Opinion
A149598
01-31-2017
Jethro L. et al., Petitioners, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent; DEL NORTE COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. JVSQ 15-6015)
Patricia W. and Jethro L., mother and father of S.L., have filed petitions for extraordinary writ challenging the Del Norte County juvenile court's order terminating their reunification services and setting a hearing under Welfare and Institutions Code section 366.26 to adopt a permanent plan for S.L. Both contend the court erred in finding they were provided with reasonable services, and mother also contends it erred in finding her mental health problems would pose a substantial risk to S.L. if he was returned to her care. We conclude the parents' arguments are without merit and deny their petitions.
All statutory references in this opinion are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
As a result of his parents' difficulties, three-and-a-half-year-old S.L. has spent most of his young life in foster homes, under the supervision of Del Norte County Department of Health and Human Services (the Agency). In a preceding dependency proceeding initiated in 2013, two-month-old S.L. was removed from his parents' custody after his mother had delusions and heard voices telling her to kill S.L. S.L. was later returned to his parents' care in 2014 and a family maintenance plan was adopted.
I.
The Agency's Petition Allegations
This dependency proceeding began in 2015. The Agency alleged in its section 300 petition that S.L. was at significant risk of harm because his mother suffered from severe mental illness involving delusions and auditory hallucinations in which she heard voices telling her to kill S.L. The Agency also alleged mother was not compliant with her medications and had repeatedly been hospitalized in psychiatric hospitals for periods longer than a week. The Agency also alleged S.L. was in serious danger of harm because his father was in denial about the dangers mother posed to S.L., denied mother had a significant mental health problem, did not believe mother posed any risk to S.L. and, therefore, was unable to protect S.L. from the dangers posed by mother. The juvenile court found these allegations true, asserted jurisdiction, and after a disposition hearing ordered reunification services for both parents.
II.
The Parents' Prior Writs
After a six-month review hearing, the juvenile court terminated reunification services and set a permanent plan hearing under section 366.26 based on the Agency's recommendation that mother and father had not fully engaged in the services outlined in their case plan, mother was still hearing the voices in her head that had led to the detention, and father was still in denial about the potential for mother to harm S.L.
Both parents sought writ relief. In January 2016, we reversed the juvenile court's order because there was no substantial evidence that the Agency had provided reasonable services to S.L.'s parents. The Agency had not carefully evaluated mother's mental illness, without which the Agency could not provide reunification services appropriately tailored to her needs, and had not provided services to father to help him better understand the gravity of the risk mother posed or pursue the possibility of single parenting S.L. by permanently separating from mother. We remanded the matter and directed the juvenile court to vacate its order and order the Agency to provide further reunification services to the parents consistent with our opinion.
III.
The Proceedings in Juvenile Court After Remand
Upon remand, mother and father continued to engage in problematic conduct. This included mother's continuing delusions about S.L. and her hospitalizations because of her mental health problems, which occurred both in California and elsewhere; father's denial of mother's mental health issues and the risk she posed to S.L., as well as father's own illegal drug use, and arrest and jailing for drug offenses; neither parent's willingness to comply with the Agency's offer of reunification services or with the case plan that was ultimately adopted by the court; the parents' continued substance abuse; and both parents' failure to engage in regular and/or appropriate visitations with S.L. We will refer to some of this conduct below, but it is not necessary to detail it all to make the point: S.L. continued throughout this proceeding to face significant risk of harm if he were returned to his parents' custody, and neither parent showed sufficient progress on their case plan so as to alleviate concerns about this significant risk of harm.
A. Further Juvenile Court Review and Adoption of a Revised Case Plan
The Agency and the court engaged in diligent efforts to reunify the family. In late February and early March 2016, the Agency resumed providing reunification services to mother and father and visitations with S.L. In February 2016, the juvenile court, consistent with our decision, vacated its prior orders. Subsequently, it rejected the Agency's proposed new case plan for the parents as inadequate in light of this court's opinion. The court indicated that a new psychological evaluation of mother was needed and directed the Agency to file previously prepared psychological evaluations with the court.
In March 2016, the Agency filed with the court four prior psychological reports (three of mother and one of father). It also submitted a revised proposed case plan for mother and father in accordance with the court's guidance. For mother, this revised plan included that she should receive monthly injectable medications, with the Agency or county's mental health facility (Mental Health) providing transport to her to receive her medication; regularly attend appointments with her psychiatrist at Mental Health to ensure her medications were meeting her needs; and continue to see her counselor at Mental Health, where among other things "[p]sychoeducation regarding the importance of medication compliance will be provided." The Agency also recommended that she participate in a dual diagnosis group to further educate herself on the effects of drug use on herself and her family, domestic violence programming at Harrington House, and Safety Organized Practice Family Facilitated Meetings (SOP meetings). The Agency would "speak with [Mother] weekly regarding her opinion on the therapy she is receiving" at Mental Health and "assist [Mother] in problem solving any difficulties that arise." The Agency would also arrange review by and consultation with a forensic psychologist, Dr. Roy, to tailor mother's case plan to her particular needs and evaluate the impact of her behavior on S.L.
Evaluations of mother in 2014 and 2015 reflected diagnoses of "chronic, paranoid schizophrenia," "Schizoaffective Disorder," "atypical psychosis . . . secondary to major depression," schizophrenia, possible ADHD and cannabis abuse, and "Perpetrator of Child Neglect (secondary to psychosis)." The reports describe a family history of schizophrenia and suicide suggesting a possible genetic link to her mental illness, a history of hospitalizations for mental health issues from age 13 to present, symptoms of suicidal ideation and attempts, auditory hallucinations, delusions and paranoia, and a history of failed efforts to manage her illness due to noncompliance with her medication regimen. Mother was also "highly defensive" and had "a distorted view of her psychological adjustment, suggesting significant denial of the fact that she [was] seriously mentally ill, a symptom of her disease."
The report regarding father, prepared in 2014, indicated he understood the Agency was concerned that he was not taking mother's mental illness seriously, but in his view the Agency "thought that it was worse than it was" and had " 'made [him] jump through the hoops.' " When asked about his own culpability, he indicated that in the Agency's eyes he had been negligent for failing to supervise, but he did not agree with this view. Father "never acknowledged any culpability whatsoever." His "statements and thoughts did not convey any realistic grasp of the potential severity of [mother's] delusions regarding demands to kill the child." Mental status observations and testing indicated father "appear[ed] to suffer from narcissistic personality disorder with suspected secondary features of attention neediness and dependency." As a result, he likely would "find it extremely difficult, if not impossible, to examine his own faults and shortcomings in order to make necessary changes."
