M.M.v.Superior Court of Santa Clara Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTApr 26, 2017
H044386 (Cal. Ct. App. Apr. 26, 2017)

H044386

04-26-2017

M.M., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-15-JD-023220)

Petitioner M.M., mother of the dependent minor A.M., seeks extraordinary writ relief from a juvenile court's order setting a permanency planning hearing under Welfare and Institutions Code section 366.26 (Cal. Rules of Court, rule 8.452). Mother contends that the court abused its discretion in failing to offer her additional reunification services at the 18-month review hearing, because it had found that the services mother had received were not reasonable. Mother also requests that, "if this matter cannot be decided before [the June 12, 2017 hearing,] this Court stay the commencement of the Section 366.26 hearing until this proceeding is concluded." We find no abuse of discretion and therefore must deny the petition and stay request.

All further statutory references are to the Welfare and Institutions Code. All references to rules are to the California Rules of Court.

Background

On April 27, 2015, at the age of 2, A.M. was taken into protective custody by the San Francisco police, after he and mother were found on the streets in San Francisco. Mother was placed on a psychiatric hold under section 5150, as she was exhibiting disorganized thinking, with digressions into "bizarre and nonsensical tangents." At San Francisco General Hospital the examining physician confirmed a previous diagnosis of schizophrenia, noting "multiple delusions" and "no insight into her illness." A.M. was transferred to Santa Clara County, and a petition was filed on April 29, 2015. As later amended, the petition alleged failure to protect the child (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g). The father's whereabouts were then unknown. A.M. was placed in foster care.

The section 300 petition more specifically alleged that mother's parents had reported her as missing for two weeks. According to the social worker, mother told police "that she wanted to 'live outside' with 'my people' because her ex partner is a 'ninja' and disrepects her Mexican culture through 'tracks.' She said that she communicates with 'spirits' and her conversations were 'very elusive.' Further, the weather was cold, windy, and drizzly, and the child was not dressed appropriately for the weather." Consequently, the Department of Family and Children's Services (DFCS or Department) alleged that mother had "mental illnesses which negatively impact her ability to safely care for the child." Despite five prior psychiatric hospitalizations, mother "does not believe that she has mental health problems," which contributed to her inability to recognize and meet her child's basic needs.

After multiple continuances, the juvenile court finally held a jurisdictional and dispositional hearing on July 29, 2015. By this time, the alleged father had been identified and located, but he had told mother that he wanted nothing to do with the child. Mother's brother told the social worker that his sister was mentally ill; she had previously been hospitalized and treated for bipolar disorder, and there were times she would unexpectedly become extremely angry and "explosive," or forgetful. A social worker who had seen mother at the hospital in San Francisco told DFCS that mother "is extremely delusion[al] and has severe mental health problems." However, mother did not regularly take her medications because she did not believe she had a "mental health problem."

In preparation for the hearing, DFCS again amended its petition to allege section 300, subdivisions (b)(1)-(b)(3). Both mother and the now presumed father (paternity having been established) submitted the matter, and the juvenile court found the allegations of the amended petition to be true. A.M. was continued in his foster placement, and reunification services were offered only to mother. However, supervised visitation was offered to the father as well as to mother, supervised by her family. A.M. was placed in the home of his maternal uncle and the uncle's wife. By September 2015 he was doing well, but he appeared to be overstimulated and displayed "inappropriate and sexualized behaviors."

The father did not follow through by visiting or even inquiring about A.M.

Mother's case plan included a parent orientation class, but she was mentally too unstable to participate. She was receiving medication by monthly injection for her "mental health issues." She was not, however, receiving therapy on a consistent basis. The social worker reported that she had "not been able to" contact the therapist to find out what services were being provided to mother.

At the six-month review in January 2016, the social worker recommended another six months of reunification for mother. She had been taking her medication orally now and had stayed in contact with the social worker. The social worker had referred mother to a parent orientation class and a court-ordered psychological evaluation, but she had not yet "been able to connect with" mother's therapist.

The 12-month review hearing took place in July 2016. The social worker recommended another six months of services. Mother lived out of the county with her parents, but she visited when transportation could be arranged. The visits between mother and A.M. were "appropriate" as long as they were supervised, and they enjoyed seeing each other, but it was not safe for him to return to her care. The social worker had noticed in April 2016 that mother's mental condition had "deteriorated drastically," and she presently appeared to be mentally unstable, "possibly because she was not taking her psychotropic medication on a consistent basis. Her communication was disorganized. [Mother] stated during a conversation that she believed people from China were calling and wanted to harm her." Mother was seeing a new psychiatrist, who was bilingual. And she currently appeared to be mentally stable. But mother continued to believe she was wrongly diagnosed and did not have a mental illness.

