Opinion
A153374
04-03-2018
S.N., Petitioner, v. THE SUPERIOR COURT FOR THE COUNTY OF SAN MATEO, Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17D0105)
In this juvenile writ proceeding, S.N. (mother) seeks extraordinary relief from the juvenile court order terminating reunification services and setting a permanency planning hearing pursuant to section 366.26 of the Welfare and Institutions Code with respect to her young son, A.Z. (born March 2016). Mother's sole argument here is that the San Mateo County Human Services Agency (Agency) failed to provide her with reasonable reunification services. Although the posture of this case is somewhat unusual—given the difficulties the Agency encountered in working with mother—we conclude that the juvenile court's reasonable services finding was amply supported by the evidence and therefore deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise specified. All rule references are to the California Rules of Court.
I. BACKGROUND
A.Z. was detained in February 2017 after the Agency received a referral from his pediatrician indicating that mother appeared to be actively hallucinating while at the clinic with the minor. Mother brought A.Z. in to be seen because she was concerned about an infestation of bugs which left trails of yellow slime in their apartment. Mother stated that she had been washing the 11-month-old minor in the bathtub several times a day, for up to four hours, in an attempt to remove the bugs from his skin, but had been unable to remove them all. She reported spending nine hours trying to remove a bug from A.Z.'s uncircumcised penis. Mother further stated that the only thing that helped with respect to the removal of the bugs was an acne wash containing salicylic acid, a bottle of which she showed to the pediatrician. When the pediatrician asked mother where she had seen the bugs on A.Z., mother asked for a glove and began squeezing and rubbing the tips of the minor's fingers. She stated she saw webs coming out and also yellow and black worms, none of which could be seen by the doctor. Mother additionally rubbed A.Z.'s navel with her gloved hand, asserting that the bugs were in there too, but she could only see the tail and could not get them.
The minor's pediatrician reported that both mother's and A.Z.'s hands were chaffed from constant washing. In addition, the tip of the minor's penis was red and swollen, and he had large patches of abrasions and dermatitis on his body that appeared to be rubbed. The minor's feet were also mildly swollen and tight with what appeared to be thinned, raw skin. When interviewed later that day by an Agency social worker, mother stated that there was slime everywhere in her home and on the minor and that, as a consequence, she had to throw away all of her possessions. Mother was eventually involuntarily detained pursuant to section 5150 based on her continuing agitation and psychosis, and, because father could not immediately be located, the minor was taken into protective custody.
The Agency subsequently filed a dependency petition with respect to A.Z. pursuant to subdivisions (a) and (b) of section 300. In addition to the February 2017 incident detailed above, the petition indicated that father had sought medical attention for the minor the previous month due to a bug infestation in the home. Father reported that a large abrasion on the tip of the minor's nose was from mother using a lint roller to try and remove bugs from the child's skin. Father also pointed to black spots from bugs on the minor's skin which could not be seen by medical staff. The agency opined that A.Z. was at substantial risk of suffering serious physical harm due the parents' behaviors.
Because father has not contested the juvenile court's setting order in this matter, we discuss him only to the extent relevant to mother's petition.
In its detention report, the Agency noted that mother had been convicted of six misdemeanors between 2002 and 2009, largely involving allegations of driving under the influence. Moreover, after the minor was detained, father indicated that he did not know how he could protect A.Z. from mother, because she "does not listen to him and he is always out of the house working." The Agency opined that it was unclear, at that point, whether the parents' hallucinations or paranoia were due to substance abuse and/or mental health issues. On February 10, 2017, the juvenile court formally detained A.Z. and ordered services for mother, including alcohol and drug testing, substance abuse treatment, parenting education, and a psychological evaluation. The court additionally ordered weekly supervised visitation between mother and the minor.
