Opinion
C086190
09-26-2018
In re A. J., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.T., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. STKJVDP20150000402)
Appellant S.T., mother of the minor, appeals from the juvenile court's order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395; statutory section references that follow are to the Welfare and Institutions Code unless otherwise set forth.) Having previously had her petition for extraordinary writ denied by this court, she reasserts her contention that the juvenile court erred in terminating her reunification services. She also contends the juvenile court erred in permitting the social worker to testify at the 12-month review hearing regarding her opinion that mother was incapable of learning to parent the minor and in subsequently authorizing placement of the minor in Georgia.
We reject her contention that the juvenile court erred in terminating reunification services on the merits and reject her remaining contentions as not properly raised in this appeal.
FACTS AND PROCEEDINGS
On November 10, 2015, San Joaquin County Human Services Agency filed a section 300 petition on behalf of the minor (then age five), after the minor was found with bruises on his face, which he disclosed were the result of being beaten by his older cousins. The minor stated that none of the adults in the home intervened and that appellant told him he had to "learn how to take care of himself." Appellant also disciplined him by using a belt, which would leave bruises on and around his buttocks. The minor was living with appellant and her boyfriend. The minor's father's whereabouts were unknown. The petition also alleged appellant had a history of substance abuse, domestic violence, and multiple criminal convictions.
Appellant had a prior dependency case for general neglect of the minor in August 2010, which was dismissed after reunification in November 2011. Appellant also had a second prior dependency case instituted in November 2005, for emotional abuse, physical abuse, and general neglect of the minor's half sibling. She received services but failed to reunify with the half sibling, her parental rights were terminated, and the child was adopted in March 2008.
Appellant reported she had previously participated in substance abuse treatment. She also reported she had a mental health diagnosis of bipolar disorder for which she had been prescribed medication. She was a patient of San Joaquin County Mental Health and had a psychiatrist. She was last seen in September 2015.
The juvenile court sustained the petition, adjudged the minor a dependent, and ordered reunification services be provided. Appellant's reunification plan consisted of: residential substance abuse treatment, Drug Court, anger management, psychological treatment, medication compliance, parenting education, domestic violence courses, personal counseling, and obtaining stable housing.
Appellant participated in courses in domestic violence, anger management, breaking barriers, and parenting education. She also received mental health services through San Joaquin County Mental Health and Holt Counseling went to her residential drug treatment facility to provide weekly personal counseling sessions. The juvenile court ordered continuation of reunification services at the August 16, 2016 review hearing.
The next review hearing, referred to as the 12-month review hearing, took place on March 29, 2017 -- almost 17 months after the minor's November 6, 2015, initial removal from parental custody. The social worker reported that, after completion of her residential substance abuse treatment, appellant had moved to a homeless shelter and no longer made herself available to the counselor, who unsuccessfully attempted to connect with appellant to complete the counseling component of her reunification case plan. The counseling provider had reported that when the counselor called appellant to schedule an appointment, appellant would state she was unable to speak and hang up. The counselor tried to meet with appellant at the shelter but appellant was never there.
Although appellant had taken the parenting education course three times, the social worker believed she continued to lack the capacity to care for the minor. The case was almost at 17 months and appellant had not demonstrated a sufficient period of stability to support a finding that the minor would be safe in her care. The social worker testified that she was unaware of any other services that could be provided to assist appellant in reunifying with the minor.
The social worker recommended terminating services because appellant appeared unable to implement the information learned in the classes. The social worker explained that appellant did not appear to have cause-effect thinking ability, as demonstrated by her impulsive actions. Appellant lacked insight into the long-term effects of her actions and had poor decision-making ability. These concerns were demonstrated by appellant's recent theft of some bicycle inner tubes.
Appellant believed the minor had been removed from her care because he had been "play fighting" with other kids and did not believe there were any grounds to remove him from her care. She testified that, after completing inpatient treatment, she stole an inner tube for her bike on her way to the aftercare program on impulse, because she was running late. Appellant testified that, she had a similar situation prior to graduation from the inpatient program, when she stole a soda because she was thirsty and did not have money. Appellant indicated that she was aware the thefts could have resulted in an arrest, which would have negatively impacted the minor. Appellant admitted she was not ready for the full-time care of the minor but believed she would be in the near future.
At the conclusion of testimony, the juvenile court took the matter under submission and continued the hearing to April 7, 2017. At the April 7, 2017 hearing on the ruling, the juvenile court set forth many concerns regarding appellant's lack of progress in services, including her minimization of the events that led to removal, lack of stable housing, failure to follow through with counseling, and failure to utilize tools and support systems put in place for her. The juvenile court also found that appellant continued to demonstrate a lack of insight and understanding about the consequences of her actions. The juvenile court also indicated, with regard to the reasonableness of the services, that a psychological evaluation had not been necessary in this case because appellant was already receiving mental health services, was medication compliant, and had testified she was benefitting from the prescribed medication. The juvenile court terminated reunification services and set a section 366.26 hearing.
On April 7, 2017, appellant filed an intent to file a writ petition, which was subsequently denied. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452; further rule references are to the California Rules of Court.) On April 18, 2017, the court authorized placement of the minor with a caretaker in Georgia.
