Opinion
F081201
08-03-2020
A.A., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Carolyn Woodall for Petitioner. No appearance for Respondent. Sarah Carrillo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV7941, JV7943, JV7944)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ proceedings. Frank Dougherty. (Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Carolyn Woodall for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, for Real Party in Interest.
Before Detjen, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Petitioner A.A. (mother) seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) in May 2020 terminating her reunification services and setting a section 366.26 hearing on September 1, 2020, as to her three sons, now seven-year-old Christopher B., five-year-old Joseph B. and three-year-old Jonathan B. Mother contends the Tuolumne County Department of Social Services (department) unreasonably delayed in referring her for a psychological evaluation. Therefore, she argues the juvenile court erred in finding she was provided reasonable reunification services and in ordering them terminated. The children's father, John B., also filed a writ petition, which is pending in this court in case No. F081202. We deny mother's petition.
Statutory references are to the Welfare and Institutions Code. --------
PROCEDURAL AND FACTUAL SUMMARY
John B. and Cathleen B. are married and have three children, Christina, Sean and Victoria, now 20, 16 and 13 years of age. Mother is Cathleen's daughter from a previous relationship. Mother was approximately six years old when John and Cathleen married. John and mother have four children, Christopher, Joseph and Jonathan, the subjects of this writ petition, and eight-month-old Emma, who was born during these dependency proceedings.
John and his family have a significant and longstanding history of child welfare involvement. The department received 24 referrals since 2000, alleging John physically, emotionally and sexually abused mother and sexually abused Christina and he and Cathleen neglected and physically abused Sean, who has Autism Spectrum Disorder. Mother was reportedly mildly developmentally disabled. Two of the referrals were substantiated; the first in 2011 for general neglect when Sean was sent to school in soiled clothing and diapers and the condition of the home was determined to be unsafe. John and Cathleen signed a safety plan stating they would not send Sean to school in that condition. The second referral was initiated in November 2018 when the Tuolumne County Sheriff's Office found then three-year-old Joseph wandering down a road a quarter-mile from his home wearing only a soiled diaper. He had been missing for approximately one hour and no one from the family reported him missing. The family maintained two residences; John, mother and Jonathan lived together in one and Cathleen, Christina, Sean, Victoria, Joseph and Christopher lived in another. Cathleen left Joseph in Christina's care while she went to the dentist but because of a miscommunication, Christina did not know she was supposed to be taking care of him.
Social workers responded immediately to the home where a deputy expressed concern about the living conditions. The social workers noticed an overwhelming pungent odor of rotting food and garbage. Piles of clothes, garbage and soiled diapers were found throughout the home, as well as insulin needles, a used menstrual pad, and a towel that appeared to be soiled with fecal matter.
The social workers were confused about the family relationships because Cathleen referred to herself as Joseph's mother or " 'NanaMamma.' " She explained the state of the home was the result of the family " 'tearing apart their rooms' " and cleaning. Generally, she insisted, the home was in good condition. The social worker reminded her about a previous home visit when Cathleen admitted she might have a " 'bit of a hoarding problem.' "
John arrived while the social workers were talking to Cathleen. He said he did not live there and blamed Cathleen for the condition of the home. He lived with mother and their youngest son, Jonathan. He said their home was not in the condition Cathleen's was. He was in the process of selling the home he lived in. Once it sold, he and mother planned to move in with Cathleen and the rest of the family. He was going to hire a maid service to clean the home.
The home John and mother lived in was found to be in a similarly chaotic state. As a result, all of the minor children were taken into protective custody. Sean was placed in a group home. Victoria was placed in a foster home in Tuolumne County and the three youngest were placed together in a foster home in Calaveras County.
Later in the afternoon, social workers met with John and mother. John explained he fathered three children with mother because she wanted to be a mother and he did not want her to have a child with " 'any old Tom, Dick, or Harry' " and have " 'some drug dealer ... knocking on the door demanding to see his child.' " He donated his sperm to mother as a safety precaution. He denied he and mother had a sexual relationship and said she lived with him as a caretaker because he had diabetes. He acknowledged they shared a bed but said they had their own blankets. He had dinner with the family at the other residence. He admitted the home was in poor condition in the past. He thought divorcing Cathleen would resolve the problem. He said he was employed in law enforcement for years and brought an order to the home the family was incapable of achieving on its own. If he lived with the family, he would make everyone clean up after themselves.
Mother said she received social security income for a learning disability and John was her payee. She denied having a sexual relationship with him but referred to him as her significant other and wore a wedding ring on her left ring finger. She denied they slept in the same bed but admitted it after the social worker told her John said they did.
