Jill M. v. Superior Court

Filed 10/13/06 Jill M. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Petitioner Jill M. (Mother) petitions for extraordinary relief under California Rules of Court, rule 38.1, asking us to set aside the juvenile court’s orders setting hearings pursuant to Welfare and Institutions Code section 366.26 (.26 hearing.)[1] She asks us to vacate the orders setting the hearings and to direct the juvenile court to order reunification, visitation, and return of her children, Sean M. and Sierra M., to her custody. We deny the petition on the merits.

I. BACKGROUND

We are familiar with this family, having recently decided Mother’s appeal of an order in the juvenile court case relating to Sierra. (In re Sierra M., A109054, filed September 19, 2006.) The court has now set .26 hearings for both children.

A. The Petitions

As we explained in our opinion considering case number A109054, Sean, born in 1999, and his half-sister Sierra, born in 2004, are the subjects of separate dependency petitions pursuant to section 300 et seq. Sean was placed in protective custody in 2003 after Mother was admitted to Emergency Psychiatric Services for attempting suicide by placing a knife to her stomach and shutting herself in her bathroom. She had a history of suicide attempts and methamphetamine use, and her live-in boyfriend had a criminal record that included kidnapping, rape, forcible oral copulation, burglary, and an arrest for domestic violence against Mother. There had been several child welfare referrals, beginning shortly after Sean was born, including reports of such emotional and physical abuse as threatening to put Sean under water or bury him, screaming at him, beating him, dropping him, and neglecting his care. A 2003 jurisdiction and disposition report indicated that Sean had witnessed domestic violence between Mother and her boyfriend and that the boyfriend had hit Sean on the buttocks hard enough to leave a red handprint. Psychological evaluations of Mother concluded she suffered from a variety of problems, including bipolar disorder, depressive disorder, and alcohol and amphetamine dependence. Sean was found to fall within the jurisdiction of the juvenile court.[2]

Contra Costa County Children and Family Services (the Department) filed a petition for Sierra in October 2004, alleging that Mother had a substance abuse problem, that she did not regularly take medication for her bipolar disorder, that the family home was unsafe and unsanitary, and that Mother had abused Sean by grabbing and squeezing his wrists, causing large swollen red marks and bruising. Mother admitted she had a history of substance abuse and bipolar disorder that impaired her ability to parent and that she had injured Sean’s wrists. The juvenile court sustained these allegations. Sierra was placed in the home of her paternal grandparents.

In preparation for the disposition hearing, the Department originally took the position that Sierra would not be safe if returned to the care of Mother, who did not understand the seriousness of the injuries she had caused to Sean and was not participating fully in her therapy. However, by the time of the January 2005, disposition hearing, the Department recommended that Sierra be returned to Mother’s care. Mother had entered parenting and anger management classes, had resumed taking her medications, and was making progress in therapy. The juvenile court, however, found that Sierra could not be safely returned home, continued her as a dependent child, and ordered continued visitation and reunification services.[3]

B. Proceedings in Sean’s Case

Sean was removed from his mother and placed in foster care in October 2004, after the incident in which Mother injured his wrists.[4] He showed severe behavioral problems, and spent two days in Contra Costa County Medical Center’s Emergency Psychiatric Services unit because of his aggressive kicking, hitting, and biting. When placed in his room for a time-out, he would bang his head against the wall, and he had kicked holes in the wall. He was removed from four foster homes, on at least three of those occasions due to his aggressive behavior. In December 2004, the juvenile court continued Sean as a dependent child and ordered reunification services.

The Department requested and received authorization to administer psychotropic medications to Sean in January 2005, stating that he had been diagnosed with attention deficit/hyperactivity disorder, oppositional defiant/conduct disorder, posttraumatic stress disorder, and possible bipolar disorder, and that his placement was at risk because of his intolerable behavior.

