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Mirna v. San Francisco Superior Court

Court of Appeals of California, First Appellate District, Division Two.
Nov 19, 2003
A103720 (Cal. Ct. App. Nov. 19, 2003)

Opinion

A103720.

11-19-2003

MIRNA C., Petitioner, v. SAN FRANCISCO SUPERIOR COURT, Respondent; SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.


Mirna C. (mother) seeks review (Cal. Rules of Court, rule 39.1B; Welf. & Inst. Code, § 366.26, subd. (l); all rule and section references are to those sources) of an order at a six-month review hearing of August 8, 2003, terminating reunification services and setting a section 366.26 (.26) hearing to select a permanent plan for her infant daughter, Adelina C. We deny the petition.

BACKGROUND

Adelina was born in September 2002 and has remained in foster care ever since. A petition filed by the San Francisco Department of Human Services (DHS) three days after her birth was sustained on November 13, 2002, for failure to protect and for abuse of sibling (§ 300, subds. (b) & (j)). This was mothers third child. Her first, reportedly born when mother was 17 years old and herself in foster care, lived in Arizona, and the second was Angela, born in October 1999, who was in foster care in Modesto. Sibling-abuse was based on findings that mother had two other children not in her care, the elder being adopted and the younger being a dependent of Stanislaus County due to mothers substance abuse and for whom mother had failed reunification and a permanent plan of adoption was in progress. Failure to protect was based on findings, as amended, that mother had a polysubstance abuse problem for which she was (by then) in treatment, that she had mental health problems that required further evaluation and treatment, and that there had been three prior "CES" referrals in Stanislaus and San Francisco Counties regarding substance abuse, physical abuse and general neglect.

Dependency was declared, and Adelina was placed in continued foster care. Hearing transcripts are not a part of our record (no appeal evidently having been taken from the dispositional order), but reports through the end of 2002 indicate a history of alcohol and cocaine abuse, homelessness, violence and hearing voices. The dependency for sibling Angela involved neglect plus physical abuse. Alvaro Ramirez—an uncle mother regarded as a brother due to having been raised with a grandmother, evidently in Guatemala—had reported mother hitting and swinging the two-month-old child by one arm and, but for another woman grabbing Angela, nearly hurling her to the floor. Mother had been admitted to a psychiatric inpatient facility in the past and, during the Stanislaus County case, received mental health services. A psychological evaluation of May 2000 by Dr. Leipoldo Villela identified polysubstance dependence, schizophrenia (residual type), mild retardation, and a need for further neurological testing to rule out possible brain dysfunction. Villela opined that mother was "`not capable of caring for her infant, even if inclusive services are offered" and that she was "`so severely mentally disturbed that her psychopathology cannot be remedied within the next six, twelve, or eighteen months . . . ." Mother had participated in a drug program, Las Amigas, but was asked to leave the program a week before completing it.

Mother identified Adelinas father as "Mike" from Modesto, providing no further information. He was never located, and mother lived with the uncle in a residential hotel in San Francisco. He constituted her only family support.

Mother responded positively to this DHS intervention, cooperated in services, and had visits and clean drug tests. Despite her recent failure at reunification and a belief that she had no substance abuse or mental health needs, DHS saw her as in "early recovery" and apt to benefit from services. She had been referred to programs. Ashbury House, based on an evaluation from Westside Crisis, had decided that her "adjustment disorder diagnosis" was not "a significant mental health illness" qualifying her for admission to that program; her psychiatric symptoms were deemed drug related, with drug treatment more appropriate. Mother had begun outpatient drug treatment and parenting classes at Mission Council and was to start an infant-parent program that included psychotherapy and developmental support. Mothers case plan included various services (not contested on this review), and requirements for dismissal or reunification included completing a residential drug treatment and/or mental health treatment program, not terminating the program without approval of the child welfare worker. Mother had "some difficulty following written and verbal instruction"; she would follow through with recommended services but sometimes misinterpreted information given to her by the social worker. A mental health consultant for DHS also expressed concern about her impaired judgment.