For father, who by this time had been jailed for drug offenses, the Agency recommended that he should engage in programs both while he was in jail and after his release, including attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings regarding substance abuse, be assessed at county AOD for services and treatment recommendations, complete parenting workbooks in prison that the Agency sent to him, complete the Pre-CAPT program and regularly attend SOP meetings. The Agency also recommended visitations be offered to the parents and jail visits for father while he was incarcerated in Del Norte County.
"AOD" or "A.O.D." apparently refers to alcohol and other drug services. (See K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1391.)
The "Pre-CAPT" program is a parental training program focused on preventing child abuse.
Also in March, the Department submitted a letter to the Agency from Mental Health regarding mother. It reported that mother returned to Mental Health for services in late February 2016. A psychiatrist, Dr. Sharman, had diagnosed her as having schizophrenia and a history of multiple psychiatric hospitalizations, and found she had "symptoms includ[ing] delusional thought content, auditory hallucinations, difficulty focusing and concentrating, anxiety, difficulty managing hygiene, and hypersexual behavior." Mother had reported "a lengthy history of struggling with substance abuse including methamphetamine, cocaine, alcohol and marijuana," and that "[s]he is currently using inhalants." Mother had also reported a "history of being in relationships fraught with domestic violence" and that "there is domestic violence in the relationship with the father of her son."
The juvenile court held numerous hearings in the first half of 2016 regarding mother's psychological evaluation and the parents' status, continuing hearings repeatedly in the face of parental or counsel unavailability and issues resulting from the parents' conduct.
On May 11, 2016, the Agency filed an interim review report with the court. It reported mother had been asked to leave a program for domestic violence victims at Harrington House because she was "inhaling dust off and being loud;" had been hospitalized for a psychiatric evaluation after refusing to take her medications because voices told her they were not hers; was engaging in " 'chronic and severe psychoactive substance abuse' "; and was " 'unwilling and unable to confront her own behavior.' " While hospitalized, she wrote to S.L. that she was not his mother. She had also been hospitalized in Missouri, gone to her father's home in New Jersey, made her way back to California, and denied that she needed to go to Mental Health. She began taking her medications again, but resisted the Agency's efforts to have her evaluated and canceled visits with S.L. She later expressed a desire to complete services.
The Agency reported that father had returned an AOD booklet the Agency sent to him in his Nevada jail with statements such as " 'I'm smart enuff to not use to make my life complete' 'Just want my child back' 'I'm happy and a good dad' 'happy person not dope fiend' 'not my bag of tea' 'didn't do this to myself thanks!' 'I have a great memory' 'thanks for your help with others' [and] 'I try to help others with problems, so we are in the same job!' " Yet, father had tested positive for cocaine, "demonstrate[ed] extremely bizarre behavior over a significant period of time," was "currently incarcerated for charges related to being caught with seven pounds of marijuana and psilocybin mushrooms in his vehicle" and "reported [sic] pled guilty to two felonies and will be facing sentence on June 13, 2016."
The report attached a Nevada Supreme Court opinion issued in October 2013 upholding a search of father's car that yielded psilocybin mushrooms and seven pounds of marijuana and resulted in charges of trafficking, possession for sale and possession of controlled substances.
On May 11, 2016, the Agency also submitted a report by Dr. Roy, in which he indicated he had reviewed the discharge summary of mother's most recent hospitalization and interviewed her on April 27, 2016. He opined it was "imperative" for the Agency to seek a conservatorship of mother in order to manage her mental health treatment and assure medical compliance. Mother had been hospitalized for psychiatric issues on nine occasions since she was 13 years old, and a significant number of those occurred in the past two years. She had experienced "command auditory hallucinations (CAH) to harm her child, her parents, herself, and members of her family." She had recently reported to mental health staff that "she had not been taking her medication, was 'huffing' Dust Off to get high and wanted to have all her orifices sewed together along with her eyes and lips so she would never have sex again." She had "stated that she did not wish to unify with her child, and would refuse any further mental health treatment," and was observed to be "erratic, unstable, and unpredictable in behavior and decisions she has made which have not shown the best judgement. Her medication compliance [was] questionable, and her recent hospitalizations [had] been related to not having or taking her prescribed medications. Her diagnosis is Schizoaffective Disorder, Bipolar type, complicated by a personality disorder, most likely Borderline, and polysubstance abuse."
Dr. Roy had doubts about mother's commitment to her case plan and S.L. He suggested "her therapist could engage [her] in an in-depth discussion over a number of sessions whether she wanted a child to begin with, as the subsequent ambivalence and destructive fantasies could be a reflection of her subconscious desire to not have wanted this child in the first place." He also wrote that mother's primary supports, her parents, lived on the East Coast, and that she needed to develop local supports apart from Agency staff.
Dr. Roy concluded S.L's risk resulting from mother's symptoms was "found to be a moderate risk dependent on her taking her medications, not abusing substances, avoiding stressful situations, and not being involved in abusive relationships." He thought "[t]he main protective factor has been her seeking help when [she has been] symptomatic in the past," and that "medication compliance and substance abuse" would be continuing issues for her requiring close monitoring going forward.
The Agency also submitted a letter from Jack Breazeal, a licensed therapist and clinical services manager with Mental Health. Breazeal reported that the Agency and Mental Health had been working with mother to engage her in services in the hope of providing reduction in the symptoms of her schizophrenia. Noting that in the past mother had "seen some success while on medication," he observed that this was "a difficult disorder to treat," and recited some recent incidents with mother demonstrating her resistance to treatment, such as when she arrived two hours early for her appointment with Mental Health on April 28, 2016, only to walk out shortly before the appointment was to begin "stating she will only attend mental health appointments with her lawyer and was going to sue the county." Breazeal stated mother was receiving medication but was still "quite delusional." He hoped mother would "see the psychiatrist once monthly, attend our day program every day to get group therapy, individual therapy, and case management" and indicated Mental Health would "look to link her with a peer support specialist to provide additional social supports." He thought "given [mother's] level of symptomology that all that can be done is being done for her by social services and mental health."
On May 18, 2016, the Agency submitted a revised case plan that it modified in accordance with Dr. Roy's recommendations. The court held a hearing on the plan on May 20, 2016. The Agency social worker indicated mother had "not filled her oral [prescription] as prescribed," had texted that she was "leaving town, not attending court or visits today and doesn't wish to reunify with the minor." At mother's counsel's request, the court struck Dr. Roy's conservatorship recommendation and otherwise adopted the Agency's recommended case plan.
