Filed 8/17/17 K.S. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

K.S. (Mother) petitions in propria persona for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court’s orders terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.[1] We shall deny the petition on the merits.

MEMORANDUM OPINION[2]

The Contra Costa County Children and Family Services Bureau (Bureau) filed a juvenile dependency petition on behalf of Y.G. (Child), then almost one-and-a-half years old, and detained him in January 2016. Mother subsequently pled no contest to allegations she (1) failed to protect Child by leaving him with an inappropriate caregiver, and (2) had a mental health diagnosis requiring continued treatment.[3] On May 30, 2017, at the conclusion of a contested combined six- and twelve-month review hearing, the juvenile court set a section 366.26 hearing for September 28, 2017, and terminated reunification services.

Mother contends there was insufficient evidence supporting the juvenile court’s conclusions that (1) she was offered reasonable reunification services, and (2) there was not a substantial probability Child would be safely returned to her home if the juvenile court extended Mother’s services for almost two more months, to an 18-month review hearing.[4]

A. Reasonable Services

Mother contends she was not provided reasonable services because (1) an intern conducted her psychological evaluation and its completion was delayed, (2) the Bureau did not offer to pay for dialectical behavioral therapy, which the evaluation recommended, (3) the social worker misinformed her about the amount of time she would have to complete her case plan, and (4) her case plan did not adequately address her mental health issues.

“We review a reasonable services finding to determine if it is supported by substantial evidence. [Citation.]” (In re A.G. (2017) 12 Cal.App.5th 994, 1001.) “ ‘The standard is not whether the [reunification] services provided were the best that might be provided in an ideal world, but whether [they] were reasonable under the circumstances.’ [Citation.]” (Ibid.) “We consider the evidence in the light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] The burden is on the petitioner to show that the evidence is insufficient to support the juvenile court’s findings. [Citation.]” (Ibid.)

Mother agreed she had continuing mental health issues. The social worker therefore began by giving Mother mental health referrals and consulted repeatedly with Mother’s existing mental health providers, a therapist and psychiatrist. Mother’s initial case plan also required a mental health assessment. Mother had to consent in writing to the release of her past treatment records, however, and she delayed doing so for months, repeatedly advising the social worker she would be on “leave” or out of the country without providing details. She also stated she would find a different provider to conduct the assessment or that she would submit information herself directly to the court, and she refused to come into the Bureau’s office to sign the necessary documents. She also failed to sign the documents when the social worker went to Mother’s house to supervise Mother’s visit with Child.

Finally, Mother did sign the consent forms, met with the trainee examiner several times in September and October 2016, and completed psychological testing. The examiner reported that the two had a good rapport, and that Mother said she was happy with the service. But the examiner also noted Mother was “short” when questioned about concerns raised in the Bureau’s records, and refused to explain key events—even after the examiner explained it could assist her case if she did so—responding only that the records were erroneous. The examiner specifically noted that Mother refused to discuss the following “troubling” history: her past arrest record;[5] a May 2016 police report noting she was “acting extremely colorful and borderline manic,” had pressured speech and was disorganized in her thinking; her record of involuntary psychiatric holds;[6] the 2010 dependency actions, during which she lost custody of two older children, following reports that she regularly physically and verbally abused them and that she neglected them; her unstable mental health; and her untreated substance abuse issues. The examiner reported Mother’s resistance would make it difficult for her therapist to appropriately target treatment interventions for Mother’s specific needs. Mother’s counsel did not object to the examiner’s qualifications, and the juvenile court heard Dr. Steven Cloutier’s testimony that he supervised the examiner, met with her after each of Mother’s appointments, reviewed her scoring of Mother’s tests, discussed her interpretation of the results, and reviewed and approved the final evaluation.

Mother also faults the Bureau for not offering to pay the costs of dialectical behavior therapy (DBT), which the mental assessment recommended. But Mother’s individual therapist, Dr. Kevin Pinjuv, provided her DBT on a pro bono basis, a fact the therapist reported to the social worker. The social worker nonetheless did explore the possibility of Mother’s also joining another provider’s DBT group. After consulting the hospital records of Mother’s most recent inpatient stay, however, the provider reportedly advised that Mother was not a “good fit” for the program, because she was “off her bi- polar medication” and “labile” (or emotionally unstable), raising concerns about whether she could concentrate sufficiently to do the necessary homework.[7]

Mother contends the social worker misinformed her about the amount of time she would have to complete her case plan, pointing to an initial, and arguably premature, recommendation that reunification services be terminated. The record, however, shows that mother had ample time to engage in services.