An interim review report at years end summarized a psychological evaluation by Dr. Maria Holden. Holden found that, while mother had been compliant with her current treatment regimen, it caused her "significant stress," and she was able to comply "only with a great deal of external structure," without which she lacked the "internal resources to maintain good functioning." Mother had a history of poor impulse control, neglect and physical abuse, and generally poor insight and judgment. Her relationship with the uncle appeared to be "questionable at best, and exploitative at worst," and she was in remission but had not been substance-free long enough to ensure that she would not again use in order to cope. During past drug use she had displayed "psychotic breaks with reality" and violent behavior to her second child. She was "likely unable to provide for basic food and shelter needs for herself and [Adelina]." Current testing showed "significant cognitive impairment as well as what is likely an underlying psychotic disorder," making it "highly unlikely" that she could "sustain adequate psychological functioning" once she left a "highly structure[d] setting." Holden recommended continued treatment, but only supervised interaction with Adelina, and an evaluation for psychotropic medication. If "capable of maintaining her compliance and of making significant gains in parenting ability and judgment for a significant period of time, [mother] should be allowed to have continued contact with Adelina." Psychotropic medication, Holden felt, might "help to improve her perceptual distortions and impaired reality testing," and failure to respond to such medication would make it "easier to make a differential diagnosis in favor of an organic disorder." Holden also suggested the "[p]ossibility of neuropsychological testing," for "while cognitive impairments appear to be diffuse and to affect multiple cognitive abilities," further testing might "provide more specific information and lead to other treatment recommendations of a neurological nature."

With that information, social worker Gloria Samayoa wrote in the interim report that it was essential that mother be in a residential recovery program. In light of the history with daughter Angela, the evaluations "poor prognosis," and mothers criminal history (arrests in Patterson and Modesto for exhibiting a deadly weapon, disorderly conduct and being under the influence of controlled substances), it was recommended that she participate without having Adelina with her. DHS wanted to be "very cautious" with Adelinas stability and not make "a premature reunification." Samayoa had referred mother to a "FIRST team" for program assessment and then to a residential program, Casa Maria, to start the intake process. Mother was agreeable to participating without Adelina until further assessments.

Mother entered Casa Maria on January 17, 2003 (unstated further dates are all in 2003), and succeeded with her treatments and sobriety there until she abruptly left the program on June 27, without permission, and disappeared except for sporadic telephone contact. Her whereabouts remained unknown as of the August 8 hearing six weeks later, which accordingly proceeded in her absence.

Meanwhile, a status review report of April 30, prepared for a six-month review then set to occur in mid-May, had updated mothers progress at Casa Maria and the case generally. Adelina, now seven months old, continued to do well in her foster care home. The half-sibling Angela had been adopted, and the adoption worker in Stanislaus County reported that the adoptive family was interested in adopting Adelina as well, so that the children could be together. Any contact between Adelina and that family would await court action on review, and DHS now recommended terminating reunification services for mother and setting a .26 hearing to select a permanent plan of adoption. A second evaluation, this one recently done through the Infant Parent Program, "also stated that [mothers] `psychological and cognitive impairments are such that she would need th[e] support of a long-term residential setting where she could receive consistent professional support and guidance in order to safely assume responsibility for the care of Adelina. Furthermore, . . . because they are not aware of any facility that offers such services they recommend against [mother] spending increasing amounts of time with Adelina." DHS now recommended terminating services in light of that second prognosis of psychological and cognitive deficits that rendered mother unable to be an independent, long-term parent to Adelina, mothers loss of Angela, the lack of any family members available to care for Adelina, and the half-siblings familys interest in adopting.

Eerily clairvoyant, the report also expressed concerns about mothers reliance on and relationship with the uncle, with whom she would have to reside upon leaving Casa Maria. Samayoa wrote: "[Mother] has reported that Mr. Ramirez continues to use sub-stances and he has a large influence over [her] behavior. For example, [he] controls [her] finances, he collects her General Assistance checks and he dictates how she can spend her money. Mr. Ramirez also has the capacity to get [mother] to lose focus on her treat-ment plan to focus on other things that are not significant to [her] progress."