On July 8, 2016, the court held a hearing to review the case plan regarding father. Father, on probation in Nevada, had applied for an inter-state compact, "agreed to meet with A.O.D., but refuses to test on the color system," "admitted to continued marijuana smoking and claims that he has no intention of quitting" and would "not be eligible for A.O.D. while still using marijuana." The court stated it wanted to see father's Nevada probation terms, his "215 card" and his AOD assessment. Mother asked the court to review her case plan because she did not think she needed to participate in Mental Health's dual diagnosis program, since she was involved in a "PC-1000" drug and alcohol program in Humboldt County.
A "215 card" apparently refers to a medical marijuana identification card, part of a system of legalized medical use of marijuana resulting from passage of Proposition 215. (See People v. Descano (2016) 245 Cal.App.4th 175, 179.)
See Penal Code section 1000 regarding a deferred entry of judgment program for certain drug offenders.
The court continued the hearing to July 22, 2016. The minutes for this further hearing state: "The father's probation terms from Nevada were received by the Court and local probation advised that it will not be allowed to be on medical marijuana. Ms. Friedrich [the Agency social worker] advised that the treatment program will not accept a 215 card. The mother's on a waiting list for the PC 1000 program and her Dual Diagnosis program has stated that they will not allow continued marijuana use. The mother advised the Court that she's used marijuana for 18 years and she refuses to stop now," was homeless, and was receiving her monthly injections.
On July 18, 2016, the Agency submitted father's probation agreement and rules to the court, and indicated it had been told by probation "that [father] is a drug offender and should not be using a 215 card." The probation agreement showed father had pled guilty to two counts of possession of controlled substances for purpose of sale. Probation conditions included that father "not use, purchase or possess any illegal drugs, or any prescription drugs, unless first prescribed by a licensed medical professional," "immediately notify the Division of Parole and Probation of any prescription received," and "submit to drug testing as required by the Division or its agent."
The court apparently found the case plan was appropriate. The plan required mother to participate in a dual diagnosis group and follow its recommendations, including drug testing, and that father "not be under the influence while caring for his child," "learn about the effects drug use has on himself and his relationships by completing substance abuse booklets sent to him by the [Agency]," "be assessed at County AOD for services and . . . follow recommendations for treatment," and "be tested on a random basis and . . . test negative for illegal drugs."
B. The 12-Month Review
1. The Agency's 12-Month Review Report
In an extensive 12-month review report filed with the juvenile court on September 2, 2016, the Agency, after relating the history of the case, reported that father and mother were living together but the status of their relationship had frequently changed. Mother was "considered compliant with her medications" but "non compliant with virtually every other aspect of her case plan, which has been negatively reflected in her mental health stability." The Agency reported on the history of mother's inability or unwillingness to accept the help it offered, only some of which we have already recounted, including her frequent disappearances and sudden departures for other parts of the state and other states, hospitalizations, missed psychiatric and counseling appointments, resistance to participating in her case plan programming, missed visits with S.L., expressions of ambivalence about reunification with S.L., use of inhalants, mushrooms and marijuana and refusal to stop using marijuana despite the psychiatrist's advice that it had negative effects on her mental health.
The Agency attached a report from Mental Health's Breazeal dated August 29, 2016, stating that Mental Health had been working with mother since her return from New York in late February 2016, but that she had failed to participate consistently. Her psychiatrist had "started her on injectable anti-psychotic medication to help with compliance" but "she had failed to show for 3 appointments since April," which were "critical" to monitoring and assessing her symptoms and medication needs. She also "disregarded the psychiatrist's advice to cease her use of marijuana which is counter- indicated for the type of psychotropic medication she is taking." Mother had been compliant with her injectable and oral medication, "but unfortunately it has not been enough to alleviate her symptoms."
Mother also had been unable to make progress in other case plan requirements. The Agency reported that it had attempted to help mother "gain a positive support network," but that "her distrust, unpredictable behavior, and lack of consistency with contact with the [Agency] have all been barriers." Mother was not attending Harrington House groups regarding domestic violence issues after being asked to leave because of her use of nitrous oxide at the facility, and she claimed to staff there that she did not need the services because "she wasn't reporting being in an abusive relationship." Mother's relationship with father "continued to be dysfunctional, co-dependent, and unclear." She had "disclosed to her therapist a history of domestically violent relationships" and "stated that she has domestic violence in her current relationship."
Mother had not attended parenting classes and had been very inconsistent in visiting with S.L. Her record reflected many cancellations, "[n]o call, no show[s]" and visits she left early. She left the area for extended periods of time without bothering to cancel visitations, to which S.L. was brought, and sometimes "left visits upset, yelling without even saying goodbye to [S.L.]." She "appeared to demonstrate little insight into how her erratic, unpredictable behavior impact[ed] [S.L.'s] well being." At visits, she "typically ma[de] a sincere effort of interacting with [S.L.], . . . play[ed] with him, talk[ed] to him, and [fed] him." However, for "an extended period" she had "an unusual fascination with feeding [S.L.]," brought a "large amount of food to visitation," "often expressed concern that [he] was hungry, despite [S.L.] refusing food during visits," and cancelled visits because she had no food for him. She told S.L. "that he won't ever have to starve because he can eat food out of a trash can."
Mother told the Agency she would ask the court to continue services "because she read online that it can take people a full year to adjust to their medication." At times, the Agency reported, she appeared willing to engage in services and work toward reunification "and at other times she appear[ed] to value her freedom and her ability to be transient."
Father had "spent several months incarcerated during this reporting period and he [had] also spent some time traveling. For the most part he [had] been consistent with his visits." However, he had "procrastinated" in engaging in services, completed only one workbook assignment while incarcerated, had "yet to receive an AOD assessment," participated in Pre-CAPT for approximately one month and attended just one SOP meeting.