The status report for Sean’s 18-month review hearing, scheduled for February 7, 2005, indicated that, although Sean’s behavior had improved, he still exhibited angry and aggressive behavior, and disruptions to his routine led to temper tantrums, defiance, encopresis, and enuresis. He was receiving therapy and making progress in school. Mother was participating in her reunification plan by attending individual counseling, anger management classes, parenting classes, and Narcotics Anonymous meetings and taking random drug tests with negative results, although she continued to take prescription drugs. She had been prescribed Zoloft, which seemed to be stabilizing her depression. Mother visited Sean regularly and behaved appropriately. However, the report noted that, although Mother had received more than 18 months of services, she had physically harmed Sean when trying to control his behavior. Moreover, her apartment had been filthy when social workers arrived in the apartment in October 2004. The Department recommended that reunification services be terminated and that Sean be continued in out-of-home placement with a permanency plan of long-term foster care.

On March 4, 2005, the juvenile court terminated reunification services as to Sean and ordered monthly supervised visitation. A status review report prepared for a section 366.3 post permanent plan review indicated Mother visited Sean monthly and behaved appropriately during visits. The review hearing was continued until November 16, 2005.

Mother filed a petition pursuant to section 388 seeking either family reunification or family maintenance services. The petition stated that Mother believed she could now parent Sean and offer him stability. An addendum report prepared for the continued hearing objected to Mother’s section 388 petition, and requested that Mother receive no reunification services. The report noted that two psychologists who evaluated Mother in November 2003 had concluded that because of her mental disorders, Mother was unable to benefit from reunification services to the extent of being able to care for and control Sean. After the court terminated services on March 4, 2005, Mother had continued to partially participate in her reunification plan for Sierra, and met monthly with her psychiatrist to review her psychotropic medication. Over the last several months, however, the Department had been concerned with Mother’s “increased agitation and anger level,” because Mother had been “increasingly rude, demanding and non-cooperative” with the services offered for Sierra. After an incident in October 2005, in which Mother argued loudly with Sierra’s foster parent in Sierra’s presence, her social worker contacted Mother’s psychiatrist to discuss her concerns about whether Mother’s psychotropic medications were working effectively. The psychiatrist met with Mother, who told him that--contrary to what she had been telling him--she had not been taking her prescribed medication for over a year. Because of Mother’s lack of cooperation, the psychiatrist ended his services to Mother. He described her as showing a “teenage attitude” and lack of “adult honesty” when talking with him. Mother later admitted to the social worker that she had lied to the psychiatrist and the Department about taking her medications, and that she had actually not taken them since July 2004. The report expressed concern that Mother’s resistance to taking her medications had exacerbated her level of anger and may have contributed to the severe physical discipline she used on Sean while he was in her care. The Department was concerned that, if Sean were returned to Mother’s care, his anger might increase and his behavior might deteriorate.

On November 16, 2005, the juvenile court ordered a contested review hearing. Before a scheduled February 24, 2006, hearing, the Department prepared a report stating that on an unannounced visit, Mother’s apartment was found to be dirty, with a dirty kitchen floor, a pile of dirty dishes in the kitchen sink, piles of dirty clothes on the floor, furniture, and playpen in the front room, carpets with stains, debris, and caked food, dirty towels covering the bathroom floor, piles of dirty clothes on the floor of Mother’s bedroom, and piles of dirty clothes, small toy parts and clutter in the children’s bedroom. The social worker returned to the house a week later, and found it in better shape. The report also noted that a recent evaluation by a psychologist indicated that Mother showed “oppositional tendencies,” that she “appear[ed] to be less capable than most people of dealing effectively with everyday experience,” and that her state of mind might make her feel overwhelmed and helpless when caring for her children, leading her to be “less able to respond sensitively to their signals, cues and needs.” The report expressed doubt that Mother would be capable of overcoming her mental issues and care for her children, even if additional services were offered. This concern was particularly strong in light of the special needs of Sean, who required psychotropic medications, mental health counseling, and therapeutic behavior services, and who still had periodic bouts of enuresis and encopresis and showed aggressive behavior such as hitting and biting care providers. In addition, prospective fost-adopt parents had been located for Sean.

