Opinion
C055017
4-24-2008
In re T.H. et al., Persons Coming Under the Juvenile Court Law SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DESIREE M., Defendant and Appellant
NOT TO BE PUBLISHED
Desiree M. (mother), appeals from the dispositional orders of the juvenile court, removing her children T. and D. from her custody. She contends there was insufficient evidence to support these orders. We disagree.
FACTUAL AND PROCEDURAL BACKGROUND
Between August 1997 and June 2006, Child Protective Services (CPS) received 23 referrals for mother. The first of these referrals alleged that her then five-year-old son, D., was having sex with another minor. These referrals included allegations of mothers public drunkenness, alcohol and prescription drug abuse, neglect of her children, domestic violence with her husband, Robert G., physical and emotional abuse of her children Tr. and D., including hitting Tr. with a broomstick, Tr. assaulting mother and D. and numerous Welfare and Institutions Code section 5150 hospitalizations, and Tr. and D. orally copulating each other and other children. Most of the referrals were deemed inconclusive because mother refused to cooperate with the social workers. She was, however, offered voluntary services on three occasions. She refused each offer of assistance.
Tr. is not a subject of these proceedings, as he is a section 602 ward. The initial "T." refers to another sibling who is a subject of these proceedings.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
On February 17, 2006, mother was admitted to the hospital after taking 45 Vicodin tablets. Mother was suspected of abusing prescription drugs. A referral was investigated and substantiated for general neglect of T. and D.
In April 2006, mother reported D. had gotten some pills and came home out of control. He hit mother four times in the back with a broomstick, threatened to kill everyone in the house, threw and broke things around the home and was yelling about his fathers death. D. was hospitalized, treated and released to mother. Mother was provided with a follow-up treatment plan for D., but did not follow through with the plan.
On June 19, 2006, D. was again out of control, staying out all night and starting fires at the American River. Mothers boyfriend found D. and brought him home. When they got home, D. grabbed knives and threatened mother and T., threatened to kill mothers boyfriend and cut himself several times. He then left the house. After he was found, he was hospitalized as being a danger to himself and others. Following treatment, he was discharged to mother, again with instructions for recommended treatment, including ACCESS counseling and outpatient mental health services. Again, mother did not follow through with the treatment plan.
Based on D.s mental state, the Department of Health and Human Services (DHHS) received a referral. During the investigation, DHHS learned mother had not obtained treatment for D. Mother told the social worker she was "too busy" to have D. psychologically evaluated.
On June 23, 2006, a social worker and law enforcement officer went to mothers home to place the children into protective custody. T. was home, but D. was not. Mother refused to tell the social worker or law enforcement where D. was. Eventually they found D. and he agreed to go with the social worker. As D. and T. left, mother told them not to say anything. DHHS offered mother voluntary services, but she refused.
Nondetaining petitions, pursuant to section 300, subdivision (b), were filed. The petitions alleged mother had substance abuse problems from which she had failed to rehabilitate and that she was admitted to the hospital due to overdosing on Vicodin. It was further alleged mother had failed or refused to obtain mental health treatment for D. after he had been placed on a 5150 psychiatric hold in April, and refused to accept services after D. was placed on a second 5150 hold in June 2006.
D. and T. were released back into mothers care pending the detention hearing. About one week before the scheduled detention hearing, the social worker called to schedule the weekly home visit. Mothers great aunt informed the social worker that mother was unavailable, as she and the children were out of state. The great aunt then complained about DHHS involvement with the family, became irate, and hung up on the social worker. The social worker went to the home with law enforcement agents. Upon getting no response, they left a note requesting mother immediately contact the social worker.
Mother called the social worker the following day and advised that she had been on vacation in Idaho. The social worker reminded mother about the pending petition, and the importance of keeping DHHS informed of the childrens whereabouts. Mother informed the social worker they had a vacation scheduled during the following week, when the detention hearing was scheduled.
Mother appeared in court at the July 10 detention hearing, but did not bring the children. Because the children were not present, the hearing was continued to the next day. DHHS early intervention specialist also spoke with mother and offered to conduct an AOD assessment, but mother refused the assessment and refused a drug test. Mother still had not sought treatment for D.
