Opinion
A158460
12-23-2019
K.J., Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent; SAN FRANCISCO COUNTY DEPARTMENT OF SOCIAL 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD18-3248)
K.J. (Mother), mother of nine-year-old S.M., petitions this court to set aside the juvenile court's order terminating reunification services, scheduling a permanency planning hearing under Welfare and Institutions Code section 366.26 (366.26 hearing), and limiting her educational rights. We deny the petition.
All further statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On November 27, 2018, San Francisco County Department of Social Services (the Department) filed a dependency petition alleging Mother's ability to care for S.M. was impeded by her untreated mental health and anger management issues. Mother was arrested on November 16 for getting into a physical altercation with another adult, and on November 23, the Department received a referral that she strangled S.M. and punched him multiple times with a closed fist. The petition alleged Mother had been involved in a prior dependency with S.M. from September 2016 to October 2018 but had not benefited from services offered in that case. Four of S.M.'s maternal half siblings had also been dependents and three of them had been adopted. The whereabouts of S.M.'s alleged father was unknown.
According to the detention report, Mother had six older children ranging in age from 14 to 30 "who she did not reunify with." Her dependency with S.M. had ended just one month before her arrest for being in a physical altercation. S.M. was released to Mother after her arrest, but one week later, Mother was arrested again—this time for punching and choking S.M. while they were riding on BART. BART police interviewed multiple witnesses including S.M., who was transported to a children's hospital. S.M. said Mother became upset and started to leave the train when he would not do something funny for a video she wanted to record. When he followed her, she punched and choked him. S.M. said he was afraid to live with Mother. Mother said she only held S.M. down to prevent him from attacking her. S.M. was detained and placed in foster care.
According to a jurisdiction/disposition report, Mother denied having anger or mental health issues. She had refused to complete an assessment in her prior dependency but the psychologist said she had enough information "halfway through the evaluation" to diagnose Mother with oppositional defiant disorder and unspecified personality disorder with narcissistic traits. The psychologist said that Mother has a long history of being argumentative with and defiant towards staff at S.M.'s school, social workers, and others, and that she blamed others for her own behavior.
The report further stated that S.M. told the social worker that Mother hits him and leaves him at home alone from 11 p.m. to 8 a.m. while she works. S.M. was in third grade but was functioning at a first grade level and was in need of a special education or developmental assessment. He had been suspended several times for behavioral issues including being physical with the teachers. His school felt S.M. would benefit from interventions but Mother said she wanted to wait until he was returned to her custody.
According to the report, Mother had an extensive substance abuse history that included crack and cocaine use, as well as an extensive criminal history, the most recent of which was a December 23, 2018 arrest for driving under the influence. That arrest and the two arrests in November—physical altercation and punching and strangling S.M.—were awaiting disposition.
At the time of the report, there had been two visits scheduled for Mother. She failed to show up for the first visit despite three reminders. The second visit took place but was unsuccessful. Mother questioned S.M. about a perceived "bruise on his face" that the supervising social worker could not see, and S.M. began to cry. When the social worker intervened, Mother became angry and aggressive, causing the social worker to call S.M.'s caregiver to pick the child up. Mother then unilaterally left with S.M. and the social worker called police "due to flight risk concern." It was decided that future visits should be arranged through, and monitored by, the Foster Family Department (FFA).
Mother did not appear at a settlement conference that was scheduled for January 7, 2019. The Department filed an addendum report on February 4 stating FFA had refused to supervise visits due to safety concerns relating to Mother's behavior. FFA recommended that Mother have therapeutic visitation with security available as a precaution. The Department made a referral for therapeutic visitation through Foster Care Mental Health, but the social worker who contacted Mother for an assessment was unable to complete an assessment due to Mother's uncooperative behavior.
At a March 6 contested jurisdiction/disposition hearing, the juvenile court sustained the petition on all counts and placed S.M. in foster care. The court ordered Mother to arrange for childcare when she is away from home, comply with drug testing, enroll in individual therapy, engage in family therapy, participate in therapeutic supervised visitation, complete a parenting program and a psychological evaluation, and provide clean drug tests for 90 days.
On July 15, Mother filed a petition for modification under section 388 (388 petition) seeking unsupervised and overnight visits and telephone calls. She declared she had met with an individual therapist three times, attended five therapeutic visitation sessions followed by one-hour visits, completed a parenting class in 2017, and remained employed in two jobs. She declared that she attended every school meeting and spoke to the principal of S.M.'s school every day.
On August 7, the Department filed a six-month status review report recommending that services be terminated and the matter be set for a 366.26 hearing. S.M. had disclosed additional physical abuse by Mother. He said she hit him with her hands, shoes, and belts, and on one occasion hit him with a jacket while driving and slammed her right arm into his face causing his head to hit the passenger side door. When they got home, she hit him with a broomstick.
