Kathy E. v.Superior Court

Filed 2/16/07  Kathy E. v. Superior Court CA3

NOTTO BE PUBLISHED

CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b).  This opinion has not been certified forpublication or ordered published for purposes of rule 977.

IN THE COURT OFAPPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATEDISTRICT

(Calaveras)

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     Petitioner Kathy E., mother of the minors Emily and Seth,seeks an extraordinary writ (Cal.Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the six-monthreview hearing terminating reunificationservices and setting a Welfare and Institutions Code section 366.26 hearing(undesignated section references are to the Welfare and Institutions Code). Petitioner contends the court erred in concluding reasonable services wereprovided because the services were not tailored to her needs.  We shall denythe petition.

     In February 2006, the minors, both under the age ofthree, were detained and placed with the paternal grandparents due toallegations that petitioner's acts placed them at risk of physical harm,petitioner had to be reminded to care for her own personal needs, herdevelopmental delays seriously impaired her ability to provide proper care forthe minors despite intensive services from the Calaveras County Works and HumanServices Agency (CalWorks), and the paternal grandparents with whom she wasliving no longer wanted her in the home.  The juvenile court adopted areunification plan in April 2006, which included activities to addresspetitioner's personal grooming and independent living skills, an assessment fromthe Valley Mountain Regional Center(VMRC), counseling and parenting. 

     In May 2006, petitioner participated in a psychological evaluation byDr. Johnston, which concluded that petitioner likely suffered from a pervasivedevelopment disorder and functioned at the level of a 10-year-old child.  Consequently,petitioner's ability to parent her children was severely impaired and herability to care for herself was limited.  Dr. Johnston was skeptical that anyservices would help petitioner since she could parent only with round-the-clocksupervision and seriously doubted that there was anything that could be done insix to 12 months to make petitioner an effective parent. 

     Shortly thereafter, petitioner participated in a secondpsychological evaluation with Dr. Savage who also interviewed petitioner andadministered additional tests to her.  Dr. Savage found petitioner to be verypassive and lacking in basic abilities to live independently, in part, becausepetitioner was functionally illiterate and had no job skills.  She agreed with Dr.Johnston's diagnosis of pervasive developmental disorder.  Dr. Savage concludedpetitioner lacked the intellectual capacity to care for her children and it wasimprobable that she would develop skills to do so in six to 12 months. 

     The six-month review report recommended termination ofservices.  According to the report, both minors were doing well and showed nodevelopmental disabilities. 

     At the six-month review hearing, Dr. Johnston testifiedthe purpose of his evaluation was to identify petitioner's problems and identifytherapies, however petitioner's problems were not subject to remedy within therelevant time frame.  Because petitioner needed constant supervision, he was skepticalthat special services would help since she would likely lose any learned skillsif the supervision was removed.  In short, he did not believe petitioner couldbe trained to parent. 

     Dr. Savage testified she was asked to provide a secondopinion on petitioner's ability to parent two small children.  While she had acopy of Dr. Johnston's report and read it, she was able to be objective in theevaluation.  Her diagnosis of pervasive developmental disorder came from theclinical interview, petitioner's lack of judgment and insight, and petitioner'sresponses and testing data. 

     The visit transportation worker testified thatpetitioner never spoke to the minors in the car when he picked her up or whenshe left the visit.  Further, at visits appellant did not react to the infant'scries and lacked involvement in the minors' care. 

     Ms. Latka, in whose home petitioner stayed for severalmonths following the minors' removal, testified petitioner spent most of thetime in her room and did not help with chores.  Moreover, petitioner had to beprodded to regularly care for her own hygiene and never spoke about herchildren unless directly questioned. 

     The social worker testified she spoke to petitionerabout counseling after the psychological evaluations but petitioner neverfollowed through to make an appointment with the provider.  Petitioner wasreferred to VMRC for the specialized services she needed, but VMRC denied herservices.  Because there were no comparable services, petitioner was notreferred elsewhere, however, the social worker did help petitioner appeal theVMRC decision twice to no avail.  VMRC gave petitioner a list of otherorganizations that might help, but petitioner did not follow up on them.  Petitionerwas referred to, and did complete, a parenting class.  The social worker alsoinvestigated the Independent Living Program but petitioner was too old toqualify for it.  A previous social worker referred petitioner to AdultProtective Services.  The social worker testified that CalWorks did not engagein actual skill training but, instead, referred clients to other serviceproviders and that clients were expected to follow through.  Two social workerswere assigned to the case due to petitioner's special needs, however, accordingto the social worker, petitioner was unable to live independently or care forherself or her children.  There were simply no other services to assistpetitioner given her diagnosis. 

     After hearing testimony, the court, concerned that morecould have been done for petitioner, continued the matter for furtherinvestigation of options, including a conservatorship. 

     When the parties returned, County Counsel reported thatthere were no services for which petitioner qualified that could provide the intensivesupervised parenting training she required.  Counsel also provided the writtendecision rejecting petitioner's appeal of the VMRC denial of services, whichdisagreed with the conclusions of the two psychological evaluations done inthis case.  After a chambers conference, the court concluded there were noservices or programs available which could meet petitioner's needs.  The courtfound CalWorks had made reasonable efforts to provide tailored services, butthere were simply no more services available.  Accordingly, the courtterminated services and set a section 366.26 hearing.

DISCUSSION

     Petitioner argues the reunification plan was nottailored to her deficiencies, no reasonable services were offered and CalWorks stoppedtrying after the psychological evaluations were performed.

     The purpose of reunification services is to amelioratethe conditions which led to removal so that the child may be returned home.  (Inre Joanna Y. (1992) 8 Cal.App.4th 433, 438.)  In order to accomplish thisgoal, the case plan must be â€