In June 2016, the social worker told her, “[Y]ou have been granted time by the [court] to work with us. Please take that time.” Then, in September 2016, in the six-month review report, the social worker recommended terminating Mother’s reunification services. The social worker testified, however, that, in June 2016, she was attempting to focus Mother on the larger objectives of her case plan. Although acknowledging Mother’s efforts to complete specific case plan tasks, for example, by submitting clean drug tests and attending counseling, the social worker reported she explained to Mother that she also needed to demonstrate behavioral change consistent with the greater case plan goals (e.g., expressing anger appropriately and avoiding action on negative impulses). In a June 2016 update memorandum to the juvenile court, the social worker reported, among other things, that Mother’s behavior “before, during and after the visits [with Child] [had] been erratic and unstable. [Mother was] often upset during the visits, [had] taken or made phone calls during her visits, [was] disrespectful to other staff members and dismissive of [staff] who supervise[d] her visitation.” Several times Mother showed “a lack of concern and awareness regarding [Child’s] safety,” allowing Child to “wander unsupervised into other buildings, [near] areas with heavy car traffic and near large bodies of water,” and Mother argued and shouted when she was asked to supervise Child or received parenting suggestions. Mother also repeatedly withheld consent for testing, which Child’s pediatrician recommended to investigate observed developmental delays, stating simply that Child was “ ‘fine’ and did not need the testing.”[8]

Further, although the Bureau initially recommended termination of Mother’s reunification services in September 2016—among other things, on grounds she: remained unable to supervise Child during visits; was confrontational when others intervened to keep him safe; continued to exhibit “erratic and inappropriate” behaviors; and had had seven contacts with law enforcement in four months[9]—the contested hearing was delayed for various reasons. Once it commenced, the parties presented evidence for seven days, over more than two and a half months. The hearing eventually concluded on May 30, 2017. Mother, therefore, received 16 months of reunification services before the juvenile court actually scheduled the section 366.26 hearing. (See, e.g., § 361.5, subd. (a)(1)(B) [for a child under three years of age, “court-ordered services shall be provided for a period of six months from the dispositional hearing . . . , but no longer than 12 months from the date the child entered foster care”]; In re Jesse W. (2007) 157 Cal.App.4th 49, 59 [this shortened period was intended “ ‘to give juvenile courts greater flexibility in meeting the needs of young children, “in cases with a poor prognosis for family reunification,” ’ ”; it also “represents a legislative determination that in certain situations, efforts to continue reunification services beyond the statutorily mandated six months do not serve and protect a minor’s interest”].)

Finally, Mother appears to contend that her case plan did not adequately address her mental health issues. But she acknowledges her counsel stipulated to the case plan. Further, according to Mother’s own testimony, during the pendency of this case, she received regular treatment from a psychiatrist, individual psychotherapy—including dialectic behavioral therapy provided on a pro bono basis—and many hours of counseling through a substance abuse program. The social worker maintained contact with Mother’s mental health care providers, investigated and obtained information about Mother’s past mental health treatment, obtained a mental health assessment, and sought information about alternative treatment resources.

Based on the entire record, viewed in the light most favorable to the Bureau, we have no difficulty in concluding substantial evidence supported the juvenile court’s finding that Mother received reasonable reunification services.[10]

B. Continuing the Case to an 18-month Review Hearing

Mother also contends the juvenile court erred in declining to continue reunification services for almost two more months to an 18-month review hearing. The juvenile court could only take such action, however, if it found there was “a substantial probability” Child would be returned to Mother’s physical custody and safely maintained in her home within that extended period. (§ 366.21, subd. (g)(1).) To do so, the juvenile court would have had to find, among other things, that Mother “demonstrated the capacity and ability . . . to provide for [Child’s] safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subds. (g)(1)(B)-(g)(1)(C).) Here, the juvenile court found that, although it was clear Mother loved Child very much, she did not demonstrate she would be able to keep Child safe and provide for his physical and emotional well-being if services were extended almost two more months. Accordingly, the juvenile court found, there was not a substantial probability Child would be returned to Mother’s custody in that period.

In reaching this conclusion, the juvenile court judge stated she was relying particularly on Mother’s therapist’s testimony. The therapist, Kevin Pinjuv, testified he treated Mother in weekly sessions for a year and diagnosed her as having borderline personality disorder. The disorder, he testified, was characterized by “pretty dramatic swings between anger, sadness, [and] euphoria,” and by difficulty regulating those emotions, which could “lead to pretty severe interpersonal difficulties,” making it challenging to “interact effectively with the world.” Treatment was “a very long process” requiring years, Pinjuv testified, because the person must change deeply set habits of how she viewed herself and others, and how she interacted with the world. In Mother’s case, Pinjuv acknowledged, despite their weekly therapy sessions and Mother’s regular appointments with a psychiatrist, there had not been significant progress. She continued to behave erratically and impulsively, and had angry outbursts, unstable moods, and tumultuous relationships with those around her. She was unable to make much progress using dialectic behavior therapy, “one of the few evidence-based modalities” shown to treat borderline personality disorder, Pinjuv testified, because she was too distressed about other events in her life, for example, “[f]ights with her partner, fights with neighbors, issues involving her social worker, her attorneys, things like that, . . . basically interpersonal conflicts with various people.” Mother appeared to have such conflicts with every person with whom she regularly interacted, Pinjuv observed. She also did not appear to fully understand the reason Child was removed from her custody, Pinjuv testified.[11]

In addition to Pinjuv’s testimony, the juvenile court judge also cited—and expressed considerable concern about—the following points: Mother had been placed on multiple psychiatric holds (“5150’s”); Mother was in “constant contact with law enforcement”; and Mother had an “antagonistic relationship and encounters with [a] neighbor” that had continued and escalated over time. Based on these facts, the juvenile court found Mother’s mental health recently was “in decline” and there was not a substantial probability Child would be safely returned to her by the time of the 18-month review, in less than two months.