In the status review report, the Department provided information regarding 15 child welfare referrals that had been made for S.M., beginning at his birth when Mother was a prison inmate. Among the referrals was a report that then-three-year-old S.M. had a bruise on his cheek from being hit by Mother. Mother said S.M. fell, but S.M. said he did not. Another referral involved a situation in which Mother became belligerent and threatened a school staff member who recommended mental health services for S.M. The status review report also detailed many referrals involving Mother's six older children and noted her parental rights to four of them had been terminated.
The report also discussed S.M.'s prior dependency, which began in 2016 after S.M. acted out at school and injured students and teachers. Mother denied the behavior occurred. In 2017, S.M. was deemed a danger to himself and was placed on a 72-hour psychiatric hold. Mother was uncooperative and refused to consent to an assessment or treatment for S.M. The juvenile court released S.M. to Mother and ordered Mother to complete a psychological evaluation, address her anger management issues, and cooperate with S.M.'s service providers. After Mother declined to participate in services and refused treatment or special education services for S.M., the Department reported there were no meaningful interventions it could provide to Mother under family maintenance services. The court ultimately dismissed the case and terminated jurisdiction.
In the current dependency, S.M. continued to have no special education support. Mother failed to show up for an Individualized Education Program (IEP) meeting and instructed S.M. not to answer the psychologist's questions during his assessment. S.M. was found to be eligible for special education services but Mother refused to consent to the services. During the 2018-2019 school year, he spent most of the time out of the classroom due to his severely aggressive classroom behavior. The principal reported that S.M.'s academic performance was still at a first grade level, even as he was about to enter fourth grade. The Department requested that the juvenile court limit Mother's educational rights and authorize the appointment of an educational rights holder for S.M. based on Mother's failure to cooperate with the school and school district's numerous efforts to assess S.M. "for special educational services and implement these . . . services."
According to the status review report, Mother began participating minimally in services only after a social worker told her the Department would be recommending terminating services. Mother had been referred to an individual therapist in January 2019 and had been given multiple reminders about the referral, but she failed to contact the therapist in a timely manner and the referral was closed. Thereafter, Mother found a therapist and had two sessions, but the therapist was no longer willing to treat Mother because Mother said she does not have any work to do in therapy and was only doing it for the dependency case. Mother did not complete her psychological evaluation until July 29 and failed to follow through on substance abuse assessment and testing. She was visiting S.M. but many of the visits had been problematic, as Mother was angry and hostile towards the supervising social worker and made accusations against the foster parent. Mother would also show up unannounced at S.M.'s school, causing S.M. to experience emotional distress. The Department emphasized that S.M. had been in and out of foster care and was in need of permanency.
In an addendum report filed August 23, the Department reported that Mother had set up court-ordered drug testing. After missing several tests, she tested positive for cocaine on August 5. Mother quit her job to engage in services; she had appeared in family treatment court and had been attending classes at the women's resource center for a few weeks. The Department continued to recommend that services be terminated.
On August 27, the juvenile court denied Mother's 388 petition for unsupervised and overnight visits. A few days later, the Department filed a 388 petition to terminate Mother's reunification services. The court ordered the Department's 388 petition to be heard at the same time as the contested six-month review.
The Department filed an addendum report on September 18 stating that Mother had been attending weekly parenting classes and had attended four anger management classes. She was reported to be in compliance and participating with "an excellent attitude." Mother reported she had found a new therapist but had not yet met with the therapist. The Department continued to recommend that services be terminated.
At a hearing on the contested six-month review and 388 petition, the social worker testified about Mother's anger issues and described a July 23 incident during which Mother became agitated and angry with the visitation therapist and threatened her in front of S.M., causing the therapist to terminate the visit. Another social worker testified that Mother did not begin to participate in services until late July, missed a number of drug tests, and tested positive for cocaine.
Mother testified she began attending parenting classes three days a week and weekly anger management classes in about June. She testified that she does not use physical discipline and is against physical violence. She explained that she initially resisted special education services for S.M. because she believed there was a stigma attached to such services. She did not believe S.M. had a learning disability, and said he simply fell behind because he was suspended so often. Mother also testified that she has a very good relationship with the school principal, and that they met regularly until a stay away order prevented her from visiting the school. Mother recalled "some kind of conversation" about how she should not come to school so often but said she did not recall ever being told not to go. On cross-examination, Mother admitted that the only consistent service in which she had engaged in this dependency was visitation.
The juvenile court found that reasonable services had been provided, Mother had not engaged in services, and there was not a substantial probability that S.M. would be returned to her within the statutory time period. The court granted the Department's 388 petition to terminate reunification services, limited Mother's educational rights, and scheduled a 366.26 hearing. This petition followed.
DISCUSSION
1. Termination of Reunification Services and Setting of 366.26 Hearing
Mother contends the juvenile court erred in terminating her reunification services and setting a 366.26 hearing because "reunification was still a likelihood" and "there was enough progress made in therapeutic visits and other services to support ongoing reunification services, continued to the twelve month review." We disagree.