Father "continue[d] to lack insight into the safety concerns that prompted the [Agency's] involvement and ha[d] continued to smoke marijuana despite probation's request to refrain from the use of marijuana. According to probation, [father] has been warned regarding smoking marijuana and if his THC levels don't start to decrease, he will be violated." In December 2015, he tested positive for cocaine but denied using it and suggested there was a "mix up from the lidacane [sic] he received at the dentist." The Agency received a report that he was using "ketamine, a hallucinogenic drug that can cause unpredictable and dangerous behavior." In June 2016, when the Agency learned father was back in the area after his release from Nevada jail, it attempted repeatedly to persuade father to participate in an AOD assessment and drug testing as required by his case plan. Father repeatedly refused to participate as required, saying among other things that "he did not want to be treated as a 'drugie [sic],' " and maintaining "that he shouldn't have to do the same 'stuff for the [Agency] that he has to do for probation." When he was notified that probation had told the Agency social worker he could not smoke marijuana, he said "he would leave the county if that was the case," and accused the probation officer of "violating his human rights and his religion of being Rastafari." He had been asked to receive a recommendation from his primary care physician for marijuana and stated that it was " 'impossible.' "
The Agency continued to be concerned about father's "ability to recognize the danger [mother] poses to her young son and his ability to protect [S.L.] from [mother's] unpredictable behavior." "It appears as if [father] is either perceiving himself as a victim of unfair treatment by [mother] or is minimizing her behaviors and denying any problems." He had a "pattern of breaking up and making up" with mother since his release from jail in June 2016. The Agency was concerned that mother's "risky behavior is normalized and minimized by [father] and if [mother], the primary care provider of [S.L.] during visits and in the home, is caring for [S.L.] he will be exposed to the dangerous situations [mother] gets herself into."
The Agency also reported that after father left jail, he initially joined mother in monitored visits with S.L., but "then refused to visit until his visits were moved to the less supervised setting." The Agency accommodated him, but father "sat in a chair, frequently ate [S.L.]'s food and exchanged limited communication while his son played." "For the most part," he was "consistent with his visits" since June 23, 2016, but had cancelled about seven times and had three "no call, no shows." During the majority of his visits, he watched S.L. play with other children but only infrequently interacted with S.L. Father told the Agency he should have S.L. back in his care and that two years of reunification should be enough. He said mother "never hurt [S.L.] and she would not pose a threat to him." He believed "he could be a single parent if he had to," but "didn't know if he could do it by himself" and recognized "his age and motivation level may be barriers."
The Agency also provided a criminal history for father, which dated back to 1995. Father had repeatedly been arrested and/or convicted for drug-related activity, including possession of marijuana or unidentified controlled substances for sale, was twice charged with and at least once convicted of providing false identification to a police officer and was charged three times with parole or probation violations. The report indicated that father had been sentenced to 19 to 48 months (concurrent) for each of his recent Nevada convictions and had received probation and that Nevada had completed an interstate agreement with California for his supervision.
The Agency reported that S.L. was loved and cared for in his foster home, but his foster parents were unable to keep him long term. He had no serious health concerns and was a "charming, excitable, handsome little boy who loves to play and interact with other children" and who, "like most young children . . . sometimes has a hard time sharing and being told no." Although he was "affectionate with" and "appear[ed] to enjoy playing with" mother and father, it did "not appear as if being separated from them causes him any great distress." He referred to his foster mother and her significant other as "mom and dad" and "appear[ed] closely bonded with them." The Agency had referred S.L. to a state adoption specialist, but "most potential adoptive homes are interested in placement once reunification services have been terminated and the child is working towards a permanent plan."
The Agency concluded that S.L. would not be safe reunifying with his parents. It recommended that S.L. remain a dependent of the court in foster care, that reunification services be terminated, and that the court set a section 366.26 hearing to select and implement a permanent plan. The Court Appointed Special Advocate (CASA) made the same recommendation, and reported that S.L.'s maternal grandmother, who was not in a position to adopt S.L., agreed that adoption was the best plan for him.
2. The 12-Month Review Hearing
The 12-month review hearing commenced on September 9, 2016 and the court began hearing testimony on September 26, 2016, with mother absent, father present, and counsel for both participating. Jack Breazeal, the clinical services manager for Mental Health, testified about mother's diagnoses of schizophrenia and cannabis abuse, and her prior diagnoses, the psychiatric and mental health counseling services she was provided, attempts to get her into a dual diagnosis group for individuals with both mental illness and substance abuse disorder, case management services Mental Health provided, the anti-psychotic medication mother was prescribed, the Agency social worker's advocacy on mother's behalf to obtain medication for mother when she was delusional, the importance of her therapy and psychiatric appointments and mother's sporadic attendance of both, mother's reported history of substance abuse and failure to attend any sessions of the dual diagnosis group, and the Agency social worker's efforts in "doing a lot of the outreach and engagement for her with making sure she got to those appointments and those services." He also testified that marijuana can exacerbate the symptoms of patients who have active delusions or hallucinations and make those symptoms worse, that taking inhalants can cause hallucinations, and that where, as in this case, a client is engaged and doing well with services in the beginning and then decompensates even though she is receiving treatment such as medication and therapy, the patient generally is actively engaged in substance abuse. Both he and mother's therapist believed this was what had happened with mother.
Agency social worker Heather Friedrich testified about mother's and father's case plans, their failure to complete the case plan requirements and their visits with S.L., as well as mother's missed appointments. She said mother was medication compliant, but had become less willing to participate in services and, after initially showing more insight into her mental health and what she needed, now thought she was doing fine and did not need anything. Friedrich testified about her repeated efforts to engage mother in services and mother's resistance in doing so; mother's continued abuse of multiple substances and positive drug test; her recent hospitalizations and episodes of bizarre behavior, including her denial that S.L. was her son; and her defiant attitude.
When asked why she thought mother was defiant, Friedrich said, "I think [mother] values her freedom very much. I don't think she likes being told what to do or where to go. I think that she likes to listen to music, smoke marijuana and travel and does not like to be tied down." Friedrich thought mother could be a friend to S.L., but did not believe she was "capable of taking care of herself let alone a child, a small child." Friedrich believed she had done everything possible to help mother cooperate with her case plan. However, mother "accused us of violating her human rights. So I feel at this point she feels like we're harassing her. And I think she wants to be free." Friedrich thought it would be "highly unlikely" that mother could reunify with S.L. in the next six months.
Friedrich testified that the Agency's biggest concern with father was his "inability to recognize [mother's] mental health instability that can affect his child." The Agency was also concerned that he was on probation and refused to stop smoking marijuana, which could lead to his being incarcerated for violating probation, as probation had warned him the week before. She testified about the Agency's efforts to educate him about mother's mental health issues and about father's stated inability to visit S.L. before 10 a.m. due to his "medicat[ing] at night," which Friedrich thought would interfere with his being able to parent S.L. She said S.L. "used [father] as a playmate," but saw no significant parental relationship between them. She had safety concerns for S.L. with father even if mother were not around, based on father's statements that he was beginning to recognize he could not do it on his own, that he had a disability that makes it hard for him to interact with S.L. and that the disability requires him to smoke marijuana. She was also concerned because father had a child welfare history involving a prior partner who was mentally ill and in which "there was concern about him failing to protect those kids."
