Opinion
NOT TO BE PUBLISHED
Santa Barbara County Super. Ct. No. J-1379457, James E. Herman, Judge
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, Santa Barbara County Counsel, Toni Lorien and Joel F. Block, Deputy County Counsel, for Plaintiff and Respondent.
COFFEE, J.
Michelle D. appeals from an order of the juvenile court bypassing reunification services after removal of her child, Z.G., pursuant to Welfare & Institutions Code section 361.5, subdivision (b)(11). She contends that insufficient evidence supported the bypass order because she had treated the problems that led to the removal of Z.G.'s half-sibling, J.D. She also contends that the root cause of her problems is her mental health condition, for which she has never received appropriate services. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Before Z.G. was born, appellant had two other children. Her first child was born when she was 19 and he is in a legal guardianship with her parents. The juvenile dependency court was not involved in this arrangement.
The second child, J.D., was removed when he was two months old because appellant abused drugs and medically neglected him. Her parental rights were terminated two months later, while she was incarcerated. The third child was Z.G., the subject of this action.
We will summarize J.D.'s dependency proceedings and appellant's subsequent efforts in some detail before reviewing Z.G.'s dependency proceedings because the bypass decision required consideration of issues that were common to both proceedings. (§ 361.5, subd. (b)(11).)
J.D.'s Dependency Proceedings
J.D. was born in June 2006, while appellant was on probation for second degree burglary. Just after J.D.'s birth, Chile Welfare Services (CWS) received a report that appellant had abused drugs during the pregnancy, had inconsistent prenatal care, and had not obtained medical care for herself or the infant after they left the hospital.
She had a criminal history that included burglary, robbery, battery of a police officer, possession of a firearm in a public school, unlicensed distribution of a needle, and other crimes.
On August 6, appellant tested positive for methamphetamine. She breastfed J.D. while under the influence. On August 7, CWS received a report that the infant had been suffering from diarrhea for a week and appellant had not taken the child to the doctor. She said she was too busy.
On August 10, appellant was arrested for violation of probation based on methamphetamine use and she was incarcerated. CWS detained J.D. and filed a petition alleging 1) lack of provision for support (§ 300, subd. (g)), based on appellant's incarceration and the father's unknown whereabouts (ibid.); and 2) failure to protect, based on appellant's failure to obtain medical care for J.D.'s diarrhea, failure to have him immunized, her continuing use of methamphetamine, and her criminal history (id., subd. (b)). The court later found these allegations to be true.
Appellant was released from jail on September 2, but she was involuntarily committed for mental health treatment due to depression. She was released from that treatment on September 11. The court ordered a psychological evaluation on October 2, and appellant had an appointment scheduled with mental health services for the first week of October. A social worker referred appellant to two substance abuse programs.
Before her mental health appointment, she was again arrested on October 6 for violating probation by using methamphetamine. She had not enrolled in a substance abuse program. A social worker visited her in jail and saw that her physical and mental state had deteriorated. She had pulled out part of her hair.
She had missed scheduled noontime visits with J.D. on October 3 and 6 because, a roommate reported, she was too sleepy to get out of bed and was on a new medication.
At J.D.'s disposition hearing in November, services were bypassed because it was not likely appellant would be released within six months. (§ 361.5, subd. (e)(1).) J.D. was four months old and appellant had been sentenced to sixteen months in state prison. Her parental rights were terminated, and J.D. was adopted by non-relatives.
Post-Termination Efforts
Appellant served eight months in prison. She testified that, while in prison, she completed a parenting class and participated in the "Star" mental health program. There was a waiting list for substance abuse treatment but she attended church services while in prison. She testified that she used methamphetamine on the day she was released from prison, but mainly used marijuana after that. She visited J.D. once after her release from prison.
She told her social worker that she received psychiatric treatment in connection with her parole, including medication and counseling. She last saw the psychiatrist in December 2009, when he refilled her prescription for Topomax and Wellbutrin.
Z.G.'s Dependency Proceedings
Appellant gave birth to Z.G. in July 2010. She testified that she had continued to use marijuana from the time she was released from prison until the seventh month of her pregnancy. One day after Z.G.'s birth, CWS received a report that appellant smoked marijuana throughout her pregnancy, did not receive prenatal care until her final trimester, had been involved in domestic violence with Z.G.'s father, and was diagnosed with schizophrenia but was not taking her medication. When interviewed, she confirmed these allegations, and said she did not know she was pregnant because her periods are irregular due to diabetes and she did not take her medications because of the side effects. She appeared to be paranoid and she said she had blackouts. Five days later, a safety plan was reached under which she and Z.G. would live in the home of a supervising paternal aunt. Several weeks later, appellant and Z.G.'s father had an argument and she called police.
