Opinion
G056417
09-27-2018
A.O., Petitioner; v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Sharon Petrosino, Public Defender, Kenneth Norelli, Assistant Public Defender, and Brian Okamoto, Deputy Public Defender, for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputy County Counsel, for Real Party in Interest, Orange County Social Services Agency. Law Office of Harold LaFlamme and Denise L. Schleicher, for Real Party in Interest, the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17DP0112 & 17DP0113) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Sherri L. Honer, Judge. Petition denied. Sharon Petrosino, Public Defender, Kenneth Norelli, Assistant Public Defender, and Brian Okamoto, Deputy Public Defender, for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputy County Counsel, for Real Party in Interest, Orange County Social Services Agency. Law Office of Harold LaFlamme and Denise L. Schleicher, for Real Party in Interest, the Minor.
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A.O. petitions for relief from an order of the juvenile court, terminating her reunification services with her two children, A.B. and M.B, and scheduling a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. A.O. contends the juvenile court erred in concluding she had been provided with reasonable reunification services, arguing the services offered to her were inadequate as a matter of law to address her acknowledged mental health problems. We disagree and deny the petition.
All further statutory references are to the Welfare and Institutions Code.
A.O.'s assertion that her mental health issues, which included depression and anxiety, were the primary problem underlying the dependency is inconsistent with the juvenile court's conclusion that her methamphetamine abuse was the chief obstacle to reunification. The court's conclusion was supported by substantial evidence; thus, a reunification plan that focused more on the latter, while still incorporating mental health services, was reasonable.
Additionally, A.O. was already under the care of a psychiatrist at the time she voluntarily relinquished custody of her children to the Orange County Social Services Agency (SSA). Her reunification plan required her to follow the recommendations of her psychiatrist with respect to the administration of psychotropic medications and to participate in individual and group therapy. She did neither, and refused the social worker's offer to contact mental health programs on her behalf. Those facts support the juvenile court's determination that A.O.'s lack of progress stemmed more from her failure to comply with her reunification plan than from any significant deficit in the plan itself.
FACTS
On January 28, 2017, A.O. voluntarily brought her children, then ages five and three, to Orangewood Children and Family Center (OCFC) after concluding they could not remain safely in her care. A.O. explained the children's father was in prison, she was homeless, and with no one to help her, she had been operating in '"survival mode"' for several months.
A.O. described her children's behavior as "out of control," and "dangerous." She described an incident earlier that same day in which A.B.—the five-year old—was not following her directions, and in response, A.O. had "smacked" the child, causing her to fall off a chair and hit her head. A.O. took the child to U.C.I. Medical Center, and although A.B. was found to be uninjured, the incident caused A.O. to question her ability to safely care for the children. As a consequence, she went straight from UCIMC to OCFC, where the children were taken into protective custody that same day. When questioned, A.B. described the smacking incident similarly to A.O., and she agreed that she and her brother, M.B., are "out of control" and that A.O. loses her temper and smacks them "anywhere she can reach."
A.O. also reported she had been diagnosed with depression, anxiety and obsessive compulsive disorder, and had been prescribed Prozac. However, she stopped taking the Prozac because it made her sick. A.O. also acknowledged past drug use, including methamphetamine use beginning at age 17, but claimed she had been sober for five years.
On January 31, 2017, SSA filed a juvenile dependency petition. The petition alleged jurisdiction was proper based on failure to protect (§ 300, subd. (b)), including A.O.'s inability to provide regular care for the children, her physical abuse of A.B., her history of substance abuse, her unresolved mental health problems, as well as the history of substance abuse, domestic violence, and criminal offenses by the children's father. The children were ordered detained on February 1, 2017, and the court ordered eight hours of supervised visitation per week for A.O.
In connection with the jurisdiction and disposition hearing, A.O. reported that she missed her children terribly and wanted them returned to her care, but she first needed to work on getting healthy physically, mentally and emotionally. She acknowledged she needed help achieving that goal, and stated she was willing to accept whatever services SSA offered to her.
A.O. stated she would like to participate in counseling to address her "insecurities," explaining that her last two relationships had involved not only physical abuse but psychological and control issues as well. She reiterated she had unresolved mental health problems, including depression, anxiety, and OCD, and reported she had been seeing a psychiatrist named Dr. Nguyen at the Mental Health Clinic in Anaheim since September of 2016.
