Opinion
E054637 Super.Ct.No. JVSQ10-434
12-12-2011
K.S., Petitioner, v. THE SUPERIOR COURT OF INYO COUNTY, Respondent; INYO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Real Party in Interest.
Mark A. Johnson, Public Defender, for Petitioner. Randy Keller, County Counsel, Steven B. Porter, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Dean T. Stout, Judge. Petition denied.
Mark A. Johnson, Public Defender, for Petitioner.
No appearance for respondent.
Randy Keller, County Counsel, Steven B. Porter, Deputy County Counsel, for Real Party in Interest. Allen Berrey, Public Defender, for minor.
K. S. (mother) seeks writ review of the juvenile court's order denying her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 with respect to her son R. S. (the minor). We find that her contentions lack merit and so deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Father is not presently involved in the matter and is not a party to this petition.
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FACTS
On March 2, 2010, mother left the minor at home alone when she and her live-in boyfriend went to Las Vegas. The minor was 12 years old at the time. Mother had promised to return the following day and left frozen pizzas for the minor to eat. Mother did not return because she had been arrested and jailed in Las Vegas. It appears that the boyfriend informed the minor of his mother's arrest and this prompted the minor to attempt to run away from school because he was afraid that Child Protective Services (CPS) would take him "like the last time." School personnel contacted the minor's paternal uncle who picked the minor up from school and cared for him until March 26, 2010. During this period, mother remained incarcerated in Las Vegas.
The uncle informed the social worker that the minor was telling classmates that he drank alcohol and smoked marijuana and soon would be expelled. Mother did not contact the paternal uncle, but she did execute a form authorizing her boyfriend to supervise the minor. This prompted the uncle to relinquish care of the minor to CPS to ensure his safety.
Mother and the minor had been the subjects of dependency proceedings in the state of Nevada in 2005. At that time, mother had left the minor unattended in a hotel room. She was later arrested. At the time of her arrest, mother called a friend to go to the hotel room, but law enforcement had already been alerted by motel staff who found the minor sleeping alone in the room. The reason for mother's arrest was not clear, but she did test positive for drugs while in custody. The minor was returned to mother's care, but he was removed a second time when mother tested positive for drug use. The minor was placed with his paternal uncle in Bishop, California through an Interstate Compact for the Placement of Children (ICPC). The mother was successful in addressing the issues that led to the removal and the minor was returned to her care in May 2007. The Nevada case was closed.
The minor was detained. Mother did not appear at the detention hearing on April 1, 2010, although she had been released from custody the day before.
At a subsequent hearing, mother waived a jurisdictional hearing and submitted the matter based on the social worker's report. The juvenile court then made the requisite jurisdictional findings.
Prior to the dispositional hearing, CPS filed an addendum report that noted mother had commenced therapy with Ms. James, but had attended only three sessions, had canceled five, and had four telephone contacts. Mother and the minor had two supervised visits and two supervised telephone visits each week. There were concerns expressed that mother had failed to establish safe boundaries for the minor, who was playing near a fast running creek. In addition, mother and the foster parent had a disagreement in front of the minor about drinking a soda. Mother argued that the minor could have anything he wanted despite the foster parent's instructions. The minor became upset, stating that mother had to argue and make a big deal out of everything. While waiting for court the morning of July 22, 2010, mother was seen whispering to the minor and overheard saying "that is why [paternal uncle] has done this to me."
At the dispositional hearing on August 5, 2010, the juvenile court ordered the minor detained in an out-of-home placement, adopted the reunification plan, and made the requisite dispositional findings and orders.
Mother had a history of substance abuse, as well as criminality. After beginning with a few positive drug tests, she was successful in maintaining sobriety throughout the reunification period.
Ms. James reported that one-on-one therapy was not effective because mother viewed services as hoops she must jump through in order to have the minor returned home. Meanwhile, the minor was also having weekly therapy sessions. His therapist reported that the minor has "a strong ability to articulate his thoughts and feelings, and proves to be insightful and mature in his perspective."
