Opinion
F084711
12-15-2022
In re B.Y., a Person Coming Under the Juvenile Court Law. v. K.Y., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 21CEJ300060 Todd D. Eilers, Commissioner.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
THE COURT [*]
K.Y. (mother) appeals from the juvenile court's July 14, 2022, order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her now two-year-old son, B.Y. After reviewing the juvenile court record, mother's court-appointed counsel informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Statutory references are to the Welfare and Institutions Code unless otherwise noted.
Mother filed a letter but failed to address the termination findings or orders or set forth a good cause showing that an arguable issue of reversible error arose from the section 366.26 hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
A. Detention and Removal
Two-month-old B.Y. came to the attention of the Fresno County Department of Social Services (department) in February 2021 after he was admitted to the hospital for failure to thrive because of insufficient feeding. The hospital staff attributed B.Y.'s low weight to mother who was inattentive to his needs. The staff encouraged her to participate in caring for B.Y. but she let him lie in the crib excessively and had to be prompted to feed and change him. The nurses also had difficulty getting mother to wake up while in the hospital and noticed that she talked to herself. They suspected she had postpartum depression. Mother also suspected she had postpartum depression and was seeing a therapist.
The department offered mother voluntary family maintenance services, but she declined. Consequently, the department took B.Y. into protective custody and placed him in foster care. B.Y.'s alleged father lived in Australia. He and mother agreed he would not be involved in B.Y.'s life and he never elevated his paternity status beyond alleged father.
The juvenile court ordered B.Y. detained pursuant to a dependency petition, alleging mother failed to feed him consistently, causing him to lose weight, and refused to follow the instructions of the medical staff. (§ 300, subd. (b)(1).) The court ordered the department to arrange weekly supervised visits and to offer mother parenting classes and a mental health evaluation and any recommended treatment.
The juvenile court sustained the petition at the jurisdictional hearing on March 18, 2021, and set the dispositional hearing for May 27, 2021.
Meanwhile, mother completed a mental health assessment. She presented with depressed mood, sadness, headaches, dizziness," 'racing'" and obsessive thoughts, worry, restlessness, and hallucinatory symptoms. She was taking psychotropic medication prescribed by her primary care physician. The therapist who completed the assessment recommended mother participate in individual therapy and complete a psychological evaluation to clarify a diagnosis.
B.Y. meanwhile struggled to obtain nutrition. He refused his bottle and spit up. In May 2021, he was diagnosed with a tied lip and tongue, gastro esophageal reflux disease, a heart murmur and ultimately, a milk allergy.
On May 26, 2021, mother filed a modification petition under section 388 (section 388 petition), alleging B.Y.'s failure to thrive was the result of lip ties on his upper and lower lips. A frenectomy to surgically correct the defect was necessary. Mother asked the juvenile court to return B.Y. immediately to her custody and demanded an apology from the department and the pediatric staff at the hospital.
The juvenile court ordered B.Y. removed from mother's custody at the dispositional hearing on May 27, 2021, ordered mother to complete the services previously offered as well as a psychological evaluation/risk assessment and set the six-month review hearing for November 18, 2021. The court did not order reunification services for the alleged father.
Mother appealed the juvenile court's jurisdictional finding and removal order, and the appeal was dismissed. (Phoenix H., supra, 47 Cal.4th at p. 844.)
In re B.Y. (Mar. 3, 2022, F083109) [nonpub. opn.].
On May 28, 2021, mother filed a second section 388 petition, identical to the one filed on May 26, 2021. The juvenile court summarily denied it, finding it did not state new evidence or a change of circumstances. On June 1, the court summarily denied mother's section 388 petition filed on May 26, on the same grounds.
