Opinion
F074715
02-10-2017
L.P., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
L.P., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and, Cody M. Nesper, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JV7588 & JV7589)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald I. Segerstrom, Jr., Judge. L.P., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and, Cody M. Nesper, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Gomes, J. and Kane, J.
-ooOoo-
L.P. (mother), in propria persona, seeks extraordinary writ relief from the juvenile court's orders issued at a contested 18-month review hearing (Welf. & Inst. Code, § 366.22) terminating her reunification services and setting a section 366.26 hearing as to her now four-year-old son, Colton, and two-year-old son, B.B. She contends the juvenile court erred in finding it would be detrimental to return the children to her care, and further erred in finding the Tuolumne County Department of Social Services (department) provided her with reasonable reunification services. We deny the petition.
Statutory references are to the Welfare and Institutions Code. --------
PROCEDURAL AND FACTUAL SUMMARY
The juvenile court exercised its dependency jurisdiction over Colton and B.B. in May 2015, after sustaining allegations that mother's alcoholism resulted in their neglect. Two months before, the department took then two-year-old Colton and 10-month-old B.B. [DOB 4/2014] into protective custody after finding them dirty and unhygienic and the family home unsafe and unsanitary. The children had matted and sticky hair and dirt caked on various parts of their bodies. There were piles of dog feces on the living room floor and a strip of nails on the floor where the children crawled and walked.
The department placed the children together with their maternal aunt, where they would remain throughout these proceedings. The aunt described the children as "feral" and said they appeared developmentally delayed. In addition, Colton was autistic.
This was not mother's first case of child neglect. In January 2012, the juvenile court adjudged the children's older sister, S.P., a juvenile dependent because mother mismanaged S.P.'s diabetes, resulting in eight hospitalizations in 2011. Mother received family maintenance services until S.P. reached majority in May 2013. At the time of these proceedings, S.P. was hospitalized, being treated for diabetes, pancreatitis, hepatitis, hypertension and a 60-pound weight loss in four months.
The juvenile court ordered mother to complete the Dependency Drug Court (DDC) substance abuse treatment program, a domestic violence program, a parenting program and psychological testing. It also required her to submit to random drug and alcohol testing, attend weekly Alcoholics/Narcotics Anonymous meetings and visit the children once weekly under departmental supervision.
In August 2015, psychologist Blake Carmichael evaluated mother to determine whether she suffered from a psychological condition that prevented her from safely parenting the children and, if so, whether she could safely parent them after six to 12 months of treatment. At the time of the evaluation, mother was regularly visiting the children and participating in all of her treatment programs, including weekly therapy sessions with Sharon Swaffar. However, mother had a history of childhood trauma which she avoided discussing. Ms. Swaffar diagnosed mother with Attention Deficit/Hyperactivity Disorder (ADHD), situational depression and mild Post Traumatic Stress Disorder (PTSD) but believed her primary diagnosis was ADHD. Swaffar was working with mother on organizing her thoughts and scheduling as mother had a hard time managing her schedule especially with all of her reunification requirements. During sessions, mother had "rapid and tangential thoughts; circular speech; and difficulty staying on task."
Dr. Carmichael concluded that mother suffered from PTSD, based on "long-standing and pervasive trauma symptoms associated with her history of sexual abuse and domestic violence ...." He also diagnosed her as having severe alcohol abuse disorder but opined that she did not meet the criteria for ADHD at that time. He concluded she could benefit from continued mental health services but would likely require more than 12 months to safely parent the children.
In October 2015, at the six-month review hearing, the juvenile court continued mother's reunification services. In its report for the hearing, the department expressed its concerns about mother's ability to maintain her sobriety and meet the children's medical and developmental needs, especially Colton's. The court set the 12-month review hearing for April 2016.
In February 2016, mother came home from work and found that S.P. had died from complications related to diabetes.
In March 2016, psychologist Deborah Schmidt evaluated mother to assess her psychological state and parenting ability and to determine whether she was likely to succeed in safely parenting the children. Dr. Schmidt opined that mother was not capable of being a safe parent for her children and unlikely to do so even if she participated in six to 12 months of additional reunification services. Dr. Schmidt reported,
"While [mother] is reportedly participating in multiple reunification services and reported that she is clean and sober, she continues to demonstrate a lack of understanding regarding the extent to which ... her children's needs were being neglected prior to them being placed in protective custody. [Mother's] denial, personality traits, history of substance abuse, and psychiatric symptoms have likely contributed to the difficulty she has exhibited making the changes she needs in order to become a safe parent for her children."
In its 12-month review report, the department recommended the juvenile court terminate mother's reunification services because, although she maintained her sobriety and had stable housing, the department was concerned about her ability to provide the children safety and stability, to make decisions independently and to take responsibility for the role she played in the children's removal.
In May 2016, following a contested 12-month review hearing, the juvenile court found the department failed to provide mother reasonable reunification services and ordered the department to prepare a new case plan to focus on mother's mental health needs. The court set the 18-month review hearing for August 2016.