A further report prepared for a May 18, 2006, hearing, indicated Sean’s behavior had deteriorated. He was having great trouble dealing with his emotions and relating to others, and was having increased enuresis and encopresis. Mother’s visitation with Sean had been temporarily suspended. On recent visits, Mother had implied to Sean that he might return to her care and had given him her telephone numbers. The Department asked the court to terminate Mother’s visitation with Sean due to his emotional state and her continued inappropriate actions during visits.[5]

A further update prepared for a June 16, 2006, hearing reported that after Sean’s psychotropic medications were increased, his anger had diminished, and he no longer bit and kicked others “except for when he fear[ed] a loss of an attachment.” His behavior at school had improved, and he was doing fine academically. He still had daily bouts of enuresis and periodic weekly bouts of encopresis. He had not talked about his mother or asked to see her recently, and had said that he wanted to continue to live with his foster parents.

C. Proceedings in Sierra’s Case

A report prepared by the Department for the November 16, 2005, review hearing discussed above noted that Mother had become increasingly rude and non-cooperative, and that her anger level had risen. At a therapeutic visit[6] between Mother and Sierra, Mother argued loudly with the maternal grandmother, upsetting Sierra. The report also noted that Mother had not been taking her psychotropic medications and had lied to her psychiatrist about them. Mother had continued to attend individual counseling, had completed an anger management program, and continued to attend an anger management treatment program. She was participating in random drug testing, with negative results, and said she was participating in weekly Alcoholics/Narcotics Anonymous meetings, although she had not provided proof of attendance since April 2005. She was attending a parent education program. The juvenile court suspended reunification services and ordered a contested review hearing.[7]

A report prepared for a June 16, 2006, hearing indicated that Mother’s visits with Sierra had been suspended, and that Sierra did not speak about Mother or express an interest in seeing her.

D. Contested Review Hearing

The contested review for the two cases and the hearing on Mother’s section 388 petition took place over several hearing dates.

Jean Shanahan testified that she had provided anger management classes, parenting classes, and individual psychotherapy to Mother. Mother completed the 16-week session required by the Department, and voluntarily went on to participate in and complete 52 weeks of anger management and domestic violence classes, graduating in February 2006. Mother had done well in the program, and her ability to handle anger had increased.

Linda Webster, a psychologist who had evaluated Mother in December 2005 and January 2006, testified that she identified Mother’s primary problems as attention deficit and impulsivity, and that Mother might benefit from medications for those concerns. However, she did not think Mother would benefit from medication for depression. She did not see any sign that Mother was bipolar. In view of the progress Mother had already made in addressing her mental health problems, Dr. Webster believed Mother would be able to continue making progress through psychotherapy alone. She was unable to say how long Mother would need psychotherapy.

Franceen Soares-Robinson, the social worker on the case, testified that she had become concerned about Mother’s increasing level of anger. In August 2005, Mother yelled at a receptionist and showed “out of control” anger when a visitation room had not been scheduled. Mother had angry interactions with the paternal grandmother, and her attitude toward Soares-Robinson deteriorated. On one occasion in October 2005, Mother engaged in a “yelling match” with Sierra’s paternal grandmother during a therapy session, in Sierra’s presence. In order to avoid confrontation between the grandparents and Mother, the Department arranged for the grandparents to enter by the back door when they took Sierra for therapeutic visits with Mother. Mother would not agree to have the grandparents sit in the reception area, and the grandfather, who was on oxygen, had to sit outside in a car during the visits. Mother would scream at Soares-Robinson on the telephone and complain she was not being treated fairly. Soares-Robinson’s concern about Mother’s anger led her to call Mother’s psychiatrist in October 2005, to discuss Mother’s mood swings and see if the medications were working.