A.O. explained that although she had been prescribed Prozac, she stopped taking it after a month and a half because she felt it was not helping her. She was then prescribed Celexa, but had such a bad reaction to it that she was hospitalized. Her psychiatrist next prescribed Effexor, and after it also caused negative side effects, prescribed Seroquel. A.O.'s most recent appointment with Dr. Nguyen had been on February 3, 2017. She was again prescribed medications to address her anxiety, depression, and OCD, but she stated she was not currently taking any of them. A.O. reported she had another appointment scheduled for March 3, 2017, and the social worker encouraged her to follow her psychiatrist's recommendations.
A.O. reported she had enrolled in a Personal Empowerment Program (PEP), and also that she had refrained from any drug use since 2010. However, her drug patches applied on February 13 and March 10 tested positive for methamphetamine. A.O. disputed the accuracy of both tests and suggested the social worker was attempting to sabotage her.
The social worker recommended A.O. participate in individual counseling, and on February 10, the social worker referred her to a therapist. On February 21, the social worker contacted the Mental Health Clinic in Anaheim and left a message asking Dr. Nguyen to contact her.
On March 1, A.O. missed her first appointment with the therapist, and requested that a different therapist be assigned to her because she had just moved to Huntington Beach. On March 18, she began therapy with the new therapist, who expressed concern about A.O.'s ability to reside with others and maintain a support system because she tends to have conflicts and move away. A.O. moved once again in May 2017, and requested a new therapist. A.O. then missed her first appointment with the newly assigned therapist.
In April 2017, A.O. requested she be allowed to randomly drug test, rather than patch test. That request was granted, and the social worker provided A.O. with a bus pass and a list of testing locations close to A.O.'s home. She also explained to A.O. that any missed, diluted, tampered, or other non-negative tests would be treated as positive tests. A.O. nonetheless missed four random drug tests in May 2017.
On May 31, Dr. Nguyen's office requested that A.O. provide a release so they could share information with the social worker. On that same day, A.O.'s case manager for her PEP classes reported she had attended only three out of ten classes, and had not attended since April 12. A.O.'s therapist also reported she had missed another appointment.
Meanwhile, the children were placed with non-related extended family members, who reported concerns about their behaviors—including temper tantrums, hitting, kicking, and lying. A.B. was attending play therapy to help her improve her social skills and follow instructions.
On June 7, 2017, the court found the allegations of the petition to be true, and formally ordered the children removed from A.O.'s custody. The court ordered no reunification services for the children's father, but approved the reunification plan proposed by SSA for A.O. A.O.'s case plan required her to participate in counseling to address her past history of substance abuse, domestic violence, mental health issues and coping skills; to follow the recommendations of her treating psychiatrist as to psychotropic medication and monitoring; to execute all necessary releases of information for any requested record, including medical consents; to complete parenting and substance abuse treatment classes; and to participate in substance abuse testing. The court also ordered additional co-dependency counseling for A.O., noting "I do think that Mother needs a lot of help and a lot of support in so many ways. So the more we give her, the more hope we have for a successful reunification."
As A.O. concedes in her brief, she did not comply with her case plan during the first six-month reunification period. She was inconsistent with visitation, and engaged in inappropriate behavior when she did visit. She did not attend counseling, self-help meetings, or parent-child interaction therapy. She did not enroll in an outpatient substance abuse program, missed all her substance abuse testing, and admitted relapsing. She failed to participate in her domestic violence program.
A.O. did voluntarily enroll in a 30-day inpatient drug program, which included individual psychotherapy and assistance with her mental health issues. However, she left the program prior to completion because she viewed the program as too intense.
A.O. also failed to consistently meet with either the plan coordinator for her psychiatric/psychological evaluations or her psychiatrist to receive her psychotropic medications.
The court held the six month review hearing on November 29, 2017. Pursuant to the parties' stipulation, the court found that SSA had provided reasonable services to A.O., but that return of the children to her care would create a substantial risk of detriment to their safety and well-being. The court also found there was a substantial probability that the children could be returned to A.O.'s custody within six months, and continued the case for a 12-month review hearing. The court ordered funding for A.O. to resume therapy with an IPP therapist.
In December 2017, A.O. met with the social worker and reported feeling overwhelmed. She acknowledged she did "not have anything planned out" and was "not organized." The social worker offered her a list of available resources, including housing resources, assistance programs, and programs for addressing substance abuse and mental health issues. The social worker offered A.O. assistance with contacting any of these resources, but A.O. demurred, telling her "I know how to call."
During that same meeting, A.O. acknowledged she had not been participating in IPP therapy but claimed she did not remember her therapist's name. The social worker reminded her of the therapist's name. A.O. also reported she had not been participating in her outpatient substance abuse program, her PEP, and had not been drug testing.