CWS detained Z.G. and filed a petition alleging failure to protect based on appellant's marijuana use during pregnancy, lack of prenatal care, domestic violence with Z.G.'s father, her mental health status, and her admission that she was not taking her psychotropic medications. (§ 300, subd. (b).) The petition also alleged a risk of abuse based on prior abuse or neglect of J.D. (Id., subd. (j).)
On August 11, the court ordered detention, out of home placement, alcohol and drug testing thrice weekly, substance abuse treatment, parenting education and counseling services, and supervised visits contingent upon clean drug tests. Appellant waited three weeks before presenting herself for substance abuse assessment and initial testing.
On August 31, a CWS assessor recommended a complete psychological assessment and intensive psychotherapy. She reported that appellant showed signs and symptoms of a mood disorder and anxiety disorder "(most likely PTSD and/or Drug Induced Mood Disorder)" and that she may have also been malingering for secondary gain. Appellant was receiving outpatient mental health services with CARES at the time, and was on psychotropic medication.
Appellant did not engage in drug treatment or visitation, and by September 13, CWS had withdrawn its recommendation for a psychological evaluation because it had decided to recommend bypass of services pursuant to section 361.5, subd. (b)(10). Appellant had one clean drug test on September 9, but missed tests on September 11, September 13, and October 5, tested positive for marijuana on October 6 and 12, and missed a test on October 11. She told a social worker that she missed tests because she either forgot or did not call in time. On September 7, Carolyn Wingrave of Recovery Point reported that appellant needed intensive services and that she would be recommending inpatient services. CWS referred appellant to Recovery Point for outpatient treatment, but she did not contact them until, according to her later testimony, November, just before the final dispositional hearing. Appellant began visiting Z.G. in September, but did not appear for four visits, calling only once to explain that she had overslept. Other visits were canceled for lack of clean drug tests. Appellant attributed the missed visits in part to difficulty getting up in the morning. She later testified that her psychotropic medications made her very sleepy. In October, appellant told a social worker that she was not taking her psychotropic medications because her Medi-Cal number was not good and she was impatient with "800" numbers. Appellant's social worker reported that she had not engaged in the department's efforts to assist her and recommended that services be bypassed.
CWS initially recommended bypass under subdivision (b)(10) [prior sibling removal] of section 361.5, and corrected that to subdivision (b)(11) [prior sibling termination of parental rights].
She testified that she had only one positive test and four negative tests. On cross-examination, she admitted she had not had two clean tests since September.
At a contested jurisdiction and disposition hearing in November 2010, Appellant acknowledged that she did use marijuana during her pregnancy and did not get prenatal care until the last trimester. She said she did not know she was pregnant until the fifth month because her periods were continuing. She said the pregnancy was without complications. She acknowledged that her doctor told her to stop using marijuana during her pregnancy. She said she stopped about a month later, in about the seventh month. She said did not use methamphetamine during the pregnancy and had last used it on the day she was released from prison.
She testified that she had taken Wellbutrin, Topoax, Vistaril, and Lantus and said she believed those medications help her. She described her diagnoses as bipolar, anxiety, depression and some form of schizophrenia. She testified that she was presently taking her medications and getting mental health treatment at "CARES." She had changed to Klonopin and Lexapro the week before. These helped immediately with her anxiety and she felt less sleepy. She said she had seen Z.G. five times.
Appellant testified that she felt neglected and that she did not get the residential care that she had asked for after Z.G.'s birth. She said she knew she would be going through a difficult change when she resumed her psychotropic medications after his birth, and she wanted "a program with the baby where I could have professional people, staff members, observe me and that they'll log in all the information." She wanted "to be in a program where professional people could see themselves the improvements, or where I needed improvement." She felt she was not being heard, but if she had residential treatment she could successfully reunify with Z.G.
She testified that she used marijuana consistently from the time she was released from prison until she was seven months pregnant with Z.G. She said marijuana was a crutch and she used it to treat her mental health issues.
