Opinion
No. H044170
02-16-2017
C.P., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ Respondent, SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. DP003068)
I. INTRODUCTION
C.P. is the mother of A.P., the child at issue in this dependency proceeding. The mother has filed a petition for an extraordinary writ and a request for stay in which she challenges the juvenile court's orders terminating her reunification services and setting the matter for a Welfare and Institutions Code section 366.26 permanency planning hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In her writ petition, the mother contends the juvenile court erred by (1) basing its decisions on a neuropsychological report that contained errors; (2) finding that the mother's homelessness was a choice rather than a result of mental illness; (3) finding that the mother was non-compliant for failing to sign a release for a psychiatrist's report; (4) failing to admit a genetic testing report into evidence; and (5) removing the mother's medical rights as to the child.
For reasons that we will explain, we will deny the mother's writ petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
Some of the factual and procedural background is taken from this court's opinion in In re A.P. (Sept. 20, 2016, H043520) [nonpub. opn.].
A. Section 300 Petition
On August 7, 2015, the Santa Cruz County Human Services Department (the Department) filed petitions under section 300, subdivisions (b) [failure to protect] and (g) [no provision for support] alleging that A.P., then 14 years old, and G.P., then 17 years old, came within the jurisdiction of the juvenile court.
The children had been placed into protective custody after the mother made suicidal statements and said that she was unable to care for the children. The mother, who had a history of psychiatric hospitalizations, had been placed on a section 5150 hold. The father's last known address was in New York and he had failed to provide for the children's safety, supervision, and support.
The mother had been living in her car with A.P., and G.P. had been living in a play fort or shed in someone's back yard. The children, who were under a great deal of stress, wanted to be placed in foster care. The mother had a prior child welfare case in Washington, which had resulted in the termination of her parental rights as to four other children.
B. Jurisdiction/Disposition and Neuropsychological Evaluation
The Department filed a jurisdiction/disposition report on September 8, 2015. G.P. had been placed with a non-related extended family member, and A.P. had been placed in a licensed foster family home. The Department recommended the mother receive reunification services and undergo a neuropsychological evaluation.
The report contained further details of the relationship between the mother and the children. The mother had made statements leading A.P. to believe the mother did not like her, including the statement, "[A.P.] makes me want to kill myself." The mother had blamed the children for the family's homelessness.
The report noted that the mother had been accused of sexually abusing her other children in 1992 and 1993, and that A.P. had been sexually abused by her maternal uncle. The mother had responded in a protective manner when she learned of A.P.'s molestation.
The Department recommended that, as part of her case plan, the mother participate in therapy and sign releases so the therapist could provide the social worker with information about the mother's progress. The mother was also to participate in a psychological evaluation and a medication evaluation and follow all recommendations made in those evaluations. She was also to obtain and maintain a stable and suitable residence for herself and the children.
At a hearing held on September 8, 2015, the juvenile court ordered a neuropsychological evaluation for the mother and set the matter for a settlement conference regarding jurisdiction and disposition. On September 29, 2015, the juvenile court set the matter for a contested hearing.
On November 9, 2015, the Department filed an update regarding the neuropsychological evaluation. The mother had met with the evaluator, Richard Alloy, Ph.D., three times, and Dr. Alloy had provided the Department with a written report. The Department summarized Dr. Alloy's report. The mother had "a chaotic presentation" during the evaluation. The mother remained at risk for suicide and future psychiatric hospitalization, and thus required close and regular monitoring. The mother needed a medication evaluation. She had some hearing issues and needed an audiology or ENT [ear, nose, and throat] consultation. The mother would benefit from parenting classes, vocational education, and therapy. She needed help finding housing and facilitating social contacts.
Dr. Alloy's report listed a number of clinical diagnoses, including Schizoaffective Disorder, Depressive Type; Sexual Abuse of Child (as victim); Sexual Abuse of Child (as perpetrator); Neglect of Child; Parent-Child Relational Problem; and Personality Disorder Not Otherwise Specified with histrionic, passive-dependent, self-defeating, and antisocial traits.