Cathleen said mother was not capable of raising a child beyond the age of 18 months because of her developmental delay. Once her children reached that age, she gave them to Cathleen to raise. Cathleen denied John and mother had a sexual relationship, explaining mother conceived by inserting a turkey baster with John's sperm inside herself. John and mother had the children for her because she had a difficult childbirth with Victoria and wanted more children. When asked why mother and John referred to each other as " '[Hon],' " she explained John did that to protect her from men who might take advantage of her.
Sheriff's deputies forwarded charges of willful cruelty to a child to the district attorney's office as to all three parents. They were sentenced to four years of probation and required to complete a 52-week parenting course.
The juvenile court adjudged the children dependents under section 300, subdivision (b)(1) at the jurisdictional hearing in January 2019, returned Sean and Victoria to Cathleen with family maintenance services and ordered John and mother to participate in family reunification services. Mother's services plan required her to participate in a general counseling program, complete assessments for "In Home Supportive Services" (IHSS) and targeted case management, complete a parenting education course/in-home parenting education program and up to two psychological evaluations at the discretion of the case managing social worker to determine the appropriate treatment plan. The court set the six-month review hearing for July 2019.
Over the next six months, mother participated in in-home parenting education and visit coaching. Although she was loving and appropriate with the children, she struggled to parent all three and sometimes asked for assistance with tasks she could manage herself. Christina often stepped in to help, which seemed to frustrate mother. Mother was denied special mental health services through Tuolumne County Behavioral Health because she did not meet the criteria for medical necessity. The public health department closed her referral for targeted case management because she did not believe she needed the service. She was referred in April for IHSS and demo homemakers but did not complete and submit the health certificate required to initiate services because she did not believe she needed the services. By June 2019, she was waiting to be scheduled with a therapist and the social workers were encouraging her to follow up with IHSS. She, John and Cathleen were also on a waiting list for psychological evaluations.
On July 23, 2019, at the six-month review hearing, the juvenile court continued reunification services for mother and John and ordered them to complete a psychological evaluation. The court set the 12-month review hearing for December 2019. It was continued and conducted as a contested hearing over several days in May 2020.
Meanwhile, the department reported conversations John had with the children's foster mother. He said he and Cathleen arranged for mother to meet men in the grocery store and engage in sexual activity in the motor home parked beside the house. He referred to mother as his " 'concubine' " and justified his relationship with her, explaining he never bonded with her and did not consider her his daughter. He said her father thought he molested her before she was 18. Once the department was out of their lives, he planned to relocate the family to Arizona to the largest polygamy county in the United States.
In September 2019, a social worker made an unannounced visit at Cathleen's home and found piled trash outside the home. Cathleen said she was cleaning. The living room was clear of clutter but there was an overwhelming smell of garbage and there were dirty dishes overflowing the kitchen sink and pots and pans with food stuck to them. During the visit, Cathleen said mother had a boyfriend but she did not know if he was the father of her unborn child. She was aware John could be the father. He told her he had feelings for mother.
In November 2019, mother was involved in a car accident and gave birth prematurely to Emma. Mother identified Matthew, her boyfriend, as Emma's father but did not list him on the birth certificate. John thought he could be Emma's father, claiming he gave mother his sperm, which she injected using a food injector or syringe to conceive. Paternity testing ultimately identified John as Emma's biological father.
In November 2019, mother completed her last session with psychologists Sara Vice, a post-doctoral fellow, and supervisor, Blake Carmichael. She had the opportunity to see another psychologist in October 2019 but opted to wait to see Dr. Vice. By the time mother met with the psychologists, she had been seeing therapist Natalie Gray since June 2019. In her sessions with Gray, mother expressed conflicting roles she played in the lives of her children and with John. At times, she asserted she was the children's mother; other times she said she had the children for Cathleen. She was deferential to John but also said she wanted " 'nothing to do with him.' " At her last appointment, mother said she intended to leave the family home, cut the contact and support she received from Cathleen and John and live independently with her children and boyfriend. She was confident she had already taken steps towards this independence by not allowing John to make decisions about their children. However, as questions were posed to her during the evaluation, mother realized she still relied on Cathleen and John for financial support, parenting advice, and childcare. The psychologists considered mother's realizations emblematic of her overestimation of her ability to separate from her family of origin. It also called into question her ability to act independently, or seek appropriate support, particularly as it related to parenting her children. Even if she were to cut contact, the examiners had concerns about her ability to live independently since she had never been employed or lived on her own.
Drs. Vice and Carmichael diagnosed mother with mild intellectual disability and opined her "longstanding limitations in adaptive skills, interpersonal functioning, and decision-making, in conjunction with her lack of response to reasonable and targeted interventions, preclude[d] her from safely parenting her children." They explained:
"Mental health diagnoses themselves do not prevent a person from parenting a child. It is the manner in which symptoms impair a person's daily functioning, as well as the person's awareness into their parenting, willingness, and commitment to addressing their parenting skills that should be considered when evaluating their need for and ability to benefit from services.
