Opinion
F050182
12-13-2006
In re MARISSA W., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. ANN W., Defendant and Appellant.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
Ann W. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter Marissa. Appellant challenges a reasonable services finding which the trial court made in the process of terminating reunification efforts and setting the section 366.26 hearing. Such an issue ordinarily must be raised by way of writ petition (§ 366.26, subd. (l); Cal. Rules of Court, rule 38). However, appellant contends she did not receive proper notice of her writ remedy and therefore is entitled to raise the reasonable services issue in this appeal. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.) On review, we will affirm. Although we agree with appellant on the notice issue, we conclude there was sufficient evidence to support the reasonable services finding.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Within days of Marissas birth in June 2005, respondent Stanislaus County Community Services Agency (Agency) received a referral. According to the referral, appellant admitted to using marijuana and methamphetamine during her pregnancy and had been diagnosed previously with post-traumatic stress disorder and depression.
The Agency was already familiar with appellant. She herself had been a dependent child apparently from the age of five until her 18th birthday. Her substance abuse started at the age of seven. As an adolescent, she became rebellious and was diagnosed in 1993 with Reactive Attachment Disorder. After appellant reached majority, the Agency and the mental health department continued to provide her with services.
In 2000, appellant gave birth to a daughter Michelle who, by 2002, became a dependent child based on appellants substance abuse, mental health issues, unstable housing and history of leaving the child with inappropriate caretakers. At that point, appellants mental health issues included depression and suicidal ideation.
Prior to Michelles dependency, appellant was repeatedly offered services. Although she accepted voluntary services from the Family Maintenance and the Families in Partnership programs, she was nonetheless noncompliant. Even after the court removed Michelle from appellants custody and offered her reunification services, appellant still did not complete her service plan. In 2003, the juvenile court terminated appellants rights to Michelle.
The following year, in February 2004, appellant was hospitalized in a mental health unit. Later that year, appellant was arrested after a physical altercation with the father of Marissa. The two apparently shared an abusive relationship. In April 2005, appellant was hospitalized for depression. It was during that hospitalization appellant learned of her pregnancy with Marissa. Appellant thereafter entered an outpatient drug treatment program. Appellant reported some depression to the Agency following Marissas birth which she related to the childs birth and the referral.
Based on the foregoing, the Agency detained Marissa and initiated the underlying proceedings. It also recommended that the court remove Marissa from appellants custody and order reunification services for her. Despite the termination of her rights as to Michelle, the Agency explained appellants recent efforts to correct the problems, which led to her older childs removal, were reasonable. (See § 361.5, subd. (b)(ll).)
After Marissas birth, appellant entered the Redwood Family Center, a clean and sober living environment and was cooperative. She was also receiving services through the First Step Program and was reportedly "attending Parents United for one month to address her childhood molestation issues." On the other hand, the Agency was concerned that appellant did not believe she had mental health issues to be addressed.
Consequently, the Agency referred her for a mental health assessment. The assessment was scheduled for July 14, 2005, the day before the combined jurisdictional/dispositional hearing. Relevant to this appeal, the Agency recommended the court order as part of the reunification services any counseling and/or medication recommended as a result of the mental health assessment.
At the jurisdictional/dispositional hearing, the court exercised its dependency jurisdiction (§ 300, subds. (b), (g) & (j)) over Marissa, removed her from parental custody and ordered reunification services as recommended by the Agency. The court advised appellant of her appellate rights and accommodated appellant by setting an interim, two-month review hearing for early September 2005 in order to evaluate her progress.
Apparently unbeknownst to the Agency and the court, appellants mental health assessment of the preceding day resulted in a recommendation for no additional mental health services at that time, other than to continue counseling at the First Step Program. Appellant was apparently aware of the results of the assessment; however, she did not challenge it. She also did not appeal from the courts jurisdictional/dispositional findings and orders.
It appears from the record that the First Step Program provides a variety of services including outpatient substance abuse treatment, parenting classes, and counseling.
Leading up to the interim review hearing, appellant had entered a residential drug treatment program and was compliant with program requirements. She was also visiting Marissa and would be starting a new parenting program. However, she had not demonstrated significant progress in her case plan objectives.
In its Interim Review Report prepared in late August, the Agency explained a possible barrier to appellants meeting those objectives could be her mental health issues. Her social worker was concerned, despite the results of the earlier mental health assessment, about appellants mental health. The social worker cited in this regard appellants mental health history and service provider observations. Her counselor at First Step claimed appellant demonstrated paranoid behavior and was unwilling to share personal pertinent issues related to treatment. In addition, appellant was sharing false information with her service providers which misled staff in terms of what services to provide. Staff stated appellant could present well for short periods of time and recommended that a more thorough mental health assessment or psychological evaluation be conducted. Consequently, the Agency asked the court to order a clinical assessment to address appellants mental health issues.
In early September, the Agency filed an additional information report. In it, the Agency described that the childs father had made contact with appellant despite a stay-away and no-contact restraining order. Appellant who had secured the restraining order, invited the father to join her in visiting Marissa and to attend a family group session at the residential treatment program. When the program and the Agency advised against this on September 6, appellant disagreed and became frustrated. Later that same day, appellant left the program with the father. The following day she refused any type of treatment program. In her view, she had complied with the reunification plan because she was staying clean.
Following the interim review, the court found appellant had made minimal progress with her service plan and ordered the clinical assessment recommended by the Agency. In fact, appellant had her initial intake for the assessment two weeks before the courts order. The social worker made the actual referral the same day as the courts order.