A contested hearing on jurisdiction and disposition was held on November 9, 2015. The juvenile court sustained the allegations of the petition and adopted the Department's recommendations, ordering reunification services and supervised weekly visitation. The juvenile court also authorized the neuropsychological evaluation report to be released to the mother's therapist.
C. The Child's Section 388 Petition
On March 23, 2016, A.P. filed a section 388 petition requesting the mother's visitation be temporarily suspended. A.P. reported that during visits in January 2016, the mother had teased A.P., interrupted her, told her she was wrong, accused her of abandoning her family and only caring about herself, and yelled about the case. After a safety plan was developed for visits moving forward, the mother canceled three visits in a row. A.P. felt attacked, hurt, and uncomfortable during the visits. During a supervised visit on February 17, 2016, the mother had given A.P. a journal containing a letter, in which the mother wrote that A.P. "has no heart," and in which the mother addressed "gay rights, which was a topic [A.P.] had specifically asked that they not discuss." A.P. felt sad and hurt by the letter. The Department also filed a request for a change in visitation, in which the social worker corroborated A.P.'s account of the visitations.
The juvenile court ordered a hearing on the child's section 388 petition be held on April 28, 2016, the date set for the six-month review hearing.
D. Six-Month Review and Prior Appeal
On April 28, 2016, the Department filed a six-month review report recommending the mother continue to receive reunification services. The children remained in their placements and were doing well. The mother was still looking for housing and employment. She was participating in counseling and a parenting course, and she had apparently completed a medical evaluation but had not signed a release so that the evaluation could be reviewed by the social worker.
At the six-month review hearing held on April 28, 2016, the mother submitted on the Department's report. The mother's attorney asked the juvenile court to authorize release of Dr. Alloy's report to the mother. The juvenile court denied the mother's request, but ordered the mother's reunification services to continue. The juvenile court also adopted a transitional independent case plan for G.P. and ordered monthly visitation between the mother and A.P. The juvenile court continued the hearing on A.P.'s section 388 petition.
The mother appealed from the orders at the six-month review hearing, claiming the juvenile court erred by denying her request for the neuropsychological report. This court ordered the juvenile court to grant the mother's request. (In re A.P., supra.)
E. 12-Month Review Report
The Department filed a status review report on September 27, 2016, in which it recommended the mother's reunification services be terminated and that the juvenile court set a selection and implementation hearing.
A.P. remained in a foster home, where she was doing well, and she wanted to continue living there. The mother was still homeless and living in her car. She was being referred to a housing program, was looking for work, and was "exploring educational opportunities."
The mother had been in contact with the Department and had informed the social workers that prior reports contained inaccuracies about allegations of sexual abuse of her children. The mother also wanted more visitation with A.P. The mother's behavior "vacillated between being calm and smiling to being tearful and agitated." She sometimes used violent language towards the social workers.
The mother had been meeting with a therapist on a weekly basis. She still would not sign a release of information regarding the results of her medication evaluation, despite multiple requests from the social worker. She had participated in a parenting course and had been visiting with A.P. on a monthly basis. Visits were supervised by the child's therapist and the mother's therapist. A.P. still did not feel emotionally safe with the mother.
F. Testimony at the 12-Month Review Hearing
A contested 12-month review hearing was held on November 30, 2016. At the beginning of the hearing, the mother stipulated that she had been provided with a copy of the psychological evaluation. The mother sought to admit a genetic testing report into evidence, but the juvenile court sustained the Department's objections, agreeing that the document "wouldn't make any sense without expert opinion."
The mother testified about her weekly counseling, in which she worked on emotional issues. She was living on her mother's property in a garden shed that was "like a small cottage." She described her recent efforts to find other housing. She described what she had learned from her parenting class.
The mother did not agree with the diagnoses of Dr. Alloy. For instance, the diagnosis of schizoaffective disorder, depressive type, was "wrong." The mother did not sexually abuse a child, and thus the diagnosis of sexual abuse of a child as perpetrator was incorrect. The mother acknowledged having had problems with depression and anger as well as "intellectual problems" involving focus. She did not believe she was psychotic and thus that she did not need medication. The mother testified that she did, however, take a vitamin because of a "malfunctioning MTFHR gene," but the juvenile court sustained the Department's objection to that testimony insofar as it constituted a medical opinion.
