Opinion
B162844.
11-12-2003
In re JESUS M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KATHERINE Y., Defendant and Appellant.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, Kim Nemoy, Deputy County Counsel for Plaintiff and Respondent.
Katherine Y., the legal guardian of Jesus M. appeals the dependency courts order of January 2, 2003, terminating her guardianship. Because the courts finding that appellants failure to administer a psychotropic medication to Jesus endangered his physical and mental well-being was not supported by the evidence and because its later finding that termination of the guardianship would be in Jesuss best interests was not made under a clear and convincing evidentiary standard, we reverse and remand for rehearing.
FACTUAL AND PROCEDURAL BACKGROUND
Jesus was placed with appellant within days of his birth. He had been removed from his parents custody due to drug use and mental illness on the part of his birth mother. Appellant was appointed the legal guardian in 1990, at the termination of a prior dependency court proceeding against the parents which is not in our record.
First Petition
In June 1997, when Jesus was eight, the Department of Children and Family services ("DCFS") filed a petition under section 300 of the Welfare and Institutions Code stating that appellant had inappropriately disciplined Jesus with a belt and that her adult son had knocked his head against the head of another child. Appellant pleaded no contest to the petition. Appellant was ordered to complete a parenting class and individual counseling to address issues of inappropriate physical discipline.
Unless otherwise indicated, all statutory references herein are to the Welfare and Institutions Code.
At the time, Jesus was taking no medication. Appellant reported that he had been prescribed various medications in the past, including Cylert and Clonidine, but she did not give the medication to him because she thought it was too strong and caused Jesus to fall asleep at school. He suffered from physical problems, including hearing loss, eczema, and a tendency to "pass out." He had problems in school because of aggressive behavior, but did well academically. He had been referred to counseling due to frequent fighting. An initial psychological examination showed no mental problems other than "anxiety," "aggressive tendencies," and "a tendency to focus on somatic symptoms." The examining psychologist made some commonsense recommendations to improve his behavior (e.g., "step-by-step instructions," "frequent praise," "structure and consistency both at home and at school," and "clear guidelines about expected behavior"). His physician diagnosed "ADHD" and "oppositional defiant" disorder.
Appellant was given family reunification services and unmonitored visits. The goal was for her to learn parenting skills so that she could become Jesuss adoptive mother.
Jesus was initially placed with a foster family. His behavior both at school and home deteriorated so badly, he was soon hospitalized. At that time, he was diagnosed with major depression with "psychotic features" and treated with antidepressant and antipsychotic medication and placed in a group home. By January 1998, DCFS sought return to appellants custody due to the "significant progress" she was making in counseling. In December 1998, DCFS reported that Jesus was doing well in his placement in appellants home, which was described as a loving, nurturing, and stable environment. In January 1999, DCFS recommended that the court consider termination of Jesuss natural mothers parental rights so that appellant could adopt him. Jesus was taking psychotropic medication, and the caseworkers report stated that if he missed taking it, he became fearful and violent. At that time, the report stated: "Minor, has no one known that is willing to care for him with his chronic behavior problems. . . . Minor, Jesus is doing better in the care of [appellant] than he would at any other placement."
Parental rights were terminated in May 1999.
In January 2000, Jesus, still in appellants care, began developing problems at school. In October 1999, he was prescribed psychotropic medication, Risperdal, to be taken daily. In July, his behavior at school deteriorated further. He attacked other children, used profanity, and refused to follow directions. Appellants grandchildren had been placed with her, and Jesus fought with them as well. Appellant was about to be evicted from her home.
In January 2001, appellant was trying to find housing while staying with her son, along with Jesus and appellants grandchildren. Jesus was said to be "doing well under the circumstances."