However, on March 6, 2017, the Agency filed a request for a restraining order against mother, which named as the persons needing protection the minor; the pediatrician; the case-carrying social worker, M. Sullivan (Sullivan); and Sullivan's supervisor, M. Beaman (Supervisor Beaman). In support of this request, the Agency cited multiple concerns, including the following: After a supervised visit on February 22, mother refused to allow A.Z. to be transported—asserting that the minor had been illegally detained—such that police intervention was required. Later that same day mother appeared at Agency offices with father, called a member of the clerical staff a " 'fucking Social Worker,' " and yelled at Supervisor Beaman, calling her a liar and maintaining a threatening posture throughout their interaction. In addition, mother had repeatedly contacted the Agency's hotline, demanding that the minor be returned and that she be provided with the address and telephone number of his foster home. She had somehow managed to locate the minor's former foster parents and had contacted them making similar demands. On February 24, after making multiple calls to the county medical clinic, mother spoke to the clinic supervisor, stating that her pediatrician had illegally taken her son, claiming that she had contacted the FBI, and repeatedly and tearfully asserting that she needed the supervisor to find her baby. After the clinic supervisor transferred mother to the Agency, he learned from Agency personnel that mother had made some kind of a threat, potentially a physical threat. Finally, on March 1, 2017, at the end of a supervised visitation attended only by father, father refused to remain inside the building as requested and left through another door while staff were transporting the minor through the front entrance; father "quickly and with an intense look on his face" approached staff carrying the minor, while making hand gestures to someone in the parking lot; and, after staff retreated to a secure location, mother and father positioned their separate cars in front of the visitation center, requiring police to be called to escort the minor back to his foster home. A temporary restraining order was issued that same day and a hearing on the restraining order was set for April 3, 2017.
In the meantime, in advance of the March 13 jurisdictional hearing, Sullivan filed a report indicating that mother had failed to attend a scheduled appointment with her attorney, Sullivan, and Supervisor Beaman. The report also described the events leading up to the Agency's restraining order request. In particular, the report noted that, as a result of the March 1 incident, visitation between A.Z. and both parents had been suspended. At the March 13 hearing, the matter was continued to March 23 both for jurisdictional contest and for a hearing on the restraining order.
Sullivan prepared a first addendum report for the contested hearing. Although mother stated that she did not need any assistance and wanted the child returned to her care, Sullivan scheduled a psychological evaluation for mother on March 17. Mother was also referred for substance abuse assessment and drug testing, but she refused to commit to an appointment and was confused as to why either parent needed to be tested. According to Sullivan, the parents were determined to find the location of their son's placement, calling the Agency hotline at least 11 times between February 19 and March 3 and appearing at various Agency buildings and county medical clinics demanding his return.
In addition, the discharge summary from mother's recent eight-day psychiatric hospitalization was attached to the first addendum report and indicated that mother had tested positive for amphetamine and methamphetamine when admitted. It also revealed that she had been seen in the emergency room in 2004, 2007, and 2008 due to excessive alcohol levels. Mother was started on psychotropic medication during her hospitalization and discharged on that medication, with follow-up care scheduled. Finally, the first addendum report included a declaration from the minor's pediatrician indicating that she had concerns for her safety as mother had left her a message requesting that she call " 'John Lowe,' " an individual she did not know and who she understood shares the name of a television character on American Horror Story, a detective who investigates murders. Mother had also attempted to see the pediatrician at her place of work, and—when told the doctor was unavailable—stated that she would wait for her in the parking lot in a matter that staff interpreted as cause for concern.
A three-year restraining order was issued by the juvenile court on March 23 restraining mother from various forms of contact with the protected persons delineated above, along with any subsequently assigned Agency staff. The restraining order allowed for pre-arranged contact only with Sullivan or Supervisor Beaman and permitted secured visitation with A.Z. once mother's mental health had stabilized. As neither parent was present, the contested jurisdictional hearing was continued to April 27, 2017.