Apparently in order to do a thorough evaluation, the clinician scheduled the assessment for multiple sessions. Appellant attended the first two sessions in late September and early October. However, she cancelled her next scheduled appointment and was a "no show" at yet two other scheduled sessions. As a result, her evaluation was on hold.
In addition, since the interim review, appellant had been in and out of inpatient drug treatment. While she had an intake appointment to reenter inpatient treatment soon after the interim review hearing, she twice postponed the appointment and was later adamant that she did not need such services. As of mid-October, she admitted she recently used meth on more than one occasion and wished to enter treatment. While she soon reentered inpatient treatment, she left the program again on November 8. She was offered the chance to reenter yet again, but refused. In addition, appellants attendance in parenting classes was inconsistent. At best, she attended most of her weekly visits with Marissa.
The Agencys social worker detailed the foregoing in her report to the court for its six-month review hearing. In that report, the Agency recommended the court terminate services based on appellants noncompliance and lack of progress.
The court conducted its six-month review in December 2005. Appellant did not attend the hearing. The social worker advised the court that appellant had inquired about what she needed to do to waive reunification services, but noted that because the appellant was not present, she did not have a chance to speak to counsel. Appellants attorney objected to the Agencys recommendation but had no evidence or argument to offer. At the hearings conclusion, the court continued Marissas out-of-home placement, found reasonable services had been provided to appellant, terminated those services and set the section 366.26 hearing. Due to appellants absence, the clerk of the court made some effort to serve appellant with notice of her writ remedy at the address listed for her in the social workers latest report. As alluded to above, appellant did not file with this court a writ petition challenging the juvenile courts findings or orders.
In anticipation of the section 366.26 hearing, the Agency prepared a report in which it described Marissa as adoptable and recommended that the court select adoption as Marissas permanent plan and terminate parental rights. At the subsequent section 366.26 hearing, the court followed the Agencys recommendations.
DISCUSSION
Ordinarily, direct appellate review of a setting order may be had only by petition for extraordinary writ review of the order. (In re Cathina W., supra, 68 Cal.App.4th at p. 719.) However, if the juvenile court, through no fault of the parent, fails to discharge its duty to give a parent timely, correct notice, as required by rule of court, the parents failure to file a writ petition — seeking review of the courts decision to set the section 366.26 hearing — is excused. (In re Cathina W., supra, 68 Cal.App.4th at p. 722.)
In this case, appellant contends on numerous grounds that there was no showing that the courts clerk provided her adequate notice of the setting order and the available writ remedy. We agree if for no other reason than that the record does not contain a copy of the requisite notice form sent to appellant. As we noted in In re Cathina W., supra, 68 Cal.App.4th at p. 722, the applicable rule of court requires the clerk to include on the face of the notice the date on which the court made its setting order so that the party may calculate the deadline for filing the notice. Absent a copy of the form mailed to appellant, we fail to see how we can determine whether adequate notice was sent.
Moving on to the merits, however, we are not persuaded by appellants argument that in light of her longstanding mental health issues, the Agency did not tailor her services to deal with those issues. In summary, she argues:
"Instead of referring the mother to specialized services, the county asked for more assessments. When the first assessment determined she didnt need mental health services, the county waited two months and then asked for another assessment. It then claimed the mother did not make progress in her services because she didnt complete the second assessment. Surely, the county could have referred the mother to a mental health professional who specialized in `dual diagnosis patients — those with both substance abuse and mental health issues, for individual counseling. It could have provided that service provider with information it had concerning the mothers mental health history, and asked that professional to immediately begin working with the mother, even while a further clinical assessment was being conducted."
Services are reasonable when the supervising agency identifies a familys problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) To be reasonable, the services provided need not be perfect. The "standard is not whether [they] were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We review the juvenile courts reasonable services finding for substantial evidence. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
We conclude there was substantial evidence. Unlike appellant, we do not question the need, at the outset of Marissas dependency, for a current assessment of appellants mental health needs. There was no evidence that the Agency was privy to her mental health records or status since Michelles dependency in 2002 and 2003. We fail to understand how the Agency could reasonably make referrals to "specialized services" without knowing her present status. The fact that the Agency was familiar with appellants mental health history does not mean it could determine what specialized services she needed. That would be for mental health professionals. Additionally in this regard, it appears appellant is improperly attempting to now challenge the content of her original case plan. However, such a challenge must be made by direct appeal from the dispositional hearing. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) In this case, as previously noted, appellant did not appeal the dispositional findings and orders, despite being apprised of her appellate remedy.
Next, the record does not support appellants claim that the Agency waited two months to request a second assessment. Instead, the record shows the mobile team which conducted the first assessment faxed a copy of that assessment in early August to the social worker. Then, pending the September interim review hearing, the social worker gathered information confirming her concerns about the assessment and arranged for appellants initial intake in late August for a more comprehensive evaluation.
Furthermore, the fact remains that appellant did not complete her clinical assessment. Absent an accurate assessment, the Agency could not recommend either additional or specialized services. Her related contention that the Agency could have referred her to a mental health professional who specialized in dual diagnosis patients is speculative, without any support in the record. We note in this respect that it is appellants burden to affirmatively show error on the record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.)
Having reviewed the record, we do not doubt that on some level appellants mental health compromised her chances for successful reunification. Nonetheless, we conclude the Agencys efforts were more than reasonable under the circumstances. (Elijah R. v. Superior Court, supra, 66 Cal.App.4th at p. 969.)
DISPOSITION
The order terminating parental rights is affirmed.