B. Initial Six Months of Reunification Efforts
1. Mother's Psychological Evaluation/Risk Assessment
On June 29, 2021, mother completed a psychological evaluation/risk assessment. The department summarized the findings and observations in its six-month review report. Mother was diagnosed with unspecified schizophrenia spectrum and other psychotic disorder and (provisional) persistent depressive disorder with anxious distress. The examiner believed mother was capable of utilizing reunification services and was likely to benefit from parenting skills training. The department noted, however, that she received parenting skills training but was unsuccessful. She was unable to remember the skills necessary to care for B.Y. and required constant reminders.
During the evaluation/assessment, mother tapped her feet rapidly, glancing at the wall behind the examiner several times as though looking at something. She randomly made gestures, shaking her head to indicate no, and signaled with her hand to stop or wait. Throughout the interview, mother put her head down, covered her eyes with her hands while speaking with the examiner, and scratched herself leaving scratch marks. She also whispered to herself.
2. Mother's Section 388 Petitions
On July 2, 2021, B.Y. underwent a frenectomy to correct his lips and tongue tie. On July 19, he was referred for pediatric surgery for placement of a gastrostomy tube. The decision was subsequently made to insert a gastrostomy-jejunostomy tube (GJ tube).
On July 13, 2021, mother filed a section 388 petition asking the juvenile court to vacate its jurisdictional findings and dispositional orders and return B.Y. to her custody because new evidence provided a medical explanation for why B.Y. was not gaining weight; he had a "tongue and lip tie," which required a maxillary buccal frenectomy and a mandibular lingual frenectomy. Returning B.Y. to mother's custody was in his best interest because his failure to thrive was not because of her negligence. He failed to thrive even after he was removed from her because of his medical condition. The court set an evidentiary hearing for July 29, 2021.
The department recommended against placing B.Y. with mother. Although he was consuming more, he had not gained the desired weight and mother continued to need prompting and guidance to care for him. On June 4, during B.Y.'s occupational therapy session, mother was on her phone talking to herself and randomly giggling. She covered herself with a blanket, hiding her face, and did not participate in the session. She was unable to read B.Y.'s cues and her anxiety increased when he was fussy or crying.
The juvenile court denied the section 388 petition mother filed on July 13, 2021. It found mother's circumstances were "changing" in that a medical cause of B.Y.'s failure to thrive had been discovered and repaired and he was improving and starting to thrive. However, the court was concerned that mother may not be able to handle the medical complexities associated with B.Y.'s medical conditions, explaining its concerns arose "out of behaviors on her part that have been documented and her own behaviors I've seen exhibited when she's appeared before me, going back to detention …."
Mother appealed the juvenile court's order denying her section 388 petition and the appeal was dismissed. (Phoenix H., supra, 47 Cal.4th at p. 844.)
In re B.Y. (Mar. 3, 2022, F083166) [nonpub. opn.]. On our own motion, we take judicial notice of our case file and opinion in case No. F083166. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)-(c).)
On October 15, 2021, mother filed a section 388 petition and another one on November 2, 2021. In the October 15 petition, she asked the juvenile court to return the baby to her custody because the psychological evaluation was complete and did not reveal any abnormality. In the section 388 petition filed on November 2, she asked the court to require her social worker, Po Yang, to appear at all of her visits and medical appointments since she accused mother of failing to meet the baby's needs. By attending, Yang could observe how mother cared for the baby.
3. The Department Recommended Termination of Reunification Services
In its report for the six-month review hearing, the department recommended the juvenile court terminate mother's reunification services and deny the section 388 petition she filed in October 2021. Although mother regularly visited B.Y. and completed a parenting program, her progress was minimal and she appeared incapable of meeting B.Y.'s specialized care needs. She began supervised intensive services visitation in March 2021 because of her concerning behavior. She visited twice weekly and received coaching and mentoring. However, she required continuous guidance and direction on how to take care of B.Y. and immediately returned him to the foster parent if he became fussy. B.Y. had a GJ tube and required routine venting because he was unable to release air that entered his intestines. Mother was not trained in how to use the GJ tube because she caused B.Y. distress, which affected his ability to obtain nutrition. She was unable to read B.Y.'s cues and remember techniques to comfort him from one visit to the next. Several times the visit had to be terminated early because B.Y. was crying and unable to calm down. By November 2021, mother was required to wait in the lobby during B.Y.'s therapy sessions because her behavior dysregulated him. Even though she wanted to learn how to feed B.Y., he screamed and cried when she held him. After the sessions were over, mother received instruction on how to feed him.
