Opinion
A150947
08-09-2017
C.W., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES BUREAU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ1602640701)
Petitioner C.W., mother of J.W., challenges the Alameda County Juvenile Court's order terminating her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. For the reasons explained below, we deny her petition.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When J.W. was born in February 2016, both she and her mother tested positive for opiates and marijuana. J.W. experienced severe withdrawal symptoms, and her discharge from the hospital was delayed for two weeks due to the severity of her symptoms. Mother had a significant mental health history, including prior involuntary psychiatric commitments, most recently in November 2015. Prior to her pregnancy she was taking more than 23 medications for mental problems and pain management.
Among her medications were Haldol and Seroquel. Haldol, the brand name for haloperidol, is an antipsychotic medication used to treat a variety of disorders including schizophrenia, mania in bipolar disease, delirium, agitation, acute psychosis, and alcoholic hallucinations. (<https://en.wikipedia.org/wiki/Haloperidol> [as of Aug. 9, 2017]); Seroquel, the brand name for Quetiapine, is also an antipsychotic medication, typically used to treat schizophrenia, bipolar disorder, and major depressive disorder (<https://en.wikipedia.org/wiki/Quetiapine> [as of Aug. 9, 2017]).
J.W. was discharged to the care of her parents, with family and support services in place. These services included 24-hour emergency hotline numbers for medical care, in-home case management twice per week, and a referral to a public health nurse. However, within the first week of her discharge, mother dropped J.W. onto the floor when she fell asleep while holding the child. J.W. sustained a hairline skull fracture. The parents neither reported the injury initially nor utilized the available hotline services. As a result of this incident J.W. was taken into protective custody and ultimately placed in the home of her paternal aunt and uncle. On March 21, 2016, the juvenile court detained the child, ordered bi-weekly visitation, and scheduled an uncontested hearing for April 14, 2016.
Father, J.M., is a party in the juvenile court proceedings; when the court terminated services to mother on March 27, 2017, it also terminated services to father. Because only mother filed a petition challenging the juvenile court's order, we focus on the facts relevant to her challenge.
At the April 14 hearing, the Alameda County Social Services Agency (agency) recommended the court assert jurisdiction over J.W., remove her from the parents' custody, and order family reunification services. Mother told the social worker that J.W. had fallen because the infant was "wiggly." Mother denied that her medication caused her to nod off while feeding the child. She also denied falling asleep when speaking with the hospital staff. The agency recommended that mother undergo a medical evaluation by her primary care provider, a psychotropic medication evaluation, and a psychiatric/psychological evaluation, and that she submit to substance abuse testing and participate in parenting education and an outpatient substance abuse program. Because neither parent accepted the agency recommendations, the matter was set for a contested hearing. In advance of the contested hearing, the agency submitted an addendum reporting that mother had had a psychiatric hospitalization from May 20 through May 31, 2016. During the supplemental reporting period she had visited J.W. only twice and left each visit early. The juvenile court found that mother's progress in addressing the issues that led to J.W.'s placement had been minimal and ordered the agency to provide family reunification services.
Prior to the six-month review the agency recommended that reunification services be terminated and that the court set a hearing to terminate parental rights. During the reporting period the social worker had spoken to mother about her prescribed medication and her use of medical marijuana. Mother became upset, insisting that all of her medication was prescribed. She stated she was unwilling to go to substance abuse classes more frequently than once per week due to her busy schedule.
Mother told the social worker that she no longer had the information concerning her case plan and requested new referrals. She cursed at her, said she did not understand why she had a case plan, that she had no time to work on her case plan, and that she has too many medical appointments. She slurred her words and the social worker believed she was intoxicated during their meeting.
With mother's consent, the social worker contacted mother's new psychiatrist, Dr. Jurkowski. He confirmed that mother had been prescribed 14 different medications, six on an "as needed" basis. Dr. Jurowski reported that in addition to these medications, mother sought a prescription for benzodiazepines. When he refused to prescribe them, mother yelled at him and called him names; she left the office very upset. He expressed the hope to the social worker that mother would return for psychiatric treatment, but reiterated his unwillingness to prescribe benzodiazepines for her.