The following day, neither mother or the children appeared, and a bench warrant was issued. On July 12, 2006, the children were placed into protective custody. Mother again refused to drug test.
Upon being placed in protective custody, D. was interviewed and stated mother is constantly in pain. He reported she used to take a lot of medication, but this has slowed down and that she drinks a lot of alcohol. He also reported he ensures T. is fed at home. When asked about the incident in which he assaulted his mother with the broomstick, he explained T. had been "messing with the dog" and D. told him to stop. T. started complaining that D. was hitting him and mother intervened, at which point, D. "just snapped." When asked about the incident when he was cutting himself with the knives, he explained he did not intend to hurt anyone, but mother "just doesnt let up." Amended petitions were filed on July 14, 2006, adding the allegations that mother had failed to comply with drug testing as required by DHHS, had refused to submit to an AOD assessment and had administratively dirty drug tests. The petitions also alleged mother had failed or refused to obtain necessary mental health treatment for D. after June 26, 2006.
Mothers contacts with the department were argumentative and highly adversarial. She claimed the social worker assigned to do home visits was trying to break into her home and that CPS was out to get her. She refused to drug test and offered multiple excuses why she could not, ranging from being busy with appointments to having lost the address of the testing center. She stated the allegations in the petition were false, claimed she was a great parent, and averred that it was "unfeasible and unrealistic" for her to participate in services. She also threatened to drive her car through the lobby doors of DHHS if she did not get what she wanted.
Mother acknowledged there had been domestic violence in the past with her relationship with T. and D.s father, Robert G., which the children had witnessed. This violence included him punching her in the face, throwing her around and calling her names. Mother knew the violence was affecting T. and D., and T. and D. were also victims of the abuse. She refused to attend any domestic violence counseling. Mother also acknowledged T.s behavior had improved since being in the Youth Center. She noted that D. and T.s behavior was learned behavior.
Father Robert G. died of bone cancer in 2004.
Mother claimed the counselors at Child ACCESS services were not qualified to treat D. She intended to have him treated by a private psychologist, but that doctor referred her back to ACCESS. By then, she no longer had the ACCESS number. The Child ACCESS clinician reported when she tried to speak with mother regarding D.s mental health treatment, mother refused services and hung up on her.
Mother was diagnosed with fibromyalgia, anxiety and depression. She was taking various prescription drugs, and was advised to wean off her medication and go into a detoxification program. Her medical conditions do not affect her judgment, memory or parenting abilities and do not limit her ability to participate in services.
The detention hearing was held on July 14, 2006. Both children were ordered detained and were placed with Bob, a nonrelated extended family member mother had recommended.
D. and T. were placed with Bob. On July 21, 2006, Bob called the social worker and informed her that he had come home and the children were missing. Bob was advised to file a missing persons report. The social worker then called mother and informed her the children were not with Bob and asked if she knew where the children were. Mother claimed she did not know what the social worker was talking about. The social worker advised mother to bring the children to the receiving home immediately. About 15 minutes later, Bob called the social worker and informed her that mother had called him and admitted the children were with her. Bob informed the social worker that mother had asked him to lie, saying the children were never missing and he had just made a mistake. He also told the social worker that mother and her friends and relatives had threatened to burn down his house.
Later that day, mother, Bob, D. and the minor children came to the social workers office. The social worker informed mother she was aware mother had removed the children from Bobs house and was aware of the statements made to Bob. When one of the children came into the room, mother told him to run. Mother contacted law enforcement wanting to press charges against the social worker and yelled the social worker was evil.
D. and T. were taken to the Sacramento Childrens Receiving Home. T. ran away. Prior to his running away, T. was interviewed. He reported there was a "bunch of crazy crap" going on in the home. T. specified that D. was wild and had been playing with his friends outside at 3:00 a.m. He also stated the friends were "bad" and "they steal." He noted his relationship with his mother had improved of late, but that D.s relationship with mother was deteriorating.
D. reported to the foster mother he had previously taken Vicodin, which he obtained from one of mothers friends. He also admitted smoking marijuana and taking "e pills."
On July 21, 2006, D. was reported missing from his foster family placement. As of August 21, 2006, DHHS had still not been able to find D. The foster mother reported T. had spoken with D. on the phone during a conversation with mother. Based on this conversation, DHHS believed mother knew where D. was. Mother denied any such knowledge.