Second Petition (Supplemental)
In June 2001, Jesus was detained once again and placed in a group home. DCFS filed a section 387 supplemental petition alleging that appellant had a "limited ability" to deal with Jesuss "severe behavior and emotional problems"; failed to administer prescription medication; and failed to ensure that Jesus attended school on a regular basis. It was reported that appellant was not administering the prescribed psychotropic medication and had withdrawn him from therapy. At the same time, there was reference to the fact that there was "no current Court authorization" for Jesus to receive psychotropic medication. Jesus had been asked to leave his school and was becoming physically violent at home, punching a hole in the wall and ripping vertical blinds when he was angry. Even before being asked to leave, he missed a number of days due to suspension and refusal to attend. He complained of stomachaches and muscle spasms in his legs. Appellant did not promptly seek medical attention for those complaints, and had not been taking him to see the psychiatric counselor who prescribed medication since September 2000. Another counselor was terminated in early 2001 because appellant did not feel she was being supported in a decision to confiscate condoms found in Jesuss possession. The caseworker reported an incident in which Jesus refused to come out of his room to speak to the caseworker until appellant paid him a dollar.
At the detention hearing, the court ordered reunification services for appellant, and a psychiatric evaluation to determine whether Jesus needed psychotropic medication.
Appellant contested adjudication of the 387 supplemental petition. After an evidentiary hearing held in September 2001, the court found that appellant did not have "control" over Jesus. The court expressed particular concern about the failure to give medication consistently. The court stated that "perhaps the school issue standing by itself may not be sufficient to sustain the petition," but "it fits into a broader pattern of just another example in another area of the minors life and functioning of where hes just out of control." In its written order, the court found pursuant to Welfare and Institutions Code section 360 that there was clear and convincing evidence that substantial danger existed to the physical health of the minor and/or that he was suffering severe emotional damage and there was no reasonable means to protect him without removal from appellants physical custody and that reasonable services had been made to prevent or eliminate the need for removal. Although DCFS had not recommended reunification services, the court ordered services to include individual counseling, conjoint counseling, and a 730 evaluation.
A psychological evaluation, conducted in September 2001, recommended conjoint therapy for appellant and Jesus and that reunification not occur because of appellants inability to control Jesus or meet his "special needs." The psychologist recommended that reunification be considered when three conditions were met: (1) appellant obtained appropriate housing; (2) Jesus had a psychiatric evaluation to determine the appropriateness of psychotropic medication; and (3) appellants ability to provide for Jesuss needs be evaluated through visitation, at which time she would be expected to dispense any prescribed medication. A psychiatric examination, concluded shortly thereafter, found no evidence of serious mental illness such as psychosis or schizophrenia, but concluded that Jesuss behavior problems, impulse control problems, and attention problems "could" be evidence of a "depressive disorder." The psychiatrist recommended Clonidine, which was known to improve aggressive behavior and impulse control, and could possibly also benefit attention deficit disorder ("ADD").
In February 2002, both DCFS and appellant submitted petitions to modify under section 388. Appellants petition, seeking the return of Jesus, was denied summarily; DCFSs petition was approved for hearing. In the petition, DCFS recommended termination of appellants guardianship because "Jesus exhibited increasingly more problematic aggressive behaviors and an inability to appropriately resolve his anger"; "[appellant] has been unable to maintain stable housing since she was evicted from her home"; "[appellant] has not sought proper medical and/or psychiatric treatment for Jesus in the past [nor] followed the recommendations provided by medical doctors"; "[appellant] has not ensured that Jesus consistently attended school"; and "[appellant] has been unable to have Jesus maintain a stable school placement." The petition alleged that "[s]ince his removal from [appellants] care, Jesus problematic behaviors have decreased" and "been consistently maintained without the use of psychotropic medication." In a follow-up report, the case worker stated that Jesuss problematic behaviors had decreased at the group home without the use of psychotropic medication. Despite the psychiatric evaluation, because "Jesus had settled down and was behaving within acceptable limits," the prescribed medication was not being administered. The caseworker stated she could not determine whether appellant was in compliance with the case plan because appellant ordered the caseworker to "never return" to her home.
By the time of the May 2002 interim review report, appellant had obtained housing, and the experience in group housing confirmed that Jesus did not need psychotropic medicine to improve his behavior. Nevertheless, the caseworker concluded that reunification should not be permitted because appellant had "demonstrated poor judgment and lack of awareness of Jesus psychological needs in that she has discussed inappropriate case-related information with Jesus" which "might compromise Jesus relationship with [the caseworker]." The caseworker stated that "appellants failure to cooperate with DCFS is indicative of a pattern which causes a detriment to Jesus." The report accused appellant of being "preoccupied" with injustices done to her by DCFS rather than "considering her role in Jesus removal from her care" and of "continu[ing] to deny having any responsibility for having Jesus removed from her care in 1997 and 2001." The report stated that appellants past participation in therapy had been "insufficient to resolve the issues that brought the family to the Courts attention as Jesus was removed again in 2001 for many of the same issues as before" and expressed the opinion that "[i]t is unlikely that additional services will cause this situation to resolve."
