Opinion
F076094
11-20-2017
K.M., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Dana R. Gross, for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV7756)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald I. Segerstrom, Jr., Judge. Dana R. Gross, for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Petitioner K.M. (mother) seeks an extraordinary writ from the juvenile court's orders issued at a six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)) terminating her reunification services and setting a section 366.26 hearing as to her now two-year-old son, Evan. She alleges error on the following grounds: (1) the court erred in finding she was provided reasonable reunification services; (2) the court applied the wrong standard in assessing the probability of return; and (3) the court was unaware it had discretion to continue services to the 12-month review hearing. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
Mother also alleges without developing the argument that the juvenile court erred in terminating her reunification services based on its finding she "lacked engagement." We consider the issue abandoned and decline to consider it. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120 ["appellate court [is not] required to consider an alleged error where the appellant merely complains of it without pertinent argument"].)
PROCEDURAL AND FACTUAL BACKGROUND
These dependency proceedings were initiated in October 2016 after a Tuolumne County Sheriff's deputy arrested mother for felony child endangerment for being under the influence of methamphetamine. The deputy was dispatched to mother's apartment after Karen, the maternal grandmother, reported mother was acting strangely and then 17-month-old Evan had a bloody nose that mother could not explain. Karen said mother had an undiagnosed mental illness and she was worried for her and Evan's safety. The deputy reported mother's apartment was in complete disarray with hazardous objects, including a broken glass, a large screwdriver and cigarette butts, within Evan's reach.
Karen told a social worker from the Tuolumne County Department of Social Services (department) she thought mother had "methamphetamine induced psychosis" because mother talked to herself and made comments about people who were not there. Mother told the social worker people were moving things around in her apartment and "messing" with her but denied any mental illness. The department took Evan and A.M., mother's then four-year-old daughter, into protective custody and placed them in foster care.
The department also filed a dependency petition on Evan's behalf, identifying Kevin as his presumed father and alleging mother's chronic substance abuse and Kevin's neglect of Evan's half-sibling, Mason, placed Evan at a substantial risk of harm. Mason was the subject of two dependency cases filed in 2012 and 2014 in part because of Kevin's methamphetamine use. In June 2015, the juvenile court terminated Kevin's parental rights after he failed to reunify with Mason.
On October 25, 2016, at the detention hearing, the juvenile court appointed counsel for Kevin and ordered the children detained. Minors' counsel gave the court a restraining order issued on October 21st, prohibiting mother from having contact with Evan. The court ordered no visitation for mother and Kevin and set the matter for jurisdiction.
Approximately a week later, social workers made an unannounced visit to mother's residence to discuss the dependency case with her. Mother had difficulty communicating and tracking the conversation. She was not able to answer questions appropriately, displayed erratic thought processes, and exhibited long delays in answering questions. She repeatedly stated there was some kind of "impersonation" involved in her arrest. After concluding their conversation with mother, the social workers spoke to Karen who had dropped off some food. Karen was concerned because mother was hearing voices and opined that the children were not safe in her care.
In its jurisdiction report, the department informed the juvenile court that A.M. had been released to the custody of her father. The department recommended the children remain out of mother's custody until it could determine whether her neglect was the result of substance abuse, mental illness or both.
In January 2017, mother appeared in custody with her attorney at a contested jurisdictional hearing on a second amended petition. Mother submitted the matter with argument only and Kevin testified. The juvenile court found the allegations true, adjudged the children juvenile dependents and set the matter for disposition on January 24, 2017. On January 17, 2017, mother failed to appear in her criminal case and was taken into custody.
On January 20, 2017, social worker LaFon met with mother at the county jail to complete a psychosocial interview. Mother said she understood the purpose of the interview and agreed to participate. However, in response to the first question, which pertained to her early life, mother declared she was being interrogated and refused to answer. She then shifted her focus to papers she brought to the interview and said someone was "messing with [her] papers." She said she did not trust Karen anymore because she was "filming getting ready for boot camp" and stated there were people and voices telling her to do things and calling her "Sara." She claimed a month of sobriety and wanted to participate in substance abuse and mental health treatment stating, "I'm always confused."
