Opinion
G059212
10-07-2020
ELIZABETH G., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Wallin and Klarich and Jonathan M. Lynn for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. No appearance for Real Party in Interest Ethan G.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 20DP0493) OPINION Original proceedings; petition for an extraordinary writ to challenge an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Petition denied. Wallin and Klarich and Jonathan M. Lynn for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. No appearance for Real Party in Interest Ethan G.
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INTRODUCTION
Elizabeth G. filed a writ petition after the juvenile court bypassed her for reunification services under Welfare and Institutions Code section 361.5 for her newborn son, Ethan G. Elizabeth's older child, Emery G., was detained in 2017, and reunification services for her were terminated in December 2019 because Elizabeth had violated court orders regarding Emery's custody. In this case, the court found that Elizabeth had not made a reasonable effort to treat the problems that led to Emery's removal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We are well acquainted with Elizabeth. In 2018, we reversed the juvenile court's disposition order returning Emery to Elizabeth's custody under a family maintenance plan. The record of events between Emery's detention and the conclusion of the jurisdiction/disposition hearing - a matter of five months - persuaded us that Emery could be in danger due to Elizabeth's unstable mental state, and returning her to Elizabeth's custody before that mental state could be professionally evaluated was simply too risky. We returned the matter to the juvenile court to hold a new disposition hearing.
In re Emery G. (July 26, 2018, G055727) [nonpub. opn.].
Ethan, the subject of this dependency proceeding, was born in April 2020 and detained at two days old. Orange County Social Services Agency (SSA), which was still handling Emery's case, was concerned that Emery's history would repeat itself with Ethan, given that Elizabeth had made no progress despite 18 months of proffered programs. The juvenile court agreed and bypassed Elizabeth for reunification services, in light of her failure to reunify with Emery.
We deny the petition. The same conduct that was so alarming in Emery's case has been repeated with Ethan. As far as this record indicates, Elizabeth is operating under the same assumptions that underlay her interactions in Emery's case. The same behaviors she exhibited in that case are still in evidence. Sadly, so far as we can tell, little or nothing has changed.
FACTS
To place this case in context, it is necessary to go back more than three years, to the dependency case involving Emery, who was five years old at the time. Emery was detained, and Elizabeth was placed in a psychiatric hold, after Elizabeth threatened to kill Emery and commit suicide over a dispute with their landlord. The events occurring between detention in June 2017 and the final disposition in November 2017 created quite a saga, mainly of Elizabeth's erratic and threatening behavior. In November, the juvenile court ruled that it had jurisdiction over Emery, but it returned her to Elizabeth's custody. Emery appealed, joined by SSA and her father, Evan W.
We reversed the juvenile court - a step we rarely take. We were forthright about our reasons for doing so. "The record in this case paints a terrifying picture of a person with a tenuous hold on reality and no concept at all of the truth.[fn] Elizabeth may not have injured or killed anyone yet - despite her many threats - but Emery's safety cannot rest on the chance that she won't. . . . [¶] Elizabeth regards Emery as her property, and all her complaints rest on her perception of her own rights.[fn] In all her dealings with others as recorded in SSA's reports, Elizabeth showed no ability to think of anyone but herself or to deal with the world as it actually is. The juvenile court recognized this: Elizabeth 'insists on how things should be and throws fits when things don't go the way [she] plans on. The world doesn't work that way. [Elizabeth] wants to manipulate the world around her in order to fit her needs and how she believes Emery should be raised.' A young child cannot be placed in such an environment and emerge unscathed - physically or emotionally. [¶] . . . [¶] [W]e cannot get around the large hole in this record: the absence of a 730 [mental health] evaluation, which Elizabeth was still refusing to undergo at the time of trial. [Citation.] Without such an assessment, it was impossible to determine whether Elizabeth is merely a difficult and unpleasant person with minimal social skills or whether she is someone with serious pathology who could become violent toward or around Emery when stressed or thwarted. A wrong guess - and a guess is what returning Emery to Elizabeth's custody amounted to - could have devastating consequences." (In re Emery G., supra, G055727, pp. 31-33.) We remanded to the juvenile court to hold another disposition hearing, in the main to determine whether Elizabeth's mental state had sufficiently improved in the interim to warrant giving her custody of Emery.