On January 10, 2018, A.O. arrived 30 minutes late for a Child and Family Team meeting. She had a bruised lip, bleeding gums, and her pants were on inside-out. During the meeting, she was seen talking to herself, praying and chanting. A.B. did not want to sit next to her. The social worker again asked A.O. what she could do to help her. A.O. did not respond.
On January 17, 2018, A.O. contacted the social worker to report that from January 10 to January 13, she had been placed on an involuntary psychiatric hold in a mental institution pursuant to section 5150, following an incident at a hospital. She stated the psychiatrist at the mental institution had treated her with Wellbutrin. The social worker asked A.O. for the psychiatrist's full name and contact number, along with a release allowing the psychiatrist to speak directly with the social worker. Although A.O. promised to provide the information, she did not.
On February 9, 2018, SSA filed a section 388 petition to suspend A.O.'s visitation with the children because she was harassing the children's foster parents by calling and texting them over 20 times per day. She accused the foster father of being a pedophile and accused both foster parents of hurting her children. When A.O. did speak with the children, she asked them, "Are the mean people hurting you." After A.O.'s calls, the foster parents reported the children would act out with tantrums, screaming, and refusing to listen; they also reported the children did not want to visit with A.O.
The trial court found there was prima facie evidence to support SSA's petition, ordered A.O.'s visitation suspended temporarily, and set an evidentiary hearing. In connection with that hearing, SSA reported that A.O. had not followed through with any of the mental health resources previously offered to her, and opined that continued visitation with her would be detrimental to the children because they "are emotionally harmed before, during, and after the visitation." SSA also reported that the children were frightened of A.O. and did not want to visit with her. Moreover, the foster parents had given notice they were unable to keep the children any longer due to A.O.'s harassing behavior, and SSA explained it was important to try to preserve that placement for the children.
On March 12, 2018, before the court ruled on the section 388 petition, A.O. requested a psychological evaluation to shed light on her behaviors affecting visitation. Although the court was initially inclined to order it, both SSA and the children opposed the evaluation on the basis it would delay the upcoming 12-month review hearing. They also argued that A.O. had made no effort to participate in her case plan, and she showed no inclination to change her behaviors. They also noted she had already been referred for mental health evaluations and services, but had not taken advantage of the opportunities. Ultimately, the court denied A.O.'s request, noting her case plan already "provided her with exactly what a 730 would have done. And if she's not making herself available, there's very little this court can do."
On March 21, 2018, the court granted the section 388 petition to suspend A.O.'s visitation indefinitely, noting her behavior was jeopardizing the children's placement and having a detrimental effect on them.
On April 12, 2018, A.O. enrolled at Heritage House with the help of her social worker. Heritage House is an inpatient drug treatment program that also addresses various psychological issues. However, the program director reported A.O. resisted taking directions, argued with everyone, and blamed others for her problems, before leaving the program on April 20. After she left Heritage House, A.O. explained to the social worker that she had done so because she "was getting falsely accused." She claimed "[t]hey were putting me down. They bashed me." She also said "[t]hey are completely wrong. They lie."
In May 2018, A.O. sought assistance from Adult Mental Health (AMH) in Santa Ana, but she would not cooperate with any of the provider's requirements or assessments. Instead, she demanded she be put at the top of the list for housing. AMH scheduled an appointment for A.O. to see a psychiatrist on May 14, but she refused to answer any questions posed to her by the psychiatrist, including "[w]hat brings you to the appointment today." A.O. refused to schedule another appointment with the psychiatrist because "no one helped me."
The contested 12-month review hearing was held on May 30, 2018. SSA recommended that A.O.'s reunification services be terminated and the court schedule a permanency planning hearing. The social worker testified, summarizing SSA's efforts to provide services to A.O., as reflected in its reports. She explained that A.O.'s mental health issues were self-reported, and had never been directly confirmed by any psychiatrist. Although the social worker made several attempts to communicate with Dr. Nguyen about A.O.'s diagnosis and treatment over the course of the reunification period, she had not succeeded. The social worker had provided A.O. with referrals to other psychiatric and therapeutic resources, including the one that led to A.O.'s abbreviated session with the psychiatrist in May 2018, but none of them worked for A.O.
A.O. also testified, stating she had entered a new residential program on May 25, which provided her with shelter, food and classes to address the effects of domestic violence and drug abuse. Her goal was to get into "a more stable environment."