These included duloxetine—used primarily to treat major depression and generalized anxiety disorders (<https://en.wikipedia.org/wiki/Duloxetine> [as of Aug. 9, 2017]), quetiapine—an anti-psychotic medication, Ambien—a sedative commonly used as a sleeping pill (<https://en.wikipedia.org/wiki/Zolpidem> [as of Aug. 9, 2017]), hydromorphone—an opioid pain medication (<https://enwikipedia.org/wiki/Hydromorphone> [as of Aug. 9, 2017), cyclobenzaprine—a muscle relaxant used to relieve skeletal muscle spasms (<https://enwikipedia.org/wiki/Cyclobenzprine> [as of Aug. 9, 2017]), clonazepam—used primarily to treat seizures and panic disorder (<https://enwikipedia.org/wiki/Clonazepam> [as of Aug. 9, 2017]), and ondansetron—an antiemetic (<https://enwikipedia.org/wiki/Ondansetron> [as of Aug. 9, 2017]).
Mother's recent hospital records also reveal significant drug-seeking behavior. Her attending physician, Dr. Chang, reported mother was anxious, agitated, and withdrawn and expressed both suicidal and homicidal thoughts. Mother requested opiates, Ambien, and a muscle relaxant, Flexeril. Ultimately, she was given the medication she requested plus a minor tranquilizer and an antipsychotic medication, Thorazine.
On March 27, 2016, mother went to the hospital for nausea, pain, and constipation. When Dr. Beylin told mother that her chronic narcotics usage likely exacerbated her nausea and constipation, she became upset, asserting that she could not go on without narcotics. Mother insisted on receiving a barbiturate, which Dr. Beylin did not want to prescribe.
On June 16, 2016, Dr. Chang saw mother again when mother asked to have her opioid pain medication refilled. At that visit she tested positive for methamphetamine and was counseled about the danger of an overdose. Despite the test result, mother denied having any substance abuse issues with methamphetamine, claiming that the bag in which marijuana she had purchased on the street must have been contaminated with methamphetamine.
Mother submitted to a psychological evaluation on August 10, 2016. The evaluation revealed that she was functioning in the extremely low intellectual range, with significant weakness in the ability to retain information, attention, and concentration. She was irritable and angry during the testing, used multiple obscenities, and was unable to complete the testing. The evaluator's diagnostic impressions were that mother suffers from posttraumatic stress disorder, bipolar disorder, a specific learning disorder, somatic symptom disorder and stimulant use disorder (amphetamine-type substance, in full remission).
On August 18, 2016 the agency referred mother for various services, including outpatient substance abuse services at Terra Firma. Mother's intake appointment, however, "did not go very well." She was irritable and argumentative with the staff, resulting in her being asked to leave and staff being unwilling to work with her. Her drug test that day was positive for opiates, benzodiazepines, and marijuana. At mother's request, the agency referred her to Options Recovery for outpatient substance abuse services and drug testing. Options Recovery stated that mother would not be permitted to participate in their substance abuse program unless she agreed to take different medications, which she was unwilling to do. Mother tested positive either for marijuana alone or opiates and marijuana on October 21, and November 3, 4, and 10, 2016.
When the agency recommended terminating services, it stated that mother requires inpatient or outpatient substance abuse treatment to address her use of prescription pain medication and medical marijuana. Her moods were very variable and she was sometimes extremely agitated, irritable and argumentative around both the social worker and J.W. Due to mother's frequent physical and mental problems (and the doctor's schedules), mother felt that she was often unable to engage in case planning activities. Mother did not believe that her lifestyle, drug use, unstable mental health, of her frequent illnesses presented problems in meeting J.W.'s needs. The juvenile court set a contested six-month hearing for February 6, 2017.
The agency's addendum report submitted for the contested hearing again recommended that reunification services be terminated and that a section 366.26 hearing be set. Mother had not addressed the issues that brought J.W. to the court's attention. Mother continued to use opiates and medical marijuana, despite the excessive drowsiness they caused. Although both parents suffered from significant and sometimes incapacitating problems, they were unable to conceive of the possibility that they might both be stricken with those problems at the same time. Other than substance abuse testing, mother was not engaged in any substance abuse programming. Until she stopped using opiates and medical marijuana she was ineligible to participate in outpatient substance abuse services; furthermore, because she was not participating in a recovery program, she was not addressing her substance abuse issues. The social worker determined that J.W. was at risk due to mothers' continued abuse of prescription drugs and the effect they have on essential parenting skills. Mother had been visiting J.W. twice per week for more than nine months at The Gathering Place; nonetheless, The Gathering Place's recommendation was for continued therapeutic and supervised visits, rather than observed visits.