In addition, there were continuing concerns about mother's mental health. Her thinking was disorganized, and her speech and movements were repetitive. As an example, B.Y. had oral aversion and the medical staff were trying to teach mother how to stimulate him to eat by moving a carrot inside his mouth. Mother became fixated on the idea that he might be able to eat a carrot. In addition, she did not make eye contact with the staff, often covering her face with a blanket and rocking back and forth, and talked on her phone when there was no one on the line. In early November 2021, a social worker saw mother speaking intensely with someone who was not there. She was informing the person and answering questions. She sat down and then stood up and continued speaking while making hand gestures as if she were speaking to someone in front of her. She started crying and then sat down and put her face in her hands. After several seconds, she turned to her right and repeated" 'I don't know'" several times before turning back and continuing her conversation.
On November 18, 2021, the juvenile court denied the section 388 petition mother filed on November 2, 2021, and set a contested six-month review hearing to be conducted on March 17, 2022, in conjunction with a hearing on the section 388 petition mother filed on October 15, 2021.
C. Reunification Efforts Pending the Contested Six-Month Review Hearing
Following the November 18 hearing, mother accelerated her efforts to reunify by requesting additional services and procured services on her own. In December 2021, she completed a psychological evaluation and, according to the report, was diagnosed with schizoaffective disorder (depressive type, unspecified) and posttraumatic stress disorder. The psychologist reported mother had a history of childhood trauma and an "enduring presence of mood instability and psychosis." Throughout the assessment, she appeared "distractable and paranoid" and frequently discussed her difficulty managing her environment because of her mental health difficulties. The psychologist recommended she participate in outpatient mental health treatment to address mood management, thought distortions and trauma. In February 2022, mother completed a second psychological evaluation. The psychologist noted mother had some mental health struggles that did not appear to have been evaluated in the context of parenting capability. She recommended mother continue to participate in mental health therapy to manage her stressors and to learn better parenting skills. The psychologist believed it would be beneficial to thoroughly assess mother's relationship with B.Y. to better understand the dynamics of her parenting.
Mother also reported she continued to participate in mental health treatment and was taking psychotropic medication. She provided a letter from a psychiatrist stating she was being treated for major depressive disorder, unspecified schizophrenia spectrum and other psychotic disorder and was on medication.
In an addendum report filed on March 17, 2022, the department maintained its recommendation that the juvenile court terminate mother's reunification services. Mother began to show improvement in January 2022 in her ability to engage with B.Y. She read to him and walked with him around the room while holding his hands. She attempted to keep up with him as his attention shifted from one interest to another. She spoke to herself but not in a manner that would be perceived as odd. However, she had not made sufficient improvement to warrant advancing to less restrictive visitation. In addition, B.Y. was doing well in his placement and the foster parents were interested in adopting him. Mother supported adoption by the foster parents if she was unable to reunify.
D. March 17, 2022, Contested Six-Month Review Hearing
By the six-month review hearing, mother had completed her court-ordered services. Her social worker testified the quality of mother's visits improved because she was beginning to show improvement in her ability to engage with B.Y. However, she was still unable to detect when B.Y. was hungry or agitated. She did perceive he was upset if he was crying. The social worker could not say whether mother would benefit from an additional six months of services.
Mother testified she received mental health treatment during her pregnancy with B.Y. She continued to participate in mental health therapy and saw a psychiatrist every six weeks and participated in weekly sessions on domestic violence. She believed she was benefitting from her services.