A.O. summarized her history with Dr. Nguyen, her psychiatrist, noting he had prescribed her a series of medications, which she did not like for various reasons. The last medications he had prescribed were Gabapentin and Seroquel, but she never took them because "I just didn't want to deal with it anymore." She was later prescribed Wellbutrin by Dr. Abishoo when she was involuntarily confined in the mental institution in January 2018, but she explained she had stopped taking that medication as well because renewing the prescription "was kind of, like, a tedious process." When asked if she would be willing to take medication prescribed to her as part of a "medical protocol plan," A.O. replied "not just anything."
A.O. acknowledged her use of methamphetamine throughout the dependency process, explaining that it sometimes provided her a "sense of relief" from her feelings of being overwhelmed and crazy, but at other times it did just the opposite. She claimed she had never been under the influence of methamphetamine while her children were in her care, but had relapsed into using after relinquishing custody. She also claimed she had been sober for three to four weeks as of the 12-month review hearing.
A.O. admitted she sometimes missed appointments with the social worker because "I was just tired or it was at a weird time or I had forgotten because it was . . . awhile after she had made the appointment, which is kind of hard for me." A.O. agreed that when she did meet with the social worker, the social worker gave her lists of resources and she claimed she had contacted "most of them." However, she also stated she was hoping the social worker would "get a foot in the door for me" and "help me by talking to them for me as well."
Somewhat inconsistently, A.O. admitted the social worker actually had made calls to arrange services on her behalf, but claimed "that's not really help to me . . . I guess I wanted more of a supporter and help still." She then explained "I guess I expected her to, like, push me, and, like, be more supportive, whether it be emotional, mental, psychological, physical, you know, like physically helping me."
At the conclusion of the hearing, the court found that the services offered to A.O. were reasonable, but that her progress toward alleviating or mitigating the causes necessitating removal of the children from her custody had been minimal and returning the children to her would create a substantial risk of detriment. The court concluded there was no reasonable probability that the children could be returned to A.O.'s custody within the next couple of months.
The court agreed with A.O.'s assertion the social worker could have done more to assist her with mental health services, and that A.O.'s involuntary commitment in January 2018 had been "a red flag that [A.O.'s] mental health may be impacting [her] ability to engage in other services and may be impacting her visitation with her children. . . ." However, the court also pointed out that A.O. had made no effort to communicate specific concerns to the social worker, such as her difficulty renewing her Wellbutrin prescription, or any dissatisfaction with her psychiatrist, and thus the social worker could not be faulted for failing to assist her with those issues.
Moreover, the court noted that A.O.'s case plan specifically required her to follow the recommendations of her treating psychiatrist with respect to the administration of psychotropic medications, and to participate in individual and group therapy to address her issues. She did neither. The court recognized that A.O. was not entitled to "perfect" services, but only reasonable services, and concluded the services offered to her met that standard.
The court also pointed out that A.O.'s mental health issues were not "the sole focus" of her reunification plan. To the contrary, her methamphetamine abuse problem was at least as significant an issue, and the court found that her failure to address that problem provided a sufficient basis, in and of itself, to justify the termination of her reunification services. Moreover, the court explicitly rejected the suggestion that A.O.'s unresolved mental health issues interfered with her ability to address her substance abuse problem, noting that the inpatient substance abuse programs that A.O. took advantage of included mental health components, such as the provision of psychological evaluation and psychotherapy.
The court consequently ordered the termination of reunification services and scheduled a contested hearing to determine a permanent plan for the children pursuant to section 366.26.
DISCUSSION
A.O. contends the court erred in finding that the reunification services offered to her were reasonable because SSA "should have recognized [her] mental health issues as the primary risk factors" underlying the dependency, and done more to assist her in addressing those issues. She argues that the adequacy of the reunification plan to address her substance abuse problem "cannot be sufficient by itself" if the plan does not also include separate reasonable services to address her mental health issues.
1. Standard of Review
"The adequacy of reunification plans and the reasonableness of DCFS's efforts are judged according to the circumstances of each case." (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) '"[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult. . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted.)
Although "[t]he finding that reasonable reunification services have been offered must be supported by 'clear and convincing evidence'" in the trial court (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626), the standard of review on appeal is sufficiency of the evidence. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.)
"When we review a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial court's determination. We must resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the court's order. . . . And, in reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
2. Reasonableness of the Reunification Services
A.O. relies on Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420 (Patricia W.) for the proposition that "when a parent or guardian has a mental illness or a developmental disability, that condition must be the 'starting point' for a family reunification plan which should be tailored to accommodate their unique needs." However, as the juvenile court pointed out, Patricia W. is distinguishable because in that case, the parent's severe mental illness was the only issue that impaired her ability to care for her child. Thus, Patricia W. does not support the proposition that parental mental illness must be the primary focus of reunification efforts in every case in which it exists.