The social worker believed that mother needed additional time to demonstrate to the court that she was "keeping her mental illness under control, is emotionally stable on a consistent basis, and can safely provide for her child." Although she could function highly if she regularly took her psychotropic medication, she did not appear to be doing so. Mother wanted to return with A.M. to Mexico, where she felt she could discipline him with spanking and sleep in the same bed with him. A.M. was "very much attached and bonded" with his maternal uncle and his wife. The court allowed six more months of services.

In April 2016 a referral to Child Protective Services in the county where mother lived reported that mother wanted to move to Mexico with A.M. so that she could raise her child outside the norms of American society. Mother also allegedly disclosed that she wanted to be "the woman her son has his first sexual experience with, so that when he looks back on his life he will remember her teaching him how to please a woman and how a woman should please a man." Mother denied any intention to have sex with A.M. but she did believe he should sleep with her; having "physical contact with her son was important so they could strengthen their bond as mother and son."

The 18-month hearing began on October 24, 2016. A.M. by then was four years old. Mother's psychiatrist had changed again. She had told the social worker that she was taking her medication, but she still did not believe she needed it. Her therapist had also changed, but she told the social worker that she was seeing the current therapist about once every other week. The social worker had left voice mail requesting an update from the therapist.

The social worker stated that there were "no doubts" that mother was participating in therapy and seeing a psychiatrist regularly. But she was "still in denial about her mental illness and does not accept it." Consequently, the social worker remained concerned that A.M. would not be safe if returned to mother's care, and she recommended terminating reunification services and setting the matter for a selection and implementation hearing to select a permanent plan for A.M. under section 366.26. At mother's request, the matter was continued for a contested hearing on January 6, 2017.

At the January 6 hearing the social worker testified that she had not required mother to attend the parent orientation classes offered by DFCS, because mother lived out of Santa Clara County. Instead, she sent written materials to mother in October 2016. When mother said that she had not received them, the social worker sent them again on December 28, 2016. The social worker learned from mother's therapist on January 5, 2017, that mother had been consistent with her psychiatrist appointments, but the social worker had not confirmed this with the psychiatrist himself, Dr. Cerna. Mother had told the social worker that she was taking her prescribed medication, Abilify, but the social worker did not know whether Dr. Cerna regularly tested mother to make sure that she was taking it regularly.

According to both the therapist and the social worker, mother still did not accept the fact that she had a mental illness, notwithstanding the repeated diagnoses of schizophrenia. The social worker believed that mother was taking the medication and seeing the psychiatrist only to accomplish reunification; she was concerned that mother would discontinue her treatment, thus putting A.M. at risk of abuse and neglect. She would not, for example, be able to recognize that the symptoms of delusions and paranoia were returning.

The diagnosis reached by the psychiatric emergency physician at the San Francisco hospital in April 2015 was "Unspecified schizophrenia spectrum and other psychotic disorder." We grant DFCS's request for judicial notice of the report of the September 29, 2015 court-ordered evaluation by William F. Alvarez, Ph.D., who also reached a diagnosis of schizophrenia. Mother's lack of insight into or understanding of her mental illness was itself "a typical symptom of schizophrenia." Other symptoms presented by mother were disorganized thoughts, mood instability, delusions, paranoia, and cognitive deficits. Dr. Alvarez explained that in an active phase of schizophrenia, paranoia and delusions would "negatively impact [mother's] ability to provide a stable, consistent, and nurturing environment for the minor. She will operate under false beliefs [and not] accurately pick up and interpret cues of the minor, and her thought disorganization and breaks with reality lead to unpredictable behavior . . . [¶] . . . [¶] [and] place the child at risk." --------

The court's questioning of the social worker elicited the information that mother had been seeing her therapist regularly since June of 2016. But whether mother had been compliant with her medication was a question answered by the therapist, not the psychiatrist, and both of those providers had simply relied on what mother had told them. The social worker admitted that she had not requested a written update from the psychiatrist due to "an oversight." She also admitted that she had not requested a written update from the therapist but had only called her, and she made that telephone call only after she had written her October 17, 2016 report. The last time she observed a visit between mother and A.M. was in September 2016; the interaction was "fine" on that occasion, though mother was still "working on" her ability to set limits with the child. The social worker believed, however, that daily supervision would be necessary if A.M. were returned to mother, because if she did not take her medication, she might become delusional and A.M. would not be safe.