Friedrich believed the Agency had done all it could for father and did not know what else they could offer him. Father does not believe he has any problems. She thought there was no likelihood father could reunify with S.L. within the next six months because he "has basically had the same attitude throughout the six months as he had in the previous cases. We have not noticed any behavioral change for him at all." He still did not believe mother had ever hurt S.L. or would ever hurt him and did not understand how her mental illness could affect S.L.
On October 4, 2016, a second day of testimony commenced with mother and father present and represented by counsel. Father testified that he could not give up marijuana, which he took for severe back problems and major depression, because "I can't take pharmaceutical drugs on a day-to-day basis. I'd kill myself." He gave his account of various issues, such as his contention that he had completed most of the Pre-CAPT program (although he also admitted he was no longer attending) and participated in SOP meetings, claimed he had a valid "215 card" since the 1990s, and said AOD did not require him to be assessed because of his card. He said S.L. is "really happy to see us" when he and mother visited and missed mother when she did not, and he did not agree with the Agency's negative account of his visitations conduct. He said S.L. would be safe in his home and that no one had ever proved that S.L. would not be safe around mother or that she had been dangerous around S.L. He did not think his probation would interfere with his parenting S.L. and contended that Nevada probation was not concerned about his use of medical marijuana and told him it would work with him about it. He said he would "do anything probation says because I'm—I'm not a criminal," including totally giving up marijuana. He denied that he was prohibited from using marijuana as long as he did so lawfully in California, and claimed a recommendation was considered a prescription in the state.
Father testified that the reason he chose not to visit S.L. before 10 a.m. was not because he couldn't get up in the morning; it was because he couldn't use his medicine in order to drive to see S.L. and had "to get my body adjusted moving" because he had "really, really, really bad arthritis and other back problems," although he could lift S.L. He said he had been to court for hearings at 8:30 and 9:00 a.m.
Father also testified that mother was not staying with him, although she could, and that they were "just friends." He had been trying to get mother stable "to be able to prove that she could be able to be around the child, whether it's full-time, part-time, some time." He felt they were being "persecuted" and that mother had not "done anything to be stripped away from [S.L.]" If the court extended his services for another six months, he would like to have home visits with S.L., would finish his Pre-CAPT, and would "do whatever it takes on probation."
During argument, counsel for father conceded that adequate services had been provided. Mother's counsel admitted that the social worker had provided mother "quite a lot" of services but argued that "[m]other's mental health was interfering with the ability to receive further services."
At the conclusion of the hearing, the juvenile court made numerous factual findings addressing the extensive services the Agency provided, the parents' many failures to comply with their case plans, their lack of insight into mother's mental illness, mother's regression and father's failure to show any improvement during the reporting period, their ongoing drug use and their inability to care for S.L. It found by clear and convincing evidence that "the [Agency] ha[d] complied with the case plan by making reasonable efforts to return the child to a safe home through the provision of reasonable services designed to aid in overcoming the problems that led to [S.L.'s] initial removal and continued custody"; and found by a preponderance of the evidence that return of S.L. to either of his parents "would create a substantial risk of detriment to [his] safety, protection, and physical and emotional wellbeing," the parents had "failed to regularly participate and make substantive progress in the Court-ordered programs" and "have made insufficient progress toward alleviating or mitigating the causes necessitating placement," and there was "no substantial probability that [S.L.] would be returned within the 18-month period." It ordered that S.L. remain a dependent of the court, that the Agency and the state adoption agency prepare and serve an assessment report pursuant to section 361.5, subdivision (g) and that the matter be set for a section 366.26 hearing to select a permanent plan for S.L.
Mother and father filed separate petitions for writ of mandate challenging the juvenile court's order. Pending consideration of these petitions, this court, on November 17, 2016, and December 22, 2016, ordered a stay of the section 366.26 hearing scheduled for January 27, 2017, for each parent.
DISCUSSION
I.
Mother's and Father's Reasonable Services Claims
Mother and father argue the juvenile court erred in terminating reunification services because there was not clear and convincing evidence that they were provided with reasonable services. None of their arguments have merit.
A. Relevant Law
"Reunification services must be 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.' (§ 362, subd. (c).) Accordingly, a reunification plan must be appropriately based on the particular family's 'unique facts.' " (In re T.G. (2010) 188 Cal.App.4th 687, 696.) " ' "[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 . . . ." ' " (Id. at p. 697.)
Section 366.21, subdivision (g)(1)(C)(ii) provides that the juvenile court may not order a permanency planning hearing under section 366.26 unless "there is clear and convincing evidence that reasonable services have been provided or offered to the parent." In reviewing such a finding by the juvenile court, "[w]e review the evidence most favorably to the Agency, which is the prevailing party, and indulge all legitimate and reasonable inferences to uphold [that] court's order." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.) "[W]e examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses." (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) Mother and father, as the petitioners, have the burden of showing there is no substantial evidence to support the juvenile court's finding that reasonable services were provided. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)
B. There Is Substantial Evidence of Clear and Convincing Evidence That Mother Was Provided with Reasonable Services.
Mother argues that the services provided to her were unreasonable because (1) she was not given sufficient time to stabilize on her medications and engage in services, and (2) communication between the Agency and Mental Health was inadequate, impeding mother's ability to receive appropriate mental health treatment. We find no merit in these arguments.
We agree with the Agency that its case plan—not to mention its efforts to implement it—after we remanded the case represent a dramatic "turnaround" from its prior performance. The Agency enlisted the services of Dr. Roy to assist in revising the case plan and its social worker, Friedrich, transported mother to her appointment with Dr. Roy. Friedrich closely monitored mother, maintaining frequent contact with her. When mother was hospitalized, Friedrich obtained the hospital records concerning her care. She maintained close contact with Mental Health, making appointments for mother and checking on her participation in therapy and medication compliance. Indeed, Breazeal, the clinical services manager for Mental Health, testified that Friedrich "was really doing a lot of the outreach and engagement for [mother] with making sure she got to those appointments and those services" and that he had never seen a social worker so involved in a case like this one.
