretion in not
ordering reunification services. She
points out that S.S. has exhibited a pattern of packing her bags in relation to
different social cues. We do not agree
that the court's comment shows an abuse of discretion. The juvenile court's statements, read in
context, suggest it used this incident as an example that further reunification
efforts were not the best alternative for S.S.
Significantly, the record contains little information regarding Linda's
current circumstances. For example,
although Linda testified that she lives on her own and pays rent, nothing is
known about her current living and employment situation. Linda stopped working for her former employer
about 18 months ago and works for the former employer occasionally when the
former employer needs extra help. As the
juvenile court correctly noted, "children want to have stability and want
to have some permanence."
Even
if we might have reached a different result, where two or more inferences
reasonably can be deduced from the facts, we have no authority to reweigh the
evidence or substitute our judgment for that of the juvenile court. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.) On this record, Linda has not shown that the
juvenile court abused its discretion when it denied Linda reunification
services.
DISPOSITION
The
order is affirmed.
McINTYRE, J.
WE
CONCUR:
McDONALD, Acting P. J.
O'ROURKE,
J.