At the contested hearing mother testified that she was taking "quite a few" medications. Mother asserted that she had gone to every appointment the agency required. She could not say, however, for how long she had been attending individual or couples counseling. She insisted that she could not stop taking her medications, including narcotics, due to her severe problems. She also stated that she had never attended a parenting class, although she wanted to do so but had not received a referral to a parenting class.
These included Dilaudid for pain, Zofran for nausea, Klonopin for PTSD, Thorazine, Lithium, stomach pills, and medical marijuana.
The social worker testified that mother had not mitigated the safety issues that originally necessitated the agency's intervention. J.W. had suffered a skull fracture due to the sedating effects mother's medication, yet mother was still not taking responsibility for the accident. Although she had been referred to three separate substance abuse programs, she had not enrolled in any treatment program. Medical records and mothers' own statements to the social worker confirm that she is and has been unwilling to take alternative medications.
She was not eligible to participate in one of the programs, Highland Hospital, due to insurance issues. She had been referred to another program, Terra Firma, three separate times. When referred to Terra Firma she either did not comply with the referral, did not go to the appointment, or yelled and screamed during the assessment so that the assessment was terminated prematurely. She was also referred to Options Recovery, which, as indicated above, did not allow her to participate in their program because of medications mother insisted on taking.
On March 27, 2017, the juvenile court terminated reunification services and set a section 366.26 hearing. The court found that over the course of the proceedings nothing concerning mother's ability to safely care for J.W. had changed. When prior to the jurisdictional hearing mother dropped J.W. causing a skull fracture, she was taking prescribed opiate medications and marijuana—which were the likely cause of dropping the child. Furthermore, the court observed, mother took those substances while she was pregnant, causing J.W. to suffer withdrawal symptoms and have a protracted hospital stay. The court recognized that the opiates had been prescribed by mother's doctor to treat chronic pain; nonetheless, he considered mother's use of these substances to be a risk to J.W.'s safety. The court emphasized mother's intent to continue taking the opiates and the marijuana so that J.W. might well be dropped again while mother was caring for her. In addition, the court was concerned that despite the psychiatric treatment mother had received, she still was not mentally stable. The court cited witness concerns about mother's behavior, the incident at the Terra Firma intake interview, and the court's own observations of mother in the courtroom.
The juvenile court also found that the agency provided reasonable services, but that mother "cannot and will not comply with the case plan." It determined that despite a recent improvement, mother had not consistently and regularly contacted or visited J.W. Because the evidence did not support the conclusion that mother had made significant progress in resolving the issues that led to J.W.'s removal or that she had demonstrated the capacity to complete the objectives of her treatment plan and provide for J.W.'s safety, there was not a substantial probability that J.W. could safely be returned to mother's care after an additional six months of services.
The agency requested that the frequency of mother's visits be reduced from twice per week to once per week, with the proviso that it be given discretion to modify the frequency based on J.W.'s well-being. The agency and minor's counsel—who joined in the request—based the request on mother's failure to progress from therapeutic or supervised visitation, the fact that The Gathering Place did not provide visitation services beyond the expiration of reunification services, and upon J.W.'s age and the fact that the visits were not meaningful to the child. The juvenile court sought specific information about the options available for supervised visits and briefly continued the matter. After receiving more information about the available options, the court reduced visitation to one time per week, to be supervised at the agency.
On March 30, 2017, mother timely filed a notice of intent to file writ petition. Following augmentation of the record, mother's petition was filed on June 9, 2017; we then issued an order to show cause and stayed the section 366.26 hearing below. The agency timely filed its opposition to the petition.