In Patricia W., the child was detained after his mother, who had been diagnosed as schizophrenic and committed to psychiatric hospitals previously, ran out of her medication and began hearing voices urging her to kill people, including her son, and was alleged to have identified specific plans for doing so. (Patricia W., supra, 244 Cal.App.4th at pp. 401-404.) Noting that a diagnosis of schizophrenia is '"nebulous"' and "'may represent a collection of parts from several types of emotional disturbances rather than a single "'disease,'"'" the court reasoned that "'"labeling some patients as schizophrenic may be equivalent to saying an accident victim with a concussion, fractured spine, broken ribs and a collapsed lung is 'severely ill.'"'" (Id. at p. 422.)
Thus, the Patricia W. court concluded that "[an] expert opinion is required to determine whether a child can safely remain in the custody of a parent suffering from schizophrenia," and that professional input "is necessary for an agency to appropriately tailor reunification services to such a parent." (Patricia W., supra, 244 Cal.App.4th at p. 425.) However, because "Mother's mental illness appears in this case to be so vaguely and inconsistently diagnosed" (Id. at p. 423), her reunification services could not have been tailored to her specific needs.
In this case, by contrast, A.O.'s self-reported mental illnesses—which did not include schizophrenia—were only one aspect of the problems that impaired her ability to parent her children. Moreover, while A.O. characterizes her mental illnesses as the "primary" factors underlying the dependency, the juvenile court did not see it that way, and there was no indication in the record that her depression and anxiety were so substantial, in and of themselves, that they to rendered her unable to safely parent her children. Rather, as the court made clear, it viewed A.O.'s unresolved drug dependency as the most significant barrier to reunification with her children.
In her petition, A.O. asserts that because her mental health issues are not merely "speculative or potential problems," they necessarily qualify as the primary risk factors underlying the dependency. We reject that false dichotomy. Many people who suffer from depression, anxiety, and obsessive compulsive disorder are capable of caring for their children, and thus a diagnosis of those conditions does not automatically suggest that a dependency is likely. The same cannot be said of a parent's chronic abuse of methamphetamine. --------
The court further recognized there was some interrelationship between A.O.'s drug dependency and her mental health issues, and thus concluded she had been well-served by a plan that incorporated both psychological therapy and drug treatment, rather than treating them as unrelated issues. And given A.O.'s access to services and programs offering both of those things, the court expressly rejected the notion that her unresolved mental health issues were responsible for her inability to address her drug dependency.
Substantial evidence supports the trial court's analysis. A parent's debilitating drug dependency is often accompanied by mental health issues, and vice versa, and it makes sense to address those problems in an integrated fashion—as most drug treatment programs do. Moreover, A.O.'s reunification plan called for her participation in individual therapy, as well as her continued treatment by her psychiatrist, and it explicitly required her to follow her psychiatrist's directives in taking psychotropic medication. That she failed to do any of those things is not a flaw in the plan itself.
Further, when it became apparent that A.O. was no longer keeping her appointments with her original psychiatrist, the social worker did arrange referrals to other mental health programs, including psychiatric care, but A.O. appeared resistant to such care. Even when she did attend a session with a new psychiatrist, she refused to engage with him.
While it is always possible that A.O.'s social worker could have done something more, or something different, which might have altered the reunification process, the overwhelming impression created by this record is that A.O. was resistant to taking advantage of whatever services were offered to her. After she very commendably turned her children over to OCFC when she became concerned she could no longer safely care for them, she quickly relapsed into the drug abuse she had apparently refrained from engaging in during their lives together. And it appears her life spiraled downward as a result.
While A.O. always maintained she wanted to regain custody of her children if she was able to stabilize her life, there is no evidence she was ready to do the hard work necessary to make that happen so long as she could be sure that someone else was taking care of her children. Ultimately, when asked at the 12-month review hearing if she wanted to reunify with her children, A.O. was equivocal, stating she was unsure she was capable of caring for them.
When A.O. was asked what had prevented her from doing what was necessary to get her life back on track, she stated vaguely that she still "had a lot of healing to do." Her testimony on both counts is entirely consistent with the juvenile court's conclusion that the primary impediment to reunification in this case was A.O.'s failure to take advantage of the programs and resources made available to her during the reunification period, rather than any shortcoming in the services themselves. We consequently find no error in the court's ruling.
DISPOSITION
The petition is denied.
GOETHALS, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.