The Agency also did everything it could to assist mother in getting to her appointments or at least verify that they took place every month. The social worker met with mother, called her, texted her, went to her house when she did not answer, reminded her of her injections and other appointments, offered her transportation to appointments, checked in with her therapist at Mental Health, and communicated with mother's parents and with father when mother needed support, missed an appointment or could not be located. The social worker kept in regular contact with mother's attorney regarding mother's progress and arranged a meeting between the three of them to encourage her engagement in services, which mother did not attend. On learning that mother had reported domestic violence in her relationships with father and others, the social worker contacted a domestic violence program at Harrington House to enable mother to attend groups addressing those issues and arranged an intake appointment for her. She also provided mother information about housing and how the Agency could assist her with that financially.
In view of this record, mother has a steep uphill climb to establish that the Agency failed to provide her with reasonable services. She fails to do so.
1. Mother Does Not Establish Any Need for the Agency to Provide Her Hospitalization Records to Mental Health.
Mother's argument that the Agency social worker was somehow derelict in providing reasonable services because she did not provide Mental Health with mother's hospitalization records overlooks substantial evidence indicating Mental Health was well aware of mother's history of "multiple psychiatric hospitalizations." For example, mother's Mental Health therapist referred to them in a letter to the social worker dated March 10, 2016.
Further, the Mental Health clinical services manager testified at the 12-month review hearing that Mental Health was provided with Dr. Roy's report and shared the report with the clinicians working on mother's case. That report states that mother "has had a number of significant psychiatric hospitalizations over the past two years, both voluntary and involuntary" and that "[t]here have been a total of nine psychiatric hospitalizations since she was 13 years old." It discusses mother's recent hospitalizations at North Valley Behavioral Health in Yuba City, California and in Missouri, and observes that "her recent hospitalizations have been related to not having or taking her prescribed medications."
Mother suggests that had Mental Health been aware of other hospitalizations it would have changed her treatment protocol. This is unsupported by any evidence. Indeed, substantial evidence indicates proper protocol was followed—Breazeal testified at the 12-month review hearing that in a case in which a patient had a diagnosis similar to mother's, one would "start them on an anti-psychotic and see how that goes and then additional medication." That is what was done in mother's case. In short, there can be little question that the clinicians treating mother were aware of her hospitalizations and took proper action. Mother's argument of insufficient communication between the Agency and Mental Health lacks merit.
Mother also argues the Agency social worker, after reminding mother of her appointments, should have informed her attorney of those appointments as well because mother had said she wanted the attorney to attend. This too is unpersuasive. First, it ignores the social worker's testimony and reports. Friedrich testified at the 12-month review hearing that mother indicated she herself was in contact with the attorney: "every time she talked about you [mother's attorney] being present she said she's going to call and talk with you about it. Then she takes off." The Agency reported that when its social worker, Friedrich, did arrange a meeting with mother and her attorney, mother failed to show. Further, as Friedrich also testified, mother failed to attend any SOP meetings (including one her attorney attended) and frequently left town when an appointment with her psychiatrist or therapist was scheduled.
Second and in any event, we simply cannot accept mother's contention that the Agency social worker, who was in close communication with mother herself—not to mention father, Mental Health, the hospitals who treated mother, other service providers such as Harrington House and AOD, mother's mother and mother's father—and who made extraordinary efforts to get mother to attend her psychiatric and therapeutic appointments, somehow failed mother or provided less than adequate services because she did not also undertake to notify mother's attorney of every appointment once mother began refusing to attend without her attorney. The social worker was already holding mother's hand every step of the way in an effort to help her manage her mental illness to a point that she could safely parent her child. The case law does not require so much, and it certainly does not require more. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5 [social worker not required to "take the parent by the hand and escort him or her to and through classes or counseling sessions"].)
2. Mother Does Not Establish the Agency Should Have Given Her More Time to Stabilize on Her Medications.
Mother next argues that the Agency did not provide reasonable services because it did not give her the four months she needed for her medications to stabilize her psychological condition before recommending termination of reunification services, the case plan having been ordered just three and a half months before the 12-month review began. This too is unpersuasive.
Mother bases her argument on the testimony of the Mental Health clinical services manager at the 12-month review hearing that it could take a person with schizophrenia if they are medically compliant "four to five months to really get them to a place where they may be—not every symptom is under, not every item is fine. But at least they are functional enough to meet their day to day needs." He also testified that where such a person's schizophrenia was not well controlled, it would be "very difficult" for them to participate in services.
Mother's argument ignores that the record indicates her ability to make progress regarding her mental health was seriously impeded by her failure to attend appointments with her psychiatrist and therapist and take advantage of other services offered by Mental Health, and by her continued use of marijuana and inhalants against her psychiatrist's recommendation. As Mental Health's August 2016 report states: "[Since March 2016, mother] has shown poor follow through with any mental health services, despite her Social Worker's efforts to ensure compliance with these appointments. Her psychiatrist Dr. Sharman started her on injectable anti-psychotic medication to help with compliance. However, she had failed to show for 3 appointments since April with the psychiatrists. These appointments are critical in that client has been started on what could be appropriate treatment, however, there is still constant monitoring that is needed to ensure the correct dosage and assessment for any additional medications that may be needed to stabilize her symptoms. The client has also disregarded the psychiatrist's advice to cease her use of marijuana which is counter-indicated for the type of psychotropic medication she is taking. In therapy the client was working with clinician Carol Kays ASW, but asked to switch providers, without reason, and has failed to follow-through with making three appointments with her new provider. As of the date of this letter, the client came in for her 9:30 appointment on 8-29-16, but left abruptly after signing in stating she needed cigarettes and did not return to keep her appointment. [¶] Since February, [mother] has missed three psychiatry appointments out of five that were scheduled for her during this time frame. . . . She has also missed countless appointments and outreach attempts by her counselors and mental health workers to engage her in services. Her therapy services are intended to treat and process past trauma and issues that contribute to the intensity of her mental health symptoms as well as triggers for substance use. These appointments that she has missed were critical in giving her the comprehensive help she needed." The record indicates mother missed numerous appointments with her psychiatrist and therapist, resisted treatment, persisted in substance abuse that interfered with the effectiveness of her medication and indicated repeatedly that she would not stop this abuse.
The law is clear that the Agency was required to provide mother with reasonable services, including regarding her mental health problems. However, "[i]t is equally well established that 'reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. . . . A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go "on hold" while the parent makes another stab at compliance.' " (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) Such is the case here. After our remand of this case, the Agency and the juvenile court attempted to work extensively with mother to help her grapple with her mental health problems. We have great sympathy for her difficulties in doing so, but we cannot ignore our duty to ensure that S.L. be able to start his young life in a safe and stable environment. The evidence supports the juvenile court's determination that mother did not have the capacity to provide this environment.