DISCUSSION
For a child younger than three years when removed from its parents, reunification services are to be provided for six months from the dispositional hearing, but not longer than 12 months from when the child first enters foster care. (§ 361.5, subd. (a)(1)(B).) At the six-month review hearing, the juvenile court is to return the minor to the parents' physical custody unless doing so would create a substantial risk of detriment to the child. (§ 366.21, subd. (e).) The agency bears the burden of establishing that detriment. (Ibid.) In order for the court to detain the child, there must be substantial danger to the child's wellbeing; a parent need not be an ideal parent to be entitled to the return of the child. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) If a child is not returned to the parent, the court may terminate services and set a section 366.26 hearing unless it finds that reasonable services were not provided to the parent or that there is a substantial probability the child may be returned within the following six months. (§ 366.21, subd. (e).)
Our review is generally subject to the substantial evidence standard. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.) The juvenile court weighs the evidence, makes credibility determinations, and resolves conflicts in the evidence; this court, on the other hand, must accept the evidence most favorable to the juvenile court's order as true, without reweighing any conflicting evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
I. The juvenile court's decision to terminate services was proper.
Mother contends the juvenile court erred in refusing to return J.W. to her at the six-month hearing and in failing to extend reunification services for an additional six months. She contends the court applied the incorrect legal standard when it declined to extend reunification services. Citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343 and In re Paul E. (1995) 39 Cal.App.4th 996, 1003-1004, mother contends that "perfect compliance" with her case plan is not required to entitle her to return of her minor child. We agree. "The test is whether there is clear and convincing evidence the child is in physical danger if left in the home . . . not whether parents are obeying a service plan." (In re Paul E., at p. 1004.) Mother identifies significant requirements of her case plan that she fulfilled. Without regard to those aspects of the case plan she did not fulfill, compliance with case plan requirements does not necessarily eliminate the risk to the child. As mother acknowledges, "The ultimate question is whether the parent in question has a grasp of the important and basic parenting concepts." In this case, the fundamental parenting concern that mother has failed to address is that her continued use of prescribed medications, including opiates and medical marijuana, seriously compromises her ability to safely care for her child. Throughout the reunification period, mother consistently insisted that she needs her various prescriptions and would not consider alternatives.
Although compliance with a case plan is an indication of progress towards family preservation, it is not the sole criterion. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1140.) Thus, for example, in Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, despite the fact that the parent had substantially complied with his case plan, the juvenile court did not abuse its discretion when it terminated reunification services where the case plan was reasonable and there was no substantial probability that the child would be returned to the parent.
Here despite mother's participation in much of her case plan, she made absolutely no progress in recognizing that her iatrogenic drowsiness resulted in J.W.'s skull fracture and poses a risk to the child in the future. She insists on maintaining the medical regime that caused the problem and is resistant to considering alternatives that might address her medical issues without causing excessive somnolence. In a series of consultations with various medical providers—Drs. Jurkowski, Chang, and Beylin—mother became upset, emotional, or suicidal/homicidal, when advised to modify her medication regime. Her intake interview at one substance abuse program, Terra Firma, was terminated because of her attitude. Another substance abuse program refused treatment unless she agreed to change her medications. Thus, there is ample evidence to support the lower court's finding that mother's use of substances would place J.W. at risk were she returned to mother.
These incidents are consistent with the juvenile court's observation that mother was still not mentally stable—a second reason supporting its decision.
Mother's adamant insistence on preserving her current medical regimen also defeats her argument that the juvenile court erred in terminating reunification services because there was a substantial probability of return had services been extended. Again, mother lists the various ways she complied with her case plan. But she is completely silent about the central problem—her denial of the debilitating effects her medications have on J.W.'s safety and her refusal to address that issue. Given that there was absolutely no progress on this issue, the juvenile court did not err by declining to extend services. Because of mother's insistence on keeping her current medications there was not a substantial probability that J.W. could have been safely returned to mother in an additional six months.
Mother also argues that the juvenile court applied the wrong legal standard when it declined to extend reunification services to 12 months. The juvenile court did misstate the standard when it said "There is not a substantial probability that the child will be returned to the parents by that time." (Italics added.) When a child younger than three is removed from the child's parents, reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(1)(B).) However, if there is a substantial probability that the child may be returned to a parent, the court shall continue the case to the 12-month permanency hearing. (§ 366.21, subd. (e)(3), italics added.) Despite the court's use of the word "will" rather than "may," read in context there is no basis to assume either that the court applied the more stringent standard applicable at the 12-month hearing to the six-month hearing or that the court required an unjustified level of certainty that the child will be returned to her parent, as petitioner argues.