In a second addendum report, Sullivan stated that mother had been unavailable on the prior hearing date because she had again been psychiatrically hospitalized, this time from March 19 through March 31, after she was found by police searching a field for father and his mistress, who she believed to be the previous social worker. According to mother, the two were planning to take her son away. When Sullivan met with mother during her hospitalization on March 30, mother claimed Sullivan was not who he said he was and declared she was her own lawyer. She further stated that someone had deliberately placed the bugs in her apartment. According to Sullivan, the attending nurse described mother as suffering from " 'meth induced psychosis.' " After mother's release, Sullivan spoke with her by phone on April 10, 2017. At that time mother spoke very quickly, jumping from subject to subject, and confessed that she had not been eating or sleeping. Mother continued to refuse to participate in a psychological evaluation and failed to follow up with recommended treatment after her discharge. On April 7, 2017, she again attempted to stop Agency workers from leaving with A.Z. at the end of a supervised visit with father. By April 14, mother was expressing concern that the minor had developed an extremely rare bacterial infection from formula contaminated with bugs, although the minor exhibited no symptoms of the disease. On April 27, the contested jurisdictional hearing was further continued after the court declared doubt as to mother's competency and appointed a guardian ad litem (GAL) for her. The court found that contact between mother and A.Z. would be detrimental at that time.
In a third addendum report, Sullivan stated that mother had failed to attend two scheduled appointments for her psychological evaluation in April and May 2017, despite multiple contacts by the social worker attempting to facilitate her attendance. Moreover, after numerous unsuccessful attempts by mother's assigned therapist to contact mother and engage her in therapy, mother's case was closed in May 2017 due to noncompliance. Throughout May and June 2017, Sullivan spoke to mother a number of times by phone and received countless voicemail messages from her, wanting to discuss her side of the story, stating how unfair everything was, expressing concern that A.Z. had been infected with Lyme disease, and asserting that she had no interest in talking to the GAL. On June 12, the GAL asked for a continuance of the contested hearing as she had not had contact with mother. Jurisdiction and disposition were finally completed on June 27, 2017. On that date, although mother was not present, her GAL submitted to jurisdiction pursuant to an amended petition and the juvenile court found the minor to be described by subdivision (b) of section 300, declared A.Z. to be a dependent child, removed the minor from the custody of both parents, and ordered reunification services. Mother's services included individual therapy, completion of a psychological evaluation, psychotropic medication compliance, substance abuse assessment and treatment, and drug testing. The court ordered weekly supervised visitation between the minor and mother, contingent on mother's completion of one individual therapy session.
As for A.Z., he was reported to be doing well in foster care during this extended pre-jurisdictional timeframe. However, the foster mother repeatedly stated that A.Z. hated bath time and cried during his bath. In May 2017, the minor's therapist confirmed that A.Z. became dysregulated when bath time was initiated, crying and throwing himself on the ground when he heard water running.
Unfortunately, though perhaps unsurprisingly, mother's willingness to engage in services remained unchanged throughout her six-month reunification period. After the dispositional hearing in June 2017, the parents began to hide their location from the Agency. Mother continued to state that she did not want therapy as she was " 'not nuts.' " She claimed Sullivan was Russian and was going to take the minor to Russia. In July 2017, the juvenile court authorized out-of-county placement for the minor in a concurrent foster home, given the parents' erratic behaviors—such as attempts to pay money to county employees to obtain information regarding A.Z.'s whereabouts—and related safety concerns for the minor. At a meeting on July 14, 2017, mother informed the new social worker, A. Quintero (Quintero), that the parents were living in a motel, but would not disclose the location. When Quintero reviewed the court-ordered case plan with the parents on that date, mother indicated that they knew what they were ordered to do. She further stated that she was not going to " 'play the game' " and did not need any services. On August 14, 2017, Quintero similarly reviewed the case plan with mother, and she again refused to participate in any services, asking him instead " '[h]ow much do you want' " for the minor to be returned. Quintero told the parents that they could contact him on Fridays to discuss their case without running afoul of the restraining order. Over the course of the next several months, however, the parents made numerous contacts with other Agency personnel and county medical staff, allegedly in violation of existing restraining orders, including a call during which mother threatened to come to the medical clinic and break windows.