Mother's counsel argued that mother had not been provided reasonable services, based on the social worker's failure to timely provide parent orientation materials, to obtain written updates from the treating therapist and the psychiatrist, and to observe mother in the home of her parents, where she was living. Mother's attorney therefore requested return of A.M. with family maintenance services or, alternatively, six more months of reunification services. The attorney for A.M., however, maintained that returning A.M. to his mother would be detrimental to him in light of his mother's inability to understand or accept that she was mentally ill. A.M.'s attorney believed that reasonable services had been provided, but she acknowledged that whether there was "adequate contact with service providers" was the "big question," and she submitted the issue to the court.

After hearing extensive testimony and argument, the juvenile court concluded that there was a preponderance of the evidence that returning A.M. to his mother "would create a substantial risk of detriment to his safety, protection, or physical or emotional wellbeing [sic]." The court recognized that "on the one hand mother has been outwardly compliant with her case plan. On the other hand, despite 18 months of services, mother continu[es] to deny that she suffers from schizophrenia and demonstrates almost no insight into her illness." The diagnosis itself was indisputable, the court believed, as it was provided in the court-ordered evaluation and confirmed by mother's treating psychiatrist. In addition, during the 18-month reunification period, mother's schizophrenia had at times "moved from a passive phase to a more aggressive phase." In the court's view, the risk of harm to A.M. was especially significant because the child was only four years old.

Nevertheless, the court was "unable to find by a preponderance of the evidence that reasonable services [had been] provided to the mother," because the Department had not maintained regular contact with service providers or provide parent orientation materials to mother until 18 months into the case. Furthermore, while the Department had maintained regular contact with mother, it apparently had not attempted to assist her in understanding her illness—that is, through "documented discussions or other interventions . . . to help break through mother's denial as to the nature of her illness." Consequently, the court directed the parties to brief the issue of the legal options when a child cannot be returned to the parent after 18 months yet without reasonable services having been provided.

At the continued hearing on February 10, 2017, counsel for mother argued that because the services she did receive were inadequate, "her mental health is probably the same as it was six months ago." The only "real remedy" was to offer mother additional services; not to do so would deny her "fundamental fairness." County counsel and the child's attorney, however, argued that there was no evidence that extending the time for reunification would lead to any different result.

After considering written and oral argument on the issue it had raised, the court concluded that there were no exceptional circumstances that would warrant extending reunification services despite its prior finding that reasonable services had not been provided. The deficiency was not in the receipt of services but in the failure of the social worker to maintain contact with the therapist and psychiatrist, and the delay in providing access to the parent orientation education. Whether additional services lasted "one month, or three months, or six months," there was "little likelihood of success." That finding was based on "the fact that mother continu[es] to adamantly deny that [she] suffers from any mental health challenges. She denies that she suffers from any mental health challenges. She denies that she suffers from schizophrenia despite the fact that we have multiple diagnoses in the record. And based on her testimony here at trial, the Court believes that we are basically at the same place as when we started in terms of mother having any insight as to the nature of her mental illness or the extent to which her mental illness poses [a] serious risk of physical and emotional harm to [A.M.]" Consequently, the court found that at A.M.'s young age, "his need for permanency and stability outweighs his mother's need for an indefinite period of time in which to come to grips with her mental health challenges." Accordingly, the court granted the Department's request to terminate reunification services and ordered a selection and implementation hearing to be held within 120 days, pursuant to section 366.26.

Discussion

"California has a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. (§ 300 et seq.; [citation].) 'The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.' [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family." (In re Celine R. (2003) 31 Cal.4th 45, 52.) "If, after the specified time period has expired, the efforts to reunify the family have failed, ' "the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. (§ 366.21, subd. (g).)" ' " (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008-1009.)

Upon A.M.'s removal from mother's custody, the juvenile court properly ordered the provision of family reunification services to mother, consistently with section 361.5, subdivision (a). "Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody. (§§ 366.21, 366.22; [citation].)" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423.) However, reunification services "are a 'benefit.' There is no constitutional 'entitlement' to these services." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475.) And "[f]amily reunification services, when provided, are subject to time limitations . . . For a child who was under three years of age on the date of the initial removal from the parent's custody . . . 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, unless the child is returned home. (§ 361.5, subd. (a)(1)(B), (C).) . . . [¶] At each review hearing, if the child is not returned to the custody of his or her parent, the juvenile court is required to determine whether reasonable services that were designed to aid the parent in overcoming the problems that led to the initial removal and the continued custody of the child have been offered or provided to the parent (reasonable services finding). (§ 366.21, subds. (e), (f).) Generally, the remedy for not offering or providing reasonable reunification services to a parent is an extension of reunification services to the next review hearing." (In re J.P. (2014) 229 Cal.App.4th 108, 121-122, fn. omitted.) But if the court finds that the parent would not benefit from additional services, it may properly deny the extension. (Cf. Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1505 [where parent has made minimal efforts to participate in reunification programs, it "defies common sense to continue reunification"].)