Our misgivings were well founded. Even before we issued our opinion, in July 2018, Emery had been detained again. She was placed elsewhere, and Elizabeth and Evan both received reunification services. Elizabeth's visitation was cut off in November 2019, and the juvenile court terminated Elizabeth's reunification services on December 18, 2019, after 18 months. Evan obtained full custody under a family maintenance plan. On December 5, the court issued a temporary restraining order, including no visitation, to prevent contact between Elizabeth and either Emery or her father after Elizabeth showed up at Evan's work and Emery's school.
Among other indications that Elizabeth still had significant mental problems was her placing a box of cocaine in Emery's backpack before a visit to Evan to get him into trouble and thereby increase her own time with Emery.
On October 9, 2018, the results of Elizabeth's Evidence Code section 730 mental health evaluation were sent to the court. The evaluator interviewed Elizabeth over two days in September 2018 and spoke to 11 people involved in Emery's case, including members of Elizabeth's family, social workers, and psychologists. The results were not encouraging.
The evaluator first noted that Elizabeth had been reported as displaying signs of borderline personality disorder when she was hospitalized in 2017 after threatening to kill herself, the incident that kicked off Emery's case. The evaluator concluded that Elizabeth was diagnosable with "an Other Specified Personality Disorder (301.89), as defined in the DSM-5 Manual, with borderline, narcissistic and antisocial traits." "What has been prominent have been her temper outbursts, her inability to reproach herself constructively, her sense of entitlement and infallibility, her lack of respect/cooperation with others who have thwarted her wishes, and her determination to denigrate and intimidate those same people. This pattern of behavior is attributable to problems of personality, not mood, anxiety, psychoses or other forms of psychiatric problems. Her borderline, narcissistic and antisocial features of personality are evident in: [¶] [Elizabeth's] uncompromising denigration of seemingly everyone whom she felt have at various times or in some way thwarted her: e.g., her father, different social workers . . . , the police officer she broke up with, her previous landlord, various relatives, the [C's], etc. (she has sent me numerous emails and text messages pointing out the harm being done to her daughter at her current placement.) Her denigrations have been hostile, degrading, relentless, often demanding, threatening and ruthless in tone.
"[Elizabeth] was ultimately cooperative with the evaluation procedure. She started out making a number of non-negotiable demands including having her husband in the interview room with her, that I also had to evaluate her daughter as part of this assessment in order to follow APA Guidelines, that I had to conduct interviews with family members she designated, etc. None of these were made in the form of requests or inquiries. [¶] They were made as imperatives, which required mostly unproductive back-and-forth communications, ultimately bringing her attorney and Court into the exchanges, until [Elizabeth] agreed to being interviewed at her attorney's office, on two occasions, without pre-conditions."
". . . [Elizabeth's] seeming inability to accept personal responsibility for any of the difficulties she has encountered as an adult. In her mind, it seems, someone else is always at fault due to their incompetence, malfeasance or ill intent toward her and/or her daughter. She does not seem to have much capacity to call her own judgment into question and learn from [Elizabeth] reacting catastrophically and threatening/contemplating suicide when a relationship breaks up and she feels abandoned. [¶] In total, then, her history shows severe problems of personality that are encompassed within the Other Specified Personality Disorder (301.89) diagnosis, involving borderline, narcissistic, and antisocial traits.
"[¶] . . . [¶]
". . . Among the central imports of her diagnosis being grounded in personality and not a more purely psychiatric disorder is that it has dire implications for any treatment or interventions with her. [¶] A necessary element of successful, psychological interventions in most cases is that the recipient of such services have at least some insight about their need. [Elizabeth] has been consistent in demonstrating that she essentially does not hold herself accountable for any of the hardships she and her daughter have been going through. It follows, then, that she does not see herself in need of 'treatment' and indeed has not fully engaged and cooperated with the programming and psychological services that have been coordinated for her through Social Services. That is likely to continue going forward, given the obdurate nature of her Personality Disorder (301.89). [¶] Her parenting capacities are compromised by this Disorder, to the detriment of Emery. We have indications of this before and after the start of the instant matter in Emery's inconsistent attendance at Montessori, [Elizabeth's] being negligent in not turning in the necessary paperwork for Children's Home Society, her at times cavalier attitude and behavior in leaving Emery to the care of others, her undermining Emery's attempts to establish a relationship with her biological father, etc. The most plausible expectation is that [Elizabeth] will not acknowledge any of these as errors.