On September 18, 2017, the court agreed to speak with the parents when they called in over an hour after a hearing had been scheduled to occur. The court set up a family team meeting for September 25 and asked the Agency to try and locate a Russian therapist for mother, or at least to have a Russian interpreter available during sessions. Despite numerous reminders by Quintero, however, both parents failed to attend the court-ordered family team meeting, mother stating that the juvenile court judge was a " 'fake' " judge. At an October 2 court hearing, the parents did not appear and, when the court tried to reach them by telephone, mother said that the phone was not working and hung up. The court then went on to relieve the attorneys for the parents and minor, as well as the GAL, because the parents were attempting to file a civil complaint against them (among others), leading to a conflict situation. New attorneys and a new GAL from out of county were appointed on October 16, 2017.
Eventually, Quintero filed a six-month review report recommending termination of reunification services for both parents. Mother continued to characterize the court proceedings as "fake" and declined to participate in any services. Both parents had threatened Quintero. On November 21, 2017, mother told Quintero that two private attorneys had advised her that the minor's child welfare matter was invalid. She demanded that the social worker return the child, stating: " 'this is serious stuff here, we're done playing games.' "
Neither parent was present at the contested six-month review hearing on January 9, 2018. At that hearing, Quintero testified that he had informed the parents that they could contact him at his desk number, regardless of the restraining order; that they had done so regularly, without issues; and that he had spoken to them approximately 30 times since being assigned to the case, largely by making himself available when the parents called him.
At the conclusion of the contested hearing, the court stated: "I do think the [A]gency has made reasonable efforts in all areas. [¶] And while Mr. Quintero may not have specifically done this or that, overall the problem is that the family—the parents do not want to engage in any contact with the [A]gency unless it's completely on their terms. And their terms are return my child, and that's what I want." On this basis, the court terminated reunification services and set the matter for a permanency planning hearing. In addition, it declined a request from mother's counsel to resume visitation between mother and A.Z., noting that there was "enough in the record" to support the position "that there is definitely risk here for visitation. And that was the reason why those more—why restrictions were placed on the visits."
Mother subsequently filed a timely notice of her intent to file a writ petition, and the petition itself was filed on February 26, 2018. (Rules 8.450(e), 8.452.)
II. DISCUSSION
At a six-month review hearing for a child who was under the age of three at the time of initial removal, such as A.Z., the juvenile court has discretion to terminate reunification services and set the matter for a permanency planning hearing if it "finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subds. (e)(3), (7) & (8).) If, in contrast, the court finds that reasonable services have not been provided, the court must continue the matter and order additional services. (Ibid.) As stated above, mother's sole claim in this petition is that reasonable reunification services were not provided to her. Specifically, she argues that her services were unreasonable because: she was not afforded any visitation with the minor during the reunification period; she was not referred for a medication evaluation by the Agency; she was not referred to Russian service providers until late in the reunification period; and contact with the Agency and, in particular, her case-carrying social worker was improperly restricted due to the existence of the restraining order. We are not persuaded.
Mother also challenges via this writ petition the sufficiency of the Agency's family finding efforts pursuant to section 309, subdivision (e). However, as mother's attorney did not argue this issue before the juvenile court, we deem the matter forfeited. (See In re T.G. (2015) 242 Cal.App.4th 976, 984 [collecting cases].)
The adequacy of a reunification plan and the reasonableness of the reunification efforts made by a child welfare agency must be judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) In particular, to support a finding that reasonable services were offered or provided, "the 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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed)." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) We review a reasonable services finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
Here, as early as the initial detention hearing, the Agency appropriately identified mother's mental health issues and possible substance abuse as the underlying problems precipitating the removal of A.Z. and properly crafted a reunification plan designed to ameliorate those concerns. Mother faults the Agency for failing to make a referral for a medication evaluation, but the case plan required medication compliance, not evaluation. Indeed, as stated above, mother was hospitalized twice pursuant to section 5150 while disposition was pending in this matter, and each time she was discharged with prescribed psychotropic medication which she refused to take. Under such circumstances, Quintero's plan to defer any further medication evaluation until after mother engaged in therapy and/or completed her psychological evaluation was reasonable.
