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In re Amber L.

California Court of Appeals, Fourth District, Third Division
Feb 17, 2011
No. G044051 (Cal. Ct. App. Feb. 17, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a post judgment order of the Superior Court of Orange County No. DP019580, Caryl Lee, Judge.

Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Deputy County Counsel for Plaintiff and Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for the Minor.


OPINION

IKOLA, J.

The juvenile court limited Sally L.’s rights during the next individual education plan (IEP) period to direct the education of Amber, and appointed a court appointed special advocate (CASA) as the responsible adult for Amber’s education. Mother argues the court abused its discretion by limiting her educational rights. We affirm the court’s postjudgment order.

FACTS

In a March 2010 petition under Welfare and Institutions Code section 300, Orange County Social Services Agency (SSA) alleged mother was unable to care for then 14-year-old Amber because Amber had refused to return to mother’s home after being ejected from the Huntington Beach Youth Shelter due to disruptive behavior. The petition further alleged Amber had a “history of mental health issues and out of control and destructive behaviors, ” and that mother and Amber had a “conflictual relationship so that mother is unable or unwilling to maintain the child in the home.” The juvenile court ordered Amber detained and she was placed at Orangewood Children’s Home (Orangewood).

All statutory references are to the Welfare and Institutions Code.

Previously, Amber had lived with her brother, her sister, and mother in an upscale neighborhood. The children’s father (mother’s husband) had died of cancer when Amber was two years old. According to mother, father’s family has a history of mental illness. Mother works (sometimes until late at night) in order to provide a good life for her family and is active in her community and church. Social worker Susan Azadi reported that mother seemed “to be doing everything to get the services Amber need[ed].”

Prior to Amber’s detention, life in the family home was troubled. In order to protect themselves from Amber, the other family members had locks on their bedroom doors. Mother believed Amber posed a risk to her other children. In an incident involving Amber’s keeping a saw (apparently stolen from a neighbor’s garage) under her bed, Amber allegedly shoved her sister against a wall and hit and kicked her and told mother, “Die bitch.” In connection with that investigation, a probation officer reported that Amber was “completely out of control with her mother in [the officer’s] presence.” The probation officer believed she had never “seen a real case of [oppositional defiant disorder] until” meeting Amber.

Amber alleged the problems began two years earlier when mother became friends with neighbors who were alcoholics. Amber claimed mother drinks and becomes intoxicated every day. Amber accused mother of physically abusing her, but also stated the allegation was not true. She complained that mother placed her in special education classes and called Amber names like “psychotic.”

Amber’s siblings denied any abuse or neglect by mother or that she drinks and drives with them in the car. Mother admitted drinking one to two glasses of wine a night.

A 20-year-old neighbor, had heard Amber yell at mother, had seen mother “come home really, really drunk before, ” and did not think the home atmosphere seemed positive. Amber’s social worker, Curtis Vaughn, opined that this information from the neighbor was “the most revealing” in the case. At trial, however, Vaughn admitted he allowed Amber to phone the neighbor from Orangewood and that he (Vaughn) was aware the neighbor had previously taken Amber and her brother from mother’s home one night, causing Amber and her brother to receive police citations for violating curfew.

Dr. Sandra Hah, Amber’s psychiatrist in late 2009, diagnosed her with depression and oppositional defiant disorder. Dr. Hah believed Amber would “benefit from the highly structured routine and supportive environment of a residential treatment center” and needs “a high level of accountability, strict rules and group and individual therapies.” In June 2010, Dr. Hah told social worker Vaughn that mother has always had “her own agenda” to have Amber placed in a residential program.

In middle school, Amber was a good student and received good grades. But she had a record of disciplinary infractions, including hitting other students with her backpack, so that she was forbidden to carry a backpack on campus. As of April 2010, Amber’s grade point average on school transcripts was 3.5.