Despite the opinion expressed by the caseworker, the court continued to order visitation, conjoint counseling, and DCFS approved individual counseling for appellant.
In the September 2002 status review report, the caseworker reported that Jesus was making "a positive transition into the group home" although at the same time he "continue[d] to have problems with follow[ing] directions, fighting, and respecting staff." It was reported that Jesus fought, yelled and told staff that he did not have to listen to them because "they are not his parents." In addition, his citizenship grades at school were "negative." In fact, although the caseworker barely mentioned the incident in the report, Jesus had been arrested by school police for battery in June and was on probation.
The September 2002 report stated that Jesus was participating in therapy sessions, including conjoint therapy with appellant. Appellant was also visiting Jesus regularly, but the caseworker did not count that as a positive because "the other residences [sic] in the home are jealous of the affection Jesus and his legal guardian show each other" and "Jesus does not listen to staff directions when legal guardian is present." Appellant met with the caseworker, but the caseworker placed a negative slant on that as well stating that appellants belief she was protecting Jesus from being over medicated and her perception that she was being treated unfairly as proof that she was unable to resolve the problems that brought Jesus to the attention of the court. Because of appellants refusal to "accept[] or acknowledge that she was neglecting Jesus medical needs by lowering or withholding his psychotropic medication" and because she had refused to sign a release of information as to her individual therapy, the caseworker recommended termination of reunification services and the guardianship.
The quarterly report from the group home for the period ending September 2002 stated that Jesus "bull[ied] his peers" and "continue[d] to . . . demonstrat[e] oppositional defiant behavior at the group home and at school towards his teachers and staff" but had "improved in disrespecting staff." He continually pressed to be allowed to return to appellants custody. He was still not receiving psychotropic medication.
The conjoint therapist recommended "structured trial weekend visits with [appellant]." The therapist expressed concern that "Jesus does not have an[y] encouragement and feels that he will be probably not be able to go home with [appellant] and therefore is acting up in the home to show his dissatisfaction."
In the October 2002 interim review report, the caseworker continued to fault appellant for her belief that "minor does not require medication" and for her inability to "understand minors emotional needs and educational needs." A second report stated that a possible adoption match had been identified for Jesus.
On October 17, 2002, the court found by a preponderance of the evidence that reasonable efforts had been made to reunite Jesus and appellant and that it would be detrimental to Jesus to reunite them, and accordingly terminated reunification services.
Although appellant noticed an appeal from the October 17 order, there was no argument concerning that order in the brief.
Section 388 Petition
Once reunification was terminated, the court approved a new DCFS section 388 petition for hearing. The requested modification was "[t]ermination of the legal guardianship" based on appellant being "unwilling and unable to address minors needs." At the hearing on January 2, 2003, DCFS stated that a prospective adoptive parent had been located. The court found by preponderance of the evidence that it was in the best interest of the minor that the modification be granted and the guardianship be terminated. Appeal was filed from that order as well.
DISCUSSION
Petitions for modification of juvenile court orders adopting a plan of guardianship for a dependent child are governed by section 366.3. Under subdivision (b), "[p]rior to the hearing on a petition to terminate legal guardianship pursuant to this paragraph, the court shall order the county department of social services or welfare department to prepare a report, for the courts consideration, that shall include an evaluation of whether the child could safely remain in the legal guardians home, without terminating the legal guardianship, if services were provided to the child or legal guardian. If applicable, the report shall also identify recommended services to maintain the legal guardianship and set forth a plan for providing those services."