In June 2016, mother graduated from the DDC and the juvenile court ordered her to sign and comply with a non-DDC case plan. The new plan required mother to participate in domestic violence and substance abuse services (12-step meetings and random drug and alcohol testing) and general counseling to address specific issues, including past trauma and grief. It also required her to complete an updated psychological evaluation.
Dr. Carmichael performed the updated psychological evaluation. He concluded that, given Colton's special needs related to autism and mother's slow pace in learning and implementing parenting strategies, that she would not be able to resume custody of the children on or before the 18-month review hearing. He diagnosed her with ADHD, but stated that the primary contributor to her mental presentation was PTSD.
In its report for the 18-month review hearing, the department recommended the juvenile court terminate mother's reunification services because she was at risk of neglecting the children and failed to take full advantage of the services offered to her. Specifically, the department cited mother's failure to attend all required 12-step meetings, domestic violence counseling sessions and grief support groups, to complete a required parenting course and to participate in a required life skills class.
In October 2016, the juvenile court conducted a contested 18-month review hearing and heard testimony from social worker Houa Xiong, Drs. Carmichael and Schmidt, mother and several supporting witnesses. Dr. Schmidt testified that mother denied that any of her actions contributed to the removal of the children. She repeatedly denied that she neglected the children or that her substance abuse affected her ability to parent them. Mother's denial made it difficult to treat her. In addition, mother talked about being physically and sexually abused but would not address it. Dr. Schmidt believed she needed to address her trauma in order to be a safe parent.
Dr. Carmichael also testified about mother's refusal to address her trauma. He explained that her avoidance could hinder her ability to regulate her emotions and cause her to withdraw and become nonresponsive to her circumstances. He did not believe that returning the children to her under family maintenance would eliminate the risk to the children because of mother's lack of independence and accountability.
At the conclusion of the hearing, the juvenile court found by a preponderance of the evidence that returning the children to mother's custody would expose them to a substantial risk of detriment. The court also found that the department provided mother reasonable reunification services. Consequently, the court terminated mother's reunification services and set a section 366.26 hearing.
DISCUSSION
Mother challenges the juvenile court's detriment and reasonable services findings on the grounds that the court applied the wrong burden of proof and substantial evidence does not support the findings. We disagree.
Mother contends the appropriate burden of proof to support a finding of detriment is clear and convincing evidence. She is mistaken. The required burden of proof is the one the juvenile court applied; i.e., the preponderance of the evidence. Section 366.22, the statute governing the 18-month review hearing, is explicit:
"[T]he court shall order the return of the child to the physical custody of his or her parent ... unless the court finds by a preponderance of the evidence, that the return of the child to his or her parent ... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a)(1).)
Further, substantial evidence supports the juvenile court's detriment finding. The court acknowledged mother made "great strides" in her recovery and improved the condition of her home, but stated she had not addressed her own trauma, which fostered avoidance. In addition, the children had special needs and mother placed them in dangerous situations without recognizing the danger or reacting appropriately. The court believed their circumstances paralleled those of S.P. and placed them at a similar risk of harm, if returned to mother's custody.
Mother contends the juvenile court did not apply any burden of proof in assessing the reasonableness of reunification services because it did not specify the one it used in making its finding. She is correct the court did not articulate the burden of proof it used. However, we must presume on a silent record that the juvenile court used the correct burden of proof. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The correct burden of proof in assessing the reasonableness of reunification services is clear and convincing evidence. We presume, therefore, the court applied the clear and convincing standard in the absence of any evidence that it used an improper standard. In addition, the record is not entirely silent on the matter. On the preprinted form used for the order after hearing, the order setting the section 366.26 hearing is followed by a finding "[b]y clear and convincing evidence reasonable services have been provided or offered to the child's parents ...."
Further, substantial evidence supports the juvenile court's finding mother was provided reasonable reunification services. The department provided her the full array of services to address the problems that necessitated the children's removal and, as the court noted, she did "remarkably well" in terms of maintaining sobriety and making the house habitable. In addition, the court continued services for her and provided her additional mental health services to support her after S.P.'s death. However, ultimately mother failed to reunify with the children because she was not willing or able to treat her own psychological distress to become a safe parent.
Mother, nevertheless, contends the department's efforts to provide reunification services were not reasonable. Specifically, she claims Ms. Xiong focused on what she did wrong rather than help her work on her areas of need. As a result, mother distrusted Xiong and her relationship with Xiong broke down. Mother argues the department should have assigned her another social worker who might have provided better services.
Mother correctly characterizes her relationship with Ms. Xiong in that Xiong testified that mother expressed her distrust for her. Xiong also testified she was not permitted to request a different social worker. However, mother does not point to any evidence that Xiong failed to carry out her duties under the court-ordered reunification plan or was in any way ineffective in helping mother access the services required to reunify.
We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.