Amber was eligible for special education services due to an emotional disturbance disability. In connection with Amber’s special education plan, Dr. Sylvia Cote completed an Assembly Bill No. 3632 (1983-1984 Reg. Sess.) assessment of her. Dr. Cote’s clinical summary stated Amber presented a well-documented history of conflict with mother. “Those conflicts are magnified by Amber’s tendencies to externalize blame. Amber has made allegations of neglect and physical abuse by her mother, all of which have been unfounded. Amber also presents a long history of symptoms related to depression, which she denies. She has been hospitalized for danger to self/others three times in the last year.... She is described as manipulative, volatile, aggressive, sexually promiscuous, and hyperactive. She has run away on multiple occasions when upset. She becomes verbally and/or physically aggressive with others, especially her mother and siblings, when she does not get her way. She has been observed to hurt the family dog and students on school campus when upset. Years of outpatient mental health services, including psychiatric consultation, have not produced notable improvement, due in part to Amber’s resistance to take medication as prescribed and also due to her fear of trusting. Amber is at high risk of developing substance abuse problems, more severe mental health issues if left untreated, and legal problems. She is at risk of being a danger to self, unless she accepts more support.”

“‘“A[ssembly]B[ill No.] 3632” refers to the adoption of what is now chapter 26.5 of division 7 of title I of the Government Code, section 7570 et seq., entitled “‘Interagency Responsibilities for Providing Services to Children With Disabilities.”’ [Citation.] ‘AB 3632’ is the name commonly used for the program setting forth interagency responsibilities for providing services to handicapped children.’” (In re R.W. (2009) 172 Cal.App.4th 1268, 1273, fn. 2.)

Dr. Cote recommended residential placement as a setting where Amber’s mental health issues could be safely addressed. This placement was approved by Amber’s school district. Amber’s IEP team authorized SSA to search for a residential placement. Based on this search, SSA determined that two California facilities would not accept Amber, but three out-of-state facilities had accepted the referral. Children and Youth Services (CYS) recommended Yellowstone Boys and Girls Ranch in Montana as an appropriate residential placement for Amber.

In May 2010, Amber’s counsel moved to have the Capistrano Unified School District and the Orange County Department of Health joined as parties to the juvenile court proceedings, alleging they had failed to provide Amber with the least restrictive educational placement.

Also, in May 2010, an Orangewood group counselor reported Amber “has off and on good days, ” had not been in any physical altercations, and had not tried to run away.

Social worker Vaughn believed placement of Amber in an out-of-state locked facility was “over-kill.”

That same month, mother dropped off two photocopied photographs of mother and Amber’s siblings at Orangewood for Amber. On one photograph, mother had written: “Where’s Amber? Amber, you are missing from this picture - [your sister’s] graduation picture. Please congratulate her - [Your sister] will be attending Pepperdine University, Malibu, in the Fall 2010! We miss you! [With a heart for the dot.]” On the other photograph, mother had written: “Amber. We love and miss you dearly. I believe this program at Yellowstone Ranch will be fabulous for your healing and growth. I realize you have experienced much loss. A foster family is not the answer because no one... will love you like we do.” “Your family, mom, [brother], [sister].” When Amber described these photographs and messages to social worker Vaughn, Amber was sobbing and barely able to speak. Vaughn believed mother’s action had been “just plain mean.”

On June 17, 2010, Amber’s counsel asked the court to limit mother’s educational rights and to appoint a CASA for Amber.

Social worker Vaughn told Amber’s IEP team that multi-transitional foster care (MTFC) was an option for Amber. MTFC involves a “structured foster home with parents trained in behavior modification, point system, weekly therapy for both mother and minor (family therapy when appropriate), Therapeutic Behavior Specialist (TBS) coach, wraparound services, team discussion of case weekly, daily calls to foster parents regarding minor’s behaviors and weekly updates to the social worker.” Also, the MTFC team would work closely with Amber’s IEP team concerning her education. Mother was strongly opposed to foster care for Amber.