In short, there was substantial, indeed ample, evidence of clear and convincing evidence that the Agency provided reasonable services to mother.
C. There Is Substantial Evidence of Clear and Convincing Evidence That Father Was Provided with Reasonable Services.
Father asserts a vague, cursory argument in a one-page brief that he was not offered reasonable services. He argues that the social worker "did a minimal job promoting success of my case plan" and did not provide "services tailored to my family," that he was "punished" for using medically prescribed marijuana, and little else.
As the Agency points out, father does not support his cursory arguments with any relevant legal authority or record citations. He has waived his petition arguments by his presentation of insufficient arguments. (See Cal. Rules of Court, rule 8.452(b) [memorandum must provide summary of significant facts]; People v. Stanley (1995) 10 Cal.4th 764, 793 [waiver is appropriate in the absence of pertinent legal argument]; Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 874 [to effectively raise an issue, appellant must present all the evidence touching on it].)
Even were we to consider father's petition further, it fails for two additional reasons. First, father was represented by counsel and could have argued for more or better services to the juvenile court. Instead, his counsel conceded in the juvenile court that father was provided with adequate services. Therefore, he has forfeited his appellate claim. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [dependency matters are not exempt from rule that reviewing courts will not consider challenge to a ruling if objection could have been but was not made in trial court].)
Second, even if father had adequately briefed his claim and had not forfeited it, we would reject his arguments on their merits. The court sustained allegations that father was in denial about the dangers mother posed to S.L., denied she had a significant mental health problem, did not believe she posed any risk to S.L.; therefore, he was unable to protect S.L. from mother. After remand, the Agency's objective for its plan for father was that he "not be under the influence while caring for his child" and that, "[i]f available in jail/prison, [he] participate in AA/NA meetings and substance abuse counseling" and "a parenting education class." Also while incarcerated, he was to complete "parenting workbooks sent to him by the [Agency]." Once released from custody, father was to participate in various programs, be assessed and, if determined to need treatment, participate in an outpatient drug treatment group and be tested for drugs on a random basis, and was to be offered supervised visits with S.L., in which he was to interact with S.L. "on his level," using the parenting techniques learned in classes he had attended, with the Agency providing him feedback on the quality of the visits. The record indicates the Agency provided these services and that the juvenile court closely monitored the case throughout, holding numerous review hearings between February 2016 and September 2016 before commencing the 12-month review hearing.
Father's participation in his case plan was limited for some months because of his incarcerations in California and then Nevada; he also failed to engage in services offered and available to him. For example, father reportedly had access to AA/NA meetings, substance abuse counseling and mental health services while he was incarcerated in Humboldt but did not participate in them.
Notwithstanding father's subsequent incarceration in Nevada, the Agency made contact with law enforcement there, kept track of his whereabouts, and sent him paper coursework to complete pertaining to parenting and drug use. Father returned the booklet on drug use denying that he was a "dope fiend" or used drugs "to make his life complete" and insisting that he was "happy and a good dad" and various other comments, even though he had admitted to regular marijuana use over a 15-year period, tested positive for cocaine, been arrested with psilocybin (hallucinogenic mushrooms), reportedly been "taking ketamine, a hallucinogenic drug that can cause unpredictable and dangerous behavior," and been arrested and had pled guilty repeatedly to significant drug-related offenses.
After father was released from the Nevada jail on probation on June 15 and returned to the area, the Agency social worker attempted to give him a printout of his case plan responsibilities, a letter informing him of his color for drug testing and an AOD referral. He refused to accept the documents and stated he "did not wanted to be treated as a 'drugie, [sic]' " "shouldn't have to do the same 'stuff' for the [Agency] that he has to do for probation," and did not want programming included in his case plan. He told the Agency he "isn't willing to drug test or do programs as [o]rdered" and, after the Agency social worker arranged for his assessment and informed father he could not use marijuana by the terms of his probation, said "that he would leave the county if that was the case." He rejected the Agency's request that he get a recommendation from his primary care physician for marijuana, stating that it was " 'impossible.' " In July 2016, he admitted to using marijuana and having no intention of quitting.
Despite all of the Agency's efforts, father did little to comply with his case plan. He participated in the Pre-CAPT program for about a month and attended one SOP meeting. As the Agency reported, he "continue[d] to lack insight into the safety concerns that prompted the [Agency's] involvement and ha[d] continued to smoke marijuana despite probation's request [sic] to refrain from the use of marijuana." The Agency remained rightly concerned about his "ability to recognize the danger [mother] poses to her young son and his ability to protect [S.L.] from [mother's] unpredictable behavior . . . . It appear[ed] as if [father] is either perceiving himself as a victim of unfair treatment by [mother] or is minimizing her behaviors and denying any problems." He had continued a pattern of "breaking up and making up" with mother, and normalized and minimized her risky behavior.
There is also substantial evidence that father's visitations with S.L. were problematic. He visited on a consistent basis over an approximately two-month period (from late June through late August), but also had three no shows and seven cancellations during that time. The Agency reported that when it offered mother and father visitation before 10 a.m., they declined with father stating that he " 'medicate[d]' " at night and this "made it hard to 'get motivated' in the morning." It was reported that during visits, he typically sat in a chair, ate S.L.'s food and exchanged limited communication with S.L. while S.L. played.
The Agency maintained regular contact with father, but reported that "his communication" with it was "guarded and limited." He had been equivocal about whether he could parent S.L. alone, alternately stating he "believes he could be a single parent if he had to" and that "he didn't know if he could do it by himself and he is recognizing that his age and motivation level may be barriers." He had at times "admitted that he can't parent on his own and he can't parent before 10 am." He frequently left town on weekends and "reports that he works selling gems and rocks," but his criminal history led the Agency to wonder whether he was continuing to sell marijuana.
This record demonstrates that the Agency made every effort to help father overcome his denial about mother's mental illness and the risk it posed to S.L., only to be constantly rebuffed by him. The only barrier to father receiving services was father's own intransigence. He absented himself from S.L.'s life twice by trafficking in drugs resulting in his incarceration. Having failed to protect S.L. from the threats posed by mother's mental illness, he and mother were separated from S.L. with the result that S.L. spent most of his first few years in foster care. Notwithstanding the allegations of the Agency, the findings of the court and the Agency's attempts to educate him on the subject, father has steadfastly insisted that mother posed no risk to S.L. He refused some services the Agency offered him, and procrastinated for months in taking advantage of others, even after his release from jail, when he had no time to waste. He continued to live with mother, in an on-again, off-again relationship, without acknowledging that her presence would pose a risk to S.L. And he was equivocal about whether he could single parent S.L. and made no effort to prepare to do so.