Soares-Robinson discussed the visits between Mother and the children. On one occasion, the children were struggling over toys. Sean threw the toy at Sierra, and Sierra threw one back. Mother said in a stern voice, “No, no, no. We do not throw things at each other. We may pass things or hand things, but we never throw things to each other.” According to Soares-Robinson, the children “seemed to freeze and get quiet.” Sean went to a chair and put his head down, looking as if he were about to cry. Mother told him she loved him and that she did not want the children throwing things at each other, then asked for a hug. Soares-Robinson saw this interaction as inappropriate because Mother had frightened the children instead of calmly saying, “Don’t do that.” Two other incidents had also raised concerns. On one occasion, Mother implied to Sean that he would return to her home, despite having been asked not to do so. On another occasion, Mother had given Sean her telephone numbers.

Soares-Robinson was concerned that Mother’s focus during visits was whether Sierra was being cared for appropriately at her grandparents’ house, rather than on her own relationship with Sierra. She also testified that therapeutic visits with Sierra had been delayed because Mother had refused to have visits that were in an inconvenient location. However, Soares-Robinson acknowledged that aside from Mother’s failure to take her medications, Mother was actively participating in her reunification plan.

In light of a psychological evaluation by Dr. Webster indicating that Mother had limited social skills and tended to speak without forethought, Soares-Robinson was concerned that Mother would not be able to be patient with Sean, who had special needs, continued to have temper tantrums, was physically abusive to others, and suffered from encopresis and enuresis, and that he would be in jeopardy if returned to Mother’s care.

Mother testified that she had participated in reunification programs for Sean and Sierra, that she had taken anger management classes and a special parenting class for difficult children because of Sean’s special needs, and that she had attended almost all the visits with the children. She was no longer taking parenting or anger management classes, but testified that she was participating in Alcoholics Anonymous or Narcotics Anonymous meetings about once a week. She acknowledged that at times she had been angry with Soares-Robinson, in particular after she started working swing and graveyard shifts and Soares-Robinson began calling her early in the morning. Regarding the location of the therapeutic visits, Mother testified that it would have been difficult for her to get to the location the Department had arranged because she was limited to bus transportation, and asked to have the visits near where she lived. She characterized her exchange with the Department about this issue as a “confrontation.” Visits were arranged at a more convenient location. Mother had four therapeutic visits with Sierra and believed they were successful, but when she arrived for the fifth visit, she was told the therapeutic visits had been cancelled because they were not going well.

Mother testified that she stopped taking her psychotropic medications because Sierra’s father complained that they would harm Sierra, whom Mother was breastfeeding, because her psychiatrist was varying the dosages, and because Mother began feeling better and no longer hated herself.

The juvenile court denied Mother’s motion under section 388, and ordered .26 hearings for both Sierra and Sean. The court found by clear and convincing evidence that the Department had provided or offered reasonable services as to both children, and terminated reunification services as to Sierra.

II. DISCUSSION

A. Modification Petition

Mother contends the juvenile court abused its discretion in denying her modification petition. Under section 388, the juvenile court may modify an order if the parent shows, by a preponderance of the evidence, changed circumstances or new evidence and that the modification would promote the best interests of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) The petition is addressed to the sound discretion of the trial court, and the court’s decision will not be disturbed absent a clear abuse of that discretion. (Ibid.; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; Sheila S. v. Superior Court (2000) 84 Cal. App. 4th 872, 877.) We will not find an abuse of discretion if substantial evidence supports the juvenile court’s ruling. (See In re Jasmon O., supra, 8 Cal.4th at p. 416.)

Mother argues that her actions were not the only cause of Sean’s problems, pointing out that Sean had been in up to 15 different foster homes, that he did not like his routine to be changed, that he spent much of his dependency without psychotropic medications, and that his behavior had improved. Mother also argues that she had made progress on her own problems by taking more than the required courses, continuing individual counseling, testing clean for drugs, being employed, and improving her skills as a parent.