"[¶] . . . [¶]
"It is not likely that [Elizabeth] will be cooperative in a conventional psychotherapeutic format where she acknowledges her contributions to her problems and works to overcome them. She does not seem to have much if any of that capacity and externalizes blames for her problems. Therefore, psychological work with her will need to take the form of supervision and guidance, rather than insight or growth-oriented psychotherapy (i.e. more of a probationary/supervisory model than a psychotherapeutic model). [¶] A mental health professional working within the formulation of her diagnosis and case inherent in this report will serve more as an alternate 'ego' or 'coach' than a conventional psychotherapist in the sense of needing to focus on reality-based issues facing her.
"[¶] . . . [¶] Minimizing conflicts between [Elizabeth] and her Service Providers, and bringing the focus back to her responsibilities, and not what she perceives to be the malfeasance of others. [¶] The prognosis is not optimistic, given [Elizabeth's] diagnosis and track-record. Whoever works with her is going to have to be experienced, resolute, have the backing of the Court and be able to withstand her manipulations. The more she focuses exclusively on criticism of those who have worked with and for her, the less progress she is going to make in being the best parent she can for Emery." (Italics added.)
This background informs our analysis of Ethan's case. He was born in April 2020, and Elizabeth's behavior in the hospital alarmed the medical staff. She refused to give her home address or reveal the father's name. When asked about her mental health and past psychiatric hospitalizations, Elizabeth told the staff to speak to her attorney, but refused to sign a release. Elizabeth also tested positive for amphetamines, which result she cryptically attributed to taking Adderall during her pregnancy for her attention-deficit hyperactivity disorder (ADHD).
"Everyone knows," Elizabeth asserted to a social worker, that Adderall will give a positive test for amphetamines. "Not everyone knows that," responded the social worker. They do unless they are from "a third-world country" and are "stupid," Elizabeth rejoined.
The doctors Elizabeth saw for prenatal care told her not to take Adderall while she was pregnant. They recommended another medication. Elizabeth continued to take Adderall.
When interviewed by a social worker on the day after Ethan's birth, Elizabeth denied refusing to give her home address to the hospital staff and asserted the mental health evaluation performed in connection with Emery's case was false. There was nothing wrong with her but ADHD. The person who did the evaluation "was being investigated by the board of psychology." SSA itself was being investigated for "title 31 violations," and County Counsel was being investigated by the state bar. Elizabeth stated she had been "cleared" of all accusations against her, and Emery would be returned to her in a few days, at the next hearing. She refused to allow SSA to see her home unless her attorney was present, and her attorney was too busy. She told the social worker to look up the attorney's telephone number online and refused to continue the interview. Her right to privacy meant she did not have to disclose this information to SSA.
Elizabeth also threatened to sue the hospital for defamation. Threats of lawsuits had been a recurring theme in Emery's case.
Elizabeth took Ethan away from the hospital at midnight that night. Although she had been discharged, the baby had not.
Elizabeth later told SSA that it was "against [her] religion to stay at a hospital for longer than 48 hours."
SSA obtained a warrant for Ethan's detention on April 24, and he was taken to Orangewood. The detention order was issued on April 30, and Ethan was first placed in emergency foster care and then with Elizabeth's aunt M.A. In June, he was placed in non-emergency foster care.
On July 10, 2020, the juvenile court completed the jurisdiction/disposition hearing. It found it had jurisdiction over Ethan and vested custody in SSA. The court held that reunification services need not be provided to Elizabeth under section 361.5, subdivision (b)(10). It set the date for the section 366.26 hearing for October 19. Elizabeth has petitioned for an extraordinary writ.
DISCUSSION
Section 361.5 provides in pertinent part: "(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
Elizabeth's petition does not address the standard of review to be applied to the juvenile court's findings. We review the court's decision to terminate reunification services under section 361.5, subdivision (b)(10), for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) "Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121-1122 (Jennifer S.).)