The mother asserted that she had participated in A.P.'s education by being in contact with someone from Foster Education, helping to decide on a tutor, and talking to A.P. about how she was doing in school. She had obtained information about A.P.'s medical records.
The mother described her monthly visits with A.P. as mostly "positive," admitting that the last one "ended on a sour note." The mother had upset A.P. by talking about A.P.'s body. The mother had expressed disagreement with A.P.'s choice to be a vegan, believing it would not be healthy.
The mother admitted she had not signed a release allowing the social worker to obtain information about the mother's progress in therapy, nor one permitting the social worker to obtain the mother's medication evaluation. She explained that she had disagreed with the medication evaluation and that she did not believe medication was effective for her.
G. Arguments and Findings
At the end of the November 30, 2016 hearing, counsel for the child asserted that A.P. was prepared to move forward with a permanent plan. She argued that the mother had not shown that it would be safe to return A.P. to the mother's care, nor that there was a substantial probability of return if reunification services were extended to 18 months. Counsel for the child noted that the mother had not complied with all the elements of her case plan, in that she had not found housing, was not seeing a psychiatrist, refused to sign a release following her medication evaluation, and declined to take medication. Counsel for the child also noted that the mother had not respected A.P.'s boundaries, such that the child did not feel emotionally safe, and that the mother had used violent and threatening language towards the Department.
Counsel for the Department adopted the comments of counsel for the child. She added that the Department had made efforts to get the mother the mental health services she needed to address the reasons for the dependency, but that the mother remained in denial about her mental health issues and their effect on A.P.
Counsel for the mother argued that the mother should not be judged for asserting confidentiality with respect to her medical records. She asserted that the mother had participated in all of the recommended services and had been cooperative with the social worker. She also noted that the mother had completed a parenting class and had been diligently working on obtaining housing. She requested the court find a substantial probability of return if services were extended to February 10, 2017.
The juvenile court found that the mother had not made substantive progress in addressing the issues that had led to the dependency. The court found that the neuropsychological report helped provide an "understanding of what's going on here" in that the mother had a learning disability, impaired insight and judgment, and narcissism. The juvenile court noted that the mother's testimony on the stand also showed the mother's psychological issues: the mother had blamed others for her problems and had confused "her own issues" with the child's needs. The juvenile court also found it "significant" that the mother had not signed releases for the social worker. The mother's lack of housing was only a "small portion" of the evidence supporting the juvenile court's findings; the court understood that the mother's mental health issues were causing the mother to have difficulty finding employment and housing.
The juvenile court terminated the mother's reunification services and set the matter for a selection and implementation hearing on March 14, 2017. The juvenile court ordered that A.P.'s educational rights be held by the foster parents and that A.P.'s medical rights be held by her attorney.
The mother filed a notice of intent to file a writ petition on the day of the hearing and subsequently filed the instant petition for extraordinary writ.
III. DISCUSSION
In her writ petition, the mother contends the juvenile court erred by terminating her reunification services.
A. Legal Principles
If a child is over the age of three on the date of his or her initial removal from the physical custody of his or her parent, the juvenile court is required to order family reunification services "beginning with the dispositional hearing and ending 12 months after the date the child entered foster care . . . unless the child is returned" home. (§ 361.5, subd. (a)(1)(A).) At the 12-month permanency hearing, the juvenile court must determine whether "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," and whether the parent was offered or provided with reasonable services to aid the parent in overcoming the problems that led to the Department's removal and continued custody of the child. (§ 366.21, subd. (f)(1).) The juvenile court may continue the matter to a date within 18 months from the child's removal only if it finds "a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time" or that reasonable services have not been provided to the parent. (§ 366.21, subd. (g)(1).)
"[T]o find a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time," the juvenile court is required to find: "(A) That the parent . . . has consistently and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1).)