Later that day, LaFon inquired about mental health services for inmates. According to a nurse on staff at the jail, mental health providers visited the jail twice a week but only saw four inmates per visit and there was a waiting list. The services provided included therapy, mental health assessments, psychiatric evaluations and medication management. In order to be placed on the waiting list, an inmate had to be sober or incarcerated for 30 days in order to rule out a mental health condition related to active or recent substance abuse. LaFon asked the nurse to place mother on the waiting list as she would soon satisfy the time requirement. The nurse agreed to do so and said she would also indicate that it was a "rush."
In its report for the dispositional hearing, the department recommended the juvenile court provide mother reunification services for Evan but deny Kevin services because of his ongoing drug use. (§ 361.5, subd. (b)(10) & (11).) Anticipating that the juvenile court was not going to offer him services, Kevin had asked Mason's adoptive mother, by then Evan's foster mother, if she would consider adopting Evan. The department also recommended the court dismiss the petition as to A.M., grant custody to her father and provide mother supervised visitation.
The department also recommended mother undergo an immediate psychiatric evaluation so the department could identify the appropriate reunification services for her. In the interim, the department proposed a plan of reunification that included weekly general, domestic violence and substance abuse counseling and 12-step meetings, monthly individual substance abuse counseling, random substance abuse testing and up to two psychological evaluations.
On January 24, 2017, the parties submitted on the department's report at an uncontested dispositional hearing. The juvenile court followed the department's recommendations with respect to A.M. and terminated its jurisdiction over her case. The court removed Evan from parental custody, ordered reunification services for mother and denied Kevin reunification services. The court set the six-month review hearing for July 2017.
In March 2017, a psychiatrist evaluated mother's competency. In April 2017, she was found incompetent to stand trial and all further proceedings were suspended. The department was not allowed access to her competency evaluation.
On June 6, 2017, mother's attorney filed a modification petition under section 388 (section 388 petition) asking the juvenile court to order an interim hearing as soon as possible to review mother and the department's compliance with reunification services. The department explained that mother remained in custody and was unable to participate in services. The juvenile court denied the petition, finding there had not been a change in mother's circumstances. On June 16, mother was committed to the state hospital and was awaiting transfer to the facility.
On June 23, 2017, county counsel filed a section 388 petition asking the juvenile court to consider appointing a guardian ad litem (GAL) for mother. There was increasing concern about her ability to assist her trial counsel with her case. The court set a hearing on July 18, 2017.
On July 11, 2017, the juvenile court advanced the hearing on the department's section 388 petition and appointed mother a GAL. The court continued the six-month review hearing for July 25.
In its report for the six-month review hearing, the department recommended the juvenile court terminate mother's reunification services and set a section 366.26 hearing to implement a permanent plan of adoption for Evan. The department reported that mother was unable to participate in many of her services because of her incarceration. However, she was evaluated for psychotropic medication; one was prescribed for her and administered daily by a nurse. She was also seen by the mental health staff as needed for ongoing medical needs and acute intervention. The department also reported that mother declined to visit Evan even though the restraining order expired in April 2017.
On July 25, 2017, mother appeared in custody with her attorney and GAL at the six-month review hearing. Her attorney submitted the matter on the report but not the recommendation. She argued mother's incompetency presented an exceptional circumstance that prevented her from participating in reunification services. She asked the court to exercise its discretion and continue reunification services until mother regained her competency and could meaningfully engage in reunification. The court continued the hearing until August 1 and counsel filed letter briefs.
On August 1, 2017, the juvenile court terminated mother's reunification services and set a section 366.26 hearing. The court found the department provided mother reasonable reunification services but that she made no progress in resolving the problem that required Evan's removal. The court also found there was "no likelihood of reunification within the next six months ...."