The section 366.26 hearing took place on November 27, 2017. At the conclusion of the hearing, the juvenile court terminated parental rights and freed the minor for adoption. Appellant filed a notice of appeal on December 8, 2017.
DISCUSSION
I
12-month Review Hearing
With respect to the 12-month review hearing, appellant contends the juvenile court erred in terminating her reunification services because (1) the evidence did not support the juvenile court's finding that she received reasonable reunification services, and (2) the juvenile court should have continued services based on the substantial probability the minor would be returned to her custody within the time prior to expiration of the 18-month timeframe.
Appellant alleges the time remaining was four months but there were actually only about six weeks remaining. Services can be extended for up to 18 months from the date of initial removal if it is shown there is a substantial probability the minor will be returned and safely maintained in the home during that time or that reasonable services were not provided. (§§ 361.5, subd. (a)(3), 366.21, subd. (g)(1).)
Appellant also contends the juvenile court erred in permitting the social worker to testify at the 12-month review hearing regarding her opinion that mother was incapable of learning to parent the minor.
Appellant asserts that she may raise issues arising from the 12-month review hearing because she filed a petition for extraordinary writ pursuant to rule 8.452, which was denied summarily on the merits. (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501 (Joyce G.).) Only the first contention, however, is cognizable.
We incorporated by reference the court file in case No. C084429.
"Subsequent appellate review of findings subsumed in an order setting a section 366.26 hearing is dependent upon an antecedent petition for writ review of those findings having been 'summarily denied . . . .' " (Joyce G., supra, 38 Cal.App.4th at p. 1513; § 366.26, subd. (l).) Appellant's writ petition raised only the issue of the reasonableness of the services provided. The petition was summarily denied on the merits. When "the denial is summary, the petitioner retains his or her appellate remedy (§ 366.26, subd. (l)(1)(C)) but is limited to the same issue on the same record (§ 366.26, subd. (l)(1)(B)) and thus is destined on appeal to receive the same result." (Joyce G., supra, 38 Cal.App.4th at p. 1514; italics added.)
The issue of continuing services due to the likelihood of return of the minor within the 18-month timeframe was not raised in the petition for extraordinary writ. Likewise, appellant did not raise any contention in her writ petition that the juvenile court erred in permitting the social worker to testify at the 12-month review hearing regarding her opinion that mother was incapable of learning to parent the minor. Thus, appellant is precluded from raising these issues in this subsequent appeal. (Joyce G., supra, 38 Cal.App.4th at p. 1514.)
With respect to the contention appellant did preserve for this appeal -- the finding that reasonable reunification services were provided -- we find no error.
Appellant contends, as she did in her writ petition, that she was not provided reasonable reunification services because "the case plan that was developed for [her] was deficient in that it did not request a psychological evaluation for [appellant] to tailor her services." Appellant's challenge to the adequacy of her reunification plan is untenable.
First, appellant's attack on the composition of the reunification plan itself is untimely in this proceeding. (John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.) A parent "waive[s] her right to complain [about a reunification plan] by consenting to the terms of the plan." (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476.) If appellant felt that services were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan or seeking a modification. " ' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. . . ." . . . ' [Citation.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) "[A] parent [may not] wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing. [Citation.]" (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.) Appellant cannot now complain about the appropriateness of the plan or the social worker's failure to remedy its perceived deficiencies.
Moreover, the juvenile court and social worker reasonably determined that a psychological evaluation was unnecessary because appellant was already receiving mental health services. As explained by the social worker during her testimony at the hearing, the purpose of a psychological evaluation is to tailor services for a parent. Appellant was already under the care of a psychiatrist and had already been provided all of the available services. Accordingly, we find no error in the juvenile court's finding that reasonable reunification services had been provided to appellant.
II
Placement Hearing
Appellant also contends the juvenile court deprived her of substantive due process by its April 18, 2017, order permitting the minor to be placed with a caretaker in Georgia. Appellant cannot raise this issue in this appeal.
"A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed [as from] an order after judgment . . . ." (§ 395.) " 'In a dependency proceeding the dispositional order constitutes a judgment.' " (In re Megan B. (1991) 235 Cal.App.3d 942, 950.) The notice of appeal must be filed "within 60 days after the rendition of the judgment or the making of the order . . . ." (Rule 8.406(a)(1); In re Markaus V. (1989) 211 Cal.App.3d 1331, 1335-1336.)
As appellant's notice of appeal, taken from the section 366.26 hearing, was not filed until December 8, 2017, her appeal was not taken from, and is not timely as to, the April 18, 2017, placement order which she now attempts to challenge. Since the appeal is not timely as to that matter, this court lacks jurisdiction to address the issue raised by appellant in the current proceeding. (In re Megan B., supra, 235 Cal.App.3d at p. 950.)
Appellant asserts no error with respect to the orders of November 27, 2017, from which she appeals.
DISPOSITION
The orders of the juvenile court are affirmed.
HULL, Acting P. J. We concur: BUTZ, J. MURRAY, J.