Despite this progress, we cannot say the juvenile court abused its discretion in denying Mother’s petition for family reunification or maintenance services. The evidence shows that Sean presents enormous challenges to a caregiver, and the juvenile court could reasonably conclude Mother would not be able to manage those challenges with the necessary consistency and patience. Her outbursts of anger at the social worker and the receptionist, as well as her hostile interactions with Sierra’s grandmother in Sierra’s presence, could lead the court to conclude that Mother had not yet learned to manage her temper. Other problems persisted as well. Even after a long period of services, Mother’s house was still dirty enough to pose a hazard to her children. Moreover, Mother failed to take her prescribed psychotropic medications, was dishonest with her psychiatrist about them, and continued to be impulsive. In the circumstances, the evidence supports the juvenile court’s determination that Sean could not safely be returned to Mother.

B. Finding of Detriment

Mother challenges the juvenile court’s finding that return of Sierra to Mother would be detrimental. At a permanency review hearing, the juvenile court is required to order the return of the child to the parent’s custody unless the court finds by a preponderance of the evidence that return would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. The social worker has the burden of establishing the detriment. (§ 366.21, subd. (f).) The juvenile court found detriment, and stated, “I in no way could return the child to the mother, would not find the child to be safe.” We review this finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

Mother contends the evidence shows that return of Sierra would not entail a substantial risk of detriment. In doing so, she points out the progress she had made in managing her anger, as shown by her response when Sean and Sierra were throwing blocks at each other, and argues that her behavior during visits with the children was appropriate. Encouraging as Mother’s progress may have been, the evidence before the juvenile court is sufficient to support the finding of detriment. As noted earlier, Mother not only shouted at the social worker and the receptionist, but she also argued about Sierra with the paternal grandmother in Sierra’s presence. She refused to have the grandparents in the reception area during visits, did not take her prescribed psychotropic medications, and did not maintain her home in a condition that would be safe for her children. This evidence is sufficient to support the juvenile court’s finding of detriment.

C. Reunification Services

Mother contends the juvenile court’s finding that she had been offered reasonable services was not supported by substantial evidence. In particular, she argues that rather than cancelling her therapeutic visits with Sierra, the Department should have done more to intervene in the problems between her and Sierra’s grandparents at the visits or should have arranged to have someone else drive Sierra to the visits.

“ ‘In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.’ “ (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; see also In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Substantial evidence supports the juvenile court’s finding that Mother was offered reasonable services. The services included drug testing, individual therapy, parenting and anger management classes, transportation, and visits with her children. At Mother’s request, the grandparents stayed out of the reception area during therapeutic visits in order to avoid conflict with Mother. We see no requirement that the Department also arrange for someone other than the grandparents drive Sierra to her therapeutic visits. The juvenile court could properly conclude Mother had been offered reasonable services.

III. DISPOSITION

The petition for extraordinary writ is denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 38.1(h)(1); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Rule 24(b)(3).) The request for stays of the October 17, 2006 and November 13, 2006, hearings is denied.

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RIVERA, J.

We concur:

_________________________

RUVOLO, P. J.

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REARDON, J.

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[1] All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.

[2] Sean’s case was originally filed in Santa Clara County, but was later transferred to Contra Costa County.

[3] Mother appealed this order, and we affirmed on September 19, 2006 in case number A109054.

[4] He had been placed on extended overnight visitation with Mother in July 2004.

[5] The report noted that Sean had been placed in 15 foster care facilities during his dependency.

[6] The purpose of the therapeutic visits was for a therapist to evaluate the relationship between Mother and Sierra.

[7] The Department filed a subsequent petition on January 11, 2006, alleging that there was a substantial risk Sierra would be sexually abused by her father, Kevin M., because he had sexually molested his half-sister, Shannon, from the time she was approximately six years old until she was approximately 13 years old, and he had not received psychological treatment addressing this behavior. Kevin M. is not a party to this petition. On March 3, 2006, after Shannon testified about the abuse she suffered as a child in the home of her mother (Sierra’s paternal grandmother), the juvenile court ordered Sierra removed from the paternal grandparents’ home and gave the Department authority to place Sierra with Shannon.