We review the application of a statutory standard to undisputed facts de novo. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)
M.V. v. Superior Court (2008) 167 Cal.App.4th 166, on which petitioner relies, explains that at each successive stage of dependency proceedings, there are escalating standards for determining whether reunification services should be provided to parents of children younger than three who have been detained. (Id. at pp. 178-183.) At the six-month review, if there is a substantial probability that the child may be returned to the parent, the court must continue the matter to the 12-month hearing. (Id. at pp. 179-180.) The court here found that there was no such substantial probability, based on mother's complete failure even to acknowledge the problem her medical regimen was creating, much less a willingness to modify her regimen. As the history of these proceedings recited above makes clear, there is ample evidence to support this finding. The court neither applied the standard applicable at a 12-month review nor insisted on certainty when it properly concluded that under the facts before it there was no reasonable possibility that the minor could safely be returned to mother's care if services were continued for an additional six months. The court's use of "will" rather than "may" was at most a harmless error. (See In re: Justin L. (1987) 188 Cal.App.3d 1068, 1077-1078.)
II. Mother received reasonable reunification services.
Mother contends she was not provided reasonable reunification services because the agency's primary concern—her use of opiate medications and marijuana—were not addressed in her case plan. As mother contends, the agency is responsible to develop an appropriate plan for the specific family in question. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) Just as parents need not be perfect, so too, the agency's plan need not be ideal, but must be reasonable under the circumstances of the particular case. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
When the juvenile court found that reasonable services had been provided, no objection was made. Thus, the issue is waived. (See In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) Even if we were to reach the merits of the contention, we would reject it. Mother's case plan was multi-faceted and included: (1) general counseling, consisting of meeting with her primary care physician to evaluate her medical needs and proper medication regime, (2) psychotropic medication evaluation and monitoring, (3) psychiatric/psychological evaluation, (4) parenting education, and (5) substance abuse testing and outpatient treatment. All of these, other than the parenting class, were reasonably designed to help her deal with her dependence on a medical regime that undermines her ability to provide a safe environment for her child. Her medical records clearly reflect medical staff's attempts to offer alternative medications and mother's unwillingness to take them. The social worker also discussed with mother the possibility of modifying her medications but she was unwilling to do so. Thus, the agency directly targeted the problematic issue and developed a reasonable case plan to address it.
The petition contains no realistic suggestion of any additional services that could have been offered. It suggests, for example, that the agency ought to have "thoroughly investigated what in-home services were available," but it does not suggest what those might have been. The petition takes the agency to task for not having encouraged mother to participate in NA/AA meetings or other "community-based abstinence support groups." Yet, given mother's repeated insistence on maintaining her use of tranquilizers, opiates, painkillers, and marijuana, there is no reason to believe that an abstinence-based support group would have been appropriate. The dearth of practical, concrete suggestions regarding what else the agency should have done strengthens the conclusion that it offered reasonable services under the circumstances.
III. The juvenile court's visitation order was proper.
We review a juvenile court's visitation order for abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) Here, the juvenile court deferred ruling on the agency request to reduce visitation to one time per week until it obtained additional information about the availability of a suitable location and supervision for the visits. At the continued hearing, the agency explained that therapeutic visits are funded by Medi-Cal, and the Gathering Place therapist was no longer available because therapeutic visitation is no longer covered after reunification services have been terminated,. Furthermore, mother did not regularly attend all the visiting sessions that had originally been authorized. During February 2017, she reportedly missed four out of five visits; in March she missed five out of eight. The agency represented that mother actually made approximately four visits per month, so that the reduction of the authorized visits would merely correspond with the recent frequency of mother's actual visits. Given the practical considerations regarding supervised visitation and mother's actual frequency of visiting J.W., the court's decision to allow a weekly two-hour visit was well within its discretion.
DISPOSITION
The petition for an extraordinary writ is denied. The June 12, 2017 stay order is dissolved. Our decision is immediately final as to this court. (Cal Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.