The foster mother also expressed concerns about mothers phone calls and visits with T. Mother had been asking if foster mother was "messing with" T., and called the foster home excessively and as late as 10:30 p.m. She was late to visits and Tr. came to some of the visits.
As with D., Tr. was absent without leave from his, placement.
On August 23, 2006, mother continued denying any knowledge of D. or Tr.s whereabouts, and remained unwilling to participate in psychological evaluations. The following day, Detective Brent Lair went to mothers home and D. answered the door. He had been watching television and there was a note which appeared to be from mother, about hoping he had fun at the park. Mother claimed she had not known D. was at the home. D. was transported to the Childrens Receiving Home, but left again without permission.
The jurisdictional hearing took place on August 31, 2006. Mother submitted to jurisdiction as to T., but argued the court could not take jurisdiction over D., as he was still missing. The court found D. and T. were children described by section 300, subdivision (b). Specifically, the court found mother had a substance abuse problem and had taken 45 Vicodin in February 2006 and had been admitted to the hospital, and found that D.s mental health issues and mothers failure to obtain treatment for those issues placed both D. and T. at risk. The court also ordered the matter continued for the disposition hearing to allow mother to participate in two psychological evaluations to determine her ability to benefit from reunification services.
Approximately one month after the jurisdiction hearing, D. was detained in juvenile hall on burglary charges. D. admitted the charges and it was agreed it was in his best interest to be handled as a dependent, rather than a delinquent.
Meanwhile, mother had been referred for her psychological evaluations to Dr. Janice Nakagawa and Dr. Cyrus Moazam. Mother cancelled two appointments with Dr. Moazam and was late to her appointments with Dr. Nakagawa. Mother repeatedly refused to turn off her cell phone when requested to do so by Dr. Nakagawa. At her second appointment with Dr. Nakagawa, mother informed the doctor she had to leave early. Mother was late to her rescheduled appointment and hostile to the doctor when she could not reschedule for the following day.
Mother followed a similar pattern with the social worker, having to schedule and reschedule appointments to discuss her case plan several times. She was one hour late to the appointment when she finally showed up.
On November 27, 2006, mother was advised if she "continue[d] to refuse to cooperate with the [psychological] evaluations, the Court can draw an adverse inference from your refusal to cooperate . . . and can make findings contrary to your interest, . . ." The court also informed mother it was tired of her excuses for failing to comply with court orders.
Mother completed her psychological evaluations by January 2007. Dr. Moazam concluded mother was "self-centered, dissatisfied, demanding of attention, complaining, and generally negative and pessimistic. She tends to use her somatic complaints to control and manipulate others. . . . She seems to be highly skilled in frustrating and sabotaging the help of others." Dr. Moazam also noted the prognosis for psychological or medical intervention was guarded. He concluded she needed to complete parenting classes and be educated on how to care for, and interact with, her children. In particular, she needed to increase her skills in setting limits for her children. He also recommended she participate in individual and conjoint counseling to resolve the parent-child problems. He noted in addition to completing her reunification plan, she needed to complete a substance abuse rehabilitation program and needed to submit to frequent random drug testing.
Dr. Nakagawa noted mother was minimizing problems with her children. She was testy and obstreperous. Dr. Nakagawa also noted that while mother would be difficult for anyone to work with, she clearly loves her children and is committed to reunifying with them. Dr. Nakagawa shared the belief it was important for mother to complete parenting classes and engage in both individual and family counseling. Based on the results of these evaluations, DHHS recommended mother receive reunification services.
D. was released from juvenile hall on November 21, 2006, and was placed in a group home. Within three hours of being placed there, he left without permission. Mother declaimed any knowledge of his whereabouts. As of December 26, 2006, D.s whereabouts were still unknown.
On January 8, 2007, mother was not participating in the services which had been offered to her. She requested the matter be set for a contested jurisdictional hearing.
At the hearing, mother submitted to the case plan, with the exception of the recommendation for domestic violence services. She also argued that the children should be returned to her home, as she believed DHHS had not met its burden to establish the children could not be safely maintained in her home. DHHS agreed to striking the domestic violence counseling from the case plan, but opposed returning the children to the home. The court found there was a substantial danger to the childrens physical and emotional well-being if they were returned home and that there were no reasonable means short of removal to protect the children. Reunification services were ordered to be provided to mother, including drug counseling, parenting classes, anger management and counseling.