That is unfortunately what prompted mother to abandon the Casa Maria program. At the continued review hearing of August 8, it developed that she had telephoned her therapist, Dr. Edgar Callo, on June 26 to say that she and her brother were going back to Modesto and to ask about having the case transferred there. She said she feared for her brothers safety, and her own, from a man for whom her brother worked. Callo warned her that leaving would jeopardize her reunification efforts, but she left with Ramirez and her belongings, leaving no address or phone number. Since then, she had not visited or inquired about Adelina, or participated in any services. No one knew where she was, but mother did know about the August 8 hearing. She had called her guardian ad litem (GAL), evidently from a phone booth, with the call breaking up. Before losing contact, the GAL was able to stress her need to come to court, and mother said she would try to be there but had a "financial problem" and wasnt sure she could afford it. Mother also left a phone message with Samayoa on August 6, but only said she would call back—and never did. Samayoa made many efforts to locate her, without avail, checking from time to time with therapist Callo, the adoption worker in Stanislaus County, and Casa Maria. Samayoa and mother had previously discussed a "goal" of having Adelina placed with Angelas family, but mother had not contacted them either. Her latest counsel, Gleason, had never had a chance to speak with mother. Gleason moved to continue the hearing, but the court denied the motion (without claim of error here).

Mother had had three appointed counsel through the August 8 hearing. She was initially represented by Gary Gonzalez but, on April 2, had him request an attorney who spoke "fluent Spanish" so as to make her feel "more at ease." Gonzalez was relieved as counsel on April 7, and Karen Elcaness, who did speak Spanish, substituted in. Evidently on Elcanesss motion, the court on May 22 ordered DHS to have a neuropsychological evaluation of mother done, through Foster Care Mental Health or a private entity, "before the trial on the contested six month review" set for August 8. The order added, "To all extent possible, the evaluation shall accommodate mothers primary language, Spanish, and Latina cultural background." (A report shows that mother came to this country from Guatemala at age 17 and, after giving up her first child for adoption, went back there for a year before returning to live in Texas and California.) The evaluation never occurred, and after mother left Casa Maria on June 27, Elcaness moved to be relieved as counsel, citing a relationship that had deteriorated to the point of inability to carry out her duties as counsel. On July 14, the court ordered her relieved and appointed Stephanie Gleason, who remains her counsel for this writ review. Mothers GAL, Dora Miranda, who had represented her since at least the jurisdictional/dispositional hearing, was notified of the pending attorney substitution and attended the August 8 hearing, as did Gleason.

At the August 8 hearing, Samayoa related two further evaluations of mother, one by her therapist, Edgar Callo. Callo found "a lot of emotional/psychological problems that interfered with her parenting ability" and was concerned about her cognitive abilities; it "was difficult for her to process and to understand what he was saying." In his opinion, "therapy wasnt going to help her get her child back within [DHSs] time frames." He had done emotional psychotherapy with mother, not cognitive work.

A second evaluation had assessed mothers need for medications. Psychiatrist Peter Turek evaluated her on two days in June and recommended to her medication for anxiety, saying it might help her but "wasnt necessary." It was not prescribed. Prior to this, Samayoa had discussed with mother the prospect that a medical evaluation would result in a recommended medication, but mother "was completely opposed to it. She had been drug free for nine months and she did not want to take any kind of, any type of drug, whether it was prescribed by a physician or not. She would not take any drugs." This kind of thing was "really hard for [mother] to understand because the way she thought was very rigid"; "no drugs," to her, meant no medications either.

Mothers counsel argued against the court finding either a provision of adequate services or no probability of return with extended services. As she does on this writ petition, she urged that a psychological evaluation as ordered by the court in May was essential to either finding. The court, having reviewed the entire case file, adopted the DHS recommendations. It found that reasonable services had been provided, eliminated them for mother, found no probability of return and set a . 26 hearing for December 17, 2003. Mothers GAL filed a timely notice of intent for her.

DISCUSSION

I. Reasonable Services

Mother cannot, and does not, fault the many services offered and provided to her, including the several psychological evaluations and the medication evaluation. Her sole complaint is that a neuropsychological evaluation, and any resulting recommendations, were not pursued earlier. Our role on this review is to test "whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services designed to aid the parent in overcoming the problems which led to loss of custody were provided or offered" (In re Joanna Y. (1992) 8 Cal.App.4th 433, 439); viewing the record in a light favorable to the judgment (In re Monica C. (1995) 31 Cal.App.4th 296, 306; In re Misako R. (1991) 2 Cal.App.4th 538, 545), we find ample support.