In this case the proceedings extended to 18 months. At this "critical juncture" (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015) (Mark N.), section 366.22 required the juvenile court to return the dependent child to the physical custody of mother unless DFCS convinced the court, by a preponderance of the evidence, that the return of A.M. to mother "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a).)

Also applicable here is section 352, which authorizes a continuance of even an 18-month permanency review hearing "when, as here, no reasonable reunification services have ever been offered or provided to a parent." (Mark N. supra, 60 Cal.App.4th at p. 1016-1017.) This provision emphasizes, however, "that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (§ 352, subd. (a).) "In exercising its discretion under section 352, 'the juvenile court should consider: the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [the minor's] need for a prompt resolution of [his] dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court's attention.' " (In re J.E. (2016) 3 Cal.App.5th 557, 564 (J.E.).)

At the February 2017 hearing and in their supplemental briefs, counsel for DFCS and for A.M. both emphasized the second element, whether six more months of services would make a difference to the outcome of the parties' reunification efforts. Counsel argued that additional services were not warranted because reunification was unlikely, given mother's denial of and lack of insight into her illness. In the Department's view, "[t]his is a classic example of a parent simply 'going through the motions' in order to reunify," with no countervailing circumstances that would justify further services. At this "critical juncture," counsel argued, A.M. needed prompt resolution of his dependency and a plan for a permanent, stable home, needs that outweighed any conceivable benefit from further services to his mother.

In her petition mother points out that the court could not know "how mother's progress might have looked" had the social worker maintained consistent contact with mother's mental health providers and made an effort to help mother "overcome areas that mother found difficult e.g. admitting a mental health problem." She suggests that when "services are not reasonable, if the social worker does not do her job, the parent is likely to be permanently foreclosed from a relationship with her child." She therefore "asks this court to find that reasonable services were not offered and that the trial court's rulings were not based on substantial evidence. Further, [mother] asks this court to remand the case with direction that further reunification services be provided."

Mother misperceives this court's role on review. It is not for us to "find that reasonable services were not offered"; the lower court has already made that finding, and no party questions it. Mother does not specify which factual finding was not supported by substantial evidence. We assume she is merely rewording her argument that the court abused its discretion in denying her an additional six months of services. Indeed, abuse of discretion is the standard by which we measure the ruling at issue here. The juvenile court was well aware at the 18-month hearing that it was required to return the minor to mother or terminate reunification services and set a selection and implementation hearing. (Mark N., supra, 60 Cal.App.4th at p. 1015.) As noted, however, it was within the court's discretion under section 352 to continue the 18-month review hearing and extend reunification services up to 24 months upon a showing of good cause. (J.E., supra, 3 Cal.App.5th at pp. 563-564.)

We cannot find an abuse of discretion in this case. While the court was authorized to extend services up to 24 months, it was not compelled to do so. On the contrary, such an extension would have been improper absent a finding of good cause. Here the court expressly stated that it had "balanced the equities of this case" and found that the child's needs outweighed his mother's needs and rights. It stated that it had "considered the efforts and progress of the parents and the extent to which they have availed themselves of the services provided," taking into account any applicable barriers to access to services. It nonetheless found that "returning [A.M.] to his parents would create a substantial risk of detriment to his safety, protection, or physical wellbeing [sic]." No aspect of the court's analysis was arbitrary, irrational, or improperly reasoned.

Mother does not dispute the Department's assertion that she refused to admit that she had a mental illness that made medication necessary to control the symptoms of schizophrenia. Instead, she blames the social worker for not helping her "overcome" her resistance to psychiatric and psychotherapeutic help. We reject the charge; it was for the juvenile court to draw inferences from the evidence. Instead, it was mother's inability to acquire insight into her mental condition—indeed, her persistent and adamant resistance to acknowledging her illness—that, in the court's view, created the risk of detriment to her child should he be returned to mother's custody. That determination is supported by the record and did not constitute an abuse of discretion.

Mother acknowledges that among the factors the court must consider in deciding whether to extend the reunification period include not only the reasonableness of services that were provided, but also the likelihood that further services would lead to return of the child to parental custody. The court made it clear that notwithstanding the carelessness of the social worker with respect to contact with mother's mental health providers, additional services were not likely to result in return of A.M. to mother's custody at this point, nearly two years after he was removed by the San Francisco police. It was not unreasonable for the juvenile court to determine that further efforts to facilitate reunification were unlikely to succeed and that any benefit from further services to mother was outweighed by this four-year-old child's need for resolution of his dependency status without further delay.

Disposition

The petition is denied. The accompanying request for a temporary stay is denied as moot. This decision is immediately final as to this court. (Rules 8.452(i), 8.490(b)(2)(A).)

/s/_________

ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.