At trial, Dr. Cote testified she spent a total of an hour and a half with Amber at Orangewood. Dr. Cote’s role under the AB 3632 program is to assess whether a child should stay at home to benefit from special education or be placed in a residential facility. Dr. Cote may consider only those two options, not foster care. Dr. Cote was familiar with Yellowstone Boys and Girls Ranch in Montana, felt its staff was highly qualified, and did not believe Amber would suffer a detriment by being with the other children placed there. Yellowstone would offer Amber many services, including special education and mental health services and therapy. Yellowstone is a locked facility, whereas California facilities are not. Based on Amber’s improvement in the restrictive environment of Orangewood, Dr. Cote believed she was a good candidate for placement in a structured environment in a California facility. The IEP team had reopened the search for a residential facility in California for Amber

Dr. Cote continued to recommend a residential facility placement for Amber partially because the school district (based on reports of school psychologists and teachers) believed it could not meet Amber’s social or emotional needs in her current setting, due to Amber’s disruptive and provocative behavior in the classroom and because school personnel were spending up to 50 percent of the school day one-on-one with Amber to help her finish her school work. Amber required a minimum of three hours of one-to-one support a day; she would require even more support in high school. Amber’s grades had dropped to B’s and these were achieved only with extensive support from school personnel. Amber alienated peers and sought inappropriate attention from males.

In a written report, Dr. Azahar Lopez, a psychologist, stated Amber had responded well to the Orangewood program and had no incidents of serious behavior problems or aggression. Amber had, however, pierced herself without permission. The Orangewood staff would no longer meet with her alone “due to her history of making up stories about what staff did or said to her.” She “continued to burn her friendships” due to manipulation, poor boundaries, and lying or distorting things, and had an inappropriate tendency to behave flirtatiously toward male staff. Dr. Lopez believed Amber’s “ability to function in a less restrictive setting is likely to depend on the ability and willingness of her caretakers to actively work with [her] on addressing her interpersonal difficulties, manipulativeness and anxiety.”

At trial, Dr. Lopez testified she prefers for a child to be placed in a family environment as opposed to an institutional setting, but stressed Amber needs to be with people who are very aware of her needs and are patient and committed in working with her. In Dr. Lopez’s experience, children placed in institutional settings usually demonstrate more severe problems than Amber currently manifests. In addition, placing Amber with children more troubled than her could be detrimental to Amber.

Mother testified she had researched Yellowstone and had phoned them many times. She liked their model of dealing with oppositional defiance and mood disorder. Yellowstone had a full psychiatric team, offered year-round education with highly qualified teachers, and helped children deal with social, emotional and behavioral issues. Mother had given Amber the family photographs to tell her the family loves her. Mother said if the court allowed Amber to come home, mother would send her to a facility because of Amber’s psychological and emotional behavioral issues and the risk Amber would run away. Mother noted Amber once ran away from a youth shelter. Mother did not believe multi-treatment foster care with a husband and wife team was appropriate for Amber because of the elopement risk, the uncertainty whether a local school was prepared to meet her needs, and the possibility Amber might make false accusations against the male caretaker. In September and November of 2009, Amber had made threats to harm two other students. In addition, at a football game, Amber sent a text with sexual content about a boy to a large group of recipients; the boy’s mother threatened to sue mother if it ever happened again.

Social worker Vaughn testified that during the three months he has known Amber, she has “never been aggressive or flippant or sassy or out of control at any point” when speaking to him. He noted she is needy and has poor boundaries, but is friendly and forthcoming and “more of a typical teen girl.” Vaughn admitted he had told Amber that she is his “kid now.”

Amber testified she felt the photographs from mother were uncalled for, thrown in her face, and hurtful. She denied that she required three hours of one-on-one attention during the school day. She denied acting flirtatiously. As to the text sent at the football game, Amber claimed to have been falsely blamed by another girl. Amber did not want to be placed at Yellowstone. She wanted a chance to be in a foster home and to have room for growth.

