Opinion
A152640
01-05-2018
DONNA L., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD16-3190)
Donna L. (mother) petitions this court for extraordinary review of a juvenile court order setting a hearing to select a permanent plan for her child, D.L. (minor), under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred because (1) she was not provided reasonable services, (2) there was a substantial probability minor could be returned to her home by the 18-month review hearing, and (3) the order limiting her educational rights was not necessary for protection of minor. We reject mother's contentions and deny the petition.
All statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2016, mother arrived at a San Francisco Human Services Agency (Agency) facility and asked the Agency to take minor. She admitted she could not keep him or his nine-year-old brother safe due to minor's violent and uncompromising behavior. The Agency filed a petition under section 300, subdivision (b) (failure to protect) to establish dependency jurisdiction. The detention report filed with the petition alleged separate incidents in which mother reported minor (1) hit her from behind on her head while driving and (2) pulled her seat back so that her hands " 'flew off of the steering wheel.' " The report indicated mother had adopted both minor and his brother, and noted mother had an extensive history with child welfare, with 11 prior child welfare referrals. Minor was detained and placed in foster care.
In a disposition report filed the following month, the Agency recommended minor be removed from mother's care and mother receive reunification services. The report discussed seven of the prior referrals for the family, including an incident in May 2016 when mother contacted adult protective services seeking help because minor had punched her and hit her with a bunk bed ladder. Mother called minor " 'mean, crazy, and violent' " and said she contacted "Child Crisis" and the police for help with minor after he tried to burn the yard outside their home.
The disposition report noted minor's therapist diagnosed him with other trauma related stress disorder and said he has characteristics of autism spectrum disorder. His therapist and support counselor both reported mother favored his brother. Minor reported in October 2015, that the prior year mother told him she hated him and he was an awful son. Minor's therapist believed mother and minor "trigger" one another and was concerned about mother's emotional regulation. The Agency also expressed concern about mother's emotional regulation, noting she called service providers and the Agency several times a day, and appeared highly anxious and impulsive. After a settlement conference, the court declared a dependency and made disposition orders calling for reunification services for mother, including among other things, family therapy.
In October 2016, the juvenile court granted mother's unopposed section 388 petition requesting minor be returned to her care and set a six-month review hearing for April 2017. Mother continued to receive family maintenance services, including individual therapy, family therapy/therapeutic visitation, and parenting education.
On April 4, 2017, the Agency filed a section 387 supplemental petition again seeking to remove minor from mother's care based on a March 2017 incident in which minor pushed mother. The petition alleged minor's behavior had been escalating and mother was unable to adequately supervise minor. The accompanying detention report reported minor became angry during an argument and hit, punched, and pushed mother. Minor reported mother had grabbed him and he was " 'going to fight back.' " Mother told her therapist, and confirmed to an Agency social worker, she was planning to relinquish parental rights, did not want minor back in her home, and did not want any further contact with him. The juvenile court renewed the dependency and ordered reunification services for mother.
A status report filed in August 2017, in advance of minor's 12-month review hearing, reported mother had placed a hold on minor's medication account at the pharmacy, preventing his foster mother from picking up his medications. The report also noted mother had called the foster mother several times and hung up. An addendum to the report stated mother called minor on July 25, 2017, and told him she wanted to come home, saying he was "a paycheck" to his foster mother, the Agency, and service providers. Mother also told minor he was being abused by foster care and child protective services (CPS).
On August 10, 2017, counsel for minor filed a section 388 petition seeking to limit mother's educational and developmental rights. The petition alleged minor was about to begin middle school and though he was placed in foster care in Modesto, mother was insisting he attend school in San Francisco. To attend school in San Francisco, minor would have to get up at 4:00 a.m. and travel over two hours each way, exposing him to sleep deprivation and hours of time in traffic each day. Mother opposed the petition.
Just prior to the 12-month review hearing, the Agency filed a second addendum report, recommending that mother's services be terminated. The report described mother's pattern of behaviors designed to disrupt minor's placement in foster care, including falsely accusing the foster mother of not caring for minor, calling "non stop" and hanging up, and filing complaints against the foster mother. Mother also confused minor by telling him foster mother did not care for him, he would get lost in the school in Modesto, and she was talking to a senator about abuse he is experiencing from CPS. Mother violated court orders by talking to minor on the phone without supervision, while he was hiding in the school bathroom and supposed to be in class. The report noted "mother has exhibited manipulative behaviors which further indicate she has some serious mental health issues," and detailed mother's extensive criminal record from 1992 to 2017, which she had failed to disclose to the Agency.