When a child is removed from a parent's custody, the juvenile court must order reunification services absent a reason to bypass services. (§ 361.5, subd. (a).) Where, as here, the child is three years of age or older at the time of removal, "court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care . . . unless the child is returned to the home of the parent or guardian." (§ 361.5, subds. (a)(1)(A).) At status review hearings, there is a presumption that "the child will be returned to parental custody unless the court finds by a preponderance of the evidence that 'the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.' " (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)
"A parent, however, has no entitlement 'to a prescribed minimum period of services,' " and the juvenile court has discretion to terminate services before the applicable statutory period has expired. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 876.) Under section 388 subdivision (c)(1)(B), the Department may petition the court for early termination of services where "[t]he action or inaction of the [parent] creates a substantial likelihood that reunification will not occur, including, but not limited to, the [parent's] failure to visit the child, or the failure of the [parent] to participate regularly and make substantive progress in a court-ordered treatment plan." In order to terminate services under this section, the court must find by a preponderance of evidence that reasonable services have been offered and must also find by clear and convincing evidence that the conditions of section 388 subdivision (c)(1)(B) exists. (§ 388, subd. (c)(3).) We review the court's decision granting or denying a 388 petition for an abuse of discretion. (In re Katelynn Y., supra, 209 Cal.App.4th at p. 881.)
Here, there was ample evidence to support the juvenile court's order granting the Department's 388 petition and setting the matter for a 366.26 hearing. Mother argues that "her efforts at services, while imperfect, warranted giving her more time." She asserts she participated in services by, among other things, completing a psychological evaluation, attending therapeutic visits regularly, and making "extensive efforts to find a therapist." The record shows, however, that Mother failed to meaningfully engage in any services until after the Department informed her in late July that it would be recommending the termination of services.
As noted, Mother did not complete a psychological evaluation until July 29. The Department referred her to individual therapy in January, but she failed to follow up with the therapist despite numerous reminders. She told another therapist that she had no work to do in therapy. She did not engage in court-ordered drug testing until July, missed several tests, and tested positive for cocaine. She did not sign up for a parenting class or an anger management class until July 30. Although she participated regularly in therapeutic visitation, there was also a history of problematic visits and she had a lengthy history of failing to participate in services provided by the Department. Thus, there was clear and convincing evidence that Mother's failure to engage in services and make substantive progress in her treatment plan created a substantial likelihood that reunification would not occur. The juvenile court did not abuse its discretion by ordering the early termination of reunification services and setting a 366.26 hearing.
2. Limiting Mother's Educational Rights
Mother contends the juvenile court erred in limiting her educational rights because she was "available to participate in special education planning" and "available and willing to exercise" her educational rights. She asserts her trial testimony shows she was "involved and knowledgeable about her son's school" and that it was "an overreach" to "limit her educational rights" when she "only missed one meeting and expressed an appropriate view of [the] matter moving forward." We reject her contention.
The juvenile court is authorized to limit a parent's ability to make educational decisions on a dependent child's behalf and appoint a responsible adult to make educational decisions for the child. (In re R.W. (2009) 172 Cal.App.4th 1268, 1276, citing § 366.1, subd. (e).) "A court-imposed limitation on a parent's educational rights 'may not exceed those necessary to protect the child.' [Citations.]" (In re R.W., supra, 172 Cal.App.4th at p. 1276.) "We review the juvenile court's order limiting a parent's educational rights under an abuse of discretion standard, [citation], bearing in mind '[t]he focus of dependency proceedings is on the child, not the parent.' [Citation.]" (Id. at p. 1277.)
S.M. was a special needs student in need of a developmental assessment and appropriate educational accommodations. At the time of the hearing, he was starting fourth grade but operating at a first grade level. He had untreated mental health issues, learning disabilities, and oppositional behaviors that resulted in him spending a significant time outside of the classroom. When the school district attempted to conduct an IEP for S.M. in April 2017, Mother refused significant portions of the testing and instructed S.M. not to answer the psychologist's questions. Thereafter, S.M. missed school and fell further behind; he had no special education support during the 2018-2019 school year and was constantly being suspended. Despite all of this, Mother failed to show up for an IEP meeting in June 2019.
In addition, Mother became aggressive and belligerent with school staff when they recommended mental health services for S.M., and she refused to consent to treatment for S.M. when he was hospitalized for exhibiting dangerous behaviors. She also continued to assert that stopping by the school "all the time" and having impromptu visits where she "would eat lunch with [S.M.]" were beneficial to his education despite the school's attempts to have her discontinue the unannounced visits.
As described above, S.M. had no real opportunity to obtain an education due to his many challenges and the school was unable to appropriately or adequately assist him because Mother had thwarted their efforts for several years. In light of Mother's history and apparent failure to understand S.M.'s educational needs, the juvenile court reasonably determined that S.M.'s interests would be better served by having another adult help him obtain the assessment and services he clearly needed. There was no abuse of discretion.
DISPOSITION
The petition is denied. Our opinion is final as to this court forthwith.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Fujisaki, J.