Evidence received during the contested combined six- and twelve-month review hearing—specifically, the Bureau’s 12-month review report attaching police reports, an additional police report admitted as the Bureau’s Exhibit 4, and Mother’s testimony and medical records—amply support these findings. The police reports described Mother as having the following contacts with police, beginning in May 2016 and continuing through February 2017, the month before the contested hearing commenced: in May 2016, a neighbor called the police to report that Mother, a new resident in the neighbor’s apartment complex, had broken glass in the neighbor’s children’s play area, removed the neighbor’s plants from the neighbor’s garden, and thrown her keys at the neighbor’s cat; in July 2016, the neighbor called the police after Mother, angry because the neighbor called animal control regarding Mother’s dog, removed an ornament from the neighbor’s front door and threw it into the front yard, threw the neighbor’s stroller into the bushes, and was believed to have broken the neighbor’s ceramic flower pot; in October 2016, the neighbor called the police to report Mother violated her restraining order, failing to keep the required distance between them; in January 2017, Mother called the police to report her partner had assaulted her, causing an injury that required 20 stitches, said he would kill her, and threatened her with a gun ;[12] on February 13, 2017, Mother’s landlord called the police to report he was changing Mother’s locks for the third time, Mother took and hid the locks, and he wanted them returned; on February 13, 2017, while responding to the landlord’s call, the officer received a report from another resident that Mother had broken her own kitchen window earlier in the day, and when Mother later came to the police station to discuss the matter she was “unable” to “provide the relevant information,” and was placed on a psychiatric hold.[13]

According to a police report, Mother’s conflict with her neighbor escalated in March 2017, with events that occurred less than two weeks before the contested hearing commenced. On March 10, the neighbor reportedly called the police to advise that Mother had kicked her. The following day, the neighbor called the police to report that Mother jumped in front of her as she was walking past Mother’s apartment. Neighbor was accompanied by her five-year old daughter, and was pushing her 15-month old son in a stroller at the time. In an account corroborated by another tenant who reported witnessing the incident, the neighbor said Mother began waving her arms back and forth, saying “come on fight me” and “let’s fight,” walking towards and away from the neighbor, refusing to let her pass with her children, frightening the woman and her daughter. When the officer arrived, the neighbor reported Mother had been harassing her in various ways for the entire time Mother lived in the complex, and had thrown feces at the neighbor, stolen the neighbor’s mail, and broken the neighbor’s guitar. The officer then spoke with Mother, who denied having any altercation with the neighbor, but “became increasingly agitated” and “argumentative,” and “rant[ed]” to the officer that the neighbor needed mental health attention. Concluding the behavior was likely to continue, the officer took Mother into custody, citing her for assault. The officer then spoke with Mother’s landlord, who reported Mother previously had harassed another tenant until that tenant moved out. The next day, while in jail, the police report continued, Mother complained of cervical pain and then told an officer, “I want to kill myself.” She was transported to a medical facility, where she “wav[ed] at imaginary people,” and was placed on a psychiatric hold.

This record constituted substantial evidence supporting the juvenile court’s conclusion it was not substantially probable Mother would be able to safely care for Child and provide for his physical and emotional well-being if her reunification services were extended almost two months, to an 18-month review hearing. We are unswayed by Mother’s argument that Child was not present during the events enumerated in the police reports, as the events nonetheless constitute strong evidence of a pattern of erratic behavior, unstable moods, and impaired functioning, which left Mother unequipped to provide for Child’s safety or for his physical and emotional well-being. Mother also submits that her adjustment disorder can cause impaired social functioning, resulting in disorderly or law-breaking conduct, which may be exacerbated by anxiety and fear of losing a child. While this may be true at least in Mother’s case, and while we, like the juvenile court, do not doubt Mother’s love for Child, the record here does not reflect a substantial probability that Mother, if given two more months, would be sufficiently able to regulate her emotions or modify her impulsive conduct if Child were returned to her.

I. DISPOSITION

The petition for extraordinary writ is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) The request for a stay of the September 28, 2017 hearing is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

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Rivera, J.

We concur:

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Ruvolo, P.J.

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Reardon, J.

K.S. v. Superior Court of Contra Costa County (A151470)