"A key component to resolving a problem is to first recognize that there is a problem that needs to be addressed. [Mother] appears to have limited awareness into the reasons that she has become involved with CPS. She
maintains that her family was brought to the attention of CPS as a 'set up' and that someone must have let her son out of the house. She repeatedly denied that the house was dirty and full of trash, or that the conditions of the home should raise concerns for anyone.... The evaluators have significant concerns that if [mother's] home again started to become unfit, or supervision of the children was lacking, she would not recognize that the state of her home was unsanitary or unsafe, and would not promote the health and well-being of her children.
"The evaluators are further concerned about [mother's] limited progress in and motivation for completing her current case plan.... Results from formal testing reflect ... she believes that she does not have any significant limitations, and she is functioning adequately. [Mother's] strong perspective in this regard will make it very difficult for her to achieve lasting and sustainable change.... Given her lack of awareness and willingness to participate in services, combined with her poor interpersonal functioning, adaptive abilities, poor decision-making, as well as difficulty with learning and generalizing new skills, it is not likely that [mother] would succeed in becoming a safe parent within the next 6 to 12 months, even with continued services." (Emphasis omitted.)
Although the psychologists did not believe mother would benefit from continued reunification services, they recommended she apply for services through the Valley Mountain Regional Center (VMRC). If eligible, she could obtain employment and independent living services. They also recommended she remain engaged with service providers who helped her improve her interpersonal relationships and assertiveness skills. "[S]he has significant challenges," they opined, "including cognitive limitations, developmental difficulties, and relationship struggles, all of which should be addressed to help improve her daily functioning."
Similarly, the psychologists who evaluated John opined an additional six to 12 months of family reunification services would not assist him in safely parenting the children because he was incapable of benefitting from services. They diagnosed him with narcissistic personality disorder. They diagnosed Cathleen with personality disorder with dependent features, hoarding disorder, and persistent depressive disorder (dysthymia) and opined she was unlikely to make substantial changes in the next six to 12 months to become a safe and protective caregiver.
The department recommended the juvenile court terminate family reunification services at the 12-month review hearing and informed the court a protective custody warrant was being sought for Sean and Victoria's removal from Cathleen. Mother was attending weekly counseling with therapist Gray, who reported mother was asserting her independence. Gray was concerned, however, mother could not adapt the tools she taught her and it was unclear what role she played in her children's lives. Mother attended weekly parenting classes with infant/child enrichment services and participated in some in-home parenting education with a family support specialist.
Visits were chaotic and challenging for the staff to maintain structure and focus. When the family visited together, all the adults assumed parental roles but not in a coordinated fashion. Consequently, the parents were at times unengaged and oblivious to the children's behaviors. Mother was observed to be threatening in her parenting style and deferred to Christina to discipline the children. In order to more directly observe mother, the social workers assigned a visit coach for separate visits with her three children. She was able to interact with the children and meet their needs with guidance and cues from the visit coach but did not employ the techniques when the entire family was included or John joined the visit.
In addition to the lack of cleanliness in the home, the department remained concerned about the family dynamics, stating, "The sexualized and controlling dynamics involved in this family are complex, confusing and difficult to assess but cannot go unaddressed." Through grooming and influential behaviors, John took advantage of mother who had cognitive delay since she was six years old and there were suspicions he was doing the same with Christina. Mother and Christina reportedly swapped places at John's residence and wore engagement and wedding rings. John's comment about wanting to engage in polygamy added to the concern. Although Cathleen appeared to understand the dynamics were wrong, she had no intention of changing the behavior or leaving John; rather, doing all she could to reconcile with him. The department believed John's relationship with the females in the household was inappropriate and unnatural. The family dynamics and the psychologists' opinions the parents were incapable of protecting the children and benefitting from services prompted the department's recommendation to terminate family reunification services.
Over several days in May 2020, the juvenile court conducted a contested 12-month review hearing as to Christopher, Joseph and Jonathan, a hearing as to Sean and Victoria pursuant to a supplemental petition (§ 387) and a jurisdictional hearing as to Emma. Mother testified she moved out of John's home and in with her fiancé in December 2019. She was employed briefly in March or April 2020 but was laid off because of the coronavirus. She hoped to go to college and become a nurse. She was managing her own social security income. She conceived her children through sexual intercourse with John. She told Cathleen she used a turkey baster because she was afraid to tell her the truth. She initiated a sexual relationship with John when she was 18 and conceived Christopher when she was 19.