Also, father refused to participate in a program or make any effort to stop smoking marijuana, and substantial evidence indicates his use of it prevented him from being able to care for S.L. Father contends instead that he was being punished for his use of a prescription drug. The record does not support this assertion, but even if this were the case, it misses the point. Substantial evidence indicates his use of this drug contributed to an unacceptable risk of harm to S.L., a conclusion father does nothing to challenge. Our courts have recognized that "reunification orders [may] intrude upon a parent's liberty," but "the Legislature has determined these intrusions are justified by the need to protect children and enable their safe return to competent parental care whenever possible." (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) A parent's use of alcohol may be legal and his use of prescription drugs may be "approved by a physician," but we would not hesitate to remove a child from a parent whose use of those substances interfered with their ability to safely care for their children. (See, e.g., In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1485-1488; see also § 300.2 [provision of home environment free from negative effects of substance abuse is necessary condition for safety, protection and well-being of child].) The same is true for marijuana. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 452 ["[E]ven legal use of marijuana can be abuse if it presents a risk of harm to minors"].) Father's contention provides no basis for reversal here.
In short, just as our Supreme Court concluded in another case, we conclude father's failure to win back S.L. indicates his "lack of interest or capacity rather than the inadequacy of the services offered." (See In re Laura F. (1983) 33 Cal.3d 826, 839.)
II.
Substantial Evidence Supports the Court's Finding That Mother's Mental Health
Problems Would Pose a Substantial Risk to S.L. If He Were Returned to Her Care.
Mother also contends there was insufficient evidence of the detriment required under section 366.21, subdivision (f) before a court at a 12-month review hearing can decide not to return a child to his parent. Mother cites In re Jamie M. (1982) 134 Cal.App.3d 530 for the propositions that " '[h]arm to the child cannot be presumed from the mere fact of mental illness of a parent" and that " '[t]he proper basis for a ruling is expert testimony giving specific examples of the manner in which the mother's behavior has and will adversely affect the child or jeopardize the child's safety.' "
Those propositions do not aid mother because the juvenile court did not rely on "the mere fact of mental illness" to find detriment. On the contrary, it considered the totality of the evidence, including, as required by subdivision (f)(1)(C) of section 366.21, the social worker's report and recommendations, the recommendations of the CASA child advocate, the efforts and progress (or lack thereof) demonstrated by mother and father and the extent to which they availed themselves of services provided, taking into account the barriers to father as an incarcerated parent during part of the period. And, based on detailed factual findings about mother's and father's failures to avail themselves of services offered, it found they had "failed to regularly participate and make substantive progress in the Court-ordered programs," which it recognized "under the law [is] prima facie evidence . . . that return would be detrimental." (See § 366.21, subd. (f)(1)(B).) Given the substantial evidence of lack of progress on both parents' part and the presumption of detriment that arises from it, the Agency was not required to proffer other evidence of detriment in the absence of any rebuttal.
Mother does not address the presumption or demonstrate that she (or father) successfully rebutted it. She contends there is no indication she had delusional thoughts about harming S.L. since his detention, but ignores the evidence of her continued delusions of various other kinds and lack of grasp on reality, her insistence on using street drugs that exacerbate her mental illness symptoms, her risky behaviors such as hitchhiking, travelling without money or medications, and her repeated hospitalizations after ingesting drugs. Mother points to testimony by the Agency social worker that she did not observe behaviors by mother that would harm S.L. physically, but ignores the social worker's testimony that mother's behavior indicated she would neglect S.L., would not take care of him and would cause him emotional harm. (See § 366.21, subd. (f)(1) ["substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child"].)
Mother focuses on her efforts to maintain compliance with her medication, her understanding that she is mentally ill and her requests for help in the form of hospitalization. But the issue is not whether mother made any effort in any aspect of her case plan; it is whether she "participate[d] regularly and ma[de] substantive progress in the court-ordered treatment programs." (§ 366.21, subd. (f)(1)(B).) The juvenile court, considering all of the evidence, found she did not. Specifically, it found that mother: "resisted" in the case plan designed to address her needs based on the recommendation of Dr. Roy; "never attended" the dual diagnosis group the social worker enrolled her in to treat people with mental illness and drug dependency problems; "did not attend" the parenting class the Agency got her enrolled in; "did not follow the doctor's recommendations that she stay off of street drugs, particularly marijuana, and inhaling . . . nitrous oxide, plus using other drugs"; received her monthly injection but interfered with its effect because, it was suspected, she "was continuing to use street drugs—marijuana and nitrous oxide and other drugs"; failed to comply with her drug testing regimen; did not participate in SOP practices "identified as important to establish support networks for her" and instead "[a]ccused the social worker and others of harassment"; "was not willing to comply with Dr. Roy's recommendation of a conservatorship"; did not stay available to the social worker so that she could be provided services; missed three out of five psychiatrist appointments and left early once; said in May she was "waiving" and "no longer wanted reunification services"; and did not regularly attend visitations. In short, the court found, other than taking her medications, "Mom has generally been non-compliant with the rest of her case plan," "appears to be regressing, rather than progressing" and "has shown a lack of insight into her mental illness" and "how her erratic behavior affects [S.L.]"
The court also stated that "even though mom is not hearing the command auditory hallucinations any more, that because she doesn't seem to have the insight, I'm just concerned what's going to happen to her once services are finally no longer available and she's going to be able to keep her medications or will get off of those. And I'm concerned about, as Dr. Roy called it, potential for horrendous consequences due to the command auditory hallucinations, apparently, that she kill her child." Mother "at times has just been completely separated from reality," telling Dr. Roy she was responsible "for the Manson killings and the killing of Nicole Simpson." The court noted that "Dr. Roy observed in May that mom continued to be erratic and unstable and unpredictable."
These specific findings are all supported by substantial evidence. They demonstrate both that the presumption was established here and that mother failed to rebut it. The court's continuing concern about her mental state and the risk it posed to S.L. was fully justified. We conclude its finding of detriment was adequately supported even beyond the presumption.
DISPOSITION
Mother's and father's writ petitions are denied. The stays issued by this court on November 17, 2016, and December 22, 2016, of the January 27, 2017 section 366.26 hearing are lifted and the case is remanded to the juvenile court for further proceedings. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.