DISCUSSION
Standard of Review
Section 366.21, subdivision (e)(1) governs the six-month review hearing. We review findings made under section 366.21 for substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) In so doing, "[w]e do not pass on the credibility of witnesses, attempt to resolve the conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
The juvenile court's decision regarding whether to extend reunification services to the 12-month review hearing is reviewed under an abuse of discretion standard. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 179-180 (M.V.).) The court's exercise of discretion will not be disturbed in the absence of an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Termination of Reunification Services
When a child is removed from parental custody, the juvenile court is generally required to order family reunification services. (§ 361.5, subd. (a).) The presumptive rule for children, such as Evan, who was under the age of three when initially removed from parental custody, is that reunification services will not exceed six months from the date the child entered foster care. (§ 361.5, subd. (a)(2).) Since Evan entered foster care on December 19, 2016, mother had received approximately seven months of services when they were terminated in August 2017. The rule recognizes that the unique needs of very young children regarding attachment and development "justif[y] a greater emphasis on establishing permanency and stability earlier in the dependency process ' "in cases with a poor prognosis for family reunification." ' " (M.V., supra, 167 Cal.App.4th at p. 175.)
A child is deemed to have entered foster care 60 days after the child was initially removed from the physical custody of his or her parent or the date of the jurisdictional hearing, whichever is earlier. (§ 361.49.) Evan was initially removed from parental custody on October 19, 2016, and the jurisdictional hearing was conducted on January 6, 2017. Since December 19, 2016 (60 days from the initial removal), is the earlier date, it is the date Evan entered foster care.
Under section 366.21, subdivision (e)(3), the juvenile court may set a section 366.26 hearing if it finds by clear and convincing evidence that the parent failed to regularly participate and make substantive progress in a court-ordered treatment plan. If, however, the court finds there is a substantial probability that the child may be returned to parental custody within six months or that reasonable services were not provided, the court must continue services to the 12-month review hearing. The 12-month review hearing must be conducted no later than 12 months after the date the child entered foster care. (§ 366.21, subd. (f)(1).)
Contentions
Mother contends the juvenile court's order terminating reunification services was error on the following grounds: (1) the department did not provide her reasonable reunification services; (2) the court erred in believing it had to find a substantial probability Evan would be returned to her custody if services were continued; and (3) "intervening events" warranted a continuation of services. We find no error.
Reasonableness of Services
Mother contends the department offered her "a standard package of services," which was unacceptable given her incarceration and mental impairment. She faults the department for not helping her access mental health treatment by arranging a psychological evaluation and/or medication evaluation. She also faults the department for not enrolling her in services that were available in jail and not finding alternatives for those that were not available. She contends the department's lack of assistance, as described, was an abrogation of its responsibility and a failure to offer reasonable reunification services. We disagree.
The department is "required to 'make a good faith effort to develop and implement a family reunification ... [with] the objective of providing such services or counseling "as will lead to the resumption of a normal family relationship." ' " (In re Jasmon O. (1994) 8 Cal.4th 398, 424.) In assessing the reasonableness of reunification services, the juvenile court considers not only the appropriateness of services offered but also the extent to which the department facilitated utilization of the services. Whether the services provided were reasonable depends on the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
In this case, assessing mother's mental health was the key to developing and implementing an appropriate plan for reunification. The department recognized this and took prompt action to address it. Within three days of mother's incarceration, social worker LaFon interviewed her at the jail, had her name on the list for a mental health evaluation and instructed the nurse that it was urgent. As a result, a psychiatrist examined mother, identified a psychiatric diagnosis and prescribed psychotropic medication. Thereafter, mother was under the care of a nurse who administered her medication daily and she had access to medical treatment and acute intervention as needed. Thus, contrary to mother's assertion, the department arranged for her to receive the appropriate services—i.e., psychiatric services—available to her in jail.
The proposed services plan, which mother faults the department for not implementing, was just that—a proposed plan. The department intended to build upon and modify the proposed plan once it better understood mother's mental health needs. As it turned out, however, mother's incompetency rendered the plan superfluous. There is no evidence that mother, given her mental state, could have utilized the proposed services.