In the case of In re Alicia O. (1995) 33 Cal.App.4th 176, this court held that "the procedure to terminate a guardianship does not mandate reunification efforts" and noted that the guardians "fail[ed] to make any showing that the absence of such services in the statutory scheme governing termination violates any . . . constitutional right." (Id. at pp. 182, 183 & fn. 5.) We also held that DCFS was "required to prove by clear and convincing evidence that termination of the guardianship was in [the minors] best interest." (Id. at p. 183; accord In re Michael D. (1996) 51 Cal.App.4th 1074, 1085 ["When the government intervenes and petitions to remove a child from his or her home, the government must prove the requisite detrimental conditions by clear and convincing evidence. (§ 361, subd. (b).) If the childs exclusive residence is in the home of his or her legal guardian at the time the initial section 300 petition is filed, then again the government is required to prove the child would suffer detriment by clear and convincing evidence if permitted to remain in the legal guardians home"].)
In this case, DCFS proceeded by way of a section 300 original petition and section 387 supplemental petition. At a disposition hearing, the trial court found by clear and convincing evidence under section 361 that removal from appellants home was necessary and, over DCFSs recommendation to the contrary, ordered reunification services to be provided. Later, when asked to formally terminate guardianship by DCFSs petition for modification, the court found by "preponderance of the evidence" that the petition be granted and guardianship be terminated.
In appropriate circumstances, the finding made earlier at a disposititional hearing under section 361, subdivision (c) could substitute for the finding required by section 366.3. (In re Alicia O., supra, 33 Cal.App.4th at p. 183.) In the present case, however, later developments undermined the courts September 2001 factual findings that clear and convincing evidence justified removal. The court relied almost exclusively on the fact that appellant failed to administer prescribed psychotropic medication to Jesus. However, the psychiatric examination conducted at the behest of the court found no evidence of serious mental illness such as psychosis or schizophrenia, only impulse control problems, attention problems, and a possible depressive disorder. The prescription was changed from Risperdal, an anti-psychotic medication used to treat schizophrenia and psychotic disorders, to Clonidine, a treatment for ADD. Moreover, the group home into which Jesus was placed decided his behavior could be controlled without resort to medication. There is no evidence that Jesus was ever given any medication after his removal from appellants home. On these facts, the finding that appellant caused substantial danger to Jesuss physical or mental health because she failed to administer Risperdal is not supported.
Additional evidence was presented at the hearing on the section 388 petition to support removal from appellants custody and termination of the guardianship. DCFS stressed appellants failure to attend individual counseling, one of the reunification services ordered by the court. The issue at a hearing on a petition to terminate guardianship is not whether the guardian successfully complied with a reunification plan. The issue is solely one of whether "termination of the guardianship [is] in [the minors] best interest." (In re Alicia O., supra, 33 Cal.App.4th at p. 183.) The focus should have been on whether Jesus was better off with appellant or whether another available option was superior. We note that the court did state at the hearing that the best interests of the child required termination of the guardianship. But the finding was made by preponderance of the evidence. The only finding made by clear and convincing evidence to justify termination of the guardianship and removal of Jesus from appellants home was that Jesus was jeopardized by appellants failure to administer psychotropic drugs, and that finding was not supported.
The failure of the court to apply the appropriate standard to the evidence before it cannot be seen as harmless error. The evidence concerning whether Jesus was better off with appellant or in the group home was conflicting. His behavior did not improve dramatically as a result of the change, and in some ways it deteriorated. At one point, his therapist blamed the deterioration, at least in part, on his lack of hope of ever being returned to appellant. In addition, Jesus continually expressed love for appellant and a desire to return to his "granny." On remand, the court should focus on whether Jesus should nevertheless remain in the group home because that is where his best interests lie. Appellants failure to improve her parenting skills due to refusal to follow DCFS recommendations concerning parenting classes and individual counseling may be considered, but should not be the determinative factor.
DCFS also contends that the existence of a potential adoptive home justified termination of the guardianship. Section 366.3, subdivision (c) provides: "If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child." While DCFS several times indicated there were hopeful indications that an adoptive family had been found, there was no hearing on this question or formal finding by the court. On remand, the court will be able to determine whether DCFSs hopes have been realized and whether adoption should be the permanent plan.
DISPOSITION
The order terminating the guardianship is reversed and the matter remanded for further proceedings.
We concur: VOGEL (C.S.), P.J. EPSTEIN, J.