The court found the relationship between mother and Amber was toxic. The court believed an out-of-state placement was unreasonable at this time. The court found Dr. Cote’s opinion was flawed because Cote could only consider two options (home or residential placement) and the resulting jump to residential placement was inappropriate for a child who had only recently been placed in special education classes. The court also believed there was no hope for reunifying the family if Amber were placed out of state. The court found Amber is doing “really well” at Orangewood. The court commended mother for trying “a lot of things, ” but noted the problem was “just too big.” The court declared Amber a dependent child, ordered her detained at Orangewood or other suitable facility pending placement, limited mother’s educational rights throughout the next IEP period, and appointed a CASA for Amber. In declaring Amber a dependent child, the court added and found true an allegation to the section 300 petition stating that mother caused Amber serious emotional damage by dropping off the family photograph from her sister’s graduation at Orangewood.

DISCUSSION

Mother contends the court abused its discretion by limiting her right to direct Amber’s education because she has always demonstrated good judgment and ability in making educational decisions for Amber, and remained willing and able to do so. She further argues that once the court ordered Amber’s placement in a foster home (such that an out-of-state placement was no longer an option), there was no need to limit her educational rights.

Under section 245.5, a juvenile court is empowered to direct orders (including educational orders) to the parent of a dependent child of the court, as the court deems necessary for the child’s best interests. Several other statutes expressly authorize a court to limit a parent’s right to make educational decisions for a dependent child of the court. (§§ 361, subd. (a) [dependency cases in general], 366, subd. (a)(1)(C) [child in foster care prior to § 366.26 hearing], 366.3 [child in foster care after adoption selected as permanent plan].) Under sections 361 and 366 (which are potentially applicable here), a court’s orders limiting a parent’s right to make educational decisions “may not exceed those necessary to protect the child.” (§§ 361, subd. (a), 366, subd. (a)(1)(C).) Section 361, subdivision (a) further provides: “All educational and school placement decisions shall seek to ensure that the child is in the least restrictive educational programs and has access to the academic resources, services, and extracurricular and enrichment activities that are available to all pupils. In all instances, educational and school placement decisions shall be based on the best interests of the child.”

We apply the abuse of discretion standard to the court’s order limiting mother’s educational rights(In re R.W., supra, 172 Cal.App.4th at p. 1277), asking “‘whether the trial court exceeded the bounds of reason’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319). It did not. Ample evidence supports the court’s decision. The court limited mother’s educational rights only for the next IEP period. The court stated it could not predict the future, but that Amber “has asked for a chance.” The court felt there would be no chance for family reunification if Amber were placed out of state. The court pointed to Dr. Lopez’s testimony that Amber does not suffer from symptoms as severe as the general population at residential facilities and that Amber’s placement in one could be detrimental to her. The court stated that Amber has issues, but her grades are good and her behavior is pretty good.

The court’s order limiting mother’s educational rights was necessary because mother is adamantly opposed to Amber’s placement in foster care. Mother questioned whether local education was available for Amber. Her bias was likely to affect any educational decisions she made for Amber. At this point in time, pending the outcome of the juvenile court’s potential placement of Amber in foster care, mother is not well suited to make educational decisions in Amber’s best interest. The court limited the duration of its order to the next IEP period. The court did not abuse its discretion by giving Amber a chance and by following the statutory mandate that Amber be placed in the least restrictive educational program in her best interests.

DISPOSITION

The postjudgment order limiting mother’s educational rights and appointing the CASA as Amber’s educational representative is affirmed.

WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.


Summaries of

In re Amber L.

California Court of Appeals, Fourth District, Third Division
Feb 17, 2011
No. G044051 (Cal. Ct. App. Feb. 17, 2011)
Case details for

In re Amber L.

Case Details

Full title:In re AMBER L., a Person Coming Under the Juvenile Court Law. ORANGE…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 17, 2011

Citations

No. G044051 (Cal. Ct. App. Feb. 17, 2011)