"We review an order terminating reunification services to determine if it is supported by substantial evidence. [Citation.] In making this determination, we review the record in the light most favorable to the [juvenile] court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] 'We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the [juvenile] court.' [Citation.]" (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.)
B. Analysis
The mother first contends the juvenile court improperly based its decisions on Dr. Alloy's neuropsychological report. The mother asserts—as she did during her testimony at the 12-month review hearing—that the report contained errors regarding sexual abuse allegations. However, the juvenile court's findings did not reference the sexual abuse allegations in any way. Rather, the juvenile court found that the neuropsychological report helped provide an "understanding of what's going on here," in that the mother had a learning disability, impaired insight and judgment, and narcissism. Because the juvenile court's findings did not rest upon the report's discussion of the sexual abuse allegations, even if there were errors in the report regarding those allegations, the mother was not prejudiced.
The mother next contends the juvenile court erroneously found that the mother's homelessness was a choice rather than a result of mental illness. The record does not support this claim. At the hearing, the juvenile court explicitly stated it understood that the mother's mental health issues were causing the mother to have difficulty finding employment and housing.
The mother also argues that the juvenile court erred by finding that the mother was non-compliant with her case plan for failing to sign a release for a psychiatrist's report. She explains that she did not trust the psychiatrist's judgment. The mother's case plan required her to participate in a medication evaluation and follow all recommendations made in that evaluation. Without information about the mother's medication evaluation, the social worker could not determine whether the mother had been able to address the problem leading to the dependency: her mental health issues. Moreover, the mother admitted in her testimony that she was not following the evaluation's recommendation for her to take medication. Thus, the record supports the juvenile court's finding that the mother was not in compliance with her case plan.
Next, the mother argues that the juvenile court erred by failing to admit the genetic testing report into evidence. She contends the juvenile court should have asked for expert testimony instead of excluding the report. The mother explains that she has a mutation of a particular gene and that she wanted to determine if A.P. also has the gene mutation, asserting that the gene mutation could affect A.P.'s ability to use folate and make essential amino acids. The mother's claim of error fails for several reasons. First, the mother did not seek to present expert testimony at the hearing, thereby forfeiting her claim. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2.) Second, the mother has not shown how admission of the report would have changed the juvenile court's findings with respect to termination of reunification services. (See Evid. Code, § 354 [exclusion of evidence must cause a miscarriage of justice].)
Finally, the mother argues that the juvenile court erroneously removed her medical rights as to the child, and she alleges that the juvenile court's statements indicate that the court may have "had conversations about this outside of the courtroom." Our review of the record does not reveal anything to indicate the juvenile court had ex parte communications about this matter. Further, the juvenile court had authority to limit the mother's control over the minor pursuant to section 361, subdivision (a)(1) and authority to order the social worker to authorize medical care pursuant to section 369, subdivision (c). In light of the evidence of the emotional harm to the child caused by the mother, particularly concerning body and eating issues, the juvenile court did not abuse its discretion by limiting the mother's ability to make medical decisions about the child.
Section 361, subdivision (a)(1) provides in pertinent part: "In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations."
Section 369, subdivision (c) provides: "Whenever a dependent child of the juvenile court is placed by order of the court within the care and custody or under the supervision of a social worker of the county where the dependent child resides and it appears to the court that there is no parent, guardian, or person standing in loco parentis capable of authorizing or willing to authorize medical, surgical, dental, or other remedial care or treatment for the dependent child, the court may, after due notice to the parent, guardian, or person standing in loco parentis, if any, order that the social worker may authorize the medical, surgical, dental, or other remedial care for the dependent child, by licensed practitioners, as necessary."
Based on our careful review of the record, we find none of the mother's claims of error have merit. We further find that substantial evidence supports the juvenile court's finding that returning A.P. to the mother "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child" (§ 366.21, subd. (f)(1)) and that there was no "substantial probability" that the child would be returned to the mother's custody "and safely maintained in the home" if services were continued to 18 months from the date of removal (§ 366.21, subd. (g)(1)).
IV. DISPOSITION
The petition for extraordinary writ and request for stay are denied.
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.