Substantial Probability of Return
Mother contends the juvenile court abused its discretion because it misapplied the legal standard for "substantial probability" required by section 366.21, subdivision (e)(3). Specifically, she argues the juvenile court believed it had to find a substantial likelihood that Evan would be returned to her custody in order to continue reunification services instead of the more permissive "may" be returned. She points to the following statement by the court:
"The law requires that there be some likelihood; in fact, I think the statutory language is there be a substantial likelihood that if the court offers six more months of services, that there is a substantial likelihood that the parent will be able to reunify with the child, and that is simply not present here, particularly in light of the fact that she needs to deal with her mental health issues and she's got three criminal cases she's got to deal with, regardless of what happens .... [¶] ... [¶] So is there a likelihood that those concerns are going to be addressed in the next six months, and did she take advantage of any of the services that were offered to her when she was out of custody and in custody to address those situations? [¶] And the answer is no ...."
"In deciding whether to extend services, a juvenile court should consider only whether, if those services were provided, reunification would be sufficiently probable according to the operable standard (§ 366.21, subds. (e), (g)(1)) between then and the next review hearing." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848.) The operable standard of "substantial probability" at a six-month review hearing is "a substantial probability the child may be returned." (M.V., supra, 167 Cal.App.4th at pp. 180-181.)
A juvenile court abuses its discretion in setting the section 366.26 hearing only if the record establishes that "there is a substantial probability the child may be returned to the parent [within six months], in which case the court must continue the case to the 12-month hearing." (M.V., supra, 167 Cal.App.4th at pp. 179-180.) Here, there was no evidence mother had the capacity to meaningfully participate in a reunification plan and safely resume custody of Evan within the five months remaining before the 12-month review hearing in December 2017. Thus, we conclude the juvenile court did not abuse its discretion in refusing to continue reunification services.
Intervening External Event
Mother contends the juvenile court abused its discretion in terminating her reunification services in light of "intervening external events," i.e.,—her mental illness and the need for competency restoration treatment—that prevented her from reunifying. She likens herself to the "special needs" mother in In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.) but does not explain how the facts or the outcome in that case assist her. Thus, for all practical purposes, she has abandoned the issue. (Berger v. Godden, supra, 163 Cal.App.3d at pp. 1119-1120 [contentions not supported by argument are deemed abandoned].) Rather than dismiss the issue, however, we will review it to avoid any possible claim of ineffective assistance of counsel. We find Elizabeth R. readily distinguishable, which we briefly explain.
Elizabeth R. involved a mentally ill mother who had complied with virtually all aspects of her reunification plan, had maintained a stable living situation, had received many months of intensive therapy, and had shown a likelihood of reunification. (Elizabeth R., supra, 35 Cal.App.4th at pp. 1777, 1787, 1792.) The juvenile court had expressed a desire to continue reunification services beyond the 18-month maximum but was persuaded under the express terms of the statute at that time that it had to either return the children to parental custody or terminate services. (Id. at p. 1789.) Under those circumstances, the appellate court held that the juvenile court was not mandated to terminate services but could have continued the 18-month review hearing under section 352 to accommodate the mother's special needs. (Elizabeth R., at p. 1798.)
Under section 352, subdivision (a), the juvenile court can continue any dependency hearing beyond the time limit within which the hearing is required to be held provided the continuance is not contrary to the interest of the minor. --------
Mother's circumstances are very different from those presented in Elizabeth R. First, mother did not present compelling reasons to continue reunification efforts. She did not participate in her services, including visitation, even when she had the opportunity. According to the record, she was out of custody several times during the reunification period but made no attempt to contact the department, locate Evan or access services. Further, unlike the mother in Elizabeth R., mother did not show a likelihood of reunification. She was in the process of being transferred to a state hospital for competency restoration treatment, the duration of which was unknown. She also had several criminal cases pending. Secondly, the review statute granted the court discretion to continue reunification services and there is no evidence the juvenile court did not understand it had the discretion to do so. Rather, the court simply chose not to exercise it given the unlikelihood of reunification.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.