Mother correctly observes that the record shows various indications of possible neuropsychological problems, and it is not clear why such an evaluation was not done earlier. Samayoa stated at the August 8 hearing that she had "put in" a referral to Foster Care Mental Health for a neurological evaluation on December 27, 2002, acting on the previous recommendation by Dr. Maria Holden, but the record does not reveal why it was not done or why mothers second counsel, in May 2003, had to obtain a court order for the evaluation. DHS failure to arrange for one more promptly after the court order was excusable given problems in trying to honor the orders unusual bilingual-bicultural request (fn. 1, ante). Then compliance was thwarted altogether by mothers own actions in leaving Casa Maria and keeping everyone uninformed about where she was for the six weeks preceding the hearing—originally set for May 15 and, we infer, put over to August in order to allow for the evaluation.

But even if DHS was remiss in not seeking the evaluation sometime before the May order, we cannot say that this rendered the overall services inadequate. Samayoa addressed this matter at the August 8 hearing, explaining, in essence, that there was no indication that treatment for any neuropsychological deficiencies would have enabled mother to parent effectively within the time frames available. Adelinas infancy rendered the normal reunification period just six months (§§ 361.5, subd. (a)(2) [six months for a child under three]), and while the assessments, from this case and Stanislaus County, had variously described cognitive deficiencies ranging from retardation to drug-related ones, "their end result[s] for our purposes are that she cannot parent." Indeed, DHSs choice to offer mother services seems to have been hope against the odds, given failure to reunify in Stanislaus County and multiple assessments showing successful parenting to be a long shot at best. The hope seems to have been that removing the drug components of her im-pairments, which she appeared willing to do, might leave her able to function adequately. Samayoa had spoken with Dr. Holden about treatments for "organic" problems, options of occupational, speech and physical therapy, and learned that such treatments took "a long time." She explained: "[If mother] does have an organic failure in her brain and then we find that out and then she receives treatment, it wouldnt be until years later that she would really learn to work with those deficits. So meanwhile we have her child still in foster care. I mean this could be like three, four years of treatment before shes at a place where she can function and take care of a child."

The adequate-serves finding is supported.

II. Probability of Return

For much the same reasons, the courts finding of no probability of return within six months (§ 366.21, subd. (e)) is supported. We review for abuse of discretion (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068), and find none. Samayoa explained that, while mother was still in Casa Maria and complying with her reunification requirements, she sought further information and got input from the infant-parent program and "verbal feedback" from mothers therapist. The program reported that mother had problems with feeding her baby and "could not adopt the instruction that they were trying to teach her around issues as simple as dont pull the bottle out of the babys mouth and run to the bathroom[.]" Then, with mothers past failures, her current failure to finish residential drug treatment at Casa Maria, her sudden cessation of all participation in services for six weeks, her failure to visit Adelina and her unknown whereabouts, the recommendation was to move toward adoption. On the prospect of working on any neuropsychological impairments, Samayoa noted: "Well, at this point we dont have a mother to work with. Shes been gone." Samayoa had no idea whether or when mother would "resurface," and was "looking at the best interest of Adelina," who was "in foster care in a home that is not going to be her permanent home."

DISPOSITION

The petition is denied on the merits. (Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888 [subsequent challenge by appeal barred]; § 366.26, subd. (l)(1).) Given the nearness of the December 17 hearing, our decision is final as to this court immediately (rule 24(b)(3)).

We concur: Kline, P. J., Ruvolo, J. --------------- Notes: The courts precatory request to "accommodate mothers primary language, Spanish, and Latina cultural background" caused delays. Samayoa explained at the August 8 hearing that Foster Care Mental Health tried but was unable to find "a neuropsychologist that was bilingual-bicultural." Mothers therapist finally found one who was bilingual, though not bicultural, and by then mother had left the Casa Maria program and ceased contact, making the evaluation impossible.


Summaries of

Mirna v. San Francisco Superior Court

Court of Appeals of California, First Appellate District, Division Two.
Nov 19, 2003
A103720 (Cal. Ct. App. Nov. 19, 2003)
Case details for

Mirna v. San Francisco Superior Court

Case Details

Full title:MIRNA C., Petitioner, v. SAN FRANCISCO SUPERIOR COURT, Respondent; SAN…

Court:Court of Appeals of California, First Appellate District, Division Two.

Date published: Nov 19, 2003

Citations

A103720 (Cal. Ct. App. Nov. 19, 2003)