DISCUSSION
Mother contends there was insufficient evidence to support T.s removal at the disposition hearing, because living with mother did not pose a threat to T.s physical safety and maintenance services were reasonable means to protect T. without removing him from the home. Mother also contends there was insufficient evidence to support D.s removal from the home. disagree. As the evidence which supports both childrens removal from the home is the same, we will address these contentions together.
To remove a child from a parents physical custody, the juvenile court must find clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody." (§ 361, subd. (c)(1).) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
We review the juvenile courts determination regarding removal under the substantial evidence test, drawing all reasonable inferences to support the findings and recognizing that issues of credibility are matters for the juvenile court. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872; In re Basilio T. (1992) 4 Cal.App.4th 155, 170.) We conclude substantial evidence supports the juvenile courts determination that there remained a substantial danger to the minors, and there was no reasonable means to protect them short of removing them from mothers care.
Mother had a long-standing history of substance abuse, dating back to at least 1997. Throughout these proceedings she refused voluntary services and refused to drug test. She repeatedly engaged in altercations with the social workers in front of the children, encouraged them to run away from their placements and hid them when they ran away from their placements to her home. D. had already begun using various kinds of drugs, including marijuana, "e pills" and Vicodin. It is particularly noteworthy that Vicodin is one of the same prescriptions mother appears to be abusing. That D. may be experimenting with drugs because of his exposure to mothers abuse of drugs points up a fact which the Legislature has already determined. That is, "[t]he provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2.)
Mothers behavior is also volatile and threatening. In February 2006, She took 45 Vicodin pills and there is no indication in the record that mother made any efforts to ensure her childrens safety. She threatened to burn Bobs house down when he refused to cooperate with her attempted deceptions to DHHS. She also threatened to drive her car through the lobby doors of DHHS offices if she did not get her way and get some attention. Despite recommendations and offers of voluntary services, mother refused to get treatment for herself.
Mother relied on D. to feed and care for T. D., however, had significant mental health issues of his own. He was hospitalized twice under section 5150, once for threatening to kill everyone in the house while hitting mother with a broomstick and once for threatening to kill T. and mother while wielding knives. Despite D.s threats to both herself and T., despite the harm D. has inflicted upon himself, and despite having been provided treatment recommendations and referrals, mother refused to get treatment for D. In mothers refusal to get treatment for D., she is putting both T. and D. in danger.
The record shows mother is in denial about the challenges facing her family, her substance abuse, and the importance of treatment for herself and for D. She will not acknowledge her responsibility in these matters and consistently refuses to cooperate with professionals or get treatment. There is little reason to believe that if T. or D. were returned home these types of situations would not recur, placing both children in danger. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657-1658.)
The record also establishes that there were no reasonable "less drastic" alternatives to removal. Mother claims a family maintenance order was a reasonable alternative. The record belies this claim.
Mother has a long history of refusing to cooperate with DHHS and refusing any voluntary services. Despite D. threatening to kill her and T., cutting himself, beating her with a broomstick and twice being hospitalized, mother refused to get mental health treatment for D. Throughout this case mother was offered voluntary services and refused them, stating it was "unfeasible and unrealistic" for her to engage in services. She was offered a drug assessment and refused, she was ordered to drug test and she did not. She resisted having psychological examinations done until ordered to by the court. Once she decided to comply with the psychological assessments, she repeatedly cancelled scheduled appointments and arrived late to appointments or had to leave early. She engaged in the same pattern with the social worker, consistently rescheduling appointments to discuss the case plan and arriving late to appointments. This pattern of behavior was sufficient to support the courts finding that there were no reasonable alternatives to removal.
Mother next contends the court made no factual findings supporting T.s removal. The record as detailed above belies that claim. Based on that record, the court found there were "significant issues within the family that need to be rectified before either of these children can be put at home safely." This finding is supported by the record.
DISPOSITION
The dispositional order is affirmed.
We concur:
BLEASE, Acting P.J.
ROBIE, J.