"The 'reasonable effort[s]' necessary to avoid section 361.5, subdivision (b)(10) bypass are not synonymous with "'cure.'" [Citation.] They must, however, be more than "'lackadaisical or half-hearted.'" [Citation.] Moreover, not every 'effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.' [Citation.]" (Jennifer S., supra, 15 Cal.App.5th at p. 1121.)
Unquestionably, the first condition of section 361.5 applies to Elizabeth. Her reunification services in Emery's case were terminated in November 2019, less than six months before Ethan's birth. The question before us - the one Elizabeth's petition raised - is whether the juvenile court had sufficient evidence to conclude that she had not "subsequently made a reasonable effort to treat the problems that led to the removal of the . . . half-sibling. . . ."
Elizabeth's argument, in essence, is that the juvenile court had insufficient evidence upon which to base its determination she had not made a reasonable effort to treat the problems that led to Emery's removal. She did not argue that notwithstanding her failure to make a reasonable effort, reunification was in Ethan's best interest. (See § 361.5, subd. (c)(2).)
Elizabeth was maintaining as late as May 4, 2020, she was "done with therapy" and there was no proof she had a personality disorder, despite an extensive history of her refusal to take Emery to her court-ordered therapy and her effort to frustrate Emery's relationship with her father. Making sure Emery had therapy and not interfering with her relationship with Evan were two of the conditions under which Elizabeth regained custody in 2017. As we observed in our 2018 opinion, this conduct is in keeping with Elizabeth's perception of Emery as her "property." It is also consistent with her perception that she is fine and everyone else is at fault, another belief exhibited at the beginning of Emery's detention. It confirms the evaluator's conclusion Elizabeth would resist changing her behavior and outlook. This entrenched attitude precludes any effort to treat the problems that led to Emery's removal.
Another way to evaluate whether Elizabeth made a reasonable effort is to look at outcomes. The problems were plainly outlined in our July 2018 opinion in Emery's case and in the subsequent evaluation report of October 2018 - the lying, the belligerence, the threats of harm to self and others, the refusal to take responsibility, the insistence that things be done her way, the constant casting of herself as the victim of ill treatment and malevolent conspiracies. So how did Elizabeth change between 2017, when Emery was removed, and 2020, when Ethan was removed?
The answer is not much, if at all. Elizabeth lied to the court in 2017 - perjured herself, in fact - about the identity of Emery's father. In this case, she had several stories about the identity of Ethan's father in 2020. She told the hospital staff he was a "cop and he is not involved." At the detention hearing in April 2020, she represented that she didn't know who he was. She "decline[d] to state" who he was. In May, she said he was someone living in Florida. The one person it was not was her estranged husband. Her husband also denied paternity and asked to be excluded from the dependency proceedings. A stipulation was filed with the court on June 19 stating that both Elizabeth and her husband denied his paternity of Ethan.
Elizabeth later denied saying this to the hospital staff.
Then, on June 22, 2020, Elizabeth sent an email to her estranged husband's probation officer insisting that her husband was Ethan's father.
Elizabeth continues to maintain that malevolent forces are working against her. She accused the evaluator of sexually assaulting her. One of the social workers on Emery's case was sleeping with Emery's father. The county counsel was under investigation by the bar. Such allegations, and the barrages of emails as the preferred method of communication, the harping upon her "rights," the insulting remarks to the social workers - all of these were features of Elizabeth's conduct in 2017. As far as this record indicates, nothing has changed, despite years of services and numerous therapists and counselors.
This evaluation, it will be recalled, took place in Elizabeth's attorney's office.
In May 2020, Ethan's foster mother told SSA that she was "overwhelmed by the constant calls and texts" from Elizabeth, in addition to the court-mandated six hours of visitation. Elizabeth insisted that she had a "right" to have contact with the foster mother outside of the visits and that she was entitled to daily photos of the baby. --------
In a burst of candor, Elizabeth explained how she approached the world and the outcome she expected. Referring to her efforts to disrupt Emery's relationship with Evan, she told a social worker, "I always get what I want, even if it's the hard way, and I will do the same this time." This is the attitude that caused Emery's detention and, ultimately, her placement out of Elizabeth's custody. Judging from the record before us, Elizabeth still adheres to this formula, and it will benefit Ethan no more than it did Emery. The court had sufficient evidence upon which to base its decision to bypass reunification services for Elizabeth.
DISPOSITION
The petition for extraordinary writ is denied.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.