Regular visits between mother and the minor were going well. Mother requested unsupervised visits, but the social worker indicated that mother needed to engage in more services before unsupervised visits would be allowed. Mother still had to be redirected during some visits not to discuss certain matters, such as unsupervised visits, with the minor. Despite explanations, mother persisted in demanding unsupervised visits.
In the three-month interim review report, the social worker indicated that reunification was promising. Mother was praised for her participation in the service plan and the steps she made to work with the agency. The social worker observed that mother's interactions with the minor needed to improve, noting that the minor often had to interrupt his mother to get her to listen to what he was trying to tell her. The social worker hoped that their interaction would improve with services. The social worker recommended no change in the existing orders.
At the review hearing, the parties noted that unsupervised visits had started, first in the CPS office and then to off-site visits, which reportedly went well. Mother requested that the minor be returned to her care and objected to the therapist's characterization that mother saw therapy as "jumping through hoops." She asserted that the comments were unfair and that she was getting a lot out of therapy. The court denied mother's request, and expressed concern with her progress in counseling.
By the time of the six-month review hearing on November 18, 2010, mother had became less compliant with her case plan, blaming her failures on the services providers. Also, mother was arrested on October 31, 2010, for domestic violence when she assaulted her boyfriend. This incident occurred during a Halloween visit with the minor. Mother became so enraged she grabbed the boyfriend by the throat, while the minor stood by yelling for her to stop. CPS learned that police had responded to mother's residence on two earlier occasions for reports of domestic disturbance.
The social worker also related an incident when mother became overwrought over the minor's anticipated attendance at an overnight science camp. The minor became agitated as a result.
The minor continued therapy. He told his therapist that he was disappointed and angry at his mother, stating that "[t]his is what my mom always does, she starts fights in her relationships and with my friends' parents, and then everyone leaves."
In light of these problems, the social worker recommended that visitation be suspended and recommenced only in a therapeutic setting. At the six-month review hearing, the minor testified in chambers and stated that he did not want to have visitation for a "month or two." He stated that he felt "like there's a cycle of [mother] always getting better and then messing up and then getting a little bit better and then messing up and it keeps happening over and over and over again." He described his mother's house as "unstable and unsafe."
The juvenile court temporarily suspended visitation, authorizing CPS to allow limited, supervised contact in consultation with the minor's therapist. It also ordered a psychological evaluation of mother and set an informal review hearing for December 16, 2010.
The interim review report recounted mother's repeated failure to reconnect with services and to make significant progress since the domestic violence incident. The report indicated that mother placed her own needs above the minor's. In particular, mother traveled to Las Vegas and missed supervised, therapeutic visits with the minor.
Dr. Anderson conducted the psychological evaluation and concluded mother had a "personality disorder, not otherwise specified" and further noted she "presents with components of antisocial, histrionic and narcissistic personality features." He recommended short-term cognitive behavioral therapy.
At the review hearing, mother criticized Dr. Anderson's report, asserting it was flawed because he did not spend sufficient time with her. The court advised mother that she needed to comply fully with the case plan, and continued the prior findings and order. An oral update was scheduled for March 17, 2011.
In the interim report, the social worker noted that mother often became angry with the CPS staff and that she repeatedly had to be advised during visits not to press the minor on issues such as unsupervised visitation. Mother refused to participate in services and demanded another therapist.
Approximately three weeks before the March review hearing, the report noted that mother appeared to recommit herself to her service plan and reengaged with her providers. Both Ms. James and the minor's therapist noted improvement by the mother, and recommended continued individual and family counseling.
Mother showed continued progress at the time of the 12-month review hearing so that reunification services were continued to the 18-month period. The minor, however, expressed his concern to the court that he did not want to be returned because he did not believe mother's home was safe. He claimed mother had a history of doing well for a period and then falling back into her old patterns of behavior. He told the court he wanted to live in a stable home.
During June 2011, mother and the minor had several unsupervised visits at the department offices that went well. The minor indicated that he was comfortable with going out of the office because mother had been better, but he did not want any overnight visits. He also said that sometimes his mother wanted to talk about things that made him uncomfortable, such as asking him if he wanted to return home. He also expressed concern about mother and her boyfriend arguing again, and that his mother would "go back to her old ways of over-reacting." He said he was feeling neutral about returning to her home.