As for mother's argument that the suspension of all visitation between her and A.Z. during the reunification period was unreasonable, "a juvenile court may suspend or deny visitation pursuant to section 362.1, subdivision (a), if such visitation would be inconsistent with the physical or emotional well-being of the child." (In re Matthew C. (2017) 9 Cal.App.5th 1090, 1102.) Moreover, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) Given mother's inability to comply with court orders, her significant and untreated mental health issues, her stalking and threatening behaviors, and her apparent focus on achieving return of the minor through extra-legal means, substantial evidence supports the juvenile court's decision in this case that even supervised visitation would have been detrimental to the minor and/or could very well have jeopardized his safety. (Cf. In re Matthew C., supra, 9 Cal.App.5th at p. 1101, fn. 7 [discussing appropriate standard of review in this context].) Further, the juvenile court's visitation order allowed for the resumption of supervised visitation between mother and son as soon as mother showed at least some willingness to engage in treatment by attending an initial therapy session. While this was a reasonable restriction on visitation under difficult circumstances, mother declined to take even this small step in order to see her son. (Cf. In re T.M. (2016) 4 Cal.App.5th 1214, 1218-1221 [affirming juvenile court order finding parent-child visitation detrimental until progress made in individual counseling and the child's safety can be assured during therapeutic visitation].)
Fundamentally, while it is undeniably true that the Agency had a duty to attempt to provide the identified case plan services to mother, in the end "[r]eunification services are voluntary . . . and an unwilling or indifferent parent cannot be forced to comply with them." (In re Mario C. (1990) 226 Cal.App.3d 599, 604; In re Nolan W. (2009) 45 Cal.4th 1217, 1233-1236 [same; juvenile courts may not force compliance with reunification orders as "the dependency statutes repeatedly make clear that the consequence of failure to participate in court-ordered reunification services is the loss of parental rights"].) On this record, it is apparent that mother simply refused to acknowledge the legitimacy of the Agency's actions in removing her son and the attendant court process. Nevertheless, and despite an extremely difficult situation, the social workers in this case repeatedly tried to engage mother in services and, in fact, managed to maintain reasonable contact with mother despite the roadblocks she erected. (See In re T.G. (2010) 188 Cal.App.4th 687, 698 ["While it is true the social worker is charged with maintaining reasonable contact with the parents during the course of the reunification plan, he or she cannot do so without some degree of cooperation from the parent"].) The juvenile court judge similarly bent over backwards attempting to find a way to engage mother, repeatedly imploring mother by telephone to come to court to discuss the case; asking the Agency to attempt to find a Russian therapist, despite the fact that it was apparent to all parties that mother was fluent in English; and setting more hearings than usual in order to monitor the case more closely. Although mother was referred to two clinicians with experience serving Russian and Eastern European communities by October 2017, it did nothing to alter her intransigence.
In short, we see nothing unreasonable in the Agency's attempts to facilitate services for this indisputably resistant and troubled mother, and thus conclude that the juvenile court's reasonable services finding was amply supported by the record in this case. This is, obviously, not the resolution mother desired. However, we certainly hope that at some point she is able to recognize that everyone can benefit from a little help on occasion and that she should use her apparent intellect to voluntarily access and participate in the services that she so clearly needs.
III. DISPOSITION
The petition is denied on the merits. (See § 366.26, subds. (l)(1)(C), (4)(B).) Because the permanency planning hearing in this matters is set for April 24, 2018, this opinion is final as to this court immediately. (Rules 8.452(i), 8.490(b)(2)(A).) Mother's request for a stay is denied as moot.
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
STREETER, J. /s/_________
SCHULMAN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.