Dr. Carmichael testified his opinion mother could not safely parent the children with continued services was unchanged by evidence she was employed, lived apart from John and Cathleen, regularly engaged in individual therapy or expressed regret about conceiving children with John.
Social worker Houa Xiong testified mother retracted her statement she had sexual intercourse with John as a minor but maintained she had sexual intercourse with him as an adult. Her concern with mother's intellectual functioning was her ability to retain information. To assess her understanding, Xiong directly asked her at the end of their meetings whether she understood. Many times, mother responded, " 'I do. I understand what you're saying. I'm not stupid.' " She explained on cross-examination by John's attorney that she took over the case in mid-September 2019 when the parents had already been referred for psychological evaluations and appointments were scheduled. When parents are not progressing toward reunification, the department utilized the results of the psychological evaluation to determine whether additional or different reunification services were needed or whether the parent could benefit from reunification services. Typically, it could take three to six months to complete a psychological evaluation from the date of the referral, depending on the availability of the psychologist and parent and how many sessions were required. The department did not believe a psychological evaluation was warranted from the beginning of the case despite the family dynamics because it believed counseling would address the family's issues.
Mother's attorney asked the juvenile court to find mother was not provided reasonable reunification services and order them continued. Specifically, she argued the results of mother's psychological evaluation, if received sooner, would have assisted her in progressing in her services plan. She pointed to Dr. Carmichael's testimony that mother is capable of learning. Since he issued his report, mother demonstrated insight into her dependence upon John and her ability to assert her independence by severing ties with him. Had her intellectual functioning been better understood sooner, services could have been tailored to her specific needs.
The juvenile court found the parents were provided reasonable reunification services but that mother's progress was minimal and John made no progress. The court terminated reunification services and set a section 366.26 hearing for September 1, 2020. The court sustained the supplemental petition as to Sean and Victoria and the original section 300 petition as to Emma and set a dispositional hearing as to the three minors on June 16, 2020.
DISCUSSION
Mother contends the department's delay in referring her for a psychological evaluation rendered the services provided to her unreasonable. Information obtained from the psychological evaluation, she argues, assisted her in asserting her independence. Such information, if obtained sooner, would have helped the department devise services to address her specific needs and assisted her in making greater progress toward reunification. We disagree.
" ' "Reunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.' ..." ... The department must make a " ' "good faith effort" ' " to provide reasonable services responsive to the unique needs of each family.... "[T]he plan must be specifically tailored to fit the circumstances of each family ..., and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding...." ... The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success.... The adequacy of the reunification plan and of the department's efforts to provide suitable services is judged according to the circumstances of the particular case.... "[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult ...." ' " (In re K.C. (2012) 212 Cal.App.4th 323, 329-330.)
At each review hearing, if the child is not returned to parental custody, the juvenile court is required to determine whether "reasonable services that were designed to aid the parent ... in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent ...." (§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a)(3).) The "adequacy of reunification plans and the reasonableness of the [agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)
"[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) If substantial evidence supports the juvenile court's finding, we will not disturb it. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) As mother bears the burden of demonstrating error on appeal (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), she must show the juvenile court's finding she was provided reasonable reunification services is not supported by substantial evidence. We conclude she has failed to make such a showing.
Here, the department recognized mother's disability and provided specific services with that in mind: in-home parenting instruction, IHSS, targeted case management, a visitation coach and mental health counseling. Mother, however, did not believe she had a problem that needed to be addressed and therefore made poor use of the services offered.
Contrary to mother's assertion, there is no evidence any delay in obtaining a psychological evaluation was unreasonable. First, she fails to show it was indicated before the referral for it was made. Although the department was aware of her disability, it believed it was treatable through mental health counseling. Once the department understood she was not progressing with counseling, it initiated the referral. Any delay in scheduling the evaluation was beyond the department's control.
Further, contrary to mother's assertion, there is no evidence information was obtained through her evaluation that pointed to additional services. On the contrary, the psychologists opined she was not able to benefit from additional services and did not recommend any. They did recommend she ascertain her eligibility for VMRC services to assist her in living independently but not for the purpose of reunifying with the children. Moreover, to the extent mother argues her growing assertiveness and independence resulted from her psychological evaluation and improved her prognosis for reunification, the record reflects that breakthrough came from her counseling sessions with Gray. According to a progress update from Gray received by the department in December 2019, she and mother were working on increasing her independence and communicating assertively. Mother's attitude and outlook had dramatically changed as a result.
We conclude the department provided mother all known services to address her intellectual delay and the timeliness of the referral for a psychological evaluation was reasonable under the circumstances. We affirm the juvenile court's reasonable services finding and its orders terminating reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.