Following a successful unsupervised visit at home, the social worker contacted mother about setting up a family meeting to devise a "safety" plan in the event that the minor was returned to her care. Mother appeared comfortable and said she would allow the minor's present caregiver to participate. However, several days later, the minor called the social worker to report an unsupervised phone visit he had with mother. He said the visit had not gone well and that they had talked about the upcoming meeting. Mother said she thought the lawyers should be present, but she did not want the caregiver there, stating that the latter just "wants to adopt you." Mother also asked him if he "wanted to come home," and told him if he did not want to come home, she would "pack up and leave."
The minor himself requested that a social worker be present at the next in-person visit because he was not comfortable being placed in the middle between his mother and the foster parent.
Thereafter, the social worker and her supervisor met with mother to express their concerns about discussing the case with the minor and putting him on the spot. When asked why she said hurtful things to the minor about packing up and leaving, mother responded, "It probably hurt his feelings but it is true, I will leave. You told me to be truthful." Mother then accused the foster parent of trying to take the minor away from her and stated her belief that he should never have been removed in the first place. Mother became angry and left when she was told that she had to meet with the social worker and the minor prior to the next day's in-person visit. Later that day, mother called the social worker and angrily stated, "You guys are trying to screw me out of my visit." She also said that she "did not want CPS to call me anymore." Before hanging up, she added, "I'm done with this."
As a result of this behavior, CPS required that all visits be supervised, but mother continued to make inappropriate comments in front of the minor and became more combative with CPS staff. Numerous attempts were made to explain to mother the reasons for supervised visits. Mother had consistently participated in individual and family counseling with Ms. James, but her attendance began to wane after mid-August. She requested a new therapist. Ms. James reported that mother had trouble staying in session if the subject turns to something she does not wish to hear.
Mother was also unwilling to listen to the minor's concerns during family counseling. Instead, she stated that he should "get over it" and not focus on the "yukky."
By the time of the 18-month hearing, it was reported that mother continued to test clean for controlled substances and to participate in her anger management. However, she had regressed in her interaction with the minor as described above. At the conclusion of the hearing, the juvenile court pointed out that mother had been working well with Ms. James until her recent regression, and commented that there was nothing that led it to believe that Ms. James was engaging in inappropriate therapeutic techniques. The court concluded that it appeared mother was not willing or perhaps not able to fully engage in appropriate treatment.
The court expressed concern about mother's highly inappropriate communications with the minor, which demonstrated her lack of insight into how her behavior adversely affects his emotional well-being. The court found return of the minor would create a substantial risk of detriment and, accordingly, it terminated services and set a hearing pursuant to section 366.26.
DISCUSSION
Mother contends that CPS did not provide reasonable services to her and, in particular, did not provide reasonable visitation to occur, which would have allowed successful reunification. Instead, she charges that despite the significant progress she achieved in her case plan, she could not succeed because CPS was motivated by the minor's express desire not to return to her. We disagree. Mother's accusations are misplaced.
First, there is substantial evidence to support the finding that the services were adequate. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The record shows that CPS identified the problems leading to the loss of custody and offered services designed to remedy those problems. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) While mother made significant progress in some areas of her plan, she failed in the most significant part of her plan: to understand and appreciate the effect that her behavior had on the minor's emotional well-being and then to ameliorate her conduct. As the juvenile court found, mother's failure to gain insight from therapy was not the fault of the therapist CPS provided, but her unwillingness to listen to anything she did not want to hear. CPS was increasing unsupervised visitation between mother and the minor despite the latter's wariness. It did not revert to supervised visitation to pander to the minor's adolescent whims but in response to mother's conduct, which was inflicting further emotional trauma on the minor. Even during the course of supervised visitation, mother seemed unable to conform her behavior, but continued to put her own frustrations above the minor's well-being. Thus, the juvenile court properly considered mother's lack of progress and demonstrated lack of capacity to remedy the reasons that led to the removal of the minor in the first place. (In re Dustin R. (1997) 54 Cal.App.4th 1131.) The record also amply supports the juvenile court's finding of a substantial risk of emotional harm to the minor if he were returned to mother's care.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.