At the contested hearing, the court heard testimony from two Agency social workers and minor's support counselor at the foster agency. His support counselor testified minor showed physical signs of stress when on the phone with mother and reported his behavior worsened after visits with mother. She also testified minor's foster mother had received a bottle of his prescription medication from mother that was missing pills and contained pills that were not the labeled medication. Mother told minor's school not to discuss minor with his foster mother or support counselor and told minor not to tell them why he had been suspended. Mother also filed a lawsuit against the foster mother for taking a watch phone mother had given to minor, despite the fact the support counselor took the device and told mother she could have it back.
Both social workers opined mother had not made significant progress in resolving the problems that led to initial removal and that she did not have the capacity and ability to complete the objectives of the treatment plan. One of the social workers, Erin Monahan, described mother's ability to manipulate and circumvent legal and medical systems, and noted "mother's untreated own mental illness is impacting greatly [minor's] emotional well-being," and causing him "suffering." She stated "this is a very severe case of child abuse, emotional abuse, and it's extreme high harm and risk to [minor]," and observed that in her 27-year career she "had only one other case that was as severe, but very, very similar, and it was emotional humiliation of the child." She testified mother refuses to follow court orders, makes false accusations against case workers, protective services, and the foster home, and needs a "psychological intervention herself." Mother also inappropriately interjects minor's brother into every situation involving minor. She testified it would detrimental for minor to continue to see mother at this time, and she would be recommending only clinically supervised visitation for mother.
Mother also testified. She contradicted much of the testimony by the support counselor and social workers, denying, among other things, that she mixed up minor's medications. She also shared her opinion that minor's therapist, Dr. Aja Hill, was not effective and was prejudiced against mother because she is White and minor is African-American. She testified about techniques she has learned in family therapy to help minor calm down, and she asked the court order further family therapeutic services.
After hearing argument from counsel, the juvenile court announced its ruling. The court found the social workers and support counselor credible and mother not credible. Acknowledging there was "consistency in [mother's] visits," the court nonetheless concluded mother had not made significant progress in resolving the issues that led to the removal, or demonstrated the capacity or ability to complete the treatment plan. The juvenile court found reasonable services had been offered, terminated reunification services, limited mother's educational rights, and set the matter for a section 366.26 hearing.
II. DISCUSSION
A. Reasonable Services
Mother contends the order setting a section 366.26 hearing must be reversed because the juvenile court failed to implement therapeutic visitation in a timely manner, and thus denied her reasonable services. Though services were ordered at the detention hearing on April 5, 2017, mother contends the therapeutic visits did not commence until June 16, 2017, "an inexcusable delay of over two full months."
If the juvenile court does not order a minor returned to a parent's custody at the 12-month review hearing, it must determine whether reasonable services were offered or provided to the parent to overcome the problems that led to the removal and continued custody of the child. (§§ 361.5, subd. (a)(3), 366.21, subd. (f)(1)(A).) Before setting a hearing under section 366.26, a court must find by clear and convincing evidence that reasonable services were provided. (§ 366.21, subd. (g)(1)(C)(ii); Cal. Rules of Court, rule 5.708(c).) A social services agency is required to "make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the . . . agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.' " (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) "The adequacy of reunification plans and the reasonableness of [the agency's] efforts are judged according to the circumstances of each case." (Ibid.) " 'The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.' " (In re T.G. (2010) 188 Cal.App.4th 687, 697.) We review a finding that reasonable services were offered or provided for substantial evidence, viewing "the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)
At the detention hearing on April 5, 2017, the juvenile court ordered mother to receive supervised visitation, "while therapeutic visits" were "put in place." The order did not specify a deadline for therapeutic visits to begin. Prior to that hearing, minor had been receiving services from Seneca, a social services agency, including "Wrap Around Services," individual and family therapy. Specifically, status reports prepared in October 2016 and April 2017 noted that Dr. Hill, minor's individual therapist since 2015, was providing family therapy services to minor and mother. In May 2017, mother revoked her consent for minor to continue seeing Dr. Hill, and the Agency had to request a court order for individual therapy services to continue. In a status report, the Agency noted mother had also started family therapy with "Mark" at Seneca, but when Mark "began digging in to [sic] some of the deeper issues with mother, she decided she did not want to continue with him."
Mother began family therapy sessions with Dr. Gregory Loveseth of Foster Care Mental Health on June 16, 2017. Between June 16 and September 20, 2017, mother had 11 supervised therapeutic visits with minor and Dr. Loveseth. The visits took place weekly and lasted approximately two hours each. In September 2017, Dr. Loveseth decided to terminate therapeutic services after he reported mother made false allegations against him. A status report indicates "mother has a pattern of sabotaging therapeutic treatments."