She was not truthful about her drug testing. She testified that her first drug test was positive for marijuana and after that, all tests were clean. She had not participated in a treatment program. She had left a message at Project Recovery on the prior Friday, and she said she had scheduled a meeting with "Project Preemie" but accidentally scheduled it for a day on which she needed to be in court. She had not rescheduled, although she had left a message and intended to call later that week when the person she needed to speak to would be back in the office.
The court found by clear and convincing evidence that appellant had not made a reasonable effort to treat the problems that led to the removal of J.D. and it ordered services bypassed. (§ 361.5, subd. (b)(11).) The court found that appellant had not learned from the termination of her rights over J.D. and had continued to abuse substances. Her visitation had been inconsistent and her efforts to enroll in treatment were inconsistent. The court stated it had no faith in her ability to reunify within six or even twelve months.
DISCUSSION
Appellant contends that the problems that led to J.D.'s removal, methamphetamine use and medical neglect, no longer existed. We disagree. Substantial evidence supported findings that appellant did continue to abuse drugs after her rights over J.D. were terminated, and that she did not obtain adequate prenatal medical care for Z.G.
Generally, a parent is entitled to reunification services for 12 months after the child is removed. (§ 361.5, subd. (a)(1). But reunification services may be bypassed if the court finds by clear and convincing evidence that (1) the parental rights of that parent have been terminated as to a sibling or half sibling of the child and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to termination. (§ 361.5, subd. (b)(11).) We review the juvenile court's determination on these criteria for substantial evidence. (In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) We must draw all reasonable inferences in support of its findings and view the record in the light most favorable to the order. (Ibid.) The bypass decision may not be based solely on the prior removal, and must take into account the parent's subsequent efforts. A parent's failure to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
Substantial evidence supports the juvenile court's determination here, by clear and convincing evidence, that appellant did not make a reasonable effort to treat the drug abuse and medical neglect problems that led to removal of Z.G.'s half sibling, J.D.. Appellant used drugs while pregnant with J.D., and continued to use them while breastfeeding him. Her continued use interfered with her ability to visit J.D. because she was repeatedly incarcerated for parole violations. Appellant also used drugs while pregnant with Z.G., and did not try to stop using them until he was two months old, by her own admission. Her continuing use of marijuana interfered with her ability to visit Z.G. because she repeatedly tested positive for marijuana or missed drug tests that were a condition of visitation. Mandatory drug testing did not deter her from continuing to abuse drugs after the birth of either child. Her efforts to obtain medical care for her children also did not improve. Appellant had inconsistent prenatal care while pregnant with J.D., and did not get any postnatal care for him. She had no prenatal care while pregnant with Z.G. until the last trimester, and then she ignored her obstetrician's medical advice to stop smoking marijuana for the sake of Z.G.'s prenatal health. She was inconsistent about taking her own prescribed medication during both periods of time, which may have been an underlying cause of her substance abuse and neglect of the infants' care.
Appellant argues that she addressed her methamphetamine use, that she used a different drug with Z.G., and that she used it to address her mental health issues. She points out that marijuana can be legal if prescribed by a doctor and can have beneficial medical effects. But appellant used marijuana during pregnancy against the advice of her doctor and neglected her own prescribed mental health treatment plan. The trial court could reasonably conclude that she had not made a reasonable effort to treat her drug use. Even legal use of marijuana is abuse if it presents a risk of harm to a minor. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451-452.)
Appellant also contends that she should have received inpatient services for her mental health issues. Respondent counters that her mental health was irrelevant because it was not an allegation common to both dependency cases. We agree with neither party. Appellant's mental health condition is relevant because it is part of the total picture of her efforts to address her substance abuse and her neglect of her infants. We recognize that harm to a child may not be presumed from the mere fact of a parent's mental illness. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1789.) But inpatient services were not required before bypass because appellant would not give up her drug use and resisted the mental health care that she did receive. She received treatment in September 2006, when she was involuntarily committed, but did not consistently take the medications that were prescribed. Psychological evaluation was ordered, but she used methamphetamine and was therefore arrested before she could be seen by mental health services. She testified that she received mental health treatment while in prison, and psychiatric treatment and counseling while on parole, but she took her medications only sporadically. She also received outpatient mental health services from CARES, which was ongoing at the time of the contested hearing. In the circumstances of appellant's failure to address the problems that led to J.D.'s removal, additional mental health services were not required before ordering bypass. (§ 361.5, subd. (b)(11).)
DISPOSITION
The order appealed from is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.