Mother's sister testified she was able to observe mother with B.Y. as a newborn. Mother was calm and quick to ask for help. Twice mother saved B.Y. from choking on his formula while she was feeding him. After B.Y. was removed, mother isolated herself. However, the sister noticed her change in the last year. She attended to B.Y. and interacted with him and was engaged with the social workers and in the court proceedings. She also noticed mother's mental health improved in that she was more organized.
The juvenile court found it would be detrimental to return B.Y. to mother's custody and denied her section 388 petition filed on October 15, 2021. The court found by clear and convincing evidence mother was provided reasonable reunification services and participated in her services plan but did not make substantive progress. The court also found there was not a substantial probability B.Y. could or would be returned to mother's custody, terminated mother's reunification services and set a section 366.26 hearing for July 14, 2022.
Mother filed an extraordinary writ petition (Cal. Rules of Court, rules 8.450-8.452), challenging the juvenile court's findings she was provided reasonable reunification services and there was not a substantial probability of return. We denied her petition.
K.Y. v. Superior Court (June 6, 2022, F084108) [nonpub. opn.]. On our own motion, we take judicial notice of our case file and opinion in case No. F084108. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)-(c).)
E. July 14, 2022, Section 366.26 Hearing
In its report for the section 366.26 hearing, the department recommended the juvenile court terminate mother's parental rights and free B.Y. for adoption. He was placed with the prospective adoptive parents in February 2021 and always appeared comfortable and happy with them. Mother usually told B.Y. she loved him and occasionally gave him a kiss at the end of visits. He never reacted when she left him at the end of visits. The prospective adoptive parents were amenable to visitation and contact with mother following termination of her parental rights.
Mother appeared at the section 366.26 hearing. Her attorney requested a contested hearing and made an offer of proof that mother and B.Y. were bonded and it would be in B.Y.'s best interest to continue that bond. Mother and B.Y. visited once every month, and mother interacted and cared for him. She played with him and changed his diapers. Mother's attorney did not have any evidence to present other than what was in the department's reports and objected to the department's recommendation. County counsel objected to a contested hearing.
The juvenile court denied mother's attorney's request for a contested hearing, stating, "The reason for the [c]ourt's denial is based on the offer of proof as stated, no additional evidence other than [that] which is already in the reports, the reports indicate that the mother has not been consistent with visitation[ ]. There appear[ ] to be some issues with the visitation, and it appears that the stability of adoption outweighs any parental bond. [¶ ] So therefore the [c]ourt finds that that exception would not apply." The court found B.Y. was likely to be adopted and terminated parental rights.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
At a termination hearing, the juvenile court's focus is on whether it is likely the child will be adopted and if so, the court is required to order termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the juvenile court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B).
Mother does not argue the juvenile court erred in finding B.Y. was likely to be adopted or that the court should have found an exception to adoption applied. Rather, she expresses her love for her baby boy and her desire to have him returned to her custody. She faults the medical staff for missing his diagnosis and causing his failure to thrive. She credits herself for discovering the cause of his oral aversion and saving his life twice. She collected his medical records and mailed copies to the parties involved and informed her lawyer that B.Y.'s tongue and lip ties caused his failure to thrive. She suspected the baby formula was making him sick all along and her hypothesis was proven when he was diagnosed with a milk allergy. She acknowledges having a mental illness but asserts that it is slowly improving with professional help.
Mother takes comfort in knowing that her baby will be adopted by prospective adoptive parents who love him and with whom he has bonded. She believes he "was destined to be loved by two families." She would like him back but loves him and wants the best for him.
We conclude based on the foregoing mother does not challenge the juvenile court's findings at the termination hearing and thus failed to set forth a good cause showing that an arguable issue of reversible error arose from the court's order terminating her parental rights. Further, though we are not required to do so, we have reviewed the record as it relates to the termination hearing and have found no arguable issues for briefing. (Phoenix H., supra, 47 Cal.4th at pp. 841-842.) Consequently, we dismiss the appeal.
DISPOSITION
This appeal is dismissed.
[*] Before Smith, Acting P. J., Meehan, J. and DeSantos, J.