Mother asserts "[t]herapeutic visits were arguably the most crucial component of the Case Plan" and the agency's 68-day delay in providing visits meant that mother was denied the "most vital service required" for more than half of her reunification period. The record reflects, however, that family therapy services were provided through two different therapists at Seneca prior to the initiation of visits with Dr. Loveseth—at least, until mother stopped participating. It is thus unclear whether there was any delay in implementing family therapeutic visits between April and June 2017. Even assuming there was a two-month delay, however, it was not unreasonable, particularly given mother's revocation of consent for minor to receive individual therapy during that time frame and the Agency's scramble to reinstate those services and reestablish minor's individual therapy. Once weekly therapeutic visits began with Dr. Loveseth, they occurred consistently until he sought to terminate visitation due to mother's allegations against him. In sum, substantial evidence supports the juvenile court's finding reasonable services were provided to mother. B. Substantial Probability of Return After 18 Months
The status report does not indicate the dates of family therapy services provided by Mark or by Dr. Hill beyond April 2017.
Mother argues the juvenile court's termination of reunification services is not supported by substantial evidence. She contends she was making progress on her case plan and demonstrated a likelihood of return within 18 months.
At the 12-month review hearing, the juvenile court must order a child returned to a parent's physical custody unless it finds the social services agency has proven by a preponderance of the evidence that the child's return "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(i).) When, as here, the court finds a substantial risk of detriment and court-ordered services have already been provided for the statutorily required time (see § 361.5, subd. (a)(1)(A)), the court may continue services "for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from [the parent's] physical custody . . . . if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time." (§ 366.21, subd. (g)(1).) To find a substantial probability of return, the court must find a parent has (1) consistently visited and contacted the child; (2) made significant progress in resolving problems that led to the removal; and (3) demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection, physical and emotional well-being, and special needs. (Ibid.) Although the statute "recognizes a parent who still poses a risk of detriment at the 12-month hearing could with additional time successfully rehabilitate and reunify," it "set[s] a very high hurdle for continuing the case beyond 12 months." (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060.) We review the juvenile court's determination there was not a probability of minor's return to mother for substantial evidence. (See Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.)
Here, there is overwhelming evidence mother had not addressed the problems that led to minor's removal from the home and had not demonstrated she would be able to provide for minor's needs. Despite participating in more than a year of individual and family therapeutic services, mother's manipulative and emotionally abusive conduct continued unabated. The record reflects she made hurtful, inappropriate, and confusing statements to minor in the months leading up to the permanency hearing, violated court orders by contacting minor without supervision, and repeatedly engaged in efforts to undermine the foster care placement and minor's therapeutic services. Her irrational behavior, including stopping minor's medication orders and providing unlabeled medication to minor's foster parent, directly threatens his health and safety. Though mother denied some of incidents described by minor's social workers and support counselor, the juvenile court found her testimony not credible. Based on our review of the record, we conclude substantial evidence supported the juvenile court's finding minor would not likely return to mother within the 18-month period. C. Educational Rights
Mother contends the juvenile court's order limiting her right to direct minor's education was an abuse of discretion. We disagree.
When a minor is adjudged a dependent child, the court may limit the rights of the parent or guardian to make educational or developmental services decisions for the child. (§ 361, subd. (a)(1).) Such limitations "may not exceed those necessary to protect the child." (Ibid.) "We review the juvenile court's order limiting parents' educational rights under an abuse of discretion standard [citation], bearing in mind '[t]he focus of dependency proceedings is on the child, not the parent.' " (In re R.W. (2009) 172 Cal.App.4th 1268, 1277.)
We find no abuse of discretion in the juvenile court's decision here. Mother's insistence that minor attend school in San Francisco, requiring a daily round-trip commute over four hours from his foster home in Modesto, demonstrates poor judgment and an unwillingness to consider minor's best interests. Mother told the school its staff members were not permitted to speak with minor's support counselor or foster mother, creating confusion for the school and preventing the counselor and foster mother from receiving important information about minor. Mother's efforts to disrupt minor's foster care placement and therapeutic relationships are also troubling and reflect poor decisionmaking. Moreover, as the juvenile court observed, mother has a "conflicted relationship with [minor] that will continue or is likely to continue," which negatively affects her ability to make decisions in his best interest. The evidence amply supports the juvenile court's implicit determination the limitations on mother's educational rights were necessary for protection of the minor. (§ 361, subd. (a)(1); see In re D.C. (2015) 243 Cal.App.4th 41, 58-59.)
III. DISPOSITION
The petition for extraordinary writ relief is denied on the merits. Mother's request for a stay of the section 366.26 hearing is denied as moot. The decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.